/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230626.mbx C L A S S A C T I O N R E P O R T E R Monday, June 26, 2023, Vol. 25, No. 127 Headlines 3M COMPANY: McLaughlin Suit Removed to N.D. Alabama 3M COMPANY: Reeves Suit Removed to N.D. Alabama 3M COMPANY: Thompson Suit Removed to N.D. Alabama ABK TRACKING: Judge Dismisses Class Suit Over Exorbitant Fees ADIDAS AMERICA: Perry Files Mislabeling Suit Over NHL Jerseys ALDI INC: Faces Class Action Suit Over Mislabeled Fruit, Grain Bars ALPHA PROPERTY: Munoz Sues Over Unlawful Labor Practices ALTUS DIRECT: Progressive Health Files TCPA Suit in S.D. Ohio AMAZON.COM INC: Thompson Suit Removed to N.D. Illinois AMROCK LLC: Bucciero Sues Over Unpaid Overtime Wages ANNING-JOHNSON CO: Gutierrez Class Suit Dismissed W/o Prejudice BANK OF NEW YORK MELLON: Holmes Files Suit in S.D. New York BOHEMIAN GROVE: Sued By Workers Over Wage Theft, Labor Violations BP EXPLORATION: Gaines' Claims in B3 Case Dismissed With Prejudice BP EXPLORATION: Hakenjos' Claims in B3 Case Tossed With Prejudice BP EXPLORATION: Harris' Claims in B3 Case Dismissed With Prejudice BP EXPLORATION: Hayes' Claims in B3 Case Dismissed With Prejudice BP EXPLORATION: Hudson's Claims in B3 Case Dismissed With Prejudice BRIGHTLINE INC: Castro Sues Over Failure to Safeguard PII BURGERFI INTERNATIONAL: Paolino Sues Over Share Price Drop CARNIVAL CRUISE LINES: Delacruz Files ADA Suit in S.D. New York CELLCO PARTNERSHIP: Court Denies Bid for Arbitration in Corsi Suit CGM LLC: Danna Files Suit in N.D. Georgia CHICAGO, IL: Court Denies Edmond's Bid for Class Certification CHICAGO, IL: Judge Refuses to OK Class Action Over Racism CLARVALU INC: Alvarado Sues Over Unpaid Minimum, Overtime Wages COCA-COLA CO: Hansen's Bid to Remand Suit to Circuit Court Denied COHEN BROTHERS: Fails to Pay Overtime Wages, Popa Suit Alleges CONESTOGA ENERGY: Fails to Pay Proper Overtime Wages, Nolan Says CONNECTED INVESTORS: Class Settlement in Silva Suit Has Final Nod CONVERGENT OUTSOURCING: Faces Rayford Labor Suit in W.D.N.Y. COSTA CRUISES: Italian Court Approves COVID-19 Class Action Suit CSC SERVICEWORKS: Court Grants in Part Bid to Dismiss 40 CPS Suit DARLING INGREDIENTS: Testimony of 2 Experts Excluded in Sines Suit DEITYNY LLC: Faces Yunga Wage-and-Hour Suit in S.D.N.Y. DELAWARE: Counsel Request in Crichlow v. Dept. of Correction Denied DELL TECHNOLOGIES: Wins Bid to Compel Arbitration in Hopkins Suit DESERT HAVEN ENTERPRISES: Franklin Files Suit in Cal. Super. Ct. DEUTSCHE BANK: Epstein Victims to Get Up to $5MM From Settlement DOORDASH INC: Accused of Consumer Fraud in $1B Class Suit DSV SOLUTIONS: Sanchez Suit Removed to C.D. California ELON MUSK: Dogecoin Securities Fraud Class Action Ongoing ENZO BIOCHEM INC: Griffin Files Suit in E.D. New York ENZO BIOCHEM: Johnson Sues Over Cyberattack and Data Breach FEDERAL HOUSING: Bid to Serve Supplemental Expert Reports Denied FORD MOTOR: Boggan Sues Over Design and Manufacturing Defects GENERAL MOTORS: Summary Judgment Bid in Vita Suit Granted in Part GOOGLE LLC: Some Early Workspace Adopters' Claims Dismissed HANDI-FOIL CORP: May Renew Bid to Compel All Docs in Osdoby Suit HARU INVEST: Faces Suits as Billions in Crypto Remain Frozen HARVARD MEDICAL: Faces Class Suit Over Mishandling of Human Remains HC FORKLIFT: Morris Sues Over Employment Racial Discrimination HERTZ SYSTEM: Caban Sues Over Unlawful Collection of Debt HOLBROOK PIZZA COMPANY: Kuhn Files Suit in Mass. Super. Ct. HOUSING AUTHORITY: Cannady Suit Removed to C.D. California JBS SA: Agrees to Settle Beef Antitrust Class Action for $25-Mil. KNOX COUNTY, TN: Day v. Sheriff Tossed for Failure to State a Claim LAND O'LAKES: Jimenez Suit Removed to C.D. California LEXISNEXIS RISK: FCRA Suit Filed in W.D. North Carolina LIFEMD INC: Brown Sues Over Unsolicited Telemarketing Calls LUXURY LIGHTING: Bradshaw Files ADA Suit in S.D. New York MANAGED CARE: Anson Sues Over Recent Cyberattack MANAGED CARE: Emerson Firm Investigates Data Breach Claims MANITOULIN ISLAND, ON: Settlements Halt Lawsuit Filed by Survivors MDL 3014: Roberts Suit Consolidated in CPAP Product Liability Row MDL 3044: 'Grandis' Consolidated in Exactech Product Liability Row MDL 3052: Three Suits Consolidated in Kia Hyundai Vehicle Theft Row MDL 3073: Related T-Mobile 2022 Data Breach Suits Moved to W.D. Mo. MERCER UNIVERISTY: Kilkus Sues Over Unprotected Personal Info MERCER UNIVERSITY: Fails to Protect Personal Info, Wang Alleges MERCY HEALTH NETWORK: Harris Files Suit in S.D. Iowa MYSTIQUE INC: Espinal Files ADA Suit in S.D. New York NABORS COMPLETION: Court Confirms Arbitration Award in Ortiz Suit NABORS COMPLETION: Final Arbitration Award in Hudson Suit Confirmed NABORS COMPLETION: Ware to Recover $45.45K in Unpaid Wages NCB MANAGEMENT: Kelly Sues Over Data Breach Due to Negligence NEXTERA ENERGY: Bids for Lead Plaintiff Appointment Due July 25 OLIBRA LLC: Bassaw Files ADA Suit in S.D. New York ORDERMARK INC: Portuhondo Sues Over Mass Layoff Without Notice PALM BEACH AUTOPLEX: Paiva Sues Over Unsolicited Text Messages PETSMART LLC: Faces Class Action for Violating Fair Workweek Law PETSMART LLC: Jenkins Suit Removed to C.D. California PHH MORTGAGE: Estrella FDCPA Suit Removed to M.D. Florida PIAGGIO GROUP AMERICAS: Espinal Files ADA Suit in S.D. New York POUNDMAKER SCHOOL: Victim Denied Compensation for Alleged Abuses PRIMELENDING: Pazoki Files FDCPA Suit in C.D. California PRINCIPAL LAW: Faces TCPA Class Action From Camp Lejeune Victims RAYTHEON (CA) TECHNOLOGIES: Ariola Suit Removed to C.D. California RESURGENT CAPITAL: Montero Files FDCPA Suit in S.D. Florida RISKIFIED LTD: S.D. New York Dismisses 2nd Amended Securities Suit SALT LAKE: Banton Group Mulls Class Action Over Collapse SAZERAC COMPANY: Smith Files Mislabeling Suit Over Whisky Product SIERRA PACIFIC: Coyer Sues Over Inadequate Cyber Security SIX FLAGS: Bid for Judgment on Pleadings in Oklahoma Suit Granted SPEEDWAY LLC: Baird Files Suit in M.D. Tennessee SPEEDWAY MOTORS: Sued Over Single-Nozzle Fuel Dispensing Systems STAFFMARK INVESTMENT: Enciso Sues Over Recruiters' Unpaid Wages STRIPE INC: Lucas Suit Alleges Illegal Debt Collection Practices SYNEOS HEALTH: Morris et al. Sue Over Employee Discrimination TOC ENERTERPRISES: Cadenas Files Suit in M.D. Tennessee TPIP LLC: Toro Files ADA Suit in S.D. New York VAIL CORP: 10th Cir. Affirms in Part Dismissal of McAuliffe Suit VERIDIAN CREDIT UNION: Mohsen Files Suit in N.D. Iowa VIENNA BEEF LTD: Donet Files ADA Suit in S.D. New York WATCH GUARD: Joseph Sues Over Security Guards' Unpaid Wages WELLSPRING MEADOWS: Matthews Sues Over Unpaid Overtime Wages WEST VIRGINIA: Supreme Court Rules Class Action Suit Can Proceed WEST VIRGINIA: Writ of Prohibition Request in Jeffries Suit Denied ********* 3M COMPANY: McLaughlin Suit Removed to N.D. Alabama --------------------------------------------------- The case captioned as Stephen Brad McLaughlin, et al. v. 3M COMPANY, et al., Case No. 01-CV-2023-901620.00 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 June 12, 2023, and assigned Case No. 2:23-cv-00765-JHE. 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: Reeves Suit Removed to N.D. Alabama ----------------------------------------------- The case captioned as Donald Scott Reeves, et al. v. 3M COMPANY, et al., Case No. 01-CV-2023-901622.00. 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 June 12, 2023, and assigned Case No. 2:23-cv-00766-AMM. 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: Thompson Suit Removed to N.D. Alabama ------------------------------------------------- The case captioned as Derrick Tamar Thompson, et al. v. 3M COMPANY, et al., Case No. 01-CV-2023-901626.00 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 June 13, 2023, and assigned Case No. 2:23-cv-00767-ACA. The Plaintiff 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 ABK TRACKING: Judge Dismisses Class Suit Over Exorbitant Fees ------------------------------------------------------------- Jon Webb at courierpress.com reports that a federal judge has dismissed the class action lawsuit against ABK Tracking, ruling that the Southern District Court of Indiana "lacks subject matter jurisdiction" in the case. Judge Matthew P. Brookman made the ruling. The lawsuit, filed last year by the nonprofit law firm Equal Justice Under the Law, as well as Evansville attorney Jeremey Schnepper, accused ABK Tracking, Circuit Court Judge David Kiely, and Vanderburgh County of conspiring to "extort" money from poor residents. According to dismissal, Brookman based his decision on whether or not the case should be heard in federal court. Brookman sided with the defendants and ruled that federal courts didn't have jurisdiction to make a ruling in the case, and that it's ultimately a state matter. He also rejected the plaintiffs' claims that ABK's fees were unreviewable in state court. The plaintiffs made that argument based on the fact that ABK's fees weren't listed in bail or probation orders and weren't communicated to the customers until they reported to ABK. Brookman called the unreviewable claim "illusory." "Indiana's courts are open to and do address challenges to state court orders, including those relating to bail, fees, and a defendant's ability to pay," Brookman wrote. Natasha Baker, an attorney with Equal Justice Under the Law, didn't answer a call seeking comment. Schnepper declined to comment. ABK president Danny Koester, meanwhile, praised the decision. "I don't know what we did wrong. I've said that all along," he said. ". . . We've done nothing wrong." According to the lawsuit, ABK would charge some customers "exorbitant fees" and then file a petition to revoke their probation when they were unable to pay. That resulted in what the plaintiffs' attorneys described as a "debtor's prison." They said the system essentially punished customers for being poor. One of the plaintiffs in the case, William Huggins, said ABK charged him around $600 in fees per month: about $75 less than his rent. ABK provides electronic home detention and drug testing services. It recently lost its contract with the Vanderburgh County Community Corrections Advisory Board, which replaced ABK with Kentucky-based Corrisoft. The board said cost was a major reason for the change. Corrisoft charges community corrections $5 a day for ankle monitoring, compared to $13 a day from ABK. That decision sparked an internal investigation of the board over whether Community Corrections Director James Akin or Superior Court Judge Wayne Trockman misled or unduly influenced the board before the vote to switch to Corrisoft was made. Last month, board member and former Posey County Prosecutor Jodi Uebelhack said she found no evidence of misleading comments. It was unknown whether the plaintiffs would attempt to re-file the suit in state courts. "Nobody knows. That's up to them," Koester said. "They have that right, obviously." [GN] ADIDAS AMERICA: Perry Files Mislabeling Suit Over NHL Jerseys ------------------------------------------------------------- Brian Perry, individually and on behalf of all others similarly situated, Plaintiff v. Adidas America, Inc., Defendant, Case No. 2:23-cv-00959-CCW (W.D. Pa., June 3, 2023) is a class action against the Defendant for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law; breaches of express warranty, implied warranty of merchantability/fitness for a particular purpose and Magnuson Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment. According to the complaint, Adidas America manufactures, National Hockey League jerseys represented as "authentic." The Plaintiff and other consumers purchasing these NHL jerseys expect they are purchasing jerseys identical to those worn on the ice by NHL players. Most significantly, the jerseys are marketed as having a "tie-down fight strap," the attachment on hockey jerseys which keeps them from being pulled over their heads during the fights which inevitably break out during hockey games. However, despite the representations as "authentic," the jerseys are not those worn on-ice by NHL players. The representation of the product as "authentic" is misleading, because they are more accurately described as "replicas," says the suit. As a result of the false and misleading representations, the Adidas "authentic" jerseys are sold at premium prices, approximately not less than $200, excluding tax and sales, the suit asserts. Adidas America, Inc. designs and markets apparel products.[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 ALDI INC: Faces Class Action Suit Over Mislabeled Fruit, Grain Bars ------------------------------------------------------------------- Marian Zboraj at progressivegrocer.com reports that ALDI has been named in a class action lawsuit in California that alleges it misrepresented its fruit and grain bars to consumers by claiming they contain only natural products, as reported by Newsweek. The lawsuit was filed on May 30 with the U.S. District Court for central California. A lawyer for plaintiff, Deana Lozano, argued that despite Millville Fruit & Grain cereal bars' packaging claims that the bars have "no artificial flavors" and were "naturally flavored," laboratory testing had found they contained DL malic acid, a synthetic flavoring. Newsweek reported that an ingredients list for the bars on Amazon shows that they contain malic acid, which can be made through natural and synthetic processes. The lawsuit noted that synthetic malic acid "is manufactured in petrochemical plants from benzene or butane — components of gasoline and lighter fluid, respectively." According to the National Library of Medicine, it is produced by "catalytic oxidation of benzene" and is deemed to be of "low concern" by the Environmental Protection Agency. "Testing by an independent third-party laboratory has confirmed that the malic acid that defendant uses in these products is DL malic acid," the lawsuit alleges, adding: "The ingredients on the products' label are declared in a way that is misleading and contrary to law, because [the] defendant designates the ingredient by its generic name." ALDI is facing allegations that its packaging violates several California codes and that the company, "through its marketing and labeling of the products, misrepresented and deceived consumers regarding the flavoring in the products." The lawsuit is demanding $9,999,000 in damages for customers who bought the product in the past four years. Lozano is no stranger to lawsuits against food corporations. According to the Daily Meal, she has two other pending court cases. In May, Lozano filed a class action lawsuit against the Kellogg Co. asserting a false-advertising claim regarding the natural flavor label term on its Nutrigrain breakfast bars. Also, in 2021, she filed a class action against Bowmar Nutrition that questioned the labeled versus actual amount of protein contained in its products. Lozano is a health care administrator and amateur athlete. ALDI is one of America's fastest-growing retailers, serving millions of customers across the country each month. With about 2,200 stores in 38 states, Batavia, Ill.-based ALDI U.S. employs 45,000-plus associates and is No. 26 on The PG 100, Progressive Grocer's 2023 list of the top food and consumables retailers in North America. [GN] ALPHA PROPERTY: Munoz Sues Over Unlawful Labor Practices -------------------------------------------------------- JOE MUNOZ, on behalf of the State of California, and others similarly situated and aggrieved, Plaintiff v. ALPHA PROPERTY MANAGEMENT a Nevada Corporation; 21ST CENTURY PERSONNEL LLC, a California limited liability company; and DOES 1-100, inclusive, Defendants, Case No. 23STCV12751 (Cal. Super., Los Angeles Cty., June 2, 2023) is a representative action brought by the Plaintiff pursuant to California's Private Attorney General Act, Labor Code. The Plaintiff is a former employee of the Defendants who worked as a non-exempt employee with a job title of maintenance technician or a similar title from 1999 through July 2022. He asserts Defendants' failure to keep accurate records, failure to provide uninterrupted meal and rest periods, failure to provide suitable resting facilities, failure to pay minimum and overtime wages, refusal to pay wages due, failure to provide full reimbursement for all reasonable expenses, failure to furnish accurate itemized wage statements, engagement in unlawful deductions, failure to provide supplemental paid sick leave, failure to pay vested vacation/paid time off, failure to pay timely wages, and engagement in unlawful inquiries into salary history and unlawful criminal history inquiries. Alpha Property Management operates and/or otherwise manages property management companies.[BN] The Plaintiff is represented by: Zachary M. Crosner, Esq. Jamie Serb, Esq. CROSNER LEGAL, PC 9440 Santa Monica Blvd. Suite 301 Beverly Hills, CA 90210 Telephone: (866) 276-7637 Facsimile: (310) 510-6429 E-mail: zach@crosnerlegal.com jamie@crosnerlegal.com ALTUS DIRECT: Progressive Health Files TCPA Suit in S.D. Ohio ------------------------------------------------------------- A class action lawsuit has been filed against Altus Direct Healthcare LLC. The case is styled as Progressive Health and Rehab Corp., an Ohio corporation, individually and as the representative of a class of similarly-situated persons v. Altus Direct Healthcare LLC, Case No. 2:23-cv-01936-ALM-EPD (S.D. Ohio, June 12, 2023). The lawsuit is brought over alleged violation of the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Altus Direct Healthcare LLC -- https://www.altusdirecthealth.com/ -- are privately owned medical lab that allow you to walk-in for blood work.[BN] The Plaintiff is represented by: Timothy C. Ammer, Esq. MONTGOMERY RENNIE & JONSON URS Center 36 East Seventh Street, Suite 2100 Cincinnati, OH 45202 Phone: (513) 241-4722 Fax: (513) 241-8775 Email: tammer@mojolaw.com AMAZON.COM INC: Thompson Suit Removed to N.D. Illinois ------------------------------------------------------ The case captioned as Heaven Thompson, Christina Post, and Morgan Benoit, individually and on behalf of themselves and all others similarly situated v. AMAZON.COM, INC., AMAZON.COM SERVICES, LLC, and AMAZON SERVICES, LLC, Case No. 2023-CH-02162 was removed from the Circuit Court of Cook County, Illinois, to the United States District Court for the Northern District of Illinois on June 12, 2023, and assigned Case No. 1:23-cv-03717. The Plaintiffs bring claims against Amazon for alleged violations of the Illinois Genetic Information Privacy Act ("GIPA"). The Plaintiffs contend that Amazon "indirectly solicited, requested, or required Plaintiffs and the proposed Class Members to disclose family medical history during a pre-employment physical as a condition of employment during the application and hiring process."[BN] The Defendant is represented by: Sari Alamuddin, Esq. Eric L. Mackie, Esq. MORGAN, LEWIS & BOCKIUS LLP 110 North Wacker Drive, Suite 2800 Chicago, IL 60606-1511 Phone: (312) 324-1000 Fax: (312) 324-1001 Email: sari.alamuddin@morganlewis.com eric.mackie@morganlewis.com AMROCK LLC: Bucciero Sues Over Unpaid Overtime Wages ---------------------------------------------------- Patsy Bucciero, Julius Baumgardt, and Ruth Gardner, individually and on behalf of all others similarly situated v. AMROCK, LLC, Case NO. 7:23-cv-04953-PMH (S.D.N.Y., June 13, 2023), is brought against the Defendant's willfully violation of the Fair Labor Standards Act ("FLSA"), and the New York Labor Law ("NYLL") by failing to pay proper overtime premiums for all hours worked over 40 in a workweek. The Plaintiffs consistently worked over 40 hours per week without receiving premium overtime pay for all hours worked. Throughout the relevant period, Defendant's policies and practices deprived the Plaintiffs of earned overtime wages in violation of the FLSA and the NYLL. The Plaintiffs were expected to meet daunting productivity requirements each workweek, forcing Plaintiffs to work in excess of 40 hours per workweek in order to qualify for production bonuses and avoid disciplinary action. Defendant, pursuant to its policies and practices, failed and refused to pay scheme that encouraged Plaintiffs and similarly situated Appraisers to underreport the number of hours worked per workweek. Defendants have violated and continue to violate the FLSA, says the complaint. The Plaintiffs were employed by Amrock as Appraisers. Amrock, LLC, is a limited liability company headquartered in Detroit, Michigan, registered to do business in the state of New York.[BN] The Plaintiff is represented by: Brendan Sweeney, Esq. Christopher Q. Davis, Esq. THE LAW OFFICE OF CHRISTOPHER Q. DAVIS 80 Broad Street, Suite 703 New York, NY 10004 Phone: (646) 430-7930 Facsimile: (646) 349-2504 Email: bsweeney@workingsolutionsnyc.com cdavis@workingsolutionsnyc.com ANNING-JOHNSON CO: Gutierrez Class Suit Dismissed W/o Prejudice --------------------------------------------------------------- In the case, Arthur Gutierrez v. Anning-Johnson Company, et al., Case No. LA CV21-06117 JAK (RAOx) (C.D. Cal.), Judge John A. Kronstadt of the U.S. District Court for the Central District of California: a. denies the Plaintiff's Motion to Remand the Action to State Court; and b. grants the Defendant's Motion to Dismiss the Complaint or, in the Alternative, Compel Arbitration and Stay Proceedings. On June 15, 2021, Plaintiff Gutierrez filed the putative class action against Anning-Johnson and numerous Doe defendants in the Los Angeles County Superior Court. The Complaint advances the following eight causes of action: 1. Unfair competition in violation of Cal. Bus. & Prof. Code Section 17200 et seq.; 2. Failure to pay minimum wages in violation of Cal. Lab. Code Sections 1194, 1197, 1197.1; 3. Failure to pay overtime wages in violation of Cal. Lab. Code Sections 510, et seq.; 4. Failure to provide required meal periods in violation of Cal. Lab. Code Sections 226.7, 512, and the applicable IWC Wage Order; 5. Failure to provide required rest periods in violation of Cal. Lab. Code Sections 226.7, 512, and the applicable IWC Wage Order; 6. Failure to provide accurate itemized statements in violation of Cal. Lab. Code Sections 226, 226.2; 7. Failure to reimburse employees for required expenses in violation of Cal. Lab. Code Section 2802; and 8. Failure to provide wages when due in violation of Cal. Lab. Code Sections 201, 202, 203. The complaint alleged that the Plaintiff was employed by the Defendant as a non-exempt employee entitled to minimum wages, overtime pay and meal and rest periods from 2011 to January of 2021. The Defendant is a corporation that at all relevant times conducted "substantial and regular business throughout California. It operates a construction business that provides services such as metal decking, wall and ceiling systems, fireproofing, and roofing services to their clients throughout California, including the Los Angeles, California location where the Plaintiff worked. The Complaint presents two potential, putative classes. First, it alleges a "California Class" that includes "all individuals who are or previously were employed by Defendant Anning-Johnson in California and classified as non-exempt employees at any time during the period beginning four (4) years prior to the filing of the original Complaint and ending on the date as determined by the Court." The First Cause of Action is brought on behalf of the California Class. Second, the Complaint alleges a "California Labor Sub-Class" that includes all members of the California Class who were "classified as non-exempt employees at any time during the period three (3) years prior to the filing of the original complaint and ending on the date as determined by the Court." The Second, Third, Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action are brought on behalf of this sub-class. The Complaint alleges numerous wage and hour violations against the Defendant. Among other things, it is alleged that the Defendant (i) failed to pay the California Class members for all their time worked; (ii) failed to include into the 'regular rate of pay' for purposes of calculating overtime pay; (iii) failed to compensate the Plaintiff and other California Class members for time spent working while off-the-clock, in violation of the California minimum wage laws; (iv) intentionally and knowingly failed to compensate the Plaintiff and the class members for all time worked; (v) failed to provide Plaintiff and the California Class members with accurate and itemized wage statements, failed to reimburse and indemnify Plaintiff and the others for business expenses, and committed acts of unfair competition in violation of California law; and (vi) has not paid the Plaintiff either the overtime compensation or penalty wages owed to him. On July 29, 2021, the Defendant removed the case pursuant to the Class Action Fairness Act, 28 U.S.C. Section 1332(d) ("CAFA"). On Aug. 26, 2021, the Plaintiff filed his Motion to Remand. On Sept. 2, 2021, the Defendant filed its Motion to Dismiss. On Oct. 11, 2021, it filed an Opposition to the Plaintiff's Motion to Remand to State Court as well as a Request for Judicial Notice. On Oct. 25, 2021, the Plaintiff filed a reply in support of the Motion to Remand as well as Evidentiary Objections to Defendant's Request for Judicial Notice. On Oct. 12, 2021, the Plaintiff filed an Opposition to Defendant's Motion to Dismiss as well as Objections to Evidence in Support of Defendant's Motion to Dismiss. On October 25, 2021, the Defendant filed a Reply in Support of the Motion to Dismiss as well as a Response to Plaintiff's Objections. A hearing on the Motion to Remand and the Motion to Dismiss took place on Feb. 28, 2022. Judge Kronstadt examines the Defendant's Request for Judicial Notice. First, the Defendant requests judicial notice of a document in support of Defendant's Opposition to the Motion to Remand. It is a declaration by Shani O. Zakay, the Plaintiff's counsel, that was filed in support of Zakay's motion for attorney's fees in another case. The Defendant argues that the declaration shows that Zakay had participated in 13 wage and hour class settlements in which his firm was awarded attorneys' fees in the amount of one-third of those settlements between 2015 and 2019. It seeks to use the document as evidence supporting the viability of the 25% attorney's fees estimate in the Notice of Removal. Judge Kronstadt declines to take judicial notice of the document for the truth of the matter asserted. He says to determine that the document supports the use of a 25% contingency rate in the calculation of attorney's fees would require other evidence to show why the actions are sufficiently similar to warrant that determination. Further, given the amounts in controversy shown by other elements of the matters at issue, an assessment of the potential claim for attorney's fees is unnecessary to reach the necessary threshold. Therefore, the RFN is denied. Second, the Plaintiff objects to portions of the Tomaska Declaration, which, as noted, was submitted with the Notice of Removal. He objects to Tomaska's determinations regarding the relevant personnel data collected by the Defendant because on the grounds that she does not have personal knowledge, her statements lack foundation, and are hearsay. However, Judge Kronstadt holds that Tomaska's declaration is sufficient to show that she has an adequate foundation for her statements as to the number of employees and the data supporting the potential range of claims that are at issue. Hence, the Plaintiff's objections to the Declaration of Kathy Tomaska are overruled. Third, the Plaintiff objects to the Defendant's RFN and certain aspects of the Supplemental Declaration of Kathy Tomaska. Judge Kronstadt sustains the Plaintiff's objection with respect to the Defendant's RFN. Finally, the Plaintiff's objections to the Supplemental Declaration of Kathy Tomaska are the same as to her initial declaration, with the added objections of relevance under Rule 401 and unfair prejudice under Rule 403. For the reasons he stated, Judge Kronstadt holds that the objections are unpersuasive. Therefore, the Plaintiff's objections to the Supplemental Declaration of Kathy Tomaska are overruled. Judge Kronstadt now turns to Motion to Remand. He finds that the Defendant has established the amount in controversy exceeds $5 million. He says (i) even without including the amounts associated with the aspect of the claims, the Defendant has established the amount in controversy is greater than $5 million; (ii) the Defendant has established by a preponderance of the evidence that the meal and rest break claims place approximately $4,082,383 in controversy; (iii) combined with the amount in controversy of approximately $4,082,383 for the meal and rest break claims, the amount in controversy totals $5,310,833; (iv) the total amount of controversy for the meal and rest break claims, the wage statement claim and the waiting time penalty claim is approximately $7,072,141.40; and (v) the Defendant has failed to present any evidence as to why an award of 25% is reasonable but that issue is one that will be addressed anew, should it arise in this matter. Therefore, the Plaintiff's Motion to Remand Judge Kronstadt then examines the Defendant's Motion to Dismiss. First, the Plaintiff submitted objections to evidence the Defendant proffered in support of the Motion to Dismiss. He objects to the admission of the copies of the July 2017 CBA and the May 2021 Amendment, which are attached as exhibits to the Maras and McClelland declarations, respectively, as well as the sections of those declarations in which those exhibits are described. The Plaintiff does not provide any details as to the bases for his objections. The Plaintiff's objections are boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence, Judge Kronstadt says. Accordingly, there is no obligation to scrutinize each of the Plaintiff's individual objections or fully analyze identical objections raised as to each fact. Therefore, those objections are overruled for the purpose of this Order. Next, the Plaintiff argues that the May 2021 Amendment does not apply to him because he was not employed by the Defendant when it was signed. Judge Kronstadt holds that the Defendant has established that the applicable collective bargaining agreement has a mandatory arbitration clause that precludes the Plaintiff from bringing the present claims in a judicial forum. He says the Plaintiff does not dispute that the union represented him while he was employed by the Defendant. Moreover, the language of Section 28, does not conflict with the May 2021 Amendment, which provides that certain labor claims will be resolved exclusively through the Grievance-Arbitration procedure contained in the Agreement, and will be subject to final and binding arbitration pursuant to Section 28 of the Agreement. Finally, the Defendant has requested either dismissal of the Plaintiff's claims or, in the alternative, an order compelling arbitration and staying this action. It contends that where, as here, an enforceable arbitration agreement mandates the arbitration of all of a plaintiff's claims, the Court lacks subject matter jurisdiction over those claims, and, therefore, must dismiss the entire action. Judge Kronstadt holds that the present issue is whether a stay or dismissal of the action is more appropriate. Because the arbitration agreement encompasses all of the Plaintiff's claims, dismissal is appropriate, and the parties have not identified any reason not to do so. This dismissal is without prejudice to either party filing an action seeking to confirm or set aside any arbitration award. Accordingly, the Defendant's motion to compel arbitration and dismiss this complaint is granted. The dismissal is without prejudice to the Plaintiff's right to return to the Court for the limited purpose of enforcement of an arbitral award. For the foregoing reasons, Judge Kronstadt denies the Motion to Remand and grants the Motion to Dismiss. The parties will submit the claims advanced in the action to arbitration. The action is dismissed without prejudice to having the merits of the claims determined at the mandatory arbitration as well as without prejudice to the filing of a new action following the completion of the arbitration in which a party seeks to confirm and/or set aside the arbitration award. The Clerk of the Court is directed to close the case. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/du2m926x from Leagle.com. BANK OF NEW YORK MELLON: Holmes Files Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against The Bank of New York Mellon, et al. The case is styled as Keith A. Holmes, on behalf of himself and all others similarly situated v. The Bank of New York Mellon formerly known as: The Bank of New York as successor in interest to JP Morgan Chase Bank, National Association, as Trustee to C-Bass Certificates, Series 2004-CB5; Ocwen Financial Corporation; PHH Mortgage Corporation; NewRez, LLC; McCabe, Weisberg & Conway, LLC; John Doe #1 to John Doe #10, the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the person or parties, if any, named in the complaint; Jane Doe #1 to Jane Doe #10, the last 10 names being fictitious and unknown to plaintiff, the persons or parties intended being the person or parties, if any, named in the complaint; Case No. 7:23-cv-04948-PMH (S.D.N.Y., June 13, 2023). The nature of suit is stated as Real Property: Foreclosure. The Bank of New York Mellon Corporation -- http://www.bnymellon.com/-- commonly known as BNY Mellon, is an American investment banking services holding company headquartered in New York City.[BN] The Plaintiff appears pro se. BOHEMIAN GROVE: Sued By Workers Over Wage Theft, Labor Violations ----------------------------------------------------------------- Adam Schrader at upi.com reports that three workers at Bohemian Club have filed a class action lawsuit against the secretive retreat for the powerful, alleging wage theft and other labor violations. The lawsuit was filed by Anthony Gregg, Shawn Granger, and Wallid Saad against the club -- which has counted former Presidents Ronald Reagan and Richard Nixon among its members -- in the U.S. District Court for the Northern District of California. They have demanded a jury trial. The Bohemian Club is an organization that operates a network of summer camps at its infamous Bohemian Grove grounds in Monte Rio, Calif., for powerful "gentlemen" who are either connected professionally to the arts or have "demonstrated love" for literature, art, music and theater. The organization's Monastery Camp, one of its most prestigious, was also named in the lawsuit. Among its members are executives of Fortune 500 companies and prominent government officials. Each such camp is led by a "Camp Captain" that is responsible for the food, drinks, accommodations and finances at their respective camps on the Bohemian Grove campus. The three workers, who served as valets, had each been employed by the club and primarily worked for the Monastery Camp until 2022, according to the lawsuit obtained by UPI. The workers said that valets were required to work more than 15 hours per day seven days a week. The workers allege that Bohemian Grove and its codefendants violated the U.S. Fair Labor Standards Act, as well as California's Labor Code and a California Industrial Welfare Commission Wage Order by failing to pay them a minimum wage or overtime. The exclusive club also failed to pay employees premium wages for missing meals or missed breaks. The club also allegedly stiffed workers on their final paychecks and failed to maintain accurate employment records as required by law. "Bohemian Club receives payments from each individual camp for the items and services that camp attendees use during the club events. Finances from the Bohemian Club and the camps are highly intertwined," the lawsuit reads. "Bohemian Club directly financially benefits from services provided by the defendant Monastery Camp and other Bohemian Grove camps." Sam Singer, a spokesman for the Bohemian Club, told UPI in an email Monday the club hasn't been served in the lawsuit and that the workers were never employed by the club. "The club will vigorously defend itself in this action, as it would in any other meritless lawsuit. The Bohemian Club has always valued and respected its employees, and that includes our commitment to full compliance with all applicable wage and hour laws and regulations," Singer said. The workers noted that Monastery Camp and the dozens of other camps that make up the Bohemian Club are not each incorporated as a business but collect hundreds of thousands of dollars in dues and other fees from their members that are used to hire and pay the valets. "Bohemian Club is aware that camps are not legal entities, but their camps are employing valets to work off-the-clock and being paid under-the-table," the lawsuit reads. The workers allege that Monastery Camp captain William Dawson, who also serves as the treasurer for the larger Bohemian Club, personally directed the valets to falsify payroll records and work off-the-clock without allowing them to collect tips. Other alleged abuses outlined by the lawsuit include restricting their access to phone calls and forcing them to handwash the underwear of billionaire club members.[GN] BP EXPLORATION: Gaines' Claims in B3 Case Dismissed With Prejudice ------------------------------------------------------------------ In the case, SHAWNDAIUS GAINES v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION "R" (1), Civil Action No. 17-4329, 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 Co., and BP p.l.c.'s motion to exclude the testimony of the Plaintiff's general causation expert, Dr. Jerald Cook; b. grants 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. The Plaintiff alleges that he was exposed to crude oil and dispersants from his work as an onshore cleanup worker. He represents that this exposure has resulted in the following health problems: headaches, "weakness," loss of consciousness, fatigue, shortness of breath, nasal congestion, chronic rhinitis, and nosebleeds. 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 the Plaintiff's case was severed, it was reallocated to this 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. They 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 contending 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 his specific conditions, Dr. Cook lacks sufficient facts to provide a reliable opinion on general causation. Judge Vance also finds that Dr. Cook's report is unhelpful to the factfinder for many of the same reasons. She finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that the Plaintiff was allegedly exposed to, at the level at which he was exposed, to the health conditions that he purportedly experiences. In sum, Judge Vance concludes 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, the Defendants' motion to exclude Dr. Cook's testimony is granted. The Plaintiff's motion seeks the sanction of admission of Dr. Cook's report. The Plaintiff 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, the Plaintiff's 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. Judge Vance thus denies 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. 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, the Plaintiff notes that other sections of this 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 June 2, 2023 Order & Reasons is available at https://tinyurl.com/yt6sv7fw from Leagle.com. BP EXPLORATION: Hakenjos' Claims in B3 Case Tossed With Prejudice ----------------------------------------------------------------- In the case, JAMERSON HAKENJOS v. BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION "R" (2), Civil Action No. 17-4338 (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 Co., and BP p.l.c.'s motion to exclude the testimony of the Plaintiff's general causation expert, Dr. Jerald Cook; b. grants 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. The Plaintiff alleges that he was exposed to crude oil and dispersants from his work as an onshore and offshore cleanup worker. He represents that this exposure has resulted in the following health problems: bronchitis, nosebleed, coughing, shortness of breath, diarrhea, weight loss, kidney stones, "weakness," dizziness, headaches, depression, body aches, joint pain, ear pain, loss of feeling in his arms, vision problems, skin itching, rashes, boils, cellulitis, lesions, and flu-like symptoms. 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 the Plaintiff's case was severed, it was reallocated to this 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. They 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 contending 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 his specific conditions, Dr. Cook lacks sufficient facts to provide a reliable opinion on general causation. Judge Vance also finds that Dr. Cook's report is unhelpful to the factfinder for many of the same reasons. She finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that the Plaintiff was allegedly exposed to, at the level at which he was exposed, to the health conditions that he purportedly experiences. In sum, Judge Vance concludes 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, the Defendants' motion to exclude Dr. Cook's testimony is granted. The Plaintiff's motion seeks the sanction of admission of Dr. Cook's report. The Plaintiff 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, the Plaintiff's 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. Judge Vance thus denies 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. 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, the Plaintiff notes that other sections of this 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 June 2, 2023 Order & Reasons is available at https://tinyurl.com/e2jbsbj6 from Leagle.com. BP EXPLORATION: Harris' Claims in B3 Case Dismissed With Prejudice ------------------------------------------------------------------ In the case, EZZARD HARRIS, JR. v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION "R" (2), Civil Action No. 17-4344, 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 Co., and BP p.l.c.'s motion to exclude the testimony of the Plaintiff's general causation expert, Dr. Jerald Cook; b. grants 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. The Plaintiff alleges that he was exposed to crude oil and dispersants from his work as an onshore cleanup worker. He represents that this exposure has resulted in the following health problems: chest pain, shortness of breath, upper respiratory infection, migraines, headaches, loss of consciousness, numbness in extremities, chronic rhinitis, blurred vision, sharp pain in eyes, skin peeling cellulitis, and hair loss. 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 the Plaintiff's case was severed, it was reallocated to this 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. They 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 contending 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 his specific conditions, Dr. Cook lacks sufficient facts to provide a reliable opinion on general causation. Judge Vance also finds that Dr. Cook's report is unhelpful to the factfinder for many of the same reasons. She finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that the Plaintiff was allegedly exposed to, at the level at which he was exposed, to the health conditions that he purportedly experiences. In sum, Judge Vance concludes 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, the Defendants' motion to exclude Dr. Cook's testimony is granted. The Plaintiff's motion seeks the sanction of admission of Dr. Cook's report. The Plaintiff 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, the Plaintiff's 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. Judge Vance thus denies 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. 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, the Plaintiff notes that other sections of this 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 June 2, 2023 Order & Reasons is available at https://tinyurl.com/4wmbwx9s from Leagle.com. BP EXPLORATION: Hayes' Claims in B3 Case Dismissed With Prejudice ----------------------------------------------------------------- In the case, RODNEY HAYES v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION "R" (4), Civil Action No. 17-4349, 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 Co., and BP p.l.c.'s motion to exclude the testimony of the Plaintiff's general causation expert, Dr. Jerald Cook; b. grants 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. The Plaintiff alleges that he was exposed to crude oil and dispersants from his work as an onshore and offshore cleanup worker. He represents that this exposure has resulted in the following health problems: body pains, blurred vision, eye irritation, vision changes, loss of vision, shortness of breath, chemically induced asthma, upper respiratory infection, sinus problems, sinus drainage, chest congestion, rashes, 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 the Plaintiff's case was severed, it was reallocated to this 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. They 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 contending 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 his specific conditions, Dr. Cook lacks sufficient facts to provide a reliable opinion on general causation. Judge Vance also finds that Dr. Cook's report is unhelpful to the factfinder for many of the same reasons. She finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that the Plaintiff was allegedly exposed to, at the level at which he was exposed, to the health conditions that he purportedly experiences. In sum, Judge Vance concludes 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, the Defendants' motion to exclude Dr. Cook's testimony is granted. The Plaintiff's motion seeks the sanction of admission of Dr. Cook's report. The Plaintiff 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, the Plaintiff's 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. Judge Vance thus denies 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. 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, the Plaintiff notes that other sections of this 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 June 2, 2023 Order & Reasons is available at https://tinyurl.com/4nrz9fdm from Leagle.com. BP EXPLORATION: Hudson's Claims in B3 Case Dismissed With Prejudice ------------------------------------------------------------------- In the case, MARK HUDSON v. BP EXPLORATION & PRODUCTION, INC., ET AL., SECTION "R" (1), Civil Action No. 17-4361 (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 Co., and BP p.l.c.'s motion to exclude the testimony of the 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. The Plaintiff alleges that he was exposed to crude oil and dispersants from his work as an onshore and offshore cleanup worker. He represents that this exposure has resulted in the following health problems: rashes, eczema, atopic dermatitis, dizziness, memory loss, headaches, generalized anxiety disorder, chronic insomnia, PTSD, coughing, shortness of breath, chest pain, nausea, GERD, vomiting, abdominal pain, esophageal reflux, "abnormal EKG," "heart block," anemia, watery eyes, blurred vision, ear pain, numbness, tingling, and muscle spasms. 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 the Plaintiff's case was severed, it was reallocated to this Court. The Plaintiff asserts claims for general maritime negligence, negligence per se, and gross negligence against the Defendants as a result 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. They 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 his specific conditions, Dr. Cook lacks sufficient facts to provide a reliable opinion on general causation. Judge Vance also finds that Dr. Cook's report is unhelpful to the factfinder for many of the same reasons. She finds that Dr. Cook's opinion is unhelpful because of his inability to link any specific chemical that the Plaintiff was allegedly exposed to, at the level at which he was exposed, to the health conditions that he purportedly experiences. In sum, Judge Vance concludes 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, the Defendants' motion to exclude Dr. Cook's testimony is granted. 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 plaintiff of data which would quantitatively establish his exposure. Judge Vance says the Plaintiff's spoliation motion suffers a number of deficiencies. First, the Plaintiff's 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. Thus, Judge Vance denies 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. 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 June 2, 2023 Order & Reasons is available at https://tinyurl.com/fx4m7yr5 from Leagle.com. BRIGHTLINE INC: Castro Sues Over Failure to Safeguard PII --------------------------------------------------------- Kyle Castro, as father and next friend of E.N.C., C.J.C. and E.J.C., minors, individually, and on behalf of themselves and all others similarly situated v. BRIGHTLINE, INC., Case No. 3:23-cv-02909 (N.D. Cal., June 13, 2023), is brought seeking monetary damages and injunctive and declaratory relief from Brightline, arising from its failure to safeguard certain Personally Identifying Information1 and Protected Health Information (collectively, "PII") of hundreds of thousands of its patients. Consequently, those patients' PII--including their names, addresses, dates of birth, member identification numbers, date of health plan coverage, and/or employer names--has been compromised. On January 30, 2023, one of Brightline's vendors, Fortra, "was made aware of suspicious activity within its GoAnywhere MFT Service" which resulted in "an unauthorized party… gain[ing] access to certain Fortra customers' accounts and download[ing] files, including" confidential and sensitive PII for 964,3004 current and former patients of Brightline (the "Data Breach"). The Plaintiff and members of the Class have been significantly injured by the Data Breach and have incurred out-of-pocket expenses associated with the reasonable mitigation measures they were forced to employ. Plaintiff and the Class also now forever face an amplified risk of fraud and identity theft due to their sensitive PII falling into the hands of cybercriminals. The Plaintiff brings causes of action sounding in negligence, per se negligence, invasion of privacy, breach of confidence, breach of contract, including breach of the covenant of good faith and fair dealing, trespass to chattels, bailment, violations of the California Customer Records Act, California Confidentiality of Medical Information Act, California's Unfair Competition Law, unjust enrichment, and conversion. Plaintiff seeks damages and injunctive and declaratory relief arising from Brightline's failure to adequately protect his children's highly sensitive PII, says the complaint. The Plaintiff's children E.N.C., C.J.C. and E.J.C.'s PII was stored on Brightline's data systems at all times material hereto. Brightline, Inc. is a Delaware Corporation which provides mental and behavioral health services, including virtual counseling for children, teenagers and their families.[BN] The Plaintiff is represented by: Michael J. Wall, Esq. HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL, PLLC 223 Rosa L. Parks Avenue, Suite 300 Nashville, Tennessee 37203 Phone: (615) 800-6225 Email: michael@hsglawgroup.com - and - Peter J. Jannace, Esq. HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL, PLLC 515 Park Avenue Louisville, Kentucky 40208 Phone: (502) 636-4333 Email: peter@hsglawgroup.com - and - Caren P. Sencer, Esq. WEINBERG, ROGER & ROSENFELD A Professional Corporation 1375 55th Street Emeryville, California 94608 Phone (510) 337-1001 Fax (510) 337-1023 Email: csencer@unioncounsel.net courtnotices@unioncounsel.net BURGERFI INTERNATIONAL: Paolino Sues Over Share Price Drop ---------------------------------------------------------- JOSEPH PAOLINO, individually and on behalf of all others similarly situated, Plaintiff v. BURGERFI INTERNATIONAL, INC. f/k/a OPES ACQUISITION CORP., JULIO RAMIREZ, IAN H. BAINES, BRYAN MCGUIRE, MICHAEL RABINOVITCH, and OPHIR STERNBERG, Defendants, Case No. 0:23-cv-61058 (S.D. Fla., June 4, 2023) is a class action on behalf of the Plaintiff and all persons or entities who purchased or otherwise acquired the securities of BurgerFi International between June 30, 2020 and November 15, 2022, inclusive, seeking to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. On December 17, 2020, the Company announced that it had completed a business combination (the "Business Combination" or "Merger") with BurgerFi International, LLC. According to the complaint, the Company's public statements were materially false and/or misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company misrepresented to its pre-Merger investors what its growth strategy would be for once the Merger was completed; (2) the Company had overstated the effectiveness of its acquisition and growth strategies; (3) the Company had misrepresented to investors the purported benefits of the acquisition of Anthony's Coal Fired Pizza & Wings and its post-Anthony's combination business and financial prospects; and (4) as a result, the Company's public statements were materially false and misleading at all relevant times. On this news, BurgerFi's stock price fell $0.24 per share, or 10.57%, to close at $2.03 per share on November 16, 2022. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, Plaintiff and other Class members have suffered significant losses and damages, says the suit. BurgerFi International, Inc., f/k/a Opes Acquisition Corp., is an American hamburger restaurant chain.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq., THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: lrosen@rosenlegal.com - and - Brian Schall, Esq. Rina Restaino, Esq. THE SCHALL LAW FIRM 2049 Century Park East, Suite 2460 Los Angeles, CA 90067 Telephone: (310) 301-3335 E-mail: brian@schallfirm.com rina@schallfirm.com CARNIVAL CRUISE LINES: Delacruz Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Carnival Cruise Lines. The case is styled as Emanuel Delacruz, on behalf of himself and all other persons similarly situated v. Carnival Cruise Lines, Case No. 1:23-cv-04938 (S.D.N.Y., June 12, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Carnival Cruise Line -- https://www.carnival.com/ -- is an international cruise line with headquarters in Doral, Florida.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com danalgottlieb@aol.com CELLCO PARTNERSHIP: Court Denies Bid for Arbitration in Corsi Suit ------------------------------------------------------------------ In the case, CINTIA CORSI, et al., Plaintiffs v. CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, et al., Defendants, Civil Action No. 22-4621 (ZNQ) (RLS) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court for the District of New Jersey denies without prejudice the Motion to Compel Arbitration and Stay Proceedings filed by Defendants Cellco, d/b/a Verizon Wireless, and Verizon Communications Inc. The Plaintiffs initiated the action by filing a Complaint against the Defendants on July 18, 2022. The Complaint alleges the Defendant's deceptive sign-up policies and practices which trick customers by prominently advertising certain flat monthly rates for post-paid wireless service plans. After customers sign up, however, the Defendants uniformly charge them higher monthly rates than advertised and promised by padding customers' bills each month with an "Administrative Charge" on top of the advertised and promised price. The customers never agree to the Administrative Charge because it is never disclosed to customers when they agree to purchase wireless service from the Defendant. The Defendants first began sneaking the Administrative Charge into all of its post-paid wireless customers' bills in 2005, initially at a rate of $0.40 per month for each phone line on its customers' service plans. Since then, they have repeatedly increased the amount of the Administrative Charge on a regular basis, ultimately reaching $3.30 at the time the Complaint was filed. The first time that customers can possibly learn about the existence of the Administrative Charge, or the amount of the Charge, is on their monthly billing statements, which they begin receiving only after they have signed up for wireless service and are financially committed to their purchase and cannot cancel without penalty. The Plaintiffs allege that the Defendants' practice of not disclosing the Administrative Charge is deceptive and unlawful and ultimately seek injunctive, declaratory, monetary, and statutory relief. Notably, however, the Complaint neither alleges the existence of an arbitration clause in any of the client agreements nor attaches any agreement as an exhibit to that effect. On Nov. 18, 2022, the Defendants filed the instant Motion to Compel Arbitration and Stay Proceedings. The Plaintiffs opposed the Motion, arguing that there is no agreed upon arbitration clause, and to the extent that the Court finds that an arbitration clause existed, it is unenforceable because it is unconscionable and part of a contract of adhesion. Judge Quraishi states that the Complaint makes no reference to an arbitration agreement at all, nor does it attach an exhibit that may reference such an agreement. In this type of scenario, the motion to compel arbitration must be denied pending further development of the factual record. Given that the question of arbitrability cannot be resolved without considering evidence extraneous to the pleadings, it would be inappropriate to apply a Rule 12(b)(6) standard in deciding the instant motion. Thus, Judge Quraishi denies the Defendants' motion without prejudice, and order the parties to conduct limited discovery over the next 60 days on the issue of arbitrability. Afterwards, the Defendants may file a renewed motion to compel arbitration, which the Court will review under a Rule 56 standard. The parties will be instructed to meet and confer and to file a proposed scheduling order for that discovery, together with a deadline for the filing of any renewed motion to compel arbitration. An appropriate Order will follow. A full-text copy of the Court's June 2, 2023 Opinion is available at https://tinyurl.com/3nj3f4e8 from Leagle.com. CGM LLC: Danna Files Suit in N.D. Georgia ----------------------------------------- A class action lawsuit has been filed against CGM, LLC. The case is styled as Darron Danna, on behalf of himself and all others similarly situated v. CGM, LLC, Case No. 1:23-cv-02615-SEG (N.D. Ga., June 12, 2023). The nature of suit is stated as Other Contract for Breach of Fiduciary Duty. CGM -- https://www.cgmllc.net/ -- is a software development firm that develops and produces software solutions for CLECs and other telecom service providers.[BN] The Plaintiff is represented by: Daniel Srourian, Esq. DANIEL SROURIAN 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Phone: (213) 474-3800 Email: daniel@slfla.com - and - Michael Brandon Smith, Esq. CHILDERS, SCHLUETER & SMITH, LLC 1932 North Druid Hills Road, Suite 100 Atlanta, GA 30319 Phone: (404) 419-9500 Email: bsmith@cssfirm.com CHICAGO, IL: Court Denies Edmond's Bid for Class Certification -------------------------------------------------------------- In the case, DERRICK EDMOND, KATHERINE EALY, VICKI HILL, ROBERT T. LAWS, JR., EDDIE COOPER, JR., ANTON GLENN, DAVID HENRY, VERONICA SMITH, and DONALD ANDERSON, on behalf of themselves and all others similarly situated, Plaintiffs v. THE CITY OF CHICAGO, Defendant, Case No. 17 C 4858 (N.D. Ill.), Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies the Plaintiffs' motion for class certification. The Plaintiffs have sued the City of Chicago and several individual defendants on behalf of a putative class under 42 U.S.C. Sections 1981 and 1983 and the Illinois Civil Rights Act of 2003 for discrimination and creating a hostile work environment. On Nov. 15, 2018, Judge Joan Gottschall granted the Defendants' motion to dismiss in part. The case was then reassigned to Judge Mary Rowland on Aug. 22, 2019. Judge Rowland granted the Plaintiffs' motion for leave to amend their complaint, through which the Plaintiffs voluntarily dismissed without prejudice their claims against the Individual Defendants. On May 25, 2022, the case was reassigned to Judge Kennelly. The Plaintiffs have now moved to certify various classes under Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3). The named Plaintiffs are current and former African American employees of the City of Chicago's Department of Water Management. The Department treats and delivers drinking water to Chicago and 126 surrounding communities. It employs approximately 2,000 people spanning 150 different job titles. Many employees in the Department are represented by various labor unions that each operate pursuant to a collective bargaining agreement. The Department is led by the Commissioner and First Deputy. Until 2016, Tom Powers was the Commissioner and Barrett Murphy was the First Deputy. In 2016, Murphy became the Commissioner. Murphy then resigned in 2017, and Randy Conner was selected to replace him. There are five bureaus within the Department: (1) the Bureau of Operations and Distribution (BOD), (2) the Bureau of Water Supply (BWS), (3) the Bureau of Engineering (BOE), (4) the Bureau of Administrative Support (BAS), and (5) the Bureau of Meter Services (BMS). Each bureau is led by a Deputy Commissioner who reports directly or indirectly to the Commissioner and First Deputy. BWS is the second largest bureau, operating two water treatment plants and 12 pumping stations. Alan Stark led BWS as Deputy Commissioner from 2011 until 2017 and then as Managing Deputy Commissioner until 2018. BWS has four sections: Water Treatment, Water Quality, Water Pumping, and Administrative. Plaintiff Hill worked in Water Pumping as a staff assistant until 2015. Plaintiffs Edmond, Glenn, Cooper, and Ealy worked in Water Treatment. Edmond was an operating engineer at one of the water treatment plants, the Sawyer Water Purification Plant, until 2017. Glenn was a foreman at the same plant until 2019. Cooper is currently employed as a water chemist at the Sawyer plant. Ealy was an Assistant Chief Engineer at the other treatment plant, the Jardine Water Purification Plant, until 2017. She was then promoted to Chief Operating Engineer at the Sawyer plant, where she remained until resigning in 2019. BOD is the largest bureau and is divided into North, Central, and South Districts. Each district operates at a separate location. The districts also assign crews to make repairs and investigate leaks at various job sites along BOD's 4,400 miles of water mains and sewer lines. In addition to the districts, BOD operates a New Construction section. This section handles crews that work on longer-term projects, such as replacing water mains and sewer lines. Since 2011, William Bresnahan has led BOD as the Managing Deputy. Luci Pope-Anderson served as an Assistant Commissioner until 2016, when she was promoted to Deputy Commissioner. Several superintendents and foremen report to the commissioners. Most relevant to the plaintiffs' allegations are Paul Hansen, who worked as Superintendent in the North District from 2015 to 2017, and John Lee, who worked as Superintendent in the South District from 2010 to 2017. Plaintiffs Henry, Laws, and Anderson worked in BDO. Henry and Laws both worked in the South District as a plumber and construction laborer, respectively. Anderson works in the Central District. He started as a foreman and then became an Assistant District Superintendent in 2018. No named Plaintiffs worked in BOE or BAS. Plaintiff Smith worked in BMS as a construction laborer. The Plaintiffs allege that the Department's leaders fostered a culture of racism. An investigation by the Chicago Office of Inspector General (OIG) found "egregious, offensive racist and sexist emails distributed by and among" various leaders at the Department, including Murphy, Powers, Bresnahan, Pope-Anderson, Hansen, and Lee. The OIG concluded that the emails suggested the existence of an unrestricted culture of overtly racist and sexist behavior and attitudes within the department. As a result of the OIG investigation, Murphy and Bresnahan resigned in 2017, and then-Mayor Emanuel appointed Conner as Commissioner. The Plaintiffs allege that there were physical representations of racism in the workplace, including at least three instances of nooses present in Department trucks and uses of the n-word in workplace conversations. The Plaintiffs and the putative class members allege that they were subject to racial epithets, heard "race-based terrorizing comments" in the workplace, and were given worse equipment and more dangerous assignments. They contend that their allegations confirm a racially hostile work environment existed at the Department. They also allege that there are racial disparities in overtime, discipline, and promotions at the Department demonstrated by anecdotal and statistical evidence. The Plaintiffs move to certify four classes. The first proposed class, the hostile work environment class, includes "all Black employees who worked in the Department between Jan. 1, 2011 and the date of judgment." The Plaintiffs also propose three subclasses within this class: (1) hostile work environment class members who worked in a position eligible for overtime between June 29, 2015 and July 1, 2017 for all bureaus except BWS (the overtime subclass); (2) hostile work environment class members who were formally accused of a disciplinary infraction between June 29, 2015 and July 1, 2017 (the discipline subclass); and (3) hostile work environment class members who made an unsuccessful application for a position within the Department that was pending or determined between June 29, 2015 and July 1, 2017 (the promotion subclass). Judge Kennelly explains that in order for the case to proceed as a class action, the Plaintiffs must show that their proposed classes satisfy all the requirements of Rule 23, which sets out the criteria for class certification. First, under Rule 23(a), a putative class must satisfy four requirements: numerosity, commonality, typicality, and adequacy of representation. Second, the proposed class must fall within one of the three categories in Rule 23(b). Rule 23(b)(2) applies when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) requires finding that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. First, the City primarily contends that the hostile work environment class cannot be certified because it fails the commonality requirement under Rule 23(a)(2). Judge Kennelly opines that the Plaintiffs have failed to establish commonality for the hostile work environment class because they have not demonstrated that all class members working in the Department shared the same work environment. He denies the Plaintiffs' motion for class certification on this basis and thus need not address whether the hostile work environment class satisfies the other requirements of Rule 23(a) or Rule 23(b). Second, the Plaintiffs also seek certification of three subclasses relating to discipline, promotion, and overtime. In addition to claims of intentional discrimination, the putative discipline, promotion, and overtime class members bring claims for unintentional discrimination under the Illinois Civil Rights Act. For each subclass, the Plaintiffs rely on statistical and anecdotal evidence to allege a general policy of discrimination; they do not contend that a common policy produced disparate outcomes. The City contends that each subclass fails Rule 23(a)'s commonality requirement. Judge Kennelly opines that the Plaintiffs (i) have not identified any common criteria, methods, or practices that caused the alleged discrimination in discipline, promotions, and overtime decisions; (ii) do not identify a uniform policy or set of criteria applied by the Deputy Commissioners in deciding whether to approve overtime; and (iii) have not provided any common contention that ties the various hiring decisions together. Therefore, he declines to certify the Plaintiffs' proposed subclasses for failure to meet the commonality requirement of Rule 23(a)(2). In the alternative, the Plaintiffs seek certification under Rule 23(c)(4) for several liability issues. However, the issues they identify overlap with the questions the Court concluded were not common for their proposed classes. An issue class, like any class action, must satisfy Rule 23 and all its requirements. The Plaintiffs do not explain how any of the issues they identify are common to the class, instead relying on their same commonality arguments for the other classes that the Court has already rejected. Thus, Judge Kennelly declines to certify any Rule 23(c)(4) classes. For the reasons he stated, Judge Kennelly denies the Plaintiffs' motion for class certification. The parties are directed to confer regarding a schedule for further proceedings and are to file a joint status report in this regard. A full-text copy of the Court's June 6, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/bdz9zcba from Leagle.com. CHICAGO, IL: Judge Refuses to OK Class Action Over Racism --------------------------------------------------------- Scott Holland at cookcountyrecord.com reports that a federal judge has sealed off a class action from Black workers accusing the Chicago water department of racist conduct and treatment. The action dates to June 2017 when Black employees, some of whom worked for the city for more than 30 years, alleged a pattern of racial discrimination and harassment in the controversy-plagued Department of Water Management. Several named plaintiffs claimed the department is a "hostile and abusive work environment based on race that includes violence, intimidation, retaliation and constructive discharge." The procedural history includes a decision in which U.S. District Judge Joan Gottschall partially granted the city's motion to dismiss in November 2018. After the case was transferred to U.S. District Judge Mary Rowland, she allowed the plaintiffs to amend their complaint in August 2019, at which time they voluntarily dismissed claims against individual defendants. U.S. District Judge Matthew Kennelly took over the case in May 2022. On June 6, 2023, Kennelly denied the plaintiffs' motion to certify a class of Black plaintiffs, which would allow the lawsuits to move forward as a class action, rather than individual claims. Kennelly noted a Chicago Office of Inspector General report had found "egregious, offensive racist and sexist emails distributed by and among" several department leaders, which "suggested the existence of an unrestricted culture of overtly racist and sexist behavior and attitudes within the department." He also said the plaintiffs alleged "physical representations of racism in the workplace," including at least three times a noose was found in department trucks and use of racial slurs in workplace conversation. Worker allegations also included a claim race was a factor in quality of equipment, danger of assignments, promotions, discipline and overtime opportunities, which Kennelly said was "demonstrated by anecdotal and statistical evidence." The plaintiffs called for a hostile work environment class, open to all Black employees dating to 2011, and three subclasses based on events occurring from June 29, 2015, through July 1, 2017: one for overtime-eligible positions, one for those accused of disciplinary infractions and a third for those with rejected applications for internal promotions. In arguing against certification of the primary class, the city argued the workers didn't establish a common work environment, invoking a 2021 U.S. Seventh Circuit Court of Appeals opinion, Howard v. Cook County Sheriff's Office. Kennelly agreed, noting the Howard decision reversed certification of a hostile work environment class because the county jail includes dozens of buildings across eight city blocks making it "a leap too far to conclude from this evidence that all class members share essentially the same work environment." Kennelly noted the water department is "even larger than the jail complex" with five different bureaus, two large treatment plants and hundreds of construction sites. He further said the workers, unlike in the jail lawsuit, "have not provided any evidence that class members working in different bureaus occupied or experienced the same work environment. "Instead, the evidence suggests the contrary. Several plaintiffs employed in Bureau of Water Supply testified that they did not know the alleged harassers working in Bureau of Operations and Distribution and vice versa." The workers said the city didn't show evidence any part of the department was free of racism. But Kennelly said the same was true in Howard, where the appeals panel noted "sexual harassment occurs throughout the jail." However, the judge noted that wasn't enough to establish commonality because details on the experiences of individual sites and workers would be needed. "In this case, the plaintiffs have provided evidence that racial discrimination occurred throughout the department," Kennelly wrote. "The evidence shows, however, that the discrimination took different forms based on each class member's situation. Some plaintiffs and putative class members described hearing racial epithets, others reported seeing racially offensive imagery in certain workspaces, and still others testified that they received harder or more dangerous work assignments. In other words, the allegations of harassment are specific and vary from plaintiff to plaintiff." Even the OIG report, and resulting comments from the mayor and department commissioner, are general statements that don't establish the common experience of every worker regardless of their role in the department. Regarding the proposed subclasses, Kennelly said the workers' interpretation of the Illinois Civil Rights Act was less important than the fact they "have not identified any common criteria, methods or practices that caused the alleged discrimination in discipline, promotions and overtime decisions." Although the workers had an expert compile "statistical evidence of racial disparities," Kennelly wrote, the issue still came down to local discretion delivering disparate impact and that being insufficient to demonstrate the common experience required for class certification. Kennelly ordered a joint status report on a schedule for further proceedings to be submitted by June 13. Representing the plaintiffs are attorneys from the firm of Henderson Parks, of Chicago. [GN] CLARVALU INC: Alvarado Sues Over Unpaid Minimum, Overtime Wages --------------------------------------------------------------- Ana Alvarado and Ciltia Baquedano, on behalf of themselves and all others similarly situated, and Eymi Moreno, and Maria Valle, individually v. CLARVALU, INC. d/b/a MOLLY MAID OF CENTRAL NASSAU COUNTY and ROBERT STERBENS, individually, Case NO. 2:23-cv-04338 (E.D.N.Y., June 13, 2023), is brought against Defendants had a policy to deprive Plaintiffs of a minimum wage, earned overtime wages, and spread-of-hours pay, by misclassifying Plaintiffs as exempt from federal and state protections under the Fair Labor Standards Act of 1938 ("FLSA") and the New York Labor Law ("NYLL" or "N.Y. Lab. Law"). Instead of paying the Plaintiffs on an hourly basis, the Defendants paid commissions to each the Plaintiff, seemingly based off fees paid to Defendants for the locations that the Plaintiffs serviced. However, the commissions never added up to one and one-half times the minimum wage for all hours worked. In fact, the Plaintiffs' regular rates routinely fell below New York's minimum wage. In turn, Plaintiffs could not fit in the FLSA's or NYLL's commissioned salesperson exemptions and were entitled to both the minimum wage and overtime wages, says the complaint. The Plaintiffs was employed by the Defendants on a full-time basis as Cleaners. The Defendants own and operate Molly Maid which is a nationwide franchisor, with franchise locations that offer residential and commercial cleaning services throughout the country.[BN] The Plaintiffs are represented by: Troy L. Kessler, Esq. Garrett Kaske, Esq. Benjamin A. Goldstein, Esq. KESSLER MATURA P.C. 534 Broadhollow Road, Suite 275 Melville, NY 11747 Phone: (631) 499-9100 Email: tkessler@kesslermatura.com gkaske@kesslermatura.com bgoldstein@kesslermatura.com COCA-COLA CO: Hansen's Bid to Remand Suit to Circuit Court Denied ----------------------------------------------------------------- In the case, JESSICA HANSEN, on behalf of herself and other members of the putative class, Plaintiff v. THE COCA-COLA COMPANY, Defendant, Case No. 4:23-cv-0200-DGK (W.D. Mo.), Judge Greg Kays of the U.S. District Court for the Western District of Missouri, Western Division, denies the Plaintiff's Motion for Remand. The lawsuit arises from Hansen's allegation that the Coca-Cola's packaging of its "margarita" hard seltzer products violates the Missouri Merchandising Practices Act ("MMPA") by misleading consumers into believing these products contain tequila. The lawsuit was filed in the Circuit Court of Jackson County, Missouri, and the Defendant removed it to federal court by invoking the Court's jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Sections 1332, 1441, 1446, and 1453. Now before the Court is the Plaintiff's Motion for Remand and Suggestions in Support. Coca-Cola has marketed a line of hard seltzers which use the word "margarita" along with an agave plant on its packaging. On Jan. 19, 2023, the Plaintiff filed the lawsuit in the Circuit Court of Jackson County, Missouri. Her Petition alleges this packaging is false and deceptive and enticed her and the putative class members into believing these products contain tequila, which they do not. The Petition pleads a Missouri-only class action under the MMPA. The prayer for relief seeks damages to the full extent permitted by law, attorneys' fees and litigation costs, pre- and post-judgment interest, and such other and further relief as may be just and proper. The Plaintiff served the Defendant with the Petition on Feb. 22, 2023. On March 24, 2023, the Defendant removed the case to federal court by asserting CAFA jurisdiction, arguing this is a putative class action, the putative class contains more than 100 members, the amount in controversy is more than $5 million, and there is minimal diversity between the parties under 28 U.S.C. Section 1332(d)(2). The only dispute concerning whether CAFA jurisdiction exists in the case is whether the amount-in-controversy requirement is met. In its notice of removal, the Defendant argued the amount in controversy exceeds $5 million because of the value of injunctive relief which is available under the MMPA and which it estimated exceeded $12.8 million, in addition to the cost of compensatory damages and attorneys' fees. It argued the prayer for relief demands such other and further relief as may be just and proper, thus it encompasses a request for injunctive relief under the MMPA. In the suggestions in support of her motion to remand, the Plaintiff argues the Defendant cannot satisfy the amount-in-controversy requirement for federal jurisdiction because compensatory damages are limited to the revenue it generated from Missouri sales of the product, which were approximately $1 million, and attorneys' fees, which will be at most another $2 million. Judge Kays holds that the Plaintiff has waived her argument that Standard Fire Insurance Co. v. Knowles does not preclude her from excluding the cost of possible injunctive relief in calculating the CAFA amount-in-controversy. She says the Plaintiff has improperly delayed addressing the Defendant's Standard Fire argument until its reply brief, thereby depriving the Court of the benefit of complete and full adversarial briefing on this issue, and so the Plaintiff has waived her right to contest this argument. Consequently, because of this waiver, Judge Kays can consider the cost of injunctive relief in calculating the amount in controversy. Finally, while he is not convinced the cost of complying with injunctive relief would be more than $12 million, Judge Kays is firmly convinced the cost of complying with an injunction would easily exceed $5 million the CAFA jurisdictional threshold. Thus, Judge Kays that finds the amount-in-controversy requirement is met and denies the motion. A full-text copy of the Court's June 2, 2023 Order is available at https://tinyurl.com/3tfpkahn from Leagle.com. COHEN BROTHERS: Fails to Pay Overtime Wages, Popa Suit Alleges -------------------------------------------------------------- STELIAN MARIN POPA, individually and on behalf of all others similarly situated, Plaintiff v. COHEN BROTHERS REALTY CORPORATION and CHARLES S. COHEN, Jointly and Severally, Defendants, Case No. 1:23-cv-04771 (S.D.N.Y., June 6, 2023) arises out of the Defendants' violations of the Fair Labor Standards Act and the New York Labor Law. Plaintiff Popa was employed by Defendants as a personal driver/chauffeur from in or around January 7, 2013 through on or about September 27, 2022. The Plaintiff was hired to service the Individual Defendant, his spouse Clodagh Jacobs Cohen, and their minor children, to various destinations including Defendants' offices, doctor and dentist appointments, airports, children's schools and extracurricular facilities, family social events, and other assigned locations. In addition to driving the Individual Defendant and his family members to assigned destinations, Popa was also responsible for maintaining Defendants' many vehicles. Throughout the relevant time period, Plaintiff Popa received his wages from Defendants via a payroll check and was provided access to his paystubs through ADP, which typically reflected up to a total of 40 hours worked per week. At no point during his employment did any of Popa's paystubs show the significant overtime hours he worked, or the additional work he was required to perform on weekends, says the suit. Cohen Brothers Realty Corporation is an active corporation with its principal place of business at 750 Lexington Avenue, 28th Floor, New York. [BN] The Plaintiff is represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 Facsimile: (212) 385-0800 E-mail: pelton@peltongraham.com graham@peltongraham.com CONESTOGA ENERGY: Fails to Pay Proper Overtime Wages, Nolan Says ---------------------------------------------------------------- QUENTIN NOLAN, on behalf of himself and all others similarly situated, Plaintiff v. CONESTOGA ENERGY PARTNERS, LLC, Defendant, Case No. 5:23-cv-04041 (D. Kan., June 5, 2023) seeks to recover Plaintiff's unpaid overtime premiums for all hours worked exceeding 40 in a workweek pursuant to the Fair Labor Standards Act. Plaintiff Nolan was formerly employed by the Defendant as an instrumentation and electrical technician on February 4, 2015. Conestoga Energy Partners, LLC, produces and manufactures low carbon renewable energy products. Conestoga is headquartered in Liberal, Kansas and operates a plant in Garden City, Kansas.[BN] The Plaintiff is represented by: Michael J. Duenes, Esq. Alan V. Johnson, Esq. SLOAN, EISENBARTH, GLASSMAN McENTIRE & JARBOE, L.L.C. 534 South Kansas Avenue, Suite 1000 Topeka, KS 66603-3456 Telephone: (785) 357-6311 Facsimile: (785) 357-0152 E-mail: mduenes@sloanlawfirm.com ajohnson@sloanlawfirm.com CONNECTED INVESTORS: Class Settlement in Silva Suit Has Final Nod ----------------------------------------------------------------- In the case, JO ANNE SILVA, Individually and on behalf of all others similarly situated, Plaintiff v. CONNECTED INVESTORS, INC., Defendants, Case No. 7:21-cv-00074-D (E.D.N.C.), Judge James C. Dever, II, of the U.S. District Court for the Eastern District of North Carolina, Western Division, finally approves the class action settlement and enters final judgment. On Jan. 12, 2023, the Court granted preliminary approval to the proposed class action settlement set forth in the Settlement Agreement and Release between the Plaintiff, on behalf of herself and all members of the Settlement Class, and the Defendant. The Court also provisionally certified the Settlement Class for settlement purposes, approved the procedure for giving Class Notice to the members of the Settlement Class, and set a Final Approval Hearing to take place on June 2, 2023. On June 2, 2023, the Court held a duly noticed Final Approval Hearing to consider: (1) whether the terms and conditions of the Settlement Agreement are fair, reasonable, and adequate; (2) whether a judgment should be entered dismissing the Plaintiff's Complaint on the merits and with prejudice in favor of the Defendant and against all persons or entities who are Settlement Class Members who have not requested exclusion from the Settlement Class; and (3) whether and in what amount to award counsel for the Settlement Class as Attorneys' Fees and Expenses and whether and in what amount to award a Service Award to the Plaintiff. Judge Dever finds that the prerequisites for a class action under Fed. R. Civ. P. 23 have been satisfied for settlement purposes for each Settlement Class Member. Pursuant to Fed. R. Civ. P. 23, he finally certifies the Settlement Class, as identified in the Settlement Agreement: "All persons within the United States, who (1) were sent one or more prerecorded voice messages; (2) between April 28, 2017 and Sept. 26, 2022; (3) regarding Defendant's goods and/or services." Judge Dever finally appoints (i) Manuel S. Hiraldo of Hiraldo P.A., Ignacio J. Hiraldo, of IJH Law; and Michael Eisenband of Eisenband Law P.A.; as the Class Counsel; and (ii) the Plaintiff as the Class Representative. The Settlement Agreement is finally approved in all respects as fair, reasonable and adequate. The Parties are directed to implement the Settlement Agreement according to its terms and provisions. The Administrator is directed to provide Claim Settlement Payments to those Settlement Class Members who submit valid, timely, and complete Claims. Judge Dever approves the Class Counsel's request for attorney fees and awards the Class Counsel $666,000 as reasonable attorneys' fees. He further awards a Service Award in the amount of $6,000 to the Plaintiff payable pursuant to the terms of the Settlement Agreement. Upon entry of the Final Approval Order, all members of the Class who did not validly and timely submit Requests for Exclusion in the manner provided in the Agreement will, by operation of the Final Approval Order, have fully, finally, and forever released, relinquished, and discharged the Defendants and the Released Parties from the Released Claims as set forth in the Settlement Agreement. Pursuant to the Settlement Agreement, any unpaid portion of the Settlement Fund will be paid to Wilmington Area Rebuilding Ministry, Inc. (WarmNc.Org). Without further order of the Court, the Settling Parties may agree to reasonably necessary extensions of time to carry out any of the provisions of the Settlement Agreement. If the Effective Date does not occur, the Final Approval Order will automatically be rendered null and void and will be vacated and, in such event, all orders entered, and releases delivered in connection therewith will be null and void. The Action, including all individual claims and class claims presented therein, is dismissed on the merits and with prejudice against the Plaintiff and all other Settlement Class Members, without fees or costs to any party except as otherwise provided therein. A full-text copy of the Court's June 2, 2023 Order is available at https://tinyurl.com/5h7syb2s from Leagle.com. CONVERGENT OUTSOURCING: Faces Rayford Labor Suit in W.D.N.Y. ------------------------------------------------------------ DARLENE RAYFORD, on behalf of herself and others similarly situated, Plaintiff v. CONVERGENT OUTSOURCING, LLC, Defendant, Case No. 1:23-cv-00479 (W.D.N.Y., June 1, 2023) is a collective and class action brought by the Plaintiff against the Defendant pursuant to the Fair Labor Standards Act and multiple provisions of the New York Labor Law. The Plaintiff seeks damages and liquidated damages for unpaid overtime under both the FLSA and NYLL, as well as penalties for inaccurate wage statements and wage notices under the NYLL. The Plaintiff also seeks attorneys' fees, costs, interest, and any other relief deemed proper by the Court under federal and/or state law. The Plaintiff was employed by the Defendant as a customer service representative via a third-party temporary employment agency from August 19, 2021 until March 24, 2022 and was directly employed as a CSR since March 25, 2022. Convergent Outsourcing, LLC is a Washington State company in the business of, inter alia, partnering with companies throughout the country, including in New York, to provide customer service support for those companies' collections, billing, and other customer support needs.[BN] The Plaintiff is represented by: Matthew D. Carlson, Esq. LAW OFFICE OF MATTHEW D. CARLSON 3959 N. Buffalo Road, Suite 29 Orchard Park, NY 14127 Telephone: (716) 242-1234 E-mail: mdcarlson@mdcarlsonlaw.com COSTA CRUISES: Italian Court Approves COVID-19 Class Action Suit ---------------------------------------------------------------- travelweek.ca reports that it looks as though Costa Cruises is headed to court, three years after a class action lawsuit was filed against the company in federal court. The lawsuit, filed in April 2020 by Lipcon, Margulies & Winkleman, P.A., alleged that the Costa Luminosa set sail from Ft. Lauderdale on March 5, 2020 despite the fact that Costa Cruises knew at least one passenger from its previous voyage had shown COVID-19 symptoms. When passengers expressed hesitation about travelling on the cruise, the lawsuit contends that Costa 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 ship left Ft. Lauderdale, the CDC issued a warning that "U.S. citizens, particularly travellers with underlying health conditions, should not travel by cruise ship." The lawsuit alleged that passengers onboard the Costa Luminosa were not advised of the warning. "Our class action complaint against Costa Cruise Lines seeks compensatory and punitive damages," said the law firm. The U.S. filed class action was ultimately dismissed because of a forum selection clause contained in the passenger ticket contract that stated that any claims had to be brought against Costa in Italy. Three years later, the Italian Court has now approved the class action case, allowing all passengers aboard the March 5, 2020 cruise to join the class action by Sept. 15, 2023 and potentially obtain compensation including reimbursement of the cost of the cruise.[GN] CSC SERVICEWORKS: Court Grants in Part Bid to Dismiss 40 CPS Suit ----------------------------------------------------------------- In the case, 40 CPS ASSOCIATES LLC, Plaintiff v. CSC SERVICEWORKS, INC., Defendant, Index No. 654732/2022, Motion Seq. No. 001 (N.Y. Sup.), Judge Suzanne J. Adams of the Supreme Court, New York County, grants in part the Defendant's motion to dismiss. The Plaintiff is the owner of the land and buildings located at 40 Central Park South and 41 West 58th Street in Manhattan, which properties include residential apartments. The Defendant operates and maintains a coin- and/or card-operated laundry business. The parties entered into an agreement dated Jan. 15, 2016, with the Plaintiff as lessor and the Defendant as lessee, pursuant to which the Defendant was granted a lease to install, operate, and maintain its pay-per-use laundry equipment in designated areas at the aforesaid premises. The agreement commenced on April 1, 2016, and expires on March 31, 2024. In December 2022, the Plaintiff commenced the action, alleging, in sum, that the Defendant improperly imposed certain "administrative fees" in its calculation of revenue that forms the basis for its payments to the Plaintiff pursuant to their agreement. The Defendant has moved to dismiss the action pursuant to CPLR 3211(a)(5) on res judicata grounds. The Plaintiff opposes the motion. Underlying the instant matter is a nationwide class action settlement against the Defendant that arose out of a class action lawsuit regarding the "administrative fee" at issue, which was venued in Cook County, Illinois. In the Final Judgment and Order of Dismissal with Prejudice dated April 27, 2022, the Cook County Circuit Court, Chancery Division, inter alia, approved the Amended Stipulation of Class Action Settlement, and also approved the notice procedures to the prospective settlement class members. The "Released Class Claims" as defined in paragraph 1.21 include claims that the Plaintiff has asserted in its Verified Complaint that arise out of the Defendant's calculation of the "administrative fee." The Plaintiff maintains that it should not be bound by the class action settlement because it was never served with notice of pendency of the class action, but the Final Judgment held that the notice given to potential class action plaintiffs was reasonable and appropriate. In any event, Judge Adams holds that the Defendant has proffered evidence that the Plaintiff was in fact served with notice. Thus, because the Plaintiff did not opt out of the class, it is bound by the terms of the Amended Stipulation. As such, it may not assert claims in its First and Third Causes of Action that consist of "Released Class Claims" as in the Amended Stipulation. However, the Plaintiff's Second Cause of Action is not barred by the class action settlement. The Plaintiff asserts a breach of contract claim arising out of the Defendant's alleged failure to pay "rent," defined in their agreement. Judge Adams finds that the plain meaning of this provision is that the Defendant is to calculate the revenue from the laundry operations by ascertaining the income received from said operations and then deducting the listed expenses, and then paying the Plaintiff 74% of that revenue, or $3,500, whichever sum is greater. While the Plaintiff is barred by the class action settlement from challenging the Defendant's definition and calculation of its "administrative fee," the Defendant is still obligated to pay a minimum rent of $3,500. The Plaintiff alleges that the Defendant has not done so, and as such has stated a cause of action for breach of contract. Accordingly, Judge Adams grants the Defendant's motion to the extent that the First and Third Causes of Action of the Verified Complaint are dismissed, with prejudice. She denies the remainder of the Defendant's motion. The Defendant will serve its answer to the Verified Complaint within 35 days of service of notice of entry of the Order. Within 35 days of service of the Defendant's answer, the parties will submit to the Part Clerk of Part 39 an agreed upon Preliminary Conference Order for the judge's review and signature, as per the Part Rules. This constitutes the Decision and Order of the Court. A full-text copy of the Court's June 2, 2023 Decision + Order is available at https://tinyurl.com/mphe4mjb from Leagle.com. DARLING INGREDIENTS: Testimony of 2 Experts Excluded in Sines Suit ------------------------------------------------------------------ In the case, JAMES and MANUELA SINES, on behalf of themselves and all others similarly situated, Plaintiffs v. DARLING INGREDIENTS INC., Defendant, Civil Action No. 19-19121 (D.N.J.), Judge Evelyn Padin of the U.S. District Court for the District of New Jersey: a. grants Darling's motion to exclude the testimony of two experts offered in connection with class certification: Mark Cal and Theodore Lamicella; and b. denies the Plaintiffs' motion for class certification pursuant to Federal Rule of Civil Procedure 23. The Plaintiffs are a putative class of Jersey City residents who allege that Defendant Darling, which operates a Newark animal rendering facility, releases noxious odors into the environment which reduce the Plaintiffs' property values. The Plaintiffs move for class certification pursuant to Federal Rule of Civil Procedure 23. Darling opposes. Darling also moves, pursuant to Federal Rule of Evidence 702, to exclude the testimony of two experts offered in connection with class certification: Cal and Lamicella. The Plaintiffs oppose these motions. Judge Padin has reviewed all relevant submissions and considered the motions without oral argument. Darling operates an animal rendering facility that is surrounded by residential properties, including the properties where the Plaintiffs reside. The Plaintiffs allege that the Darling animal rendering facility releases noxious odors that enter the surrounding residential properties, contaminate the air, disturb residents' use and enjoyment, and diminish property values. They seek relief on behalf of a putative class of owner-occupants and renters on theories of nuisance, trespass, and negligence. Initially, the Plaintiffs defined the putative class as all owner-occupants and renters of residential property within 1.75 miles of the Darling animal rendering facility. However, in the present class certification motion, they modify the putative class to include only those owner-occupants and renters of residential property within a pre-defined geographic area in Jersey City, across the bay from Darling's facility. They eek to certify this putative class pursuant to Rule 23(a) and Rule 23(b)(3). To meet class certification requirements, the Plaintiffs offer expert testimony from Mark Cal and Theodore Lamicella. They offer Cal's testimony to provide a classwide method for determining whether Darling emitted odors throughout the proposed class area, as well as the extent of any odor emissions. Relatedly, the Plaintiffs offer Lamicella's testimony to provide a class-wide method for determining whether Darling caused damages, as well as the measure of any damages. However, Darling asserts that both experts' testimony is inadmissible under Rule 702 and the standard set out in Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993). Accordingly, it has moved to exclude both experts. Judge Padin finds that the Plaintiffs' putative class does not satisfy Rule 23. Specifically, the putative class fails the adequacy requirement of Rule 23(a) and the ascertainability, predominance, and superiority requirements of Rule 23(b)(3). Additionally, the Plaintiffs' expert testimony does not satisfy Rule 702 or Daubert; Cal and Lamicella propose approaches that fail the reliability and fit requirements, and Lamicella also fails the qualifications requirement. Importantly, even if Judge Padin does not exclude the relevant expert testimony, she would still decline to certify the class. For these reasons, Judge Padin grants the motions to exclude and denies the motion for class certification. An appropriate Order accompanies the Opinion. A full-text copy of the Court's June 6, 2023 Opinion is available at https://tinyurl.com/tw55d9bt from Leagle.com. DEITYNY LLC: Faces Yunga Wage-and-Hour Suit in S.D.N.Y. ------------------------------------------------------- MIRIAN YUNGA, individually and on behalf of all others similarly situated, Plaintiff v. DEITYNY LLC d/b/a DEITY NEW YORK, and RENEE BISHOP, as an individual, Defendants, Case No. 1:23-cv-04765 (S.D.N.Y., June 6, 2023) seeks to recover damages for Defendants' egregious violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff alleges the Defendants' failure to pay proper overtime, failure to pay wages for all hours worked, failure to pay wages owed on a weekly basis in which Plaintiff's wages were earned, and failure to provide wage statements and wage written notice. The Plaintiff was employed by the Defendants as a tailor and seamstress while performing related miscellaneous duties from July 2021 until December 2022. DEITYNY LLC, d/b/a DEITY NEW YORK, is a full-service wedding and event venue.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 DELAWARE: Counsel Request in Crichlow v. Dept. of Correction Denied ------------------------------------------------------------------- In the case, KENIO CRICHLOW, Plaintiff v. DELAWARE DEPARTMENT OF CORRECTION, et al., Defendants, Civil Action No. 22-272-RGA (D. Del.), Judge Richard G. Andrews of the U.S. District Court for the District of Delaware: a. denies Crichlow's requests for counsel without prejudice to renew; and b. dismisses Crichlow's request to stay response to the Defendants' motions to dismiss as moot. Crichlow requests counsel on the grounds that he is unable to afford counsel, he has been unsuccessful in his attempts to retain pro bono counsel, the case is complex, the case may become a class action and he is unable to represent the class, he has limited access to legal materials and no ability to investigate, and the case will require discovery and expert medical testimony. Judge Andrews explains that a pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel. However, representation by counsel may be appropriate under certain circumstances, after a finding that a plaintiff's claim has arguable merit in fact and law. After passing this threshold inquiry, courts should consider a number of factors when assessing a request for counsel including: (1) the merits of the plaintiffs claim; (2) the plaintiffs ability to present his or her case considering his or her education, literacy, experience, and the restraints placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the degree to which factual investigation is required and the plaintiffs ability to pursue such investigation; (5) the plaintiffs capacity to retain counsel on his or her own behalf; and (6) the degree to which the case turns on credibility determinations or expert testimony. Assuming, solely for the purpose of deciding this motion, that Crichlow's claims have merit in fact and law, Judge Andrews finds that several of these factors militate against granting his request for counsel now. As he previously determined in denying Crichlow's previous request for counsel, based on his review of the complaint, which centers on a two-block march by 21 inmates, who had tested positive for COVID-19, in the pouring rain on April 30, 2020, the case is not complex. Furthermore, Crichlow appears to have the ability to present his claims. The Plaintiff requests a stay of the deadlines to respond to the Defendants' motions to dismiss until the Court has ruled on his requests for counsel. Having denied his counsel requests, Judge Andrews holds that the Plaintiff's stay request is moot. Responses to the motions to dismiss must be filed within 21 days of the date of the Order to be deemed timely, which is an extra week over what the rule provides. A full-text copy of the Court's June 2, 2023 Memorandum Order is available at https://tinyurl.com/34trxbms from Leagle.com. DELL TECHNOLOGIES: Wins Bid to Compel Arbitration in Hopkins Suit ----------------------------------------------------------------- In the case, SANDRA HOPKINS, individually and on behalf of all others similarly situated, Plaintiff v. DELL TECHNOLOGIES, INC., Defendant, Case No. 22-cv-2464-DWD (S.D. Ill.), Judge David W. Dugan of the U.S. District Court for the Southern District of Illinois grants the Defendant's Motion to Compel Arbitration. Hopkins, individually and on behalf of all others similarly situated, brings the putative class action against the Defendant alleging consumer fraud violations, breach of warranty, and related claims concerning its Inspiron 15 300 Series laptop computers with lithium-ion batteries. Now before the Court is the Defendant's Motion to Compel Arbitration. The Plaintiff filed a Memorandum in Opposition to which the Defendant replied. As alleged in the Complaint, the Defendant manufacturers, markets, and sells the Inspiron 15 3000 Series of laptop computers under its Dell brand with lithium-ion batteries. In March 2020, the Plaintiff purchased the Product from a third-party retailer, Best Buy. She alleges that she purchased the Product expecting that the laptop battery would be adequately manufactured, designed, and tested so that it could reliably hold its charge and not drain rapidly after short periods unconnected to an external power source. However, she contends that the battery she purchased suffered premature failure and degradation after only several months of normal usage preventing and limiting her ability to use the laptop as originally represented by the Defendant. The Plaintiff's complaint alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. Ann. 505/1, et seq., and related state consumer fraud acts, breaches of express warranty, implied warranty, and the Magnuson Moss Warranty Act, 15 U.S.C. Section 2301, et seq., negligence misrepresentation, fraud, and unjust enrichment. The Plaintiff also seeks to certify an Illinois Class and Multi-State Class consisting of persons in the States of North Dakota, North Carolina, Kentucky, Utah, Kansas, and Wyoming pursuant to Fed. R. Civ. P. 23. The Defendant moves to compel arbitration under the Federal Arbitration Act ("FAA") pursuant to an arbitration clause contained in its Terms of Sale for the Product. It maintains that the Plaintiff was required to agree to these Terms of Sale when she purchased the Product in March 2020 from the third-party seller, Best Buy. The Terms of Sale at the time of the Plaintiff's purchase of the Product in 2020 contains arbitration provision. The parties dispute whether the Plaintiff agreed to the arbitration agreement in the Defendant's Terms of Sale. The Defendant argues that the Plaintiff manifested assent to its Terms of Sale by her use and continued use of the Product after being informed of the terms on (1) the Product's exterior packaging, (2) the warranty pamphlet contained in the Product's interior packaging, and (3) on the Product's start-up screen before use. The Plaintiff does not disagree with the general enforceability of clickwrap agreements. Instead, she presents two thread-bare challenges to her assent, questioning the conspicuousness of the Defendant's Terms of Sale as presented on the Product's exterior box and the Product's start-up screen. She does not, however, address the Defendant's arguments concerning the warranty pamphlet contained in the Product's interior packaging. Judge Dugan holds that the Plaintiff has failed to raise a genuine issue of material fact as to the contract formation issue and finds that the Plaintiff agreed to be bound to the terms of the Defendant's Terms of Sale and its arbitration agreement. Having found that an agreement to arbitration exists, the FAA next instructs the court to stay proceedings on issues subject to arbitration and compel arbitration pursuant to the agreement. The parties are, however, permitted to delegate this gateway question to the arbitrator. The Terms of Sale also incorporate the American Arbitration Association's Consumer Arbitration Rules and the JAMS Comprehensive Arbitration Rules. Thus, the express delegation provision and incorporation of the AAA and JAMS Rules provide clear and unmistakable evidence of the parties' intent to delegate the threshold issues of arbitrability, scope, and enforceability to the arbitrator. As such, Judge Dugan must refer to the arbitrator the question of the agreement's arbitrability and scope. For these reasons, Judge Dugan grants the Defendant's Motion to Compel Arbitration. However, the Defendant also asks the Court to dismiss, rather than stay, these proceedings pending the completion of arbitration. The FAA does not explicitly provide that a case subject to arbitration can be dismissed, however, there is a growing trend among district courts favoring dismissal of a case when all of the claims contained therein are subject to arbitration. While Judge Dugan agrees that judicial efficiency is a compelling reason to consider a request for dismissal here, he found that the parties delegated questions of the agreement's arbitrability and scope to the arbitrator. Accordingly, whether the Plaintiff's claims are covered by the arbitration agreement is not a question currently before the Court, and Judge Dugan declines to dismiss the case on that basis. Instead, he stays these proceedings pending the completion of arbitration. All pending motions are denied, as moot, and without prejudice, and all deadlines are terminated. The parties are directed to file a status report advising the Court of the status of the arbitration proceeding on Dec. 1, 2023, and every June and December thereafter until the arbitration is complete, and to file a final status report within 30 days of the completion of the arbitration. A full-text copy of the Court's June 2, 2023 Memorandum & Order is available at https://tinyurl.com/3ahy7v68 from Leagle.com. DESERT HAVEN ENTERPRISES: Franklin Files Suit in Cal. Super. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against Desert Haven Enterprises. The case is styled as Mark Franklin, on behalf of himself, all others similarly situated, and on behalf of the general public v. Desert Haven Enterprises, Case No. BCV-23-101829 (Cal. Super. Ct., Kern Cty., June 12, 2023). The case type is stated as "Other Employment - Civil Unlimited." Desert Haven Enterprises, Incorporated -- http://www.deserthaven.org/-- is a private, nonprofit organization dedicated to developing, enhancing, and promoting the capabilities of persons with developmental disabilities.[BN] DEUTSCHE BANK: Epstein Victims to Get Up to $5MM From Settlement ---------------------------------------------------------------- Jacob Shamsian, writing for Business Insider, reports that some victims of Jeffrey Epstein will be able to get up to $5 million from a settlement between Deutsche Bank and a class-action group of the now-dead pedophile's accusers, according to new court documents. The bank settled the lawsuit in May, agreeing to pay $75 million to satisfy claims from an Epstein accuser who alleged that Deutsche Bank enabled Epstein's sex-trafficking operation by failing to properly scrutinize his accounts. The June 16 court filings -- if approved by the judge overseeing the case -- outline how the funds would be distributed to certain Epstein victims. The accusers would be eligible to apply for compensation if they were abused by Epstein or his associates during the time he began banking with Deutsche Bank, in August 2013, until around the time of his death, in August 2019. Epstein died in a federal jail while awaiting trial on sex-trafficking charges. His vast estate, valued at $630 million, formed the basis for a compensation program that doled out $125 million to victims. In addition to the 136 victims who took money from the fund, other accusers have received settlements from separate lawsuits filed against Epstein's estate. Attorneys for some of Epstein's accusers believed the earlier compensation program wasn't enough. "Given that the estate at one point was valued at $634 million, this seems, in my opinion, to be a very small amount paid to victims for the harm that they suffered," Gloria Allred, who represents 20 of his accusers, previously told Insider. "It's my opinion that victims should have been compensated with a much larger share of Epstein's estate and that the amount awarded to many of them was insufficient and undervalued the sexual abuse that they suffered." The Deutsche Bank settlement allows Epstein's victims to file claims with a new compensation program. The victims will be eligible only if Those claims will be reviewed by a group of three judges, who will decide whether to issue between $75,000 and $5 million to victims. The anonymous "Jane Doe" who brought the class-action lawsuit against Deutsche Bank is represented by a group of attorneys including Sigrid McCawley, David Boies, and Brad Edwards, who have also collectively represented dozens of other Epstein accusers and have helped shape his estate's compensation program. Their law firms can get up to 30% of the Deutsche Bank settlement funds, according to the settlement documents. Earlier last week, JP Morgan Chase agreed to pay $290 million to settle a separate class action lawsuit from "Jane Doe" alleging the bank facilitated Epstein's sex-trafficking operation. The full terms of that settlement aren't yet available. "The settlements that have been reached are both life-changing and historic for the survivors," McCawley said in a statement. "Money, which for far too long flowed with impunity between Jeffrey Epstein's global sex trafficking enterprise and Wall Street's leading banks, is decisively being used for good. The settlements signal that financial institutions have an important role to play in spotting and shutting down sex trafficking." Boies called the JP Morgan and Deutsche Bank settlements "historic" and compared himself to a character from the caper movie "The Sting." "I feel like Johnny Hooker — it's not enough, but it's close," he said. Yet another lawsuit against JP Morgan, brought by the attorney general of the US Virgin Islands — where Epstein owned two private islands — is still moving forward. The Virgin Islands lawsuit alleges JP Morgan "pulled the levers" of Epstein's trafficking by turning a blind eye to red flags in his bank accounts because of the business he brought to the bank through his connections with other powerful people. JP Morgan has denied the claims and has alleged that the US Virgin Islands government had its own problematic entanglements with Epstein. In court documents on June 15, the bank brought attention to Cecile de Jongh, the territory's former first lady, who worked for Epstein. She consulted him on changes to a sex offender registration law and helped obtain visas for some of his victims, the filings allege. [GN] DOORDASH INC: Accused of Consumer Fraud in $1B Class Suit --------------------------------------------------------- Hermina Paull at thedeepdive.ca reports that DoorDash Inc (NYSE: DASH) faces yet another class action lawsuit over its deceptive business practices, this time by plaintiffs in California. The $1 billion lawsuit filed in the US District Court of Northern California targets DoorDash's various fees and pricing schemes, which it alleges are deceptive and exploitative. It argues that these practices prey on vulnerable individuals, such as struggling merchants, immigrants, lower socioeconomic individuals, and consumers in general. Notably, the plaintiff claims that iPhone users were charged at higher rates than Android users for DoorDash's services. The complaint highlights DoorDash's handling of tips for its contracted drivers, alleging that the company retains these tips for itself instead of distributing them to the drivers. While DoorDash purportedly now pays the full tip amount to the drivers, it allegedly retains these tips for up to a week before release. Moreover, it offers a "Fast Pay" fee for immediate access to their tips. Further complexity is added by the DasherDirect Program. Under this program, drivers, who are supposedly targeted due to their immigrant status, can receive their tips immediately, but with several conditions. The tips are provided on a VISA debit card underwritten by Stride Bank, which profits by pooling the drivers' funds for investment. The lawsuit asserts that DoorDash profits from the DasherDirect Program via fees derived from the drivers' invested funds and their debit card usage, which exceed earnings from the Fast Pay fees. The complaint also accuses the food delivery company of exploiting restaurants by retaining a portion of the food order price as commission, rather than charging a service fee. Additionally, the lawsuit claims that DoorDash includes hidden fees in promotional and sponsored menu items advertised on the platform without properly informing consumers. The suit goes on to allege that the company's hidden fees, including those for commission, marketing, sponsored listing, and credit card transactions, lead restaurants to increase their prices, which are ultimately passed onto consumers. DoorDash is also accused of deceptive practices such as charging "city" or regulatory response fees that create an illusion of being imposed by local governments. Despite not offering delivery itself, DoorDash allegedly charges a range of delivery fees and levies an "express" or "priority" fee for direct delivery to consumers. However, these express orders are alleged to average around the same delivery time as standard orders. The lawsuit further criticizes DoorDash's "expanded range delivery" fee for orders outside of normal delivery areas, arguing that these areas are determined not by consumer location, but by the restaurants' service level plans with DoorDash. This fee is also purportedly used to subsidize lost revenues from the discounted fees under the DashPass Program. More importantly, however, "DoorDash charges the expanded range fee on iPhone users more often than Android users and charges iPhone users more for "delivering" (likely because studies reveal iPhone users earn more)." DoorDash also faces a similar $1 billion lawsuit in Maryland, which too, accuses the company of charging higher fees for iPhone users versus their Android counterparts. According to the complaint, iOS devises were charged "illegal" fees— in some instances up to $2 more than other devises for identical orders.[GN] DSV SOLUTIONS: Sanchez Suit Removed to C.D. California ------------------------------------------------------ The case captioned as Maria Sanchez, an individual, on behalf of herself and all others similarly situated v. DSV Solutions, a South Carolina Limited Liability Company; and DOES 1-50, inclusive, Case No. CIVSB2127568 was removed from the Superior Court of California, County of San Bernardino, to the United States District Court for the Eastern District of California on June 12, 2023, and assigned Case No. 5:23-cv-01112. The Class Action Complaint alleges seven causes of action which Plaintiff pursues on a class-wide basis: failing to pay for all hours worked, including overtime hours worked; failing to reimburse for required business expenses; failing to provide timely meal breaks; failing to provide rest breaks; failing to pay all wages owed; failing to provide accurate wage statements and maintain accurate payroll records; and unlawful business practices-Business and Professions Code.[BN] The Defendant is represented by: Daniel B Chammas (SBN 204825) Min K. Kim (SBN 305884) FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles, CA 90071 Phone: (213) 237-2400 Facsimile: (213) 237-2401 Email: dchammas@fordharrison.com mkim@fordharrison.com ELON MUSK: Dogecoin Securities Fraud Class Action Ongoing --------------------------------------------------------- Pedro Solimano, writing for Decyrpt, reports that billionaire mogul Elon Musk has denied allegations of owning Dogecoin (DOGE) wallets amid his ongoing class action lawsuit for market manipulation and securities fraud relating to the meme coin. Tesla's founder and CEO and, for a short while, the CEO of Twitter, is currently facing a $258 billion lawsuit for an alleged Dogecoin pyramid scheme. The court case claims Musk was part of a racketeering scheme to back the cryptocurrency. According to a court filing submitted on June 7, 2023, Musk is accused of selling 1.4 billion Dogecoin, worth over $124 million. The records state two different wallets, supposedly belonging to the billionaire, offloaded the tokens. Elon Musk, Tesla and SpaceX Hit With $258 Billion Dogecoin Lawsuit This alleged profit-taking occurred during a two-day period in April (4-6), when Twitter replaced its classic blue bird icon for the image of Dogecoin's logo, a Shiba Inu dog. Price aggregator Coingecko, however, pointed to a drop in the token's price, from $0.095 to $0.085, during those two days. Elon Musk's attorney, Alex Shapiro, has denied these allegations, according to a letter obtained by The New York Post. "You specifically allege, without basis, that the following wallets ‘belong' to [Musk]," it reads. "The sole basis for your claim is that these wallets sold Dogecoin at a time when, according to the Third Amended Complaint, prices were up." A group of DOGE investors had already amended the lawsuit in late May, when they accused Musk with manipulative practices that pumped the token's price. That filing accuses him of "transparent cryptocurrency market manipulation," saying that Musk was exploiting his impressive Twitter following and subsequent appearance on NBC's Saturday Night Live. Dogecoin Investors' Class Action Lawsuit Now Accuses Elon Musk of Insider Trading Musk, the self-proclaimed "Dogefather" and "Dogecoin CEO" has not shied away from his favoritism of the meme coin. He has repeatedly taken to social media to "tweet the token," garnering his recent encounters with the law. Invented as a joke in 2013 for the cryptocurrency community to stop taking itself so seriously, the infamous meme coin has surged in popularity and in price. It currently is the ninth largest token by market capitalization on CoinGecko, trading hands at $0.06 with an astounding $8.7 billion dollar market cap. Is Elon Musk Dogecoin's mysterious whale or just a Twitter troll? That's up for the judge to decide. [GN] ENZO BIOCHEM INC: Griffin Files Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Enzo Biochem, Inc., et al. The case is styled as Steven Griffin, on behalf of himself and all others similarly situated v. Enzo Biochem, Inc., Enzo Clinical Labs Inc., Case No. 2:23-cv-04351-GRB-LGD (E.D.N.Y., June 13, 2023). The nature of suit is stated as Other Contract. Enzo Biochem -- http://www.enzo.com/-- is a pioneer in molecular diagnostics, leading the convergence of clinical laboratories, life sciences, and intellectual property through the development of unique diagnostic platform technologies that provide numerous advantages over previous standards.[BN] The Plaintiff is represented by: Michael M. Weinkowitz, Esq. LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Phone: (215) 592-1500 Fax: (215) 592-4663 Email: mweinkowitz@lfsblaw.com ENZO BIOCHEM: Johnson Sues Over Cyberattack and Data Breach ----------------------------------------------------------- Tony Johnson, individually and on behalf of all similarly situated persons v. ENZO BIOCHEM, INC., ENZO CLINICAL LABS, INC., AND LAB CORPORATION AMERICAN HOLDINGS, Case No. 2:23-cv-04291 (E.D.N.Y., June 12, 2023), is brought arising from a recent cyberattack resulting in a data breach of Private Information in the possession and custody and/or control of Enzo Biochem, Enzo Clinical, and Labcorp (the "Data Breach"). Enzo Clinical sourced their information from third parties, stored it on Defendants' systems, and assumed a duty to protect it, advertising that Defendants "respect individual privacy and values the confidence of its customers, partners, investors and employees." But Defendants never implemented the necessary security safeguards needed to protect its customers private Private Information despite acknowledging its importance. The Data Breach exposed Defendants negligence and resulted in the unauthorized disclosure, exfiltration, and theft of consumers' highly personal information, including names, Social Security numbers, dates of service, ("personal identifying information" or "PII"), and clinical test information ("protected health information" or "PHI"). Plaintiff refers to both PII and PHI collectively as "Private Information." According to information and belief, the Data Breach occurred between April 4, 2023, and April 6, 2023. Defendants did not become aware of suspicious activity on its network until April 6, 2023, allowing cybercriminals unfettered access to Plaintiff's and the Class's Private Information for 2 days. On May 31, 2023, the Defendants began notifying Plaintiff and Class Members about the widespread Data Breach ("Notice Letter"). Defendants waited almost 2 months before informing Class Members even though Plaintiff and approximately 2.5 million Class Members had their most sensitive personal information accessed, exfiltrated, and stolen causing them to suffer ascertainable losses in the form of the loss of the benefit of their bargain and the value of their time reasonably incurred to remedy or mitigate the effects of the attack. The Defendants' failure to timely detect and report the Data Breach made its consumers vulnerable to identity theft without any warnings to monitor their financial accounts or credit reports to prevent unauthorized use of their Private Information. The Defendants knew or should have known that each victim of the Data Breach deserved prompt and efficient notice of the Data Breach and assistance to mitigate the effects of the infiltrators misusing their PII and PHI. By failing to adequately protect Plaintiff's and the Class's Private Information, failing to adequately notify them about the breach, and by obscuring the nature of the breach, Defendants violated state and federal law and harmed an unknown number of their consumers. The Plaintiff and members of the proposed Class are victims of Defendants' negligence and inadequate cyber security measures. Specifically, Plaintiff and members of the proposed Class trusted Defendants with their Private Information. But Defendants betrayed that trust. Defendant failed to properly use up-to-date security practices to prevent the Data Breach, says the complaint. The Plaintiff is a victim of the Data Breach. The Defendants proclaim themselves as "pioneer's in molecular diagnostics," touting their position "as a global company," "leading the convergence of clinical laboratories, life sciences, and intellectual property' with their "technology targeting specific market needs."[BN] The Plaintiff is represented by: William B. Federmanm, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Ave. Oklahoma City, OK 73120 Phone: (405) 235-1560 Facsimile: (405) 239-2112 Email: wbf@federmanlaw.com FEDERAL HOUSING: Bid to Serve Supplemental Expert Reports Denied ---------------------------------------------------------------- In the cases, BERKLEY INSURANCE CO., et al., Plaintiffs v. FEDERAL HOUSING FINANCE AGENCY, et al., Defendants. In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations. This Order relates to: ALL CASES, Case Nos. 1:13-cv-1053-RCL, 1:13-mc-1288-RCL (D.D.C.), Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia denies: a. the Plaintiffs' Motion to Serve Supplemental Expert Reports; and b. the Berkley Plaintiffs' Motion to Present Evidence and Arguments Concerning Reliance Damages. Ever since the Court issued its summary judgment decision prior to the first trial in these cases, the Plaintiffs have sought to turn back the clock on the orderly process of litigation to avoid its consequences. Now the Plaintiffs in both No. 13-cv-1053 ("the Berkley Plaintiffs") and No. 13-mc-1288 ("the Class Action Plaintiffs") once again seek, in effect, to reopen expert discovery; and the Berkley Plaintiffs also seek leave to argue for a measure of damages the Court has already held to be unavailable as a matter of law. The lawsuits grow out of the "Net Worth Sweep," an agreement between the Federal Housing Finance Agency ("FHFA"), as conservator for the government-sponsored entities ("GSEs") Fannie Mae and Freddie Mac, and the U.S. Department of the Treasury requiring the GSEs to pay 100% of their net profits more than a predetermined capital reserve to Treasury as compensation for its bailout of the GSEs following the 2008 financial crisis. Both sets of Plaintiffs filed their complaints in 2013. After years of extensive litigation, the parties filed cross-motions for summary judgment in April 2022, and a month later, the Court set a trial date for Oct. 17, 2022. In its summary judgment opinion, the Court held that the Plaintiffs' primary theory of harm -- that the Net Worth Sweep deprived them of dividends that they otherwise would have received -- was barred as a matter of law because it relied on the impermissibly speculative assumption that Treasury would have allowed FHFA to pay down its Liquidation Preference in the GSEs enough that the GSEs would have been able to pay dividends to other shareholders. It also held that one of the Plaintiffs' proposed remedies, rescission, and restitution, was barred by a provision of the Recovery Act, or "HERA," prohibiting nonmonetary remedies for the FHFA's actions as conservator. However, the Court allowed an alternative theory of harm to proceed to trial, one based on the loss in share value that the Net Worth Sweep allegedly caused by effectively eliminating the dividend rights that came with those shares. Shortly after the Court issued its summary judgment decision, both sets of Plaintiffs filed a motion for leave to amend their pretrial statement, serve a supplemental expert report, and adjust the trial schedule, as well as a motion for clarification and/or partial reconsideration. The Court denied both motions. The first of those motions, and the Court's decision denying it, involved two of the same requests at issue in the present motions: (1) to serve a supplemental expert report by existing expert witness Dr. Joseph Mason, and (2) to present evidence and arguments concerning reliance damages. The Court denied both requests, in part because they came on the eve of trial. As to the former request, the Court further reasoned that plaintiffs had no excuse for failing to develop Dr. Mason's testimony earlier. And as to the latter request, the Court also concluded that reliance damages were unavailable as a matter of Delaware and Virginia law, which govern the claims in these cases, since the sum sought -- $48 billion -- far exceeded ascertainable expectation damages. The Court held the jury trial as scheduled, beginning on Oct. 17, 2022. After three weeks, the jury hung, and the Court declared a mistrial. On Feb. 7, 2023, the Court set a second jury trial to begin on July 24, 2023. Thereafter, the Plaintiffs in both cases filed a motion to serve supplemental expert reports by Dr. Mason and another existing expert, Dr. Bala Dharan. The Defendants filed an opposition, and the Plaintiffs filed a reply. Subsequently, the Berkley Plaintiffs, but not the Class Action Plaintiffs, filed a motion for leave to present evidence and arguments concerning reliance damages, asking the Court to reconsider its prior ruling precluding the Berkley Plaintiffs from seeking reliance damages in the case -- or, in the alternative, to clarify that the basis for precluding such damages is solely the Court's ruling that they are unavailable as a matter of law, not any issue of timeliness or prejudice to the Defendants. The Defendants filed an opposition and the Berkley Plaintiffs filed a reply. Judge Lamberth denies both of the present motions for many of the same reasons the Court denied similar relief on the eve of the first trial, as well as one additional reason: Although the trial date is further away this time, it would be unfair to allow the Plaintiffs to effectively reopen expert discovery and/or inject an additional damages theory unavailable at the first trial simply because they managed to convince a jury to at least hang. Judge Lamberth holds that the Plaintiffs have not offered to pay the Defendants' way through the additional discovery, and at any rate, as just explained, he concludes in his discretion that it would be unfair to the Defendants to turn back the clock at this juncture. Hence, the motion for leave to serve supplemental expert reports is denied. Moreover, Judge Lamberth holds that the Berkley Plaintiffs' motion for leave to seek reliance damages at the retrial. He says the Berkley Plaintiffs' request is, in effect, nothing more than one for reconsideration of the Court's prior ruling on the availability of reliance damages. Nevertheless, he stands by the Court's prior holding that reliance damages are unavailable as a matter of law, which is the law of the case. Even if the Court had reason to reconsider its prior holding on the merits, Judge Lamberth says it would exercise its inherent "trial-management discretion" to preclude the injection of a new damages measure between the first and second trials based on fairness concerns similar to those with respect to the proposed supplemental expert reports. Hence, Berkley Plaintiffs' motion for leave to seek reliance damages is denied. A separate Order is issued this date. A full-text copy of the Court's June 2, 2023 Memorandum Opinion is available at https://tinyurl.com/3fephem3 from Leagle.com. FORD MOTOR: Boggan Sues Over Design and Manufacturing Defects ------------------------------------------------------------- Larry Boggan, Brian Wolfe, Kelly Wolfe, Bridgett Thompson, and James Grier, individually and on behalf of all others similarly situated v. FORD MOTOR COMPANY, Case No. 2:23-cv-00774-MHH (N.D. Ala., June 13, 2023), is brought individually and on behalf of all similarly situated persons ("Class Members") who purchased or leased a Ford vehicle equipped with a 10R80 10-speed transmission ("10R80" or "Transmission") that were designed, manufactured, distributed, marketed, sold, and leased by Defendant or Defendant's parent, subsidiary, or affiliates thereof, which Plaintiffs bring this case individually and on behalf of all similarly situated persons ("Class Members") who purchased or leased a Ford vehicle equipped with a 10R80 10-speed transmission ("10R80" or "Transmission") that were designed, manufactured, distributed, marketed, sold, and leased by Defendant or Defendant's parent, subsidiary, or affiliates thereof which contain one or more design and/or manufacturing defects. The Defendant designed, manufactured, distributed, marketed, sold, and leased Ford Expeditions, Mustangs, Rangers, F-150s, and Lincoln Navigators equipped with the 10R80 from at least 2017 to present ("Class Vehicles" or "Vehicles"). The Defendant knew or should have known that the Vehicles contain one or more design and/or manufacturing defects, including but not limited to defects contained in the Vehicles' 10R80, a 10-speed automatic transmission that can shift harshly and erratically, causing the vehicle to jerk, lunge, clunk, and hesitate between gears. Some consumers have even reported experiencing a sudden loss of power while driving their vehicle. A common design and/or manufacturing defect in Ford's 10R80 transmissions is a potentially life-threatening safety issue, and Ford has refused to recall or replace the defective Transmissions. Upon information and belief, and based on interactions between Plaintiffs and Ford authorized dealers, Ford refuses to replace or repair the Transmissions and merely states that the abrupt and harsh shifting is normal. At most, Ford recommends reprogramming the Powertrain or Transmission Control Modules ("PCM" or "TCM") in Class Vehicles to the default settings to address these concerns, but acknowledges that even this so-called solution "may result in firmer than normal upshifts and downshifts." Prior to purchasing or leasing the Class Vehicles, Plaintiffs and other Class Members did not know that the Class Vehicles would abruptly and harshly shift due to the Transmission Defect and cause their vehicle to unexpectedly surge, hesitate, and jerk. The Plaintiffs allege that Defendant knew or should have known that the Class Vehicles are defective and suffer from the Transmission Defect and are not fit for their intended purpose of providing consumers with safe and reliable transportation. Nevertheless, Defendant failed to disclose this defect to Plaintiffs and Class Members at the time of purchase or lease, or thereafter. Had Plaintiffs and Class Members known about the Transmission Defect at the time of sale or lease, as well as the associated costs related to the Transmission Defect, Plaintiffs and the Class Members would not have purchased the Class Vehicles or would have paid less for them. As a result of their reliance on Defendant's omissions and/or misrepresentations, Plaintiffs and other owners and/or lessees of the Class Vehicles have suffered ascertainable loss of money, property, and/or loss in value of their Class Vehicles, says the complaint. The Plaintiffs purchased the Class Vehicles. Ford has designed, manufactured, advertised, sold, and leased its vehicles for decades.[BN] The Plaintiff is represented by: David F. Miceli, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC Post Office Box 2519 Carrollton, GA 30112 Phone: 404-915-8886 Email: dmiceli@milberg.com - and - Leland Belew, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Phone: 865-247-0080 Fax: 865-522-0049 Email: lbelew@milberg.com - and - Gregory F. Coleman, Esq. Ryan P. McMillan, Esq. Virginia A. Whitener, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Phone: 865-247-0080 Fax: 865-522-0049 Email: gcoleman@milberg.com rmcmillan@milberg.com gwhitener@milberg.com - and - Mitchell Breit, Esq. Tyler Litke, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 405 E. 50th Street New York, NY 10022 Phone: 630-796-0903 Email: mbreit@milberg.com tlitke@milberg.com - and - John R. Fabry, Esq. THE CARLSON LAW FIRM, P.C. 1717 N. Interstate Highway 35, Suite 305 Round Rock, TX 78664 Phone: 512-671-7277 Fax: 512-238-0275 Email: JFabry@carlsonattorneys.com - and - Sidney F. Robert, Esq. BRENT COON AND ASSOCIATES 300 Fannin, Suite 200 Houston, TX 77002 Phone: 713-225-1682 Fax: 713-225-1785 Email: sidney.robert@bcoonlaw.com - and - Mark R. Miller, Esq. WALLACE MILLER LLP 150 N. Wacker Dr., Suite 1100 Chicago, IL 60606 Phone: 312-589-6280 Fax: 312-275-8174 Email: mrm@wallacemiller.com GENERAL MOTORS: Summary Judgment Bid in Vita Suit Granted in Part ----------------------------------------------------------------- In the case, DENNIS VITA and FXR CONSTRUCTION, INC., individually and on behalf of all others similarly situated, Plaintiffs v. GENERAL MOTORS, LLC, Defendant, Case No. 20-CV-01032 (JMA) (ARL) (E.D.N.Y.), Judge Joan M. Azrack of the U.S. District Court for the Eastern District of New York grants in part and denies in part GM's motion for summary judgment. Plaintiffs Vita and FXR bring the putative class action against GM on behalf of themselves and other similarly situated consumers who purchased or leased certain GM vehicles for the model years 2010 through 2014 that suffered from an alleged engine defect. They assert the following claims against GM: (i) violation of the Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. Sections 2301, et seq.; (ii) violation of N.Y. General Business Law Section 349; (iii) breach of express warranty under N.Y. U.C.C. Sections 2-313, 2-a-210; (iv) breach of implied warranty under N.Y. U.C.C. Sections 2-314, 2-a-212; (v) fraudulent omission; and (vi) unjust enrichment. On May 12, 2022, GM filed a motion summary judgment under Federal Rule of Civil Procedure 56(c). The Court referred the motion to Magistrate Judge Arlene R. Lindsay for a report and recommendation ("R&R"). In an R&R issued on Feb. 27, 2023, Magistrate Judge Lindsay recommends that the Court grants GM's motion in part. Specifically, she recommends that the Court dismisses, for lack of standing: (i) all of Vita's claims, (ii) FXR's claim for injunctive relief under Section 349, and (iii) FXR's claim for violation of the MMWA on behalf of the putative nationwide class. She also recommends that the Court grants summary judgment for GM as to FXR's claims for (i) violation of the MMWA, (ii) breach of express and implied warranties, and (iii) unjust enrichment. However, Magistrate Judge Lindsay recommends that the Court denies GM's motion as to FXR's claims for (i) fraudulent omission and (ii) violation of Section 349. GM objected to Magistrate Judge Lindsay's recommendation that the Court denies its motion in part. FXR responded to GM's objections, but neither Vita nor FXR objected to Magistrate Judge Lindsay's recommendations. Judge Azrack finds no clear error in the portions of the R&R to which there are no objections. Next, she turns to the portions of the R&R to which GM has objected. She has undertaken a de novo review of the full record and applicable law, and she agrees with Magistrate Judge Lindsay's recommendations, except with respect to the recommendation that the Court denies summary judgment on FXR's fraudulent omission claim. Judge Azrack grants summary judgment for GM on this claim. Moreover, Judge Azrack states that it is undisputed that GM did not engage in any direct transaction with FXR. GM manufactured the vehicle -- it did not sell the vehicle to FXR. GM and FXR thus sit farther apart than ordinary seller and buyer. As a result, FXR has failed to establish a relationship between it and GM that would give rise to a duty to disclose. Therefore, summary judgment for GM on FXR's fraudulent omission claim is granted. After conducting a de novo review of the full record (including the motion papers, R&R, and objections) and applicable law, Judge Azrack agrees with Magistrate Judge Lindsay's recommendations, except as set forth, and therefore adopts the R&R, as modified, as the opinion of the Court. Accordingly, GM's motion for summary judgment is granted in part and denies in part. The following claims are dismissed for lack of standing: (i) all of Vita's claims, (ii) FXR's claim for injunctive relief under Section 349, and (iii) FXR's claim for violation of the MMWA on behalf of the putative nationwide class. The motion is granted as to FXR's claims for (i) violation of the MMWA, (ii) breach of express and implied warranties, (iii) unjust enrichment, and (iv) fraudulent omission. The motion is denied as to FXR's claim for violation of Section 349. A full-text copy of the Court's June 2, 2023 Order is available at https://tinyurl.com/c5h568s9 from Leagle.com. GOOGLE LLC: Some Early Workspace Adopters' Claims Dismissed ----------------------------------------------------------- Joyce E. Cutler, writing for Bloomberg Law, reports that Google LLC won dismissal of some claims in a lawsuit alleging the tech giant broke a promise to give early adopters of Google Workspace continuing free access to the suite of business applications. Judge Beth Labson Freeman of the US District Court for the Northern District of California granted Google's motion to dismiss the claim for breach of the implied covenant of good faith and fair dealing, but denied the company's motion to dismiss the breach of contract claim. [GN] HANDI-FOIL CORP: May Renew Bid to Compel All Docs in Osdoby Suit ---------------------------------------------------------------- In the case, MERRYL OSDOBY, on behalf of herself and others similarly situated, Plaintiff v. HANDI-FOIL CORP., Defendant, Case No. 22-cv-4199 (NG) (JMW) (E.D.N.Y.), Magistrate Judge James M. Wicks of the U.S. District Court for the Eastern District of New York denies the Defendant's motion to compel with leave to renew following the Plaintiff's deposition. The Defendant moved to compel all documents the Plaintiff may have sent to other manufacturers, marketers, advertisers, and/or retailers regarding their 'Made in America,' 'Made in the USA,' or similar claims or the use of the American flag in labeling and/or advertising, which is set forth in the Defendants' Request for Production No. 31 ("RFP No. 31"). Osdoby brought the case as a putative class action against the Defendant under New York General Business Law ("GBL") Sections 349, 350 seeking monetary relief for allegedly misleading/deceptive business practices and false advertising. The crux of her claims is that the Defendant is allegedly mislabeling its aluminum foil pans and containers as "Made in the USA." The Plaintiff's proposed class consists of: "All persons who purchased the Products in New York State during the applicable limitations period primarily for personal, family, or household purposes, and not for resale." The Defendant requests all communications the Plaintiff has sent, or those sent on her behalf, "to other manufacturers, marketers, advertisers, and/or retailers regarding their 'Made in America,' 'Made in the USA,' or similar claims or the use of the American flag in labeling and/or advertising. If no such Communications have been sent, please state 'None.'" It requests that the Court compels the documents or otherwise represents that no such communications exist--before her then upcoming deposition scheduled for June 7, 2023. The Plaintiff admits to having had what she characterizes as confidential settlement communications but only after filing the complaint. Therefore, she objects not only on confidentiality grounds but also on relevance grounds. She has instead offered to affirm that there have been no communications by her or on her behalf regarding "Made in the USA" prior to the filing of the complaint on July 18, 2022. First, the Defendant argues relevance because these communications are allegedly relevant to whether the Plaintiff was deceived by its marketing or was seeking out "Made in the USA" advertisers generally to make misrepresentation claims. The latter would supposedly go toward Plaintiff's credibility and honesty. However, an affidavit stating no such communications existed prior to filing of the complaint would suffice to that end, and the Plaintiff's post-complaint communications have no relevance to whether she was deceived by Defendant's marketing at the time of purchase. Second, the Defendant argues that the Plaintiff's habit of seeking out similar claims is relevant to her credibility and honesty, and thus, her adequacy as a class representative. However, Judge Wicks finds that the Plaintiff's counsel has already explained that this is the only case the Plaintiff has filed and the Defendant has not offered any non-speculative basis to assume that the post-complaint communications it seeks are relevant to the Plaintiff's adequacy as a class representative. If following the Plaintiff's June 7, 2023 deposition, it becomes apparent that communications responsive to RFP No. 31 are relevant to the parties' claims or defenses, then the parties are to meet and confer regarding their respective positions. If the parties cannot come to agreement, then the Defendant may renew their motion to compel at the status conference set for June 23, 2023. For these reasons, Judge Wicks denies the Defendant's Motion to Compel with leave to renew following the Plaintiff's deposition. Further, the Plaintiff is directed to provide the Defendant with a sworn affidavit verifying that no communications responsive to RFP No. 31 existed prior to the filing of the July 18, 2022 complaint. A full-text copy of the Court's June 2, 2023 Order is available at https://tinyurl.com/yc2ykf5j from Leagle.com. Robert L. Kraselnik, Esq. -- robert@kraselnik.com -- Law Offices of Robert L. Kraselnik, PLLC, Tuckahoe, NY, Attorney for the Plaintiff. Michael Glick, Esq. -- michael.glick@kirkland.com -- Gabrielle Belzil, Esq. -- gabi.belzil@kirkland.com -- Megan McGlynn, Esq. -- megan.mcglynn@kirkland.com -- Kirkland & Ellis LLP, Washington, DC, Attorney for the Defendant. HARU INVEST: Faces Suits as Billions in Crypto Remain Frozen ------------------------------------------------------------ crypto-news-flash.com reports that Haru Invest and Delio, two prominent crypto platforms in South Korea, have found themselves embroiled in controversy as they abruptly suspended customer withdrawals and deposits. The sudden move has prompted over 400 Haru Invest investors and 150 Delio investors to come together in a KakaoTalk group chat, preparing for potential class-action lawsuits against the crypto firms. The investors are considering charging the platforms with fraudulent activities, seeking legal assistance from the esteemed law firm LKB & Partners. Both Haru Invest and Delio offer earn services that allow users to earn yields by depositing their crypto assets on the platforms. Haru Invest boasted a maximum yield of 12 percent, while Delio offered up to 10 percent. However, Haru Invest shocked its users by suspending deposits and withdrawals, citing false information provided by its consignment operator, B&S Holdings. In response, Haru Invest has taken the matter to court, filing a criminal lawsuit against B&S Holdings. Delio, closely following Haru Invest's suspension, halted withdrawals due to market volatility exacerbated by the events surrounding Haru Invest. Allegedly, Delio had deposited a certain amount of crypto assets in Haru Invest, heightening concerns among its investors. As a result, Delio plans to hold an investors' meeting to address the situation and discuss possible means of recovering investments. Delio CEO Jung Sang-ho expressed his sincere apologies to investors who had trusted the platform, vowing to provide a transparent account of the current situation and explore viable avenues for recouping investments. The developments have created a wave of uncertainty in the South Korean crypto market, given the significant trading volumes amounting to billions of dollars that flow through various crypto platforms in the country on a daily basis.[GN] HARVARD MEDICAL: Faces Class Suit Over Mishandling of Human Remains ------------------------------------------------------------------- CNN reports that families affected by the Harvard morgue manager who allegedly stole, sold and shipped human remains that were donated to the university for medical research have filed a class action lawsuit against the manager along with the university's president and fellows, according to a court filing. "We started hearing from the families of loved ones who selflessly donated their bodies to science before they died," Jonathan Sweet of the Keches Law Group said at a news conference on June 16. "In doing so, a trust was formed." "This case is about an alleged breach of that trust, which has come to light in a very unfortunate way," Sweet said. The lawsuit, which was filed in Massachusetts' Suffolk County Superior Court, states that the law entitles people to be "treated with decency and dignity after death including by not having their bodies mishandled, viewed, dismembered, and/or sold by those entrusted with them." When reached by email, Harvard Medical School said they could not comment on pending litigation. The lawsuit alleges Harvard and morgue manager Cedric Lodge breached their duty of care and were negligent when they failed to take reasonable steps "to ensure that the cadavers were properly handled and maintained for their intended purpose of scientific study and not improperly mishandled, dissected, and/or sold to third parties." CNN's attempts to reach Lodge for comment have been unsuccessful. "This case is about getting to the truth about what happened there," Sweet said on June 16. He added the goal of the class action lawsuit is to find out how the scheme could continue for such a long period of time and how it could happen with apparently minimal oversight. Another attorney with Keches Law Group, Jeffrey Catalano, noted these families had "already been traumatized" by the passing of their loved one. "So, to have this happen is retraumatizing and the calls we're getting are heartbreaking," he said. The lawsuit seeks monetary damages "for the severe emotional distress" caused by the defendants in the case. Sweet told reporters he believes Harvard mishandled somewhere between 350 and 400 cadavers and Lodge was involved in the scheme for several years. [GN] HC FORKLIFT: Morris Sues Over Employment Racial Discrimination -------------------------------------------------------------- EDDRENA MORRIS, JERMAINE GRIFFITH, KAHLITA BOULWARE, and the Class they seek to represent, Plaintiffs v. HC FORKLIFT AMERICA CORPORATION, a Domestic Profit Company d/b/a HC FORKLIFT, Defendant, Case No. 3:23-cv-00327 (W.D.N.C., June 2, 2023) is an action brought pursuant to the Civil Rights Act of 1866 for racial discrimination and seeks to recover front pay, back pay, compensatory damages, damages for mental anguish and emotional distress, pain and suffering, punitive damages, injunctive relief, equitable relief, reasonable attorneys' fees and costs and any other relief. The Plaintiffs assert that they are among the 50 African-American/Black applicants who applied and/or were interviewed for employment with Defendant but were not hired or considered based on their race. HC Forklift America Corporation is a material handling equipment supplier in Charlotte, North Carolina.[BN] The Plaintiffs are represented by: Jean Martin, Esq. MORGAN & MORGAN, P.A. 201 N Franklin St., 7th Floor Tampa, FL 33602 Telephone: (813) 559-4908 E-mail: jeanmartin@forthepeople.com - and - James J. Henson, Esq. Matthew R. Gunter, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Avenue, Suite 1600 Orlando, FL 32802 Telephone: (407) 428-6241 Facsimile: (407) 245-3342 E-mail: jjhenson@forthepeople.com mgunter@forthepeople.com HERTZ SYSTEM: Caban Sues Over Unlawful Collection of Debt --------------------------------------------------------- Emilio Caban, individually and on behalf of all those similarly situated v. HERTZ SYSTEM, INC., Case No. CACE-23-014605 (Fla., 17th Jducial Ct., Broward Cty., June 13, 2023), is brought against the Defendants for violations of the Florida Consumer Collection Practices Act ("FCCPA") by an unlawful collection of debt due to sending the communication between a time zone without prior consent. On a date better known by the Defendant, the Defendant began attempting to collect a debt (the "Consumer Debt") from the Plaintiff. The Consumer Debt is an obligation allegedly had by the Plaintiff to pay money arising from a transaction between the creditor of the Consumer Debt, the Defendant, and the Plaintiff (the "Subject Service"). The Plaintiff is the alleged debtor of the Consumer Debt. The Subject Service was primarily for personal, family, or household purposes. The FCCPA prohibits persons from communicating with a debtor between the hours of 9:00 PM and 8:00 AM in the debtor's time zone without the prior consent of the debtor. On June 11, 2023, the Defendant sent an electronic mail communication to the Plaintiff (the "Communication"). The Communication was a communication in connection with the collection of the Consumer Debt. The Communication was sent from fnbo@service.fnbo.com delivered to the Plaintiff's personal e-mail address. The Communication was sent by the Defendant to the Plaintiff at 6:29:00 AM EDT in the Plaintiffs zone. The Communication was received by the Plaintiff from the Defendant at 6:29:00 AM in Plaintiff's zone in violation of the FCCPA, says the complaint. The Plaintiff is a natural person, and a citizen of the State of Florida, residing in Broward County, Florida. The Defendant is a Delaware Corporation, with its principal place of business located in Estero, Florida.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Jennifer G. Simil, Esq. Shannon E. Gilvev, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th St., Suite 1744 Fort Lauderdale, FL 33301 Phone: (954) 907-1136 Email: jibrael@jibraellaw.com jen@jibraellaw.com shannon@jibraellaw.com HOLBROOK PIZZA COMPANY: Kuhn Files Suit in Mass. Super. Ct. ----------------------------------------------------------- A class action lawsuit has been filed against Holbrook Pizza Company, Inc. The case is styled as Katelyn Kuhn, Brian Kingham, on behalf of Themselves and all other employees similarly situated v. Holbrook Pizza Company Inc., South Pie Company Inc., Canton Pie Company Inc., East Pie Company Inc., Ben Halil Gozalici, Case No. 2382CV00536 (Mass. Super. Ct., Norfolk Cty., June 12, 2023). The case type is stated as "Contract/Business Cases." Holbrook Pizza Company Inc., doing business as Holbrook House Of Pizza -- https://www.holbrookhousepizza.com/ -- is a pizza restaurant located in Holbrook, Massachusetts.[BN] The Plaintiffs are represented by: Benjamin K. Steffans, Esq. Kathryne D. Masson, Esq. Kevin John McCullough, Esq. THE EMPLOYMENT LAW FIRM 10 Wendell Ave., Ext., Suite 208 Pittsfield, MA 01201 HOUSING AUTHORITY: Cannady Suit Removed to C.D. California ---------------------------------------------------------- The case styled as William K. Cannady, individually, and on behalf of all others similarly situated v. Housing Authority of the City of Los Angeles, Does 1 through 100, inclusive, Case No. 23STCV10094 was removed from the Los Angeles County Superior Court, to the U.S. District Court for the Central District of California on June 12, 2023. The District Court Clerk assigned Case No. 2:23-cv-04614-JFW-E to the proceeding. The nature of suit is stated as Other Personal Property. The Housing Authority of the City of Los Angeles -- http://www.hacla.org/en-- is a state-chartered public agency.[BN] The Plaintiffs are represented by: Molly Munson Cherala, Esq. Laura Grace Van Note, Esq. Scott Edward Cole, Esq. COLE AND VAN NOTE 555 12th Street Suite 1725 Oakland, CA 94607 Phone: (510) 891-9800 Fax: (510) 891-7030 Email: lvn@colevannote.com sec@colevannote.com The Defendants is represented by: Danielle E. Stierna, Esq. Brant H. Dveirin, Esq. Jon P. Kardassakis, Esq. LEWIS BRISBOIS BISGAARD AND SMITH LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Phone: (213) 250-1800 Fax: (213) 250-7900 Email: danielle.stierna@lewisbrisbois.com brant.dveirin@lewisbrisbois.com jon.kardassakis@lewisbrisbois.com JBS SA: Agrees to Settle Beef Antitrust Class Action for $25-Mil. ----------------------------------------------------------------- competitionpolicyinternational.com reports that JBS S.A. and three of its US-based subsidiaries have agreed to pay $25 million in a class action antitrust lawsuit filed by Commercial and Institutional Indirect Purchaser Plaintiffs, as announced by the United States District Court for the District of Minnesota on June 15. The court has made an announcement stating that if one has bought boxed or case-ready beef processed from fed cattle between January 1, 2015, and May 25, 2023, for commercial use in food preparation in the United States, except for ground beef made solely from culled cows, their rights may be impacted by a class action settlement. According to the plaintiffs, JBS and its co-conspirators intentionally restricted the beef supply and established fixed prices for beef sold to Settlement Class members, beginning on or before Jan. 1, 2015. [GN] KNOX COUNTY, TN: Day v. Sheriff Tossed for Failure to State a Claim ------------------------------------------------------------------- In the case, STEVEN DAY, Plaintiff v. KNOX COUNTY SHERIFF OFFICE, et al., Defendants, Case No. 3:23-CV-63-DCLC-JEM (E.D. Tenn.), Judge Clifton L. Corker of the U.S. District Court for the Eastern District of Tennessee, Knoxville, dismisses the action for failure to state a claim. The Plaintiff, along with approximately two dozen other inmates, attempted to proceed in a class action lawsuit under 42 U.S.C. Section 1983 against various officials at the Knox County Detention Facility. The Court entered an Order advising the inmates that they could not proceed jointly and providing each an opportunity to file an individual complaint and submit the filing fee or a motion to proceed in forma pauperis. After the Plaintiff submitted a motion to proceed in forma pauperis and a supplemental complaint, the remaining inmates were dismissed or severed from the civil action number, leaving the Plaintiff as the sole plaintiff in the action. On May 17, 2023, the Court entered an Order screening the Plaintiff's complaint and providing him 14 days to file an amended complaint. It specifically warned the Plaintiff that if he does not file an amended complaint by the deadline, the Court will dismiss his complaint for failure to state a claim upon which Section 1983 relief may be granted and for failure to comply with an Order of the Court". The deadline has passed, and the Plaintiff has not filed an amended complaint or otherwise communicated with the Court. In fact, a previous Order was returned as undeliverable due to the Plaintiff's release from the Knox County Detention Facility. The Court examines four factors when considering dismissal under Fed. R. Civ. P. 41(b): (1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. Judge Corker first finds that the Plaintiff's failure to timely comply with the Court's Order was due to his willfulness or fault, as he did not receive the Order due to his failure to keep the Court apprised of his address as required by the Court's local rules and its prior orders. Second, he finds that the Plaintiff's failure to comply with the Court's Order has not prejudiced the Defendants, as they have not yet been served with process. Third, the Plaintiff was expressly warned that failure to keep his address updated could result in the dismissal of the case. Finally, Judge Corker concludes that alternative sanctions are not warranted, as the Plaintiff was proceeding pro se and in forma pauperis in the action. Moreover, while pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer. The Plaintiff's pro se status did not prevent him from complying with the Court's Order, and his pro se status does not mitigate the balancing of factors under Rule 41(b). Accordingly, Judge Corker dismisses the action for failure to state a claim upon which Section 1983 relief may be granted and pursuant to Rule 41 of the Federal Rules of Civil Procedure. Finally, he certifies that any appeal from the action would not be taken in good faith and would be totally frivolous. An appropriate judgment order will be entered. A full-text copy of the Court's June 2, 2023 Memorandum Opinion is available at https://tinyurl.com/wyvnabcr from Leagle.com. LAND O'LAKES: Jimenez Suit Removed to C.D. California ----------------------------------------------------- The case captioned as Jose Louie Jimenez III, individually, and on behalf of all others similarly situated v. LAND O'LAKES, INC., a Minnesota corporation, and DOES 1 through 10, inclusive, Case No. VCU297157 was removed from the Superior Court of the State of California for the County of Tulare, to the United States District Court for the Eastern District of California on June 12, 2023, and assigned Case No. 1:23-at-00505. The Complaint alleges claims for: failure to pay minimum wages; failure to pay overtime compensation; failure to provide meal periods; failure to authorize and permit rest breaks; failure to indemnify necessary business expenses; failure to timely pay final wages at termination; failure to provide accurate itemized wage statements; and unfair business practices. The Complaint does not expressly enumerate any claim under federal law and omits that the terms and conditions of Plaintiff's employment were subject to a Collective Bargaining Agreement ("CBA").[BN] The Defendant is represented by: Joan B. Tucker Fife, Esq. WINSTON & STRAWN LLP 101 California Street, 35th Floor San Francisco, CA 94111 Phone: (415) 591-1000 Facsimile: (415) 591-1400 Email: jfife@winston.com - and - Caitlin W. Tran, Esq. WINSTON & STRAWN LLP 333 South Grand Avenue, Suite 3800 Los Angeles, CA 90071 Phone: (213) 615-1700 Facsimile: (213) 615-1750 Email: cwtran@winston.com LEXISNEXIS RISK: FCRA Suit Filed in W.D. North Carolina ------------------------------------------------------- A class action lawsuit has been filed against LexisNexis Risk Solutions, Inc., et al. The case is styled as John Doe, on behalf of himself and others similarly situated v. LexisNexis Risk Solutions, Inc., Seisint Decision Services, Inc., Reed Elsevier Technology Services, Inc., Case No. 3:23-cv-00346 (W.D.N.C., June 12, 2023). The lawsuit is brought over alleged violation of the Fair Credit Reporting Act. LexisNexis Risk Solutions -- https://risk.lexisnexis.com/ -- is a global data and analytics company that provides data and technology services, analytics, predictive insights and fraud prevention for a wide range of industries.[BN] The Plaintiff is represented by: Karl S. Gwaltney, Esq. MAGINNIS LAW, PLLC 4801 Glenwood Avenue, Suite 310 Raleigh, NC 27612 Phone: (919) 960-1545 Fax: (919) 882-8763 Email: kgwaltney@maginnislaw.com LIFEMD INC: Brown Sues Over Unsolicited Telemarketing Calls ----------------------------------------------------------- STEVEN BROWN, individually and on behalf of all others similarly situated, Plaintiff v. LIFEMD, INC. d/b/a REX MD, Defendant, Case No. 1:23-cv-04691-PGG (S.D.N.Y., June 2, 2023) seeks to secure redress for Defendant's violations of the Telephone Consumer Protection Act. The Defendant is an online retailer of male sexual enhancement products. To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers, including Plaintiff, in the process, says the suit. Through this action, Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com LUXURY LIGHTING: Bradshaw Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Luxury Lighting, Inc. The case is styled as Garfield Bradshaw, on behalf of himself and all others similarly situated v. Luxury Lighting, Inc., Case No. 1:23-cv-04901 (S.D.N.Y., June 12, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Luxury Lighting -- https://www.luxurylightingny.com/ -- is an online marketplace for different types of lighting products.[BN] The Plaintiff is represented by: Andre Autz, Esq. NACMIAS LAW FIRM PLLC 940 Atlantic Avenue, 1st Floor Brooklyn, NY 11238 Phone: (917) 602-6057 Email: andreautzesq@gmail.com MANAGED CARE: Anson Sues Over Recent Cyberattack ------------------------------------------------ John Anson, on behalf of himself individually and on behalf of all others similarly situated v. MANAGED CARE OF NORTH AMERICA INC., d/b/a MCNA DENTAL, Case No. 0:23-cv-61139-RS (S.D. Fla., June 13, 2023), is brought arising from a recent cyberattack resulting in a data breach of sensitive information in the possession and custody and/or control of Defendant (the "Data Breach"). The Data Breach resulted in unauthorized disclosure, exfiltration, and theft of consumers' highly personal information, including names, Social Security numbers, dates of birth, addresses, driver's license or government issued identification number, telephone number, email address ("personally identifying information" or "PII"), and health insurance information including name of plan and payor, member/Medicaid/Medicare ID number, plan and group number, and records regarding dental and orthodontic care ("protected health information" or "PHI"). Plaintiff refers to both PII and PHI collectively as "Sensitive Information." MCNA's breach differs from typical data breaches because it affects consumers who had no relationship with MCNA, never sought one, and never consented to MCNA collecting and storing their information. MCNA sourced their information from third parties, stored it on MCNA's systems, and assumed a duty to protect it, advertising that "one of its strengths is its ability to administer dental plans in an effective and innovative manner while safeguarding its members' protected health information. But MCNA never implemented the security safeguards needed despite acknowledging their importance. The Data Breach occurred between February 26, 2023, and March 7, 2023. MCNA did not become aware of suspicious activity on its network until March 6, 2023, nine days after the Data Breach had first begun and at least one day before the Breach would finally cease. On May 26, 2023, MCNA finally notified state many Class Members about the widespread Data Breach ("Notice Letter"). However, MCNA has not completed notification of Class Members and continues to do so. MCNA waited three months before informing Class Members even though Plaintiff and approximately 8,923,662 Class Members had their most sensitive personal information accessed, exfiltrated, and stolen, causing them to suffer ascertainable losses in the form of the loss of the benefit of their bargain and the value of their time reasonably incurred to remedy or mitigate the effects of the attack. MCNA Breach Notice obfuscated the nature of the breach and the threat it posted--refusing to tell its consumers how many people were impacted, how the breach happened, or why it took MCNA three months to begin notifying victims that hackers had gained access to highly private Sensitive Information. The Defendant's failure to timely detect and report the Data Breach made its consumers vulnerable to identity theft without any warnings to monitor their financial accounts or credit reports to prevent unauthorized use of their Sensitive Information. The Defendant knew or should have known that each victim of the Data Breach deserved prompt and efficient notice of the Data Breach and assistance in mitigating the effects of PII and PHI misuse. In failing to adequately protect Plaintiff's and the Class's Sensitive Information, failing to adequately notify them about the breach, and by obfuscating the nature of the breach, the Defendant violated state and federal law and harmed an unknown number of its consumers. The Plaintiff and members of the proposed Class are victims of Defendant's negligence and inadequate cyber security measures. Specifically, Plaintiff and members of the proposed Class trusted Defendant with their Sensitive Information. But Defendant betrayed that trust. Defendant failed to properly use up-to-date security practices to prevent the Data Breach, says the complaint. The Plaintiff John Anson is a Data Breach victim. MCNA Dental is the largest dental insurer in the United States for government-sponsored Medicare/Medicaid and Children's Health Insurance Program (CHIP), with over five million members across eight states.[BN] The Plaintiff is represented by: Joseph Osborne, Esq. J. Robert Bell III, Esq. OSBORNE & FRANCIS PLLC 925 S. Federal Highway, Suite 175 Boca Raton, FL 33432 Phone: 561.293.2600 Fax: 561.923.8100 Email: josborne@realtoughlawyers.com rbell@realtoughlawyers.com - and - Samuel J. Strauss, Esq. Raina Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson Street, Suite 201 Madison, WI 53703 Phone: (608) 237-1775 Facsimile: (608) 509-4423 Email: sam@turkestrauss.com raina@turkestrauss.com - and - J. Gerard Stranch IV, Esq. Andrew Mize, Esq. STRANCH, JENNINGS & GARVEY, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Phone: (615) 254-8801 Email: gstranch@stranchlaw.com amize@stranchlaw.com - and - Lynn A. Toops, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Phone: (317) 636-6481 Email: ltoops@cohenandmalad.com MANAGED CARE: Emerson Firm Investigates Data Breach Claims ---------------------------------------------------------- investorsobserver.com reports that the Emerson Firm, PLLC ("Emerson") a law firm based in Houston, TX is investigating the data breach at Managed Care North America ("MCNA"). This investigation relates to the theft of sensitive personal identifiable information ("PII") of up to 9 million patients. MCNA is the nation's largest dental insurer for government subsidized Medicaid and Children's Health Insurance Programs, meaning that many insureds are low-income or belong to other vulnerable populations. Reports also indicate that children's personal data was accessed during the breach. It has been reported that hackers gained unauthorized access to MCNA Dental's computer network on Feb. 26, 2023, and stole a hoard of sensitive personal data. A ransomware group, LockBit, publicly claimed responsibility for the attack and demanded $10 million. The cybercriminals published stolen files on a dark web page in April when the ransom was not paid. Emerson is a law firm specializing in results, integrity, and personal service. Emerson represents consumers throughout the nation and has significant data breach class action experience with proven results. Emerson lawyers have devoted their practice to complex commercial litigation for more than forty years and have recovered over one billion dollars for consumers in class actions throughout the United States. IMPORTANT: If you believe that you were affected by the MCNA data breach AND you received a Notice letter from MCNA, please contact us immediately to protect your rights. It makes no difference what state you reside in. Contact plaintiff's counsel via e-mail to John G. Emerson at jemerson@emersonfirm.com and see additional information on our website at https://eclassactions.com/enzo-biochem-data-breach-3033/[GN] MANITOULIN ISLAND, ON: Settlements Halt Lawsuit Filed by Survivors ------------------------------------------------------------------ Jenny Lamothe at sudbury.com reports that a class action suit brought by sexual abuse survivors on Manitoulin Island has been discontinued, with each of the 29 suit members settling individually. The $100-million suit was filed against the Jesuit Fathers of Upper Canada, also known as the English Canada Province, as well as the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie, the Roman Catholic Bishop of Sault Ste. Marie, the estate of father George Epoch and the estate of Brother O'Meare. The class action, filed by plaintiffs known only as I.P. and M.P. in 2015 was proposed on behalf of "all persons who were abused as children by clergy or staff of the Holy Cross Mission in Wikwemikong, as well as all parents, spouses, children and siblings of the abused persons above." The individual settlements were not disclosed to the court. The statement of claim was issued at that time, seeking "in excess of $50 million in general damages and special damages in excess of $50 million." In that statement, another Jesuit priest is included: Brother Hinton. The court documents state his whereabouts, or if he's even still alive, is unknown. I.P. alleges they were sexually abused by Father Epoch during the priest's time serving the communities in and around Wikwemikong from 1959 to 1963, 1969 to 1971, and 1983 to 1986. M.P. alleges that Brother O'Meare sexually abused them as well as child members of the church from 1950 and 1960. It is alleged that Brother Hinton sexually abused child members of the church from 1963 to 1970, though no specific name is attached to the claim. The motion for discontinuance of the class action suit was filed by Michael Troy of Merchant Law Group, and the decision made by Justice Paul Perell. The decision states that from the time of the claim until 2019, the pleadings were completed, but no progress was made in the proposed class action. "Putative Class Council (Merchant Law) has never moved to have the action set down for a certified motion." In 2019, then-Chief Duke Peltier and Senior Policy Analyst Sandra Wabegijig of Wiikwemkoong Unceded Territory approached counsel for the Jesuit Fathers of Upper Canada and asked that the claim be resolved by an informal process "that would be fair and not re-traumatize and re-victimize the putative Class Members." As a result, class members were encouraged to pursue their claims individually, and that compensation would be negotiated in accordance with the awards made in the Federal Day School Settlement, which was a class action similar to the Indian Residential Schools Class Action. As such, I.P. and M.P. as well as 27 other class members retained the Merchant Law Group to act in "individual actions," though the decision reads that these settlements were "without court approval," and resulted in the class action being "abandoned." Each class member underwent a credibility assessment and 25 were "examined for discovery." In his decision to discontinue the class action suit, Perell states that the proposed action class was not "commenced for improper purpose," but also states he has no way to determine whether the 27 members who settled were influenced by the abandonment of the claim. He said without analysis of the settlement, he cannot rule out collusion or champerty — an agreement in which a person with no previous interest in a lawsuit finances it with a view to sharing the disputed property if the suit succeeds. He believes the commencement of the class action was "ultimately used as a means to recruit clients." "It may be that the negotiated settlements and the fees are reasonable and in the best interests of the putative class members who settled, but I cannot conclude that based on the information proffered on this discontinuance motion," wrote Perell. His decision goes on to recommend that anyone that is not among those who settled should seek legal advice outside of Merchant Law Group, but notes that as the class action was clearly discussed in the community, and no other survivors contacted the law firm, that there are likely no more filings to come. Perell stated in his decision that he does not feel the legal test for approval of a discontinuance has been met, "the dilemma is that refusing a discontinuance is futile," in that there is no longer representative plaintiffs willing to represent the class members, as I.P. and M.P. had previous to their individual settlements. You can read the full decision here, which notes recommendations for any possible survivors and those with questions. [GN] MDL 3014: Roberts Suit Consolidated in CPAP Product Liability Row ----------------------------------------------------------------- In the MDL "In Re: Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator Products Liability Litigation," MDL No. 3014, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers the case docketed as "Roberts v. Philips Respironics, Inc., et al.," (C.A. No. 1:23−00201, D.N.M.) to the Western District of Pennsylvania, and, with the consent of that court, assigned to the Honorable Joy Flowers Conti for coordinated or consolidated pretrial proceedings. Philips RS North America LLC and Philips North America LLC moved to transfer the Roberts action to the Western District of Pennsylvania for inclusion in MDL No. 3014. Plaintiff opposed the motion. Defendants argued that Roberts shares factual questions with the actions pending in the MDL because plaintiff alleges that the Continuous Positive Airway Pressure (CPAP) device at issue in his complaint was the subject of Philips' recall of certain CPAP, Bi-Level Positive Airway Pressure (Bi-Level PAP) and mechanical ventilator devices on June 14, 2021. But plaintiff's complaint provides no specifics as to his alleged injury or how it was caused by the device at issue. Indeed, the complaint does not even refer to the recall, but alleges only that plaintiff suffered an unspecified personal injury caused by a defective "DreamStation" CPAP device and that defendants have failed to replace the allegedly defective device. These allegations, standing alone, are insufficient to warrant transfer. The MDL encompasses claims of injury and economic loss allegedly caused by a specific defect that was the subject of the recall, namely, that the device contained polyester-based polyurethane (PE-PUR) sound abatement foam that may degrade into particles or off-gas volatile organic compounds that may then be ingested or inhaled by the user, causing injury. To fall within the scope of this MDL, plaintiff must allege that his injuries were caused by the defect that is the subject of the recall. The Plaintiff argued only that subject matter jurisdiction over his action is lacking and that his action should be remanded to state court. After considering the parties' arguments, the panel finds that Roberts involves common questions of fact with the actions transferred to MDL No. 3014. The Western District of Pennsylvania was an appropriate Section 1407 forum for actions sharing factual questions arising from Philips' recall of certain CPAP, Bi-Level PAP, and mechanical ventilator devices on June 14, 2021. The recalled devices allegedly contain PE-PUR sound abatement foam that may degrade into particles or off-gas volatile organic compounds that may then be ingested or inhaled by the user, causing injury. As discussed, plaintiff alleges that he suffered physical and economic injury caused by the defect at issue in the Recall. A full-text copy of the court's June 2, 2023 order is available at https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3014-Transfer_Order-5-23.pdf MDL 3044: 'Grandis' Consolidated in Exactech Product Liability Row ------------------------------------------------------------------ In the multi-district litigation styled as "IN RE: EXACTECH POLYETHYLENE ORTHOPEDIC PRODUCTS LIABILITY LITIGATION", MDL No. 3044, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers the case captioned "Grandis, et al. v. Exactech, US, Inc., et al." (C.A. No. 5:23-00274, N.D. Ohio) to the U.S. District Court for the Eastern District of New York and, with the consent of that court, assigned to Judge Nicholas G. Garaufis for inclusion in coordinated or consolidated pretrial proceedings. The panel find that the Grandis action involves common questions of fact with the actions previously transferred to MDL No. 3044, and that transfer under 28 U.S.C. Section 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Specifically, the actions share factual questions arising from allegations concerning the design, manufacture, testing, marketing, packaging, and performance of the polyethylene components of certain Exactech devices. Plaintiffs allege that oxidation of the polyethylene used in the Exactech hip, knee, and ankle devices (sold under the names Connexion GXL, Optetrak and Truliant, and Vantage, respectively)) causes inflammatory responses when implanted, generates polyethylene debris, crack, and loosen the device, all of which in turn requires revision surgery. Grandis falls within the MDL's ambit because Plaintiffs' claims arise from multiple knee replacement surgeries in which Ms. Grandis received Exactech knee replacement devices (specifically Optetrak and Truliant devices), notes the panel. Moreover, the Plaintiffs' allegations against the Defendants are somewhat intertwined, which weighs in favor of transfer. Plaintiffs notably allege that Dr. Gardisar and other Crystal Clinic physicians had financial ties and consulting relationships with Exactech. Whether the Exactech implants were defective also may be at issue in certain claims against Dr. Gardisar and Crystal Clinic because plaintiffs allege that defendants knew or should have known that the Exactech devices implanted in plaintiffs were defective, adds the panel. A full-text copy of the court's June 2, 2023 order is available at https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3044-Transfer_Order-5-23.pdf MDL 3052: Three Suits Consolidated in Kia Hyundai Vehicle Theft Row ------------------------------------------------------------------- In the multi-district action captioned "In re: Kia Hyundai Vehicle Theft Marketing, Sales Practices, and Products Liability Litigation," MDL No. 3052, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation, transfers one case each from U.S. District Court for the Southern District of Ohio, Western District of Washington and the Eastern District of Wisconsin all to the Central District of California and, with the consent of that court, assigned to Judge James V. Selna for inclusion in coordinated or consolidated pretrial proceedings. Plaintiffs in the three public nuisance actions are cities that allege that they wrongfully had to expend public resources to ameliorate the alleged nuisance caused by the widespread theft of Hyundai and Kia vehicles in their city. They argue that vehicles without immobilizer technology are particularly susceptible to being stolen. The vehicles at issue in MDL No. 3052 include 2011-2022 Kia vehicles and 2015-2022 Hyundai vehicles that were equipped with traditional "insert-and-turn" steel key ignition systems. After considering the argument of counsel, the panel held that the three actions involve common questions of fact and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Moreover, the Central District of California is an appropriate forum for actions sharing factual questions concerning allegations that certain Kia and Hyundai branded vehicles are defective because the cars lack engine immobilizer technology. Such technology prevents cars from being started unless a code is transmitted from a unique smart key. The panel further held that, transferring these three governmental actions to the MDL provides the most efficient route to the resolution of this litigation. Absent transfer, the actions will proceed before three separate judges in three districts, and the parties will need to voluntarily coordinate matters like common discovery and pretrial motion practice on an ad hoc basis with the five governmental entity actions brought by the cities of Cleveland, Cincinnati, Madison, Buffalo, and Rochester that already are pending in the MDL because plaintiffs filed their cases directly in the transferee district. While defendants are correct that public nuisance claims may vary in important ways from state to state and that some cities may have more viable claims than others, "[t]he presence of differing legal theories is outweighed when the underlying actions, such as the actions here, arise from a common factual core," adds the panel. A full-text copy of the court's April 7, 2023 order is available at https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3052-Transfer_Order-5-23.pdf MDL 3073: Related T-Mobile 2022 Data Breach Suits Moved to W.D. Mo. ------------------------------------------------------------------- In the case, IN RE: T-MOBILE 2022 CUSTOMER DATA SECURITY BREACH LITIGATION, MDL No. 3073 (JPML), Judge Karen K. Caldwell of the U.S. Judicial Panel on Multidistrict Litigation transfers the actions listed on Schedule A and pending outside the Western District of Missouri to the U.S. District Court for the Western District of Missouri. The Plaintiff in the Western District of Washington Clark action moves under 28 U.S.C. Section 1407 to centralize the litigation in the Western District of Washington or, alternatively, the Western District of Missouri. The litigation consists of 11 actions pending in eight districts, as listed on Schedule A. Since the filing of the motion, the Panel has been notified of five related actions. All responding Plaintiffs support centralization, but there is some disagreement on the transferee district. The Plaintiffs in five actions support centralization in the Western District of Washington. The Plaintiff in one action supports centralization in the Western District of Missouri or, alternatively, the District of Kansas. The Plaintiff in one action requests centralization in the District of Kansas or, alternatively, the Western District of Missouri, and represents that the Plaintiffs in four other actions also support centralization in the District of Kansas. The Plaintiffs in two actions request centralization in the Southern District of California or another California district. Defendants T-Mobile US, Inc., and T-Mobile USA, Inc. (T-Mobile), oppose centralization or, alternatively, support the Western District of Missouri or the District of Kansas as the transferee district. Based on the papers filed and the hearing session held, Judge Caldwell finds that these actions involve common questions of fact and that centralization in the Western District of Missouri will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. She says these putative class actions share complex factual questions arising from T-Mobile's announcement on Jan. 19, 2023, that a data security breach of its network occurred in late 2022 in which an unauthorized actor accessed and acquired files on its network, including personally identifiable information of 37 million current and former customers. Common factual questions will include: T-Mobile's data security practices and whether those practices met industry standards, how the unauthorized actor obtained access to T-Mobile's system, the extent of the personal information affected by the breach, and when T-Mobile knew or should have known of the breach. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. T-Mobile principally objects to centralization on grounds that anticipated motions to compel arbitration in each action may make centralization unnecessary. But the outcome of these anticipated motions in 11 different courts is not certain, and indeed, an assessment of the litigation's merits is beyond the Panel's authority. Judge Caldwell concludes that centralization at this time best serves the just and efficient conduct of the litigation. Though the motions to compel arbitration may differ as to the way each customer agreed to arbitrate claims and whether they opted out, these inquiries and the accompanying discovery appear to involve some overlapping issues. Having a single judge oversee discovery regarding arbitration and decide the motions in a coordinated fashion, therefore, can provide efficiencies and allow any remaining actions to move forward together. The Western District of Missouri is an appropriate transferee district for the litigation. The district is supported by the Defendants and some plaintiffs, including movant. The Honorable Brian C. Wimes is presiding over MDL No. 3019 -- In re T-Mobile Customer Data Security Breach Litigation, which involves allegations regarding a separate data breach of T-Mobile's systems in 2021. Judge Wimes, therefore, is familiar with many of the relevant issues in this similar litigation. He has ably steered that litigation, which is nearing a resolution. Furthermore, this district provides a central and easily accessible location for this nationwide litigation. For these reasons, Judge Caldwell transfers the actions listed on Schedule A and pending outside the Western District of Missouri to the Western District of Missouri, and with the consent of that court, assigned to the Honorable Brian C. Wimes for coordinated or consolidated pretrial proceedings. IN RE: T-MOBILE 2022 CUSTOMER DATA SECURITY BREACH LITIGATION MDL No. 3073, SCHEDULE A: * Central District of California: BAUGHMAN v. T-MOBILE US, INC., C.A. No. 2:23-00477; MUNOZ v. T-MOBILE US, INC., ET AL., C.A. No. 2:23-00766; * Northern District of California: HART v. T-MOBILE U.S. INC., C.A. No. 3:23-00436; * Northern District of Florida: CORTAZAL v. T-MOBILE US, INC., C.A. No. 3:23-01220; * District of Kansas: CORKINS, ET AL. v. T-MOBILE US, INC., C.A. No. 2:23-02031; * Western District of Missouri: LYNCH v. T-MOBILE US, INC., C.A. No. 4:23-00052; * District of New Jersey: GONZALEZ v. T-MOBILE US, INC., C.A. No. 2:23-00367; * District of South Carolina: FRIERSON v. T-MOBILE US, INC., ET AL., C.A. No. 4:23-00438; and * Western District of Washington: CLARK v. T-MOBILE US, INC., ET AL., C.A. No. 2:23-00103; FERGUSON, ET AL. v. T-MOBILE USA, INC., C.A. No. 2:23-00142; DOLLSON, ET AL. v. T-MOBILE US, INC., ET AL., C.A. No. 2:23-00172. A full-text copy of the Court's June 2, 2023 Transfer Order is available at https://tinyurl.com/53ceuab9 from Leagle.com. MERCER UNIVERISTY: Kilkus Sues Over Unprotected Personal Info ------------------------------------------------------------- JENNIFER KILKUS, on behalf of herself and all others similarly situated, Plaintiff v. THE CORPORATION OF MERCER UNIVERSITY, Defendant, Case No. 1:23-cv-02499-JPB (N.D. Ga., June 2, 2023) is a class action against the Defendant for negligence, negligence per se, breach of contract, and unjust enrichment due to the occurrence of a data breach that hacked Mercer's systems and absconded with personally identifiable information (PII) of 93,512 victims including Plaintiff. According to the complaint, the criminals accessed files that contained the PII of Dr. Kilkus and the Class. This PII included the victims' names, social security numbers, and/or driver's license numbers. Mercer discovered the hack on April 5, 2023. However, Mercer did not learn that the PII was exposed in the data breach until April 30, 2023. If Mercer had exercised reasonable diligence in its investigation, it would have learned far sooner that the PII had been exposed, says the suit. Plaintiff Kilkus, a former Mercer employee, asserts that he suffered concrete and ongoing injuries because his personally identifying and financial information has been accessed by criminals. Mercer University is a private research university that enrolls more than 9,000 students in 12 colleges and schools.[BN] The Plaintiff is represented by: Matthew R. Wilson, Esq. Jared W. Connors, Esq. MEYER WILSON CO., LPA 305 W. Nationwide Blvd. Columbus, OH 43215 Telephone: (614) 224-6000 Facsimile: (614) 224-6066 E-mail: mwilson@meyerwilson.com jconnors@meyerwilson.com - and - Samuel J. Strauss, Esq. Raina Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson St., #201 Madison, WI 53703 Telephone: (608) 237-1775 E-mail: sam@turkestrauss.com raina@turkestrauss.com MERCER UNIVERSITY: Fails to Protect Personal Info, Wang Alleges --------------------------------------------------------------- PING WANG, individually and on behalf of all others similarly situated, Plaintiff v. THE CORPORATION OF MERCER UNIVERSITY, Defendant, Case No. 5:23-cv-00193-MTT (M.D. Ga., June 1, 2023) is a class action against the Defendant for negligence, unjust enrichment, breach of implied contract, declaratory judgment, and violations of the Georgia Security Breach Notification Act and the Georgia Deceptive Practices Act. This class action seeks to redress Mercer University's alleged unlawful, willful, and wanton failure to protect the personal identifiable information of approximately 93,512 individuals that was exposed in a major data breach of Defendant's network in violation of its legal obligations. The data breach was discovered by at least April 5, 2023, when Mercer University discovered suspicious activity on its systems. Mercer University investigated the attack and confirmed that certain university files containing confidential and personal information had been accessed without authorization between February 12, 2023 and February 24, 2023, says the suit. Due to Defendant's negligence, cybercriminals obtained sensitive information that could be used to commit identity theft and wreak havoc on the financial and personal lives of tens of thousands of individuals, the suit contends. The Plaintiff is a former student of Mercer University. Mercer University is a private research university that enrolls more than 9,000 students in 12 colleges and schools.[BN] The Plaintiff is represented by: Brian P. Adams, Esq. Mary Beth Hand, Esq. ADAMS LAW FIRM 598 D.T. Walton Sr. Way Macon, GA 31201 Telephone: (478) 238-0231 E-mail: brian@brianadamslaw.com mbhand@brianadamslaw.com - and - William B. Federman, Esq. FEDERMAN & SHERWOOD 10205 N. Pennsylvania Ave. Oklahoma City, OK 73120 Telephone: (405) 235-1560 E-mail: wbf@federmanlaw.com - and - A. Brooke Murphy, Esq. MURPHY LAW FIRM 4116 Will Rogers Pkwy, Suite 700 Oklahoma City, OK 73108 Telephone: (405) 389-4989 E-mail: abm@murphylegalfirm.com MERCY HEALTH NETWORK: Harris Files Suit in S.D. Iowa ---------------------------------------------------- A class action lawsuit has been filed against Mercy Health Network, Inc. The case is styled as Tiffany Harris, on behalf of herself and all others similarly situated v. Mercy Health Network, Inc. doing business as: MercyOne Clinics, Case No. 4:23-cv-00195-RGE-HCA (S.D. Iowa, June 12, 2023). The nature of suit is stated as Other P.I. for Personal Injury. MercyOne (formerly Mercy Health Network) -- https://www.mercyone.org/ -- is a system of hospitals, clinics, and health care facilities in the U.S. states of Iowa, Nebraska and surrounding communities.[BN] The Plaintiff is represented by: Bryan E. Delius, Esq. DELIUS & MCKENZIE, PLLC. 124 Court Avenue Sevierville, TN 37862 Phone: (865) 643-8913 Email: bdelius@deliusmckenzie.com MYSTIQUE INC: Espinal Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Mystique, Inc. The case is styled as Frangie Espinal, on behalf of herself and all other persons similarly situated v. Mystique, Inc., Case No. 1:23-cv-04983-PGG-RWL (S.D.N.Y., June 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Mystique -- https://www.shopmystique.com/ -- is the ultimate sandal destination for every type of woman.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal NABORS COMPLETION: Court Confirms Arbitration Award in Ortiz Suit ----------------------------------------------------------------- In the case, RAMIRO ORTIZ, Petitioner v. NABORS COMPLETION & PRODUCTION SERVICES CO., n/k/a C&J WELL SERVICES, INC., a Delaware corporation Respondent, Case No. 2:23-cv-01526-DDP-JPRx (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California grants Ortiz's Petition to Confirm Final Arbitration Award and for Further Attorneys' Fees and Costs, and to Enter Judgment Against Respondent Nabors. Ortiz performed oil well plug and abandonment work for Nabors in the Port of Long Beach, as part of a larger project to replace the Gerald Desmond Bridge. On April 2, 2015, former Nabors employees who performed similar work on the project filed a putative class action in state court against Nabors for violations under the California Labor Code, on behalf of themselves and similarly situated employees, including Ortiz. Nabors removed the action to this Court, and thereafter filed a motion to compel arbitration pursuant to the parties' arbitration agreement. This Court denied the motion to compel arbitration. Nabors appealed to the Ninth Circuit. The Ninth Circuit reversed and remanded the Court's denial of the motion to compel arbitration. On April 2, 2018, Ortiz submitted a Demand for Arbitration to JAMS, asserting the following wage-and-hour violations: (1) failure to pay prevailing wages (Cal. Lab. Code Sections 1194, 1771, 1772, 1774 et seq.); (2) waiting time penalties (Cal. Lab. Code Section 203); (3) failure to provide accurate itemized wage statements (Cal. Lab. Code Section 226(a)); and (4) unfair competition (Cal. Bus. & Prof. Code Section 17200). Thereafter, Elliot K. Gordon, Esq. was appointed as Arbitrator. Ortiz filed a motion for summary adjudication pursuant to JAMS Employment Rule 18. On March 24, 2022, the Arbitrator granted Ortiz's motion, ruling on the issues pertaining to Nabors' liability. On July 18, 2022, the matter proceeded to a virtual arbitration hearing on damages. On Jan. 3, 2023, the Arbitrator issued an Interim Arbitration Award. On April 10, 2023, Ortiz filed a motion to set the amount of attorney's fees and costs with the Arbitrator. On Feb. 27, 2023, the Arbitrator issued a Final Arbitration Award reducing Ortiz's requested lodestar fees by $5,458.50 and awarding a 1.1 multiplier to the lodestar. Through the Final Arbitration Award, the Arbitrator awarded Ortiz $226,836.34 in unpaid wages, $215,698.70 in interest through July 19, 2022, continuing interest at the rate of 10% per annum until wages and interest are paid in full, $128,771.31 in attorneys' fees, and $1,591.91 in costs. Ortiz now moves to confirm the Final Arbitration Award and seeks $10,621.50 in post award, attorneys' fees and $402 in costs for filing of the initial complaint in this confirmation action. Nabors contends that the Arbitrator exhibited a manifest disregard of the law through several alleged errors with respect to Nabors' liability and damages. Nabors, however, fails to identify any instances in the record where the Arbitrator recognized the applicable law and then ignored it. The alleged errors are based on misinterpretation or misapplication of the law -- such legal errors are insufficient to vacate an Arbitration Award. Finding no manifest disregard of the law exhibited in the Arbitration Award, Judge Pregerson declines to vacate the Arbitration Award. He therefore grants Ortiz's Petition to confirm the Arbitration Award. As the prevailing party, Ortiz is entitled to reasonable attorneys' fees and costs, including fees incurred in connection with the confirmation action. Thus, the only issue before the Court is whether the requested fees and costs are reasonable. Ortiz seeks $10,621.50 in post arbitration, attorneys' fees. Judge Pregerson finds, and Nabors does not dispute, that the rates set forth by Ortiz's counsel are within the range of reasonable rates for attorneys in the local community, taking into consideration the experience, skill, and reputation of the attorney. With respect to the time spent for work performed on this matter, Ortiz's counsel has submitted detailed billing records of work performed and an accompanying declaration. With adjustments, Ortiz is entitled to $8,731.50 in fees and $402 for the cost of filing the complaint. For these reasons, Judge Pregerson grants Ortiz's Petition to Confirm the Arbitration Award. The Final JAMS Arbitration Award issued by Arbitrator Elliot K. Gordon, Esq. on Feb. 27, 2023, in the Arbitration JAMS Case No. 1220058999, is confirmed. The Court will enter judgment in favor of Ramiro Ortiz and against Nabors in the amount of $226,836.34 in unpaid wages, $215,698.70 in interest through July 19, 2022, continuing interest at the rate of 10% per annum until wages and interest are paid in full, $128,771.31 in attorneys' fees, and $1,591.91 in costs. Judge Pregerson further grants Ortiz's request for post-award attorneys' fees in the amount of $8,731.50 and for costs in the amount of $402. A full-text copy of the Court's June 2, 2023 Order is available at https://tinyurl.com/52ptvjza from Leagle.com. NABORS COMPLETION: Final Arbitration Award in Hudson Suit Confirmed ------------------------------------------------------------------- In the case, JIMMY HUDSON, JR., Petitioner v. NABORS COMPLETION & PRODUCTION SERVICES CO., n/k/a C&J WELL SERVICES, INC., a Delaware corporation, Respondent, Case No. 2:23-cv-00761-DDP-JPRx (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California grants Hudson's Petition to Confirm Final Arbitration Award and for Further Attorneys' Fees and Costs, and to Enter Judgment Against Respondent Nabors. Hudson performed oil well plug and abandonment work for Nabors in the Port of Long Beach, as part of a larger project to replace the Gerald Desmond Bridge. On April 2, 2015, former Nabors employees who performed similar work on the project filed a putative class action in state court against Nabors for violations under the California Labor Code, on behalf of themselves and similarly situated employees, including Hudson. Nabors removed the action to this Court, and thereafter filed a motion to compel arbitration pursuant to the parties' arbitration agreement. The Court denied the motion to compel arbitration. Nabors appealed to the Ninth Circuit. The Ninth Circuit reversed and remanded the Court's denial of the motion to compel arbitration. On March 30, 2018, Hudson submitted a Demand for Arbitration to JAMS, asserting the following wage-and-hour violations: (1) failure to pay prevailing wages (Cal. Lab. Code Sections 1194, 1771, 1772, 1774 et seq.); (2) waiting time penalties (Cal. Lab. Code Section 203); (3) failure to provide accurate itemized wage statements (Cal. Lab. Code Section 226(a)); and (4) unfair competition (Cal. Bus. & Prof. Code Section 17200). Thereafter, the Hon. Franz E. Miller (Ret.) was appointed as Arbitrator. On July 26, 2021, Hudson filed a motion for summary adjudication pursuant to JAMS Employment Rule 18. On Sept. 24, 2021, the Arbitrator denied Hudson's motion. On March 3, 2022, the matter proceeded to a virtual arbitration hearing. On Aug. 23, 2022, the Arbitrator issued an Interim Arbitration Award. On Sept. 23, 2022, Hudson filed a motion to set the amount of attorney's fees and costs with the Arbitrator. On Jan. 9, 2023, the Arbitrator issued a Final Arbitration Award and awarded Hudson's requested attorneys' fees without a multiplier. Through the Final Arbitration Award, the Arbitrator awarded Hudson $154,712.63 in unpaid wages, $134,934.26 in interest through March 3, 2022, continuing interest from March 4, 2022, in the amount of $42.39 daily until paid in full, $150,391.75 in attorneys' fees, and $4,174.50 in costs. Hudson now moves to confirm the Final Arbitration Award and seeks $11,300 in post award, attorneys' fees and $402 in costs for filing of the initial complaint in this confirmation action. Nabors contends that the Arbitrator exhibited a manifest disregard of the law through several alleged errors with respect to Nabors' liability and damages. It, however, fails to identify any instances in the record where the Arbitrator recognized the applicable law and then ignored it. Judge Pregerson says the alleged errors are based on misinterpretation or misapplication of the law -- such legal errors are insufficient to vacate an Arbitration Award. Finding no manifest disregard of the law exhibited in the Arbitration Award, he declines to vacate the Arbitration Award. He therefore grants Hudson's Petition to confirm the Arbitration Award. As the prevailing party in this action, Hudson is entitled to reasonable attorneys' fees and costs, including fees incurred in connection with the confirmation action. Thus, the only issue before the Court is whether the requested fees and costs are reasonable. Hudson seeks $11,300 in attorneys' fees. Judge Pregerson finds, and Nabors does not dispute, that the rates set forth by Hudson's counsel are within the range of reasonable rates for attorneys in the local community, taking into consideration the experience, skill, and reputation of the attorney. With respect to the time spent for work performed, Hudson's counsel has submitted detailed billing records of work performed and an accompanying declaration. With adjustments, Hudson is entitled to $9,480 in fees and $402 for the cost of filing the complaint. For these reasons, Judge Pregerson grants Hudson's Petition to Confirm the Arbitration Award. The Final JAMS Arbitration Award issued by Hon. Franz E. Miller (Ret.) on Jan. 9, 2023, in the Arbitration JAMS Case No. 1220058994, is confirmed. The Court will enter judgment in favor of Jimmy Hudson, Jr. and against Nabors in the amount of $154,712.63 in unpaid wages, $134,934.26 in interest through March 3, 2022, continuing interest from March 4, 2022, in the amount of $42.39 daily until paid in full, $150,391.75 in attorneys' fees, and $4,174.50 in costs. Judge Pregerson further grants Hudson's request for post-award attorneys' fees in the amount of $9,480 and for costs in the amount of $402. A full-text copy of the Court's June 2, 2023 Order is available at https://tinyurl.com/2zpnhwh5 from Leagle.com. NABORS COMPLETION: Ware to Recover $45.45K in Unpaid Wages ---------------------------------------------------------- In the case, DEVAUGHN WARE, Petitioner v. NABORS COMPLETION & PRODUCTION SERVICES CO., a Delaware corporation, now known as C&J Well Services, Inc., Respondent, Case No. 2:22-cv-07149-DDP-JPRx (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California holds that the Petitioner will recover against NABORS $45,449.35 in unpaid wages. On April 2, 2015, two former employees of NABORS, Brandyn Ridgeway and Tim Smith, filed a putative class action alleging, among other things, claims under Labor Code Section 1194(a) and 1771 for failure to pay the minimum prevailing wage and overtime, under Labor Code Section 226(e) for failure to provide accurate itemized wage statements under Labor Code Section 226(a), and for related interest and penalties, as well as attorneys' fees and costs, (CACD Case No. 2:15-cv-03436-DDP-VBKx; "Ridgeway class action"). On June 29, 2015, NABORS brought a motion to compel arbitration of Ridgeway and Smith's individual claims pursuant to 9 U.SC. Section 2, the Federal Arbitration Act and a written arbitration agreement that included a class action waiver. On Oct. 13, 2015, the Court denied NABORS' motion to compel arbitration, finding the arbitration agreement unenforceable. NABORS timely appealed the denial of its motion to compel arbitration. On Feb. 13, 2018, the Ninth Circuit Court of Appeal issued a Memorandum which reversed the Court's order denying the motion and remanded with instructions. On March 30, 2018, Petitioner Ware, a putative class member in the Ridgeway class action, commenced an individual arbitration at JAMS. Ware's individual claims were adjudicated by JAMS Arbitrator Hon. Rosalyn M. Chapman (Ret.) resulting in an Interim Award issued May 31, 2022 and a Final Arbitration Award issued Sept. 26, 2022, in favor of Ware. On Oct. 2, 2022, Ware filed the instant Petition to Confirm Final Arbitration Award, For Further Attorneys' Fees and Costs, and to Enter Judgment Against Nabors; Nabors appeared, filed an answer and filed a crossclaim to vacate the Final Award. On May 10, 2023, the Court issued its Amended Order Re: Petitioner's Motion To Confirm Final Arbitration Award And For Further Attorneys' Fees And Costs granted Ware's motion and confirmed the Final JAMS Arbitration Award issued by Arbitrator Hon. Rosalyn M. Miller (Ret.) in the Arbitration JAMS Case No. 1220058933 and denied NABORS' request to vacate the award. Petitioner Ware will recover against NABORS in the amount of $45,449.35 in unpaid wages (including offsetting credits in the amount of $3,594 for fringe benefits paid by Nabors), interest through March 8, 2022 in the amount of $40,222.67, continuing interest at the daily rate of $12.45 (10% per annum) until paid in full, statutory penalties in the amount of $25,506, attorney's fees in the amount of $185,750.13, and costs in the amount of $4,001.50, as awarded by the Arbitrator. Additional post-arbitration attorneys' fees in the amount of $7,290 and for costs in the amount of $402. A full-text copy of the Court's June 2, 2023 Judgment is available at https://tinyurl.com/j45vsrht from Leagle.com. Richard E. Donahoo -- rdonahoo@donahoo.com -- Sarah L. Kokonas -- skokonas@donahoo.com -- DONAHOO & ASSOCIATES, Tustin, CA. NCB MANAGEMENT: Kelly Sues Over Data Breach Due to Negligence ------------------------------------------------------------- CAROLYN KELLY, individually and on behalf of all others similarly situated, Plaintiff v. NCB MANAGEMENT SERVICES, INC., Defendant, Case No. 1:23-cv-00927-CCC (M.D. Pa., June 6, 2023) alleges claims against the Defendant for negligence, negligence per se, unjust enrichment and for violations of Section 5 of the Federal Trade Commission Act. This class action arises out of the recent data breach involving the Defendant. Plaintiff Kelly alleges that the Defendant for its failure to properly secure and safeguard the personally identifiable information that it collected and maintained as part of its regular business practices, says the suit. NCB is a company that buys debts as well as provides solutions for accounts receivable management and call center management products. It is incorporated under the laws of the state of Pennsylvania.[BN] The Plaintiff is represented by: Randi Kassan, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 100 Garden City Plaza Garden City, NY 11530 Telephone: (212) 594-5300 E-mail: rkassan@milberg.com - and - Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Telephone: (866) 252-0878 E-mail: gklinger@milberg.com NEXTERA ENERGY: Bids for Lead Plaintiff Appointment Due July 25 --------------------------------------------------------------- WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of securities of NextEra Energy, Inc. (NYSE: NEE, NEE-PR, NEE-PQ) between December 2, 2021 and February 1, 2023, both dates inclusive (the "Class Period") of the important July 25, 2023 lead plaintiff deadline. SO WHAT: If you purchased NextEra securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement. WHAT TO DO NEXT: To join the NextEra class action, go to https://rosenlegal.com/submit-form/?case_id=16680 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than July 25, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions, but are merely middlemen that refer clients or partner with law firms that actually litigate the cases. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers. DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) NextEra's primary subsidiary, Florida Power and Light Co. ("FPL"), surreptitious orchestration of political misconduct exposed NextEra to substantial legal and reputational risk; and (2) in light of the above, defendant's 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. To join the NextEra class action, go to https://rosenlegal.com/submit-form/?case_id=16680 mailto:or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm, on Twitter: https://twitter.com/rosen_firm or on Facebook: https://www.facebook.com/rosenlawfirm/. Attorney Advertising. Prior results do not guarantee a similar outcome. [GN] OLIBRA LLC: Bassaw Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Olibra LLC. The case is styled as Shivan Bassaw, individually, and on behalf of all others similarly situated v. Olibra LLC, Case No. 1:23-cv-04930 (S.D.N.Y., June 12, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Olibra is the company behind Bond -- https://bondhome.io/ -- who are a team of entrepreneurs, innovators, designers, and user advocates dedicated to making the smart home more meaningful and enduring.[BN] The Plaintiff is represented by: Ian Piasecki, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (347) 745-0445 Email: ipiasecki@mizrahikroub.com ORDERMARK INC: Portuhondo Sues Over Mass Layoff Without Notice -------------------------------------------------------------- ALITZA PORTUHONDO, on behalf of herself and all others similarly situated, Plaintiff v. ORDERMARK, INC. and NEXTBITE BRANDS, LLC, Defendants, Case No. 1:23-cv-00610-UNA (D. Del., June 2, 2023) arises from the Defendant's failure to give Plaintiff and those similarly situated employees 60 days' advance notice of their terminations, as required by the Worker Adjustment and Retraining Notification Act. According to the complaint, the Plaintiff was terminated along with an estimated 130 other similarly situated employees as part of, or as the foreseeable result of a mass layoff or plant closing ordered by Defendants on May 15, 2023, and within 90 days of that date. The Plaintiff seeks to enforce the WARN Act's statutory remedy of 60 days' back pay and benefits for herself and those similarly situated, pursuant to 29 U.S.C. Section 2104, for the Defendants' failure to provide WARN notice prior to their terminations. Plaintiff Portuhondo was employed by the Defendants as a supply chain analyst from May 2021 until May 15, 2023. Ordermark, Inc. designs and develops software. The Company offers a software platform that provides online ordering services.[BN] The Plaintiff is represented by: Christopher D. Loizides, Esq. LOIZIDES, P.A. 1225 King Street, Suite 800 Wilmington, DE 19801 Telephone: (302) 654-0248 Facsimile: (302) 654-0728 E-mail: loizides@loizides.com - and - Jack A. Raisner, Esq. Rene S. Roupinian, Esq. RAISNER ROUPINIAN LLP 270 Madison Avenue, Suite 1801 New York, NY 10016 Telephone: (212) 221-1747 Facsimile: (212) 221-1747 E-mail: rsr@raisnerroupinian.com jar@raisnerroupinian.com PALM BEACH AUTOPLEX: Paiva Sues Over Unsolicited Text Messages -------------------------------------------------------------- ROYMAR PAIVA, individually and on behalf of all others similarly situated, Plaintiff v. PALM BEACH AUTOPLEX, LLC dba MAZDA OF PALM BEACH, Defendant, Case No. 9:23-cv-80882-XXXX (S.D. Fla., June 6, 2023) arises out of the Defendant's alleged violations of the Telephone Consumer Protection Act and the and Florida Telephone Solicitation Act. On or about January 21, 2023, Defendant sent a text message solicitation to Plaintiff's cellular telephone. Plaintiff responded with a "stop" request and Defendant acknowledged the opt-out. However, the Defendant continued to send solicitations to Plaintiff on or about May 27, 2023, May 29, 2023, and May 30, 2023. This happened even if Plaintiff never signed any type of authorization permitting or allowing the placement of a telephonic sales call by text message using an automated system for the selection and dialing of telephone numbers. Moreover, Defendant's failure to honor opt-out requests demonstrates that Defendant does not (1) maintain written policies and procedures regarding its text messaging marketing; (2) provide training to its personnel engaged in telemarketing; and/or (3) maintain a standalone do-not-call list, says the suit. Palm Beach Autoplex, LLC is a new Mazda and used card dealer that serves North & West Palm Beach, Riviera Beach, & Palm Beach Gardens area in Florida. [BN] The Plaintiff is represented by: Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street Suite 1744 Ft. Lauderdale, FL 33301 PETSMART LLC: Faces Class Action for Violating Fair Workweek Law ---------------------------------------------------------------- Kelly Mehorter, writing for ClassAction.org, reports that a former PetSmart employee claims in a proposed class action that the company has failed to comply with Philadelphia's Fair Workweek Law, an ordinance that requires employers to provide retail, hospitality and fast-food workers with predictable schedules. The 13-page case more specifically alleges that, in violation of city labor law, PetSmart failed to provide hourly employees proper advance notice of their schedules and pay certain penalties or obtain consent before changing their schedules with less than 14 days' notice. In addition, the filing claims the company failed to offer available shifts to existing employees before hiring new ones. The plaintiff, who worked at a Philadelphia PetSmart on Roosevelt Boulevard from June to November 2022, says the company never provided her or other hourly employees with a good faith estimate of their expected schedules after they were hired, as required by the Fair Workweek Law. PetSmart also regularly failed to provide workers with at least 14 days' notice of their work schedules, the suit claims. "There is growing recognition that unpredictable, unstable, and often insufficient work hours are a key problem facing many U.S. workers, particularly those in low-wage industries," the complaint says. "Volatile hours not only mean volatile incomes but add to the strain working families face as they try to plan ahead for childcare or juggle schedules in order to take classes, hold down a second job, or pursue other career opportunities." Under the Fair Workweek Law, employers must secure an employee's permission and offer them "predictability pay" before any changes can be made to their schedule with less than 14 days' notice, the suit explains. However, the case contends that PetSmart routinely failed to fulfill either of these requirements before changing workers' schedules last-minute. As a result of these alleged schedule changes, PetSmart employees were regularly required to work additional hours that were not originally part of their shifts, the filing charges. Finally, the suit claims PetSmart failed to provide employees with written notice of available work hours and its policy for offering and distributing work shifts. The lawsuit looks to represent any hourly employees who worked at a PetSmart store in Philadelphia during the relevant time period. [GN] PETSMART LLC: Jenkins Suit Removed to C.D. California ----------------------------------------------------- The case captioned as Tamayah Jenkins, on behalf of herself and others similarly situated v. PETSMART, LLC, Case No. 230403033 was removed from the Court of Common Pleas, Philadelphia County to the United States District Court for the Eastern District of Pennsylvania on June 13, 2023, and assigned Case No. 2:23-cv-02260. In her Complaint, Plaintiff claims PetSmart violated the Philadelphia Fair Workweek Employment Standards Ordinance ("Fair Workweek Law"), and alleges four causes of action: failure to provide written good faith estimates of work schedules; failure to provide 14 day's advance notice of work schedules, failure to provide prompt notice of schedule changes, and failure to get written consent for schedule changes that added hours; failure to pay predictability pay for schedule changes; and failure to post a policy for considering existing employees before hiring externally, and failing to post available hours and consider existing associates before hiring externally.[BN] The Plaintiff is represented by: Ryan Allen Hancock, Esq. WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th floor Philadelphia, PA 19103 Email: rhancock@wwdlaw.com - and - Krysten Connon, Esq. Sarah R. Schalman-Bergen, Esq. LICHTEN & LISS-RIORDAN 729 Boylston Street, Suite 2000 Boston, MA 02116 Email: kconnon@llrlaw.com ssb@llrlaw.com - and - Sally J. Abrahamson, Esq. WERMAN SALAS P.C. 705 8th Street, SE #100 Washington, DC 20003 Email: sabrahamson@flsalaw.com The Defendant is represented by: Andrea M. Kirshenbaum, Esq. Martha Keon, Esq. Bridget O. Robinson, Esq. LITTLER MENDELSON, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102.1321 Phone: (267) 402-3000 Fax: (267) 402-3131 Email: akirshenbaum@littler.com mkeon@littler.com borobinson@littler.com PHH MORTGAGE: Estrella FDCPA Suit Removed to M.D. Florida --------------------------------------------------------- The case is styled as Lizette Estrella, on behalf of herself and all others similarly situated v. PHH Mortgage Corporation, Case No. 2023-CA-009128-O was removed from the Circuit Court of the Ninth Judicial Circuit, to the U.S. District Court for the Middle District of Florida on June 13, 2023. The District Court Clerk assigned Case No. 6:23-cv-01114 to the proceeding. The nature of suit is stated Other Contract. PHH Mortgage -- https://www.phhmortgage.com/ -- a wholly owned subsidiary of Ocwen Financial Corporation, is one of the largest subservicers of residential mortgages in the United States.[BN] The Plaintiff appears pro se. The Defendant is represented by: Albert A. Zakarian, Esq. ALBERT A. ZAKARIAN 14826 Heronglen Drive Lithia, FL 33547 Phone: (813) 468-8406 Email: albert.zakarian@troutman.com PIAGGIO GROUP AMERICAS: Espinal Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Piaggio Group Americas, Inc. The case is styled as Frangie Espinal, on behalf of herself and all other persons similarly situated v. Piaggio Group Americas, Inc., Case No. 1:23-cv-04984-ALC (S.D.N.Y., June 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Piaggio Group Americas, Inc. -- https://www.piaggiogroup.com/en -- is one of the largest European manufacturer of two-wheel motor vehicles.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Michael A. LaBollita, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com michael@gottlieb.legal POUNDMAKER SCHOOL: Victim Denied Compensation for Alleged Abuses ---------------------------------------------------------------- battlefordsnow.com reports that a residential day school survivor believes his claim for federal compensation for the abuses he suffered while attending Poundmaker School was denied because in his application he used the Cree word for the school - ihtokahanapiwiyin - as it was known to students at the time, instead of the English name Poundmaker. Melvin Sapp Jr., Little Pine First Nation member, attended Poundmaker School from 1974 to 1982, starting at age 10. "I believe I was tortured to the point where I was robbed of my education, basically. That's how I feel about it," the North Battleford resident said. A Federal Indian Day School Class Action lawsuit was started for compensation for the abuses suffered by Indian Day School students. Sapp submitted his claim in 2020. He said he received a letter on May 1 of 2020, stating they would reply to him within 60 days. But he didn't receive the letter indicating his claim was denied until May 2022. The deadline to respond to the decision was July 2022, so Sapp believes he didn't have enough time to seek recourse. "Apparently, they didn't recognize the school name. But they didn't give me a Reconsideration letter to fix my mistake," he said. "I felt I was re-victimized," he added. "It got to the point where I almost gave up. It caused me a great deal of stress." Sapp questions he wasn't given more support because he chose to submit his claim directly himself, without going through a lawyer to represent him. "All my siblings, all my brothers and sisters, attended the same school, and they all got compensated," he said. "I filled out my application because no one really supported me; nobody really approached me on it." Sapp also wonders if he had sought a lower level of compensation, he might have had success. "The first level, you didn't need a declaration for $10,000. Like, here's $10,000. No questions asked. That's what I believe they were aiming for, for everybody to just take the $10,000," he said. Sapp submitted his claim for the second level of compensation, valued at $50,000. He said he suffered significant abuse at the day school, including having his ears pulled while his head was banged against the wall, on many occasions. "That was a regular occurrence," he said. Today, Sapp isn't giving up. "I am looking for legal action," he said. "I'm trying to get this corrected, so nobody else has to go through this." Sapp added the reason he is pursuing this matter with such determination is because he wants to be able to pay for his son's post-secondary education, to grant him "a brighter future." A spokesperson for Crown-Indigenous Relations and Northern Affairs Canada provided a statement to battlefordsNOW in response to Sapp's complaint. "The Poundmaker Federal Day School (eligible for compensation from 1879 to September 1, 1983) was operating as a Kindergarten only as of the 1974-75 school year, as the students were attending the Pehtokahanopewin, also known as Pehtok, band-operated school. The federal school at Poundmaker continued to operate as a Kindergarten until 1983, when control of the school transferred to the Band. "Mission schools, joint schools, provincial and territorial schools, and band-operated schools are not eligible for compensation through this settlement, as Canada was not responsible for the administration of these schools. Students from the Poundmaker community attended a number of schools operated by Canada, the Province of Saskatchewan, and the Poundmaker and Little Pine First Nations." The statement continued, saying while it's not able to speak to individual claims, if a claimant has evidence they have been wrongfully denied compensation, they should have the class action legal counsel or their own legal counsel respond. On whether the school he attended was operated by the band, Sapp said a band-operated school should also been covered for compensation, since it would be have been federally-funded regardless. "All the people that went to [this] school, there were compensated," he said. "There are four Poundmaker schools on the list . All the Poundmaker schools are paid out." [GN] PRIMELENDING: Pazoki Files FDCPA Suit in C.D. California -------------------------------------------------------- A class action lawsuit has been filed against Primelending, A Plainscapital Company. The case is styled as Rojina Pazoki, on behalf of herself and all others similarly situated v. Primelending, A Plainscapital Company, Case No. 8:23-cv-01037 (C.D. Cal., June 13, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. PrimeLending -- https://primelending.loanadministration.com/ -- A PlainsCapital Company's loan servicing website.[BN] The Plaintiff is represented by: Jonathan Aaron Stieglitz, Esq. LAW OFFICES OF JONATHAN STIEGLITZ 11845 W. Olympic Blvd., Suite 800 Los Angeles, CA 90064 Phone: (323) 979-2063 Fax: (323) 488-6748 Email: jonathan.a.stieglitz@gmail.com PRINCIPAL LAW: Faces TCPA Class Action From Camp Lejeune Victims ---------------------------------------------------------------- Two firms representing victims of the Camp Lejeune water contamination lawsuits have made motions against a potential class action lawsuit filed against them for allegedly violating the Telephone Consumer Protection Act (TCPA). According to Law360, Principal Law Group admitted to hiring a third party to "assist with social media marketing" but denies giving them permission to cold call people. The plaintiff, a West Virginian named Diana Mey, alleges that the two law firms violated the TCPA when they allegedly cold-called her and other people on a federal do-not-call list in order to generate leads for their Camp Lejeune lawsuits. The TCPA is an amendment to the Communications Act of 1934 that was signed into law in 1991. The TCPA restricts the use of telephone equipment, automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines to solicit prospective clients. In their motion to dismiss the class action, the law firms made four points that they believed were sufficient to disqualify the case. First, they note that since Levin Law is a Florida-based company that does business in Florida, they have no direct ties to West Virginia or the alleged solicitations. Furthermore, there are "no allegations of any relationship between Levin Law and the party that made the offending solicitations." Secondly, Levin Law claims that the court lacks jurisdiction under Article III of the U.S. Constitution. Third, since Mey does not claim that members of the law firms specifically called her, the firms state that they cannot possibly be directly liable for her alleged injuries, according to the TCPA. The firms cannot be vicariously found to be liable since they did not instruct, control, or otherwise dictate to the third party to make solicitations on their behalf. Additionally, the accused firms claim that Mey has not adequately pled her do-not-call claim and that cannot be applied since calls were made to her cell phone when the TCPA does not cover cell phone usage, and she has not pled that she registered her phone number in the do-not-call registry. If the class action is dismissed, it will free up the resources of these firms to continue to pursue justice on behalf of the victims of Camp Lejeune. If you or a loved one have been harmed by the water contamination of Camp Lejeune, you may be eligible for financial compensation. Fill out a free case review to see whether you qualify to join the ongoing lawsuits against the federal government.[GN] RAYTHEON (CA) TECHNOLOGIES: Ariola Suit Removed to C.D. California ------------------------------------------------------------------ The case captioned as Leopoldo Ariola, individually, and on behalf of other members of the general public similarly situated v. RAYTHEON (CA) TECHNOLOGIES CORPORATION, a Delaware corporation; RAYTHEON COMPANY, a Delaware corporation; and DOES 1 through 100, inclusive, INC., a Minnesota corporation, and DOES 1 through 10, inclusive, Case No. 23STCV10195 was removed from the Superior Court of California for the County of Los Angeles, to the United States District Court for the Eastern District of California on June 13, 2023, and assigned Case No. 2:23-cv-04664. The Plaintiff asserts ten causes of action in his Complaint against Defendants: unpaid overtime; unpaid meal period premiums; unpaid rest period premiums; unpaid minimum wages; final wages not timely paid; wages not timely paid during employment; non-compliant wage statements; failure to keep requisite payroll records; unreimbursed business expenses; and violation of California Business and Professions Code and all in violation of California Labor Code.[BN] The Defendant is represented by: Michael Afar (SBN 298990) Michael A. Sigall (SBN 305849) Andrea N. Vizzo (SBN 347000) SEYFARTH SHAW LLP 2029 Century Park East, Suite 3500 Los Angeles, CA 90067-3021 Phone: (310) 277-7200 Facsimile: (310) 201-5219 Email: mafar@seyfarth.com msigall@seyfarth.com avizzo@seyfarth.com RESURGENT CAPITAL: Montero Files FDCPA Suit in S.D. Florida ----------------------------------------------------------- A class action lawsuit has been filed against Resurgent Capital Services, L.P. The case is styled as Ignacio Montero, individually and on behalf of all others similarly situated v. Resurgent Capital Services, L.P., Case No. 1:23-cv-22185-CMA (S.D. Fla., June 13, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Resurgent Capital Services is a manager and servicer of domestic and international consumer debt portfolios for credit grantors and debt buyers.[BN] The Plaintiff is represented by: Justin E. Zeig, Esq. ZEIG LAW FIRM, LLC 3595 Sheridan Street, Suite 103 Hollywood, FL 33021 Phone: (754) 217-3084 Email: justin@zeiglawfirm.com RISKIFIED LTD: S.D. New York Dismisses 2nd Amended Securities Suit ------------------------------------------------------------------ In the case, IN RE RISKIFIED LTD. SECURITIES LITIGATION, Case No. 22cv3545 (DLC) (S.D.N.Y.), Judge Denise Cote of the U.S. District Court for the Southern District of New York grants the Defendants' motion to dismiss the Second Amended Complaint. The Plaintiffs bring this putative securities class action against Riskified, its officers and directors, and several underwriters, based on purported omissions and misleading statements in the registration statement issued in connection with Riskified's July 2021 initial public offering ("IPO"). The Defendants have moved to dismiss the action on the grounds that the Plaintiffs have failed to state a claim under the securities laws. Riskified is a technology company that offers fraud detection services to its merchant clients to help them minimize certain costs associated with fraudulent online transactions. Any time a sale is made online using a credit card, merchants face a choice either to accept the transaction and recognize the sale or reject the transaction as fraudulent. Sometimes a merchant unintentionally rejects a legitimate transaction because it appears fraudulent, which costs the merchant revenue. Likewise, merchants may mistakenly accept a fraudulent transaction. If a cardholder disputes a mistakenly accepted transaction with their bank and the bank rules in the cardholder's favor, the merchant loses the revenue associated with the transaction. This forced payment reversal is called a "chargeback." Merchants want to maximize their approvals of legitimate transactions (and thus their revenues), while minimizing chargebacks. Riskified's core product, the Chargeback Guarantee, aims to assist with these goals. The Chargeback Guarantee uses machine learning to identify the individual behind an online transaction and evaluate that individual's fraud risk. Based on that evaluation, the Chargeback Guarantee automatically approves or rejects an online order. Riskified charges each client an agreed-upon percentage of the client's gross merchandise value ("GMV") for each transaction that Riskified approves, but charges nothing for rejected transactions. If Riskified mistakenly approves a transaction that ultimately results in a chargeback, it reimburses the merchant for the cost of the chargeback. When this happens, Riskified records a chargeback guarantee expense in its cost of revenue. Chargeback guarantee expenses account for most of Riskified's cost of revenue, representing over 80% of the total cost of revenue in 2019, 2020, and 2021. The case turns heavily on Riskified's chargeback guarantee expenses and the impact of those expenses on its gross profit margins. On July 1, 2021, Riskified filed with the SEC a registration statement for its IPO on Form F-1, which, after several amendments, was declared effective on July 28, 2021. The crux of the Plaintiffs' claims in the SAC is that the Registration Statement did not adequately disclose a trend that was likely to impact Riskified's financial prospects adversely. During its July 2021 IPO, Riskified sold over 20 million shares and generated over $422 million in gross proceeds. Subsequently, on Sept. 9, 2021, Riskified announced its financial results for the second quarter of 2021 ("2Q21"). The 2Q21 results showed year-over-year growth in several metrics including 65% growth in gross profits, 47% growth in revenue, and 55% growth in GMV. On Nov. 16, 2021, Riskified announced its financial results for the third quarter of 2021 ("3Q21"). These results again showed year-over-year growth in certain metrics including 26% growth in revenue, 28% growth in GMV, and 10% growth in gross profit. Gross profit margins, however, declined to 46%, representing a decrease from the prior two quarters, as well as a year-over-year decrease. Additionally, cost of revenues increased 44% year-over-year. On Feb. 23, 2022, Riskfied announced its financial results for the fourth quarter of 2021 ("4Q21") and its year-end results for fiscal year 2021 ("FY21"). Certain metrics again showed year-over-year growth, including 22% growth in revenue. Gross profit margins for both 4Q21 and FY21 showed a year-over-year decrease. In the earnings call explaining the 4Q21 and FY21 results, Riskified's Chief Financial Officer, Aglika Dotcheva, remarked that the year-over-year decline in gross profit margin was driven primarily by Riskified's expansion into new industries and regions, increase of the tickets in travel industry as a percentage of total billings as well as the onboarding of new merchants. Analyst reports again noted the decline in gross profit margins and Dotcheva's stated explanations for this decline. On Feb. 23, Riskified's share price fell again. By May 2, 2022, the price of Riskified's Class A ordinary shares had fallen more than 70% below the IPO price. The action was filed on May 2, 2022 as a putative class action. On August 17, the case was reassigned to this Court. That same day, Craig Black was appointed as lead plaintiff in the case. Also on that day, a schedule was set for filing amended pleadings. The Lead Plaintiff filed his first amended complaint on September 15. On October 28, the Defendants moved to dismiss the first amended complaint. Instead of opposing the motion to dismiss the first amended complaint, the Lead Plaintiff filed the SAC on November 28. The SAC alleges violations of Section 11 of the Securities Act of 1933 against Riskified, certain of its officers and directors, and several underwriters. It also alleges violations of Section 15 of the Securities Act against the officers and directors. The Defendants moved to dismiss the SAC on Jan. 20, 2023. The motion to dismiss the SAC was fully submitted on March 16. In letters of May 2, 3, 9, and 15, the parties alerted the Court to supplemental authorities relevant to the motion. The Plaintiffs allege two bases of Section 11 liability: (1) that the Defendants omitted material information that they were required to disclose, and (2) that the Registration Statement contained materially misleading statements. Neither basis has merit, Judge Cote opines. As for omissions, the Plaintiffs contend that the Defendants omitted from the Registration Statement material information that they were required to disclose under Item 3(D) and Item 5(D) of SEC Form 20-F. Judge Cote finds that the Plaintiffs have not plausibly pled that, at the time of the IPO, any trend existed of shifting Riskified's overall merchant mix to include a greater proportion of risky clients. Notably, she says, the complaint identifies only one client that was onboarded in the months leading up to the IPO, Binance, a cryptocurrency exchange. Although there are other allegations that clients in the cryptocurrency industry pose a greater risk of chargebacks, the SAC does not plausibly plead that the addition of a single client in that industry constituted a trend that needed to be disclosed under Item 5. Moreover, the Plaintiffs contend that the Registration Statement omitted information required by Item 3 because it did not adequately disclose the alleged trend in Riskified's merchant mix, or the associated risk to the company's gross profit margins. However, Judge Cote finds that the Plaintiffs have not plausibly pled that any such trend existed at the time of the IPO. Moreover, contrary to their contentions, the Registration Statement accurately and adequately explained the risks associated with chargeback expenses and fluctuations in gross profit margins. The Registration Statement clearly outlined that reimbursing Riskified's clients for chargeback expenses was part of the company's business model. It also disclosed that the risk of chargebacks varied based on each client's overall risk levels. Separate from their omission theories, the Plaintiffs also contend that eight statements in the Registration Statement are materially misleading. The allegedly misleading statements can be grouped into three categories -- statements about possible fluctuations in Riskified's CTB Ratio and gross profit margins, statements about Riskified's efforts to control its exposure to chargeback expenses, and statements about the impact of COVID-19 on Riskified's business. Judge Cote opines that the Plaintiffs' arguments that these statements were misleading fail. She finds that (i) the Registration Statement sufficiently explained to investors the risks associated with fluctuations in gross profit margins; (ii) the Registration Statement repeatedly explains that changes in merchant mix could impact the CTS Ratio; and (iii) the only reasonable conclusions to draw from the Registration Statement's disclosures about the pandemic are that Riskified has generally benefitted from a shift to eCommerce, caused in part by the pandemic, and the future impact of the pandemic on Riskified's performance was uncertain. For these reasons, Judge Cote grants the Defendants' Jan. 20, 2023 motion to dismiss the complaint. The Clerk of Court is directed to enter judgment for the Defendants and close the case. A full-text copy of the Court's June 2, 2023 Opinion & Order is available at https://tinyurl.com/4c2pkdsv from Leagle.com. The Rosen Law Firm, Laurence M. Rosen -- lrosen@rosenlegal.com -- Phillip Kim -- pkim@rosenlegal.com -- Joshua Baker -- jbaker@rosenlegal.com -- New York, NY, For Plaintiffs Craig Black and Diva Joshi. Audra J. Soloway -- asoloway@paulweiss.com -- Daniel Sinnreich -- dsinnreich@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, For Defendants Riskified Ltd., Eido Gal, Assaf Feldman, Aglika Dotcheva, Erez Shachar, Eyal Kishon, Aaron Mankovski, Tanzeen Syed, and Jennifer Ceran. Jonathan K. Youngwood -- jyoungwood@stblaw.com -- Craig Scott Waldman -- cwaldman@stblaw.com -- Simpson Thacher & Bartlett LLP, New York, NY, For Defendants Goldman Sachs & Co. LLC; J.P. Morgan Securities LLC; Barclays Capital Inc.; Credit Suisse Securities (USA) LLC; Keybanc Capital Markets Inc.; Piper Sandler & Co.; Truist Securities, Inc.; William Blair & Company, L.L.C.; Loop Capital Markets LLC; Samuel A. Ramirez & Company, Inc.; Siebert Williams Shank & Co., LLC; and Stern Brothers & Co. SALT LAKE: Banton Group Mulls Class Action Over Collapse -------------------------------------------------------- Sarah Thompson, Kanika Sood and Emma Rapaport, writing for Australian Financial Review, report that Amanda Banton's Banton Group is working up a class action aimed at Salt Lake Potash, its former directors and officers, alleging the collapsed Australian potash hopeful contravened ASX listing rules and the Corporations Act, along with consumer law. The law firm is also roping in the group's auditor EY to the class action to "the extent that they contributed to or caused any damages by their representation in SO4's audited annual and half-year financial reports". Banton, which has already pursued legal action against Blue Sky Alternative Investments and Nuix, and is currently stirring up a class action against Zip and its auditors Deloitte, said it was "well-advanced in its investigation" of a class action against Salt Lake's auditors and its directors. [GN] SAZERAC COMPANY: Smith Files Mislabeling Suit Over Whisky Product ----------------------------------------------------------------- Alexhandyra Smith, individually and on behalf of all others similarly situated, Plaintiff v. Sazerac Company, Inc., Defendant, Case No. 9:23-cv-80876-DMM (S.D. Fla., June 5, 2023) arises from the Defendant's labeling and marketing of distilled spirit products by representing that such products are whisky when they are actually a flavored malt beverage, in violation of the Florida's Deceptive and Unfair Trade Practices Act. The complaint alleges that Defendant fails to disclose to Plaintiff and Class Members that the products are not whisky but a flavored malt beverage. The Defendant knew or should have known this information is material to all reasonable consumers and impacts consumers' purchasing decisions. Yet, Defendant has and continue to represent the products in a misleading way, says the suit. The Plaintiff asserts that she 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. Sazerac Company, Inc. is a privately held American alcoholic beverage company.[BN] The Plaintiff is represented by: William C. Wright, Esq. THE WRIGHT LAW OFFICE 515 N. Flagler Drive, Suite P-300 West Palm Beach, FL 33410 Telephone: (561) 514-0904 E-mail: willwright@wrightlawoffice.com SIERRA PACIFIC: Coyer Sues Over Inadequate Cyber Security --------------------------------------------------------- James Coyer, individually and on behalf of all others similarly situated v. SIERRA PACIFIC INDUSTRIES, Case No. 2:23-at-00557 (E.D. Cal., June 12, 2023), is brought against the Defendant's negligence and inadequate cyber security measures, including its failure to properly use up-to-date security practices to prevent the Data Breach. Specifically, Plaintiff and members of the proposed Class entrusted Defendant with their PII. But Defendant betrayed that trust. Between June 10, 2022, to June 11, 2022, SPI lost control over its computer network and the highly sensitive personal information of its current and former employees stored on that computer network in a data breach perpetrated by cybercriminals ("Data Breach"). lost control over its computer network and the highly sensitive personal information of its current and former employees stored on that computer network in a data breach perpetrated by cybercriminals ("Data Breach"). The Data Breach began on or around June 10, 2022, when cybercriminals first accessed Defendant's network, and was not discovered by Defendant until June 11, 2022, an entire day later. Following an internal investigation, Defendant learned cybercriminals gained unauthorized access to current and former employees' personally identifiable information ("PII"). The Defendant struggled to identify what information was involved in the Data Breach and whom it belonged to until November 23, 2022, over three months later. On December 30, 2022--an appalling six months after the Data Breach occurred and when Defendant first learned of the Data Breach--SPI finally began notifying Class Members about the Data Breach ("Breach Notice"). However, the Defendant has not completed notice and continues to notify breach victims. Cybercriminals were able to breach the Defendant's systems because Defendant failed to adequately train its employees on cybersecurity, failed to adequately monitor its agents, contractors, vendors, and suppliers in handling and securing the PII of Plaintiff, and failed to maintain reasonable security safeguards or protocols to protect the Class's PII--rendering them easy targets for cybercriminals. The Defendant's Breach Notice obfuscated the nature of the breach and the threat it posed--refusing to tell its employees how many people were impacted, how the breach happened, or why it took the Defendant half a year to begin notifying victims that cybercriminals had gained access to their highly private information. The Defendant's failure to timely report the Data Breach made the victims vulnerable to identity theft without any warnings to monitor their financial accounts or credit reports and, thereby, prevent unauthorized use of their PII. The Defendant knew or should have known that each victim of the Data Breach deserved prompt and efficient notice of the Data Breach and assistance in mitigating the effects of PII misuse. In failing to adequately protect employees' information, adequately notify them about the breach, and in obfuscating the nature of the breach, Defendant violated state law and harmed an unknown number of its current and former employees., says the complaint. The Plaintiff James Coyer is a former SPI employee and Data Breach victim. The Defendant is one of the largest U.S. lumber manufacturers and forest products company that owns and manages more than 2.4 million acres of timberland.[BN] The Plaintiff is represented by: Natalie Lyons, Esq. COHEN & MALAD, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 Phone: (317) 636-6481 Fax: (317) 636-2593 Email: nlyons@cohenandmalad.com - and - Samuel J. Strauss, Esq. Raina Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson St., Suite 201 Madison, WI 53703 Phone: (608) 237-1775 Email: sam@turkestrauss.com raina@turkestrauss.com SIX FLAGS: Bid for Judgment on Pleadings in Oklahoma Suit Granted ----------------------------------------------------------------- In the case, OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM, Plaintiff v. SIX FLAGS ENTERTAINMENT CORPORATION, ET AL., Defendants, Case No. 4:20-cv-0201-P (N.D. Tex.), Judge Mark T. Pittman of the U.S. District Court for the Northern District of Texas, Fort Worth Division: a. denies the Plaintiff's Motion for Leave to File its Amended Complaint; b. grants the Defendants' Motion for Judgment on the Pleadings; and c. denies Movant Key West Police & Fire Pension Fund's Motion to Intervene. The case arises from the Defendants' failed attempt to expand their amusement parks into China. Throughout 2018, Defendant Executives repeatedly maintained that their development and earnings schedule remained on-track. But the projected park opening schedule was allegedly in serious jeopardy as early as May 2018. The Movant began purchasing shares of the Defendants' stock in July 2018. Throughout the rest of the year, Riverside began defaulting on its licensing payments, and construction in China came to a standstill by 2019. Beginning in February 2019, the Defendants began announcing negative revenue adjustments due to the delays. On an Oct. 23, 2019, earnings call, the Defendants announced a very high likelihood going forward that they would see changes in the timing of park openings and that it was "unrealistic" to think the original timelines would hold. Days after, the Plaintiff began purchasing shares of the Defendants' stock. By February 2020, the Defendants disclosed that they had terminated its development agreements with Riverside and that Six Flags would not recognize any revenue from the planned China expansion. The Plaintiff then sued, alleging violations of sections 10(b) and 20(a) of the Securities Exchange Act for false and misleading statements made to investors from 2018 to 2020 about the progress, timeline for opening, and accounting for various Six Flags parks in China. Pursuant to the Plaintiff's request, the Court appointed Oklahoma Firefighters as a Co-Lead Plaintiff for a potential future putative class. Oklahoma filed its Amended Complaint, which the Defendants moved to dismiss. The Court then granted the Defendants' Motion. Oklahoma Firefighters appealed. In January 2023, the Fifth Circuit reversed and remanded this Court's decision, holding that the Plaintiff pled sufficient facts to support a claim for securities fraud to survive a motion to dismiss. But it also held that statements before October 2019 satisfy the pleading standard, but, because the Defendants had adequately tempered their optimistic language by October, the later allegations do not. As a result, the Plaintiff moved to amend its complaint and seeks to add Movant Key West and substitute them as Lead Plaintiff. In response, the Defendant moved for judgment on the pleadings, arguing that the Plaintiff lacks standing based on the Fifth Circuit's holding. Key West then moved to intervene, arguing that they should be added to the suit because its injuries are nearly "identical" to the Plaintiff's -- except that it bought stock over a year earlier. Accepting all the Plaintiff's allegations as true and viewing its pleadings in the light most favorable to it does not alter the date it purchased the Defendants' stock, Judge Pittman holds. He says since the Fifth Circuit held as a matter of law that the October 2019 earnings call depleted the Defendants' statements of any further actionability, the Plaintiff cannot assert any "reasonable reliance" on prior misrepresentations in its "decision to purchase." So, the Plaintiff lacks standing, and the Court lacks the power to manufacture jurisdiction sua sponte. Thus, the Plaintiff no longer has a plausible claim for relief. Because the Plaintiff lacks standing to sue, Judge Pittman grants the Defendants' Motion for Judgment on the Pleadings, denies the Plaintiff's Motion to File its Amended Complaint, and denies the Movant's Motion to Intervene. A full-text copy of the Court's June 2, 2023 Opinion & Order is available at https://tinyurl.com/2f3mfnxd from Leagle.com. SPEEDWAY LLC: Baird Files Suit in M.D. Tennessee ------------------------------------------------ A class action lawsuit has been filed against Speedway, LLC. The case is styled as Mark Baird, on behalf of himself and all others similarly situated v. Speedway, LLC, Case No. 3:23-cv-00589 (M.D. Tenn., June 12, 2023). The nature of suit is stated as Other Contract. Speedway -- http://speedway.com/-- is an American convenience store and fuel station chain headquartered in Enon, Ohio, with locations primarily in the Midwest and the East Coast regions of the United States wholly owned and operated by 7-Eleven.[BN] The Plaintiff is represented by: Bryan E. Delius, Esq. DELIUS & MCKENZIE, PLLC. 124 Court Avenue Sevierville, TN 37862 Phone: (865) 643-8913 Email: bdelius@deliusmckenzie.com - and - Daniel Goldman, Esq. Littrell Williams, Esq. BIENERT KATZMAN LITTRELL WILLIAMS 903 Calle Amanecer, Suite 350 San Clemente, CA 92673 Phone: (949) 369-3700 Email: dgoldman@bklwlaw.com tbienert@bklwlaw.com - and - Gordon Ball, Esq. Jonathan Turner Ball, Esq. GORDON BALL 3728 West End Avenue Nashville, TN 37205 Phone: (865) 525-7028 Email: gball@gordonball.com - and - Times Wang, Esq. NORTH RIVER LAW PLLC 1300 I Street NW, Suite 400E Washington, DC 20005 Phone: (202) 838-6489 Email: twang@cohenmilstein.com SPEEDWAY MOTORS: Sued Over Single-Nozzle Fuel Dispensing Systems ---------------------------------------------------------------- Kelly Mehorter, writing for ClassAction.org, reports that a proposed class action alleges Speedway's single-nozzle fuel dispensing systems routinely pump residual amounts of regular or mid-grade fuel into vehicles for which drivers paid for premium gas. The 21-page case more specifically alleges that after a Speedway customer fills their car with regular or mid-grade fuel, about one-third of a gallon is retained in the dispensing system. As a result, if the following customer selects the more expensive premium option at one Speedway's more than 3,280 gas stations nationwide, the first gallon they receive contains a significant amount of lower-grade fuel, the lawsuit contends. "Given that approximately [70 percent] of cars require regular motor fuel," customers who bought premium gas "regularly paid the premium price for the first gallon of motor fuel for which they did not receive a gallon of premium motor fuel in return," the suit says, stressing that the average price differential between premium and regular gas was 75 cents per gallon as of May 2022. The plaintiff, a Tennessee resident, says he paid $3.99 per gallon and expected to receive 14.53 gallons of premium fuel at Speedway's Murfreesboro location in June 2023. However, because the plaintiff purchased fuel directly after a customer used the same nozzle to pump lower-grade gas, the man received residual amounts of fuel that cost only $3.29 per gallon, the case says. "Therefore, Plaintiff paid Speedway $3.999 for this first gallon of motor fuel when he should have paid less because that gallon contained a significant amount of lower-priced, lower-grade motor fuel," the suit summarizes. According to the complaint, Speedway has known for years that it has been selling regular or mid-grade gas for the price of premium at the expense of consumers, and has made "a business decision to retain the overcharge as a profit." The lawsuit looks to represent anyone in the following states who, between June 12, 2017 and June 12, 2023, purchased premium motor fuel from Speedway with a credit or debit card where they used a single-nozzle fuel dispensing system and the prior customer that used the same single-nozzle fuel dispensing system purchased regular or mid-grade motor fuel: Tennessee, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin. [GN] STAFFMARK INVESTMENT: Enciso Sues Over Recruiters' Unpaid Wages --------------------------------------------------------------- SUSAN ENCISO, individually and for others similarly situated, Plaintiff v. STAFFMARK INVESTMENT, LLC, Defendant, Case No. 2:23-cv-04423 (C.D. Cal., June 6, 2023) arises from the Defendant's violations of the Fair Labor Standards Act, the California Labor Code, and the California Business & Professions Code. The complaint alleges the Defendant's failure to pay proper overtime, failure to authorize and permit and/or make available meal and rest periods, failure to provide timely and accurate itemized wage statements, failure to pay all wages due, and engagement in unlawful labor practices. Plaintiff Enciso worked for Staffmark as a recruiter in Gardena, California from approximately September 2020 through October 2021. Staffmark Investment, LLC engages in temporary staffing business.[BN] The Plaintiff is represented by: William M. Hogg, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: whogg@mybackwages.com STRIPE INC: Lucas Suit Alleges Illegal Debt Collection Practices ---------------------------------------------------------------- OTTO LUCAS, individually and behalf of all those similarly situated, Plaintiff v. STRIPE, INC., Defendant, Case No. CACE-23-014363 (Fla. Cir., 17th Judicial, Broward Cty., June 6, 2023) arises out of the Defendant's violations of the Florida Consumer Collection Practices Act. On June 1, 2023, Defendant sent an electronic mail communication to Plaintiff in connection with the collection of the consumer debt. Moreover, the Plaintiff alleges that the communication was sent by the Defendant at 1:52:44 AM in Plaintiff's time zone, in which it violated the FCCPA, says the suit. Stripe Inc. is a Delaware corporation, with its principal place of business located in San Francisco, California. [BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Jennifer G. Simil, Esq. Shannon E. Gilvey, Esq. OFFICES OF JIBRAEL S. HINDI 110 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: 954-907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com jen@jibraellaw.com shannon@jibraellaw.com SYNEOS HEALTH: Morris et al. Sue Over Employee Discrimination ------------------------------------------------------------- TINA MORRIS, JANET O'CALLAGHAN, MELISSA SLAGLE, SUMMER SELLERS, REBECCA HUSAIN, BARBARA KAMINSKI, MARY DAILEY, ANDREW SMITH, TANYA SPURGEON, JILL ROBERTS, and JENNIFER CIPOLLINO, individually, and on behalf of the classes and all others similarly situated, Plaintiffs v. SYNEOS HEALTH, INC., Defendant, Case No. 4:23-cv-00093-BO (E.D.N.C., June 6, 2023) arises out of the Defendant's violations of the Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. This is a class action brought by former employees of Syneos Health, Inc. alleging a comprehensive pattern and practice of discrimination relating to its COVID-19 Vaccination Mandate under Title VII and ADA. The Plaintiffs seek damages, including back pay, front pay, liquidated damages, punitive damages, lost benefits, compensatory damages, damages for emotional distress, pain and suffering, reasonable attorneys' fees and costs, declaratory relief, injunctive relief, as well as any other relief to which Plaintiffs are entitled. Syneos is incorporated under the laws of the State of Delaware and has its principal place of business located at 1030 Sync Street, Morrisville, North Carolina. It is a biopharmaceutical solutions company that assists in the development and commercialization of biopharmaceutical products. [BN] The Plaintiffs are represented by: Dana Stone, Esq. SIRI & GLIMSTAD LLP 525 North Tryon Street Suite 1600, #7433 Charlotte, NC 28202 Telephone: (980) 448-1299 Facsimile: (646) 417-5967 E-mail: dstone@sirillp.com - and - Elizabeth A. Brehm, Esq. Walker D. Moller, Esq. Jack Spitz, Esq. SIRI & GLIMSTAD LLP E-mail: ebrehm@sirillp.com wmoller@sirillp.com jspitz@sirillp.com TOC ENERTERPRISES: Cadenas Files Suit in M.D. Tennessee ------------------------------------------------------- A class action lawsuit has been filed against TOC Enerterprises, Inc. The case is styled as Lynne Cadenas, individually and as next friend on behalf of M.C. (minor), and on behalf of all others similarly situated v. TOC Enerterprises, Inc. doing business as: Tennessee Orthopaedic Clinics, a division of Tennessee Orthopaedic Alliance, P.A., Case No. 3:23-cv-00598 (M.D. Tenn., June 12, 2023). The nature of suit is stated as Other Contract for Personal Injury. TOC Enerterprises, Inc. doing business as Tennessee Orthopaedic Clinics -- https://www.tocdocs.com/ -- offers comprehensive medical and surgical treatment of bone, joint and soft tissue disorders.[BN] The Plaintiff is represented by: Danielle L. Perry, Esq. WHITFIELD BRYSON LLP (DC) 641 S. St. NW Washington, DC 20001 Phone: (202) 640-1168 Fax: (202) 429-2294 Email: dperry@wbmllp.com - and - Gary E. Mason Lisa A. White MASON LLP 5335 Wisconsin Avenue NW, Suite 640 Washington, DC 20015 Phone: (202) 429-2290 Fax: (202) 429-2294 Email: gmason@masonllp.com lwhite@masonllp.com TPIP LLC: Toro Files ADA Suit in S.D. New York ---------------------------------------------- A class action lawsuit has been filed against TPIP, LLC. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. TPIP, LLC, Case No. 1:23-cv-04958-AT (S.D.N.Y., June 13, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. TPIP, LLC is an Ohio Domestic Limited-Liability Company.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com VAIL CORP: 10th Cir. Affirms in Part Dismissal of McAuliffe Suit ---------------------------------------------------------------- In the case, MICHAEL McAULIFFE; McKENNA CONNOLLY; STEPHEN CONTI; STEVEN BEILEY; TERRY CHECHAKLI; NORMAN CHENEY; MATTHEW BALKMAN, individually and on behalf of all others similarly situated, Plaintiffs-Appellants v. THE VAIL CORPORATION, d/b/a Vail Resorts Management Company; VAIL RESORTS, INC., Defendants-Appellees, Case No. 21-1400 (10th Cir.), the U.S. Court of Appeals for the Tenth Circuit affirms in part and vacates in part the district court's order granting the Defendants-Appellees' Rule 12(b)(6) motion for failure to state a claim and dismissing all of the Passholders' claims with prejudice. In March 2020, as COVID-19 spread across the United States, The Vail Corp. and Vail Resorts, Inc. (collectively, "Vail") closed its ski resorts and did not reopen them until the start of the 2020-2021 ski season. The Plaintiffs-Appellants ("Passholders") are a group of skiers and snowboarders who purchased Epic Passes from Vail to access its resorts during the 2019-2020 ski season. The Passholders, on behalf of themselves and a class of similarly situated individuals, brought contractual, quasi-contractual, and state consumer protection law claims all based on the same issue -- Vail's decision to close its ski resorts in March 2020 due to the COVID-19 pandemic without issuing refunds to Passholders. During the 2019-2020 ski season, Vail operated 37 ski resorts and urban ski areas across the United States and the world. Passholders Michael McAuliffe, Mckenna Connolly, Stephen Conti, Steven Beiley, Terry Chechakli, Norman Cheney, and Matthew Balkman9, all purchased some type of Epic Pass for the 2019-2020 ski season from Vail's website. They purchased Epic Passes with the expectation that, as during all prior years, the Epic Passes would permit access to Vail's ski areas until snow conditions were such that skiing and snowboarding were not possible. Specifically, the Passholders relied on Vail's statements concerning benefits conferred by the Passes and expected that the Passes would confer unlimited access for the entire 2019-2020 season. All Passholders intended to use their passes after March 14, 2020, and a couple had not yet used their passes as of March 14, 2020. They would not have purchased their passes or would not have been willing to pay as much for them, if they had been aware the passes would not be good for the entire 2019-2020 ski season. The year 2020 brought unprecedented challenges, as the nation fell into the grip of the COVID-19 pandemic. In mid-March 2020, the media reported COVID-19 was spreading around ski areas in Colorado. Vail initially responded to the outbreak on March 15, 2020, announcing a temporary closure of all its ski resorts in North America through March 22, 2020. Two days later, Vail announced it would be closing all ski resorts in North America through the summer. After closing its resorts, Vail furloughed employees and otherwise substantially reduced its operating costs for the remainder of the 2019-2020 ski season. Starting in April 2020, Passholders impacted by Vail's mid-March closure of its resorts filed multiple suits on similar legal theories in the U.S. District Court for the District of Colorado. The district court ordered that all related class action suits by Passholders be consolidated and appointed lead counsel for the consolidated class action. Following the consolidation of the cases and appointment of lead counsel, Passholders filed their operative complaint on Nov. 19, 2020. The Passholders, pursuant to Federal Rule of Civil Procedure 23, brought claims on behalf of themselves and a nationwide class consisting of "all persons in the United States who purchased any Epic Season Pass or an Epic Daily Pass that had unused days after March 14, 2020." They also brought several state-specific claims on behalf of five subclasses -- consisting of class members in California, Illinois, New York, Florida, and Washington, pursuant to Federal Rule of Civil Procedure 23(c)(5). In total, the Passholders brought 12 claims falling into three categories -- contractual claims, quasi-contractual claims, and state consumer protection law claims. Vail responded to the complaint by submitting a Federal Rule of Civil Procedure 12(b)(6) motion, seeking dismissal of all of the Passholders' claims for failure to state a claim. Ultimately, the district court granted Vail's Rule 12(b)(6) motion for failure to state a claim and dismissed all of the Passholders' claims with prejudice. Having granted Vail's Rule 12(b)(6) motion to dismiss all of the Passholders' claims, the court entered final judgment. The Passholders appeal, arguing the district court erred in its interpretation of their contracts with Vail. The Tenth Circuit notes that the district court determined the Passholders' contractual and state consumer protection law claims failed based on its interpretation of two parts of the contract between the Passholders and Vail: (1) the meaning of "2019-2020 ski season" in the context of Vail's promise that Passholders could access its resorts for the entire 2019-2020 ski season; and (2) the impact of a no-refund clause in the contract between Vail and Passholders on Passholders' ability to seek refunds based on Vail closing its resorts prior to the end of the season. Although it does not agree with the district court's interpretation of "2019-2020 ski season," the Tenth Circuit is in accord with its ultimate conclusion that the Passholders have failed to state a contractual claim. It finds that the Passholders sought only one form of relief in their complaint -- refunds of the costs of their Epic Passes. But the Passholders contracted for the purchase of passes under the condition that the passes were not eligible for refunds of any kind. And although the Passholders point to authority suggesting some jurisdictions limit the application of no-refund clauses depending on which party terminates a contract, these cases are distinguishable and the Passholders have identified no Colorado authority suggesting the contract should be interpreted any way other than according to the plain meaning of the words. Therefore, the Tenth Circuit agrees with the district court's determination that the Passholders failed to adequately plead their contractual claims. Recognizing that the Passholders might amend their breach of contract and breach of warranty claims to seek other forms of relief, however, the Tenth Circuit vacates the dismissal of these two claims with prejudice and remands for the district court to modify its judgment to a dismissal without prejudice. Because the Passholders' breach of the implied covenant of good faith and fair dealing claim rested solely on Vail's exercise of its contractual right not to issue refunds, the Tenth Circuit affirms the dismissal of this claim with prejudice. It also affirms the district court's dismissal of the Passholders' two quasi-contractual claims because the Passholders failed to allege sufficient facts to show the claims were based on a dispute not already covered by their express contracts with Vail. The Passholders attempted to plead these claims in the alternative, arguing their contracts with Vail may be illusory if interpreted to give Vail total discretion over the dates of the ski season. But because no reasonable interpretation of Passholders' contracts with Vail would render the contracts illusory, the district court correctly granted dismissal of these two claims. As with the Passholders' breach of contract and breach of warranty claims, the Tenth Circuit concludes that the district court correctly dismissed the Passholders' consumer protection claims. Although the Tenth Circuit concludes a reasonable jury could find that Vail acted unfairly or deceptively by advertising Epic Passes as providing access to its resorts for the entire 2019-2020 ski season, the Passholders' claims fail because they sought only refunds as a remedy for these claims -- a remedy expressly prohibited by their contracts. Recognizing the Passholders could refile these claims to seek an alternative remedy, however, the Tenth Circuit vacates the district court's dismissal of the Passholders' state consumer protection law claims with prejudice so the district court may modify its dismissal of these six claims to be without prejudice. In sum, the Tenth Circuit affirms in part and vacates in part. It affirms the district court's dismissal of the Passholders' implied covenant of good faith and fair dealing, unjust enrichment, and money had and received claims. It vacates the district court's dismissal of the Passholders' breach of contract, breach of warranty, and state consumer protection claims, so that the district court may modify the dismissal of these claims to be without prejudice. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/4wce2nnn from Leagle.com. Nyran Rose Rasche -- nrasche@caffertyclobes.com -- Cafferty Clobes Meriwether & Sprengel LLP, Chicago, Illinois (Katherine D. Varholak -- kvarholak@shermanhoward.com -- and Melissa K. Reagan -- mreagan@shermanhoward.com -- Sherman & Howard, Denver, Colorado; and Bryan L. Clobes -- bclobes@caffertyclobes.co -- Cafferty Clobes Meriwether & Sprengel LLP, Media, Pennsylvania, with her on the briefs), for the Plaintiffs-Appellants. Michael J. Hofmann -- michael.hofmann@bclplaw.com -- Bryan Cave Leighton Paisner, LLP, Denver, Colorado (David L. Miller -- david.miller@bclplaw.com -- Bryan Cave Leighton Paisner, LLP, Denver, Colorado; and Darci Madden -- dfmadden@bclplaw.com -- Bryan Cave Leighton Paisner, St. Louis, Missouri, with him on the brief) for the Defendants-Appellees. VERIDIAN CREDIT UNION: Mohsen Files Suit in N.D. Iowa ----------------------------------------------------- A class action lawsuit has been filed against Veridian Credit Union. The case is styled as Ghassan Mohsen, on behalf of himself, and all others similarly situated v. Veridian Credit Union, Case No. 3:23-cv-00589 (N.D. Iowa, June 12, 2023). The nature of suit is stated as Other P.I. Veridian Credit Union -- https://www.veridiancu.org/ -- is a credit union in the state of Iowa, USA, with assets over 5 billion USD and a member base of over 250,000.[BN] The Plaintiff is represented by: Roxanne Barton Conlin, Esq. ROXANNE CONLIN & ASSOCIATES 3721 SW 61st Street, Suite C Des Moines, IA 50321-2418 Phone: (515) 283-1111 Email: efile@roxanneconlinlaw.com VIENNA BEEF LTD: Donet Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Vienna Beef Ltd. The case is styled as Maricela Donet, individually, and on behalf of all others similarly situated v. Vienna Beef Ltd., Case No. 1:23-cv-04929 (S.D.N.Y., June 12, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Vienna Beef Inc. -- https://www.viennabeef.com/ -- is the main manufacturer of the hot dog used in the classic Chicago-style hot dog, as well as Polish sausage and Italian beef, delicacies of independent Chicago-style hot dog and beef stands. The company also produces a variety of deli meats, some of which are available at Chicago area supermarkets.[BN] The Plaintiff is represented by: Patrick William Gallagher, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: pgallagher@mizrahikroub.com WATCH GUARD: Joseph Sues Over Security Guards' Unpaid Wages ----------------------------------------------------------- ROBERTO JOSEPH and MANPELLIE HARMON, on behalf of themselves, FLSA Collective Plaintiffs, and the Class, Plaintiffs v. WATCH GUARD 24/7 LLC d/b/a WATCH GUARD 24/7, JOHN RAFFERTY, and MICHELE RAFFERTY, Defendants, Case No. 516314/2023 (N.Y. Sup., Kings Cty., June 5, 2023) seeks to recover from the Defendants unpaid wages, including overtime due to time-shaving; spread of hours premiums; statutory penalties; liquidated damages; and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff was hired by Defendants to work as a security guard in the summer of 2019 and was assigned to perform duties at five separate buildings owned by Defendants' clients. The Plaintiff's employment with Defendants was terminated on April 12, 2022. Watch Guard 24/7 LLC, d/b/a Watch Guard 24/7, provides security services.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 WELLSPRING MEADOWS: Matthews Sues Over Unpaid Overtime Wages ------------------------------------------------------------ ANGELA MATTHEWS, individually and on behalf of all others similarly situated, Plaintiff v. WELLSPRING MEADOWS, INC., Defendant, Case No. 2:23-cv-00270-DCN (D. Idaho, June 2, 2023) seeks to recover Plaintiff's unpaid overtime wages and other damages made by the Defendant under the Fair Labor Standards Act. Plaintiff Matthews has worked for Wellspring since June 2016. She asserts the Defendant's failure to pay her and other hourly workers like her overtime as required by federal law. She contends that Wellspring instead paid her and other workers at their same hourly rates, even when they worked more than 40 hours in a workweek. Wellspring Meadows, Inc. provides in-home healthcare and assisted living services.[BN] The Plaintiff is represented by: K. Jill Bolton, Esq. BOLTON LAW, PLLC 111 N. 7th St., #3386 Coeur d'Alene, ID 83816 Telephone: (208) 306-3360 Facsimile: (208) 519-3974 E-mail: reception@kjboltonlaw.com - and - Matthew S. Parmet, Esq. Sammy O. Homsi, Esq. PARMET PC 2 Greenway, Ste. 250 Houston, TX 77046 Telephone: (713) 999-5228 E-mail: matt@parmet.law sammy@parmet.law WEST VIRGINIA: Supreme Court Rules Class Action Suit Can Proceed ---------------------------------------------------------------- Roger Adkins at wvgazettemail.com reports that the West Virginia Supreme Court of Appeals has ruled that a class action lawsuit may proceed against West Virginia American Water over a 2015 line break in Dunbar. The high court issued the ruling denying West Virginia American Water's request for a writ of prohibition seeking to undo a Kanawha County Circuit judge's certification of the class action in 2022. The lawsuit was originally filed in 2017 by Richard Jeffries and Colours Beauty Salon. "We are grateful that the court denied WVAW companies' attempt to dismantle our class of customers, residents, and businesses that has now been certified twice in circuit court," said Dante diTrapano, attorney for the plaintiffs. The plaintiffs allege that they suffered damages as a result of West Virginia American Water's negligence, breach of contract, and violations of the West Virginia Consumer Credit and Protection Act. "We are anxious to get our 'notice' out to the class members and finally start litigating this case almost exactly eight years after the Dunbar main blew out in 2015. While sometimes the wheels of justice churn slowly, they inevitably reach the right result," diTrapano said. The water line break occurred on June 23, 2015, and affected water service to approximately 25,000 customers in western Kanawha, eastern Putnam, eastern Mason, and northern Lincoln counties in West Virginia, according to the lawsuit. Customers began to experience outages and water pressure issues on that day. West Virginia American Water issued a precautionary boil water advisory for customers west of Dunbar and advised those customers to limit non-essential water use, the lawsuit alleges. Service was restored on June 27, 2015, but further problems developed causing additional disruptions in service. The plaintiffs allege West Virginia American Water was aware the main was unreliable and prone to breakage, yet failed to replace the main or make improvements to mitigate service disruptions in the event of a break, according to court documents. The lawsuit further alleges that in 2011, the West Virginia Public Service Commission issued an order requiring West Virginia American Water to increase its "unacceptable" existing water main replacement rate but the water company failed to do so. According to the lawsuit, the plaintiffs allege the water main break and its repair resulted in two separate water service interruptions that caused outages, inadequate water pressure, and boil water advisories affecting approximately 25,000 West Virginia American Water customers for a period of three to seven days. The plaintiffs sought to certify a class action lawsuit against West Virginia American Water for damages resulting from the water main break. In July 2022, Kanawha County Circuit Court granted the plaintiffs' motion to certify an "issues" class under West Virginia Rules of Civil Procedure, which would allow the parties to litigate common issues of fact and law without certifying a full class, according to the Supreme Court's ruling. West Virginia American Water then filed a petition for a writ of prohibition with the Supreme Court, seeking to prevent the circuit court from proceeding with the "issues" class certification. According to court documents, West Virginia American Water argued the determination of liability under the causes of action asserted by the plaintiffs required individualized assessments of the impact of the water main break as to each customer, destroying the required elements of commonality, typicality, predominance, and superiority under West Virginia Rule of Civil Procedure. The circuit court found that there were overarching common issues as to West Virginia American Water's liability that could be resolved through an "issues" class certification. The Supreme Court agreed with this finding and denied West Virginia American Water's petition for a writ of prohibition. The Supreme Court examined the five factors used to determine whether to grant a writ of prohibition in cases where it is claimed that the lower tribunal exceeded its legitimate powers, and found that none of the factors weighed in favor of granting the writ, according to the ruling. Specifically, the Court found that West Virginia American Water had no other adequate means, such as direct appeal, to obtain the desired relief; West Virginia American Water would not be damaged or prejudiced in a way that is not correctable on appeal; the circuit court's order was not clearly erroneous as a matter of law; the circuit court's order was not an oft-repeated error or manifested persistent disregard for either procedural or substantive law; and there were no extraordinary circumstances present that would justify granting the writ, according to the ruling. Justice William Wooten delivered the opinion of the court, which denied West Virginia American Water's petition for a writ of prohibition. Justice Tim Armstead dissented and reserved the right to file a separate opinion. A spokesperson for West Virginia American Water declined to comment. [GN] WEST VIRGINIA: Writ of Prohibition Request in Jeffries Suit Denied ------------------------------------------------------------------ In the case, STATE OF WEST VIRGINIA ex rel. WEST VIRGINIA-AMERICAN WATER COMPANY, Petitioner v. THE HONORABLE CARRIE L. WEBSTER, Judge of the Circuit Court of Kanawha County, West Virginia; RICHARD JEFFRIES, individually And on behalf of all others similarly situated; and COLOURS BEAUTY SALON, LLC, Respondents, Case No. 22-658 (W. Va.), Judge William R. Wooton of the Supreme Court of Appeals of West Virginia denies West Virginia-American Water Co.'s writ of prohibition. Petitioner West Virginia denies West Virginia-American Water Co. ("WVAWC")'s seeks a writ of prohibition to preclude enforcement of the Circuit Court of Kanawha County's July 5, 2022, order certifying an "issues" class pursuant to West Virginia Rule of Civil Procedure 23(c)(4) in this putative class action involving a June 2015 water main break in Dunbar, West Virginia. The break and its repair resulted in two separate water service interruptions that caused outages, inadequate water pressure, and boil water advisories affecting approximately 25,000 WVAWC customers for a period of three to seven days. Putative class Plaintiffs/Respondents Richard Jeffries and Colours Beauty Salon, LLC filed a complaint on behalf of the putative class, asserting claims for violation of statute, breach of contract, and common law negligence against WVAWC for its alleged failure to adequately maintain its facilities to prevent and/or mitigate the break. Upon respondents' motion, the circuit court certified an "issues" class to determine "the overarching common issues" as to WVAWC's liability. In opposition, WVAWC argued that the determination of liability under the causes of action asserted by respondents necessarily requires individualized assessments of the "impact" of the water main break as to each customer, destroying the required elements of commonality, typicality, predominance, and superiority under West Virginia Rule of Civil Procedure 23. However, the circuit court found that the specific impact on each class member related to damages and was therefore severable from the underlying issue of whether WVAWC failed to maintain its facilities in such a manner as to comply with its statutory, contractual, and common law obligations to its customers. The underlying case involves a break in WVAWC's 36-inch diameter prestressed concrete cylinder pipe transmission main in Dunbar, West Virginia, which serves western Kanawha, eastern Putnam, eastern Mason, and northern Lincoln counties. The break was discovered on June 23, 2015 and affected water service to approximately 25,000 customers. On June 23, customers began to experience outages and water pressure issues; WVAWC issued a precautionary boil water advisory for customers west of Dunbar and advised those customers to limit non-essential water use. Service was restored on June 27, 2015, but further problems developed causing additional disruptions in service. Another boil water advisory was issued on June 29, 2015, for customers who experienced low or no water pressure. Full water service was allegedly restored on July 1, 2015. On June 2, 2017, the instant civil action was filed by respondents on behalf of the putative class of affected customers. The Respondents alleged, inter alia, that WVAWC was aware that the main was unreliable and prone to breakage yet failed to replace the main or make feasible improvements, such as connecting to a neighboring system, adding larger capacity mains, or increasing treated water storage, to mitigate service disruptions in the event of a break. They further alleged that, in 2011, the West Virginia Public Service Commission ("PSC") issued an order requiring WVAWC to increase its "unacceptable" existing water main replacement rate, but WVAWC failed to do so. The original complaint against WVAWC alleged 1) breach of contract for failure to supply "usable tap water or adequate water pressure" as required by West Virginia Code of State Rules Section 150-7-4.1.e.4 (2011); 2) breach of contract for failure to maintain the plant and system in such condition as to furnish "safe, adequate and continuous service" as required by West Virginia Code of State Rules Section 150-7-5.1.a (2011)3; 3) a statutory cause of action for violation of the requirement found in West Virginia Code Section 24-3-1 (1921) to maintain "adequate and suitable facilities"; and 4) common law negligence for WVAWC's failure to comply with its duty to maintain its plant and system. The Respondents then moved to certify an "issues" class pursuant to Rule 23(c)(4) as to WVAWC's "liability" only, conceding that damages were not susceptible to class resolution. WVAWC opposed class certification. In certifying the class, the circuit court rejected WVAWC's contention that the potential differences in the degree of service interruption" among class members dictated whether there was any breach of duty or contract, finding that the core issues in the case remain whether WVAWC's actions toward the class as a whole violated the law. It concluded that the relevant liability evidence such as WVAWC's knowledge of the main's propensity for breakage, would not "delve unnecessarily into individual inquiries relevant to particular customers. The court therefore certified a Rule 23(c)(4) class with respect to the overarching common issues of whether WVAWC is liable for breach of contract and negligence, and for actionable violation of its statutory duties under the West Virginia Code. WVAWC once again seeks a writ of prohibition to preclude the circuit court from enforcing its certification order. WVAWC separately assigns as error the circuit court's analysis of the Rule 23 requirements of commonality, typicality, predominance, superiority, and ascertainability -- all as pertains to its creation of a Rule 23(c)(4) "issues" class. However, Judge Wooton holds that all of these assignments of error largely rest upon a single contention: that the certified issue as characterized by the circuit court is not susceptible to class treatment because the proof required to establish WVAWC's liability includes an assessment of the extent to which each individual customer's water service was affected. WVAWC argues that the Respondents' causes of action by their terms require consideration of impact to determine a violation. The Respondents' summary response primarily focuses on what it claims is WVAWC's "about-face" in the litigation. They argue that WVAWC's early request to refer the matter to the PSC is inconsistent with its present contention that liability is inextricably tied to individual impact and therefore cannot be separated for purposes of a liability-focused "issues" class. They contend that this request constitutes WVAWC's implicit concession that the issue of liability certified by the circuit court is common and indeed severable from individual issues. After careful review of the parties' briefs, Judge Wooton finds that WVAWC has failed to demonstrate that the circuit court's class certification pursuant to Rule 23(c)(4) is clearly erroneous. He says WVAWC provides no authority for such characterization of its duty and implicitly concedes this duty is not expressly stated by indicating that referral to the PSC was for the purposes of confirming that the level of service required is reasonable, not uninterrupted, and defining reasonable service. Having determined that only one of the Respondents' three causes of action implicates, in part, individual customer impact, Judge Wooton turns to the court's certification order and the required Rule 23 elements to determine the effect, if any, of this individualized issue on the certification. He finds that it is sufficient for the Court's purposes to characterize the Rule 23(c)(4) issues certified by the circuit court as the "liability issues" of duty and whether WVAWC breached its statutory, contractual, or common law duties to respondents. With this understanding of the Rule 23(c)(4) issue(s) certified by the circuit court, under a proper evaluation of the requisite elements of respondents' causes of action, Judge Wooton turns finally to the requirements of Rule 23. He finds no clear error in the circuit court's certification of a Rule 26(c)(4) issues class in this matter. Among other things, Judge Wooton finds that (i) all of the Respondents' claims stem from and require common proof as to WVAWC's alleged actions in failing to prevent or establish mitigation efforts against the water main break and the resultant service disruption; (ii) the class members were subject to the same event, precipitated by the same alleged conduct, which they seek to vindicate through the same theories of legal relief; (iii) each of the Respondents three causes of action contains a common issue requiring common proof that WVAWC failed to properly maintain its facilities and system as a prerequisite to WVAWC's potential liability; and (iv) the Rule 23(c)(4) issue certified, isolating the issue of whether WVAWC failed to adequately maintain its facilities, predominates in the liability aspect of respondents' collective causes of action For the foregoing reasons, Judge Wooton denies the requested writ of prohibition. A full-text copy of the Court's June 6, 2023 Opinion is available at https://tinyurl.com/39p365e4 from Leagle.com. Thomas J. Hurney, Jr., Esq. -- thurney@jacksonkelly.com -- Alexandra Kitts, Esq. -- akitts@jacksonkelly.com -- Blair E. Wessels, Esq. -- blair.wessels@jacksonkelly.com -- JACKSON KELLY PLLC, Charleston, West Virginia, Kent Mayo, Esq. -- kent.mayo@bakerbotts.com -- BAKER BOTTS L.L.P., Washington, D. C., Counsel for the Petitioner. Marc E. Williams, Esq. -- marc.williams@nelsonmullins.com -- Jennifer W. Winkler, Esq. -- jennifer.winkler@nelsonmullins.com -- NELSON MULLINS RILEY & SCARBOROUGH LLP, Huntington, West Virginia, Counsel for Amici Curiae National, Association of Water Companies, Edison Electric Institute, and American, Gas Association. Alex McLaughlin, Esq., W. Stuart Calwell, Esq. , L. Dante' diTrapano, Esq., CALWELL LUCE diTRAPANO, PLLC, Charleston, West Virginia, and Kevin W. Thompson, Esq., THOMPSON BARNEY, Charleston, West Virginia, Counsel for Respondents Richard Jeffries and Colours Beauty Salon, LLC. ********* 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. 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