/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230607.mbx C L A S S A C T I O N R E P O R T E R Wednesday, June 7, 2023, Vol. 25, No. 114 Headlines 3M COMPANY: Floyd Suit Removed to N.D. Alabama 3M COMPANY: Harper Suit Removed to N.D. Alabama 3M COMPANY: Jones Suit Removed to N.D. Alabama 3M COMPANY: Peterson PFAS Suit Removed to N.D. Ala. 3M COMPANY: Summitt PFAS Suit Removed to N.D. Ala. ADP SCREENING: Ramos Files FCRA Suit in D. Connecticut ANGI INC: Holden Suit Removed to S.D. Florida ANTHEM INSURANCE: Taylor Sues Over Denial of Policy Benefits ARCHDIOCESE OF MONTREAL: Plaintiffs to Divide $15MM Settlement BEYOND MEAT: Faces Suit Over Misleading Production Capabilities BP EXPLORATION: Summary Judgment Granted; Walker's Claims Tossed BRILLIANCE MOTOR: Federated Service Files Suit in N.D. Illinois CHARLES MACHINE: Remillard Labor Suit Removed to N.D. Cal. CHARTER FOODS NORTH: Haney Files Suit in E.D. Tennessee CONSOLIDATED WORLD: 7th Cir. Affirms Order to Pay Class Notice Cost COSTA CRUISES: Italian Court OK Cert. in Cruise Passengers' Suit COSTCO WHOLESALE: Jones Sues Over Falsely Reported Background COWTOWN BOOT: Toro Files ADA Suit in S.D. New York CROSS-LINES RETIREMENT: Coe's Class Certification Bid OK'd in Part CVS ALBANY LLC: Barbara Files ADA Suit in E.D. New York DELTA AIR: Faces Class Action Suit Over Carbon Neutral Claims DIGITAL CURRENCY: Wants Judge to Consolidate Two Class Actions DISH NETWORK: Faces Class Action Over February 2023 Data Breach DOLLAR GENERAL: Hodorovych Complaint Dismissed Without Prejudice DST SYSTEMS: Loses Bid to Stay Injunction in Leineke Class Suit DST SYSTEMS: Loses Bid to Stay Injunction in McMullin Class Suit DST SYSTEMS: Loses Bid to Stay Injunction in Miser Class Suit DST SYSTEMS: Loses Bid to Stay Injunction in Newtal Class Suit DST SYSTEMS: Loses Bid to Stay Injunction in Revis Class Suit EAST BAY: Cal. App. Affirms Judgment Entered in Campana Class Suit ELI LILLY: Settles Insulin Pricing Class Action Suit for $13.5M FADA GROUP: Fails to Provide Proper Wages, Yan Suit Claims FASTENAL COMPANY: Final Order & Judgment Entered in Jackson Suit FORD MOTOR: Faces Class Action Over Defective Rear Subframe Bolt GANNETT CO: Bid to Dismiss Anderson Suit Stayed Pending Discovery GOOGLE INC: July 31 Settlement Claim Filing Deadline Set GOOGLE UK: English High Court Rejects Suit Over Private Info Use INSIGNIA FINANCIAL: Barrister to Defend Shareholders' Class Suit J JACOBO FARM: Bid to Decertify Class in Gomez Wage Suit Denied JAGUAR LAND: Averts Class Action Over Vehicles' Battery Defect JOHNSON & JOHNSON: Former Judge Reacts in Pelvic Mesh Suit Deal LAMPO GROUP: Faces Class Action Suit Over Customers' Fraud LEVITT LLP: Faces DePietro Suit Over Unlawful Labor Practices LUMINAR TECHNOLOGIES: Johnson Balks at Share Price Drop MARIST BROTHERS: Quebec Super. Certifies Suit Over Sexual Assault MARS WRIGLEY: Rodriguez Sues Over Mislabeled Baked Crackers MDL 2972: Blackbaud Opposition to Eisen Class Cert Bid Due June 9 MDL 2972: Blackbaud Opposition to Faszczewski Class Cert Due June 9 MDL 2972: Blackbaud Opposition to Gignac Class Cert Bid Due June 9 MDL 2972: Blackbaud Opposition to Glasper Class Cert Bid Due June 9 MDL 2972: Blackbaud Opposition to Mitchell Class Cert Due June 9 MIDLAND CREDIT: Court Approves Sellards' $500,000 Suit Settlement MONUMENT INC: Sued for Illegaly Sharing Users' Personal Info NEW YORK TIMES: Court Narrows Claims in Perkins Consumer Suit NORFOLK SOUTHERN: Court Certifies Train Derailment as Class Suit NORTHSTAR CAFE: Faces Class Suit Over Unpaid Wages, Tip Theft NOVA SOUTHEASTERN: Amended Craig Complaint Dismissed With Prejudice NUMRICH GUN: Bid to Dismiss 2nd Amended Koeller Suit OK'd in Part OAKLAND, CA: Court Sets Initial CMC in Curran ADA Suit for Nov. 2 ORDER EXPRESS: Court Refuses to Dismiss Florence Data Breach Suit ORIENTAL LOGISTICS: Underpays Logistic Coordinators, Gomez Claims PACESETTER PERSONNEL: Villarino Suit Removed to S.D. Fla. PROVIDENCE HEALTH: Angulo Allowed to Issue Subpoenas to MultiCare PUBLISHERS CLEARING: Bid to Dismiss Pett Complaint Granted in Part PUBLIX SUPER: Judge Tosses Suit Over Mislabeled Lemon Lozenges SAZERAC COMPANY: Faces Class Suit Over Mislabeled Rum Brand SCION GROUP: Castillo Wage-and-Hour Suit Removed to C.D. Cal. SEPHORA USA: Sued for Using Third-Party Spyware Company SERVICE EMPLOYEES: Agrees to Settle Data Breach Suit for $550,000 SHOPIFY INC: Laid Off Workers Sue Over Misleading Severance Pay ST. CLOUD STATE: Court Awards $1.8M Atty's Fees in Sex Bias Suit ST. VINCENT HEALTH: Applegate Can Amend Complaint to Add Claims STATE FARM: Refuses to Cover Luxury Vehicle Repair Cost, Suit Says STONEBRIDGE GLOBAL: Settles Apartment Residents' Suit for $2MM SYSCO NEW MEXICO: Wins Bid for Summary Judgment in Teamsters Suit VERTEX ENERGY: Bids for Lead Plaintiff Appointment Due June 12 VIATRIS INC: Bids for Lead Plaintiff Appointment Due July 14 WALMART INC: Court Dismisses Class Suit Over Recreational Marijuana WARBY PARKER: Chery Labor Suit Removed to N.D. Cal. WEBSTER FINANCIAL: Sypniewski Sues Over Data Breach ZOOM VIDEO: Starts Payment Notification for Class Suit Settlement ********* 3M COMPANY: Floyd Suit Removed to N.D. Alabama ---------------------------------------------- The case captioned as Jonathan Gregory Floyd; William Paul Ernst; Larry Layne Eshleman; Jose Cruz Espinoza Jr.; Philip Thomas Esposito; Paul Morris Etheredge; Michael Leroy Etzel; Timothy Williams Eubanks; Joseph Nickolas Evans; Lejarrell Evans; Dennis D. Ewing; John M. Fahrer; James Fajardo; Gary Allen Farnum; Larry Ray Farrah; Patrick Peter Farrell ; John Patrick Farrigan; William Michael Farrow; Franklin Gerald Ferguson Sr.; Ronald C. Fernelius; George Ferrell; Danny Joe Fetters; Brian Craig Feuer; John Charles Fields; Ron Anthony Fillman; Michael Fenton Filo; Bret Finch; Charles Peter Fiorino Jr.; Jerreld Fisher; Richard Lea Fiske; Paul Fleming; Michael Fleming; Jerry Marlin Fleming; Devon Edward Fletcher; Robert Flores; Alvin A. Floyd; Edward William Floyd; David J. Floyd; David Edward Foley; Dennis Lee Fontelroy Sr.; Earnest Lee Ford; Cliff Ford Jr; Bobby L. Ford; James Michael Forshee; Joseph Michael Fortnash Sr; Anthony Fosella; Richard Allen Foster; Earl Ralph Foster; Stephen James Foster; Charles Foster; Kevin Ray Foudray; Woodard Carlton Fowler; Edward Raymond Fox; Alan Ray Fox; Ildebarando Boby Francone; Scott Francis Franken; Jerome Edward Franks; Richard Lee Frantz; Terry Wayne Frazier; Thomas B. Frederick; Gregg Allan Fredericks; David Friend; Rex Loren Frieze; Charles John Frizziola; Stephen M Fudali; David Carsten Fulton; Timothy Wayne Funchion; Thomas Joseph Futterer; John P. Gabriel; James David Gadacz; Clifton E. Gaddie; Melvin Darryl Gage; John Steven Gajdek Jr; Dale Eugene Gale; John Anthony Gannone; Walter Nicholas Gapinski; Manuel Joseph Garcia; George Adam Gardis Jr.; Fenwick Gardner; Billy Ray Garrett; Merlin Gaspard; Douglas Burr Gates; Mark Gaughan; Grant Alvin Gay Jr.; William Charles Gebo; Charles Herbert Gendusa; Walter John Gerber; Raoul Oscar Gervais; Thomas Heinz Gibbs; Michael Kevin Gillespie; Gary Lee Gillespie; Brian Glenn; Andre Gordon; Mark Greening; Randall Guse; Armando Hall; Jonathan Hall; Mark Hill; Martin Hohnhorst Jr.; Carl Horton; Todd Howell; John Kitchens; Bennie Kovar; John Keith Lamberth; Charles Henry Latz Jr; Leonard Littlejohn; Donald P. Loren; Joseph Mandacina; Richard Maynard; Donald Mcburney; Thomas Megison; John Messina; William John Miller; Otto Reynolds Jr.; Don Argene Williams; Demetrius Clarence Williams; Elmore Williams Jr.; Phillip Nathaniel Williams Sr.; Gerald Stephen Williams; Archie Charles Williams; Michael Eugene Williams; John Allen Williamson; Tony Devern Williamson; Jeffrey Lee Williamson, and others similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); ALLSTAR FIRE EQUIPMENT; FIRE-DEX, LLC; GLOBE MANUFACTURING COMPANY LLC; HONEYWELL SAFETY PRODUCTS USA, INC.; LION GROUP, INC.; MALLORY SAFETY AND SUPPLY LLC; MINE SAFETY APPLIANCES CO., LLC; MUNICIPAL EMERGENCY SERVICES, INC.; PBI PERFORMANCE PRODUCTS, INC.; SOUTHERN MILLS, INC.; STEDFAST USA, INC.; W.L. GORE & ASSOCIATES INC., Case No. 01-CV-2023- 901272 was removed from the Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to the United States District Court for the Northern District of Alabama on May 24, 2023, and assigned Case No. 2:23-cv-00663-AMM. The Plaintiffs seek to hold 3M and certain other Defendants liable based on their alleged conduct in designing, manufacturing, and/or selling aqueous film-forming foams ("AFFF") and/or firefighter turnout gear ("TOG") that Plaintiffs allege were used in firefighting activities, thereby causing injury to Plaintiffs.[BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 The Defendant is represented by: M. Christian King Harlan I. Prater, IV W. Larkin Radney, IV Wesley B. Gilchrist LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Phone: (205) 581-0700 Email: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com wgilchrist@lightfootlaw.com 3M COMPANY: Harper Suit Removed to N.D. Alabama ----------------------------------------------- The case captioned as Carl J. Harper, et al. v. 3M COMPANY, et al., Case No. 01-CV-2023-901278.00 was removed from the Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to the United States District Court for the Northern District of Alabama on May 25, 2023, and assigned Case No. 2:23-cv-00669-GMB. The Plaintiffs generally allege that certain Defendants, including 3M, have designed, manufactured, marketed, distributed, and/or sold AFFF products and/or fluorinated surfactants used therein, which contain PFAS, including PFOS, PFOA, and/or their precursors, and allege that other Defendants have designed, manufactured, marketed, distributed, and/or sold TOG products and/or fluorinated surfactants used therein, which contain PFAS, including PFOS, PFOA, and/or their precursors. Each of the Plaintiffs expressly alleges that he "regularly used, and was thereby directly exposed to, AFFF and TOG in training and to extinguish fires during his working career as a military and/or civilian firefighter" and suffered injury "as a result of exposure to Defendants' AFFF or TOG products."[BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 The Defendant is represented by: M. Christian King Harlan I. Prater, IV W. Larkin Radney, IV Wesley B. Gilchrist LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Phone: (205) 581-0700 Email: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com wgilchrist@lightfootlaw.com 3M COMPANY: Jones Suit Removed to N.D. Alabama ---------------------------------------------- The case captioned as Charles Edward Jones, et al. v. 3M COMPANY, et al., Case No. 01-CV-2023-901281.00. was removed from the Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to the United States District Court for the Northern District of Alabama on May 25, 2023, and assigned Case No. 2:23-cv-00670-NAD. The Plaintiffs generally allege that certain Defendants, including 3M, have designed, manufactured, marketed, distributed, and/or sold AFFF products and/or fluorinated surfactants used therein, which contain PFAS, including PFOS, PFOA, and/or their precursors, and allege that other Defendants have designed, manufactured, marketed, distributed, and/or sold TOG products and/or fluorinated surfactants used therein, which contain PFAS, including PFOS, PFOA, and/or their precursors. Each of the Plaintiffs expressly alleges that he "regularly used, and was thereby directly exposed to, AFFF and TOG in training and to extinguish fires during his working career as a military and/or civilian firefighter" and suffered injury "as a result of exposure to Defendants' AFFF or TOG products."[BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 The Defendant is represented by: M. Christian King Harlan I. Prater, IV W. Larkin Radney, IV Wesley B. Gilchrist LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Phone: (205) 581-0700 Email: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com wgilchrist@lightfootlaw.com 3M COMPANY: Peterson PFAS Suit Removed to N.D. Ala. --------------------------------------------------- The case styled EARL PETERSON JR, et al., Plaintiffs v. 3M COMPANY, et al., Defendants, Case No. 01-CV-2023-901290.00, was removed from the Alabama Circuit Court for the Tenth Judicial Circuit, Jefferson County, to the United States District Court for the Northern District of Alabama on May 26, 2023. The Clerk of Court for the Northern District of Alabama assigned Case No. 2:23-cv-00683-AMM to the proceeding. The Plaintiffs generally allege that certain Defendants, including 3M, have designed, manufactured, marketed, distributed, and/or sold aqueous film-forming foams (AFFF) products and/or fluorinated surfactants used therein, which contain per- and polyfluoroalkyl substances (PFAS), and allege that other Defendants have designed, manufactured, marketed, distributed, and/or sold TOG products and/or fluorinated surfactants used therein, which contain PFAS, including PFOS, PFOA, and/or their precursors. 3M Company is an American multinational conglomerate operating in the fields of industry, worker safety, healthcare, and consumer goods.[BN] Defendant 3M Company is represented by: M. Christian King, Esq. Harlan I. Prater, IV, Esq. W. Larkin Radney, IV, Esq. Wesley B. Gilchrist, Esq. LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Telephone: (205) 581-0700 E-mail: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com wgilchrist@lightfootlaw.com 3M COMPANY: Summitt PFAS Suit Removed to N.D. Ala. -------------------------------------------------- The case styled MICHAEL SCOTT SUMMITT, et al., Plaintiffs v. 3M COMPANY, et al., Defendants, Case No. 01-CV-2023-901288.00, was removed from the Alabama Circuit Court for the Tenth Judicial Circuit, Jefferson County, to the United States District Court for the Northern District of Alabama on May 26, 2023. The Clerk of Court for the Northern District of Alabama assigned Case No. 2:23-cv-00682-NAD to the proceeding. The Plaintiffs generally allege that certain Defendants, including 3M, have designed, manufactured, marketed, distributed, and/or sold aqueous film-forming foams (AFFF) products and/or fluorinated surfactants used therein, which contain per- and polyfluoroalkyl substances (PFAS), and allege that other Defendants have designed, manufactured, marketed, distributed, and/or sold TOG products and/or fluorinated surfactants used therein, which contain PFAS, including PFOS, PFOA, and/or their precursors. 3M Company is an American multinational conglomerate operating in the fields of industry, worker safety, healthcare, and consumer goods.[BN] Defendant 3M Company is represented by: M. Christian King, Esq. Harlan I. Prater, IV, Esq. W. Larkin Radney, IV, Esq. Wesley B. Gilchrist, Esq. LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Telephone: (205) 581-0700 E-mail: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com wgilchrist@lightfootlaw.com ADP SCREENING: Ramos Files FCRA Suit in D. Connecticut ------------------------------------------------------ A class action lawsuit has been filed against ADP Screening and Selection Services, Inc. The case is styled as Pedro Luis Ramos, III, individually and on behalf of persons similarly situated v. ADP Screening and Selection Services, Inc., Case No. 3:23-cv-00610-VAB (D. Conn., May 10, 2023). The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. ADP Screening and Selection Services -- https://select.adp.com/ -- is a provider of background checks and other employment screening.[BN] The Plaintiff is represented by: Richard Eugene Hayber, Esq. HAYBER, McKENNA & DINSMORE, LLC 750 Main Street, Ste. 904 Hanford, CT 06103 Phone: (203) 522-8888 Email: rhayber@hayberlawfirm.com ANGI INC: Holden Suit Removed to S.D. Florida --------------------------------------------- The case captioned as Trevor Holden, and Maria Maya, individually and on behalf of all others similarly situated v. ANGI INC., Case No. CACE-23-012183 was removed from the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, to the United States District Court for the Southern District of Florida on May 8, 2023, and assigned Case No. 0:23-cv-60858-RAR. This lawsuit arises out from a Telephone Consumer Protection Act ("TCPA") claim brought by Plaintiffs. Plaintiffs allege that Defendant engaged in a pattern or practice of initiating telephone solicitations to Plaintiffs' cell phones in Florida, whose telephone numbers, at all relevant times, were listed on the Federal Trade Commission's do not call registry.[BN] The Defendant is represented by: Jason Daniel Joffe, Esq. SQUIRE PATTON BOGGS (US) LLP 200 South Biscayne Boulevard, Suite 3400 Miami, FL 33131 Phone: (305) 577-7000 Facsimile: (305) 577-7001 Email: jason.joffe@squirepb.com ANTHEM INSURANCE: Taylor Sues Over Denial of Policy Benefits ------------------------------------------------------------ TODD J. TAYLOR, on his own behalf and on behalf of all those similarly situated, Plaintiff v. ANTHEM INSURANCE COMPANIES, INC., and THE ELEVANCE HEALTH COMPANIES, INC., Defendants, Case No. 3:23-cv-00541 (M.D. Tenn., May 25, 2023) is a class action brought by the Plaintiff, on behalf of ERISA participants and beneficiaries of health plans administered and/or underwritten by Defendants, for being denied requests for coverage for treatment without conducting a full and fair review of claims and in violation of their plans. According to the complaint, the Defendants uniformly adjudicate requests for Proton Beam Radiation Therapy to treat cancer as experimental, investigational and/or unproven, and accordingly not medically necessary. Plaintiff Taylor sought pre-authorization for the recommended PBRT treatment from Defendants. On November 2, 2022, Defendants denied the request because "there is no proof or not enough proof this treatment improves health outcomes for this condition." The Plaintiff appealed. The Defendants affirmed their earlier denial by letter on December 2, 2022. Again, the Defendants explained the decision by a single sentence: "There is no proof or not enough proof this treatment improves health outcomes for this condition over established treatments." The Plaintiff and class members have been harmed by Defendants' improper benefits denial because they were deprived of health coverage benefits they were owed, says the suit. The Plaintiff is a resident in Franklin, Tennessee who participates in a self-funded employer sponsored health plan sponsored by his employer. Anthem Insurance Companies, which does business as (among other things) Anthem Blue Cross Blue Shield, is the claim administrator delegated by Taylor's employer with discretionary authority to decide cancer claims.[BN] The Plaintiff is represented by: Alyson S. Beridon, Esq. HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL, PLLC 425 Walnut St., Ste 2315 Cincinnati, OH 45202 Telephone: (513) 381-2224 E-mail: alyson@hsglawgroup.com - and - Benjamin A. Gastel, Esq. HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL, PLLC 223 Rosa L. Parks Ave., Ste 300 Nashville, TN 37203 Telephone: (615) 800-6225 E-mail: ben@hsglawgroup.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: jyanchunis@ForThePeople.com - and - Robert R. Sparks, Esq. STRAUSS TROY CO., LPA 150 E. Fourth Street, 4th Floor Cincinnati, OH 45202 Telephone: (513) 621-2120 E-mail: rrsparks@strausstroy.com - and - Jordan Lewis, Esq. JORDAN LEWIS, P.A. 4473 N.E. 11th Avenue Fort Lauderdale, FL 33334 Telephone: (954) 616-8995 E-mail: jordan@jml-lawfirm.com ARCHDIOCESE OF MONTREAL: Plaintiffs to Divide $15MM Settlement -------------------------------------------------------------- Anna Farrow, writing for The Catholic Register, reports that more than 60 victims of sexual assault by clergy in the Archdiocese of Montreal, and their lawyers, will be poised June 9 to divide up a collective settlement approaching $15 million. Lawyers' fees will shave off about 20 per cent -- or more than $2.7 million -- of that amount if Quebec Superior Court Justice Donald Bisson approves the $14.8 million class action agreement as anticipated. The rest will be shared by the plaintiffs in the suit. Bisson's approval is not guaranteed. In January 2022, a judge rejected as "excessive" the fees charged by the law firm of Arsenault, Dufresne, Wee in a class action against the Clerics of Saint-Viateur. The legal bill had to be chopped by $2.4 million before the court approved it. The same firm represents the plaintiffs in the suit against the Montreal archdiocese. "Contrary to individual lawsuits, the court must verify that the settlement is in the best interests of all members," said Virginie Dufresne-Lemire, a lawyer with Arsenault, Dufresne, Wee. It won't be known until June 5 exactly how many victims will be covered by the settlement. The suit was authorized May 2 but that started the clock on a 30-day opt-out period for class action members, which includes anyone sexually assaulted by a cleric or lay employee of the Archdiocese of Montreal between 1940 and the present. Those who intend to bring an individual action against the archdiocese must remove themselves from the collective lawsuit. Dufresne-Lemire said because claimants are obliged to register with the Superior Court, the firm is unaware if anyone has decided to drop out. But she said doing so "is actually quite rare in these class actions." Assuming the judge grants approval, claimants must register in the class action to be eligible for a portion of the settlement. Dufresne-Lemire anticipates a 90-day period will be allowed for members to come forward. By contrast, in another large class action currently underway against the Archdiocese of Halifax, claimants have been given a full year to register. "It has already been a long time for the (Montreal) victims to wait, and we have to take that into account," Dufresne-Lemire told The Catholic Register. Time-limits that leave claimants ineligible for a portion of a settlement, or to launch individual suits, is a reason lawyers such as Ontario attorney Rob Talach argue against class actions in sexual abuse cases. "The big issue with class actions is that people have no idea they are members of the class," says Talach, who has led several high-profile cases against clerical sexual abusers. "They don't get caught by the announcements. If you miss any of the deadlines, your rights are expired." An unintended consequence of the Montreal archdiocese's efforts to construct a "victim-centred" complaints structure is that some claimants are confused as to where and how they register their status. In 2021, the archdiocese hired lawyer Marie Christine Kirouack to act as an ombudsman. A phone line was established for those who wished to make a complaint of any kind of abuse by clergy or employees of the archdiocese. But Dufresne-Lemire says the firm has received calls from claimants saying they have already signed-up to the settlement because they left a voice message with the ombudsman. "When they call (the ombudsman), they think they have registered to the class action. They did not. They only talked with the defendant," said Dufresne-Lemire, adding the firm plans to raise awareness of the issue. "We do not want anyone to lose their rights because of that misunderstanding." [GN] BEYOND MEAT: Faces Suit Over Misleading Production Capabilities --------------------------------------------------------------- Anne Bucher of Top Class Actions reports that Beyond Meat Inc. misled investors about its production capabilities, leading them to pay inflated prices for the company's stock, according to a class action lawsuit filed May 11 in California federal court. Plaintiff Retail Wholesale Department Store Union Local 338 Retirement Fund, a pension system that provides retirement benefits to certain New York and New Jersey employees, filed the Beyond Meat class action lawsuit on behalf of itself and others who purchased Beyond Meat common stock between May 5, 2020, and Oct. 13, 2022. Beyond Meat produces plant-based meat substitutes. According to the Beyond Meat class action lawsuit, the company misled investors by touting the success of its product tests with prominent food retailers such as McDonalds, KFC, Pizza Hut and Taco Bell. The company reportedly assured investors and partners it was capable of manufacturing its plant-based meat products at commercial scale, and blamed any delays on COVID-19. However, certain Beyond Meat executives "profited enormously" by selling hundreds of thousands of shares of company stock at artificially inflated prices, according to the class action lawsuit. "The truth began to emerge on October 22, 2021, when Beyond Meat announced that the company was reducing its third quarter net revenues by up to $34 million, or 25%," and that its expenses and inventories were also increasing, the Beyond Meat class action lawsuit says. Beyond Meat class action points to series of disclosures that caused stock price to drop In response to these disclosures, Beyond Meat stock prices reportedly declined by $12.82 per share, the plaintiff says. In November 2021, Beyond Meat reportedly announced a $1.8 million write-off of its unsold inventory, which led to the stock price dropping by another $12.55 per share. During this time, Beyond Meat reassured investors about the success of its partnerships and blamed its poor financial news on COVID-19. On Nov. 17, 2021, an article published in Bloomberg reported on the Beyond Meat production delays, citing employees who said there were "significant internal problems" due to "confusion and misalignment" that contributed to the delays. In response to this news, Beyond Meat stock prices dropped again. The next month, Taco Bell reportedly canceled a planned product test due to ongoing Beyond Meat quality concerns, leading to yet another stock price decrease. In October 2022, Beyond Meat announced several of its top executives were departing. The plaintiff says it would not have purchased Beyond Meat stock at the price it paid had it known the stock prices had been artificially inflated by the company's misleading assurances. The class action asserts claims for violations of the Exchange Act. Last year, Beyond Meat reached a settlement over allegations it falsely advertised its substitute meat products as providing an equivalent amount of protein as real meat. What do you think about the Beyond Meat class action lawsuit? Tell us about it in the comments. The plaintiff is represented by Jonathan D. Uslaner, Avi Josefson and Scott R. Foglietta of Bernstein Litowitz Berger & Grossmann LLP. The Beyond Meat production class action lawsuit is Retail Wholesale Department Store Union Local 338 Retirement Fund v. Beyond Meat Inc., et al., Case No. 2:23-cv-03602, in the U.S. District Court for the Central District of California, Western Division. [GN] BP EXPLORATION: Summary Judgment Granted; Walker's Claims Tossed ---------------------------------------------------------------- In the case, RODNEY JOHN WALKER, II v. BP EXPLORATION & PRODUCTION, INC., ET AL, SECTION "R" (1), Civil Action No. 17-4219 (E.D. La.), Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana: a. grants BP Exploration & Production, Inc., BP America Production Company, and BP p.l.c.'s motion to exclude the testimony of plaintiff's general causation expert, Dr. Jerald Cook; b. grants the BP Parties' motion for summary judgment; and c. denies the Plaintiff's motion to admit the expert report of Dr. Cook as a sanction for the Defendants' alleged spoliation. The case arises from the Plaintiff's alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. He alleges that he was exposed to crude oil and dispersants from his work as an onshore cleanup worker. The Plaintiff represents that this exposure has resulted in the following health problems: bronchitis, congestion, pharyngitis, sore throat, difficulty swallowing, wheezing, chest pressure, chest pain, conjunctivitis, eye redness, eye irritation, eye pain, blurred vision, sensitivity to light, headaches, rectal bleeding, nausea, dizziness, itching, rash, and skin irritation. The Plaintiff's case was originally part of the multidistrict litigation ("MDL") pending before Judge Carl J. Barbier. His case was severed from the MDL as one of the "B3" cases for plaintiffs who either opted out of, or were excluded from, the Deepwater Horizon Medical Benefits Class Action Settlement Agreement. The Plaintiff opted out of the settlement. After his case was severed, it was reallocated to the Court. The Plaintiff asserts claims for general maritime negligence, negligence per se, and gross negligence against the Defendants because of the oil spill and its cleanup. To demonstrate that exposure to crude oil, weathered oil, and dispersants can cause the symptoms the Plaintiff alleges in his complaint, he offers the testimony of Dr. Cook, an occupational and environmental physician. Dr. Cook is the Plaintiff's sole expert offering an opinion on general causation. In his March 14, 2022 report, Dr. Cook utilizes a general causation approach to determine if a reported health complaint can be from the result of exposures sustained in performing oil spill cleanup work. The BP parties contend that Dr. Cook's expert report should be excluded on the grounds that that it is unreliable and unhelpful. The Defendants also move for summary judgment, asserting that if Dr. Cook's general causation opinion is excluded, the Plaintiff is unable to carry his burden on causation. The Plaintiff opposes both motions. He contends that the Defendants' failure to record quantitative exposure data during the oil spill response amounts to spoliation and seeks the admission of Dr. Cook's report as a sanction. The Defendants oppose the Plaintiff's motion. Judge Vance finds that Dr. Cook's failure to identify the level of exposure to a relevant chemical that can cause the conditions asserted in the Plaintiff's complaint renders his opinion unreliable, unhelpful, and incapable of establishing general causation. Given Dr. Cook's failure to determine the relevant harmful level of exposure to chemicals to which the Plaintiff was exposed for plaintiff's specific conditions, she finds that he lacks sufficient facts to provide a reliable opinion on general causation. Judge Vance holds that the Plaintiff, as the party offering the testimony of Dr. Cook, has failed to meet his burden of establishing the reliability and relevance of Dr. Cook's report. Given that Dr. Cook's report is unreliable and fails to provide the minimal facts necessary to establish general causation in the case, she grants the Defendants' motion to exclude Dr. Cook's testimony. The Plaintiff's motion seeks the sanction of admission of Dr. Cook's report. He asserts that this sanction is appropriate because BP's decision to not record quantitative exposure data during the BP Oil Spill response has deprived him of data which would quantitatively establish his exposure. Judge Vance holds that the Plaintiff's spoliation motion suffers a number of deficiencies. First, his contention that BP's failure to conduct monitoring amounts to spoliation is based on the faulty premise that BP was obligated to develop evidence in anticipation of litigation. Further, the remedy he seeks -- admission of Dr. Cook's expert opinion despite its numerous deficiencies -- is unwarranted. The Plaintiff's motion to admit Dr. Cook's report as a sanction despite its failure to meet the requirements of Fed. R. Evid. 702 is thus denied. In their motion for summary judgment, the Defendants contend that they are entitled to summary judgment because the Plaintiff cannot establish either general or specific causation. In his opposition to the Defendants' motion, the Plaintiff notes that other sections of the Court have denied summary judgment in cases in which B3 plaintiffs have brought claims premised on transient or temporary symptoms. Given that the Plaintiff cannot prove a necessary element of his claims against the Defendants, his claims must be dismissed. Accordingly, Judge Vance grants the Defendants' motion for summary judgment. The Plaintiff's claims are dismissed with prejudice. A full-text copy of the Court's May 23, 2023 Order & Reasons is available at https://tinyurl.com/sa544hpj from Leagle.com. BRILLIANCE MOTOR: Federated Service Files Suit in N.D. Illinois --------------------------------------------------------------- A class action lawsuit has been filed against Federated Service Insurance Company v. Brilliance Motor Sales, Inc., Terri Snyder, Individually and on behalf of all others similarly situated, Case No. 1:23-cv-02870 (N.D. Ill., May 8, 2023). The nature of suit is stated as Insurance Contract for Declaratory Judgement. Brilliance Motor Sales, Inc. -- https://www.brilliancehonda.com/ -- offers a variety of new and used cars by Honda in the Crystal Lake area.[BN] The Plaintiff is represented by: Jeffrey Alan Goldwater, Esq. Kelly M. Ognibene, Esq. LEWIS BRISBOIS BISGAARD & SMITH, LLP 550 West Adams, Suite 300 Chicago, IL 60661 Phone: (312) 345-1718 Email: Jeffrey.Goldwater@lewisbrisbois.com kelly.ognibene@lewisbrisbois.com CHARLES MACHINE: Remillard Labor Suit Removed to N.D. Cal. ---------------------------------------------------------- The case styled CHRISTOPHER LEE REMILLARD, individually and on behalf of all others similarly situated, Plaintiff v. THE CHARLES MACHINE WORKS, INC.; THE TORO COMPANY; and DOES 1 through 20, inclusive, Defendants, Case No. SCV-272966, was removed from the Superior Court of the State of California for the County of Sonoma to the United States District Court for the Northern District of California on May 26, 2023. The Clerk of Court for the Northern District of California assigned Case No. 3:23-cv-02639-SK to the proceeding. The complaint purports to assert claims for: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to permit rest breaks; (5) failure to reimburse business expenses; (6) failure to provide accurate itemized wage statements; (7) failure to pay wages timely during employment; (8) failure to pay all wages due upon separation of employment; and (9) violation of the California Business and Professions Code. The Charles Machine Works, Inc. manufactures and distributes equipment and machinery for the underground construction industry.[BN] The Defendant is represented by: Thomas M. McInerney, Esq. Carolyn B. Hall, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC One Embarcadero Center, Suite 900 San Francisco, CA 94111 Telephone: (415) 442-4810 Facsimile: (415) 442-4870 E-mail: thomas.mcinerney@ogletree.com carolyn.hall@ogletree.com CHARTER FOODS NORTH: Haney Files Suit in E.D. Tennessee ------------------------------------------------------- A class action lawsuit has been filed against Charter Foods North, LLC, et al. The case is styled as Amber Haney, individually and on behalf of all others similarly situated v. Charter Foods North, LLC, Charter Foods, Inc., Case No. 2:23-cv-00046 (E.D. Tenn., May 10, 2023). The nature of suit is stated as Other Personal Property for Property Damage. Charter Foods North LLC owns and operates as a restaurants.[BN] The Plaintiffs are represented by: Edwin Earl Wallis, Esq. GLASSMAN, WYATT, TUTTLE & COX, P.C. 26 North Second Street Memphis, TN 38103 Phone: (901) 527-4673 Fax: (901) 521-0940 Email: ewallis@gwtclaw.com CONSOLIDATED WORLD: 7th Cir. Affirms Order to Pay Class Notice Cost ------------------------------------------------------------------- Wisconsin Law Journal reports that 7th Circuit Court of Appeals, Case Name: Angel Bakov v. Consolidated World Travel, Case No.: 21-2653, Officials: Wood, Kirsch, and Jackson-Akiwumi, Circuit Judges, and Focus: Class Action Administration-TCPA Claim The class asserts in this action that CWT violated the Telephone Consumer Protection Act (TCPA) by calling class members using prerecorded voice messages, a practice the law expressly prohibits. This case presents a narrow but important question about the administration of class actions: what authority do district courts have to impose the cost of class notice on a defendant that already has been found liable to the class? The court in the case before us ruled that defendant Consolidated World Travel, Inc. (CWT) had to bear those costs. The Seventh Circuit concludes that in the unusual circumstances of this case, the district court had the authority to assign these costs to CWT and that it did not abuse its discretion in doing so. Affirmed. Decided on 05/19/23 [GN] COSTA CRUISES: Italian Court OK Cert. in Cruise Passengers' Suit ---------------------------------------------------------------- Lipcon, Margulies & Winkleman, P.A. of Cision PR Newswire reports that it's taken three years, but passengers who set sail on the Costa Luminosa in March 2020 will finally get their day in court. Miami cruise ship attorney Michael Winkleman from Lipcon, Margulies & Winkleman, P.A. has been fighting on behalf of the passengers: "This battle has been years in the making and we are thrilled with the Order of the Italian Courts as it will finally give our clients their day in court and enable them to recover damages related to this nightmare cruise. We already represent hundreds of the passengers who were injured, harmed or died as a result of this cruise, but every other passenger on this cruise needs to act fast to join the class action." In April 2020, Lipcon, Margulies & Winkleman, P.A. filed a class action lawsuit in federal court in Florida against Costa Cruise lines. The class action lawsuit alleged Costa Luminosa set sail from Ft. Lauderdale on March 5, 2020, despite the fact that Costa Cruise Lines knew at least one passenger from its previous voyage had shown COVID symptoms. When passengers expressed hesitation about travelling on the cruise, Costa Cruise Lines misrepresented that the vessel was completely safe and that passengers would not be allowed to cancel their trip without forfeiting money they already paid. Three days after the vessel left Ft. Lauderdale, the CDC issued a warning that "U.S. citizens, particularly travelers with underlying health conditions, should not travel by cruise ship." Yet, passengers onboard the Costa Luminosa were not advised of this. Instead, passengers embarked across the Atlantic in a ticking time bomb, which resulted in numerous deaths. Our class action complaint against Costa Cruise Lines seeks compensatory and punitive damages. Joanne Preston, a Massachusetts resident who was on this cruise said: "Of the many cruises I've been on, this one had a life altering effect on me. I was one of the people that was escorted off of the Costa Luminosa in Marseille, France ahead of everyone else, and then called ahead of everyone else getting off of the plane in Atlanta and then being informed that I had Covid. I was then detained for several days. It was extremely scary." The U.S. filed class action was ultimately dismissed because of a forum selection clause contained in the passenger ticket contract that said that any claims had to be brought against Costa Cruise Lines in Italy. Now, three years later, the Italian Court has approved the class action case, in an order you can view here. This means all passengers aboard this ill-fated cruise have a right to join this class action and obtain compensation including reimbursement of the cost of the cruise as well as compensation based on unfair commercial practices and ruined holiday. Importantly, if any passenger wants to join the class action, they must do so by September 15, 2023. If you were on this voyage and want to join the class, please click here and enter your information. [GN] COSTCO WHOLESALE: Jones Sues Over Falsely Reported Background ------------------------------------------------------------- Stephen R. Jones, individually and on behalf of all other similarly situated individuals v. COSTCO WHOLESALE CORPORATION, Case No. 3:23-cv-00554-RNC (D. Conn., May 1, 2023), is brought under the Fair Credit Reporting Act ("FCRA") as a result of falsely reported criminal background. The FCRA protects employees from false reports by giving them a chance to correct any inaccurate or misleading information before losing their job opportunity. Here, the Defendant COSTCO Wholesale Corporation, hired First Advantage Background Services, Inc. to perform a criminal background check on the Plaintiff Stephen R. Jones during his application process. The criminal background report falsely attributed to the Plaintiff a conviction for drug trafficking that belonged to a different Stephen Jones. The Defendant did not give Plaintiff a copy of the report as required before rejecting his application. Instead, Defendant, consistent with its procedures, summarily withdrew its offer based upon the false report. As a result of Defendant's willful violation of the FCRA, Plaintiff other similarly situated applicants lost their job opportunities and suffered harm, says the complaint. The Plaintiff is a Canadian national residing in Windsor Locks, Connecticut. The Defendant owns and operates a nationwide chain of wholesale discount stores including a location in South Windsor, Connecticut.[BN] The Plaintiff is represented by: Richard Hayber, Esq. Michael Petela, Esq. Thomas Durkin, Esq. HAYBER, McKENNA & DINSMORE, LLC 750 Main Street, Ste. 904 Hanford, CT 06103 Phone: (203) 522-8888 Fax: (860) 218-9555 Email: rhayber@hayberlawfirm.com mpetela@hayberlawfirm.com tdurkin@hayberlawlirm.com COWTOWN BOOT: Toro Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Cowtown Boot Company. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Cowtown Boot Company, Case No. 1:23-cv-04451 (S.D.N.Y., May 26, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Cowtown Boots offers highest quality cowboy boots and western boots at the lowest price.[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 CROSS-LINES RETIREMENT: Coe's Class Certification Bid OK'd in Part ------------------------------------------------------------------ In the case, DONALD COE, LINDA SMITH, and EDWARD YOST, Individually and on behalf of all others similarly situated, Plaintiffs v. CROSS-LINES RETIREMENT CENTER, INC., and YOUNG MANAGEMENT CORP., Defendants, Case No. 22-2047-EFM (D. Kan.), Judge Eric F. Melgren of the U.S. District Court for the District of Kansas grants in part and denies in part the Plaintiffs' Motion for Class Certification. Before the Court is the Plaintiffs' Motion for Class Certification. The named Plaintiffs seek class certification of six issues in their ongoing lawsuit against Defendants Cross-Lines and Young. The lawsuit arises out of the allegedly rampant bed bug infestations prevailing at Cross-Lines' apartment complexes. Each of the named Plaintiffs, two septuagenarians and one octogenarian, rent residential apartments in apartment complexes owned by Cross-Lines and operated by Young, Cross-Lines' property manager. Cross-Lines is a nonprofit corporation, having as its goal the provision of rental housing to elderly families and individuals. Because of its nonprofit status, Cross-Lines receives federal subsidies to purportedly allow it to offer lower rent. The apartments' neglected condition leave elderly and disabled tenants captive to bed-bug infestations, decaying rodent bodies, flooding, leaking, and mold. After the Defendants successfully moved to dismiss two of the Plaintiffs' claims, seven remain: (1) injunctive relief; (2) violations of the Fair Housing Act ("FHA"); (3) violation of the implied warranty of habitability; (4) breach of contract and statutory duty; (5) failure to provide essential services; (6) negligence; and (7) violation of the Kansas Consumer Protection Act. The present Motion focuses on the bed bug infestation. Since 2016, 90% or more of the apartment units at Cross-Lines have had documented bed bug activity, with nearly half of those infested units requiring six or more treatments. The Plaintiffs rely on these numerous and unending infestations for each of their remaining claims. In their present Motion, the Plaintiffs seek certification of an issue class for the following proposed issues: 1. Has the infestation of bed bugs been so pervasive during the class period that every tenant was affected? 2. Did the Defendants breach their standard of care by not requiring, and enforcing, the pest control companies to perform surrounding-unit inspections whenever a unit is found to have bed bugs? 3. Did the Defendants breach their standard of care by refusing, or failing, to perform a full-building inspection of all units (Phase I and Phase II) at the same time? 4. Does the presence of bed bugs in an apartment make that unit unsafe, unsanitary, and/or unfit for living in? 5. Can an apartment which has bed bugs have an above-zero fair market value? 6. Are extermination services essential for an apartment unit in a multi-family housing structure when an adjacent unit has live bed bug activity? If yes, what services are essential (i.e., inspection, treatment, etc.)? Because the Plaintiffs restrict their proposed class to just these issues, Judge Melgren examines Rule 23(a) and (b)(3)'s requirements solely as to these issues. First, he determines whether the Plaintiffs can establish a prima facie case under Rule 23(a)'s four requirements. He finds that (i) the Plaintiffs have sufficiently demonstrated that joinder of all class members is impracticable; (ii) the proposed class shares five other common questions; (iii) all class members would rely on the same legal and remedial theories to recover against the Defendants; and (iv) the Plaintiffs are adequate representatives and the counsel is competent and sufficiently experienced to vigorously prosecute the action on behalf of the class. The Defendants challenge the Plaintiffs' proposed class certification under Rule 23(b)(3), claiming that the Plaintiffs cannot show either predominance or superiority. Naturally, the Plaintiffs disagree. Judge Melgren finds that (i) as to the Plaintiffs' proposed issues two through six, common issues subject to general class wide proof predominate over any individual issues that might arise within those issues; (ii) the Plaintiffs' first proposed issue fails the commonality test; (iii) by certifying the issue class, the Court will conserve judicial resources, as well as those of the parties; (iv) certifying the proposed issue class materially advances the litigation; (v) the Plaintiffs' surviving proposed class issues do not violate the Seventh Amendment; and (vi) class certification of the Plaintiffs' proposed issues two through six is superior to other available methods for fairly and efficiently adjudicating the controversy. The Plaintiffs request that the Court appoint the following attorneys as class counsel: Bryce B. Bell, Mark W. Schmitz, and Jenilee V. Zentrich of Bell Law, LLC; Jeffrey M. Lipman of Lipman Law Firm, P.C.; and Gina Chiala and Amy Sweeny of Davis Heartland Center for Jobs and Freedom. The Defendants offer no objection to any of the propose class counsel. After a review of the relevant factors, Judge Melgren considers the proposed counsel more than adequate and appoints the same as class counsel. In view of his analysis, Judge Melgren grants in part and denies in part the Plaintiffs' Motion for Class Certification. Specifically, he certifies the issue classes for the Plaintiffs' proposed issue two through six, while denying certification of their first proposed issue. Bryce B. Bell, Mark W. Schmitz, Jenilee V. Zentrich, Jeffrey M. Lipman, Gina Chiala, and Amy Sweeny are appointed as the class counsel. A full-text copy of the Court's May 23, 2023 Memorandum & Order is available at https://tinyurl.com/3p9ef8x7 from Leagle.com. CVS ALBANY LLC: Barbara Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against CVS Albany L.L.C. The case is styled as Gina Barbara, individually and on behalf of all others similarly situated v. CVS Albany L.L.C., Case No. 2:23-cv-03298-JMA-JMW (E.D.N.Y., May 1, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. CVS Albany is a drugstore chain selling a variety of beauty & health products, plus some grocery & household items.[BN] The Plaintiff is represented by: James E. Bahamonde, Esq. JAMES E. BAHAMONDE, P.C. 2501 Jody Court North Bellmore, NY 11710 Phone: (646) 290-8258 Fax: (646) 435-4376 Email: james@civilrightsny.com DELTA AIR: Faces Class Action Suit Over Carbon Neutral Claims ------------------------------------------------------------- Allison Lampert and Clark Mindock of WTVB report that Delta Air Lines is facing a proposed class action lawsuit over advertising touting the U.S. carrier as carbon-neutral, according to a complaint filed on May 30, 2023 in California federal court. The complaint, filed on behalf of a California resident who bought Delta tickets to engage in "more ecologically conscious air travel," alleges violations of state consumer protection laws and laws prohibiting unfair and fraudulent business practices. Campaigners have filed hundreds of climate change-related suits to try to accelerate the world's shift to a low-carbon economy and fight an escalating climate crisis. They are increasingly targeting corporate green claims, often based on the voluntary purchase of carbon offsets, where companies buy credits in pollution-lowering projects to offset emissions. Delta was not immediately available for comment. The complaint alleges that Delta is not living up to advertising that presents the Atlanta-based carrier as "the world's first carbon-neutral airline," saying it leads consumers to believe Delta hasn't been responsible for releasing additional carbon into the atmosphere. Global airlines have committed to "net-zero" carbon emissions by 2050, partly through purchasing offsets which critics say do not lower actual emissions. Airlines also use sustainable aviation fuel, made from less-polluting materials like used cooking oil, but that fuel represents a fraction of jet fuel use. Class-action lawsuits allow claims to be brought on behalf of a larger group of people, but it can take years before a judge certifies a class action, which ensures that the group has enough in common to proceed. Richard Marcus, professor at the University of California College of the Law, San Francisco, said the case will likely be challenging for the plaintiffs and expects "vigorous resistance" to class certification. The complaint was filed by California attorneys Jonathan Haderlein and Krikor Kouyoumdjian. In April, a Dutch court heard a non-profit's arguments against European carrier KLM for alleged "greenwashing" in advertisements. [GN] DIGITAL CURRENCY: Wants Judge to Consolidate Two Class Actions -------------------------------------------------------------- Ezra Reguerra, writing for Coin Telegraph, reports that venture capital firm the Digital Currency Group (DCG) and its CEO, Barry Silbert, have requested to consolidate two class-action lawsuits over alleged losses during the crypto winter. In a letter sent to United States District Judge Stefan Underhill in Connecticut, the defendants argued that both cases "arise from the same facts, present overlapping legal issues and propose nearly identical class definitions." The defendants also argued that consolidating the cases would be necessary to avoid conflicting decisions and promote judicial efficiency. In the letter, the defendants informed Underhill that they had asked U.S. District Judge Lewis Liman to transfer the case from New York to Connecticut. The letter stated: "The motion will be fully briefed no later than June 13, 2023, and, if Judge Liman grants the motion to transfer to this Court, Defendants intend to quickly move to consolidate both actions." Within the letter, the plaintiffs in Connecticut contested the move, arguing that it's premature to decide before the case in New York gets approved for transfer. They are also expecting the plaintiffs in New York to oppose the transfer because there is a lot of uncertainty in the nature and scope of the claims. The lawsuit in Connecticut alleges that Silbert orchestrated a misleading transaction to conceal signs of a $1.1 billion implosion after Three Arrows Capital (3AC) started liquidation proceedings. The defendants face allegations of committing securities fraud for making misleading or false statements. Amid the ongoing suits, DCG has decided to close its prime brokerage subsidiary TradeBlock. According to the firm, the decision stems from the state of the broader economy and the uncertain regulatory environment for crypto in the United States. TradeBlock officially started the process of closing down on May 31. [GN] DISH NETWORK: Faces Class Action Over February 2023 Data Breach --------------------------------------------------------------- Christopher Brown, writing for Bloomberg Law, reports that DISH Network Corp. was allegedly negligent in failing to protect the personal information of customers and employees in connection with a February 2023 ransomware attack and data breach, a new proposed federal class action said. Alan Ellerbrock alleged the company failed to take reasonable steps to protect sensitive information, comply with FTC data-security guidelines, monitor its data network, or provide adequate notice of the breach to victims. As many as 10 million customers and 300,000 current and former employees and their family members may have been affected by the breach, according to a complaint filed on May 31 in the US District Court. COURT: D. Colo. DOCKET: No. 1:23-cv-01372 [GN] DOLLAR GENERAL: Hodorovych Complaint Dismissed Without Prejudice ---------------------------------------------------------------- In the case, ALEXANDER HODOROVYCH, individually and on behalf of all others similarly situated, Plaintiff v. DOLLAR GENERAL CORPORATION, Defendant, Case No. 22-cv-03415 (N.D. Ill.), Judge Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants Dollar General's motion to dismiss in its entirety. Hodorovych filed a putative class action complaint against Dollar General, alleging that Dollar General falsely labeled its lidocaine patch products. He alleges Dollar General violated the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), other state consumer fraud acts (on behalf of the consumer class), and the Magnuson Moss Warranty Act ("MMWA"), as well as breached express and implied warranties made to the Plaintiff and the class, provided negligent misrepresentations to the Plaintiff and the class, committed fraud, and unjustly enriched itself at the expense of the Plaintiff and the class. Before the Court is Dollar General's motion to dismiss. Hodorovych is a resident of Illinois and Dollar General is a Tennessee corporation with principal place of business in Tennessee. Dollar general operates 18,000 retail stores nationwide. In addition to selling products made by national consumer brands, it sells products from its own private label brands. One of these brands is DG Health. DG Health manufactures lidocaine pain relief patches (the "Product"). The Plaintiff purchased the Product at Dollar General stores located in Chicago between March and April 2022. The Product is marketed on its front label as a "Maximum Strength Lidocaine Pain Relief Gel-Patch." It is described as a "Lidocaine 4% Topical Anesthetic." The Product's Packaging further notes that it is "Fast-acting," provides "Numbing Relief" and is a "Stay-put flexible patch." The label proclaims that the Product "Lasts up to 12 hours," and the directions on the rear label further state to "Use one patch for up to 12 hours." The Plaintiff brings four categories of claims: an ICFA claim; claims under other state consumer protection statutes on behalf of a purported multi-state class; warranty claims; and other common law claims. The Defendant moves to dismiss all claims. To succeed in a private cause of action under the Consumer Fraud Act, a plaintiff must prove (1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception." The Plaintiff alleges that in general, the Product does not work as promised, and that he would not have purchased the Product, or would have paid less for it, but for its allegedly deceptively marketing techniques. Judge Coleman finds that (i) even if the Product faces the same deficiency as those in the study cited by the Plaintiff, a reasonable consumer would not be deceived; (ii) the Plaintiff fails to identify an OTC lidocaine patch available on the market that is indeed stronger than Dollar General's Product and because 4% is indeed the maximum allowable lidocaine concentration in an OTC patch, the "maximum strength" label is not deceptive; and (iii) nothing on the Product's label is deceptive within the meaning of the ICFA Because the Plaintiff does not allege that his own experience with the Product in some way fell short of his own expectations, Judge Coleman holds that he cannot meet the actual damages prong of the ICFA. Hodorovych's ICFA claim is dismissed without prejudice. The Plaintiff, on behalf of a multi-state class, also alleges violations of other, unnamed states' comparable consumer protection statutes. Because Judge Coleman is dismissing the Plaintiff's ICFA claim, and because the Plaintiff identifies neither which laws he is claiming the Defendant violated nor how those laws might have different standards from the ICFA, she holds that these claims are dismissed as well. Judge Coleman need not address the Defendant's argument that the Plaintiff lacks standing to pursue the multi-state claims until such a point a he has stated at least one viable claim. In his warranty count, Hodorovych alleges breaches of express warranty, the implied warranty of merchantability, the implied warranty of fitness for a particular purpose, and the Magnuson Moss Warranty Act, 15 U.S.C. Sections 2301, et seq. Judge Coleman opines that Hodorovych does not allege that he provided pre-suit notice to Dollar General. Rather, he purports to provide notice through the filing of his complaint. This is inadequate; filing of a complaint is generally not sufficient to provide notice of breach under Illinois law. The Plaintiff raises Negligent Misrepresentation, Fraud, and Unjust Enrichment claims. Judge Coleman need not address the parties' arguments regarding the economic loss doctrine because the Plaintiff has not made any attempt to plead the required elements of a negligent misrepresentation claim. The Plaintiff similarly does not plead the essential elements of a common law fraud claim. Lastly, the Plaintiff concedes that its unjust enrichment claim is pled "in the alternative" and is duplicative of the ICFA claim. Thus, because the Plaintiff fails to plausibly allege the required elements of any of his common law claims, each of them fails and is dismissed without prejudice. Lastly, the Defendant argues that the Plaintiff lacks Article III standing to seek injunctive relief. Judge Coleman holds that the Plaintiff does not plead that he plans to purchase the Product again, and to the extent he found the Product to be deficient (though again, he does not so allege in his complaint), he is unlikely to do so. Past injury, without a threat of future harm, is insufficient to confer Article III standing for the purpose of attaining injunctive relief. Hence, the Plaintiff's requests for injunctive relief are dismissed. For the foregoing reasons, Judge Coleman grants Dollar General's motion to dismiss. Hodorovych's complaint is dismissed without prejudice. The Plaintiff must request leave to file an amended complaint addressing any deficiencies within 30 days or the matter will convert to a dismissal with prejudice. A full-text copy of the Court's May 23, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/2uem3ny6 from Leagle.com. DST SYSTEMS: Loses Bid to Stay Injunction in Leineke Class Suit --------------------------------------------------------------- In the class action lawsuit captioned as PEGGY LEINEKE, v. DST SYSTEMS, INC., Case No. 4:21-09155-NKL (W.D. Mo.), the Hon. Judge Nanette K. Laughrey entered an order denying DST motion to stay the Court's injunction because it has failed to meet its burden of proof. The Court said, "Because DST has failed to show irreparable harm, and the Judgment Creditors would be substantially harmed if the injunction were lifted, and DST has not shown a likelihood of success on the merits, and public interest considerations weigh against lifting the injunction, a stay of the injunction is inappropriate." DST argues that because the Ferguson class includes 9,000 members, it is in the public interest to facilitate settlement. DST disregards the fact that several avenues for settlement remain open to it. In any event, permitting DST to strip the Judgment Creditors of a substantial portion of the value of judgments entered in their favor without their express consent would undermine public confidence in the predictability and reliability of the judicial system. DST Systems moves for stay of the injunction the Court entered on April 10, 2023. On March 31, 2023, the Court entered an order that confirmed arbitration awards in favor of 55 plaintiffs (the "Judgment Creditors") and entered a final judgment in each case. On April 10, 2023, counsel for the Judgment Creditors moved on an emergency basis, but with notice, for a temporary restraining order and preliminary injunction restraining and enjoining DST, the DST Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation Committee of the Board of Directors of DST Systems, Inc., and their respective law firms, and anyone acting on their behalf or in concert with them, "from settling, or attempting to settle, through any class or representative action, the Confirmation Plaintiffs' individual arbitration awards, or any part thereof, unless such settlement is entered into individually and voluntarily by the Confirmation Plaintiff and the attorneys to whom any related fees and costs were awarded." DST Systems is an American company that was acquired by SS&C Technologies in 2018. The company provided advisory, technology and operations outsourcing services to the financial services and healthcare industries. A copy of the Court's order dated May 8, 2023, is available from PacerMonitor.com at https://bit.ly/3pJWwqP at no extra charge.[CC] DST SYSTEMS: Loses Bid to Stay Injunction in McMullin Class Suit ---------------------------------------------------------------- In the class action lawsuit captioned as SHELLEY MCMULLIN, v. DST SYSTEMS, INC., Case No. 4:21-09139-NKL (Court), (W.D. Mo.), the Hon. Judge Nanette K. Laughrey entered an order denying DST motion to stay the Court's injunction because it has failed to meet its burden of proof. The Court said, "Because DST has failed to show irreparable harm, and the Judgment Creditors would be substantially harmed if the injunction were lifted, and DST has not shown a likelihood of success on the merits, and public interest considerations weigh against lifting the injunction, a stay of the injunction is inappropriate." DST argues that because the Ferguson class includes 9,000 members, it is in the public interest to facilitate settlement. DST disregards the fact that several avenues for settlement remain open to it. In any event, permitting DST to strip the Judgment Creditors of a substantial portion of the value of judgments entered in their favor without their express consent would undermine public confidence in the predictability and reliability of the judicial system. DST Systems moves for stay of the injunction the Court entered on April 10, 2023. On March 31, 2023, the Court entered an order that confirmed arbitration awards in favor of 55 plaintiffs (the "Judgment Creditors") and entered a final judgment in each case. On April 10, 2023, counsel for the Judgment Creditors moved on an emergency basis, but with notice, for a temporary restraining order and preliminary injunction restraining and enjoining DST, the DST Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation Committee of the Board of Directors of DST Systems, Inc., and their respective law firms, and anyone acting on their behalf or in concert with them, "from settling, or attempting to settle, through any class or representative action, the Confirmation Plaintiffs' individual arbitration awards, or any part thereof, unless such settlement is entered into individually and voluntarily by the Confirmation Plaintiff and the attorneys to whom any related fees and costs were awarded." DST Systems is an American company that was acquired by SS&C Technologies in 2018. The company provided advisory, technology and operations outsourcing services to the financial services and healthcare industries. A copy of the Court's order dated May 8, 2023, is available from PacerMonitor.com at https://bit.ly/3I6LkuQ at no extra charge.[CC] DST SYSTEMS: Loses Bid to Stay Injunction in Miser Class Suit ------------------------------------------------------------- In the class action lawsuit captioned as Miser v. DST Systems Inc., Case No. 4:21-cv-09023 (W.D. Mo., Filed Aug. 20, 2021), the Hon. Judge Nanette K. Laughrey entered an order denying DST motion to stay the Court's injunction because it has failed to meet its burden of proof. The Court said, "Because DST has failed to show irreparable harm, and the Judgment Creditors would be substantially harmed if the injunction were lifted, and DST has not shown a likelihood of success on the merits, and public interest considerations weigh against lifting the injunction, a stay of the injunction is inappropriate." DST argues that because the Ferguson class includes 9,000 members, it is in the public interest to facilitate settlement. DST disregards the fact that several avenues for settlement remain open to it. In any event, permitting DST to strip the Judgment Creditors of a substantial portion of the value of judgments entered in their favor without their express consent would undermine public confidence in the predictability and reliability of the judicial system. DST Systems moves for stay of the injunction the Court entered on April 10, 2023. On March 31, 2023, the Court entered an order that confirmed arbitration awards in favor of 55 plaintiffs (the "Judgment Creditors") and entered a final judgment in each case. On April 10, 2023, counsel for the Judgment Creditors moved on an emergency basis, but with notice, for a temporary restraining order and preliminary injunction restraining and enjoining DST, the DST Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation Committee of the Board of Directors of DST Systems, Inc., and their respective law firms, and anyone acting on their behalf or in concert with them, "from settling, or attempting to settle, through any class or representative action, the Confirmation Plaintiffs' individual arbitration awards, or any part thereof, unless such settlement is entered into individually and voluntarily by the Confirmation Plaintiff and the attorneys to whom any related fees and costs were awarded." DST Systems is an American company that was acquired by SS&C Technologies in 2018. The company provided advisory, technology and operations outsourcing services to the financial services and healthcare industries. A copy of the Court's order dated May 8, 2023, is available from PacerMonitor.com at https://bit.ly/41I9Zgs at no extra charge.[CC] DST SYSTEMS: Loses Bid to Stay Injunction in Newtal Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as McManus Newtal v. DST Systems Inc., Case No. 4:21-cv-09185 (W.D. Mo., Filed Nov. 8, 2021), the Hon. Judge Nanette K. Laughrey entered an order denying DST motion to stay the Court's injunction because it has failed to meet its burden of proof. The Court said, "Because DST has failed to show irreparable harm, and the Judgment Creditors would be substantially harmed if the injunction were lifted, and DST has not shown a likelihood of success on the merits, and public interest considerations weigh against lifting the injunction, a stay of the injunction is inappropriate." DST argues that because the Ferguson class includes 9,000 members, it is in the public interest to facilitate settlement. DST disregards the fact that several avenues for settlement remain open to it. In any event, permitting DST to strip the Judgment Creditors of a substantial portion of the value of judgments entered in their favor without their express consent would undermine public confidence in the predictability and reliability of the judicial system. DST Systems moves for stay of the injunction the Court entered on April 10, 2023. On March 31, 2023, the Court entered an order that confirmed arbitration awards in favor of 55 plaintiffs (the "Judgment Creditors") and entered a final judgment in each case. On April 10, 2023, counsel for the Judgment Creditors moved on an emergency basis, but with notice, for a temporary restraining order and preliminary injunction restraining and enjoining DST, the DST Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation Committee of the Board of Directors of DST Systems, Inc., and their respective law firms, and anyone acting on their behalf or in concert with them, "from settling, or attempting to settle, through any class or representative action, the Confirmation Plaintiffs' individual arbitration awards, or any part thereof, unless such settlement is entered into individually and voluntarily by the Confirmation Plaintiff and the attorneys to whom any related fees and costs were awarded." DST Systems is an American company that was acquired by SS&C Technologies in 2018. The company provided advisory, technology and operations outsourcing services to the financial services and healthcare industries. A copy of the Court's order dated May 8, 2023, is available from PacerMonitor.com at https://bit.ly/3BoeXUF at no extra charge.[CC] DST SYSTEMS: Loses Bid to Stay Injunction in Revis Class Suit ------------------------------------------------------------- In the class action lawsuit captioned as KRISTY HILL REVIS, v. DST SYSTEMS, INC., Case No. 4:21-09082-NKL (W.D. Mo.), the Hon. Judge Nanette K. Laughrey entered an order denying DST motion to stay the Court's injunction because it has failed to meet its burden of proof. The Court said, "Because DST has failed to show irreparable harm, and the Judgment Creditors would be substantially harmed if the injunction were lifted, and DST has not shown a likelihood of success on the merits, and public interest considerations weigh against lifting the injunction, a stay of the injunction is inappropriate." DST argues that because the Ferguson class includes 9,000 members, it is in the public interest to facilitate settlement. DST disregards the fact that several avenues for settlement remain open to it. In any event, permitting DST to strip the Judgment Creditors of a substantial portion of the value of judgments entered in their favor without their express consent would undermine public confidence in the predictability and reliability of the judicial system. DST Systems moves for stay of the injunction the Court entered on April 10, 2023. On March 31, 2023, the Court entered an order that confirmed arbitration awards in favor of 55 plaintiffs (the "Judgment Creditors") and entered a final judgment in each case. On April 10, 2023, counsel for the Judgment Creditors moved on an emergency basis, but with notice, for a temporary restraining order and preliminary injunction restraining and enjoining DST, the DST Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation Committee of the Board of Directors of DST Systems, Inc., and their respective law firms, and anyone acting on their behalf or in concert with them, "from settling, or attempting to settle, through any class or representative action, the Confirmation Plaintiffs' individual arbitration awards, or any part thereof, unless such settlement is entered into individually and voluntarily by the Confirmation Plaintiff and the attorneys to whom any related fees and costs were awarded." DST Systems is an American company that was acquired by SS&C Technologies in 2018. The company provided advisory, technology and operations outsourcing services to the financial services and healthcare industries. A copy of the Court's order dated May 8, 2023, is available from PacerMonitor.com at https://bit.ly/3M3a9ZR at no extra charge.[CC] EAST BAY: Cal. App. Affirms Judgment Entered in Campana Class Suit ------------------------------------------------------------------ In the case, JAYNIE CAMPANA et al., Plaintiffs and Appellants v. EAST BAY MUNICIPAL UTILITY DISTRICT, Defendant and Respondent, Case No. A163054 (Cal. App.), the Court of Appeals of California, First District, Division Four, affirms the judgment entered in favor of East Bay Municipal Utility District. Plaintiffs Jaynie Campana and John Evilsizor appeal a judgment entered in favor of East Bay Municipal Utility District (EBMUD) on their purported class action complaint alleging that the tiered-rate water structure used by EBMUD to determine the cost of residential and commercial water service in Alameda and Contra Costa Counties violates article XIII D, section 6, subdivision (b) of the California Constitution. They contend the trial court erred in sustaining without leave to amend EBMUD's demurrer to their first amended complaint. Proposition 218, approved by voters in 1996, is one of a series of voter initiatives restricting the ability of state and local governments to impose taxes and fees. Among other things, Proposition 218 added article XIII D to the California Constitution, which imposes "imposes distinct procedural and substantive limitations" on a local agency's ability to extend, impose or increase "property-related fees" for services." In City of Palmdale v. Palmdale Water Dist. (2011) 198 Cal.App.4th 926, 936-938, the court held that Proposition 218 requires public water agencies utilizing a tiered-rate water structure to be able to prove that charges assessed at the various tiers are proportional to the costs of providing water service to each parcel. In Capistrano Taxpayers Assn., Inc. v. City of San Juan Capistrano (2015) 235 Cal.App.4th 1493, 1497, the court agreed with the court in Palmdale and held that that Proposition 218 requires public water agencies to calculate the actual costs of providing water at various levels of usage. The Plaintiffs' operative, first amended complaint alleges that EBMUD is a public agency, municipal corporation, and municipal water and wastewater utility that provides water and wastewater service to the residents of Alameda County and Contra Costa County and that the Plaintiffs reside in EBMUD's service area and have paid for and received water service from EBMUD since before July 2018. According to the complaint, EBMUD determines the cost of water service based on the volume of water used. Under "Schedule A," which applied to both Plaintiffs, there are three tiers of water usage and each successive tier is charged a higher rate than the previous tier. Primarily, the Plaintiffs allege that this tiered water rate structure violates the requirement of section 6(b)(3) that the amount charged for water service will not exceed the proportional cost of the service attributable to the parcel as interpreted in City of Palmdale v. Palmdale Water Dist., supra, 198 Cal.App.4th 926 and Capistrano Taxpayers Assn., Inc. v. City of San Juan Capistrano, supra, 235 Cal.App.4th 1493. The complaint explains, under EBMUD's method of tiered-rate pricing, some parcels are charged proportionally more than other parcels for the use of water. Each parcel is charged at the basic rate for a certain baseline of water use. If the use exceeds the baseline, the water rate is increased even though the cost to provide that additional water has not increased. This results in some parcels paying a higher rate than other parcels. On July 17, 2019, the Plaintiffs mailed a claim pursuant to the Government Claims Act (Gov. Code, Section 810 et seq.) to EBMUD seeking a refund of water service charges collected in violation of section 6, subdivision (b) since July 17, 2018. On Jan. 13, 2020, after the statutory time period for response had lapsed, plaintiffs filed the present action. In May 2020, EBMUD filed a demurrer to the complaint arguing that the Plaintiffs' complaint was barred by the 120-day statute of limitations found in Public Utilities Code section 14402, because the complaint seeks to challenge water rates that were adopted in 2017 and 2019. The court agreed and sustained the demurrer with leave to amend. The Plaintiff's first amended complaint was filed in January 2021 and EBMUD again filed a demurrer to the amended complaint on the ground that the complaint was untimely under Public Utilities Code section 14402. The court took judicial notice of resolutions showing that in July 2017, EBMUD adopted the water rates for fiscal years 2018 and 2019 and in July 2019, EBUMD adopted the water rates for fiscal years 2020 and 2021 and sustained the demurrer without leave to amend. Judgment was entered and the Plaintiffs timely filed a notice of appeal. The parties dispute the gravamen of the complaint. The Plaintiffs characterize their complaint seeking "a partial refund of existing water charges" assessed and collected "in excess of constitutional limits under section 6(b)." EBMUD contends the gravamen of the complaint is a challenge to its adoption of water rates that the Plaintiffs assert violate section 6(b). The Court of Appeals finds that the Plaintiffs' "partial refund claim" is based on the alleged illegality of the tiered-rate fee structure previously adopted by EBMUD. It also finds that the three-year statute of limitations under Code of Civil Procedure section 338, subdivision (a), for an action "upon a liability created by statute," has long since lapsed. Assuming notice was required under the Government Claims Act, any time requirements imposed by that Act did not extend the statute of limitations applicable to the Plaintiffs' action seeking a refund of allegedly illegal fees. Because the gravamen of the complaint is a challenge to the tiered-rate structure adopted by EBMUD's 2017 and 2019 resolutions, the validation statute's shorter statute of limitations (which had already run by the time any government claim was presented) governs. Thus, the trial court correctly sustained the demurrer. The Court of Appeals agrees with the trial court's finding that the Plaintiffs' claim is barred by the applicable statute of limitations. Accordingly, it affirms the judgment. A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/5y5wwayf from Leagle.com. BERDING & WEIL LLP, Fredrick A. Hagen -- fhagen@berdingweil.com -- Paul G. Kerkorian -- pkerkorian@whitecanepa.com -- Counsel for the Plaintiffs and Appellants. Derek McDonald -- derek.mcdonald@bakerbotts.com -- Felicity Grisham, Counsel for the Defendant and Respondent. ELI LILLY: Settles Insulin Pricing Class Action Suit for $13.5M --------------------------------------------------------------- John Russell of The Indiana Lawyer reports that Eli Lilly and Co. has agreed to pay $13.5 million to settle a class-action lawsuit filed six years ago that alleged the Indianapolis-based drugmaker systematically overpriced its insulin. The settlement covers older insulins in Lilly's portfolio sold under the brand names Humalog, Humulin and Basaglar. Those are marketed in the Kwikpen cartridge or vials. Under the agreement, Lilly also has agreed to continue its cap on out-of-pocket costs for its users at $35 a month for four years. The settlement agreement was submitted May 26 in federal court in New Jersey. The settlement contains no admission of liability or wrongdoing by Lilly and is subject to class notice and final approval by the court approved by a judge. Millions of Americans use insulin to treat their diabetes, but the average cost of insulin has nearly tripled over the past decade, according to the American Diabetes Association. The agreement comes about three months after Lilly, under growing pressure from consumers and the government, announced it was cutting prices by 70% for some of its most commonly prescribed insulins and expanding a program that caps patient out-of-pocket costs at $35 or less a month. That moves came less than a month after President Biden called on Congress to pass a law placing a universal price cap on insulin for all diabetes patients. The Inflation Reduction Act of 2022 capped insulin prices for Medicare recipients at $35 per month, but the law did not apply to younger diabetes patients. Lilly said the settlement agreement would cover all claims, notice costs, settlement administration expenses and plaintiffs' attorney fees for a nationwide class of Lilly insulin users from 2009 to the present. "This agreement is a reflection of our continued commitment to close gaps in the U.S. health care system for people with diabetes and follows our recent landmark announcement cutting insulin prices by 70% and enhancing our $35-per-month Lilly Insulin Value Program," Lilly said in a statement this week to Indianapolis Business Journal. The lawsuit, filed in 2017 by 57 diabetics, accused Lilly and two other insulin makers, Novo Nordisk and Sanofi, of raising insulin sticker prices by more than 150% over five years, forcing diabetics to forgo the drug, take less insulin than needed or use expired versions. The complaint noted that some patients intentionally failed to take proper amounts of insulin to wind up in emergency rooms, where they could get free samples of the drug. Novo Nordisk and Sanofi have yet to settle the lawsuit. [GN] FADA GROUP: Fails to Provide Proper Wages, Yan Suit Claims ---------------------------------------------------------- QUN XUE YAN on his own behalf and on behalf of others similarly situated Plaintiff v. FADA GROUP INC d/b/a Sogo and; MARK HUO, and JUN LI, Defendants, Case No. 2:23-cv-02868 (D.N.J., May 25, 2023) is brought by the Plaintiff, on behalf of himself as well as other employees similarly situated, against the Defendants for alleged violations of the Fair Labor Standards Act and the New Jersey Wage and Hour Law, arising from Defendants' failure to pay its employees minimum wage for each hour worked and overtime compensation for all hours worked over 40 each workweek. Plaintiff Qun Xue Yan was employed by Defendants to work as a chef and driver at Defendant's restaurant Fada Group Inc d/b/a Sogo from January 1, 2010 to April 17, 2021. Fada Group Inc., d/b/a Sogo, is a restaurant company based in Denville, New Jersey.[BN] The Plaintiff is represented by: Aaron Schweitzer, Esq. Tiffany Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 110 Flushing, NY 11355 Telephone: (718) 762-1324 E-mail: troylaw@troypllc.com FASTENAL COMPANY: Final Order & Judgment Entered in Jackson Suit ---------------------------------------------------------------- Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California enters Final Order and Judgment in the case, MIESHIA MARIE JACKSON, et al., Plaintiffs v. FASTENAL COMPANY, Defendant, Case No. 1:20-cv-00345-SAB (E.D. Cal.). Jackson brings the action on behalf of herself and others similarly situated against Fastenal, alleging various wage and hour violations under California state law. On May 18, 2023, the Court issued an order granting, as modified, the Plaintiff's motion for final approval of class action settlement and motion for attorneys' fees. Final judgment is, therefore, entered pursuant to the terms of the parties' settlement agreement, except as to the terms concerning attorneys' fees and service awards, which were modified by the Court's final approval order. A full-text copy of the Court's May 23, 2023 Final Order & Judgment is available at https://tinyurl.com/yc2nb4a8 from Leagle.com. FORD MOTOR: Faces Class Action Over Defective Rear Subframe Bolt ---------------------------------------------------------------- Corrado Rizzi, writing for ClassAction.org, reports that a proposed class action alleges certain 2020-present Ford Explorer 2.3L or 3.0L ST models are equipped with a defective rear axle horizontal mounting bolt in their rear subframe assembly that can fracture, causing catastrophic damage, potentially while a vehicle is in use. The particular Ford Explorer models at issue are each equipped with a rear subframe assembly -- the critical stability-providing structure below the frame that supports the axle, suspension and powertrain -- attached to the vehicle by only one rear axle horizontal mounting bolt. The 82-page lawsuit says that when this crucial mounting bolt fractures, it will in turn cause the rear driveshaft assembly or its component parts to suddenly and violently disconnect from the vehicle, often while it is in motion. When the rear subframe bolt fails, the case elaborates, the all-important rear differential can suddenly drop, which can cause the "unexpected destruction of a broad array of suspension, driveshaft assembly, and exhaust system components." "This sudden failure can result in a total loss of control of the Class Vehicle while driving, as well as a drastically increased risk of collision due to the driver's inability to maintain steering, braking, and speed control, thereby putting consumers, passengers, and bystanders in danger," the complaint warns, alleging Explorer drivers, "[f]or this reason . . . have consistently reported fear of driving their [vehicles]." According to the lawsuit, Ford has been aware since at least 2019, and "likely several years prior," that the Ford Explorers at issue required a four-bolt rear subframe assembly with two rear axle mounting bolts. Per the case, the specs for the Ford Explorer ST, an all-new, performance-oriented trim released in 2020, show that the four-bolt assembly is required to withstand the vehicles' higher horsepower and torque ratings. The suit says that although Ford implemented a four-bolt, two-mounting-bolt subframe in "a small subset" of its 2020 Ford Explorer STs, the automaker at some point began "willfully [substituting] the unsafe rear frame assembly," e.g., one with only a single rear axle mounting bolt, "for the safer-as-designed four bolt assembly" in its Explorer STs, allegedly due to COVID-19 pandemic-related supply chain problems at the start of 2020. As the case tells it, Ford has thus known since the beginning of 2020 that many Explorer 2.3L and 3.0L ST models were equipped with defective rear subframe assemblies that would need frequent repairs, fail prematurely, require replacement and experience the aforementioned bolt-fracture issues -- and every related problem -- during operation. "Moreover, Defendant not only refused to disclose the alleged Rear Subframe Defect to consumers, they also actively concealed, and continue to conceal, their knowledge concerning the Rear Subframe Defect," the suit adds, claiming that proposed class members would not have bought or leased their Explorers had they known they suffered from the rear subframe bolt defect. Per the case, Ford, in an effort to conceal the problem, has instructed dealers to tell Explorer drivers that their vehicles are "operating normally" or as intended when they are not, or to otherwise "give excuses for sub-par performance such as the rear subframe bolt fracturing." Moreover, although Ford issued a recall in April 2022 for the rear subframe issue, the recall repair consisted of a software update "to engage the parking brake and prevent rollaway" in the event the bolt fractures while the vehicle is parked. Per the suit, this repair has done nothing to address the significant safety risk of the subframe failing while an affected vehicle is in motion. The lawsuit looks to cover all persons and entities in the United States who bought or leased a 2020 -- present model year Ford Explorer 2.3L or 3.0L ST with a rear subframe assembly attached to the vehicle with only one rear axle horizontal mounting bolt. [GN] GANNETT CO: Bid to Dismiss Anderson Suit Stayed Pending Discovery ----------------------------------------------------------------- In the case, NICHOLE ANDERSON, on behalf of herself and all others similarly situated, Plaintiff v. GANNETT CO., INC., Defendant, Civil Action No. 22-05088 (GC) (RLS) (D.N.J.), Judge Georgette Castner of the U.S. District Court for the District of New Jersey stays the Defendant's Motion to Dismiss and to Strike the Class Action Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f). Anderson is a resident of Franklin Park, New Jersey. She alleges that, on Nov. 18, 2021, she purchased a Courier News subscription from Gannett, which was priced at $1 for the first six months and, upon automatic renewal, $9.99 (plus any applicable sales tax) per month. The subscription was "digital only" and provided 24/7 access to the local news website mycentraljersey.com. Gannett is a subscription-led and digitally focused media and marketing solutions company whose portfolio includes USA Today and hundreds of local media outlets in 46 states, including the Courier News based in Bridgewater, New Jersey. When Anderson purchased her subscription to the Courier News in 2021, Gannett's contractual terms promised Anderson and customers like her that they could cancel their subscription "at any time," at no added cost, up to the date when the subscription was set to automatically renew at the higher price. On May 14, 2022, Anderson used Gannett's online chat service to notify Gannett that she wished to end her subscription to the Courier News. Gannett tried to persuade Anderson to keep the subscription, but when Anderson insisted on canceling, Gannett confirmed that the subscription would be canceled. Despite Anderson's attempt at canceling her subscription to the Courier News before it was set to automatically renew, Gannett charged Anderson the higher $9.99 per month subscription fee approximately one month later. As a result, Anderson paid nearly $10 for a monthly subscription to the Courier News even after she had attempted to cancel. When Anderson became aware of the charge, she once again used Gannett's online chat service to try to cancel her subscription. Gannett confirmed that Anderson's subscription would be canceled, and she subsequently received email confirmation that the subscription had been canceled. There are purportedly several online reviews (though Anderson does not plead either the online location of the reviews or who allegedly posted them or when they were posted) that complain of the same problem as that faced by Anderson, i.e., individuals attempting to cancel subscriptions at Gannett publications and continuing to be charged notwithstanding their attempt(s) to cancel. On Aug. 17, 2022, Anderson filed a putative class action Complaint, which alleges that Gannett routinely fails to honor consumers' requests to stop their newspaper subscriptions from automatically renewing and, instead, continues to charge them subscription fees without their authorization in breach of the express terms of its contract. Pursuant to Rule 23, Anderson seeks to represent a class consisting of "all consumers who cancelled their Gannett-owned newspaper subscription but were subsequently charged," and a subclass consisting of "all consumers who cancelled their Courier News subscription but were subsequently charged. Those excluded from the proposed class include "persons who received refunds after being charged any additional amounts after they cancelled their subscription." Anderson alleges that the classes are likely to include thousands of individuals. Anderson brings a claim against Gannett on behalf of the subclass for violations of New Jersey's Consumer Fraud Act ("NJCFA"), N.J. Stat. Ann. Sections 56:8-1, et seq. (Count I). She also brings claims on behalf of both the class and subclass for violations of the Electronic Fund Transfer Act ("EFTA"), 15 U.S.C. Sections 1693, et seq. (Count II); breach of contract, including breach of the covenant of good faith and fair dealing (Count III); and unjust enrichment (Count IV). On Oct. 18, 2022, Gannett moved to dismiss the Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6), and to strike the class allegations pursuant to Rule 12(f). After an extension of time, Anderson opposed on Dec. 5, 2022. Gannett replied on Jan. 9, 2023. In moving to dismiss the Complaint, Gannett contends that Anderson wants to improperly turn the alleged human error of one employee into a class action litigation. It submits that there are several grounds to dismiss and/or strike the claims against it pursuant to Rules 12(b)(1), 12(b)(6) and 12(f). The preliminary Rule 12(b)(1) ground advanced by Gannett is that Anderson never actually paid the disputed subscription fee, and as a result, has no injury-in-fact sufficient for Article III standing. To substantiate this allegation, Gannett submits an Oct. 17, 2022 declaration from Blair Yoke, its Executive Escalations Manager, who is responsible for overseeing the customer service escalations process. Yoke declares under penalty of perjury that Gannett has no record of Anderson contacting them on May 14, 2022, despite Gannett having a system in place to document any outreach by customers, and instead that their record of online chats shows Anderson reached out on June 11, 2022, and again on June 23, 2022, to cancel, which was after the monthly rate had been increased to $9.99 per month. Yoke also attests that Gannett's internal transaction records show that Anderson made no further payments to Gannett after she reached out on June 11. In opposition, Anderson relies heavily on Davis v. Wells Fargo, 824 F.3d 333 (3d Cir. 2016), for the argument that Gannett's Article III standing challenge is actually a merits-based challenge that should not be decided on a motion to dismiss. Even if appropriate for a decision now, Anderson maintains that, in fact, she contacted Gannett to cancel on May 14, 2022, and was subsequently charged a $9.99 fee on May 21, 2022. Anderson argues that Gannett's evidence that she did not contact them in May 2022 is inconclusive and should not be relied on. If the Court does intend to decide the standing issue now, Anderson asks that the Court penult the parties an opportunity to conduct limited jurisdictional discovery as to this issue. On reply, Gannett contends that Anderson has not met her burden of demonstrating standing because the evidence before the Court overwhelmingly shows that she has not been injured and she relies entirely on a self-serving declaration, which does nothing more than parrot the allegations in the complaint. Judge Castner opines that before she definitively decides the issue of standing in the case pursuant to Rule 12(b)(1), she believes it appropriate to grant the Plaintiff's request that the parties be provided a brief opportunity to conduct limited discovery on the issue of whether Anderson has an injury-in-fact. In order to create the necessary evidentiary record, the Court is authorized to order such targeted jurisdictional discovery. Because resolving the standing issue against the Plaintiff would terminate the action in its entirety, because there is a relatively straightforward factual dispute as to whether she has an injury, and because Gannett has submitted documented evidence (including on reply to which the Plaintiff was not able to respond) related to searches in its databases conducted without her being able to demand clarification or seek any further documentation, Judge Castner believes this limited discovery on the issue of subject matter jurisdiction is warranted -- specifically, evidence regarding the timing of Anderson's cancelation request(s) and any charge(s) from Gannett and payment(s) obtained from Anderson subsequent to the cancelation request(s). The other bases Gannett proffered to dismiss the Complaint and class action allegations (pursuant to Rule 12(b)(6) and Rule 12(f)) will be stayed without prejudice as to their renewal, if necessary, after the issue of standing is first resolved by the Court. For these reasons, the Defendant's Motion to Dismiss is stayed. The parties will have 60 days in which to conduct limited discovery and then submit additional briefing as to the Defendant's factual attack as to whether the Plaintiff has an injury-in-fact necessary for Article III standing. An appropriate Order follows. A full-text copy of the Court's May 23, 2023 Memorandum Opinion is available at https://tinyurl.com/2s4b286a from Leagle.com. GOOGLE INC: July 31 Settlement Claim Filing Deadline Set -------------------------------------------------------- The following statement is being issued by Kroll Settlement Administration regarding the Google Search Engine Settlement. A proposed Settlement has been reached in a class action lawsuit called In re Google Referrer Header Privacy Litigation, Case No. 5:10-cv-4809-EJD, pending in the U.S. District Court for the Northern District of California. The lawsuit claims that Google improperly shared Class Member search queries with third-party websites and companies between October 25, 2006 and September 30, 2013. Google denies any wrongdoing and the Court has not decided who is right or wrong. Defendants are entering into this settlement to avoid burdensome and costly litigation and to focus on timely addressing consumer complaints. Who is included? You are included as a Settlement Class Member if you used Google Search and clicked on a Search link at any time on or between October 25, 2006 and September 30, 2013. The Settlement Class also includes anyone who could bring any of the claims in the Lawsuit on behalf of these users of Google Search, such as representatives, heirs, administrators, and assigns. What does the Settlement provide? Under the Settlement, Google will pay $23 million to make payments to settlement class members, payments to class representatives, attorneys' fees, litigation costs, and settlement administration costs related to the Settlement. Google will also revise its "FAQs" and "Key Terms" webpages to include conspicuous, clear and concise explanations of how and when search queries may be disclosed to third parties via referrer headers. The only way to receive benefits from the proposed Settlement is to file a claim. Claim Forms may be submitted online or mailed to the Settlement Administrator at: In re Google Settlement, c/o Kroll Settlement Administration, P.O. Box 225391, New York, NY 10150-5391. The deadline to file a claim is July 31, 2023. What are your options? File a Claim. You must submit a Claim Form to be eligible to receive a payment under the Settlement. The deadline to file a claim is July 31, 2023. Claim Forms must be submitted online at RefererHeaderSettlement.com or mailed to the Settlement Administrator at: In re Google Referrer Header Settlement, c/o Kroll Settlement Administration, P.O. Box 225391, New York, NY 10150-5391. Do nothing. You will not receive any benefits from the Settlement. You will be legally bound by decisions of the Court and you give up your right to sue the Defendant relating to the claims resolved by this Settlement. Exclude Yourself. If you do not want to be included in the Settlement, you must submit a written request to the Settlement Administrator, Settlement Class Counsel, and Defendants' Counsel by July 31, 2023. You will keep your right to sue Defendants about the claims in this case, but you will not receive money. Detailed instructions on how to exclude yourself can be found at RefererHeaderSettlement.com. Object. You have the right to object to the Settlement and still get benefits. If you want to object to or tell the Court what you think about the Settlement, you must submit your Objection in writing by July 31, 2023. Detailed instructions on how to object can be found at RefererHeaderSettlement.com. The Court has scheduled a Final Approval Hearing for the Settlement of this case on October 12, 2023 at the San Jose Courthouse, Courtroom 4, 5th Floor, 280 South 1st St, San Jose, CA 95113 at 9:00 a.m. PST to consider: 1) whether to approve the Settlement; 2) any objections; 3) the requests for awards to the Settlement Class Representative of $5,000 each; and 4) the request for an award of costs as well as attorneys' fees of up to 25% of the Settlement Fund. Motions for attorneys' fees and costs are due June 26, 2023. You may attend the Final Approval Hearing and ask to be heard by the Court, but you do not have to attend. Attorneys' fees and expense requests will be posted on RefererHeaderSettlement.com, after they are filed with the Court. This is only a summary. For more information about the settlement and benefits, visit RefererHeaderSettlement.com or call toll-free 1-833-512-2306. [GN] GOOGLE UK: English High Court Rejects Suit Over Private Info Use ---------------------------------------------------------------- CMS Law - Now reports that on 19 May the English High Court rejected an 'opt-out' class action brought on behalf of approximately 1.6 million people in Andrew Prismall v (1) Google UK Limited and (2) DeepMind Technologies Limited [2023] EWHC 1169 (KB). Background Mr Prismall brought this 'opt-out' claim pursuant to the 'representative action' mechanism set out in CPR 19.8(1) (termed CPR 19.6 prior to 6 April 2023). The claim was brought in the tort of misuse of private information ('MOPI') and sought damages on a class-wide basis. The Representative Claimant alleged that the Defendants had obtained, stored and used identifiable medical records of the class for the purposes of developing a medical app without class members' actual or implied consent. The Defendants applied - successfully - to strike out the representative claim. CPR 19.8 representative claims CPR 19.8(1) is a potentially powerful class action mechanism whereby a representative can bring (or defend) a claim on behalf of a class of persons who have not actively elected to join the litigation. The essential elements of rule 19.8(1) are as follows: "Where more than one person has the same interest in a claim - (a) the claim may be begun; or (b) the court may order that the claim be continued, by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest." Where the same interest test is met, the court will then exercise its discretion on whether to permit the representative action to proceed. The shadow of Lloyd v Google The same interest test has historically been interpreted strictly, but in Lloyd v Google LLC [2021] UKSC 50 the Supreme Court relaxed it, such that it would usually be met provided that there is no conflict of interests between class members. Furthermore, the fact that a defendant may have defences to claims from some class members does not preclude the same interest test being met. Lloyd v Google also confirmed that what is now CPR 19.8(1) can facilitate class actions seeking damages on a class-wide basis, but what limits the scope of using the mechanism for this purpose is that calculating those damages would typically necessitate "an individualised assessment which raises no common issues and [which] cannot fairly or effectively be carried out without the participation in the proceedings of the individuals concerned". See here for our earlier article on the Supreme Court's judgment in Lloyd v Google. The claim in Prismall v Google The present claim was brought in the tort of MOPI, as opposed to Lloyd v Google, which alleged breach of section 13 of the Data Protection Act 1998 ('DPA'). As noted at paragraph 66 of the judgment, liability for MOPI has a two-stage test. "Stage one is whether the claimant objectively has a reasonable expectation of privacy in the relevant information. If this is shown [and such expectation has been breached], then stage two is whether that expectation is outweighed by a countervailing interest of the defendant." The Defendants argued that the circumstances of the class members were so varied, that the Representative Claimant has no real prospect of showing that all class members had a claim in MOPI and that, accordingly, the same interest test was not met. The Representative Claimant's counsel accepted that if some members of the represented class "are not able to establish the ingredients of a viable claim, including that they have a realistic prospect of establishing a reasonable expectation of privacy, then the ‘same interest’ requirement is not met" (paragraph 101). In other words, if it was not possible for the Representative Claimant to show that all members of the class had a viable claim, then the same interest test was not met and the claim would fail. Recognising that class members had different circumstances and that they were not individually adducing evidence, the Representative Claimant pursued the claim on the basis of an 'irreducible minimum' of circumstances applicable to each member of the class. He contended that the representative claim should proceed if it could be shown that the lowest common denominator among the class members met the requirements of a MOPI claim. Applying the 'irreducible minimum' approach to MOPI The Representative Claimant argued that all information in the class members' medical records conferred a reasonable expectation of privacy. The court rejected this argument, noting that there were a range of individual circumstances across the class which were relevant to whether there was a reasonable expectation of privacy, including whether a class member had made material public. The court identified the 'irreducible minimum' that applied to each of the variables within the class composition in order to avoid an individualised assessment. Paragraph 166 listed the 'irreducible minimum' criteria, which included the following elements for some class members: only names and addresses were recorded and transferred to the Defendants, with no or very limited and generalised actual medical information involved; there was no sensitivity or stigma attached to the relevant medical condition; and the information about the hospital visit was already in the public domain. The court concluded that the 'irreducible minimum' did not give a realistic prospect of establishing a reasonable expectation of privacy or of "crossing the de minimis threshold in relation to such expectation" (paragraph 168). Accordingly, the claim was found unsuitable for CPR 19.8 and was struck out. Court's reasoning on quantum Because the claim failed on the same interest test and reasonable expectation of privacy, the court did not need to decide on quantum. Nevertheless, the court observed that based on substantially the same lowest common denominator assessment as in the hypothetical scenario set out above, the irreducible minimal harm suffered by each of the class members was trivial, and any attempt to demonstrate that it was more than trivial would have required individualised assessment, which was not possible in a representative action. Conclusion A significant difference between Prismall v Google and Lloyd v Google is that in the latter, the 'lowest common denominator' / 'irreducible minimum' approach only arose on the issue of awarding class-wide damages. In that case, the Supreme Court held - even if it was possible to claim under section 13 DPA for loss of control damages, the lowest common denominator for the class fell short of the de minimis threshold. In Prismall v Google the 'irreducible minimum' approach was applied to the factual variations of the class to assess whether there was a class-wide reasonable expectation of privacy. As noted above, this followed from the Representative Claimant's concession that the same interest test would not be met unless it could be shown that all class members had a viable claim. In Lloyd v Google the Supreme Court interpreted the same interest test as being an assessment of whether there were conflicts between class members (paragraphs 72 - 74). As identified at paragraph 99 of Prismall v Google, the Supreme Court held that "a defence that applies to only some members of the class will not preclude the "same interest" test from being met, provided there is no conflict of interest." In Commission Recovery Limited and Marks & Clerk LLP and Long Acre Renewals [2023] EWHC 398 (Comm), the High Court recently permitted a representative action to proceed notwithstanding that the defendant may have had defences to certain sub-categories of the class members. See our comment on that judgment here. Showing that class members have a viable claim is essentially a question of applying the class definition to the elements of the cause of action, where circumstances applicable to each class member are reduced to the irreducible minimum to avoid the need for individualised evidence. This will typically be difficult for MOPI claims, but we expect to see further creative claims which will continue to test the boundaries of the CPR 19.8 representative action regime. [GN] INSIGNIA FINANCIAL: Barrister to Defend Shareholders' Class Suit ---------------------------------------------------------------- Aleks Vickovich of Financial Review reports that barrister Michael Hodge KC, who in 2018 was counsel assisting the Hayne royal commission, will act for aggrieved shareholders of wealth manager Insignia Financial in a class action that goes to trial next week. An investor lawsuit against the ASX-listed wealth giant, formerly known as IOOF, is expected to begin in the Federal Court on June 5 and run for about five weeks. Led by Shine Lawyers and bankrolled by litigation funder LLS, the action alleges the company failed to disclose material misconduct including alleged insider trading and conflicts of interest, resulting in financial losses for shareholders. Insignia - formed by the merger of IOOF and National Australia Bank's MLC - has lost about 65 per cent of its market value since the royal commission, which heard evidence of misconduct by senior executives at the then-IOOF. Its shares fell by 1.7 per cent to $2.88 on May 31, 2023. Shareholders who purchased Insignia shares between March 1, 2014, to July 7, 2015, are eligible to join the class action. The announcement comes just one day after former royal commissioner and High Court judge Kenneth Hayne lambasted ongoing "conflicts of interest" in the finance industry in a rare public appearance. In a statement to The Australian Financial Review, Shine Lawyers joint head of class actions Craig Allsop claimed: "We claim the company breached its continuous disclosure obligations and misled its shareholders." He continued: "We claim that the misconduct alleged in this case seriously undermined that trust and damaged the company's reputation. It is unsurprising that the company has since abandoned its well-known 'IOOF' branding." A spokeswoman for Insignia said: "This case relates to events that are alleged to have occurred more than seven years ago and in some cases nearly 15 years ago. Insignia Financial will vigorously defend the claim and is looking forward to having the matter heard and determined." The spokeswoman declined to comment further since the matter was before the courts. Californian litigation firm Quinn Emanuel dropped its class action lawsuit against IOOF in May 2020 after the Australian Prudential Regulation Authority failed to have a number of its former executives and directors disqualified from the financial services industry. [GN] J JACOBO FARM: Bid to Decertify Class in Gomez Wage Suit Denied --------------------------------------------------------------- In the case, MARISOL GOMEZ and IGNACIO OSORIO, on behalf of themselves and all others similarly situated, Plaintiffs v. J JACOBO FARM LABOR CONTRACTOR, INC.; and DOES 1 through 20, inclusive, Defendants, Case No. 1:15-cv-01489 JLT-BAM (E.D. Cal.), Judge Jennifer L. Thurston of the U.S. District Court for the Eastern District of California denies the Defendant's Motion in Limine to Exclude Plaintiff's Expert Witness and Motion to Decertify the class. The class action lawsuit involves an employment dispute with J. Jacobo. The Court certified the Plaintiff's claim that the Defendant failed to issue proper itemized wage statements to its employees in violation of California law. It then modified its original certification order by also certifying the Plaintiff's claim that the Defendant failed to pay its employees for rest breaks in violation of California law. The Court further modified its order by setting the class period end date for the certified rest break class to Nov. 5, 2019. Before the Court is the Defendant's Motion to Decertify and Motion in Limine. Its Motion to Decertify seeks decertification of the Plaintiff's rest break pay claim but not the wage statement claim. The Plaintiff filed Opposition briefs and the Defendant filed Reply briefs. The Court found the matters suitable for decision without oral arguments and the hearing on same was vacated. The Defendant is a farm labor contractor. It employed at least 3,267 employees between Dec. 20, 2011, and Jan. 6, 2018. Some of the employees worked as field workers. For the most part, the Defendant allowed the employees to decide when to take breaks and the length of the breaks. A significant contingent of the class elected to forego their rest breaks by working through the provided rest breaks. Of the Defendant's 3,267 employees, 2,868 employees (or 87.8%) were paid on a piece-rate basis at some point during their employment. Of those 2,868 piece-rate employees, 2,320 employees (or 80.1%) were paid with checks that did not include any payment for rest breaks. Some but not all employees were paid retroactively by the Defendant by check for unpaid break and non-productive time. The Defendant appears to have payment records identifying the employees who were given retroactive "safe harbor" payments and minimum wage true ups. It also provided its employees with wage statements, some of which failed to include information about rest breaks and rest payments. The Defendant universally applied the same system and practices for wage statements to all employees. The Defendant used a software called Datatech to process and maintain payroll records. The Plaintiffs designated Aaron Woolfson as an expert witness in the action to provide structure to and analyze time keeping and payroll data produced from the Defendant's Datatech records. In his expert report, Woolfson states that the Datatech records indicate that 100% of checks dated before 2/27/2016 which involved piece-work or approximately 2,275 checks did not have any payment for rest periods. Woolfson's report further states he created the damage formulas and assumptions that will transform all of Defendants data into damages which he will present at trial. The Defendant designated Joseph Krock as a rebuttal expert to provide comment regarding claims made by Woolfson and his qualifications as an expert witness in matters similar to this. The Defendant argues that the class should be decertified because common questions regarding the Plaintiff's rest break pay claim do not predominate over individualized inquiries. The Plaintiff argues that the Defendant's Motion to Decertify should be denied because Woolfson's expert report demonstrates that common questions regarding rest break violations still predominate over individual inquiries. Considering the Defendant's arguments, the issue now before the Court is whether the Plaintiff's expert report is sufficiently reliable under Daubert, and if not, whether the class should be decertified on commonality-predominance grounds. Given the Defendant's inadequate time records and Woolfson's mathematical methods and findings, Judge Thurston finds that Woolfson's testimony is sufficiently reliable under Daubert in the case. She says the Defendant has not proffered its own interpretation of the weekly payroll data to show that no shifts of at least 3.5 hours in length were worked during those weeks. To the extent it is arguing that a different conclusion should have been reached from Woolfson's methodology, this argument is inapposite because the test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology. Therefore, the Defendant's Motion in Limine is denied. The Defendant argues that commonality and predominance are lacking for the Plaintiff's rest break pay claim under Rule 23 because the only way the Plaintiffs plan to prove class-wide proof of piece rate rest break violations is through the testimony of Woolfson, which "must be excluded." Because she does not exclude Woolfson's testimony, Judge Thurston holds that the Defendant's stated ground for decertifying the Plaintiff's rest break pay claim is ineffective. Therefore, the Defendant's Motion to Decertify is denied. A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/hxw3cv6v from Leagle.com. JAGUAR LAND: Averts Class Action Over Vehicles' Battery Defect -------------------------------------------------------------- Julie Steinberg, writing for Bloomberg Law, reports that Jaguar Land Rover North America LLC was properly granted judgment in a proposed class suit over an alleged battery flaw in certain Land Rover vehicles, a federal appeals court affirmed on June 1. Named plaintiff Victorya Manakin failed to show that the vehicle warranty terms were unconscionable, and the battery problems she allegedly experienced were different from an issue that the automaker knew about, the US Court of Appeals for the Third Circuit affirmed in a nonprecedential opinion. In early 2009, Jaguar learned that drivers of LR2 Land Rovers were complaining of flat batteries. The automaker announced a software update in 2011. [GN] JOHNSON & JOHNSON: Former Judge Reacts in Pelvic Mesh Suit Deal --------------------------------------------------------------- Miklos Bolza of 9News reports that women injured through defective Johnson & Johnson pelvic mesh implants may receive higher returns on a $300 million class action settlement after a former chief judge has been called on to find the best deal. The class action by Shine Lawyers reached a settlement in September last year in what was considered to be the largest-ever legal win of its type. However, questions were soon raised about the money Shine wanted for running the case and distributing the funds to eligible women in the future. Signing off on the headline $300 million figure in March, Justice Michael Lee did not agree with Shine's proposed legal costs and other expenses which would have left affected women with about $174 million. The costs of distributing the funds alone were estimated to be around $36 million over three-and-a-half years, in what the judge noted was "a significant commercial opportunity" for Shine. He questioned why the law firm had not looked around for cheaper options. In December last year, despite opposition from Shine, the judge ordered a tender process to find a way to provide greater returns to women eligible to partake in the settlement. "It seems passing strange that it should continue to be assumed that the court would just allow such a commercial opportunity to be taken by the solicitors acting for the applicants without exploring whether there were other cheaper and better ways to distribute the settlement sum justly among group members," Lee wrote in March. A total of 16 different tender offers ended up being filed with the court. On May 30, 2023, the judge appointed James Allsop KC as a referee to assess which of these different schemes would bring about "fair and reasonable" returns for women injured by the implants. The former Federal Court chief judge has until August 14 to report to the court and will be paid a maximum of $150,000 for his services. At the settlement approval hearing in December, more than 250 women objected to the amount of $300 million, with around half saying it was not enough due to their pain and suffering. "It was impossible not to be affected by the poignant stories told. The intimate, human element of this settlement approval application loomed large at all times," Justice Lee wrote. The first class action was launched almost 10 years ago and was heavily contested by Johnson & Johnson and its subsidiary Ethicon, which stood by the claimed safety of the medical products. After a seven-month trial which ran to February 2018 in the Federal Court, Justice Anna Katzmann ruled against the medical company. In November 2019, the judge found the company acted negligently and concealed the true extent of complications from the devices. Challenges to this decision went all the way to the High Court, which dismissed the appeal in November last year. A second class action was filed on April 2021 for women who were not eligible to participate in the first class action against Johnson & Johnson because they received their implants after July 2017. Women who were implanted with Gynecare Prolift, Prosima, TVT or Gynemesh devices up until June 30, 2020 are eligible for a slice of the $300 million settlement. Complications from these products included erosion into organs, chronic pain, pain during sexual intercourse and incontinence. A $105 million settlement of another class action by Shine over similarly defective pelvic mesh products by Boston Scientific was approved by the Federal Court in March this year. Shine is also running another pelvic mesh class action against Astora Women's Health which is still ongoing through the courts. [GN] LAMPO GROUP: Faces Class Action Suit Over Customers' Fraud ---------------------------------------------------------- Bob Smietana, writing for Religion News, reports that a group of former followers of Dave Ramsey has sued the Christian finance guru and radio host, along with his company and a marketing firm, for endorsing a failed timeshare exit company that allegedly defrauded customers out of millions. Seventeen former Ramsey listeners filed a class-action lawsuit in the U.S. District Court for Western Washington alleging Ramsey was paid as much as $30 million from 2015 to 2021 to endorse Timeshare Exit Team, a Kirkland, Washington-based firm that collected $200 million from clients -- many of them Ramsey listeners -- in exchange for a promise to free them from their timeshare obligations. That promise came with a money-back guarantee. But the company, which often collected more than $5,000 per customer, failed to live up to its promises. In 2021, Reed Hein & Associates LLC, which did business as Timeshare Exit Team, paid $2.61 million to settle a deceptive business practices lawsuit filed by the attorney general of Washington state and later went out of business. The lawsuit alleges that Ramsey, Timeshare Exit Team and Happy Hour Media Group, a marketing firm with ties to Brandon Reed, one of the founders of Timeshare Exit Team, violated the Washington Consumer Protection Act by defrauding customers, committed "negligent malpresentation" and were guilty of "unjust enrichment" and conspiracy. The lawsuit seeks damages in excess of $150 million. Plaintiffs allege they relied on Ramsey's enthusiastic support for Timeshare Exit Team and his expertise in finance when they decided to do business with the company. Known for his hatred of timeshare companies, Ramsey had boasted about his confidence in the expertise of the Timeshare Exit Team. In a 2018 segment of his show, a video of which remains on the YouTube page of "The Ramsey Show," Ramsey told listeners he had looked for years to find a company that could help people get out of timeshares. "I never could find anything until I found this company called Timeshare Exit Team," he said in the segment, which touted the company's money-back guarantee. "About three years ago, we started endorsing them and I've had so much fun pissing off the timeshare people." As previously reported by Religion News Service, Ramsey stuck by the company, despite its legal troubles and allegations it had defrauded customers -- claiming government officials, reporters and the timeshare industry had conspired against them. "Instead of acknowledging the deception, Ramsey recorded a nine-minute radio segment in which he lashed out at anyone he felt to be responsible for Reed Hein's woes," the complaint alleges. The complaint also details the tactics allegedly used by Reed Hein to defraud Ramsey's listeners. After signing contracts with customers, the company would allegedly tell them to stop paying their timeshare fees and created fake property deeds aimed at convincing those customers they were free of their timeshares. "When customers finally discovered the schemes and demanded their refunds, Reed Hein fabricated excuses not to honor the promises or stopped returning their calls," the complaint alleges. The plaintiffs in the lawsuit argue that Ramsey should have known better than to endorse Timeshare Exit Team. The complaint alleges the Lampo Group he runs, which does business as Ramsey Solutions, began receiving complaints about Timeshare Exit Team as early as 2016 and continued to endorse the company even after the Better Business Bureau warned consumers about Timeshare Exit Team and courts found the company had acted in a fraudulent manner. Ramsey has gained the trust of millions of followers through his long-running radio show, conferences and "Financial Peace University," a faith-based personal finance program taught in churches around the country. His expertise, the complaint alleges, should have made him aware that Timeshare Exit Team was not to be trusted. "However, Reed Hein made many claims that any competent financial advisor with Dave Ramsey's knowledge and skill would know to be false, and it engaged in many activities Dave Ramsey would have known to be illegal," according to the complaint. The lawsuit also names Happy Hour Media Group, which the complaint alleges helped promote Timeshare Exit Team. Happy Hour was co-founded by Brandon Reed, who also co-founded Timeshare Exit Team. According to Washington state's attorney general, Reed had been a rain gutter salesman when he founded Timeshare Exit Team and started the company after seeing a long line at another timeshare exit company's booth at a trade show. He had no legal expertise or experience getting people out of timeshares. The company's sales exploded after it began to advertise on Ramsey's radio show, according to the complaint. The company stopped advertising on Ramsey's show in 2021, which Ramsey blamed on the cost of fighting "a massive set of lawsuits" against it. Happy Hour did not immediately reply to a request for comment. Neither did Ramsey Solutions. Among the plaintiffs named in the complaint is Greg Larson, a longtime Ramsey listener and shipyard worker who allegedly heard Ramsey's endorsement of Timeshare Exit Team "hundreds of times" before contacting the company. Other plaintiffs include health care workers, retirees and others who had become Ramsey followers through their churches or the radio show. The complaint details the relationship between Ramsey and Timeshare Exit Team, one of the "endorsed local providers" who rely on Ramsey for business leads. Ramsey Solutions would collect those leads through its church-based programs, the company's website and newsletters. Ramsey's followers were not aware he or his company were paid for their endorsements or for referrals, according to the complaint. It was a profitable enterprise for both parties, according to the complaint. "During the period Dave Ramsey was promoting Reed Hein's scheme, customers referred to Reed Hein by Defendants paid Reed Hein in excess of $70 million in fees for timeshare 'exit,'" according to the complaint. "Ramsey never returned any of the tens of millions of dollars Reed Hein and Happy Hour Media Group paid him from his own listeners' hard-earned money. "Instead, Ramsey has chosen to profit from his listeners' money." For his part, Ramsey defended Timeshare Exit Team in public while distancing himself from the company behind the scenes. The Christian finance guru was subpoenaed by Washington state's attorney general in its lawsuit against Timeshare Exit Team. His lawyers objected, saying he was too busy to be deposed and he was not responsible for the endorsement. "While he has promoted Lampo's endorsement of Reed Hein on his radio program and on social media, he is not responsible for the details of the Reed Hein relationship," his attorneys wrote. The class-action lawsuit is the latest legal woe for Ramsey and his company. Several former employees have sued the company for discrimination, including one who was fired after telling her boss she was pregnant and another who claimed the company had a "cultlike" environment." Though a private company, Ramsey Solutions is run like a church; employees are expected to maintain a "godly" lifestyle and attend regular worship services at work. The company was once named one of the best places to work in the country, but its reputation has taken a hit in recent years due to Ramsey's outspoken objection to COVID-19 restrictions and the company's "no-gossip" policy, which has often resulted in employees who complain being fired and fostered a culture where employees are encouraged to report on each other for rules violations. Despite his legal troubles, Ramsey has remained defiant. His approach is perhaps best summed up in his 2021 defense of Timeshare Exit Team, even though the company was dropped as an advertiser. "Bring it," he said. "You have done poked the wrong bear. You done pissed off the wrong hillbilly." [GN] LEVITT LLP: Faces DePietro Suit Over Unlawful Labor Practices ------------------------------------------------------------- DEBRA DEPIETRO, individually and on behalf of all others similarly situated, Plaintiff v. LEVITT LLP; STEVEN L. LEVITT; and KAREN L. WEISS, Defendants, Case No. 2:23-cv-03940 (E.D.N.Y., May 26, 2023) is a putative collective action against the Defendants for violations of the Fair Labor Standards Act, the New York Labor Law, the New York Codes, Rules and Regulations, and any other causes of action that can be inferred from the facts set forth in the complaint. The Plaintiff alleges the Defendants' failure to pay required overtime wages for all hours worked over 40 per workweek, failure to pay all earned and due straight-time wages, failure to pay timely wages, and failure to provide proper wage statements. The Plaintiff began her employment for Defendants as a legal assistant in July 2015. In September 2018, she resigned from her employment with Defendants and was subsequently rehired in November 2018. The Plaintiff then remained employed in the same position until her employment with Defendants ended in February 2023. Levitt LLP is a privately owned law firm based in Mineola, New York.[BN] The Plaintiff is represented by: Alexander M. White, Esq. VALLI KANE & VAGNINI LLP 600 Old Country Road, Suite 519 Garden City, NY 11530 Telephone: (516) 203-7180 Facsimile: (516) 706-0248 LUMINAR TECHNOLOGIES: Johnson Balks at Share Price Drop ------------------------------------------------------- JUDY GRAY JOHNSON, individually and on behalf of all others similarly situated, Plaintiff v. LUMINAR TECHNOLOGIES, INC. and MIKE MCAULIFFE, Defendants, Case No. 6:23-cv-00982 (M.D. Fla., May 26, 2023) is a federal securities class action on behalf of the Plaintiff and a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Luminar securities between February 28, 2023 and March 17, 2023, both dates inclusive, seeking to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, against Defendants. Throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Luminar had misappropriated an image of a competitor's photonic integrated circuits to market the Company's own products and capabilities; (ii) the foregoing conduct subjected the Company to a heightened risk of, inter alia, litigation and/or regulatory enforcement action; (iii) all the foregoing, once revealed, was likely to negatively impact Luminar's business and reputation; and (iv) as a result, the Company's public statements were materially false and misleading at all relevant times, says the suit. On this news, Luminar's stock price fell $0.78 per share, or 9.09%, over two consecutive trading days to close at $7.80 per share on March 20, 2023. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, the suit alleges. Luminar Technologies, Inc. is an automotive technology company that provides sensor technologies and software for passenger cars and commercial trucks in domestic and international markets.[BN] The Plaintiff is represented by: Jayne A. Goldstein, Esq. Nathan C. Zipperian, Esq. MILLER SHAH LLP 1625 N. Commerce Pkwy, Suite 320 Fort Lauderdale, FL 33326 Telephone: (954) 515-0123 Facsimile: (866) 300-7367 E-mail: jagoldstein@millershah.com nczipperian@millershah.com - and - James M. LoPiano, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: jlopiano@pomlaw.com MARIST BROTHERS: Quebec Super. Certifies Suit Over Sexual Assault ----------------------------------------------------------------- Kugler Kandestin of Yahoo! Finance reports that Take notice that the Superior Court of Quebec has authorized the institution of a class action on behalf of all victims who were sexually assaulted, at any time and at any place in the Province of Quebec, by a religious member of the Marist Brothers Congregation. The present class action aims to obtain monetary compensation for the prejudices the victims endured, as well as a sum of $20 million dollars for exemplary and punitive damages. At the moment, there are no steps to take if you would like to be a member of this class action. If you take no action, you will be bound by any judgment rendered in the class action, or any settlement, if one is reached. However, if you wish to be excluded from the class action, you must advise the Clerk of the Superior Court in the District of Iberville (St-Jean), in accordance with article 580 of the Civil Code of Procedure. All class action members are invited to communicate with the attorneys for the group to obtain more information on the class action and to know their rights. All communications are free, confidential, and protected under professional secrecy: Me Pierre Boivin, pboivin@kklex.com Me Robert Kugler, rkugler@kklex.com Me Jérémie Longpré, jlongpre@kklex.com Kugler Kandestin LLP 1 Place Ville-Marie, Suite 1170 Montreal, Quebec, H3B 2A7 Tel: (514) 878-2861/ Toll free : 1-844-999-2861 Fax: (514) 875-8424 www.kklex.com The Court has authorized the use of pseudonyms for the identification of the Plaintiff and the members of the group in the proceedings, exhibits and any other document produced in the Court file in order to protect their identity. It should be noted that the present class action does not include the victims of sexual assault committed at Patro Lokal housing shelter in St-Hyacinthe, from 1970 to 1986, due to the fact that these victims are already included in another class action, namely Association of the friends of the Patro Lokal of St-Hyacinthe vs. The Marist Brothers. Please be advised that the present notice is an abbreviated notice authorized by the Court. Class action members are encouraged to consult the full notice, which contains additional information, on the website of the attorneys for the group: www.kklex.com (in the section "Active Class Actions") This notice has been authorized by the Honourable Sylvain Lussier, Judge of the Superior Court of Quebec [GN] MARS WRIGLEY: Rodriguez Sues Over Mislabeled Baked Crackers ----------------------------------------------------------- Christine Rodriguez, individually and on behalf of all others similarly situated, Plaintiff v. Mars Wrigley Confectionery US, LLC, Defendant, Case No. 1:23-cv-04422-AT (S.D.N.Y., May 25, 2023) is a class action against the Defendant for fraud, unjust enrichment, breaches of express warranty, implied warranty of merchantability/fitness for a particular purpose, and violation of the Magnuson Moss Warranty Act. Mars Wrigley Confectionery manufactures Combos, a baked cracker tube described as having a "Filling made with REAL CHEESE" above a fresh block of cheddar cheese. According to the complaint, though Plaintiff and other reasonable consumers will expect the product's filling to contain a significant and/or predominant amount of cheese because the label states "Filling made with REAL CHEESE" above a large block of fresh cheddar cheese, the amount of cheese in the filling is de minimis in relative and absolute terms. Accordingly, the Defendant misrepresented and/or omitted the attributes and qualities of the product even though it knew it used substitutes for real cheese that were lower in value and quality than real cheese, says the suit. As a result of the false and misleading representations, the product is sold at a premium price, $2.99 for 6.3 oz, excluding tax and sales. The Plaintiff paid more for the product than she would have had she known the representations and omissions were false and misleading, or would not have purchased it, the suit asserts.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck, NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com MDL 2972: Blackbaud Opposition to Eisen Class Cert Bid Due June 9 ----------------------------------------------------------------- In the class action lawsuit captioned as Philip Eisen v. Blackbaud, Inc., Case No. 3:20-cv-04358 (D.S.C.), the Hon. Judge Joseph F. Anderson, Jr., entered a corrected amended scheduling order as follows: Event Deadline -- Blackbaud's opposition to class June 9, 2023 Certification: -- Blackbaud's rebuttal class June 9, 2023 certification expert disclosure: -- Blackbaud's Daubert Motion on June 9, 2023 Plaintiffs' class certification Experts: -- Plaintiffs' deadline to file a Aug. 3, 2023 motion seeking leave to submit rebuttal expert information with reply brief: -- Plaintiffs' response in opposition Sept. 11, 2023 to Blackbaud's Daubert Motions on Plaintiffs' class certification Experts: -- Blackbaud's reply in support of its Oct. 20, 2023 Daubert motion on Plaintiffs' class certification experts: -- Plaintiffs' reply in support of their Oct. 20, 2023 motion for class certification: -- Plaintiffs' Daubert Motions on Oct. 20, 2023 Blackbaud rebuttal class certification experts: -- Blackbaud's response in opposition Dec. 18, 2023 to the Plaintiffs' Daubert Motion on Blackbaud's rebuttal class certification experts: -- Plaintiffs' reply in support on Jan. 22, 2024 their Daubert Motions on Blackbaud's rebuttal class certification experts: -- Hearing on class certification: TBD and Daubert Motions: The Eisen case is consolidated in the Blackbaud, Inc., Customer Data Breach. The Lead case is Case No. 3:20-mn-02972. The Plaintiffs in the actions allegedly received data breach notices from the following organizations: Atrium Health; Bread for the World; Crystal Stairs; Episcopal High School; Light of Life Rescue Mission; Planned Parenthood; St. David's Center for Child and Family Development; University of Wisconsin -- Eau Claire; WakeMed Foundation; and Manhattan School of Music The Plaintiffs in the potential tag-along actions allegedly received notices from Allina Health; Bank Street College of Education; Children's Hospitals and Clinics of Minnesota; Harvard College; Inova Health System; KidsQuest Childrenss Museum; Lower East Side Tenement Museum; Mt. Sinai Health System; Northwest Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson University; Stony Brook University Hospital; and UMass Memorial Medical Center. The actions allege that numerous other schools, universities, healthcare institutions, and non-profit organizations were affected by the data breach. The Plaintiffs allege that the personal information compromised by the breach includes user names, email addresses, dates of birth, phone numbers, social security numbers, credit card numbers, bank account numbers, financial profiles, passwords, and health information. The common factual questions include: (1) Blackbaud's data security practices and whether the practices met industry standards; (2) how the unauthorized access occurred; (3) the extent of personal information affected by the breach; (4) when Blackbaud knew or should have known of the breach; (5) the investigation into the breach; and (6) the alleged delay in disclosure of the breach to Blackbaud clients and affected consumers. Blackbaud is a cloud computing provider that serves the social good community—nonprofits, foundations, corporations, education institutions, healthcare organizations, religious organizations, and individual change agents. A copy of the Court's order dated May 12, 2023, is available from PacerMonitor.com at https://bit.ly/42YSdql at no extra charge.[CC] MDL 2972: Blackbaud Opposition to Faszczewski Class Cert Due June 9 ------------------------------------------------------------------- In the class action lawsuit captioned as Faszczewski v. Blackbaud, Inc., Case No. 3:21-cv-00012 (D.S.C.), the Hon. Judge Joseph F. Anderson, Jr., entered a corrected amended scheduling order as follows: Event Deadline -- Blackbaud's opposition to class June 9, 2023 Certification: -- Blackbaud's rebuttal class June 9, 2023 certification expert disclosure: -- Blackbaud's Daubert Motion on June 9, 2023 Plaintiffs' class certification Experts: -- Plaintiffs' deadline to file a Aug. 3, 2023 motion seeking leave to submit rebuttal expert information with reply brief: -- Plaintiffs' response in opposition Sept. 11, 2023 to Blackbaud's Daubert Motions on Plaintiffs' class certification Experts: -- Blackbaud's reply in support of its Oct. 20, 2023 Daubert motion on Plaintiffs' class certification experts: -- Plaintiffs' reply in support of their Oct. 20, 2023 motion for class certification: -- Plaintiffs' Daubert Motions on Oct. 20, 2023 Blackbaud rebuttal class certification experts: -- Blackbaud's response in opposition Dec. 18, 2023 to the Plaintiffs' Daubert Motion on Blackbaud's rebuttal class certification experts: -- Plaintiffs' reply in support on Jan. 22, 2024 their Daubert Motions on Blackbaud's rebuttal class certification experts: -- Hearing on class certification: TBD and Daubert Motions: The Faszczewski case is consolidated in the Blackbaud, Inc., Customer Data Breach. The Lead case is Case No. 3:20-mn-02972. The Plaintiffs in the actions allegedly received data breach notices from the following organizations: Atrium Health; Bread for the World; Crystal Stairs; Episcopal High School; Light of Life Rescue Mission; Planned Parenthood; St. David's Center for Child and Family Development; University of Wisconsin -- Eau Claire; WakeMed Foundation; and Manhattan School of Music. The Plaintiffs in the potential tag-along actions allegedly received notices from Allina Health; Bank Street College of Education; Children's Hospitals and Clinics of Minnesota; Harvard College; Inova Health System; KidsQuest Childrenss Museum; Lower East Side Tenement Museum; Mt. Sinai Health System; Northwest Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson University; Stony Brook University Hospital; and UMass Memorial Medical Center. The actions allege that numerous other schools, universities, healthcare institutions, and non-profit organizations were affected by the data breach. The Plaintiffs allege that the personal information compromised by the breach includes user names, email addresses, dates of birth, phone numbers, social security numbers, credit card numbers, bank account numbers, financial profiles, passwords, and health information. The common factual questions include: (1) Blackbaud's data security practices and whether the practices met industry standards; (2) how the unauthorized access occurred; (3) the extent of personal information affected by the breach; (4) when Blackbaud knew or should have known of the breach; (5) the investigation into the breach; and (6) the alleged delay in disclosure of the breach to Blackbaud clients and affected consumers. Blackbaud is a cloud computing provider that serves the social good community—nonprofits, foundations, corporations, education institutions, healthcare organizations, religious organizations, and individual change agents. A copy of the Court's order dated May 12, 2023, is available from PacerMonitor.com at https://bit.ly/3MwHY5G at no extra charge.[CC] MDL 2972: Blackbaud Opposition to Gignac Class Cert Bid Due June 9 ------------------------------------------------------------------ In the class action lawsuit captioned as Gignac, et al., v. Blackbaud Inc., Case No. 3:21-cv-00419 (D.S.C.), the Hon. Judge Joseph F. Anderson, Jr., entered a corrected amended scheduling order as follows: Event Deadline -- Blackbaud's opposition to class June 9, 2023 Certification: -- Blackbaud's rebuttal class June 9, 2023 certification expert disclosure: -- Blackbaud's Daubert Motion on June 9, 2023 Plaintiffs' class certification Experts: -- Plaintiffs' deadline to file a Aug. 3, 2023 motion seeking leave to submit rebuttal expert information with reply brief: -- Plaintiffs' response in opposition Sept. 11, 2023 to Blackbaud's Daubert Motions on Plaintiffs' class certification Experts: -- Blackbaud's reply in support of its Oct. 20, 2023 Daubert motion on Plaintiffs' class certification experts: -- Plaintiffs' reply in support of their Oct. 20, 2023 motion for class certification: -- Plaintiffs' Daubert Motions on Oct. 20, 2023 Blackbaud rebuttal class certification experts: -- Blackbaud's response in opposition Dec. 18, 2023 to the Plaintiffs' Daubert Motion on Blackbaud's rebuttal class certification experts: -- Plaintiffs' reply in support on Jan. 22, 2024 their Daubert Motions on Blackbaud's rebuttal class certification experts: -- Hearing on class certification: TBD and Daubert Motions: The Gignac case is consolidated in the Blackbaud, Inc., Customer Data Breach. The Lead case is Case No. 3:20-mn-02972. The Plaintiffs in the actions allegedly received data breach notices from the following organizations: Atrium Health; Bread for the World; Crystal Stairs; Episcopal High School; Light of Life Rescue Mission; Planned Parenthood; St. David's Center for Child and Family Development; University of Wisconsin -- Eau Claire; WakeMed Foundation; and Manhattan School of Music The Plaintiffs in the potential tag-along actions allegedly received notices from Allina Health; Bank Street College of Education; Children's Hospitals and Clinics of Minnesota; Harvard College; Inova Health System; KidsQuest Childrenss Museum; Lower East Side Tenement Museum; Mt. Sinai Health System; Northwest Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson University; Stony Brook University Hospital; and UMass Memorial Medical Center. The actions allege that numerous other schools, universities, healthcare institutions, and non-profit organizations were affected by the data breach. The Plaintiffs allege that the personal information compromised by the breach includes user names, email addresses, dates of birth, phone numbers, social security numbers, credit card numbers, bank account numbers, financial profiles, passwords, and health information. The common factual questions include: (1) Blackbaud's data security practices and whether the practices met industry standards; (2) how the unauthorized access occurred; (3) the extent of personal information affected by the breach; (4) when Blackbaud knew or should have known of the breach; (5) the investigation into the breach; and (6) the alleged delay in disclosure of the breach to Blackbaud clients and affected consumers. Blackbaud is a cloud computing provider that serves the social good community—nonprofits, foundations, corporations, education institutions, healthcare organizations, religious organizations, and individual change agents. A copy of the Court's order dated May 12, 2023, is available from PacerMonitor.com at https://bit.ly/3Ovtp5b at no extra charge.[CC] MDL 2972: Blackbaud Opposition to Glasper Class Cert Bid Due June 9 ------------------------------------------------------------------- In the class action lawsuit captioned as Glasper v. Blackbaud Inc., Case No. 3:20-cv-04393 (D.S.C.), the Hon. Judge Joseph F. Anderson, Jr., entered a corrected amended scheduling order as follows: Event Deadline -- Blackbaud's opposition to class June 9, 2023 Certification: -- Blackbaud's rebuttal class June 9, 2023 certification expert disclosure: -- Blackbaud's Daubert Motion on June 9, 2023 Plaintiffs' class certification Experts: -- Plaintiffs' deadline to file a Aug. 3, 2023 motion seeking leave to submit rebuttal expert information with reply brief: -- Plaintiffs' response in opposition Sept. 11, 2023 to Blackbaud's Daubert Motions on Plaintiffs' class certification Experts: -- Blackbaud's reply in support of its Oct. 20, 2023 Daubert motion on Plaintiffs' class certification experts: -- Plaintiffs' reply in support of their Oct. 20, 2023 motion for class certification: -- Plaintiffs' Daubert Motions on Oct. 20, 2023 Blackbaud rebuttal class certification experts: -- Blackbaud's response in opposition Dec. 18, 2023 to the Plaintiffs' Daubert Motion on Blackbaud's rebuttal class certification experts: -- Plaintiffs' reply in support on Jan. 22, 2024 their Daubert Motions on Blackbaud's rebuttal class certification experts: -- Hearing on class certification: TBD and Daubert Motions: The Glasper case is consolidated in the Blackbaud, Inc., Customer Data Breach. The Lead case is Case No. 3:20-mn-02972. The Plaintiffs in the actions allegedly received data breach notices from the following organizations: Atrium Health; Bread for the World; Crystal Stairs; Episcopal High School; Light of Life Rescue Mission; Planned Parenthood; St. David's Center for Child and Family Development; University of Wisconsin -- Eau Claire; WakeMed Foundation; and Manhattan School of Music. The Plaintiffs in the potential tag-along actions allegedly received notices from Allina Health; Bank Street College of Education; Children's Hospitals and Clinics of Minnesota; Harvard College; Inova Health System; KidsQuest Childrenss Museum; Lower East Side Tenement Museum; Mt. Sinai Health System; Northwest Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson University; Stony Brook University Hospital; and UMass Memorial Medical Center. The actions allege that numerous other schools, universities, healthcare institutions, and non-profit organizations were affected by the data breach. The Plaintiffs allege that the personal information compromised by the breach includes user names, email addresses, dates of birth, phone numbers, social security numbers, credit card numbers, bank account numbers, financial profiles, passwords, and health information. The common factual questions include: (1) Blackbaud's data security practices and whether the practices met industry standards; (2) how the unauthorized access occurred; (3) the extent of personal information affected by the breach; (4) when Blackbaud knew or should have known of the breach; (5) the investigation into the breach; and (6) the alleged delay in disclosure of the breach to Blackbaud clients and affected consumers. Blackbaud is a cloud computing provider that serves the social good community—nonprofits, foundations, corporations, education institutions, healthcare organizations, religious organizations, and individual change agents. A copy of the Court's order dated May 12, 2023, is available from PacerMonitor.com at https://bit.ly/45BYryq at no extra charge.[CC] MDL 2972: Blackbaud Opposition to Mitchell Class Cert Due June 9 ---------------------------------------------------------------- In the class action lawsuit captioned as Mitchell v. Blackbaud Inc., Case No. 3:21-cv-00145 (D.S.C.), the Hon. Judge Joseph F. Anderson, Jr., entered a corrected amended scheduling order as follows: Event Deadline -- Blackbaud's opposition to class June 9, 2023 Certification: -- Blackbaud's rebuttal class June 9, 2023 certification expert disclosure: -- Blackbaud's Daubert Motion on June 9, 2023 Plaintiffs' class certification Experts: -- Plaintiffs' deadline to file a Aug. 3, 2023 motion seeking leave to submit rebuttal expert information with reply brief: -- Plaintiffs' response in opposition Sept. 11, 2023 to Blackbaud's Daubert Motions on Plaintiffs' class certification Experts: -- Blackbaud's reply in support of its Oct. 20, 2023 Daubert motion on Plaintiffs' class certification experts: -- Plaintiffs' reply in support of their Oct. 20, 2023 motion for class certification: -- Plaintiffs' Daubert Motions on Oct. 20, 2023 Blackbaud rebuttal class certification experts: -- Blackbaud's response in opposition Dec. 18, 2023 to the Plaintiffs' Daubert Motion on Blackbaud's rebuttal class certification experts: -- Plaintiffs' reply in support on Jan. 22, 2024 their Daubert Motions on Blackbaud's rebuttal class certification experts: -- Hearing on class certification: TBD and Daubert Motions: The Mitchell case is consolidated in the Blackbaud, Inc., Customer Data Breach. The Lead case is Case No. 3:20-mn-02972. The Plaintiffs in the actions allegedly received data breach notices from the following organizations: Atrium Health; Bread for the World; Crystal Stairs; Episcopal High School; Light of Life Rescue Mission; Planned Parenthood; St. David's Center for Child and Family Development; University of Wisconsin -- Eau Claire; WakeMed Foundation; and Manhattan School of Music The Plaintiffs in the potential tag-along actions allegedly received notices from Allina Health; Bank Street College of Education; Children's Hospitals and Clinics of Minnesota; Harvard College; Inova Health System; KidsQuest Childrenss Museum; Lower East Side Tenement Museum; Mt. Sinai Health System; Northwest Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson University; Stony Brook University Hospital; and UMass Memorial Medical Center. The actions allege that numerous other schools, universities, healthcare institutions, and non-profit organizations were affected by the data breach. The Plaintiffs allege that the personal information compromised by the breach includes user names, email addresses, dates of birth, phone numbers, social security numbers, credit card numbers, bank account numbers, financial profiles, passwords, and health information. The common factual questions include: (1) Blackbaud's data security practices and whether the practices met industry standards; (2) how the unauthorized access occurred; (3) the extent of personal information affected by the breach; (4) when Blackbaud knew or should have known of the breach; (5) the investigation into the breach; and (6) the alleged delay in disclosure of the breach to Blackbaud clients and affected consumers. Blackbaud is a cloud computing provider that serves the social good community—nonprofits, foundations, corporations, education institutions, healthcare organizations, religious organizations, and individual change agents. A copy of the Court's order dated May 12, 2023, is available from PacerMonitor.com at https://bit.ly/43fIr2W at no extra charge.[CC] MIDLAND CREDIT: Court Approves Sellards' $500,000 Suit Settlement ----------------------------------------------------------------- Accounts Recovery reports that a District Court judge in Ohio has approved a settlement in a Fair Debt Collection Practices Act class-action lawsuit that will see the defendant pay $500,000 in fees and costs after it was accused of pursuing collection activity against individuals who had participated in a separate settlement of an FDCPA case in which the defendant agreed to refrain from undertaking certain collection activities against the members of the class. A copy of the order in the case of Sellards et al. v. Midland Credit Management et al. can be accessed by clicking here. The origins of this case date back all the way to 2008 in which an individual filed a counterclaim in Ohio state court, accusing a collection operation of filing collection lawsuits that were either untimely commenced or otherwise time-barred. The operation was subsequently acquired and became affiliated with the defendant in this case. The counterclaim was settled in 2015, and one of the terms of the settlement was that the defendant would refrain from engaging in certain collection activity against the members of the class. Fast forward to 2020 and the plaintiff in this case -- one of the 238 members of the original class action -- alleges that the defendant filed a motion to revive a dormant judgment against her. The plaintiff filed suit, alleging the defendant violated the terms of the original settlement agreement. This past February, the parties agreed on terms of a settlement, in which the defendant denied any and all allegations and claims and expressly denied any wrongdoing. To avoid the cost, burden, and uncertainty of further litigation, it agreed to settle the case. Under the terms of the settlement, the 238 members of the class will split $500,000 less the class counsel fee and the class representative award. The plaintiff's attorneys will receive $60,000 for their work and the class counsel will receive $15,000. If the remaining members of the class all participate in the settlement, each will receive about $1,800. [GN] MONUMENT INC: Sued for Illegaly Sharing Users' Personal Info ------------------------------------------------------------ Corrado Rizzi, writing for ClassAction.org, reports that Monument faces a proposed class action that alleges the online alcohol dependency treatment and counseling platform has illegally disclosed users' personal and health information to third-party advertisers, including Meta, Google, Bing and Pinterest. The 34-page complaint stresses that the thousands of consumers who have signed up on JoinMonument.com and JoinTempest.com have entrusted the company with a litany of personal information, including not only their names, phone numbers and addresses but photographs, assessment or survey responses, appointment information and health details related to treating alcohol dependency. The suit says that although Monument has repeatedly promised to safeguard users' private data and keep it anonymous, assuring to use it only to facilitate treatment, the company has instead installed pixels and other tracking code on JoinMonument.com and JoinTempest.com to track, collect and monetize consumers' sensitive information. The case contends that Monument has wholly misrepresented the manner in which it handles users' data and communications. "Defendant continually broke its promises to protect consumers' Private Information, instead using it to target existing and new customers with advertising for its services," the suit alleges, claiming Monument has also handed consumers' data off to Meta, Google, Bing, Pinterest and other tech giants for their own "research, product development, and advertising purposes." According to the complaint, Monument concluded in early February of this year after an internal review that certain private information was shared with Meta, Google, Bing, Pinterest and other third parties by way of tracking code "without the appropriate authorization, consent or agreements required by law." The unauthorized disclosure, the defendant said, began in January 2020 for Monument members and November 2017 with respect to Tempest members, each of whom reportedly pays between $9.99 and $249 per month for Monument's services, per the case. In its letter to Monument users, the company said that it has "stopped using tracking technologies offered by third parties" such as Meta (Facebook), Google, Bing and Pinterest, and that all Monument sites were disconnected from the tracking technologies at issue by February 23, 2023. Overall, Monument has failed to employ reasonable measures to protect users' private information, properly train employees to protect this sensitive data and properly notify users as to the collection and disclosure of their information, the case charges. Further, Monument has also failed to limit how third parties could use the sensitive health and personal information the platform has handed over, despite purporting that its online community is "entirely anonymous" and that its platform is "100% secure and confidential," the complaint alleges. "Thousands of Website visitors, including those like Plaintiff and Class Members who ultimately signed up for Defendant's services, were presented with these repeated promises about the confidentiality of the Private Information they shared with Defendant. Despite these promises, however, Defendant used Private Information extensively for Defendant's own profit, including by sharing and disclosing Private Information." The filing contends that if the public does not trust that their medical information will be kept private, they may be less likely to seek treatment, which can cause additional problems down the road. In recognition of this, the case says, the Health Insurance Portability and Accountability Act of 1996 -- HIPAA -- prohibits the disclosure of a person's personally identifiable health information to a third party without their express written consent. The lawsuit looks to cover all United States residents whose private information was disclosed to a third party without authorization or consent through one of Monument's websites, including but not limited to JoinMonument.com and JoinTempest.com. [GN] NEW YORK TIMES: Court Narrows Claims in Perkins Consumer Suit ------------------------------------------------------------- In the case, MEGAN PERKINS, on behalf of herself and all others similarly situated, Plaintiff v. THE NEW YORK TIMES COMPANY, d/b/a The New York Times, Defendant, Case No. 22-cv-5202 (PKC) (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York grants in part and denies in part the Defendant's motion to dismiss. Perkins, a citizen of North Carolina, asserts that Times does not adequately disclose subscription-renewal terms to consumers who sign up for digital subscriptions, in violation of North Carolina's Automatic Renewal Statute, N.C.G.S. Section 75-41(a) (the "ARS"). She asserts that, without her knowledge and consent, the Times automatically renewed her subscription 23 times, resulting in unauthorized charges totaling $136. She brings the action as a putative class action. Subject matter jurisdiction is premised on the Class Action Fairness Act, 28 U.S.C. Section 1332(d)(2)(A). Perkins purchased a monthly digital Times subscription through the Times website on Feb. 28, 2020. She alleges that she was located in North Carolina at the time. She subscribed at a promotional rate of $4 a month and provided her PayPal account information to the Times. On Feb. 24, 2021, about a year after she began her subscription, Perkins's monthly subscriber fee doubled from $4 to $8. She asserts that the Times did not provide her with timely notice of the Feb. 24, 2021 renewal. Perkins asserts that her subscription was renewed an additional 23 times for a total of eleven unauthorized charges amounting to $136 to her PayPal account without her knowing consent. Perkins asserts the Times violates all four subsections of the ARS, N.C.G.S. Section 75-41(a), by failing to adequately disclose various subscription-renewal terms in a manner required by the statute. The Complaint brings one claim under the ARS, one claim of unfair and deceptive trade practices under North Carolina law, N.C.G.S. Section 75-16, and one claim of unjust enrichment. The Times moves to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P. The Complaint and the Times' motion raise issues of statutory construction that have not been addressed in the courts of North Carolina or elsewhere as to the application of the ARS, which was enacted in 2007, amended in 2016, and seems to be seldom cited or litigated. The ARS requires a subscription offeror to "clearly and conspicuously" advise a subscriber of specific renewal terms. First, Judge Castel finds that the Complaint does not plausibly allege why the automatic-renewal provision was not clearly and conspicuously presented and why its terms would not be obvious or plainly visible to a consumer. It relies on a proposed definition of conspicuous that goes beyond the word's plain and ordinary meaning and would require specific design elements not adopted by the legislature. The Times' motion to dismiss is therefore granted as to Perkins's claim under subsection 41(a)(1). Because the Complaint plausibly alleges that the Times did not clearly and conspicuously disclose how to cancel a subscription in a manner required by the ARS, its motion to dismiss Perkins' claim brought under subsection 41(a)(2) is denied. Next, the Complaint asserts that the Times violated subsection 41(a)(3) by failing to provide written notice for any automatic renewal exceeding 60 days. It does not identify an automatic renewal that exceeded 60 days. In her opposition brief, Perkins acknowledges that subsection (a)(3) is inapplicable to her subscription. Her claim under subsection (a)(3) is deemed voluntarily dismissed. Because Perkins plausibly alleges that the Times did not notify her of changes in subscription-renewal terms using a bolded typeface, the motion to dismiss her claim under subsection (a)(4) is denied. In addition, Judge Castel holds that Perkins must ultimately prove that she actually suffered a concrete harm because the Times did not clearly and conspicuously state how to cancel a subscription under subsection (a)(2) and did not identify in boldface the terms required under subsection (a)(4). Because the Complaint does not allege egregious or inequitable conduct, the motion to dismiss Perkins' claim of unfair or deceptive trade practices under section 75-16 is granted. Finally, because the unjust enrichment claim is not pleaded in the alternative and seeks relief based on activities already governed by contract, Judge Castel dismisses the claim. Judge Castel concludes that the Complaint plausibly alleges that the Times did not give clear and conspicuous notice of methods for canceling a subscription and also failed to identify subscription rate increases in a bolded typeface. Thus, the Complaint plausibly alleges violations of two ARS subsections, N.C.G.S. Section 75-41(a)(2), (4). It otherwise fails to plausibly allege a claim for relief. Thus, the motion to dismiss is granted in part and denied in part. The motion to dismiss is denied as to claims asserted in Count One under N.C.G.S. Section 75-41(a)(2) and (a)(4). The claim under section 75-41(a)(3) is voluntarily dismissed. The motion is granted as to the remainder of Count One and the entirety of Count Two and Count Three. The Clerk is respectfully directed to terminate the motion. A full-text copy of the Court's May 23, 2023 Opinion & Order is available at https://tinyurl.com/5dru9ceb from Leagle.com. NORFOLK SOUTHERN: Court Certifies Train Derailment as Class Suit ---------------------------------------------------------------- Joshua G. Ferguson and Nicholas J. Hubner of Freeman, Mathis and Gray LLP report that arising from a freight train derailment of February 3, 2023, in East Palestine, Ohio, groups from three states including Ohio, Pennsylvania, and West Virginia recently filed a class action lawsuit against the Class I freight operator, Norfolk Southern Railway Company and its parent, Norfolk Southern Corp. ("Norfolk Southern"). The plaintiff groups consist of residents, property owners, employees, and businesses and asserts claims against the rail line related to the derailment. In addition to the derailment, the class action complaint seeks damages for the "controlled release" event in which certain amounts of chemicals, including vinyl chloride, were released following a tanker car explosion. The complaint seeks damages from Norfolk Southern for negligence, state law violations, crop destruction and medical monitoring. The class action complaint follows a ruling out of the U.S.D.C. for the Northern District of Ohio in which the court ordered that the thirty-one lawsuits against Norfolk Southern must be combined. The case is styled In re: East Palestine Train Derailment, No. 4:23-cv-00242-BYP, and is assigned to Judge Benita Y. Pearson and will be a jury trial. The complaint sets out four proposed classes, each with three subclasses, as follows: (1) The Resident Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass; (2) The Property Owners Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass; (3) The Employees Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass; and (4) The Business Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass. Plaintiffs seek equitable relief to establish a medical monitoring program/fund to monitor and finance medical injuries as they arise during the administration of the program. Specifically, the complaint brings 18 counts, including: (1) negligence and negligence per se, (2) strict liability, (3) statutory nuisance (Ohio), (4) statutory nuisance (Pennsylvania), (5) private nuisance, (6) public nuisance, (7) trespass, (8) trespass to chattels, (9) destruction of vines, bushes, trees, and crops (Ohio), (10) agricultural crop destruction (Pennsylvania), (11) destruction of timber, trees, logs, posts, fruits, nuts, growing plants or products of said plants (West Virginia), (12) injuring animals (Ohio), (13-15) medical monitoring, (16) spoilation, and (17) gross negligence/willful and wanton conduct. The Environmental Protection Agency has already required Norfolk Southern to cover certain remediation, housing and damages/costs, but this class action appears to be covering a broader range of affected individuals, increased damages, and dictate additional safety and compliance for the rail operator moving forward. For more information, please contact Joshua G. Ferguson at jferguson@fmglaw.com, Nicholas J. Hubner at nicholas.hubner@fmglaw.com, or your local FMG attorney. [GN] NORTHSTAR CAFE: Faces Class Suit Over Unpaid Wages, Tip Theft ------------------------------------------------------------- Sarah Szilagy of NBC41.com reports that former employees of a Columbus-area restaurant chain have claimed that the company willfully violated state and federal labor laws through routine underpayment and tip theft. A dozen employees of Northstar Cafe's Easton and Westerville locations have joined a federal lawsuit filed against the company in late May, claiming in part that the restaurant group underpays for overtime, disburses tips to managers and pays employees subminimum wages. Arguing the labor violations are company-wide policy, the employees have asked the court to grant them class action status, allowing potentially dozens of former and current employees to join the complaint. "This is wage theft, in our book," said Bob DeRose, managing partner at Barkan Meizlish DeRose Cox and an attorney representing the employees. Northstar Cafe's policies violate labor laws in a myriad of ways, the complaint argues. Taken together, improper tip distribution and incorrect overtime calculations amount to the company not paying employees even the federal minimum wage - nearly $3 less than Ohio's required minimum. A Northstar Cafe representative said the company cannot comment on pending litigation, but it "will always prioritize managing a fair, legally-compliant workplace." "We take these allegations seriously because we value our team members," the representative said in an email. Jan Hensel, an attorney representing Northstar Cafe and a partner at Dinsmore & Shohl, said in an emailed statement on May 31, 2023 afternoon that the company reviewed the complaint and denies the allegations. "Northstar is extremely careful to make sure all policies are fair and legally compliant," Hensel said. "While the Company takes these allegations seriously and is committed to addressing them with the utmost transparency and integrity, we believe this lawsuit has no merit." Tip credits Like many companies in the food service industry, Northstar Cafe takes a tip credit, which allows employers to pay tipped employees a "tipped minimum wage," or $5.05 per hour in Ohio. To take the credit, employers must follow a series of guidelines - guidelines the former employees claimed were routinely ignored. Employers can require staff to pool their tips for disbursement, but the complaint stated that Northstar distributed tips to employees considered not customarily or regularly tipped, such as kitchen staff, a violation of the Fair Labor Standards Act. Employees' attorneys also claimed that supervisors and managers regularly received tip money as part of the pooling, amounting to tip theft under federal law. "Defendants jointly receive the benefit of these tips at the expense of Plaintiffs who earn tips," the complaint read. Tipped employees were also routinely paid at tip-credit wages for what's called "tip-producing work," which can include non-service tasks such as rolling silverware, emptying trash cans and polishing wine glasses. Under federal law, tipped employees who spend a certain amount of their shift performing tip-producing duties are entitled to minimum wage during those hours -- which the complaint said Northstar did not provide. Subminimum wages, underpaid overtime Even when the company differentiated between tipped work and tip-producing work, it flouted state wage laws, the lawsuit claims. At $10.10, Ohio's minimum hourly wage is nearly 40% higher than the federal minimum wage of $7.25. Despite state minimum wages superseding the federal minimum, Northstar Cafe's former employees claimed company-wide policies have been based on the lower federal rate since at least 2020. Not only was tip-producing work compensated at the lower rate, the complaint argues, but employees were deprived of Ohio minimum wages for all hours worked. Northstar Cafe applied the lower, tipped minimum wage to employees whose hourly pay averaged above $7.25, when the threshold should have been $10.10. The restaurant group also incorrectly calculated overtime pay, resulting in companywide shortchanging of employees, the lawsuit contends. Under the Fair Labor Standards Act, employers must compensate at 1.5 times the minimum wage for all hours over 40 worked in a week minus a tip credit, if applicable. But former employees claimed Northstar Cafe calculates overtime at 1.5 times the tipped minimum wage. When they should have been compensated at $10.10 for overtime, tipped employees were instead paid $7.58, a 25% underpayment. If the court decides to grant class action status, any person who worked at Northstar Cafe in the past three years and was deprived of proper overtime compensation, tips and wages will be notified of their eligibility to join the lawsuit. If the court rejects the request for a class action, the employees currently named in the suit will still be able to proceed with litigation. In addition to asking for damages and penalties against the company, the employees' attorneys have asked for back pay of all retained tips in the past three years and either 6% of total unpaid wages or $200 for each failure to pay wages, whichever is greater. DeRose said the case is a "typical" one for the Columbus-based law firm, which specializes in employment and labor laws. So, too, he said, are the federal and state laws that govern the food service industry. "These rules are well-known by companies, and it's one of those things that we believe this is a willful violation, because the tip credit rule is pretty standard in the industry," DeRose said. "For Northstar to have violated it in so many ways just shows it was a willful business calculation to steal wages from its employees, our clients." [GN] NOVA SOUTHEASTERN: Amended Craig Complaint Dismissed With Prejudice ------------------------------------------------------------------- In the case, TRISTAN CRAIG, on behalf of herself and all others similarly situated, Plaintiff v. NOVA SOUTHEASTERN UNIVERSITY, Defendant, Case No. 20-CV-23818-RAR (S.D. Fla.), Judge Rodolfo A. Ruiz, II, of the U.S. District Court for the Southern District of Florida grants the Defendant's Motion to Dismiss and dismissed the Plaintiff's Amended Complaint with prejudice. The case presents the next chapter of ongoing litigation seeking to hold Nova Southeastern University liable for breach of contract or unjust enrichment following its campus closure at the start of the COVID-19 pandemic. The Amended Complaint presently before the Court seeks to recover a portion of fees the Plaintiff paid to the University for the January 2020 through May 2020 semester ("Winter Semester"). Craig brings the class action lawsuit against Defendant Nova Southeastern University ("NSU") on behalf of all University students who paid certain fees for the school's Winter Semester, from January through May 2020. NSU is a private University in Broward County Florida. The University suspended classes on March 13, 2020 and began providing courses online starting on March 23, 2020 with no campus activities, facilities, or in-person educational services. It did not refund students the fees paid for the Winter Semester after it implemented virtual education. The Plaintiff was an undergraduate student during the Winter Semester and graduated in May 2020. He paid a total of $2,391 in what he refers to as "Mandatory Fees" for the Winter Semester. The fees the Plaintiff paid include: (1) NSU Student Services Fee of $500; (2) Science Lab Fee Chemistry B of $80; (3) Science Lab Fee of $80; (4) "PVA Music Fee" of $265; (5) Insurance Fee of $1,336; (6) Graduation Fee of $100; and (7) Registration Fee of $30. He alleges that these Mandatory Fees were for in-person educational services, experiences, opportunities, and other related collegiate services and access to facilities. The Court's ruling in another related case, Ferretti v. Nova Southeastern University, is an essentially identical action involving substantially similar facts, nearly identical claims, and substantially the same parties, and governs the scope of permissible claims in this matter, citing Ferretti v. Nova Se. Univ., Inc., 604 F.Supp.3d 1330 (S.D. Fla. 2022) (Ferretti II)). In Ferretti II, the complaint alleged one count of breach of contract and one count of unjust enrichment. NSU moved to dismiss both counts. The Court dismissed most, but not all, of Ferretti's complaint. It concluded that the contractual language unambiguously provided for flexibility in the method of its course delivery. Thus, by teaching the semester partly in person and partly online, NSU did exactly what it said it might do. Accordingly, the Court dismissed both counts with prejudice as to any claim for tuition, as well as any claim for fees to the extent they were paid in exchange for in-person, on-campus classroom instruction, and the Court dismissed without prejudice and with leave to amend any claim for separately itemized fees to the extent they were paid in exchange for access to campus activities, facilities, resources, and services. Ferretti elected not to amend his complaint. Instead, after its ruling in Ferretti II, the Court lifted the stay of the instant case for the limited purpose of allowing Craig to file an Amended Complaint based on the Ferretti II ruling and allowing NSU to answer or move to dismiss. The Court adopted its ruling in Ferretti II and allowed Craig to file an Amended Complaint in which he is limited to asserting only any claim(s) for separately itemized fees to the extent they were paid in exchange for access to campus activities, facilities, resources, and services. That is the Amended Complaint the Court considers now, which the Defendant now moves to dismiss. NSU moves to dismiss both of Plaintiff's claims in this action: breach of contract (Count I) and unjust enrichment (Count II). Thus, the Court is left to determine whether Craig's Amended Complaint pleads sufficient facts to allege a contract between Craig and the University for separately itemized fees paid in exchange for access to campus activities, facilities, resources, and services. Judge Ruiz concludes the Amended Complaint fails to do so and dismisses the Amended Complaint with prejudice. Judge Ruiz holds that the Plaintiff was provided an opportunity to plead facts alleging there was an implied-in-fact contract where he paid Mandatory Fees in exchange for access to the University's campus. But the opposite is true. Judge Ruiz finds that University publications show there was an implied-in-fact contract addressing each of the six mandatory fees the Plaintiff has identified -- but none of these fees were paid in exchange for campus access. Thus, he must dismiss the Plaintiff's breach of contract claim. Relatedly, given the existence of an unambiguous implied-in-fact contract involving the exchange of fees for services other than campus access, the Plaintiff's unjust enrichment claim also fails. And the Plaintiff has not established the University used the income from Mandatory Fees for anything other than what it promised in the implied-in-fact contract. Based on the foregoing, Judge Ruiz need not address the Defendant's remaining claims regarding standing and attorneys' fees. He concludes that this chapter of ongoing litigation seeking to hold NSU liable for breach of contract or unjust enrichment following its campus closure at the start of the COVID-19 pandemic has come to an end. The Clerk is instructed to close the case. A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/mry7df3m from Leagle.com. NUMRICH GUN: Bid to Dismiss 2nd Amended Koeller Suit OK'd in Part ----------------------------------------------------------------- In the case, EDWARD KOELLER and KEVIN CHEEK, individually and on behalf of all others similarly situated, Plaintiffs v. NUMRICH GUN PARTS CORPORATION, Defendant, Case No. 1:22-cv-675 (N.D.N.Y.), Judge David N. Hurd of the U.S. District Court for the Northern District of New York grants in part and denies in part the Defendant's motion to dismiss the second amended complaint. On June 24, 2022, Koeller filed the putative class action against Numrich alleging that the Defendant failed to properly protect his sensitive information from disclosure arising from a data breach. On Oct. 21, 2022, he filed an amended complaint as of right. Thereafter, the Court accepted Koeller's second amended complaint for filing. The second amended complaint, now the operative pleading, names Kevin Cheek as an additional plaintiff. On Dec. 16, 2022, Numrich moved to dismiss Koeller and Cheek's second amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In the alternative, the Defendant has moved to strike immaterial and impertinent allegations pursuant to Rule 12(f). Numrich is a well-known firearm parts and weapons retailer. It sells gun parts that replace and modify the components for dangerous weapons, including bayonets, scabbards, gun magazines, stocks, suppressers, muzzle brakes and gun sights and components. It sells these gun parts to customers through its e-commerce website, www.gunpartscorp.com. To complete a purchase on Numrich's e-commerce website, customers are required provide their name, address, payment card number, card security code, and expiration date (collectively "PCD"). The Defendant collects and maintains this information pursuant to its Privacy Policy. The Defendant's Privacy Policy promises to use reasonable measures to safeguard customers' PCD from theft and misuse. On March 28, 2022, Numrich became aware of suspicious activity on its e-commerce website. In response, it began an investigation into the cause of the suspicious activity. The investigation revealed that a data breach occurred between Jan. 23, 2022, and April 5, 2022. Id. After discovering the data breach, defendant did not shut down e-commerce through its website. As part of the data breach, hackers gained access to at least 45,169 of Numrich's customers' PCD. The Plaintiffs maintain that cybercriminals were able to breach the Defendant's e-commerce website because defendant failed to maintain reasonable security safeguards and protocols to protect its customers' PCD. On June 6, 2022, over two months after discovering the breach and nearly five months after the start of the breach, Numrich began notifying breach victims that their PCD was compromised. The Plaintiffs, as customers of the Defendant, received notices that their PCD was exposed as a result of the data breach. According to them, the Defendant's breach notice deliberately underplayed the breach's severity and misrepresented that defendant was unaware of any actual misuse of information related to the breach. After being notified that their PCD was compromised, the Plaintiffs took efforts to remediate the effects of the data breach. In particular, they devoted time and resources to reviewing their accounts for fraud. They also spent time canceling the payment cards associated with their purchases from Numrich. The Plaintiffs now fear for their personal safety following the data breach. As gun owners, they maintain that they are now at risk for burglary and theft because criminals know where they live and that they possess guns. As a result, they are experiencing feelings of anxiety, sleep disruption, stress, fear, and frustration. Numrich seeks dismissal of the Plaintiffs' second amended complaint under Rules 12(b)(1) and 12(b)(6). First, it seeks dismissal of the Plaintiffs' claims under Rule 12(b)(1). It asserts that without standing to bring their claims, the Plaintiffs are unable to invoke the subject matter jurisdiction of the Court. Judge Hurd holds that the Plaintiffs have alleged four distinct injuries: Numrich's breach resulted in the disclosure of their private information; exposed them to a risk for identity theft and fraud; their fear for their safety given that criminals know where they live and that they own firearms, amounts to an emotional harm; and they paid for data security when they bought products from Numrich, an implied 'benefit of the bargain' Numrich failed to provide and must compensate them for. Upon review, Judge Hurd holds that the Plaintiffs have plausibly alleged the type of loss in privacy protected by the tort of public disclosure of private information. These allegations, he says, are sufficient to demonstrate that the public has no legitimate interest in the Plaintiffs' PCD and that a reasonable person would find the disclosure of their PCD without authorization or consent "highly offensive." While the Plaintiffs assert three other injuries-in-fact, Judge Hurd need not analyze the sufficiency of those allegations because the Plaintiffs have already shown a distinct injury-in-fact fairly traceable to the conduct of Numrich. Numrich also seeks dismissal of the Plaintiffs' claims under Rule 12(b)(6) for failure to state a claim. It argues that they have failed to plead sufficient facts to support any of the causes of action set forth in the Second Amended Complaint. The Plaintiffs' causes of action include: (1) negligence; (2) breach of implied contract; (3) unjust enrichment; and (4) violation of New York General Business Law Section 349. Judge Hurd holds that (i) the Plaintiffs' allegations are sufficient to demonstrate damages; (ii) the Plaintiffs have sufficiently alleged that Numrich breached its duty to protect their personal information from disclosure; (iii) the Plaintiffs have plausibly alleged mutual assent to an implied contract; (iv) the Plaintiffs have sufficiently stated a claim for unjust enrichment; and (v) the Plaintiffs have failed to allege facts plausibly suggesting that the alleged deceptive transactions occurred in New York State. In the alternative, Numrich has moved under Rule 12(f) to strike portions of the Plaintiffs' second amended complaint concerning identity theft and data breaches that have nothing to do with the parties or facts of the case. Judge Hurd holds that the allegations at issue are relevant to the Plaintiffs' asserted claims and damages. Accordingly, Numrich's motion to strike portions of the Plaintiffs' second amended complaint is denied. Therefore, the Defendant's motion to dismiss in granted in part and denied in part. The Plaintiffs' New York General Business Law Section 349 claim (Count IV) is dismissed. The Plaintiffs' claims for negligence (Count I), breach of implied contract (Count II), and unjust enrichment (Count III) remain. The Defendant's motion to strike under Rule 12(f) is denied. The Defendant was to file and serve an answer to the second amended complaint on June 6, 2023. The Clerk of The Court is directed to terminate the pending motion. A full-text copy of the Court's May 23, 2023 Decision & Order is available at https://tinyurl.com/2mawazke from Leagle.com. JAMES J. BILSBORROW, ESQ. -- jbilsborrow@weitzlux.com -- WEITZ & LUXENBERG, P.C., New York, NY, Attorneys for the Plaintiffs. RAINA C. BORRELLI, ESQ. -- raina@turkestrauss.com -- TURKE & STRAUSS LLP, Madison, WI, Attorneys for the Plaintiffs. JAMES F. MONAGLE, ESQ. -- jmonagle@mullen.law -- MULLEN COUGHLIN LLC, Mt. Laurel, NJ, Attorneys for the Defendant. KAREN G. FELTER, ESQ. -- kfelter@smithsovik.com -- SMITH, SOVIK, KENDRICK & SUGNET, P.C., Syracuse, NY, Attorneys for the Defendant. OAKLAND, CA: Court Sets Initial CMC in Curran ADA Suit for Nov. 2 ----------------------------------------------------------------- In the case, MICHAEL CURRAN, NICOLE BROWN-BOOKER, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF OAKLAND, Defendant, Case No. 3:23-cv-02354 RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California, Oakland Division, set the Initial Case Management Conference (CMC) for Nov. 2, 2023. The Plaintiffs brought the action against the City on May 15, 2023, based on the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, and California Government Code Section 11135. The Parties stipulate and agree that the putative class action should not be subject to General Order 56, and thus, request relief from General Order 56. They are in the process of scheduling an early mediation with The Honorable Edward A. Infante of JAMS in either August or early September of this year. To allow them enough time to mediate with Judge Infante and make their best effort to settle the case early, the Parties would like to schedule their Initial CMC after Oct. 30, 2023. For these reasons, they jointly stipulate and request that they relieved of the requirements of General Order 56 and that an Initial CMC be scheduled any time after Oct. 30, 2023. Pursuant to the stipulation of the Parties and for good cause shown, Judge Seeborg relieves the Parties of the requirements of General Order 56. An Initial CMC is scheduled for Nov. 2, 2023. The Parties will file a Joint Case Management Statement by Oct. 26, 2023. A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/57srmr9t from Leagle.com. Guy B. Wallace -- gwallace@schneiderwallace.com -- Mark T. Johnson -- MJohnson@schneiderwallace.com -- SCHNEIDER WALLACE COTTRELL KONECKY LLP, Emeryville, California, Catherine Cabalo , PEIFFER WOLF CARR KANE CONWAY & WISE, LLP, San Francisco, CA, Linda M. Dardarian -- ldardarian@gbdhlegal.com -- Andrew P. Lee -- ALEE@GBDHLEGAL.COM -- GOLDSTEIN, BORGEN, DARDARIAN & HO, Oakland, CA, Jinny Kim -- ldardarian@gbdhlegal.com -- DISABILITY RIGHTS ADVOCATES, Berkeley, CA, Attorneys for the Plaintiffs and the Proposed Classes. PEIFFER WOLF CAR KANE CONWAY & WISE, LLP, By: Catherine Cabalo, Attorneys for Plaintiffs and the Proposed Classes. BARBARA J. PARKER, City Attorney, By: Kevin P. McLaughlin, Supervising Deputy City Attorney, Attorneys for Defendant City of Oakland. ORDER EXPRESS: Court Refuses to Dismiss Florence Data Breach Suit ----------------------------------------------------------------- In the case, ERIC FLORENCE and AISHA BUNDAGE, on behalf of themselves and all others similarly situated, Plaintiffs v. ORDER EXPRESS, INC., Defendant, Case No. 22 C 7210 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies the Defendant's motion to dismiss the Plaintiffs' amended complaint for lack of standing. Plaintiffs Florence and Bundage were customers of Order Express' money-services business. After a data breach, the Plaintiffs' personal information appeared for sale on the dark web. The Plaintiffs sued Order Express, bringing claims of negligence, breach of implied contract, and violation of the California Consumer Protection Act (CCPA). Order Express now moves to dismiss the Plaintiffs' amended complaint for lack of standing and argues further that the CCPA claim is insufficiently pleaded. Order Express is a money-services business, which collected personal identifying information -- including names, social security numbers, and driver's license numbers -- from over 63,000 customers. It stored customers' personal identifying information on an unencrypted and internet-accessible network. By Sept. 7, 2022, Order Express discovered an ongoing data breach, implicating the personal identifying information. Due to the breach, six gigabytes of customer data appeared for sale on the "dark web." The data included names, addresses, phone numbers, order histories, social security numbers, identity documents, driver's licenses, payment information, "and much more." Reports emerged in October 2022 that the "CL0P" ransomware gang had orchestrated the attack on Order Express' network. Around Dec. 15, 2022, Order Express began to notify state attorneys general and customers about the data breach. It explained to customers that an "unknown party accessed parts of its computer network without authorization" and that their personal identifying information had been exposed. But Order Express's notices to customers and attorneys general did not disclose that an unauthorized actor had in fact acquired customers' personal identifying information. Nor did Order Express disclose that the personal identifying information was for sale on the dark web and subject to a ransom demand. Florence, a California resident, and Bundage, a Texas resident -- both of whom had used Order Express to send or receive money before the data breach—were among the affected customers. Florence received a notice from Order Express stating that his driver's license number was subject to the data breach. Order Express notified Bundage that her social security or tax identification numbers were exposed. After receiving the data-breach notice, Florence and Bundage attempted to mitigate the risks of the breach by verifying the notice's legitimacy and monitoring their accounts. They spent time and money on credit monitoring, identity-theft insurance, scrutinizing bank and credit card statements and credit reports, and setting up fraud alerts. The exposure of their personal information in the data breach, the Plaintiffs assert, has nonetheless left them vulnerable to "fraud, identify theft, and misuse" by unauthorized third parties or criminals. The Plaintiffs' stolen information is difficult, if not impossible, to change. And fraudulent activity may not become apparent until years after a data breach. Order Express offered Plaintiffs two years of credit monitoring and identity-theft protection, which the Plaintiffs allege is insufficient. Florence brought the putative class action on Dec. 28, 2022. In their Amended Class Action Complaint, Florence and Bundage allege negligence (Count I) and breach of implied contract (Count II), seeking declaratory and injunctive relief (Count III) in addition to damages. Florence brings an additional claim under the CCPA, Cal. Civ. Code Sections 1798.100, et seq. Order Express now moves to dismiss the amended complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and to dismiss Florence's CCPA claim under Rule 12(b)(6). The Plaintiffs argue that their (1) loss of privacy; (2) mitigation efforts; and (3) emotional injuries based on the threat of future harm are concrete injuries providing standing to seek both damages and injunctive relief. Judge Kendall opines that both the Plaintiffs' alleged harms are suitably concrete. She says the Plaintiffs' alleged loss of privacy resulting from the data breach is a concrete injury in fact. The publication of their sensitive personal information -- including social security numbers, driver's license numbers, and tax identification numbers -- has a close relationship to disclosure of private information, a common-law theory of harm. The resulting likelihood of fraud or identity theft makes the exposure of the Plaintiffs' private information even more offensive. The Plaintiffs allege an additional concrete harm in the form of mitigation costs based on the threat of future harm. After a data breach, the risk of identity theft or fraud is "sufficiently immediate to justify mitigation efforts." Judge Kendall holds that the Plaintiffs have demonstrated actual and imminent concrete harms by alleging loss of privacy and mitigation costs based on the substantial risk of identity theft and fraud. These harms are traceable to the data breach, which Order Express failed to prevent, and redressable by the Court. The standing inquiry remains open to review at all stages of the litigation, and the Plaintiffs' burden to show standing will grow heavier as this litigation moves forward. At this stage, the Plaintiffs have standing to pursue their claims for damages and injunctive relief. For completeness, Judge Kendall mentions the Plaintiffs' last concrete-harm theory: they claim to have suffered emotional distress, anxiety, and annoyance based on the risk of future harm. But the Seventh Circuit has repeatedly rejected arguments in this vein. The Plaintiffs have not shown that their emotional response led to actionable injury. Unlike the Plaintiffs' loss of privacy and mitigation costs, their emotional harms are not concrete. Order Express next contends that Florence has failed to state a claim under the CCPA. Judge Kendall finds that Order Express did not encrypt Florence's personal identifying information or delete the information it no longer needed to maintain on its internet-accessible network. Nor has Order Express expanded on its bare assertion in the motion to dismiss that it cured all alleged violations within the requisite time period. Accordingly, Florence has stated a claim under the CCPA. For these reasons, Order Express's motion to dismiss is denied. A full-text copy of the Court's May 23, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/yev3rpuh from Leagle.com. ORIENTAL LOGISTICS: Underpays Logistic Coordinators, Gomez Claims ----------------------------------------------------------------- CINTIA GOMEZ, on behalf of herself and others similarly situated, Plaintiff v. ORIENTAL LOGISTICS MIAMI, INC., a Florida Corporation, SAM WONG, individually, and ANLY LIU, individually, Defendants, Case No. 1:23-cv-21953 (S.D. Fla., May 26, 2023) is a class action brought by the Plaintiff against the Defendants for unpaid overtime wages, liquidated damages, and for costs and reasonable attorneys' fees of this action under the provisions of the Fair Labor Standards Act. The complaint alleges that the Defendants failed to pay Plaintiffs time and one-half of her applicable regular rates of pay for all of her actual overtime hours worked each week and instead paid her a salary for 40 hours per week without compensation for her hours worked in excess of 40. During the three year statute of limitations period between approximately May 2020 and the present, the Defendants misclassified Gomez, logistic coordinators, and other similarly situated employees, however variously titled, as "exempt" from the overtime compensation requirements of the FLSA despite their primary job duties being non-exempt in nature, says the suit. Oriental Logistics Miami, Inc. is a freight forwarding service provider in Doral, Florida.[BN] The Plaintiff is represented by: Keith M. Stern, Esq. LAW OFFICE OF KEITH M. STERN, P.A. 80 S.W. 8th Street, Suite 2000 Miami, FL 33130 Telephone: (305) 901-1379 Facsimile: (561) 288-9031 E-mail: employlaw@keithstern.com PACESETTER PERSONNEL: Villarino Suit Removed to S.D. Fla. --------------------------------------------------------- The case styled SHANE VILLARINO, an individual, LAURA J. JOHNSON, an individual, On behalf of themselves and all others similarly situated, Plaintiffs v. KENNETH JOEKEL, an individual; MARC PLOTKIN, an individual; PACESETTER PERSONNEL SERVICE, INC., A Texas profit corporation; PACESETTER PERSONNEL SERVICE OF FLORIDA, INC., a Florida profit corporation; FLORIDA STAFFING SERVICE, INC., A Florida profit corporation; and TAMPA SERVICE COMPANY, INC., A Florida profit corporation, each d/b/a/ PACESETTER; PACESETTER PERSONNEL; PACESETTER PERSONNEL SERVICE; PACESETTER PERSONNEL SERVICES; PACESETTER PERSONNEL SERVICES, LLC; PPS; and/or FW SERVICES; Defendants, Case No. CACE-23-010725, was removed from the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, to the United States District Court for the Southern District of Florida on May 26, 2023. The Clerk of Court for the Southern District of Florida assigned Case No. 0:23-cv-61003 to the proceeding. The Plaintiff's complaint alleges failure to provide bathroom facilities to Class members at a now-closed Commercial Boulevard labor hall between January 29, 2016, and the location's closure in February 2021. Pacesetter Personnel Service, Inc. is a staffing agency for temporary labor.[BN] The Defendants are represented by: Derek E. Leon, Esq. Ronald J. Tomassi, Jr. LEON COSGROVE JIMENEZ, LLP 255 Alhambra Circle, 8th Floor Miami, FL 33134 Telephone: (305) 740-1975 E-mail: dleon@leoncosgrove.com rtomassi@leoncosgrove.com PROVIDENCE HEALTH: Angulo Allowed to Issue Subpoenas to MultiCare ----------------------------------------------------------------- In the case, CAROLINE ANGULO, et al., Plaintiffs v. PROVIDENCE HEALTH & SERVICES - WASHINGTON, et al., Defendants, Case No. C22-0915JLR (W.D. Wash.), Judge James L. Robart of the U.S. District Court for the Western District of Washington, Seattle, grants the Plaintiffs' supplemental brief requesting leave to issue a subpoena to non-party MultiCare Health System. On March 17, 2023, the Court ordered the Plaintiffs and Providence to conduct jurisdictional discovery regarding whether any exception to the Class Action Fairness Act's removal provision applies to the case. Specifically, it concluded that it could not determine whether it could exercise subject matter jurisdiction without knowing the number of proposed class members in the aggregate and their citizenship and state of residency. The Court ordered the Plaintiffs to submit a supplemental brief describing their plan for ascertaining the same data for members of the proposed class who received treatment at MultiCare, as MultiCare is not a party to the suit. The Plaintiffs now ask the Court for leave to subpoena a list of members of the Proposed MultiCare Class with patients' names and contact information. Considering the Court's paramount need to determine whether it may exercise subject matter jurisdiction over the action, Judge Robart concludes that the Plaintiffs may issue the requested subpoenas to MultiCare. He urges them to carefully review Rule 45's requirements regarding the form, contents, and service of subpoenas. Judge Robart reminds the Plaintiffs of their obligations to take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena, subject to sanction by the Court for the district where compliance is required. For these reasons, the Plaintiffs' request for leave to issue subpoenas to MultiCare is granted. A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/3s5ppepy from Leagle.com. PUBLISHERS CLEARING: Bid to Dismiss Pett Complaint Granted in Part ------------------------------------------------------------------ In the case, MARY LOU PETT, et al., Plaintiffs v. PUBLISHERS CLEARING HOUSE, INC., Defendant, Case No. 22-11389 (E.D. Mich.), Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants in part and denies in part the Defendant's Motion to Dismiss Second Amended Class Action Complaint. The nine named Plaintiffs filed the putative class action on June 22, 2022, alleging that Defendant Publishers Clearing House, Inc. ("PCH") violated Michigan's Preservation of Personal Privacy Act, M.C.L. Section 445.1712 ("PPPA"), when it disclosed, without the Plaintiffs' consent, information that identified them as purchasers of certain types of written materials and sound and video recordings sold by the Defendant. The Plaintiffs have filed two amended class action complaints, the most recent on Nov. 8, 2022. The Defendant filed its Motion to Dismiss Second Amended Class Action Complaint on Dec. 6, 2022 and the Motion is fully briefed and numerous supplemental filings were filed by the parties. The Court held a hearing on the Motion on Feb. 1, 2023. Each of the nine Plaintiffs makes identical allegations in the Complaint: The Plaintiff is a natural person and citizen of the State of Michigan and resides in Michigan. The Plaintiff purchased written materials, sound recordings, and/or video recordings sold by PCH, including but not limited to subscriptions to magazines, prior to July 31, 2016 (including during the relevant pre-July 31, 2016 time period). While residing in, a citizen of, and present in Michigan, the Plaintiff purchased such products, including such magazine subscriptions, directly from PCH. Prior to and at the time the Plaintiff purchased such products (including magazine subscriptions) from PCH, PCH did not notify the Plaintiff that it discloses the Private Purchase Information of its customers, and the Plaintiff has never authorized PCH to do so. Furthermore, the Plaintiff was never provided any written notice that PCH rents, exchanges, or otherwise discloses its customers' Private Purchase Information, or any means of opting out. Since purchasing products (including magazine subscriptions) from PCH, and during the relevant pre-July 31, 2016 time period, PCH disclosed, without the requisite consent or prior notice, the Plaintiff's Private Purchase Information to data aggregators, data appenders, and/or data cooperatives, who then supplement that information with data from their own files. Moreover, during that same period, PCH rented or exchanged mailing lists containing the Plaintiff's Private Purchase Information to third parties seeking to contact PCH customers, without first obtaining the requisite written consent from the Plaintiff or even giving her prior notice of the rentals, exchanges, and/or other disclosures. The Plaintiffs define "Private Purchase Information" as the Defendant's "customers' information -- including their full names, titles of the written materials (i.e., magazines, books, journals, newsletters, or newspapers) and/or audiovisual materials (i.e., sound recordings, including music or audiobooks, and video recordings, including television shows or movies) they purchased, and home addresses. The only "data aggregators, data appenders, and/or data cooperatives" (or any other similar entity) that the Plaintiffs specifically identify in the Complaint as possessing their PPI are NextMark, Inc. and List Services Corp. ("LSC"). The Complaint alleges that NextMark is a "list broker" on whose website "PCH offers to provide renters access to the mailing list titled 'Publishers Clearing House Magazine Buyers Mailing List,' which contains the Private Purchase Information of all 647,541 of PCH's U.S.-based magazine subscription purchasers at a base price of $100.00/M per thousand]." The Plaintiffs allege that, on NextMark's website, PCH also offers to provide renters access to the mailing list titled 'Publishers Clearing House Book, Music & Video Buyers Mailing List,' which contains the Private Purchase Information of 1,429,511 of PCH's U.S.-based book, music, and video purchasers at a base price of '$100.00/M per thousand.' In support of these two allegations, the Plaintiffs include within and attach to the Complaint two screenshots from NextMark's website. The Complaint alleges that LSC serves as PCH's list manager and has served PCH in that role since April 1, 2002. The Plaintiffs allege that LSC manages PCH mailing lists that include magazine buyers, merchandise buyers, sweeps nos entries and pch.com buyers and entrants. They further allege that, for the entire duration of the pre-July 31, 2016 time period, PCH continuously and systematically disclosed -- at least as frequently as once a month -- all of its customer's Private Purchase Information via list rentals, exchanges, and transfer to LSC and other third-party entities. In support of their claims, the Plaintiffs attach to the Complaint four exhibits that they assert demonstrate that PCH violated the PPPA. The Defendant argues that the Plaintiffs' allegations are insufficient to state a plausible, viable claim under the PPPA. It further claims that the PPPA makes clear that it only prohibits the unconsented-to disclosure to third parties of a record or information that personally identifies the customer as having purchased, leased, rented, or borrowed books or other written materials, sound recordings, or video recordings. Judge Hood grants in part and denies in part the Defendant's Motion to Dismiss. She denies the Motion to Dismiss with respect to the Plaintiffs' claims of disclosures to NextMark and LSC and grants it with respect to any third parties because such third parties are not specifically identified and are merely speculative. Among other things, Judge Hood agrees with the Defendant that the Plaintiffs had the burden of alleging the entities to which the Defendant allegedly was disclosing the lists/personal information. To conclude otherwise would relieve the Plaintiffs of any obligation to plead anything that would identify the scope of the Defendant's disclosures. Judge Hood rejects, however, the Defendant's argument that whether the entity selling or renting the lists was it is left entirely to impermissible speculation. The Complaint specifically alleges that the Defendant was (and is) selling, renting, leasing, or otherwise disclosing its customer lists. Judge Hood finds, however, that except as to alleged disclosures to LSC and NextMark, the Plaintiffs' allegations are not sufficient, despite their argument that there is a liberal pleading standard. She says the Plaintiffs' contention that the crux of the lawsuit is that the Defendant failed to inform them that it would disclose their Private Purchase Information to others and obtain their consent does not change the Court's analysis, as it is not relevant to whom the Defendant allegedly disclosed prohibited information. Any discovery will be limited to only the named Plaintiffs. Judge Hood denies the motion to dismiss previously filed by the Defendant as superseded. A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/2p9htvp5 from Leagle.com. PUBLIX SUPER: Judge Tosses Suit Over Mislabeled Lemon Lozenges -------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that a Florida federal judge has thrown out a lawsuit that complained honey and lemon-flavored lozenges did not contain real lemon. Publix told Judge Robert Scola in its motion to dismiss that the list of ingredients didn't include lemon, so reasonable consumers couldn't have possibly been misled. The hint of lemon came from artificial and natural flavors. The lawsuit had said customers purchase lemon products because of their nutritional benefits. Will Wright and Spencer Sheehan are representing plaintiff Heriberto Valiente. Publix had also pointed at a Chicago decision that dismissed a lawsuit over lemon in flavored seltzer water. It also noted a money-back guarantee on the product that dooms Valiente's lawsuit, as he had a more adequate economic remedy other than filing in federal court. "Valiente does not address Publix's offer either in his amended complaint or in his response to Publix's motion to dismiss: for example, he does not state that he never in fact received a refund for the cough drops, that he attempted to return the product for a refund and that Publix refused, or even that he was unaware of the possibility for a refund," Scola wrote My 24. "(T)he Court concludes that the only injury Valiente actually alleges his essentially been mooted by Publix's money-back guarantee." Besides that, Valiente faied to show the cough drops didn't function as advertised or that he paid a price premium for lemon. Sheehan and Wright were not given a chance to refile the case, either. "Valiente requests leave to amend as an afterthought, at the end of his response in opposition to Publix's motion to dismiss, making the request both procedurally defective and lacking in substance support under Eleventh Circuit precedent," Scola wrote. "The Court will not now afford Valiente another bite at the apple where he declined 'to follow the well-trodden procedural path toward amendment.'" [GN] SAZERAC COMPANY: Faces Class Suit Over Mislabeled Rum Brand ----------------------------------------------------------- Jessica Gleman of Rum Raiders reports that a class action lawsuit has been brought against spirits giant Sazerac over its popular rum brand, Parrot Bay. This comes after a wave of lawsuits against the company over similar labeling issues. The lawsuit filed with the U.S. District Court for the Southern District of New York alleges that the Parrot Bay mini bottles are not "true Parrot Bay Rum," in reality, the product is a malt beverage with less than 20% Alcohol By Volume. "When individuals buy Parrot Bay rum - as they do other rums - the alcohol content is a major component, if not the driving force, of the decision to purchase an alcoholic beverage," the lawsuit reads. The Plaintiff argues that Sazerac uses the "familiar nature" of its symbol for Parrot Bay, including its tropic-themed logo, to sell products "that are, decidedly, not rum." "Plaintiff, like all reasonable consumers, relied on this label to her detriment, and suffered injury in the form of the purchase price," the Parrot Bay class action states. Unlike rum which is made from distilled sugar products, malt-based beverages are made from fermented cereals and use flavorings to achieve similar flavor notes. "A consumer familiar with Parrot Bay and with rum-branding in general who purchased the Malt would have to scrutinize farther than the reasonable consumer is expected to for them to understand there is no rum," the Parrot Bay class action states. Both the rum-based and the malt-based bottles of rum say Parrot Bay with the only visual difference being the 90 printed on some of the former. The 90 refers to the proof of the rum (45% ABV) which is the standard for the large format bottles that also display the proof. The malt-based mini bottle only contains 16% ABV. There is another version that is 21% ABV, but is also made from a rum base. The different mini bottles of Parrot Bay are almost undiscernible from one another and consumers may not be able to immediately tell the difference in product. The plaintiff is seeking a jury trial and requests declaratory relief along with an award of compensatory, statutory and punitive damages for all class members. This is the third lawsuit of a similar nature filed against Sazerac. Previously, class action suits were imposed on the spirits company for its misleading labels on mini bottles for both its Fireball Whiskey and Southern Comfort brands. We will see if the third time is indeed the charm for Sazerac. [GN] SCION GROUP: Castillo Wage-and-Hour Suit Removed to C.D. Cal. ------------------------------------------------------------- The case styled ELYSHA CASTILLO, on behalf of herself and all others similarly situated, and on behalf of the general public, Plaintiff v. THE SCION GROUP, LLC, an Illinois Limited Liability Company, and DOES 1 through 10, inclusive, Defendants, Case No. CVRI 2302060, was removed from the Superior Court of the State of California, County of Riverside, to the United States District Court for the Central District of California on May 26, 2023. The Clerk of Court for the Central District of California assigned Case No. 5:23-cv-00957 to the proceeding. In the complaint, Plaintiff alleges 11 total causes of action, 10 of which are for various violations of the California Labor Code and one for "Unfair Competition" under the California Business & Professions Code. The Scion Group, LLC is a property management company.[BN] The Defendant is represented by: Alexander D. Terepka, Esq. WATSTEIN TEREPKA LLP 515 South Flower Street, 19th Floor Los Angeles, CA 90071 Telephone: (404) 782-9821 E-mail: aterepka@wtlaw.com SEPHORA USA: Sued for Using Third-Party Spyware Company ------------------------------------------------------- Jon Styf, writing for Top Class Actions, reports that Sephora USA Inc. is facing a class action lawsuit brought by plaintiff Arisha Byars over the company's use of a third-party spyware company to monitor live chat conversations on its website without proper warning. The use of Live Chat software to monitor those conversations and then sell information to third-party companies for use in target marketing is a violation of the California Invasion of Privacy Act, according to the lawsuit. The CIPA prohibits wiretapping and eavesdropping of electronic communications without the consent of all parties to the communication. "Unlike most companies, Defendant ignores CIPA," the lawsuit states. "Instead, defendant enables and allows a third party that has no corporate affiliation with defendant to eavesdrop on all such conversations. Why? Because, as one industry expert notes, 'Live chat transcripts are the gold mines of customer service. At your fingertips, you have valuable customer insight to make informed business decisions . . . . When people are chatting, you have direct access to their exact pain points.'" The plaintiff used a smartphone to access the chat function on Sephora.com and provided personal and confidential data during the chat, according to the lawsuit. The defendant said Sephora did not indicate it was allowing the spyware company to eavesdrop on the conversation and also provide transcripts along with providing the data to Meta, according to the lawsuit. Byars previously won a case against Goodyear Tire and Rubber Co. in an identical case claiming Goodyear had violated CIPA by allowing for a third-party company to monitor a live chat, according to the lawsuit. She also filed similar lawsuits against Rite Aid, Hot Topic and Casper Sleep. Class deserves injunctive relief along with damages, attorneys' fees, according to class action lawsuit The class should be granted injunctive relief and damages, along with attorneys' fees, the Sephora class action lawsuit claims. Sephora was previously reached a $1.77 million settlement to resolve claims it illegally charged taxes on Missouri purchases. The plaintiff is represented by Scott J. Ferrell of Pacific Trial Attorneys APC. The Sephora eavesdropping class action lawsuit is Byars, et al. v. Sephora USA Inc., Case No. 5:23-cv-00883, in the U.S. District Court for the Central District of California. [GN] SERVICE EMPLOYEES: Agrees to Settle Data Breach Suit for $550,000 ----------------------------------------------------------------- Top Class Actions reports that Service Employees International Union agreed to pay $550,000 as part of a settlement to resolve claims it failed to protect union members from a 2021 data breach. The settlement benefits individuals whose personal identifying information may have been compromised in a Service Employees International Union (SEIU) Local 32BJ data breach announced Feb. 11, 2022. The data breach, which occurred between Oct. 21, 2021, and Nov. 1, 2021, allegedly compromised sensitive information such as names, addresses and Social Security numbers. According to a class action lawsuit, SEIU could have prevented the data breach with reasonable cybersecurity measures but negligently failed to do so. SEIU 32BJ is a property service worker union with 175,000 members, making it the largest union of its kind in the United States. SEIU hasn't admitted any wrongdoing but agreed to a $550,000 settlement to resolve the data breach class action lawsuit. Under the terms of the settlement, class members can receive cash payments of up to $1,500 for out-of-pocket expenses and losses such as bank fees, communication charges, credit-related costs, fraudulent charges, identity theft damages and up to four hours of lost time at a rate of $25 per hour. The deadline for exclusion and objection is June 5, 2023. The final approval hearing for the settlement is scheduled for July 13, 2023. In order to receive settlement benefits, class members must submit a valid claim form by June 20, 2023. Who's Eligible Individuals whose personal identifying information may have been compromised in a Service Employees International Union (SEIU) Local 32BJ data breach announced on Feb. 11, 2022 Potential Award $1,500 Proof of Purchase Documentation of data breach-related losses Claim Form NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 06/20/2023 Case Name Mateo, et al. v. Service Employees International Union Local 32BJ, Case No. BER-L-004121-22, in the New Jersey Superior Court for Bergen County Final Hearing 07/13/2023 Settlement Website MateoDataIncidentSettlement.com Claims Administrator Mateo v SEIU 32BJ c/o Kroll Settlement Administration LLC PO Box 5324 New York NY 10150-5324 Info@MateoDataIncidentSettlement.com 833-630-9977 Class Counsel Kenneth J Grunfeld Kevin W Fay GOLOMB SPIRT GRUNFELD PC Defense Counsel Spencer Persson Mohammad B Pathan DAVIS WRIGHT TREMAINE LLP [GN] SHOPIFY INC: Laid Off Workers Sue Over Misleading Severance Pay --------------------------------------------------------------- Tara Deschamps of The Globe and Mail reports that A class-action lawsuit alleges Shopify Inc. SHOP-T +0.48%increase reneged on a deal it offered some employees who were laid off in a recent round of cuts. The class action alleges some of the Ottawa software business' employees laid off at the start of May were presented with departure packages outlining hefty severance sums they would be entitled to should they sign the agreement within a few days. However, once workers signed the agreements and before the deadline passed, Shopify allegedly told departing staff they would instead be given substantially smaller sums than were initially offered. "The individuals did the reasonable thing, which is to accept, only to be told even though we made you reasonable offers, even though you accepted that reasonable offer, we're just not going to do it and you have to sign a brand new agreement for a much lesser amount," said Lior Samfiru, a lawyer pursuing the case. "It just doesn't work like that. I review severance packages every day and have 21 years of doing this and I have never seen any employer ever do anything like that." The class-action's plaintiff Iain Russell, who worked for Shopify for seven years, says he was initially offered more than $88,000, which he accepted. Then, Shopify allegedly put forward a roughly $44,000 agreement. If he did not accept the $44,000 offer, he was told he would receive about $36,000. When their severance offers were revised, Mr. Samfiru said workers were sent a "vague statement about miscalculating." "For many people . . . the difference is significant," Mr. Samfiru said. "We've seen anywhere from a $10,000 to $50,000 and $60,000 difference between what individuals accepted and what Shopify now says they're not going to get. We are not talking about anything minor here." Mr. Samfiru alleges Shopify's actions constitute a breach of contract and is seeking $80-million in damages and $50-million in punitive, aggravated and exemplary damages. Those amounts could change based on how many workers were presented with shifting offers, he said. Shopify did not respond to a request for comment. The company reduced its head count by 20 per cent at the start of the month and by 10 per cent last year. The company refused to give the number of staff that would be departing the company during the May cut, but it reported in a regulatory filing that it had 11,600 employees at the end of 2022. Twenty per cent of that amounts to about 2,300 people. In an open letter announcing the layoffs, Shopify founder and chief executive Tobias Lutke promised departing staff at least 16 weeks of severance plus a week for every year of tenure at Shopify. Medical benefits and an employee-assistance program will cover departing staff over the same period. Those leaving will also be able to keep their office furniture and though they'll have turn in their company laptops, Mr. Lutke said Shopify promised to help pay for new ones. He positioned the layoff, which came at the time Shopify sold its logistics business, as an effort to reduce distracting "side quests" that divert attention away from the company's main goals. "I recognize the crushing impact this decision has on some of you, and did not make this decision lightly," Mr. Lutke wrote. [GN] ST. CLOUD STATE: Court Awards $1.8M Atty's Fees in Sex Bias Suit ---------------------------------------------------------------- Randi Love of Bloomberg Law reports that Eighth Circuit previously vacated attorneys' fees on appeal. District court said school failed to show Title IX compliance The attorneys for a class of St. Cloud State University female athletes were awarded about $1.8 million in fees and costs after protracted litigation of the students' sex discrimination claims, a Minnesota federal judge ruled. The plaintiffs, current and former members of St. Cloud's varsity intercollegiate women's tennis and women's Nordic skiing teams, alleged sex discrimination in the allocation of athletic participation opportunities and benefits provided to varsity athletes at the school. In 2018, the US District Court for the District of Minnesota hadn't complied with Title IX since at least 2014. The US Court of Appeals for the Eighth Circuit reversed in part, and vacated an award for attorneys' fees. On remand, the district court ultimately concluded SCSU failed to show full compliance with Title IX in the provision of treatment and benefits, specifically in its policies for benefits for travel and per diem expenses. "After considering the reasonableness of the attorney's hourly rates, expended hours, and the additional time incurred briefing the present motion, the Court will award $1,760,683.98 in reasonable attorney's fees and $19,770.37 in costs," Judge John R. Tunheim wrote in his opinion on May 30, 2023. "The Court will also order disbursement of previously tendered taxable costs totaling $17,203.75." Since the services for fees reflect the hours reasonably expended, and because the class "engaged in a good faith effort to reduce the fees in alignment with the Court's previous orders," Tunheim said the post-appeal fees requested are reasonable and will be awarded. Fafinski Mark & Johnson PA and Van Dyck Law Firm PLLC represented the student-athletes. The Minnesota Attorney General's Office represented St. Cloud. The case is Portz v. St. Cloud State Univ., D. Minn., No. 16-cv-01115, 5/30/23. To contact the reporter on this story: Randi Love at rlove@ic.bloombergindustry.com To contact the editors responsible for this story: Martina Stewart at mstewart@bloombergindustry.com; Brian Flood at bflood@bloombergindustry.com [GN] ST. VINCENT HEALTH: Applegate Can Amend Complaint to Add Claims --------------------------------------------------------------- In the case, KAYLYN APPLEGATE, et al., on behalf of themselves and those similarly situated, Plaintiffs v. ST. VINCENT HEALTH, INC., et al., Defendants, Case No. 1:22-cv-01097-JPH-MG (S.D. Ind.), Magistrate Judge Mario Garcia of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, grants in part and denies in part the Plaintiffs' Motion for Leave to File Fifth Amended Class Action Complaint. The Plaintiffs in this putative class action are current or former employees of healthcare facilities operated by the Defendants. They allege that the Defendants violated their rights under Title VII by denying their requests for a religious exemption to a COVID-19 vaccine requirement. The Plaintiffs have previously amended their putative class action complaint several times, adding individual plaintiffs and defendants as notice of right-to-sue letters continue to trickle in from the EEOC. Now pending before the Court and ripe for a decision is the Plaintiffs' Motion for Leave to File Fifth Amended Class Action Complaint. The Defendants oppose the Motion and the Plaintiffs have replied to those arguments. The Plaintiffs' propose amending their complaint to: (1) add four new individual plaintiffs -- Rebecca Broussard, Stanley Lundrigan, Sebastian Strizu, and Christine Tacorda -- alleging violations of Title VII and the Americans with Disabilities Act (the "ADA"); (2) add one new individual plaintiff -- Krystal Douglas -- alleging a violation of Title VII only; and (3) add two new defendants -- Ascension Seton Highland Lakes and Ascension Seton Williamson (i.e., the employers of some of the new proposed plaintiffs) -- both of which are Texas corporations. Of note, the ADA claims proposed on behalf of Broussard, Lundrigan, Strizu, and Tacorda are the first-time claims under the ADA have been raised in the lawsuit. The Defendants oppose these amendments. First, they argue that they will suffer undue prejudice from the proposed amendment because of the delay in adding the new plaintiffs and claims which will inject new issues and changed the scope of discovery. Second, the Plaintiffs say the proposed amendments are futile for numerous reasons: (a) the Court lacks personal jurisdiction over the two new proposed defendants; (b) the proposed ADA claims are untimely and unexhausted; (c) the ADA claims fail as a matter of law as pled in the proposed complaint; (d) the ADA claims are incapable of class treatment; and (e) the proposed new complaint fails to cure the defects identified by Defendants in their pending Motion to Dismiss Plaintiffs' Fourth Amended Complaint. Judge Garcia denies the Plaintiffs leave to assert ADA claims on behalf of four new plaintiffs or on behalf of a class. He finds that (i) the Plaintiffs' unvaccinated status cannot plausibly support a claim that the Defendants regarded them as disabled under the ADA; (ii) the Plaintiffs are foreclosed from an argument that Defendants perceived them as potentially infectious because the ADA's definition of disability does not cover cases where an employer perceives a person to be presently healthy with a potential to become disabled in the future; and (iii) the proposed ADA claims do not relate back to the Plaintiffs' timely Title VII charges such that they are untimely and permitting them an amendment to add these claims is an exercise in futility. Having found that the proposed ADA claims are futile, Judge Garcia then focuses the Defendants' remaining arguments on the new Title VII claims proposed by the Plaintiffs. He grants the Plaintiffs leave to assert Title VII claims on behalf of the five newly proposed Plaintiffs. Judge Garcia finds that (i) the potential lack of personal jurisdiction over Highland Lakes and Williamson does not render the Plaintiffs' proposed addition of these two parties as defendants "futile" under Fed. R. Civ. P. 15(a)(2); (ii) the Defendants have not articulated how adding the Title VII religious claims on behalf of five additional plaintiffs will cause undue prejudice under Fed. R. Civ. P. 15(a)(2), which otherwise generally favors permitting amendment; and (iii) he detects no dilatory motive or undue delay on the part of the new Plaintiffs. For these reasons, the Plaintiffs' Motion for Leave to File Fifth Amended Class Action Complaint is granted in part and denies in part. The Plaintiffs' Motion is granted to the extent that they may amend their Complaint to add Title VII claims on behalf of Broussard, Lundrigan, Strizu, Tacorda, and Douglas. The Plaintiffs' Motion is denied as to their proposed ADA claims (Count IV). A full-text copy of the Court's May 23, 2023 Order is available at https://tinyurl.com/55usdc6c from Leagle.com. STATE FARM: Refuses to Cover Luxury Vehicle Repair Cost, Suit Says ------------------------------------------------------------------ Mika Pangilinan, writing for Insurance Business, reports that State Farm has been hit with a class action lawsuit over allegations that it refused to cover the cost of repairs for luxury vehicles. Filed in Broward County, Florida on May 18, the lawsuit stems from an incident involving Assaf and Ada Sasson, who owned an all-electric 2022 Porsche Taycan insured with State Farm for over $100,000. The Sassons' vehicle was damaged in a May 2022 collision, which prompted them to seek repair services. The vehicle was taken to a Porsche dealership and was then referred to a local Porsche-certified collision shop. This referral was made to ensure that the repairs were conducted according to the manufacturer's specifications and to preserve the vehicle's warranty, according to the lawsuit. The recommended shop provided an estimate of $8,360.87 for the necessary repairs that was allegedly rejected by State Farm. Instead, the insurance giant created its own estimate of $6,267.03 for the damages, the lawsuit claimed, based on alternative labor hourly rates that are not representative of the prices charged by certified repair facilities. According to the suit, State Farm offered to pay only its estimated amount, minus a $500 deductible. The Sassons were consequently forced to cover the difference between the estimate and the actual costs of the repairs. An initial breach of contract complaint was filed against State Farm in August 2022 with regards to this incident. However, lawyers said they discovered evidence suggesting that State Farm has consistently failed to honor the policy requirements for determining collision benefits on high-value vehicles. Working on this new information, the Sassons sought to amend their initial complaint and pursue a class action lawsuit, encompassing claims that date back to September 2018. State Farm spokesperson Roszell Gadson declined to comment specifically on the case when approached by Law.com, stating that "the filing of a lawsuit does not substantiate the allegations within the complaint." [GN] STONEBRIDGE GLOBAL: Settles Apartment Residents' Suit for $2MM -------------------------------------------------------------- Matt Flener, writing for KMBC News 9, reports that residents of a South Kansas City apartment complex will receive part of a $2 million payout after winning a class action lawsuit against their former landlord and property manager. Cloverleaf's owners, Stonebridge Global Partners and Cloverleaf Apartments Investors, along with former property manager Seldin Company have settled a lawsuit filed by tenant Dorothy Simpson on behalf of herself and other tenants. The lawsuit alleged Cloverleaf's owners and management left soot on the walls, a melted smoke detector, never repaired collapsed ceilings, and exposed wiring in parts of the complex. Former tenant Bironeisha Robinson says she hopes this victory will make real-estate investors think twice before putting business interests ahead of people's livelihoods. "My water on the floor started leaking in the hallway," Robinson said as she showed KMBC photos of her wet carpet. The former resident had to reuse old plastic grocery bags to cover the soaked flooring. Her apartment also had suspected mold, mildew, and a concaved ceiling due to the management's repeated negligence, according to the lawsuit. "It's very aggravating because you're begging somebody to fix something and they're telling you, 'Okay, we'll fix it,'. . . and nobody ever came," said Robinson. The ceiling in Robinson's bathroom also collapsed on her son. The mother and former resident had to find temporary housing without any help from the apartment's owners. Kansas City Attorney Gregory Leyh represented the tenants of Cloverleaf Apartments and thanked the judge and special master assigned to the case. "One personal takeaway I have from doing this is tremendous confidence in the Missouri courts . . . the way [they] operated . . . is a model of clarity and toughness—when toughness was required," Leyh said. Leyh said he hopes the lawsuit sends a message to other landlords in Kansas City. "They better clean up the apartments," he said. "They better have safe, sanitary and decent living." Robinson explained her motivation to join the class action lawsuit against the California-based owners. "I feel like Gregory cared about us . . . so it wasn't about the lawsuit, just somebody speaking up for us because us saying something clearly wasn't enough," said Robinson. She has moved from Cloverleaf and said she hopes the settlement will help former residents get money to make their living conditions better. The lawsuit settlement also stipulated that Stonebridge Global Partners cannot purchase another property in Missouri for 10 years. KMBC has not heard back from an attorney representing the company. An attorney representing property manager Seldin sent KMBC the following statement. The Cloverleaf class action lawsuit and settlement concerned the operation and condition of Cloverleaf Apartments from 2015 to 2023. Seldin's involvement with Cloverleaf was limited to a single year. Seldin served as the managing agent for Cloverleaf Apartments from September 2020 to September 2021. While Seldin fervently disputes that it is responsible for the poor condition of Cloverleaf Apartments, Seldin is pleased that this settlement may lead to tangible improvements in the lives of the tenants. [GN] SYSCO NEW MEXICO: Wins Bid for Summary Judgment in Teamsters Suit ----------------------------------------------------------------- In the case, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION 492, Plaintiff v. SYSCO NEW MEXICO, LLC, Defendants, Case No. 1:22-cv-00520-KWR-LF (D.N.M.), Judge Kea W. Riggs of the U.S. District Court for the District of New Mexico: a. denies the Plaintiff's Motion for Summary Judgment; and b. grants the Defendant's Motion for Summary Judgment. The lawsuit is an action brought by the Plaintiff for confirmation and enforcement of an arbitration award. The Plaintiff asserts that the Court has jurisdiction over the matter pursuant to Section 301 of the Labor Management Relations Act, as amended, 29 U.S.C. Section 185. As set forth in the complaint, the Plaintiff seeks that the Court 1) enter a judgment declaring that Defendant is obligated to comply with the Arbitrator's award, and that the Defendant has breached its obligation in failing and refusing to do so; 2) enter an order directing Defendant to comply with the award; 3) find that the cost of this action be taxed against the Defendant; 4) find that as part of these cost there be included a reasonable attorney fee for Local 492 for having had to file this complaint, and 5) grant such other and further relief as the Court deems just and proper. The parties have now filed cross-motions for summary judgment. The Defendant is an "employer," and the Plaintiff is a "labor organization" under the Labor Management Relations Act and the National Labor Relations Act. The Plaintiff and the Defendant were parties to a Collective Bargaining Agreement ("CBA"), effective April 27, 2019, through April 30, 2025. On March 22, 2020, the Governor of New Mexico declared a state of emergency due to the COVID-19 pandemic and the Defendant's customer orders declined. On March 27, 2020, the Defendant, with the Plaintiff's consent, conducted layoffs and furlough to address the financial shortfall. In addition, the Defendant, without the Plaintiff's consent, reduced customer delivery schedule from six days per week to four days per week and sent employees home at the completion of work, which resulted in employees working less than 40 hours per week. On April 3, 2020, the Plaintiff filed a class-action grievance ("Grievance") under Article 7.2 of the CBA for failure to pay the minimum 40 hours of wages for each employee for each week worked and reinstate any hours taken from employees' PTO, vacation, or sick banks to fulfill the 40 hours. A hearing was held before Arbitrator Norman Bennett in Albuquerque, New Mexico, on March 26, 2021, and the parties submitted closing briefs on May 24, 2021. The Arbitrator determined that the Defendant had failed in its obligations to abide to Article 7.2 of the CBA. On Aug. 9, 2021, the Arbitrator issued an award: The grievances are sustained. Employees not on layoff or furlough status will be paid under the 40-hour minimum provisions from the last week in March 2020 to the last week in December 2020. Jurisdiction is retained in the event a dispute arises as to the amount of back pay for any qualifying employee. On Nov. 24, 2021, the Union submitted to the Arbitrator a Motion for Clarification of Award. The Motion for Clarification asked the Arbitrator to "Clarify the Award to advise the parties that no offsets to the difference between hours actually paid and the 40-hour minimum will be allowed." On Nov. 24, 2021, the Defendant emailed the Arbitrator in response to the Plaintiff's Motion for Clarification, requesting the Arbitrator set a remedy hearing to address the back pay dispute. On Dec. 3, 2021, the Plaintiff emailed the Arbitrator requesting available hearing dates. The Arbitrator has not issued any clarification of the award. The Plaintiff argues that the Defendant has not complied with the award and that the Arbitrator has not continued his jurisdiction. Therefore, the Court should enforce the arbitration award. The Defendant argues that the award is ambiguous, and thus, the Court should remand the matter back to the Arbitrator. The Plaintiff argues that the award is unambiguous and that the Court should enforce the award. Judge Riggs holds that the award is ambiguous and finds it appropriate to remand the matter back to the arbitrator. She finds that the amount of backpay could be reasonably interpreted as employees should be paid the difference between the hours paid and the 40-hours minimum or employees should be paid the difference between the actual amount compensated in each given week and the 40-hour minimum. The Court's role is not one of interpretation. Because there is more than one reasonable interpretation of the arbitration award, Judge Riggs finds a remand for clarification is appropriate. Furthermore, Judge Riggs finds that the parties also did not address the issue of back pay during the underlying arbitration. An arbitration award requiring backpay but leaving the calculation of the amount of backpay to the parties, is considered final and enforceable. Because there are two reasonable interpretations of the award and the parties cannot agree on the amount of backpay, the award ambiguous. Remanding the matter back to the Arbitrator is appropriate because clarification is necessary regarding the ambiguous award. As she has discussed, Judge Riggs finds that the award is ambiguous and thus, the doctrine of functus officio does not apply. She says the Court cannot modify or correct an award if it affects the "merits of the controversy." The calculation of backpay directly affects the amount of damages due to employees. Because the award is ambiguous, the doctrine of functus officio does not apply and the Arbitrator retains jurisdiction. For these reasons, Judge Riggs denies the Plaintiff's motion for summary judgment and grants the Defendant's motion for summary judgment. She remands the matter back to the arbitrator to clarify the award. A full-text copy of the Court's May 23, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/7x7z5mnd from Leagle.com. VERTEX ENERGY: Bids for Lead Plaintiff Appointment Due June 12 -------------------------------------------------------------- Johnson Fistel, LLP, a law firm specializing in shareholder rights, has announced the initiation of class action lawsuits on behalf of investors of the following companies. Investors are encouraged to review the deadlines listed and submit their information. If you suffered a loss and are interested in learning more about being a lead plaintiff, please contact Jim Baker (jimb@johnsonfistel.com) by email or phone at 619-814-4471. If emailing, please include a phone number. Vertex Energy, Inc. (NASDAQ: VTNR): Class Period: April 1, 2022 and August 8, 2022 Lead Plaintiff Deadline: June 12, 2023 Join the Class Action Here Plaintiff alleges that, throughout the Class Period, Defendants failed to disclose, among other things, that prior to the acquisition of the Mobile refinery, Defendants had entered into inventory and crack spread hedging derivatives that significantly capped the profit margins on 50% of the Mobile refinery's expected output over the period April 1, 2022 to September 30, 2022, affecting over 6.5 million barrels of refined fuel output. Hesai Group (NASDAQ: HSAI): Class Period: Pursuant to the February IPO Lead Plaintiff Deadline: June 6, 2023 Join the Class Action Here According to the complaint, while the Company stated that margins may decrease, the registration statement issued in support of the Company's IPO failed to disclose the extent to which it might decrease or that its gross margin decrease was caused by a lower in-house utilization rate. Further, Hesai Group's gross margin was 30% for the fourth quarter—which was completed over a month before the date of the amended registration statement. Allbirds, Inc. (NASDAQ: BIRD) Class Period: Pursuant to the November IPO Lead Plaintiff Deadline: June 12, 2023 Join the Class Action Here The complaint filed in this class action alleges that in the Registration Statement and throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that Allbirds was overemphasizing products that extended beyond the Company's core offerings; (2) that the Company's non-core products had a narrower appeal and were not resonating with customers as well as the Company's core products; (3) that Allbirds was underinvesting in its core consumers' favorite products to push the Company's newer products with narrower appeal; (4) that underinvesting in Allbirds' core products was negatively impacting the Company's sales; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. A lead plaintiff will act on behalf of all other class members in directing the class-action lawsuit. The lead plaintiff can select a law firm of its choice to litigate the class-action lawsuit. An investor's ability to share any potential future recovery of the class action lawsuit is not dependent upon serving as lead plaintiff. For more information regarding the lead plaintiff process please refer to https://www.johnsonfistel.com/lead-plaintiff-deadlines. About Johnson Fistel, LLP: Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. Johnson Fistel seeks to recover losses incurred due to violations of federal securities laws. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Contact: Johnson Fistel, LLP Jim Baker, 619-814-4471 Investor Relations jimb@johnsonfistel.com [GN] VIATRIS INC: Bids for Lead Plaintiff Appointment Due July 14 ------------------------------------------------------------ Bronstein, Gewirtz & Grossman, LLC reminds investors that a class action lawsuit has been filed against the following publicly-traded companies. You can review a copy of the Complaints by visiting the links below or you may contact Peretz Bronstein, Esq. or his Law Clerk and Client Relations Manager, Yael Nathanson of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss, you can request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Viatris Inc. (NASDAQ: VTRS) Class Period: March 1, 2021 - February 25, 2022 Deadline: July 14, 2023 For more info: www.bgandg.com/vtrs. The complaint alleges that Viatris made materially false and misleading statements and failed to disclose that: (1) the Company was experiencing significantly more competition in its United States complex generics business than disclosed; (2) the Company was not able to effectively manage its base business erosion or create a stable revenue base; (3) despite being on the Company's only growth drivers, Viatris was actively planning to divest its biosimilars business in order to secure enough cash to let it purportedly meet its phase one goals; (4) Viatris was deviating from the business model it touted throughout the Class Period and undertaking a significant global reshaping of its business which would undermine its ability to achieve stable revenue growth; and (5) the Company was anticipating less financial growth moving into 2022. Virtu Financial, Inc. (NASDAQ: VIRT) Class Period: March 1, 2019 - April 28, 2023, Deadline: July 18, 2023 For more info: www.bgandg.com/virt. The complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company maintained deficient policies and procedures with respect to its information access barriers; (2) accordingly, Virtu had overstated the Company's operational and technological efficacy as well as its capacity to block the exchange of confidential information between departments or individuals within the Company; (3) the foregoing deficiencies increased the likelihood that the Company would be subject to enhanced regulatory scrutiny; and (4) as a result, Defendants' public statements were materially false and/or misleading at all relevant times. Charles River Laboratories International, Inc. (NYSE: CRL) Class Period: May 5, 2020 - February 21, 2023 Deadline: July 18, 2023 For more info: www.bgandg.com/crl. The complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that: (1) Charles River had engaged in illegal activity with respect to its importation of non-human primates for research; (2) that, as a result, Charles River was at a heightened risk of criminal and regulatory investigation by, inter alia, the U.S. Department of Justice; (3) that, as a result, Charles River would be forced to suspend shipments of primates from Cambodia; and (4) that, as a result of the foregoing, defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. Contact: Bronstein, Gewirtz & Grossman, LLC Peretz Bronstein or Yael Nathanson 212-697-6484 | info@bgandg.com [GN] WALMART INC: Court Dismisses Class Suit Over Recreational Marijuana ------------------------------------------------------------------- Gerald L. Maatman, Jr., Brad A. Molotsky, and Gregory S. Slotnick of DuaneMorris.com report that In Zanetich v. Walmart, Inc., Case No. 1:22-CV-05387 (D.N.J. May 25, 2023), a case of first impression, the Judge Christine O'Hearn of the U.S. District Court for the District of New Jersey found the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), the 2021 law legalizing recreational marijuana use in the state, does not allow job applicants and employees to file lawsuits alleging adverse actions based on marijuana use. The ruling is a boon for employers across New Jersey, who will not face the possibility of private lawsuits filed by applicants and employees based on adverse employment actions by employers for their workers' off-duty marijuana use. However, the victory may be short-lived, as the Court invited re-examination of the law by way of legislative amendment, enforcement guidance, or New Jersey state court clarity on application of the state's common law "failure to hire" theory to claims under the CREAMMA. Case Background On January 21, 2022, the plaintiff applied for a job with defendants in the Asset Protection Department in one of defendants' New Jersey locations. A few days after his January 25, 2022 interview, on January 28, 2022, defendants offered plaintiff the job, beginning on February 7, 2022, "subject to him submitting to and passing a drug test." Plaintiff alleged that at the time, the defendants had a Drug & Alcohol Policy that stated "any applicant or associate who tests positive for illegal drug use may be ineligible for employment," which included marijuana. After plaintiff took a drug test on January 21, 2022 and tested positive for marijuana, he contacted defendants on February 10, 2022 for an update on his application. Two days later, defendants informed Plaintiff that his job offer would be rescinded. When plaintiff asked for the reason for this decision, he was advised it was because he had tested positive for marijuana. On June 13, 2022, plaintiff filed a class action lawsuit on behalf of himself and others similarly situated asserting two claims, including: (i) violation of the CREAMMA; and (ii) failure to hire and/or termination in violation of New Jersey public policy. The defendants filed a motion to dismiss the complaint, arguing that the CREAMMA does not provide a private right of action and that New Jersey common law does not recognize a cause of action based on an employer's failure to hire. In response, the plaintiff argued that the CREAMMA provides for an implied private cause of action and that his common law cause of action was cognizable as both a wrongful termination and failure to hire. The Court granted the defendants' motion in its entirety, dismissing both claims. The Court's Ruling The Court noted the parties agreed there is no explicit private cause of action in the CREAMMA and undertook a three-part analysis to determine whether the CREAMMA included an implied private cause of action. First, the Court held that the CREAMMA's focus was on regulating the manufacture, sale, and use of marijuana in NJ – not expanding employment rights for applicants and employees. However, it ultimately read the statute liberally to include plaintiff in the class of persons for whose special benefit the statute was enacted. This factor, the Court concluded, weighed in favor of an implied private cause of action. Second, the Court looked to legislative intent. It reasoned that other employment statutes adopted by the NJ legislature, such as the Conscientious Employee Protection and the New Jersey Law Against Discrimination, explicitly provide for a private cause of action. The Court found that the other employment statutes also expressly provide for a remedy, and that the CREAMMA did not provide either, which weighed against a private cause of action. The Court opined that unlike the CREAMMA and the New Jersey Cannabis Regulatory Commission ("CRC"), cases from other states finding an implied private cause of action in similar employment-related provisions in other state's medical marijuana statutes involved statutes that are distinct in that no agency or commission was created and tasked with enforcement of the statute. In other words, creation of the CRC and tasking it to handle all aspects of enforcing the CREAMMA differentiated New Jersey from the other states. Third, the Court determined that the legislative scheme of the CREAMMA does not support an inference that it provides an implied private cause of action given its delegation of authority to the CRC to create regulations and enforce violations. As such, the Court dismissed plaintiff's CREAMMA claim. Finally, the Court held that New Jersey common law does not provide a cause of action for failure to hire, and that plaintiff was only offered a job subject to his passing a drug test; he was never employed by defendants. Since plaintiff was never employed by defendants, the Court concluded that he failed to state a wrongful discharge claim because a failure to hire claim cannot support a common law wrongful discharge claim under New Jersey law. Implications Of The Decision For the moment, businesses in New Jersey have a viable defense to individual or class action claims brought by recreational marijuana users for adverse actions taken against them due to their use. This includes the ability to rescind conditional job offers to applicants who fail a drug test for marijuana. However, the Court noted that its decision left the plaintiff without a remedy and rendered the language of the CREAMMA employment provision at issue "meaningless." The Court called on the New Jersey legislature, the CRC, or the New Jersey Supreme Court to act. The Court even mapped out suggestions to allow workers to sue for remedial relief, including: (i) amending the law; (ii) adopting regulations allowing the CRC to enforce the provision; or (iii) issuance of a New Jersey Supreme Court decision finding it appropriate to depart from prior New Jersey common law rejecting failure to hire claims based on the CREAMMA's statutory language. As a result, New Jersey-based employers should stay tuned to a potential appeal and proceed with caution before taking adverse action based on applicant or employee recreational marijuana use. [GN] WARBY PARKER: Chery Labor Suit Removed to N.D. Cal. --------------------------------------------------- The case styled ROBERT CHERY, an individual, on behalf of himself, and on behalf of all persons similarly situated, Plaintiffs v. WARBY PARKER INC. f/k/a JAND, INC., a Delaware corporation; WARBY PARKER RETAIL, INC., a Delaware corporation; and DOES 1-50, Inclusive, Defendants, Case No. 23CV414694, was removed from the Superior Court of the State of California, Santa Clara County, to the United States District Court for the Northern District of California on May 26, 2023. The Clerk of Court for the Northern District of California assigned Case No. 5:23-cv-02611 to the proceeding. In the complaint, Plaintiff alleges eight causes of action against Warby Parker: (1) unlawful business practices; (2) failure to pay minimum wages; (3) failure to pay overtime compensation; (4) failure to provide required meal periods; (5) failure to provide required rest periods; (6) failure to provide accurate itemized statements; (7) failure to pay wages when due; and (8) failure to reimburse employees for required expenses. Warby Parker Inc. is an American online retailer of prescription glasses, contact lenses, and sunglasses, based in New York City.[BN] The Defendants are represented by: Harris M. Mufson, Esq. GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166-0193 Telephone: (212) 351-4000 Facsimile: (212) 351-4035 E-mail: HMufson@gibsondunn.com - and - Katherine V.A. Smith, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 E-mail: KSmith@gibsondunn.com - and - Katie M. Magallanes, Esq. Jessica M. Pearigen, Esq. GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, CA 92612-4412 Telephone: (949) 451-3800 Facsimile: (949) 451-4220 E-mail: KMagallanes@gibsondunn.com JPearigen@gibsondunn.com WEBSTER FINANCIAL: Sypniewski Sues Over Data Breach --------------------------------------------------- BRUCE SYPNIEWSKI and CECILIA SYPNIEWSKI, on behalf of themselves and all others similarly situated, Plaintiffs v. WEBSTER FINANCIAL CORPORATION, WEBSTER BANK, N.A., Defendants, Case No. 3:23-cv-00680-SVN (D. Conn., May 25, 2023) is a class action against the Defendants for negligence, declaratory judgment, invasion of privacy, breach of express contract, breach of implied contract, and violation of the Connecticut Unfair Trade Practices Act. On January 26, 2023, the Defendants reportedly first learned that, beginning on November 27, 2022, an unauthorized third party obtained Plaintiffs' and other bank customers' protected personally identifiable information by accessing Defendant Guardian Analytics systems, downloading files containing names, bank account numbers, and social security numbers of tens of thousands of Webster Bank customers. The Plaintiffs bring this class action for Defendants' (i) failure to properly secure and safeguard highly valuable, protected PII, including without limitation, names, bank account numbers, and Social Security numbers; (ii) failure to comply with industry standards to protect information systems that contain PII; (iii) unlawful disclosure of the PII of Plaintiffs and other members of the class; and (iv) failure to provide adequate notice to Plaintiffs and other members of the class that their PII had been disclosed and compromised. Webster Financial Corporation operates Webster Bank, a nationally chartered commercial bank based in Stamford, Connecticut.[BN] The Plaintiffs are represented by: Ian W. Sloss, Esq. Zachary A. Rynar, Esq. SILVER GOLUB & TEITELL LLP One Landmark Square, Floor 15 Stamford, CT 06901 Telephone: (203) 325-4491 Facsimile: (203) 325-3769 E-mail: isloss@sgtlaw.com zrynar@sgtlaw.com - and - James J. Pizzirusso, Esq. Amanda Boltax, Esq. HAUSFELD LLP 888 16th Street, NW, Suite 300 Washington, D.C. 20006 Telephone: (202) 540-7200 E-mail: jpizzirusso@hausfeld.com mboltax@hausfeld.com - and - Steven M. Nathan, Esq. HAUSFELD LLP 33 Whitehall St., 14th Floor New York, NY 10004 Telephone: (646) 357-1100 E-mail: snathan@hausfeld.com ZOOM VIDEO: Starts Payment Notification for Class Suit Settlement ----------------------------------------------------------------- Andrew Weil of Local Memphis reports that if you filed a claim as part of the class-action lawsuit against Zoom, keep an eye on your email because details about the payments are starting to go out. In 2021, Zoom reached a settlement in a class-action lawsuit over alleged privacy and security issues. While the company denied the allegations, it agreed to pay an $85 million settlement for those who used the Zoom meeting app between March 30, 2016, and July 30, 2021. The appeals court gave final approval to the deal in April 2023 and signed off on the process to start payments. In order to receive a payment, you must have already submitted a claim through the class-action settlement's official website by March 2022. If you didn't do that, it's too late. For those who submitted a claim in time, be on the lookout for an email from EpiqPay. According to the settlement website, emails about digital payments for the Zoom class-action lawsuit began on May 31, 2023, "and digital payments will be available to claim through September 28, 2023." If you submitted a claim for the Zoom class-action but don't find an email, double check your SPAM and junk folders in case the notifications went there. According to the settlement site, payment processing typically takes 2-5 business days. If you choose to receive the payment in a check, that typically takes 4-6 weeks. If you submitted a request originally but never claim your payment, a check will automatically be sent to the address submitted on your claim form. There's a spot on the settlement website to update your address, in case you've moved since then. The payment amounts vary. Users who used the free version of Zoom received payments of about $32, while those who paid for a subscription version of Zoom received more than $79. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***