/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230512.mbx C L A S S A C T I O N R E P O R T E R Friday, May 12, 2023, Vol. 25, No. 96 Headlines 3M COMPANY: Cole Sues Over Exposure to Toxic Film-Forming Foams ABBOTT LABORATORIES: Andaluz Sues Over False & Unlawful Labeling ABBVIE INC: Court Says Antitrust Suit Can't Proceed as Class Action ALBERTSONS COS: Ex Employee Files Data Breach Class Action Suit ALLEGIANT AIR: Class Action Settlement in Rolle Gets Initial Nod ALLIANCE DATA: Newtyn Sues Over False Registration Statements ALLSTATE INSURANCE: Canchola Suit Removed to C.D. California AMERICAN AIRLINES: Continues to Defend Consolidated Antitrust Suits AMERICAN RECORDER: Matzura Files ADA Suit in S.D. New York ANAHEIM, CA: Appeals Court Affirms Summary Judgment in Palmer Suit ANDERS GROUP: $368.5K Class Settlement in Swain Suit Has Final OK ARTSPAN LLC: Brown Files ADA Suit in S.D. New York ASCL VENTURES INC: Matzura Files ADA Suit in S.D. New York ATRIUS HEALTH: Suit Removed to D. Massachusetts AURALEX ACOUSTICS: Matzura Files ADA Suit in S.D. New York BALDOR SPECIALTY: Mercado Files Suit in S.D. New York BELLA COTTAGE: Hernandez Files ADA Suit in S.D. New York BLU GURU LLC: Toro Files ADA Suit in S.D. New York BORST LANDSCAPE: Malgieri Alleges Unpaid Wages, Illegal Termination BRIGHTLINE INC: Hit With Class Suit Over Patient Data Breach BURLINGTON STORES: Court Refuses to Approve $11MM Class Settlement CEDARS-SINAI HEALTH: Browne Suit Moved to Los Angeles Super. Court CENIKOR FOUNDATION: Urges 5th Circuit to Decertify Patient Suit CHARLES R. GRACIE: Black Files ADA Suit in E.D. New York CHOICE HEALTH: Dale County Woman Files Telemarketing Class Suit COINBASE GLOBAL: Faces Class Suit Over Biometric Collection CORECIVIC INC: Filed Petition for Writ of Certiorari to Sup. Ct. CORNING INC: Loses Bid to Dismiss Pittman's Claims in Modern Suit COSTCO WHOLESALE: Wins Bid for Arbitration; Dimas Suit Dismissed COTE IP LLC: Cruz Files ADA Suit in E.D. New York DE GOURNAY INC: Black Files ADA Suit in E.D. New York DECKERS OUTDOOR: Brown Files ADA Suit in S.D. New York DEVOCION HOLDINGS: Cruz Files ADA Suit in E.D. New York DISH NETWORK: Colorado Court Tosses 401(k) Class Action DOCTORS MEDICAL: Judgment of Dismissal in Naranjo Suit Reversed DOWNER GROUP: Faces 2nd Suit Over Breach of Contract Disclosures EMBLEMHEALTH PLAN: Jaffery Files TCPA Suit in N.D. New York EMPIRE AG: Diaz Files Suit in Cal. Super. Ct. EOG RESOURCES: Fails to Pay for Proper Wages, Boakye Alleges ERIZO VENTURES: Richardson Files Suit in Cal. Super. Ct. EXTENDED STAY: Court Tosses Brittian's GUDTPA Claim W/o Prejudice FERGUSON ENTERPRISES: Martinez Suit Removed to S.D. California FOOT LOCKER: Mahoney Files ADA Suit in E.D. Pennsylvania FORD MOTOR: 3 Claims Nixed From Sarkesian's 1st Amended Complaint FORD MOTOR: Hilbert Files ADA Suit in S.D. New York FU JING WU: Files Bid to Compel Arbitration in Liu Suit FULTON CO: Scoleri Sues Over Illegal Assessment of Real Property GILLIG LLC: Tolentino Suit Removed to N.D. California GLOBAL EQUITY FINANCE: Abrahamian Files TCPA Suit in D. Arizona GOLDMAN SACHS: Works With Government on Silicon Valley Collapse GOOD DEALS APPLIANCES: Brown Files ADA Suit in S.D. New York GROWERS' CHOICE: $196.7K in Fees & Costs Awarded in Lizarraga Suit GUARDIAN ANALYTICS: Krzykowski et al. Sue Over Customer Data Breach GUMBALL.COM INC: Hernandez Files ADA Suit in S.D. New York HEART OF THE DESERT: Brown Files ADA Suit in S.D. New York HOME BOX OFFICE: Tehrani Sues to Recover Unpaid Compensation HOMEFIX CUSTOM: Gonzalez Suit Transferred to D. Maryland HP INC: Faces Suit Over Defective Trackpads in HP Omen Laptops HUMBOLDT STATE UNIVERSITY: Disabled Student Files ADA Class Action HUNTINGTON INGALLS: Darrin Files Suit in E.D. Virginia HUNTINGTON INGALLS: Keeler Files Suit in E.D. Virginia I.C. SYSTEMS INC: Dillion Files FDCPA Suit in D. New Jersey INDUS REALTY: M&A Class Action Firm Continues to Probe Merger J&J INVESTMENT: Can't Compel Discovery From Former Plaintiffs J.G. WENTWORTH: Simpson Suit Stayed Pending Decision in Drazen Suit JEAN ROUSSEAU: Web Site Not Accessible to Blind, Clement Alleges JUST BLINDS LP: Vachnine Files ADA Suit in S.D. New York K-MAC ENTERPRISES: Fails to Pay Proper Wages, Culbertson Alleges KONTOOR BRANDS: Has Made Unsolicited Calls, Brito Suit Alleges LEXINGTON GOLF: Laine et al. Sue Over Labor Law Violations LOANDEPOT.COM LLC: Abrahamian Files TCPA Suit in D. Arizona LOC PERFORMANCE: Fails to Pay Proper wages, Brown Suit Alleges MANGIA MANGIA: Fails to Pay Proper Wages, Cevallos Alleges MARTEN TRANSPORT: Morrison Suit Removed to N.D. California MAXIM HEALTHCARE: Agrees to Settle Data Breach Class Action MEDIBANK PRIVATE: Faces Third Class-Action Suit Over Cyber Breach MEK ENTERPRISES: Taylor Files Suit in Cal. Super. Ct. MIDLAND CREDIT: Faces Suit Over Illegal Debt Collection Practices MIDLAND CREDIT: Perryman Files FDCPA Suit in S.D. Mississippi MORNING LAVENDER: Hernandez Files ADA Suit in S.D. New York MORTGAGE APPROVAL: Has Made Unsolicited Calls, Bradley Suit Says MOTIVATE LLC: Todd Files Suit in Cal. Super. Ct. NATIONAL GENERAL: Court Denies King's Bid to Apply Discovery Rule NEOVIA LOGISTICS: To Show Cause Why Neims Shouldn't Be Remanded NEW ERA SECURITY: Fails to Pay Proper Wages, Limon Suit Alleges NEXTFOODS INC: Gates Sue Over Mislabeling of Juice Beverages OHIO: Southern District Court Narrows Claims in Tolliver v. ODRC PAPA TEXAS: Harris Balks at Delivery Drivers' Unreimbursed Expenses PARTNERS BANCORP: M&A Class Action Firm Continues to Probe Merger PETROQUEST ENERGY: $18MM in Attorneys' Fees Awarded in Hoog Suit PETROQUEST ENERGY: Court Awards $6MM in Attys.' Fees in Lee Suit PETROQUEST ENERGY: E.D. Oklahoma Issues Final Judgment in Hoog Suit PETROQUEST ENERGY: E.D. Oklahoma Issues Final Judgment in Lee Suit RADIUS GLOBAL: M&A Class Action Firm Continues to Probe Merger SAGINAW COUNTY, MI: 6th Cir. Vacates Certified Class in Fox Suit SAGINAW COUNTY, MI: Squire Patton Attorney Discusses Court Ruling SANTANDER CONSUMER: Lyles Suit Remanded to Baltimore Circuit Court SASOL LIMITED: Distribution of Moshell Settlement Funds Ordered SILVERLAKE GROUP: Securities Class Suit Dismissed With Prejudice SPIRIT AEROSYSTEMS: Gainey McKenna Discloses Securities Class Suit SQUISHABLE COM: Fails to Prevent Data Breach, Borovoy Alleges STANFORD INTERNET: Faces Suit Over Election Integrity Partnership STATE FARM: Schwartz Suit Stayed Pending Decision in Smith Suit STEIN SAKS: Goldberg's Class Action Claims Dismissed W/o Prejudice STONE ACADEMY: Ex Students File Class Suit Over School Closure TERRAFORM LABS: Seeks to Dismiss Suit Over Securities Violations UBER TECHNOLOGIES: Drivers Cannot Bring Suit for Employment Claims UNIFRAZ I LLC: Tower Sues Over Untimely Payment of Wages UNITED SERVICES: $3M Class Settlement in Spielman Suit Has Final OK UNITED STATES: D.C. Court Tosses Harris v. DOJ After Initial Review UNITED STATES: Faces Class Action Over Revitalization Fund UNITED STATES: W.D. Washington Dismisses Garcia v. USCIS, Others UNITED STATES: Wins Bid for Summary Judgment in King ERISA Suit UNIVERSITY MEDICAL: Whittum Suit Remanded to Clark Cty. State Court USA HOMECARE: Fails to Pay Overtime Wages, Rogers Suit Alleges WEBSTER BANK: Nelson Files Suit in M.D. Tennessee WEXFORD HEALTH: Court Denies Bid to Reconsider in Wiley v. Young WILLIAMS ALEXANDER: Bateman Files FDCPA Suit in D. New Jersey WISDOMTREE INC: Faces Franchi Suit Over Poison Pill Provisions Asbestos Litigation ASBESTOS UPDATE: 3M Co. Defends 4,152 Individual Claims ASBESTOS UPDATE: Albany Int'l. Faces 3,597 PI Claims at March 31 ASBESTOS UPDATE: Carlisle Cos. Defends Numerous Exposure Lawsuits ASBESTOS UPDATE: CenterPoint Energy Still Faces Exposure Lawsuits ASBESTOS UPDATE: Chemours Has 900 Pending PI Lawsuits at March 31 ASBESTOS UPDATE: Colgate-Palmolive Faces 248 Cases as of March 31 ASBESTOS UPDATE: Crown Holdings Paid $4MM to Settle Claims ASBESTOS UPDATE: Curtis Sues Janssen Over Asbestos-Related Injury ASBESTOS UPDATE: D'Arinzo Sues Janssen Over Asbestos-Related Injury ASBESTOS UPDATE: Graff Sues Janssen Over Asbestos-Related Injury ASBESTOS UPDATE: Hartford Financial Still Receives A&E Claims ASBESTOS UPDATE: Honeywell Defends Personal Injury Claims ASBESTOS UPDATE: IDEX Corp. Faces Product Liability Lawsuits ASBESTOS UPDATE: International Paper Records $107MM in Claims ASBESTOS UPDATE: Lincoln Electric Has 1,467 Pending Exposure Claims ASBESTOS UPDATE: Minerals Technologies Has 460 Open Exposure Cases ASBESTOS UPDATE: Otis Worldwide Has $21MM Estimated Liabilities ASBESTOS UPDATE: Pack Sues Janssen Over Asbestos-Related Injury ASBESTOS UPDATE: Rockwell Automation Faces Personal Injury Lawsuits ASBESTOS UPDATE: Rogers Corp. Has 594 PI Claims as of March 31 ASBESTOS UPDATE: Shipman Sues Janssen Over Asbestos-Related Injury ASBESTOS UPDATE: Tatterson Balks at Asbestos-Related Death ASBESTOS UPDATE: Tenzer Alleges Death Over Asbestos Exposure ASBESTOS UPDATE: Therriault Alleges Asbestos Caused Disease/Death ASBESTOS UPDATE: Torres Sues Over Asbestos-Related Death ASBESTOS UPDATE: TriMas Has 434 Pending PI Cases as of March 31 ASBESTOS UPDATE: U.S. Steel Defends 920 Active Cases as of March 31 ASBESTOS UPDATE: Union Carbide Has $929MM Liabilities at March 31 ASBESTOS UPDATE: Vecchione Balks at Exposure to Asbestos ASBESTOS UPDATE: W.W. Grainger Defends Personal Injury Claims ASBESTOS UPDATE: Westinghouse Air Defends Exposure Claims ASBESTOS UPDATE: Zurn Elkay Faces 6,000 PI Lawsuits as of March 31 ********* 3M COMPANY: Cole Sues Over Exposure to Toxic Film-Forming Foams --------------------------------------------------------------- Justin Cole, and others similar situated v. 3M COMPANY, f/k/a Minnesota Mining and Manufacturing Co., BASF CORPORATION, individually and as successor in interest to Ciba Inc., BUCKEYE FIRE EQUIPMENT COMPANY, CHEMDESIGN PRODUCTS INC., CHEMGUARD, INC., CLARIANT CORPORATION, individually and as successor in interest to Sandoz Chemical Corporation, DEEPWATER CHEMICALS, INC., DYNAX CORPORATION, E.I. DU PONT DE NEMOURS COMPANY, KIDDE-FENWAL, INC, NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE CHEMOURS COMPANY, THE CHEMOURS COMPANY FC, L.L.C., and TYCO FIRE PRODUCTS L.P., Case No. 2:23-cv-01784-RMG (D.S.C., April 28, 2023), is brought for damages for personal injury resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals collectively known as per and polyfluoroalkyl substances ("PFAS") and/or their chemical precursors. PFAS includes, but is not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid("PFOS") and related chemicals including those that degrade to PFOA and/or PFOS. AFFF is a specialized substance designed to extinguish petroleum-based fires. It has been used for decades by military and civilian firefighters to extinguish fires in training and in response to Class B fires. The Defendants collectively designed, marketed, developed, manufactured, distributed, released, trained users, produced instructional materials, promoted, sold, and/or otherwise released into the stream of commerce AFFF containing PFAS and/or their chemical precursors, and/or designed, manufactured, marketed, distributed, and/or sold the fluorosurfactants and/or perfluorinated chemicals ("PFCs") contained in AFFF (collectively, "AFFF/Component Products") with knowledge that their products contained highly toxic and biopersistent PFASs, which would expose end users of the products to the risks associated with PFAS. PFAS binds to proteins in the blood of humans exposed to the material and remains and persists over long periods of time. Due to their unique chemical structure, PFAS accumulates in the blood and body of exposed individuals. PFAS are highly toxic and carcinogenic chemicals. Defendants knew, or should have known, that PFAS remain in the human body while presenting significant health risks to humans. The Defendants' AFFF/Component Products were used by the Plaintiff in their intended manner, without significant change in the products' condition. Plaintiff was unaware of the dangerous properties of the Defendants' AFFF/Component Products and relied on the Defendants' instructions as to the proper handling of the products. Plaintiff's consumption, inhalation and/or dermal absorption of PFAS from Defendant's AFFF/Component Products caused Plaintiff to develop the serious medical conditions and complications alleged herein. Through this action, Plaintiff seeks to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of exposure to Defendants' AFFF/Component Products at various locations during the course of Plaintiff's training and firefighting activities, says the complaint. The Plaintiff regularly used, and was thereby directly exposed to, AFFF in training and to extinguish fires during his working career as a state police officer and was diagnosed with kidney cancer as a result of exposure to the Defendants' AFFF products. The Defendants are designers, marketers, developers, manufacturers, distributors, releasers, instructors, promotors and sellers of PFAS containing AFFF products or underlying PFAS containing chemicals used in AFFF production.[BN] The Plaintiff is represented by: Lawrence R. Cohan, Esq. Joshua C. Cohan, Esq. SALTZ MONGELUZZI & BENDESKY P.C. One Liberty Place 1650 Market St, 52nd Floor Philadelphia, PA 19103 Phone: (215) 575-3887 Fax: (215) 496-0999 Email: lcohan@smbb.com jcohan@smbb.com ABBOTT LABORATORIES: Andaluz Sues Over False & Unlawful Labeling ---------------------------------------------------------------- Arturo Andaluz, Brittany Abendschoen, Danielle Benoit, Rebecca Carroll, Arquesha Dates, Jacklyn Driver, Raelonda Ghost, Amber Hamrick, Artie Emert, Seirra Morris, Melissa Quailes, Andrea Scully, and Shanee Wilkerson, on behalf of themselves and all others similarly situated v. ABBOTT LABORATORIES, INC. D/B/A ABBOTT NUTRITION; Case No. 1:23-cv-02692 (N.D. Ill., April 28, 2023), is brought against the Defendants' failure disclose the presence of adulterated Cronobacter sakazakii in the products' label. The Defendant distributes, markets and sells several infant formulas under the brand names Similac, Alimentum, and EleCare. Several of the Defendant's Similac products have been shown to be adulterated with Cronobacter sakazakii ("Contaminated Products"). The presence of Cronobacter sakazakii in Defendant's Similac, Alimentum, and EleCare products was not disclosed in the products' label, in violation of state and federal law. The Plaintiffs and the putative classes suffered economic damages due to Defendant's misconduct and they seek injunctive relief and restitution for the full purchase price of the Similac product(s) they purchased. During the time the Plaintiffs' purchased the products, based on the false and misleading claims by the Defendant, the Plaintiffs were unaware that the Contaminated Products may be adulterated with harmful microbes. The Plaintiffs purchased the Contaminated Products on the assumption that the labeling was accurate and that the Contaminated Products were unadulterated, safe, and effective. The Plaintiffs would not have purchased the Contaminated Products had he known there was a risk the products may contain harmful microbes. Under the circumstances that existed, no sales of the Contaminated Products should have taken place. As a result, the Plaintiffs suffered injury in fact when they spent money to purchase the Contaminated Products, which they would not otherwise have purchased absent the Defendant's misconduct, as alleged herein. The Plaintiffs further suffered injury in fact as such the Contaminated Products had diminished value due to the presence of alleged bacterial contamination and because they could not be used (consumed) or resold, says the complaint. The Plaintiffs purchased Similac, Alimentum, and EleCare Infant formula manufactured, sold and distributed by the Defendant. Abbott Laboratories is an American multinational medical devices and health care company with its headquarters in Abbott Park, Illinois, United States.[BN] The Plaintiff is represented by: E. Samuel Geisler, Esq. AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC 17 East Main Street, Suite 200 Pensacola, FL 32502 Phone: (850) 202-1010 Facsimile: (850) 916-7449 Email: sgeisler@awkolaw.com ABBVIE INC: Court Says Antitrust Suit Can't Proceed as Class Action ------------------------------------------------------------------- John Woolley at bloomberglaw.com reports that a group mostly comprised of union health insurance plans can't proceed as a class in an antitrust lawsuit against pharmaceutical companies AbbVie Inc., Abbot Laboratories, Teva Pharmaceutical Industries Ltd., and others, the Third Circuit ruled. AbbVie convinced the US Court of Appeals for the Third Circuit to affirm a lower court's decision to deny certification in a suit alleging the company paid to delay the generic version of their cholesterol treatment drug Niaspan. AbbVie is accused of violating state antitrust and consumer protection laws by slowing the launch of a generic competitor.[GN] ALBERTSONS COS: Ex Employee Files Data Breach Class Action Suit --------------------------------------------------------------- supermarketnews.com reports that Albertsons Cos. failed to protect the personal information of 33,000 employees in relation to a December 2022 data breach, a proposed federal class action said. According to a filing in federal court, former Albertsons employee Laura Medina alleged that Albertsons did not comply with its promise to protect employees' personal information, and additionally breached data-security guidelines of the FTC. Medina first worked for Albertsons from 2004 through 2006, then again from 2013-2014. She has not worked at Albertsons for almost a decade, the filing stated. The Boise, Idaho-based grocer also failed to notify employees until nearly five months after the data breach was discovered, according to the filing. It additionally claimed that there had not been assurance from Albertsons that all personal data or copies of data had been recovered or destroyed, or that the grocery company planned to update its data security practices to avoid a future breach. Information exposed in the breach included names, driver's license numbers, and Social Security numbers, according to a complaint filed in the US District of Delaware Court. Albertsons did not respond in time for publication of this story. The lawsuit asks for the court to provide appropriate monetary relief to affected current and former employees, and additionally asks that the court order Albertsons' to update its data security measures, as well as provide lifetime credit monitoring and identity theft insurance for those affected. [GN] ALLEGIANT AIR: Class Action Settlement in Rolle Gets Initial Nod ---------------------------------------------------------------- In the class action lawsuit captioned as PAMELA ROLLE, individually, and on behalf of other members of the general public similarly situated, v. ALLEGIANT AIR, LLC, a Nevada corporation; and DOES 1-100, inclusive, Case No. 2:20-cv-10232-SSS-PD (C.D. Cal.), the Hon. Judge Sunshine Suzanne Sykes entered an order granting the Plaintiff's unopposed motion for preliminary approval of class and representative action settlement. -- The Court grants preliminary approval of the terms and conditions contained in the Stipulation of Class and PAGA Action Settlement and Release, as amended by the First Addendum to Stipulation of Class and PAGA Action Settlement and Release. -- The Court finds on a preliminary basis that the settlement amount is fair and reasonable to the Class Members when balanced against the probable outcome of further litigation relating to class certification, liability and damages issues, and potential appeals. -- The Court grants conditional certification of the Settlement Class, in accordance with the terms of the Settlement, for the purposes of settlement only. The Settlement Class is defined as: "All persons employed by Allegiant as California-based flight attendants at any point from September 25, 2016 through the date of preliminary approval of this settlement." -- The Court hereby authorizes the retention of CPT Group, Inc. as Settlement Administrator for the purpose of the Settlement, with reasonable administration costs estimated not to exceed $7,500. -- The Court conditionally appoints The Bainer Law Firm APC as Class Counsel. -- The Court conditionally appoints Plaintiff Pamela Rolle as Class Representative. -- The Court hereby APPROVES the Notice of Class Action and PAGA Settlement to be sent to Class Members. -- The Court authorizes dissemination of the Notice of Settlement to Class Members. Subject to the Settlement's terms, the Notice of Class Action and PAGA Settlement shall be mailed via first- class mail to the most recent known mailing address of each Class Member within the timeframe specified in the Settlement. The Parties are authorized to make non-substantive changes to the proposed Notice of Settlement that are consistent with the terms of the Settlement and this Order. -- The Court further preliminarily approves Class Counsel's request for attorneys’ fees of one-third of the Gross Settlement Amount of $1,950,000, or $650,000, plus their costs. -- The Court further preliminarily approves a service payment or Enhancement Award of $10,000 to the Class Representative, in recognition of her role in initiating the lawsuit and performing substantial work in support of the case, including sitting for her deposition and responding to discovery. -- The Court approves the creation of a Contingency Fund of $25,000 that may be used to pay late claims, disputed allocations, and the claims of any individuals who are not on the class list and whom the Parties agree may be added to the Settlement Classes. The Plaintiff brings a class and representative wage and hour action under California state laws on behalf of herself and other California-based flight attendants Allegiant employed. The Plaintiff filed her Class Action Complaint in this action on September 25, 2020, in the Los Angeles County Superior Court as Case No. 20STCV36871 alleging violation of California Labor Code for unpaid overtime and unpaid minimum wages. Allegiant Air provides scheduled and charter air transportation services. A copy of the Court's order dated April 25, 2023, is available from PacerMonitor.com at https://bit.ly/429h0Y3 at no extra charge.[CC] ALLIANCE DATA: Newtyn Sues Over False Registration Statements ------------------------------------------------------------- NEWTYN PARTNERS, LP and NEWTYN TEPARTNERS, LP, individually and on behalf of all others similarly situated, Plaintiff v. ALLIANCE DATA SYSTEMS CORPORATION N/K/A BREAD FINANCIAL HOLDINGS, INC., CHARLES L. HORN, JOHN J. CHESNUT, and RALPH J. ANDRETTA, Defendants, Case No. 2:23-cv-01451-EAS-EPD (S.D. Ohio, April 27,2023) alleges violations of the Securities Exchange Act of 1934. Loyalty Ventures, based in Dallas, Texas, was created as the result of a November 2021 spinoff from Alliance Data Systems in which Loyalty Ventures became an independent public company. Leading up to the spinoff, ADS issued false and misleading statements regarding Loyalty Ventures through, among other things, the preparation and filing of a registration statement on Form 10 with the SEC pursuant to the Exchange Act on September 1, 2021. Therein, ADS touted Loyalty Ventures' prospects as an independent company, the suit says. Unbeknownst to investors, however, Defendants were informed in late 2020 that Sobeys was considering exercising its early termination rights and renegotiating or discontinuing its participation in the Loyalty Ventures Air Miles program. Indeed, as has now been revealed by Loyalty Ventures' CEO Defendant Horn, himself a former ADS executive, Defendants knew the pending departure of Sobeys would have a broader "network effect" on the value of the entire Air Miles Reward Program to the remaining Sponsors. The loss of Sobeys as a Sponsor and anticipated "network effect," in conjunction with the debt load placed upon Loyalty Ventures as part of the spinoff, ultimately forced Loyalty Ventures into Chapter 11 bankruptcy. The truth was revealed before the markets opened on June 8, 2022, when Loyalty Ventures issued a press release announcing that "its AIR MILES(R) Reward Program segment and AIR MILES' Sponsor, Sobeys were unable to align on extension terms; consequently, on June 7, 2022, Sobeys provided notice of its intent to exit the program on a region-by-region basis. On this news, the share price of Loyalty Ventures common stock fell more than 45% from a closing price of $11.03 per share on June 7, 2022, to a closing price of $6.02 per share on June 8, 2022, added the suit. Loyalty Ventures began trading as a public company on November 8, on the Nasdaq Global Select Market under the ticker symbol, LYLT. [BN] The Plaintiff is represented by: John C. Camillus, Esq. LAW OFFICES OF JOHN C. CAMILLUS, LLC P.O. Box 141410 Columbus, OH 43214 Telephone: (614) 992-1000 Facsimile: (614) 559-6731 E-mail: jcamillus@camilluslaw.com - and - David J. Schwartz, Esq. Rachel A. Avan, Esq. SAXENA WHITE P.A. 10 Bank Street, Suite 882 White Plains, NY 10606 Telephone: (914) 437-8551 Facsimile: (888) 631-3611 E-mail: dschwartz@saxenawhite.com ravan@saxenawhite.com ALLSTATE INSURANCE: Canchola Suit Removed to C.D. California ------------------------------------------------------------ The case captioned as Jasibel Canchola, individually and on behalf of all others similarly situated; CARLOS OCHOA, individually and on behalf of all others similarly situated v. ALLSTATE INSURANCE COMPANY, an Illinois corporation; and DOES 1 through 100, Case No. 30-2023-01314857-CU-OE-CXC was removed from the Superior Court of the State of California, County of Orange, to the United States District Court for the Central District of California on April 27, 2023, and assigned Case No. 8:23-cv-00734. In the Complaint, Plaintiffs, former insurance agents with whom Allstate contracted to primarily sell Allstate insurance products and other service offerings, allege the following cause of action: Labor Code Section 2802 – Failure to Reimburse for Necessary Expenditures Incurred.[BN] The Defendants are represented by: Keith A. Jacoby, Esq. Robert S. Blumberg, Esq. Jaime B. Laurent, Esq. Emily J. Atherton, Esq. Jamar D. Davis, Esq. LITTLER MENDELSON P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Phone: 310.553.0308 Fax: 800.715.1330 Email: kjacoby@littler.com rblumberg@littler.com jlaurent@littler.com eatherton@littler.com jddavis@littler.com AMERICAN AIRLINES: Continues to Defend Consolidated Antitrust Suits ------------------------------------------------------------------- American Airlines Inc. disclosed in its Form 10-Q Report for the quarterly period ending March 31, 2023 filed with the Securities and Exchange Commission on April 27, 2023, that the Company continues to defend itself from the consolidated antitrust class suits in the U.S. District Court for the Eastern District of New York. On December 5, 2022 and December 7, 2022, two private party plaintiffs filed putative class action antitrust complaints against American and JetBlue in the U.S. District Court for the Eastern District of New York alleging that American and JetBlue violated U.S. antitrust law in connection with the previously disclosed NEA. These actions were consolidated on January 10, 2023. The private party plaintiffs filed an amended consolidated complaint on February 3, 2023. On February 2, 2023 and February 15, 2023, private party plaintiffs filed two additional putative class action antitrust complaints against American and JetBlue in the U.S. District Court for the District of Massachusetts and the U.S. District Court for the Eastern District of New York, respectively. American and JetBlue are currently seeking dismissal or transfer of the complaint filed in the U.S. District Court for the District of Massachusetts to the U.S. District Court for the Eastern District of New York. The Company believes these lawsuits are without merit and is defending against them vigorously. American Airlines is a major US-based airline headquartered in Fort Worth, Texas, within the Dallasâ€“Fort Worth metroplex.[BN] AMERICAN RECORDER: Matzura Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against American Recorder Technologies, Inc. The case is styled as Steven Matzura, on behalf of himself and all other persons similarly situated v. American Recorder Technologies, Inc., Case No. 1:23-cv-03555 (S.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. American Recorder Technologies, Inc. -- https://www.americanrecorder.com/ -- is a manufacturer and distributor of audio/video/music and photo products.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal ANAHEIM, CA: Appeals Court Affirms Summary Judgment in Palmer Suit ------------------------------------------------------------------ In the lawsuit entitled ASHLEE ELIZABETH PALMER, Plaintiff and Appellant v. CITY OF ANAHEIM, Defendant and Respondent, Case No. G060880 (Cal. App.), the Court of Appeals of California, Fourth District, Division Three, affirms the trial court's grant of summary judgment to the City. The City of Anaheim adopted its charter in June of 1964. Since that time, it has owned and operated its own public electric utility, the Anaheim Public Utilities Department (the Electric Utility). Article XIIIC was added to the California Constitution in 1996 after the passage of the Right to Vote on Taxes Act, or Proposition 218. Generally speaking, Proposition 218 enacted procedures to be followed by a local government wishing to adopt or increase taxes, assessments, fees or charges. Article XIIIC requires that any new tax or increase in tax be approved by the voters. In 2010, article XIIIC was amended when Proposition 26 passed. Since then, "tax" has been broadly defined to encompass "any levy, charge, or exaction of any kind imposed by a local government." Several charges are expressly excluded from this definition, but here the Court of Appeals focuses on charges "imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product," Cal. Const., art. XIIIC, Section 1, subd. (e)(2). In this case, the government service or product at issue is electricity. The Appellant is an individual residing in the City of Anaheim (the City) who claims her local public electric utility has approved rates, which exceed the cost of providing electricity. She claims the City has been transferring utility revenues to its general fund and recouping these amounts from ratepayers without obtaining voter approval. But because voters approved the practice through an amendment to the City's charter, the Court of Appeals concludes the City has not violated article XIIIC, and affirms the trial court's grant of summary judgment to the City on this basis. Justice William W. Bedsworth, writing for the Panel, says that though a localized issue, the Panel publishes because it thinks the case may be The Ghost of Christmas Future. Appellant Ashlee Palmer brought a class action complaint against the City in late 2017 after the city council adopted certain modifications to the electric rate schedule. According to one of the Electric Utility's assistant general managers, electric rates have not undergone significant changes since 2015, when the rate stabilization adjustment was reduced and base charges were correspondingly increased. But he admits there were some slight modifications, such as an adjustment to demand charges to make them consistent across customer classes. The Appellant attacked the new rate schedule not based on these modifications, but on the premise that the rates overall encompassed an unconstitutional surcharge comprised of the general fund transfer under section 1221 and the annual right-of-way fee. Both the Appellant and the City ultimately decided to file for summary judgment, and, in anticipation of cross-motions, they stipulated as to their scope. Two elements of the stipulation are paramount in the Panel's analysis. First, the parties agreed that, for purposes of the cross-motions, the trial court would not need to resolve whether the right-of-way fee is an operations cost of the Electric Utility or whether the fee was "grandfathered" in and exempt from voter approval under article XIIIC. This was because the parties were willing to stipulate that the Electric Utility took in enough non-rate revenue during the applicable timeframe to cover the cost of the fee, and thus, it was not being recouped from customers. Second, the parties agreed the trial court should grant summary judgment to the City if it found either one of two things to be true. First, that Anaheim voters' approval of section 1221 satisfies article XIIIC's voter-approval requirements. Second, that the portion, if any, of the City's electric rates that funds the general fund transfer is a "grandfathered" charge exempt from the voter-approval requirements of article XIIIC. The trial court found section 1221 satisfied article XIIIC voter approval requirements, and granted summary judgment to the City. Judge Bedsworth notes that this review of the trial court's grant of summary judgment is de novo. But the Appellant's briefing seems to suggest, incorrectly, that the Court of Appeals conduct this review independent of the parameters of the parties' stipulation. For example, she encourages the Court of Appeals to decide "whether the imposition of the right-of-way fee supersedes voter approval of Section 1221 in 1976." The Court of Appeals declines the invitation. The Appellant seems to think the City and the trial court misconstrued or misunderstood the language of the stipulation. Not so, Judge Bedsworth holds, adding that the trial court rightly assumed the parties meant what they said in their stipulation and acted accordingly. Judge Bedsworth thinks it appropriate for this Court to follow the same protocol. The Appellant believes the trial court erred when it disregarded the right-of-way fee completely; she says she never intended to stipulate the entire issue away. She argues the stipulated fact pertains only to the right-of-way fee when considered on its own, not the surcharge when the general fund transfer and right-of-way fee are combined. Judge Bedsworth opines they fail to see any meaningful distinction between the two. For one thing, the parties stipulated nonrate revenue was sufficient to fully offset 'any' impact the right-of-way fee had on rates. They interpret the phrase 'any impact' to mean 'any impact,' -- either when the fee is considered alone or when it is combined with other budget items. Additionally, the stipulated fact is not conditioned on the right of way fee being considered separate from or together with the general fund transfer. They cannot read a term into the stipulation that isn't there. The Appellant believes construing the transfer as a cost of service dooms the City's argument that the rate structure was approved as a tax. But in reality, she is between a rock and a hard place herself, Judge Bedsworth says. If the rate structure was a tax, it was approved by the voters, and is compliant with article XIIIC. And if the rate structure incorporates only costs of service, there is no need to comply with article XIIIC in the first place. Because the transfer was approved by the voters, the Court of Appeals sees no article XIIIC violation. When considered with appellant's admission that the right-of-way fee has no impact on rates, the Court of Appeals concludes the trial court correctly granted the City's motion for summary judgment. The judgment is affirmed. The City will recover its costs on appeal. MOORE, J. and MOTOIKE, J., concurs. A full-text copy of the Court's Opinion dated April 17, 2023, is available at https://tinyurl.com/3kmmeeav from Leagle.com. Benink & Slavens, Vincent D. Slavens -- vince@beninkslavens.com -- Eric J. Benink -- eric@beninkslavens.com -- Kearney Littlefield, Thomas A. Kearney -- tak@kearneylittlefield.com -- Prescott W. Littlefield -- pwl@kearneylittlefield.com -- for the Plaintiff and Appellant. Alison M. Kott, City Attorney; Jarvis Fay, Benjamin P. Fay -- ben@jarvisfay.com -- Gabriel McWhirter -- gmcwhirter@jarvisfay.com -- for the Defendant and Respondent. Hanson Bridgett, Adam W. Hofmann -- AHofmann@hansonbridgett.com -- Sean G. Herman -- SHerman@hansonbridgett.com -- for The League of California Cities as Amicus Curiae, on behalf of the Defendant and Respondent. ANDERS GROUP: $368.5K Class Settlement in Swain Suit Has Final OK ----------------------------------------------------------------- Magistrate Judge Sheila K. Oberto of the U.S. District Court for the Eastern District of California grants the Plaintiff's motion for final approval of a class action settlement and motion for attorney's fees, costs, service award, and administrative expenses in the lawsuit captioned LISA SWAIN, an individual on behalf of herself and others similarly situated, Plaintiff v. ANDERS GROUP, LLC, Defendant, Case No. 1:21-cv-00197-SKO (E.D. Cal.). The Court previously summarized the Plaintiff's allegations in its Oct. 6, 2022 order granting her motion for preliminary approval of a class action settlement and conditional class certification. Under the proposed settlement, Anders will pay a total of $368,500 (the "Gross Settlement Amount" or "GSA"). Assuming the parties' proposed allocations are awarded in full, approximately $228,598 (the "Net Settlement Amount" or "NSA") will be available for distribution to participating settlement class members. The parties have agreed to a $368,500 GSA, allocated as follows: (1) up to $92,125 (25% of the GSA) for attorney's fees and up to $15,000 for litigation costs; (2) $5,000 service award for Plaintiff; (3) $35,000 in civil PAGA penalties, with $26,250 of the penalties payable to the California Labor and Workforce Development Agency ("LWDA"); and (4) up to $20,000 for settlement administration costs. The Court conducted an examination of the class action factors in the order granting preliminary approval of the settlement and found the factors warranted certification. The Court's findings on these issues have not changed, and no objections to class certification were raised. The Court confirms its prior order and certifies the following class of 159 individuals: all non-exempt employees employed by Defendant Anders Group, LLC, in California who, at any time between Feb. 17, 2017, and Feb. 13, 2022, worked one or more workweeks in which they were paid overtime and received per diem pay. In addition, for the reasons stated in the order granting preliminary approval, Plaintiff Lisa Swain is confirmed as class representative; Matthew B. Hayes and Kye D. Pawlenko of Hayes Pawlenko LLP are confirmed as class counsel; and CPT Group, Inc., is confirmed as the settlement administrator. The Court finds that consideration of the factors under Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) and In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th Cir. 2011) weighs in favor of granting final approval of the parties' settlement in this action. The factors include the strength of the Plaintiff's case, and the risk, expense, complexity and likely duration of further litigation. Accordingly, the hearing set for May 3, 2023, is vacated. The proposed class identified in the Settlement Agreement is certified for settlement purposes. The Plaintiff's motion for final approval of a class action settlement is granted, and the Court approves the settlement as fair, reasonable, and adequate. Named Plaintiff Lisa Swain is confirmed as class representative; the Plaintiff's counsel Matthew B. Hayes and Kye D. Pawlenko of Hayes Pawlenko LLP are confirmed as class counsel; and CPT Group, Inc. is confirmed as the settlement administrator. The Plaintiff's Fair Labor Standards Act (FLSA) claim is dismissed without prejudice. The Settlement Agreement does not provide for certification and settlement of the FLSA claim. Instead, it provides that the Plaintiff will dismiss without prejudice the FLSA claim alleged in the operative complaint. The Plaintiff's motion for attorney's fees, costs, service award, and administrative expenses is granted. The Court awards the following sums: a. Class counsel will receive $92,125 in attorney's fees and $8,277 in expenses. Class counsel will not seek or obtain any other compensation or reimbursement from Anders, the Plaintiff, or Class Members; b. The Plaintiff will receive $5,000 as a service award; c. CPT Group, Inc., will receive $8,250 in settlement administration costs; and d. The parties will direct payment of 75% of the settlement allocated to the PAGA payment, or $26,250, to the California Labor and Workforce Development Agency as required by California law, and the remainder of the PAGA payment, or $8,750, will be distributed per the Settlement Agreement. The parties are directed to effectuate all terms of the Settlement Agreement and any deadlines or procedures for distribution set forth therein. Except for the Plaintiff's FLSA claim, the action is dismissed with prejudice, with the Court specifically retaining jurisdiction over this action for the purpose of enforcing the parties' settlement agreement. The Clerk of the Court is directed to close this case. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/2n83neja from Leagle.com. ARTSPAN LLC: Brown Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Artspan, LLC. The case is styled as Lamar Brown, on behalf of himself and all others similarly situated v. Artspan, LLC, Case No. 1:23-cv-03594 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Artspan -- https://www.artspan.com/ -- is an e-commerce platform that provides products like painting, mixed media, and photography.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com ASCL VENTURES INC: Matzura Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against ASCL Ventures Inc. The case is styled as Steven Matzura, on behalf of himself and all other persons similarly situated v. ASCL Ventures Inc., Case No. 1:23-cv-03556 (S.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ASCL Ventures Inc. operates in the Audio-visual equipment and supplies industry.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal ATRIUS HEALTH: Suit Removed to D. Massachusetts ----------------------------------------------- The case captioned as Jane Doe, For herself and the class v. ATRIUS HEALTH, INC., Case No. 2384CV00597-BLS1 was removed from the Business Litigation Session of Suffolk County Superior Court, to the United States District Court for the District of Massachusetts on April 27, 2023, and assigned Case No. 1:23-cv-10923. Atrius is a non-profit multi-specialty, multi-site medical group practice in Eastern Massachusetts. An early adopter of electronic health records ("EHR") and data analytics, Atrius delivers a system of connected care for adult and pediatric patients. Atrius maintains a website, https://atriushealth.org/ (the "Atrius Website"), which Plaintiff alleges enables "healthcare consumers to obtain information about the services Atrius provides, including information about doctors, services, and treatments provided by Atrius for particular medical conditions." The Plaintiff further alleges that Defendant deployed analytics tools on the Atrius Website offered by technology and social media companies such as Google or Facebook. One of the tools Atrius has allegedly used is known as "Google Analytics," a "free" website analytics technology. According to the Complaint, "information recorded through Google Analytics and accessible by the website owner provides the website owner with insights about how users use the website, which the owner can use to improve the website." Another tool Atrius allegedly used but then removed is Facebook's "Meta Pixel," a "'snippet of JavaScript code,'" that enables logging of "visitor activity" on a website."[BN] The Defendants are represented by: Anthony E. Fuller, Esq. Maria R. Durant, Esq. Kayla H. Ghantous, Esq. HOGAN LOVELLS US LLP 125 High Street, Suite 2010 Boston, MA 02110 Phone: (617) 371-100 Facsimile: (617) 371-1037 Email: anthony.fuller@hoganlovells.com maria.durant@hoganlovells.com kayla.ghantous@hoganlovells.com - and - Allison Holt Ryan, Esq. Adam A. Cooke, Esq. HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 Phone: (202) 637-5600 Facsimile: (202) 637-5910 Email: allison.holt-ryan@hoganlovells.com adam.a.cooke@hoganlovells.com AURALEX ACOUSTICS: Matzura Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Auralex Acoustics, Inc. The case is styled as Steven Matzura, on behalf of himself and all other persons similarly situated v. Auralex Acoustics, Inc., Case No. 1:23-cv-03557 (S.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Auralex Acoustics -- https://auralex.com/ -- is a music company offering absorption, diffusion, bass trapping, and construction products.[BN] The Plaintiff is represented by: Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Email: michael@gottlieb.legal BALDOR SPECIALTY: Mercado Files Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Baldor Specialty Foods, Inc. The case is styled as Jayson Mercado, on behalf of himself individually and on behalf of all others similarly situated v. Baldor Specialty Foods, Inc., Case No. 1:23-cv-03537-ER (S.D.N.Y., April 27, 2023). The nature of suit is stated as Other P.I. for Other Property Damage. Baldor Specialty Foods, Inc. -- https://www.baldorfood.com/ -- offers a wide selection of fresh produce, meats, dairy, organics and other fine products available for quick delivery direct to customers' door.[BN] The Plaintiff is represented by: Victoria Jennings Maniatis, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 100 Garden City Plaza, Ste. 500 Garden City, NY 11530 Phone: (866) 252-0878 Fax: (212) 868-1229 Email: vmaniatis@milberg.com BELLA COTTAGE: Hernandez Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against The Bella Cottage, Inc. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. The Bella Cottage, Inc., Case No. 1:23-cv-03533 (S.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Bella Cottage, Inc. -- https://thebellacottage.com/ -- is a stylish home boutique boasts a variety of new & antique shabby-chic furnishings & decor accessories.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com BLU GURU LLC: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Blu Guru, LLC. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Blu Guru, LLC, Case No. 1:23-cv-03593 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Blu Guru, LLC is a Fashion Brand offering capri pants, caps, cargo pants, coats of denim, denim jackets and more.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com BORST LANDSCAPE: Malgieri Alleges Unpaid Wages, Illegal Termination ------------------------------------------------------------------- ROBERT MALGIERI, individually, and on behalf of all persons similarly situated, Plaintiffs v. BORST LANDSCAPE & DESIGN, INC., MARIANI ENTERPRISES, LLC and MARK BORST, in his individual and official capacities, Defendants, Case No. BER-L-002201-23 (N.J. Super., April 27, 2023) arises out of the Defendants' violations of the New Jersey Law Against Discrimination, the New Jersey Wage and Hour Law, and the New Jersey Wage Pay Law. Plaintiff Robert Malgieri began working at Borst Landscape in April 2007. At the time of his termination on December 22, 2022, he was the lawn and tree care manager. Allegedly, he was terminated as a direct result of age discrimination in violation of the NJLAD. In addition, Malgieri also owed significant overtime pay. Borst Landscape has been following illegal payment policies, which violate the NJWHL and the NJWPL, for decades. Borst Landscape: (a) only pays overtime after an employee has worked 2300 hours annually, rather than paying overtime for every week that an employee's hours exceeded 40, as required by the NJWHL and NJWPL; and (b) only paid "straight time" for overtime hours worked, rather than "time and a half," as required by the NJWHL, says the suit. Borst Landscape is a landscaping company with its headquarters in Bergen County, NJ. In or about December 2022, Borst was acquired by Mariani, a large landscaping company located in Chicago, IL. [BN] The Plaintiff is represented by: Cindy D. Salvo, Esq. THE SALVO LAW FIRM, P.C. 185 Fairfield Ave, Suite 3C/3D West Caldwell, NJ 07006 Telephone: (973) 226-2220 Facsimile: (973) 900-8800 E-mail: csalvo@salvolawfirm.com BRIGHTLINE INC: Hit With Class Suit Over Patient Data Breach ------------------------------------------------------------ Christopher Brown at bloomberglaw.com reports that Telehealth services provider Brightline Inc. negligently failed to protect the personal information of nearly 28,000 patients in connection with a January data breach by a Russian-linked ransomware group, a new proposed federal class action said. Terrance Rosa and Ryan Watson alleged that Brightline inadequately maintained its network, platform, and software, rendering its system easy prey for cybercriminals. The plaintiffs now suffer from an increased and imminent risk of fraud and identity theft and will likely incur lost time and additional costs for the purchase of credit-monitoring and other protective services, they said. [GN] BURLINGTON STORES: Court Refuses to Approve $11MM Class Settlement ------------------------------------------------------------------ In the case, KIM PAYTON-FERNANDEZ, LAVERN COLEMAN, and DARNIEL WILLIAMS, individually and on behalf of all other persons similarly situated, Plaintiffs v. BURLINGTON STORES, INC., et al., Defendants, Civil No. 22-608 (AMD) (D.N.J.), Magistrate Judge Ann Marie Donio of the U.S. District Court for the District of New Jersey, Camden Vicinage, denies the Plaintiffs' motion for court approval of the class settlement without prejudice. In this case, Plaintiffs Payton-Fernandez, Coleman, and Williams, allege that Defendants Burlington Stores, Inc., Burlington Coat Factory Warehouse Corp., Burlington Coat Factory Investment Holdings, Inc., and Burlington Coat Factory Holdings, LLC, violated federal and California wage and hour laws by misclassifying them as exempt under federal overtime laws and failing to pay them overtime wages. Payton-Fernandez, individually and on behalf of similarly situated others within the United States, filed a complaint on Feb. 4, 2022 against the Defendants seeking unpaid overtime wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201 et seq. She alleged in the complaint that she was employed by the Defendants as a assistant store manager from August 2013 to October 2020 and that she regularly worked in excess of forty hours per week without receiving overtime compensation. She further alleged in the complaint that she is similarly situated to other current and former employees of the Defendants who purportedly held comparable positions with different titles and who also worked more than forty hours in a work week. The Court conducted a telephonic conference on July 12, 2022, at which time the Court granted the parties' joint request for a 30-day stay of proceedings pending private mediation. The parties reached a settlement. On Sept. 21, 2022, the Plaintiffs filed a unopposed motion to amend the complaint and the instant unopposed motion for settlement approval. The Court granted the motion to amend, and the Plaintiffs filed the amended complaint on Oct. 27, 2022. The amended complaint defines a nationwide collective consisting of "current and former Assistant Store Managers, and similarly situated current and former employees holding comparable positions but different titles, employed by the Defendants within the United States, who worked more than 40 hours in any given workweek from three years before the date this Complaint was filed until the entry of judgment in this matter and who elect to opt into this action pursuant to 29 U.S.C. Section 216(b)." The amended complaint also adds the opt-in plaintiffs, Coleman and Williams, as named Plaintiffs, and includes a cause of action by Coleman pursuant to California's Private Attorneys General Act of 2004 ("PAGA"), Cal. Lab. Code Section 2698 et seq., on behalf of herself and as a representative of all aggrieved California members of the collective, for alleged violations of California's Labor Code and Industrial Welfare Commission (hereinafter, "IWC") Wage Orders. The Plaintiffs now seek an order certifying an FLSA collective for settlement purposes and approving a settlement of the FLSA and PAGA claims. They represent that after a full day of mediation, they agreed to settle the case for a maximum settlement amount of $11 million. Subject to court approval, they assert that the settlement amount would provide payments to the proposed potential collective, which they contend is comprised of 1,715 individuals, with an average award of $6,414 to each collective member, a $15,000 payment to resolve the PAGA claims, a service award to each of the named Plaintiffs in the amount of $10,000, attorneys' fees in the amount of $3,281,556.88, expenses in the amount of $18,443.12, and payment to the settlement administrator in the amount of $32,699. In addition, pursuant to the settlement terms, checks would be mailed to every potential collective member with notice that if the checks are cashed or deposited, the collective members would be releasing their FLSA claims against the Defendants. The Defendants do not oppose the motion. The Court held a telephonic conference in connection with this motion on Jan. 19, 2023 and directed supplemental briefing to be filed. The Plaintiffs' counsel filed a supplemental brief on Feb. 2, 2023. Judge Donio has considered the submissions and decides the matter pursuant to Federal Rule of Civil Procedure 78(b). She rejects the proposed settlement at this time for several reasons. First, she says the Plaintiffs request certification without any analysis as to whether the putative collective members are similarly situated. Moreover, the named Plaintiffs seek to settle claims for putative plaintiffs who have not yet opted into the case. In addition, Judge Donio rejects the proposed process of allowing putative collective members to opt in by cashing a settlement check. She also is unable to determine the reasonableness of the attorneys' fee award. In summary, Judge Donio denies the motion without prejudice. If the parties seek to settle the suit as a collective action, they must cure the defects in substance and use a procedural mechanism consistent with an FLSA collective action, not a class action. Once the potential plaintiffs have been given notice and an opportunity to opt into the suit and the parties thereafter reach a settlement, the Plaintiffs may move for final certification and approval of the proposed settlement, specifically addressing the concerns set forth. A full-text copy of the Court's April 28, 2023 Opinion & Order is available at https://rb.gy/ticqr from Leagle.com. Michael A. Galpern, Esq. -- mgalpern@lawjw.com -- Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, Laurel Oak Corporate Center, Voorhees, NJ. Seth Richard Lesser, Esq. -- seth@klafterlesser.com -- Klafter Lesser LLP, Rye Brook, NY, Counsel for the Plaintiffs. August W. Heckman, III, Esq. -- august.heckman@morganlewis.com -- Rudolph J. Burshnic, Esq. -- rudolph.burshnic@morganlewis.com -- Morgan, Lewis & Bockius LLP, Princeton, NJ, Counsel for the Defendants. CEDARS-SINAI HEALTH: Browne Suit Moved to Los Angeles Super. Court ------------------------------------------------------------------ Judge Dale S. Fischer of the U.S. District Court for the Central District of California remands the case, JARROD BROWNE, individually and on behalf of all other persons similarly situated, Plaintiff v. CEDARS-SINAI HEALTH SYSTEM, et al., Defendants, Case No. CV 23-01551 DSF (JPRx) (C.D. Cal.), to the Superior Court of the State of California for the County of Los Angeles. On Jan. 10, 2023, Browne filed a class action lawsuit on behalf of himself and all others similarly situated, alleging that Cedars-Sinai aided, employed, agreed, and conspired with Facebook to intercept communications sent and received by Browne and class members, including communications containing protected medical information, without their knowledge, consent, or express written authorization. He alleges that Cedars-Sinai utilizes Facebook's Tracking Pixel, a Facebook Business Tool that tracks people and the types of actions they take, which allows Facebook to duplicate patient communication with Cedars-Sinai and transmit it to Facebook's servers. After Facebook collects and intercepts the information, it analyzes the data and assimilates it into datasets like Core Audiences and Custom Audiences. Browne alleges that through Facebook Pixel, Cedars-Sinai shares its patients' identities and online activity, including personally identifiable information and search results related to their private medical treatment. Browne asserts the following causes of action: (1) violation of California's Invasion of Privacy Act, Cal. Penal Code Sections 630, et seq.; (2) violation of California's Confidentiality of Medical Information Act, Cal. Civ. Code Sections 56, et seq.; and (3) invasion of privacy in violation of the California Constitution. On March 1, 2023, Cedars-Sinai removed the case to federal district court pursuant to 28 U.S.C. Section 1442(a)(1), the federal officer removal statute. Cedars-Sinai asserts that over the past two decades, the federal government has engaged in an extensive effort to build a nationwide health information technology infrastructure, and the case challenges the legitimacy of actions Cedars-Sinai has taken in connection with pursuing that directive. It contends that it has dutifully assisted and followed the federal government's direction as part of a public-private initiative to develop a nationwide infrastructure for health information technology, and in doing so, "has acted within the penumbra of federal action and office. It argues that it qualifies as a "person" under the statute and has acted under a federal officer. Browne argues that the case should be remanded to state court because Cedars-Sinai has not met its burden of establishing that its actions were taken pursuant to a federal officer's directions. He also asserts that language in Cedars-Sinai's notice of removal demonstrates that the Meaningful Use Program (MUP) was optional, not mandated, as required to "transform a public entity into a federal officer," and that there is nothing to suggest that Cedars-Sinai was ordered by the government to implement the Facebook Pixel on the portal at issue and transmit highly sensitive patient information to Facebook without patients' knowledge or consent. Judge Fischer holds that a private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase 'acting under' a federal 'official.' And that is so even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored. Courts may not interpret Section 1442(a) to expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against private firms in many highly regulated industries. The directions Cedars-Sinai points to are general regulations and public directives regarding the development of health information technology and an electronic health records infrastructure. Therefore, removal is not justified by federal officer jurisdiction. Therefore, Judge Fischer grants the motion to remand. He remands the case to the Superior Court of California, County of Los Angeles. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/7tmfy from Leagle.com. CENIKOR FOUNDATION: Urges 5th Circuit to Decertify Patient Suit --------------------------------------------------------------- courthousenews.com reports that a drug rehab organization accused of exploiting addicts and providing them minimal counseling asked a Fifth Circuit panel to reverse certification in an unpaid wages class action brought by its former patients. Employment is the cornerstone of the Cenikor Foundation's approach to helping addicts get clean. "We help nearly 10,000 people per year on their individual roads to recovery -- and to a better, healthier life," says the Houston-based nonprofit, which has 10 facilities in Texas and one in New Mexico. Cenikor believes "meaningful work instills crucial self-confidence and achievement, which empower individuals as they reclaim their sobriety," it states on its website. Yet lead plaintiff Timothy Klick claims its high-minded ideals are a farce. He says it treated him and other recovering addicts like slaves, farming them out to work for various companies, including Walmart, ExxonMobil and Shell, for long hours that left no time for counseling after having them sign contracts stating they would not be paid wages, but would receive housing, food, clothing and medical care during a 16- to 18-month period of vocational therapy. It even barred them from having any spending money. Klick checked himself into Cenikor's Fort Worth facility in September 2018 after a Cenikor recruiter gave a presentation at a different rehab program he was enrolled in, according to his May 2019 lawsuit. Cenikor assigned him and several other patients to work for dinnerware maker ThermoServ at its Dallas plant. He says he worked full-time there and sometimes 50 to 60 hours per week. "Klick quit the program because he was being exposed to what he believed were dangerous chemicals at ThermoServ and because he was not being paid for the long hours he was required to work," he says in his lawsuit. Despite its nonprofit status, Cenikor's staffing services were lucrative, the plaintiffs claim. From 2017 to 2020, they say, Cenikor's clients paid it more $19 million for its patients' work. Cenikor stopped the program in 2021 after Reveal and the Center for Investigative Reporting published an exposé, citing former Labor Department officials who said its business model likely violated the Fair Labor Standards Act, and former patients who said it made them work grueling hours in unsafe conditions without proper training and safety gear. Following consolidation of Klick's lawsuit with five others filed by Cenikor alums, U.S. District Judge Keith Ellison, a Bill Clinton appointee, certified a class action. He determined their claims were so similar the merits question of whether they were in fact employees entitled to cash wages -- and not volunteers as Cenikor maintains -- should be hashed out collectively in one case. More than 200 ex-Cenikor patients have joined the class action and another 2,500 are eligible to opt in. Cenikor appealed the class certification to the Fifth Circuit and a three-judge panel of the New Orleans-based appellate court heard arguments. Cenikor's attorney, Chris Dove, stressed the terms were clear in its work program enrollment forms. "You agree that you are a volunteer, a beneficiary of the services being provided to you, and you are not an employee. You are told you will have to work as part of your therapy and you will not receive cash wages," said Dove, a Locke Lord partner. Dove argued Cenikor tailored its program to the needs of its patients and plaintiffs' cases should be analyzed separately with inquiries into whether they worked for Cenikor with the expectation of compensation or for the "personal purpose" of getting sober. Plaintiffs' attorney John Borsellino, principal of the Fort Worth firm Borsellino PC, urged the panel to affirm class certification. He said an "economic realities test" the U.S. Supreme Court established in its 1985 Alamo Foundation v. Secretary of Labor decision makes clear Cenikor's patients were employees entitled to federal labor law protections. The Tony and Susan Alamo Foundation was a nonprofit religious organization that employed around 300 destitute recovering drug addicts, ex-convicts and petty criminals in its commercial businesses. Instead of paying these "associates" cash wages, it compensated them with shelter, food and clothing. The Labor Department sued the foundation claiming violations of the Fair Labor Standards Act's minimum wage and overtime pay requirements. While the associates who testified at trial insisted they were volunteers, the trial court found, and the Supreme Court affirmed, they were actually employees because the benefits the foundation provided to them were another form of wages. Dove tried to distinguish Alamo's treatment of its associates. "What happened there is you went to stay with the Alamo Foundation … You were told you must work to eat. If for any reason you don't work, you were ill, you injured yourself, you don't eat. "This is a very different situation. It is not a quid pro quo. It is not a you-must-do-this or else," he added. U.S. Circuit Judge James Graves, a Barack Obama appointee, questioned what happened to Cenikor patients if they did not work. Dove said counselors would talk to them and try to find out why they were having trouble adapting to work; many had not had a job in a long time due to their struggles with addiction. And Cenikor would offer to place them with a different employer. But he acknowledged if they refused to work, Cenikor could kick them out of the program. "Because to graduate you are going to have to hold down a job." Borsellino countered that all the Cenikor class members meet the Alamo test for employment. "In Alamo the long period of economic dependence by program participants was significant because it created the inference that workers must have expected something in return for their work, namely the in-kind benefits on which they survived," Borsellino argued. "Similarly here, program participants were entirely dependent on Cenikor for all of their needs for 18 to 24 months," he continued. Noting that some Cenikor patients were enrolled in the program by court order in their criminal cases, U.S. Circuit Judges Stephen Higginson and Dana Douglas, Barack Obama and Joe Biden appointees, respectively, asked Borsellino if that would undercut class consideration. But Borsellino insisted the plaintiffs are "similarly situated," a standard for certifying class actions. "They all lived at the same facilities. They all accepted the same policies. They all signed same the paperwork," he said. The judges did not say when they would rule on the appeal. [GN] CHARLES R. GRACIE: Black Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Charles R. Gracie & Sons, Inc. The case is styled as Jahron Black, on behalf of himself and all others similarly situated v. Charles R. Gracie & Sons, Inc., Case No. 1:23-cv-03218 (E.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Charles R. Gracie & Sons, Inc. -- https://shop.graciestudio.com/ -- offers a wide range of entirely handpainted Gracie panels in beautiful silver and gold frames with antique patina.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com CHOICE HEALTH: Dale County Woman Files Telemarketing Class Suit --------------------------------------------------------------- Ken Curtis at wtvy.com reports that a Dale County woman frustrated with telemarketing calls filed a class action lawsuit against an insurance provider and its digital marketing company, alleging they violated laws by making frequent, unwanted calls to her cellphone. Juanita Williams named Choice Health Insurance, LLC, and Digital Media Solutions LLC defendants in the federal suit filed in the Middle District of Alabama. Ms. Williams, according to that suit, rejected calls from the defendants on August 16, 17, 19, 22, 26, 30, 2022, and September 6, 9, 16, 19, and 30, 2022, though she had previously signed up on the National Do Not Call registry. Only once did she respond to a call and then to verify that Choice Health was the insurance provider soliciting her. The lawsuit claims that Choice Health told Williams that she agreed to receive calls, but the company failed to provide a copy of her consent and continued to place telemarketing calls to her phone. According to the suit, Digital Media Solutions, a marketing company Williams claims violated the Do Not Call registry, made those calls. DMS has been the target of at least six similar lawsuits since 2020, her lawsuit alleges. Williams believes she and those who join her class action are entitled to receive up to $1500 for each violation. Neither Choice Health nor Digital Media has filed a legal response to the accusations but News 4 requested a comment from a legal representative who represents DMS. In an unrelated case, Merrill Lynch agreed to pay $1.4 million to settle charges that its trainees made phone calls to numbers on the National Do Not Call Registry, according to multiple reports. The NDNC registry was created in 2003 to protect consumers from unscrupulous telemarketers. Subscribe to our News 4 newsletter and receive the latest local news and weather straight to your email every morning. Get instant notifications on top stories from News 4 by downloading our mobile apps. [GN] COINBASE GLOBAL: Faces Class Suit Over Biometric Collection ------------------------------------------------------------ Kelsey McCroskey at classaction.org reports that a proposed class action claims Coinbase has wrongfully collected, stored, shared and profited from Illinois residents' biometric data, including facial and fingerprint scans. The 19-page lawsuit alleges that the cryptocurrency exchange has unlawfully captured and stored thousands of face templates and fingerprint scans from consumers who use the Coinbase app, in particular by requiring new users to upload selfies and photos of their state-issued IDs and to scan their fingerprints to log in. The suit says that the company has run afoul of the Illinois Biometric Information Privacy Act (BIPA) by collecting, storing and disclosing to numerous third parties users' biometric data without notice or express consent. In addition, the case claims that Coinbase, in direct violation of the BIPA, has failed to publish specifics about the purpose and length of time for which it will store the biometric information. A consumer who opens a new Coinbase account is required to upload a real-time photo of their face and a picture of a valid ID card, which the platform then uses to create a detailed template of the user's facial geometry and verify their identity, the complaint explains. Coinbase users are also required to scan their fingerprint each time they log into the mobile app, the filing states. By Illinois law, biometric information must be permanently destroyed once the purpose for collecting it has been fulfilled, or after three years have passed since a user last accessed the platform, the lawsuit shares. As the suit tells it, Coinbase should have deleted the facial scans at issue after a consumer had successfully opened an account, and destroyed the fingerprint scans after the person had logged out or closed their account. However, according to the case, Coinbase failed to do so on both counts. What's more, the complaint alleges that the company has unlawfully disseminated consumers' biometric data to numerous third parties such as Jumio Corporation, Onfido, Inc., Au10tix LTD, Solaris AG and Liquid Co., Ltd, among others. The plaintiff, an Illinois resident and Coinbase user, was unaware that the company had collected, stored and shared his biometric information because he never received notice or gave his consent, the filing says. The lawsuit looks to represent any Illinois residents whose biometric information was collected by Coinbase at any point since May 1, 2018. [GN] CORECIVIC INC: Filed Petition for Writ of Certiorari to Sup. Ct. ---------------------------------------------------------------- CORECIVIC, INC. filed a petition for writ of certiorari in the lawsuit entitled Sylvester Owino, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. CoreCivic, Inc., Defendant, Case No. 21-cv-55221, in the U.S. District Court of Appeals for the Ninth Circuit. The case type is stated as Civil/Private. The appellate case is captioned CoreCivic, Inc., Petitioner vs. Sylvester Owino, et al., Case No. 22-1019, in the Supreme Court of United States, filed on April 20, 2023. [BN] Defendant-Petitioner CORECIVIC, INC. is represented by: Roman Martinez, Esq. LATHAM & WATKINS, LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 E-mail: roman.martinez@lw.com CORNING INC: Loses Bid to Dismiss Pittman's Claims in Modern Suit ----------------------------------------------------------------- Judge Gregory F. Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky, Central Division, Lexington, denies the Defendants' motion to dismiss in the lawsuit entitled MODERN HOLDINGS, LLC, et al., Plaintiffs v. CORNING, INC., et al., Defendants, Case No. 5:13-cv-00405-GFVT (E.D. Ky.). The matter is before the Court on the Defendants' Motion to Dismiss Kayelynn Ford Pittman's Claims under Rule 41(b) of the Federal Rules of Civil Procedure for failure to participate in the case. In November 2013, the Plaintiffs filed a putative class action against the Defendants, alleging that the Defendants released chemicals from a facility that caused damage to their properties. After Plaintiff Rosetta Ford sold her property to Kayelynn Pittman, the Court replaced Ms. Ford with Ms. Pittman in this action. In 2022, the parties informed the Court of a pending settlement offer between the Plaintiffs and Defendant Corning. The Court granted Ms. Pittman seven days to further consider whether to accept the offer and to notify her attorney. Partly because Ms. Pittman sought "further review by a Danville lawyer," she did not. Counsel for Ms. Pittman then filed a motion to withdraw as her attorney. The Court allowed Ms. Pittman's counsel to withdraw and ordered her to obtain new counsel within 30 days. After failing to find new counsel, Ms. Pittman requested an additional 30 days, which the Court granted. She failed to file anything within those additional 30 days. The Defendants now move to dismiss Ms. Pittman's claims for failure to prosecute. She responded, confirming that she could not find counsel and requesting to proceed pro se. In Cornett v. Dobson, 338 F.R.D. 97, 99 (E.D. Ky. 2021)), the district court considers four factors when determining whether to dismiss a case under Rule 41(b): (1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered . After review, the Court finds that dismissal is inappropriate. Under the first factor, although there is no indication that Ms. Pittman's failure to find counsel was driven by bad faith, she is nonetheless at fault for failing to comply with the Court's Order. Second, a defendant is prejudiced by a plaintiff's dilatory conduct if the defendant was required to waste time, money, and effort in pursuit of cooperation, which the plaintiff was legally obligated to provide. While the Defendants have certainly suffered a minor inconvenience by Ms. Pittman's delay, Judge Van Tatenhove opines that the Defendants fail to demonstrate prejudice beyond a mere postponement of the resolution of the matter. Ms. Pittman's failure to comply with the Court's deadlines stems from her inability to find new counsel. But she has responded to the Defendants' motion and resolved to litigate her claims herself. Under the third factor, the Court finds that Ms. Pittman has not been sufficiently warned of the consequences of a lack of cooperation, having been warned only once when she did not notify the Court as to her settlement decision. Fourth, holding a status conference to discuss this matter's resolution and imposing deadlines is more appropriate at this point than dismissal, Judge Van Tatenhove holds. Although Ms. Pittman was at fault for failing to comply with the Court's orders and her failure delayed this matter's resolution, she has not been sufficiently warned about dismissal and less drastic action is more appropriate, Judge Van Tatenhove explains. Her conduct does not display either an intent to thwart judicial proceedings or a reckless disregard for the effect of her conduct on those proceedings. As Ms. Pittman now intends to prosecute this case herself, the Court admonishes her that she must comply with the Court's orders and the District's local rules. She must not unreasonably delay in prosecuting her claims. The Court may dismiss her claims if she fails to do so. Accordingly, and the Court being sufficiently advised, Judge Van Tatenhove denies the Defendants' Motion to Dismiss Kayelynn Ford Pittman's Claims. The case is referred to Magistrate Judge Edward B. Atkins for the purpose of conducting a status conference. A full-text copy of the Court's Memorandum Opinion & Order dated April 17, 2023, is available at https://tinyurl.com/yecn8b7u from Leagle.com. COSTCO WHOLESALE: Wins Bid for Arbitration; Dimas Suit Dismissed ---------------------------------------------------------------- Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California grants the Defendants' Motion to Compel Arbitration in the lawsuit titled MAYOLO DIMAS, on behalf of himself and others similarly situated, Plaintiff v. COSTCO WHOLESALE CORPORATION and EMPLOYBRIDGE HOLDING COMPANY dba SELECT STAFFING, Defendants, Case No. 2:21-cv-02006-TLN-JDP (E.D. Cal.). On July 2, 2021, the Plaintiff filed this putative class action against the Defendants in Superior Court of the State of California for the County of San Joaquin alleging various state law wage and hour violations. On Oct. 29, 2021, the Defendants removed the action to this Court pursuant to the Class Action Fairness Act. The Defendants filed the instant motion to compel arbitration on Nov. 24, 2021. The only issue presently before the Court is whether the arbitration agreement the Plaintiff electronically signed as part of his employment application is enforceable. Although the parties dispute many of the facts relevant to this motion, the Court ultimately finds that the Defendants' motion should be granted even if the Court accepts the Plaintiff's version of the facts as true. As such, the Court will only present the Plaintiff's version of the facts here. The Plaintiff primarily speaks and reads in Spanish. He can only communicate verbally in English in basic conversation and is unable to read English except for basic words. In February 2020, the Plaintiff visited a Select Staffing temporary employment agency in Stockton, California, looking for work. During the initial visit, the Plaintiff was unable to communicate with the Select Staffing employee, who spoke limited Spanish. The employee instructed the Plaintiff to return when another employee, who spoke Spanish and English, could help him. The Plaintiff returned the next day and communicated with another Select Staffing employee only in Spanish. The employee informed the Plaintiff he needed to fill out information on a computer to apply for work. The Plaintiff told the employee he did not know how to use computers, so the employee set up a computer at the agency for him to use. The employee assisted the Plaintiff in filling out information and selecting a username and password. The forms Plaintiff completed were in English, and he did not recall seeing an option to complete the forms in Spanish. The employee did not inform the Plaintiff there were Spanish versions of the forms or that the Plaintiff could fill out the information on a computer at home. The Plaintiff completed the forms at the Select Staffing agency location as the employee provided vague descriptions of the documents. The employee never used the word "arbitration" or told the Plaintiff that he was signing an agreement or contract giving up his right to file a lawsuit against the company. In moving to compel arbitration, the Defendants argue there is an enforceable arbitration agreement that encompasses the claims at issue. In opposition, the Plaintiff argues only that the arbitration agreement is unenforceable. The Plaintiff does not dispute that the agreement, if enforceable, encompasses the claims at issue. In the instant case, the Plaintiff raises the defense of fraud in the execution. The Plaintiff relies on three cases that are relevant to the Court's conclusion: (1) Castillo v. CleanNet USA, Inc., 358 F.Supp.3d 912, 928 (N.D. Cal. 2018); (2) Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.4th 394, 413 (1996); and (3) Ramos v. Westlake Servs., 242 Cal.App.4th 674, 686-87 (2015). Judge Nunley holds that the instant case is distinguishable from Castillo, Rosenthal, and Ramos. At the outset, these cases clearly indicate that the Plaintiff's inability to understand English, without more, is not dispositive. Further, Judge Nunley opines, unlike the plaintiffs in Castillo and Ramos, the Plaintiff does not allege that he asked for or was given a Spanish version of the documents. Instead, the Plaintiff simply chose to sign the English version of the documents after being given "vague" descriptions of the documents. In sum, the Court finds the arbitration agreement is enforceable and encompasses the claims at issue. The Defendants request the Court dismiss this action (including the class claims that are subject to the class action waiver) rather than stay the action pending arbitration. The Plaintiff does not request a stay or oppose dismissal of the class claims. Accordingly, the Court dismisses the action in its entirety. For these reasons, the Court grants Defendants' Motion to Compel Arbitration and dismisses this action. The Clerk of Court is directed to close the case. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/3rdja8py from Leagle.com. COTE IP LLC: Cruz Files ADA Suit in E.D. New York ------------------------------------------------- A class action lawsuit has been filed against Cote IP, LLC. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Cote IP, LLC, Case No. 1:23-cv-03222 (E.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cote IP, LLC -- https://www.cotecapital.com/ -- designed IP Capital which dis a simple, secure and cash flowing investment model, designed so that everyday investors can participate with COTE in changing the course of our nation.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DE GOURNAY INC: Black Files ADA Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against De Gournay, Inc. The case is styled as Jahron Black, on behalf of himself and all others similarly situated v. De Gournay, Inc., Case No. 1:23-cv-03221 (E.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. de Gournay -- https://degournay.com/ -- is a British luxury interiors company, specializes in creating exquisite hand painted wallpaper, fabrics, porcelain and hand carved furniture.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DECKERS OUTDOOR: Brown Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Deckers Outdoor Corporation. The case is styled as Lamar Brown, on behalf of himself and all others similarly situated v. Deckers Outdoor Corporation, Case No. 1:23-cv-03596 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Deckers Outdoor Corporation, doing business as Deckers Brands -- https://www.deckers.com/ -- is a footwear designer and distributor based in Goleta, California.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DEVOCION HOLDINGS: Cruz Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Devocion Holdings, LLC. The case is styled as Miriam Cruz, on behalf of herself and all others similarly situated v. Devocion Holdings, LLC, Case No. 1:23-cv-03225 (E.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Devocion -- https://www.devocion.com/ -- https://www.devocion.com/ offers the freshest coffee straight from the farm, sourced from Colombia and roasted in Brooklyn.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 14749 71st Ave. Flushing, NY 11367 Phone: (917) 915-7415 Email: mars@khaimovlaw.com DISH NETWORK: Colorado Court Tosses 401(k) Class Action ------------------------------------------------------- Wes Stockard, Esq. -- wstockard@littler.com -- and James Fielding, Esq. -- jfielding@littler.com -- of Littler, disclosed that fiduciaries of retirement plans continue to be plagued by class actions brought under the Employee Retirement Income Security Act (ERISA) challenging their fiduciary management of investment options and participant fees. A recent federal court decision, however, shows that fiduciaries of ERISA retirement plans may be able to attack and defeat complaints alleging breaches of ERISA fiduciary duties at the pleading stage if the right arguments are made and if certain fact patterns are present. In Jones v. Dish Network Corp., pending before the U.S. District Court for the District of Colorado (Case No. 1:22-cv-00167-CMA-STV), the Plaintiffs sued the Dish Network Corporation, its Board of Directors, and its Retirement Plan Committee (the "Defendants") alleging they breached their ERISA fiduciary duties of prudence and loyalty with respect to the company's 401(k) Plan (the "Plan"). Specifically, the Plaintiffs alleged that the Defendants selected and retained both a total return institutional class fund (the "Class Fund") and an actively managed target date suite of funds (the "Managed Funds") in the Plan's investment option menu despite alleged poor market performance and high expense ratios. The Plaintiffs also alleged it was imprudent to allow the Plan to pay excessive recordkeeping and administrative fees. The Defendants filed a motion to dismiss the Plaintiffs' complaint. Their motion was referred to a magistrate judge. On January 31, 2023, the magistrate judge issued a report and recommendation that recommended granting the Defendants' motion. A district judge then adopted that report and recommendation and entered an order dismissing the Plaintiffs' complaint on March 27, 2023. The Plaintiffs' Imprudent Investment Allegations In their motion, the Defendants argued the Plaintiffs lacked standing to challenge the Class Fund as an imprudent investment selection. The court agreed, holding that the Plaintiffs did not have standing because no Plaintiff ever invested in the Class Fund. The Plaintiffs argued they were challenging the Defendants' investment selection and monitoring process as a whole, but the court reasoned that because none of the Plaintiffs had ever invested in the alleged imprudent fund they did not allege an injury that could be traced back to the allegedly imprudent decision to retain the Class Fund, or the process used to make that decision. So, they had no standing to challenge decision-making process for the Class Fund. The Defendants also argued the Plaintiffs' complaint failed to plausibly plead a breach of the ERISA duty of prudence regarding the Managed Funds because the complaint did not contain facts that, if true, demonstrated a flawed fiduciary decision-making process. The court accepted this argument, reasoning that the Plaintiffs had not pled facts supporting an inference that the Defendants had a flawed process for reviewing the Managed Funds. The Plaintiffs argued it was imprudent to offer the Managed Funds to plan participants, as they were actively managed and had higher fee ratios than the lower cost index versions of the Managed Funds. Yet the court reasoned that it is not per se unreasonable to offer actively managed funds, and that prudent fiduciaries offer ranges of reasonable investment options – including funds that are actively and passively managed. The mere inclusion of a higher-cost investment option therefore did not support an inference that the process the Defendants used to evaluate investment funds was imprudent. The Plaintiffs also argued that retaining the Managed Funds was imprudent because Morningstar reports indicated that investors were pulling investments out of the Managed Funds. The court rejected this argument, reasoning that the Morningstar reports should be considered as a whole "rather than cherrypicked for statements supporting Plaintiffs' position[.]" So, the Plaintiffs were unable to establish the Managed Funds had such a poor reputation that no reasonable fiduciary would have retained them. The Plaintiffs' Excessive Fee Allegations The Plaintiffs also claimed the Defendants breached their ERISA fiduciary duties by allowing the Plan to pay unreasonable recordkeeping and administrative fees. They tried to point to comparator plans with lower fees to support this assertion. Yet the court dismissed the claim, reasoning that both the Plaintiffs' calculations and comparisons were flawed. To support their claim, the Plaintiffs averaged the Plan's per-participant administrative fees over five years. They then found purported comparator plans that paid lower per-participant administrative fees in the year 2020 than the Plan had during the five-year period. The court, however, rejected this pleading methodology and reasoned that the attempt to compare the Plan's average fee over five years with fees paid by comparators during a single year was "inapt and insufficient for the Court to plausibly infer that the Plan's [administrative] fees were excessive." The Plaintiffs' Breach of Duty of Loyalty Allegation The Plaintiffs further alleged that the Defendants' selection and retention of the Managed Funds constituted a breach of the ERISA fiduciary duty of loyalty. They claimed the Defendants' actions allowed the investment firm managing those funds to collect allegedly improper compensation. Yet the court dismissed this claim because the Plaintiffs did not plead any facts demonstrating that the Defendants acted with the purpose of improperly benefiting themselves or the investment firm at the Plan's expense. So, the Plaintiffs failed to plead a breach of the duty of loyalty because they presented no facts indicating that the Defendants' acted with a motive of placing their own economic interests, or the interests of the investment firm, before the best interests of the Plan. Takeaways Fiduciaries of ERISA retirement plans are still being targeted by class actions brought under ERISA accusing fiduciaries of acting imprudently or not being loyal to the interests of the participants in the retirement plans for which they are responsible. Fiduciaries facing such complaints should review the allegations carefully and consider how the facts and methodology offered by the plaintiffs can be challenged if, taken as a whole, they show that the plaintiffs lack standing or have not pled enough facts to suggest a flawed fiduciary process. [GN] DOCTORS MEDICAL: Judgment of Dismissal in Naranjo Suit Reversed --------------------------------------------------------------- In the case, JOSHUA NARANJO, Plaintiff and Appellant v. DOCTORS MEDICAL CENTER OF MODESTO, INC., Defendant and Respondent, Case No. F083197 (Cal. App.), the Court of Appeals of California, Fifth District, reverses the judgment of dismissal entered after the trial court sustained a demurrer to Naranjo's first amended complaint without leave to amend. Naranjo filed a class action lawsuit against Medical Center seeking declaratory and injunctive relief and alleging violations of the unfair competition law (UCL) (Bus. & Prof. Code, Section 17200 et seq.) and the Consumer Legal Remedies Act (CLRA) (Civ. Code, Section 1750 et seq.) in connection with Medical Center's emergency room billing practices. Naranjo alleged Medical Center's practice of charging him (and other similarly situated patients) an undisclosed Evaluation and Management Services Fee (EMS Fee) was an unfair, deceptive, and unlawful practice. On Aug. 15, 2019, Naranjo received emergency treatment/services at Medical Center. He signed a form contract (i.e., the COA) that was presented to him by Medical Center. However, he was never warned or notified that Medical Center would charge him an emergency room evaluation and management services fee (EMS Fee) on top of the individual charges for each item of treatment and services provided. The COA contained no agreement for Naranjo to pay a separate EMS Fee and Naranjo did not know Medical Center would add the EMS Fee to his bill. On March 12, 2021, Naranjo filed his original class action complaint against Medical Center seeking declaratory and injunctive relief and alleging violations of the UCL and CLRA. On April 27, 2021, Naranjo filed the FAC again seeking the same or similar relief and alleging the same or similar statutory violations as alleged in his original complaint. According to the allegations in first amended complaint (FAC), the operative complaint, the EMS Fee is effectively hidden from patients who might otherwise look for less costly medical treatment and services elsewhere, such as at an urgent care facility or private doctor, or even forego treatment altogether. The FAC also contains allegations relevant to Naranjo's class action claims and the requirements necessary for class certification. Naranjo alleged he has suffered economic injury because of Medical Center's EMS Fee billing practices and seeks damages and restitution in addition to declaratory and injunctive relief. On May 28, 2021, Medical Center demurred to each cause of action alleged in the FAC on grounds each failed to state facts sufficient to state a cause of action (Code Civ. Proc., Section 430.10, subd. (e)). As part of its filing, Medical Center requested the trial court take judicial notice of the COA signed by Naranjo when he was seen at Medical Center's emergency department, and other decisions. Naranjo opposed the demurrer and Medical Center's requests for judicial notice. Thereafter, Medical Center filed a reply brief in support of its demurrer and a supplemental request for judicial notice. On July 7, 2021, the trial court issued its tentative ruling to sustain the demurrer without leave to amend as to each cause of action in the FAC. The ruling indicated the court's decision to grant Medical Center's request to judicially notice the COA. A minute order adopting the tentative ruling issued that same day. A second minute order to the same effect (but which added information concerning the procedural background of the case) issued on Aug. 9, 2021. On Aug. 11, 2021, judgment was entered against Naranjo and in favor of Medical Center. Naranjo timely appealed. On appeal, Naranjo contends he adequately alleged claims for declaratory and injunctive relief, violation of the UCL, and violation of the CLRA. Alternatively, he contends he should have been granted leave to amend to add a claim for breach of contract. He further contends that he adequately alleged facts to support his claim that Medical Center had a duty to disclose its EMS Fee billing policy and practice; that the trial court's finding that Medical Center had complied with its statutory duty to post its Chargemaster online "cannot be discerned from the pleadings" and "no evidence" of compliance was before the court; that the statutory scheme that requires a hospital to post its Chargemaster online is unrelated to the issue of whether Medical Center improperly failed to disclose its EMS Fee billing practices to patients; and that the court erred in determining compliance with statutory disclosure requirements insulates Medical Center from liability under the UCL. Initially, both parties have requested the Court of Appeals takes judicial notice of certain documents. The Court of Appeals deferred ruling on these requests pending consideration of the merits of the appeal. It denies both parties' requests for judicial notice. The Court of Appeals then turns to the judgment of dismissal. It opines that Naranjo has sufficiently alleged a claim against Medical Center under the CLRA. First, Naranjo has alleged Medical Center's EMS Fee billing practices were known exclusively to Medical Center and that information in that regard was not reasonably accessible to Naranjo. Second, Naranjo alleged Medical Center's posting of its Chargemaster gives no notification or warning that it charges a separate 'surprise' EMS Fee for an emergency room visit. Third, Naranjo sufficiently alleged the materiality of the nondisclosure. Fourth, Naranjo sufficiently alleged reliance, causation, and damages. Next, the Court of Appeals concludes that Naranjo has stated a valid claim under the CLRA. It likewise concludes his CLRA claim is independently actionable under the UCL and is tethered to the legislative policies underlying the CLRA. Naranjo is also entitled to seek declaratory relief regarding each controversy stated. The Court of Appeals concludes he has adequately stated a cause of action for declaratory relief. Finally, having determined Naranjo has stated valid causes of action under the CLRA, UCL and declaratory relief statute, the Court of Appeals need not consider whether the trial court abused its discretion in denying Naranjo leave to amend. The trial court is to consider anew any future motion to amend should Naranjo file such a motion. In view of the foregoing, the Court of Appeals reverses the judgment of dismissal. On remand, the trial court will have discretion to consider a motion by Naranjo to amend the FAC to state a cause of action for breach of contract should Naranjo choose to file one. Costs on appeal are awarded to Naranjo. A full-text copy of the Court's April 28, 2023 Opinion is available at https://rb.gy/22p03 from Leagle.com. Carpenter Law, Gretchen Carpenter -- gretchen@gcarpenterlaw.com; Law Office of Barry Kramer and Barry L. Kramer, for the Plaintiff and Appellant. Norton Rose Fulbright, Jeffrey B. Margulies -- jeff.margulies@nortonrosefulbright.com -- Kevin C. Mayer -- kmayer@loganmayerllp.com -- and Jacqueline C. Karama -- jackie.karama@nortonrosefulbright.com -- for the Defendant and Respondent. DOWNER GROUP: Faces 2nd Suit Over Breach of Contract Disclosures ---------------------------------------------------------------- wtvbam.com reports that Australia's Downer EDI said it was served with a second class action lawsuit by certain shareholders alleging breach of disclosures regarding a maintenance contract undertaken by the company's segment in July 2019. The class action, filed on behalf of shareholders who purchased Downer shares between July 2019 and February 2023, comes after the Australian contracting firm last December admitted to overstating its pre-tax earnings due to accounting irregularities. As a consequence of accounting discrepancies, Downer had revised down its FY23 underlying net profit after tax attributable forecast to between A$210 million ($140.60 million) and A$230 million from prior expectations of 10% to 20% growth on FY22's A$225.3 million. Earlier last month, a shareholders' lawsuit was filed against Downer, claiming it breached certain disclosure obligations under listing rules while also making misleading statements over its financial performance. Downer shares have lost 24% since the company disclosed the irregularities and its forecast downgrade on Dec. 8, as of last closing value. The Sydney-based company has been reeling under extreme regulatory scrutiny, which even led its chairman and finance chief to step down earlier this year. Downer is already sidelined by New South Wales' corruption regulators stating that employees dishonestly benefited from the payment or application of public funds for their own private advantage.[GN] EMBLEMHEALTH PLAN: Jaffery Files TCPA Suit in N.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Emblemhealth Plan, Inc. The case is styled as Mohammed Jaffery, on behalf of himself and others similarly situated v. Emblemhealth Plan, Inc., Case No. 1:23-cv-00522-TJM-DJS (N.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. EmblemHealth -- https://www.emblemhealth.com/ -- is one of the United States' largest nonprofit health plans.[BN] The Plaintiff is represented by: James Lee Davidson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Rd., Ste. 500 Boca Raton, FL 33431 Phone: (561) 826-5477 Email: jdavidson@gdrlawfirm.com EMPIRE AG: Diaz Files Suit in Cal. Super. Ct. --------------------------------------------- A class action lawsuit has been filed against Empire AG, Inc. The case is styled as Uvaldo Diaz, as an individual and on behalf of all others similarly situated v. Empire AG, Inc., Case No. BCV-23-101342 (Cal. Super. Ct., Kern Cty., April 28, 2023). The case type is stated as "Other Employment - Civil Unlimited." Empire AG is a design-build general contractor in the Agricultural and Industrial construction industry.[BN] EOG RESOURCES: Fails to Pay for Proper Wages, Boakye Alleges ------------------------------------------------------------ BAFFOUR BOAKYE, individually and on behalf of all others similarly situated, Plaintiff v. EOG RESOURCES INC., Defendant, Case No. 4:23-cv-01633 (S.D. Tex., May 2, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Boakye was employed by the Defendant as an analyst. EOG RESOURCES, INC. explores, develops, produces, and markets natural gas and crude oil. The Company operates in major producing basins in the United States, Canada, Trinidad, the United Kingdom North Sea, China, and from time to time select other international areas. [BN] The Plaintiff is represented by: Trang Q. Tran, Esq. TRAN LAW FIRM 2537 S. Gessner Suite 104 Houston, TX 77063 Telephone: (713) 223–8855 Email: trang@tranlf.com ERIZO VENTURES: Richardson Files Suit in Cal. Super. Ct. -------------------------------------------------------- A class action lawsuit has been filed against Erizo Ventures, Inc., The case is styled as Flonzel Richardson, on behalf of himself and all others similarly situated, and on behalf of the general public v. Erizo Ventures, Inc., Case No. STK-CV-UOE-2023-0004377 (Cal. Super. Ct., San Joaquin Cty., April 28, 2023). The case type is stated as "Unlimited Civil Other Employment." Erizo Ventures, Inc. is an active Californian business entity incorporated 11th May 2015.[BN] The Plaintiff is represented by: Roman Otkupman, Esq. OTKUPMAN LAW FIRM, ALC 28632 Roadside Dr, Ste 203 Agoura Hills, CA 91301-6015 Phone: (818) 293-5623 Fax: (888) 850-1310 Email: roman@OLFLA.com EXTENDED STAY: Court Tosses Brittian's GUDTPA Claim W/o Prejudice ----------------------------------------------------------------- In the case, LATREASS BRITTIAN, individually and on behalf of all others similarly situated, Plaintiff v. EXTENDED STAY AMERICA, et al., Defendants, Case No. 3:22-cv-663-MOC (W.D.N.C.), Judge Max O. Cogburn, Jr., of the U.S. District Court for the Western District of North Carolina, Charlotte Division, grants in part and denies in part the Defendants' partial motion to dismiss the Corrected Class Action Complaint. Brittian purports to bring claims individually, on behalf of a nationwide class, and on behalf of a Georgia Subclass relating to what she alleges is an unfair practice with respect to prepaid reservations at Extended Stay America branded hotels. She alleges that she is a resident of Georgia who, beginning on Dec. 14, 2021, was a guest at an Extended Stay America hotel in Norcross, Georgia. The Plaintiff alleges that she made a prepaid reservation, paying for the full amount of her anticipated stay in advance. She further alleges that she "extended" her stay by making a second, consecutive reservation, also prepaid. According to her allegations, she was designated a "no show" for her second reservation by the hotel's computer system and was told to vacate the hotel room. She complains that, although she was denied an accommodation, the hotel retained her prepayment. The Plaintiff purports to bring two common law claims (Count I for breach of contract and Count II for unjust enrichment); one statutory claim arising under North Carolina Law (Count III for violation of North Carolina's Unfair and Deceptive Trade Practices Act); and two statutory claims arising under Georgia law (Count IV for violation of Georgia's Uniform Deceptive Trade Practices Act (the "GUDTPA") and Count V for violation of Georgia's Fair Business Practices Act (the "GFBPA")). The Plaintiff seeks to certify a nationwide class as to Counts I through III and a Georgia subclass as to Counts IV and V. She asserts that the claims in Counts I through III are asserted on behalf of Brittian individually, and in an asserted representative capacity on behalf of a nationwide class, defined to include: All individuals who prepaid for a reservation at an Extended Stay America hotel in the United States, were denied accommodation at an Extended Stay America hotel during the term of the prepaid reservation, and whose prepayment was not refunded. The Plaintiff asserts the claims in Counts IV through V individually and on behalf of a Georgia Subclass defined to include: All individuals who prepaid for a reservation at an Extended Stay America hotel in the State of Georgia, were denied accommodation at an Extended Stay America hotel during the term of the prepaid reservation, and whose prepayment was not refunded. In their motion to dismiss, the Defendants contend that the two Georgia statutory claims are defective and should be dismissed. First, they seek an order dismissing Count IV, the GUDTPA claim, because the claim seeks damages and other relief based on past harm, but the GUDTPA permits claims based only on the prospect of future harm. They contend that because the Plaintiff has not adequately alleged that she is likely to be harmed in the future, her pleading fails to establish that she has standing to bring the claim. The Defendants also seek an order dismissing Count V, the GFBPA claim, arguing that the Plaintiff has failed to make, and has failed to allege that she made, a pre-suit demand, which is a prerequisite of a GFBPA claim. With respect to the GUDTPA Claim (Count IV), Judge Cogburn finds that the Plaintiff has failed to plead facts that would establish constitutional and statutory standing. Most of the Plaintiff's allegations in Count IV are allegations of past harm. The only allusion the Plaintiff makes to the future is in her conclusory allegation that she "has been, or may be, subject to" the practices of which she complains. Neither that allegation nor any other provides any particular or concrete facts from which Judge Cogburn could conclude that she is likely to suffer harm in the future. Moreover, the fact that the Plaintiff purports to bring the claim on behalf of others does not rescue it from the standing defect. Because the Plaintiff has failed to allege that she is likely to be harmed in the future, her GUDTPA claim (Count IV) of the Complaint is dismissed. Nevertheless, the claim will be dismissed without prejudice to the Plaintiff to amend the Complaint to sufficiently allege future harm for purposes of her GUDTPA claim. With respect to the GFBPA Claim (Count V), Judge Cogburn finds that the Plaintiff sufficiently alleged GFBPA's pre-suit notice requirement. Therefore, she denies the motion to dismiss as to the Plaintiff's GFBPA claim (Count V). For the reasons he stated, Judge Cogburn grants the Defendants' motion to dismiss and dismisses the Plaintiff's Count IV, but the dismissal is without prejudice to the Plaintiff to amend the Complaint. He denies the motion to dismiss the Plaintiff's Count V. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/n4nfk from Leagle.com. FERGUSON ENTERPRISES: Martinez Suit Removed to S.D. California -------------------------------------------------------------- The case captioned as Jorge Martinez, on behalf of himself and all others similarly situated v. FERGUSON ENTERPRISES, LLC, a Virginia Corporation; and DOES 1-50, inclusive, Case No. 23STCV06590 was removed from the Superior Court of California in and for the County of Los Angeles, to the United States District Court for the Southern District of California on April 28, 2023, and assigned Case No. 2:23-cv-03226-SPG-BFM. The Complaint asserts nine causes of action for failure to pay all minimum wages; failure to pay all overtime wages; failure to pay all sick time; meal period violations rest break violations; failure to provide accurate itemized wage statements; waiting time penalties; failure to reimburse necessary business expenses; and unfair competition.[BN] The Defendants are represented by: Leslie L. Abbott, Esq. PAUL HASTINGS LLP 515 South Flower Street, 25th Floor Los Angeles, CA 90071-2228 Phone: (213) 683-6000 Facsimile: (213) 627-0705 Email: leslieabbott@paulhastings.com - and - Eric D. Distelburger, Esq. PAUL HASTINGS LLP 101 California Street, 48th Floor San Francisco, CA 94111 Phone: (415) 856-7000 Facsimile: (415) 856-7100 Email: @paulhastings.com FOOT LOCKER: Mahoney Files ADA Suit in E.D. Pennsylvania -------------------------------------------------------- A class action lawsuit has been filed against Foot Locker Stores, Inc. The case is styled as John Mahoney, on behalf of himself and all others similarly situated v. Foot Locker Stores, Inc., Case No. 2:23-cv-01617-GEKP (E.D. Pa., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Foot Locker Retail, Inc. -- https://www.footlocker.com/ -- is an American sportswear and footwear retailer, with its headquarters in Midtown Manhattan, New York City.[BN] The Plaintiff is represented by: David S. Glanzberg, Esq. THE LAW OFFICE OF DAVID GLANZBERG 123 S. Broad Street, Suite 1640 Philadelphia, PA 19109 Phone: (215) 981-5400 Fax: (267) 319-1993 Email: david.glanzberg@gtlawpc.com FORD MOTOR: 3 Claims Nixed From Sarkesian's 1st Amended Complaint ----------------------------------------------------------------- Judge Anthony J. Battaglia of the U.S. District Court for the Southern District of California grants the Defendant's motion to dismiss Claims 2, 3 and 5 from the Plaintiffs' First Amended Complaint in the lawsuit titled GEORGE SARKESIAN and CANDACE SARKESIAN, Plaintiffs v. FORD MOTOR COMPANY; and Does 1 through 10, inclusive. Defendants, Case No. 22-cv-00966-AJB-MDD (S.D. Cal.). The Plaintiffs are consumers, who purchased a 2017 Ford F-150 vehicle manufactured by Ford on June 18, 2017. Along with the purchase, the Plaintiffs received a bumper-to-bumper warranty, a powertrain warranty, and an emission warranty. They allege that defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including defects of the electrical system, including the stop/start feature; defects of the transmission system, including the 10R80 10 Speed Transmission; defects of the infotainment system, including the navigation system and APIM. They further allege the Transmission Defect can lead to issues, including hesitation, loss of power, and other shifting issues while driving at highway speeds. After experiencing issues with the Vehicle, the Plaintiffs filed suit alleging five causes of action: (1) Violation of the Song-Beverly Consumer Warranty Act ("SBA") -- Failure to Repair Defect(s) within Reasonable Number of Attempts; (2) Violation of SBA -- Failure to Commence Repairs or Repair Defect(s) within 30 Days; (3) Violation of SBA -- Failure to Provide Literature and Replacement Parts; (4) Breach of Implied Warranty of Merchantability; and (5) Fraudulent Inducement -- Concealment. The Plaintiffs allege three theories in their Second Claim (Violation of California Civil Code Section 1793.2(b)). Specifically, they allege Ford failed to serve or repair the vehicle in conformity with the warranty within 30 days, Ford failed to commence the service or repairs within a reasonable time, and that they have rejected and/or justifiably revoked acceptance of the Vehicle and as exercised a right to request a buyback. Because the Plaintiffs have not alleged that any single repair attempt took more than 30 days, the Court finds they have not sufficiently pled a violation of section 1793.2(b) under this theory. The Court also finds that they merely state in a conclusory fashion that the Defendant and its representative failed to commence the service or repairs within a reasonable time. The Plaintiffs also argue they have alleged a viable theory under section 1793.2(b) because they "rightfully rejected and/or justifiably revoked acceptance of the Vehicle, and has exercised a right to request a buyback." Judge Battaglia opines that the Plaintiffs do not plead facts establishing they justifiably revoked acceptance of the vehicle. Moreover, they fail to offer any support for their contention that this theory of liability constitutes a ground for liability under section 1793.2(b). Thus, the Court grants Ford's motion to dismiss the Plaintiffs' second claim with leave to amend. The Plaintiffs again argue Ford violated section 1793.2(a)(3) of the Song-Beverly Act by failing to "make available to authorized service and repair facilities service literature and replacement parts sufficient to effect repair" (Third Claim -- Violation of California Civil Code Section 1793.2(a)(3)). Ford argues the third cause of action should be dismissed because the FAC again fails to a single factual allegation to support this claim. The Court agrees. Judge Battaglia finds that the Plaintiffs provide no details regarding Ford's alleged failure to provide the necessary service literature and replacement parts to Ford's repair facilities. The Plaintiffs simply repeat the applicable statutory language and allege the "Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period." As such, the Court grants Ford's motion to dismiss the Plaintiffs' third claim without leave to amend. According to their own pleadings, Judge Battaglia says, the Plaintiffs' Fifth Claim -- Fraudulent Concealment -- is barred unless they can plausibly plead that a tolling or delayed accrual doctrine applies. Additionally, Judge Battaglia notes that the Plaintiffs do not address the Defendants' arguments regarding class action tolling, the repair doctrine, or equitable estoppel. As such, the Court finds the Plaintiffs have waived this argument. Judge Battaglia also finds that the Plaintiffs fail to plead any specific sources where Ford may have been alerted to the alleged defect prior to their purchase of the Vehicle, and do not plead that any sources disclosed information about a defect in their Vehicle prior to their purchase. The Plaintiffs also fail to plead that Ford had knowledge of the alleged defect prior to their purchase of the Vehicle. Additionally, Judge Battaglia says, the Plaintiffs fail to allege a duty to disclose, and to plead the circumstances of any alleged omission(s) with particularity. Judge Battaglia also says that the nowhere in the complaint do the Plaintiffs adequately allege their reliance. Hence, the Court grants Ford's motion to dismiss the Plaintiffs' fifth claim with leave to amend. Finally, Ford seeks to dismiss Plaintiffs' claim for punitive damages. Ford argues the FAC's factual allegations are insufficient to give rise to punitive damages. In their opposition, they Plaintiffs make no argument that their punitive damages claim can survive if their fraudulent concealment claim does not. Accordingly, any such argument is waived, Judge Battaglia holds. Because the fraudulent concealment claim is dismissed, the Plaintiffs' prayer for punitive damages related to the fraudulent concealment claim is dismissed, as well. For the reasons set forth, the Court grants Ford's motion to dismiss claims 2, 3, and 5 of the Plaintiffs' FAC. Should the Plaintiffs choose to do so, where leave is granted, they must file an amended complaint curing the deficiencies noted here. Ford must file a responsive pleading no later than May 15, 2023. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/29thva2d from Leagle.com. FORD MOTOR: Hilbert Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Ford Motor Company. The case is styled as Laurel Hilbert, on behalf of himself and all others similarly situated v. Ford Motor Company, Case No. 1:23-cv-03582 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ford Motor Company -- http://www.ford.com/-- is an American multinational automobile manufacturer headquartered in Dearborn, Michigan.[BN] The Plaintiff is represented by: Eric L. Siegel, Esq. KALBIAN HAGERTY LLP 888 17th Street, N.W., Suite 1000 Washington, DC 20006 Phone: (202) 223-5600 Email: ESiegel@kalbianhagerty.com FU JING WU: Files Bid to Compel Arbitration in Liu Suit ------------------------------------------------------- In the lawsuit entitled Chun Liu, individually and on behalf of all others similarly situated, Plaintiff, v. FU JING WU a/k/a LEO WU and WAI KIN BENNY LAM, Defendants, Case No. 2023-004625-CA-01, pending in the Circuit Court for Miami-Dade County, Florida, FU JING WU a/k/a LEO WU filed a petition to compel arbitration and remove the case from state court. The nature of the suit is stated as 896 Other Statutes - Arbitration. The appellate case is captioned Fu Jing Wu a/k/a Leo Wu, Petitioner v. Chun Liu, Respondent, Case No. 1:23-cv-21541-KMW, in the U.S. District Court for the Southern District of Florida, filed on April 24, 2023. [BN] Defendant-Petitioner FU JING WU a/k/a LEO WU is represented by: Brian Barakat Esq. BARAKAT + BOSSA 2701 Ponce de Leon Blvd., Suite 202 Coral Gables, FL 33134 Telephone: (305) 444-3115 E-mail: barakat@b2b.legal.com Plaintiff-Respondent CHUN LIU is represented by: Alexis S. Read, Esq. READ LAW PLLC 25 SE Second Ave., Eighth Floor Miami, FL 33131 Telephone: (305) 209-2131 E-mail: asr@alexisreadlaw.com - and - Barry S. Turner, Esq. BARRY S. TURNER P.A. P.O. Box 330189 Miami, FL 33233 Telephone: (305) 699-4392 E-mail: bt@bstpa.com FULTON CO: Scoleri Sues Over Illegal Assessment of Real Property ---------------------------------------------------------------- STEVEN SCOLERI, suing on behalf of himself and all others similarly situated, Plaintiff v. FULTON COUNTY, GEORGIA, Defendant, Case No. 2023CV379408 (Ga. Sup., April 27, 2023) arises out of the alleged illegal assessment by Fulton County Board of Assessors on Plaintiff's residential property. The Fulton County Board of Commissioners adopted a resolution that authorized and directed the FCBA to reverse the planned 2017 value increases for residential properties. The Commissioners ordered the FCBA to instead assess residential properties for 2017 at the values set by the certified 2016 Tax Digest, subject to a few exceptions. The Commissioners directed that, for these properties, the 2016 fair market value should be increased in the amount of the 2016 values for said improvements. However, Plaintiffs property is one such property that was subject to new construction or improvements in 2016 coded as growth on the 2017 notice file. When it assessed Plaintiffs property in 2017 at the original 2017 reassessment value, the FCBA allegedly violated the duly-passed resolution of the Commissioners, says the suit. Fulton County is a political subdivision of the state of Georgia. [BN] The Plaintiff is represented by: G. Roger Land, Esq. Mitchell Graham, Esq. G. ROGER LAND & ASSOCIATES 200 One North Parkway Square 4200 Northside Parkway, N.W. Atlanta, GA 30327-3054 Telephone: (404) 237-2500 E-mail: grlaw@lawnet.org mitchell@lawnet.org GILLIG LLC: Tolentino Suit Removed to N.D. California ----------------------------------------------------- The case captioned as Ronald Tolentino, individually, and on behalf of all others similarly situated v. GILLIG, LLC, a limited liability company; and DOES 1 through 10, inclusive, Case No. RG20073930 was removed from the Superior Court of the State of California in and for the County of Alameda, to the United States District Court for the Northern District of California on April 27, 2023, and assigned Case No. 4:23-cv-02062. In the complaint, Plaintiff asserted the following causes of action: minimum wage violations; failure to pay overtime wages; failure to provide lawful meal periods; failure to provide lawful rest periods; failure to timely pay final wages; wage statement violations; and unfair business practices.[BN] The Defendants are represented by: William Faulkner, Esq. Michael Warren, Esq. McMANIS FAULKNER a Professional Corporation 50 West San Fernando Street, 10th Floor San Jose, CA 95113 Phone: (408) 279-8700 Facsimile: (408) 279-3244 Email: mwarren@mcmanislaw.com GLOBAL EQUITY FINANCE: Abrahamian Files TCPA Suit in D. Arizona --------------------------------------------------------------- A class action lawsuit has been filed against Global Equity Finance Incorporated. The case is styled as Lee Abrahamian, on behalf of himself and all others similarly situated v. Global Equity Finance Incorporated, Case No. 2:23-cv-00727-DWL (D. Ariz., April 28, 2023). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Global Equity Finance -- https://geqfinance.com/ -- is a direct lender and mortgage broker dedicated to understanding and meeting each of its customers' unique needs.[BN] The Plaintiff is represented by: Robert H. Goodman, Esq. PARRISH & GOODMAN PLLC 13031 McGregor Blvd., Ste. 8 Ft Myers, FL 33919 Phone: (813) 643-4529 Fax: (813) 315-6535 Email: jdavidson@gdrlawfirm.com - and - Shayna Frieden, Esq. William Fleming King, Esq. GALLAGHER & KENNEDY PA 2575 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016-9225 Phone: (408) 813-0342 Email: shayna.frieden@gknet.com bill.king@gknet.com GOLDMAN SACHS: Works With Government on Silicon Valley Collapse --------------------------------------------------------------- Manya Saini at Yahoo News reports that Goldman Sachs Group Inc said in a filing it is cooperating with government probes into collapsed Silicon Valley Bank. The Wall Street bank is "cooperating with and providing information to various governmental bodies in connection with their investigations and inquiries" into SVB, including the two companies' dealings in March. Goldman was involved in key events before SVB's downfall in that month. The Wall Street bank acquired a bond portfolio on which SVB booked a $1.8 billion loss, a transaction that preceded a failed SVB share sale where Goldman was an underwriter. Goldman was also among the underwriters named as defendants in a securities class action lawsuit related to several SVB share offerings in 2021 and 2022, it said in a regulatory filing. The plaintiffs allege offer documents contained material misstatements and omissions, Goldman said in the filing. The plaintiffs seek unspecified damages in the lawsuit, which was filed on April 7 in the U.S. District Court for the Northern District of California. On March 17, SVB Financial Group filed for a court-supervised reorganization under Chapter 11 bankruptcy protection to seek buyers for its assets, days after its former unit Silicon Valley Bank was taken over by U.S. regulators. Financial stocks have lost billions of dollars in value after the collapses of SVB and Signature Bank, which saw nervous depositors flee to larger 'too-big-to-fail' institutions. [GN] GOOD DEALS APPLIANCES: Brown Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Good Deals Appliances, Inc. The case is styled as Lamar Brown, on behalf of himself and all others similarly situated v. Good Deals Appliances, Inc., Case No. 1:23-cv-03598 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Good Deals Appliances -- https://www.gooddealsappliances.com/ -- is a family owned business bringing the top name-brand appliances and lowest prices.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com GROWERS' CHOICE: $196.7K in Fees & Costs Awarded in Lizarraga Suit ------------------------------------------------------------------ Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California grants in part and denies in part the Plaintiffs' motion for attorneys' fees in the lawsuit styled RAMON LIZARRAGA, et al., Plaintiffs v. GROWERS' CHOICE, INC., et al., Defendants, Case No. 2:19-cv-00526-TLN-DB (E.D. Cal.). The Court grants the Plaintiffs' request for attorneys' fees in the reduced amount of $196,346.75. The Court also grants their request for costs as to the $400 filing fee and denies their request for costs in all other respects. The matter is before the Court on Plaintiffs Ramon Lizarraga and Jaime Cardenas's Motion for Attorneys' Fees. Defendants Growers' Choice, Inc., and Robert Longstreth filed an opposition. The Plaintiffs filed a reply. On March 25, 2019, the Plaintiffs filed this class action lawsuit alleging the Defendants violated various state and federal labor laws. On Aug. 11, 2020, the parties participated in mediation and reached a settlement. The parties were unable to agree to attorneys' fees as part of the settlement, and the Plaintiffs filed the instant motion for attorneys' fees on Sept. 2, 2021. The Court granted final approval of the settlement on Feb. 1, 2022, and took the motion for attorneys' fees under submission. The Plaintiffs seek attorneys' fees in the amount of $279,786.56 ($223,829.25 x a 1.25 multiplier) and costs in the amount of $8,859.37. In opposition, the Defendants argue the Plaintiffs' motion should be denied in its entirety because the requested fees are not authorized by the settlement agreement. Alternatively, the Defendants argue the fees should be reduced to $96,186.25. At the outset, the Court rejects the Defendants' argument that the Plaintiffs' motion should be denied in its entirety. The Defendants argue the settlement agreement requires the parties to engage in good faith efforts to negotiate attorneys' fees and the Plaintiffs did not act in good faith because they refused to provide counteroffers and refused to provide documentation of their requested fees and costs. Judge Nunley notes that the Defendants do not cite any authority to support their argument. In response, the Plaintiffs argue they acted in good faith, as they sent complete billing reports to the Defendants on May 28, 2021, and significantly reduced their fee request to address at least some of the Defendants' concerns following meet and confer efforts. In the absence of case law to the contrary, the Court finds the Plaintiffs acted in good faith based on their representations that their counsel communicated with defense counsel, sent billing records, and significantly reduced their fee request during negotiations. Moreover, Judge Nunley opines that the Defendants fail to persuade the Court that a lack of good faith effort on the Plaintiffs' part would warrant outright denial of the Plaintiffs' motion, especially considering the settlement agreement contemplates the Plaintiffs bringing a motion for attorneys' fees in the event that an agreement cannot be reached. In the instant case, the Plaintiffs propose rates ranging from $320 to $650 per hour for attorneys based on their experience and $100 to $125 for legal clerks and legal assistants. The Defendants do not challenge these rates in their opposition. The Court concludes the Plaintiffs' requested rates are reasonable and consistent with the Eastern District's previous awards for similar work. Therefore, the Court finds the Plaintiffs' requested rates are reasonable and commensurate with the prevailing rate in the community for similar work performed by attorneys of comparable skill, experience, and reputation. The Plaintiffs contend they have reduced the time expended by their attorneys and other employees to 736.69 hours. In opposition, the Defendants argue the hours worked are excessive, inadequately documented, and unreasonable. The Defendants argue they have billed only 276.5 hours of attorney work on this matter, which is far less than the amount of time billed by the Plaintiffs' counsel. The Defendants further emphasize that this case was referred to mediation early, did not involve extensive discovery or motion practice, and did not involve any depositions. The Defendants, therefore, argue the Court should reduce the Plaintiffs' fee request to a figure that more closely aligns with the number of hours billed by the Defendants. The Defendants specifically take issue with four categories of requested fees: (1) excessive/unnecessary clerical work; (2) duplicative work; (3) work associated with the instant motion; and (4) work that never came to fruition. Judge Nunley finds that the Plaintiffs fail to explain how the approximately 248.5 hours spent on the audit constitutes "work product of an attorney." The Plaintiffs' only explanation for the type of work involved in the audit is that it required them to post employee timecards and payroll information from check stubs and excel spreadsheets provided by the Defendants in order to complete the damage analysis for mediation. This is insufficient to show that the audit involved work product of an attorney, as opposed to mere data entry, Judge Nunley opines. Notably, the Plaintiffs concede the audit is work that they have previously delegated out to certified public accountants and forensic consultants, which suggests non-lawyers could have completed the audit. Based on their very limited briefing on the issue and lack of evidence about the type of work involved in the audit, the Plaintiffs fail to persuade the Court that time spent on the audit is recoverable as attorneys' fees. Accordingly, the Court declines to award the Plaintiffs any attorneys' fees related to the audit, which results in a reduction in the amount of $27,482.50 ($8,220 for Anaeli Becerra (82.2 hours at $100 per hour rate) + $13,162.50 for Karla Donis (105.3 hours at $125 per hour rate) + $6,100 for Noah Talamentes (61 hours at $100 per hour rate)). The Defendants fail to persuade the Court that the Plaintiffs' counsel engaged in duplicative work. The Defendants appear to argue the involvement of seven attorneys over the course of the litigation necessarily leads to the conclusion that the Plaintiffs' counsel engaged in duplicative work. Judge Nunley notes that the Defendants do not provide sufficient evidence or argument for the Court to take such a leap. Instead, the Defendants merely cite to 12 pages of billing records with no annotations or analysis to suggest that any entry is duplicative as opposed to necessary communication between counsel. Accordingly, the Court declines to reduce hours as being duplicative. The Court also declines to reduce hours related to bringing the instant motion. The Court finds the Plaintiffs has sufficiently justified the hours spent on their motion to enforce the settlement agreement and interviews with potential class members. In sum, the Court has reviewed the Plaintiffs' billing records for insufficient documentation or excessive charges. After careful review, the Court finds the Plaintiffs' records adequately reflect the work product's general subject matter and sufficiently note how the time was spent. Accordingly, the Court finds the Plaintiffs' documentation is sufficient and the hours are not excessive. Accordingly, after making the reduction for work on the audit, the Court finds a lodestar amount of $196,346.75 to be reasonable ($223,829.25 - $27,482.50). The Plaintiffs seek various costs totaling $8,859.37. In opposition, the Defendants argue the Plaintiffs are only entitled to costs as set forth in 28 U.S.C. Section 1920. The Defendants, therefore, argue the costs requested by the Plaintiffs are disallowed, except for the filing fee of $400. In response, the Plaintiffs argue their requested costs are recoverable pursuant to several provisions of the California Labor Code. Put simply, Judge Nunley opines that neither the Plaintiffs' motion nor reply contain any meaningful analysis on the issue of costs. Therefore, the Plaintiffs have not persuaded the Court that they are entitled to costs other than the $400 filing fee. Accordingly, the Court grants the Plaintiffs' request for costs as to the $400 filing fee and denies their request for costs in all other respects. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/27b8xrjh from Leagle.com. GUARDIAN ANALYTICS: Krzykowski et al. Sue Over Customer Data Breach ------------------------------------------------------------------- PAWEL KRZYKOWSKI, MARIOLA KRZYNOWEK, and JAMES HOWE, individually, and on behalf of all others similarly situated, Plaintiffs v. GUARDIAN ANALYTICS, INC., and ACTIMIZE INC., Defendants, Case No. 2:23-cv-02322 (D.N.J., April 27, 2023) arises out of the Defendants' negligence and failure to exercise due care in the collecting, storing, and using of Webster Bank's customers' sensitive personal information (SPI). On or about April 10, 2023, Webster Bank announced that Guardian Analytics had experienced a hack and exfiltration of Webster Bank customer data between approximately November 27, 2022 and January 22, 2023. Webster Bank reported that this sensitive SPI included at least names, Social Security numbers, and financial account numbers. Allegedly, the Defendant is engaged in unfair or deceptive acts or practices with respect to the services by establishing the sub-standard security practices and procedures in violation of the Connecticut Unfair Trade Practices Act. In addition, Defendants failed to properly implement basic data security practices, and their failure to employ reasonable and appropriate measures to protect against unauthorized access to consumer SPI constitutes an unfair act or practice prohibited by Section 5 of the Federal Trade Commission Act, says the suit. Guardian Analytics, a wholly-owned subsidiary of Actimize, is a third-party security vendor for Webster Bank. [BN] The Plaintiff is represented by: Mark C. Rifkin, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Ave. New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 686-0114 E-mail: rifkin@whafh.com - and - Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Blvd., Suite 1700 Chicago, IL 60604 Telephone: (312) 984-0000 Facsimile: (212) 686-0114 E-mail: malmstrom@whafh.com GUMBALL.COM INC: Hernandez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Gumball.com, Inc. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. Gumball.com, Inc., Case No. 1:23-cv-03520 (S.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Gumball.com, Inc. -- https://www.gumball.com/ -- offers deal on gumballs, gumball machines, bulk candy, vending machines at the #1 bulk vending megastore.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com HEART OF THE DESERT: Brown Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Heart of the Desert, Inc. The case is styled as Lamar Brown, on behalf of himself and all others similarly situated v. Heart of the Desert, Inc., Case No. 1:23-cv-03599 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Heart of the Desert -- https://www.heartofthedesert.com/ -- are known for homegrown pistachios, award winning wines, cookies, candies, and much more.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com HOME BOX OFFICE: Tehrani Sues to Recover Unpaid Compensation ------------------------------------------------------------ Josephine Tehrani, individually and on behalf of all Aggrieved Employees of Defendants in the State of California v. HOME BOX OFFICE, INC., a foreign corporation; COOLER WATERS PRODUCTIONS, LLC, a foreign limited liability company; and DOES 1 through 50, inclusive, Case No. 23STCV09609 (Cal. Super. Ct., Los Angeles Cty., April 28, 2023), is brought pursuant to the California Private Attorneys General Act, Labor Code sections 2698 ("PAGA") to recover civil penalties (75% payable to the Labor Workforce Development Agency and 25% payable to aggrieved employees). The Plaintiff's claims for overtime and meal and rest period violations, inaccurate wage statement penalties, and waiting time penalties from Defendants' failure to factor these forms of non-discretionary remuneration into the calculation of the regular rate of pay for the payment of overtime (and double time) and the calculation of the regular rate of compensation for the payment of break premiums under Labor Code, says the complaint. The Plaintiff was employed by the Defendants as a non-exempt and non-union background actor in Los Angeles, California on October 7, 2022 and November 7, 2022. Home Box Office, Inc. is was a foreign corporation organized and existing under the laws of the State of Delaware and is qualified to do business in California.[BN] The Plaintiff is represented by: Frank H. Kim, Esq. KIM LEGAL, APC 3435 Wilshire Blvd, Suite 2700 Los Angeles, CA 90010 Phone: (323) 482-3300 Facsimile: (866) 652-7819 Email: jkim@kim-legal.com - and - Helen U. Kim, Esq. HELEN KIM LAW, APC 3435 Wilshire Blvd, Suite 2700 Los Angeles, CA 90010 Phone: (323) 487-9151 Facsimile: (866) 652-7819 Email: helen@helenkimlaw.com HOMEFIX CUSTOM: Gonzalez Suit Transferred to D. Maryland -------------------------------------------------------- The case is styled as Mary Gonzalez, individually and on behalf of all others similarly situated v. Homefix Custom Remodeling Corp., Case No. 1:23-cv-00192 was transferred from the U.S. District Court for the Eastern District of Virginia, to the U.S. District Court for the District of Maryland on April 27, 2023. The District Court Clerk assigned Case No. 1:23-cv-01135 to the proceeding. The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Homefix Custom Remodeling Corp. -- https://homefixcustomremodeling.com/ -- provides renovation services. The Company offers window, roofing, siding, door, gutter, and insulation replacement services.[BN] The Plaintiff is represented by: William Peter Robinson, III, Esq. 1934 Old Gallows Road, Suite 350K Vienna, VA 22181 The Defendant is represented by: Gabriel Pinilla, Esq. ADAMS AND REESE, LLP 2301 Blake Street, Ste. 101 Denver, CO 80205 Phone: (813) 227-5516 Email: gabriel.pinilla@arlaw.com HP INC: Faces Suit Over Defective Trackpads in HP Omen Laptops -------------------------------------------------------------- JUSTIN DAVIS; and GARY DAVIS, individually and on behalf of all others similarly situated, Plaintiffs v. HP, INC. d/b/a HP COMPUTING AND PRINTING INC., Defendant, Case No. 4:23-cv-02114-DMR (N.D. Cal., May 1, 2023) is a class action lawsuit regarding the Defendant's defective trackpads in its premium HP Omen line of laptops produced in 2021 and 2022 (the "Omen Laptops" or the "Products"). The Plaintiff alleges in the complaint that the HP Omen laptops are defectively designed and manufactured because the trackpad component can cause the onscreen cursor to: (a) track in reverse, e.g. the cursor moves in a direction opposite to the user's input; (b) freeze or fail to register user input; (c) engage in erratic behavior such as randomly opening and closing windows and programs; and (d) the clicking function of the track pad degrades until it becomes useless (the "Defect"). The defect at issue, significantly diminishes the laptops' purportedly high-end experience and their portability. The trackpads at issue are so defective that the Omen laptops are rendered completely unusable unless users purchase and connect an external mouse to use the computer at all. Had the Plaintiffs and other proposed Class Members known of the Defect, they would not have purchased an HP Omen laptop, or would have paid significantly less, says the suit. HP INC. provides computing, imaging and printing systems, mobile devices, solutions, and services for business and home. The Company offers products which includes laser and inkjet printers, scanners, copiers and faxes, personal computers, workstations, storage solutions, computing, and printing systems. HP sells its products worldwide. [BN] The Plaintiff is represented by: Trenton R. Kashima, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 401 West Broadway, Suite 1760 San Diego, CA 92101 Telephone: (212) 946-8389 Email: tkashima@milberg.com HUMBOLDT STATE UNIVERSITY: Disabled Student Files ADA Class Action ------------------------------------------------------------------ lostcoastoutpost.com reports that when Christine DiBella arrived at Humboldt State University (which would soon be rechristened Cal Poly Humboldt) as a transfer student in the fall of 2021, it wasn't long before she realized the campus might prove challenging for her. DiBella has physical disabilities and uses a power wheelchair to get around, and in a Zoom interview morning she said she encountered accessibility issues before even making it to her dorm room. On the day she arrived, she said, "I couldn't put the keycard into the keycard slot to open up the gate to my dorm." The slot was located off the sidewalk and out of reach. DiBella soon encountered more problems. The university's Housing & Residence Life office had organized a hike on which newly arrived transfer students could meet each other, but the route wasn't wheelchair accessible so she couldn't participate. During a campus fire drill, she was only able to evacuate from her third-floor dorm room in the College Creek Apartments by taking the elevator, which she knew would not be functioning in the event of a real fire or power outage. When she repeatedly asked university personnel to provide her with an adequate escape plan, such as one that includes an emergency evacuation chair, she got the runaround and was eventually told to just design her own. These and numerous other allegations are included in a class action civil rights suit recently filed in U.S. District Court for the Northern District of California. The suit alleges that by failing to make its campus accessible to DiBella and other disabled students, Cal Poly Humboldt is violating Title II of the Americans with Disabilities Act and the Federal Fair Housing Act. The complaint argues that DiBella has been denied meaningful access to numerous campus locations, including parking facilities, her dorm's laundry room, the Jolly Giant Commons cafeteria, the student recreation center, certain classrooms and buildings and more, with assorted physical barriers limiting her access to residential and campus-life activities. The latest version of her complaint, filed, further alleges that all 23 campuses in the California State University system have failed to adequately plan for emergency preparedness for students with disabilities. Defendants include the CSU's board of trustees, its interim chancellor and the presidents of all 23 campuses. DiBella, who remains enrolled at Cal Poly Humboldt, is being represented by Cat Cabalo, a partner in the San Francisco office of New Orleans-based law firm Pfeiffer Wolf Carr Kane Conway & Wise. Cabalo joined in on the Zoom call and said that, in researching the case, "it became evident that the problems that Christine was having were pervasive throughout [Cal Poly] Humboldt, definitely. And as we did more research [we found that] there is not one campus in the CSU system that allows for people with mobility disabilities to actively and meaningfully participate in emergency planning." DiBella says Humboldt's lack of an adequate emergency evacuation plan caused fear and anxiety, and the physical barriers around campus often made her feel alienated or awkward. One day, while trying to get to a class in Room 201 of the Forestry Building, she found that the building's front door was too heavy for her to open from her chair. According to the complaint, she relied on a stranger to open it, which was embarrassing because she prides herself on her independence. Once inside, she looked for a restroom, but the one she found on the first floor had a handle that was too high, and inside she found no accessible stall for wheelchair users, only a narrow one with not nearly enough space to turn around. (See photo at right.) "Other restrooms throughout the campus are not accessible for similar reasons," the suit says. Meanwhile, the elevator to the Jolly Giant Commons, aka "the J," was often out of service for maintenance, eliminating her sole means of access to food on campus, according to the complaint. Most of DiBella's classes for her major have been in the Behavioral Social Sciences (BSS) building, which sits atop a hill that's so steep her wheelchair can't safely go up and down it, the suit says. After lodging complaints about her living conditions, DiBella was moved to a first-floor room in the residence hall. It was smaller, and she found that she couldn't use the closet because the rod was too high for her to reach; the bathroom was inaccessible because the door swung out toward her, blocking the hallway and leaving no space for her chair; and furniture prevented her from reached the window, leaving her unable to ventilate the humid room. "Plaintiff tried to remedy these accessibility issues in the first-floor room by asking Humboldt if she could bring in her own furniture, but this was not allowed," the suit says. The lawsuit describes a series of similar experiences, and DiBella's mounting frustration is clear in public comments submitted to the Associated Students board of directors. "Wheelchair access!" she wrote in an email to the board in November. "Where is the disability access and compliance committee? Wheelchair access pathways are being blocked, I have no way to participate in the University. I am not safe. . . . it is offensive to treat me like furniture or cargo. I am Human! . . . I do not need permission for my body to exist." The suit alleges that Cal Poly Humboldt personnel retaliated against DiBella for speaking up. They labeled her disruptive and harassing, the suit says, and DiBella believes they required her to participate in a "conduct meeting" as retaliation for asserting her rights under the ADA. "The message to Plaintiff is that she should shut up about systemic and pervasive physical and policy barriers that prevent her from participating in campus life and in activities that support her major and academic development," the suit says. Attorneys representing the CSU Board of Trustees and other defendants have denied the allegations, though to date their arguments have focused on asking the judge to dismiss the class action portion of the suit. In a September filing, attorneys Alison K. Beanum and Douglas J. Collodel argued that it would be unfair and illogical to lump together all disabled students across the 23-campus system considering the unique conditions among individual campuses and students. Campuses located in Sonoma or Humboldt counties may need a plan for forest fires, but that's not necessary for campuses in Los Angeles or San Francisco, they argued. DiBella's claim, they said, "treats all students with a mobility disability as a single monolithic group. They are not. It is indisputable that the type and degree of disability will differ from student to student. For that reason, each student's disability is best accommodated through a personalized plan." As for DiBella's claim that all CSU campuses lack adequate emergency evacuation plans, the attorneys argued, "The entirety of Plaintiff's class allegations is based on cherry-picked pieces of various emergency plan documents that Plaintiff found online through a cursory review, without any regard to whether those select quotes reflect a particular campus's entire emergency planning procedures or the entirety of what is communicated to disabled students." Their argument asserted that DiBella is "flatly wrong" in claiming that none of the 23 CSU campuses have an ADA-compliant emergency plan. Their filing includes links to websites and documents from each university campus that allegedly refer to each one's plans for emergencies and evacuations specifically applicable to disabled students, though most of the links were broken by the time the Outpost clicked them. The CSU's attorneys, who are employed at the multinational firm of Clyde & Co, argued that DiBella's case "would require a campus-by-campus and student-by-student inquiry" to review detailed policies, individual student circumstances and other evidence. However, in April the judge allowed the class action case to proceed, giving the defendants until June 7 to respond to DiBella's third amended complaint. "We survived against the motion to dismiss those class claims last month," Cabalo said, adding that the next step will be asking the judge to certify the class. The lawsuit also asks for a permanent injunction directing the CSU to modify any facilities that don't conform to ADA guidelines, provide accessible student transportation and make "appropriate policy changes." DiBella is also pursuing "appropriate damages," and while Cabalo said the exact dollar amount is still being worked out, similar ADA-related cases have seen awards for damages in the range of $340,000 to $700,000, adjusted for inflation. The Outpost emailed Cal Poly Humboldt seeking comment on the case. They said they were working on getting us a comment, but they referred us to the CSU. A voicemail left for the CSU's public affairs manager had not been returned by the time of publication. After being moved from the dorms to one of the Arcata hotels that Cal Poly Humboldt now uses for student housing, DiBella moved into different off-campus housing. "But I would very much like to be able to live on campus and have the support of that community," she said. UPDATE, 12:27 p.m.: Shortly after this post was published, CSU Chancellor's Office Public Affairs Manager Hazel J. Kelly emailed the following statement: The CSU values safety and inclusion and is committed to providing a positive and meaningful experience for all students. We disagree with the allegations and Plaintiff's characterization. The CSU and its 23 campuses maintain publicly available emergency evacuation plans. Due to the pending nature of the litigation, the CSU is unable to comment further, but we do look forward to addressing Plaintiff's claims. [GN] HUNTINGTON INGALLS: Darrin Files Suit in E.D. Virginia ------------------------------------------------------ A class action lawsuit has been filed against Huntington Ingalls Industries. The case is styled as April Darrin, individually and on behalf all others similarly situated v. Huntington Ingalls Industries, Case No. 4:23-cv-00053-EWH-DEM (E.D. Va., April 27, 2023). The nature of suit is stated as Other Contract. HII Corporate -- https://hii.com/ -- formerly Huntington Ingalls Industries, Inc., is the largest military shipbuilding company in the United States as well as a provider of professional services to partners in government and industry.[BN] The Plaintiff is represented by: David Hilton Wise, Esq. Joseph Michael Langone, Esq. WISE LAW FIRM, PLC 10640 Page Avenue, Suite 320 Fairfax, VA 22030 Phone: (703) 934-6377 Fax: (703) 934-6379 Email: dwise@wiselaw.pro jlangone@wiselaw.pro HUNTINGTON INGALLS: Keeler Files Suit in E.D. Virginia ------------------------------------------------------ A class action lawsuit has been filed against Huntington Ingalls Industries, Inc. The case is styled as Kenneth Keeler, individually, and on behalf of all others similarly situated v. Huntington Ingalls Industries, Inc. doing business as: HII Corporate, Case No. 4:23-cv-00055-EWH-DEM (E.D. Va., April 28, 2023). The nature of suit is stated as Other Personal Property for Non-Motor Vehicle. HII Corporate -- https://hii.com/ -- formerly Huntington Ingalls Industries, Inc., is the largest military shipbuilding company in the United States as well as a provider of professional services to partners in government and industry.[BN] The Plaintiff is represented by: Steven T. Webster, Esq. WEBSTER BOOK LLP 300 N Washington Street, Suite 404 Alexandria, VA 22314 Phone: (888) 987-9991 Fax: (888) 987-9991 Email: swebster@websterbook.com I.C. SYSTEMS INC: Dillion Files FDCPA Suit in D. New Jersey ----------------------------------------------------------- A class action lawsuit has been filed against I.C. Systems, Inc. The case is styled as Robin Dillion, individually and on behalf of all others similarly situated v. I.C. Systems, Inc., Case No. 3:23-cv-02365 (D.N.J., April 28, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. I.C. System -- https://www.icsystem.com/ -- is a nationally recognized debt recovery agency.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com INDUS REALTY: M&A Class Action Firm Continues to Probe Merger ------------------------------------------------------------- Juan Monteverde, founder and managing partner of the class action firm Monteverde & Associates PC (the "M&A Class Action Firm"), a national securities firm rated Top 50 in the 2018-2021 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: INDUS Realty Trust, Inc. (NASDAQ: INDT), relating to its proposed sale to affiliates of Centerbridge Partners, L.P. and GIC Real Estate, Inc.. Under the terms of the agreement, INDT shareholders are expected to receive $67.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/indus-realty-trust-inc. It is free and there is no cost or obligation to you. We are a national class action securities and consumer litigation law firm that has recovered millions of dollars for shareholders and is committed to protecting investors and consumers from corporate wrongdoing. Monteverde & Associates lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the firm, has been recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013 and 2017-2019, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017-2020 Top Rated Lawyer. Our firm's recent successes include changing the law in a significant victory that lowered the standard of liability under Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter, our firm successfully preserved this victory by obtaining dismissal of a writ of certiorari as improvidently granted at the United States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019). Also, over the years the firm has recovered or secured over a dozen cash common funds for shareholders in mergers & acquisitions class action cases.[GN] J&J INVESTMENT: Can't Compel Discovery From Former Plaintiffs ------------------------------------------------------------- In the case, IN RE J&J INVESTMENT LITIGATION, Case No. 2:22-cv-00529-GMN-NJK (D. Nev.), Magistrate Judge Nancy J. Koppe of the U.S. District Court for the District of Nevada: a. denies Wells Fargo's motion to compel discovery from former plaintiffs; and b. grants the former plaintiffs' counter-motion to quash the subpoenas. The case arises out of allegations that Matthew Beasley and Jeffrey Judd operated a large-scale Ponzi scheme through which they duped investors to pay them money purportedly used for advance loans to the Plaintiffs awaiting payments on personal injury settlements. Those allegations initially generated civil lawsuits against the alleged schemers, but the Plaintiffs eventually turned their attention to Defendant Wells Fargo, with whom hundreds of millions of dollars from the scheme were allegedly deposited. Several of the Plaintiffs' claims against Wells Fargo survived a motion to dismiss. The parties are before the Court on a discovery dispute regarding Wells Fargo's efforts to obtain documents through subpoenas served on persons and entities who were previously plaintiffs in this or related actions, but who have subsequently withdrawn from that role. Pending before the Court is Wells Fargo's motion to compel discovery from former plaintiffs. The former plaintiffs filed a response and a counter-motion to quash the subpoenas. Wells Fargo filed a reply. The motion is properly resolved without a hearing. Judge Koppe finds that the motion practice under consideration is directed to subpoenas served on 11 former plaintiffs. As of the filing of their earlier pleadings, four of these former plaintiffs were not living in Nevada -- Bryce Bussey is a citizen of Utah, Tina Guilder and Anthony Guilder are citizens of California, and Travis Goldrup is residing in Texas. Wells Fargo appears to recognize that it may be seeking relief from the wrong court with respect to these out-of-state non-parties. Nonetheless, it provides no meaningful explanation as to why the Court can adjudicate disputes related to out-of-state subpoenas. The papers of the former plaintiffs simply ignore the issue. Having been provided no developed explanation or legal authority that it is proper for the Court to adjudicate a subpoena dispute for out-of-state persons, Judge Koppe declines to rule on the pending motions as they relate to former plaintiffs Bryce Bussey, Tina Guilder, Anthony Guilder, and Travis Goldrup. The motion and counter-motion are denied without prejudice as to these subpoenas. Judge Koppe also finds that Wells Fargo has failed to show that its subpoenas are proper in the circumstances of the case. Most significantly, she is not persuaded that the discovery is necessary. Not only does that circumstance dispel the assertion that this discovery is necessary, it also shows that the information being sought is already known to Wells Fargo or that it can be obtained through other available means. Judge Koppe is likewise unpersuaded that this discovery is necessary because the Plaintiffs might have relied on information from the former plaintiffs in developing the operative pleading or that the Plaintiffs might rely on information from the former plaintiffs later in the case, such that Wells Fargo should have an opportunity to explore the same sources through its subpoenas. None of the former plaintiffs is listed as a witness. In short, Wells Fargo's arguments on this front amount to speculation, which falls well short of meeting its burden to show the discovery is necessary. Wells Fargo's failure to meet its burden on these considerations dooms its motion. Accordingly, for these reasons, Judge Koppe denies the motion to compel discovery and grants the motion to quash as to former plaintiffs Philomena Moloney, Stanley Ann Dowdy, PMM3, Fortress Protection LLC, Elizabeth Lewis, California Cabinet Distributors Inc., and Better Hitting, Inc. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/xyqni from Leagle.com. J.G. WENTWORTH: Simpson Suit Stayed Pending Decision in Drazen Suit ------------------------------------------------------------------- Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida, Tampa Division, stays the lawsuit entitled DOUGLAS SIMPSON, individually and on behalf of all others similarly situated, Plaintiff v. THE J.G. WENTWORTH CO., and DIGITAL MEDIA SOLUTIONS, LLC, Defendants, Case No. 8:23-cv-152-KKM-AEP (M.D. Fla.), in light of the Eleventh Circuit's pending en banc decision in Drazen v. Pinto. Plaintiff Douglas Simpson, individually and on behalf of a putative class, sued The J.G. Wentworth Company and Digital Media Solutions, LLC, over receipt of a single unwanted robocall to a cellphone. Defendant J.G Wentworth filed a motion to dismiss Simpson's complaint and strike the class allegations due to a lack of Article III standing. Simpson responded, basing his arguments largely on reasoning from the Eleventh Circuit's holdings in TCPA class action cases, such as Drazen v. Pinto, 41 F.4th 1354 (11th Cir. 2022), reh'g en banc granted, opinion vacated, 61 F.4th 1297 (11th Cir. 2023), and Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019). After J.G. Wentworth filed its motion to dismiss, the Eleventh Circuit vacated its decision in Drazen and granted Drazen's petition for rehearing en banc. The Court requested briefing on whether the case should be stayed pending the resolution of Drazen. Simpson opposes a stay as not necessary under current precedent and prejudicial to him if he was unable to engage in third party discovery. J.G. Wentworth does not oppose a stay but contends it is not necessary because Simpson lacks standing. Finally, Digital Media Solutions argues that a stay is "appropriate under the circumstances." In the light of the Eleventh Circuit's pending en banc decision, the Court stays this case. Drazen involves, among other things, a class of plaintiffs suing under the Telephone Consumer Protection Act (TCPA) for receipt of a single phone call to a cell phone. In the now-vacated opinion, the Court acknowledged that the Eleventh Circuit has not yet ruled on whether a single phone call to a cell phone constitutes a concrete injury. In her petition for rehearing en banc, Drazen requested that the court "reevaluate the Salcedo holding" and "clarify the law regarding the elements necessary to pursue a TCPA claim." Mr. Simpson alleges that he received a single unsolicited robocall to his cell phone in violation of the TCPA. He also seeks to certify a class consisting of persons within the United States, who received a telemarketing call to their cellular telephone number. J.G. Wentworth has already moved to dismiss the case or strike class allegations based on a perceived lack of Article III standing, and Digital Media Solutions promises to do the same in the coming days. Because the Eleventh Circuit has yet to rule on whether a single phone call to a cell phone is a concrete injury and Drazen involves class action TCPA claims like this case, the forthcoming decision is likely to have a substantial or controlling effect on the claims and issues in this case, Judge Mizelle opines. Thus, the Court stays this case. Accordingly, Judge Mizelle rules that: 1. except as provided by this order, this proceeding is stayed. The parties must file a joint notice within seven days of a decision from the Eleventh Circuit in Drazen v. Pinto; and 2. The Clerk is directed to administratively close this case. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/58m94ryf from Leagle.com. JEAN ROUSSEAU: Web Site Not Accessible to Blind, Clement Alleges ---------------------------------------------------------------- VINCENT CLEMENT, individually and on behalf of all others similarly situated, Plaintiff v. JEAN ROUSSEAU, INC., Defendant, Case No. 1:23-cv-03269-DLI-LB (E.D.N.Y., May 1, 2023) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, https://www.aptdeco.com/, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. JEAN ROUSSEAU, INC. manufactures leather products. The Company offers watch belts, wallet, bags, shoes, bracelet, coin cases, mobile covers, and other related accessories. [BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Telephone: (201) 282-6500 Facsimile: (201) 282-6501 Email: mrozenberg@steinsakslegal.com JUST BLINDS LP: Vachnine Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Just Blinds, LP. The case is styled as Ness-Lee Vachnine, on behalf of himself and all others similarly situated v. Just Blinds, LP, Case No. 1:23-cv-03559 (S.D.N.Y., April 28, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Just Blinds, LP. -- https://www.justblinds.com/ -- offers a simplified selection of quality blinds, shades, and shutters at low prices.[BN] The Plaintiff is represented by: Gabriel Levy, Esq. GABRIEL A. LEVY, P.C. 1129 Northern Blvd, Suite 404 Manhasset, NY 11030 Phone: (516) 287-3458 Email: glevy@glpcfirm.com K-MAC ENTERPRISES: Fails to Pay Proper Wages, Culbertson Alleges ---------------------------------------------------------------- GERARD CULBERTSON, individually and on behalf of all similarly situated individuals, Plaintiff V. K-MAC ENTERPRISES, INC., Defendant, Case No. 5:23-cv-05069-TLB (E.D.N.Y., May 2, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Culbertson was employed by the Defendant as an assistant general manager. K-MAC ENTERPRISES, INC. retails prepared foods. The Company owns and operates a group of fast food restaurants. [BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza, 10800 Financial Centre, Pkwy., Ste 510 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email:Josh@sanfordlawfirm.com KONTOOR BRANDS: Has Made Unsolicited Calls, Brito Suit Alleges -------------------------------------------------------------- LILLIAN BRITO, individually and on behalf of all others similarly situated, Plaintiff v. LEE d/b/a KONTOOR BRANDS, INC., Defendant, Case No. 172278842 (Fla., Cir., May 2, 2023) seeks to stop the Defendants' practice of making unsolicited calls. LEE d/b/a KONTOOR BRANDS, INC.is a global lifestyle apparel company. [BN] The Plaintiff is represented by: Benjamin W. Raslavich, Esq. KUHN RASLAVICH, P.A. 2110 West Platt Street Tampa, FL 33606 Telephone: (813) 422–7782 Facsimile: (813) 422–7783 Email: ben@theKRfirm.com LEXINGTON GOLF: Laine et al. Sue Over Labor Law Violations ---------------------------------------------------------- AMANDA LAINE, ELIZABETH UNDERWOOD, and KRISTIAN KISKADEN, on behalf of themselves and all others similarly situated, Plaintiffs v. LEXINGTON GOLF & TRAVEL, LLC, ACT DISTRIBUTORS LLC, and GPT (DE) LLC, d/b/a CHEETAH PREMIER GENTLEMEN’S CLUB OF LEXINGTON, Defendants, Case No. 5:23-cv-00126-GFVT (E.D. Ky., April 27, 2023) arises out of the Defendants' violations of the Fair Labor Standards Act and the Kentucky Wages and Hours Act. The Defendants employed Plaintiff Laine as a VIP Hostess from approximately 2015 through March 2023, with the exception of approximately one year from around March 2017 until March 2018, during which Plaintiff Laine did not work for Defendants. On the other hand, Plaintiff Underwood was employed for approximately the last five years, during approximately the first two months as a server and since then as a VIP Hostess. Plaintiff Kiskaden was also employed by the Defendants for approximately the last five years and since approximately March 2022 as a VIP Hostess. Plaintiffs Laine, Underwood and Kiskaden worked at Cheetah Premier Gentlemen's Club of Lexington, the suit contends. The Defendants allegedly violated the FLSA and KWHA in at least two ways: (a) by unlawfully requiring VIP Hosts and Hostesses to share tips with their employer and members of management; and (b) by requiring VIP Hosts and Hostesses to perform marketing/outreach duties "off the clock," i.e., while not clocked in for pay purposes, says the suit. Lexington Golf & Travel, LLC is a Kentucky limited liability company that operates Cheetah Premier Gentlemen's Club of Lexington at 1101 E New Circle Rd, Lexington, KY.[BN] The Plaintiffs are represented by: David W. Garrison, Esq. Joshua A. Frank, Esq. Nicole A. Chanin, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Philips Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com nchanin@barrettjohnston.com LOANDEPOT.COM LLC: Abrahamian Files TCPA Suit in D. Arizona ----------------------------------------------------------- A class action lawsuit has been filed against Loandepot.com, LLC. The case is styled as Lee Abrahamian, on behalf of himself and all others similarly situated v. Loandepot.com, LLC, Case No. 2:23-cv-00728-SMB (D. Ariz., April 28, 2023). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. LoanDepot -- https://www.loandepot.com/ -- sometimes stylized as loanDepot, is an Irvine, California-based nonbank holding company which sells mortgage and non-mortgage lending products.[BN] The Plaintiff is represented by: Robert H. Goodman, Esq. PARRISH & GOODMAN PLLC 13031 McGregor Blvd., Ste. 8 Ft Myers, FL 33919 Phone: (813) 643-4529 Fax: (813) 315-6535 Email: jdavidson@gdrlawfirm.com - and - Shayna Frieden, Esq. William Fleming King, Esq. GALLAGHER & KENNEDY PA 2575 E Camelback Rd., Ste. 1100 Phoenix, AZ 85016-9225 Phone: (408) 813-0342 Email: shayna.frieden@gknet.com bill.king@gknet.com LOC PERFORMANCE: Fails to Pay Proper wages, Brown Suit Alleges -------------------------------------------------------------- DERRICK BROWN, individually and on behalf of all others similarly situated, Plaintiff v. LOC PERFORMANCE PRODUCTS, INC.; and LOC PERFORMANCE PRODUCTS, LLC, Defendants, Case No. 2:23-cv-11022-LVP-CI (E.D. Mich., May 2, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Brown was employed by Defendant as a quality inspector. LOC PERFORMANCE PRODUCTS, INC. manufactures computer numerically controlled machined components and assemblies. The Company offers in-house product design, development, reverse engineering validation, and supply-chain management services. Loc Performance serves agricultural, medical, appliance, aerospace, military, and automotive sectors.[BN] The Plaintiff is represented by: Jesse L. Young, Esq. SOMMERS SCHWARTZ, P.C. 141 E. Michigan Avenue, Suite 600 Kalamazoo, MI 49007 Telephone: (269) 250-7500 Email: jyoung@sommerspc.com - and - Kevin J. Stoops, Esq. SOMMERS SCHWARTZ, P.C. One Town Square, 17th Floor Southfield, MI 48076 Telephone: (248) 355-0300 Email: kstoops@sommerspc.com - and - Jonathan Melmed, Esq. Laura Supanich, Esq. MELMED LAW GROUP, P.C. 1801 Century Park East, Suite 850 Los Angeles, CA 90067 Telephone: (310) 824-3828 Email: jm@melmedlaw.com lms@melmedlaw.com MANGIA MANGIA: Fails to Pay Proper Wages, Cevallos Alleges ---------------------------------------------------------- PEDRO CEVALLOS, individually and on behalf of all others similarly situated, Plaintiff v. MANGIA 23RD STREET LLC (D/B/A MANGIA); MANGIA 57, INC. (D/B/A MANGIA); SASHA MUNIAK; PAWEL KOSZALKA; and PIOTR W LAKOTA, Defendants, Case No. 1:23-cv-03625-JPC,(S.D.N.Y., May 1, 2023) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide meals, and provide accurate wage statements. Plaintiff Cevallos was employed as a kitchen staff. MANGIA 23RD STREET LLC owns, operates, or controls several Italian Restaurants, located in various locations in Manhattan under the name "Mangia." [BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 MARTEN TRANSPORT: Morrison Suit Removed to N.D. California ---------------------------------------------------------- The case captioned as Dianna Morrison and Michael Loper, on behalf of themselves and all others similarly situated v. MARTEN TRANSPORT, LTD., and DOES 1-20, inclusive, Case No. 23CV029816 was removed from the Superior Court of California in and for the County of Alameda, to the United States District Court for the Northern District of California on April 28, 2023, and assigned Case No. 4:23-cv-02079. The Plaintiffs' Complaint alleges violations of California Labor Code ("Labor Code") Unfair Competition Law ("UCL"), based on alleged failure to pay for all hours worked.[BN] The Defendants are represented by: Michael E. Brewer, Esq. BAKER & MCKENZIE LLP Two Embarcadero Center, 11th Floor San Francisco, CA 94111-3802 Phone: +1 415 576 3000 Facsimile: +1 415 576 3099 Email: michael.brewer@bakermckenzie.com - and - Lily S. Duong, Esq. BAKER & MCKENZIE LLP 600 Hansen Way Palo Alto, CA 94304 Phone: +1 650 856-2400 Email: lily.duong@bakermckenzie.com MAXIM HEALTHCARE: Agrees to Settle Data Breach Class Action ----------------------------------------------------------- topclassactions.com reports that Maxim Healthcare Services Inc. has agreed to a nationwide class action lawsuit settlement to resolve claims it failed to protect patients from a 2020 data breach. The settlement benefits individuals who were sent a notice letter notifying them that their information may have been compromised in a data incident announced by Maxim on or about Nov. 4, 2021. Plaintiffs in the data breach class action lawsuit accused Maxim of failing to protect their information from a 2020 cyber attack in which criminals accessed some of Maxim's email mailboxes, gaining access to their personally identifiable information and personal health information. The company could have prevented the breach through reasonable cybersecurity measures, the class action lawsuit contends. Maxim Healthcare Services is a home healthcare services company that offers nationwide staffing for nursing; physical rehabilitation; and personal, respite and behavioral care for people with chronic and acute illnesses and disabilities. The plaintiffs include patients who received in-home medical care from Maxim Healthcare Services and whose data was exposed in the breach. The company notified about 28,425 affected individuals about the data breach. Maxim Healthcare Services hasn't admitted any wrongdoing but has agreed to the settlement to resolve the data breach class action lawsuit. The settlement provides reimbursement of up to $5,000 for extraordinary expenses incurred as a result of the data breach, and lost time expenses for up to three hours at $20 per hour, for a maximum of $60. Class members must submit a claim form and reasonable documentation showing the data breach caused the costs in order to receive reimbursement. The settlement also provides a flat monetary benefit of approximately $100 for class members who were California residents between Oct. 1, 2020, and Dec. 4, 2020. This amount can be combined with a claim for documented extraordinary expenses but cannot be combined with the lost time expense reimbursement. All class members will be provided access to free identity-theft protection called "Financial Shield" by Pango for 12 months without the need to submit a settlement claim. A link with a redeemable code to be used directly with Pango was provided in a notice sent by the claim administrator. The deadline for exclusion and objection is June 23, 2023. The final approval hearing for the Maxim Healthcare Services settlement is scheduled for July 28, 2023. To receive settlement benefits, class members must submit a valid claim form by July 24, 2023. Who's Eligible Individuals who were sent a notice letter notifying them that their information may have been compromised in a data incident announced by Maxim on or about Nov. 4, 2021. Potential Award $5,000 Proof of Purchase Documentation of data breach-related expenses. Claim Form CLICK HERE TO FILE A CLAIM » 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 07/24/2023 Case Name Wilson, et al. v. Maxim Healthcare Services Inc., Case No.: 37-2022-00046497-CU-MC-CTL, in the Superior Court of the State of California County of San Diego Final Hearing 07/28/2023 Settlement Website maximsettlement.com Claims Administrator Kroll Settlement Administration LLC P.O. Box 225391 New York, NY 10150-5391 833-630-8181 Class Counsel Anderson Berry Gregory Haroutunian CLAYEO C ARNOLD A PROFESSIONAL LAW CORP. John J Nelson MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC Defense Counsel Matthew D Pearson BAKER & HOSTETLER LLP [GN] MEDIBANK PRIVATE: Faces Third Class-Action Suit Over Cyber Breach ----------------------------------------------------------------- Himanshi Akhand at Reuters reports that Australia's Medibank Private Ltd said it was served with another class-action suit related to the cyber hack incident last year in which personal data of current and former customers was leaked on the dark web. The third class-action suit related to the incident was filed in the country's federal court by law firm Slater & Gordon on behalf of affected current and former Medibank customers, and healthcare service providers. Among the many breaches reported by Australian companies since late last year, Medibank had disclosed that a hacker stole personal information of 9.7 million current and former customers and released the data on the dark web. In a statement on its website, Slater & Gordon alleged that the health insurer failed to protect, or take reasonable steps to protect the personal information of its customers, thereby breaching consumer law and privacy principles. In recent months, similar class action suits against the company have been filed by law firms Baker & McKenzie and Quinn Emanuel Urquhart & Sullivan. Medibank, which is also under investigation from the country's privacy regulator on how it handles personal information, said it would defend the proceedings.[GN] MEK ENTERPRISES: Taylor Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against MEK Enterprises, Inc., et al. The case is styled as Allen Taylor, on behalf of himself and all others similarly situated v. MEK Enterprises, Inc., MEK Enterprises Gov, Inc., Does 1 To 10, Inclusive, Case No. CGC23606187 (Cal. Super. Ct., San Francisco Cty., April 28, 2023). The case type is stated as "Other Non-Exempt Complaints." MEK Enterprises -- http://www.4mek.com/-- is a California based company that specializes in all aspects of government contract labor services.[BN] The Plaintiff is represented by: Marcus J. Bradley, Esq. BRADLEY GROMBACHER LLP 31365 Oak Crest Drive Suite 240 Westlake Village, CA 91361 Phone: (805) 270-7100 Fax: (805) 618-2939 - and - Bevin Elaine Allen Pike, Esq. CAPSTONE LAW APC 1875 Century Park E., Ste. 1000 Los Angeles, CA 90067-2533 Phone: 310-712-8010 Email: Bevin.Pike@capstonelawyers.com MIDLAND CREDIT: Faces Suit Over Illegal Debt Collection Practices ----------------------------------------------------------------- Collectors are often faced with the dilemma of laws and regulations that contradict each other. A state may enact a law that has a provision which conflicts with what they need to do under the Fair Debt Collection Practices Act, for example. A collector finds itself the subject of a FDCPA class-action lawsuit because it included a disclosure related to collection regulations in Massachusetts that the complaint alleges actually violates the FDCPA. A copy of the complaint, filed in the District Court for the District of Massachusetts, can be accessed using case number 23-cv-10824 or by clicking here -- https://www.accountsrecovery.net/wp-content/uploads/2023/05/23-cv-10824.pdf The case is styled Amanda Permi v. Midland Credit Management Inc., Case No. :23-cv-10824 (D. Mass.) Back in March 2022, the plaintiff received a collection letter from the defendant. The letter included the following disclosure: IF YOU LIVE IN MASSACHUSETTS, THIS APPLIES TO YOU: NOTICE OF IMPORTANT RIGHTS: You have the right to make a written or oral request that telephone calls regarding your debt not be made to you at your place of employment. Any such oral request will be valid for only ten (10) days unless you provide written confirmation of the request postmarked or delivered within seven (7) days of such request. You may terminate this request by writing [the defendant]. The problem, according to the complaint, is that the FDCPA prohibits collectors from contacting consumers "at their place of employment if the collector knows or has reason to know the consumer's employer prohibits the consumer from receiving such communication." There is no requirement that collectors receive a follow-up request in the mail within 10 days -- they have to honor the request regardless of when or how it was made. For the plaintiff, this means the disclosure in question violated Sections 1692e(5) and 1692e(10) of the FDCPA because Section 1692c(a)(1) prohibits the communications. The disclosure, according to the complaint, shifts "the burden on to the consumer to incur costs for postage to completely process such requests, when the FDCPA imposes no such burden." The complaint seeks to include anyone who received a communication with a similar disclosure. [GN] MIDLAND CREDIT: Perryman Files FDCPA Suit in S.D. Mississippi ------------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Tiffany Jones Perryman, individually and on behalf of all others similarly situated v. Midland Credit Management, Inc., Case No. 5:23-cv-00032-DCB-LGI (S.D. Miss., April 27, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Midland Credit Management, Inc. -- https://www.midlandcredit.com/ -- is a third-party debt collector with headquarters in San Diego.[BN] The Plaintiff is represented by: Jessica R. McLaurin, Esq. JESSICA R. MCLAURIN, ATTORNEY 665 S Pear Orchard Rd., Ste. 106-710 Ridgeland, MS 39157-4859 Phone: (601) 324-4006 Email: jmclaurin@mclegalcounsel.com MORNING LAVENDER: Hernandez Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Morning Lavender, LLC. The case is styled as Janelys Hernandez, on behalf of herself and all others similarly situated v. Morning Lavender, LLC, Case No. 1:23-cv-03527 (S.D.N.Y., April 27, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Morning Lavender -- https://morninglavender.com/ -- is an online women's boutique featuring fresh & feminine finds for the everyday gal.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com MORTGAGE APPROVAL: Has Made Unsolicited Calls, Bradley Suit Says ---------------------------------------------------------------- SEAN BRADLEY, individually and on behalf of all others similarly situated, Plaintiff v. MORTGAGE APPROVAL GROUP, LLC, Defendant, Case No. 172222256 (Fla., Cir., May 2, 2023) seeks to stop the Defendants' practice of making unsolicited calls. MORTGAGE APPROVAL GROUP, LLC is a Mortgage Broker that is set out to provide the best home financing option for the families that put their trust in us for their home loan needs.[BN] The Plaintiff is represented by: William "Billy" Peerce Howard, Esq. Amanda J. Allen, Esq. THE CONSUMER PROTECTION FIRM, PLLC 401 East Jackson Street, Suite 2340 Tampa, FL 33602 Telephone: (813) 500-1500 Facsimile: (813) 435-2369 Email: Billy@TheConsumerProtectionFirm.com Amanda@TheConsumerProtectionFirm.com MOTIVATE LLC: Todd Files Suit in Cal. Super. Ct. ------------------------------------------------ A class action lawsuit has been filed against Motivate LLC, et al. The case is styled as Kuanetta Victoria Todd, an individual and on, behalf of all others similarly situated v. Motivate LLC, Does 1 Through 100, Inclusive, Case No. CGC23606158 (Cal. Super. Ct., San Francisco Cty., April 27, 2023). The case type is stated as "Other Non-Exempt Complaints (Complaint Under The Labor Code Private Attorneys General Act Of 2004)." Motivate LLC -- https://motivateco.com/ -- is a company based in New York City that services bicycle sharing systems and other urban services in North America.[BN] The Plaintiff is represented by: Amanda L. Fazio, Esq. BIBIYAN LAW GROUP PC 8484 Wilshire Blvd., Ste. 500 Beverly Hills, CA 90211-3243 Phone: 310-438-5555 Email: amanda@tomorrowlaw.com NATIONAL GENERAL: Court Denies King's Bid to Apply Discovery Rule ----------------------------------------------------------------- Chief Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California denies the Plaintiffs' motion to apply the discovery rule in the lawsuit captioned EDD KING, et al., Plaintiffs v. NATIONAL GENERAL INSURANCE COMPANY, et al., Defendants, Case No. 15-cv-00313-DMR (N.D. Cal.). In a joint discovery letter dated Dec. 22, 2022, the Plaintiffs invoked the discovery rule and sought to obtain discovery extending back to Jan. 1, 2008. At the Feb. 9, 2023 hearing on the discovery dispute, the Court ordered the Plaintiffs to file a brief setting out the law and facts in support of their position that the liability period in this putative class action should extend back to 2008. The Plaintiffs timely filed a motion to apply the discovery rule. The Defendants opposed and the Plaintiffs replied. The Plaintiffs contend that the discovery rule applies to their claims. However, no one has argued that the Plaintiffs' claims would be barred but-for application of the discovery rule. To the contrary, the Defendants acknowledge that the Plaintiffs filed their Complaint on Jan. 22, 2015, and timely asserted claims that carry a four-year statute of limitations. As the Defendants point out, Judge Ryu opines that the Plaintiffs have not explained the significance of the discovery rule with regards to the temporal scope of the class. They do not cite a single case discussing the effect of the discovery rule on the potential temporal scope of a class action. They also failed to submit any facts or evidence related to putative class members. On reply, the Plaintiffs assert only that "a reasonable class member would not have discovered her claim against National General before this case was filed, making the discovery rule applicable classwide." They aver that "whether the discovery rule applies to the class claims presents common questions of fact and law to be resolved at a classwide trial, not on a discovery motion." The Court disagrees. As noted, the Plaintiffs were specifically ordered to file a brief supporting their claim that the liability period in this case should go back to 2008. Judge Ryu points out that the Plaintiffs have not made this showing. Accordingly, the Plaintiffs' motion to apply the discovery rule is denied. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/5n74r25f from Leagle.com. NEOVIA LOGISTICS: To Show Cause Why Neims Shouldn't Be Remanded --------------------------------------------------------------- In the case, Patrick Joseph Neims, et al. v. Neovia Logistics Distribution, LP, et al., Case No. EDCV 23-716 PA (SHKx) (C.D. Cal.), Judge Percy Anderson of the U.S. District Court for the Central District of California orders the Defendants to show cause in writing why the action should not be remanded to the Superior Court of the State of California for the County of San Bernardino for lack of subject matter jurisdiction. Judge Anderson has reviewed the Notice of Removal filed by Defendants Neovia Logistics Distribution, LP and Neovia Logistics Services, LLC. They allege that the Court possesses diversity jurisdiction over the action pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). In the Notice of Removal, the Defendants allege that Neovia Logistics Services, LLC is a corporation originally incorporated under the laws of Delaware in 1987 as Caterpillar Logistics Services, LLC. Neovia Logistics Services, LLC's current headquarters is in Texas and its executive management has directed, controlled and coordinated its activities from there. The Notice of Removal alleges that Neovia Logistics Distribution, LP is also a Delaware corporation and purchased as part of an acquisition in 2013. Since 2013, Neovia Logistics Distribution, LP's headquarters have been in Texas and its executive management has directed, controlled, and coordinated its activities from there. Judge Anderson states that because entities with "LLC" in their names are usually limited liability companies, and those with "LP" in their names are usually limited partnerships, it is not clear from the Notice of Removal and the attached Declaration of Alan Calhoun if the Defendants have accurately alleged their own citizenship. He says if the Defendants are a limited liability company and a limited partnership, the allegations in the Notice of Removal, which alleges the Defendants' citizenship as if they were corporations, would not adequately establish their citizenship or meet Defendants' burden to establish the Court's subject matter jurisdiction. Judge Anderson therefore orders the Defendants to show cause in writing why the action should not be remanded to San Bernardino Superior Court for lack of subject matter jurisdiction. The Defendants' Response will include any necessary evidence of their citizenship, including a Declaration signed under penalty of perjury. Failure to timely or adequately respond to the Order to Show Cause may result in the remand of this action to San Bernardino Superior Court without further warning. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/8znf1 from Leagle.com. NEW ERA SECURITY: Fails to Pay Proper Wages, Limon Suit Alleges --------------------------------------------------------------- JOEL LIMON, individually and on behalf of themselves and all other similarly situated persons, known and unknown, Plaintiffs v. NEW ERA SECURITY INC., AND MIGUEL HURTADO, Defendants, Case No. 3:23-cv-02055 (N.D. Cal., April 27, 2023) arises out of the Defendants' violations of the Fair Labor Standards Act of 1938, the California Labor Code, and the California Unfair Competition Law. Plaintiff Joel Limon worked for Defendants as a residential maintenance employee from approximately July 2021 to January 2022. During his employment, despite working approximately 11 hours per day, six days per week, Limon was not paid the minimum wages required by law including cash wages, for the hours he worked. In addition, the Defendants also failed to pay the legal overtime compensation applicable to Limon, says the Plaintiff. NEW ERA SECURITY, INC is a limited liability company doing business in 66 California. It provides administrative and maintenance services to residential properties. [BN] The Plaintiff is represented by: James M. Dore, Esq. JUSTICIA LABORAL, LLC 6232 N. Pulaski Rd. Suite 300 Chicago, IL 60646 Telephone: (773) 415-4898 E-mail: jdore@justicialaboral.com NEXTFOODS INC: Gates Sue Over Mislabeling of Juice Beverages ------------------------------------------------------------ VALERIE GATES, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. NEXTFOODS, INC., Defendant, Case No. 5:23-cv-00530-FJS-ATB (N.D.N.Y., April 27, 2023) alleges that the Defendant has committed consumer fraud, negligent and intentional misrepresentation, and unjust enrichment in selling a line of fruit juice beverages branded GoodBelly Probiotic JuiceDrinks. Plaintiff Valerie Gates asserts that Nextfoods' labeling of these juice beverages is false or highly misleading for several reasons. NextFoods represents on their labels that the JuiceDrinks promote "digestive health” and thereby promote "overall health," and "overall wellness. In this class action lawsuit, Gates argues that representations the JuiceDrinks promote "digestive health" are false, or at least highly misleading, because the sugar contained in the JuiceDrinks directly harms digestive health. Accordingly, NextFoods has engaged in consumer-oriented conduct which is deceptive or misleading in a material way constituting false advertising in the conduct of any business, trade, or commerce, in violation of New York General Business Law. In addition, NextFoods labeling statements on their JuiceDrinks violated Federal Food, Drug, and Cosmetic Act and the New York Agriculture and Marketing Law, says the Plaintiff. NextFoods, Inc. is a Colorado corporation with its principal place of business in Boulder, CO. [BN] The Plaintiff is represented by: Jack Fitzgerald, Esq. FITZGERALD JOSEPH LLP 2341 Jefferson Street, Suite 200 San Diego, CA 92110 Telephone: (619) 215-1741 E-mail: jack@fitzgeraldjoseph.com OHIO: Southern District Court Narrows Claims in Tolliver v. ODRC ---------------------------------------------------------------- In the lawsuit entitled KEVIN A. TOLLIVER, Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS, et al., Defendants, Case No. 2:22-cv-4567 (S.D. Ohio), Magistrate Judge Kimberly A. Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, recommends that the Court dismiss: a. all claims against the Ohio Department of Rehabilitation and Corrections raised under 42 U.S.C. Section 1983; b. all claims raised on behalf of other Muslim inmates; c. all claims raised on behalf of groups of which the Plaintiff is not a member; d. all claims under Section 1983 based on alleged violations of ODRC policy; and e. the claim alleging a denial of Halal or Kosher meals. Judge Jolson says the Court should allow the remaining claims to proceed at this time, and the parties should be prepared to address the issues raised in Section III.F through III.H. Plaintiff Kevin A. Tolliver is currently incarcerated at Grafton Correctional Institution (GCI). He sues the Ohio Department of Rehabilitation and Corrections (ODRC) and/or Annette Chambers-Smith, its Director. The Plaintiff, a state prisoner proceeding without the assistance of counsel, has filed a civil rights complaint with the Court. He seeks declaratory and injunctive relief under 42 U.S.C. Section 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) for alleged religious rights violations. The case is currently before the Court for the initial screening of the Complaint as required by law. The Plaintiff initially submitted the Complaint (and related papers) in Kevin Tolliver v. Warden Noble, Case No. 2:16-cv-1020, a separate case pending before the Court. The Clerk of Court later opened this case, and docketed the Plaintiff's submissions in it. The two cases are proceeding separately at this time. The earlier case will be referred to as the "2016 Case" in this Report and Recommendation. The Plaintiff describes the Complaint in this action as a direct challenge to practices and policies of the ODRC. He alleges violations of his "First Amendment rights under the United States Constitution in regard to freedom of religion and violations of protections against establishment of religion." More specifically, he asserts that the ODRC policies and practices are ineffective and insufficient to lead to the hiring of qualified contractors/service providers to serve the Islamic community within Ohio's prisons. This leads, says the Plaintiff, to the denial of certain religious services, and constitutes religious persecution, denial or infringement of religious rights, and an establishment of religion in favor of both Christianity and the WD Muhammad style of practice, which is an ongoing harm to him and all similarly situated mainstream adherents to the Islamic faith in Ohio prisons. The Plaintiff appears to base this conclusion, at least in part, on the fact that there are no Muslim employees anywhere in the Religious Services Departments of ODRC, qualified by advanced education in Islamic studies (M.A. or Ph.D.) or similar religious accreditations (A'lim, Mufti, or Shaykh), and that there is no one on staff to properly oversee hiring of contractors and/or to administer and supervise policy issues on behalf of one of ODRC's principal faith group. He has had conflicts with the contractors providing such religious services, as discussed at length in the 2016 Case. In fact, Judge Jolson notes, nearly all of the allegations in the Complaint here repeat or echo the Plaintiff's prior allegations. In his new case, the Plaintiff appears to seek declaratory and injunctive relief only. He requests declaratory judgment with respect to 14 "Counts" or statements. The Plaintiff sought the same or similar relief in the 2016 Case. Here, in addition to the declarations, the Plaintiff also seeks a permanent injunction requiring the Defendants to cease implementation of their errant policy and make appropriate corrections under the supervision of the Court. Judge Jolson reads the Plaintiff's Complaint as raising claims under 42 U.S.C. Section 1983 for violations of the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, as well as a claim under RLUIPA. The Plaintiff appears to raise these claims against both the ODRC and its Director. Some of the claims should not proceed, and others should proceed at this time, subject to the concerns outlined here, Judge Jolson holds. The Judge opines that: Section 1983 claims cannot be raised against the ODRC; the Plaintiff cannot raise claims on behalf of other inmates; the Court can construe the allegations about injuries to the Plaintiff; alleged violations of ODRC Policy are not actionable under Section 1983; the Plaintiff's allegation that he was denied halal meals does not state a claim for a violation of RLUIPA, the First Amendment, or the Equal Protection Clause; the Doctrine of res judicata may bar this action; the statutes of limitations may bar these claims; and the requests for declaratory and injunctive relief may be moot. Summary and Recommendation The Plaintiff's Complaint in this case largely echoes claims he made in the 2016 Case, but as against two new Defendants. Some of the claims should be dismissed at this time. Having screened the Complaint as required by 28 U.S.C. Section 1915(e)(2) and 28 U.S.C. Section 1915A(a), Judge Jolson recommends that the Court: A. dismiss all claims raised against the ODRC pursuant to 42 U.S.C. Section 1983, as the ODRC is not a person subject to suit under that statute; B. dismiss all claims raised on behalf of other Muslim inmates, as the Plaintiff lacks standing to raise claims on their behalf; C. dismiss Counts 3-6 seeking a declaration that religious groups of which the Plaintiff is not a member deserve their own policies, he lacks standing to raise these claims; D. dismiss all claims raised under Section 1983 alleging that the ODRC policies were not followed (possibly part of Counts 2 and 8), as the violation of state policy is outside the scope of Section 1983; E. dismiss Count 14 concerning the provision of Halal or Kosher meals, as the Plaintiff has failed to allege an actual injury sufficient to state a claim; F. allow the following claims to proceed at this time, and subject to further order of the Court: 1. The claim against the ODRC under RLUIPA; and 2. The claims against Director Chambers-Smith under Section 1983 and RLUIPA. These claims appear to correspond to Counts 1-2 and 7-13 in the Complaint, as narrowed; and G. certify pursuant to 28 U.S.C. Section 1915(a)(3) that, for the reasons discussed, an appeal of any Order adopting this Report and Recommendations would not be taken in good faith, and therefore, deny the Plaintiff leave to appeal in forma pauperis. Judge Jolson will order service of process on the Defendant(s) if appropriate once the Court considers this Report and Recommendation and any objections to it. The Plaintiff is advised that he must keep the Court informed of his current address, and promptly file a Notice of New Address if he is released or transferred. A full-text copy of the Court's Report and Recommendations dated April 17, 2023, is available at https://tinyurl.com/2hmdhyza from Leagle.com. PAPA TEXAS: Harris Balks at Delivery Drivers' Unreimbursed Expenses ------------------------------------------------------------------- MIRACLE HARRIS, individually and on behalf of similarly situated persons, Plaintiff v. PAPA TEXAS, LLC, Defendant, Case No. 4:23-cv-01564 (S.D. Tex., April 27, 2023) arises out of the Defendant's violations of the Fair Labor Standards Act of 1938. Plaintiff Miracle Harris was employed by the Defendant from approximately July 2018 to March 2023 as a delivery driver at the Papa John's store located at 500 Fairmont Ave, Fairmont, WV. The delivery drivers, who are employed by the Defendant, used their own automobiles to deliver pizza and other food items to Defendant's customers. However, instead of reimbursing delivery drivers for the reasonably approximate costs of the business use of their vehicles, the Defendant used a flawed method to determine reimbursement rates that neither reimburse the drivers for their actual expenses, nor at the IRS business mileage rate which is legally required and a reasonable approximation of those expenses. This under-reimbursement causes their wages to fall below the applicable minimum wage during some or all workweeks, the Plaintiff contends. Papa Texas, LLC is a limited liability company maintaining its principal place of business at 5444 Westheimer Rd Ste 1000 Houston, Texas. It operates numerous Papa John's franchise stores throughout the U.S. [BN] The Plaintiff is represented by: C. Ryan Morgan, Esq. Jolie N. Pavlos, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 15th Floor P.O. Box 4979 Orlando, FL 32802-4979 Telephone: (407) 420-1414 E-mail: RMorgan@forthepeople.com JPavlos@forthepeople.com PARTNERS BANCORP: M&A Class Action Firm Continues to Probe Merger ----------------------------------------------------------------- Juan Monteverde, founder and managing partner of the class action firm Monteverde & Associates PC (the "M&A Class Action Firm"), a national securities firm rated Top 50 in the 2018-2021 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Partners Bancorp. (NASDAQ: PTRS), relating to its proposed sale to LINKBANCORP, Inc.. Under the terms of the agreement, PTRS shareholders are expected to receive 1.15 shares of LINKBANCORP stock per share they own. Click here for more information: https://www.monteverdelaw.com/case/partners-bancorp. It is free and there is no cost or obligation to you. We are a national class action securities and consumer litigation law firm that has recovered millions of dollars for shareholders and is committed to protecting investors and consumers from corporate wrongdoing. Monteverde & Associates lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the firm, has been recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013 and 2017-2019, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017-2020 Top Rated Lawyer. Our firm's recent successes include changing the law in a significant victory that lowered the standard of liability under Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter, our firm successfully preserved this victory by obtaining dismissal of a writ of certiorari as improvidently granted at the United States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019). Also, over the years the firm has recovered or secured over a dozen cash common funds for shareholders in mergers & acquisitions class action cases.[GN] PETROQUEST ENERGY: $18MM in Attorneys' Fees Awarded in Hoog Suit ---------------------------------------------------------------- Magistrate Judge Kimberly E. West of the U.S. District Court for the Eastern District of Oklahoma grants the Class Representative's Motion for Approval of Plaintiff's Attorneys' Fees, Litigation Expenses, Administration, Notice, and Distribution Costs, and Case Contribution Award in the lawsuit captioned as Kevin Hoog, on behalf of himself and all others similarly situated, Plaintiff v. PetroQuest Energy, L.L.C., et al., Defendants, Case No. 16-CV-463-KEW (E.D. Okla.). The Class Representative seeks entry of an order approving the requests for: 1) the Plaintiff's Attorneys' Fees in the amount of 40% of the Gross Settlement Fund; 2) Litigation Expenses to date in the amount of $592,492.38; 3) Administration, Notice, and Distribution Costs to date in the amount of $20,720.52; 4) a reserve of up to $180,279.48 for future Litigation Expenses and Administration, Notice, and Distribution Costs; and 5) a Case Contribution Award of one percent of the Gross Settlement Fund for service of the Class Representative in prosecuting this Litigation for the Settlement Class. The Notices stated that Class Counsel would seek attorneys' fees up to 40% of the Gross Settlement Fund ($18 million), to be paid from the Gross Settlement Fund prior to distribution to Settlement Class Members. The Notices also stated that Class Counsel would seek reimbursement of Litigation Expenses and Administration, Notice, and Distribution Costs in an amount of approximately $800,000. The Notices further stated that Class Representative would seek a Case Contribution Award of one percent of the Gross Settlement Fund ($450,000). The Class Counsel is awarded the Plaintiff's Attorneys' Fees of $18 million, to be paid from the Gross Settlement Fund. The Settlement has created a fund of $45 million in cash for payment to the Settlement Class. With respect to the request for reimbursement of Litigation Expenses and Administration, Notice, and Distribution Costs, the Court awards: 1) Litigation Expenses to date in the amount of $592,492.38; 2) Administration, Notice, and Distribution Costs to date in the amount of $20,720.52; and 3) a reserve of up to $180,279.48 for future Litigation Expenses and Administration, Notice, and Distribution Costs, subject to Court approval upon motion of Class Representative. With respect to the request for a Case Contribution Award, the Court awards Class Representative $450,000. Judge West says any appeal or any challenge affecting this Order will not disturb or affect the finality of the Judgment or the Settlement. Exclusive jurisdiction is retained over the parties and the Class Members for all matters relating to this Litigation, including the administration, interpretation, effectuation, or enforcement of the Settlement Agreement and this Order. The Escrow Agent and Settlement Administrator are authorized and ordered to distribute the amounts awarded to the persons entitled thereto in accordance with the timelines provided in the Settlement Agreement and in accordance with payment instructions provided by Class Counsel. If any Class Member appeals this Order, such Class Member is ordered, pursuant to the Settlement Agreement, to which no objection was made, to post a cash bond in an amount to be set by the Court sufficient to reimburse Class Counsel's appellate fees, Class Counsel's expenses, and the lost interest to the Settlement Class caused by the delay, at a rate not less than two percent per annum. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/4wmdkzej from Leagle.com. PETROQUEST ENERGY: Court Awards $6MM in Attys.' Fees in Lee Suit ---------------------------------------------------------------- Magistrate Judge Kimberly E. West of the U.S. District Court for the Eastern District of Oklahoma grants the Class Representative's Motion for Approval of Plaintiff's Attorneys' Fees, Litigation Expenses, Administration, Notice, and Distribution Costs, and Case Contribution Award in the lawsuit styled Philip Lee, on behalf of himself and all others similarly situated, Plaintiff v. PetroQuest Energy, L.L.C., et al., Defendants, Case No. 16-CV-516-KEW (E.D. Okla.). The Class Representative seeks entry of an order approving the requests for: 1) the Plaintiff's Attorneys' Fees in the amount of 40% of the Gross Settlement Fund; 2) Litigation Expenses to date in the amount of $164,651.71; 3) Administration, Notice, and Distribution Costs to date in the amount of $23,683.27; 4) a reserve of up to $159,816.73 for future Litigation Expenses and Administration, Notice, and Distribution Costs; and 5) a Case Contribution Award of one-and-a-half percent of the Gross Settlement Fund for service of the Class Representative in prosecuting this Litigation for the Settlement Class. The Notices stated that Class Counsel would seek attorneys' fees up to 40% of the Gross Settlement Fund ($6 million), to be paid from the Gross Settlement Fund prior to distribution to Settlement Class Members. The Notices also stated that Class Counsel would seek reimbursement of Litigation Expenses and Administration, Notice, and Distribution Costs in an amount of approximately $350,000. The Notices further stated that Class Representative would seek a Case Contribution Award of one-and-a-half percent of the Gross Settlement Fund ($225,000). Class Counsel provided the Court with evidence in support of the requests. This evidence was submitted before the objection deadline, and none of the evidence was validly objected to or otherwise refuted by any Settlement Class Member. Judge West awards the Class Counsel attorneys' fees of $6 million, to be paid from the Gross Settlement Fund. The Settlement has created a fund of $15 million in up-front cash for payment to the Settlement Class, as well as Future Benefits valued at $4.9 million. When valuing this total economic benefit, the fee request represents around 30.15% of the Gross Settlement Value. Settlement Class Members will benefit from the Settlement that occurred because of the substantial efforts of Class Representative and Class Counsel. With respect to the request for reimbursement of Litigation Expenses and Administration, Notice, and Distribution Costs, the Court awards: 1) Litigation Expenses to date in the amount of $164,651.71; 2) Administration, Notice, and Distribution Costs to date in the amount of $23,683.27; and 3) a reserve of up to $159,816.73 for future Litigation Expenses and Administration, Notice, and Distribution Costs, subject to Court approval upon motion of Class Representative. With respect to the request for a Case Contribution Award, the Court awards Class Representative $225,000. Judge West holds that any appeal or any challenge affecting this Order will not disturb or affect the finality of the Judgment or the Settlement. The Court retains exclusive jurisdiction over the parties and the Class Members for all matters relating to this Litigation, including the administration, interpretation, effectuation, or enforcement of the Settlement Agreement and this Order. The Escrow Agent and Settlement Administrator are authorized and ordered to distribute the amounts awarded herein to the persons entitled thereto in accordance with the timelines provided in the Settlement Agreement and in accordance with payment instructions provided by Class Counsel. If any Class Member appeals this Order, such Class Member is ordered, pursuant to the Settlement Agreement, to which no objection was made, to post a cash bond in an amount to be set by the Court sufficient to reimburse Class Counsel's appellate fees, Class Counsel's expenses, and the lost interest to the Settlement Class caused by the delay, at a rate not less than two percent per annum. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/4rve59yx from Leagle.com. PETROQUEST ENERGY: E.D. Oklahoma Issues Final Judgment in Hoog Suit ------------------------------------------------------------------- Magistrate Judge Kimberly E. West of the U.S. District Court for the Eastern District of Oklahoma issued a Final Judgment in the lawsuit entitled Kevin Hoog, on behalf of himself and all others similarly situated, Plaintiff v. PetroQuest Energy, L.L.C., et al., Defendants, Case No. 16-CV-463-KEW (E.D. Okla.). The case is a class action lawsuit brought by Plaintiff Kevin Hoog, on behalf of himself and as representative of a class of owners, against Trinity Operating (USG), LLC, and WSGP Gas Producing, LLC ("Defendants"), for the alleged underpayment of royalty on gas and gas constituents from Oklahoma oil-and-gas wells during the Claim Period. On Nov. 21, 2022, the Parties executed a Stipulation and Agreement of Settlement finalizing the terms of the Settlement. On Jan. 11, 2023, the Court preliminarily approved the Settlement and issued an Order Granting Preliminary Approval of Class Action Settlement, Certifying the Class for Settlement Purposes, Approving Form and Manner of Notice, and Setting Date for Final Fairness Hearing. The Court, for purposes of the Final Judgment, adopts all defined terms as set forth in the Settlement Agreement and incorporates them as if fully set forth here. After the Court issued the Preliminary Approval Order, due and adequate notice by means of the Notice and Summary Notice was given to the Settlement Class, notifying them of the Settlement and the upcoming Final Fairness Hearing. The Settlement Class, which was certified in the Court's Preliminary Approval Order, is defined as follows: "All non-excluded persons or entities who are or were royalty owners in the Class Wells located in Oklahoma where Defendants (including their affiliated predecessors and affiliated successors) or Defendants' designees, including PetroQuest Energy, L.L.C., are or were the operator (or a working interest owner who marketed its share of gas and directly paid royalties to the royalty owners) during the Claim Period, including all such persons or entities whose gas was sold to NextEra Energy Marketing, LLC (or its affiliated predecessors and affiliated successors). The Class claims relate to royalty payments for gas and its constituents (such as residue gas, natural gas liquids, helium, nitrogen, or drip condensate)." For substantially the same reasons as set out in the Court's Preliminary Approval Order, the Court finds that the Settlement Class should be and is certified for the purposes of entering judgment pursuant to the Settlement Agreement. Specifically, the Court finds that all requirements of Rule 23(a) and Rule 23(b)(3) have been satisfied for settlement purposes. Because this case has been settled at this stage of the proceedings, the Court does not reach, and makes no ruling either way, as to the issue of whether the Settlement Class could have been certified in this case on a contested basis. The Court finds that the persons and entities identified in the attached Exhibit 1 have submitted timely and valid Requests for Exclusion and are excluded from the Settlement Class, will not participate in or be bound by the Settlement, or any part thereof, as set forth in the Settlement Agreement, and will not be bound by or subject to the releases provided for in this Judgment and the Settlement Agreement. These persons and entities are: Hughes Fuel Company LLC; Sans Bois Oil and Gas LP; Foreland Energy LP; Michael Scott Witcher; Citation 2004 Investment LP; MMGK East Oklahoma 2020 LLC; Merit Energy Company LLC; and Mary Galbreath Shurtleff. The Court further finds that due and proper notice, by means of the Notices, was given to the Settlement Class in conformity with the Settlement Agreement and Preliminary Approval Order. Therefore, the Court approves the form, manner, and content of the Notices used by the Parties. The Court further finds that all Class Members have been afforded a reasonable opportunity to request exclusion from the Settlement Class or object to the Settlement. Pursuant to and in accordance with Federal Rule of Civil Procedure 23, the Settlement, including the consideration paid by Defendants, the covenants not to sue, the releases, and the dismissal with prejudice of the Released Claims against the Released Parties as set forth in the Settlement Agreement, is finally approved as fair, reasonable, and adequate and in the best interests of the Settlement Class. The Settlement Agreement was entered into between the Parties at arm's-length and in good faith after substantial negotiations free of collusion. By agreeing to settle the Litigation, the Defendants do not admit, and instead specifically deny, that the Litigation could have otherwise been properly maintained as a contested class action, and specifically deny any and all wrongdoing and liability to the Settlement Class, Class Representative, and Class Counsel. The Court finds that on Dec. 16, 2022, the Defendants caused notice of the Settlement to be served on the appropriate state official for each state in which a Class Member resides, and the appropriate federal official, as required by and in conformance with the form and content requirements of 28 U.S.C. Section 1715. The Litigation and Released Claims are dismissed with prejudice as to the Released Parties. The Court also approves the efforts and activities of the Settlement Administrator and the Escrow Agent in assisting with certain aspects of the administration of the Settlement. Judge West says nothing in this Judgment bar any action or claim by Class Representative or the Defendants to enforce or effectuate the terms of the Settlement Agreement or this Judgment. The Settlement Administrator is directed to refund to the Defendants the gross amounts attributable to Class Members under the Initial Plan of Allocation, who timely and properly submitted a Request for Exclusion or who were otherwise excluded from the Settlement Class by order of the Court in accordance with the timing, terms, and process detailed in the Settlement Agreement. A full-text copy of the Court's Judgment dated April 17, 2023, is available at https://tinyurl.com/529h4tcs from Leagle.com. Reagan E. Bradford -- reagan@bradwil.com -- Ryan K. Wilson -- ryan@bradwil.com -- BRADFORD & WILSON PLLC, in Oklahoma City, Oklahoma; Rex A. Sharp, Ryan C. Hudson, Scott B. Goodger, Sharp Law, LLP, in Prairie Village, Kansas, CLASS COUNSEL. HUNTON ANDREWS KURTH LLP, Michael D. Morfey --- michaelmorfey@HuntonAK.com -- in Houston, Texas, and CROWE & DUNLEVY, John J. Griffin, Jr. -- john.griffin@crowedunlevy.com -- L. Mark Walker -- mark.walker@crowedunlevy.com -- in Oklahoma City, Oklahoma, COUNSEL FOR THE DEFENDANTS. PETROQUEST ENERGY: E.D. Oklahoma Issues Final Judgment in Lee Suit ------------------------------------------------------------------ Magistrate Judge Kimberly E. West of the U.S. District Court for the Eastern District of Oklahoma issued a final judgment in the lawsuit styled Philip Lee, on behalf of himself and all others similarly situated, Plaintiff v. PetroQuest Energy, L.L.C., et al., Defendants, Case No. 16-CV-516-KEW (E.D. Okla.). The lawsuit is a class action lawsuit brought by Plaintiff Philip Lee, on behalf of himself and as representative of a class of owners, against Defendants Trinity Operating (USG), LLC and WSGP Gas Producing, LLC, for the alleged failure to pay statutory interest on payments made outside the time periods set forth in the Production Revenue Standards Act, 52 Okla. St. Section 570.1, et seq. (the "PRSA") for oil-and-gas production proceeds from oil and gas wells in Oklahoma. On Nov. 21, 2022, the Parties executed a Stipulation and Agreement of Settlement finalizing the terms of the Settlement. On Jan. 11, 2023, the Court preliminarily approved the Settlement and issued an Order Granting Preliminary Approval of Class Action Settlement, Certifying the Class for Settlement Purposes, Approving Form and Manner of Notice, and Setting Date for Final Fairness Hearing. The Court, for purposes of this Final Judgment, adopts all defined terms as set forth in the Settlement Agreement and incorporates them as if fully set forth here. After the Court issued the Preliminary Approval Order, due and adequate notice by means of the Notice and Summary Notice was given to the Settlement Class, notifying them of the Settlement and the upcoming Final Fairness Hearing. On April 17, 2023, in accordance with the Preliminary Approval Order and the Notice, the Court conducted a Final Fairness Hearing. The Settlement Class, which was certified in the Court's Preliminary Approval Order, is defined as follows: All non-excluded persons or entities who: (1) received Untimely Payments from Defendants (or Defendants' designees, including PetroQuest Energy, L.L.C. as contract operator) for oil-and-gas proceeds from Oklahoma wells during the Claim Period, and (2) who have not already been paid in full for statutory interest on the Untimely Payments. An Untimely Payment for purposes of this class definition means payment of proceeds from the sale of oil and gas production from an oil-and-gas well, including unclaimed property payments, after the statutory periods identified in Okla. Stat. tit 52, Section 570.10(B)(1), (i.e., commencing not later than six (6) months after the date of first sale, and thereafter not later than the last day of the second succeeding month after the end of the month within which such production is sold). Untimely Payments do not include: (a) payments of proceeds to an owner under Okla. Stat. tit 52, Section 570.10(B)(3) (minimum pay); (b) prior period adjustments; or (c) pass-through payments. For substantially the same reasons as set out in the Court's Preliminary Approval Order, the Court finds that the Settlement Class should be and is certified for the purposes of entering judgment pursuant to the Settlement Agreement. Specifically, the Court finds that all requirements of Rule 23(a) and Rule 23(b)(3) have been satisfied for settlement purposes. Because this case has been settled at this stage of the proceedings, the Court does not reach, and makes no ruling either way, as to the issue of whether the Settlement Class could have been certified in this case on a contested basis. The Court finds that the persons and entities identified in the attached Exhibit 1 have submitted timely and valid Requests for Exclusion and are excluded from the foregoing Settlement Class, will not participate in or be bound by the Settlement, or any part thereof, as set forth in the Settlement Agreement, and will not be bound by or subject to the releases provided for in this Judgment and the Settlement Agreement. Those persons and entities are Kaiser Francis Oil Company; Merit Energy Company LLC; MMGK East Oklahoma 2020 LLC; Dan C. Schooley; Citation 2004 Investment LP; George B. Kaiser; Michael Scott Witcher; and Imoe Trust Darrell L. and Maure. Pursuant to and in accordance with Federal Rule of Civil Procedure 23, the Settlement, including the consideration paid by the Defendants, the covenants not to sue, the releases, and the dismissal with prejudice of the Released Claims against the Released Parties as set forth in the Settlement Agreement, is finally approved as fair, reasonable, and adequate and in the best interests of the Settlement Class. By agreeing to settle the Litigation, the Defendants do not admit, and instead specifically deny, that the Litigation could have otherwise been properly maintained as a contested class action, and specifically deny any and all wrongdoing and liability to the Settlement Class, Class Representative, and Class Counsel. The Litigation and Released Claims are dismissed with prejudice as to the Released Parties. All Class Members, who have not validly and timely submitted a Request for Exclusion to the Settlement Administrator as directed in the Notice of Settlement and Preliminary Approval Order (a) are deemed to have finally, fully, and forever conclusively released, relinquished, and discharged all of the Released Claims against the Released Parties and (b) are barred and permanently enjoined from, directly or indirectly, on any Class Member's behalf or through others, suing, instigating, instituting, or asserting against the Released Parties any claims or actions on or concerning the Released Claims. Neither Party will bear the other's Party's litigation costs, costs of court, or attorney's fees. The Court also approves the efforts and activities of the Settlement Administrator and the Escrow Agent in assisting with certain aspects of the administration of the Settlement, and directs them to continue to assist Class Representative and Class Counsel in completing the administration and distribution of the Settlement in accordance with the Settlement Agreement, this Judgment, any Plan of Allocation approved by the Court, and the Court's other orders. Nothing in this Judgment will bar any action or claim by Class Representative or Defendants to enforce or effectuate the terms of the Settlement Agreement or this Judgment. The Settlement Administrator is directed to refund to the Defendants the gross amounts attributable to Class Members under the Initial Plan of Allocation, who timely and properly submitted a Request for Exclusion or who were otherwise excluded from the Settlement Class by order of the Court in accordance with the timing, terms, and process detailed in the Settlement Agreement. As separately set forth in detail in the Court's Initial Plan of Allocation Order, the Allocation Methodology and the Initial Plan of Allocation are approved as fair, reasonable and adequate, and Class Counsel and the Settlement Administrator are directed to administer the Settlement in accordance with the Plan of Allocation Order(s) entered by the Court. Neither the Defendants nor their Counsel will have any liability or responsibility to the Plaintiff, the Plaintiff's Counsel, or the Settlement Class with respect to the Gross Settlement Fund or the PetroQuest Settlement Funds or their administration, including but not limiting to any distributions made by the Escrow Agent or Settlement Administrator. Any Class Member who receives a Distribution Check that he/she/it is not legally entitled to receive is hereby ordered to either (a) pay the appropriate portion(s) of the Distribution Check to the person(s) legally entitled to receive such portion(s) or (b) return the Distribution Check uncashed to the Settlement Administrator. A full-text copy of the Court's Judgment dated April 17, 2023, is available at https://tinyurl.com/3tc98xbu from Leagle.com. Reagan E. Bradford -- reagan@bradwil.com -- Ryan K. Wilson -- ryan@bradwil.com -- BRADFORD & WILSON PLLC, in Oklahoma City, Oklahoma, Class Counsel. HUNTON ANDREWS KURTH LLP, Michael D. Morfey --- michaelmorfey@HuntonAK.com -- in Houston, Texas, and CROWE & DUNLEVY, John J. Griffin, Jr. -- john.griffin@crowedunlevy.com -- L. Mark Walker -- mark.walker@crowedunlevy.com -- in Oklahoma City, Oklahoma, COUNSEL FOR THE DEFENDANTS. RADIUS GLOBAL: M&A Class Action Firm Continues to Probe Merger -------------------------------------------------------------- Juan Monteverde, founder and managing partner of the class action firm Monteverde & Associates PC (the "M&A Class Action Firm"), a national securities firm rated Top 50 in the 2018-2021 ISS Securities Class Action Services Report and headquartered at the Empire State Building in New York City, is investigating: Radius Global Infrastructure, Inc. (NASDAQ: RADI), relating to its proposed sale to EQT Active Core Infrastructure and Public Sector Pension Investment Board. Under the terms of the agreement, RADI shareholders are expected to receive $15.00 in cash per share they own. Click here for more information: https://www.monteverdelaw.com/case/radius-global-infrastructure-inc. It is free and there is no cost or obligation to you. We are a national class action securities and consumer litigation law firm that has recovered millions of dollars for shareholders and is committed to protecting investors and consumers from corporate wrongdoing. Monteverde & Associates lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the firm, has been recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013 and 2017-2019, an award given to less than 2.5% of attorneys in a particular field. He has also been selected by Martindale-Hubbell as a 2017-2020 Top Rated Lawyer. Our firm's recent successes include changing the law in a significant victory that lowered the standard of liability under Section 14(e) of the Exchange Act in the Ninth Circuit. Thereafter, our firm successfully preserved this victory by obtaining dismissal of a writ of certiorari as improvidently granted at the United States Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019). Also, over the years the firm has recovered or secured over a dozen cash common funds for shareholders in mergers & acquisitions class action cases.[GN] SAGINAW COUNTY, MI: 6th Cir. Vacates Certified Class in Fox Suit ---------------------------------------------------------------- In the case, THOMAS A. FOX, and all those similarly situated, Plaintiff-Appellee v. SAGINAW COUNTY, MICHIGAN, et al. (22-1265); ALCONA COUNTY, MICHIGAN, et al. (22-1272), Defendants-Appellants, Case Nos. 22-1265, 22-1272 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit vacates the certified class and remands for proceedings consistent with its Opinion. In June 2019, as this state and federal litigation progressed, Fox brought this putative class action. He failed to pay taxes on property that he owned in Gratiot County. By February 2017, the amount that Fox owed had reached $3,091.23. That month, the Gratiot County treasurer took Fox's property using the Act's processes. Months later, the treasurer sold it at an auction for $25,500. Yet Fox claims that his property had a fair market value of at least $50,400. He thus suggests that his equitable title in the property reached at least $47,308.77 -- the difference between his tax delinquency and the fair market value. The county treasurer did not pay him that surplus. Nor did the treasurer even pay him $22,408.77 -- the difference between his tax delinquency and the sale price at the auction. Although Fox claimed that only Gratiot County and its treasurer had harmed him, he named 26 other counties and their treasurers as Defendants. He alleged that the Counties' common practice of keeping all surplus equity in the properties of delinquent taxpayers amounted to an uncompensated taking in violation of the U.S. and Michigan Constitutions. He also alleged that this practice qualified as an excessive fine, that it violated procedural and substantive due process, and that the Counties had been unjustly enriched. In the appeal, the Sixth Circuit must address how Article III's "standing" requirements apply to class-action lawsuits. It notes that an individual litigation, a plaintiff lacks standing to sue a defendant if the plaintiff's injuries are not "fairly traceable" to that defendant. Yet some courts have relied on the "juridical link" doctrine to jettison this standing element in the class setting. According to these courts, that doctrine allows a named plaintiff in a putative class action to sue defendants who have not injured the plaintiff if these defendants have injured absent class members. The case shows how the doctrine is supposed to work. When a Michigan county forecloses on a property because its owner has failed to pay property taxes, Michigan law permits the county to obtain ownership of the property outright -- even if its value exceeds the taxes owed. That fate befell Plaintiff Fox. After he racked up some $3,000 in unpaid taxes, Gratiot County took his land. He valued the property at over $50,000, and the county treasurer sold it for over $25,000. But Fox did not see any of the surplus. The Sixth Circuit has held that similar conduct amounted to an unconstitutional "taking." Fox thus filed a class action against Gratiot County on behalf of himself and similar landowners. But Fox did not stop there. He also sued 26 other counties that did not injure him, arguing that they engaged in the same conduct against other delinquent taxpayers. The district court certified a class, holding that Fox had standing to sue these other counties under the juridical link doctrine. The Counties sought the Sixth Circuit's on two grounds. They appealed the order denying them sovereign immunity under the collateral-order doctrine. And they asked for permission to appeal the class-certification order under Federal Rule of Civil Procedure 23(f). The Sixth Circuit affirmed the denial of sovereign immunity but granted the Counties permission to appeal the class-certification order under Rule 23(f). The Counties now raise two arguments in this Rule 23(f) appeal. They assert that Fox lacks standing to sue most of them. And they argue that he did not satisfy Rule 23's requirements. The Sixth Circuit cannot agree with the district court. It opines that this oddly named doctrine conflicts with the Supreme Court's precedent holding that a class-action request "adds nothing to the question of standing." And Fox lacks standing to sue the 26 other counties under normal rules. Nor has he justified the doctrine with historical evidence. Although the English Court of Chancery permitted parties to file class-like "bills of peace," the Sixth Circuit holds that Fox cites no case in which a plaintiff pursued litigation on behalf of absent parties against a defendant who had not harmed the Plaintiff. The juridical link doctrine instead originates from dicta in a 1973 case that expressed a desire for the "expeditious" resolution of disputes. But expediency concerns cannot supplant Article III's separation-of-powers protections. For these reasons, the Sixth Circuit vacates the certified class and remands for proceedings consistent with its Opinion. A full-text copy of the Court's April 28, 2023 Opinion is available at https://rb.gy/a3yqi from Leagle.com. ARGUED: Douglas J. Curlew, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for Appellants in 22-1265. Matthew T. Nelson -- mnelson@wnj.com -- WARNER NORCROSS + JUDD LLP, Grand Rapids, Michigan, for Appellants in 22-1272. E. Powell Miller -- epm@millerlawpc.com -- THE MILLER LAW FIRM, P.C., Rochester, Michigan, for the Appellee. ON BRIEF: Douglas J. Curlew, CUMMINGS, McCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for the Appellants in 22-1265. Matthew T. Nelson, WARNER NORCROSS + JUDD LLP, Grand Rapids, Michigan, Theodore W. Seitz -- tseitz@dykema.com -- Kyle M. Asher -- kasher@dykema.com -- DYKEMA GOSSETT PLLC, Lansing, Michigan, Gregory M. Meihn -- gmeihn@foleymansfield.com -- Matthew Wise -- mwise@foleymansfield.com -- GORDON REES SCULLY MANUKHANI, Bloomfield Hills, Michigan, Charles A. Lawler, CLARK HILL, Lansing, Michigan, Frank Krycia, MACOMB COUNTY CORPORATION COUNSEL, Mt. Clemens, Michigan, for the Appellants in 22-1272. E. Powell Miller, Sharon S. Almonrode -- ssa@millerlawpc.com -- Christopher D. Kaye -- cdk@millerlawpc.com -- THE MILLER LAW FIRM, P.C., Rochester, Michigan, Philip L. Ellison -- pellison@olcplc.com -- OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, Matthew E. Gronda -- matthewgronda@gmail.com -- St. Charles, Michigan, for the Appellee. SAGINAW COUNTY, MI: Squire Patton Attorney Discusses Court Ruling ----------------------------------------------------------------- Colter Paulson, Esq., of Squire Patton Boggs (US) LLP, in an article for The National Law Review, disclosed that in Fox v. Saginaw County (No. 22-1265/1272), the Sixth Circuit rejected a class action where multiple defendants have identical policies, but the named plaintiff was only injured by one defendant. Until recently, Michigan law permitted counties to obtain complete ownership of a property during a tax foreclosure, even if the value of the property far exceeds the taxes owed. So enterprising attorneys filed a class action against twenty-seven Michigan counties under the auspices of the "juridical link" doctrine, but only presented one named plaintiff—who had only been injured by one county. Don't feel bad if you've never heard of this doctrine. Proposed (but not applied) by the Ninth Circuit in the early 1970s, it allows class representative may sue multiple defendants, regardless of any link to the named plaintiff, if the defendants' conduct was "linked" to the same contract or state law. Its high point was Payton v. County of Kane, 308 F.3d 673, 678–80 (7th Cir. 2002), which allowed plaintiffs injured by two counties to sue nineteen counties because each had the same practices. The key to the Seventh Circuit's decision was to decide class certification first, and then look at standing—because certification will provide class members that have been injured by the other defendants. But the doctrine was criticized more than applied, and no other circuit courts have adopted it. The Second Circuit explained the chief problem with the doctrine, asking "why a plaintiff's injury resulting from the conduct of one defendant should have any bearing on her Article III standing to sue other defendants, even if they engaged in similar conduct that injured other parties." Mahon v. Ticor Title Ins., 683 F.3d 59, 65 (2d Cir. 2012). Writing for a unanimous panel, Judge Murphy's opinion tries to put the doctrine down for good. It explains that Article III's "case or controversy" clause requires class representatives must allege their own case against a defendant before they can seek to represent a class against that defendant. It also notes that the Supreme Court always applies standing at the outset of litigation, and not after class certification. The opinion also has strong words for the plaintiffs' argument that practicality and efficiency should trump the constitution in this instance. Interestingly, it also takes an originalist look to the doctrine. Analyzing the "lengthy pedigree" of the class action "in English equity," the opinion concludes that representative actions from before the Founding did not allow suits against defendants that did not injure the plaintiff. The panel thus decides that the "juridical link" doctrine is unconstitutional. Finally, the opinion offers "a few observations to help guide any renewed certification proceedings," casting some doubt on the plaintiff's ability to meet Rule 23's requirements at all. Article III traditionalists might say that a panel offering detailed advice about an issue that is not necessary to the decision seems like an advisory opinion. But, as a practical matter, that kind of advice will often narrow the issues and save may pages of briefing or large discovery costs. Unlike the juridical link doctrine, dicta has a long pedigree in our tradition. [GN] SANTANDER CONSUMER: Lyles Suit Remanded to Baltimore Circuit Court ------------------------------------------------------------------ Judge Catherine C. Blake of the U.S. District Court for the District of Maryland grants the motion to remand the lawsuit titled JABARI MORESE LYLES v. SANTANDER CONSUMER USA INC., Case No. CCB-21-0566 (D. Md.) to the Maryland Circuit Court for Baltimore City. In this class action lawsuit, Jabari Lyles, on behalf of himself and others similarly situated, alleges that Santander Bank charged unauthorized convenience fees on automobile loan payments in violation of Maryland's Credit Grantor Closed End Credit Provisions. On Jan. 11, 2021, the Maryland Circuit Court for Baltimore City docketed Lyles' class action complaint alleging violations of Maryland's Credit Grantor Closed End Credit Provisions, commonly referred to as "CLEC," against Santander Consumer USA. On March 4, 2021, Santander filed a notice of removal to federal court under 28 U.S.C. Section 1441(a) and the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). The next day, on March 5, 2021, the parties filed the two currently pending motions. Lyles moved to remand the case to state court; Santander moved to compel arbitration. While the parties were briefing those two motions, Lyles moved to certify a question to the Supreme Court of Maryland, then referred to as the Maryland Court of Appeals, related to the application of CLEC's treble damages provision. Lyles asserted that the outcome of the question controlled whether the amount in controversy requirement for removing this case to federal court under CAFA had been satisfied. Santander did not oppose the motion. On May 3, 2021, the Court granted Lyles' motion to certify a question to the Supreme Court of Maryland. Two weeks later, on May 17, 2021, the Court certified the following question: If a credit grantor is found to have knowingly violated Credit Grantor Closed End Credit Provisions (CLEC), Maryland Code Annotated, Commercial Law SectionSection 12-1001, et seq., does CLEC Section 12-1018(b) require the credit grantor to return three times: (1) all amounts collected by the credit grantor in excess of the principal amount financed; (2) only those amounts collected that the borrower contends violate CLEC (in this case, the convenience fees); or (3) some other amount. The Court explained that the motion for remand was "wholly dependent on the answer to the question presented for certification." The Maryland Supreme Court answered the question on May 13, 2022. It concluded that CLEC "requires a credit grantor to return three times the amount of interest, fees, and charges collected that the borrower contends violate CLEC (in this case, the convenience fees)," Lyles v. Santander Consumer USA Inc., 275 A.3d 390, 394 (2022). After the Maryland Supreme Court issued its answer to the certified question, Lyles moved to reopen this case. Santander filed a brief agreeing that the case should be reopened, but reiterating its opposition to the remand motion notwithstanding the Maryland Supreme Court's agreement with Lyles on the certified question. On June 15, 2022, the Court reopened the case. It, then, ordered supplemental briefing in light of the Maryland Supreme Court's decision. On July 13, 2022, Santander filed its supplemental response to the remand motion. Lyles filed his supplemental reply two weeks later, completing briefing of the motion. Under the Class Action Fairness Act ("CAFA"), federal district courts have jurisdiction over putative class actions with (1) more than 100 class members, (2) an aggregate amount in controversy exceeding $5 million, and (3) minimal diversity between the parties. At "the time the notice of removal" in this case was filed, the amount in controversy was approximately $3,579,265.60--well short of the CAFA threshold. In his complaint, Lyles alleged three sets of damages: (1) $6,372.67 charged in excess of the principal owed; (2) $15,603.54 in outstanding balance; and (3) $131.40 in unauthorized convenience fees. As the Supreme Court of Maryland explained in response to the certified question, CLEC's treble damages provision "requires a credit grantor to return three times the amount of interest, fees, and charges collected that the borrower contends violate CLEC (in this case, the convenience fees)," Lyles v. Santander Consumer USA Inc., 275 A.3d 390, 394 (2022). Judge Blake explains that applying that multiplier to Lyles' third category of damages, unauthorized convenience fees, raises the amount to $394.20. All told, then, the total personal damages Lyles appears to put at issue is $22,370.41. Assuming, as both parties did at the time of removal, that the putative class size is 160 members and that Lyles' damage potential is a suitable proxy for other class members', the total amount at issue is $3,579,265.60.2 This amount in controversy falls short of CAFA's $5 million threshold, so the Court must remand the case. Santander offers three rejoinders to this assessment of the amount in controversy. Specifically, it argues that (1) the class size and average potential damages per-plaintiff have increased since it filed its notice of removal; (2) the amount in controversy must account for attorneys' fees; and (3) the amount in controversy must include prejudgment interest. All told, Judge Blake opines that the maximum amount in controversy the Court can discern from the parties' evidence in support of the notice of removal and motion to remand is $3,579,265.60. That amount is below CAFA's $5 million threshold, so the Court will grant the motion to remand the case. With the action remanded to state court, the motion to compel arbitration will be denied as moot. For the reasons stated, Judge Blake rules that the motion to remand will be granted and the motion to compel arbitration will be denied as moot. A separate order follows. A full-text copy of the Court's Memorandum dated April 17, 2023, is available at https://tinyurl.com/3c5bn7wv from Leagle.com. SASOL LIMITED: Distribution of Moshell Settlement Funds Ordered --------------------------------------------------------------- In the case, CHAD LINDSEY MOSHELL, individually and on behalf of all others similarly situated, Plaintiff v. SASOL LIMITED, DAVID EDWARD CONSTABLE, BONGANI NQWABABA, STEPHEN CORNELL, PAUL VICTOR, and STEPHAN SCHOEMAN, Defendants, Case No. 1:20-CV-01008-JP (S.D.N.Y.), Judge John P. Cronan of the U.S. District Court for the Southern District of New York enters an order for the distribution of the class action settlement funds. The Net Settlement Fund will, at the direction of the Lead Counsel, be distributed according to the five purchase time frames described in the Plan of Allocation and paragraph 7(a) of the Declaration of Margery Craig Concerning the Results of the Claims Administration Process. Specifically, total recognized losses for validly submitted claims are $105,678,701.16 and will be distributed as follows: (i) $25,778,618 for purchases that will receive 4% of the Net Settlement Fund for the period March 10, 2015, to Sept. 6, 2015, inclusive; (ii) $30,995,208.41 for purchases that will receive 23% of the Net Settlement Fund for the period Sept. 7, 2015, to June 5, 2016, inclusive; (iii) $8,399,450.51 for purchases that will receive 25% of the Net Settlement Fund for the period June 6, 2016, to Feb. 26, 2017, inclusive; (iv) $37,291,446.83 for purchases that will receive 44% of the Net Settlement Fund for the period Feb. 27, 2017, to Aug. 15, 2019, inclusive; and (v) $3,213,977.41 that will receive 4% of the Net Settlement Fund for the period Aug. 16, 2019, to Jan. 13, 2020, inclusive. Any person asserting any rejected or subsequently filed claims, including claims filed after Aug. 17, 2022, and any responses to deficiency and/or rejection notices received after Nov. 18, 2022, are finally and forever barred from the date of the Order. Judge Cronan finds that the administration of the Settlement and proposed distribution of the Net Settlement Fund complies with the terms of the Stipulation and the Plan of Allocation. All persons involved in the review, verification, calculation, tabulation, or any other aspect of the processing of the claims submitted, or otherwise involved in the administration or taxation of the Settlement Fund, Net Settlement Fund or Escrow Accounts are released and discharged from any and all claims arising out of such involvement, and all Settlement Class Members are barred from making any further claims against the Settlement Fund or the Net Settlement Fund or the Releasees beyond the amount allocated to them pursuant to the Order. The checks for distribution to Authorized Claimants will bear the notation "CASH PROMPTLY, VOID AND SUBJECT TO RE-DISTRIBUTION 180 DAYS AFTER DISTRIBUTION DATE." The Lead Counsel and the Claims Administrator, Strategic Claims Services, are authorized to locate and/or contact any Authorized Claimant who has not cashed his, her or its check within said time. The Court retains jurisdiction over any further application or matter which may arise in connection with the action. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/6actx from Leagle.com. SILVERLAKE GROUP: Securities Class Suit Dismissed With Prejudice ---------------------------------------------------------------- In the case, IN RE SILVERLAKE GROUP, L.L.C SECURITIES LITIGATION. This document applies to all actions, Case No. 20-cv-02341-JSW (N.D. Cal.), Judge Jeffrey S. White of the U.S. District Court for the Northern District of California grants the motions to dismiss filed by: (1) BC Partners LLP, Serafina S.A., BC European Capital VIII, BC European Capital-Intelsat Co-Investment, BC European Capital-Intelsat Co-Investment 1; CI Management II Limited, LMBO Europe SAS, Raymond Svider, and Justin Bateman (collectively "BC Partners"); (2) Silver Lake Group, L.L.C., SLP III Investment Holdings S.a.r.l., Silver Lake Partners III, L.P., Silver Lake Technology Investors III, L.P., Silver Lake Technology Associates III, L.P., and STLA III (GP), L.L.C. ("Silver Lake"); and (3) David McGlade. In this securities class action, the Lead Plaintiff (Walleye Opportunities Master Fund Ltd. and Walleye Manager Opportunities LLC) alleges the Defendants traded stock of Intelsat S.A. while in possession of material, non-public information, in violation of Section 10(b) of the Securities Exchange Act (15 U.S.C. section 78j(b)), Rule 15(b) thereunder (17 C.F.R. section 240.10b-5), and section 20A of the Exchange Act (15 U.S.C. section 78t-1). The Court recounted the facts underlying the dispute in its Order granting, in part, and denying, in part, the Defendants' motion to dismiss the first amended complaint ("FAC"). The Lead Plaintiff amended to include allegations from a third confidential witness ("CW-3") about relationships between Intelsat's leadership team and their communication style, testimony and information from Intelsat's bankruptcy proceedings about the meeting with the FCC on Nov. 5, 2019, and information about an Intelsat board meeting held on Nov. 14, 2019. In brief, the Lead Plaintiff alleges that the Defendants traded on material non-public information in a block sale in which McGlade, BC Partners, and Silver Lake sold $246 million of Intelsat stock through a private block sale conducted by Morgan Stanley. On Nov. 18, 2019, the FCC announced it would hold a public, rather than a private, auction for C-Band licenses. Intelsat's stock price declined by about 40%, 70% lower than it closed on Nov. 5, 2019. On Feb. 20, 2020, the FCC voted 3-2 to reject the C-Band Alliance's proposal and to adopt a public auction. On May 14, 2020, Intelsat filed for bankruptcy. Now before the Court for consideration are motions to dismiss. Judge White finds that the Lead Plaintiff does not include any new allegations about the Silverlake Defendants in the SAC and does not engage with their arguments on that point. He says the majority of the allegations regarding the BC Partners Defendants remain unchanged, including the fact that Bateman and Svider sat on Intelsat's Board of Directors. He concludes that the amendments do not add to the existing allegations and are insufficient to state a claim against the BC Partner Defendants. Accordingly, he grants the Defendants' motion. The Lead Plaintiff also relies on CW-3 to support show McGlade must have received information about the November 5 meeting and possessed that information when he participated in the block sale. As with CW-1 and CW-2, CW-3 does not include any information about specific communications at the relevant time period. CW-3 simply surmises that Intelsat management must have updated McGlade. The Lead Plaintiff also refers to bankruptcy filings regarding real time communications but again fails to reference any communications between Intelsat management and McGlade immediately following the November 5 meeting. Accordingly, Judge White concludes the amendments do not add to the existing allegations and remain insufficient to state a claim against McGlade. For these reasons, Judge White grants the Defendants' motions to dismiss. The SAC is the third iteration of the Lead Plaintiff's complaint, and Judge White concludes that any further amendments would be futile. Accordingly, he dismisses the Lead Plaintiff's claims with prejudice. He will enter a separate judgment, and the Clerk will close this file. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/doyvc from Leagle.com. SPIRIT AEROSYSTEMS: Gainey McKenna Discloses Securities Class Suit ------------------------------------------------------------------ Gainey McKenna & Egleston announces that a securities class action lawsuit has been filed in the United States District Court for the Southern District of New York on behalf of all persons or entities who purchased the securities of Spirit AeroSystems Holdings, Inc. ("Spirit" or the "Company") (NYSE: SPR) between April 8, 2020 and April 13, 2023, both dates inclusive (the "Class Period"). The Complaint alleges that Defendants failed to disclose to investors: (1) that Spirit lacked effective production quality controls; (2) that, as a result, Spirit incorrectly installed fittings designed to join the aft fuselage to the vertical tail for some Boeing 737 Max airplanes that Spirit sent to Boeing; (3) that, as a result, Spirit would have to develop an inspection and repair procedure for the affected fuselages; (4) that the foregoing would negatively impact Spirit's financial results; and (5) that as a result of the foregoing, Defendant's positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. On April 13, 2023, Boeing announced that it would halt deliveries of its 737 MAX aircraft due to a supplier quality problem. According to an article by Barron's, Boeing issued a statement stating that "the issue will likely affect a significant number of undelivered 737 MAX airplanes." The same day, Bloomberg identified Spirit as the supplier of the faulty part. Several media outlets reported the details of the quality problem. An article by Reuters reported that "[t]he problem involves the installation of two fittings that join the aft fuselage made by Spirit to the vertical tail, which were not attached correctly to the structure of the fuselage before it was sent to Boeing." Reuters also reported that "Spirit said it is working to develop an inspection and repair for the affected fuselages" and that "the problem is believed to date back to 2019." On this news, Spirit's stock price fell $7.38, or 20.7%, to close at $28.22 per share on April 14, 2023. Investors who purchased or otherwise acquired shares of Spirit should contact the Firm prior to the July 3, 2023 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com. Please visit our website at http://www.gme-law.comfor more information about the firm. [GN] SQUISHABLE COM: Fails to Prevent Data Breach, Borovoy Alleges ------------------------------------------------------------- CHRISTINE BOROVOY, individually and on behalf of all others similarly situated, Plaintiff v. SQUISHABLE.COM, INC., Defendant, Case No. 1:23-cv-03660 (S.D.N.Y., May 1, 2023) is a class action for damages with respect to the Defendant's failure to exercise reasonable care in securing sensitive personal information including without limitation, unencrypted and unredacted name, address, email address, and payment card information, including financial account number or credit/debit card number (in combination with security code, access code, password or PIN for the account) (collectively, "personal identifiable information" or "PII"). According to the complaint, on March 2, 2023, Squishable notified the Plaintiff and Class Members about a widespread data breach (the "Data Breach") involving their sensitive PII ("Notice"). Plaintiff's and Class Members' PII was likely accessed, disclosed, exfiltrated, stolen, disseminated, and used by a criminal third party. As a result of the Data Breach, Plaintiff and the Class Members are at an imminent risk of identity theft. Allegedly, Squishable had the resources necessary to prevent the Data Breach but neglected to adequately invest in security measures, despite its obligation to protect such information. The Plaintiff seeks to remedy these harms, and to prevent the future occurrence of an additional data breach, on behalf of herself and all similarly situated persons whose PII was compromised as a result of the Data Breach. SQUISHABLE.COM, INC. is a New York, New York based consumer goods retailer. [BN] The Plaintiff is represented by: Mason A. Barney, Esq. SIRI & GLIMSTAD, LLP 745 Fifth Ave Suite 500 New York, NY 10151 Telephone: (212) 532-1091 Email: mbarney@sirillp.com - and - Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Fernando Valle, Jr., Esq. BRADLEY/GROMBACHER LLP 31365 Oak Crest Dr., Suite 240 Westlake Village, CA 91361 Telephone: (805) 270-7100 Email: mbradley@bradleygrombacher.com kgrombacher@bradleygrombacher.com fvalle@bradleygrombacher.com STANFORD INTERNET: Faces Suit Over Election Integrity Partnership ----------------------------------------------------------------- On May 2, 2023, America First Legal (AFL) filed a federal class action lawsuit against key persons and entities involved in the so-called "Election Integrity Partnership" and the "Virality Project," on behalf of Jill Hines, the co-Director of Health Freedom Louisiana, and Jim Hoft, the founder the popular news website The Gateway Pundit. Defendants include the Stanford Internet Observatory and its Director and Research Manager, Alex Stamos and Renée DiResta, Dr. Kate Starbird of the University of Washington, Graphika, and the Atlantic Research Council's Digital Forensic Lab. This historic lawsuit alleges that these parties conspired with the federal government to conduct a mass surveillance and censorship operation targeting the political speech of millions of Americans on social media platforms like Facebook, YouTube, and Twitter (under its prior ownership). This operation was specifically designed to target conservative political speech on questions of great public interest like election integrity, COVID-19 vaccines, and vaccine mandates. The scope of the surveillance and censorship cannot be overstated. The Defendants admitted that during 2020, they surveilled a staggering 859 million posts on Twitter alone and that they tracked for possible censorship almost 22 million Tweets. Again, during seven months in 2021, they tracked posts about COVID-19 with about 200 million engagements for possible censorship. Americans who dared to speak out against the woke liberal orthodoxy that has infiltrated every sector of corporate America would face the threat of censorship and de-platforming by Big Tech giants and these elusive surveillance organizations acting together with the federal government. AFL's lawsuit alleges that this massive operation was concocted in collusion with government officials -- including federal national security officials -- to evade the First Amendment, all while shielding the government bureaucracy. If proven, this is an overt, intentional, and explosive violation of the Constitution at the hands of the government. America First Legal has long led a fierce legal battle against the censorship and disinformation regime, filing multiple lawsuits and dozens of oversight investigations to hold bad actors and the government accountable for violating the First Amendment. The crusade we see against free speech in America, seemingly every day, is fundamentally antithetical to the country that our Founders intended and rooted in a deep animosity toward the Constitution. The concept of a government "by the people, for the people" has been inverted - the federal bureaucracy is not operating for the people; it is actively working against them with the help of weaponized private actors - it is time for accountability. Statement from America First Legal President Stephen Miller: "Today, America First Legal is striking at the heart of the censorship-industrial complex for our clients. We are filing a landmark class action lawsuit against the organizers and architects of an elaborate conspiracy to surveil and censor Americans to stop them from exercising their fundamental right to free speech. To silence, banish, and deprive them of the means to earn a living. These nonprofit "disinformation" organizations and the other defendants allegedly conspired with the government to deny Americans their inalienable rights, flagging content and creators for government entities so that those entities, in turn, would pressure platforms to remove that content or those creators. They created a regime of surveillance, censorship, and control fit for communist China. Under the Orwellian guise of policing ‘mis' and ‘disinformation,' the organizations and entities we are suing today are responsible for radically eroding the rights and liberties upon which the survival of free society depends. We will fight to hold them liable in a court of law and seek full and complete justice for their victims. America First Legal will continue to lead the charge to rescue America from tyranny." said Stephen Miller. To schedule an engagement with America First Legal, please email info@athospr.com. [GN] STATE FARM: Schwartz Suit Stayed Pending Decision in Smith Suit --------------------------------------------------------------- Judge Kea W. Riggs of the U.S. District Court for the District of New Mexico grants the Defendants' motion to stay the lawsuit entitled DANA SCHWARTZ, on behalf of herself and all others similarly situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Consolidated with: FREEMAN J. PALMER, and CHELSEA PALMER, on behalf of themselves and all others similarly situated, Plaintiffs v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants, Case Nos. 1:18-cv-00328-KWR-SCY, 1:19-cv-00301-KWR-SCY (D.N.M.). The Court finds that that the Defendants' Motion to Stay is well-taken and, therefore, is granted. The Court will stay this action until the New Mexico Supreme Court decides the certified question in Smith v. Interinsurance Exchange of the Automobile Club, No. S-1-SC-39659, which may be determinative of key issues in this case. The putative class action arises out of a dispute over "underinsured motorist coverage" in an automobile policy. United States District Judge Judith Herrera certified in Crutcher v. Liberty Mut. Ins. Co. et al., 1:18-cv-412 (JCH/KBM), and the New Mexico Supreme Court accepted, the following question: Under N.M. Stat. Ann. Section 66-5-301, is underinsured motorist coverage on a policy that offers only minimum UM/UIM limits of $25,000 per person/$50,000 per accident illusory for an insured who sustains more than $25,000 in damages caused by a minimally insured tortfeasor because of the offset recognized in Schmick v. State Farm Mutual Automobile Insurance Company, and, if so, may insurers charge a premium for that non-accessible underinsured motorist coverage? The Court previously issued a stay in this case pending a decision on that question certified in Crutcher. On Oct. 4, 2021, the New Mexico Supreme Court issued its opinion. In another putative class action involving similar claims against another insurer, Smith v. Interinsurance Exchange of the Automobile Club, 1:22-cv-447 (WJ/KK), Chief United States District Judge William Johnson certified, and the New Mexico Supreme Court accepted, the following question: Whether Crutcher v. Liberty Mut. Ins. Co, 2022-NMSC-001, 501 P.3d 433, applies prospectively or retroactively? On Jan. 10, 2023, the New Mexico Supreme Court issued an order accepting the certified question. The Defendants request the Court stay this case pending the New Mexico Supreme Court's answer to the certified question. Similar stays have been issued in other putative class actions involving similar issues, including Crutcher v. Liberty Mut. Ins. Co., et al., 1:18-cv-00412-JCH-KBM (D.N.M.). Judge Riggs explains that an answer from the New Mexico Supreme Court on the retroactivity issue will help resolve a key issue in this case and numerous other similar cases in this district. Staying this case pending a decision by the New Mexico Supreme Court will promote uniformity in addition to comity. Although the Court previously issued a decision regarding retroactivity in this case, the New Mexico Supreme Court could disagree with that decision. The Plaintiffs assert that an answer will not be dispositive of all claims in this case. The Plaintiffs appear to argue that their misrepresentation claims can proceed even without a non-disclosure theory of liability. Judge Riggs notes that it is not clear that the failure to explain the Schmick offset rule (i.e. non-disclosure) can be disentangled entirely from the Plaintiffs' misrepresentation claim. Moreover, there is no requirement that a certified question be dispositive of a case entirely, and the Court otherwise finds that the answer will be determinative of a key issue raised in this case and is essential to determining the scope of discovery and the certified class. Moreover, Judge Riggs opines, a decision in Smith may help guide the scope of discovery, including the collection of class-wide certification discovery. If the New Mexico Supreme Court rules that there were no pre-Crutcher disclosure obligations, but that insurers may be liable only for pre-Crutcher affirmative misrepresentations, the Smith ruling may affect class discovery and class certification decisions. The Court will, therefore, stay discovery and resolution of the pending motions until it receives guidance from the New Mexico Supreme Court on the certified question in Smith. Of course, Judge Riggs points out, justice requires timely resolution of cases. Here, this case was filed in 2018 and this will be the second stay entered in this case pending an answer by the New Mexico Supreme Court on a certified question. However, weighing the competing interests as explained, the Court finds that a stay is still appropriate. As noted, an answer to the certified question will likely shape discovery in this case and the issues upon class certification, and may be dispositive of essential issues in this case. The Court finds that any prejudice to the Plaintiffs is outweighed by other interests. Finally, the Court denies without prejudice the Plaintiffs' Motion for Leave to File Amended Complaint Consolidating Claims. The Plaintiffs may file a new motion to amend complaint following the decision in Smith, if still appropriate. Accordingly, Judge Riggs grants the Defendants' Motion to Stay. The case is stayed pending the New Mexico Supreme Court's answer to Chief Judge Johnson's certified question. After the New Mexico Supreme Court answers the certified question, the parties will file a status report with the Court, which will prompt the Court to lift the stay. The Plaintiffs' Motion for Leave to file Amended Complaint is denied without prejudice. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/3e86eu5v from Leagle.com. STEIN SAKS: Goldberg's Class Action Claims Dismissed W/o Prejudice ------------------------------------------------------------------ In the case, MARK GOLDBERG, Plaintiff v. STEIN SAKS, PLLC, Defendant, Case No. 23-cv-3089 (MKV) (S.D.N.Y.), Judge Mary K. Vyskocil of the U.S. District Court for the Southern District of New York dismisses without prejudice the Plaintiff's class action claims on behalf of others. The Plaintiff, who is appearing pro se, brings the action under Title III of the Americans with Disabilities Act, 42 U.S.C. Section 12181, et seq. He also asserts pendant state law claims. By order dated April 17, 2023, the Court granted the Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. Judge Vyskocil holds that as a nonlawyer, the Plaintiff can represent only his own interests. Because a pro se litigant cannot assert claims on behalf of third parties, a pro se plaintiff cannot bring class action claims. She therefore dismisses without prejudice any claims that the Plaintiff is asserting on behalf of others. Because the Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. To allow him to effect service on the Defendant through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (USM-285 form) for the Defendant. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon the Defendant. If the complaint is not served within 90 days after the date the summons is issued, Judge Vyskocil directs the Plaintiff to request an extension of time for service. He must notify the Court in writing if his address changes, and the Court may dismiss the action if he fails to do so. Based on the foregoing, Judge Vyskocil dismisses without prejudice the Plaintiff's class action claims on behalf of others. The Clerk of Court is instructed to issue a summons for the Defendant, complete the USM-285 form with the address for this defendant, and deliver to the U.S. Marshals Service all documents necessary to effect service. Judge Vyskocil certifies under 28 U.S.C. Section 1915(a)(3) that any appeal from her Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. A full-text copy of the Court's April 26, 2023 Order is available at https://rb.gy/wzjhr from Leagle.com. STONE ACADEMY: Ex Students File Class Suit Over School Closure -------------------------------------------------------------- Julia LeBlanc at fox61.com reports that after Stone Academy abruptly shut all of its locations in February, a group of students is now filing a lawsuit. Sc "We were literally sold a ticket to a sinking ship," said Terencia Ridenhour, a former Stone Academy student and one of eight plaintiffs listed in the lawsuit. Ridenhour was supposed to graduate from Stone Academy as a licensed practical nurse (LPN) this July. However, after almost two years of paying thousands of dollars to attend classes, the school suddenly shut down. "I did not know that the school was under investigation. I did not know that the school was going to close. I literally found out on February 14th that the school was closing through an email," Ridenhour said. Ridenhour said she even called the school that day to ask questions, and the person on the other line wasn't aware of the closure. She and hundreds of others are now in the same boat, stuck in a holding period until they get some answers on what to do next. This, is all as the state is conducting an audit of Stone Academy. As they sit in that holding period, Ridenhour and seven other students decided to come together and file a class action lawsuit. "We're going to do the best we can, and we're going to fight hard for these folks," said David Slossberg, Partner at Hurwitz Sagarin Slossberg & Knuff, LLC. The legal team at the local firm in Milford is representing the students. "They relied upon the promises that they were going to be able to get this education. They could have gone somewhere else. And now, they're a year two in and they've lost that time of their life, all that sacrifice. Plus, the monetary aspect, with the tuition that they're out of," said Kristen Zaehringer, Partner at Hurwitz Sagarin Slossberg & Knuff, LLC. The lawsuit alleges that Stone Academy portrayed itself as a reputable school, and never delivered. "Not only didn't deliver but could not deliver. And yet they kept admitting students, they kept taking tuition," Slossberg said. The lawsuit goes into detail about how in December of 2020, Stone Academy asked the CBNE to temporarily reduce clinical hour requirements. The lawsuit said it denied that request. Then, the lawsuit alleges that the academy asked the CBNE to increase its virtual clinical scenarios, which was again denied. The lawsuit says: "Further, the CBNE passed a resolution that required Stone Academy to suspend all virtual clinical experience offerings, effective immediately." "They continued to do it even when certain students were coming back and saying, 'We have concerns about that'. So, that's a big issue,'" Slossberg said. The lawsuit then goes into detail about the academic achievements of the students at the school. As graduating nursing students, everyone has to take an exam known as the NCLEX (National Council Licensure Examination). All students must get an 80% or above to pass. The lawsuit alleges "In 2022, all of Stone Academy's practical nursing programs fell below the 80% threshold." It also alleges, "One in five faculty members were unqualified to teach their respective courses." "Through it all, the students, they did what they had to do to become nurses. Even if we had to have study groups or teach ourselves the whole three chapters, we did it. So, it wasn't easy, but we did what we had to do to succeed," Ridenhour said. On top of that, Ridenhour said she never got the in-person clinical experience she needed to graduate. In her experience, she said she only went to a week or two of clinical. The lawsuit claims "Fifty percent (50%) of contact hours shall be in supervised direct client care experiences and observational experiences appropriate to the Program's Educational Outcomes." Ridenhour said she did not get that experience. "I did ask a specific person, like, are we still going to graduate on time because I was concerned about the clinicals. I know we need a certain amount of hours. And they told me, yes, you're still going to graduate on time, nothing's going to change," Ridenhour said. Ridenhour said they can't get that time back, but they need something from the school. "I need to fight. Like, we need to get what we're owed," Ridenhour said. "We're all one. We all were destined to be nurses. They need us out there." Sign up for the FOX61 newsletters: Morning Forecast, Morning Headlines, Evening Headlines Stone Academy's attorney has responded to the lawsuit with the following statement: "The lawsuit ignores the fact that the Connecticut Office of Higher Education (OHE) and Department of Public Health forced Stone to close on short notice without legal justification and without following required processes to address exam passage rates or other concerns. OHE refused to allow a teach out program for Stone students that would have avoided the disruptions alleged in the lawsuit. OHE is now conducting an illegal audit to deprive students of their legitimately earned credits. We expect plaintiffs' lawyers to join us in demanding that OHE cease its audit and permit a teach out – as has been done in previous school closures. We are reviewing options to ensure that the State and state officials assume legal responsibility for the harms they caused to Stone students that are improperly alleged against the school. Stone Academy will remain focused on assisting its students and graduates in pursuing their nursing educations and licensure. We will respond to the lawsuit more fully in court at the appropriate time but categorically reject its characterization of the quality of Stone students' education and the circumstances of the school's closure. " -Perry Rowthorn, Partner, Jepsen Rowthorn, LLP FOX61 did reach out to the Connecticut Office of Higher Education, and was told "No comment." For those who are former students and have questions about the lawsuit, Slossberg said feel free to call his office at (203) 877-8000. [GN] TERRAFORM LABS: Seeks to Dismiss Suit Over Securities Violations ---------------------------------------------------------------- Terraform Labs is seeking to have a class-action lawsuit against the firm dismissed, arguing the United States securities laws referenced are not applicable to its foreign-developed protocols. On May 3, Terraform Labs requested a California federal judge dismiss an investor suit brought by Nick Patterson that claimed the company sold unregistered securities and misled investors. The firm's attorneys, Dentons, argued that federal securities laws do not apply since the protocols were developed and used outside of the United States. The Terra/Luna ecosystem collapsed in May 2022, wiping out billions from the crypto markets. The crash has sparked a raft of lawsuits against the firm, associated entities such as the Luna Foundation Guard, and company founder Do Kwon. In June 2022, this particular class action was filed, claiming that the Terra tokens -- TerraUSD (UST) and LUNA -- were securities, among other allegations. According to Law360, Terraform's dismissal motion argued that federal securities laws and the mail and wire fraud accusations in the suit only apply domestically. "The federal securities laws do not apply because the SAC [Second Amended Complaint] does not allege that any of the protocols at issue were developed domestically." The same argument also applies to the suit's RICO (Racketeer Influenced and Corrupt Organizations) allegations, which claimed the firm's goal was to reap profits at retail investors' expense, according to Terraform. Nick Patterson, who filed the suit on behalf of investors, did not adequately plead that mail and wire fraud allegations occurred domestically, it argued. The motion also states that the plaintiff failed to identify the location of digital wallets containing his Terra tokens, which negates any "domestic injury" claims, according to Terraform. Related: Do Kwon converted illicit funds from LUNA to Bitcoin: S.Korean prosecutors Terraform and Do Kwon were sued by the Securities and Exchange Commission in February, with the regulator claiming they orchestrated a multibillion-dollar securities fraud. In April, a South Korean court ruled that LUNA was not a security under the country's Capital Markets Act. On April 25, Terraform Labs co-founder Hyun-seong Shin and nine individuals associated with the firm were indicted in South Korea. They were reportedly indicted on charges of fraud, breach of trust and embezzlement and referred to trial following almost a year of investigation. [GN] UBER TECHNOLOGIES: Drivers Cannot Bring Suit for Employment Claims ------------------------------------------------------------------ Alice Hodsden at jdsupra.com reports that in a matter of first impression, a panel for the Third U.S. Circuit Court of Appeals recently affirmed a judgment of the District Court of New Jersey in Singh v. Uber Techs., Inc. (April 26, 2023), compelling arbitration in a putative class action against Uber Technology, Inc. (Uber). The class action was brought against Uber by its drivers who alleged that the rideshare company misclassified them as independent contractors, thereby depriving them of overtime pay and other benefits under wage and hour laws. The panel held that the drivers must bring work-related disputes as arbitration proceedings per their contracts because the Federal Arbitration Act (FAA) exemption does not apply to them. The FAA compels federal courts to enforce a wide range of arbitration agreements except arbitration agreements contained in the "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. The panel held that the Uber drivers are not included in a class of workers engaged in interstate commerce because they rarely cross state lines when transporting passengers. The two key questions addressed by the panel were (1) what it means for a class of workers to be "engaged in interstate commerce" and (2) whether engagement with interstate commerce is central to the work of Uber drivers. Regarding the first question, the Uber drivers argued that rare engagement is sufficient, but the panel concluded that the engagement must be "a central part" of their work. The panel further explained that this centrality test can be satisfied in two ways, either by (1) work that is actually engaged in the movement of interstate or foreign commerce, or (2) work that does not regularly cross state lines but is "so closely related" to interstate commerce as to be in practical effect part of it. Further, work meets this "closely related" standard if it is a "constituent part" of the interstate movement of goods or people rather than a part of an independent and contingent intrastate transaction. In other words, "the class must either be actually engaged in the movement of interstate or foreign commerce or in work so closely related thereto as to be in practical effect part of it." As to the second question, the panel agreed with the District Court that interstate commerce is not central to the work of Uber drivers by explaining that "[a]s a class, Uber drivers are in the business of providing local rides that sometimes—as a happenstance of geography—cross state borders." The panel continued that "remove interstate commerce from the equation, and the work of Uber drivers remains fundamentally the same." The panel stated that the drivers have not shown that infrequent interstate trips - evidence presented indicated 2.5% of Uber trips are interstate - are essential to their work, or that driving passengers to and from airports is a "constituent part" of the interstate movement of goods or people that could satisfy the "closely-related" test. As a result, the panel concluded that Uber drivers are not a class of workers engaged in interstate commerce and, accordingly, that they do not fall under the FAA exception. Whether the FAA exemption applies to rideshare workers is an important question for the gig industry because exclusion from the exemption will force these workers to individually arbitrate employment claims as opposed to bringing mass class actions. [GN] UNIFRAZ I LLC: Tower Sues Over Untimely Payment of Wages -------------------------------------------------------- CHRISTOPHER TOWER, individually and on behalf of all others similarly situated, Plaintiff v. UNIFRAX I LLC, Defendant, Case No. 1:23-cv-00370 (W.D.N.Y., April 27, 2023) arises out of the Defendant's violations of the New York Labor Law. Plaintiff Christopher Tower employed by Defendant from approximately November 2014 to August 2018 as a production operator at a Unifrax location in Tonawanda, New York. More than 25% of his job responsibilities at Unifrax included manual labor, including tasks such as operating machinery to perform product production, loading heavy bags raw material into machinery, unloading product, sorting product scrap, and general housekeeping duties of working area. Accordingly, the Defendant has violated the NYLL by paying its manual workers every other week rather than on a weekly basis, says the suit. Unifrax I LLC is a Delaware limited liability company with a principal place of business in Irving, TX. It is a leading manufacturer of high performance specialty materials used in advanced applications. [BN] The Plaintiff is represented by: Andrew M. Debbins, Esq. CONNORS LLP 1000 Liberty Building Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: amd@connorsllp.com - and - Yitzchak Kopel, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 Email: ykopel@bursor.com aleslie@bursor.com UNITED SERVICES: $3M Class Settlement in Spielman Suit Has Final OK ------------------------------------------------------------------- Senior District Judge Terry J. Hatter, Jr., of the U.S. District Court for the Central District of California issued a Final Order and Judgment approving the parties' $3,050,000 class action settlement in the lawsuit titled LESTER I SPIELMAN, individually and on behalf of all others similarly situated, Plaintiff v. UNITED SERVICES AUTOMOBILE ASSOCIATION, USAA CASUALTY INSURANCE COMPANY, USAA GENERAL INDEMNITY COMPANY, and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants, Case No. 2:19-cv-01359-TJH-MAAx (C.D. Cal.). The matter came before the Court on April 17, 2023, for a hearing pursuant to Federal Rule of Civil Procedure 23(e) as to the fairness, reasonableness, and adequacy of the Parties' proposed Settlement of this Action preliminarily approved by the Court on Sept. 28, 2022. All interested Persons were provided with notice and the opportunity to be heard regarding the proposed Settlement. On June 30, 2022, the Plaintiff moved for preliminary approval of the proposed Settlement. On Sept. 28, 2022, the Court entered the Preliminary Approval Order. This Final Order and Judgment incorporates the provisions, findings, and conclusions in the Preliminary Approval Order unless specifically stated otherwise in this Order. After entry of the Preliminary Approval Order, the Parties proceeded to implement the terms of the Preliminary Approval Order and the Settlement. On Feb. 3, 2023, the Settlement Administrator, Epiq Class Action & Claim Solutions, Inc., submitted the Declaration of Jeanne M. Chernila Regarding Implementation of Notice and Class Settlement Administration (the "Original Declaration"), and on Feb. 17, 2023, submitted the Supplemental Declaration of Jeanne M. Chernila Regarding Implementation of Notice and Settlement Administration and Update on Address Verification Form Submission (the "Supplemental Declaration"), which updated the Original Declaration. These Declarations provide detailed information regarding the course and scope of post-preliminary approval notice and settlement administration activities. On Nov. 28, 2022, Epiq mailed the Mailed Notice to all Settlement Class Members after updating the mailing addresses provided by the USAA Entities, in accordance with the Preliminary Approval Order and Settlement Agreement. In the initial mailing, Epiq mailed 3,860 Mailed Notices, including Address Verification Forms to Former Policyholders. In addition, Epiq established a Settlement Website, also in accordance with the Settlement Agreement and Preliminary Approval Order. Epiq also set up a 24-hour IVR/VRU telephone system, which provided answers to frequently asked questions. The Website, IVR/VRU, and Call Center went "live" on the Mailed Notice Date. Settlement Class Members were given until Jan. 27, 2023, or 60 days after the Mailed Notice Date, in which to exclude themselves or object to the Settlement. Former Policyholders were also given until Jan. 27, 2023, in which to submit an Address Verification Form (either by mail or online on the Website). On Dec. 12, 2022, Class Counsel filed their petition for an Attorneys' Fees and Expenses Award (up to a maximum of $1,042,788.17) and for a Service Award to the Named Plaintiff, up to a maximum of $5,000. The Settlement Administrator's Original Declaration included for the Court's consideration the Opt-Out List, which is the list of all Settlement Class Members who timely excluded themselves from the Settlement. The Supplemental Declaration noted that there was no update to that Opt-Out List. One Settlement Class Member -- Alexander Frankian of Los Angeles, California -- filed a timely exclusion request, and is on the Opt-Out List. No Settlement Class Members filed untimely exclusion requests. All Former Policyholders, who submitted a timely Address Verification Form, are entitled to their share of the Net Settlement Fund. All other Former Policyholders are not eligible for a Settlement Claims Payment, but are bound by the terms of the Settlement and this Final Order and Judgment, including the Release. No Class Member objected to the Settlement. Furthermore, as set forth in the Settlement Administrator's Original Declaration, on July 8, 2022, notice pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. Section 1715 ("CAFA Notice"), was sent to the U.S. Attorney General and the departments of insurance of each of the 50 states and the District of Columbia. No state or federal official has objected to the proposed Settlement. Judge Hatter grants the Motion for Final Order and Judgment Approving Class Action Settlement. The Court grants final approval to the Parties' Settlement, as set forth in the Settlement Agreement. The Court grants final approval of the certification of the following Settlement Class, for settlement purposes only: All individuals and entities insured by the USAA Entities under a California automobile policy whose insurance covered or covers a leased vehicle under private-passenger physical damage coverage, including collision and physical damage other than collision coverage, and who made a first-party claim from February 22, 2015 through September 28, 2022, whose leased vehicle was determined by the USAA Entities to be a Total Loss, and who received a Total Loss Claim Payment from the USAA Entities for the value of the totaled vehicle that did not include the full amount of the Sales Tax and/or Vehicle Regulatory Fees. Excluded from the Settlement Class are: (1) all officers, employees, and agents of the USAA Entities, Class Counsel, and their immediate family members, and (2) any members of the judiciary assigned to the Action and their immediate families. The USAA Entities and the Released Persons will retain all rights to assert that the Action could not be certified as a class action except for settlement purposes. No liability with respect to the Settlement will attain in favor of the Named Plaintiff, the Settlement Class, or Class Counsel as against any officer, director, member, agent, or employee of the USAA Entities, but rather, the Named Plaintiff, the Settlement Class, and Class Counsel will look solely to the assets of the USAA Entities for satisfaction of the Settlement. The Court finds that Epiq has complied with its duties under the Preliminary Approval Order and the Settlement Agreement. The Court approves the payment of up to $80,000 to Epiq from the Settlement Fund as the reasonable costs of notice and settlement administration. The Court dismisses the Action on the merits as to the USAA Entities with prejudice and without fees or costs except as provided in this Final Order and Judgment. The Court approves the Opt-Out List submitted by the Settlement Administrator (Exhibit 1) and determines that the Court-Approved Opt-Out List is the complete list of all Settlement Class Members, who have timely requested exclusion from the Settlement Class and, accordingly, will neither share in nor be bound by the Final Order and Judgment. All other Settlement Class Members will be bound by the terms of the Settlement. The Court approves the distribution plan set forth in Paragraphs 22-24 of the Settlement Agreement. The following amounts will be paid from the $3,050,000 Settlement to yield the Net Settlement Fund, from which the Settlement Claim Payments will be calculated and processed: Attorneys Fees' and Expenses Award: $783,947.20; Service Award: $5,000; Payment to Epiq: (up to) $80,000. Epiq and Class Counsel will use their best efforts to mail Settlement Claim Payment checks to Qualifying Settlement Class Members within thirty (30) days after the Effective Date. Without affecting the finality of the Final Order and Judgment for purposes of appeal, the Court reserves jurisdiction over the USAA Entities, the Named Plaintiff, and the Settlement Class as to all matters relating to the administration, consummation, enforcement, and interpretation of the terms of the Settlement and the Final Order and Judgment, and for any other necessary purposes. The Court declares the Settlement Agreement and this Final Order and Judgment to be binding on, and have res judicata and preclusive effect in, all pending and future lawsuits or other proceedings. The Court awards the following for the Attorneys' Fees and Expenses Award, to be paid from the Settlement Fund: $783,947.20. The Court awards the following for the Service Award, to be paid from the Settlement Fund: $5,000. Judge Hatter approves the cy pres provisions in the Settlement Agreement. Accordingly, if there are checks for Settlement Claim Payments that are uncashed after the 180-day Stale Date, the uncashed amounts will become part of the cy pres awarded to the Tragedy Assistance Program for Survivors, an organization that provides services and compassionate care to those grieving the death of a military loved one; provided, however, that exceptions may be made for checks that are not cashed by the time of the Stale Date for service members who are then deployed. The Court approves, among other things, the confidentiality provisions in Paragraphs 52-56 of the Settlement Agreement and orders the Parties to proceed in accordance with those provisions regarding the Confidential Information. A full-text copy of the Court's Final Order and Judgment dated April 17, 2023, is available at https://tinyurl.com/4h5cdcr9 from Leagle.com. UNITED STATES: D.C. Court Tosses Harris v. DOJ After Initial Review ------------------------------------------------------------------- Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia dismisses without prejudice the lawsuit styled STEVEN JERMAINE HARRIS, SR., Plaintiff v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants, Case No. 1:23-cv-00705 (UNA) (D.D.C.). The matter is before the Court on its initial review of the Plaintiff's pro se pleading entitled "judicial review according to Administrative Procedure Act," which the Court will construe as a civil complaint. At the outset, the Court notes that the Plaintiff's application for leave to proceed in forma pauperis is not captioned for this Court, in contravention of Federal Rule 10(a) and D.C. Local Civil Rule 5.1(g), and will, therefore, be denied. The Plaintiff is an Oklahoma state prisoner, who is a member of the Cherokee Nation. He sues the United States Departments of Justice and Department of the Interior and alleges that an Oklahoma state court was "without criminal jurisdiction" to prosecute, convict, and sentence him, in violation of several federal laws and treaties. Judge Chutkan holds that the Plaintiff faces hurdles that he cannot overcome. First, Judge Chutkan says the Plaintiff should properly pursue these claims by filing a petition for writ of habeas corpus. Second, because the Plaintiff may pursue relief by and through a petition for writ of habeas corpus, there can be no of action under the APA to challenge the legality of his conviction or detention "because that Act is limited to review of agency action 'for which there is no other adequate remedy.'" Third, and similarly, the Plaintiff passingly references the federal mandamus act, 28 U.S.C. Section 1361, but mandamus is proper only if "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff." Fourth, the Plaintiff has no recourse in this District to circuitously challenge his prosecution, conviction, or incarceration, under the All Writs Act. Fifth, Judge Chutkan notes that there is no indication that 25 U.S.C. Section 2802 provides an individual any private right of action, and moreover, this provision does not, in any way, foreclose the Plaintiff's ability to pursue his claims through a writ of habeas corpus. Sixth, Judge Chutkan opines the Plaintiff may not initiate criminal proceedings by filing a complaint with this Court because the Court has no authority to compel the government to initiate a criminal investigation or to prosecute a criminal case. Finally, to the extent that the Plaintiff attempts to bring this action on behalf of those "similarly situated," he may not do so, because a pro se litigant can represent only himself in federal court. For all of these reasons, Judge Chutkan rules that this case is dismissed without prejudice. A separate order accompanies this memorandum opinion. A full-text copy of the Court's Memorandum Opinion dated April 17, 2023, is available at https://tinyurl.com/2m9mjuj4 from Leagle.com. UNITED STATES: Faces Class Action Over Revitalization Fund ---------------------------------------------------------- Corrado Rizzi at classaction.org reports that the federal government faces a proposed class action that alleges money from the Restaurant Revitalization Fund (RRF) that the Small Business Administration (SBA) assured would make it to certain priority applicants never did, leaving some bars and restaurants in "a significantly worse position" amid the COVID-19 pandemic. The 13-page case in the Court of Federal Claims explains that the American Rescue Plan Act of 2021 authorized the SBA to administer grants from the newly created RRF to aid restaurants, bars and other businesses that serve food or drinks to remain open or reopen. Per the suit, the American Rescue Plan Act appropriated to the RRF $28.6 billion, which was to be awarded to eligible businesses. According to the case, the RRF online application portal opened in early May 2021, though in the initial 21 days of the program, applications from only a designated priority group -- restaurants or bars majority-owned by women, veterans and/or socially or economically disadvantaged individuals -- were to be processed. The lawsuit alleges that although the SBA promised priority applicants in writing that their awarded funds were on the way -- that, in fact, funds would be disbursed within three to seven business days of approval -- they were not. In the end, the money "never made it to" approved restaurants or bars, the filing says. Per the complaint, around June 23, 2021, approved priority applicants began to receive a standardized written notice in which the SBA advised that the awarded RRF funds would be "rescinded," ostensibly due to orders in lawsuits in Tennessee and Texas that deemed the 21-day priority application window unlawful. "However, based on the timing of their applications, Plaintiff and Class members should have received an award even under the orders in those lawsuits," the suit argues. To date, the SBA has offered no further indication to proposed class members of whether it may award the promised funds, the case states. The plaintiff business was set to receive nearly $170,000 in much-needed funding before the award was rescinded by the SBA, according to the complaint. "Plaintiff was put in a position where it had to borrow money from the SBA in order to stay in business throughout the coronavirus pandemic," the lawsuit shares. "Plaintiff received a $382,100 Economic Injury Disaster Loan that it must now pay back to the SBA." The plaintiff business seeks, among other damages, the disbursement of the RRF funds promised by the SBA. According to reports, more than 2,900 businesses owned by women, people of color and veterans were deprived of RRF money promised to them by the SBA. The lawsuit looks to cover all persons and/or entities who applied for Restaurant Revitalization Fund grants as priority applicants, were told by the SBA that their priority applications were approved and that awards would be disbursed, and who did not receive their money as a result of the United States government's failure to pay the awards.[GN] UNITED STATES: W.D. Washington Dismisses Garcia v. USCIS, Others ---------------------------------------------------------------- Judge Barbara Jacobs Rothstein of the U.S. District Court for the Western District of Washington, Seattle, grants the Defendants' motion to dismiss the lawsuit captioned LINDA CABELLO GARCIA, on behalf of herself and others similarly situated, Plaintiff v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants, Case No. 3:22-cv-5984 (W.D. Wash.). Defendants U.S. Citizenship and Immigrations Services ("USCIS"), et al., bring this motion to dismiss the putative class action complaint filed by Plaintiff Linda Cabello Garcia for lack of subject matter jurisdiction and for failure to state a claim. The Plaintiff opposes the motion. The Plaintiff is a citizen of Mexico, who was granted U nonimmigrant status (commonly referred to as a "U-Visa") in 2016. She currently lives in Tacoma, Washington. In 2020, the Plaintiff timely applied to adjust her U nonimmigrant status to that of lawful permanent resident pursuant to 8 U.S.C. Section 1255(m). USCIS denied her request because she failed to submit a completed medical exam with her application. The Plaintiff alleges that she did not obtain the medical exam because she suffers from a "significant, diagnosed panic disorder" that prevented her from going to the doctor's office for the exam. She further asserts that unlike most adjustment-of-status applicants, who are subject to public health admissibility grounds under 8 U.S.C. Section 11(a)(1), U-Visa applicants are not. Therefore, the Plaintiff alleges, USCIS's denial of her adjustment-of-status application based on her failure to submit a completed medical exam was "arbitrary, capricious," "not in accordance with law," and "in excess of statutory authority." Ms. Garcia instituted this action under the Administrative Procedure Act ("APA"), requesting that this Court set aside USCIS's determination and order it to re-adjudicate her application. She also seeks class-wide relief to declare unlawful and enjoin USCIS's policy or practice of requiring medical examinations for U-Visa adjustment-of-status applicants. The Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that 8 U.S.C. Section 1252(a)(2)(B)(i) precludes the Court from exercising jurisdiction over USCIS's decision to deny the Plaintiff's adjustment-of-status application, as well as any preliminary judgments relating to the adjudication of the application. Alternatively, the Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim. Because the Court concludes that it does not have jurisdiction to adjudicate the Plaintiff's claim, the Court's analysis stops there. The Defendants argue that the jurisdiction limiting provision in 8 U.S.C. Section 1252(a)(2)(B) prevents the Plaintiff from using the APA to challenge the denial of her adjustment-of-status application. They argue that the Court lacks subject matter jurisdiction to review USCIS's denial of the Plaintiff's adjustment-of-status application. The Plaintiff counters that Section 1252(a)(2)(B)'s prohibition on judicial review of such determinations only applies in the removal context and because she is not in a removal proceeding, the Court is not precluded from reviewing USCIS's determination. The Plaintiff's argument was expressly addressed in Patel v. Garland and rejected by all but one court that has faced the same issue in the eleven months since Patel was decided. In Patel, the petitioner and government each argued that the Supreme Court's expansive interpretation of Section 1252(a)(2)(B)'s prohibition on judicial review would have the consequence of "precluding all review of USCIS denials of discretionary relief" because those "decisions are made outside the removal context, and subparagraph (D) preserves review of legal and constitutional questions only when raised in a petition for review of a final order of removal." The Court acknowledged this possible repercussion, stated that the issue was not currently before it, but then went on to declare that "it is possible that Congress did, in fact, intend to close that door." Thus, although Patel was decided in the context of a removal proceeding, courts have construed the Supreme Court's broad language to preclude judicial review of any adjustment-of-status determinations made by USCIS outside of the removal context. Thus, the Court will also adopt the interpretation of Section 1252(a)(2)(B) espoused by the majority of courts that have addressed this issue since Patel and conclude that it does not have subject matter jurisdiction to review the Plaintiff's claim under the APA. For these reasons, the Court grants the Defendants' motion to dismiss and dismisses this matter. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/yu2a53ka from Leagle.com. UNITED STATES: Wins Bid for Summary Judgment in King ERISA Suit --------------------------------------------------------------- In the case, WILLIAM KING, ANTHONY GUGLIUZZA, STEPHEN DARDZINSKI, et al., Plaintiffs v. UNITED STATES, Defendant, Case No. 18-1115 (Fed. Cl.), Judge Richard Hertling of the U.S. Court of Federal Claims denies the Plaintiffs' motion for summary judgment; and grants the Defendant's motion for summary judgment. The Employee Retirement Income Security Act ("ERISA") was enacted in 1974. Under ERISA, each pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age. The New York State Teamsters Conference Pension and Retirement Fund was established in 1954, 20 years before ERISA was enacted. The Teamsters Fund is a multiemployer pension plan, defined in ERISA as a plan to which more than one employer is required to contribute and which is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer. Approximately 78% of the Teamsters Fund's annual receipts come from a single employer, United Parcel Service ("UPS"). The three class representatives are retired employees of UPS. In this certified class action, the Plaintiffs are vested participants and beneficiaries in a pension plan. They allege that the United States, acting through the Department of the Treasury, in consultation with the Department of Labor, and the Pension Benefit Guaranty Corp. ("PBGC"), violated the takings clause of the fifth amendment of the U.S. Constitution in October 2017 by authorizing a 29-percent cut to their pension benefits under the Multiemployer Pension Reform Act of 2014 ("MPRA"). The Plaintiff class members who were still alive in December 2022 saw their pension benefits restored under the American Rescue Plan Act of 2021 ("ARPA") and received lump-sum make-up payments without interest in the amount that had been withheld from them. The Plaintiffs maintain their suit for interest on the amounts withheld while the benefit cuts were in effect and because the estates of the participants and beneficiaries who died between October 2017 and December 2022 have received reduced or no make-up payments. The following class was certified pursuant to RCFC 23: Any person (whether a participant, beneficiary, or other individual) who received one or more pension payments from the New York State Teamsters Conference Pension and Retirement Fund (the Fund) on or after Oct. 1, 2017 unless either (1) that person was an Active Participant as of Oct. 1, 2017 or (2) all pension payments that were received by that person since Oct. 1, 2017 were reduced by 0% relative to the sum the recipient would have been entitled to receive if the Defendant had not authorized the Fund, in or around September 2017, to reduce certain pension benefits under the Kline-Miller Multiemployer Pension Reform Act of 2014. The parties cross-move for summary judgment under Rule 56 of the Rules of the Court of Federal Claims ("RCFC"). The cross-motions present two issues: (1) whether the Plaintiffs' claims are more appropriately resolved as a classic physical taking or under the more flexible regulatory-takings test provided in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978); and (2) the application of the appropriate takings test. This case has important implications for the constitutional limits on the ability of Congress and regulators to address the problem of multiemployer-pension-plan insolvency. Judge Hertling explains that the underlying facts regarding the suspension of the Plaintiffs' pension benefits are not in dispute. Although the parties dispute the legal characterization of those facts, he says a trial would not affect the outcome of the suit under governing law and would not make either party's argument more or less probative. Both parties agree that no material facts remain in dispute, and no disputed facts are apparent. Accordingly, summary judgment is appropriate in the case. Judge Hertling concludes that the physical-takings test does not apply to the Plaintiffs' claims. He says Supreme Court precedents reject the application of the physical-takings test to ERISA amendments applicable to multiemployer pension plans when the government seizes nothing for its own use. The government in this case has appropriated nothing for its own use; rather, it altered the governing regulatory framework to permit the Teamsters Fund to reduce the Plaintiffs' benefits to avoid insolvency. Finally, the Plaintiffs' property has been neither appropriated nor occupied unconstitutionally because the Teamsters Fund trustees have always had the right to amend the plan documents in accordance with evolving legal requirements, especially as related to financial stability. The plaintiffs' effort to apply the physical-takings test to their claims is rejected. The Plaintiffs have also failed to show that a regulatory taking has occurred, Judge Hertling says. The economic impact to the Plaintiffs is not enough to support a finding that a regulatory taking has occurred, there was minimal government interference with their reasonable investment-backed expectations, and the character of the government action was relatively unobtrusive. The Defendant therefore has not violated the takings clause of the fifth amendment. The Plaintiffs' motion for summary judgment is denied, and the Defendant's motion for summary judgment is granted. The Plaintiffs' motion to certify conditional sub-classes is denied as moot. The Court will issue an order in accordance with the Memorandum Opinion. A full-text copy of the Court's April 28, 2023 Memorandum Opinion is available at https://rb.gy/3gxqm from Leagle.com. Noah A. Messing -- nm@messingspector.com -- Messing & Spector LLP, New York, NY, for the Plaintiffs, with Phillip M. Spector and Jason H. Kim, of counsel. Geoffrey M. Long, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for the Defendant. UNIVERSITY MEDICAL: Whittum Suit Remanded to Clark Cty. State Court ------------------------------------------------------------------- In the lawsuit titled LEISA WHITTUM, et al., Plaintiffs v. UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, Defendant, Case No. 2:21-cv-01777-MMD-EJY (D. Nev.), Chief District Judge Miranda M. Du of the U.S. District Court for the District of Nevada grants the Plaintiffs' renewed motion to remand to state court. Plaintiffs Leisa Whittum, Nicole Kilburn, and Sara Sanguinetti sued Defendant University Medical Center of Southern Nevada ("UMC") for injuries stemming from a data breach of UMC's systems in June 2021. Before the Court are the Plaintiffs' renewed motion to remand under the local controversy and interest of justice exceptions of the Class Action Fairness Act ("CAFA"), and motion to compel. The Plaintiffs filed the renewed motion after completion of limited jurisdictional discovery for class citizenship. The Court finds that remand is proper under both CAFA exceptions and will grant the renewed motion to remand and deny the motion to compel. The Court rejects UMC's arguments as to class size and standing because the Plaintiffs are relying on UMC's own data to formulate their proposed class, and the Plaintiffs suffered concrete, separate injuries from the risk of future harm that are sufficient for standing. The Court finds, among other things, that the 218,013 notices to minors should be considered for citizenship. When considered, only 27% of addresses are unreliable or from out-of-state, and 73% of addresses were mailed to individuals in Nevada, which exceeds the two-thirds threshold for mandatory remand. These figures are derived from the approximately 1,304,594 total individuals that UMC mailed data breach notification letters to. The Court next grants remand under CAFA's local controversy exception because the Plaintiffs have demonstrated that greater than two-thirds of proposed class members are Nevada citizens. Alternatively, the Court finds that discretionary remand is appropriate because more than one-third of proposed class members are Nevada citizens, and the interests of justice warrant remand. Finally, the Court denies the Plaintiffs' request for attorney's fees and costs because the Plaintiffs have not met the stringent standard for attorney's fees and have failed to comply with local rules. The Court notes that the parties made several arguments and cited to several cases not discussed here. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court. Judge Du, therefore, rules that the Plaintiffs': (i) renewed motion to remand to state court is granted; (ii) motion to compel is denied; and (iii) request for attorney's fees and costs is denied. The case is remanded to Clark County. The Clerk of Court is directed to close this case. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/mvuavuxp from Leagle.com. USA HOMECARE: Fails to Pay Overtime Wages, Rogers Suit Alleges -------------------------------------------------------------- LYDIA ROGERS, individually and for others similarly situated v. USA HOMECARE PLUS, LLC, Case No. 1:23-cv-02635 (N.D. Ill., April 26, 2023) arises from the Defendant's violation of the Fair Labor Standards Act and the Illinois Minimum Wage Law. Ms. Rogers worked for USA Homecare as a home health caregiver in Illinois from approximately May 2021 until September 2021. Throughout her employment, USA Homecare paid Rogers a flat rate for each day she worked, regardless of the total hours she worked in a day or week. Accordingly, USA Homecare violated the FLSA and the IMWL by depriving Rogers and the home health workers of overtime pay when they worked more than 40 hours in a workweek, says the Plaintiff. USA Homecare is a domestic limited liability company that maintains its headquarters in Monee, Illinois. It provides 24-hour in-home healthcare services to seniors, individuals with disabilities, veterans, and individuals recuperating from hospital stays throughout Illinois. [BN] The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. WERMAN SALAS P.C. 77 W. Washington St., Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com - and - Michael A. Josephson, Esq. Andrew W.Dunlap, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 E-mail: rburch@brucknerburch.com - and - William C. (Clif) Alexander, Esq. Austin W. Anderson, Esq. ANDERSON ALEXANDER PLLC 101 N. Shorelines Blvd., Suite 610 Corpus Christi, TX 78401 Telephone: (361) 452-1729 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com WEBSTER BANK: Nelson Files Suit in M.D. Tennessee ------------------------------------------------- A class action lawsuit has been filed against Webster Inc. The case is styled as Jess Nelson, individually and on behalf of all others similarly situated v. WEBSTER BANK, NA, Case No. FST-CV23-6061080-S (Conn. Cir. Ct., Stamford-Norwalk Cty., April 27, 2023). The case type is stated as All Other Contracts. Webster -- https://public.websteronline.com/ -- provides fast and easy banking with better checking and savings, smarter financing, and more ways to help you build your nest egg.[BN] The Plaintiff is represented by: Laurie Rubinow, Esq. MILLER SHAH LLP 65 Main Street Chester, CT 06412 Phone: (866) 540-5505 Email: lrubinow@millershah.com - and - James C. Shah, Esq. Natalie Finkelman Bennett, Esq. MILLER SHAH LLP 1845 Walnut Street, Suite 806 Philadelphia, PA 19103 Phone: (866) 540-5505 Email: jcshah@millershah.com nfinkelman@millershah.com - and - Jonathan Shub, Esq. Benjamin F. Johns, Esq. Samantha E. Holbrook, Esq. SHUB & JOHNS LLC Four Tower Bridge 200 Barr Harbor Drive, Suite 400 Conshohocken, PA 19428 Phone: (610) 477-8380 Email: jshub@shublawyers.com bjohns@shublawyers.com sholbrook@shublawyers.com WEXFORD HEALTH: Court Denies Bid to Reconsider in Wiley v. Young ---------------------------------------------------------------- In the lawsuit captioned KEYANA WILEY, Plaintiff v. JUSTIN YOUNG, M.D., et al., Defendants, Case No. 21-cv-599-JPG-RJD (S.D. Ill.), Judge Reona J. Daly of the U.S. District Court for the Southern District of Illinois denies the Plaintiff's Motion to Reconsider and for Clarification of the Court's order on the Plaintiff's Motion to Compel. The Plaintiff alleges that the Defendants were deliberately indifferent to Omar McCullough's gastrointestinal symptoms and complaints at Pinckneyville Correctional Center, where he was incarcerated from 2016 and 2019. Mr. McCullough was diagnosed with intestinal cancer in 2019. The Defendants are individual practitioners employed by Wexford Health Sources, Inc., a company that contracts with the Illinois Department of Corrections to provide medical care to inmates. Wexford is also a defendant in this case, and was a defendant in a class action case in the Northern District of Illinois, Lippert v. Ghosh, et al. The Lippert Court appointed an expert to investigate whether IDOC was "providing health care service to the offenders in its custody that meet the minimum constitutional standard of adequacy," Lippert v. Ghosh, et al., Case No. 10-cv-4603, Doc. 244 (N.D. Ill. Dec. 19, 2013). Over the course of the litigation, two reports were prepared and subsequently made available to the public. In this case, the Plaintiff's Motion to Compel asked the Court to order the Defendants to respond to 14 Requests for Production regarding the Lippert reports. The Plaintiff's requests were so overly broad that even to the extent some relevant information was responsive to the requests, it would be impossible for Wexford to respond in any meaningful fashion, Judge Daly notes. At the hearing on Plaintiff's Motion to Compel, counsel for Wexford explained that creating a privilege log in response to these requests would be an impossible task because the Lippert reports were made during litigation and have been the subject of multiple discovery and evidentiary disputes in subsequent cases over the last nine years. Wexford has many, many documents authored by its attorneys regarding the issues discussed in the Lippert reports. Regarding communications between Wexford and its attorneys, the Plaintiff's counsel said that he was "not interested in that." The Plaintiff's counsel also informed the Court that the parties had not engaged in meaningful meet and confer sessions regarding the issues and objections to the Plaintiff's Lippert report requests. Instead of just denying the Plaintiff's Motion to Compel (having noted that the parties had made little, if any, progress on discovery in the Plaintiff's claim against Wexford), Judge Daly narrowed the Plaintiff's requests, ordering Wexford to produce "all documents and/or communications that memorialize or discuss Wexford's efforts (if any) prior to July 1, 2019 to address the deficiencies in the Lippert reports regarding the untimely diagnoses of cancer and other life-threatening conditions for IDOC inmates." However, to expedite the production and review of these documents, Judge Daly ordered that Wexford did not have to create entries on its privilege log for clearly privileged communications, e.g., "communications between outside counsel (meaning, attorneys that work at law firms retained by Wexford) and Wexford that 'memorialize or discuss Wexford's efforts (if any) prior to July 1, 2019 to address the deficiencies in the Lippert reports regarding the untimely diagnoses of cancer and other life-threatening conditions for IDOC inmates." Three days after the Court entered the Order on the Motion to Compel, the Plaintiff filed the instant motion, requesting the Court "reconsider the application of its order that Wexford need not create a privilege log for any responsive communications or other in which Wexford's outside counsel is copied." "This non-sensical request grossly exaggerates the Court's Order," Judge Daly says. "An otherwise non-privileged e-mail does not become privileged simply because an attorney is 'copied' on the e-mail." Wexford must produce that document, not withhold it as privileged, and therefore, the question of it being placed on a privilege log is irrelevant, Judge Daly points out. The Plaintiff then argues that because Judge Daly narrowed the requests for documents related to the Lippert reports, then perhaps it is no longer unduly burdensome for defense counsel to log communications between Wexford and its outside counsel regarding other litigation that are responsive to Judge Daly's Order because it is possible that Wexford does not possess many records responsive to the Order. The Court acknowledges that it is possible Wexford has few documents responsive to Judge Daly's Order. It is also possible other cases involving "cancer and other life-threatening conditions" have been filed against Wexford in which documentation discussing Lippert was requested, produced, and/or the subject of motion practice, and therefore, it is possible there are hundreds of clearly privileged e-mails between Wexford and its outside attorneys discussing, e.g., discovery requests, the subjects of corporate representative depositions, or dispositive motion arguments. The Court recalls the Plaintiff's counsel saying he was "not interested in that." When parties do not engage in meaningful meet and confer sessions prior to filing motions to compel, the Court deals in endless possibilities and must use its best judgment in determining what to compel a party to produce. Requiring defense counsel in this case to log hundreds of e-mails from other cases that are clearly attorney client privileged (written by Wexford to its outside counsel OR written by outside counsel to Wexford) regarding, inter alia, discovery responses would, at this point, only cause further delay, Judge Daly holds. Regardless, when the Plaintiff filed her Motion to Reconsider, she had no more information to present to the Court than she had when she filed her Motion to Compel, which was very little, Judge Daly notes. Until defense counsel starts searching for and producing Lippert report documents (or providing responses that say there are none), neither the parties nor the Court can make decisions about additional written discovery needed from Wexford (if any) to advance this case. Accordingly, the Plaintiff's Motion to Reconsider is denied. The Plaintiff also asks the Court to clarify one aspect of the Order on the Motion to Compel. In the Motion to Compel, the Plaintiff claimed that Wexford refused to produce any materials created prior to June 16, 2017 (the statute of limitations for the Plaintiff's state law claims). That objection was not clearly made in the Defendant's objections to the Requests for Production, though Wexford did repeatedly state within its objections that the Plaintiff's requests should be "sufficiently limited to the scope or time of the allegations in the Complaint." In Wexford's response to Plaintiff's Motion to Compel, Wexford did not argue that discovery should be limited to documents produced after June 16, 2017. The Court ordered Wexford to produce several categories of materials, some of which by their very definition include materials dated prior to June 16, 2017 (e.g., "documents that refer to Wexford's unwritten customs and practices since Jan. 1, 2014, but before July 1, 2019). The Plaintiff now asks the Court to clarify whether it sustained the Defendant's objection to documents predating June 16, 2017. In its Response to the Plaintiff's Motion, Wexford explains that the Court's Order clearly did not limit its discovery production to documents postdating June 16, 2017. Nevertheless, Judge Daly says, to the extent necessary to clarify, the Court's Order on the Plaintiff's Motion to Compel should not be read in such a way to limit Wexford's discovery production to documents postdating June 16, 2017. A full-text copy of the Court's Order dated April 17, 2023, is available at https://tinyurl.com/5x7aary4 from Leagle.com. WILLIAMS ALEXANDER: Bateman Files FDCPA Suit in D. New Jersey ------------------------------------------------------------- A class action lawsuit has been filed against Williams Alexander & Associates, Inc. The case is styled as Yocheved Bateman, individually and on behalf of all others similarly situated v. Williams Alexander & Associates, Inc., Case No. 2:23-cv-02368 (D.N.J., April 28, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Williams Alexander & Associates, Inc. -- https://www.williamsalexander.com/ -- handle commercial, consumer and private debts with a personalized service usually missing with other collection companies.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com WISDOMTREE INC: Faces Franchi Suit Over Poison Pill Provisions -------------------------------------------------------------- ANTHONY FRANCHI, individually and on behalf of all others similarly situated, Plaintiff v. JONATHAN STEINBERG; HAROLD SINGLETON III; FRANK SALERNO; WIN NEUGER; DANIELA MIELKE; SMITA CONJEEVARAM; ANTHONY BOSSOME; DEBORAH A. FUHR; LYNN S. BLAKE; and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, Defendants, and WISDOMTREE, INC., Nominal Defendant, Case No. 2023-0486 (Del. Ch., May 2, 2023) is an action for breaches of fiduciary duty of the Defendants in connection with their adoption of a poison pill or stockholder rights agreement, dated March 17, 2023 (the "Pill"). According to the complaint, in response to a proxy contest led by the Company's largest stockholder, ETF Securities ("ETFS"), the Defendants adopted the Pill, a stockholder rights plan with a 10% trigger. By its terms, the Pill will expire unless approved by a stockholder vote at the Company's upcoming annual meeting (the "Ratification Proposal"). The Defendants' proxy materials assure public stockholders that "the Board has determined to request stockholder ratification" of the Pill "as a matter of good corporate governance." The 2022 Standstill Provisions expired by their terms one week later on March 17, 2023. That same day, the Board unanimously approved and the Company adopted the new stockholder rights plan, the Pill, which is the subject of Plaintiff's challenge. On April 19, 2023, the Company filed its preliminary proxy statement (the "Company Proxy") in connection with its yet-to-be-scheduled annual meeting. Proposal 4 asks stockholders to ratify the Board's adoption of the Pill and states that if stockholders do not ratify the Pill, it will expire at the close of business on the day after the annual meeting (the "Ratification Proposal"). On April 24, 2023, ETFS filed a preliminary proxy statement (the "ETFS Proxy") stating that it was nominating three directors: Bruce E. Aust, Tonia Pankopf, and Graham Tuckwell and would be voting against the Ratification Proposal, says the suit. By its terms, the Pill is triggered—causing massive dilution to the triggering stockholders—if a stockholder becomes the "Beneficial Owner" of more than 10% of the Company's outstanding shares. In turn, a stockholder is deemed the "Beneficial Owner" of all shares beneficially owned by any other person with whom the stockholder "has any agreement, arrangement or understanding (whether or not in writing) (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy or consent as described in clause (B) of Section 1(d)(ii) hereof) or disposing of any securities of the Company." Read together, these provisions mean that the Pill would be triggered if any stockholders collectively owning more than 10% of the Company's stock entered into any agreement, arrangement, or understanding ("AAU") concerning voting on the Ratification Proposal itself. Thus, ETFS is effectively prohibited from entering into any AAU with any other stockholder concerning voting on the Ratification Proposal itself, the suit further contends. WISDOMTREE, INC. operates as an asset management firm. The Company offers sponsors exchange-traded funds and other financial products to retail and institutional investors, as well as develops digital products and structures, including digital funds, tokenized assets, and blockchain-native digital wallet. [BN] The Plaintiff is represented by: Kimberly A. Evans, Esq. Robert Erikson, Esq. BLOCK & LEVITON LLP 3801 Kennett Pike, Suite C-305 Wilmington, DE 19807 Telephone: (302) 499-3600 - and - Joel Fleming, Esq. Lauren Godles Milgroom, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Telephone: (617) 398-5600 - and - Jeremy Friedman, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 Asbestos Litigation ASBESTOS UPDATE: 3M Co. Defends 4,152 Individual Claims ------------------------------------------------------- 3M Company, as of March 31, 2023, is a named defendant, with multiple co-defendants, in numerous lawsuits in various courts that purport to represent approximately 4,152 individual claimants, compared to approximately 4,028 individual claimants with actions pending December 31, 2022, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. 3M states, "The vast majority of the lawsuits and claims resolved by and currently pending against the Company allege use of some of the Company's mask and respirator products and seek damages from the Company and other defendants for alleged personal injury from workplace exposures to asbestos, silica, coal mine dust or other occupational dusts found in products manufactured by other defendants or generally in the workplace. A minority of the lawsuits and claims resolved by and currently pending against the Company generally allege personal injury from occupational exposure to asbestos from products previously manufactured by the Company, which are often unspecified, as well as products manufactured by other defendants, or occasionally at Company premises. "The Company's current volume of new and pending matters is substantially lower than it experienced at the peak of filings in 2003. The Company expects that filing of claims in the future will continue to be at much lower levels than in the past. Accordingly, the number of claims alleging more serious injuries, including mesothelioma, other malignancies, and black lung disease, will represent a greater percentage of total claims than in the past. Over the past twenty plus years, the Company has prevailed in fifteen of the sixteen cases tried to a jury (including the lawsuits in 2018 described below). In 2018, 3M received a jury verdict in its favor in two lawsuits – one in California state court in February and the other in Massachusetts state court in December – both involving allegations that 3M respirators were defective and failed to protect the plaintiffs against asbestos fibers. In April 2018, a jury in state court in Kentucky found 3M's 8710 respirators failed to protect two coal miners from coal mine dust and awarded compensatory damages of approximately $2 million and punitive damages totaling $63 million. In August 2018, the trial court entered judgment and the Company appealed. In 2019, the Company settled a substantial majority of the then-pending coal mine dust lawsuits in Kentucky and West Virginia for $340 million, including the jury verdict in April 2018 in the Kentucky case mentioned above, and the appeal was dismissed. In October 2020, 3M defended a respirator case before a jury in King County, Washington, involving a former shipyard worker who alleged 3M's 8710 respirator was defective and that 3M acted negligently in failing to protect him against asbestos fibers. The jury delivered a complete defense verdict in favor of 3M, concluding that the 8710 respirator was not defective in design or warnings and any conduct by 3M was not a cause of plaintiff's mesothelioma. The plaintiff appealed the verdict. In May 2022, the First Division intermediate appellate court in Washington affirmed in part and reversed in part 3M's trial victory, concluding that the trial court misapplied Washington law in instructing the jury about factual causation. The Washington Supreme Court declined to review the matter. "The Company has demonstrated in these past trial proceedings that its respiratory protection products are effective as claimed when used in the intended manner and in the intended circumstances. Consequently, the Company believes that claimants are unable to establish that their medical conditions, even if significant, are attributable to the Company's respiratory protection products. Nonetheless, the Company's litigation experience indicates that claims of persons alleging more serious injuries, including mesothelioma, other malignancies, and black lung disease, are costlier to resolve than the claims of unimpaired persons, and it therefore believes the average cost of resolving pending and future claims on a per-claim basis will continue to be higher than it experienced in prior periods when the vast majority of claims were asserted by medically unimpaired claimants. Since the second half of 2020, the Company has experienced an increase in the number of cases filed that allege injuries from exposures to coal mine dust; that increase represents the substantial majority of the growth in case numbers referred to above. The rate of coal mine dust-related case filings decelerated in 2022 and has continued to decelerate in 2023. 3M moved two cases involving over 400 plaintiffs to federal court based on, among others, the Class Action Fairness Act. The federal district court remanded the cases to state court. In March 2023, the Sixth Circuit Court of Appeals granted 3M's petition to review the remand order, and in April 2023 reversed the district court's remand order; accordingly, those cases will remain in federal court." A full-text copy of the Form 10-Q is available at https://bit.ly/3nT359Z ASBESTOS UPDATE: Albany Int'l. Faces 3,597 PI Claims at March 31 ---------------------------------------------------------------- Albany International Corp. is a defendant in suits brought in various courts in the United States by plaintiffs who allege that they have suffered personal injury as a result of exposure to asbestos-containing paper machine clothing synthetic dryer fabrics marketed during the period from 1967 to 1976 and used in certain paper mills, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "We were defending 3,597 claims as of March 31, 2023. "We anticipate that additional claims will be filed against the Company and related companies in the future but are unable to predict the number and timing of such future claims. Due to the fact that information sufficient to meaningfully estimate a range of possible loss of a particular claim is typically not available until late in the discovery process, we do not believe a meaningful estimate can be made regarding the range of possible loss with respect to pending or future claims and therefore are unable to estimate a range of reasonably possible loss in excess of amounts already accrued for pending or future claims. "While we believe we have meritorious defenses to these claims, we have settled certain claims for amounts we consider reasonable given the facts and circumstances of each case. Our insurance carrier has defended each case and funded settlements under a standard reservation of rights. As of March 31, 2023, we had resolved, by means of settlement or dismissal, 38,028 claims. The total cost of resolving all claims was $10.6 million. Of this amount, almost 100% was paid by our insurance carrier, who has confirmed that we have approximately $140 million of remaining coverage under primary and excess policies that should be available with respect to current and future asbestos claims. The Company's subsidiary, Brandon Drying Fabrics, Inc. ("Brandon"), is also a separate defendant in many of the asbestos cases in which Albany is named as a defendant, despite never having manufactured any fabrics containing asbestos. While Brandon was defending against 7,709 claims as of March 31, 2023, only twelve claims have been filed against Brandon since January 1, 2012, and only $15,000 in settlement costs have been incurred since 2001. Brandon was acquired by the Company in 1999 and has its own insurance policies covering periods prior to 1999. Since 2004, Brandon's insurance carriers have covered 100% of indemnification and defense costs, subject to policy limits and a standard reservation of rights. "In some of these asbestos cases, the Company is named both as a direct defendant and as the "successor in interest" to Mount Vernon Mills ("Mount Vernon"). We acquired certain assets from Mount Vernon in 1993. Certain plaintiffs allege injury caused by asbestos-containing products alleged to have been sold by Mount Vernon many years prior to this acquisition. Mount Vernon is contractually obligated to indemnify the Company against any liability arising out of such products. We deny any liability for products sold by Mount Vernon prior to the acquisition of the Mount Vernon assets. Pursuant to its contractual indemnification obligations, Mount Vernon has assumed the defense of these claims. On this basis, we have successfully moved for dismissal in a number of actions." A full-text copy of the Form 10-Q is available at https://bit.ly/3MfrEaz ASBESTOS UPDATE: Carlisle Cos. Defends Numerous Exposure Lawsuits ----------------------------------------------------------------- Carlisle Companies Incorporated, over the years, has been named as a defendant, along with numerous other defendants, in lawsuits in various courts in which plaintiffs have alleged injury due to exposure to asbestos-containing friction products produced and sold predominantly by the Company's discontinued Motion Control business between the late-1940s and the mid-1980s and roofing products produced and sold by Henry Company LLC, which the Company acquired on September 1, 2021, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company has been subject to liabilities for indemnity and defense costs associated with these lawsuits. The Company has recorded a liability for estimated indemnity costs associated with pending and future asbestos claims. As of March 31, 2023, the Company believes that its accrual for these costs is not material to the Company's financial position, results of operations, or operating cash flows. The Company recognizes expenses for defense costs associated with asbestos claims during the periods in which they are incurred. The Company currently maintains insurance coverage and is the beneficiary of other arrangements that provide coverage for asbestos-related claims and associated defense costs. The Company records the insurance coverage as a long-term receivable in an amount it reasonably estimates is probable of recovery for pending and future asbestos-related indemnity claims. Since the Company's insurance policies and other arrangements contain various coverage exclusions, limits of coverage, cost-sharing obligations and self-insured retentions and may be subject to insurance coverage disputes, the Company may recognize expenses for indemnity and defense costs in particular periods if and when it becomes probable that such costs will not be covered by insurance. A full-text copy of the Form 10-Q is available at https://bit.ly/3pqRC1V ASBESTOS UPDATE: CenterPoint Energy Still Faces Exposure Lawsuits ----------------------------------------------------------------- CenterPoint Energy Resources Corp., from time to time, named, along with numerous others, as defendants in lawsuits filed by a number of individuals who claim injury due to exposure to asbestos, and anticipates that additional claims may be asserted in the future, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. Although their ultimate outcome cannot be predicted at this time, the Registrants do not expect these matters, either individually or in the aggregate, to have a material adverse effect on their financial condition, results of operations or cash flows. A full-text copy of the Form 10-Q is available at https://bit.ly/42qzNi5 ASBESTOS UPDATE: Chemours Has 900 Pending PI Lawsuits at March 31 ----------------------------------------------------------------- The Chemours Company, at March 31, 2023 and December 31, 2022, had approximately 900 lawsuits pending against former parent company E. I. du Pont de Nemours (EID) alleging personal injury from exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "In the Separation, EID assigned its asbestos docket to Chemours. These cases are pending in state and federal court in numerous jurisdictions in the U.S. and are individually set for trial. A small number of cases are pending outside of the U.S. Most of the actions were brought by contractors who worked at sites between the 1950s and the 1990s. A small number of cases involve similar allegations by EID employees or household members of contractors or EID employees. Finally, certain lawsuits allege personal injury as a result of exposure to EID products. "At March 31, 2023 and December 31, 2022, Chemours had accruals of $35 related to these matters." A full-text copy of the Form 10-Q is available at https://bit.ly/42qEfgP ASBESTOS UPDATE: Colgate-Palmolive Faces 248 Cases as of March 31 ----------------------------------------------------------------- Colgate-Palmolive Company, as of March 31, 2023, has reported 248 individual cases pending in state and federal courts throughout the United States, as compared to 227 cases as of December 31, 2022, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. During the three months ended March 31, 2023, 46 new cases were filed and 25 cases were resolved by voluntary dismissal, settlement or dismissal by the court. The Company has been named as a defendant in civil actions alleging that certain talcum powder products that were sold prior to 1996 were contaminated with asbestos and/or caused mesothelioma and other cancers. Many of these actions involve a number of co-defendants from a variety of different industries, including suppliers of asbestos and manufacturers of products that, unlike the Company's products, were designed to contain asbestos. In the three months ended December 31, 2022, the Company lost an appeal in one case that, in the second quarter of 2019, had resulted in an adverse jury verdict after a trial, and accrued an immaterial amount for this loss. During the three months ended March 31, 2023, the Company filed a petition with the California Supreme Court seeking to further appeal the decision. On April 12, 2023, the California Supreme Court denied the Company's petition for review. The Company is assessing its options, including seeking further review by the United States Supreme Court. A significant portion of the Company's costs incurred in defending and resolving these claims has been, and the Company believes that a portion of the costs will continue to be, covered by insurance policies issued by several primary, excess and umbrella insurance carriers, subject to deductibles, exclusions, retentions, policy limits and insurance carrier insolvencies. A full-text copy of the Form 10-Q is available at https://bit.ly/3BbHjkT ASBESTOS UPDATE: Crown Holdings Paid $4MM to Settle Claims ---------------------------------------------------------- Crown Holdings, Inc.'s subsidiary, Crown Cork & Seal Company, Inc. ("Crown Cork"), is one of many defendants in a substantial number of lawsuits filed throughout the U.S. by persons alleging bodily injury as a result of exposure to asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. Crown Holdings states, "During the three months ended March 31, 2023, the Company paid $4 million to settle asbestos claims and pay related legal and defense costs. "As of March 31, 2023, the Company's accrual for pending and future asbestos-related claims and related legal costs was $216 million, including $172 million for unasserted claims. The Company determines its accrual without limitation to a specific time period. "It is reasonably possible that the actual loss could be in excess of the Company's accrual. However, the Company is unable to estimate the reasonably possible loss in excess of its accrual due to uncertainty in the following assumptions that underlie the Company's accrual and the possibility of losses in excess of such accrual: the amount of damages sought by the claimant (which was not specified for approximately 82% of the claims outstanding at the end of 2022), the Company and claimant's willingness to negotiate a settlement, the terms of settlements of other defendants with asbestos-related liabilities, the bankruptcy filings of other defendants (which may result in additional claims and higher settlements for non-bankrupt defendants), the nature of pending and future claims (including the seriousness of alleged disease, whether claimants allege first exposure to asbestos before or during 1964 and the claimant's ability to demonstrate the alleged link to Crown Cork), the volatility of the litigation environment, the defense strategies available to the Company, the level of future claims, the rate of receipt of claims, the jurisdiction in which claims are filed, and the effect of state asbestos legislation (including the validity and applicability of the Pennsylvania legislation to non-Pennsylvania jurisdictions, where the substantial majority of the Company’s asbestos cases are filed)." A full-text copy of the Form 10-Q is available at https://bit.ly/3Ml1YJX ASBESTOS UPDATE: Curtis Sues Janssen Over Asbestos-Related Injury ----------------------------------------------------------------- LaDonna Lea Selby Curtis and Mark Patrick Selby, individually and as Executors of the Estate of Joseph Patrick Selby, Deceased, Plaintiffs v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002310-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Joseph Patrick Selby was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. Decedent Selby died on August 28, 2020, and leaves surviving heirs who sustained pecuniary loss resulting from his death. Allegedly, Mr. Selby was regularly and frequently exposed to asbestos from his use of asbestos-contaminated Johnson & Johnson Baby Powder on himself when he played tennis from approximately 1979 to approximately 2000. The Decedent was also regularly and frequently exposed to asbestos when he used asbestos-contaminated Johnson & Johnson Baby Powder on his grandchildren in the 1990s, the suit alleges. The Plaintiffs bring this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiffs are represented by: Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: D'Arinzo Sues Janssen Over Asbestos-Related Injury ------------------------------------------------------------------- PASQUALE J. D'ARINZO, JR., individually and as Administrator of the Estate of SUZANNE E. D'ARINZO, deceased, Plaintiff v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002313-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Suzanne E. D'Arinzo was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. The Decendent died on February 15, 2021 and leaves surviving heirs who sustained pecuniary loss resulting from her death. Beginning in the 1970s and continuing for at least a decade, Suzanne D'Arinzo was frequently and regularly exposed to asbestos from using asbestos-contaminated Johnson & Johnson Baby Powder on her person, in her shoes, and on her children. The Decedent suffered severe, permanent and disabling personal injury; expended and was caused to expend sums of money for medical care and treatment; was prevented from pursuing normal activities and employment; experienced severe pain and suffering and mental anguish; was deprived of ordinary pursuits and enjoyments of life. Moreover, the Decedent's heirs and/or survivors suffered loss of advice, guidance, counsel, consortium, companionship, services, society and support, says the suit. The Plaintiff brings this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiff is represented by: Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: Graff Sues Janssen Over Asbestos-Related Injury ---------------------------------------------------------------- DAVID GRAFF, individually and as Proposed Administrator of the Estate of ALICIA K. THOMAN, Deceased, Plaintiff v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002317-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Alicia K. Thoman was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. Decedent Thoman died on November 9, 2022, and leaves surviving heirs who sustained pecuniary loss resulting from her death. Allegedly, from approximately 1997 to approximately 2000, Decedent Thoman, was regularly and frequently exposed to asbestos from her personal usage of asbestos-contaminated Johnson & Johnson Baby Powder and Shower to Shower powder at night on a regular basis for personal hygiene. Additionally, upon information and belief, from approximately 1985 to approximately 1988, Ms. Thoman was regularly and frequently exposed to asbestos when her mother applied asbestos-contaminated Johnson & Johnson Baby Powder on her during diaper changes and after baths, the suit asserts. The Plaintiff brings this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiff is represented by: Matthew A. Grubman, Esq. Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: Hartford Financial Still Receives A&E Claims ------------------------------------------------------------- The Hartford Financial Services Group, Inc., continues to receive asbestos and environmental ("A&E") claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. Hartford Financial states, "Asbestos claims relate primarily to bodily injuries asserted by people who came in contact with asbestos or products containing asbestos. Environmental claims relate primarily to pollution and related clean-up costs. "The vast majority of the Company's exposure to A&E relates to accident years prior to 1986 that are reported in Property & Casualty Other Operations ("Run-off A&E"). In addition, since 1986, the Company has written asbestos and environmental exposures under general liability policies and pollution liability under homeowners policies, which are reported in the Commercial Lines and Personal Lines segments, respectively. F"or its Run-off A&E claims, as of March 31, 2023, the Company reported $359 of net asbestos and environmental reserves, including the benefit of losses ceded to an A&E adverse development cover ("ADC") with National Indemnity Company, a subsidiary of Berkshire Hathaway ("NICO") (collectively the "A&E ADC"). In addition, the Company has recorded a $594 deferred gain within other liabilities for losses economically ceded to NICO but for which the benefit is not recognized in earnings until later periods. While the Company believes that its current Run-off A&E reserves are appropriate, significant uncertainties limit our ability to estimate the ultimate reserves necessary for unpaid losses and related expenses. The ultimate liabilities, thus, could exceed the currently recorded reserves, and any such additional liability, while not reasonably estimable now, could be material to The Hartford's consolidated operating results or liquidity. "The Company's A&E ADC reinsurance agreement reinsures substantially all A&E reserve development for 2016 and prior accident years, including Run-off A&E and A&E reserves included in Commercial Lines and Personal Lines. The A&E ADC has a coverage limit of $1.5 billion above the Company's existing net A&E reserves as of December 31, 2016 of approximately $1.7 billion. As of March 31, 2023, the Company has incurred $1,244 in cumulative adverse development on A&E reserves that have been ceded under the A&E ADC treaty, leaving $256 of coverage available for future adverse net reserve development, if any. Cumulative adverse development of A&E claims for accident years 2016 and prior could ultimately exceed the $1.5 billion treaty limit in which case any adverse development in excess of the treaty limit would be absorbed as a charge to earnings by the Company. In these scenarios, the effect of these charges could be material to the Company's consolidated operating results or liquidity." A full-text copy of the Form 10-Q is available at https://bit.ly/3BcUlPa ASBESTOS UPDATE: Honeywell Defends Personal Injury Claims --------------------------------------------------------- Honeywell International Inc. is named in asbestos-related personal injury claims related to North American Refractories Company (NARCO), which was sold in 1986, and the Bendix Friction Materials business, which was sold in 2014, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. On November 18, 2022, Honeywell entered into a definitive agreement with the Trust and certain other parties, which was subsequently amended on November 20, 2022 (Amended Buyout Agreement). Pursuant to the terms of the Amended Buyout Agreement, Honeywell agreed to make a one-time, lump sum payment in the amount of $1.325 billion to the Trust (Buyout Amount), subject to certain deductions as described in the Amended Buyout Agreement and in exchange for the release by the Trust of Honeywell from all further and future obligations of any kind related to the Trust and/or any claimants who were exposed to asbestos-containing products manufactured, sold, or distributed by NARCO or its predecessors (the Honeywell Obligations) (the NARCO Buyout). In accordance with the Amended Buyout Agreement, the economic rights of the Trust in respect of the net proceeds from the HWI Sale (as defined in Note 11 Fair Value Measurements) inure to the benefit of Honeywell. It is not possible to predict whether resolution values for Bendix-related asbestos claims will increase, decrease, or stabilize in the future. A full-text copy of the Form 10-Q is available at https://bit.ly/3VVQn71 ASBESTOS UPDATE: IDEX Corp. Faces Product Liability Lawsuits ------------------------------------------------------------ IDEX Corporation and six of its subsidiaries are presently named as defendants in a number of lawsuits claiming various asbestos-related personal injuries, allegedly as a result of exposure to products manufactured with components that contained asbestos, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. IDEX Corp. states, "These components were acquired from third party suppliers and were not manufactured by the Company or any of the defendant subsidiaries. To date, the majority of the Company's settlements and legal costs, except for costs of coordination, administration, insurance investigation and a portion of defense costs, have been covered in full by insurance, subject to applicable deductibles. However, the Company cannot predict whether and to what extent insurance will be available to continue to cover these settlements and legal costs, or how insurers may respond to claims that are tendered to them. Asbestos-related claims have been filed in jurisdictions throughout the United States and the United Kingdom. Most of the claims resolved to date have been dismissed without payment. The balance of the claims have been settled for various immaterial amounts. Only one case has been tried, resulting in a verdict for the Company's business unit. No provision has been made in the financial statements of the Company, other than for insurance deductibles in the ordinary course, and the Company does not currently believe the asbestos-related claims will have a material adverse effect on the Company's business, financial position, results of operations or cash flows." A full-text copy of the Form 10-Q is available at https://bit.ly/42pDZic ASBESTOS UPDATE: International Paper Records $107MM in Claims ------------------------------------------------------------- International Paper Company has been named as a defendant in various asbestos-related personal injury litigation, in both state and federal court, primarily in relation to the prior operations of certain companies previously acquired by the Company, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company's total recorded liability with respect to pending and future asbestos-related claims was $107 million, net of estimated insurance recoveries and $105 million, net of estimated insurance recoveries as of March 31, 2023 and December 31, 2022, respectively. While it is reasonably possible that the Company may incur losses in excess of its recorded liability with respect to asbestos-related matters, we are unable to estimate any loss or range of loss in excess of such liability, and do not believe additional material losses are probable. A full-text copy of the Form 10-Q is available at https://bit.ly/3MdNA5P ASBESTOS UPDATE: Lincoln Electric Has 1,467 Pending Exposure Claims ------------------------------------------------------------------- Lincoln Electric Holdings, Inc., as of March 31, 2023, was a co-defendant in cases alleging asbestos induced illness involving claims by approximately 1,467 plaintiffs, which is a net decrease of 16 claims from those previously reported, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. Lincoln Electric states, "In each instance, the Company is one of a large number of defendants. The asbestos claimants seek compensatory and punitive damages, in most cases for unspecified sums. Since January 1, 1995, the Company has been a co-defendant in other similar cases that have been resolved as follows: 56,896 of those claims were dismissed, 23 were tried to defense verdicts, 7 were tried to plaintiff verdicts (which were reversed or resolved after appeal), 1 was resolved by agreement for an immaterial amount and 1,012 were decided in favor of the Company following summary judgment motions." A full-text copy of the Form 10-Q is available at https://bit.ly/41rnMYD ASBESTOS UPDATE: Minerals Technologies Has 460 Open Exposure Cases ------------------------------------------------------------------ Minerals Technologies Inc. and certain subsidiaries are among numerous defendants in a number of cases seeking damages for alleged exposure to asbestos-containing materials related to talc products sold by the its subsidiary, Barretts Minerals Inc, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "As of April 2, 2023, we had 460 open asbestos cases related to certain talc products previously sold by Barretts Minerals Inc., which is an increase in volume from previous years. These claims typically allege various theories of liability, including negligence, gross negligence and strict liability and seek compensatory and, in some cases, punitive damages, but most of these claims do not provide adequate information to assess their merits, the likelihood that the Company will be found liable, or the magnitude of such liability, if any. We are unable to state an amount or range of amounts claimed in any of these lawsuits because state court pleading practices do not require the plaintiff to identify the amount of the claimed damage. The Company's position, as stated publicly, is that the talc products sold by Barretts Minerals Inc. are safe and do not cause cancer. "The Company records accruals for loss contingencies associated with legal matters, including talc-related litigation, when it is probable that a liability will be incurred and the amount of the loss can be reasonably estimated. Amounts accrued for legal contingencies often result from a complex series of judgments about future events and uncertainties that rely heavily on estimates and assumptions including timing of related payments. The ability to make such estimates and judgments can be affected by various factors, including whether damages sought in the proceedings are unsubstantiated or indeterminate, the stage of the litigation, the factual and legal matters in dispute, the ability to achieve comprehensive settlements, the availability of co-defendants with substantial resources and assets participating in the litigation, and our evaluation of the unique attributes of each claim. "While costs relating to the defense of talc-related cases has increased concurrently with the volume, the majority of these costs have historically been borne by Pfizer Inc. pursuant to the terms of certain agreements entered into in connection with the Company's initial public offering in 1992. The Company is entitled to indemnification, pursuant to agreement, for liabilities related to sales prior to the initial public offering. The Company continues to receive information with respect to potential costs associated with the defense and/or settlement of talc-related cases not subject to indemnification from Pfizer Inc. Although the Company believes that the talc products are safe and that claims to the contrary are without merit, Barretts Minerals Inc. opportunistically settled certain talc-related cases in 2022 and 2023. As a result of these settlements and defense costs incurred to date, the Company reviewed its estimates of the probability and amount of losses in connection with its existing talc-related cases and recorded $31 million for litigation costs in the third quarter of 2022 to defend against, opportunistically settle, and establish a reserve for claims associated with certain talc products from Barretts Minerals Inc. "The broader litigation and regulatory environments for talc-related claims continue to evolve. Given this ongoing evolution, it is reasonably possible that the Company will incur a loss for liabilities associated with future talc claims in excess of the amount currently recognized. This risk is based on the potential for new talc-related claims that could eventually be filed against the Company together with their associated disposition cost and related legal costs, taking into account the portion of such hypothetical claims that may be subject to indemnification by Pfizer Inc. These factors are unknown and may vary depending upon, among other things, changes in the regulatory and litigation environments for talc-related claims. Accordingly, the Company is currently unable to provide an estimate or range of the magnitude of the Company’s potential loss related to future talc claims." A full-text copy of the Form 10-Q is available at https://bit.ly/42ESVbU ASBESTOS UPDATE: Otis Worldwide Has $21MM Estimated Liabilities --------------------------------------------------------------- Otis Worldwide Corporation has reported an estimated range of total liabilities to resolve all pending and unasserted potential future asbestos claims through 2059 of approximately $21 million to $43 million as of March 31, 2023 and December 31, 2022, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "As previously disclosed, we have been named as defendants in lawsuits alleging personal injury as a result of exposure to asbestos. While we have never manufactured any asbestos-containing component parts, and no longer incorporate asbestos in any current products, certain of our historical products have contained components manufactured by third parties incorporating asbestos. A substantial majority of these asbestos-related claims have been dismissed without payment or were covered in full or in part by insurance or other forms of indemnity. Additional cases were litigated and settled without any insurance reimbursement. The amounts involved in asbestos-related claims were not material individually or in the aggregate as of and for the periods ended March 31, 2023 and December 31, 2022." A full-text copy of the Form 10-Q is available at https://bit.ly/3ps8aGP ASBESTOS UPDATE: Pack Sues Janssen Over Asbestos-Related Injury --------------------------------------------------------------- CONNIE PACK, DENA ABLES AND CHASE DEAN, individually and as Co-Executors of the Estate of JOANN DEAN, Deceased, Plaintiffs v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002320-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Joann Dean was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. Decedent Dean died on August 2, 2020, and leaves surviving heirs who sustained pecuniary loss resulting from her death. Allegedly, Dean was regularly and frequently exposed to asbestos from her personal use of asbestos-contaminated Johnson & Johnson Baby Powder on her body from approximately the early 1970s until approximately 2019. Additionally, Decedent was regularly and frequently exposed to asbestos from her use of asbestos-contaminated Johnson & Johnson Baby Powder on her children and grandchildren during the 1960s, 1970s, the middle to late 1980s, and the early to middle 1990s. The Decedent's regular and frequent usage of asbestos-contaminated Johnson & Johnson Baby Powder generated dust and exposed Decedent to respirable asbestos fibers. As a direct and proximate result of the above exposures, Decedent developed mesothelioma, suffered extensively from mesothelioma, and ultimately passed away from mesothelioma, the suit alleges. The Plaintiffs bring this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiffs are represented by: Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: Rockwell Automation Faces Personal Injury Lawsuits ------------------------------------------------------------------- Rockwell Automation, Inc., including its subsidiaries, have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of its products many years ago, including products from divested businesses for which they have agreed to defend and indemnify claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Currently there are lawsuits that name us as defendants, together with hundreds of other companies. But in all cases, for those claimants who do show that they worked with our products or products of divested businesses for which we are responsible, we nevertheless believe we have meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition caused by our products. We defend those cases vigorously. Historically, we have been dismissed from the vast majority of these claims with no payment to claimants. "Additionally, we have maintained insurance coverage that includes indemnity and defense costs, over and above self-insured retentions, for many of these claims. We believe these arrangements will provide substantial coverage for future defense and indemnity costs for these asbestos claims for many years into the future. The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on our experience defending asbestos claims, we do not believe these lawsuits will have a material effect on our business, financial condition, or results of operations." A full-text copy of the Form 10-Q is available at https://bit.ly/41oM0T6 ASBESTOS UPDATE: Rogers Corp. Has 594 PI Claims as of March 31 -------------------------------------------------------------- Rogers Corporation has reported 594 claims outstanding as of March 31, 2023, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "For the three months ended March 31, 2023, 17 claims were dismissed and 1 claim was settled. Settlements were immaterial for the three months ended March 31, 2023. "We, like many other industrial companies, have been named as a defendant in a number of lawsuits filed in courts across the country by persons alleging personal injury from exposure to products containing asbestos. We have never mined, milled, manufactured or marketed asbestos; rather, we made and provided to industrial users a limited number of products that contained encapsulated asbestos, but we stopped manufacturing these products in the late 1980s. Most of the claims filed against us involve numerous defendants, sometimes as many as several hundred. "We recognize a liability for asbestos-related contingencies that are probable of occurrence and reasonably estimable. In connection with the recognition of liabilities for asbestos-related matters, we record asbestos-related insurance receivables that are deemed probable. "The liability projection period covers all current and future indemnity and defense costs through 2064, which represents the expected end of our asbestos liability exposure with no further ongoing claims expected beyond that date. This conclusion was based on our history and experience with the claims data, the diminished volatility and consistency of observable claims data, the period of time that has elapsed since we stopped manufacturing products that contained encapsulated asbestos and an expected downward trend in claims due to the average age of our claimants, which is approaching the average life expectancy. "To date, the indemnity and defense costs of our asbestos-related product liability litigation have been substantially covered by insurance. Although we have exhausted coverage under some of our insurance policies, we believe that we have applicable primary, excess and/or umbrella coverage for claims arising with respect to most of the years during which we manufactured and marketed asbestos-containing products. In addition, we have entered into a cost sharing agreement with most of our primary, excess and umbrella insurance carriers to facilitate the ongoing administration and payment of claims covered by the carriers. The cost sharing agreement may be terminated by any party, but will continue until a party elects to terminate it. As of the filing date for this report, the agreement has not been terminated, and no carrier had informed us that it intends to terminate the agreement. We expect to continue to exhaust individual primary, excess and umbrella coverages over time, and there is no assurance that such exhaustion will not accelerate due to additional claims, damages and settlements or that coverage will be available as expected. We are responsible for uninsured indemnity and defense costs, and we incurred an immaterial amount of expenses for each of the three month periods ended March 31, 2023 and 2022, respectively, related to such costs. "The amounts recorded for the asbestos-related liability and the related insurance receivables are based on facts known at the time and a number of assumptions. However, projecting for future events, such as the number of new claims to be filed each year, the average cost of disposing of such claims, the length of time it takes to dispose of such claims, coverage issues among insurers and the continuing solvency of various insurance companies, as well as the numerous uncertainties surrounding asbestos litigation in the United States, could cause the actual liability and insurance recoveries for us to be higher or lower than those projected or recorded." A full-text copy of the Form 10-Q is available at https://bit.ly/3VTlhgA ASBESTOS UPDATE: Shipman Sues Janssen Over Asbestos-Related Injury ------------------------------------------------------------------ LOIS RENAE FRANKUM SHIPMAN, individually and as Executrix for the Estate of NORMAN K FRANKUM, deceased, Plaintiff v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002309-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Norman K. Frankum was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. Decedent Frankum died on January 7, 2020, and leaves surviving heirs who sustained pecuniary loss resulting from his death. Allegedly, he was frequently and regularly exposed to asbestos from his personal use of asbestos contaminated Johnson & Johnson Baby Powder in the 1960s through the 1980s. Mr. Frankum was also exposed to asbestos from his work in industrial and commercial sites from approximately the 1960s until approximately the 1980s, removing asbestos-containing gaskets from HVAC equipment. He was also exposed to asbestos as a bystander during his work in an industrial site between 1960 and 1965 as other workers in his vicinity created asbestos dust in the air from working with asbestos-containing equipment, including valves and pumps, the suit asserts. The Plaintiff brings this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiff is represented by: Cody M. Greenes, Esq. Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: Tatterson Balks at Asbestos-Related Death ---------------------------------------------------------- JOHN M. TATTERSON, individually and as Administrator of the Estate of DORIS TATTERSON, Deceased, Plaintiff v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002315-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Tatterson was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. She died on February 21, 2021, and leaves surviving heirs who sustained pecuniary loss resulting from her death. Allegedly, from approximately 1966 to approximately 2020, the Decedent was frequently and regularly exposed to asbestos from her personal usage of asbestos-contaminated Johnson & Johnson Baby Powder. She was also frequently and regularly exposed to asbestos from her use of asbestos-contaminated Johnson & Johnson Baby Powder on her two children during diaper changes in the late 1960s and early 1970s, the suit alleges. The Plaintiff brings this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiff is represented by: Matthew A. Grubman, Esq. Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: Tenzer Alleges Death Over Asbestos Exposure ------------------------------------------------------------ PATRICIA TENZER, individually and as Administrator and as Administrator Ad Prosequendum of the Estate of JAMES TENZER, Plaintiff v. JOHNSON & JOHNSON; JOHNSON & JOHNSON HOLDCO (NA) INC.; JANSSEN PHARMACEUTICALS, INC.; KENVUE, INC.; John Doe Corporations 1-50 (said names being fictitious, true names presently unknown); John Doe Corporations 51-100 (said names being fictitious, true names presently unknown), Defendants, Case No. MID-L-002312-23 (N.J. Super., Middlesex Cty., April 25, 2023) is brought pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3 after Decedent contracted mesothelioma and suffered from other various diverse injuries and attendant complications, which resulted in his death, due to exposure to Defendants' asbestos-containing products. According to the complaint, Decedent Tenzer died due to complications related to mesothelioma, on or about March 15, 2022, caused by the said exposure to asbestos-containing products. From approximately 1945 to 2002, the Decedent regularly and frequently used and/or was exposed to asbestos-containing talcum powder products, the use of which generated dust and exposed him to respirable asbestos fibers. The Decedent's exposure to respirable asbestos fibers from asbestos-containing talc and talc products manufactured, sold and supplied by the Defendants (and/or their predecessors in interest) proximately caused his mesothelioma, alleges the suit. The Defendants are manufacturers, suppliers, sellers or distributors of talc and/or talcum powder.[BN] The Plaintiff is represented by: Amber R. Long, Esq. LEVY KONIGSBERG, LLP 605 Third Avenue, 33rd Floor New York, NY 10022 Telephone: (212) 605-6200 ASBESTOS UPDATE: Therriault Alleges Asbestos Caused Disease/Death ----------------------------------------------------------------- DONNA M. THERRIAULT, individually and as Personal Representative of the Estate of JEANNETTE L. THERRIAULT, Deceased, Plaintiff v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002314-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Jeannette L. Therriault was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. Decedent Therriault died on April 3, 2021, and leaves surviving heirs who sustained pecuniary loss resulting from her death. Allegedly, from approximately 1952 until approximately 2020, Decedent Jeanette Therriault was frequently and regularly exposed to asbestos from her use of asbestos-contaminated Johnson & Johnson Baby Powder on her own body. From 1952 to approximately 1966, Decedent Jeanette Therriault was frequently and regularly exposed to asbestos from her use of asbestos-contaminated Johnson & Johnson Baby Powder on her seven children during diaper changes, the suit alleges. The Plaintiff brings this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiff is represented by: Matthew A. Grubman, Esq. Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: Torres Sues Over Asbestos-Related Death -------------------------------------------------------- SOFIA TORRES, individually and as the Proposed Administrator of the Estate of ABUNDIA NAVARRO, Deceased, Plaintiff v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002311-23 (N.J. Super., Middlesex Cty., April 25, 2023) seeks all damages provided by law including but not limited to compensatory damages, punitive damages, loss of consortium, loss of services, economic loss, pain and suffering, and wrongful death, pre-and post-judgment interest, and costs of suit as provided by law. According to the complaint, Decedent Abundia Navarro was diagnosed with mesothelioma, an asbestos-related cancer, which resulted in death. Decedent Navarro died on May 14, 2021, and leaves surviving heirs who sustained pecuniary loss resulting from her death. Allegedly, from approximately 1993-2000, Decedent Navarro was regularly and frequently exposed to asbestos from her use of asbestos-contaminated Johnson & Johnson Baby Powder on herself for personal hygiene purposes. Additionally, from approximately 1993-2000 Decedent was regularly and frequently exposed to asbestos when she applied asbestos-contaminated Johnson & Johnson Baby Powder to her children, says the suit. The Plaintiff brings this action pursuant to N.J.S.A. 2A:31-1, et seq. and 2A:15-3, individually and on behalf of the Estate of Decedent and Decedent's heirs and/or survivors. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Decedent was allegedly exposed.[BN] The Plaintiff is represented by: Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: TriMas Has 434 Pending PI Cases as of March 31 --------------------------------------------------------------- TriMas Corporation, as of March 31, 2023, was a party to 434 pending cases involving an aggregate of 4,817 claimants primarily alleging personal injury from exposure to asbestos containing materials formerly used in gaskets (both encapsulated and otherwise) manufactured or distributed by its former Lamons division and certain other related subsidiaries for use primarily in the petrochemical, refining and exploration industries, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. TriMas states, "In addition, the Company acquired various companies to distribute its products that had distributed gaskets of other manufacturers prior to acquisition. The Company believes that many of its pending cases relate to locations at which none of its gaskets were distributed or used. "The Company may be subjected to significant additional asbestos-related claims in the future, and will aggressively defend or reasonably resolve, as appropriate. The cost of settling cases in which product identification can be made may increase, and the Company may be subjected to further claims in respect of the former activities of its acquired gasket distributors. The cost of claims varies as claims may be initially made in some jurisdictions without specifying the amount sought or by simply stating the requisite or maximum permissible monetary relief, and may be amended to alter the amount sought. The large majority of claims do not specify the amount sought. Of the 4,817 claims pending at March 31, 2023, 40 set forth specific amounts of damages (other than those stating the statutory minimum or maximum). At March 31, 2023, of the 40 claims that set forth specific amounts, there were zero claims seeking more than $5 million for punitive damages. "Relatively few claims have reached the discovery stage and even fewer claims have gone past the discovery stage. Total settlement costs (exclusive of defense costs) for all such cases, some of which were filed over 30 years ago, have been $12.7 million. All relief sought in the asbestos cases is monetary in nature. Based on the settlements made to date and the number of claims dismissed or withdrawn for lack of product identification, the Company believes that the relief sought (when specified) does not bear a reasonable relationship to its potential liability. "The Company records a liability for asbestos-related claims, which includes both known and unknown claims, based on a study from the Company's third-party actuary, the Company's review of the study, as well as the Company's own review of asbestos claims and claim resolution activity." A full-text copy of the Form 10-Q is available at https://bit.ly/3Mbuqxz ASBESTOS UPDATE: U.S. Steel Defends 920 Active Cases as of March 31 ------------------------------------------------------------------- United States Steel Corporation, as of March 31, 2023, was a defendant in approximately 920 active asbestos cases involving approximately 2,510 plaintiffs. The vast majority of these cases involve multiple defendants, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "About 1,545, or approximately 62 percent, of these plaintiff claims are currently pending in a jurisdiction which permits filings with massive numbers of plaintiffs. At December 31, 2022, U. S. Steel was a defendant in approximately 920 active asbestos cases involving approximately 2,510 plaintiffs. Based upon U. S. Steel’s experience in such cases, it believes that the actual number of plaintiffs who ultimately assert claims against U. S. Steel will likely be a small fraction of the total number of plaintiffs. "The amount U. S. Steel accrues for pending asbestos claims is not material to U. S. Steel’s financial condition. However, U. S. Steel is unable to estimate the ultimate outcome of asbestos-related claims due to a number of uncertainties, including: (1) the rates at which new claims are filed, (2) the number of and effect of bankruptcies of other companies traditionally defending asbestos claims, (3) uncertainties associated with the variations in the litigation process from jurisdiction to jurisdiction, (4) uncertainties regarding the facts, circumstances and disease process with each claim and (5) any new legislation enacted to address asbestos-related claims. "Further, U. S. Steel does not believe that an accrual for unasserted claims is required. At any given reporting date, it is probable that there are unasserted claims that will be filed against the Company in the future. The Company engages an outside valuation consultant to assist in assessing its ability to estimate an accrual for unasserted claims. This assessment is based on the Company's settlement experience, including recent claims trends. The analysis focuses on settlements made over the last several years as these claims are likely to best represent future claim characteristics. After review by the valuation consultant and U. S. Steel management, it was determined that the Company could not estimate an accrual for unasserted claims." A full-text copy of the Form 10-Q is available at https://bit.ly/3NPeaDA ASBESTOS UPDATE: Union Carbide Has $929MM Liabilities at March 31 ----------------------------------------------------------------- Union Carbide Corporation has total asbestos-related liability for pending and future claims and defense and processing costs of $929 million at March 31, 2023 ($947 million at December 31, 2022), according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "At March 31, 2023, approximately 25 percent of the recorded claim liability related to pending claims and approximately 75 percent related to future claims. "Each quarter, the Corporation reviews asbestos-related claims filed, settled and dismissed, as well as average settlement and resolution costs by disease category. The Corporation also considers additional quantitative and qualitative factors such as the nature of pending claims, trial experience of the Corporation and other asbestos defendants, current spending for defense and processing costs, significant appellate rulings and legislative developments, trends in the tort system, and their respective effects on expected future resolution costs. UCC management considers these factors in conjunction with the most recent actuarial study and determines whether a change in the estimate is warranted. Based on the Corporation's review of 2023 activity, it was determined that no adjustment to the accrual was required at March 31, 2023." A full-text copy of the Form 10-Q is available at https://bit.ly/3Mev90U ASBESTOS UPDATE: Vecchione Balks at Exposure to Asbestos -------------------------------------------------------- FRANK VECCHIONE and MARIE VECCHIONE, husband and wife, Plaintiffs v. JANSSEN PHARMACEUTICALS, INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER, INC.; JOHNSON & JOHNSON HOLDCO (NA) INC.; KENVUE INC., individually and as successor in interest to Johnson & Johnson Consumer, Inc.; and JOHN DOE CORPORATIONS, 1-50 Defendants, Case No. MID-L-002321-23 (N.J. Super., Middlesex Cty., April 25, 2023) alleges that Plaintiff Frank Vecchione contracted mesothelioma and has suffered, and continues to suffer, from other various diverse injuries and attendant complications due to exposure to Defendants' asbestos-containing products. According to the complaint, Plaintiff Frank Vecchione was regularly and frequently exposed to asbestos from his personal use of asbestos-contaminated Johnson & Johnson Baby Powder and Shower to Shower on his body from approximately 1960 until approximately 2005. Additionally, the Plaintiff was regularly and frequently exposed to asbestos from his use of asbestos-contaminated Johnson & Johnson Baby Powder on his children from approximately the mid-1960s until the early 1980s, says the suit. Plaintiff Frank Vecchione was caused to suffer severe, permanent and disabling personal injury, has expended and will be caused to expend sums of money for medical care and treatment, therefore, has been prevented and will be prevented from pursuing normal activities and employment, has experienced and will continue to experience severe pain and suffering and mental anguish, and has been deprived and will continue to be deprived of ordinary pursuits and enjoyments of life. As a consequence of the injuries of her spouse, Plaintiff Marie Vecchione has suffered loss of advice, guidance, counsel, consortium, companionship, services, society and support, the suit asserts. The Defendants are corporations organized under the laws of New Jersey and/or various states of the United States of America that were and are doing business in the State of New Jersey. The aforementioned Defendants mined, milled, designed, manufactured, sold, supplied, purchased and/or marketed asbestos-containing products, and/or asbestos-containing talc and/or other finished and unfinished asbestos-containing talc powder products, and/or asbestos fiber of various kinds and grades which Plaintiff was allegedly exposed.[BN] The Plaintiff is represented by: Erin M. Boyle, Esq. WEITZ & LUXENBERG, P.C. A NEW YORK PROFESSIONAL CORPORATION 220 Lake Drive East, Suite 210 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 ASBESTOS UPDATE: W.W. Grainger Defends Personal Injury Claims ------------------------------------------------------------- W.W. Grainger, Inc., from time to time, has also been named, along with numerous other nonaffiliated companies, as defendant in litigation in various states involving asbestos and/or silica, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. W.W. Grainger states, "These lawsuits typically assert claims of personal injury arising from alleged exposure to asbestos and/or silica as a consequence of products manufactured by third parties purportedly distributed by the Company. While several lawsuits have been dismissed in the past based on the lack of product identification, if a specific product distributed by the Company is identified in any pending or future lawsuits, the Company will seek to exercise indemnification remedies against the product manufacturer to the extent available. In addition, the Company believes that a substantial number of these claims are covered by insurance. The Company has entered into agreements with its major insurance carriers relating to the scope, coverage and the costs of defense of lawsuits involving claims of exposure to asbestos. The Company believes it has strong legal and factual defenses and intends to continue defending itself vigorously in these lawsuits." A full-text copy of the Form 10-Q is available at https://bit.ly/3nQNVCi ASBESTOS UPDATE: Westinghouse Air Defends Exposure Claims --------------------------------------------------------- Claims have been filed against Westinghouse Air Brake Technologies Corporation and certain of its affiliates in various jurisdictions across the United States by persons alleging bodily injury as a result of exposure to asbestos-containing products, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "The vast majority of the claims are submitted to insurance carriers for defense and indemnity, or to non-affiliated companies that retain the liabilities for the asbestos-containing products at issue. We cannot, however, assure that all of these claims will be fully covered by insurance, or that the indemnitors or insurers will remain financially viable. Our ultimate legal and financial liability with respect to these claims, as is the case with other pending litigation, cannot be estimated. A limited number of claims are not covered by insurance, nor are they subject to indemnity from non-affiliated parties. Management believes that the costs of the Company's asbestos-related cases will not be material to the Company's overall financial position, results of operations and cash flows. A full-text copy of the Form 10-Q is available at https://bit.ly/3O3QSKB ASBESTOS UPDATE: Zurn Elkay Faces 6,000 PI Lawsuits as of March 31 ------------------------------------------------------------------ Zurn Elkay Water Solutions Corporation and numerous other unrelated companies, as of March 31, 2023, were defendants in approximately 6,000 asbestos related lawsuits representing approximately 7,000 claims, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. The Company states, "Plaintiffs' claims allege personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn. Zurn did not manufacture asbestos or asbestos components. Instead, Zurn purchased them from suppliers. These claims are being handled pursuant to a defense strategy funded by insurers. "As of March 31, 2023, the Company estimates the potential liability for the asbestos-related claims described above, as well as the claims expected to be filed in the next ten years, to be approximately $79.0 million, of which Zurn expects approximately $58.0 million to be paid in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The $79.0 million was developed based on actuarial studies and represents the projected indemnity payout for current and future claims. There are inherent uncertainties involved in estimating the number of future asbestos claims, future settlement costs, and the effectiveness of defense strategies and settlement initiatives. As a result, actual liability could differ from the estimate described herein and could be substantial. "Management estimates that the available insurance to cover this ten-year estimated potential asbestos liability as of March 31, 2023 is $72.1 million. "The Company recorded a receivable from its insurance carriers, which corresponds to the amount of this potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance the Company's current insurance coverage will ultimately be available or that this asbestos liability will not ultimately exceed the Company's coverage limits. Factors that could cause a decrease in the amount of available coverage or create gaps in coverage include: changes in law governing the policies, potential disputes and settlements with the carriers regarding the scope of coverage, and insolvencies of one or more of the Company's carriers." 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