/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230417.mbx C L A S S A C T I O N R E P O R T E R Monday, April 17, 2023, Vol. 25, No. 77 Headlines ABBOTT LABORATORIES: Court Narrows Claims in Connor Suit AEROTEK INC: Court Grants Bid for Arbitration and Stays Kaba Suit ALLIANCE SPORTS: Hedges Files ADA Suit in S.D. New York AMERICAN EXPRESS: Oliver, et al., Seek to Certify Class Action ATIRA PROPERTY: Winters Hotel Fire Survivors Mull Class Action BALTIMORE BUILDERS: Class Settlement in Miller Suit Wins Prelim. OK BAYER HEALTHCARE: Faces Contraceptive Class Action in Australia BAYER HEALTHCARE: US Essure Suit No Impact on Australian Class Suit BLUEGREEN VACATIONS: All Class Cert. Briefing Due June 8 in Laskey BORAL STONE: Extension to File Class Status Bid Sought BOSTON UNIVERSITY: Court Rejects Students' COVID-19 Class Action BOTANIC TONICS: Suit Claims "Feel Free Drink" Falsely Advertised BURBANK ELECTRICAL: Held Liable for Unpaid Contributions by N.D.N.Y CARING PROFESSIONALS: Class Certification in Konstantynovska Upheld CELSIUS HOLDINGS: $7.8-Mil. Class Deal in Hezi Suit Wins Final OK CHURCH & DWIGHT: Court Narrow Claims in Vance Class Suit CITROSUCO: Faces $2.5-Bil. Price-Fixing Class Action in Brazil CORECIVIC INC: Barrientos, et al., Lose Class Certification Bid DHL SUPPLY: Faces Class Action Over Illegal Background Check DLOCAL LTD: Bids for Lead Plaintiff Appointment Due May 1 ELEVANCE HEALTH: Filing of Class Cert. Bid Due Oct. 6 EROS MEDIA: Agrees to Settle Securities Class Suit in New Jersey EXEL INC: Daley Class Suit Seeks to Recover Unpaid Wages Under PMWA EXPRESS LIEN: April 28 Extension for Class Cert Filing Sought FEDERAL GOVERNMENT: Filing of Class Cert. Bid Extended to May 31 FIREBALL WHISKY: Faces Class Action Over Bottle Labeling FIRSTSERVICE RESIDENTIAL: Dernoshek Appeals Summary Judgment FLORIDA: Medicaid Program, ADA Suit to Proceed as Class Action FORD MOTOR: Bid to Strike Class Allegations in Tucker Partly OK'd FORD MOTOR: C.D. California Refuses to Dismiss De Anda Class Suit FORD MOTOR: Class Action Over Hybrid Vehicles Dismissed FOX REHABILITATION: Conner Appeals Ruling in TCPA Suit to 3rd Cir. G.SKILL INTERNATIONAL: Filing of Class Cert. Bid Due Jan. 29, 2024 GENERAL MOTORS: Court Narrows Claims in Kiriacopoulos Class Suit GWG HOLDINGS: Bids for Lead Plaintiff Appointment Due June 2 HESAI GROUP: Robbins LLP Informs Investors of Class Action HOME PARTNERS: Court Dismisses Richmond's Claims Under CPA & RLTA HUNGERRUSH: Judge Dismisses Biometrics Class Action HWAREH.COM INC: Intercepts Electronic Communication, Zarif Says IRVING K: Must File Class Cert Response by April 17 IT'S JUST LUNCH: Vrugtman Seeks May 15 Hearing on Class Status ITS LOGISTICS: Bid to Approve $365K Deal in Guthrie Suit Denied J-M MANUFACTURING: Filing of Class Cert. Bid Due Oct. 30 JP MORGAN: Case Dates in Radabaugh Suit Stayed JUUL LABS: Local School Districts OK Vaping Class Suit Settlement KANSAS CITY ROYALS: Senne Awarded $4.6MM in Litigation Costs KERN COUNTY, CA: Hagler Files Suit in Cal. Super. Ct. KILOLO KIJAKAZI: Hellebuyck Files Suit in E.D. New York KINKISHARYO INT'L: Renewed Class Cert Bid Must be Filed by April 28 KNIGHT TRANSPORTATION: Settlement in Martinez Gets Initial Nod L'OREAL USA: Court Junks Eshelby Class Action MACROGENICS: 4th Cir. Affirms Securities Class Action Dismissal MATTRESS FIRM: Settles Class Action Over Defective Bed Frames NEW YORK, NY: Butler's Claims on Behalf of Murray and Others Tossed NEW YORK: Groups Pursue Lawsuit To End 'Illegal' Confinement NORFOLK SOUTHERN: Chester City Joins Train Derailment Class Action NULIFE MED: Agrees to Settle Class Suit Over Alleged Data Breach NVR INC: Court Grants Bid to Dismiss Amended Butakis Class Suit QUALCOMM: Files Motion for Summary Judgment in Antitrust Class Suit RITE AID: Bid for Lead Plaintiff Appointment Due May 19 ROBINHOOD MARKETS: Bids for Lead Plaintiff Appointment Due June 9 SAG-AFTRA HEALTH: Settles Health Coverage Class Action for $15-M STEVEN MCCRAW: Barcenas Class Action Dismissed SUN PHARMACEUTICALS: $75-M Deal in Antitrust Class Suit Gets OK SUN VALLEY PACKING: Pineda Class Suit Dismissed Without Prejudice TARGET CORP: Bids for Lead Plaintiff Appointment Due May 30 TARGET CORPORATION: Filing of Class Cert Bid Due August 4 TENNESSEE: Hart's Injunctive Relief Request v. Strada May Proceed TESLA INC: Faces Class Action Over Customers' Privacy Violations THAILAND: Civic Groups File Pollution Class Suit v. PM, NEB, SEC TIAA BANK: Class Settlement in DeSimone Suit Wins Prelim. Approval TMX FINANCE: Merritt Files Suit in Ga. Super. Ct. TMX FINANCE: Ritter Files Suit in S.D. Georgia TOYOTA MOTORS: Class Action Suit Alleges RAV4 Defective Roof Rails UMZU LLC: Hedges Files ADA Suit in S.D. New York UNITED STATES: Air Force Discrimination Class Action Can Proceed UNITED STATES: Camp Lejeune Attorneys File Consolidation Request UNITED STATES: D.C. Court Dismisses Johnson v. Sec. Becerra of HHS UNIVERSITY OF DELAWARE: Griffin Files Suit in D. Delaware VISION SOLAR: Customers Sue Over Deceptive Business Practices WASTE CONNECTIONS: Loses Bid for Summary Judgment in Sunshine Suit WEYANT FAMILY: Metzgar Files ADA Suit in S.D. New York WYNN RESORTS: Schuster Appeals Summary Judgment Ruling to 1st Cir. [*] Kelley Drye Attorneys Discuss State AGs' Role in Class Actions ********* ABBOTT LABORATORIES: Court Narrows Claims in Connor Suit -------------------------------------------------------- In the class action lawsuit captioned as SARAH CONNOR, individually and on behalf of all others similarly situated, v. ABBOTT LABORATORIES, INC., Case No. 3:21-cv-01463-SMY (S.D. Ill.), Hon. Judge Staci M. Yandle entered an order granting Abbott's motion to dismiss with respect to Plaintiff Sarah Connor's claims for breach of express warranty, implied warranty, and the Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and her request for injunctive relief. Connor may proceed on her claims under the ICFA and for unjust enrichment, the Court Says. In this putative class action, Plaintiff Sarah Connor alleges that the Defendant misrepresented to consumers that its product "Similac Pro-Advance infant formula" is comparable to breast milk. In the Complaint, Connor asserts violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. Abbott is an American multinational medical devices and health care company with headquarters in Abbott Park, Illinois, United States. A copy of the Court's order dated March 29, 2023 is available from PacerMonitor.com at https://bit.ly/3MMBstB at no extra charge.[CC] AEROTEK INC: Court Grants Bid for Arbitration and Stays Kaba Suit ----------------------------------------------------------------- In the case, MOHAMED KABA, ABDUL LEE, Plaintiffs v. AEROTEK, INC., LABCORP DRUG DEVELOPMENT INC., Defendants, Case No. 1:23-cv-00084-JMS-TAB (S.D. Ind.), Magistrate Judge Tim A. Baker of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, grants Aerotek's motion to compel arbitration. Aerotek provides temporary staffing services on a contract basis. In December 2020, Aerotek extended offers of employment to Kaba and Lee to be assigned to Aerotek's customer Labcorp. On Dec. 11, 2020, Kaba electronically signed the arbitration agreement to acknowledge his receipt of the agreement and acceptance of its terms prior to starting his role at Labcorp. On Dec. 16, 2020, Lee electronically signed the arbitration agreement to acknowledge his receipt of the agreement and acceptance of its terms. The terms of the arbitration agreement require the parties to submit covered claims to arbitration with Judicial Arbitration and Mediation Services rather than proceeding in court. Aerotek also has an employment agreement with those it hires to be placed on assignment. Kaba electronically signed the employment agreement on Dec. 11, 2020, and Lee electronically signed it on Dec. 16, 2020. Among other terms, the employment agreement provides that the prevailing party in a dispute is entitled to recover reasonable attorneys' fees and costs. The Plaintiffs' assignments with Labcorp ended on Aug. 17, 2021. On Dec. 12, 2022, Kaba and Lee filed a Combined Class Action Complaint and Individual Complaint for Damages and Request for Jury Trial in Marion Superior Court. The Plaintiffs' complaint alleges that Defendants violated Title VII of the Civil Rights Act of 1964 as to the Plaintiffs and a class of similarly situated Muslim employees. Specifically, the Plaintiffs allege religious harassment, failure to accommodate their religious practices, and retaliation. Aerotek filed its notice of removal to this Court in January 2023, then subsequently moved to compel arbitration and dismiss, or alternatively, stay the action. The Plaintiffs oppose Aerotek's motion. The only issue is whether the arbitration agreement is a valid, enforceable agreement. Aerotek argues that the Court should grant its motion to compel arbitration because the parties have a valid, enforceable arbitration agreement that covers the Plaintiffs' claims. It argues that it is, and notes that the Plaintiffs do not dispute that they received the arbitration agreement before they began their employment by Aerotek, had an opportunity to review it, and accepted the terms by electronic signature. It maintains that the Plaintiffs' assent to the terms of the arbitration agreement is further reflected by their accepting offers of employment to be assigned to Aerotek's client Labcorp. The Plaintiffs argue that the arbitration agreement is unenforceable because it is both substantively and procedurally unconscionable. Specifically, they take issue with two provisions in the agreement: (1) its prohibition on the use of class action litigation for mutual self-protection; and (2) its confidentiality provision, which requires that the parties maintain the confidential nature of the arbitration proceeding and the award, including all disclosures in discovery, submissions to the arbitrator, the hearing, and the contents of the arbitrator's award. Judge Baker holds that the Plaintiffs have not met their burden of proving that the claims at issue are not referable to arbitration. Rather, the arbitration agreement is valid and enforceable, and the claims in their complaint are covered claims that must be submitted to arbitration. Accordingly, Aerotek's motion to compel arbitration is granted. However, in line with Seventh Circuit precedent, Judge Baker stays, rather than dismisses, the lawsuit. Aerotek additionally requests that the Court awards it attorneys' fees and costs in connection with bringing the motion. The employment agreements signed by the Plaintiffs provide that the prevailing party in a dispute is entitled to recover reasonable attorneys' fees and costs. Judge Baker holds that the Plaintiffs breached their agreements by filing suit in court, rather than in an arbitral forum. Thus, Aerotek is entitled to recover its reasonable attorneys' fees and costs as a result of the breach. For these reasons, Judge Baker grants Aerotek's request for fees and costs. The parties should cooperate in good faith to resolve this fee issue. If they are unable to do so, Aerotek has 21 days from the date of the Order to file a brief and supporting documentation regarding its fees. The matter is stayed pending resolution in the arbitration proceedings, provided the Court will, if necessary, resolve the attorneys' fee issue. A full-text copy of the Court's April 4, 2023 Order is available at https://tinyurl.com/3p58y8y7 from Leagle.com. ALLIANCE SPORTS: Hedges Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Alliance Sports Group, L.P. The case is styled as Donna Hedges, on behalf of herself and all other persons similarly situated v. Alliance Sports Group, L.P., Case No. 1:23-cv-02900 (S.D.N.Y., April 6, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Alliance Sports Group -- http://new.alliancesportsgroup.net/-- is a leading designer, manufacturer and distributor of innovative, high quality products that consumers love.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: nyjg@aol.com michael@gottlieb.legal AMERICAN EXPRESS: Oliver, et al., Seek to Certify Class Action -------------------------------------------------------------- In the class action lawsuit captioned as ANTHONY OLIVER, TERRY GAYLE QUINTON, SHAWN O’KEEFE, ANDREW AMEND, SUSAN BURDETTE, GIANNA VALDES, DAVID MOSKOWITZ, ZACHARY DRAPER, NATE THAYER, MICHAEL THOMAS REID, ALLIE STEWART, ANGELA CLARK, JOSEPH REALDINE, RICKY AMARO, ABIGAIL BAKER, JAMES ROBBINS IV, EMILY COUNTS, DEBBIE TINGLE, NANCITAYLOR MADDUX, SHERIE MCCAFFREY, MARILYN BAKER, WYATT COOPER, ELLEN MAHER, SARAH GRANT and GARY ACCORD on behalf of themselves and all others similarly situated, v. AMERICAN EXPRESS COMPANY and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Case No. 1:19-cv-00566-NGG-SJB (E.D.N.Y.), the Plaintiffs ask the Court to enter an order 1. certifying the action as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3); and 2. appointing, as class counsel, Berman Tabacco and Gordon Ball, LLC, as Co-Chairs of Plaintiffs' Executive Committee and appoint Lovell Stewart Halebian Jacobsen LLP; Miller Law LLC; Stamell & Schager, LLP; Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.; Saltz, Mongeluzzi & Bendesky, P.C.; Wagstaff & Cartmell, LLP; Kahn Swick & Foti, LLC, Berman Tabacco; and Gordon Ball, LLC as Plaintiffs’ Executive Committee pursuant to Fed. R. Civ. P. 23(g). American Express is an American multinational financial services corporation specialized in payment cards headquartered in New York City. A copy of the Plaintiff's motion dated March 29, 2023 is available from PacerMonitor.com at https://bit.ly/3GsKOq4 at no extra charge.[CC] The Plaintiffs are represented by: Todd A. Seaver, Esq. Joseph J. Tabacco, Jr. , Esq. Carl N. Hammarskjold, Esq. Colleen L. Cleary, Esq. Justin N. Saif, Esq. BERMAN TABACCO 425 California Street, Suite 2300 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: jtabacco@bermantabacco.com tseaver@bermantabacco.com chammarskjold@bermantabacco.com ccleary@bermantabacco.com jsaif@bermantabacco.com - and – Gordon Ball, Esq. Jonathan T. Ball, Esq. GORDON BALL LLC 7001 Old Kent Dr. Knoxville, TN 37919 Telephone: (865) 525-7028 Facsimile: (865) 525-4679 E-mail: gball@gordonball.com - and – Jay B. Shapiro, Esq. Samuel O. Patmore, Esq. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. 150 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 789-3200 Facsimile: (305) 789-3395 E-mail: jshapiro@stearnsweaver.com spatmore@stearnsweaver.com - and – Christopher Lovell, Esq. Gary S. Jacobson, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 61 Broadway, Suite 501 New York, NY 10006 Telephone: (212) 608-1900 Facsimile: (212) 719-4775 E-mail: clovell@lshllp.com gsjacobson@lshllp.com - and – Marvin A. Miller, Esq. Andrew Szot, Esq. MILLER LAW LLC 145 S. Wells Street, 18th Floor Chicago, IL 60606 Telephone: (312) 332-3400 Facsimile: (312) 676-2676 E-mail: mmiller@millerlawllc.com aszot@millerlawllc.com - and – Jared B. Stamell, Esq. Richard J. Schager, Jr. , Esq. Andrew Goldenberg, Esq. STAMELL & SCHAGER, LLP 260 Madison Ave., 16/F New York, NY 10016-2410 Telephone: (212) 566-4057 Facsimile: (212) 566-4061 E-mail: stamell@ssnylaw.com schager@ssnylaw.com goldenberg@ssnylaw.com - and – Simon Paris, Esq. SALTZ MONGELUZZI & BENDESKY One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Telephone: (215) 496-8282 Facsimile: (215) 496-0999 E-mail: sparis@smbb.com - and – Eric. D. Barton, Esq. WAGSTAFF & CARTMELL LLP 4740 Grand Avenue Suite 300 Kansas City MO 64112 Telephone: (816) 701-1167 Facsimile: (816) 531-2372 E-mail: ebarton@wcllp.com - and – Lewis S. Kahn, Esq. Melinda A. Nicholson Alayne Gobeille KAHN SWICK & FOTI, LLC 1100 Poydras Street, Suite 3200 New Orleans, Louisiana 70163 Telephone: (504) 455-1400 Facsimile: (504) 455-1498 E-mail: lewis.kahn@ksfcounsel.com melinda.nicholson@ksfcounsel.com alayne.qobeille@ksfcounsel.com ATIRA PROPERTY: Winters Hotel Fire Survivors Mull Class Action -------------------------------------------------------------- John Ackermann, Charlie Carey and Dean Recksiedler, writing for CityNews Everywhere, report that April 11 marks one year after a deadly fire ripped through the Winters Hotel in Vancouver's historic Gastown neighbourhood. Survivors of the fire, along with the Our Homes Can't Wait Coalition, say in a news release they are planning to launch a class action lawsuit against Atira Property Management, the City of Vancouver, and Winters Residence Incorporated. "By filing this class action lawsuit, we're putting some fire under their asses . . . sort of calling upon [them] to actually start to address this major systemic issue, which is the lack of safe housing all across the Downtown Eastside, which is leading to of course encampments," Tao told CityNews. Tao says fire safety in SROs in Vancouver is a bigger issue than just the Winters Hotel fire. "We're going to lose more units, people are going to be further traumatized and, unfortunately, the Winters won't be the first or last building to cause this kind of havoc in the neighborhood," he said. The 115-year-old hotel burned to the ground on April 11, 2022, and the bodies of 53-year-old Dennis Guay and 68-year-old Mary Ann Garlow were found over a week later during demolition. At the time, the Vancouver Police Department said that unattended candles were likely the cause of the blaze, and a preliminary investigation found that the building's sprinkler system had been turned off days before the fire. Tao says the lawsuit hopes to make landlords and housing corporations more accountable. "Hopefully, this class action is a way to at least, at the very least, get the foot in the door because [residents have] been completely shut out of any conversation … around collective fire safety and the state of housing and death on the site. "Winters will not be swept under the rug and neither will the residents." [GN] BALTIMORE BUILDERS: Class Settlement in Miller Suit Wins Prelim. OK ------------------------------------------------------------------- In the case, DEVON R. MILLER, individually and on behalf of all others similarly situated, Plaintiff, v. BALTIMORE BUILDERS SUPPLY & MILLWORK, INC., et al., Defendants, Case No. 2:21-cv-4867 (S.D. Ohio), Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio, Eastern Division, grants the Joint Motion for Preliminary Approval of Class Action Settlement. The Motion was filed by Plaintiff Devon R. Miller and Defendants Baltimore Supply & Millwork, Inc., Hometown Hardware, Inc., Richard E. Foreman, and Robin L. Hayes. The Motion requests the Court to (1) preliminarily approve the proposed settlement of Settlement Class Members' claims pursuant to Fed. R. Civ. P. 23(e); (2) approve a proposed notice to potential Settlement Class Members; (3) appoint Scott & Winters Law Firm as interim Class Counsel; and (4) schedule a Fairness Hearing. Having reviewed the submission of the parties, Judge Sargus finds that the Motion should be granted. Accordingly, he preliminarily approves the Settlement Agreement submitted with the Motion as fair, reasonable, and adequate. Judge Sargus preliminarily and conditionally approves, for settlement purposes, the following Settlement Class: All individuals listed in the Preliminary Class Member List and Allocation Schedule attached as Exhibit E, which includes all present and former hourly nonexempt employees of Defendants during the period of Sept. 30, 2019 to Nov. 19, 2021 who worked overtime hours during one or more workweeks and who were not paid overtime compensation at one and one-half times the employee's regular rate of pay for all hours worked in excess of 40 hours per workweek. Judge Sargus preliminarily approves (i) Plaintiff Devon Miller as the Class Representative; (ii) Scott & Winters Law Firm as the interim Class Counsel; and (iii) Rust Consulting (920 2nd Ave. A., Suite 400, Minneapolis, Minnesota 55402) as the Settlement Administrator. A Fairness Hearing addressing final approval of the settlement will be held before the Court on Sept. 13, 2023, at 10:00 a.m., in Room 311 of the Joseph P. Kinneary U.S. Courthouse, 85 Marconi Boulevard, Columbus, OH 43215. The parties will file all papers in support of the final approval of the settlement and the associated issues described 30 days before the Fairness Hearing. Objectors, if any, will file any response to the Plaintiff's motion(s) no later than 17 days prior to the Fairness Hearing. No later than seven days prior to the Fairness Hearing or at such other time as ordered by the Court, the Plaintiff will file a Reply in Support of the Motion for Final Approval of Class Action Settlement and/or responses to any filings by objectors to address any valid and timely objections. The "Notice of Class Action Settlement" and the notice protocols described in the Settlement are approved pursuant to Civil Rules 23(c)(2)(B) and 23(e)(1). The Notice Form will be sent to the "Potential Class Members" as defined in the Settlement Agreement, pursuant to such protocols. Individuals who wish to exclude themselves from the settlement must do so within 60 calendar days after the settlement administrator mails the Notice Form and must follow the procedures described in the Settlement Agreement and Notice Form. Individuals who wish to object to the settlement must do so within 60 calendar days after the settlement administrator mails the Notice Form and must follow the procedures described in the Settlement Agreement and Notice Form. The Settlement Administrator will cause the objections to be filed with the Court. With the interim Class Counsel and the Counsel for Defendants, it will contact the Court's chambers for guidance in terms of how the Court would prefer to receive the objection. The Court reserves the right to adjourn the date of the Fairness Hearing without further notice to the Settlement Class Members and retains jurisdiction to consider all further applications or matters arising out of or connected with the proposed Settlement Agreement. It may approve the Settlement Agreement, with such modifications as may be agreed to by the parties, if appropriate, without further notice to the Settlement Class Members. A full-text copy of the Court's April 4, 2023 Order is available at https://tinyurl.com/3nssktdf from Leagle.com. BAYER HEALTHCARE: Faces Contraceptive Class Action in Australia --------------------------------------------------------------- Women's Agenda reports that more than one thousand Australian women are commencing a class action in the Victorian Supreme Court against the manufacturer of a contraceptive device they say left them in extreme pain. The class action is seeing the women taking on the multinational pharmaceutical giant Bayer, regarding their contraceptive device Essure, which the women say left them in extreme pain, with some needing to go on to have hysterectomies. Slater and Gordon senior associate Kylie Trounson took on the class action three years ago. The law firm claims the devices damaged their clients' health, and they allege Bayer failed to warn women of the risks associated with the device. The trial is expected to last 12 weeks and involve Bayer and other entities that distributed and manufactured Essure between 1997 and 2017 in Australia. Bayer says it continues to stand behind the safety and efficacy of Essure, which it stopped selling in 2017. It has already settled a case with 39,000 women in the United States for US$1.6 billion, with some of the Australian women involved in the Australian case questioning why the pharmaceutical giant hasn't done more for Australian women who also received the device. "We are confident that the evidence, in this case, will demonstrate the company is not responsible for the alleged injuries," Bayer said in a statement regarding the class action. Kylie Trounson told AAP that the women are frustrated at the fact there has been no settlement locally here, despite the large sums of money paid in the US. "A large multinational entity like Bayer is of course entitled at law to defend litigation in Australia and elsewhere as it sees fit, however it is not just our clients who are impacted by the need to go to trial," she said. "There is also enormous costs to the taxpayer in respect of course resources being expended on this trial, which is expected to run for three months." Slater and Gordon claims the device has been linked with a range of serious conditions and complications including choric pelvic and abdominal pain, irregular menstrual bleeding and cramping, the device migrating through the fallopian tubes, corrosion of the device, perforation of the fallopian tubes and other organs. Some of the women involved in the class action talk about the pain feeling like a "knife in the stomach". Others say they missed significant periods of world due to what they experienced. Some discuss the trauma of going on to have hysterectomies, including one woman who says she had a hysterectomy at the age of just 35 to have the device removed. Others say the only way they were able to find answers regarding the pain they were experiencing was through turning to social media and finding a Facebook support group of women who had experienced similar symptoms, and others again only linked the pain they had been experiencing to potentially involving the device, after reading about legal action taken against the manufacturer internationally. The device, a metal spring-like coil, works to prevent pregnancy by being inserted in each fallopian tube, and creating scar tissue around the device to anchor it in place and block the passage of sperm,. The Australian class action comes as Bayer recently announced its traditional drug research focus would shift away from women's health, to instead move to neurology, rare diseases and immunology. "When it comes to research and the subsequent clinical phases, we will no longer have an explicit focus on women's health," the head of Bayer's pharmaceuticals unit, Stefan Oelrich, told Reuters in March. Bayer makes the Yasmin brand of birth control pills, as well as the Mirena intrauterine device. Bayer is believed to have sold 750,000 Essure devices internationally before the product was taken off the market in 2017 for commercial reasons. In July last year, Australian women won a $105 million settlement from the multinational manufacturer of medical devices Boston Scientific, for the severe pain they experienced after receiving pelvic mesh and sling implants, once the most commonly used treatment for pelvic prolapse or stress urinary incontinence. [GN] BAYER HEALTHCARE: US Essure Suit No Impact on Australian Class Suit ------------------------------------------------------------------- Ben Knight, writing for ABC News, reports that when Lee-Anne Daffy's doctors couldn't work out why she was suffering constant uterine pain and bleeding, they scheduled a day surgery to take a closer look. She stayed in hospital for two months after suffering a cardiac arrest on the operating table. "It was a really difficult time," she said. "My youngest had her second birthday while I was in hospital. When I came home, she just wouldn't come to me. "She had to learn to trust me again because I'd been away for so long and she didn't know who I was. It was heartbreaking." Three years earlier, in 2008, Ms Daffy had been given a brochure by her doctor for Essure contraceptive coils. Essure was a permanent contraceptive system which worked by inserting two metal coils into a woman's fallopian tubes. The coils caused scarring, which blocked the tubes and prevented an ova and sperm meeting. But within weeks of Ms Daffy having them inserted into her fallopian tubes, the constant pain and bleeding began. "Initially, it was just like, 'well, you know, you've had a few children, and just give yourself time to settle your body to settle down and it'll be OK'," Ms Daffy said. For Susanne, who only wants to be known by her first name, the symptoms took longer to appear after she had the device inserted in late 2011. But they became so bad, she could no longer work as a high school teacher. "I would wake up in bed in a sea of blood like a homicide scene," she said. "I was in tears constantly." Both women had hysterectomies eight years after their devices were implanted. More than 1,000 Australians involved in class action lawsuit In 2017, the Therapeutic Goods Administration issued a hazard warning for the device, and it was recalled from the market. Essure's manufacturer Bayer says it stands by the safety and efficacy of its device and that women who currently have Essure in place may continue to confidently rely on the device. But on April 11, a class action brought by more than 1,000 women against Bayer and related companies will begin in Victoria's Supreme Court. Slater and Gordon lawyer Kylie Trounson, who is representing the women, said the device was poorly conceived, poorly designed, and wasn't tested sufficiently enough for long-term safety. "It's a sharp spring-loaded metal coil designed to cut into the walls of the fallopian tubes and cause an acute inflammation, and then an ongoing chronic inflammation so that the scar tissue will form around the coils," she said. More than half of the women involved in the class action have had hysterectomies to remove their devices. "The kinds of stories we hear from women are pretty horrific, but also very consistent," Ms Trounson said. "Chronic and quite severe pelvic pain, and also very heavy and prolonged menstrual bleeding, which impacts their lives profoundly. Some women have told us that they couldn't walk their children to school, because they'd have to run home and change their clothes." A Bayer spokesperson said the health and safety of patients was the company's "greatest priority". "Bayer believes it has strong defences and will continue to defend itself vigorously in court." "Bayer stands behind the safety and efficacy of Essure which is supported by an extensive body of research (including 10 clinical trials and over 70 real-world observational studies), undertaken by Bayer and independent medical researchers, involving more than 270,000 women over the past two decades." Company settled in US lawsuit It's not the first time Bayer has faced a lawsuit over the Essure device. In 2020, it agreed to pay $US1.6 billion to settle claims in the United States. But it has not offered a settlement in Australia. "I don't understand how that they would settle with a group of women overseas, and not consider us to be any less worthy," Ms Daffy said. The Bayer spokesperson told the ABC the US case had no impact on the class action in Australia. "The decision to settle in the US reflects factors unique to the American mass tort legal system, including the high costs of US litigation, and did not include any admission of wrongdoing or liability by Bayer," they said. The judge-only trial is expected to run for 12 weeks. Ms Daffy, who considers herself a private person, is hoping she will then be able to stop sharing and re-living what she went through. "I'm sharing my story for my nieces, for my granddaughters," she said. "I don't want another generation of women to have to go through this again." [GN] BLUEGREEN VACATIONS: All Class Cert. Briefing Due June 8 in Laskey ------------------------------------------------------------------ In the class action lawsuit captioned as Laskey et al., v. Bluegreen Vacations Unlimited, Inc., et al., Case No. 6:22-cv-03194 (W.D. Mo.), Hon. Judge M. Douglas Harpool entered an order staying briefing and ruling on the pending motion: -- All briefing concerning Class Certification or Modification of Class Definition shall be complete before the close of discovery on June 8, 2023. -- The Court will analyze Plaintiffs' motion for approval of class notice plan after the class certification and/or modification of class definition has been decided. The nature of suit states Torts -- Personal Property -- Other Fraud. Bluegreen Vacations is a leisure, travel, and tourism company.[CC] BORAL STONE: Extension to File Class Status Bid Sought ------------------------------------------------------ In the class action lawsuit captioned as ESTELA BARAJAS DE BOTELLO, on behalf of herself and the putative Class Members; v. BORAL STONE PRODUCTS, LLC NOW DOING BUSINESS AS WESTLAKE ROYAL STONE, LLC; and DOES 1-100, inclusive; Case No. 3:22-cv-03863-VC (N.D. Cal.), the Parties file joint stipulation to amend case schedule as follows: 1. The Parties jointly agree to extend the case schedule. 2. The Parties jointly agree and request that the fact discovery cutoff in this action be extended by seven months, i.e., until February 5, 2024. 3. The Parties jointly agree and request that the class certification schedule in this action be extended as follows: Motion for Class Certification to be filed and served by April 5, 2024. Opposition to Motion for Class Certification to be filed and served by April 26, 2024. Reply to Motion for Class Certification to be filed and served by May 17, 2024. Hearing on Motion for Class Certification will be scheduled for June 3, 2024. Boral Stone manufactures cultured stone veneer products. A copy of the Parties' motion dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3mkZktf at no extra charge.[CC] The Plaintiff is represented by: Carolyn H. Cottrell, Esq. Caroline N. Cohen, Esq. Andrew D. Weaver, Esq. Philippe M.J. Gaudard, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ccottrell@schneiderwallace.com ccohen@schneiderwallace.com aweaver@schneiderwallace.com pgaudard@schneiderwallace.com The Defendant is represented by: Jennifer B. Zargarof, Esq. Tuyet T. Nguyen Lu, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Telephone: (213) 612-2500 Facsimile: (213) 612-2501 E-mail: jennifer.zargarof@morganlewis.com tuyet.nguyen@morganlewis.com BOSTON UNIVERSITY: Court Rejects Students' COVID-19 Class Action ---------------------------------------------------------------- Andrew G. Simpson, writing for Insurance Journal, reports that a federal court has rejected a proposed class action by students against Boston University over alleged damages they suffered due to cutbacks by the school during the Covid-19 pandemic. The students sought a refund of payments they made for tuition and fees for the loss of "on-campus experience" when the school closed its campus, halted all in-person instruction, and moved all classes online in the spring of 2020. The federal district court for Massachusetts said that BU provided in-person instruction in exchange for tuition and access to certain campus facilities in exchange for certain fees but the school never made an "open-ended" promise to provide an "on-campus experience" as claimed by the students. The court found fault with their expert's methodology for calculating the damages they allegedly suffered. The court noted that the contractual obligations to provide in-person instruction and access to on-campus facilities arose from different sources and any appropriate measure of damages would require separately addressing each alleged promise. This would involve measuring the net reduction in the value of tuition associated with the transition to online instruction and giving different consideration to the net reduction in the value of campus fees associated with the loss of access to campus facilities. However, the students attempted to identify a value for the "experience" that was dissociated from the nominal costs of each component. As part of its defense, BU cited the doctrine of "impossibility" and the court agreed that no jury could find that students reasonably believed that BU "undertook an absolute obligation to perform" according to the alleged contract and assumed the risk even if continued performance became unlawful. The doctrine of impossibility -- or impracticability -- excuses performance of a contract where an event that occurs after the contract is executed makes performance impossible or impracticable; a basic assumption behind the contract was nonoccurrence of the event; and the party seeking to have its performance excused did not cause the event. The plaintiffs argued that nonoccurrence of the event was a basic assumption on which the BU contract rested, arguing that there was a genuine dispute of material fact as to whether BU assumed the risk of a pandemic. However, the court found that argument unconvincing, noting that even the plaintiffs conceded that "Covid's effects were unforeseen." BU may have to still provide restitution for the difference in value between what students were promised and what they received, the court continued. However, the methodology used by the plaintiffs' expert, known as the Choice-Based Conjoint (CBC) Analysis, is inappropriate for the calculation of damages for the type of breach alleged in this case, the court concluded. Because this expert testimony was insufficient to create a genuine dispute of material fact as to the existence or amount of any restitution damages -- and the plaintiffs offered no other opinion on how to adequately measure damages -- the court granted summary judgment in BU's favor. [GN] BOTANIC TONICS: Suit Claims "Feel Free Drink" Falsely Advertised ---------------------------------------------------------------- Botanic Tonics advertises its "Feel Free Wellness Tonic" as a safe and healthy alternative to alcohol, but fails to disclose that one of its ingredients is potentially highly addictive, a class action lawsuit alleges. Plaintiff Romulo Torres says he chose to purchase Botanic Tonics Feel Free based on representations that the tonic is a kava drink and that the beverage is no more habit forming than sugar or caffeine. However, Torres says the primary ingredient in Botanic Tonics Feel Free is kratom, not kava. "Kratom is an opioid that carries similar risks of addiction as controlled narcotics," according to the Botanic Tonics class action lawsuit. The U.S. Food and Drug Administration and Drug Enforcement Administration have both reportedly warned that kratom can lead to addiction and can pose adverse side effects. The Botanic Tonics class action notes that kratom is associated with a number of side effects, ranging from nausea, sweating, and constipation to more severe side effects such as high blood pressure, liver failure, hallucinations, psychosis, cardiac arrest, and coma. "Unbeknownst to consumers, Botanic Tonics not only added kratom in large amounts, but also manipulated the formula of Feel Free to magnify the effects of kratom and induce a quicker, longer-lasting, and greater high," the Botanic Tonics class action lawsuit states. Botanic Tonics allegedly failed to disclose the amount or concentration of kratom in the Feel Free tonics, potentially putting consumers at risk of significant side effects. Plaintiff says he developed Botanic Tonics Feel Free addiction and relapsed to cope with withdrawal symptoms Torres says he has suffered from alcoholism and is now sober. In 2020, he says he began seeing targeted Botanic Tonics Feel Free advertisements on social media, advertising the product as a safe and healthy alternative to alcohol. He purchased Botanic Tonics Feel Free from a 7-11 store and allegedly developed a strong addiction to the product within three months. He was allegedly spending about $3,000 per month on the product and experienced withdrawal when he tried to stop using the tonic. He says he relapsed to cope with the worsening withdrawal symptoms. "Feel Free has caused [Torres] to lose his job, had severe impacts on his family life, and has undermined his decades of work in recovery," the Botanic Tonics class action lawsuit asserts. Torres filed the Botanic Tonics class action lawsuit on behalf of himself and a proposed class of others who purchased Botanic Tonics Feel Free in California since March 28, 2019. Last fall, a federal judge dismissed some claims from a class action lawsuit against 7-Eleven that claimed the company falsely advertised some of its products as recyclable. Have you purchased Botanic Tonics Feel Free products? Tell us about your experience in the comments! Torres is represented by Robert S. Arns, Jonathan E. Davis, Shounak S. Dharap, and Katherine A. Rabago of Arns Davis Law and Anthony L. Label, Theo Emison, Steven A. Kronenberg, and Jacqueline K. Oh. of The Veen Firm PC. The Botanic Tonics Feel Free class action lawsuit is Romulo Torres v. Botanic Tonics LLC, et al., Case No. 3:23-cv-01460, in the U.S. District Court for the Northern District of California.[GN] BURBANK ELECTRICAL: Held Liable for Unpaid Contributions by N.D.N.Y ------------------------------------------------------------------- news.bloomberglaw.com reports that Burbank Electrical Contractor Inc. is liable for unpaid contributions to its workers' retirement and health plans, a federal court in New York ruled. The New York-based company didn't answer or appear in this class action, Judge Brenda K. Sannes of the US District Court for the Northern District of New York said. Sannes awarded the plaintiffs default judgment for over $83,000, including payments for past-due contributions to the retirement and health benefit funds, delinquent union dues, attorney's fees, and interest.[GN] CARING PROFESSIONALS: Class Certification in Konstantynovska Upheld ------------------------------------------------------------------- In the case, LYUDMYLA KONSTANTYNOVSKA, ET AL., Respondents v. CARING PROFESSIONALS, INC., Appellant, Index No. 159883/16, Appeal Nos. 17636-17637, Case Nos. 2022-00368, 2022-04365 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, First Department, unanimously affirms with costs the Orders of Judge Shlomo Hagler of the Supreme Court, New York County, entered Jan. 14, 2022, and Sept. 16, 2022, which granted the Plaintiffs' motion for class certification and approved the form and publication of notice of the class action. The Supreme Court providently granted class certification because the Plaintiffs submitted evidence that they worked with at least 40 other home health aides and that the Defendant systematically paid them and the putative class members for only 13 hours of their 24-hour shifts, without providing them proper meal breaks or uninterrupted periods of sleep. The Plaintiffs also submitted affidavits, testimony, and payroll records showing that they and the putative class members were not paid the minimum wage, overtime wages, or other wage benefits due to the Defendant's policies. The Appellate Division says claims of systemic wage violations, such as the ones presented in the case, are particularly appropriate for class certification. Defendant's arguments disputing the merits of the Plaintiffs' claims are unavailing at this juncture, as the evidence is sufficient to show that their causes of action are neither spurious nor sham. The differing amounts of damages to which each individual class member may be entitled do not undermine commonality or weigh substantially against class certification. A full-text copy of the Court's April 4, 2023 Order is available at https://tinyurl.com/yc2j3dvd from Leagle.com. Jackson Lewis P.C., Melville (Noel P. Tripp -- Noel.Tripp@jacksonlewis.com -- of counsel), for the Appellant. Virginia & Ambinder, LLP, New York (LaDonna M. Lusher -- llusher@vandallp.com -- of counsel), for the Respondents. CELSIUS HOLDINGS: $7.8-Mil. Class Deal in Hezi Suit Wins Final OK ----------------------------------------------------------------- In the case, AMIT HEZI, JOSEPH NINA, and DANIEL PRESCOD individually and on behalf of all others similarly situated, Plaintiffs v. CELSIUS HOLDINGS, INC., Defendant, Case No. 1:21-cv-09892-JHR (S.D.N.Y.), Judge Jennifer H. Rearden of the U.S. District Court for the Southern District of New York grants the Plaintiffs' Motion for Final Approval of Class Action Settlement and the Plaintiffs' Motion for Award of Attorneys' Fees and Costs. The Plaintiffs' Motion for Final Approval came on for hearing on March 31, 2023 with Class Counsel Clarkson Law Firm, P.C. appearing on behalf of Class Representatives Amit Hezi, Joseph Nina, and Daniel Prescod, and Faegre Drinker Biddle & Reath LLP appearing on behalf of Celsius. On March 19, 2019, Class Representative Daniel Prescod filed Prescod v. Celsius Holdings, Inc., LASC No. 19STCV09321 (Los Angeles Cty. Super. Ct.). On Nov. 23, 2021, Class Representatives Amit Hezi and Joseph Nina filed this action ("Hezi"). The Plaintiffs allege in the Actions that the Defendant deceptively and unlawfully labeled, packaged, and marketed the Products. They filed an amended complaint in this action on Nov. 22, 2022 to facilitate their pursuit and resolution of claims on behalf of all Settlement Class Members in a single action before the Court (the "Main Action"). The Parties have submitted the Settlement, which the Honorable Victor Marrero preliminarily approved on Nov. 22 23, 2022. In accordance with the Preliminary Approval Order, the Class Members have been given notice of the terms of the Settlement and the opportunity to object to or exclude themselves from its provisions. Having received and considered the Settlement, all papers filed in connection therewith, Judge Rearden finds that the Court has jurisdiction over the subject matter of the Action and over the Parties, including all members of the following Settlement Class certified for settlement purposes in the Preliminary Approval Order pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3): All persons in the United States who, between Jan. 1, 2015 and Nov. 23, 2022, purchased in the United States, for personal or household consumption and not for resale or distribution, one of the Class Products. Judge Rearden appoints (i) Class Representatives Amit Hezi, Joseph Nina, and Daniel Prescod as the Class Representatives; and (ii) Clarkson Law Firm, P.C. as the Class Counsel. Judge Rearden finally approves the Settlement Agreement, the exhibits, and the Settlement contemplated thereby ("Settlement"), and finds that the terms constituted, in all respects, a fair, reasonable, and adequate settlement as to all Settlement Class Members in accordance with Fed. R. Civ. P. 23 and direct consummation pursuant to its terms and conditions. Celsius agreed to provide cash benefits under a two-tiered structure with a gross potential payout of $7.8 million in the aggregate. Celsius will adopt new Labeling for the Products substantially similar to the new labeling agreed upon between Celsius and the Plaintiffs. From that point forward, the Defendant will not produce Products with the prior Labeling challenged in the Actions. Judge Rearden grants final approval to and orders the payment of those amounts to be made to the Settlement Class Members in accordance with the terms of the Settlement Agreement. She finds and determines that the Settlement Payments to be paid to each Settlement Class Member as provided for by the Settlement are fair and reasonable. Based upon claims received as of the date of the Order, the parties expect only uncashed checks to be available for cy pres distribution to the charitable organizations identified by the parties and approved by the Court. Judge Rearden approves these awards. The parties may adjust these awards upwards or downwards as necessary to fully exhaust (but not exceed) the amounts available for distribution after payments of all other settlement expenses, without further Order of the Court. Judge Rearden approves the Plaintiffs' Motion for Award of Attorneys' Fees and Costs for $2,842,294.01, which represents $2.6 million for attorneys' fees and $242,294.01 for costs. Celsius and the Released Parties will not be liable for any additional fees or expenses for the Class Counsel or the counsel of any Class Representative or Settlement Class Member in connection with the Actions beyond those expressly provided in the Settlement Agreement. The attorneys' fees and costs set forth in the Order will be paid and distributed in accordance with the terms of the Settlement Agreement. Judge Rearden also approves the Class Representatives' motion for incentive awards totaling $20,000 and orders the following to be paid out of the Settlement Fund: $5,000 each for both Amit Hezi and Joseph Nina, and $10,000 for Daniel Prescod. The service awards set forth in the Order will be paid and distributed in accordance with the terms of the Settlement Agreement. The Main Action is dismissed with prejudice, on the merits, by the Plaintiffs and all the members of the Settlement Class against Celsius on the terms and conditions set forth in the Settlement Agreement without costs to any party, except as expressly provided for in the Settlement Agreement. Upon the Effective Date as defined in the Settlement Agreement, the Plaintiffs and each and every one of the Settlement Class Members unconditionally, fully, and finally releases and forever discharges the Released Parties from the Released Claims. The Settlement Agreement and any and all negotiations, documents, and discussions associated with it will not be deemed or construed to be an admission or evidence of any violation of any statute, law, rule, regulation, or principle of common law or equity, or of any liability or wrongdoing by the Defendant, or the truth of any of the claims. Without affecting the finality of the Judgment and Order in any way, the Court retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation and enforcement of this Order and the Settlement. After substantially all of the settlement payments have been distributed and administration of the Settlement is substantially complete, Class Counsel will file a Notice of Completion of Duties, accompanied by declaration from Claims Administrator Postlethwaite & Netterville, APAC, which includes the following information: (1) the total number of claims received; (2) the total number of verified claims, including a breakdown as to the claims which were not verified for purposes of payout; (3) total amount of monies claimed; (4) total amount of administration costs incurred, including a breakdown of costs incurred for the court to review; and (5) the amount of money being directed cy pres. Upon the Court's receipt of and satisfaction with the Class Counsel's Notice of Completion of Duties and accompanying declaration, the Court will discharge the Class Counsel's and the Settlement Administrator's duties and declare this matter closed, unless otherwise ordered by the Court. The Parties and the Settlement Administrator will comply with all obligations under the Settlement Agreement until the Settlement is fully and finally administered. The Parties will bear their own costs and attorneys' fees except as otherwise provided by the Settlement Agreement and the Court. The Order will constitute a final judgment. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close the case. A full-text copy of the Court's April 5, 2023 Order is available at https://tinyurl.com/bdh7nxwy from Leagle.com. CHURCH & DWIGHT: Court Narrow Claims in Vance Class Suit -------------------------------------------------------- In the class action lawsuit captioned as SHARI VANCE, on behalf of herself and all others similarly situated, v. CHURCH & DWIGHT CO., INC., Case No. e 2:22-cv-00044-MCE-KJN (E.D. Cal.), Hon. Judge Morrison C. England Jr., entered an order granting in part and denying in part the Defendant's motion to dismiss Vance complaint: -- The Plaintiff's claims for equitable restitution under the Consumer Legal Remedies Act (CLRA) and California's Unfair Competition Law (UCL) are dismissed with leave to amend. Otherwise, Defendant's motion to dismiss is denied. -- Not later than 20 days from the date this Memorandum and Order is electronically filed, Plaintiff may, but is not required to, file an amended complaint. If no amended pleading is timely filed, the claims dismissed by virtue of this Order will be deemed dismissed with prejudice upon no further notice to the parties and this action will proceed on the remaining causes of action only. Through the class action, the Plaintiff Vance individually and on behalf of all others similarly situated, seeks relief from the Defendant arising from the labeling and sale of Zicam Pre-Cold Products. The Plaintiff's FAC lists the following causes of action: breach of express warranty; breach of implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose; violation of California’s Consumer Legal Remedies Act; and violation of California's False Advertising Law (FAL). -- General Allegations Relating to Zicam Pre-Cold Products The Zicam Pre-Cold Products at issue here include Zicam brand Original RapidMelts, Ultra RapidMelts, Oral Mist, Wild Cherry Lozenges, Medicated Fruit Drops, Elderberry Citrus RapidMelts, and Elderberry Medicated Fruit Drops, all of which are allegedly substantially similar as they each claim to be homeopathic remedies with the active ingredients zincum aceticum and zincum gluconicum. The Pre-Cold Products include the same statements on the product packaging, specifically that each product "reduces duration of the common cold," and reduces the severity of cold symptoms, sore throat, stuffy nose, sneezing, coughing, and nasal congestion. The Plaintiff alleges that the Zicam Cold Reduction Statements are misrepresentations that have the tendency or capacity to deceive consumers into believing that the Zicam Pre-Cold Products will reduce the duration and severity of the common cold, or otherwise provide medicinal benefits with respect to colds, when in fact, they are no more effective than a placebo. A copy of the Court's order dated March 29, 2023 is available from PacerMonitor.com at https://bit.ly/3KrpqCK at no extra charge.[CC] CITROSUCO: Faces $2.5-Bil. Price-Fixing Class Action in Brazil -------------------------------------------------------------- Business Insurance reports that several orange juice giants in Brazil, including Citrosuco, Cutrale and Louis Dreyfus Co. B.V., are facing a 12.7 billion Brazilian reals ($2.5 billion) class action lawsuit over an alleged price-fixing scheme, Reuters reported. The lawsuit, filed by prosecutors in the Sao Paulo Court of Justice in March, claims that the companies formed a cartel to cause a steep drop in fruit prices due to which farmers and customers suffered losses. [GN] CORECIVIC INC: Barrientos, et al., Lose Class Certification Bid --------------------------------------------------------------- In the class action lawsuit captioned as WILHEN HILL BARRIENTOS, et al., v. CORECIVIC, INC., Case No. 4:18-cv-00070-CDL (M.D. Ga.), Hon. Judge Clay D. Land entered an order denying the Plaintiffs' motion for class certification. The Court also denies the Plaintiffs' motion for spoliation sanctions. The motions to exclude experts are terminated as moot. Given the Court’s ruling on class certification, the only claims remaining in this action are the individual claims of the named Plaintiffs. The Court finds that the Plaintiffs did not meet their burden to prove that the class certification requirements are met for the two classes they seek to certify. The Court reviewed the portions of Dr. Stewart's report that Plaintiffs rely on in their motion for class certification. In those portions of his report, Dr. Stewart opines that Stewart's food practices might coerce some detained individuals to work, that segregation can cause psychological harm, and that the transfer from worker housing to non-worker housing could potentially result in harm. The Court finds that even if it were to admit Dr. Stewart's opinions over CoreCivic's objections, his opinions do not demonstrate that causation can be established on a class-wide basis using common evidence or that common issues predominate over individual ones. The Plaintiffs seek to certify two classes pursuant to Rule 23(b)(2) and Rule 23(b)(3): a Forced Labor Class and an Unjust Enrichment Class. Both classes include all civil immigration detainees who participated in Stewart's "volunteer work program. " The Forced Labor Class's claims are under the Trafficking Victims Protection Act (TVPA), and the Unjust Enrichment Class's claims are under Georgia unjust enrichment law. CoreCivic is a company that owns and manages private prisons and detention centers and operates others on a concession basis. A copy of the Court's order dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3MprYUN at no extra charge.[CC] DHL SUPPLY: Faces Class Action Over Illegal Background Check ------------------------------------------------------------ Kelly Mehorter, writing for ClassAction.org, reports that a proposed class action claims that DHL Supply Chain's alleged policy and practice of denying employment to job applicants with non-job-related convictions disproportionately harms Black and Hispanic individuals. According to the 22-page case, the contract logistics provider has perpetuated "gross racial disparities" in the criminal justice system by barring formerly incarcerated individuals from employment without performing an individualized analysis of the applicant or evaluating the nature of the offense and its relation to the job sought. "Because Black and Hispanic individuals are subjected to arrest and conviction at disproportionally higher rates than white people, particularly certain felony and drug-related offenses, DHL Supply Chain's policy and practice of denying applicants employment based on their criminal history has an unjustified and unlawful disparate impact," the suit summarizes. One plaintiff says DHL Supply Chain hired him in February 2016 as a temporary worker at its warehouse in University Park, Illinois, where he worked as a forklift driver. After successfully performing his role for over eight months without incident, the plaintiff applied for and was denied the opportunity to become a permanent employee after a background check reported an 18-year-old felony conviction from 1998 and a three-year-old probation violation for failing to report from 2013, the complaint claims. Similarly, the other plaintiff says he was offered a position at DHL Supply Chain's Fort Worth, Texas warehouse in October 2017 that was revoked after a background check showed that he had two misdemeanor convictions from 2011 and 2013. Per the case, there is no evidence that DHL Supply Chain had a "justifiable business reason" for denying the plaintiffs' employment. "For example, having a conviction is not an accurate proxy for determining whether an applicant would be able to perform the duties of the job," the suit contends. "Upon information and belief, no reliable studies or empirical data suggest that applicants with criminal records are more likely to engage in terminable offenses." Moreover, DHL Supply Chain would have found significant evidence of the plaintiffs' rehabilitation and good conduct had it considered any individual assessment factors before taking adverse action against them based on their criminal histories, the complaint asserts. The filing alleges that the company has no process or policy to determine whether applicants convicted of crimes have made positive changes in their lives after their convictions and denies applicants the chance to provide proof of rehabilitation, such as successful participation in drug treatment programs, educational achievements or relevant employment. According to the lawsuit, DHL Supply Company's policy has a disparate impact on Black and Hispanic individuals and amounts to unlawful discrimination in violation of the Civil Rights Act of 1964. The suit adds that the company could have adopted less discriminatory screening practices that would have better served a "legitimate business purpose," including the following alternatives: "(1) [C]onsidering all applicants with a record of conviction for a crime that by its nature does not pose a legitimate threat to the public safety or risk of workplace misconduct; and (2) giving each individual with a conviction a meaningful opportunity to demonstrate that he or she does not present a current threat, including providing evidence of rehabilitation, an explanation of events leading to the conviction, or information regarding other mitigating factors." The lawsuit looks to represent the following class: "All individuals who applied for a non-exempt position with DHL Supply Chain from January 1, 2016, up to, and including, December 31, 2021, and (i) who are Black or African American or Hispanic, solely or in combination with other races; (ii) who received a conditional offer of employment from DHL Supply Chain; (iii) who were identified as having a background report showing a criminal history; and (iv) whose conditional offer of employment with DHL Supply Chain was rescinded by DHL Supply Chain due, at least in part, to information contained in the background report or failure to fully disclose criminal history." [GN] DLOCAL LTD: Bids for Lead Plaintiff Appointment Due May 1 --------------------------------------------------------- Bragar Eagel & Squire, P.C., a nationally recognized shareholder rights law firm, reminds investors that class actions have been commenced on behalf of stockholders of DLocal Ltd. Stockholders have until the deadlines below to petition the court to serve as lead plaintiff. Additional information about each case can be found at the link provided. DLocal Ltd (NASDAQ: DLO) Class Period: In connection with the June 2021 IPO Lead Plaintiff Deadline: May 1, 2023 DLocal, which conducted its IPO in New York and trades on the NASDAQ under the ticker symbol "DLO," connects global merchants to emerging markets, earning revenues from fees charged to merchants in connection with payment processing services for cross-border and local payment transactions. In June 2021, Defendants (defined below) commenced DLocal's IPO, issuing over 33.8 million shares at $21.00 per share, including the full exercise of the Underwriter Defendants' (defined herein) option to purchase additional shares, all pursuant to the Registration Statement. Among other things, the Registration Statement repeatedly touts DLocal's supposed "growing and deepening relationships" with new and existing global merchant clients. The Registration Statement tells prospective investors that DLocal measures its success by means of its "cohort" performance in terms of TPV, or total payment volume, and offers historic TPV data to support the narrative that DLocal has a strong track record. In addition, the Registration Statement advises prospective investors that a remediation plan designed to improve the Company's internal controls over financial reporting is being implemented, assuring the market that DLocal is serious about its internal controls over financial reporting. The Registration Statement's numerous representations about DLocal's TPV and its internal controls over financial reporting, however, contained untrue statements of material fact and omitted to state material facts both required by governing regulations and necessary to make the statements made not misleading. Specifically, the Registration Statement misrepresents the TPV derived from new merchants in DLocal's 2019 and 2020 cohorts, which, at the time of the IPO, were severely lower than what the Registration Statement reported, as well as the fact that the remediation plan DLocal implemented before the IPO was patently defective and, thus, incapable of improving the Company's internal controls over financial reporting. When the truth regarding the Company's TPV and internal controls reached the market, DLocal's common stock cratered over 50%. All told, investors have lost hundreds of millions of dollars. About Bragar Eagel Bragar Eagel & Squire, P.C. is a nationally recognized law firm with offices in New York, California, and South Carolina. The firm represents individual and institutional investors in commercial, securities, derivative, and other complex litigation in state and federal courts across the country. For more information about the firm, please visit www.bespc.com. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] ELEVANCE HEALTH: Filing of Class Cert. Bid Due Oct. 6 ----------------------------------------------------- In the class action lawsuit captioned as Kikishia Burrus v. Elevance Health, Inc., et al, Case No. 2:22-cv-09433-JLS-MAR (C.D. Cal.), Hon. Judge Josephine L. Staton entered a scheduling order as follows: Last Day to File a Motion to Add Parties or May 26, 2023 Amend Pleadings: Last Day to File a Motion for Class Oct. 6, 2023 Certification: Last Day to File an Opposition to Motion Nov. 17, 2023 for Class Certification: Last Day to File a Reply to Motion for Dec. 15, 2023 Class Certification: Fact Discovery Cutoff: Mar. 1, 2024 Last Day to File Motions (Excluding Mar. 15, 2024 Daubert Motions and all other Motions in Limine): Last Day to Serve Initial Expert Reports: Mar. 15, 2024 Last Day to Serve Rebuttal Expert Reports: Apr. 12, 2024 Expert Discovery Cutoff: May 3, 2024 Last Day to Conduct Settlement Proceedings: May 10, 2024 Last Day to file Daubert Motions: May 10, 2024 Last Day to File Motions in Limine: Oct. 4, 2024 Final Pretrial Conference (10:30 a.m.): Nov. 1, 2024 Preliminary Trial Estimate: 7-14 days Elevance is an American health insurance provider. A copy of the Court's order dated March 29, 2023 is available from PacerMonitor.com at https://bit.ly/3nTKsm1 at no extra charge.[CC] EROS MEDIA: Agrees to Settle Securities Class Suit in New Jersey ---------------------------------------------------------------- Eros Media World PLC ("Eros Media", "Eros" or the "Company"), a global Indian media and entertainment company, on April 10 announced the settlement of a putative securities class action pending in the United States District Court for the District of New Jersey captioned In re Eros International Plc Securities Litigation, No. 19-cv-14125 (the "Action"). A stipulation and settlement agreement (the "Stipulation"), which was filed with the court on April 5, 2023, provides for the complete dismissal with prejudice of all claims asserted against the Company and individual defendants in the Action. The Stipulation remains subject to court approval and other conditions. About Eros Media World Plc For more information about Eros Media World Plc, ("Eros Media", "Eros" or the "Company") please visit www.ErosMediaWorld.com. [GN] EXEL INC: Daley Class Suit Seeks to Recover Unpaid Wages Under PMWA ------------------------------------------------------------------- JEANETTE DALEY, on behalf of herself and others similarly situated v. EXEL, INC., D/B/A DHL SUPPLY CHAIN, Case No. 230400210 (Pa. Com. Pl., Philadelphia Cty., April 4, 2023) alleges that the Defendant fails to pay wages for time associated with certain required activities arising on Defendant's premises at the beginning and end of the workday under the Pennsylvania Minimum Wage Act. According to the complaint, at the beginning of the workday, the Plaintiff and other class members generally are required to "badge in" at a gate, and then walk within the Mehoopany facility to their assigned work locations and "clock-in" for payroll purposes at time clocks located at or near the assigned work locations. The Defendant employs individuals who, during the past three years, were paid an hourly wage to perform work at the Mehoopany facility. Such individuals are referred to as "class members." From November 2021 to February 2023, the Defendant employed the Plaintiff to perform work at the Mehoopany facility and paid her an hourly wage, says the suit. The Plaintiff, like other class members, often worked over 40 hours per week. For example, the Plaintiff, according to her paystub, was credited with working 60.55 hours during the week beginning on January 9, 2023, and ending on January 15, 2023. The Defendant provides logistics services, including warehousing and shipping, to Procter & Gamble Company at P&G's facility in Mehoopany, Pennsylvania.[BN] The Plaintiff is represented by: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. Deirdre A. Aaron, Esq. Michelle L. Tolodziecki, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 - and - Sarah R. Schalman-Bergen, Esq. Krysten Connon, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (267) 256-9973 EXPRESS LIEN: April 28 Extension for Class Cert Filing Sought ------------------------------------------------------------- In the class action lawsuit captioned as GRACE L. WILLIAMS, on behalf of herself and all others similarly situated, v. EXPRESS LIEN, INC. dba Levelset, Case No. 1:21-cv-04611-TWT-LTW (N.D. Ga.), the Parties jointly request that the deadline for the filing of the motion for class certification or other appropriate motion (including a motion to remand) shall be extended for a period of 30 days through and including April 28, 2023. On February 27, 2023, the Court entered an Order granting an extension of time for the Plaintiff to "file her Motion for Class Certification or other appropriate motion (including a motion to remand to the State Court of Cobb County) within thirty (30) days of this Order. " A copy of the the Parties' motion dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3Gqi5m4 at no extra charge.[CC] The Plaintiff is represented by: Kris Skaar, Esq. SKAAR & FEAGLE, LLP 133 Mirramont Lake Drive Woodstock, GA 30189 Telephone: (770) 427-5600 Facsimile: (404) 601-1855 E-mail: kskaar@skaarandfeagle.com The Defendant is represented by: David J. Forestner, Esq. JONES WALKER LLP 1360 Peachtree Street NE Suite 1030 Atlanta, GA 30309 Telephone: 404-870-7500 E-mail: dforestner@joneswalker.com FEDERAL GOVERNMENT: Filing of Class Cert. Bid Extended to May 31 ---------------------------------------------------------------- In the class action lawsuit captioned as Newman v. Federal Government Advisors LLC, Case No. 8:22-cv-02128 (M.D. Fla.), Hon. Judge Kathryn Kimball Mizelle entered an order on motion for extension of time to file. -- The class certification deadline is now May 31, 2023. -- All other deadlines in the Case Management Report remain the same. The case involves Restrictions of Use of Telephone Equipment. FGA is a Tampa-based consultancy that specializes in government contract consulting.[CC] FIREBALL WHISKY: Faces Class Action Over Bottle Labeling -------------------------------------------------------- Helenka B. Mietka, Esq., and Dan Jasnow, Esq., of ArentFox Schiff LLP, in an article for The National Law Review, disclosed that an Illinois consumer recently filed a putative class action complaint against the makers of Fireball Whisky, claiming that the alcohol producer's mini bottles deceived consumers into buying products labeled as "whisky," even though the beverage derives its alcohol content from malt. The distinction between "whisky" and "whisky-flavored" is the basis of many of the plaintiff's assertions. "Fireball Cinnamon" Fireball Cinnamon Whisky[1] is known for its distinctive cinnamon flavor. It can be bought in various sizes, including small "shot-sized" bottles. The smaller bottles are almost-exact duplicates of the full-sized bottles, employing the same font, color-scheme, and shape, except that they are labeled "Fireball Cinnamon" and not "Fireball Cinnamon Whisky." The description on the label identifies the small bottles as containing a "Malt Beverage With Natural Whisky & Other Flavors and Caramel Color" and contains whisky flavoring, among other ingredients. The Complaint Filed in the US District Court of the Northern District of Illinois, the complaint asserts that the whisky manufacturer misrepresents the small bottles' content, to the detriment of consumers. Notably, the complaint alleges that: * The manufacturer relies on consumers' assumptions that the small bottles hold the same beverage as the large bottles (a cinnamon-flavored distilled spirit), misleading consumers into paying a price premium for a less-expensive malt beverage; * The manufacturer intended to capitalize on the fact that consumers are likely to mistake the bottles as smaller sizes of the whisky, taking "advantage of consumers' cognitive shortcuts made at the point-of-sale"; * The content description on the smaller bottle reads: "With Natural Whisky & Other Flavors." Consumers will read "Natural Whiskey" as distinct from "Other Flavors" instead of assuming that the "whisky" reference is to whisky flavoring; * Consumers would not purchase the smaller product if they were aware of its contents. The Defendant's Key Arguments In early March, the whisky's manufacturer filed a motion to dismiss for failure to state a claim. Their brief argues that: * The plaintiff lacks standing because she did not purchase the product at issue, since it is not offered for sale in Illinois; * Because the Federal Alcohol and Tobacco Tax and Trade Bureau (TTB) approved and certified the labels at issue, they are not false or misleading; * An average consumer would not plausibly be confused by the labels at issue, thus the complaint failed to plausibly plead a deceptive act. Takeaway The suit against the whisky manufacturer is part of a growing trend of mislabeling case in the food and beverage space. Flavor-content labels have been the subject of several class action suits in the recent past. As we've seen, misleading labeling claims can lead to class actions with potentially hefty price tags. If you have questions on how such claims could impact your business, please reach out to any member of the ArentFox Schiff Food and Beverage Team. FOOTNOTES [1] The spelling of "whisky" throughout the alert reflects the name of the brand at issue and is an accepted alternate spelling of "whiskey." [GN] FIRSTSERVICE RESIDENTIAL: Dernoshek Appeals Summary Judgment ------------------------------------------------------------ Plaintiff Logan Dernoshek filed an appeal from the District Court's Order dated March 2, 2023 entered in the lawsuit entitled LOGAN DERNOSHEK, on behalf of himself and all others similarly situated v. FIRSTSERVICE RESIDENTIAL, INC.; FIRSTSERVICE RESIDENTIAL CAROLINAS, INC.; and NEXTLEVEL ASSOCIATION SOLUTIONS, INC. d/b/a HOMEWISEDOCS.COM, Case No. 1:21-cv-00056-CCE-JLW, in the United States District Court for the Middle District of North Carolina at Greensboro. The Plaintiff brings numerous state law claims arising from fees the Defendants charged him to confirm that he was not delinquent in his homeowner's association fees when he sold his residence. Specifically, the Plaintiff asserts that the Defendants violated three North Carolina statutes: (1) a North Carolina statute prohibiting transfer fee covenants, N.C. Gen. Stat Section 39A-1 et seq.; (2) the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. Section 75-1.1 et seq.; and (3) the North Carolina Debt Collection Act, N.C. Gen. Stat. Section 75-50 et seq. He also asserts North Carolina common law claims for negligent misrepresentation, unjust enrichment, and civil conspiracy. Finally, he asks for a declaratory judgment that the fees charged are illegal transfer fees in violation of N.C. Gen. Stat. Section 39A-1 et seq. As reported in the Class Action Reporter on Jan. 16, 2023, the Plaintiff asked the Court to enter an order reconsidering its summary judgment Order in favor of FirstService Residential Carolinas, Inc. and Nextlevel Association Solutions, Inc. d/b/a Homewisedocs.com to correct error or mistakes of law. On March 2, 2023, Judge Catherine C. Eagles entered an Order denying Plaintiff's motion for reconsideration. The appellate case is captioned as Logan Dernoshek v. FirstService Residential Carolinas, Inc., Case No. 23-1334, in the United States Court of Appeals for the Fourth Circuit, filed on March 29, 2023.[BN] Plaintiff-Appellant LOGAN DERNOSHEK, on behalf of himself and all others similarly situated, is represented by: S. Michael Dunn, Esq. Scott Crissman Harris, Esq. Patrick M. Wallace, Esq. Jeremy Richard Williams, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 900 West Morgan Street Raleigh, NC 27603 Telephone: (919) 600-5000 Defendants-Appellees FIRSTSERVICE RESIDENTIAL CAROLINAS, INC., et al., are represented by: Richard Thell Boyette, Esq. Marshall Wall, Esq. CRANFILL SUMNER, LLP 5420 Wade Park Boulevard Raleigh, NC 27607 Telephone: (919) 863-8729 - and - Steven Ari Meckler, Esq. Frederick Martin Thurman, Jr., Esq. SHUMAKER LOOP & KENDRICK, PLLC 101 South Tryon Street Charlotte, NC 28280-0002 Telephone: (704) 945-2187 - and - Philip M. Oliss, Esq. Alexander Walton Prunka, Esq. JONES DAY North Point, 901 Lakeside Avenue Cleveland, OH 44114-0000 Telephone: (216) 586-7164 FLORIDA: Medicaid Program, ADA Suit to Proceed as Class Action -------------------------------------------------------------- Jim Saunders, writing for Miami Herald, reports that a judge has cleared the way for a class-action lawsuit alleging that Florida's Medicaid program has violated federal laws by denying coverage for incontinence supplies for adults with disabilities. U.S. District Judge Marcia Morales Howard issued a 37-page decision granting a request by attorneys for two women and the organization Disability Rights Florida to handle the case as a class action. While it is not clear how many people the case could affect, the decision cited one estimate that at least 480 Medicaid beneficiaries a year turn 21 and lose coverage for incontinence supplies that they received as children. "Here, AHCA's [the state Agency for Health Care Administration's] policy categorically excluding incontinence supplies for persons over the age of 21 from Medicaid coverage applies generally to the proposed class," Morales Howard wrote. "Moreover, plaintiffs seek a declaration that this policy violates federal law and a permanent injunction prohibiting AHCA from continuing to implement this policy. If plaintiffs were to succeed in their challenges, such injunctive and declaratory relief would be appropriate with respect to all members of the class." The lawsuit, filed in July in federal court in Jacksonville on behalf of Duval County resident Blanca Meza and St. Johns County resident Destiny Belanger, contends that the state is violating federal Medicaid law and laws including the Americans with Disabilities Act. It said the state provides incontinence supplies, such as briefs, diapers and underpads, for Medicaid beneficiaries under age 21 and for certain adults, including people in nursing homes. But the lawsuit said the state stopped providing the supplies to Meza and Belanger after they turned 21, though they are incontinent and unable to care for themselves. As an example of their disabilities, the lawsuit said Meza "is diagnosed with spastic quadriplegic cerebral palsy, muscle spasticity, neuromuscular scoliosis and partial epilepsy." "Plaintiffs are medically fragile adults each with bladder and bowel incontinence," the lawsuit said. "As low-income Florida residents with significant disabilities, they receive their health services through Florida's Medicaid program. Plaintiffs' physicians have prescribed certain incontinence supplies, including briefs and underpads, as medically necessary to treat plaintiffs' incontinence, keep their skin dry and clean, prevent skin breakdowns and infections and maintain their ability to live in the community." The state has fought the lawsuit and the request to make it a class action. In a document filed in September, attorneys for the state argued, in part, that the Medicaid program operates under regulations approved by the federal Centers for Medicare & Medicaid Services. "Defendant [the state] has a comprehensive, effectively working plan for providing qualified individuals with necessary services to prevent unnecessary institutionalization," the document said. "Alternatively, any relief the court deems necessary should be limited to narrowly address the harm before it and not unnecessarily affect defendant's otherwise comprehensive, effectively working plan for the delivery of Medicaid services that has been reviewed and approved by CMS [the Centers for Medicare & Medicaid Services]." Morales Howard, in her March 27 decision, said the plaintiffs had met a series of legal requirements to pursue the case as a class action. Those requirements include showing that the legal issues are common to potential class members and that the claims involving Meza and Belanger are typical of the class. "Both Meza and Belanger are adult Medicaid beneficiaries with prescriptions for incontinence supplies that were categorically denied based on their age," Morales Howard wrote. "Meza and Belanger both live at home and their treating physician believes it is in their best interest to remain there. While the precise medical and financial circumstances of each plaintiff may be unique, as will be true of all class members, Meza and Belanger's claims are entirely typical of the claims of class members generally." While the case will move forward as a class action, it remains far from being resolved, Morales Howard, who was appointed to the bench by former President George W. Bush, issued an order in February that said a trial is scheduled in January 2024. [GN] FORD MOTOR: Bid to Strike Class Allegations in Tucker Partly OK'd ----------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL TUCKER, v. FORD MOTOR COMPANY, Case No. 4:22-cv-00430-AGF (E.D. Mo.), Hon. Judge Audrey G. Fleissig entered an order granting in part and denying in part the Defendant's motion to strike Plaintiff's class allegations. The Court will strike Plaintiff's Declaratory Relief Class. The Court will also strike Plaintiff's warranty related class allegations in Count II of his petition. The warranty waiver as to class claims in this case does not distinguish between express and implied warranties, and the Court cannot read such a distinction into the contract. When viewed as a harmonious whole and giving ordinary meaning to the terms "any warrantyrelated claim, " the warranty wavier applies to both express and implied warranties. Thus, the Court will strike Plaintiff’s class action claims for breach of both express and implied warranty. This putative class action is before the Court on Defendant Ford Motor Company's motion to strike Plaintiff’s class allegations. In his complaint, Plaintiff describes two putative classes, including a "Declaratory Relief Class", which includes all "persons and entities in the state of Missouri who purchased a model year 2011-2018 Ford Focus for their own use and not for resale," and a "Manifestation Class", comprised of: "all of those "persons and entities" whose putative class vehicles actually had a "subframe or undercarriage that exhibited rust corrosion. " The Plaintiff first filed this action in Missouri state court on February 1, 2019, alleging that a defect in his 2018 Ford Focus caused excessive corrosion. Ford Motor is an American multinational automobile manufacturer headquartered in Dearborn, Michigan, United States. It was founded by Henry Ford and incorporated on June 16, 1903. The company sells automobiles and commercial vehicles under the Ford brand, and luxury cars under its Lincoln luxury brand. A copy of the Court's order dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3Uo8bXB at no extra charge.[CC] FORD MOTOR: C.D. California Refuses to Dismiss De Anda Class Suit ----------------------------------------------------------------- In the case, HUGO DE ANDA, Plaintiff v. FORD MOTOR COMPANY, INC., et al., Defendants, Case No. 2:22-cv-04064-ODW (MAAx) (C.D. Cal.), Judge Ostis D. Wright, II, of the U.S. District Court for the Central District of California denies Ford's motion to dismiss De Anda's First Amended Complaint for lack of subject matter jurisdiction and failure to state a claim. De Anda brings the putative class action against Ford for allegedly failing to provide a required emissions warranty for the vehicles that Ford distributes in California. The case arises out of Ford's alleged violations of California's regulations for the emissions of vehicles sold within California. These regulations require, among other things, manufacturers to provide special warranty coverage for a vehicle's emission control system ("California Emissions Warranty"). De Anda alleges that the California Air Resources Board ("CARB") issued a declaration to educate courts about CARB's interpretation and implementation of California's warranty requirements. According to him, the declaration provides that "warranted parts" include any components that can or are required to illuminate the malfunction indicator light in the event of a malfunction, even if the primary function of the component is not emission control. De Anda also alleges that, in response to a consumer complaint concerning a 2007 Nissan vehicle, CARB stated that a transmission replacement due to a malfunctioning pressure control solenoid should be covered under the California Emissions Warranty because a fault code was triggered which caused the malfunction indicator light to illuminate. De Anda owns a 2018 Ford Mustang, which he purchased and registered in California. Ford sells vehicles, including 2018 Ford Mustangs, in California. On March 15, 2022, De Anda brought the Vehicle to a Ford-authorized repair facility because the Vehicle's check engine light was on and the Vehicle was jerking under certain conditions. The Vehicle had 62,128 miles on it at the time. First, the repair facility identified an issue with the Vehicle's catalytic converter and replaced the converter. This repair is not the subject of the litigation. Second, the repair facility verified the jerking condition and found that the "transmission slips and has harsh engagements." De Anda alleges that the repair team also identified the presence of the following diagnostic test codes: P2708 (indicating a defective transmission solenoid) and P2705 (detecting a problem with the way the transmission shifts). Ultimately, the repair team concluded that it was necessary to remove and tear down transmission due to internal component failure. De Anda was charged a $170 diagnostic fee. In addition, he alleges that the labor cost to remove and replace the transmission, excluding any repairs, far exceeds $1,000. Ford refused to cover the diagnostic fee and the recommended repair. De Anda alleges that Ford unlawfully denied warranty coverage for the transmission repair, which involved high-priced emission parts that should have been covered under Ford's seven-year/70,000-mile California Emissions Warranty. He further alleges that Ford intentionally does not identify all high-priced warranted parts in its application to certify its vehicle model in order to reduce its warranty exposure. On June 14, 2022, De Anda filed the putative class action against Ford. After Ford moved to dismiss the Complaint, De Anda filed the First Amended Complaint, alleging a single cause of action for violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq. ("UCL"). De Anda seeks restitution for Ford's failure to provide a warranty in compliance with California's regulations and an injunction compelling Ford to properly identify and cover the transmission and high-cost transmission parts under the California Emissions Warranty. Ford now moves to dismiss De Anda's First Amended Complaint. The Motion is fully briefed. In connection with the Motion, Ford requests that the Court takes judicial notice of five documents: (1) the Warranty Guide for 2018 model year Ford vehicles; (2) De Anda's repair order from the March 15, 2022 dealer visit; (3) CARB's Emission Warranty Parts List, as amended Feb. 22, 1985; (4) excerpts from CARB's 1999 Final Statement of Reasons for "LEVII" Amendments; and (5) excerpts from CARB's 1998 Initial Statement of Reasons for "LEVII" Amendments. Because De Anda's allegations refer to and rely on the 2018 Warranty Guide and consist of quotes from the Repair Order, Judge Wright finds that the First Amended Complaint incorporates them by reference. Accordingly, he may consider these documents. Additionally, he grants Ford's request and takes judicial notice of the three documents from CARB. Additionally, in connection with the Opposition, De Anda requests that the Court takes judicial notice of two court orders available on PACER and issued in the Northern District of California and Central District of California. Judge Wright denies this request as moot because he need not take judicial notice of case law to consider it. Judge Wright now turns to the motion to dismiss. Ford moves to dismiss the First Amended Complaint pursuant to both Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. He finds that De Anda's allegations are sufficient to establish ripeness. Accordingly, he denies Ford's Motion to Dismiss under Rule 12(b)(1) for lack of ripeness. Ford argues that De Anda fails to state an affirmative misrepresentation claim. However, in the Opposition, De Anda clarifies that his claim is predicated on Ford's omissions, not misrepresentations. Accordingly, Judge Wright denies as moot Ford's argument for dismissal based on De Anda's failure to state an affirmative misrepresentation. Next, Ford makes several arguments for why De Anda fails to state a plausible omission claim. With regard to coverage under the California Emissions Warranty, Judge Wright holds that determining how directly the transmission affects emissions is a question of fact that is best reserved for summary judgment. Accordingly, at this stage, De Anda may allege that the transmission and its components, including the transmission solenoid, are emissions-related parts. Judge Wright then finds that De Anda's UCL claims hinge on Ford's omission of the transmission and its high-priced components from its warranty. He alleges that this omission is an unlawful and unfair business practice that damages the putative class members, including by requiring them to pay out-of-pocket for repairs that should be covered and to overpay for their vehicles when they are sold without a compliant California Emissions Warranty. Thus, De Anda's claim does not hinge on his repair alone. He states a plausible claim for coverage under the California Emissions Warranty. Although not dispositive, this helps to push his claim over the plausibility threshold. Ford argues that De Anda fails to plead a claim under the "unlawful" and "unfair" prongs of the UCL because he fails to adequately allege that the components at issue are warranted under the California Emissions Warranty and that Ford violated the CARB regulations. However, Judge Wright finds that De Anda sufficiently alleges that the transmission and its components are warranted parts. De Anda alleges that Ford engages in a systemic business practice of omitting the transmission and high-priced transmission components from its warranties in violation of the CARB regulations. These allegations are sufficient to state a claim under the unlawful and unfair prongs of the UCL. Ford then argues that knowledge is a required element under Rule 9(b) because De Anda's claim is grounded in fraud. It further argues that De Anda insufficiently pleads Ford's knowledge that its warranty omitted a covered component. De Anda alleges that, in response to a consumer complaint concerning another vehicle, CARB determined that a transmission replacement due to a malfunctioning pressure control solenoid should be covered under the California Emissions Warranty. He Anda further alleges that CARB issued a memo notifying all manufacturers of the requirements of the California Emissions Warranty and informing them of their obligations to meet these requirements. Viewing these allegations in the light most favorable to De Anda, Judge Wright finds that De Anda sufficiently alleges Ford's knowledge of its obligations under the CARB regulations and that its warranty omitted covered parts. Finally, Ford argues that De Anda's UCL claim should be dismissed because he has not established that he lacks an inadequate remedy at law and he fails to adequately allege a threat of future injury. Judge Wright finds that De Anda plausibly alleges an inadequate remedy at law. De Anda also plausibly alleges an impending harm, sufficient to state a claim for injunctive relief. For these reasons, Ford's Motion to Dismiss is denied. A full-text copy of the Court's April 5, 2023 Order is available at https://tinyurl.com/ypwumvyy from Leagle.com. FORD MOTOR: Class Action Over Hybrid Vehicles Dismissed ------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Ford hybrid class action lawsuit has been dismissed because Ford had already recalled the hybrid vehicles before the lawsuit was filed, making the lawsuit moot. As in the case of multiple class action lawsuits, the plaintiffs didn't sue until after Ford announced a recall for the same engine problem. And in this case, out of the 14 Ford owners who sued, none of them allege their engines had any problems with leaks or fires. However, the Ford class action lawsuit alleges these hybrid vehicles equipped with 2.5-liter engines are defective. -- 2020-2022 Ford Escape Hybrid -- 2022 Ford Maverick Hybrid -- 2021-2022 Lincoln Corsair Hybrid Lead plaintiff Anthony Pacheco owns a Ford Maverick he purchased in April 2022, or what he calls the "Fire Defect Vehicle." The plaintiff doesn't allege he had any problems with his Maverick and the vehicle was repaired for free by Ford under a recall. But the plaintiff contends the recall repairs aren't good enough. According to the Ford hybrid class action lawsuit, the engines can leak large quantities of engine oil or fuel vapors that can be exposed to hot ignition sources and cause underhood fires. A Ford hybrid recall was announced in July 2022, and in June 2022 Ford knew of 23 incidents of fires or other problems under the hoods. "Of the 23 reports, Ford's CCRG has categorized the warranty and field reports as: nine describing under hood or vehicle fire, six reporting localized under hood melting, seven describing under hood smoke, and one that did not contain sufficient detail to characterize. Ford is not aware of any reports of accident or injury related to this condition." -- Ford Official vehicle safety recalls have safety regulator overlords known as the National Highway Traffic Safety Administration which must approve all actions and repairs. "In the event of an engine failure, significant quantities of engine oil and/or fuel vapor may be released into the under hood environment and may migrate to and/or accumulate near ignition sources resulting in potential under hood fire, localized melting of components, or smoke." -- NHTSA's Ford hybrid safety recall report In addition, Ford estimated 1% or less of the hybrid vehicles were affected by the problem. Ford dealers were told to modify the shields under the engines by drilling holes, and dealers were also advised to modify the active grille shutter systems by removing four blinds. This would improve air flow through the engine compartment and allow fluid and vapors to escape. But the Ford hybrid class action lawsuit alleges the repairs cause even more problems and "sets the stage for future property damage and possible injury." According to the plaintiffs, drilling more holes could allow fluids or vapors to leak and cause environmental hazards, and removing the blinds from the grille shutter system allegedly "increases aerodynamic drag on the vehicles, resulting in decreased fuel efficiency." Ford Hybrid Class Action Lawsuit Dismissed Judge George Caram Steeh heard the case and began by pointing out the Ford hybrid vehicle recall has the continuing oversight of federal safety regulators. In essence, the plaintiffs not only argue Ford's engineers are wrong about the recall repairs, but so are federal regulators who approved the repairs. The judge found Ford has offered to repair the hybrid vehicles (before the lawsuit was filed), and Ford also offered reimbursements to owners if necessary. The Ford hybrid class action lawsuit alleges Ford's "fix" is inadequate, but the judge says the plaintiffs do not allege any safety risk remains after the vehicles are repaired for free. "Plaintiffs also do not request that Ford repair their engines to address leaking -- perhaps because none of them have experienced engine leaks. This alleged risk has not caused any actual, concrete injury to Plaintiffs." -- Judge Steeh According to the judge, the allegations that Ford's recall repairs won't work are "conclusory and speculative." The judge also looked at the argument regarding alleged diminished fuel economy by removing some of the blinds from the active grille shutter system. Although the plaintiffs make that claim, the judge notes none of the plaintiffs "alleged they experienced an actual reduction in fuel economy or articulated how this unspecified reduction in fuel economy is actionable." And while the plaintiffs claim they deserve money for alleged "damages," the judge ruled their damages claim is based on an overpayment theory because the alleged defects diminished the value of their hybrid vehicles. According to Judge Steeh, the Ford hybrid recall moots their damages claim because it removes "the defect upon which the plaintiffs' diminished-value injury claim is based." "Plaintiffs have not shown a cognizable danger that the recall remedy supervised by NHTSA will fail, but only that they disagree with the approach taken by Ford to fix the problem. This argument does not counsel against a finding of prudential mootness." — Judge George Caram Steeh The plaintiffs have now filed an appeal regarding the dismissal of the Ford hybrid class action lawsuit. The Ford hybrid class action lawsuit was filed in the U.S. District Court for the Eastern District of Michigan: Anthony Pacheco v. Ford Motor Company. The plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, and The Miller Law Firm PC. [GN] FOX REHABILITATION: Conner Appeals Ruling in TCPA Suit to 3rd Cir. ------------------------------------------------------------------ Plaintiff STEVEN A. CONNER filed an appeal from a court ruling entered in the lawsuit entitled STEVEN A. CONNER DPM, P.C., Plaintiff v. FOX REHABILITATION SERVICES, P.C., Defendant, Civil Action No. 2:21-cv-1580-MMB, in the United States District Court for the Eastern District of Pennsylvania. The Plaintiff brings the action against Fox for alleged violations of the Telephone Consumer Protection Act ("TCPA") and conversion of its paper and toner used to print the "junk" faxes he received. The Plaintiff, on behalf of itself and other persons similarly situated, initiated the action on April 2, 2021, alleging the Defendant violated the TCPA when it sent it a series of fax during the early months of the COVID-19 pandemic and converted the Plaintiff's toner and paper used to print those faxes. On June 10, 2021, Fox answered the Plaintiff's Complaint, and the parties proceeded through discovery. On Sept. 6, 2022, the Court denied class certification and Fox's motion for summary judgment. Conner sought an interlocutory appeal on the Court's decision regarding certification, which was denied by the Third Circuit. As previously reported by the Class Action Reporter, Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania entered an Order on February 24, 2023 finding for the Plaintiff only on claims under the Telecommunications and Consumer Protection Act of 1991. As to whether Conner entitled to damages on his conversion claim, Judge Baylson held that although the facts show that Fox sent junk faxes to Dr. Conner's fax machine, he cannot find that this was "serious" interference and thus rules for Fox on the conversion claims. The appellate case is captioned as Steven A. Conner DPM P.C. v. Fox Rehabilitation Services PC, Case No. 23-1550, in the United States Court of Appeals for the Third Circuit, filed on March 29, 2023.[BN] Plaintiff-Appellant STEVEN A. CONNER, individually and on behalf of all others similarly situated, is represented by: David M. Oppenheim, Esq. BOCK HATCH & OPPENHEIM 203 N La Salle Street, Suite 2100 Chicago, IL 60601 Telephone: (312) 658-5500 Defendant-Appellee FOX REHABILITATION SERVICES PC is represented by: Alexander D. Terepka, Esq. KABAT CHAPMAN & OZMER 171 17th Street NW, Suite 1550 Atlanta, GA 30363 G.SKILL INTERNATIONAL: Filing of Class Cert. Bid Due Jan. 29, 2024 ------------------------------------------------------------------ In the class action lawsuit captioned as TRISTAN HURD AND KEN DIMICCO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. G.SKILL INTERNATIONAL ENTERPRISE CO., LTD., ET. AL., Case No. 2:22-cv-00685-SSS-MAR (C.D. Cal.), Hon. Judge Sunshine S. Sykes entered an order granting stipulation regarding motion for class certification briefing schedule as follows: 1. The Plaintiffs' motion for class Jan. 29, 2024 certification is due on: 2. The Defendants' opposition is due Feb. 19, 2024 on: 3. The Plaintiffs' reply is due on: March 4, 2024 4. The motion hearing is set for: April 5, 2024 G.SKILL is a Taiwanese computer hardware manufacturing company. The company's target customers are overclocking computer users. A copy of the Court's order dated March 29, 2023 is available from PacerMonitor.com at https://bit.ly/3mj7jHc at no extra charge.[CC] GENERAL MOTORS: Court Narrows Claims in Kiriacopoulos Class Suit ---------------------------------------------------------------- In the case, MELISSA KIRIACOPOULOS, et al., Plaintiffs v. GENERAL MOTORS LLC, Defendant, Civil Case No. 22-10785 (E.D. Mich.), Judge Mark A. Goldsmith of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants in part and denies in part GM's motion to dismiss the Plaintiffs' putative class action. The Plaintiffs purport to bring the class action under federal law and the laws of six states asserting a defect in the engines of certain GM vehicles. Their claims spring from GM's alleged knowledge of this defect, and its omissions and misrepresentations regarding the same. The Plaintiffs allege that the 2.4L internal combustion engine of certain GM vehicles contains a defective positive crank ventilation (PCV) system. The PCV system plays a role in regulating the amount of air and gas that is pumped through the engine. It contains a fixed orifice that can become plugged with ice, sludge, and water during operation of the vehicle in cold weather. The Plaintiffs submit that the plugging may increase pressure in the crankshaft, causing the engine's rear main seal to rupture. In their view, this rupture may lead to oil loss, power loss, and permanent damage to the engine. The Plaintiffs consist of nine individuals who purchased vehicles allegedly affected by the defect in the states of Massachusetts, Minnesota, Michigan, New York, Wisconsin, and Illinois. They allege that they purchased the GM vehicles at issue because they reasonably relied upon GM's claims touting the Class Vehicles as free of defect and as durable and reliable, with no reference to the PCV defect, through media marketing campaigns and other forms of advertisement. Six Plaintiffs allege that they purchased vehicles from GM-authorized dealerships. Alleging that they purchased vehicles from non-GM-affiliated dealerships are Sarah Burns, the only New York Plaintiff; Wisconsin resident Steve Fiene, who purchased his vehicle in Michigan; and Minnesota Plaintiff Thomas Graham. GM regularly issues technical service bulletins (TSBs) to dealerships with information on GM vehicles, and the Plaintiffs identify a series of GM bulletins which, in their view, "acknowledge" that the PCV system was "vulnerable to cold weather." They assert that these TSBs demonstrate that GM knew about the defect but did not make any substantive changes to the PCV system, and instead continued to sell and manufacture vehicles with the defective system up through model year 2017. The Plaintiffs emphasize that these bulletins failed to identify the risk of loss of motor power, recommended only a stop-gap solution, and communicated the issue only to dealers rather than directly to customers. They also allege that GM made affirmative misrepresentations when it touted the reliability, safety, and high quality of its vehicles in advertisements, public statements, and other media. They further allege that GM "must have known" about the alleged defect based on pre-release testing and post-release monitoring data; dealership repair records and warranty claims; consumer complaints made to the National Highway Traffic Safety Administration (NHTSA), several of which they excerpt to demonstrate consumers' issues with loss of power following oil leaks from frozen PCV systems; and other public complaints. The Plaintiffs assert claims based in (i) fraud, including fraudulent concealment and violations of state consumer protection acts; (ii) breach of the implied warranty of merchantability and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301, et seq. (MMWA); (iii) breach of contract; and (iv) unjust enrichment. The Plaintiffs purport to bring the suit as a class action, representing (i) a nationwide class consisting of all persons who purchased or leased a class vehicle from a GM dealer, on whose behalf Plaintiffs assert MMWA and breach of contract claims; and (ii) six state-specific classes -- consisting of residents of Illinois, Massachusetts, Michigan, Minnesota, New York, or Wisconsin who purchased or leased a class vehicle in that state -- on whose behalf the Plaintiffs assert state-specific common law and statutory claims. Before the Court is GM's motion to dismiss the Plaintiffs' putative class action. Judge Goldsmith grants in part and denies in part GM's motion to dismiss. He dismisses (i) common law fraudulent concealment claims brought under the laws of Wisconsin, Michigan, and Massachusetts; (ii) claims brought under the Illinois Consumer Fraud and Deceptive Business Practices Act; (iii) claims brought under the Minnesota Deceptive Trade Practices Act; (iv) claims brought under the Wisconsin Deceptive Trade Practices Act, to the extent those claims are based on omissions; (v) all implied warranty claims including Magnuson-Moss Warranty Act claims; and (vi) breach of contract claims based on contracts with dealerships not authorized by GM. The following claims survive: (i) claims brought under New York and Minnesota fraudulent concealment theories; (ii) claims brought under New York General Business Law Sections 349 and 350; (iii) claims brought under the Wisconsin Deceptive Trade Practices Act, to the extent those claims are not based on omissions; (iv) breach of contract claims based on contracts with GM-authorized dealerships; and (v) unjust enrichment claims. As to claims brought under New York and Minnesota fraudulent concealment theories; Judge Goldsmith opines that (i) because the Plaintiffs not only challenge GM's promotion of its vehicles as generally safe, but also plausibly allege that GM knew its vehicles were impacted by a defect that made its vehicles unsafe, she rejects the Defendants' puffery argument and declines to dismiss the Plaintiffs' claims based on GM's alleged affirmative misrepresentations; and (ii) New York's economic loss rule does not bar fraudulent concealment claims. With respect to claims brought under New York General Business Law Sections 349 and 350, Judge Goldsmith holds that GM does not make any specific arguments for the dismissal of the Plaintiffs' New York General Business Law claims, but he understands that its arguments would be applicable to those claims. Because he finds that none of GM's Rule 9 or New York-specific fraud arguments is meritorious, the Plaintiffs' New York General Business Law claims survive GM's motion to dismiss. Regarding claims brought under the Wisconsin Deceptive Trade Practices Act, Judge Goldsmith finds that the parties make no argument in the present briefing as to claims brought under WDTPA not based on omissions. The Plaintiffs' complaint does allege violations of the WDTPA based on both omissions and misrepresentations. Absent argument to the contrary, the Court does not dismiss any WDTPA claims based on misrepresentations. As to breach of contract claims based on contracts with GM-authorized dealerships, Judge Goldsmith opines that the Plaintiffs have plausibly pleaded that GM-authorized dealers were agents of GM based on specific assertions relating to GM's "control" of those organizations. Given the fact-intensive nature of agency, GM's arguments to the contrary are not properly resolved at the motion-to-dismiss stage. The Plaintiffs have also plausibly pleaded that their vehicle purchases constituted contracts which GM breached by failing to disclose defects. Hence, the Plaintiffs' breach of contract claims based on purchases from GM-authorized dealerships survive GM's motion to dismiss. With respect to unjust enrichment claims, Judge Goldsmith holds that the Plaintiffs have adequately pleaded that the Defendant received a benefit (the inflated prices paid by them for their cars), that it knew it received it, and that it would be unfair for the Defendant to retain it (because of its wrongful concealment of the defect, which all of the Plaintiffs alleged would have led them to reconsider the purchase of their car, or to have paid less for it -- which is all that they are required to allege in order to sustain a typical unjust enrichment claim at the pleading stage. A full-text copy of the Court's April 5, 2023 Opinion & Order is available at https://tinyurl.com/39rw8phk from Leagle.com. GWG HOLDINGS: Bids for Lead Plaintiff Appointment Due June 2 ------------------------------------------------------------ WHY: Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of purchasers of GWG Holdings, Inc. L Bonds or Preferred Stock of GWG ("GWG securities") (OTC: GWGHQ) between December 23, 2017 and April 20, 2022, both dates inclusive (the "Class Period"). A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 2, 2023. SO WHAT: If you purchased GWG securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the GWG class action, go to https://rosenlegal.com/submit-form/?case_id=14048 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 2, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) they intended to misappropriate GWG assets; (2) GWG's life insurance investment business had failed; and (3) as a result of Target's inability to timely react to changes in consumer trends, Target's sales declined and the Company was left with an overabundance of inventory, forcing Target to take large markdowns, and severely impacting the Company's financial results. When the true details entered the market, the lawsuit claims that investors suffered damages. To join the GWG class action, go to https://rosenlegal.com/submit-form/?case_id=14048 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] HESAI GROUP: Robbins LLP Informs Investors of Class Action ---------------------------------------------------------- The Class: Robbins LLP informs investors that a shareholder filed a class action on behalf of persons or entities who purchased or acquired Hesai Group (NASDAQ: HSAI) pursuant and/or traceable to the registration statement and related prospectus issued in connection with the Company's February 2023 initial public offering ("IPO"). The complaint alleges violations of the Securities Act of 1933. Hesai Group purports to be "the global leader in three-dimensional light detection and ranging (LiDAR) solutions." What Now: Similarly situated shareholders may be eligible to participate in the class action against Hesai Group. Shareholders who want to act as lead plaintiff for the class must file their papers by June 6, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. For more information, click here. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. What is this Case About: Hesai Group (HSAI) Failed to Disclose that Margins Might Decrease Because of a Lower "In-House Plant Capacity Utilization Rate" According to the complaint, while the Company stated that margins may decrease, the registration statement issued in support of the Company's IPO failed to disclose the extent to which it might decrease or that its gross margin decrease was caused by a lower in-house utilization rate. Further, Hesai Group's gross margin was 30% for the fourth quarter—which was completed over a month before the date of the amended registration statement. Since the IPO, and as a result of the disclosure of material adverse facts omitted from Hesai Group's registration statement, Hesai Group's ADS price has fallen substantially below its IPO price, damaging class members. As of April 6, 2023, Hesai Group's ADSs closed at $12.17, a 35.9% decline from the IPO price.[GN] HOME PARTNERS: Court Dismisses Richmond's Claims Under CPA & RLTA ----------------------------------------------------------------- In the case, FRANK RICHMOND, et al., Plaintiffs v. HOME PARTNERS HOLDINGS LLC, et al., Defendants, Case No. 3:22-cv-05704-DGE (W.D. Wash.), Judge David G. Estudillo of the U.S. District Court for the Western District of Washington, Tacoma, grants the Defendants' motion to dismiss. The Court dismisses the Plaintiffs' claims under the Washington Consumer Protection Act ("CPA") as well as claims related to the imposition of attorney fees under the Washington Residential Landlord-Tenant Act ("RLTA"). Plaintiffs Frank Richmond, Michael McDermott, and Kelley McDermott bring suit individually and on behalf of others similarly situated, alleging that Defendants Home Partners Holdings LLC, HP Washington I LLC, HPA Borrower 2017-1 LLC, and OPVHHJV LLC, d/b/a Pathlight Property Management violated the RLTA, the CPA, and the duty of good faith and fair dealing through the terms of their allegedly unlawful and adhesive leases. They allege that HP Washington I LLC, HPA Borrower 2017-1 LLC, and Pathlight Property Management are subsidiaries, agents, joint ventures, or alter egos of Defendant Home Partners Holdings LLC. The Defendants run a lease-to-own residential real estate business. To encourage potential tenants to participate in their lease-to-own program, they allegedly offer various assertions about the quality of the homes and offer professional property management services provided by Pathlight Property Management. According to the Plaintiffs, once a prospective tenant expresses interest in a particular property, the Defendants together claim they expend significant effort and resources to purchase a particular home on the prospective tenant's behalf. However, the Defendants, in fact, already own most of the properties they lease to tenants. The Plaintiffs challenge the Defendants' form rental agreement, which allegedly imposes adhesive terms that abridge tenants' rights in contravention of the RLTA and the CPA. The named Plaintiffs either currently or previously entered into a lease-to-own agreement with the Defendants. Mr. Richmond entered into a lease agreement with Defendant HP Washington I LLC in September 2021. The McDermotts currently maintain a lease with Defendant HPA Borrower 2017-1 LLC. The Plaintiffs allege the properties they rented quickly fell into disrepair and that the Defendants failed to promptly address issued when raised. Additionally, Mr. Richmond alleges he was required to pay (and not allowed to negotiate) several fees that purportedly violate the RLTA. Mr. Richmond was required to pay $13 per month to maintain $100,000 in property insurance for the rental property under Defendants' Master Resident Liability Program ("MLRP"). He notified the Defendants he owns his own liability insurance plan but has continued to be billed for the MLRP and has not been reimbursed by the Defendants. The Defendants also required Mr. Richmond to pay a monthly Utility Billing Service Fee ("UBSF") to compensate for administrative costs associated with utility management and a fee to regularly replace the HVAC filters in his rental unit ("HVAC filter fee"). They subsequently shared with Mr. Richmond a new agreement reflecting an increase in the purchase price of his home and monthly rent for the remainder of his lease. Mr. Richmond refused to sign the agreement and vacated the premises. He alleges the Defendants refused to return the entirety of his security deposit and withheld unlawful fees for items like Liability Coverage, Service Fee, Water Utility Recovery, Utility Billing Service Fee, and a Late Fee Charge. The Plaintiffs filed their complaint on Sept. 21, 2022. They subsequently filed an amended complaint on Dec. 27, 2022, in which they added a claim under the CPA. The Plaintiffs seek to certify a class of "all persons who entered into a rental agreement with Defendants in Washington since January 2014 to the present." They specifically allege the Defendants violated the RLTA, breached the duty of good faith and fair dealing inherent in all of their leases, violated the CPA through the imposition of their various adhesive fees, and were unjustly enriched. The Plaintiffs seek injunctive and declaratory relief, in addition to monetary damages. On Jan. 23, 2023, the Defendants filed their partial motion to dismiss the Plaintiffs' claims under the CPA. They argue all named Plaintiffs lack standing to challenge the imposition of attorney fees for determining whether tenants violated their lease terms; the McDermott Plaintiffs lack standing to assert their claims; the Plaintiffs' CPA claims are barred by the RLTA under Washington law; and the Plaintiffs failed to adequately plead their CPA claims because they are subject to heightened pleading standards. The Plaintiffs filed their response in opposition to the motion on Feb. 22, 2023 and the Defendants filed a timely reply. Judge Estudillo grants the Defendants' motion to dismiss the Plaintiffs' claims related to attorney fees for lack of subject matter jurisdiction. He finds that none of the named Plaintiffs have standing to assert claims related to the alleged imposition of attorney fees. None of the named Plaintiffs allege they were required to pay attorney fees to determine whether they were in default of lease obligations. Judge Estudillo then agrees that the Plaintiffs' CPA claims related to the imposition of the UBSF, the MLRP, the HVAC filter fee, and late fees, as currently alleged, are precluded by Washington law. Washington case law and statutes establish that the RLTA covers disputes over illegal leases. Therefore, the fees the Plaintiffs allege violate the CPA (the UBSF, MLRP, HVAC filter fees, and late fees) are covered by the RLTA and therefore precluded by law. Judge Estudillo grants the Defendants' motion to dismiss the Plaintiffs' CPA claims. Accordingly, and having considered the Defendants' motion, the briefing of the parties, and the remainder of the record, Judge Estudillo grants the Defendants' motion and dismisses the Plaintiffs' CPA claims and claims related to the imposition of attorney fees under the RLTA. A full-text copy of the Court's April 5, 2023 Order is available at https://tinyurl.com/yh4krw76 from Leagle.com. HUNGERRUSH: Judge Dismisses Biometrics Class Action --------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a federal judge in Peoria has dismissed a biometrics class action against HungerRush, a company that makes and supplies point of sale systems to restaurants, saying the vendor never handles the actual fingerprint scans at the heart of the litigation. Barbara White, who works for a Peoria restaurant, initially sued HungerRush in state court, alleging violations of the Illinois Biometric Information Privacy Act. But the Texas-based company removed the complaint to federal court, then filed a motion to dismiss. After White amended her complaint, HungerRush again moved for dismissal, which U.S. District Judge Michael Mihm granted in an opinion filed March 28. White's complaint was premised on allegations HungerRush failed to comply with BIPA's requirements to give proper notice of and obtain written consent for collection and storage of biometric data. She said her employer compelled workers to use the fingerprint timeclock feature in a HungerRush point-of-sale system. She entered as evidence screen captures showing instructions for enrolling and registering a print in that software. In arguing for dismissal, HungerRush disputed whether Judge Mihm had jurisdiction over the matter by challenging White's assertions it deployed cloud-based technology or otherwise received or stored personal data from her or her restaurant coworkers. Matthew Hoeg, HungerRush's chief administrative officer and general counsel, submitted an affidavit explaining his company "does not manufacture and has never manufactured, any finger-scan devices or software, including finger-scan devices and software with biometric capabilities," according to Mihm. He further said White's restaurant bought a HungerRush Revention point-of-sale system and is using it with a third-party finger scanner, which Hoeg said has its own software that doesn't need to send or store data through Revention software. In responding to the motion to dismiss, White only contended HungerRush was "inappropriately arguing merits questions," Mihm wrote, further insisting all she needed to establish jurisdiction was evidence of the company contracting with an Illinois-based customer. But Mihm said HungerRush's motion directly addressed jurisdiction by claiming it isn't engaged in the type of conduct White alleged, which compelled White to submit affirmative evidence concerning jurisdiction. Mihm said several U.S. Seventh Circuit Court of Appeals opinions concerning personal jurisdiction establish a plaintiff's burdens in this type of situation, and White failed to clear that bar. HungerRush argued White's restaurant initiated the customer relationship and that it doesn't reach out to potential Illinois clients. To the extent the company does conduct business in a way that might align with White's allegations, Mihm explained, that would have to include its newer HungerRush 360 technology, and although White's complaint named that system, her screen shots confirm her restaurant was using Revention. Although the HungerRush 360 marketing materials do reference centralized data and a promise to users that will have "100% control from anywhere," HungerRush argued Revention "merely receives a pre-programed verification signal from a third-party finger-scanner, and it does not send data of any kind back to HungerRush." Furthermore, HungerRush said it "does not and has never manufactured a fingerprint scanner," Mihm wrote. Mihm dismissed White's complaint without prejudice, meaning she is free to try to revise her complaint to try again, if she can find a way to establish HungerRush may have violated the BIPA law. Plaintiffs were represented by attorneys Roberto Luis Costales and William H. Beaumont, of the Beaumont Costales firm, of Chicago. HungerRush has been represented by attorneys Erin Bolan Hines and Kathleen M. Ryan, of the firm of Shook Hardy & Bacon, of Chicago.[GN] HWAREH.COM INC: Intercepts Electronic Communication, Zarif Says --------------------------------------------------------------- SHAHNAZ ZARIF, individually and on behalf of others similarly situated, Plaintiff v. HWAREH.COM, INC., Defendant, Case No. 3:23-cv-00565-BAS-DEB (S.D. Cal., March 29, 2023) is a class action brought by the Plaintiff seeking to recover damages and injunctive relief against Defendant for violations of the Federal Wiretap Act, the California Invasion of Privacy Act, the California Confidentiality of Medical Information Act, and the California Consumer Privacy Act, in relation to the unauthorized interception, collection, recording, and dissemination of Plaintiff's and Class Members' communications and data. This case stems from Defendant's unauthorized interception and connection to Plaintiff's and Class Members' electronic communications through the use of Facebook Pixel and other spyware that allowed Defendant to read, learn the contents of, and make reports on Plaintiff's and Class Members' interactions on Defendant's website. According to the complaint, Defendant utilized Facebook Pixel and other spyware to intercept Plaintiff's and the Class Members' electronic computer-to-computer data communications, including how Plaintiff and Class Members interacted with the website, mouse movements and clicks, keystrokes, search items, information inputted into the website, and pages and content viewed while visiting the website. The Defendant intentionally tapped and made unauthorized interceptions and connections to Plaintiff and Class Members' electronic communications to read and understand movement on the website, as well as everything Plaintiff and Class Members did on those pages, e.g., what Plaintiff and Class Members searched for, looked at, the information inputted, and items clicked on, says the suit. Hwareh.com, Inc. is an online pharmacy serving all 50 U.S. states including California.[BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. SWIGART LAW GROUP 2221 Camino del Rio S, Ste 308 San Diego, CA 92108 Telephone: (866) 219-3343 Facsimile: (866) 219-8344 E-mail: Josh@SwigartLawGroup.com IRVING K: Must File Class Cert Response by April 17 ---------------------------------------------------- In the class action lawsuit captioned as NICOLE WILLIAMSON, individually and on behalf of all others similarly situated, v. IRVING K MOTOR COMPANY LLC D/B/A CLAY COOLEY KIA, Case No. 3:21-cv-01599-BH (N.D. Tex.), Hon. Judge Irma Carrillo Ramirez entered an order on Plaintiff's motion for class certification: -- The defendant may file a response and brief containing citations to relevant authorities no later than Monday, April 17, 2023. -- The plaintiff may file a reply no later than Monday, May 1, 2023. A copy of the Court's order dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3KM6j87 at no extra charge.[CC] IT'S JUST LUNCH: Vrugtman Seeks May 15 Hearing on Class Status -------------------------------------------------------------- In the class action lawsuit captioned as ROSANNE VRUGTMAN, TAMMY GILLINGWATER, AND NICOLE KRUZICK, INDIVIDUALLY, AND FOR ALL OTHERS SIMILARLY SITUATED, v. IT'S JUST LUNCH INTERNATIONAL LLC, IJL US LLC, IJL CANADA INC., Case No. 5:20-cv-02352-JGB-SP (C.D. Cal.), the Plaintiff file an ex parte application for scheduling order regarding motion for class certification: -- The Plaintiffs seek an order that the hearing date for such motion shall be no later than May 15, 2023. It's Just International LLC provides online dating services. A copy of the Plaintiffs' motion dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3MqLksv at no extra charge.[CC] The Plaintiffs are represented by: Matthew W. Schmidt, Esq. BALESTRIERE FARIELLO 225 Broadway, 29th Floor New York, NY 10007 Telephone: (415) 966-2656 Facsimile: (212) 208-2613 E-mail: john.balestriere@balestrierefariello.com matthew.schmidt@balestrierefariello.com - and - Anastasia Mazzella, Esq. KABATECK LLP 633 West Fifth Street, Suite 3200 Los Angeles, CA 90071 Telephone: (213) 217-5007 Facsimile: (213) 217-5010 E-mail: am@kbklawyers.com ITS LOGISTICS: Bid to Approve $365K Deal in Guthrie Suit Denied --------------------------------------------------------------- In the case, KEITH GUTHRIE, individually, on a representative basis, and on behalf of all others similarly situated, Plaintiff v. ITS LOGISTICS, LLC, Defendant, Case No. 1:21-cv-000729-AWI-EPG (E.D. Cal.), Magistrate Judge Erica P. Grosjean of the U.S. District Court for the Eastern District of California recommends that the Plaintiff's motion for preliminary approval of the class action settlement be denied without prejudice. The Plaintiff filed the action in state court on March 9, 2021, against the Defendant and Does 1-20. The complaint alleges that, in connection with the Defendant's employment of the Plaintiff and other truck drivers, the Defendant violated California employment and unfair-and-unlawful competition laws. Specifically, the Plaintiff brings the following claims on behalf of himself and putative class members for alleged violations of California's Labor Code (Counts 1-7) and California's Business and Professions Code (Count 8): (1) failure to pay minimum wages; (2) failure to pay for rest, recovery, and nonproductive time; (3) failure to provide rest breaks; (4) failure to provide meal periods; (5) failure to reimburse business expenses; (6) failure to timely pay final wages; (7) failure to provide accurate itemized wage statements; and (8) unfair and unlawful competition. He also brings claims (Counts 9-16) under California's Private Attorneys General Act (PAGA), Cal. Lab. Code Section 2698-2699.5, which allows aggrieved employees to recover civil penalties for Labor Code violations on behalf of themselves, the state, or other current or former employees. Guthrie moves for preliminary approval of a class action settlement of California state labor claims and a single unfair-and-unlawful-competition claim. The Defendant does not oppose the motion. The presiding District Judge has referred the motion for entry of findings and recommendations under 28 U.S.C. Section 636(b)(1). The parties reached the proposed settlement in a private mediation before formal discovery or motion practice. The motion for preliminary approval, as supplemented by a revised settlement agreement, provides a gross settlement amount of $365,000, with a net amount of $218,500 going to the class members, and reflects an agreement between the parties for the Plaintiff's counsel to seek only $9,000 in litigation costs. The proposed "settlement class" of approximately 270 class members includes "all current and former truck drivers who resided in California and who were employed by Defendant at any time during the Class Period," which is defined as "March 1, 2019 through May 7, 2022." The PAGA claims involve approximately 1633 "aggrieved employees," who include "all current and former truck drivers who resided in California and who were employed by Defendant at any time during the PAGA Period," which is defined as "March 9, 2020 through May 7, 2022." The "gross settlement amount" -- or maximum amount (aside from payroll taxes) that Defendant will pay to settle the case -- is $365,000, with a "net settlement amount" of $218,500 being expected to go to the settlement class after deductions. From the $218,500 net settlement amount for the class claims, the average payment to each of the 270 class members will be approximately $809 per class member. From the $8,750 in PAGA penalties expected to go to 163 "aggrieved employees," the average payment is approximately $54 per employee. Settlement payments will be mailed by check, and class members and aggrieved employees will have 180 calendar days after the mailing of the check to cash it. If a check is not cashed, the funds will be issued to the California State Controller's Office in the name of the person to whom the check was issued. Within 21 days after the order granting preliminary approval of the settlement, the Defendant will provide the Settlement Administrator with data regarding the "settlement class" and "aggrieved employees," such as their contact information and information to calculate their estimated payment. Within 10 days of the receipt of the data, the Settlement Administrator will mail a notice written in English and Spanish. If a notice is returned, the Settlement Administrator will use skip tracking to obtain forwarding addresses. The notice will contain language explaining how a class member may opt out of the settlement. However, aggrieved employees cannot opt out of the PAGA action. Any class member who does not opt-out of the settlement agreement will be deemed to have released all claims arising from facts alleged in Plaintiff's complaint for the duration of the class period. Further, the settlement agreement includes a waiver of rights as to unknown claims under California Civil Code Section 1542. All aggrieved employees will be deemed to have released all PAGA claims arising from the facts alleged in Plaintiff's complaint during the PAGA period. The supplement contains a revised settlement agreement, providing for a gross settlement amount of $365,000 and reflecting an agreement between the parties for Plaintiff's counsel to seek only $9,000 in litigation costs. (ECF No. 38, p. 4). While the gross settlement amount has stayed nearly the same from the initial settlement agreement, the valuation of the claims varies considerably from the previous estimates, with some claims being valued at 35% and 66% of their original amount. Judge Grosjean cannot conclude, based on the information provided, that the proposed settlement is fair, reasonable, and adequate to the class members. According to the Plaintiff, the projected maximum value of the class claims is $3,581,927, making the gross settlement amount less the PAGA penalties ($330,000) a recovery of approximately 10%--and the net settlement amount ($218,500) a recovery of approximately 6%. For the PAGA claims, the Plaintiff projects a maximum value of $1,700,700, making the gross amount ($35,000) for the PAGA penalties a recovery of approximately 2%. Moreover, the gross settlement amount is only 38% of the expected recovery using the Plaintiff's own estimate of the likely value of all claims, which he estimates at $947,294.50 even after taking steep discounts for the risks involved in the litigation. Following a hearing on the motion, during which the Court expressed these concerns, the parties submitted a supplement with an almost identical gross settlement amount (originally $365,000 and now $350,000), yet with substantial changes to the underlying valuation of claims supporting such number. For example, some claims are now valued at 35% and 66% of the estimate previously provided to the Court. Given these varying estimates, Judge Grosjean is concerned that the parties are now attempting to backfill calculations to fit the already-agreed upon settlement amount, rather than making good-faith and informed calculations to reach a fair, reasonable, and adequate settlement. Thus, while she is sympathetic to the parties' desire to resolve the case for the amount already agreed upon during mediation, Judge Grosjean does not find that the settlement reflects a fair, reasonable, and adequate recovery to the class members and aggrieved employees. Accordingly, she recommends that the Plaintiff's motion for preliminary approval be denied without prejudice. These findings and recommendations are submitted to the United States district judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. Section 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections will be served and filed within 14 days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. A full-text copy of the Court's April 5, 2023 Findings & Recommendations is available at https://tinyurl.com/bdpj6dmr from Leagle.com. J-M MANUFACTURING: Filing of Class Cert. Bid Due Oct. 30 -------------------------------------------------------- In the class action lawsuit captioned as CAMBRIDGE LANE, LLC, a California limited liability company, on behalf of itself and all others similarly situated, v. J-M MANUFACTURING COMPANY, INC., a Delaware corporation d/b/a J-M PIPE MANUFACTURING COMPANY, and DOES 1-10, inclusive, Case No. 2:10-cv-06638-GW-MAR (C.D. Cal.), Hon. Judge George H. Wu entered an order granting stipulation to continue class certification deadlines as follows: 1. Expert witness designations shall May 17, 2023 be exchanged on: 2. Fact Discovery shall be completed July 17, 2023 By: 3. Rebuttal expert designations shall July 17, 2023 be exchanged on: 4. Expert discovery shall be completed Sept. 18, 2023 by: 5. The Plaintiff's motion for class Oct. 30, 2023 certification shall be filed by: 6. The Defendant's Opposition shall be Dec. 13, 2023 filed by: 7. The Plaintiff's Reply in Support of Jan. 3, 2024 the Motion shall be filed by: 8. The hearing on the Motion shall be Jan. 18, 2024 A copy of the Court's order dated March 27, 2023 is available from PacerMonitor.com at https://bit.ly/3MmiR7h at no extra charge.[CC] The Plaintiff is represented by: David M. Birka-White, Esq. BIRKA-WHITE LAW OFFICES 178 East Prospect Avenue Danville, CA 94526 Telephone: (925) 362-9999 Facsimile: (925) 362-9970 E-mail: dbw@birka-white.com - and - John D. Green, Esq. Karen P. Kimmey, Esq. Kelsey Mollura, Esq. FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 E-mail: jgreen@fbm.com kkimmey@fbm.com kmollura@fbm.com JP MORGAN: Case Dates in Radabaugh Suit Stayed ---------------------------------------------- In the class action lawsuit captioned as JODI RADABAUGH, et al., v. JPMORGAN CHASE & CO., et al., Case No. 2:22-cv-04356-MHW-CMV (S.D. Ohio), Hon. Judge Chelsey M. Vascura entered an order granting the Parties' joint motion to stay all case dates and deadlines pending mediation: -- All deadlines contained in the Court's January 4, 2023 scheduling orderare stayed pending the results of the parties' mediation, which is currently scheduled for June 28, 2023. -- The Plaintiffs and Defendants are DIRECTED to file a joint status report on or before July 28, 2023, advising the Court of whether a settlement has been reached, and, if appropriate, jointly proposing a case schedule for completing any outstanding discovery and filing motions for class certification under Rule 23 and conditional certification under the Fair Labor Standards Act (FLSA). JPMorgan is an American multinational financial services company headquartered in New York City and incorporated in Delaware. A copy of the Court's order dated March 27, 2023 is available from PacerMonitor.com at https://bit.ly/3KCeR16 at no extra charge.[CC] JUUL LABS: Local School Districts OK Vaping Class Suit Settlement ----------------------------------------------------------------- Cache Valley Daily reports that the local school boards of education voted unanimously to accept a settlement from Juul in a class action lawsuit settled by the company in December 2022. Cache County School District joined several school districts in Utah in a class action suit, covering thousands of lawsuits over the company's e-cigarettes and advertising practices in October 2021 while Logan City School District joined the lawsuit November of 2021. "I think that this was a wise move for our district to pursue and participate in this litigation," CCSD Human Resources Director Kirk McRae said. "I think the vast majority of school districts in Utah did." Each school district was required to authorize and sign in the settlement in order to move forward with the agreement. The CCSD board voted to accept the settlement with Juul during their March 16th meeting while the LCSD board voted to accept the settlement during their March 28th meeting. The lawsuit claimed Juul downplayed health risks of vaping and used questionable marketing practices to target minors and young adults. The payout for each district, according to McRae, is derived from a very complicated formula which includes student body size among other factors. During the meeting, LCSD did not disclose the settlement amount the district would receive but LCSD Business Administrator Jeff Barden said further discussion on the settlement would be held in a closed board session. "We can't give the amount. It's not a significant enough number," LCSD School Board President Gregg Miller said. "Make sure we use it for the right purpose." According to McRae, CCSD would receive a gross settlement of $483,109 and a net settlement which removes attorney fees, court cost and other costs of $336,000. According to McRae, the boards and the superintendents can determine how to use the funds received from the settlement. "We will talk as an administration and certainly as a board on ways we can use that most effectively," McRae said. "There aren't strings that are going to be required for us to follow up on but one of the requirements is that the school board does need to affirmatively accept the settlement." CCSD Board Member Jeff Nielson asked McRae if the intent of the school board was met through the lawsuit which was to hold the corporation and shareholders accountable for their behaviors. McRae said the corporation changed some of their marketing behaviors primarily because they were compelled to and although accepting the settlement will release the corporation from further litigation, it does not release the shareholders. "A lot of that is statutory mandates by state and federal governments," McRae said. "It doesn't change the problem, just like the tobacco litigation didn't change the problem but it definitely gives some regulatory teeth to change some of the obvious behaviors and marketing techniques." Juul released a statement stating the company was taking steps to stabilize its business operations and address past legal issues to be able to "continue to advance tobacco harm reduction through science and technology." "These settlements represent a major step toward strengthening Juul Labs' operations and securing the company's path forward," the statement said. According to McRae, the districts will receive payments over the next five years and could receive the first payment as soon as the fall. [GN] KANSAS CITY ROYALS: Senne Awarded $4.6MM in Litigation Costs ------------------------------------------------------------ In the class action lawsuit captioned as Senne et al v. Kansas City Royals Baseball Corp., et al., Case No. 3:14-cv-00608-JCS (N.D. Cal.), Hon. Judge Joseph C. Spero entered an order granting the Plaintiffs' fee motion and awards the following amounts: -- 30 percent of the common fund in attorneys' fees ($55,500,000); -- litigation costs in the amount of $4,654,538.33; -- incentive payments in the amount of $15,000 each for the class representatives, and $7,500 each for the named plaintiffs who are not class representatives. The Court further orders that $995,000 be set aside from the common fund for settlement administration expenses. The Court will make a final determination as to the reasonable amount of administration fees as set forth in its March 6, 2023 Order Regarding Deadlines for Requesting Disbursement of Administration Fees by Administrator. In particular, JND will make its initial request for disbursement of administration fees within fourteen days of effectuating the initial class member distribution from the settlement fund. JND will make its final request for disbursement of administration fees at least fourteen days before the anticipated final class member distribution from the fund. The proposed settlement consolidates the Courts already-certified Rule 23(b)(3) classes into a single (b)(3) class, with a class membership cutoff of the date of preliminary approval, defining the (b)(3) class as follows: "All persons who: while signed to a Minor League Uniform Player Contract, participated in the California League for at least seven days on or after February 7, 2010, through the date of preliminary approval, participated in spring training, instructional leagues, or extended spring training in Florida on or after February 7, 2009 through the date of preliminary approval, or participated in spring training, instructional leagues, or extended spring training in Arizona on or after February 7, 2011, through the date of preliminary approval. A copy of the Court's order dated March 29, 2023 is available from PacerMonitor.com at https://bit.ly/410VNQ8 at no extra charge.[CC] KERN COUNTY, CA: Hagler Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against County of Kern, et al. The case is styled as Angela Hagler and Tiarra Ellison, and all others similarly situated v. County of Kern, Case No. BCV-23-101048 (Cal. Super. Ct., Kern Cty., April 5, 2023). The case type is stated as "Civil Rights - Civil Unlimited." Kern County -- https://www.kerncounty.com/ -- is a county located in the U.S. state of California.[BN] KILOLO KIJAKAZI: Hellebuyck Files Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Dr. Kilolo Kijakazi, et al. The case is styled as Ute Hellebuyck, on behalf of herself and all others similarly situated v. Dr. Kilolo Kijakazi, acting Commissioner of Social Security in her official capacity as Acting Commissioner of the Social Security Administration; The Social Security Administration; Case No. 2:23-cv-02625-GRB-JMW (E.D.N.Y., April 6, 2023). The nature of suit is stated as Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision. Kilolo Kijakazi is Acting Commissioner of the Social Security Administration (SSA).[BN] The Plaintiff is represented by: Laurie Rubinow, Esq. James Edward Miller, Esq. MILLER SHAH LLP 225 Broadway, Suite 1830 New York, NY 10007 Phone: (866) 540-5505 Fax: (866) 300-7367 Email: lrubinow@millershah.com jemiller@millershah.com KINKISHARYO INT'L: Renewed Class Cert Bid Must be Filed by April 28 ------------------------------------------------------------------- In the class action lawsuit captioned as ANTHONY LOAIZA and JOSE LANDAVERDE, individually, and on behalf of other members of the general public similarly situated, v. KINKISHARYO INTERNATIONAL LLC, a California corporation; and DOES 1 through 100, inclusive, Case No. 2:19-cv-07662-JAK-KS (C.D. Cal.), Hon. Judge John A. Kronstadt entered an order granting in part the Plaintiffs' motion to modify scheduling order as follows: 1. Plaintiffs shall file any renewed April 28, 2023 motion for class certification on or before: 2. The Defendant shall file the May 29, 2023. opposition to any renewed motion for class certification on or before: 3. Plaintiff shall file any reply on or June 12, 2023 Before: 4. A hearing on any renewed motion for July 17, 2023 class certification shall be set for: Kinkisharyo designs and manufactures railcars, as well as offers vehicle repairs, upgrades, and modifications. A copy of the Court's order dated March 27, 2023 is available from PacerMonitor.com at https://bit.ly/3mgWxRJ at no extra charge.[CC] KNIGHT TRANSPORTATION: Settlement in Martinez Gets Initial Nod -------------------------------------------------------------- In the class action lawsuit captioned as ROBERT MARTINEZ, an individual, on behalf of himself and all others similarly situated, v. KNIGHT TRANSPORTATION, INC. dba ARIZONA KNIGHT TRANSPORTATION, INC., Case No. 1:16-cv-01730-SKO (E.D. Cal.), Hon. Judge Sheila K. Oberto entered an order that: 1. The Plaintiff's renewed motion for preliminary approval of a class action settlement and conditional certification of settlement class is granted. 2. The hearing on Plaintiff's renewed motion, set for March 29, 2023, is vacated. 3. The proposed class identified in the Settlement Agreement is certified for settlement purposes. 4. The Plaintiff's counsel, Craig J. Ackermann of Ackerman & Tilajef, P.C. and Julian Hammond of HammondLaw, P.C., are appointed as class counsel for settlement purposes. 5. The named plaintiff Robert Martinez is appointed as class representative for settlement purposes. 6. Atticus Administration, LLC is approved as the settlement claims administrator. 7. The hearing for final approval of the proposed settlement is set for September 20, 2023. The Plaintiff and the putative class members were employed as truck drivers by Defendant. Their job responsibilities included making deliveries of dry goods, produce, materials, and other products to various businesses located throughout California. The Plaintiff and the putative class members allege that they typically worked between 10 and 14 hours per day, 5 to 6 days per week, and 52 weeks per year. According to the allegations of the complaint, the Defendant failed to provide class members with appropriate meal and rest breaks as required under California law. On March 2, 2018, Plaintiff filed a motion to certify the class, which was granted on December 3, 2018. The Court certified the following class: "All current and former truck drivers employed by defendant Knight Transportation, Inc., who advised defendant that they resided in Oregon, Nevada, Arizona, Utah, and/or Colorado, who were paid in whole or in part on a piece-rate basis, and who drove one or more routes of five hours or more entirely within the State of California for defendant during the "Class Period" from September 30, 2012 through [December 3, 2018]." For settlement purposes, the parties request approval of the following class of an estimated 5,500 individuals (the "Settlement Class" or "Settlement Class Members"): "all current and former truck drivers employed by defendant Knight Transportation, Inc., who advised defendant that they resided in Oregon, Nevada, Arizona, Utah, and/or Colorado, who were paid in whole or in part on a piece-rate basis, and who drove one or more routes of five hours or more entirely within the State of California for defendant during the 'Class Period' from September 30, 2012 through preliminary approval" of the settlement." The Plaintiff has defined "PAGA Claim Members" as "any and all Class Members, who worked for Defendant at any time from September 27, 2015, up to preliminary approval" of the settlement. Under the Settlement Agreement, the Defendant will pay a total of $400,000 (the Gross Settlement Amount) allocated as follows: (1) up to $100,000 (25% of the GSA) for attorney's fees and up to $20,000 for litigation costs; (2) $10,000 incentive award for Plaintiff; (3) $20,000 in civil PAGA penalties, with $15,000 of the penalties payable to the California Labor and Workforce Development Agency; and (4) an estimated $29,558.00 in settlement administration costs. A copy of the Court's order dated March 27, 2023 is available from PacerMonitor.com at https://bit.ly/3KBMdNL at no extra charge.[CC] L'OREAL USA: Court Junks Eshelby Class Action ---------------------------------------------- In the class action lawsuit captioned as Veronica Eshelby, individually and on behalf of all others similarly situated, v. L'Oreal USA, Inc., Case No. 1:22-cv-01396-AT (S.D.N.Y.), Hon. Judge Analisa Torres entered an order that L'Oreal's motion to dismiss is granted and Eshelby's request for leave to amend the complaint is denied. Additionally, Eshelby's claims on behalf of the putative class are dismissed. A plaintiff cannot claim injury from products she did not purchase unless the claims brought by a purchaser of such products would raise a "nearly identical" set of concerns. The products Eshelby complains of are widely variable. They contain varying amounts of French-language text, if any; the size of the packaging, the amount of text, the font type and size, and the location and size of the brand name varies across products; and the products themselves range from haircare to skincare to makeup. Each of these products contains different labels, different product claims, and different packaging, such that there is not sufficient identity between Eshelby's individual claims and the claims brought on behalf of the putative class. Further, because Eshelby, individually, does not state a claim as to the products she did purchase, no such claims can be maintained on behalf of the putative class. Finally, Eshelby's claim for injunctive relief is dismissed. To obtain injunctive relief, a plaintiff must show "a sufficient likelihood that she will again be wronged in a similar way." In 2021, Eshelby bought L'Oreal Ever Pure Shampoo, L'Oreal Sleek It Iron Straight Heatspray, L'Oréal Elvive Total Repair 5 Power Restore Treatment, and L'Oreal Voluminous Original Mascara. She repurchased these products every two to three months throughout 2021 in Walmart and Target stores and on Amazon.com. Each of these products prominently displays the word "Paris" on the front of the packaging and contains French-language text. These products state in fine print on the back or side of the packaging that they are manufactured in the United States or Canada. Eshelby relied on the front of the packaging, did not notice the fine print, and believed that these products were manufactured in France. L'Oreal manufactures and markets cosmetic products. A copy of the Court's order dated March 27, 2023 is available from PacerMonitor.com at https://bit.ly/3zALHZX at no extra charge.[CC] MACROGENICS: 4th Cir. Affirms Securities Class Action Dismissal --------------------------------------------------------------- Patrick Gibbs, Esq., Brett De Jarnette, Esq., and Amie Simmons, Esq., of Cooley LLP, in an article for Mondaq, disclosed that biotech companies are often faced with a dilemma -- they need to raise capital to develop novel therapies, and in doing so, they often express honest optimism about interim and topline results from their drugs in development. But they cannot be reasonably expected to disclose all results or interpretations of the clinical data to avoid the threat of shareholder litigation. The US Court of Appeals for the Fourth Circuit recently published an opinion that thoughtfully recognized the difficulties that biotech companies face in disclosing the results of clinical trials, emphasizing that such companies should not be punished for expressing optimism, and that investors should know that not every known fact would necessarily support a company's opinions. The court also made clear that courts are not an arbiter of science, and "[s]ecurities law is simply not a vehicle through which courts will police disagreements in the cancer research community or the parameters of clinical trials." Summary On March 2, 2023, the Fourth Circuit affirmed the US District Court for the District of Maryland's complete dismissal of a putative securities class action accusing MacroGenics and several executives of misleading investors about interim clinical trial data. The plaintiffs' core theory was that the company misled investors by disclosing some positive clinical trial data, while not disclosing purportedly negative data from the same study. The court rejected the plaintiffs' theory, holding that: -- Disclosure of certain endpoint data and general references to topline results did not trigger a duty to disclose data for all endpoints of the study. -- The defendants' interpretation of clinical trial data amounted to an inactionable opinion statement. The plaintiffs' disagreement with that interpretation was insufficient to state a securities fraud claim. -- Certain positive statements about the clinical trial's survival endpoint were inactionable statements of corporate optimism. Importantly, the court emphasized that biopharmaceutical companies should not be punished for expressing optimism and that investors should know that not every known fact would necessarily support a company's opinions: "Biopharmaceutical clinical trial drug companies constantly find themselves in the hot seat. Not only does their longevity depend on the creation of ground-breaking, experimental drugs designed to combat the world's deadliest illnesses, i.e. Cancer, but also a significant portion of their success turns on the amount of capital raised to explore these unchartered waters, making investors an integral part of the equation. Therefore, we cannot admonish these companies for issuing positive and accurate opinions while 'weighing . . . competing facts,' and must remind investors to 'not expect that every fact known to an issuer supports its opinion statement' (emphasis added). It would be a great disservice to stifle biopharmaceutical companies' pursuit of medical advancements by failing to safeguard against an inundation of lawsuits alleging securities-law violations." Background MacroGenics is a biopharmaceutical company that, during the relevant time period, was developing an antibody treatment for metastatic breast cancer known as margetuximab. MacroGenics carried out a Phase 3 trial designed to compare the drug's efficacy to the standard of care antigen. The Phase 3 trial's two endpoints were (1) prolongation of progression free survival (PFS), which measured how long patients continued to survive without the disease getting worse, and (2) prolongation of overall survival (OS), which measured how long patients survived after treatment (regardless of disease progression). The goal of the trial was to demonstrate that margetuximab had "meaningfully superior" PFS and OS results compared to the standard of care. In February 2019, MacroGenics issued a press release disclosing that the Phase 3 trial had reached its first PFS endpoint. The press release also stated that "follow-up . . . on the . . . primary endpoint of overall survival (OS) is ongoing." On a conference call the same day, MacroGenics' CEO stated that "the trending for OS has been positive in the direction of margetuximab, but we just don't have enough events to be able to have significance here." A few days later, the company announced a public offering and filed a prospectus supplement, which contained various risk factors relating to the Phase 3 trial's topline results and endpoints. In May 2019, the company issued a press release disclosing interim OS data from a subset of patients. The company described these interim results as "promising," and stated that "we anticipate the preliminary positive trend in favor of [m]argetuximab to continue, although subsequent results could fluctuate as additional events accrue." At a June 2019 conference, the company disclosed a Kaplan-Meier curves graph depicting the interim OS data from the Phase 3 trial. The plaintiffs alleged that this graph contained materially adverse information that had not been previously disclosed – namely, that the curves in the graph indicated the OS data was not on track to demonstrate superior OS results to the standard of care. After the conference, MacroGenics' stock declined 22%. In September 2019, the plaintiffs brought a securities class action alleging claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Sections 11, 12(a) and 15 of the Securities Act of 1933. The district court dismissed the plaintiffs' claims for failure to plead falsity and scienter, and the plaintiffs appealed. The decision The Fourth Circuit affirmed the district court's dismissal, holding that the plaintiffs failed to adequately plead that any challenged statement was false or misleading when made. No duty to disclose interim results The Fourth Circuit held that the defendants did not have a duty to disclose the interim OS results because their statements regarding the PFS endpoint did not speak to the OS data. -- The court explained that the February 2019 press release focused on the PFS endpoint and made clear that the OS data was ongoing and preliminary. Importantly, the defendants' reference to the OS data in the press release did not put the interim data "in play." The court explained that "a company's mere reference to full trial data in a discussion of top-line results 'does not trigger a duty to disclose the full results of a study'" (emphasis added).1 -- Further, neither did the defendants' oral statements positively characterizing the OS data put it "in play." The court observed that the plaintiffs were not challenging the OS interim data itself, but the defendants' interpretation of it. The court emphasized that the plaintiffs' different interpretation was insufficient to plead falsity and explained that "[w]here a company accurately reports the results of a scientific study, it is under no obligation to second-guess the methodology of that study." Because the defendants' statements about the OS data were consistent with the Kaplan-Meier curves graph, and they had "accurately interpreted the OS interim data," their positive statements about the data were not false or misleading. Inactionable puffery The Fourth Circuit held that MacroGenics' statements regarding the OS data were merely corporate optimism, and its use of the words "positive," "excited" and "promising" were "textbook examples of puffing statements that reasonable investors cannot rely upon in the hopes of a grand slam, when the bases aren't even fully loaded." For example, the plaintiffs challenged the following statements: -- "The trending for OS has been positive in the direction of margetuximab." (emphasis added) -- "The activity observed to date in [the Phase 3 trial] is promising." (emphasis added) -- "For [OS], we anticipate the preliminary positive trend . . . to continue."2 After determining these statements were puffery, the court observed that the statements were "consistently qualified . . . with warnings that the OS endpoint could still fail," citing examples such as "follow up . . . is ongoing," "we just don't have enough events . . . to have significance here," and "it is too early to evaluate the . . . primary endpoint of [OS] . . . ."3The court concluded that the defendants' statements were "hedged with guarded and restrained positivity," and as a whole, investors would not have "exclusively clung" to them. Inactionable opinion The court also held that the company's positive statements about the interim OS data were inactionable opinions. The court found that the plaintiffs' allegations regarding the Kaplan-Meier graph were simply a disagreement with the company's interpretation of the OS data. The court explained that "[i]nterpretations of clinical trial data are considered opinions,"4 and "[s]ecurities law is simply not a vehicle through which courts will police disagreements in the cancer research community or the parameters of clinical trials" (emphasis added).5 Because the defendants' interpretation was accurate and consistent with the later-disclosed Kaplan-Meier graph, and the plaintiffs had "failed to sufficiently allege that Defendants did not believe their general positivity and enthusiasm about the results of the interim OS data," the court concluded that "[t]he mere fact that Plaintiffs interpreted the data in the graph differently does not make Defendants' statements actionable." Forward-looking statements The court further held that MacroGenics' statement anticipating "the preliminary positive trend [of OS] in favor of [m]argetuximab to continue" (emphasis added) was forward-looking and protected by the Private Securities Litigation Reform Act safe harbor.6 The court explained the statement was a projection of future performance because it articulated the company's expectation that the OS data would continue to show longevity. Notably, the court held that though the statement used the word "continue" (which references "a state that is currently occurring"), it was not a statement of present fact because, in context, it could not be "meaningfully distinguished from" the defendants' goals of meeting the OS endpoint. Cautionary statements Finally, the Fourth Circuit rejected the plaintiffs' argument that MacroGenics' risk warnings were actionable because they omitted the Kaplan-Meier graph.7 The court found that the defendants sufficiently warned investors that the interim OS data was not final and the endpoint may not be met, citing examples of risk factors, including: -- "[T]he topline results may result in the final data being materially different from the preliminary data we previously published . . . the achievement of one primary endpoint for a trial does not guarantee that additional co-primary endpoints or secondary endpoints will be achieved." -- "[T]he achievement by margetuximab of its co-primary endpoint for [PFS] events in the [Phase 3] trial does not indicate whether the co-primary endpoint of [OS] will be achieved." Takeaways -- The court acknowledged the challenge that clinical-stage biopharmaceutical companies face in deciding what clinical trial data to disclose and not disclose under federal securities laws. Biopharmaceutical companies should not be punished for expressing optimism about clinical development and data, even where some data may cut against their opinions. Holding otherwise would stifle innovation. -- Passing references to topline results and statements regarding particular endpoints do not trigger a duty to disclose all study data, particularly where there are risk disclosures warning investors that achievement of one endpoint does not guarantee achievement of other endpoints, and that the results are subject to change. The case provides a good example of risk disclosures a court has found sufficiently strong to warn investors that topline results of interim data are subject to change. -- Statements containing general, positive references to topline results can be considered inactionable puffery, particularly where coupled with risk warnings. -- The Fourth Circuit has joined other circuits in finding that interpretation of clinical data is opinion and has stated unequivocally that courts should not serve as arbiters of science.8 -- This case demonstrates the importance of accurately disclosing trial data. It was significant to the court's analysis that the Kaplan-Meier graph was consistent with the company's earlier comments about the interim OS data, and that the company's interpretation and depiction of the OS data was "accurate." -- Statements containing present-tense words like "continue" may be considered forward-looking when read in their full context; however, this is a fact-specific inquiry, the outcome of which may vary. Footnotes 1 Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge v. MacroGenics, Inc., No. 21-2238, 2023 WL 2320351, at *9 (4th Cir. March 2, 2023). 2 Id. at *10. 3 Id. at *11. 4 Id. at *12 (citing City of Edinburgh Council v. Pfizer, Inc., 754 F.3d 159, 174 (3d Cir. 2014)). 5 Id. 6 Id. at *13. 7 Id. 8 See In re Rigel Pharmaceuticals, Inc. Securities Litigation, 697 F.3d 869, 878 (9th Cir. 2012); City of Edinburgh Council v. Pfizer, Inc., 754 F.3d 159, 170-71 (3d Cir. 2014) ("[I]nterpretations of clinical trial data are considered opinions."); Tongue v. Sanofi, 816 F.3d 199, 213-14 (2d Cir. 2016) ("Plaintiffs' allegations regarding Defendants' stated opinion about the [drug] trial results are little more than a dispute about the proper interpretation of data . . . ."); Kleinman v. Elan Corporation, PLC, 706 F.3d 145, 154 (2d Cir. 2013) ("Defendants are not required to adopt [Plaintiff's] view regarding the degree of difference or its effect on the results.").[GN] MATTRESS FIRM: Settles Class Action Over Defective Bed Frames ------------------------------------------------------------- Top Class Actions reports that Mattress Firm agreed to pay $4.9 million to resolve a class action lawsuit claiming Bed Tech bed frames are defective and dangerous. The settlement benefits consumers who purchased an HR Platform bed frame sold under the Bed Tech brand name with model numbers HR33, HR33XL, HR46, HR50, HR60 or HR66 between April 8, 2015, and April 8, 2021. Plaintiffs in the Mattress Firm class action lawsuit claim that Bed Tech bed frames are prone to collapse -- leading to serious injury or even death. Manufacturer Global Home Imports recalled the products in March 2021 after 100 reports of frames collapsing. Bed Tech is a mattress and bed frame brand sold at a number of retailers, including Mattress Firm. Mattress Firm and Global Home Imports haven't admitted any wrongdoing but agreed to a $4.9 million class action settlement to resolve the defective product allegations. Under the terms of the Mattress Firm class action lawsuit settlement, class members can receive either a cash payment or a gift card. Cash refunds are available to consumers with proof of purchase who return their bed frame to a Mattress Firm store within two years. Refunds will range from $73.98 for twin XL frames to $115.68 for California king frames. Class members who do not return their bed frame can receive a $125 Bed Tech gift card. Payment amounts and gift card amounts may be reduced on a pro rata basis if the number of claims exceeds the $4.9 million settlement fund. The deadline for exclusion and objection is May 4, 2023. The final approval hearing for the settlement is scheduled for July 19, 2023. In order to receive settlement benefits, class members must submit a valid claim form by Aug. 4, 2023. Who's Eligible Consumers who purchased an HR Platform bed frame sold under the Bed Tech brand name with model numbers HR33, HR33XL, HR46, HR50, HR60 or HR66 between April 8, 2015, and April 8, 2021. Potential Award Up to $115.68 cash payment or $125 gift card Proof of Purchase Documentation of purchase is required for refunds. Claim Form NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 08/04/2023 Case Name Payero, et al. v. Mattress Firm Inc., et al., Case No. 7:21-cv-03061-VB, in the U.S. District Court for the Southern District of New York. Final Hearing 07/19/2023 Settlement Website BedTechSettlement.com Claims Administrator Mattress Firm Litigation Settlement RG/2 Claims Administration LLC P.O. Box 59479 Philadelphia, PA 19102-9479 MattressFirmSettlement@rg2claims.com 888-285-2608 Class Counsel Joel D Smith Max S Roberts BURSOR & FISHER PA Defense Counsel Christopher Parkerson John Angeloni CAMPBELL CONROY & O'NEIL PC Nat Clarkson ANDERSON CLARKSON JOHNSON BROWN PLLC [GN] NEW YORK, NY: Butler's Claims on Behalf of Murray and Others Tossed ------------------------------------------------------------------- In the case, SHAQUAN BUTLER; ROBERT L. MURRAY, Plaintiffs v. CITY OF NEW YORK; 15 JOHN DOE C.O.; 2 JOHN DOE CAPT.; 2 JOHN DOE DEPT.; 1 JANE DOE DEPT.; 2 JOHN DOE CHS STAFF, Defendants, Case No. 23-cv-455 (MKV) (S.D.N.Y.), Judge Mary Kay Vyskocil of the U.S. District Court for the Southern District of New York dismisses the Plaintiff's claims on behalf of Robert L. Murray and others. Butler, who is currently detained at the George R. Vierno Center ("GRVC") on Rikers Island, brings this pro se action under 42 U.S.C. Section 1983, alleging that the Defendants used excessive force against him. By order dated Jan. 19, 2023, the Court granted the Plaintiff's request to proceed in forma pauperis ("IFP"), that is, without prepayment of fees. Judge Vyskocil states that the Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. The Court must dismiss a prisoner's IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. It must also dismiss a complaint if the Court lacks subject matter jurisdiction. In the caption of the complaint, Robert L. Murray is also listed as a plaintiff. Additionally, at the top of the form complaint is written, "Plaintiff 2# Class Action." Murray did not sign the complaint and the allegations in the complaint do not pertain to him. Murray also did not submit an IFP application and prisoner authorization in the case. Judge Vyskocil therefore considers Butler as the sole Plaintiff. To the extent that the Plaintiff seeks to bring the action on behalf of Robert L. Murray and others, Judge Vyskocil denies his request. He says the statute governing appearances in federal court, 28 U.S.C. Section 1654, allows two types of representation: that by an attorney admitted to the practice of law by a governmental regulatory body and that by a person representing himself. He therefore dismisses without prejudice any claims the Plaintiff asserts on behalf of Robert L. Murray and others. The Clerk of Court is directed to notify the New York City Department of Correction and the New York City Law Department of the Order. Judge Vyskocil requests that the City of New York waives service of summons. Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying a defendant. In the complaint, the Plaintiff supplies sufficient information to permit the New York City Department of Correction to identify the John and Jane Doe Defendants who he alleges used excessive force against him on Dec. 29, 2022, in the GRVC intake area. Judge Vyskocil therefore orders that the New York City Law Department, which is the attorney for and agent of the New York City Department of Correction, must ascertain the identity and badge number of each John Doe whom the Plaintiff seeks to sue and the addresses where the Defendants may be served. The New York City Law Department must provide this information to the Plaintiff and the Court within 60 days of the date of the Order. Within 30 days of receiving this information, the Plaintiff must file an amended complaint naming the John Doe Defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that the Plaintiff should complete is attached to the order. Once the Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order asking the Defendants to waive service. Lastly, Judge Vyskocil holds that Local Civil Rule 33.2, which requires defendants in certain types of prisoner cases to respond to specific, court-ordered discovery requests, applies to the action. Those discovery requests are available on the Court's website under "Forms" and are titled "Plaintiff's Local Civil Rule 33.2 Interrogatories and Requests for Production of Documents." Within 120 days of service of the complaint, the Defendants must serve responses to these standard discovery requests. In their responses, the Defendants must quote each request verbatim. Based on the foregoing, Judge Vyskocil dismisses the Plaintiff's claims on behalf of Robert L. Murray and others. The Clerk of Court is directed to (i) electronically notify the New York City Department of Correction and the New York City Law Department of the Order. Judge Vyskocil requests that Defendant City of New York waives service of summons; (ii) mail a copy of the Order and the complaint to New York City Law Department at: 100 Church Street, New York, New York 10007; and (iii) mail an information package to the Plaintiff. Local Civil Rule 33.2 applies to the action. Judge Vyskocil certifies under 28 U.S.C. Section 1915(a)(3) that any appeal from his Order would not be taken in good faith and therefore IFP status is denied for the purpose of an appeal. A full-text copy of the Court's April 4, 2023 Order is available at https://tinyurl.com/4abtcywj from Leagle.com. NEW YORK: Groups Pursue Lawsuit To End 'Illegal' Confinement ------------------------------------------------------------ Brendan J. Lyons at timesunion.com reports that the New York Civil Liberties Union and Prisoners' Legal Services filed a petition in state Supreme Court seeking authorization to bring a class-action lawsuit against the Department of Corrections and Community Supervision to stop what the groups allege is the illegal use of solitary confinement in prisons. The lawsuit, which is initially being filed on behalf of two state prison inmates, follows a recent report by the Correctional Association of New York that found there has been repeated violations of the Humane Alternatives to Long-Term Solitary Confinement (HALT) Act, which took effect last year after being signed into law in March 2021 by former Gov. Andrew M. Cuomo. The lawsuit by the NYCLU and Prisoners' Legal Services was filed in Albany and "challenges entrenched practices by which prison officials persist in flouting HALT, subjecting thousands of New Yorkers annually to unlawfully prolonged periods of segregation and other disciplinary confinement in open defiance of the Legislature's express will." It's not the first lawsuit that has been filed against the state challenging the department's segregation practices. In January, the groups filed a lawsuit on behalf of a mentally ill inmate at Coxsackie Correctional Facility who they said had been sentenced to almost three years -- 1,025 days -- of segregation in what's known as a "special housing unit" (SHU). The inmate has been housed in a residential mental health treatment unit and last year was sentenced to the isolation following a series of alleged violations that occurred after he was placed on suicide watch for two weeks That lawsuit noted the "SHU Exclusion Law" bars the department from "imposing additional segregated confinement sanctions" against individuals already placed in mental health treatment units, "unless their conduct both rises to the level of 'exceptional circumstances' and meets key criteria under the HALT Act." The HALT Act limits the placement of someone in segregated confinement to three consecutive days or six days in any 30-day period. The department can exceed those limits and place someone in isolation for up to 15 consecutive days, or 20 days in a 60-day period. But those extensions must follow a hearing to determine if the inmate has committed any of seven specified violations, including facilitating an escape, causing or threatening serious physical injury, compelling someone to engage in a sexual act, inciting a riot or having a deadline weapon that poses a serious threat. "In practice, DOCCS has flouted these durational limits as a matter of course, imposing disciplinary segregated confinement for acts not specified by statute and without making individualized or written determinations that these statutory requirements are met," the lawsuit filed states. The petition alleges the department has adopted a "categorical approach" that results in charges adjudicated in disciplinary hearings qualifying as violating those limited acts "without making the individualized written findings that the conduct was heinous or destructive." "This policy and practice… ensures that, each year, thousands of incarcerated individuals continue to endure extended periods of segregated confinement, as well as other unlawful disciplinary confinement, in excess of the HALT Act's carefully crafted constraints," the petition adds. The petition also notes that the policy has resulted in conduct such as an inmate spitting on a floor leading to segregated confinement "of individuals who have committed infractions that the Legislature did not make eligible for extended segregation or placement in disciplinary confinement." The petition seeking class-action status was filed on behalf of Fuquan Fields and Luis Garcia, two inmates whom the department sentenced to 120 and 730 days of segregated confinement, respectively, based on its segregation policy. Both men have been diagnosed with mental illness. Attorneys for the plaintiffs are seeking class-action status to represent all inmates who are or will be held in solitary confinement beyond three consecutive days or more than six days in a 60-day period. It seeks a court order ending the department's extended segregation policy and requiring it to comply with HALT immediately. The correctional association's recent report described HALT as "a sea change in the philosophical underpinnings of behavior management in prisons," but noted its implementation has met fierce resistance from some state prison staffers who have linked new desegregation policies to an increase in violence. The report, which examined the implementation of the law during a nine-month period last year, found some inmates are being held in isolation in SHUs for "six times the legal limit," and that individuals whose backgrounds prohibit them from being placed in segregation are still being held there. That restricted population includes those aged 21 or younger and 55 or older, or who suffer from mental, medical or physical disabilities. The report also found that individuals being held in "residential rehabilitative units," transitional disciplinary units where they are entitled to six hours of "out of cell" programming and an additional hour of recreation, are often not receiving that assistance -- or it's being delivered while they are in restraints without an evaluation, which is prohibited.[GN] NORFOLK SOUTHERN: Chester City Joins Train Derailment Class Action ------------------------------------------------------------------ weirtondailytimes.com reports that the City of Chester has agreed to join a class action lawsuit with law firm Morgan and Morgan, of Pittsburgh, resulting from the East Palestine train derailment. Chester Council made the decision during its meeting. Their stance cites possible environmental contamination to neighboring communities due to Norfolk Southern's inability to satisfactorily control the chemical release into the air and water with their "controlled burn." According to the law firm's dedicated website to disaster victims, www.forthepeople.com, they allege that the railroad giant was concerned about the cheapest option instead of the safest. While "Norfolk Southern created a $2 million fund to help with evacuation costs (and another) $1,000 (in) individual payments to affected residents of East Palestine," they insist the amount doesn't even come "close enough to pay for the losses that many residents have already experienced or will experience," the website reads. In March, the city of New Cumberland signed on to the class action lawsuit, after their city solicitor suggested it as his firm is partnering with Morgan and Morgan on the case. New Cumberland City Solicitor Kevin Pearl explained at that time that the potential action was similar to the opioid crisis litigation, which could result in funds if a settlement or court ruling is reached in the case; however, he was unable to guarantee when or if that would happen. In other action, council: -- Passed legislation to bid out work for installation of a catch basin on Lycia Avenue before it be paved. -- Agreed to a conditional hire of Jonathan Creese, pending passage of medical screening, polygraph and psychological evaluation as well as acceptance for the schooling to get certification in the June West Virginia police training. He was one of the four remaining candidates who passed the written exam, also qualifying through the physical fitness test portion, explained Police Chief Chuck Stanley. -- Approved police enforcement of a formal loading/unloading area near Westminster Apartments and Chester City Park, after hearing from Dave Smith. -- Accepted receipts totaling $68,520.20 into the general and building funds and paid $79,517,96 in bills for the funds as well. -- Conditionally approved payment of the Biztec bill for access control to the municipal building after verification by the police department and building manager verify all the requested corrections have been made. Municipal Judge Curvis Parkins was on hand to swear in the city's latest full-time police hire, David Polgar. The former Hancock County sheriff's deputy was administered his oath amid some other police-related activity before he was scheduled to hit the road later in the evening. Stanley explained to members that he was the highest performer in the recently administered written civil service exam as well as performing well in the other areas. He already is certified in West Virginia, making him road ready. Council next is scheduled to meet at 5 p.m., May 1, in regular session in their chambers within the Chester Municipal Building. [GN] NULIFE MED: Agrees to Settle Class Suit Over Alleged Data Breach ---------------------------------------------------------------- HIPAA Journal reports that the Manchester, New Hampshire-based medical equipment company, NuLife Med, has agreed to settle a class action lawsuit that was filed in response to a March 2022 data breach that affected more than 80,000 individuals. NuLife Med identified suspicious activity within its computer network on March 11, 2022. The forensic investigation revealed hackers had access to its systems between March 9 and March 11, 2022, during which time data was viewed or exfiltrated. The compromised data included names, addresses, medical information, health insurance information, and in some cases, Social Security numbers, driver's licenses, and financial account/credit card information. A lawsuit was filed in the US District Court for the Southern District of Florida -- Pires, et al. v. NuLife Med LLC -- that alleged NuLife Med was negligent for failing to implement appropriate safeguards to keep patient data private and confidential, which allowed a data breach to occur that was entirely preventable. The lawsuit claimed that the plaintiff, Victor Pires, and similarly situated individuals, suffered an injury as a result of the negligence and incurred out-of-pocket expenses dealing with the data breach. NuLife Med chose to settle the lawsuit to avoid the expense of ongoing litigation and the uncertainty of trial; however, admitted no wrongdoing. The total value of the settlement has not been disclosed. Individuals who received a notification letter from NuLife Med about the data breach are entitled to submit a claim if they can provide documented proof of losses and will receive a check for up to $25. Alternatively, class members can elect to receive one year of credit monitoring services instead. The deadline for submitting a claim is June 20, 2023. The deadline for objection to or exclusion from the settlement is May 16, 2023. The final approval hearing for the settlement has been scheduled for June 5, 2023. [GN] NVR INC: Court Grants Bid to Dismiss Amended Butakis Class Suit --------------------------------------------------------------- In the case, BRYAN BUTAKIS, on behalf of himself and all others similarly situated, Plaintiffs v. NVR, INC., et al., Defendants, Civil Action No. 22-2971 (E.D. Pa.), Judge Eduardo C. Robreno of the U.S. District Court for the Eastern District of Pennsylvania grants the Defendants' motion to dismiss the Plaintiffs' Amended Complaint for failure to state a claim. Plaintiffs Bryan Butakis and Joseph Hillen, on behalf of themselves and all others similarly situated, bring the putative class action against NVR, Inc. and NVR Mortgage Finance Inc. for their alleged fraudulent misrepresentation of the material terms of "Special Assessments," which they agreed to pay as part of their purchases of a newly constructed home at the Greystone community located in West Chester, Pennsylvania. The Plaintiffs' Amended Complaint contains five counts: (I) Violations of the Truth in Lending Act ("TILA"); (II) Violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law; (III) Breach of Contract; (IV) Fraud; and (V) Negligent Misrepresentation. The Greystone is a community of newly constructed homes in West Chester, Pennsylvania. In order to purchase a home, prospective buyers must first reserve a lot. After reserving the lot, prospective buyers are required to make a non-refundable down payment and sign a contract to secure the property. After construction is complete, prospective buyers close on the home, allowing them to take possession. The owners of homes in the Greystone are subject to a Special Assessment that was created by the state legislature pursuant to the Neighborhood Improvement District Act, 73 Pa. Stat. Ann. Section 831 ("NID"). Once paid by the owners, the Special Assessments are then placed into a fund and used for public improvements. The Plaintiffs allege two factual theories relating to the Special Assessment: (1) the Defendants failed to inform prospective buyers that the Special Assessments were subject to interest if not paid in full at the time of closing; and (2) Defendant NVR, Inc. represented that a credit could be applied towards the Special Assessment at closing if Buyers selected NVR Mortgage, an affiliate of NVR, Inc., to finance the purchase. In January 2021, Plaintiffs Butakis and Hillen visited the Greystone's sales office separately and spoke with sales representatives of Defendant NVR, Inc., who explained the features of the homes as well as the fees and costs associated with the purchase of the home. Thereafter, they made a down payment to reserve their respective lots and signed a packet of documents authored by the Defendants, including a one-page document relating to the Special Assessment that stated the total amount owed. According to the Amended Complaint, Plaintiff Butakis, but not Plaintiff Hillen, asked a sales representative of NVR, Inc. if the Special Assessment was subject to interest if not paid in full, and the sales representative responded that the Special Assessment was not subject to interest. After closing, the Plaintiffs learned that their annual payment for the Special Assessment was more than originally represented and requested a schedule of payments related to the Special Assessment. Only after receiving the schedule of payments, the Plaintiffs learned for the first time that the Special Assessment was subject to significant interest. The Plaintiffs claim that they would have not purchased their homes, or would have paid substantially less for the homes, if they had been informed of the additional interest and fees due under the Special Assessment. Both before and after making down payments, the Plaintiffs were informed that they would receive a credit toward closing costs that could be applied toward the Special Assessment if they selected NVR Mortgage as the mortgage company to finance the purchase. They claim that this representation was meant to entice Buyers to select NVR Mortgage. Based on that representation, the Plaintiffs selected NVR Mortgage as their mortgage servicer. After the selection had been made, Mackenzie, an NVR Mortgage representative, informed Plaintiff Butakis (and perhaps Plaintiff Hillen) that he could not use the balance of the credit toward the Special Assessment, contrary to prior representations. The Defendants filed a motion to dismiss for failure to state a claim. In Count I, the Plaintiffs seek injunctive relief and monetary damages for Defendants' alleged violations of the TILA. The Defendants argue that this Count should be dismissed for failure to state a claim because the Special Assessment is not an extension of credit at all, and therefore, no requisite consumer credit transaction occurred. Because the Plaintiffs voluntarily concede their claim under the TILA, Count I is dismissed. Count III is a claim for breach of the Purchase Agreements under two theories, one based on purported express contract terms and the other premised upon a general duty of good faith and fair dealing. Because the Plaintiffs have not identified any express contractual obligation owed by the Defendants that has been breached, the related theory of breach of the implied covenant of good faith and fair dealing also fails. Accordingly, Count III is dismissed. The Plaintiffs bring two claims against the Defendants stemming from fraud, or alternatively, deceptive conduct based on violations of the PA UTPCPL (Count II) and common law fraud in the inducement to enter the Purchase Agreement (Count IV). They also assert a claim for negligent misrepresentation (Count V). Comparing the allegations in the Amended Complaint with those which courts have found sufficient to withstand a motion to dismiss, Judge Robreno finds that the Plaintiffs have plead sufficient allegations that they justifiably relied upon the Defendants misrepresentations and omissions. Moreover, the allegations supporting the Plaintiffs' fraud claim fail to place each Defendant individually on notice of the precise misconduct with which he is charged. As such, the Defendants' motion to dismiss is granted as to Counts II, IV, and V. These counts are dismissed with leave to amend due to the possibility that the Plaintiffs may add additional facts or provide plausible explanations to support a claim for fraud by clarifying which the Defendant is responsible for which representations and/or behavior. Lastly, leave to amend should be freely granted unless there is an apparent reason why it should not be, such as futility of amendment. The Plaintiffs are granted leave to amend Counts II, III, IV, and V. As explained, Judge Robreno grants the Defendants' Motion to Dismiss without leave to amend as to the Plaintiffs' TILA claim (Count I) and breach of contract claim (Count III). He grants the Defendants' Motion to Dismiss with leave to amend as to the Plaintiffs' PA UTPCPL claim (Count II), breach of contract claim (Count III), fraud claim (Count IV), and negligent misrepresentation claim (Count V). An appropriate order follows. A full-text copy of the Court's April 5, 2023 Memorandum is available at https://tinyurl.com/ywpd6a8d from Leagle.com. QUALCOMM: Files Motion for Summary Judgment in Antitrust Class Suit ------------------------------------------------------------------- fosspatents.com reports that class-action lawyers tend to be persistent even when they're losing. They hope until the end that they may get paid. But some large companies--and Qualcomm appears to be one of them--are unwilling to settle for nuisance value. They just defeat them. Coincidentally, Judge Jacqueline Scott Corley of the United States District Court for the Northern District of California presently has two ultra-flimsy class actions piggybacking on FTC lawsuits before her: the one against Qualcomm I'm discussing here, and one over Microsoft-ActivisionBlizzard, which I tweeted about this morning. In January, Judge Corley further narrowed the scope of the Qualcomm action. It's now down to an exclusive-dealing claim (the Qualcomm-Apple agreement that allegedly kept Intel out of the high-end baseband chipset market), and even that one can only be pursued under California state law, not federal law. The class-action lawyers hoped to get access now to Qualcomm's 2019 settlement agreement with Apple--which they haven't seen because discovery closed in 2018--but that's after the class period. Judge Corley held a hearing on February 23, 2023, where she said she was "not inclined to reopen discovery." In my commentary on the last order to dismiss certain claims, I already said that the remainder of the case "will hardly survive summary judgment." Actually, if it was up to Qualcomm's lawyers, it wouldn't even reached the point of a summary judgment: they'd have preferred to defeat the remainder of the case through a motion for judgment on the pleadings. But Judge Corley didn't like that notion, given that the usual purpose of judgment on the pleadings is to obviate the need for discovery--and here, discovery closed years ago ("the record is full"). It's more efficient for the court this way, given that if a judgment on the pleadings was successfully appealed as premature (for failure to consider anything in the record), the case would be remanded and she'd then have to adjudicate a motion for summary judgment. Qualcomm filed its motion for summary judgment: In Re Qualcomm Antitrust Litigation (case no. 3:17-md-2773-JSC, N.D. Cal.): Defendant Qualcomm Incorporated's Motion for Summary Judgment (Redacted) Talking about different types of pretrial motions, large parts of that motion look at first sight like a Daubert motion for taking aim at law professor Elhauge's expert testimony--and quite extensively so. But the argument is not about his testimony being unreliable. It's about relevance to the questions to be decided. The expert testimony was optimized for the original theory, which was that Qualcomm abusively raised standard-essential patent (SEP) royalties to supra-FRAND levels, while the class-action lawyers are now trying to keep the case alive by arguing that Qualcomm's exclusive deal with Apple shut Intel out of the market and thereby made chipsets more expensive. As Qualcomm describes it, the class-action lawyers have "flipp[ed] from arguing that Qualcomm was undercutting competitors on chip prices to arguing that Qualcomm was overcharging OEMs." Here's my favorite sentence from that document: "In short, there are gaping voids where one would expect evidence of causation to be." The problem is even more fundamental than shifting from "undercutting" to "overcharging": until the case got destroyed for the largest part, the class-action lawyers insisted on a holistic perspective and the alleged interdependencies and mutually reinforcing effects of Qualcomm's various practices--all of that for the ultimate goal of arguing that the combination of multiple intertwined aspects of Qualcomm's conduct made SEP licenses more expensive. Qualcomm says in its motion for summary judgment that they can't pursue exclusive dealing as a standalone claim now that it's all that's left in the case (and again, for the avoidance of doubt: even that one is already dead under federal law). At the February 23 hearing, Judge Corley already discussed this problem with the class-action lawyers: "Well, why not file a new lawsuit? I mean, you had a theory, as I understand it. It was all intertwined. It was all intertwined and it was based, in part, on the FRAND theory, which the Ninth Circuit rejected. Okay. I mean, that's just what happened. But that -- you could have pursued -- and maybe you'll tell me and you're going to say that the evidence is there to support the claim, so maybe you did. You could have pursued a separate exclusive dealing theory that was not dependent upon the FRAND, but maybe you chose not to. Okay. That was just a strategic choice." There are four named smartphone customers in the current class. The class-action lawyers could just find some others (on whom the decisions in the present case will not be binding) and bring a new complaint, as Judge Corley also explained at the hearing. In that case they would also get to look at more recent documents, potentially including the 2019 Qualcomm-Apple contracts. For now, the class-action lawyers don't want to give up on whatever little is left of their original case. But I guess Qualcomm's motion will succeed. Will they choose to file a new lawsuit to pursue a standalone exclusive-dealing claim? I doubt it. They know that the FTC--despite support from Apple (the two had a mutual interest agreement in place)--failed to prove that Intel was ready to compete with Qualcomm at the relevant time (and in 2019 Intel even left that market, sold the chipset business to Apple, and Apple still can't make its own baseband processors for the iPhone). A follow-on class action with a standalone exclusive-dealing claim would be doomed to fail as well.[GN] RITE AID: Bid for Lead Plaintiff Appointment Due May 19 ------------------------------------------------------- Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the securities of Rite Aid Corporation ("Rite Aid" or the "Company") (NYSE: RAD) between April 26, 2018 and March 13, 2023, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the Northern District of Ohio and alleges violations of the Securities Exchange Act of 1934. Rite Aid is a national health care service and retail products company. Through Elixir, Rite Aid's pharmacy benefits manager, the Company purports to provide pharmacy benefits and services to over two million members nationwide. Plaintiff alleges that Defendants made materially false and misleading statements throughout the Class Period. Specifically, Plaintiff alleges that Defendants failed to disclose that: (1) until at least June 2019, Rite Aid filled at least hundreds of thousands of unlawful prescriptions for controlled substances that lacked a legitimate medical purpose, including for potentially lethal opioids such as oxycodone and fentanyl; (2) Rite Aid pharmacists filled these prescriptions despite clear "red flags" that indicated that the prescriptions were unlawful; (3) Rite Aid ignored evidence that its stores were dispensing unlawful prescriptions, and intentionally deleted internal notes about suspicious prescribers written by concerned pharmacists; (4) Rite Aid violated the Controlled Substances Act ("CSA") and, where Rite Aid sought reimbursement from federal healthcare programs, also violated the False Claims Act; and (5) as a result, it was at risk of prosecution by federal authorities such as the United States Department of Justice ("DOJ"). On Monday, March 13, 2023, after market hours, the DOJ announced in a press release that it had filed a lawsuit against Rite Aid, intervening in a whistleblower lawsuit brought under the False Claims Act (FCA) against Rite Aid and various subsidiaries. The whistleblower lawsuit alleged that Rite Aid knowingly filled unlawful prescriptions for controlled substances. The DOJ also announced that it was suing Rite Aid for violations of the CSA. On this news, Rite Aid's stock fell $0.62 per share, or 18.9%, to close at $2.66 on March 14, 2023. If you wish to serve as lead plaintiff, you must move the Court no later than May 19, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased or acquired Rite Aid securities, and/or would like to discuss your legal rights and options please visit Rite Aid Corporation Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. ATTORNEY ADVERTISING. (C) 2023 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. Prior results do not guarantee or predict a similar outcome with respect to any future matter. Contact Information: Peter Allocco Bernstein Liebhard LLP https://www.bernlieb.com (212) 951-2030 pallocco@bernlieb.com [GN] ROBINHOOD MARKETS: Bids for Lead Plaintiff Appointment Due June 9 ----------------------------------------------------------------- Klafter Lesser LLP, a highly experienced class action law firm, on April 10 disclosed that it has filed a class action lawsuit, together with Pessah Law Group, PC and Chelin Law Firm, in the United States District Court for the Central District of California, Case No. 2:23-cv-02622, seeking to represent investors who held call options on the Robinhood Trading Platform as of the close on January 27, 2021 to purchase any of the following stocks: American Airlines Group Inc. (NASDAQ: AAL), AMC Entertainment Holdings Inc. (NYSE: AMC), BlackBerry Limited (NYSE: BB), Bed Bath & Beyond Inc. (NASDAQ: BBBY), GameStop Corp. (NYSE: GME), or Nokia Corporation (NYSE: NOK) (the "Affected Options"), sold such options or such options expired, during the period January 28, 2021 through and including February 19, 2021 (the "Class Period"), and thereby suffered a loss. WHAT THIS CASE IS ABOUT: The lawsuit alleges that, on January 28, 2021, Robinhood Markets, Inc. and two of its wholly owned subsidiaries, Robinhood Financial, LLC and Robinhood Securities, LLC (collectively, Robinhood) prohibited purchases of the stocks underlying the Affected Options on its platform and also prohibited purchases or the exercise of the Affected Options, and thereby only allowed the closing out of such positions. The lawsuit further alleges that during the period January 29, 2021, through February 4, 2021, Robinhood imposed significant limits on any such purchases and continued to prevent the exercise of Affected Options on its trading platform. Consequently, the value of the Affected Options dropped dramatically and remained depressed through at least February 19, 2021, and individual retail investors holding Affected Options suffered significant losses. It is alleged that by virtue of these purchase and exercise prohibitions and limitations. Robinhood engaged in market manipulation in violation of Sections 9(a) and 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. §§ 78i(a) and 78(j)(b), and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission (17 C.F.R. § 240.10b-5)). By this lawsuit, Plaintiffs seek to recover damages for those holders of the Affected Options who suffered losses resulting from this alleged market manipulation. THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation Reform Act of 1995 permits any investor who held Affected Options on the Robinhood trading platform as of the close on January 27, 2021, who sold such options, or such options expired, during the Class Period to seek appointment as lead plaintiff in this class action lawsuit. A lead plaintiff is generally the movant with the greatest financials interest in the relief sought by the putative class who is also typical and adequate of the putative class. A lead plaintiff acts on behalf of all other class members in directing a class action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class action lawsuit. Pursuant to the Private Securities Litigation Reform Act of 1995 (15 U.S.C. § 78u-4(a)(3)(A)(i)(II)), if you wish to serve as lead plaintiff, you must move the Court that this action is pending in no later than June 9, 2023. While this action is currently pending in the United States District Court for the Central District of California, it may be transferred and consolidated into the multidistrict litigation, In re January 2021 Short Squeeze Trading Litigation, 1:21-md-02989, pending before the Honorable Cecilia M. Altonaga in the United States District Court for the Southern District of Florida, before whom a securities fraud class action only concerning investors in the stocks listed above (and others) is pending. You can contact the Clerk of the Northern District of California, at 450 Golden Gate Avenue, San Francisco, CA 94102-3489, or by calling (415) 522-2000, to find out if this lawsuit has been transferred to the Southern District of Florida and also for a copy of the Complaint. No class has yet been certified in the above action. Until a class is certified, you are not represented by counsel unless you retain one, but you are not required to retain counsel. You may remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff or retaining counsel at this time. To discuss your rights or interests regarding this class action, you are free to consult counsel of your choosing. You may also contact Nancy Velasquez of the Klafter Lesser LLP law firm at (914) 934-9200 or via email at nancy.velasquez@klafterlesser.com, or Pessah Law Group, PC at (310) 772-2261 or via email at info@pessahgroup.com or Stuart Chelin at (310) 556-9664 or via email at stuart@chelinlaw.com. Klafter Lesser LLP has extensive experience in prosecuting class actions and the founding partners of the firm, who have extensive class action experience, have recovered over $1 billion for the benefit of classes in numerous cases. Please visit our website for more information about the Firm. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact: Jeffrey Klafter KLAFTER LESSER LLP 2 International Drive, Suite 350 Rye Brook, NY 10573 (914) 934-9200 [GN] SAG-AFTRA HEALTH: Settles Health Coverage Class Action for $15-M ---------------------------------------------------------------- Gene Maddaus, writing for Variety, reports that the SAG-AFTRA Health Plan announced on April 10 that it has agreed to pay $15 million to older performers who lost health coverage due to eligibility changes made in 2020. Under a settlement agreement, the health plan will also pay up to $5.6 million over the next eight years to older performers who no longer qualify for coverage. The settlement resolves a class action lawsuit filed in December 2020 by Ed Asner, a former SAG president, and nine other performers. Asner and the other plaintiffs alleged that the plan had discriminated against older members by raising the earnings floor to qualify for health benefits and excluding residuals from the earnings threshold. The plaintiffs said the change forced nearly 12,000 participants off the plan. Asner died in August 2021 at the age of 91 while the case was still pending. The plaintiffs and the health plan announced they had reached an "amicable resolution" of the dispute in a joint press release on April 10. The plaintiffs' attorneys said that the settlement would provide "substantial monetary relief" to the plan participants while avoiding the costs and risks of continued litigation. "The Class Participants who brought this complaint, on behalf of performers who were negatively impacted by the 2020 benefit changes, feel this settlement is a beginning to reestablishing trust and benefits," they said in the release. The trustees of the SAG-AFTRA Health Plan made the eligibility changes and raised premiums to address looming deficits. At the time, production had halted due to the pandemic. The plan was projected to lose $141 million in 2020, $83 million in 2021 and was faced with exhausting its reserves by 2024. But the plaintiffs also argued that the plan's financial woes stemmed from the 2017 merger of the SAG and AFTRA plans, which was the result of the merger of the two unions five years before that. They charged that the trustees had failed to study the financial implications of merging the plans and had not kept members updated on the plan's financial condition after the merger. The settlement includes a provision to formalize the process of disclosing the plan's financial condition to members. The plan will also hire a consultant to advise on further cost-cutting measures that can be undertaken while protecting benefits, according to the release. [GN] STEVEN MCCRAW: Barcenas Class Action Dismissed ----------------------------------------------- In the class action lawsuit captioned as ERASTO ARROYO BARCENAS, et al., v. STEVEN MCCRAW, et al., Case No. 1:22-cv-00397-RP (W.D. Tex.), Hon. Judge Robert Pitman entered an order dismissing as moot the Defendants' motions to dismiss. The Court further ordered that the Plaintiffs' complaint is dismissed without prejudice under Rule 12(e). The Plaintiffs may file an amended complaint, if at all, on or before May 1, 2023, the Court adds. Ultimately, however, the reason why the Court cannot proceed with the Defendants' motions to dismiss is because Plaintiffs' complaint fails to lay out with clear and specific language which legal claims are brought against which the Defendants. Similarly, the claims against Coe and Kinney County allege violations of section 1983, but it is unclear whether those defendants are also liable for the conduct alleged in the previous section. The case is a putative class action challenging the Operation Lone Star (OLS), a program created by the State of Texas that uses state criminal trespass charges to target and arrest undocumented migrants. On April 27, 2022, Plaintiffs filed the instant suit seeking monetary damages as well as injunctive relief that would order Defendants to halt the alleged constitutional violations related to OLS. On June 23, the Plaintiffs amended their complaint, and did so again on June 27, removing a claim for federal preemption. On July 18, 2022, Coe and Kinney County filed a motion to dismiss. (Dkt. 13). Coe and Kinney County argue that Plaintiffs' section 1983 claims fail because they fail to plead any involvement in a Fourth Amendment violation, any reasonable inference that their Sixth Amendment rights are violated, and or any personal involvement from Coe in over-incarceration. A copy of the Court's order dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3o0JCnP at no extra charge.[CC] SUN PHARMACEUTICALS: $75-M Deal in Antitrust Class Suit Gets OK --------------------------------------------------------------- MoginRubin disclosed that U.S. Judge Cynthia M. Rufe of the Eastern District of Pennsylvania has approved a settlement in an antitrust class action brought by direct pharmaceutical purchasers who allege Sun Pharmaceutical Industries Ltd., Taro Pharmaceutical Industries Ltd., and others took part in a scheme to fix generic drug prices. The $75 million agreement was reached with a $20 million limit on any amendments that may be agreed to by the parties. Defendant Sun Pharmaceutical is a multinational company headquartered in Mumbai, India. Defendant drug maker Taro Pharmaceutical, a subsidiary of Alkaloida Chemical Company Zrt., is based in Haifa, Israel. Sun acquired a controlling interest in Taro in 2010. Both companies sell their products internationally. One plaintiff is not without controversy. Rochester Drug Co-Operative, Inc., one of the 10 largest pharmaceutical distributors in the United States, was charged in 2019 by the U.S. Attorney in the Southern District of New York with unlawfully distributing controlled substances oxycodone and fentanyl. The company was hit with a $20 million penalty. The other two plaintiffs are FWK Holdings LLC, the assignee of various claims of bankrupt drug wholesaler, Frank W. Kerr Company, and César Castillo, LLC, which provides distribution and logistics services to large global pharmaceutical, medical device, and consumer goods companies. The three plaintiffs have teamed up before, including in In re: Zetia (Ezetimibe) Antitrust Litigation in which they alleged that Merck & Company, Inc. and generic drug maker Glenmark Pharmaceuticals, Ltd., executed an anticompetitive, anti-consumer pay-for-delay settlement of a patent infringement case. That case was certified then later decertified by the Fourth Circuit U.S. Court of Appeals. FWK has also brought its own antitrust actions, including actions against Allergan, Inc., GlaxoSmithKline, and Takeda Pharmaceutical Company, Ltd. KPH Healthcare Services, Inc. is a national provider of pharmaceutical and health care services. It comprises four divisions: Kinney Drugs, a chain of 100 full-service drug stores located throughout New York and Vermont; HealthDirect Institutional Pharmacy Services, which services long-term care and alternative care needs; ProAct, Inc., a pharmacy benefit management company with sales offices throughout the country and a mail order pharmacy; and Noble Health Services, a specialty pharmacy that dispenses medications used to treat complex and chronic diseases. The class is defined as: "All persons or entities, and their successors and assigns, that directly purchased one or more of the Named Generic Drugs from one or more Defendants in the United States and its territories and possessions, at any time during the period from May 1, 2009 until December 31, 2019. Excluded from the Settlement Class are Defendants and their present and former officers, directors, management, employees, subsidiaries, or affiliates, judicial officers and their personnel, and all governmental entities. Numerosity is satisfied as the settlement class includes more than 700 members geographically dispersed throughout the United States." In Re: Generic Pharmaceuticals Pricing Antitrust Litigation, E.D. Pa., MDL No. 2724. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. [GN] SUN VALLEY PACKING: Pineda Class Suit Dismissed Without Prejudice ----------------------------------------------------------------- In the case, LETICIA PINEDA, on behalf of herself and others similarly situated, Plaintiff v. SUN VALLEY PACKING, L.P., et al., Defendants, Case No. 1:20-cv-00169-ADA-EPG (E.D. Cal.), Judge Ana de Alba of the U.S. District Court for the Eastern District of California grants the parties' stipulation of dismissal and dismisses the matter without prejudice. On Dec. 27, 2019, the Plaintiff filed a first amended putative class action complaint in Fresno County Superior Court, alleging various wage, hour, and other labor-related claims under the California Labor Code as well as a representative action claim for civil penalties under the Private Attorneys General Act of 2004 ("PAGA"). Subsequently, on Jan. 31, 2020, the Defendant removed the case to federal court. On March 7, 2023, the parties filed a stipulation to dismiss the action without prejudice in order to continue litigating the claims through arbitration. On March 16, 2023, in response to an order from the Magistrate Judge, the parties filed supplemental briefing to address the standard for a putative class action dismissal under Diaz v. Tr. Territory of Pac. Islands, 876 F.2d 1401 (9th Cir. 1989). Judge de Alba explains that Rule 23(e) governs the dismissal of class actions, even before class certification has occurred. The Court must determine whether dismissal would prejudice class members due to (1) class members' possible reliance on the filing of the action if they are likely to know of it either because of publicity or other circumstances, (2) lack of adequate time for class members to file other actions, because of a rapidly approaching statute of limitations, (3) any settlement or concession of class interests made by the class representative or counsel in order to further their own interests. Applying the Diaz factors, Judge de Alba concludes that dismissal of the Plaintiff's class claims without prejudice will not harm any putative class members. Regarding the first factor, she agrees there is no evidence of significant news coverage surrounding the case, much less reliance on behalf of the putative class members. Second, dismissal of the action will not extinguish the class members' interest in the claims because the parties will continue to litigate on a class basis in arbitration. Finally, there is no indication that dismissal represents a concession of class member interests. Judge de Alba finds that dismissal of the action without prejudice does not present a risk of prejudice to class members. Therefore, notice to the putative class members is not required. Accordingly, the parties' stipulation of dismissal is granted. The matter is dismissed, without prejudice and with each party to bear its own fees and costs, pursuant to Federal Rule of Procedure 23(e) so that the parties can further litigate the claims in arbitration. The Clerk of the Court is directed to close the case. A full-text copy of the Court's April 4, 2023 Order is available at https://tinyurl.com/eabzbcfw from Leagle.com. TARGET CORP: Bids for Lead Plaintiff Appointment Due May 30 ----------------------------------------------------------- Bernstein Liebhard LLP, a nationally acclaimed investor rights law firm, reminds investors of the deadline to file a lead plaintiff motion in a securities class action lawsuit that has been filed on behalf of investors who purchased or acquired the common stock of Target Corporation ("Target" or the "Company") (NYSE: TGT) between August 18, 2021 and May 17, 2022, inclusive (the "Class Period"). The lawsuit was filed in the United States District Court for the District of Minnesota and alleges violations of the Securities Exchange Act of 1934. Target is a major retailer of five "core" product categories - apparel, food and beverage, essentials and beauty, home, and hardlines. These categories encompass a wide range of merchandise, such as school supplies, furniture, sporting equipment, and televisions. About one third of the products sold by Target are exclusive to the Company through private labels or owned brands. Plaintiff alleges that Defendants made materially false and misleading statements throughout the Class Period. Specifically, Plaintiff alleges that Defendants failed to disclose that: (i) Target's strategy for mitigating supply-chain constraints by over-ordering inventory had severely limited the Company's ability to timely respond to evolving consumer behavior; (ii) as a result, the purported "massive influx of insights" gained from the extraordinary heightened demand during the pandemic could not be leveraged by Target to react to rapidly changing trends; and (iii) as a result of Target's inability to timely react to changes in consumer trends, Target's sales declined and the Company was left with an overabundance of inventory, forcing Target to take large markdowns, and severely impacting the Company's financial results. On the morning of May 18, 2022, Target filed a Form 8-K with the SEC attaching a press release containing the Company's financial and operating results for the first quarter ended April 30, 2022 (the "Q1 2022 Earnings Release"). The Q1 2022 Earnings Release revealed that Target had missed profit estimates widely, with cost of goods sold increasing 10% year over year and operating income declining to $1.3 billion from $2.4 billion in the prior year. In the filing, Target also revealed that its operating margin was "well below expectations, driven primarily by gross margin pressure reflecting actions to reduce excess inventory . . . ." Target further explained that the "gross margin rate reflected higher markdown rates, driven largely by inventory impairments and actions to address lower-than-expected sales in discretionary categories. . . ." On this news, Target's stock price fell $53.67 per share, or nearly 25%, to close at $161.61 per share on May 18, 2022. If you wish to serve as lead plaintiff, you must move the Court no later than May 30, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Your ability to share in any recovery doesn't require that you serve as lead plaintiff. If you choose to take no action, you may remain an absent class member. If you purchased or acquired Target common stock, and/or would like to discuss your legal rights and options please visit Target Corporation Shareholder Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com. Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion for its clients. In addition to representing individual investors, the Firm has been retained by some of the largest public and private pension funds in the country to monitor their assets and pursue litigation on their behalf. As a result of its success litigating hundreds of lawsuits and class actions, the Firm has been named to The National Law Journal's "Plaintiffs' Hot List" thirteen times and listed in The Legal 500 for ten consecutive years. ATTORNEY ADVERTISING. © 2023 Bernstein Liebhard LLP. The law firm responsible for this advertisement is Bernstein Liebhard LLP, 10 East 40th Street, New York, New York 10016, (212) 779-1414. Prior results do not guarantee or predict a similar outcome with respect to any future matter. Contact Information: Peter Allocco Bernstein Liebhard LLP https://www.bernlieb.com (212) 951-2030 pallocco@bernlieb.com [GN] TARGET CORPORATION: Filing of Class Cert Bid Due August 4 --------------------------------------------------------- In the class action lawsuit captioned as TIMOTHY DAVIS v. TARGET CORPORATION, Case No. 2:23-cv-00089-JFM (E.D. Pa.), Hon. Judge Murphy entered an order as follows: 1. All fact and expert discovery shall be completed no later than January 26, 2024. 2. The Plaintiff shall file any motion for class action certification no later than August 4, 2023. 3. The deadline to amend pleadings to add claims or parties is April 17, 2023. 4. The Defendant shall file a response to any motion for class action certification no later than August 18, 2023. 5. Affirmative expert reports in support of a motion for class certification, if any, shall be served no later than June 9, 2023. Responsive expert reports, if any, shall be served no later than July 7, 2023. 6. Affirmative expert reports on any other issues, if any, shall be served no later than December 1, 2023. Responsive expert reports, if any, shall be served no later than December 22, 2023. 7. Motions for summary judgment shall be filed no later than February 15, 2024. 8. Responses shall be filed no later than February 29, 2024. Target Corporation is an American retail corporation headquartered in Minneapolis, Minnesota. It is the eighth largest retailer in the United States, and a component of the S&P 500 Index. The company is one of the largest American-owned private employers in the United States. A copy of the Court's order dated March 28, 2023 is available from PacerMonitor.com at https://bit.ly/3nXLgGG at no extra charge.[CC] TENNESSEE: Hart's Injunctive Relief Request v. Strada May Proceed ----------------------------------------------------------------- In the case, CURTIS DANIEL HART #99510, Plaintiff v. FRANK STRADA, Defendant, Case No. 1:23-cv-00009 (M.D. Tenn.), Judge William L. Campbell, Jr., of the U.S. District Court for the Middle District of Tennessee, Columbia Division, enters an order allowing the Plaintiff's request for injunctive relief from Commissioner Strada in his official capacity to proceed as it relates to this claim only and dismissing all other claims and requests for relief. Hart, an inmate at South Central Correctional Facility (SCCF), filed a pro se civil rights complaint under 42 U.S.C. Section 1983 against Strada, commissioner of the Tennessee Department of Correction (TDOC). The Plaintiff also paid the filing fee. The Complaint is before the Court for initial review under the Prison Litigation Reform Act. Because the Plaintiff is suing a governmental officer, Judge Campbell must review and dismiss the Complaint if it is frivolous or malicious, fails to state a claim, or seeks monetary relief from a defendant who is immune from such relief. And because the Plaintiff is representing himself, the Court must liberally construe the Complaint and hold it to less stringent standards than formal pleadings drafted by lawyers. The Plaintiff alleges that TDOC allows all female inmates and only female inmates, at all of its female facilities, to possess, use, and operate electronic tablets for their enjoyment and convenience. By contrast, TDOC does not allow male inmates to possess or use electronic tablets. On Dec. 15, 2022, the Plaintiff filed a grievance at SCCF requesting that male inmates be allowed to use electronic tablets, and on December 30, he received a response stating, "Any tablet issued to TDOC inmates will be at the discretion and direction of TDOC. Core Civic does not have control over the issuance of tablets." On Jan. 4, 2023, the grievance committee found that access to electronic tablets for male inmates "is a TDOC issue." The Plaintiff appealed, and the SCCF warden responded he doesn't have a tablet either and agreed with supervisor. The Plaintiff appealed again, and on January 12, the TDOC assistant commissioner of prisons responded by concurring with the warden and denying the appeal. Two or three days after the Plaintiff filed the grievance, he was moved to a high security unit without explanation. And not long after that, the Plaintiff was fired from his job without explanation. TDOC Commissioner Strada is a state actor, and liberally construing the Complaint, the Plaintiff asserts violations of federal law in the form of a discrimination claim under Fourteenth Amendment's Equal Protection Clause and a retaliation claim under the First Amendment. As an initial matter, Judge Campbell notes that the Plaintiff claims to bring the case on behalf of all other inmates similarly situated in the TDOC. But the Plaintiff, as a pro se prisoner, cannot represent the interests of other inmates. And he does not expressly request to be appointed counsel or to have the case certified as a class action. Accordingly, the Plaintiff's claims are limited to alleged violations of his own constitutional rights. As for the Defendants, in addition to Commissioner Strada, the Plaintiff names a Defendant as "all unknown/named TDOC, and/or Core Civic employees." But that is not a proper Defendant, according to Judge Campbell, as a collection of employees at a correctional facility, considered as a group, is not a 'person' for the purpose of Section 1983. To sue a TDOC or CoreCivic employee, the Plaintiff must identify that employee by name; if he does not know the name of a particular TDOC or CoreCivic employee who he believes violated his rights, then he may name that individual as a Defendant using the placeholder "John Doe" or "Jane Doe." Regardless, however, Commissioner Strada is the only properly named Defendant at this time. Turning to the substance of the Complaint, Judge Campbell finds that the Plaintiff cannot recover money damages from Commissioner Strada in his official capacity because the TDOC is an agency of the state of Tennessee that is entitled to Eleventh Amendment immunity from suit for damages. However, he may pursue his request for prospective relief to address an allegedly ongoing violation of federal law against TDOC Commissioner Strada in his official capacity. Finally, the Plaintiff requests injunctive relief barring TDOC officials from retaliating against him but this request addresses alleged instances of retaliation that occurred in the past rather than ongoing violations of federal law, so the Plaintiff cannot proceed with a retaliation claim against Strada under the Ex Parte Young framework. He, therefore, fails to state a retaliation claim at this time. If the Plaintiff would like to pursue this retaliation claim going forward, he must file an amended complaint that names a Defendant who was personally involved in the alleged adverse actions. For these reasons, Judge Campbell concludes that the Plaintiff states a non-frivolous equal protection claim based on TDOC's alleged policy of facially classifying inmates by gender when determining inmates' eligibility to access and use electronic tablets. The Plaintiff may proceed with his request for injunctive relief from Commissioner Strada in his official capacity as it relates to this claim only. All other claims and requests for relief are dismissed. Judge Campbell's determination that the Complaint states a colorable claim for purposes of this initial screening does not preclude the Defendant from filing a motion to dismiss any claim under Federal Rule of Civil Procedure 12. The case is referred to the Magistrate Judge to oversee service of process, enter a scheduling order for the management of the case, dispose or recommend disposition of any pretrial motions under 28 U.S.C. Sections 636(b)(1)(A) and (B), and conduct further proceedings, if necessary, under Rule 72 of the Federal Rules of Civil Procedure and the Local Rules of Court. The only Defendant is TDOC Commissioner Frank Strada. The Plaintiff must ensure that Commissioner Strada is served with summons and the Complaint. The Clerk is directed to send the Plaintiff a service packet (a blank summons and USM 285 form) and the Court's Information Sheet for pro se prisoners titled "Service of Process in Civil Rights Cases." The Plaintiff must complete this service packet and return it to the Clerk's Office within 30 DAYS of the date the Order is entered on the docket. To return a completed service packet in person or by mail, the Court's address is: U.S. District Court for the Middle District of Tennessee, 719 Church Street, Nashville, TN 37203. Upon return of the completed service packet, process will be issued. Failure to return a completed service packet by the deadline could lead to dismissal of the case, but the Plaintiff may request more time to comply with the Order, if necessary. Also, the case may be dismissed if the Plaintiff fails to notify the Clerk's Office of any change in address. A full-text copy of the Court's April 4, 2023 Memorandum & Order is available at https://tinyurl.com/2p8fnmmn from Leagle.com. TESLA INC: Faces Class Action Over Customers' Privacy Violations ---------------------------------------------------------------- Jaelyn Campbell, writing for CBTNews, reports that a California Tesla owner filed a prospective class action lawsuit against the EV manufacturer, accusing it of violating its customers' privacy. On April 6, 2023, the lawsuit in the U.S. District Court for the Northern District of California revealed that groups of Tesla employees occasionally communicated extremely intrusive videos and photos taken by customers' car cameras between 2019 and 2022 over an internal messaging system. Henry Yeh, a resident of San Francisco and owner of a Model Y, filed the case. Which he claims that Teslas personnel had access to the pictures and videos for their "tasteless and tortious entertainment" and "the humiliation of those secretly recorded." Jack Fitzgerald, an attorney for Yeh, said: "As anyone would be, Mr. Yeh is outraged. Especially, at the idea that Tesla's cameras can be used to violate his family's privacy. Which the California Constitution strictly protects." He adds, "Tesla should be held accountable for these intrusions and for misleading him and other Tesla owners about its inadequate privacy standards." According to the complaint, members of the potential class action would have just purchased or leased a Tesla vehicle. Meanwhile, the action of the Tesla employees has been deemed as "particularly heinous" and "highly offensive." On the other hand, A former worker noted that some of Tesla's employees claimed to have observed customers "doing laundry and really intimate things." Adding, "We could see their children." Which, the complaint stated one of the most fundamental liberty rights that society recognizes is parents' interest in their children's privacy. Ultimately, the lawsuit requests the court "recover actual and punitive damages" and "urge Tesla from engaging in its wrongful behavior, including violating the privacy of customers and others." [GN] THAILAND: Civic Groups File Pollution Class Suit v. PM, NEB, SEC ---------------------------------------------------------------- Thai PBS World reports that representatives of civic groups in Thailand's Chiang Mai province filed class action lawsuits with the Provincial Administrative Court on April 10 against Prime Minister Prayut Chan-o-cha, the National Environment Board (NEB) and the Securities Exchange Commission (SEC) for their alleged failure to enforce the laws to tackle PM2.5 pollution, which has been threatening the livelihoods and health of the people in northern provinces. Sumitchai Hatthasan, director of the Centre for the Protection and Revival of Local Community Rights, said that Section 9 of the Enhancement and Conservation of the National Environmental Quality Act gives full power to the prime minister to solve environmental problems, but he has never invoked this law. Dr. Rungsrit Kanjanavanit, an oncology specialist at the Faculty of Medicines of Chiang Mai University, said that people in Chiang Mai have been living with PM2.5 dust levels of over 50 microns for a long time and are at risk of suffering from epidermal growth factor receptor (EGFR) positive lung cancer, heart diseases and stroke. "We want to see changes in the government's policy and determination to protect the people in general, instead of the industries," said Dr. Rungsrit. Chatchawan Thongdeelert, of Chiang Mai Breathe Council, said that people in the province have to live with the PM2.5 pollution, which is getting worse every year, adding that the government must have both long and short-term measures to deal with the problems caused by forest and maize waste fires. The groups read a statement about the air pollution in northern provinces and the health impacts it has which, they claim, have affected more than two million people this year. The regulators, said the group, have the duty, including extraterritorial obligations, to set rules and conditions regarding the filing of reports on encompassing information in a "56-1 One Report" about supply chain, concerning the sources of transboundary PM2.5 pollution. [GN] TIAA BANK: Class Settlement in DeSimone Suit Wins Prelim. Approval ------------------------------------------------------------------ In the case, NICHOLAS DeSIMONE, PATRICK GARDNER, MOHAMMAD HUSSAIN, PAUL MALSTROM, STEPHEN GALLAGHER, CRAIG PALADEAU, CORY BENNER, and all others similarly situated, Plaintiffs v. TIAA BANK, FSB, f/k/a EVERBANK FINANCIAL CORP., Defendant, Case No. 20-CV-6492 (BCM) (S.D.N.Y.), Magistrate Judge Barbara Moses of the U.S. District Court for the Southern District of New York grants the Plaintiffs' unopposed Motion for Preliminary Approval of Class and Collective Action Settlement. Judge Moses has carefully reviewed the papers submitted in connection with the Motion for Preliminary Approval. She finds that the Agreement was negotiated at arm's length by counsel experienced in the prosecution of wage and hour class and collective actions and is not collusive. She further finds that the proposed settlement consideration is within the range of possible approval as fair, reasonable, and adequate pursuant to Fed. R. Civ. P. 23(e), such that notice to the Class is appropriate. For settlement purposes only, Judge Baker provisionally certifies the following state law classes pursuant to Fed. R. Civ. P. 23(e): a. New York: individuals who were employed for at least one day in a Covered Position in the State of New York from Feb. 22, 2013, through April 30, 2019. b. New Jersey: individuals who were employed for at least one day in a Covered Position in the State of New Jersey from Feb. 22, 2017, through April 30, 2019. c. California: individuals who were employed for at least one day in a Covered Position in the State of California from Aug. 14, 2016, through April 30, 2019. d. Maryland: individuals who were employed for at least one day in a Covered Position in the State of Maryland from Aug. 14, 2017, through April 30, 2019. e. Pennsylvania: individuals who were employed for at least one day in a Covered Position in the State of Pennsylvania from Oct. 20, 2017, through April 30, 2019. f. Washington: individuals who were employed for at least one day in a Covered Position in the State of Washington from Oct. 20, 2017, through April 30, 2019. g. Oregon: individuals who were employed for at least one day in a Covered Position in the State of Oregon from Oct. 20, 2014, through April 30, 2019. Judge Baker appointed (i) Named Plaintiffs Nicholas DeSimone, Patrick Gardner, Mohammad Hussain, Paul Malstrom, Stephen Gallagher, Craig Paladeau, and Cory Benner as the Representatives of the Class; (ii) Justin L. Swidler of Swartz Swidler, LLC, Robert D. Soloff of Robert D. Soloff, P.A., Marc A. Silverman of Frank, Weinberg & Black, P.L., and Carly Meredith of Meredith Malatino Law LLC as the Class Counsel; and (iii) Angeion Group as the Settlement Administrator. The Judge approves the Notices of Proposed Settlement of Class Action Lawsuit and Fairness Hearing and directs their distribution to the Class Members and Collective Action Members, respectively, within 30 days of entry of the Order. Judge Baker sets the following settlement schedule: a. Promptly following the entry of this Order, the Settlement Administrator will prepare final versions of the Notices. b. Within 10 days of the date of the Order (no later than April 14, 2023), the counsel for the Defendant will provide the Settlement Administrator with the Plaintiff and Class Member Information List in electronic form. c. Within 20 days of the date of the Order (no later than April 24, 2023), the Settlement Administrator will mail the Class Notice and its attachments to all Class Members, will mail the Collective Notice and its attachments to all Collective Members, and thereafter will comply with the requirements of Ag. Sections 2.5(B), 2.5(E) regarding returned Notices, the mailing of Notices to the Class Members who contact the Settlement Administrator, and notification of any returned Notices. d. The period within which Class Members may opt out of the Class and the settlement and within which Class Members and Collective Action members may submit written objections to the settlement, will end 30 days after the Settlement Administrator has mailed the Notices, except for Class Members whose first mailing was returned to the Claims Administrator as undeliverable, who will be allowed to opt out or object up to 30 days from the date of the second mailing, but no later than 60 days from the date of the Order. e. Within three business days after the end of the Opt-out Period, the Claims Administrator will send a zipped file to the Defendant's counsel and the Class Counsel containing all objections and Opt-out Statements it received. Within three business days thereafter, the Class Counsel will promptly file, with the Clerk of Court, a list of the names of Collective Action Members and Class Members who submitted timely objections. f. The last day for defendant to cancel the settlement, if more than 3% of the Class Members (or a number of Class Members whose Settlement Awards, in the aggregate, total 3% or more of the Net Settlement Fund) opt out, is 14 days after the Claims Administrator has sent the zipped file to the Defendant's counsel and the Class Counsel containing all objections and Opt-out Statements received. g. At least 15 days prior to the Fairness Hearing (no later than July 17, 2023), the Representative Plaintiffs will file a motion for final approval of the settlement, including the Class Counsel's application for attorneys' fees and costs and all supporting materials. h. The Fairness Hearing will take place on Aug. 1, 2023, at 11:00 a.m., in Courtroom 20A of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, NY 10007. A full-text copy of the Court's April 4, 2023 Order is available at https://tinyurl.com/mr46mzcy from Leagle.com. TMX FINANCE: Merritt Files Suit in Ga. Super. Ct. ------------------------------------------------- A class action lawsuit has been filed against TMX Finance Corporate Services, Inc., et al. The case is styled as Christopher Merritt and Von King, individually and on behalf of all others similarly situated v. TMX Finance Corporate Services, Inc and TMX Finance, LLC d/b/a "TitleMax", Case No. 4:23-cv-00084-WTM-CLR (Ga. Super. Ct., Chatham Cty., April 6, 2023). The case type is stated as "Other Tort." TMX Finance Corporate Services, Inc. -- https://www.tmxfinancefamily.com/ -- provides consumer credit products.[BN] The Plaintiff appears pro se. TMX FINANCE: Ritter Files Suit in S.D. Georgia ---------------------------------------------- A class action lawsuit has been filed against TMX Finance Corporate Services, Inc. The case is styled as Kelli Ritter, individually and on behalf of all others similarly situated v. TMX Finance Corporate Services, Inc., TMX Finance LLC doing business as: TitleMax doing business as: TitleBucks doing business as: InstaLoan, Case No. 4:23-cv-00084-WTM-CLR (S.D. Ga., April 5, 2023). The nature of suit is stated as Other P.I. for Personal Injury. TMX Finance Corporate Services, Inc. -- https://www.tmxfinancefamily.com/ -- provides consumer credit products.[BN] The Plaintiff is represented by: Amy C. Daugherty, Esq. THE FINLEY FIRM 200 13th St. Columbus, GA 31901 Phone: (706) 322-6226 Email: adaugherty@thefinleyfirm.com TOYOTA MOTORS: Class Action Suit Alleges RAV4 Defective Roof Rails ------------------------------------------------------------------ Toyota roof rails class action lawsuit overview: Who: Todd and Judith Fishkind filed a class action lawsuit against Toyota Motor Sales U.S.A Inc. Why: The Fishkind's claim Toyota manufactured and sold model year 2019-2021 Toyota RAV4 vehicles that were equipped with defective roof rails. Where: The class action lawsuit was filed in California federal court. What are my options: CarShield provides vehicle service protection to brands like Toyota. Toyota manufactured and sold model year 2019-2021 Toyota RAV4 vehicles equipped with defective roof rails that can ultimately render them inoperable, a new class action lawsuit alleges. Plaintiffs Todd and Judith Fishkind claim the alleged roof rail defect allows water to leak into the vehicle, including its dashboard area, causing electrical components to "malfunction without warning." "Numerous owners of Class Vehicles have reported to the National Highway Traffic Safety Administration that this water leak has caused an electrical malfunction in their vehicle, rendering it inoperable," the Toyota class action states. The Fishkind's argue Toyota knew about the alleged defect as early as 2019, but chose to wait until September 2021 to remedy the issue and has since chosen to hide the design change from the public. "Unfortunately, and despite its purported commitment to customer satisfaction and safety, Toyota concealed this design change," the Toyota class action states. The Fishkind's want to represent a nationwide class and North Carolina subclass of all persons who have purchased and/or leased a model year 2019-2021 Toyota RAV4 vehicle. Toyota is accused of unjust enrichment, fraudulent concealment, and breach of implied warranty of merchantability, and of violating the North Carolina Unfair and Deceptive Trade Practices Act and the Magnuson-Moss Warranty Act. Plaintiff is demanding a jury trial and requesting class certification along with an award of actual, compensatory, general, special, incidental, statutory, punitive, and consequential damages for themselves and all class members. In December, a federal judge in New York granted final approval to a class action settlement agreed to by Toyota to resolve claims the automaker manufactured and sold vehicles with a fuel pump defect it allegedly failed to disclose or cover by warranty. The plaintiffs are represented by Rebecca A. Peterson of Lockridge Grindal Nauen P.L.L.P, Simon Bahne Paris and Patrick Howard of Saltz, Mongeluzzi, & Bendesky, P.C., Daniel E. Gustafson and Karla M. Gluek of Gustafson Gluek PLLC, E. Powell Miller and Dennis A. Lienhardt, Jr. of The Miller Law Firm, P.C., and Christopher D. Moon and Kevin O. Moon of Moon Law APC. The Toyota roof rails class action lawsuit is Fishkind, et al. v. Toyota Motor Sales U.S.A. Inc., et al., Case No. 2:23-cv-02279, in the U.S. District Court for the Central District of California.[GN] UMZU LLC: Hedges Files ADA Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against UMZU LLC. The case is styled as Donna Hedges, on behalf of herself and all other persons similarly situated v. UMZU LLC, Case No. 1:23-cv-02902 (S.D.N.Y., April 6, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. UMZU -- https://umzu.com/is a natural products company based in Boulder, CO that creates products that work with your body to help it heal itself.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18th Street, Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: nyjg@aol.com michael@gottlieb.legal UNITED STATES: Air Force Discrimination Class Action Can Proceed ---------------------------------------------------------------- Rachel S. Cochen, writing for Air Force Times, reports that an equal-opportunity complaint alleging that the Air Force discriminated against its deaf and hard-of-hearing civilian employees will move forward as a class-action case, a federal appellate office ruled April 5. The decision is a win for Air Force employees who say the service failed to provide the tools they need at work, like American Sign Language interpreters, real-time captioning equipment and videophones. The Equal Employment Opportunity Commission complaint could ultimately lead to a smoother process by which deaf and hard-of-hearing employees can obtain that help, and more accessibility features like closed captioning in training videos. "Our clients and the other Deaf civilians they represent are hard-working and incredibly capable people, and all they have asked for are the basic accommodations they need to do their jobs," Sean Betouliere, an attorney for the Disability Rights Advocates group, and class counsel Wendy Musell, said in a release on April 10. "Employers with far fewer resources than the Air Force regularly provide such accommodations, but the Air Force's process for accommodating Deaf applicants and employees is profoundly broken," the release said. "The EEOC correctly recognized that these systemic problems require a systemic fix, and we are looking forward to continuing to fight for that necessary change." Sarah Weimer, a former labor and employment attorney for the Air Force Warfare Center at Nellis Air Force Base, Nevada, began the initial complaint in January 2020. Weimer alleged that most of her requests for interpreters had been "denied, unfilled, or simply gone unanswered," the ruling said. "There were instances when her supervisors contacted headquarters to obtain her accommodations but did not receive responses." On at least two occasions in the past three years, Weimer couldn't finish her required training videos because they weren't captioned, the ruling said. Transcribing the videos was not "sustainable, effective or efficient," it added. "The Air Force repeatedly failed to provide me with ASL interpreters or [Communication Access Realtime Services], and I went almost a year without a working videophone, meaning that I could not even make or receive phone calls," Weimer said in the release. "Two other deaf employees at my base went over five years without videophones despite repeated requests." Those problems are "persistent . . . across virtually all installations," said Kendra Shock, who previously served as the Air Force's top disability program manager, according to the April 5 ruling. The EEOC allowed Weimer's complaint to become a class action in October, a move the Air Force appealed to the Office of Federal Operations. The office acts as an appellate court for EEOC rulings. Because of the latest ruling, members of the class can include any deaf people who worked for or applied to jobs in the Department of the Air Force since Jan. 1, 2018, and found it difficult to secure reasonable accommodations at work. At least 700 employees and applicants nationwide comprise the class, according to lawyers Betouliere and Musell. That number could grow by thousands: An Air Force legal brief said it had nearly 2,600 civilian employees who identified as deaf or hard of hearing, according to the Office of Federal Operations. Weimer alleged that the service had provided ASL interpretation just 152 times to hundreds of deaf employees since 2018. She argued that managers within the Air Force did not budget for those accommodations, in part because the process of carving out money for those services was onerous. The ruling said that "requests often had to be elevated to the [major command] or higher headquarters, which created delays in providing accommodations." Shock, the former disability program official, testified that she "frequently attempted to raise a centralized process," according to the ruling. She said one-quarter of Air Force installations don't have a designated disability program manager. The Air Force agreed that it lacked enough staff to run its disability program in recent years, the ruling said. Three full-time employees were in charge of processing requests for disability accommodations, plus 85 staffers who handled those duties on top of other full-time jobs, the ruling noted. It also acknowledged that neither mandatory employee training sessions nor internal videos were consistently captioned. The federal government ended a General Services Administration contract to provide live captioning to those who need it, a centralized option known as Federal Relay, in February 2022. Now federal agencies must seek out that help on their own. The Air Force "was aware of complications with connecting videophones and captioned telephones since 2018, and rather than addressing the complications in a unified way, they were handled on a case-by-case basis," the ruling said. "In many instances, the issues were never resolved." An Air Force spokesperson did not immediately respond to a request for comment on April 10. The class complaint will return to the EEOC's district office in Los Angeles, and an administrative judge will continue to probe the allegations. Class members may also bring their grievances to federal court. [GN] UNITED STATES: Camp Lejeune Attorneys File Consolidation Request ---------------------------------------------------------------- Ronald V. Miller, Jr., writing for Lawsuit Information Center, reports that Camp Lejeune lawyers have joined with the government's attorneys to file a joint memorandum requesting coordination or partial consolidation and the issuance of an initial case management order for all Camp Lejeune Justice Act of 2022 lawsuits. If this motion is granted, there will technically not be a Camp Lejuene class action lawsuit. But consolidation would bring many of the features of a class action lawsuit. Background to Motion to Consolidate Camp Lejeune Lawsuits The Camp Lejeune Justice Act (CLJA), enacted on August 10, 2022, has led to lawsuits filed by individuals exposed to contaminated water at Camp Lejeune, North Carolina, between August 1, 1953, and December 31, 1987. The Act, part of the Honoring Our PACT Act, allows individuals, including veterans, to seek relief for harm caused by exposure to contaminated water even though the statute of limitations on these claims has already passed. According to reports, approximately 5,000 claims were filed by September 2022, 6,000 by October 2022, and 20,000 by February 2023. None of these administrative claims had been fully adjudicated. However, by February 27, 2023, 158 CLJA claims had been filed in court, increasing to 179 by March 6, 2023, surpassing 200. Plaintiffs in the case include current or former U.S. Marine service members or individuals who claim they were exposed to the contaminated water at Camp Lejeune. They allege various illnesses, including leukemia, bladder cancer, kidney cancer, Parkinson's disease, and kidney disease, were caused by exposure to the toxic water. This is not the first effort at a "sort of" Camp Lejeune class action lawsuit. In September 2022, a North Carolina court declined a motion to consolidate the Camp Lejeune lawsuits. But that motion concerned claims submitted too early (in the court's estimation, anyway) before completing the mandatory administrative remedies stipulated by the Act. When that motion was denied, our lawyers pointed out that we do not need a Camp Lejuene class action lawsuit, but some consolidation would be necessary to get to water contamination settlements for victims. The Motion As tens of thousands of individuals may become eligible to file claims under the CLJA in the coming weeks and months, the parties argue that these proceedings are suitable for coordination or partial consolidation. They highlight that the litigation will involve common, overlapping, or related issues of fact or law. The coordination or consolidation of cases would generate efficiencies for both the parties and the court. The parties request an initial case management order to preliminarily coordinate these proceedings and seek proposals for further organization and progression. They have filed identical motions in cases pending before each judge in the District, suggesting that coordination would allow the Court flexibility in managing discovery and providing consistent legal rulings for claims brought under the new statute. Moreover, the parties have proposed that docket management matters be coordinated or consolidated. They have requested the creation of a master docket for filings pertaining to all actions in this litigation, which would save time and expense. Given the potential for hundreds or thousands of plaintiffs to file claims, the court may consider using a census or registry process to manage mass claims and select bellwether cases for more extensive discovery and trial. The Goal of Camp Lejeune Settlements Lawyers for Camp Lejuene plaintiffs are looking creatively at what are sure to be alternative dispute resolution methods to find a path for settlement payouts for victims. This includes discussions with the Department of Justice to develop creative and innovative methods for resolving these claims without replacing litigation as an option. Coordination of discovery facilities settlement. The parties point out in their motion that similar coordination was done effectively in other large-scale cases, such as the In re: NC Swine Farm Nuisance Litigation, which involved approximately 500 individual plaintiffs grouped into 26 lawsuits. This approach helped avoid submitting a single defendant to multiple fronts of incoming discovery from multiple claimants without chaos. So the parties argue that adopting a coordinated or consolidated approach in the Camp Lejeune case could help to conserve the resources of the court and the parties alike while reducing the burden encountered by the single defendant in litigating these claims. What a "Camp Lejeune Class Action Lawsuit" Means to You People who suffer serious injuries or are bringing a class action lawsuit often have an allergic reaction to being in a class action. They equate a class action lawsuit to a consumer class action with inadequate compensation. In many class action lawsuits, the individual compensation for each member may be small, mainly when the settlement is divided among many plaintiffs. Class action suits are also associated with a long path to settlement. The process of certifying a class and reaching a settlement or verdict can be lengthy and complex, sometimes taking years to resolve. This can delay the case's resolution and prolong the plaintiffs' suffering. These concerns should not apply here. First, the Camp Lejeune class action lawsuit will not be, under any scenario, a traditional class action. The focus is on full or partial consolidation of the lawsuits. Everyone maintains their claims and all of the nuances of those claims. But the reality is that the administration of Camp Lejeune lawsuits and administrative claims will be a circus without some order in the process. That order is more likely to make Camp Lejeune settlements happen sooner rather than later. This is the goal of everyone involved, including the government. Contact Our Camp Lejeune Attorneys for Your Claim We believe Congress wants Camp Lejeune water contamination victims to receive fair settlement amounts for their suffering. Our Camp Lejeune lawyers are offering legal assistance to individuals who were harmed by exposure to Camp Lejeune water using the following criteria: Active duty, reserve, and National Guard members who served at Camp Lejeune for at least 30 cumulative days between August 1, 1953, and December 31, 1987, or family members of veterans who lived at Camp Lejeune for at least 30 cumulative days during the same period. You were subsequently diagnosed with Parkinson's disease, liver cancer, esophageal cancer, lung cancer, bladder cancer, kidney cancer, breast cancer, leukemia, non-Hodgkin lymphoma, and many other illnesses. Contact our Camp Lejeune lawyers today for a free consultation at 800-553-8082 or get a free no-obligation online consultation. Our attorneys only get paid if we get settlement compensation or a jury payout for you. [GN] UNITED STATES: D.C. Court Dismisses Johnson v. Sec. Becerra of HHS ------------------------------------------------------------------ In the case, CATHERINE JOHNSON, et al., Plaintiffs v. XAVIER BECERRA, in his official capacity as Secretary of Health and Human Services, Defendant, Case No. 1:22-cv-03024 (TNM) (D.D.C.), Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia grants the Becerra's motion to dismiss. Medicare reimburses private agencies that care for eligible aged and disabled persons. The Centers for Medicare & Medicaid Services (CMS), a component of Health and Human Services (HHS), administers this health insurance program. Medicare covers some services that are provided in the home by participating home health agencies. Under the Medicare statute, the Secretary has the "duty and responsibility" to "assure" that "he enforcement of such conditions and requirements are adequate to protect the health and safety of individuals under the care of an home health agencies (HHAs) and to promote the effective and efficient use of public moneys. CMS has the concomitant responsibility to terminate agreements with HHAs that fail to comply with the conditions and requirements of participation. The individual Plaintiffs in this putative class action are Medicare beneficiaries with chronic, disabling conditions. Though Medicare covers their aide services, they have struggled to find providers willing or able to provide those services. The Plaintiffs suffer deteriorating health during times of intermittent care. And, unable to obtain needed services at home, they have been forced to resort to institutional settings, such as hospitals or nursing homes, to obtain care. The Plaintiffs sued the Secretary for his role in administering Medicare's home health benefit, and later moved for class certification. First, they allege that various of the Secretary's policies and practices impede and restrict the availability and accessibility of Medicare-covered home health aide services. This, they claim, violates the Secretary's statutory duty to oversee and enforce the Medicare Conditions of Participation and requirements. Second, the Plaintiffs allege that the Secretary's policies and practices discriminate against the Plaintiffs on the basis of disability" in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794(a). They argue the Secretary is violating Section 504 and its implementing regulations by administering Medicare in a way that risks unnecessary institutionalization of beneficiaries with chronic conditions. The Secretary now moves to dismiss all claims and the Court held a hearing on that motion. He argues that the Court lacks subject matter jurisdiction and alternatively that the Plaintiffs fail to state a claim. Judge McFadden agrees that the Plaintiffs have at minimum failed to plausibly allege redressability. Thus, they lack standing to sue. He opines that the Plaintiffs have alleged no facts suggesting that it is likely, as opposed to merely speculative, that HHAs would behave any differently with respect to aide services if they prevail. While the Secretary's policies might have contributed to an HHA's decision not to provide aide services, so, too, might Medicare's reimbursement scheme and labor market. The Plaintiffs concede that the shortage of aide care is longstanding, that it is "a complex situation," and that there are multiple factors at work. And when conjecture is necessary, redressability is lacking. Furthermore, Judge McFadden opines that it is purely speculative that a decision in the Plaintiffs' favor would meaningfully alter the economic calculus by which HHAs determine whether to offer aide services. Where predictions are so uncertain, he says the Court is prohibited from finding standing. For these reasons, Judge McFadden concludes that the Plaintiffs lack Article III standing and grants the Secretary's motion to dismiss. A separate Order will be issued. A full-text copy of the Court's April 5, 2023 Memorandum Opinion is available at https://tinyurl.com/5abtwtbm from Leagle.com. UNIVERSITY OF DELAWARE: Griffin Files Suit in D. Delaware --------------------------------------------------------- A class action lawsuit has been filed against University of Delaware. The case is styled as Sean Griffin, individually and on behalf of all others similarly situated v. University of Delaware, Case No. 1:23-cv-00385-UNA (D. Del., April 5, 2023). The nature of suit is stated as Other P.I. 9five -- https://9five.com/ -- is a luxury eyewear brand that has taken the fashion world by storm with its exquisite designs and premium materials.[BN] The Plaintiff is represented by: Robert J. Kriner, Jr., Esq. Scott M. Tucker, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP 2711 Centerville Road, Suite 201 Wilmington, DE 19808 Phone: (302) 656-2500 Fax: (302) 656-9053 Email: rjk@chimicles.com scotttucker@chimicles.com - and - Christopher Page Simon Michael Louis Vild CROSS & SIMON, LLC 1105 North Market Street, Suite 901 Wilmington, DE 19801 Phone: (302) 777-4200 Email: csimon@crosslaw.com mvild@crosslaw.com VISION SOLAR: Customers Sue Over Deceptive Business Practices ------------------------------------------------------------- Danielle DaRos, writing for CBS12, reports that citing evidence from CBS12 News I-Team stories, customers across the country have filed a class action lawsuit against Vision Solar, accusing the national solar power company of deceptive business practices. In February, the I-Team reported that Vision Solar has been signing customers up for expensive solar panel projects and promising savings on their energy bills. In many cases, the company failed to take out the proper permits, installed solar projects illegally, and walked away from the job without activating the panels. The customer we interviewed, Estela Padilla, is mentioned in a class action lawsuit filed this week by a law firm in Connecticut. The class action suit has been brought by 18 plaintiffs. Most of the plaintiffs are from Florida, including another customer the I-Team interviewed, Christopher Underwood. There are common accusations among the 18 plaintiffs: that Vision Solar promised to obtain the necessary permits, misrepresented the value of the tax credits customers would be eligible for, and employed aggressive and deceptive sales tactics to induce customers to sign contracts. Several of the plaintiffs allege the company damaged their properties during the installation process. The lawsuit alleges Vision Solar "deliberately target[ed] populations Vision Solar believed would be vulnerable to undue influence, such as low-income areas and retirement communities," and violated Florida's Deceptive and Unfair Trade Practices Act. Ian Sloss, lawyer from Silver Golub & Teitell, filed the suit after hearing months of complaints from Vision Solar customers across the country. "The company cares about its own profits and revenue above all else," Sloss told the I-Team. "Their attitude is once the panels are on your roof, they're your problem, not theirs." The lawsuit asks for a jury trial, and for Vision Solar to pay damages to its customers. In a statement, Bennett Andelman, a spokesperson for Vision Solar, responded to the class action lawsuit: "We are actively working on resolving every single past problem our customers have had with Vision Solar. Not discussed in this class action law suit is the fact that we have completed or have made significant progress on the majority of the projects associated with these customers indicated in the suit. We will continue to work with each of them, and anyone else, who files a claim until their projects are fully operational and they are satisfied or through their request for cancellation." This action comes after the Connecticut Attorney General filed a lawsuit against Vision Solar last month. [GN] WASTE CONNECTIONS: Loses Bid for Summary Judgment in Sunshine Suit ------------------------------------------------------------------ In the case, SUNSHINE CHILDREN'S LEARNING CENTER, LLC, on behalf of itself and all others similarly situated Plaintiff v. WASTE CONNECTIONS OF FLORIDA, INC., Defendant, Case No. 21-cv-62123-BLOOM/Valle (S.D. Fla.), Judge Beth Bloom of the U.S. District Court for the Southern District of Florida denies the Defendant's Motion for Summary Judgment. The Plaintiff filed its First Amended Complaint on Nov. 17, 2021, asserting two counts against Defendant: breach of contract ("Count I"); and breach of the covenant of good faith and fair dealing ("Count II"). The basis for its claims against the Defendant is that the Defendant increased its rates in breach of the Parties' contract and in breach of the covenant of good faith and fair dealing. The Plaintiff also asserts class representation allegations. On Jan. 27, 2023, the Defendant filed the instant Motion in which it argues that: (1) it is entitled to summary judgment on the Plaintiff's contract claim because there was no material breach and the Plaintiff suffered no damages; (2) it is entitled to judgment on three affirmative defenses: voluntary payment, waiver, and failure to mitigate damages because the Plaintiff paid its bills; and (3) the Plaintiff's claim that Defendant's lack of notice breached the duty of good faith and fair dealing fails because the duty of good faith and fair dealing imposes no obligation beyond the contract and there was no breach of contract. In response, the Plaintiff argues that the Defendant breached the notice provision of the Contract which was a condition precedent and a material term and that breach caused it damage. It contends that the Defendant is not entitled to judgment on its affirmative defenses because each requires that a party have full knowledge of the facts and circumstances, which the Plaintiff did not. The Plaintiff also asserts that there are sufficient facts for a reasonable jury to conclude that the Defendant breached the duty of good faith and fair dealing by failing to provide necessary information to the Plaintiff. As to Count I, under Florida law, an adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages. The parties do not dispute the existence of a valid contract during the relevant time period at issue, and Judge Bloom agrees. Thus, the first element of the Plaintiff's breach of contract claim is satisfied. However, with regard to the second and third elements of a breach of contract action, the parties strongly dispute each other's respective positions. The Defendant argues that the notice provision at issue was not a condition precedent or material term. It also asserts that it substantially complied with the notice provision and that Plaintiff did not incur damages. The Plaintiff takes the opposite position on each issue, responding that the notice provision was a condition precedent and a material term that the Defendant breached, causing its damages. Judge Bloom finds that there is a dispute of material fact about whether the Defendant's breach of the notice provision was the but-for cause of the Plaintiff's damages. Summary judgment is not appropriate on the claim for breach of Contract. Viewing the evidence in the light most favorable to the Plaintiff, there is a genuine dispute of material fact regarding whether there was a material breach and whether the Plaintiff incurred damages because of that breach. And, because a dispute of material fact exists, Judge Bloom will not grant judgment on the affirmative defense of failure to mitigate damages. AS to Count II, the Defendant contends that summary judgment must be granted on the Plaintiff's claim for breach of the duty of good faith and fair dealing because it requires the breach of an express term of the Contract. The Plaintiff responds that the Defendant is bound by the duty of good faith and fair dealing to exercise its discretion over the content of Section 5(b) increase notices in a commercially reasonable manner that comports with the language of the Contract and the parties' objectively reasonable expectations and not in a manner which only serves its self-interests. Judge Bloom finds that the Defendant again rehashes the relevant record evidence that its invoices provided a phone number for inquiries should further information be needed and contends that the Plaintiff need only have called to find out everything it needed to know. But she has already concluded that there is a dispute of material fact as to whether the Plaintiff had sufficient notice or enough facts to put it on inquiry and impose an obligation that it call or otherwise inquire. The Defendant has therefore not met its burden on summary judgment of demonstrating that there is no dispute of material fact over whether the notice it provided met the Plaintiff's reasonable expectations in light of the express terms of Section 5(b) of the Contract. Accordingly, the Defendant's Motion for Summary Judgment is denied. A full-text copy of the Court's April 5, 2023 Order is available at https://tinyurl.com/24p88wx2 from Leagle.com. WEYANT FAMILY: Metzgar Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Weyant Family Irrevocable Trust, et al. The case is styled as Leo J. Metzgar, and on Behalf of All Others Similarly Situated v. Weyant Family Irrevocable Trust, Tri-State Pools Inc., Case No. 1:23-cv-02921 (S.D.N.Y., April 6, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Tri-State Pools Inc. is a local pool authority.[BN] The Plaintiff is represented by: Daniel A. Johnston, Esq. JOHNSTON LAW LLC 1103 Stewart Avenue, Suite 200 Garden City, NY 11757 Phone: (516) 388-7611 Email: DJ@BellLG.com WYNN RESORTS: Schuster Appeals Summary Judgment Ruling to 1st Cir. ------------------------------------------------------------------ Plaintiff A. RICHARD SCHUSTER filed an appeal from the District Court's Memorandum & Order dated February 27, 2023 and Judgment dated February 28, 2023 entered in the lawsuit entitled A. Richard Schuster, individually and on behalf of all others similarly situated, Plaintiff v. Encore Boston Harbor, Wynn MA LLC, and Wynn Resorts, Ltd., Defendants, Case No. 1:19-cv-11679-ADB, in the United States District Court for the District of Massachusetts, Boston. The lawsuit was initially filed in the Superior Court of Massachusetts for the County of Middlesex before it was removed to the District Court of Massachusetts on August 5, 2019. The Plaintiff seeks treble, actual and statutory damages, attorneys' fees and costs and such other and further relief resulting from breach of contract, unjust enrichment and conversion. He claims that Encore has intentionally paid its customers odds of 6 to 5 when a player is dealt a "blackjack," when Massachusetts law' clearly and unambiguously states that a player who is dealt a blackjack shall be paid at odds of 3 to 2. Aside from blackjack, when a slot player cashes out his or her winnings at a ticket redemption machine positioned throughout the casino, these machines only pay out in whole dollar amounts, without paying change, and without instruction on how to obtain the balance. The unredeemed change, therefore, is never returned to the player. On February 27, 2023, Judge Allison D. Burroughs entered a Memorandum Opinion and Order granting Defendants' May 31, 2022 motion for summary judgment while denying as moot Plaintiff's May 31, 2022 motion for class certification. The Court further denied Plaintiff's request to strike the Pangoras Declaration and his October 18, 2022 motion to supplement the record. On February 28, 2023, Judge Burroughs entered JUDGMENT for Defendants. The appellate case is captioned as Schuster v. Wynn Resorts Holdings, LLC, et al., Case No. 23-1291, in the United States Court of Appeals for the First Circuit, filed on March 29, 2023. The briefing schedule in the Appellate Case states that: -- Appearance form, docketing statement, and transcript report/order form were due April 12, 2023.[BN] Plaintiff-Appellant A. RICHARD SCHUSTER, individually and on behalf of all others similarly situated, is represented by: Joshua N. Garick, Esq. 34 Salem St. Reading, MA 01867 Telephone: (617) 600-7520 - and - David Pastor, Esq. PASTOR LAW OFFICE, LLP 63 Atlantic Ave., 3rd Floor Boston, MA 02110-0000 Telephone: (617) 742-9700 Defendants-Appellees WYNN MA, LLC, et al., are represented by: Wayne F. Dennison, Esq. Joshua Dunn, Esq. BROWN RUDNICK LLP 1 Financial Center, 18th Flr Boston, MA 02111-0000 Telephone: (617) 856-8247 Interested Parties MA GAMING COMMISSION and EDWARD R. BEDROSIAN, JR. are represented by: David S. Mackey, Esq. ANDERSON & KREIGER LLP 50 Milk St., 21st Fl Boston, MA 02109 Telephone: (617) 621-6531 [*] Kelley Drye Attorneys Discuss State AGs' Role in Class Actions ------------------------------------------------------------------ Paul Singer, Esq., Alysa Z. Hutnik, Esq., Abigail Stempson, Esq., and Beth Chun, Esq., of Kelley Drye, in an article for AD Law Access, disclosed that while it may be common knowledge for many that state attorneys general (State AGs) bring enforcement actions under state consumer protection laws, it is likely less well-known that the State AGs also serve a role under the Class Action Fairness Act (CAFA). State AGs typically receive notice through CAFA as "appropriate state officials" if the settlement proposed includes class members in their state. States may monitor these CAFA notices to varying degrees, but are typically looking to both: -- monitor the fairness of the action as intended by CAFA, and -- protect the states' own interests, whether related to active investigations or potential future ones. Since 2014, states have had to contend with the holding of California v. Intelligender in the 9th Circuit, which found that the state was precluded from obtaining restitution after the class action obtained monetary relief. Though this holding could potentially be limited due to the specific facts of the case, states are taking this potential outcome seriously as demonstrated by New Mexico's recent attempt to intervene in the In re: Facebook, Inc. class action last month. The court denied New Mexico's motion to intervene, however, stating: It should be obvious to the New Mexico Attorney General that a private class action settlement cannot prevent a state from pursuing a lawsuit against the defendant based on the same conduct to vindicate its police powers (for example, to impose penalties or obtain junctive relief). But it should be equally obvious that Facebook could argue that New Mexico is barred from obtaining a financial recovery on behalf of residents who participated in this class action settlement. The court goes on to say that New Mexico should have raised their argument longer ago, and that their concern of not being able to seek restitution for consumers is unfounded because the states likely cannot recover a larger amount for their residents. In an abundance of caution however, the court allowed for an additional comment period for interested states to file an objection or request changes to the class action notice. Ultimately, no states commented. The court preliminarily approved the settlement last week, again referencing that New Mexico's concerns that states may not be able to later recover restitution "do not provide a basis for rejecting the settlement." So, remember: While a prior class action settlement may prevent "double recovery" of restitution from a State AG enforcement action, courts say a private settlement may NOT prevent a State AG from obtaining penalties and injunctive relief on the same conduct. States watch class action settlements and weigh in usually through amicus briefs with mixed results. But courts are typically willing to at least listen to what states have to say.[GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***