/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230627.mbx C L A S S A C T I O N R E P O R T E R Tuesday, June 27, 2023, Vol. 25, No. 128 Headlines ABBOTT LABORATORIES: Consumers Receive Suit Settlement Checks ADROIT HEALTH: Has Made Unsolicited Calls, Echols Alleges ALBANY ENT: Fails to Protect Patients' Personal Info, Tziakas Says ALLSTATE PROPERTY: Zakowicz's Opinions Excluded From Durgin Suit AMADOR COUNTY, CA: Lyle Can Proceed in Forma Pauperis, Court Says AMERICAN FINANCIAL: Wiley Seeks to Certify Class of Consumers ANTERO RESOURCES: Kirkbride Appeals Case Dismissal to 6th Cir. ATLAS MEDSTAFF: Fails to Pay Proper Wages, Gayler Suit Alleges BAM TRADING: Faces Osterer Suit Over Stolen Cryptocurrency BITWISE INDUSTRIES: Nunn Sues Over Layoff Without Prior Notice BP EXPLORATION: Brown & Norswearthy Claims Dismissed With Prejudice BROKER SOLUTIONS: Fails to Pay Proper Wages, Charbonneau Says CANADA: Faces Class Suit Over Inadequate Housing Conditions CAPSULE CORP: Carey, Ruiz Sue Over State Labor Law Violations CARE AT HOME: Bid to Dismiss Nqadolo's Amended Complaint Denied CELSIUS HOLDINGS: Settles False Ads Class Suit for $7.8 Mil. CHAIN DRUG MARKETING: Faces Class Suit Over Lidocaine Patches CHAMPION PETFOODS: Heavy Metals Class Summary Judgment Affirmed CHAMPION PETFOODS: Summary Judgment in Paradowski Suit Affirmed CHICKEN SOUP: Kahan Sues for Breach of Fiduciary Duty CHILDREN'S HOSPITAL: Brimer Appeals Dismissal of Civil Rights Suit CHILDTIME CHILDCARE: Fails to Pay Proper Wages, Covington Says CLOOPEN GROUP: Dong Suit Settled; Matter Discontinued W/ Prejudice DELTA PACKING: Carrillo, Andres Nixed From Perez Suit W/o Prejudice DIRECTV LLC: Settles Brown Telemarketing Class Suit for $17 Mil. DISPLATE CORP: Gutierrez Sues Over False Discount Offers DISTROKID LLC: Doeman Music Sues Over Breach of Fiduciary Duty ELLUSIONIST.COM INC: Court Narrows Claims in Guerrero Class Suit ENZO BIOCHEM: Fails to Prevent Data Breach, Guthart Alleges FIRST CONNECTICUT: Dismissal of Karp Securities Class Suit Affirmed FORD MOTOR: Bolton Sues Over Defective Ford Engines FORD MOTOR: Militello Suit Moved to Eastern District of Michigan FORMAN MILLS: Del Rossi Sue Over Termination Without Prior Notice FRIDA RESTAURANT: Covarrubias Sues Over Busboys' Unpaid Wages GD TOP NOTCH: Fails to Pay Overtime Pay, Moore Alleges GEICO: Discloses Web Visitor's Viewing Habits, Suit Claims GIVAUDAN SA: Chautauqua Sues Over Fragrance Price Monopoly GLENN O. HAWBAKER: Hourly Wage Workers Class Certified in Packer GOHEALTH LLC: Dantzler GIPA Suit Removed to N.D. Illinois GOOGLE LLC: Settles Data Privacy Class Action for $23 Million HARVARD PILGRIM: Faces Class Suit Over Data Breach, Cyber Attack HOPKINSVILLE SOLID WASTE: Hawkins Seeks Truck Drivers' Unpaid OT IBEX GLOBAL: Consumers Receive Data Breach Suit Settlement Checks INDIANA COUNTY, IN: Superior Court Certifies State Abortion Ban INSOMNIA COOKIES: Forte Class Suit Moved to N.D. Indiana JPMORGAN CHASE: Faces Stoll Class Suit Over Payment Network Glitch JPMORGAN CHASE: Stoll Sues Over Zelle Network Service Malfunction KAMPS INC: Fails to Pay Proper Overtime Wages, Barrios Alleges KIDSPEECH INC: Fails to Pay Overtime Wages, Arstikaitis Alleges LABRADA NUTRITION: Consumers Receive Class Suit Settlement Checks LANGUAGE LINE: Approval of $960K Settlement in Rouse Suit Denied LOADSMART INC: Fails to Pay Proper Wages, Burr Alleges LOZANO INSURANCE: Counsel in Mosley Suit to Dispense $5K to NIWR LYFT INC: Ruozzi Sues Over Deceptive Food Delivery Services MANAGED CARE: Fails to Prevent Data Breach, Brown Alleges MANAGED CARE: Fails to Prevent Data Breach, Manning Alleges MANAGED CARE: Fails to Prevent Data Breach, Menendez Alleges MANAGED CARE: Fails to Prevent Data Breach, Shuey Alleges MANAGED CARE: Fails to Safeguard Customers' Info, Shuey Alleges MERCER UNIVERSITY: Fails to Protect Personal Info, Ramos Claims NATIONAL GRID: Nightingale Appeals Summary Judgment to 1st Cir. NIGHTHAWK COMPLETION: Fails to Pay Proper Wages, Cytacki Says NORDIC NATURALS: Caldwell Sues Over Deceptive Product Labeling NORTHROP GRUMMAN: ERISA Plan Sponsor Class Certification Affirmed OAKLAND COUNTY, MI: E.D. Michigan Refuses to Stay Sinclair Suit OWNERS INSURANCE: Summary Judgment in White Knight Suit Affirmed PEACH CREEK: Fails to Pay OT Wages Under FLSA, Sanders Claims PEEK-A-BOO CHILDCARE: Fails to Pay Proper Wages, Ballagan Claims PEOPLEREADY INC: Fails to Pay Proper Wages, Pittman Claims PFIZER INC: Consumers Receive Class Suit Settlement Checks PHARMERICA CORPORATION: Fails to Prevent Data Breach, Suit Says PLANET AUTOMOTIVE: Bid to Dismiss First Amended Schultz Suit Denied PLUG POWER: Faces Stewart Suit Over Drop in Share Price PROVIDENCE, RI: Denial of Washington's Bid to Intervene Recommended SCRIBE MEDIA: Cormier Sues Over Mass Layoff Without Prior Notice SENTINELONE: Fails to Disclose Facts to Investors, Johansson Claims SIX FLAGS: Bid for Judgment on Pleadings OK'd in OFPRS Suit SLT LENDING: Fails to Protect Private Info From Data Breach SMILEDIRECTCLUB INC: Plaintiffs Seek Rule 23 Class Certification SOUTH STATE: Rule 12(c) Bid Denied in Fludd Class Action SQUARETRADE INC: Settles Class Action Suit Over Underpaid Claims SRG GLOBAL: Court Dismisses Peeler's Claim for Strict Liability STEEL RIVER: Suit Seeks Judicial Declaration of No Duty to Defend STERLING JEWELERS: Consumers Receive Suit Settlement Checks TABLE 87 GOWANUS: Removes Barroso Suit to S.D. New York TARGET CORP: Fails to Reimburse Gift Cards' Remaining Balance TRINITY HEALTH: Faces Class Suit Over Alleged Data Breach TROPICAL INDUSTRIES: Fails to Pay Proper Wages, Bautista Says UNIVERSAL LOGISTICS: Seeks to Stay Class Cert Briefing in Valdez VARSITY BRANDS: Seeks to Strike Maki Declaration in Jones Suit WALLACE J 2755: Faces Tran Suit Over Unsolicited Text Messages WALMART INC: Court Terminates Bid to Certify Class in Guzman WALT DISNEY: Fraud Securities Class Action Suit May Proceed WELLS FARGO: Appellate Court Affirms Order Dismissing Rogers Suit WEST VIRGINIA AMERICAN: Suit Over 2015 Line Break May Proceed WESTECH SECURITY: Fails to Pay Proper Wages, Carrasquillo Says WESTERN EXPRESS: Fails to Pay Proper Wages, Martin Alleges ********* ABBOTT LABORATORIES: Consumers Receive Suit Settlement Checks ------------------------------------------------------------- Brigette Honaker of Top Class Actions reports Similac purchasers have started to receive payments from a $19.5 million class action lawsuit settlement with Abbott Laboratories over inflated serving labeling. The settlement benefits consumers who purchase certain Similac products between June 24, 2016, and Sept. 22, 2022. The Similac class action lawsuit claims that packaging for the formula brand overstates the total number of servings each container can make. In reality, the products allegedly make significantly less than promised — causing consumers to unknowingly overpay for less product. Abbott Laboratories didn't admit any wrongdoing but agreed to pay $19.5 million to resolve the class action lawsuit. Under the terms of the settlement, consumers could receive up to $15 without proof of purchase or up to $45 with proof of purchase. Top Class Actions readers report receiving payments of $15. The Similac false advertising class action lawsuit is Ramsey-Standage, et al. v. Abbott Laboratories, Case No. 22PH-CV00853, in the Circuit Court of Phelps County, Missouri. [GN] ADROIT HEALTH: Has Made Unsolicited Calls, Echols Alleges --------------------------------------------------------- MARIA ECHOLS, individually and on behalf of all and others similarly situated, Plaintiff v. ADROIT HEALTH GROUP, LLC; and MEDIAALPHA, INC., Defendants, Case No. 6:23-cv-00758-LSC (N.D., Al., June 12, 2023) seeks to stop the Defendants' practice of making unsolicited calls. ADROIT HEALTH GROUP, LLC provides insurance agent and broker services for a range of insurance types. [BN] The Plaintiff is represented by: J. Matthew Stephens, Esq. METHVIN, TERRELL, YANCEY, STEPHENS & MILLER, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 Email: mstephens@mtattorneys.com ALBANY ENT: Fails to Protect Patients' Personal Info, Tziakas Says ------------------------------------------------------------------ ARGIRO TZIAKAS, on behalf of herself individually and on behalf of all others similarly situated, Plaintiff v. ALBANY ENT & ALLERGY SERVICES P.C., Defendant, Case No. 1:23-cv-00672-BKS-CFH (N.D.N.Y., June 5, 2023) arises from a recent cyberattack resulting in a data breach of Plaintiff's sensitive information in the possession and custody and/or control of Defendant in violation of the New York Deceptive Trade Practices Act. The alleged data breach, occurred between March 23, 2023, and April 4, 2023, has resulted in the unauthorized disclosure, exfiltration, and theft of current and former patients' highly personal identifying information, including names, Social Security numbers, dates of birth, addresses, and medical history and treatment information or protected health information. According to the complaint, Defendant's failure to timely detect and report the data breach made its patients vulnerable to identity theft without any warnings to monitor their financial accounts or credit reports to prevent unauthorized use of their sensitive information. In failing to adequately protect Plaintiff's and the Class' sensitive information, failing to adequately notify them about the breach, and by obfuscating the nature of the breach, Defendant violated state and federal law and harmed an unknown number of its current and former patients, says the suit. Albany ENT & Allergy Services P.C is a healthcare practice that provides care for individuals with disorders of the ear, nose, throat, head, and neck.[BN] The Plaintiff is represented by: James J. Bilsborrow, Esq. WEITZ & LUXENBERG, PC 700 Broadway New York, NY 10003 Telephone: (212) 558-5500 E-mail: jbilsborrow@weitzlux.com - and - Samuel J. Strauss, Esq. Raina Borrelli, Esq. TURKE & STRAUSS LLP 613 Williamson Street, Suite 201 Madison, WI 53703  Telephone: (608) 237-1775  Facsimile: (608) 509-4423  E-mail: sam@turkestrauss.com   raina@turkestrauss.com ALLSTATE PROPERTY: Zakowicz's Opinions Excluded From Durgin Suit ---------------------------------------------------------------- In the case, GLENN DURGIN v. ALLSTATE PROPERTY & CASUALTY INSURANCE CO., Case No. 6:19-CV-00721 (W.D. La.), Magistrate Judge Carol B. Whitehurst of the U.S. District Court for the Western District of Louisiana, Lafayette Division, denies Allstate's Motion to Exclude Expert Opinions of Nicole N. Zakowicz. The Plaintiff filed a putative class action against Allstate for breach of the insurance contract and bad faith damages arising from Allstate's allegedly improper vehicle valuation methods in property damage claims. The Court has not yet held a class certification hearing pending a determination of whether the Plaintiff's proffered expert, Zakowicz's, opinion regarding vehicle valuation is acceptable. Zakowicz is a Certified Public Accountant with expertise in performing relevant financial analyses and economic damages calculations. Allstate does not challenge her qualifications. Rather, it contends that her method of calculating purported class damages is unreliable and otherwise inadmissible. Zakowicz opined that, assuming Allstate is liable, and the Plaintiffs are entitled to damages, she can apply the methodology condoned in Slade v. Progressive Insurance Company to quantify damages by substituting the Base Value using NADA for Allstate's Base Value determination. She further concluded that consistent with the ruling of the Court in Slade, it is her opinion that damages can be calculated in the same way as in Slade since the same data are present in the instant case. Slade was a similar case in which Progressive insureds sought class certification to recover damages from Progressive's allegedly improper vehicle valuation method. Judge Whitehurst explains that the admissibility of expert opinions is governed by F.R.E. Rule 702, which provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Judge Whitehurst agrees that Zakowicz's proposed methodology of applying the Slade methodology to calculate damages in this case is admissible to determine whether the class should be certified. She disagrees with Allstate's interpretation of Zakowicz's report. At its heart, Zakowicz's opinion is a statement of her ability to apply the Slade methodology to the facts of the case to determine purported damages. Allstate does not challenge Zakowicz's ability to "crunch the numbers," and indeed she appears qualified. Its objections to Zakowicz's opinion are best considered as challenges to credibility and the weight of her testimony. Thus, Judge Whitehurst finds that Allstate's Motion to Exclude should be denied. A full-text copy of the Court's June 6, 2023 Memorandum Ruling is available at https://tinyurl.com/3npz5zkt from Leagle.com. AMADOR COUNTY, CA: Lyle Can Proceed in Forma Pauperis, Court Says ----------------------------------------------------------------- In the case, MICHAEL WILLIAM LYLE, JR., Plaintiff v. GARY REDMAN, et al., Defendants, Case No. 2:22-cv-1801 TLN DB P (E.D. Cal.), Judge Deborah Barnes of the U.S. District Court for the Eastern District of California grants the Plaintiff's motion to proceed in forma pauperis and grants the Plaintiff leave to file an amended complaint. The Plaintiff, an inmate at the Amador County Jail, proceeds without counsel and seeks relief under 42 U.S.C. Section 1983. The matter was referred to Judge Barnes by Local Rule 302 pursuant to 28 U.S.C. Section 636(b)(1). The Plaintiff's complaint filed on Oct. 11, 2022, is before the Court for screening. The Plaintiff seeks to proceed in forma pauperis. Judge Barnes finds that the Plaintiff's declaration motion makes the showing required by 28 U.S.C. Section 1915(a). Hence, she grants the motion. The Plaintiff is required to pay the statutory filing fee of $350 for the action. By separate order, the Plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. Section 1915(b)(1). The order will direct the appropriate agency to collect the initial partial filing fee from the Plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, the Plaintiff will be obligated to make monthly payments of 20% of the preceding month's income credited to his prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in his account exceeds $10, until the filing fee is paid in full. Judge Barnes now screens the Plaintiff's complaint. The Plaintiff and other inmates are temporarily housed during lock downs in overfull, double maximum capacity cells for longer than four hours. They are also placed in holding tanks in the booking floor area for up to eight hours with no access to water, toilets, or water basins. They are also denied grievances. From these deprivations, the Plaintiff has suffered injuries to his state of mind. On Sept. 7, 2022, the Plaintiff and another inmate asked to speak to a floor sergeant regarding an inmate with a communicable disease. Sergeant Holstan recorded the conversation even though he had assured them he was not doing so. Then the Plaintiff personally witnessed the inmate with a communicable disease handling facility food without proper equipment (gloves, hair net, and facial hair) in violation of safety policies and guidelines. This subjected the Plaintiff and others to a risk of a communicable disease. The Defendants are Sheriff Gary Redman and Captain J. Martin. The Plaintiff states he is bringing a class action suit. Judge Barnes holds that the Plaintiff, who proceeds pro se, can only bring claims for violations of his own rights, and cannot litigate claims on behalf of others, including as part of a class action suit. The Plaintiff's privilege to appear in propria persona is personal to him. Therefore, he lacks authority to prosecute claims for persons other than himself. In addition, Judge Barnes holds that the complaint fails to state a claim because it lacks facts from which the court can infer that the named Defendants participated in or directed the alleged violations or knew of the violations and failed to act to prevent them. Liability cannot be imposed on the Defendants for the alleged deprivations simply because they hold supervisory positions at the jail. In sum, Judge Barnes concludes that the Plaintiff's complaint does not state any cognizable claims, but the Plaintiff is granted leave to file an amended complaint. If he chooses to file an amended complaint, it should be titled "first amended complaint" and must state what each named defendant did that led to the deprivation of constitutional rights. The Plaintiff is not obligated to file an amended complaint. In the alternative, he may notify the Court he wishes to stand on the complaint as it is currently pleaded. If he chooses this option, Judge Barnes will issue findings and recommendations to dismiss the complaint without further leave to amend, after which the Plaintiff will be granted an opportunity to file objections, and a district judge will determine whether the complaint states a cognizable claim. In the further alternative, if the Plaintiff does not wish to pursue his claims further, he may file a notice of voluntary dismissal, which will terminate this action by operation of law. This opportunity to amend is not for the purpose of adding new claims. Instead, the Plaintiff should focus efforts on curing deficiencies of the claims already set forth. An amended complaint supersedes the prior complaint and must be complete without reference to the prior or superseded pleading. Once the Plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in any amended complaint, the Plaintiff must sufficiently allege each claim and the involvement of each Defendant. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/5ctrna7f from Leagle.com. AMERICAN FINANCIAL: Wiley Seeks to Certify Class of Consumers ------------------------------------------------------------- In the class action lawsuit captioned as MONA WILEY, individually and on behalf of all others similarly situated, v. AMERICAN FINANCIAL NETWORK, INC., Case No. 8:22-cv-00244-CJC-DFM (C.D. Cal.), the Plaintiff asks the Court to enter an order for class certification. Ms. Wiley moves to certify a class of consumers whose National Do Not Call Registry registered telephone numbers the Defendant American Financial Network purchased as leads and repeatedly called without consent to market its mortgage banking services to in violation of the Telephone Consumer Protection Act's National Do Not Call Registry provision, 47 U.S.C. section 227(c)(5) & 47 C.F.R. section 64.1200(c)(2). The case is well-suited for class certification because the central and determinative issues in this case will all be resolved based on common, class wide proof, including documents, data, and testimony from the Defendant AFN and the Plaintiff's expert, and without regard for the experiences of individual class members. The Plaintiff also requests that the Court certify her as class representative and Kaufman P.A. as class counsel. AFN is a residential mortgage banker. A copy of the Plaintiff's motion dated June 5, 2023, is available from PacerMonitor.com at https://bit.ly/3XfCLUL at no extra charge.[CC] The Plaintiff is represented by: Rachel E. Kaufman, Esq. KAUFMAN P.A. 237 S. Dixie Hwy, 4th Floor Coral Gables, FL 33133 Telephone: (305) 469-5881 E-mail: rachel@kaufmanpa.com ANTERO RESOURCES: Kirkbride Appeals Case Dismissal to 6th Cir. -------------------------------------------------------------- Plaintiff Treva Kirkbride filed an appeal from the District Court's Opinion and Order and Judgment dated May 9, 2023 entered in the lawsuit entitled Treva Kirkbride, as Trustee of the R and K Trust, on behalf of herself and a class of similarly situated persons v. Antero Resources Corporation, Case No. 2:22-cv-02251-MHW-EPD, in the United States District Court for the Southern District of Ohio at Columbus. According to the complaint, on August 2, 2011, Myron Roe, as Lessor, entered into an oil and gas lease with Eclipse Resources I, LP, as Lessee, pertaining to leased premises located in Noble County, Ohio. Prior to May 1, 2018, Antero acquired the lessee's interest in the 2011 Lease Agreement, and Antero has held the lessee's interest in the 2011 Lease Agreement from the time Antero first acquired that interest to the present. Through a series of assignments, the R and K Trust, of which Plaintiff is the sole trustee, became the sole owner of the lessor interest in the Lease, and Defendant became the sole owner of the lessee interest. On May 9, 2023, Judge Michael H. Watson signed an Order granting Defendant's Motion to Dismiss Plaintiff's September 21, 2022 Third Amended Complaint for Failure to State a Claim. The Clerk's Judgment states that pursuant to the Opinion and Order, Defendant's Motion to Dismiss is GRANTED. In this action, Plaintiff, on behalf of the R and K Trust, asserts an individual and class-wide breach-of-contract claim against Defendant. The Plaintiff filed suit on May 24, 2022, but she did not serve the Complaint on Defendant until June 1, 2022. Thus, as the Complaint was served on Defendant after Plaintiff initiated this action, by definition, it cannot be pre-suit notice. The fact that a different court, considering a different contract, and applying that contract to different facts, concluded that service of a complaint satisfied the notice requirement does not, in this case, negate the plain language of the Lease or Plaintiffs failure to comply with the same. In sum, it is clear from the face of the Third Amended Complaint that Plaintiff did not comply with a condition precedent to suit. As such, Plaintiff's breach of contract claim fails, rules Judge Watson. The appellate case is captioned as Treva Kirkbride v. Antero Resources Corporation, Case No. 23-3484, in the United States Court of Appeals for the Sixth Circuit, filed on June 5, 2023. The briefing scheduled in the Appellate Case states that: -- Appellant brief is due on July 17, 2023; and -- Appellee brief is due on August 16, 2023.[BN] Plaintiff-Appellant TREVA KIRKBRIDE, as Trustee of the R and K Trust, on behalf of herself and a class of similarly situated persons is represented by: George A. Barton, Esq. BARTON AND BURROWS 5201 Johnson Drive, Suite 110 Mission, KS 66205 Telephone: (913) 563-6250 Defendant-Appellee ANTERO RESOURCES CORPORATION, a Delaware corporation, is represented by: Daniel Thomas Donovan, Esq. KIRKLAND & ELLIS 1301 Pennsylvania Avenue, N.W. Washington, DC 20004 Telephone: (202) 389-5174 ATLAS MEDSTAFF: Fails to Pay Proper Wages, Gayler Suit Alleges -------------------------------------------------------------- Jenna Gayler, individually and on behalf of all others similarly situated, known and unknown, Plaintiff v. Atlas MedStaff, LLC, FocusOne Solutions, LLC, and Nomad Health Inc., Defendants, Case No. 3:23-cv-03197-CRL-KLM (C.D. Ill., June 6, 2023) alleges claims against Defendants Atlas MedStaff, LLC and FocusOne Solutions, LLC for failure to pay all wages in violation of the Nurse Transparency Licensing Act, against Atlas MedStaff for violation of Section 14.3 of NALA, and against FocusOne Solutions, LLC and Nomad Health, Inc. for common law retaliatory discharge. Plaintiff Jenna Gayler is an Indiana resident, employed by Defendant to work as a travel nurse at OSF Sacred Heart Hospital in Danville, Illinois. The Plaintiff entered into a contract with Atlas on approximately October 4, 2021 to work as a nurse at OSF. Allegedly, Atlas and FocusOne failed to ensure that subsequent renewals of existing contracts were modified to comply with NALA. From July 1, 2022 to the date of the expiration of Plaintiff's contract, Atlas and FocusOne continued to pay Plaintiff only $61 per hour, despite charging OSF $114 per hour for Plaintiff's services. Atlas MedStaff, LLC is a Nebraska LLC with its principal place of business in Nebraska. The company staffs registered nurses and medical technicians at hospitals across Illinois. It sources vacancies at hospitals through FocusOne, an intermediary between Atlas and the hospitals. [BN] The Plaintiff is represented by: Matthew Fletcher, Esq. Haskell Garfinkel, Esq. THE GARFINKEL GROUP, LLC, The Civitas 701 N. Milwaukee Avenue Chicago, IL 60642 Telephone: (312) 736-7991 E-mail: matthew@garfinkelgroup.com haskell@garfinkelgroup.com BAM TRADING: Faces Osterer Suit Over Stolen Cryptocurrency ---------------------------------------------------------- MICHAEL OSTERER, individually and on behalf and all others similarly situated, Plaintiff v. BAM TRADING SERVICES INC. d/b/a BINANCE.US, a Delaware corporation, and BINANCE HOLDINGS, LTD. d/b/a BINANCE, a foreign company, Defendants, Case No. 1:23-cv-22083-RAR (S.D. Fla., June 5, 2023) is a class action brought by the Plaintiff against BAM and its alter ego Binance for converting, or in the alternative, knowingly aiding and abetting the conversion of, Plaintiff's digital assets by not complying with Know Your Customer and Anti-Money Laundering rules, after Plaintiff's digital assets were stolen and laundered through Binance accounts. The action arises from Binance acting as depository for cryptocurrency (digital assets including bitcoin, Ether, Litecoin, and many others) stolen from U.S. citizens in the Class, including Plaintiff who had at least 7.2 bitcoin and 449 Ether stolen from his cryptocurrency wallet. Binance's role as a depository is similar to that of a bank, but also different in that the chain-of-title of cryptocurrency is permanently and accurately traceable on the blockchain, which acts as a "ledger." In addition, Defendants unjustly enriched themselves by collecting significant fees on transactions involving Plaintiff's stolen cryptocurrency, says the suit. The Plaintiff and Class members bring this lawsuit to recover the value of their stolen cryptocurrency, for compensatory damages, and for restitution and disgorgement of Defendants' ill-gotten gains of fees collected on transactions involving stolen cryptocurrency. BAM Trading Services Inc., d/b/a Binance.US, is one of the top five crypto asset trading platforms in the United States by trading volume. As of April 1, 2023, BAM's average 24-hour trading volume was valued at over $282 million.[BN] The Plaintiff is represented by: Jeff Ostrow, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 E-mail: ostrow@kolawyers.com - and - David C. Silver, Esq. SILVER MILLER 4450 NW 126th Avenue, Suite 101 Coral Springs, FL 33065 Telephone: (954) 516-6000 E-mail: DSilver@SilverMillerLaw.com BITWISE INDUSTRIES: Nunn Sues Over Layoff Without Prior Notice -------------------------------------------------------------- ANDRE NUNN, KAILA WEBB, and KASANDRA JIMENEZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. BITWISE INDUSTRIES, INC., ALPHAWORKS TECHNOLOGIES, LLC, JAKE SOBERAL, and IRMA L. OLGUIN, JR., Defendants, Case No. 1:23-at-00492 (E.D. Cal., June 6, 2023) arises out of the Defendants' violations of the California Labor Code, the Worker Adjustment and Retraining Notification Act and of wage violations under state laws. One of the Plaintiffs, Andre Nunn, was employed by Defendants as the Director of Operations in Buffalo. He worked at Defendants' facility located at 199 Scott Street, Buffalo, NY until he was "furloughed" on or about May 29, 2023. Allegedly, the Defendants failed to provide 60 days advance written notice to Plaintiffs of their impending termination. They also failed to pay 60 days' wages and benefits to Plaintiffs and the other similarly situated former employees in lieu of 60 days' written notice. Bitwise Industries, Inc. is a California corporation with its headquarters located at 700 Van Ness Avenue, Fresno, CA. [BN] The Plaintiffs are represented by: Gail C. Lin, Esq. RAISNER ROUPINIAN LLP 2945 Townsgate Road, Suite 200 Westlake Village, CA 91361 Telephone: (212) 221-1747 Facsimile: (212) 221-1747 E-mail: gcl@raisnerroupinian.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: jar@raisnerroupinian.com rsr@raisnerroupinian.com BP EXPLORATION: Brown & Norswearthy Claims Dismissed With Prejudice ------------------------------------------------------------------- In the cases, CHER GRIFFIN BROWN v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION: "H", CHESTER LEE NORSWEARTHY v. BP EXPLORATION & PRODUCTION, INC. ET AL., SECTION: "H," Civil Action Nos. 17-3516, 17-3590 (E.D. La.), Judge Jane Triche of the U.S. District Court for the Eastern District of Louisiana: a. grants BP Exploration & Production, Inc.; BP America Production Co.; BP p.l.c.; Transocean Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and Halliburton Energy Services, Inc. ("collectively BP")'s Motions in Limine to Exclude the General Causation Opinions of Plaintiffs' Expert, Dr. Jerald Cook; b. grants the Defendants' Motions for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation in each of these cases; and c. denies the Plaintiffs' Motion for Admission of Plaintiffs' Expert Opinions Because of BP Defendants' Spoliation of Evidence of Plaintiffs' Exposure. These two cases are among the "B3 bundle" of cases arising out of the Deepwater Horizon oil spill. This bundle comprises claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant). These cases were originally part of a multidistrict litigation ("MDL") pending in the Eastern District of Louisiana before Judge Barbier. During this MDL, Judge Barbier approved the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but the B3 plaintiffs either opted out of this agreement or were excluded from its class definition. Subsequently, Judge Barbier severed the B3 cases from the MDL to be reallocated among the judges of this Court. The two cases were reassigned to Section H. Plaintiffs Cher Griffin Brown and Chester Lee Norswearthy each filed lawsuits against the Defendants based on their alleged exposure to toxic chemicals following the Deepwater Horizon oil spill in the Gulf of Mexico. Each Plaintiff was allegedly involved in cleanup or recovery work after the oil spill, and each contends that his or her resulting exposure to crude oil and dispersants caused a litany of health conditions. The Plaintiffs bring claims for general maritime negligence, negligence per se, and gross negligence against the Defendants. Now before the Court in each of the captioned cases are the Defendants' Motions in Limine to Exclude the General Causation Opinions Testimony of Plaintiffs' Expert and their Motions for Summary Judgment Due to Plaintiff's Inability to Prove Medical Causation. In each of the Motions in Limine, the Defendants argue that the Plaintiffs' expert on medical causation, Dr. Cook, fails to satisfy the Fifth Circuit's requirements for an admissible general causation opinion in toxic tort cases and should therefore be excluded as unreliable. In each of the Motions for Summary Judgment, the Defendants argue that assuming their Motions in Limine are granted, each of the Plaintiffs lack expert testimony on general causation and therefore fail to present a genuine issue of material fact as to whether his or her injuries were caused by exposure to oil and dispersants. Also before the Court in each of the captioned cases is the Plaintiff's motion entitled Motion for Admission of Plaintiffs' Expert Opinions because of BP Defendants' Spoliation of Evidence of Plaintiffs' Exposure. In each of these motions, the Plaintiffs ask the Court to allow Dr. Cook's expert testimony considering the Defendants' failure to preserve evidence of exposure to toxic chemicals by clean-up workers or perform biomonitoring and dermal monitoring of those workers. Judge Triche states that B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response. The plaintiff's burden with respect to causation in a toxic tort case involves proof of both general causation and specific causation. General causation is whether a substance can cause a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury. On the topic of general causation, Judge Triche finds that each Plaintiff has put forth a report from Dr. Cook dated May 31, 2022. She says this report is not unique to these cases; another judge of the Court has described it as an omnibus, non-case specific general causation expert report that has been used by many B3 plaintiffs. Many sections of the Eastern District of Louisiana, including this one, have excluded various versions of Dr. Cook's reports, including the May 2022 report at issue, holding generally that his opinions are unreliable and unhelpful where he fails to identify the level of exposure to a relevant chemical that can cause the conditions asserted in the Plaintiffs' complaints. Accordingly, Judge Triche agrees that these new arguments do not alter the outcome of the Defendants' Motions in Limine. For the same reasons already articulated by Judges Ashe, Barbier, Guidry, Vance, Vitter, and Zainey, she grants the Defendants' Motions in Limine. In response to the Defendants' Motions, each of the Plaintiffs has filed a motion seeking admission of Dr. Cook's report through a different mechanism -- as a sanction for spoliation. The Plaintiffs each argue that the Defendants acted in bad faith when they chose not to record quantitative data on the exposure of clean-up workers to specific chemicals and that the Court should allow them to rely on Dr. Cook's report as a sanction for that spoliation. As previously explained, however, Dr. Cook's report is flawed in ways unrelated to BP's decision not to conduct monitoring. Accordingly, even if the Plaintiffs could prove that the Defendants spoliated evidence, Dr. Cook's opinion remains unhelpful, unreliable, and inadmissible. Other sections of this Court have reached the same result. The Plaintiffs' Motions are, therefore, denied. Because the Plaintiffs cannot prove general causation, Judge Triche also grants the Defendants' Motions for Summary Judgment. All of the Plaintiffs' claims are dismissed with prejudice. A full-text copy of the Court's June 6, 2023 Order & Reasons is available at https://tinyurl.com/5ydbc6zb from Leagle.com. BROKER SOLUTIONS: Fails to Pay Proper Wages, Charbonneau Says ------------------------------------------------------------- BEAU CHARBONNEAU, individually and on behalf of all others similarly situated, Plaintiff v. BROKER SOLUTIONS, INC. a/k/a NEW AMERICAN FUNDING, LLC, Defendant, Case No. 8:23-cv-01007 (C.D. Cal., June 9, 2023) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Charbonneau was employed by the Defendant as loan associate. BROKER SOLUTIONS, INC., doing business as New American Funding, provides mortgage lending services. The Company provides home financing options at competitive rates to home owners. [BN] The Plaintiff is represented by: Eric L. Dirks, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 945-7110 Facsimile: (816) 945-7118 Email: dirks@williamsdirks.com - and - Michael Hodgson, Esq. THE HODGSON LAW FIRM, LLC 3609 SW Pryor Road Lee's Summit, MO 64082 Telephone: (816) 600-0117 Facsimile: (816) 600-0137 Email: mike@thehodgsonlawfirm.com - and - Timothy R. West, Esq. THE WEST LAW FIRM 7021 Seal Cir. Huntington Beach, CA 92648 Telephone: (816) 797-2762 Email: tim@timwestlawfirm.com CANADA: Faces Class Suit Over Inadequate Housing Conditions ----------------------------------------------------------- Brittany Hobson of Toronto Star reports that the chief of a remote First Nation in northern Manitoba is proposing a national class-action lawsuit against the federal government for failing to address the housing crisis on reserves. Chief Elvin Flett, of St. Theresa Point First Nation, is seeking $5 billion in compensation, as well as an order that the federal government comply with its obligation to provide adequate housing on First Nations. "Most homes on reserve are falling apart and many are infested with mould and other toxins. Our lack of housing on reserve forces generation after generation to cramp together under the same roof," Flett told reporters on June 12, 2023. "This is about broken promises, including the treaties, and the honour of the Crown to act and the many promises made to our people." Flett, on behalf of himself and his community, and his legal team at the Toronto-based firm McCarthy Tétrault LLP filed a statement of claim in Federal Court on June 12, 2023. The claim names the attorney general of Canada as the defendant. The statement of claim alleges Canada has, "deliberately underfunded housing on reserves," while simultaneously isolating First Nations by imposing restrictions on their ability to provide housing for themselves. "The resulting catastrophe for First Nations and their members was not only predictable, it was the defendant's intended result," the statement claims. An emailed statement from Indigenous Services Canada said it was aware of June 12, 2023's news conference announcing the proposed lawsuit. It said it would continue to work with all First Nation communities, including St. Theresa Point First Nation, to address and improve on-reserve housing conditions. "The Government of Canada is committed to doing more to ensure that every First Nations community has safe and adequate housing," the statement said. St. Theresa Point is one of four First Nations that make up the Island Lake region in northeastern Manitoba. The community of 5,200 people is accessible by plane or ice road for six weeks out of the year. About 467 families in the community need homes, said Flett. There are approximately 646 houses in St. Theresa Point with 25 per cent condemnable due to severe decay and rotting, Flett added. Others require major repairs averaging in cost from $55,000 to $86,000. The community received federal funding last year for 20 two-bedroom units. "It's barely a dent in what (St. Theresa Point) needs. It doesn't keep up with the decay in their house and let alone the growth of their population," said Michael Rosenberg, counsel for the community. "The First Nation, like so many others across the country, falls farther and farther behind." Flett said some of his community's members, and others from First Nations across the country, are living in unimaginable conditions that aren't seen elsewhere. It's not uncommon for families of 12 to live under one roof. In one instance in St. Theresa Point, 32 people are living in a four-bedroom home. Leaders have heard of members sleeping in shifts, while other families resort to more "precarious housing" including living out of school buses, shacks, tents and makeshift cabins. The state of housing on First Nations has mental and physical health repercussions, said Flett. Members live with ailments that leaders say are linked to toxins in the home while overcrowding affects youth and teens who often don't have access to personal space. Indigenous Services Canada's statement said that since April 2016, the federal department has invested $3.93 billion for First Nations housing, which it said has supported 3,766 housing projects in 611 First Nations communities. It said that as a result, nearly 15,000 more homes on reserve have been constructed or are in progress. It also noted a joint working group made up of the Assembly of First Nations, Indigenous Services Canada and the Canada Mortgage and Housing Corporation is developing a 10-year national First Nations housing and related infrastructure strategy. Grand Chief Cathy Merrick, of the Assembly of Manitoba Chiefs, said housing on First Nations has been a "stain on the conscience of (communities) for far too long." "First Nations people in Manitoba and across Canada have endured overcrowded, dilapidating and substandard housing, undermining their health and their well-being." Rosenberg said the proposed compensation would address inadequate housing in communities and those who have been injured by their living conditions. "It's important to recognize that no one class action will solve all the problems of housing," he added. The proposed class action is directed toward the most extreme housing emergencies in First Nations. Rosenberg said communities where at least half of the population resides in homes with a shortfall of two or more bedrooms and are in need of major repairs may be eligible to sign on. The community and Flett are inviting other First Nations to join in the lawsuit. "Together we must demand the housing that we deserve . . . together we can create a safer and healthier future for First Nations across Canada." A judge must certify the class action before it can proceed. [GN] CAPSULE CORP: Carey, Ruiz Sue Over State Labor Law Violations ------------------------------------------------------------- MATTHEW CAREY and ARIEL RUIZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. CAPSULE CORPORATION, Defendant, Case No. 609027/2023 (N.Y., June 7, 2023) arises out of the Defendant's violations of the New York Labor Law. Plaintiff Carey was employed by Defendant as a driver at Capsule from January 2022 through about August 1, 2022 and Plaintiff Ruiz was employed by Defendant as a pharmacy technician at Capsule from approximately on or about January 13, 2020 through approximately June 2022. Throughout their employment for Defendant, both Plaintiffs performed over 25 percent physical tasks. However, they have been compensated by Defendant on a bi-weekly basis. Moreover, the Defendant failed to pay Plaintiffs and the Class on a timely basis as required by NYLL, says the suit. Capsule Corp. is a chain of pharmacy stores that offers same-day delivery of prescriptions. [BN] The Plaintiffs are represented by: Brian S. Schaffer, Esq. Armando A. Ortiz, Esq. Dana M. Cimera, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300-0375 CARE AT HOME: Bid to Dismiss Nqadolo's Amended Complaint Denied --------------------------------------------------------------- In the case, NANDE NQADOLO, et al., Plaintiff, v. CARE AT HOME, LLC, et al., Defendants, Case No. 3:22-cv-612 (KAD) (D. Conn.), Judge Kari A. Dooley of the U.S. District Court for the District of Connecticut: a. denies the Defendants' motion to dismiss the Plaintiffs' Amended Complaint; and b. grants the Defendants' motion to strike certain claims. Plaintiffs Nande Nqadolo and Pamela Mangali bring the putative collective and class action against Defendants Care at Home, LLC, Suzanne Karp, and Daniel Karp, on behalf of themselves and similarly situated home care assistants employed by the Defendants. The Plaintiffs assert in an Amended Complaint two causes of action by way of six counts: (1) a failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"), 21 U.S.C. Sections 201 et seq., and (2) a failure to pay overtime in violation of the Connecticut Minimum Wage Act ("CMWA"), Conn. Gen. Stat. Section 31-58 et seq. The Defendants move to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), or alternatively to strike certain claims pursuant to Fed. R. Civ. P. 12(f), which the Plaintiffs oppose. The Defendants employ live-in domestic service employees, referred to as home care assistants ("HCA") or caregivers, to live with clients, who, due to severe medical conditions, require assistance caring for themselves. HCAs assist clients with cooking, cleaning, dressing, bathing, eating, medication, personal hygiene, and getting to and from medical appointments. They work 13-hour shifts with three one-hour meal breaks and an eight-hour sleep break each day. Nqadolo worked as an HCA for the Defendants from March 22, 2021 to Dec. 15, 2021 and Mangali has worked as an HCA for Defendants since Dec. 7, 2015. The Defendants' HCAs are assigned to live on-site because clients frequently require assistance at any time of day. HCAs are routinely interrupted during their scheduled meal breaks and sleep breaks, often failing to get five hours of uninterrupted sleep. The Defendants failed to record all hours worked by HCAs and accordingly failed to pay them overtime for the hours spent performing work during those interruptions. They deducted full meal breaks despite knowing that the Plaintiffs worked through meal breaks or ate their meals with the clients and otherwise failed to accurately record the hours worked by Plaintiffs during meal breaks. They also instructed their HCAs not to document sleep interruptions on their timesheets and instead to call in the interruptions; however, the Defendants did not document the sleep interruption calls. They did not pay HCAs for sleep interruptions. The Defendants also furnished food and lodging to the Plaintiffs but did not provide any record of the value of the food or lodging for the purposes of calculating their regular rate of pay for calculating an overtime rate. However, they did not deduct the value of food and lodging from the straight pay the Plaintiffs received. The Plaintiffs allege that the Defendants have improperly withheld overtime that should have been paid to the Plaintiffs and other HCAs in violation of state and federal wage and hours laws. The Plaintiffs assert two causes of action by way of six counts against the Defendants based on their alleged failure to pay earned overtime. They allege that the Defendants violate the FLSA and the CMWA by failing to compensate them and putative class members for interruptions to their meal and sleep breaks and by failing to add the value of food and lodging to their regular rate of pay for purposes of calculating earned but unpaid overtime. The Defendants argue that the Amended Complaint should be dismissed because the Plaintiffs are domestic service employees and as such are exempt from the overtime requirements of the FLSA (and therefore the CMWA). They further argue that any reference to an enhanced rate of pay for food and lodging provided by them should be stricken because the Plaintiffs admitted in their Amended Complaint that Defendants did not reduce or deduct from their pay the value of such food and lodging. Judge Dooley reviews the 2015 Rule pursuant to the familiar two-step Chevron framework. If Congress has directly spoken to the precise question at issue, then the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. But if the statute is silent or ambiguous with respect to the specific issue, courts analyze whether the agency's answer is based on a permissible construction of the statute. The Defendants' argument is aimed at step two of the Chevron framework: is the agency rule a reasonable interpretation of the FLSA. Judge Dooley concludes that the 2015 Rule is not an unreasonable interpretation of the FLSA and is therefore entitled to Chevron deference in line with the D.C. Circuit's decision in Home Care Ass'n of America v. Weil, 799 F.3d 1084, 1089 (D.C. Cir. 2015), as well as the district court decisions in Aboah v. Fairfield Healthcare Services, Inc. and Walsh v. Ideal Homecare Agency, Inc. So, the Defendants' motion to dismiss is denied. The Defendants move to strike all allegations related to a Section 203(m) credit or allegations that the Plaintiffs' overtime should be calculated using an enhanced regular rate of pay based upon lodging or board that may have been provided. In response, the Plaintiffs claim that the Defendants took a partial 3(m) credit but voluntarily waived the remainder when they did not deduct the full default value of food and lodging from the straight pay Defendants paid the Plaintiffs. Judge Dooley agrees with the Defendants. She holds that the admissions in the Amended Complaint foreclose the Plaintiffs' inconsistent factual assertion as well as the argument that their pay for purposes of calculating overtime should be enhanced by the value of the lodging and board they received. Because the Plaintiffs' claims for an enhanced regular rate of pay pursuant to Section 203(m) are barred by their own judicial admissions, she grants the Defendants' motion to strike. A full-text copy of the Court's June 6, 2023 Memorandum of Decision is available at https://tinyurl.com/y6mwhe3t from Leagle.com. CELSIUS HOLDINGS: Settles False Ads Class Suit for $7.8 Mil. ------------------------------------------------------------ Brigette Honaker of Top Class Actions reports Celsius consumers have begun to receive payments from a $7.8 million class action lawsuit settlement to resolve claims that Celsuis falsely advertised its products as preservative-free. The settlement benefits those who purchased any Celsius beverage between Jan. 1, 2015, and Nov. 23, 2022. Plaintiffs in the class action lawsuit accused Celsuis of falsely advertising its beverages as containing "no preservatives." In reality, Celsius drinks allegedly contain citric acid – an ingredient that serves as both a preservative and a flavoring agent. Celsius didn't admit any wrongdoing but agreed to pay $7.8 million to resolve the false advertising class action lawsuit. Under the terms of the settlement, consumers could receive up to $250 in reimbursement with proof of purchase or up to $20 without proof of purchase. Top Class Actions readers report receiving payments of up to $23.66 from the settlement. The Celsius false advertising class action lawsuit is Hezi, et al. v. Celsius Holdings Inc., Case No. 1:21-CV-9892-VM, in the U.S. District Court for the Southern District of New York. [GN] CHAIN DRUG MARKETING: Faces Class Suit Over Lidocaine Patches ------------------------------------------------------------- Jessy Edwards of Top Class Actions reports that a Maryland consumer is suing Quality Choice alleging the company's lidocaine patches do not work as promised, and fall off within hours -- or even minutes -- of application. Plaintiff Matthew Ashley filed the class action lawsuit against Chain Drug Marketing Association Inc. on June 1 in a Maryland federal court, alleging violations of state and federal consumer laws. According to the lawsuit, Chain Drug Marketing Association, Inc. sells adhesive patches promising to deliver 4% lidocaine under the Quality Choice brand. The label representations include its description as a "Maximum Strength Lidocaine Pain Relief Patch" delivering 4% Lidocaine topical anesthetic. The label also indicates that the product "Desensitizes Aggravated Nerves and Relieves Pain" through a "Stay-put Flexible Patch" in a "Single Use Application that Lasts up to 12 Hours," Ashley says. However, the product cannot and does not adhere for anywhere close to twelve hours, rendering the marketing misleading, the lawsuit states. Studies have shown that lidocaine patches using the same or substantially similar delivery mechanism and design are unable to adhere to the body for more than four hours, often peeling off within minutes of light activity, "nowhere near the twelve hours of usage time indicated," the lawsuit states. Patch can fall off within minutes, lawsuit states Since the product cannot adhere to a person's skin throughout the promised time period, it also cannot deliver the active anesthetic ingredient of lidocaine during that time, Ashley adds. Meanwhile, the representation of "Maximum Strength" and "4% lidocaine" are also misleading, because prescription lidocaine patches exist on the market that deliver greater amounts of lidocaine to the wearer, the lawsuit states. The plaintiff also says the product does not desensitize nerves, as promised on the label. As a result, Ashley is suing on behalf of anyone in Maryland who bought the product, as well as a consumer fraud multistate class of consumers from Idaho, Alaska, Kansas, Iowa, Mississippi, Mississippi, South Dakota, West Virginia, Arizona and Utah. He is suing for violations of state consumer laws, breach of warranty, fraud and unjust enrichment. He seeks certification of the class action, damages, fees, costs and a jury trial. Meanwhile, Rite Aid makes a lidocaine patch that does not work as promised because it doesn't stick on the skin for as long as it says it will, a new class action lawsuit alleges. The plaintiff is represented by Spencer Sheehan of Sheehan & Associates. The Quality Choice class action lawsuit is Matthew Ashley, et al. v. Chain Drug Marketing Association Inc., Case No. 1:23-cv-01486-LKG in the U.S. District Court for the District of Maryland. [GN] CHAMPION PETFOODS: Heavy Metals Class Summary Judgment Affirmed --------------------------------------------------------------- Keller and Heckman LLP of The National Law Review reports that in May 2017, following a poor rating of its premium-priced dog food by the Clean Label Project, Champion Petfoods released a white paper disclosing the levels of heavy metals in its products and reporting these were well within ranges for arsenic, cadmium, lead, and mercury deemed acceptable for dog foods by the National Research Council and FDA. Then on October 16, 2018, a proposed class action lawsuit filed in New York federal court alleged that Champion Petfoods' Acana and Orijen pet foods contain heavy metals known to pose health risks to humans and animals even though the foods are advertised as fit for humans. The plaintiff did not allege that Champion's pet foods were unsafe or harmed her pets but maintained that she would not have purchased Champion's products at their retail prices if she had known that they contained heavy metals. The district court granted summary judgment for Champion in dismissing all heavy metal fraud-by-omission claims on March 31, 2022. On June 6, 2023, the Second Circuit upheld the trial court's judgment in an order stating, "the factual record establishes that a reasonable consumer could have discovered that Champion’s pet foods had a material risk of containing some measurable amount of heavy metals" and the plaintiff failed to show that "the business alone possesses" this information, as required under the law. Further, while acknowledging "the importance of consumer labeling, especially as it relates to food for both humans and pets alike," the appeals court said that it is up to Congress or a federal agency such as FDA to determine what is disclosed on food labeling. The appeals court did state that if the plaintiff had claimed that Champion's pet foods contained quantities of heavy metals in excess of safe thresholds, then that could be information that "the business alone" possessed. This underscores a significant obstacle in other heavy metals litigation where plaintiffs have been unable to demonstrate that the unavoidable presence of heavy metals in low amounts renders the food inedible or unsafe to consume. [GN] CHAMPION PETFOODS: Summary Judgment in Paradowski Suit Affirmed --------------------------------------------------------------- In the case, KATHLEEN PARADOWSKI, Plaintiff-Appellant, RACHEL COLANGELO, individually and on behalf of a class of similarly situated individuals, Plaintiff v. CHAMPION PETFOODS USA, INC. & CHAMPION PETFOODS LP, Defendants-Appellees, Case No. 22-962-cv (2d Cir.), the Court of Appeals for the Second Circuit affirms the district court's order granting summary judgment in favor of Champion and dismissing all of the Plaintiff's claims. Plaintiff-Appellant Paradowski appeals from the district court's grant of summary judgment for Defendants-Appellees Champion Petfoods USA, Inc., and Champion Petfoods LP (collectively, "Champion"). On appeal, Paradowski argues that the district court improperly dismissed her New York General Business Law Section 349 claim alleging that Champion failed to disclose the presence of heavy metals in two of its pet food formulas. Champion is a manufacturer and seller of premium-priced dog food. It markets its products as "Biologically Appropriate" and states that it uses "animal-based proteins," instead of grains or fillers, to mirror how wolves or wild dogs would get nutrition in nature (albeit within the limitations of dry kibble form). In April 2017, a group called the Clean Label Project published a blog post that rated pet foods based on several factors, including heavy metal content, and gave one star out of five to Champion's brands. Several Champion customers reached out to inquire about the post, and in May 2017, Champion released a white paper on heavy metals that disclosed the average levels of heavy metals in its products in comparison to known safety limits for pets. The white paper reported that the levels of heavy metals in its products were all within the acceptable ranges based on guidelines published by the National Research Council and the Food and Drug Administration ("FDA") outlining maximum tolerable limits for arsenic, cadmium, lead, and mercury in dog foods. Approximately one and a half years later, the putative class action was brought against Champion on behalf of New York purchasers of Champion dog food. Paradowski is the owner of two German Shepherds, and the sole remaining named Plaintiff. At various times from 2016-18, she purchased two of Champion's products -- ACANA Regional Meadowlands and ACANA Heritage Free-Run Poultry. Her second amended complaint alleged, inter alia, that Champion engaged in common-law fraud-by-omission and/or violated New York General Business Law Section 349 by failing to disclose that its recipes "contained and/or had a material risk of containing" detectible amounts of heavy metals. Although the parties dispute the quantity of heavy metals present, they agree that the question of whether the products were safe is not at issue in this litigation. The Plaintiff did not allege that Champion's pet foods were unsafe or that they harmed her pets. Instead, she maintained that she would not have purchased Champion's products at their retail prices if she had known that they contained heavy metals. In response, Champion argued that heavy metals are widely known to be naturally occurring in the environment and at safe levels in many of the foods people (and dogs) eat. It notes that heavy metals are especially common in the fish and fish-derived products that are listed as ingredients in its ACANA Heritage Free-Run Poultry and ACANA Regionals Meadowland offerings. It also provided uncontroverted evidence that nearly all pet food contains measurable quantities of heavy metals. On March 31, 2022, the district court granted summary judgment in favor of Champion and dismissed all of the Plaintiff's claims. The court concluded that no reasonable jury could rule for the Plaintiff on either the heavy metal fraud-by-omission claim or the Section 349 claim because by ordinary diligence and attention, the Plaintiff should have known that anything containing fish might also contain high concentrations of heavy metals. The Plaintiff timely appealed. She only challenges the district court's dismissal of her Section 349 heavy metals claim. Upon review of the record, the Second Circuit agrees that no reasonable jury could conclude that the omission at issue -- that Champion's pet foods contained or had a material risk of containing heavy metals -- was solely within Champion's possession. To start, it is worth clarifying that the Plaintiff has not pleaded omissions claim based on the specific quantities of heavy metals present in Champion's products. If the Plaintiff had claimed that Champion's pet foods contained quantities of heavy metals more than safe thresholds, then that could be information that "the business alone" possessed. However, the Plaintiff's position is that Champion should have disclosed that its products contained -- or had a material risk of containing -- any amount of heavy metals. The factual record establishes that a reasonable consumer could have discovered that Champion's pet foods had a material risk of containing some measurable amount of heavy metals. Because the Plaintiff has failed to show that "the business alone possesses" this information, its Section 349 claim fails. Lastly, the Second Circuit acknowledges the importance of consumer labeling, especially as it relates to food for both humans and pets alike. However, it is not within the province of the courts to decide what information must be disclosed on consumer packaging. That issue should be for Congress or a federal agency such as the FDA to determine. The Second Circuit has considered the Plaintiff-Appellant's remaining arguments and concludes that they are without merit. The judgment of the District Court is affirmed. A full-text copy of the Court's June 6, 2023 Summary Order is available at https://tinyurl.com/bdf6ayfs from Leagle.com. REBECCA A. PETERSON -- rapeterson@locklaw.com -- (Robert K. Shelquist -- rkshelquist@locklaw.com -- on the brief), Lockridge Grindal Nauen P.L.L.P., Minneapolis, MN, (Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Glueck, PLLC, Minneapolis, MN, Kevin A. Seeley -- kseely@robbinsllp.com -- Robbins LLP, San Diego, CA, Kenneth A. Wexler -- kaw@wexlerwallace.com -- Wexler Boley & Elgersma LLP, Chicago, IL, on the brief) for the Plaintiff-Appellant. LINDA T. COBERLY -- lcoberly@winston.com -- Winston & Strawn LLP, Chicago, IL (David A. Coulson -- dcoulson@winston.com -- Winston & Strawn LLP, Miami, FL, on the brief), for the Defendants-Appellees. CHICKEN SOUP: Kahan Sues for Breach of Fiduciary Duty ----------------------------------------------------- MARTIN KAHAN, on behalf of himself and all other similarly situated stockholders of CHICKEN SOUP FOR THE SOUL ENTERTAINMENT INC., Plaintiff v. WILLIAM J. ROUHANA, JR., CHRISTOPHER MITCHELL, FRED M. COHEN, COSMO DENICOLA, AMY L. NEWMARK, MARTIN POMPADUR, VIKRAM SOMAYA, CHRISTINA WEISS LURIE, DIANA WILKIN, and CHICKEN SOUP FOR THE SOUL ENTERTAINMENT INC., Defendants, Case No. 2023-0593 (Del. Ch., June 5, 2023) is a class action against the Defendants for breaches of fiduciary duties. On May 17, 2023, Chicken Soup filed a definitive proxy statement including Proposal 2 defined as the Charter Amendment Proposal and asking the Company's stockholders, including Plaintiff "to approve an amendment to our certificate of incorporation to reflect new Delaware law provisions regarding officer exculpation." According to the complaint, the Individual Defendants have failed to provide Chicken Soup's public stockholders with all material information necessary to decide whether to vote in favor of Proposal 2. As a result of the actions of the Individual Defendants, Plaintiff and the Class will suffer irreparable injury, in that they face an uninformed vote on Proposal 2 and an improper counting of the vote on Proposal 2. Unless the Individual Defendants are enjoined by the Court, they will continue to breach their fiduciary duties owed to Plaintiff and the members of the Class, says the suit. Chicken Soup for the Soul Entertainment Inc. is an American self-help, consumer goods and media company. Defendant Rouhana is the Company's Chief Executive Officer and Chairman of the Company's Board.[BN] The Plaintiff is represented by: David A. Jenkins, Esq. Julie M. O'Dell, Esq. SMITH, KATZENSTEIN & JENKINS LLP 1000 North West Street, Suite 1501 Wilmington, DE 19801 Telephone: (302) 652-8400 E-mail: daj@skjlaw.com jmo@skjlaw.com - and - Jeffrey S. Abraham, Esq. Michael J. Klein, Esq. ABRAHAM, FRUCHTER & TWERSKY, LLP 450 Seventh Avenue, 38th Floor New York, NY 10123 Telephone: (212) 279-5050 E-mail: jabraham@aftlaw.com mklein@aftlaw.com CHILDREN'S HOSPITAL: Brimer Appeals Dismissal of Civil Rights Suit ------------------------------------------------------------------ Plaintiffs Richard Brimer, et al., filed an appeal from the District Court's Memorandum Opinion and Order dated May 10, 2023 entered in the lawsuit entitled Bryan Tessanne and Richard Brimer, on their own behalf and on behalf of the class similarly situated v. Children's Hospital Medical Center of Akron, Case No. 5:22-cv-00354-JRA, in the United States District Court for the Northern District of Ohio at Akron. As reported in the Class Action Reporter on March 14, 2022, the suit alleges that Defendant violates the Plaintiffs' First Amendment Right to freely exercise their religion. The Defendant allegedly failed to engage in a meaningful interactive process to determine whether reasonable accommodations could be made to ensure the Plaintiffs could freely exercise their religious beliefs and thus decline the experimental SARS-CoV-2 injection(s) after the Defendant mandated the injections due to the rule promulgated by the Centers for Medicare and Medicaid Services. The Defendant placed Plaintiffs on leave without pay unless and until Plaintiffs comply by receiving the experimental injection, with the expectation that the Plaintiffs will be terminated officially at the end of February 2022. Children's Hospital has committed religious discrimination against them. On November 5, 2021, the Centers for Medicare and Medicaid Services (CMS) published an interim final rule (IFR) requiring healthcare workers at facilities receiving Medicare and Medicaid reimbursement to be vaccinated against SARS-COV-2 by January 4, 2022. Twenty-four states sued CMS to enjoin enforcement of the IFR in U.S. federal district courts in Louisiana and Missouri. Ohio joined the Louisiana lawsuit. The district courts enjoined the IFR, the Fifth and Eighth Circuit Courts of Appeals upheld the injunctions. Then, CMS appealed to the U.S. Supreme Court which ruled for CMS January 13, 2022. On May 10, 2023, Judge Charles Esque Fleming entered a Memorandum Opinion and Order GRANTING Hospital's motion to dismiss under Fed. R. Civ. P. 12(b)(1) while the motion to dismiss under Fed. R. Civ. P. 12(b)(6) was deemed MOOT. The Plaintiffs' motion for leave to amend their complaint was DENIED. For the reasons stated in the Memorandum Opinion and Order, the matter was DISMISSED WITHOUT PREJUDICE. The appellate case is captioned as Richard Brimer, et al. v. Children's Hospital Medical Center of Akron, Case No. 23-3480, in the United States Court of Appeals for the Sixth Circuit, filed on June 5, 2023. The briefing schedule in the Appellate Case states that: -- Appellant brief is due on July 17, 2023; and -- Appellee brief is due on August 14, 2023.[BN] Plaintiffs-Appellants RICHARD BRIMER, et al., on their own behalf and on behalf of the class similarly situated, are represented by: Warner D. Mendenhall, Esq. Brian C. Unger, Esq. MENDENHALL LAW GROUP 190 N. Union Street, Suite 201 Akron, OH 44304 Telephone: (330) 535-9160 Defendant-Appellee CHILDREN'S HOSPITAL MEDICAL CENTER OF AKRON is represented by: Alexandra C. Eckrich, Esq. WESTON HURD 1300 E. Ninth Street, Suite 1400 Cleveland, OH 44114 Telephone: (216) 241-6602 - and - Mark I. Wallach, Esq. ROETZEL & ANDRESS 1375 E. Ninth Street, Suite 1000 Cleveland, OH 44114 Telephone: (216) 623-0150 CHILDTIME CHILDCARE: Fails to Pay Proper Wages, Covington Says -------------------------------------------------------------- JAMES COVINGTON, individually and on behalf of all others similarly situated, Plaintiff v. CHILDTIME CHILDCARE, INC.; and LEARNING CARE GROUP, INC., Defendants, Case No. 1:23-cv-00710-GLS-ATB (N.D.N.Y., June 13, 2023) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide meals, and provide accurate wage statements. Plaintiff Covington was employed by the Defendants as a housekeeper. CHILDTIME CHILDCARE, INC. provides child care services. The Company offers preschool, kindergarten, and general child care services. Childtime Childcare serves children throughout the United States. [BN] The Plaintiff is represented by: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 Third Avenue, Suite 1810, New York, NY 10017 Telephone: (718) 669-0714 Email: mgangat@gangatpllc.com CLOOPEN GROUP: Dong Suit Settled; Matter Discontinued W/ Prejudice ------------------------------------------------------------------ In the case, BOYAN DONG, ET AL., Plaintiffs v. CLOOPEN GROUP HOLDING LIMITED, ET AL., Defendants, Case No. 21-cv-10610 (JGK) (S.D.N.Y.), Judge John G. Koeltl of the U.S. District Court for the Southern District of New York orders that the matter be discontinued with prejudice but without costs. Judge Koeltl says it has been reported to the Court that the parties have settled the action. He orders that the matter be discontinued with prejudice but without costs; provided, however, that within 45 days of the date of his Order, the counsel for the Plaintiffs may apply by letter for restoration of the action to Judge Koeltl's calendar, in which event the action will be restored. Any application to reopen must be filed within 45 days of the Order; any application to reopen filed thereafter may be denied solely on that basis. Further, if the parties wish for the Court to retain jurisdiction for the purpose of enforcing any settlement agreement, they must submit the settlement agreement to the Court within the same 45-day period to be so-ordered by the Court. Unless the Court orders otherwise, it will not retain jurisdiction to enforce a settlement agreement unless it is made part of the public record. All pending motions are dismissed as moot. All conferences are canceled. The Clerk of 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/y2khbvrx from Leagle.com. DELTA PACKING: Carrillo, Andres Nixed From Perez Suit W/o Prejudice ------------------------------------------------------------------- In the case, ALEJANDRA PEREZ, et al., Plaintiffs v. DELTA PACKING COMPANY OF LODI, et al., Defendants, Case No. 2:19-cv-02228-DAD-JDP (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California dismisses Carrillo and Andres from the action, without prejudice. On May 17, 2023, the Court issued an order directing Plaintiffs Martin Mendoza Carrillo and Miguel Andres to individually inform the Court in writing within 14 days of the service of the order whether he intends to continue prosecuting the action and, if so, whether he intends to obtain substitute counsel or proceed pro se. In that order, the Court warned Carrillo and Andres that their failure to respond to its order in this regard will result in their dismissal from the action due to their failure to prosecute and failure to comply with the Court's order. The deadline set by the Court's May 17, 2023 order has now passed. To date, Carrillo and Andres have not complied with that order, or otherwise communicated with the Court. It thus appears that they have no intention to continue their participation as named Plaintiffs in this putative class action and have abandoned the litigation. Accordingly, Judge Drozd dismisses Carrillo and Andres from the action, without prejudice, due to their failure to prosecute the action and failure to comply with a court order. The Clerk of the Court is directed to update the docket to reflect that both Plaintiffs have been terminated as named Plaintiffs in this action. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/mh44n5td from Leagle.com. DIRECTV LLC: Settles Brown Telemarketing Class Suit for $17 Mil. ---------------------------------------------------------------- Brigette Honaker of Top Class Actions reports that readers have reported receiving payments from a $17 million class action lawsuit settlement with DirecTV over alleged unsolicited telemarketing calls. The settlement benefits consumers who received phone calls from DirecTV or its agents regarding a debt despite not being a DirecTV customer since Oct. 1, 2004. According to the class action lawsuit, DirecTV violated the federal Telephone Consumer Protection Act (TCPA) by contacting consumers with unsolicited telemarketing phone calls. These calls allegedly sought payment for debts despite the call recipients never having been DirecTV customers. DirecTV agreed to resolve the TCPA class action lawsuit with a $17 million settlement. Under the terms of the settlement, consumers could receive a proportional share of the net settlement based on which DirecTV agent called them. Top Class Actions readers report receiving payment as high as $1,693! The DirecTV TCPA class action lawsuit is Jenny Brown, et al. v. DirecTV LLC, Case No. 2:13-cv-01170, in the District Court for the Central District of California. [GN] DISPLATE CORP: Gutierrez Sues Over False Discount Offers -------------------------------------------------------- DANIEL GUTIERREZ, individually and on behalf of all others similarly situated, Plaintiff v. DISPLATE CORPORATION, Defendant, Case No. 1:23-cv-00861-ADA-BAM (E.D. Cal., June 6, 2023) alleges claims against the Defendant for breach of contract, breach of express warranty, breach of implied warranty, quasi-contract/unjust enrichment, negligent misrepresentation, intentional misrepresentation, and violations of the California's False Advertising Law, Consumer Legal Remedies Act, and Unfair Competition Law. Displate Corporation, the Defendant, makes, sells, and markets Displate posters, which are available online through Defendant's website, www.displate.com. The Defendant's website prominently advertises purportedly time-limited, site-wide sales for these products. These advertisements include purported regular prices and purported discounts. However, these advertisements are allegedly false since the Defendant repeatedly offers site-wide discounts off of the purported regular prices. The sales are not limited in time; instead, they repeatedly reset and continue to be available. Moreover, the Defendant's website creates an illusion that customers are receiving a limited-time discount. Defendant does this by advertising fake limited-time sales, fake regular prices, and fake discounts based on the fake regular prices, says the suit. Displate Corporation is a Delaware company with headquarters is in Austin, TX. [BN] The Plaintiff is represented by: Christin Cho, Esq. Simon Franzini, Esq. Grace Bennett, Esq. DOVEL & LUNER, LLP 201 Santa Monica Blvd., Suite 600 Santa Monica, CA 90401 Telephone: (310) 656-7066 Facsimile: (310) 656-7069 E-mail: christin@dovel.com simon@dovel.com grace@dovel.com DISTROKID LLC: Doeman Music Sues Over Breach of Fiduciary Duty -------------------------------------------------------------- DOEMAN MUSIC GROUP MEDIA AND PHOTOGRAPHY LLC, on behalf of itself and others similarly situated, Plaintiff v. DISTROKID LLC, KID DISTRO HOLDINGS, LLC D/B/A DISTROKID, RAQUELLA "ROCKY SNYDA" GEORGE, Defendants, Case No. 1:23-cv-04776 (S.D.N.Y., June 7, 2023) alleges common law claims against the Defendants for breach of fiduciary duty and for breach of the implied covenant of good faith and fair dealing. Despite having information available such as procedures how to upload their music, on what the terms and procedures are for uploading, and the royalty collection process, DistroKid allegedly did not provide Doeman with all of the information that it had about the takedown notice. It did not provide the proper information to submit a counter-notice. And, it did not initiate a reasonable investigation when the take-down notice was challenged by the copyright owner. In addition, DistroKid breached the covenant of good faith and fair dealing when it refused to provide the information regarding the takedown (especially the information necessary for Doeman to get the music put back up whether via DistroKid or other music distributors) and refused to conduct a reasonable investigation regarding attempts to keep the music up, says the suit. DistroKid LLC is a Delaware limited-liability company with a principal place of business in the Southern District of New York. The company operates as a music distributor and serves as a middleman between independent artists and labels and the platforms that supply the music directly to the public, such as Spotify, Amazon Music, and iTunes. [BN] The Plaintiff is represented by: Megan Keenan, Esq. INFORMATION DIGNITY ALLIANCE P.O. Box 8684 Portland, OR 97207 Telephone: (925) 330-0359 E-mail: Megan@InformationDignityAlliance.org ELLUSIONIST.COM INC: Court Narrows Claims in Guerrero Class Suit ---------------------------------------------------------------- In the case, EDELMIRA GUERRERO, individually, and on behalf of all others similarly situated, Plaintiff v. ELLUSIONIST.COM, INC., Defendant, Case No. 22-cv-2465 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York grants in part and denies in part the Defendant's motion to dismiss for failure to state a claim. Guerrero, a visually impaired person, brings the putative class action for declaratory relief, injunctive relief, and monetary damages against Ellusionist for violations of the Americans with Disabilities Act of 1990 ("ADA") and the New York City Human Rights Law ("NYCHRL"), alleging denial of equal access to a website operated by Ellusionist. Guerrero is a resident of Bronx, New York and is visually impaired. She uses NonVisual Desktop Access ("NVDA") screen reading software to navigate websites on the internet. Ellusionist is a corporation registered in California, and it conducts business in New York through its website, ellusionist.com. It designs and sells cards that are used for magic tricks and card games. Guerrero alleges that Ellusionist failed to make the website accessible to the visually impaired, thereby denying her access to the goods available on the website. She alleges that on four occasions -- Feb. 1, March 20, July 24, and July 26, 2022 -- she browsed and attempted to purchase a deck of "Queen Bee Luxury-pressed E7" cards. Yet, because of the accessibility barriers on the website, which Ellusionist has failed to cure as of the date of the filing of the first amended complaint ("FAC"), Guerrero could not buy the cards. Guerrero filed the action on March 27, 2022, seeking injunctive relief, as well as compensatory and punitive damages against Ellusionist. Pursuant to the parties' stipulation entered by the Court on July 27, 2022, Guerrero filed a FAC on July 28, 2022. On Sept. 30, 2022, Ellusionist filed a motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim. First, Guerrero alleges that Ellusionist violated Title III of the ADA, 42 U.S.C. Section 12101 et seq., and the NYCHRL, N.Y.C. Administrative Code Sections 8-101 et seq., by failing to provide equal access to blind and visually-impaired consumers on its website. Ellusionist's principal argument is that its website is not a "place of public accommodation" under the ADA. It argues that the list of places provided in Title III that qualify as places of public accommodation include only physical locations, not websites. Judge Ramos holds that the website is a place of public accommodation within the meaning of the ADA. Thus, Guerrero has sufficiently alleged discrimination upon which relief can be granted under the ADA and the NYCHRL. Accordingly, Ellusionist's motion to dismiss is denied. Next, Ellusionist argues that Guerrero is not entitled to recover civil penalties, fines or punitive damages under the NYCHRL for two reasons: (1) civil penalties and fines are paid to the city, not to a private plaintiff, and (2) Guerrero's case does not meet the high bar for obtaining punitive damages, which requires more than mere negligence. Guerrero contends she is entitled to damages because she did not bring this claim under Section 8-127(a), but rather under Section 8-502(a). A motion to dismiss is addressed to a 'claim' -- not to a form of damages, Judge Ramos states. Because damages are not an independent cause of action, he says a motion to dismiss these damages is procedurally premature. Therefore, he denies Ellusionist's motion to dismiss Guerrero's request for monetary relief, including civil penalties, fines, or punitive damages. Ellusionist also moves to dismiss Guerrero's claim for a declaratory judgment that it violated the ADA and the NYCHRL because it is redundant. Count III of the FAC only adds one more allegation than those in Count I and II and is essentially a reiteration of the same allegations set forth in Count I and II. Accordingly, the claim is redundant and Judge Ramos grants Ellusionist's motion to dismiss Count III. For the foregoing reasons, Ellusionist's motion to dismiss for failure to state a claim under the ADA and the NYCHRL is denied. Its motion to dismiss for failure to establish a claim for damages under the statutes is denied and the motion to dismiss Count III is grants. Ellusionist is directed to answer the complaint by June 27, 2023. The Clerk of Court is respectfully directed to terminate the motion. A full-text copy of the Court's June 6, 2023 Opinion & Order is available at https://tinyurl.com/33n5wsym from Leagle.com. ENZO BIOCHEM: Fails to Prevent Data Breach, Guthart Alleges ----------------------------------------------------------- MARK GUTHART, individually and on behalf of all others similarly situated, Plaintiff v. ENZO BIOCHEM, INC.; ENZO CLINICAL LABS; INC.; and LAB CORPORATION OF AMERICA HOLDINGS, Defendants, Case No. 2:23-cv-04364-RPK-LGD (E.D.N.Y., June 13, 2023) is an action arising from a breach of sensitive information in the possession and custody and control of Defendants. According to the complaint, the Data Breach 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 "Sensitive Information." 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 Sensitive 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 in mitigating the effects of PII and PHI misuse, says the suit. ENZO BIOCHEM, INC. researches, develops, and manufactures health care products based on molecular biology and genetic engineering techniques. The Company also provides diagnostic services to the medical community. Enzo Biochem labeling and detection products for gene sequencing and genetic analysis are sold to the life sciences market throughout the world. [BN] The Plaintiff is represented by: THE SULTZER LAW GROUP P.C. Jason P. Sultzer, Esq. Philip Furia, Esq. 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 Email: sultzerj@thesultzerlawgroup.com furiap@thesultzerlawgroup.com FIRST CONNECTICUT: Dismissal of Karp Securities Class Suit Affirmed ------------------------------------------------------------------- Shearman & Sterling LLP of JD Supra reports that on June 1, 2023, the United States Court of Appeals for the Fourth Circuit affirmed the grant of summary judgment dismissing claims under Sections 14(a) of the Securities Exchange Act of 1934 against a financial company and certain of its directors. Karp v. First Connecticut Bancorp, Inc., -- F.4th --, 2023 WL 3743604, at *1 (4th Cir. 2023). Plaintiff alleged that the company in which he held stock made misrepresentations in a proxy solicitation in connection with a proposed stock-for-stock merger with another company. The Fourth Circuit held that plaintiff failed to allege any material omission from the proxy statement and also failed to establish loss causation. Plaintiff alleged that the proxy statement summarized different financial analyses performed by the company's financial advisor, which issued a fairness opinion, but omitted a prior analysis by that financial advisor that -- although prepared without input from company management -- had yielded more optimistic cash-flow projections. Plaintiff thus contended that the company's shareholders approved the merger based on an incomplete picture of the value of their shares. His expert opined that the alleged omission undervalued plaintiff's stock, but offered no opinion about whether the alleged omission caused the putative class members any damages. The company's experts opined that proxy statements in other transactions typically did not include any cash-flow projections, that the merger counterparty would not have agreed to a higher merger consideration, and that there was "no reason to believe" that disclosure of additional projections would have changed the result of the proxy solicitation. The Court rejected plaintiff's argument that the district court erred in holding that the omission of the cash flow projections was not material under Section 14(a). The Court noted that "an omitted fact is material if it's substantially likely that a reasonable shareholder would consider it important in deciding how to vote." The Court, however, agreed with defendants that "it's not enough to speculate that shareholders might have found the projections helpful to the deliberations, so long as the merger proxy provided a thorough and accurate summary of the financial advisor's work." The Court relied on precedent from the Seventh Circuit, which had similarly rejected a challenge to a proxy statement in light of all the other information provided and emphasized that "shareholders are not entitled to the disclosure of every financial input used by a financial advisor so that they may double-check every aspect of both the advisor's math and its judgment." (citing Kuebler v. Vectren Corp., 13 F.4th 631 (7th Cir. 2021)). The Fourth Circuit highlighted the "array of metrics" in the proxy statement and concluded that plaintiff failed to offer a "plausible theory for treating the … projected cash flows as material in light of all the other information provided to shareholders." In fact, the Court noted that plaintiff himself "didn’t testify that the cash-flow projections would have actually affected [his] vote for or against the proposed merger." Indeed, plaintiff testified that he did not recall how (or even whether) he had voted on the merger or what information he would have relied upon, leading the Court to observe that while the standard for materiality refers to a "reasonable shareholder," "it's at least relevant that the lead plaintiff in this case didn't even look for the cash-flow projections." The Fourth Circuit also agreed with the district court that plaintiff separately failed to establish loss causation. Fourth Circuit explained that plaintiff failed to establish that the omission of the cash flow projection caused a loss, noting that the purchase price represented a nearly $6 per share premium over the company's trading price, that the buyer was willing to walk if its offer was not accepted, and that no other bidders sought to purchase the company. The Fourth Circuit rejected plaintiff's contention that loss causation and transaction causation were one and the same for Section 14(a) cases, such that he need only "show that [the] misleading proxy statement proximately caused the merger." (emphasis in original). To the contrary, the Fourth Circuit held that loss causation requires a plaintiff to show not only that the proxy statement was an essential link in the transaction, but also to prove that the challenged misrepresentations or omissions caused their economic loss, joining several other Circuits that have held this framework applies to both Section 10(b) and Section 14 claims. [GN] FORD MOTOR: Bolton Sues Over Defective Ford Engines --------------------------------------------------- MARLON BOLTON; JENNY PTASZEK; GINA BILOTTA; VERONICA MALDONADO; JOHN WRIGHT; MARGARET VASQUEZ; TRACEY DROTOS; and SCOTT MARTIN, individually and on behalf of all others similarly situated, Plaintiffs v. FORD MOTOR COMPANY, Defendant, Case No. 1:23-cv-00632-UNA (D. Del., June 9, 2023) is a class action brought against the Defendant by the Plaintiffs on behalf of a class of current and former owners and lessees of defective model year 2016 or later Ford-brand vehicles equipped with a 1.0L EcoBoost engine ("Class Vehicles"), including 2016-2017 Ford Fiesta vehicles, 2018-2021 Ford EcoSport vehicles and 2016-2018 Ford Focus vehicles. According to the complaint, the Ford 1.0L EcoBoost engine is a one liter, 3-cylinder engine used in several models of economy, subcompact and compact cars manufactured by Ford. Unfortunately, these engines have an inherent defect related to the oil pump, about which Ford has known but not disclosed to consumers. This defect results in catastrophic engine failure, often shortly outside of the 60,000-mile powertrain warranty as demonstrated below. The alleged defect presents a serious safety hazard because it can cause catastrophic engine failure without warning while driving, lost motive power, and sudden limp mode activation, increasing the likelihood of a collision. Moreover, because Ford is aware that the failures - which attract the owners' notice - occur frequently just outside the warranty, it is unfairly transferring the cost of the warranty repairs to unsuspecting consumers of the economy vehicles in which these engines are equipped. FORD MOTOR COMPANY designs, manufactures, and services cars and trucks. The Company also provides vehicle-related financing, leasing, and insurance through its subsidiary. [BN] The Plaintiffs are represented by: Robert J. Kriner, Jr., Esq. Scott M. Tucker, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP 2711 Centerville Rd., Suite 201 Wilmington, DE 19808 Tel.: (302) 656-2500 Email: rjk@chimicles.com smt@chimicles.com - and - Timothy N. Mathews, Esq. Alex M. Kashurba, Esq. CHIMICLES SCHWARTZ KRINER & DONALDSON SMITH LLP 361 W. Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Email: tnm@chimicles.com amk@chimicles.com - and - Russell D. Paul, Esq. Abigail Gertner, Esq. Amey J. Park, Esq. Natalie Lesser, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 Email: rpaul@bm.net agertner@bm.net apark@bm.net nlesser@bm.net - and - Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. Laura E. Goolsby, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Email: Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Laura.Goolsby@capstonelawyers.com FORD MOTOR: Militello Suit Moved to Eastern District of Michigan ---------------------------------------------------------------- In the case, MARK MILITELLO, individually and on behalf of all others similarly situated, Plaintiff v. FORD MOTOR COMPANY, Defendant, Case No. 22-CV-6425DGL (W.D.N.Y.), Judge David G. Larimer of the U.S. District Court for the Western District of New York grants Ford's motion to transfer the action to the U.S. District Court for the Eastern District of Michigan. Militello filed the complaint in the action on Oct. 5, 2022, on behalf of himself and a class consisting of all persons who purchased a vehicle manufactured by Ford from an authorized Ford dealer in New York from 2007 onwards, containing an internal water pump that suffers from an alleged design defect that can cause it to fail prematurely. Ford has moved, pursuant to 28 U.S.C. Section 1404(a), to transfer the action to the Eastern District of Michigan. The Plaintiff opposes the motion. The 108-page complaint alleges that the Plaintiff, a citizen and resident of New York, bought a 2016 Ford Explorer in March 2019 from an authorized Ford dealer in Avon, New York. The Plaintiff further alleges that in or around September 2019, when his vehicle's odometer was at about 61,300 miles, the vehicle's water pump failed due to a defect in the design of the water pump. He alleges that he was forced to spend around $2000 in repair costs. Because the alleged defect was in the design of the pump, it was, allegedly, not unique to the Plaintiff's water pump. The Plaintiff claims that the defect existed, and currently exists, in thousands of vehicles manufactured by Ford incorporating its "Cyclone Engine," which contains the defective water pump. Based on these allegations, the Plaintiff asserts four claims against Ford, all under New York law: (1) a claim under Gen. Bus. L. Section 349 (deceptive acts or practices); (2) a claim under Gen. Bus. L. Section 350 (false advertising); (3) a claim under U.C.C. Section 2-314 (breach of implied warranty); (4) and fraud by omission or fraudulent concealment. The Plaintiff defines the class in this action as "All persons who purchased a Class Vehicle from an authorized dealer in New York for personal, family, or household purposes." "Class Vehicle" is defined as follows: "Beginning in 2007 and through at least 2020, Ford has incorporated the Cyclone Engine, containing an Internal Water Pump with the Defect into thousands of vehicles (the 'Class Vehicles')." Ford's motion to transfer relates to an action, Roe v. Ford Motor Co., No. 2:18-cv-12528, that was filed in the Eastern District of Michigan on August 14, 2018. In Roe -- in which the plaintiffs are represented by same counsel as in the case at bar -- the complaint alleges the same defect in Ford's engines as in this case, in wording identical to that of the complaint here. Both complaints also allege that Ford has been aware of the defect but concealed it from purchasers and the general public. The complaint in Roe is brought on behalf of a "Nationwide Class" comprising "all persons or entities in the United States who purchased, leased or own a Class Vehicle," and eleven sub-classes, each consisting of class members from one of eleven states (which do not include New York). There are 55 causes of action, asserting various claims under the laws of those eleven states and the federal Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301 et seq. For example, there are four claims asserted on behalf of the Arkansas sub-class, and eight claims by the California sub-class. In support of its motion to transfer, Ford contends that the Militello claims easily could have been brought in the Eastern District of Michigan, and the balance of relevant factors favors transferring the action there. It contends that the decision to file Militello in this district was motivated by forum shopping, and a desire to avoid the supervision of the Roe court. Judge Larimer explains that among the factors to be considered in determining whether to grant a motion to transfer venue are, inter alia: (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of the parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties. After considering the relevant factors, he concludes that Ford has demonstrated that transfer of the action to the Eastern District of Michigan is appropriate. First, while he does not agree with Ford that the Plaintiff's choice of forum in this case should be given no weight, Judge Larimer says neither is it entitled to great weight. Were it otherwise, few if any cases would ever be transferred, since a transfer necessarily means moving the case out of the district in which it was brought. Judge Larimer finds that on the whole, the remaining factors, which generally relate to matters of convenience and the burden on the parties of proceeding in one forum or the other, do not tilt strongly one way or the other. Ford is correct that the operative facts are centered more in Michigan than in New York. Although the Plaintiff's vehicle was purchased and suffered a water pump failure in New York, his claims do not relate so much to the facts of that particular breakdown, but to the design of the pump and Ford's alleged knowledge that the design was flawed. As Ford notes, those matters mostly concern Ford's operations in Michigan, where presumably most of the relevant witnesses and sources of proof are located. Finally, Judge Larimer notes that the Plaintiff asserts that Ford's motion to transfer is simply a subterfuge, and that if the case were transferred, Ford will seek to dismiss it on the ground that the Roe litigation is too far advanced to disrupt it by the addition of the Plaintiff (or the Plaintiffs) and claims in Militello. That argument is misplaced. All the Court is doing is transferring the action to the Eastern District of Michigan. Once that is done, how the case should proceed will be up to the Roe court. Any issues concerning consolidation with Roe or similar matters can be addressed by that court, following transfer. For these reasons, Ford's motion to transfer is granted. The action is transferred to the Eastern District of Michigan, pursuant to 28 U.S.C. Section 1404(a). A full-text copy of the Court's June 6, 2023 Decision & Order is available at https://tinyurl.com/2cf88etk from Leagle.com. FORMAN MILLS: Del Rossi Sue Over Termination Without Prior Notice ----------------------------------------------------------------- NOELL DEL ROSSI, individually and on behalf of all similarly-situated individuals, Plaintiff v. FORMAN MILLS, INC., Defendant, Case No. 1:23-cv-03136 (D.N.J., June 7, 2023) arises out of the Defendant's violations of the Federal WARN Act and New Jersey WARN Act. The Plaintiff worked in Defendant's corporate office in Pennsauken, New Jersey. On June 6, 2023, Plaintiff and the other employees who worked at the facility were notified by Defendant that their employment was terminated, effective immediately. Accordingly, Plaintiff brings this class action against the Defendant for its failure to provide at least 60 days advance written notice as required by Federal WARN Act. The Plaintiff also alleges that the Defendant failed to provide aggrieved employees with the 90- day written notice that is required by the NJ WARN Act. In addition, the Defendant also failed to provide them with the severance payment and an additional four weeks of pay that is required under the NJ WARN Act, says the suit. Forman Mills, Inc. is a Delaware for-profit corporation that is registered with the New Jersey Division of Revenue and Enterprise Services under the entity identification number 0100438815. Its corporate headquarters are located at 1070 Thomas Busch Memorial Highway, Pennsauken, New Jersey. [BN] The Plaintiff is represented by: Franklin J. Rooks, Jr., Esq. MORGAN ROOKS, P.C. 525 Route 73 North, Suite 104 Marlton, NJ 08053 Telephone No. (856) 874-8999 Facsimile No. (856) 494-1707 E-mail: fjrooks@morganrooks.com - and - James E. Goodley, Esq. Ryan P. McCarthy, Esq. GOODLEY MCCARTHY LLC One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 394-0541 E-mail: james@gmlaborlaw.com ryan@gmlaborlaw.com FRIDA RESTAURANT: Covarrubias Sues Over Busboys' Unpaid Wages ------------------------------------------------------------- SEBASTIAN COVARRUBIAS, individually and on behalf of all others similarly situated, Plaintiff v. FRIDA RESTAURANT BEVERLY HILLS, LLC, a Limited Liability Company; and DOES 1-20, inclusive, Defendants, Case No. 23SMCV02492 (Cal. Super. Ct., June 7, 2023) arises out of the Defendants' alleged violations of the California Labor Code. Plaintiff Sebastian Covarrubias was employed by Cantina Frida as a busboy from approximately March 2021 to July 31, 2022 at Cantina Frida Beverly Hills location as a nonexempt general laborer employee and was and is paid in whole or in part on an hourly basis. Allegedly, the Defendants have engaged in a uniform policy and systematic scheme of wage abuse against Plaintiff in violation of applicable California laws, including, without limitation, failing to provide meal and rest breaks, failing to pay minimum and overtime wages, failing to provide accurate wage statements, and failing to pay all earned wages upon separation of employment. Frida Restaurant Beverly Hills, LLC ("Cantina Frida") is a traditional Mexican cuisine restaurant and is located in Beverly Hills, California. It conducted and continues to conduct substantial business in the state of California. [BN] The Plaintiff is represented by: Vache A. Thomassian, Esq. Caspar Jivalagian, Esq. Christopher A. Adams, Esq. KJT LAW GROUP LLP 230 N. Maryland Ave. Suite 306 Glendale, CA 91206 Telephone: (818) 507-8525 E-mail: chris@kjtlawgroup.com vache@kjtlawgroup.com caspar@kjtlawgroup.com GD TOP NOTCH: Fails to Pay Overtime Pay, Moore Alleges ------------------------------------------------------ JEREMIAH MOORE, individually and on behalf of all others similarly situated, v. GD TOP NOTCH CLEANING SERVICE, INC., Case No. 2:23-cv-11410-SFC-DRG (E.D. Mich., June 14, 2023) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Moore was employed by the Defendant as a field office supervising coordinator. GD TOP NOTCH CLEANING SERVICE, INC. is a construction company based in Redford, Michigan. [BN] The Plaintiff is represented by: Jennifer L. McManus, Esq. FAGAN MCMANUS, PC 25892 Woodward Avenue Royal Oak, Michigan 58067-0910 Telephone: (248) 542-6300 Email: jmcmanus@faganlawpc.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 Email: rburch@brucknerburch.com GEICO: Discloses Web Visitor's Viewing Habits, Suit Claims ---------------------------------------------------------- Jason Grant of PropertyCasualty360 reports that a consumer advocate has launched a putative class action against Geico, claiming the national insurer is secretly reporting to Google user information and video-watching behavior for all those who watch videos on Geico's website. "Visitors would be shocked and appalled to know that defendants secretly disclose to Google all of the key data regarding a visitor's viewing habits," the lawsuit, lodged in U.S. District Court in Los Angeles by plaintiff Jesse Cantu, claims. Cantu's lawsuit alleges that Geico uses Google Analytics to help report the "personally identifiable information, the titles watched and more" of the viewers of Geico’s website videos for the purpose of "data harvesting and targeted advertising." And it claims that such surreptitious reporting of information and data, done without first getting informed, written consent from the video-watchers, violates the Video Privacy Protection Act of 1988. The act was meant to protect an individual's privacy, and Cantu's 12-page complaint asks for declaratory and injunctive relief, statutory damages under the VPPA, punitive damages and attorneys fees and costs for the putative class. Cantu is a consumer privacy advocate with dual motivations for watching a video on the website, said the complaint. Cantu was genuinely interested in learning more about Geico's goods and services, in addition to being a "tester," who works to "ensure that companies abide by the obligations imposed by federal law." He is represented in the lawsuit, filed on April 25, by Todd Friedman of the Law Offices of Todd M. Friedman, based in Woodland Hills, California. Meghan Killian, a partner at Duane Morris in Los Angeles, has entered an appearance on behalf of auto insurer Geico in the case. "When plaintiff [Cantu] watched videos on the website, defendants disclosed information that allowed Google (and any ordinary person) to readily identify plaintiff's video-watching behavior," the complaint says at one point. It then alleges that the "defendants did so knowingly and for the purpose of retargeting plaintiff in connection with Google advertising campaigns," even though "defendants did not obtain the informed, written consent of Plaintiff to disclose PII concerning plaintiff to third parties." It also alleges that the potential class for the lawsuit numbers in the thousands. "While the exact number and identities of the class members are unknown to plaintiff at this time and can only be ascertained through appropriate discovery. Plaintiff is informed and believes and thereon alleges that the class includes thousands of members," the complaint states. Friedman, the attorney for Cantu, could be reached for comment on June 12, 2023. It appears he has represented Cantu in other consumer-privacy suits against other defendants, as well, based on online information. Killian, representing Geico, also couldn't be reached for comment. [GN] GIVAUDAN SA: Chautauqua Sues Over Fragrance Price Monopoly ---------------------------------------------------------- CHAUTAUQUA SOAP COMPANY, individually and on behalf of and all others similarly situated, Plaintiff v. GIVAUDAN S.A.; GIVAUDAN FRAGRANCES CORPORATION; GIVAUDAN FLAVORS CORPORATION; UNGERER & COMPANY, INC.; INTERNATIONAL FLAVORS & FRAGRANCES INC.; SYMRISE AG; SYMRISE INC.; SYMRISE US LLC; FIRMENICH INTERNATIONAL S.A.; FIRMENICH INCORPORATED; and AGILEX FLAVORS & FRAGRANCES, INC., Defendants, Case No. 2:23-cv-03249 (D.N.J., June 13, 2023) alleges Defendants' violation of the Sherman Act. The Plaintiff alleges in the complaint that because of the Defendants' anticompetitive conduct, the Plaintiff and the Class members were forced to pay more for these products than they otherwise would have, and thus have suffered substantial overcharge damages at the hands of the Defendants. The Defendants' unlawful conduct has successfully eliminated or suppressed competition in the market, and the Plaintiffs and the Class members have sustained and continue to sustain, significant losses in the form of artificially inflated prices paid to Defendants, says the Plaintiff. The Defendants, through their unlawful conduct, allegedly reduced competition in the fragrance market, increased prices, reduced choice for purchasers, and caused antitrust injury to purchasers in the form of overcharges. GIVAUDAN SA manufactures and markets fragrances and flavors from natural and synthetic ingredients. The Company sells its products to manufacturers of perfumes, beverages, prepared foods, and consumer goods. [BN] The Plaintiff is represented by: Blaine Finley, Esq. Cody McCracken, Esq. CUNEO, GILBERT & LADUCA, LLP 4725 Wisconsin Ave., NW Suite 200 Washington, DC 20016 Telephone: (202) 789-3960 Email: bfinley@cuneolaw.com cmccracken@cuneolaw.com - and - Jon A. Tostrud, Esq. Anthony Carter, Esq. TOSTRUD LAW GROUP, P.C. 1925 Century Park East Suite 2100 Los Angeles, CA 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 Email: jtostrud@tostrudlaw.com acarter@tostrudlaw.com GLENN O. HAWBAKER: Hourly Wage Workers Class Certified in Packer ---------------------------------------------------------------- In the case, LESTER PACKER, SR., LESTER PACKER, II, and SHAWN DYROFF, individually and (Chief Judge Brann on behalf of the Glenn O. Hawbaker, Inc. Benefit Plan, Plaintiffs v. GLENN O. HAWBAKER, INC., BOARD OF DIRECTORS OF GLENN O. HAWBAKER, INC., PLAN ADMINISTRATOR OF THE GLENN O. HAWBAKER, INC. BENEFIT PLAN, and JOHN DOES 1-20, Defendants, Case No. 4:21-CV-01747 (M.D. Pa.), Judge Matthew W. Brann of the U.S. District Court for the Middle District of Pennsylvania grants the Plaintiffs' motion for class certification. In this putative class action, the Plaintiffs allege that their employer -- the heavy construction contractor Glenn O. Hawbaker, Inc. -- stole their pension and health and welfare benefits, as well as those of their coworkers similarly assigned to public, prevailing wage projects. Accordingly, the Plaintiffs have brought claims under the Employee Retirement Income Security Act of 1974 ("ERISA") against Hawbaker, the Hawbaker Board of Directors, and the Administrator of Hawbaker's employee benefits plan. They now move for class certification. On April 8, 2021, the Office of the Attorney General for the Commonwealth of Pennsylvania filed a criminal complaint against Hawbaker, alleging that the company failed to provide its employees working prevailing wage jobs with the required "fringe benefits" under Hawbaker's employee benefits plan. Specifically, the Attorney General asserted that Hawbaker stole its prevailing wage workers' pension and health and welfare money, using those fringe benefit funds to lower its costs, thereby helping it win more government bids, and increase the company's profits. Between 2015 and 2018, the fringe benefit funds Hawbaker allegedly stole from its prevailing wage workers totaled more than $20 million. The Attorney General brought four charges of Theft by Failure to Make Required Disposition of Funds Received, in violation of 18 Pa. C.S. Section 3927(a) -- one claim for each year between 2015 and 2018. In August 2021, Hawbaker pleaded nolo contendere to all four counts, effectively accepting punishment for the offenses without admitting to the facts alleged. As part of the plea agreement, Hawbaker committed to pay restitution for the charged period in the amount of $20,696,453 to affected victims. Attached to the plea agreement was a restitution table listing 1,262 prevailing wage workers, with the restitution amount owed itemized by worker. Two months later, the Plaintiffs -- Lester Packer Sr., Lester Packer II, and Shawn Dyroff -- initiated the instant action. All three men worked at Hawbaker between 2012 and 2018, with each dedicating at least 95 percent of their work to prevailing wage projects. The Plaintiffs styled their Complaint as a putative class action, bringing on behalf of all "current and former hourly wage employees who worked on prevailing wage contracts at Hawbaker within the Commonwealth of Pennsylvania during the period Sept. 1, 2018, though Dec. 31, 2018," claims for breach of fiduciary duty and failure to adequately monitor other fiduciaries against Hawbaker, its Board of Directors, and the Administrator of the Hawbaker Benefit Plan. The Plaintiffs moved for class certification on Jan. 16, 2023. They move under Rules 23(a) and 23(b)(1) to certify the following class: " All current and former hourly wage employees who worked on prevailing wage contracts at Hawbaker within the Commonwealth of Pennsylvania during the period Sept. 1, 2012, through Dec. 31, 2018." Judge Brann states that plaintiffs seeking class certification must satisfy the prerequisites of Rule 23(a) and also show that the action is maintainable under Rule 23(b)(1), (2), or (3). To succeed, they must affirmatively demonstrate their compliance with the requirements of Rule 23 by a preponderance of the evidence. When assessing whether certification is proper, courts must refrain from conducting a preliminary inquiry into the merits. That said, the U.S. Court of Appeals for the Third Circuit directs courts to carefully examine the factual and legal allegations. Given the clear direction provided by the Third Circuit, Judge Brann says the Court is favorably disposed to requests for class certification on ERISA breach of fiduciary duty claims such as those presented in the case. And by tethering their claims to the criminal complaint the Pennsylvania Attorney General brought against Hawbaker -- to which Hawbaker pleaded no contest -- the Plaintiffs have presented the evidence necessary to meet their obligations under Rule 23. Judge Brann concludes that the Plaintiffs have satisfied all four prerequisites of Rule 23(a) as well as the requirements of both Rules 23(b)(1)(A) and 23(b)(1)(B). Because the Plaintiffs' have satisfied the requirements of Federal Rule of Civil Procedure 23, class certification is therefore warranted. The motion for class certification is, therefore, granted. An appropriate Order follows. A full-text copy of the Court's June 6, 2023 Memorandum Opinion is available at https://tinyurl.com/7558ec58 from Leagle.com. GOHEALTH LLC: Dantzler GIPA Suit Removed to N.D. Illinois --------------------------------------------------------- The case styled TYRAH DANTZLER, individually and on behalf of herself and all others similarly situated v. GOHEALTH, LLC, Case No. 2023CH02165, was removed from the Circuit Court of Cook County, Illinois, Chancery Division, to the United States District Court for the Northern District of Illinois, Eastern Division, on June 7, 2023. The Clerk of Court for the Northern District of Illinois assigned Case No. 1:23-cv-03611 to the proceeding. The case asserts claims against the Defendant for alleged violations of the Illinois Genetic Information Privacy Act. GoHealth LLC is a health insurance marketplace and digital health company that offers Medicare plans. [BN] The Defendant is represented by: William J. Tarnow, Esq. Jason C. Kim, Esq. Alissa J. Griffin, Esq. NEAL, GERBER & EISENBERG LLP 2 N. LaSalle St. Suite 1700 Chicago, IL 60602 Telephone: (312) 269-8000 GOOGLE LLC: Settles Data Privacy Class Action for $23 Million ------------------------------------------------------------- Megan Ziegler, writing for Fox 10 Phoenix, reports that another tech giant will be paying millions to settle a data privacy lawsuit. Google has settled a class action lawsuit that alleged the company compromised personal data from people who used Google to search for information on the internet. Google has denied any wrongdoing and agreed to a $23 million settlement. If you're one of the millions of U.S. residents who used Google Search between October 2006 and September 2013, you can file a claim. Here's what you need to know. Who is eligible for settlement money? In settling the suit, it was decided that all anyone in the United States who went to Google and carried out a search, and clicked on a search result from Oct. 26, 2006 - Sept. 30, 2016 is eligible to file a claim. How do I file a settlement claim? Those who are eligible may fill out a claim form and submit it online, or mail a printed form. Your claim form must be submitted -- either postmarked or electronically -- by July 31, 2023, to be considered. Filing for this settlement online is a two-step process. First, you will first need to register to receive a Class Member ID. You cannot file a claim without this ID. Your Class Member ID will be emailed to you, and you'll use it to complete the second step of submitting a claim. For both steps, you'll have to provide your full name, address, email and phone number. During the second step, you'll also need your Class Member ID and then attest that you've used Google Search during the time period specified in the lawsuit (Oct. 25, 2006 - Sept. 30, 2013). You can then choose how you'd like to receive your payment: prepaid card, PayPal, Venmo, Zelle, or direct deposit. And you'll give one last swear under penalty of perjury that you're eligible to file and the information you've submitted is correct. You can fill out the online claim form here and get directions about printing and mailing a claim form here. How much money will users get? As mentioned, Google has agreed to pay $23 million as part of the settlement agreement, though it's not known yet exactly how much individual users may get as part of the payout. Though, based on early estimates, each person who files an approved claim is estimated to get approximately $7.70. The amount will likely vary though based on how many people submit valid claims. What is the lawsuit about? The main allegation of the lawsuit is that Google compromised the privacy of people who used Google to search for information, by "systematically and repeatedly divulging" its users' search queries and histories. The lawsuit alleged Google allowed users' search queries be transferred to marketers and data brokers, and be sold and resold to countless other third parties. The lawsuit said search queries contain personally-identifiable information, such as real names, addresses, phone numbers, credit card numbers, social security numbers, financial account numbers and more. In addition to the settlement money, Google will also revise its "FAQs" and "Key Terms" webpages regarding the disclosure of search queries. And if a data privacy lawsuit settlement sounds familiar, another tech giant -- Facebook -- agreed to settle a different data privacy lawsuit earlier this year, to the tune of $725 million. That one is accepting claims until Aug. 25, 2023. [GN] HARVARD PILGRIM: Faces Class Suit Over Data Breach, Cyber Attack ---------------------------------------------------------------- Alan Mansfield, Esq. of Legalscoops reports that on May 25, 2023, Harvard Pilgrim Health Care, Inc. one of the largest healthcare insurers in the Northeast United States, announced that it began sending out letters advising over 2.5 million individuals of a data breach attack in April 2023 by a third-party hacker. Consumers have responded by filing class action lawsuits against the company. According to Harvard Pilgrim's data breach notice: "[w]e determined that the files at issue may contain the following types of personal information and/or protected health information: names, physical addresses, phone numbers, dates of birth, health insurance account information, Social Security numbers, provider taxpayer identification numbers, and clinical information (e.g., medical history, diagnoses, treatment, dates of service, and provider names)." According to this notice, consumers may have been impacted if they are a current or former member of Harvard Pilgrim (including individual and family plans purchased directly from Harvard Pilgrim, state-based exchanges or plans selected through their employer) between March 28, 2012, and April 17, 2023 - a period of over 10 years - or if their physician or other provider is currently contracted with Harvard Pilgrim. Consumers may also have been impacted if they are current or were former members of certain Harvard Pilgrim Health Plans Inc. between June 1, 2020, and April 17, 2023. Such private information could reveal sensitive and personal material leading to privacy and security breaches. Harvard Pilgrim Sued in Class Actions Several class action lawsuits have been filed over this issue in Massachusetts where Harvard Pilgrim Health Care is based, and will likely be consolidated together in the next couple of months. The class action lawsuits allege claims for negligence, breach of duties to protect confidential information, breach of contract and unjust enrichment. The class action lawsuits seek an unspecified amount of damages. As these class action lawsuits have just been filed, Harvard Pilgrim Health Care and its parent company have not yet responded. For free information on your right to seek compensation by joining a class action lawsuit, fill out the form below or call us at 1-844-BREACH8 (1-844-273-2248). According to Harvard Pilgrim, beginning on or about March 28, 2023, a hacker accessed and began to steal files from systems that support the Harvard Pilgrim Health Care Commercial and Medicare Advantage Stride℠ plans (HMO)/(HMO-POS) system. Harvard Pilgrim admitted this hacker was able to breach data by accessing files within their Health Care's servers, but did not detect this infiltration for almost three weeks: "Unfortunately, the investigation identified signs that data was copied and taken from our Harvard Pilgrim systems from March 28, 2023, to April 17, 2023." Harvard Pilgrim claims that the hacker stole no patient banking information or was aware of any misuse but was not clear about the extent of personal information that is at issue. Harvard Pilgrim is still investigating this incident and will provide updates if the investigation determines additional individuals may potentially be impacted. If you obtained services from Harvard Pilgrim between March 28, 2012 and April 17, 2023, your personal information may have been hacked and you may have been the victim of a data breach. Data Breach Laws Protect You Many states have data breach protections laws, including Massachusetts, but do not provide a direct right of action for its violation. However, there are other claims that individuals can assert that can provide for compensation. In addition, California laws specifically protect the personal information of California residents who may have used Harvard Pilgrim's services in the last 10 years. The California Customer Records Act requires businesses to implement and maintain reasonable security procedures and practices to protect consumers' personal information. In 2018, California passed the California Consumer Privacy Act (CCPA). This law has many protections for the personal information of California residents. The Confidential Medical Information Act (CMIA) also protects confidential health-related information, depending on the materials accessed. It is unclear at this time whether the information hacked violated that law. The CMIA requires a health care provider, health care service plan, or contractor who creates, maintains, preserves, stores, abandons, destroys, or disposes of medical records to do so in a way that preserves the confidentiality of the information within those records. The CMIA defines "medical information" to mean any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient's medical history, mental or physical condition, or treatment. "Individually identifiable" means that the medical information includes or has any element of personal identifying information sufficient to allow identification of the individual, such as the patient's name, address, electronic mail address, telephone number, or other information that reveals the individual's identity. While all consumers who received notice of this breach may be entitled to some money, consumers in California may specifically be entitled to between $100 and $1,000 or your actual damages, whichever is greater, depending on which of these laws are violated. Participants in data breach class actions can recover damages, injunctive relief (to ensure that the business has reasonable security practices to protect consumer data from being leaked again), and anything else necessary to compensate data breach victims and prevent these harms from occurring again. For free information on your right to seek compensation by joining a class action lawsuit, fill out the form below or call us at 1-844-BREACH8 (1-844-273-2248). Identity theft is on the upswing. Exercise Your Rights Under the Law Even when your data has been part of a breach, you may not be awarded compensation without legal assistance. Experienced data breach and class action attorneys can help you exercise your rights, evaluate your options and decide whether you are entitled to compensation. You have no out-of-pocket costs, as we only get paid if we prevail. If you have used services provided by Harvard Pilgrim Health Care and are concerned about this breach of your personal data and your options, fill out the following form or call us at 1-844-BREACH8 (1-844-273-2248). [GN] HOPKINSVILLE SOLID WASTE: Hawkins Seeks Truck Drivers' Unpaid OT ---------------------------------------------------------------- JONATHAN CRAIG HAWKINS and TIMOTHY BRIAN SHEPHARD, JR., Plaintiffs v. HOPKINSVILLE SOLID WASTE ENTERPRISE, Defendant, Case No. 5:23-cv-00083-BJB (W.D. Ky., June 5, 2023) is a class action arising out of the Defendant's alleged violations of the Fair Labor Standards Act, the Kentucky Wages and Hours Act, and the Kentucky Whistleblower Act. The Plaintiffs were employed by Defendant as truck drivers, then promoted to the position of Supervisor. However, Plaintiffs' job duties remained largely the same after the promotion and did not include a primary duty of management of Defendant's enterprise. Nevertheless, with the promotion, Defendant misclassified Plaintiffs as exempt under the FLSA and KWHA, changed Plaintiffs' pay from an hourly basis with hours worked being recorded by a time clock to a salary basis with Defendant doing nothing to record the number of hours worked. Moreover, the Plaintiffs worked overtime in numerous work weeks following their promotions but were not paid any compensation for that overtime work, in violation of the FLSA and KWHA, says the suit. Further, to obscure Defendant's violations of the FLSA with respect to Plaintiffs "Supervisor" work, Defendant awarded compensation to Plaintiffs after the promotion in the form of a benefit which Defendant referred to as "Comp Time." The Defendant, in retaliation for Plaintiff Hawkin's reports about Defendant’s management embezzling Defendant’s funds and in violation of the Kentucky Whistleblower Act, encouraged Plaintiff Hawkins to use the "Comp Time" benefit after Hawkin's home was destroyed in the December 2021 tornado, while simultaneously taking advantage of Plaintiff Hawkins' resulting absence to disparage, demote and constructively terminate him. With respect to Plaintiff Shephard, Defendant failed to pay the accrued "Comp Time" benefit upon Plaintiff Shephard ceasing to be employed by Defendant, which was a breach of contract and the KWHA, the suit claims. The Defendant operates a municipal waste system, including servicing dumpsters at commercial facilities in Hopkinsville, Kentucky. [BN] The Plaintiffs are represented by: Mark N. Foster, Esq. LAW OFFICE OF MARK N. FOSTER, PLLC P.O. Box 869 Madisonville, KY 42431 Telephone: (270) 213-1303 E-mail: MFoster@MarkNFoster.com IBEX GLOBAL: Consumers Receive Data Breach Suit Settlement Checks ----------------------------------------------------------------- Brigette Honaker of Top Class Actions reports consumers are receiving payments from a $2.4 million class action lawsuit settlement over a 2020 Ibex data breach. The settlement benefits individuals who received a data breach notification letter from Ibex informing them their personal identifying information may have been impacted by a data security incident that occurred between July 27, 2020, and Aug. 17, 2020. According to the data breach class action lawsuit, Ibex failed to implement reasonable cybersecurity measures to prevent the 2020 data breach. As a result, consumer information was compromised, allegedly putting them at risk for fraud and other harm. Under the terms of the settlement, victims of the data breach could receive up to $5,000 in reimbursement for data breach-related losses. These payments include fraudulent charges, identity theft damages, lost time payments and more. One Top Class Actions reader reported receiving a payment of $125. The Ibex data breach class action lawsuit is Sanders, et al. v. Ibex Global Solutions Inc., et al., Case No. 1:22-cv-00591-TNM, in the U.S. District Court for the District of Columbia. [GN] INDIANA COUNTY, IN: Superior Court Certifies State Abortion Ban --------------------------------------------------------------- Editorial Board of The Journal Gazette reports a Marion County Superior Court judge last week certified a lawsuit seeking to reverse Indiana's abortion ban as a class action. And it argues the abortion law violates the state's Religious Freedom Restoration Act of 2015. Filed by the American Civil Liberties Union of Indiana on behalf of five unnamed plaintiffs as well as the organization Hoosier Jews for Choice, the complaint asserts the state’s near-total abortion ban of 2022 violates their sincere religious beliefs. This is the second case concerning the ban. In January, the Indiana Supreme Court heard a case based on liberty and privacy rights. The justices have yet to issue a ruling. The Republican-dominated General Assembly passed the abortion ban during a two-week special session in August, making Indiana the first state to prohibit the procedure after the U.S. Supreme Court overturned Roe v. Wade. In September, the ACLU asked the court to grant certification of a class that includes all Hoosiers whose religious beliefs "direct them to obtain abortions in situations" prohibited by the ban, and "who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion." Judge Heather Welch agreed, finding there is a large enough group of potential Hoosier plaintiffs with the same objections to the abortion ban. She found there is "sufficient evidentiary support that the religions to which plaintiffs and putative class members belong would guide its practitioners to seek abortions under particular circumstances based on testimony from leaders of these faiths." Stevie Pactor, a staff attorney with the ACLU of Indiana, told The Journal Gazette that the framework provided under the Religious Freedom Restoration Act to challenge the abortion ban puts the organization in a favorable legal position. "One thing to keep in mind is that RFRA applies to organized, systematized religions, but it also applies to people whose religious beliefs don't fit neatly into a specific category," she said. As an example, let's say a Roman Catholic woman has a religious belief that abortion is required under a certain circumstance. That could present a viable claim under RFRA, Pactor said, regardless of the Catholic Church's position on the issue. Under the act, a state law cannot substantially burden religion. Yet the ACLU argues that "under Jewish law, a fetus attains the status of a living person only at birth" and that Islam "does not believe that the fetus is ensouled at the moment of conception." The ACLU of Indiana says RFRA applies to all Hoosiers of faith and not just conservative Christians. And that's been the problem with the law from the beginning – a narrow interpretation of religion. Christianity is not the only belief system in the state. [GN] INSOMNIA COOKIES: Forte Class Suit Moved to N.D. Indiana -------------------------------------------------------- The class action lawsuit titled JENNIPHER RENEE FORTE, individually and on behalf of all others similarly situated, Plaintiff v. INSOMNIA COOKIES, LLC d/b/a Insomnia Cookies; SERVE U BRANDS, INC.; SETH BERKOWITZ, Defendants, Case No. Case No. 23-cv-03401, was removed from the U.S. District Court for the Southern District of New York, to the U.S. District Court for the Northern District of Indiana on June 12, 2023. The District Court Clerk assigned Case No. 3:23-cv-00551-JD-MGG to the proceeding. The Case is assigned to the Hon. Judge Jon E. DeGuilio and referred to Judge Michael G. Gotsch. INSOMNIA COOKIES LLC retails food products. The Company offers bakery products such as cookies with various toppings such as brownie bites, snickers, and rainbow sprinkles. Insomnia Cookies serves customers in the United States. [BN] The Plaintiff is represented by: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 110 Flushing, NY 11355 Telephone: (718) 762-1324 JPMORGAN CHASE: Faces Stoll Class Suit Over Payment Network Glitch ------------------------------------------------------------------ Abraham Jewett of Top Class Actions reports that Chase Bank customers were subjected to double debits of payments from their accounts on or about June 1, 2023 due to a service malfunction on the peer-to-peer payment network, Zelle Network at Chase, a new class action lawsuit alleges. Plaintiff Ronald Stoll claims Chase customers, in addition to being deprived access to funds that were rightfully theirs, were unable to obtain information about the true status of their account balances due to extended wait times. Stoll argues Chase customers ultimately suffered "financial hardship, bounced checks, charges, general confusion and emotional and mental distress" on account of Chase and Zelle's allegedly unlawful and negligent conduct. "Defendant was aware that its customers depended upon the proper functioning of Zelle and regularly used Zelle for fundamental transactions, such as rent payments," the Chase class action states. Stoll wants to represent a nationwide class and New York subclass of Chase customers whose accounts were affected by the service malfunction involving Zelle on June 1, 2023. Duplicate debits from Chase bank accounts reversed on or about June 2, says class action Stoll argues that himself and other Chase customers began noticing on June 1 that without limitation payments they had authorized to be made on Zelle had been twice-debited from their Chase accounts. "Upon information and belief, as a result of the Service Malfunction, numerous Chase customers began complaining of missing funds and unexpected negative balances," the Chase class action states. The duplicate debits from the Chase accounts were ultimately reversed on or about June 2, according to the Chase class action. Stoll claims Chase and Zelle are guilty of breach of fiduciary duty, unjust enrichment, breach of contract, and negligence, and of violating New York General Business Law. Plaintiff is demanding a jury trial and requesting declaratory and injunctive relief along with an award of actual, nominal, consequential, punitive, and treble damages for himself and all class members. A separate class action lawsuit was filed against Chase and Zelle last month by a consumer arguing the companies failed to adequately protect and reimburse their customers from and after instances of Zelle fraud. The plaintiff is represented by Peretz Bronstein of Bronstein, Gewirtz & Grossman, LLC. The Chase Zelle glitch class action lawsuit is Stoll, et al. v. JPMorgan Chase Bank, N.A. D/B/A Chase Bank, et al., Case No. 1:23-cv-04149, in the U.S. District Court for the Eastern District of New York. [GN] JPMORGAN CHASE: Stoll Sues Over Zelle Network Service Malfunction ----------------------------------------------------------------- RONALD STOLL, Plaintiff v. JPMORGAN CHASE BANK, N.A. D/B/A CHASE BANK, JPMORGAN CHASE & CO., & EARLY WARNING SERVICES, LLC D/B/A ZELLPAY.COM, Defendants, Case No. 1:23-cv-04149 (E.D.N.Y., June 5, 2023) is a class action brought by the Plaintiff, individually and on behalf of a class of similarly situated customers of Defendants arising from a service malfunction that occurred on June 1, 2023, on Defendants' peer-to-peer payment network, Zelle Network(R) at Chase. Without warning, on the morning of June 1, Chase customers, like Stoll, began noticing that payments, including without limitation payments they had authorized to be made via Zelle had been debited from their accounts twice. Chase customers further noticed that funds that had been sent to them via Zelle by other Chase customers had credited to their accounts twice, causing them to mistakenly believe they had additional funds available in their account, says the suit. As a result of Defendants' negligence and other violations of law, Plaintiff and Class members were (1) subjected to double debits of payments from their accounts and thereby deprived from accessing funds that were rightfully theirs as the funds had been debited from their accounts twice and weren't reversed until the next day and (2) were unable to obtain information from Chase as to the true status of their account balances due to extended wait times in attempting to contacting customer service, all resulting in financial hardship, bounced checks, charges, general confusion and emotional and mental distress, alleges the suit. JPMorgan Chase Bank, N.A. d/b/a Chase Bank, is a national bank providing, inter alia, retail banking products and services to consumers, including personal deposit accounts.[BN] The Plaintiff is represented by: Peretz Bronstein, Esq. Edward Gewirtz, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN, LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: Peretz@bgandg.com Chona@bgandg.com KAMPS INC: Fails to Pay Proper Overtime Wages, Barrios Alleges -------------------------------------------------------------- NERY BARRIOS, an individual, Plaintiffs v. KAMPS INC. Domestic Profit Corporation, OCCUGUIDES USA LLC, Foreign Limited Liability Company, jointly and severally, Defendants, Case No. 1:23-cv-00584 (W.D. Mich., June 7, 2023) is a civil action brought by the Plaintiff, on behalf all other similarly situated employees, arising out of the Defendants' violations of the Fair Labor Standards Act and the Improved Workforce Opportunity Wage Act. Plaintiff Barrios was employed by the Defendants from approximately the end of March 2022 through April 17, 2023. Allegedly, the Defendants failed to pay Plaintiff overtime at the rate of one and one-half times his regular rate for hours worked in excess of 40 hours during a workweek. Plaintiff complained about not being paid overtime on several occasions. However, two to three days before he was fired, Plaintiff complained about his compensation. Moreover, Plaintiff claims that the Defendant's termination of employment constitutes unlawful retaliation under the FLSA. Kamps Inc. is a domestic limited liability company whose registered office is located at 3140 Belle Chase Way Ste 600, Lansing, Michigan. With over 400 locations nationwide, Kamps Inc. is a national pallet supplier. [BN] The Plaintiff is represented by: Robert Anthony Alvarez, Esq. AVANTI LAW GROUP, PLLC 600 28th St. SW Wyoming, MI 49509 Telephone: (616) 257-6807 E-mail: ralvarez@avantilaw.com KIDSPEECH INC: Fails to Pay Overtime Wages, Arstikaitis Alleges --------------------------------------------------------------- MICHELLE L. ARSTIKAITIS, individually and on behalf of all others similarly situated, Plaintiff v. KRISTIN R. HALL; LISA L. GENTRY; and KIDSPEECH, INC., Defendants, Case No. 1:23-cv-02607-SCJ (N.D. Ga., June 12, 2023) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Plaintiff Arstikaitis was employed by the Defendants as a practice manager. KIDSPEECH, INC. offers pediatric speech therapy services. [BN] The Plaintiff is represented by: K. Prabhaker Reddy, Esq. THE REDDY LAW FIRM, P.C. 1325 Satellite Boulevard Suite 1506 Suwanee, GA 30024 Telephone: (678) 629-3246 Facsimile: (678) 629-3247 Email: kpr@reddylaw.net LABRADA NUTRITION: Consumers Receive Class Suit Settlement Checks ------------------------------------------------------------------ Brigette Honaker of Top Class Actions reports consumers are receiving payments from a $625,000 class action lawsuit settlement with Labrada over supplement false advertising. The settlement benefits consumers who purchased Labrada Green Coffee Bean Extract or Labrada Garcinia Cambogia supplements in California between Feb. 2, 2012, and July 15, 2022. According to the false advertising class action lawsuit, Labrada portrayed its supplements as fat-loss solutions. The supplements allegedly included claims such as "Fat Buster" and "Fat Loss Optimizer" that were purportedly backed by peer-reviewed studies. In reality, there was no support for these claims, the plaintiffs allege. Labrada agreed to pay $625,000 to resolve the class action lawsuit. Under the terms of the settlement, consumers could receive up to $50 with proof of purchase or up to $20 without proof of purchase. Top Class Actions readers reportedly received settlement payments of $18.08. The Labrada false advertising class action lawsuit is Woodard, et al. v. Labrada, et al., Case No. 5:16-SV-00189-JGB-SP, in the District Court for the Central District of California. [GN] LANGUAGE LINE: Approval of $960K Settlement in Rouse Suit Denied ---------------------------------------------------------------- In the case, DEREK ROUSE, individually and o/b/o all other persons similarly situated, Plaintiff v. LANGUAGE LINE SERVICES, INC., Defendant, Case No. 4:22-cv-0204-DGK (W.D. Mo.), Judge Greg Kays of the U.S. District Court for the Western District of Missouri, Western Division, denies the parties' Motion for Approval of FLSA Collective Action Settlement without prejudice. The lawsuit is a conditionally certified collective action lawsuit seeking to recover unpaid wages and overtime pursuant to the Fair Labor Standards Act ("FLSA"). Now before the Court is the parties' Motion for Approval of FLSA Collective Action Settlement, the Court's Order directing the Plaintiff's counsel to provide additional information about the proposed settlement, and the Plaintiff's subsequent filings. Judge Kays has no doubt the litigation involves a bona fide dispute over FLSA provisions, but says the proposed settlement is not fair and reasonable. The most concerning features are that it is a claims-made settlement with a reversion provision, combined with what appears to be a clear-sailing provision on attorneys' fees and an overly-high award of attorneys' fees. To begin, the claims procedure -- which requires each class member to submit a formal claim to receive a settlement check, even though doing so appears to serve no purpose other than to lower participation rates -- is unnecessary. The proposed settlement uses a claims-made process which requires a class member to complete additional paperwork to receive his or her settlement check, a procedure which departs from recognized best practices. The reversion provision is also problematic. Judge Kays emphasizes that reversion provisions are disfavored in FLSA collective-action cases. If participation is low, the Defendants receive a large reversion, which significantly reduces their total payout, while the Plaintiffs' attorneys still receive their full fees based on the maximum settlement amount. Finally, Judge Kays finds that the fees and expenses sought are quite high ($325,000) for a settlement reached so early in the litigation, particularly given that the Plaintiff's counsel spent relatively little time on the case -- 120 hours, including non-lawyer staff time -- so the fees and expenses sought by the Plaintiff's counsel are wildly disproportionate to the lodestar amount. While Judge Kays will not second guess the parties' determination that the fair settlement value of this case is approximately $960,000 (the $635,000 settlement fund plus $325,000 in attorneys' fees), he declines to approve the settlement since so much of the value is going to the Plaintiff's counsel who has spent relatively little time on the case. Judge Kays concludes that although the proposed settlement has several positive attributes -- such as the total value of the settlement, which is approximately $960,000 -- it is not fair and reasonable in its present form. That said, he believes that a slightly revised settlement would merit approval. The motion for preliminary approval is, therefore, denied without prejudice. That said, Judge Kays believes that a slightly revised settlement would merit approval. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/ywzpw77s from Leagle.com. LOADSMART INC: Fails to Pay Proper Wages, Burr Alleges ------------------------------------------------------ MICHAEL BURR; GABRIELE EIMONTAITE; and KEVIN VILLARREAL, individually and on behalf of all others similarly situated, Plaintiffs v. LOADSMART, INC., Defendant, Case No. 1:23-cv-03708 (N.D. Ill., June 12, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendant as a sales representative. LOADSMART, INC. operates and manages logistics services platform. The Company offers online freight quotes, booking, and full truck loading support services. [BN] The Plaintiff is represented by: Erika Pedersen, Esq. PEDERSEN & WEINSTEIN LLP 33 N. Dearborn Street, Suite 1170 Chicago, IL 60602 Telephone: (312) 322-0710 Email: epedersen@pwllp.com - and - Melissa L. Stewart, Esq. Rebecca L. Pattiz, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 E-mail: mstewart@outtengolden.com rpattiz@outtengolden.com - and - Courtney J. Hinkle, Esq. OUTTEN & GOLDEN LLP 1225 New York Ave, NW Suite 1200B Washington, D.C. 20005 Telephone: (202) 915-5810 E-mail: chinkle@outtengolden.com LOZANO INSURANCE: Counsel in Mosley Suit to Dispense $5K to NIWR ---------------------------------------------------------------- In the case, SHERI MOSLEY, individually and on behalf of all others similarly situated, Plaintiff v. LOZANO INSURANCE ADJUSTERS, INC., FRANK LOZANO, LISETTE LOZANO, ANCHOR INSURANCE HOLDINGS, INC., and KEVIN PAWLOWSKI, Defendants, Case No. 3:19-cv-379-TJC-JK (M.D. Fla.), Judge Timothy J. Corrigan of the U.S. District Court for the Middle District of Florida, Jacksonville Division, authorizes the Class Counsel to distribute $5,000 and any remaining interest to the National Institute for Workers' Rights. The case is before the Court upon the Parties' Notification of a Final Circuit Court Decision in Johnson v. NPAS Sols., LLC. (Doc. 134). In the Court's previous Order entered on Jan. 28, 2021, the Court approved the parties' Settlement Agreement, but deferred ruling on the issue of whether $5,000 should be distributed to the Named Class Plaintiff Mosley as a service award due to a pending final decision in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020). The Court ordered the parties to deposit $5,000 into its registry and to notify the Court when a final decision was issued in Johnson. Lozano deposited the money. On Aug. 3, 2022, the Eleventh Circuit ordered that Johnson would not be reheard en banc and the parties filed their joint notice. In their notice, they argue that the Court should still distribute the $5,000 award to Mosley because it is "not a salary or bounty" prohibited by Johnson; rather, the money is compensation for the risk she has incurred for serving as the Named Plaintiff in the suit. Alternatively, they argue the Court should treat the $5,000 award as uncashed funds pursuant to section III.F of the Settlement Agreement and distribute the money to their mutually agreed upon cy pres recipient, the National Institute for Workers' Rights (NIWR). Although the parties argue that Johnson does not cover the $5,000 service award because it compensates the Named Plaintiff for her risks in serving in the role rather than compensation for her bringing the suit, Judge Corrigan says the distinction is without a difference. By the parties' characterization, he says the service award still functions as compensation to Mosley for her role as the Named Plaintiff in the lawsuit. The law in this Circuit is clear that awards that to compensate a class representative for her time and rewards her for bringing a lawsuit are prohibited. Based on the parties' recommendation, however, a cy pres award is appropriate. Judge Corrigan notes that cy pres distribution is a common and proper method of distributing unclaimed settlement funds, subject to court approval of the application of the funds. Courts employing cy pres distribution have been inclined to distribute such unclaimed settlement funds to worthy charities, especially to charities whose purposes harmonize with the underlying lawsuit. The parties have selected the NIWR as the recipient. The institute's mission is "to advance workers' rights through research, thought leadership, and education for policymakers, advocates, and the public." It is the related charitable public interest organization of the National Employment Lawyers Association (NELA). As the underlying claims in the case concerned alleged violations of the Fair Labor Standards Act for owed wages, this charitable organization's purpose is aligned with the nature of the suit. Therefore, Judge Corrigan holds that the NIWR is an appropriate cy pres recipient. Accordingly, the Clerk will return to the Class Counsel the sum of $5,000, plus any accrued interest, subject to the administrative handling fee authorized by the Judicial Conference of the United States. The Class Counsel is authorized to distribute $5,000 and any remaining interest to the NIWR. Because this should conclude the distribution of the Settlement Amount, the Clerk is directed to close the file. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/bdd6ha66 from Leagle.com. LYFT INC: Ruozzi Sues Over Deceptive Food Delivery Services ----------------------------------------------------------- SKYE RUOZZI, ALAN ARCE, individually and on behalf of others similarly situated v. LYFT, INC., GRUBHUB HOLDINGS, INC. and GRUBHUB, INC., Case No. 517118/2023 (N.Y. Sup., June 12, 2023) seeks damages caused by the Defendants' deceptive acts and practices with respect to its food delivery services in the State of New York, in violation of the New York's Consumer Protection Act and General Business Law sections 349 and 350. According to the complaint, Grubhub, were and continue to be, aided and abetted by Defendants, LYFT, INC. by and through Lyft's own subscription called "Lyft Pink," which inter alia offers its' subscribers a "Free year of Grubhub+ ($0 delivery fees)." On February 5, 2023, Plaintiff Ruozzi proceeded to use the newly subscribed to "Grubhub+" service, and decided on purchasing certain items from a restaurant known as "Springbone Kitchen." Upon completion of the order, Plaintiff Ruozzi paid the following additional charges, not related to the food order price. The Plaintiff paid an ambiguous and unexplained fee of $2.50 for "Other fees." The Defendants, together and severally, deceptively advertised to the Plaintiffs that, if Plaintiffs subscribe to Grubhub's subscription service, "Grubhub+", such subscription will yield Plaintiffs free delivery, at their favorite restaurants. On the contrary, however, the Plaintiffs who enrolled in "Grubhub+", did not get actual free delivery (despite the statement "Grubhub+ -- Free Delivery" found on said receipt), since, the Plaintiffs still paid Grubhub's "Other fees," which offset the advertised free delivery and included fees not otherwise found at checkout, the Plaintiffs contend. As a direct and proximate result of the Defendants' conduct, the Defendants have caused, and are likely to continue causing, substantial injury to the public and to the Plaintiffs, and the Plaintiffs are entitled to recover damages, including enhanced damages, if available, in an amount to be determined at trial, and reasonable attorneys' fees. Plaintiffs Ruozzi and Arce were and still are natural persons, residing in the County of Kings, City of New York. Lyft is an American company offering mobility as a service, ride-hailing, vehicles for hire, motorized scooters, a bicycle-sharing system, rental cars, and food delivery in the United States and select cities in Canada.[BN] The Plaintiffs are represented by: Michael J.S. Pontone, Esq. THE LAW OFFICES OF MICHAEL J.S. PONTONE, ESQ., P.C. 233 Broadway, Suite 900 New York, NY 10279 Telephone: (917) 648-8784 MANAGED CARE: Fails to Prevent Data Breach, Brown Alleges --------------------------------------------------------- BRITTNEY BROWN, individually and on behalf of all others similarly situated, Plaintiff v. MANAGED CARE OF NORTH AMERICA, INC., Defendant, Case No. 0:23-cv-61112-XXXX (S.D. Fla., June 9, 2023) is a class action against the Defendant for its failure to properly secure and safeguard personally identifiable information including, but not limited to, the Plaintiff's and Class Members' names, addresses, dates of birth, Social Security numbers, and medical records. The Plaintiff alleges in the complaint, the Defendant maintained the Private Information in a negligent manner. In particular, the Private Information was maintained on computer systems and networks that were in a condition vulnerable to cyberattack. Upon information and belief, the mechanism of the Data Breach and potential for improper disclosure of the Plaintiff's and Class Members' Private Information was a known risk to Defendant; and, thus, Defendant was on notice that failing to take appropriate protective measures would expose and increase the risk that the Private Information could be compromised and stolen. Hackers can offer for sale the unencrypted, unredacted Private Information to criminals. The exposed Private Information of Plaintiff and Class Members can, and likely will, be sold repeatedly on the dark web, says the Plaintiff. MANAGED CARE OF NORTH AMERICA, INC., doing business as MCNA Dental, provides dental plans. The Company offers medicare, long term, and commercial plans. [BN] The Plaintiff is represented by: Jonathan B. Cohen, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 3833 Central Ave. St. Petersburg, FL 33713 Telephone: (813) 786-8622 Email: jcohen@milberg.com - and - Gary Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 227 W. Monroe Street Suite 2100 Chicago, IL 60606 Telephone: (866) 252-0878 Email: gklinger@milberg.com - and - Brandon M. Wise, Esq. PEIFFER WOLF CARR KANE CONWAY & WISE, LLP 818 Lafayette Ave., Floor 2 St. Louis, MO 63104 Telephone: (314) 833-4825 Email: bwise@peifferwolf.com - and - Andrew R. Tate, Esq. PEIFFER WOLF CARR KANE CONWAY & WISE, LLP 235 Peachtree Street NE, Suite 400 Atlanta, GA 30303 Telephone: (404) 282-4806 Email: atate@peifferwolf.com MANAGED CARE: Fails to Prevent Data Breach, Manning Alleges ----------------------------------------------------------- TAYLOR MANNING, individually and on behalf of all others similarly situated, Plaintiff v. MANAGED CARE OF NORTH AMERICA, INC., dba MCNA DENTAL, Defendant, Case No. 0:23-cv-61146-XXXX (S.D. Fla., June 14, 2023) is a class action against the Defendant for its failure to secure and safeguard the Plaintiff and the Class' personally identifying information and personal health information, including names, dates of birth, addresses, telephone numbers, emails, Social Security numbers, driver's license or government-issued identification numbers, health insurance information, Medicaid/Medicare ID numbers, and information regarding dental and orthodontic care. According to the Plaintiff in the complaint, as a result of the Defendant's inadequate security and breach of its duties and obligations, the Data Breach occurred, and the Plaintiff's and Class members' PII/PHI was accessed and stolen. The Defendant owed a duty to the Plaintiff and Class members to implement and maintain reasonable and adequate security measures to secure, protect, and safeguard their PII/PHI against unauthorized access and disclosure. The Defendant breached that duty by, among other things, failing to implement and maintain reasonable security procedures and practices to protect its customers’ PII/PHI from unauthorized access and disclosure, says the suit. The Plaintiff seeks to remedy the Defendant's failings and their consequences. The Plaintiff brings this action on behalf of herself and all persons whose private information was exposed as a result of the Data Breach. MANAGED CARE OF NORTH AMERICA, INC., doing business as MCNA Dental, provides dental plans. The Company offers medicare, long term, and commercial plans. [BN] The Plaintiff is represented by: John A. Yanchunis, Esq. Jean S. Martin, Esq. Francesca Kester, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Email: jyanchunis@forthepeople.com fkester@forthepeople.com jeanmartin@forthepeople.com MANAGED CARE: Fails to Prevent Data Breach, Menendez Alleges ------------------------------------------------------------ DARRIN MENENDEZ, individually and on behalf of all others similarly situated, Plaintiff v. MANAGED CARE OF NORTH AMERICA, INC., d/b/a MCNA DENTAL, Defendant, Case No. 0:23-cv-61149-DPG (S.D. Fla., June 14, 2023) seeks monetary damages and injunctive and declaratory relief arising from the Defendant's failure to safeguard the Personally Identifiable Information and Protected Health Information of its clients' health plan members, which resulted in unauthorized access to its information systems on or around February 26, 2023 and the compromised and unauthorized disclosure of that Private Information, causing widespread injury and damages to Plaintiff and the proposed Class. The Plaintiff alleges in the complaint that as a result of the Data Breach, which the Defendant failed to prevent, the Private Information of the Defendant's clients' health plan members, including Plaintiff and the proposed Class members, were stolen and released including their first and last names, address, email, phone number, date of birth, gender, driver's license number, Social Security number, government-issued ID number, health insurance information, dental health information and bills and insurance claims. The Defendant's failure to safeguard Customers' highly sensitive Private Information as exposed and unauthorizedly disclosed in the Data Breach violates its common law duty and Defendant's implied contract with its customers to safeguard their Private Information. The Plaintiff and Class members now face a lifetime risk of identity theft due to the nature of the information lost, including Social Security numbers, which they cannot change, and which cannot be made private again, says the suit. MANAGED CARE OF NORTH AMERICA, INC., doing business as MCNA Dental, provides dental plans. The Company offers medicare, long term, and commercial plans. [BN] The Plaintiff is represented by: Jeff Ostrow, Esq. Kristen Lake Cardoso, Esq. Steven Sukert, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: 954-525-4100 Email: ostrow@kolawyers.com cardoso@kolawyers.com sukert@kolawyers.com MANAGED CARE: Fails to Prevent Data Breach, Shuey Alleges --------------------------------------------------------- DENNIS SHUEY; TENIA FLOWERS; on behalf of MINOR SON, T.S.; and SHAVONNE DIGGSE, individually and on behalf of all others similarly situated, Plaintiffs v. MANAGED CARE OF NORTH AMERICA, INC. d/b/a MCNA DENTAL PLANS, Defendant, Case No. 0:23-cv-61132-RS (S.D. Fla., June 12, 2023) is a class action against the Defendant for its failure to properly secure and safeguard personally identifiable information including, but not limited to, the Plaintiffs' and Class Members' names, addresses, dates of birth, Social Security numbers, and medical records.. The Plaintiffs allege in the complaint, the Defendant maintained the Private Information in a negligent manner. In particular, the private information was maintained on computer systems and networks that were in a condition vulnerable to cyberattack. Upon information and belief, the mechanism of the data breach and potential for improper disclosure of the Plaintiffs' and Class Members' private information was a known risk to Defendant; and, thus, Defendant was on notice that failing to take appropriate protective measures would expose and increase the risk that the Private Information could be compromised and stolen. Hackers can offer for sale the unencrypted, unredacted Private Information to criminals. The exposed Private Information of Plaintiffs and Class Members can, and likely will, be sold repeatedly on the dark web, the Plaintiffs contend. MANAGED CARE OF NORTH AMERICA, INC., doing business as MCNA Dental, provides dental plans. The Company offers medicare, long term, and commercial plans. [BN] The Plaintiffs are represented by: Jessica Wallace, Esq. SIRI & GLIMSTAD LLP 20200 West Dixie Highway, Suite 902 Aventura, FL 33180 Telephone: (786) 244-5660 Email: jwallace@sirillp.com - and - Mason A. Barney, Esq. Tyler J. Bean, Esq. 745 Fifth Avenue, Suite 500 New York, NY 10151 Telephone: (212) 532-1091 Email: mbarney@sirillp.com tbean@sirillp.com MANAGED CARE: Fails to Safeguard Customers' Info, Shuey Alleges --------------------------------------------------------------- DENNIS SHUEY, TENIA FLOWERS, ON BEHALF OF HERSELF AND HER MINOR SON, T.S., and SHAVONNE DIGGSE, on behalf of themselves and all others similarly situated v. MANAGED CARE OF NORTH AMERICA, INC. d/b/a MCNA DENTAL PLANS, Case No. 0:23-cv-61132-RS (S.D. Fla., June 12, 2023) alleges that MCNA failed to properly secure and safeguard Plaintiffs' and other similarly situated MCNA patients' personally identifiable information and protected health information from criminal hackers. The private information includes names, addresses, dates of birth, phone numbers, email addresses, Social Security numbers, driver's license numbers and other government-issued ID numbers, health insurance information (including plan information, insurance companies, member numbers, and Medicaid-Medicare ID numbers), information related to medical care and treatment received (including visits, dentist names, doctor names, past care, x-rays/photos, medications, and treatments), and billing and insurance claim information, the Plaintiffs claim. On May 26, 2023, MCNA confirmed that it had suffered a ransomware attack that disrupted its computer systems. MCNA detected the Data Breach on March 6, 2023, and waited more than eleven weeks before informing the public. Indeed, Plaintiffs did not receive a notification letter until May 26, 2023. As a result of this delayed response, the Plaintiffs and Class Members had no idea for almost three months that their Private Information had been compromised, and that they were, and continue to be, at significant risk of identity theft and various other forms of personal, social, and financial harm. This risk will remain for their respective lifetimes, says the suit. Accordingly, the Plaintiffs, on behalf of themselves and the Class, assert claims for negligence, breach of contract, breach of implied contract, unjust enrichment, and declaratory relief. The Plaintiffs propose the following Nationwide Class subject to amendment as appropriate: Nationwide Class All individuals in the United States who had Private Information accessed and/or acquired as a result of the Data Breach, including all who were sent a notice of the Data Breach. Excluded from the Class are Defendant and its parents or subsidiaries, any entities in which it has a controlling interest, as well as its officers, directors, affiliates, legal representatives, heirs, predecessors, successors, and assigns. Also excluded is any Judge to whom this case is assigned as well as their judicial staff and immediate family members. The Plaintiffs provided their private information to the Defendant as a requisite to receiving medical services and benefits from the Defendant. MCNA is a dental insurer for government subsidized Medicaid and Children's Health Insurance Programs ("CHIP").[BN] The Plaintiffs are represented by: Jessica Wallace, Esq. Mason A. Barney, Esq. Tyler J. Bean, Esq. SIRI & GLIMSTAD LLP 20200 West Dixie Highway, Suite 902 Aventura, FL 33180 Telephone: (786) 244-5660 E-mail: jwallace@sirillp.com mbarney@sirillp.com tbean@sirillp.com MERCER UNIVERSITY: Fails to Protect Personal Info, Ramos Claims --------------------------------------------------------------- EMILY RAMOS, an individual, on behalf of herself and all others similarly situated, Plaintiff v. MERCER UNIVERSITY, Defendant, Case No. 5:23-cv-00197-TES (M.D. Ga., June 5, 2023) alleges claims for negligence and negligence per se, breach of implied contract, unjust enrichment, and injunctive/declaratory relief due to Defendant's failure to implement and follow basic security procedures to safeguard Plaintiff's personally identifiable information(PII). Mercer experienced a data security incident between February 12, 2023 and February 24, 2023 that involved Plaintiff's and other consumers' PII. As a result, an unauthorized party accessed certain files and folders within the Defendant's systems and may have viewed, acquired, and/or exfiltrated data containing affected parties' PII. The security incident was wide-reaching, affecting a number of the Defendant's computer systems and compromising the PII of more than 93,000 people, says the suit. As a result of Defendant's failure to implement security procedures, Plaintiff's and Class Members' PII is now in the hands of criminals. The Plaintiff and Class Members now and will forever face a substantial increased risk of identity theft. Consequently, Plaintiff and Class Members have had to spend, and will continue to spend, significant time and money in the future to protect themselves due to the Defendant's failures, the suit asserts. Mercer University is a private university with its main campus in Macon, Georgia.[BN] The Plaintiff is represented by: E. Adam Webb, Esq. G. Franklin Lemond, Jr., Esq. WEBB, KLASE & LEMOND, LLC 1900 The Exchange, S.E. Suite 480 Atlanta, GA 30339 Telephone: (770) 444-9325 Facsimile: (770) 217-9950 E-mail: Adam@WebbLLC.com Franklin@WebbLLC.com - and - Kenneth J. Grunfeld, Esq. Kevin W. Fay, Esq. GOLOMB SPIRT GRUNFELD 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Telephone: (215) 985-9177 E-mail: kgrunfeld@golomblegal.com kfay@golomblegal.com NATIONAL GRID: Nightingale Appeals Summary Judgment to 1st Cir. --------------------------------------------------------------- Plaintiff ROBERT NIGHTINGALE filed an appeal from the District Court's Memorandum & Order and Judgment dated May 19, 2023 entered in the lawsuit entitled ROBERT NIGHTINGALE v. NATIONAL GRID USA SERVICE COMPANY, INC., FIRST CONTACT LLC, and IQOR US INC., Case No. 1:19-cv-12341-NMG, in the United States District Court for the District of Massachusetts, Boston. The lawsuit involves claims of unfair and deceptive business practices in violation of regulations promulgated by the Massachusetts Attorney General under the Massachusetts Consumer Protection Act. Mr. Nightingale brought this action under section 9 of that statute on behalf of himself and a putative class against National Grid USA Service Company, Inc. In October 2018, the Plaintiff filed suit in Massachusetts Superior Court on behalf of himself and a putative class of Massachusetts consumers against National Grid. During discovery, National Grid represented that it had contracted with First Contact to place first-party collection calls on its behalf. In September 2019, Nightingale filed a second amended complaint naming First Contact and iQor as co-defendants. The Defendants then collectively removed the action to this Court pursuant to the Class Action Fairness Act, 28 U.S.C. Section 1453(b). The Defendants filed a motion to dismiss the second amended complaint for failure to state a claim which the Court denied in August 2020. In December 2022, the Plaintiff moved to certify a class and a sub-class of Massachusetts residents who were called more than twice within a seven-day period regarding their debts to National Grid. The Court denied that motion in April 2023. The Defendants moved for summary judgment in October 2022, which the Plaintiff has opposed. The Plaintiff has also filed motions to exclude certain testimony and to certify a question of law to the Massachusetts Supreme Judicial Court ("the SJC"). Those non-dispositive motions are not related to or dependent upon the resolution of the Plaintiff's motion for class certification or the Defendants' pending motion for summary judgment and they are, in fact, rendered moot by virtue of the Court's instant decision. As reported in the Class Action Reporter, the Hon. Judge Nathaniel M. Gorton entered a Memorandum and Order on May 19, 2023 allowing the Defendants' motion for summary judgment. Viewing the facts in the light most favorable to plaintiff, the Court concluded that a reasonable fact-finder could determine that the calls placed by defendants were unreasonable relative to their purpose but could not determine that they caused a substantial or serious intrusion upon the sphere of personal privacy maintained by Nightingale. The appellate case is captioned as Nightingale v. National Grid USA Service Company, et al., Case No. 23-1476, in the United States Court of Appeals for the First Circuit, filed on June 5, 2023. The briefing schedule in the Appellate Case states that: -- Appearance form, docketing statement, and transcript report/order form were due on June 20, 2023.[BN] Plaintiff-Appellant ROBERT NIGHTINGALE, on behalf of himself and all others similarly situated, is represented by: Sergei Lemberg, Esq. Joshua Markovits, Esq. Stephen Taylor, Esq. LEMBERG LAW LLC 43 Danbury Rd. Wilton, CT 06897 Telephone: (203) 653-2250 Defendants-Appellees NATIONAL GRID USA, et al., are represented by: Diana A. Balluku, Esq. Angela Bunnell, Esq. David G. Thomas, Esq. GREENBERG TRAURIG LLP 1 International Pl, Ste 2000 Boston, MA 02110-0000 Telephone: (857) 313-3924 - and - Louis Michael Ciavarra, Esq. Jared A. Fiore, Esq. BOWDITCH & DEWEY LLP 311 Main St., PO Box 15156 Worcester, MA 01608 Telephone: (508) 926-3408 NIGHTHAWK COMPLETION: Fails to Pay Proper Wages, Cytacki Says ------------------------------------------------------------- JACOB CYTACKI, individually and on behalf of all others similarly situated, Plaintiff v. NIGHTHAWK COMPLETION SERVICES, LLC, Defendant, Case No. 7:23-cv-00085 (W.D. Tex., June 13, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Cytacki was employed by the Defendant as a field technician. Nighthawk Completion Services, LLC is a privately owned and operated oilfield service company. [BN] The Plaintiff is represented by: Fernando M. Bustos, Esq. Brandon C. Callahan, Esq. Matthew N. Zimmerman, Esq. BUSTOS LAW FIRM, P.C. P.O. Box 1980 Lubbock, TX 79408-1980 Telephone: (806) 780-3976 Facsimile: (806) 780-3800 Email: fbustos@bustoslawfirm.com bcallahan@bustoslawfirm.com mzimmerman@butsoslawfirm.com NORDIC NATURALS: Caldwell Sues Over Deceptive Product Labeling -------------------------------------------------------------- CHERYL CALDWELL, individually, and on behalf of all others similarly situated, Plaintiff v. NORDIC NATURALS, INC., Defendant, Case No. 3:23-cv-02818 (N.D. Cal., June 7, 2023) alleges claims against Defendant for breach of express warranty, breach of implied warranty, quasi contract/unjust enrichment, and for violations of the California's Consumers Legal Remedies Act, False Advertising Law, Unfair Competition Law in connection with the alleged false and deceptive advertising and labeling of Defendant's Ultimate Omega 2X fish oil product. The Defendant allegedly made false representations that lead reasonable consumers to believe its Ultimate Omega 2X fish oil product has twice the amount of Omega-3s per serving than that found in Defendant's regular Ultimate Omega product, which also states "Ultimate Omega" on the front label of the product. The regular Ultimate Omega product contains 1280 mg of Omega-3s per serving. Accordingly, for the Ultimate Omega 2X fish oil product to have twice the amount of Omega-3s per serving, it should have 2560 mg (1280 x 2) of Omega-3s per serving. However, the Ultimate Omega 2X fish oil product only contains 2150 mg of Omega-3s per serving, which represents a 16 % shortfall per serving for consumers, says the suit. Nordic Naturals, Inc. is a California corporation with its principal place of business in Watsonville, CA. Defendant is an industry leader in Omega-3 fish oil supplements. [BN] The Plaintiff is represented by: Robert Abiri, Esq. Wyatt Donen, Esq. CUSTODIO & DUBEY LLP 445 S. Figueroa Street, Suite 2520 Los Angeles, CA 90071 Telephone: (213) 593-9095 Facsimile: (213) 785-2899 E-mail: abiri@cd-lawyers.com donen@cd-lawyers.com NORTHROP GRUMMAN: ERISA Plan Sponsor Class Certification Affirmed ----------------------------------------------------------------- Seyfarth Shaw LLP of JD Supra reports that the United States Court of Appeals for the Seventh Circuit recently took a clarifying pencil to certain standards applicable to benefits disputes under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et. seq. (ERISA). In Carlson, et al. v. Northrop Grumman Severance Plan, et al.[1] the Seventh Circuit considered an appeal in a certified class action by ex-employees of Northrop Grumman -- the former employees alleged they were owed cash severance benefits. The Seventh Circuit affirmed the grant of summary judgment by the United States District Court for the Northern District of Illinois in favor of Northrop and the plan and held (1) that Northrop acted within its discretion to deny benefits, and (2) the increased stakes arising from class certification was "good cause" to withdraw an agreed-to case referral from the assigned magistrate judge back to the district court judge (Hon. Andrea R. Wood). Quick Facts of Carlson (District Court): The plain language of the severance plan granted Northrop's human resources (HR) department discretion to determine who qualified for benefits. Northrop determined that for an employee to qualify they needed to be (1) regularly scheduled to work at least 20 hours a week, and (2) a recipient of an individually-issued "memo" by HR. After two ex-employees did not receive cash severance benefits, they filed suit. They argued that their eligibility was established because they regularly worked more than 20 hours a week and characterized the "memo," which neither received, as a document that merely verified eligibility under the 20-hour standard. Northrop argued that the plan treated the "memo" as more than a ministerial document -- it was the means by which eligibility for severance benefits was determined. The District Court granted summary judgment in Northrop's favor, ruling that the plan's language conferred discretion to choose who, if anyone, is eligible to receive the disputed severance benefits post-termination. In the District Court, the parties consented to a magistrate judge presiding over the case under 28 U.S.C. Section 636(c). However, once the class was certified (on behalf of all ex-employees who did not receive the "memo") and the stakes multiplied, Northrop requested that the district court judge resume control. The District Court agreed. On appeal (Seventh Circuit): The Seventh Circuit affirmed that the language in the plan made clear that severance benefits were contingent on the receipt of the “memo,” which plaintiffs and other class members plainly did not receive. Plaintiffs argued that until October 2011, Northrop provided the "memo" to every terminated employee who had worked a threshold number of hours -- they contended that the plan's change in course supported an estoppel theory. The Seventh Circuit rejected this argument, finding that it tended to "show[] only that the firm may have made a mistake; it does not create a legal entitlement to have the mistake extended to other kinds of benefits." The Seventh Circuit rejected plaintiffs' argument that Northrop's conduct could be characterized as "interference" with their rights, in violation of 29 U.S.C. Section 1140. The Seventh Circuit explained that plaintiffs' argument effectively asked the Court to treat the HR department as their fiduciary, when it is not. The Seventh Circuit agreed that the District Court was entitled to rescind the assignment made to a magistrate, as the assignment was contingent on a district judge's consent. Under 28 U.S.C. Section 636(c)(4), "[t]he [district judge] may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under this subsection." The Seventh Circuit also viewed the increased stakes of the matter following class certification as "good cause" for withdrawing the referral. Key takeaways: Carlson considers how an estoppel theory may apply in situations where a sponsor acts in a non-uniform manner. Carlson addresses the operation of a discretionary grant of authority. Carlson makes clear that plan sponsors do not have unlimited authority -- they must follow the terms of the plan. If a plan does not grant a sponsor discretion in the execution of the plan, then no discretion may be exercised. However, if discretion is granted, then it must be exercised within the limits of the grant and carefully. Carlson noted the "good cause" standard for withdrawal of a case referral from a magistrate judge back to a district court judge (particularly in the context of class certification). Carlson, et al. v. Northrop Grumman Severance Plan, et al., 67 F.4th 871, 2023 WL 3299703 (7th Cir. May 8, 2023) [GN] OAKLAND COUNTY, MI: E.D. Michigan Refuses to Stay Sinclair Suit --------------------------------------------------------------- Judge Terrence G. Berg of the U.S. District Court for the Eastern District of Michigan, Southern Division, denies the motion to stay the case, MARION SINCLAIR, Plaintiff v. ANDY MEISNER, et al., Defendants, Case No. 2:18-CV-14042-TGB-MJH (E.D. Mich.). Defendant Oakland County and its Treasurer moved to stay the case pending a decision on their petition for certiorari in Hall v. Meisner, No. 21-874, and a decision by the U.S. Supreme Court in Tyler v. Hennepin County, No. 22-166. In this putative class action, Sinclair asserts that various government units, private entities, and public officials conspired to deprive her and other similarly situated individuals in Southfield, Michigan of the equity value of their homes. She says that, through a series of real-estate transactions, defendants took title to tax-delinquent properties, sold them, and failed to reimburse the former owners for the difference between the value of their homes and the delinquent debts -- often pocketing tens or hundreds of thousands of dollars in the process. The procedural history of the case is long and complex. In short, Sinclair's legal theories have changed since she filed her original complaint. In a proposed second amended class-action complaint, she raised five claims against various Defendants: (1) a federal takings claim against Oakland County and the City of Southfield; (2) a state-law takings claim against Oakland County and the City of Southfield; (3) a procedural due-process claim against Oakland County and the City of Southfield for failing to provide a process to secure the return of equity value after a foreclosure sale; (4) an unjust enrichment claim against Oakland County, the City of Southfield, and various other defendants for refusing to compensate property owners for the equity in their homes; and (5) a civil conspiracy claim. On Feb. 28, 2022, the Court entered an order denying Sinclair leave to file the proposed amended complaint and dismissing the case. Based on the Michigan Supreme Court's decision in Rafaeli, LLC v. Oakland County, 952 N.W.2d 434 (Mich. 2020), and other decisions from this district, the Court reluctantly concluded that Sinclair could not state a cognizable claim because she and the putative class members did not have a property interest in the equity of their homes. Sinclair filed a notice of appeal. While her appeal was pending, the Sixth Circuit decided Hall, which concerned the same tax foreclosure scheme in Southfield alleged in this case. In Hall, the Sixth Circuit declared that homeowners did have a property right in the equity of their homes. Then in December 2022, in light of its decision in Hall, the Sixth Circuit Court of Appeals issued an order affirming in part and vacating in part this Court's dismissal of Sinclair's complaint and ordering further proceedings on Sinclair's claims against some defendants. Only a few weeks later, the Supreme Court granted a petition of certiorari in Tyler v. Hennepin County, 26 F.4th 789 (8th Cir. 2022), cert. granted, 143 S.Ct. 644 (Mem) (Jan. 13, 2023), to consider whether a homeowner who had filed a complaint about a similar tax-delinquency scheme in Hennepin County, Minnesota had stated a claim under the Fifth Amendment's Takings Clause. Oakland County and its Treasurer, who are defendants both in this case and in Hall, then moved to stay this case pending the resolution of Tyler and a determination of their petition for certiorari from the Sixth Circuit's decision in Hall. On May 25, 2023, the Supreme Court issued a written opinion resolving Tyler. In light of the position taken by Oakland County and the Treasurer, acknowledging the likely dispositive impact of Tyler on the petition for certiorari in Hall, Judge Berg holds that stay is not appropriate. Given Tyler's holdings, he sees little chance that any final disposition on the petition for certiorari in Hall would lead to a reversal of the Sixth Circuit's opinion in that case. Judicial economy therefore would not be served by staying proceedings. And as Sinclair points out in her response brief, a stay would cause considerable hardship to her and putative class members, who have been waiting since 2018 -- when the original complaint was filed -- to vindicate their rights in court. For the reasons he explained, Judge Berg denies the motion for a stay. Because the Sixth Circuit affirmed the dismissal of Sinclair's claims against some defendants, Sinclair will need to file an amended complaint consistent with the opinion of the Court of Appeals. As the Court understands it, Sinclair may assert the following claims: (1) a federal takings claim against Oakland County; (2) a state-law takings claim against Oakland County; (3) a procedural due-process claim against Oakland County; (4) an unjust enrichment claim against Oakland County; and (5) a civil conspiracy claim. As to this last claim, the Sixth Circuit noted that the district court should reevaluate Sinclair's civil conspiracy claim considering Hall. And so the Court will do if that claim is reasserted. Within 30 days of the entry of the Order, Sinclair must file a motion for leave to file a Third Amended Complaint, with a proposed Third Amended Complaint attached, consistent with the above. The Defendants' response is due in accordance with local rules and the Federal Rules of Civil Procedure. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/5y5dby9z from Leagle.com. OWNERS INSURANCE: Summary Judgment in White Knight Suit Affirmed ---------------------------------------------------------------- In the case, White Knight Diner, LLC; Larry Lee Hinds; Karen Freiner, Plaintiffs-Appellants v. Owners Insurance Company, Defendant-Appellee, Case No. 21-2956 (8th Cir.), the U.S. Court of Appeals for the Eighth Circuit affirms the decision of the district court to grant summary judgment in favor of Owners. White Knight Diner, LLC, Larry Lee Hinds, and Karen Freiner (collectively, White Knight) appeal the decision of the district court to grant summary judgment in favor of Owners. On March 15, 2015, Ambar Arango and Dzemal Omervic were involved in a car accident in St. Louis, Missouri. One of the cars crashed into White Knight Diner, resulting in property damage to the restaurant. At the time, White Knight was insured by Owners pursuant to a policy that provided coverage for property damage and loss of business income. The Policy was also subject to a $1,000 deductible. Following the accident, White Knight submitted a claim to Owners pursuant to the Policy, and Owners paid White Knight $66,366.27. That amount represented $49,965.10 for property damage and $16,371.17 for loss of business income. The repairs for White Knight's property damage were completed by October 2015. White Knight subsequently sued in Missouri state court against Arango and Omervic for lost income (the Arango Litigation). Arango was insured by State Farm, and Omervic was insured by Progressive. Both drivers were subject to policy limits for liability coverage: Arango's State Farm policy limit was $50,000, and Omervic's Progressive policy limit was $25,000. Before White Knight initiated the Arango Litigation, Owners sought to recoup from State Farm and Progressive the money it had paid to White Knight under the Policy, as well as White Knight's $1,000 deductible. Specifically, on July 15, 2015, Owners sent State Farm a "Request for Payment" with instructions to "CONTACT OWNERS PRIOR TO SETTLEMENT." On Dec. 8, 2015, State Farm issued a check to Owners in the amount of $33,668.14, which represented half of the money Owners had paid to White Knight plus half of White Knight's $1,000 deductible. Owners then issued a $500 check to White Knight. State Farm did not require a full release of White Knight's claims or future claims in exchange for its payment to Owners. Owners also sent a near-identical request to Progressive but, unlike State Farm, Progressive declined to pay. Owners told White Knight, which was aware of the Policy's subrogation clause, about its efforts to recoup its payment to White Knight from the drivers' insurers. White Knight did not object. After Arango's insurer paid Owners, Arango sought a setoff for that amount in the still-ongoing Arango Litigation. The state court denied that request, concluding that Arango could not assert a setoff against any amount she owed White Knight for sums State Farm paid to Owners. White Knight eventually settled its claim against Omervic for $25,000 and settled its claim against Arango for $16,331.86. The state court then dismissed White Knight's case with prejudice. While the Arango Litigation was still pending, White Knight and several other insureds filed the instant class action against various insurance companies including Owners. The plaintiffs sought, among other things, an order declaring that these insurers' practice of settling subrogation claims with each other directly, without the insureds' involvement, violated Missouri subrogation law. After the insurers brought several motions to dismiss, the district court dismissed all parties except for Owners and White Knight. White Knight then filed an amended complaint against Owners only, adding new causes of action, including breach of contract and breach of the implied covenant of good faith and fair dealing. Owners filed a motion for summary judgment on all claims. White Knight moved for partial summary judgment on its declaratory judgment claim. The district court granted Owners' motion, denied White Knight's motion, and entered judgment in Owners' favor. White Knight now appeals. On appeal, White Knight argues that because Owners' conduct violated Missouri subrogation law, the district court erred in granting summary judgment to Owners on its declaratory judgment claim. In addition, it argues there were disputed questions of material fact concerning whether Owners' actions were taken in violation of the Policy and thus a reasonable jury could find in White Knight's favor on its breach of contract and implied covenant of good faith and fair dealing claims. First, White Knight contends it was entitled to an order declaring that Owners violated Missouri law when it sought subrogation-related reimbursement from State Farm and Progressive before White Knight recovered any money from the drivers responsible for its damages. The Eighth Circuit finds that a refusal to recognize a premature payment as valid subrogation is not the same as saying those premature efforts are illegal. The Owners sought -- and partially obtained -- payment from the drivers' insurers, even though they had no legal right to the claim against either driver. But the state court in the Arango Litigation recognized this. Citing Hagar v. Wright Tire & Appliance, Inc., 33 S.W.3d 605, 610 (Mo. Ct. App. 2000), the court denied Arango's request for a credit against the judgment for the money State Farm -- Arango's insurer -- had already paid Owners. White Knight calls out Owners for trying to circumvent the subrogation clause in the Policy. In Hagar the court addressed almost identical circumstances and agreed that the insurance companies' premature settlement and reimbursement efforts were not enforceable as a matter of law. But the court did not declare the conduct unlawful. Until Missouri courts or the Missouri legislature makes such a declaration, the Eighth Circuit declines White Knight's invitation to do so. The more difficult question is whether Owners breached the Policy when it sought reimbursement from the tortfeasors' insurers in a manner contrary to the subrogation rights granted in the Policy. White Knight argues that disputed material facts remain as to whether Owners' subrogation efforts -- or attempted subrogation efforts -- were conducted in breach of the Policy. But, according to the Eighth Circuit, the Policy does not expressly prohibit Owners from requesting payment from the tortfeasors' insurers. And to the extent White Knight argues that Owners breached its contract because its reimbursement request to State Farm violated Missouri law, this argument is unavailing. Nonetheless, even assuming Owners' actions were taken pursuant to the Policy, White Knight's claim still fails because it does not establish that it suffered any damages due to Owners' failure to abide by the contracted-for procedures. To the extent White Knight now suggests it had identifiable uninsured losses, White Knight fails to offer any evidence -- or point to anything in the record -- demonstrating any uninsured losses. Finally, White Knight argues that Owners violated its duty of good faith and fair dealing when it asked State Farm for its pro rata share of the damages paid to White Knight under the Policy. It argues that because there are disputed issues of fact as to whether Owners breached the Policy, a jury could find that Owners violated its duty of good faith and fair dealing when it exercised its subrogation rights in a manner that disadvantaged White Knight and deprived it of the benefits of the subrogation clause. Because the breach of contract claim fails, the Eighth Circuit holds that this claim necessarily fails as well. For these reasons, the Eighth Circuit affirms the judgment of the district court. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/57p9awmc from Leagle.com. PEACH CREEK: Fails to Pay OT Wages Under FLSA, Sanders Claims ------------------------------------------------------------- KAYLA SANDERS, on behalf of herself and on behalf of all others similarly situated V. PEACH CREEK ALF No. 1 LLC and PEACH CREEK ALF No. 2 LLC, Case No. 4:23-cv-02134 (S.D. Tex., June 12, 2023) alleges that the Defendants' failed to pay overtime to the Plaintiff and Class Members, in violation of the Fair Labor Standards Act. The Defendants allegedly did not pay the Plaintiff overtime, or at least not the correct amount of overtime, because the Defendants instituted a policy under which it would spread its employees' weekly schedules between Peach Creek ALF No. 1 LLC and Peach Creek ALF No.2 LLC to avoid scheduling work in excess of 40 hours a week at either building. Accordingly, the Defendants only paid overtime when an employee exceeded 40 hours at week at either Peach Creek ALF No. 1 LLC or Peach Creek ALF No. 2, a prospect which they diligently attempted to schedule around by directing their employees to split their weeks between the two buildings. The Defendants used this same false delineation between the two companies to deprive 20 other employees in the last three years of their overtime as well. The Defendants owe its employees back pay, liquidated damages, attorneys’ fees and court costs, the suit claims. The Defendants implemented the same pay policies for other workers. Therefore, the Plaintiff sues on behalf of herself and all other similarly situated employees pursuant to 29 U.S.C. section 216(b). She requests that the court authorize a notice to be sent to all similarly situated employees so that they can be informed of this action and to apprise them of their right to join this lawsuit, the suit adds. The Plaintiff worked for the Defendants from May of 2021 to February of 2023. The Plaintiff worked as a caregiver and later as an assistant manager. Peach Creek is an Assisted Living community.[BN] The Plaintiff is represented by: Beatriz-Sosa Morris, Esq. John Neuman, Esq. SOSA-MORRIS NEUMAN, PLLC Texas State Bar No. 24076154 5612 Chaucer Drive Houston, Texas 77005 Telephone: (281) 885-8844 Facsimile: (281) 885-8813 E-mail: BSosaMorris@smnlawfirm.com JNeuman@smnlawfirm.com PEEK-A-BOO CHILDCARE: Fails to Pay Proper Wages, Ballagan Claims ---------------------------------------------------------------- Carmen Ballagan and other similarly situated employees, Plaintiffs v. PEEK-A-BOO CHILDCARE, INC., JDL CLEANING SERVICE LLC, and EPHRAIM NUSSBAUM, individually, Defendants, Case No. 3:23-cv-03130 (D.N.J., June 6, 2023) arises out of the Defendant's alleged violations of the Fair Labor Standards Act and the New Jersey State Wage and Hour Law. Plaintiff Ballagan was employed from on or about January 2018 until March 1, 2023. Throughout Plaintiff's employment from March 1, 2020 to March 1, 2023, the Defendants allegedly failed to pay employees the applicable minimum wage and overtime rate for all time worked in excess of 40 hours per week. In addition, the Defendants also failed to keep accurate records of hours worked by employees as required by the FLSA and NJWHL, says the Plaintiff. Peek-A-Boo Childcare, Inc. and JDL Cleaning Service LLC are both organized New Jersey business corporations organized under the laws of the State of New Jersey with two addresses at 601 Prospect St Lakewood, NJ 08701 and 1580 Burrsville Rd, Brick Township, New Jersey. [BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL, P.C. 42 Broadway, 12t Floor New York, NY 10004 Telephone: (212) 203-2417 Website: www.stillmanlegalpc.com PEOPLEREADY INC: Fails to Pay Proper Wages, Pittman Claims ---------------------------------------------------------- Derrick Pittman, individually and on behalf of all others similarly situated, Plaintiff v. PeopleReady, Inc., a Washington corporation; TrueBlue, Inc., a Washington corporation; and Does 1 through 100, inclusive; Defendants, Case No. 23STCV12938 (Cal. Super. Ct., Los Angeles Cty., June 7, 2023) arises out of the Defendants' alleged systematic pattern of wage and hour violations under the California Labor Code and Industrial Welfare Commission Wage Orders and for violations of the California Business and Professions Code. The Plaintiff was employed in a non-exempt position by Defendants. Allegedly, the Defendants violated the state wage and hour laws by, among other things, failing to pay Plaintiff and Class members all overtime and double-time wages at the proper regular rate of pay and failing to provide timely, uninterrupted, off-duty meal periods of no less than 30 minutes for each period of five hours worked. PeopleReady, Inc. is a Washington corporation whose employees are engaged throughout the State of California. It provides staffing services to hospitals and other healthcare facilities throughout California, including the County of Los Angeles. [BN] The Plaintiff is represented by: Jonathan M. Lebe, Esq. Chancellor Nobles, Esq. Brielle Edborg, Esq. Lebe Law, APLC 777 S. Alameda Street, Second Floor Los Angeles, CA 90021 Telephone: (213) 444-1973 Facsimile: (213) 457-3092 E-mail: Jon@lebelaw.com chancellor@lebelaw.com Brielle@lebelaw.com PFIZER INC: Consumers Receive Class Suit Settlement Checks ---------------------------------------------------------- Jason Stoogenke of wsoctv.com reports that the manufacturers of EpiPen just began making payments to consumers as a result of a class action lawsuit, settlement officials told Action 9′s Jason Stoogenke. In order to receive money from the settlement, there are two things you had to do: Purchased an EpiPen or EpiPen Jr. for personal use between Aug. 24, 2011, and Nov. 1, 2020, and Submitted proof of purchase by July 25, 2022. Digital payments are the first to go out. For those who want a check, email info@EpiPenClassAction.com. Action 9′s Jason Stoogenke first reported on the outrage over EpiPen pricing back in 2016 when patients claimed drug companies Mylan, Pfizer and other defendants raised the EpiPen price more than 500%. In 2022, both sides agreed to a settlement of $264 million. The lawsuit was not a recall. No one in the case claimed EpiPens are unsafe or don't work. The class action lawsuit was strictly about price and anti-competition concerns. [GN] PHARMERICA CORPORATION: Fails to Prevent Data Breach, Suit Says --------------------------------------------------------------- VANESSA WILLIAMS, individually and on behalf of all others similarly situated, Plaintiff v. PHARMERICA CORPORATION, d/b/a PHARMERICA, Defendant, Case No. 3:23-cv-00301-DJH (W.D. Ky., June 14, 2023) is an action arising from a recent cyberattack resulting in a data breach of sensitive information in the possession and custody and control of the Defendant. The Plaintiff alleges in the complaint that the Data Breach resulted in unauthorized disclosure, exfiltration, and theft of consumers' highly personal information, including names, Social Security numbers, dates of birth, addresses, telephone numbers, and email addresses ("personally identifying information" or "PII"). 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 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, says the Plaintiff. In failing to adequately protect the Plaintiff's and the Class's PII, failing to adequately notify them about the breach, and by obfuscating the nature of the breach, Defendant violated state and federal law and harmed an unknown number of its consumers, the suit added. PHARMERICA CORPORATION provides health care services. The Company offers skilled nursing, senior living, long term care, oncology, and hospital pharmacy management services. [BN] The Plaintiff is represented by: Andrew E. Mize, Esq. J. Gerard Stranch, IV, Esq. STRANCH, JENNINGS & GARVEY, PLLC 223 Rosa L. Parks Ave., Ste. 200 Nashville, TN 37203 Telephone: (615) 254-8801 Email: amize@stranchlaw.com gstranch@stranchlaw.com - and - Samuel J. Strauss, Esq. Raina Borrelli, Esq. TURKE & STRAUSS LLP Telephone: (608) 237-1775 Facsimile: (608) 509-4423 Email: sam@turkestrauss.com raina@turkestrauss.com - and - Lynn A. Toops, Esq. COHEN & MALAD, LLP One Indiana Square, Ste. 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 Email: ltoops@cohenandmalad.com PLANET AUTOMOTIVE: Bid to Dismiss First Amended Schultz Suit Denied ------------------------------------------------------------------- In the case, ALISON SCHULTZ, Plaintiff v. PLANET AUTOMOTIVE GROUP, LLC, et al., Defendants, Civil Action No. 5:23-CV-00030-KDB-SCR (W.D.N.C.), Judge Susan C. Rodriguez of the U.S. District Court for the Western District of North Carolina, Statesville Division, denies as moot the Defendants' Motion to Dismiss the Plaintiff's First Amended Class Action Complaint, filed May 22, 2023, without prejudice. The Plaintiff filed her Amended Complaint within 21 days following receipt of the Defendants' Motion to Dismiss. No Answer has been filed. Accordingly, the amendment is as a matter of course. Judge Rodriguez says it is well-settled that an amended pleading supersedes the original pleading, and that motions directed at superseded pleadings are to be denied as moot. Therefore, she administratively denies as moot the Defendants' Motion to Dismiss without prejudice. The Clerk is directed to send copies of the Order to the counsel for the parties and to the Honorable Kenneth Bell. A full-text copy of the Court's June 6, 2023 Order is available at https://tinyurl.com/3yzhehrn from Leagle.com. PLUG POWER: Faces Stewart Suit Over Drop in Share Price ------------------------------------------------------- JOHN STEWART, Individually and on behalf of all others similarly situated v. PLUG POWER INC., ANDREW MARSH, PAUL B. MIDDLETON, DAVID MINDNICH, and MARTIN D. HULL, Case No. 1:23-cv-00704-TJM-CFH (N.D.N.Y., June 12, 2023) is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants who purchased or otherwise acquired the publicly traded common stock of the Company between August 9, 2022 and March 1, 2023, seeking to recover compensable damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Accordingly, the Defendants violated section 10(b) of the 1934 Act and Rule 10b-5 in that they: employed devices, schemes and artifices to defraud; made untrue statements of material facts or omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; and/or engaged in acts, practices and a course of business that operated as a fraud or deceit upon the Plaintiff and others similarly situated in connection with their purchases of the Company's common stock during the Class Period. On August 9, 2022, in a letter to shareholders, the Defendants touted Plug's "Strong Business Outlook" and assured investors that the Company’s "[g]rowth outlook remains robust with over $15 billion sales funnel." On October 14, 2022, the Defendants announced that the Company's "prior full year 2022 revenue guidance of $900-925M could be 5-10% lower for the year" and attributed this revised guidance to "some larger projects potentially being completed in 2023 instead of 2022 due to timing and broader supply chain issues." On this news, the price of Plug common stock declined $1.20 per share, or more than 6%, from a close of $19.23 per share on October 13, 2022, to close at $18.03 per share on October 14, 2022. On November 8, 2022, the Company reported its financial results for the third quarter of 2022, revealing that -- contrary to the Defendants' prior claims of substantial growth in the second half of 2022 -- the Company’s gross margins had decreased 3% sequentially, and 2% on a year-over-year basis, and that Plug's inventory levels had further increased to $516 million. After the market closed on March 1, 2023, Plug announced disappointing financial results for the fourth quarter and full year 2022, including annual revenue of $701.4 million --representing only 40% year-over-year growth and missing even the reduced guidance the Company had recently provided. On this news, the price of Plug common stock declined $0.88 per share, or more than 6%, from a close of $14.21 per share on March 1, 2023, to close at $13.33 per share on March 2, 2023. Had the Plaintiff and the other members of the Class been aware that the market price of the Company's common stock had been artificially and falsely inflated by the Defendants' misleading statements and by the material adverse information which the Defendants did not disclose, they would not have purchased the Company's common stock at the artificially inflated prices that they did, says the suit. Plug purports to develop hydrogen fuel cell power systems for use in electric vehicles, stationary power units, and other purposes. Among the Company's products are hydrogen electrolyzers, which use electricity to split water into hydrogen and oxygen so the hydrogen can be stored for later use.[BN] The Plaintiff is represented by: Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 4145397 275 Madison Ave., 40th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com PROVIDENCE, RI: Denial of Washington's Bid to Intervene Recommended ------------------------------------------------------------------- In the case, COALITION OF BLACK LEADERSHIP, et al., Plaintiffs v. JOSEPH A. DOORLEY, et al., Defendants. WILLIE K. WASHINGTON, Proposed Intervenor, v. JORGE O. ELORZA, et al., Defendants, C.A. No. 71-4523JJM (D.R.I.), Magistrate Judge Patricia A. Sullivan of the U.S. District Court for the District of Rhode Island recommends that Washington's motion to intervene be denied and that all of his other motions be denied as moot. In 2022, with his post-conviction relief petition pending in the Superior Court, Washington submitted to the City of Providence a Civilian Complaint alleging irregularities and misconduct by officers of the Providence Police Department during the 2014 investigation that culminated in his 2015 criminal conviction. In response, Washington was told by the investigating officer that a review of his Civilian Complaint and a conferral with the Rhode Island Attorney General's Office had resulted in the conclusion that the accused officers did not violate any Police Department procedures or rules. He was further advised that he would not be afforded the informal hearing that is mandated by Providence's civilian complaint procedure because his allegations had been heard in his criminal case. Dissatisfied with this response, Washington now seeks to intervene pursuant to Fed. R. Civ. P. 24 in this 52-year-old case so that he can pursue a motion to have the Defendants adjudged in contempt of the 1973 Consent Judgment that established Providence's civilian complaint procedure. He alleges a violation of the Consent Judgment's mandate that complainants alleging police misconduct be afforded an informal hearing. Pending before the Court are the following motions that Mr. Washington has filed pro se: a. motion for Rule 22 interpleader, interpreted as a motion for Rule 24 intervention; b. motion for leave to proceed in forma pauperis; c. motion to adjudge in contempt; d. motion to appoint counsel; and e. motion to amend the contempt motion to strike three newly named Defendants and to add additional money damage claims, as well as claims for declaratory relief, against the remaining Defendants. Washington's motion to adjudge in contempt, as supplemented by his motion to amend, sets out the claim for which intervention is sought as required by Fed. R. Civ. P. 24(c). Each of the motions includes a secondary caption with Washington as "Interpleader" against a new set of proposed Defendants who for the most part are current or recent holders of the offices held by the officials who were named and joined as Defendants in the 1971 suit. The Court ordered the City of Providence to respond to the motion to intervene. It complied, asking the Court to deny the motion pursuant to Fed. R. Civ. P. 24(a-b) as untimely and prejudicial, as well as because Washington's interest in challenging the evidence supporting his criminal conviction differs significantly from the race-based police brutality that was the subject of the 1971 action and because Washington's claim and the 1971 action lack common questions of law and fact. Relying on Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975), Providence also invokes Fed. R. Civ. P. 12(b)(6), arguing that Washington lacks standing to enforce a consent decree to which he is not a party. The motions have been referred for determination and/or report and recommendation. Fifty-two years ago, an organization known as the "Coalition of Black Leadership," suing through its "President, Michael Van Leesten," together with six named individuals suing for themselves and those similarly situated, initiated the case against various officials of the City of Providence, including the mayor, the Commissioner of Public Safety, the police chief, the police Director of Personnel and a police officer. Soon after, the "Providence Lodge #3, Fraternal Order of Police" intervened and was joined as an additional defendant. Following a trial, in 1973 the parties settled the case with a Consent Judgment that required the City of Providence Police Department ("PPD") immediately to adopt a specified procedure for accepting, investigating, processing and resolving civilian complaints against PPD officers, including that each complainant must have an informal hearing with a hearing officer. After the settlement, litigation continued regarding whether the Consent Judgment would be modified. As reflected in the resulting decisions, attempts to modify the Consent Judgment were rejected. The Consent Judgment remains in full force and effect. The last activity reflected in the docket was in mid-March 1980. Washington and the counsel for the City of Providence agree that the original parties are now deceased or unavailable. It does not appear that a class was ever certified. Washington does not allege that the City of Providence and PPD failed to comply with the Consent Judgment's requirement that a specific civilian complaint procedure must be adopted; to the contrary, he represents that he agrees with the foundational structure of the civilian complaint system and internal affairs procedures and doesn't want to reopen the proceedings to disregard the consent decree, but to enforce the document's core principles, which all parties already agree upon and Washington agrees with. Washington's interest as reflected in his Civilian Complaint focuses on the 2014 police investigation that resulted in his 2015 conviction, which he alleges is tainted by the admission of evidence that was fabricated and falsified by the investigating PPD officers. In 2014, he was a resident of Smithfield, Rhode Island, when he was identified by the PPD as a suspect in connection with a shooting in Providence in the early morning of Nov. 15, 2014. Washington is now pressing a post-conviction relief petition ("PCR Petition") filed on Sept. 17, 2018. The trial justice offered Washington a prompt hearing as soon as his attorney filed a motion asserting such an argument. The PCR Petition remains pending in the Superior Court. In August 2022, Washington filed his Civilian Complaint with the PPD OPR. The Civilian Complaint alleges that PPD officers who participated in the investigation of the Nov. 15, 2014, shooting failed to conform their arrest reports and narratives to requirements in various PPD policies. Nothing in Washington's Civilian Complaint alleges or even suggests that he was the victim of or was seeking to expose racially-animated police brutality. It contains no reference to race and does not allege that any of the alleged misconduct was racially motivated. In his Contempt Motion, Washington has focused on Providence's failure to schedule an informal hearing to address his Civilian Complaint in these unique circumstances where the allegations of misconduct during a police investigation remain in issue in the complainant's ongoing criminal case. To remedy this "technical" violation, Mr. Washington asks the Court to allow him to intervene, either as of right or permissively; to hold a contempt hearing; to find that the Defendants are in contempt of the Consent Judgment; and to award him equitable sanctions of $1 million. In his motion to amend, Washington seeks to add more money damage claims (totaling another $1.5 million in punitive and "liability" damages), as well as "municipal liability" damages of $1 million from the City of Providence and the Providence Lodge #3, Fraternal Order of Police. The motion to amend also asks for $5,000 per day and for a declaration that the failure to afford him an informal hearing not only violated the Consent Judgment but also transgressed constitutional and other legal rights of "class members." Washington does not ask for an injunctive remedy. Washington's filings do not mention either his race or his community of residence. This information may be derived from one of his exhibits, the 2014 PPD Incident Report, which indicates that he is "Black" and a resident of Smithfield, Rhode Island. Thus, Washington is not a member of the putative class alleged in this case, whether it was certified, because he was not a "black resident of the City of Providence" in 2014 at the time of the police conduct he seeks to challenge. Based on her analysis, Judge Sullivan recommends that Washington's motion to intervene should be denied because (i) he lacks standing to pursue intervention or contempt, (ii) the attempted intervention is untimely and prejudicial to the City of Providence, and (ii) he has failed to establish either that he has a demonstrated interest in the transactions that were the subject matter of the case and/or that he is raising claims that share with the main action common questions of law and fact. If the Court adopts this recommendation, all of Washington's other motions should be denied as moot. Any objection to Judge Sullivan's Report and Recommendation must be specific and must be served and filed with the Clerk of the Court within 14 days of its receipt. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court's decision. A full-text copy of the Court's June 6, 2023 Report & Recommendation is available at https://tinyurl.com/2vaueemu from Leagle.com. SCRIBE MEDIA: Cormier Sues Over Mass Layoff Without Prior Notice ---------------------------------------------------------------- ALYSSA CORMIER, Plaintiff, v. SCRIBE MEDIA, LLC, Defendant, Case No. 1:23-cv-00647 (W.D. Tex., June 7, 2023) is a class action arising out of the Defendant's alleged violations of the Worker Adjustment and Retraining Notification Act. Scribe hired Plaintiff Alyssa Cormier for a Senior Project Manager role on approximately April 4, 2022. Until her layoff, Plaintiff worked as a Senior Project Manager at Scribe. On or about May 24, 2023, Scribe notified approximately 90 employees they were being terminated immediately on a conference call with President and Chief Executive Officer JeVon McCormick and Director of People Jes McAvoy. Scribe made no offer of severance pay to the terminated employees, and their health insurance benefits end immediately. Accordingly, Plaintiff alleges that Scribe violated the WARN Act by terminating her and class members without providing at least 60 days advance written notice of a mass layoff or plant closure. Scribe Media, LLC is a book publishing company based in Austin, Texas, that has employees working primarily remotely, in Austin and throughout the U.S. [BN] The Plaintiff is represented by: Caitlin Boehne, Esq. Ryan Estes, Esq. Austin Kaplan, Esq. KAPLAN LAW FIRM 3901 S. Lamar Blvd., # 260 Austin, TX 78704 Telephone: (512) 814-7348 Facsimile: (512) 692-2788 E-mail: cboehne@kaplanlawatx.com restes@kaplanlawatx.com akaplan@kaplanlawatx.com SENTINELONE: Fails to Disclose Facts to Investors, Johansson Claims ------------------------------------------------------------------- SAKARI JOHANSSON, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. SENTINELONE, INC., TOMER WEINGARTEN, and DAVID BERNHARDT, Defendants, Case No. 3:23-cv-02786 (N.D. Cal., June 6, 2023) arises out of the Defendants' violations of the Securities Exchange Act of 1934 and Rule 10b-5. Between June 1, 2022 and June 1, 2023, Defendants materially misled the investing public, thereby inflating the price of SentinelOne's securities, by publicly issuing false and/or misleading statements and/or omitting to disclose material facts necessary to make Defendants' statements not false and/or misleading. The statements and omissions were materially false and/or misleading because they failed to disclose material adverse information and/or misrepresented the truth about SentinelOne's business, operations, and prospects, says the suit. On June 1, 2023, after the market closed, SentinelOne published a press release titled "SentinelOne Announces First Quarter Fiscal Year 2024 Financial Results." The Company disclosed that as a result of a change in methodology and correction of historical inaccuracies, a one-time adjustment was made to Annual Recurring Revenue (ARR) of $27.0 million or approximately 5% of total ARR. The Company also revised its fiscal year 2024 revenue guidance downward to a range of $590 million to $600 million from a range of $631 million to $640 million. On this news, SentinelOne's stock price fell $7.28 per share, or more than 35%, to close at $13.44 per share on June 2, 2023, the suit alleges. SentinelOne is a cybersecurity company that claims to have pioneered the world's first AI-powered Extended Detection and Response platform to make cybersecurity defense truly autonomous. The Company claims its Singularity Platform instantly defends against cyberattacks, performing at a faster speed, greater scale, and higher accuracy than otherwise possible from humans. SentinelOne is incorporated under the laws of Delaware with its principal executive offices located in Mountain View, California. SentinelOne’s Class A common stock trades on the New York Stock Exchange under the symbol "S." The Plaintiff is represented by: Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 SIX FLAGS: Bid for Judgment on Pleadings OK'd in OFPRS Suit ----------------------------------------------------------- In the class action lawsuit captioned as OKLAHOMA FIREFIGHTERS PENSION AND RETIREMENT SYSTEM, v. SIX FLAGS ENTERTAINMENT CORPORATION ET AL., Case No. 4:20-cv-00201-P (N.D. Tex.), the Hon. Judge Mark T. Pittman entered an order: -- Granting the Defendants' motion for Judgment on the Pleadings because the Plaintiff lacks standing to sue; -- Denying the Plaintiff's motion to file its amended complaint; and -- Denying Movant's motion to intervene. The case arises from The Defendants' failed attempt to expand their amusement parks into China. Throughout 2018, the 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. 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. Six Flags is an American amusement park corporation. A copy of the Court's order dated June 2, 2023, is available from PacerMonitor.com at https://bit.ly/466R9Tn at no extra charge.[CC] SLT LENDING: Fails to Protect Private Info From Data Breach ----------------------------------------------------------- JAMELAH ELDER, individually and on behalf of all others similarly situated, Plaintiff v. SLT LENDING SPV, INC. DBA SUR LA TABLE, Defendant, Case No. 5:23-cv-01059 (C.D. Cal., June 6, 2023), alleges claims against the Defendant for negligence, breach of implied contract, and unjust enrichment in connection with the data breach that took place between March 15, 2023 and March 25, 2023. According to the complaint, information stolen in the Data Breach included individuals' sensitive information, including at least, names, driver's license numbers or state identification numbers, and/or medical or health information. As a result of the Data Breach, Plaintiff and Class Members suffered ascertainable losses in the form of loss of the value of their private and confidential information, out-of-pocket expenses and the value of their time reasonably incurred to remedy or mitigate the effects of the attack. Accordingly, the Plaintiff brings this class action lawsuit on behalf of those similarly situated to address Defendant's inadequate safeguarding of Class Members' Private Information that it collected and maintained, and for failing to provide timely and adequate notice to Plaintiff and other Class Members that their information had been subject to the unauthorized access of an unknown third party and precisely what specific type of information was accessed. SLT Lending SPV, Inc. DBA Sur La Table is a Washington based corporation headquartered at 6100 4th Avenue South, Suite 500 Seattle, Washington. It is a retail store chain that sells culinary tools, cookware, bakeware, knives, small appliances, serving ware, and other kitchen gadgets. It also offers cooking classes. [BN] The Plaintiff is represented by: M. Anderson Berry, Esq. Gregory Haroutunian, Esq. Brandon P. Jack, Esq. CLAYEO C. ARNOLD A PROFESSIONAL CORPORATION 6200 Canoga Avenue, Suite 375 Woodland Hills, CA 91367 Telephone: (747) 777-7748 Facsimile: (916) 924-1829 E-mail: aberry@justice4you.com gharoutunian@justice4you.com bjack@justice4you.com SMILEDIRECTCLUB INC: Plaintiffs Seek Rule 23 Class Certification ---------------------------------------------------------------- In the class action lawsuit captioned as ADAM FRANCHI, Individually and on Behalf of All Others Similarly Situated, v. SMILEDIRECTCLUB, INC., et al., Case No. 3:19-cv-00962 (M.D. Tenn.), the Lead Plaintiff 1199SEIU Health Care Employees Pension Fund and the Plaintiff Bucks County Employees Retirement System move the Court for an Order: 1. certifying class action pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure; and 2. appointing the Plaintiffs as Class Representatives and approving their selection of Robbins Geller Rudman & Dowd LLP as Class Counsel. SmileDirectClub is a teledentistry company. A copy of the Court's order dated June 5, 2023, is available from PacerMonitor.com at https://bit.ly/42Rhwdc at no extra charge.[CC] The Plaintiffs are represented by: Christopher M. Wood, Esq. Henry S. Bator, Esq. Darren J. Robbins, Esq. Scott H. Saham, Esq. Jeffrey J. Stein, Esq. Ashley M. Kelly, Esq. Ting H. Liu, Esq. Stephen johnson, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2203 Facsimile: (615) 252-3798 E-mail: cwood@rgrdlaw.com hbator@rgrdlaw.com darrenr@rgrdlaw.com scotts@rgrdlaw.com jstein@rgrdlaw.com akelly@rgrdlaw.com tliu@rgrdlaw.com sjohnson@rgrdlaw.com SOUTH STATE: Rule 12(c) Bid Denied in Fludd Class Action --------------------------------------------------------- In the class action lawsuit captioned as Fludd v. South State Bank, et al., Case No. 2:20-cv-01959 (D.S.C., Filed May 20, 2020), the Hon. Judge Bruce Howe Hendricks entered an order denying SouthState's Rule 12(c) motion. -- The Court agrees with the Plaintiff that SouthState's arguments pertaining to class certification of Butcher's Regulation E claim are premature at this time. The nature of suit states Diversity-Other Contract. South State Bank, based in Winter Haven, Florida, is an American bank based in Florida and a subsidiary of South State Corporation, a bank holding company.[CC] SQUARETRADE INC: Settles Class Action Suit Over Underpaid Claims ---------------------------------------------------------------- Brigette Honaker of Top Class Actions reports consumers are receiving payments from a class action lawsuit settlement with SquareTrade, resolving claims that it underpaid consumer claims under protection plans. The settlement benefits consumers who submitted a claim for coverage under a SquareTrade protection plan and whose claim was resolved via a Fast Cash payment. The settlement also benefits consumers who submitted a claim for coverage under a SquareTrade protection plan, resolved the claim with a monetary payment and received less than the amount they should have due to a SKU-cap error. According to the class action lawsuit, SquareTrade failed to sufficiently compensate consumers under their payment protection plans due to SKU-cap errors which applied a cap to the reimbursement offered. In addition, the company's Fast Cash payment process allegedly returned replacement costs far below what is accurate -- causing an additional source of underpayment. SquareTrade didn't admit any wrongdoing but agreed to a settlement to resolve the class action lawsuit. Under the terms of the settlement, consumers could receive up to $35 without documentation but could receive higher payments with documentation. Top Class Actions Readers report receiving payments of up to $35 from the settlement. The SquareTrade underpayment class action lawsuit is Shuman, et al. v. SquareTrade Inc., Case No. 3:20-CV-02725-JCS, in the U.S. District Court for the Northern District of California. [GN] SRG GLOBAL: Court Dismisses Peeler's Claim for Strict Liability --------------------------------------------------------------- In the case, MICHELLE PEELER, on behalf of herself and all others similarly situated, Plaintiff v. SRG GLOBAL COATINGS, LLC, Defendant, Case No. 1:23-CV-23-SNLJ (E.D. Mo.), Judge Stephen N. Limbaugh, Jr. of the U.S. District Court for the Eastern District of Missouri, Southeastern Division, grants the Defendant's motion to dismiss Count III, Strict Liability - Ultrahazardous Activity, of the Plaintiff's class action complaint. The Plaintiff filed the putative class action against SRG. SRG manufactures parts for the automotive industry and operates a manufacturing facility in Portageville, Missouri. The Plaintiff alleges that SRG caused chemicals and metals, including hexavalent chromium, chromium, nickel, and PFAS, to migrate from SRG's properties into the soil, groundwater, and municipal drinking water to the surrounding properties in Portageville. Specifically, she alleges that she was exposed to and ingested the chemicals and metals in the drinking water supply from 1987 to 2022. The Plaintiff seeks damages in excess of $5 million on behalf of herself and the putative class. She brings three causes of action: Negligence (Count I), Private Nuisance (Count II), and Strict Liability - Ultrahazardous Activity (Count III). She also requests medical monitoring damages on behalf of herself and the putative class. The Defendant moves to dismiss Count III for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). It argues that Count III should be dismissed because plaintiff has not stated a claim, and cannot state a claim, for strict liability for an ultrahazardous/abnormally dangerous activity. The Plaintiff alleges that hazardous chemicals and metals from the SRG properties have migrated into the soil and groundwater and drinking water underlying the SRG properties and surrounding properties in and near Portageville. She further alleges that SRG agreed to remediate the contamination, but that residents have been and are being exposed to the hazardous chemicals and metals in their drinking water, which is drawn from groundwater wells in Portageville, including wells on the SRG properties. In Count III, the Plaintiff states that in carrying out the conduct alleged herein, defendant engaged in abnormally dangerous activity violation of federal, state, and/or local laws and/or regulations rending it strictly liable for any resulting damages. The Defendant's motion to dismiss assumes that the Plaintiff's claim involves the Defendant's manufacturing activities, but she suggests the proper lens is the Defendant's remediation activities -- not manufacturing. Regardless, Judge Limbaugh holds that Missouri courts have narrowly applied the doctrine of strict liability for abnormally dangerous activities. To state a claim, the Plaintiff must plead facts showing that: (1) the Defendant's activity created a high degree of risk of harm; (2) the harm has been and will be significant; (3) the risk cannot be eliminated; and (4) the harm outweighs the value of the activity and resulted in injuries to the Plaintiff. Only two activities have been found to be "abnormally dangerous" by Missouri courts: blasting operations and radioactive nuclear emissions. Judge Limbaugh holds that the Plaintiff does not plead either that the risks inherent to remediation cannot be eliminated or that the harm of the remediation outweighs the value of the activity. Further, she identifies no Missouri case to support her claim that the Defendant's activities constitute abnormally dangerous activities under Missouri law. In fact, she relies only on an unpublished Connecticut state court opinion to support her claim. Neither the Defendant's manufacturing nor remediation activities qualify as "abnormally dangerous" activities under Missouri law. Thus, the Defendant's motion to dismiss Count is granted. The Plaintiff's Count III for strict liability for abnormally dangerous activities is dismissed. A full-text copy of the Court's June 6, 2023 Memorandum & Order is available at https://tinyurl.com/ms3c2jjn from Leagle.com. STEEL RIVER: Suit Seeks Judicial Declaration of No Duty to Defend ----------------------------------------------------------------- SCOTTSDALE INSURANCE COMPANY v. STEEL RIVER SYSTEMS, LLC, JAY D. HEATH, BEVERLY G. STOLL, AMBER BOWER, and JOEL COURTNEY, individually and on behalf of all others similarly situated, Case No. 3:23-cv-50224 (N.D. Ill., June 12, 2023) is an insurance coverage action to obtain a judicial declaration that it does not have the duty to defend or indemnify Steel River in connection with a class action lawsuit resulting from a data breach that occurred between May 25, 2022 and July 16, 2022, captioned as Heath et al. v. Steel River Systems, LLC, Case No. 2023-LA-000006, in the Circuit Court for Whiteside County, Illinois. The complaint alleges that on July 16, 2022, Steel River became aware of suspicious activity on its computer network, and data contained on certain Steel River systems was subject to unauthorized access and/or acquisition between May 25, 2022 to July 16, 2022. Scottsdale issued to Steel River a commercial general liability insurance policy, No. CPS7455799, effective October 6, 2021 to October 6, 2022 ("Policy"). The Policy specifically excludes "personal and advertising injury" by the Exclusion – Personal and Advertising Injury Endorsement (form CG 21 38 11 85), which provides that "COVERAGE B (Section I) does not apply and none of the references to it in the Coverage Part apply," the lawsuit claims. Even if the Policy included Coverage B or all other prerequisites under Coverage A were met, which Scottsdale denies, the Policy’s Access or Disclosure Exclusion, which applies to alleged damages arising out of any access to or disclosure of any person's confidential or personal information, including "any other type of nonpublic information," completely precludes a duty to defend the Class Action Lawsuit, the lawsuit adds. Steel River has sought from Scottsdale a defense against the Class Action Lawsuit. On February 10, 2023, Scottsdale denied Steel River's tender. Scottsdale requests this Court to declare and adjudge the controversy as follows: A. Scottsdale has no duty to defend Steel River in the Class Action Lawsuit; B. Scottsdale has no duty to indemnify Steel River in the Class Action Lawsuit; and C. Grant any other relief that this Court deems just and equitable under the circumstances, including the award of costs. Steel River was founded in 2015. The company's line of business includes collection and adjustment services on claims and other insurance.[BN] The Plaintiff is represented by: Jonathan L. Schwartz, Esq. Glenn A. Klinger, Esq. FREEMAN MATHIS & GARY LLP 33 N. Dearborn St., Suite 1430 Chicago, IL 60602 Telephone: (773) 389-6440 E-mail: jonathan.schwartz@fmglaw.com glenn.klinger@fmglaw.com STERLING JEWELERS: Consumers Receive Suit Settlement Checks ----------------------------------------------------------- Brigette Honaker of Top Class Actions reports Sterling Jewelers employees are receiving payments from a $175 million class action lawsuit settlement to resolve claims that the jeweler discriminated against women. The settlement benefits women who worked as part-time sales associates, full-time sales associates, department managers, assistant managers, assistant general managers, store managers or general managers at retail stores owned by Sterling Jewelers. The Sterling Jewelers class action lawsuit claims that the jeweler discriminated against female workers by paying them less and denying them promotions. According to plaintiffs in the case, Sterling Jewelers violated Title VII of the Civil Rights Act and the federal Equal Pay Act. Sterling Jewelers agreed to resolve the class action lawsuit with a $125 million settlement payment fund. Under the terms of the settlement, consumers could receive a cash payment based on the number of years they worked for the company. Top Class Actions readers have reportedly started receiving payments from this settlement. The Sterling Jewelers class action lawsuit is Jock, et al. V. Sterling Jewelers Inc., Case No. 08 civ. 2875, in the Southern District of New York, and Case No. 11-16-00655-08 (aaa), before the American Arbitration Association. [GN] TABLE 87 GOWANUS: Removes Barroso Suit to S.D. New York ------------------------------------------------------- The Defendant in the case of JORGE FLORES BARROSO, individually and on behalf of all others similarly situated, Plaintiff v. TABLE 87 GOWANUS NYC LLC; TABLE 87 IC LLC; TABLE 87, FROZEN, LLC; and THOMAS CUCCO, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of New York, County of New York (Case No. 153303/2023) to the U.S. District Court for the Southern District of New York on June 9, 2023. The Clerk of Court for the Southern District of New York assigned Case No. 1:23-cv-04864. The case is assigned to Judge Katherine Polk Failla. TABLE 87 GOWANUS NYC LLC owns and operates a pizza restaurant. The Defendants are represented by: Gregory S. Lisi, Esq. Alexander Leong, Esq. FORCHELLI DEEGAN TERRANA LLP 333 Earle Ovington Blvd., Suite 1010 Uniondale, NY 11553 Telephone: (516) 248-1700 Facsimile: (516) 248-1729 Email: glisi@forchellilaw.com aleong@forchellilaw.com TARGET CORP: Fails to Reimburse Gift Cards' Remaining Balance ------------------------------------------------------------- FATIMA VALDEZ and HAROLD ROBERTSON II, individually and on behalf of all others similarly situated, Plaintiffs v. Target Corporation, Defendant, Case No. 0:23-cv-01681-SRN-DJF (D. Minn., June 5, 2023) arises from the Defendant's refusal to reimburse customers, including Plaintiffs, for the remaining balance on their gift cards in violation of the California Unfair Competition Law, the California Consumer Legal Remedies Act, the Connecticut Unfair Trade Practices Act, the Hawaii Unfair Competition Law, the Maine Unfair Trade Practices Act, the New Jersey Consumer Fraud Act, the Rhode Island Deceptive Trade Practices Act, the Vermont Consumer Protection Act, and the Washington Consumer Protection Act. Target, like most other national retailers, offers gift cards for sale for use toward purchases in its retail stores and on its website. Consumers purchase gift cards and add value to them at Defendant's retail stores or on its website. The unused or remaining balances on gift cards are ultimately claimed by the issuing companies as revenue, enriching the issuing company at the expense of the consumer. According to Target's own policies regarding its gift cards, "Target GiftCards cannot be redeemed for cash or credit except where required by law." Contrary to Target's representation and its own stated policy that gift cards can be redeemed for cash where state law requires that option, Target makes its gift cards completely non-refundable and denies customer refunds for the remaining value even when state laws require it to do so. By so doing, Target has, upon information and belief, illegally retained millions of dollars of customer money and continues to do so, says the suit. Target Corp. is an American retail corporation headquartered in Minneapolis, Minnesota.[BN] The Plaintiffs are represented by: David M. Cialkowski, Esq. Behdad C. Sadeghi, Esq. Charles R. Toomajian, Esq. ZIMMERMAN REED LLP 1100 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 341-0400 Facsimile: (612) 341-0844 E-mail: David.Cialkowski@zimmreed.com Behdad.Sadeghi@zimmreed.com Charles.Toomajian@zimmreed.com - and - Bryan L. Clobes, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 205 N. Monroe St. Media, PA 19063 Telephone: (215) 864-2800 E-mail: bclobes@caffertyclobes.com - and - Alex Lee, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 135 S. LaSalle, Suite 3210 Chicago, IL 60603 Telephone: (312) 782-4880 Facsimile: (312) 782-4485 E-mail: alee@caffertyclobes.com - and - Joseph G. Sauder, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 1109 Lancaster Avenue Berwyn, PA 19312 Telephone: (888) 711-9975 Facsimile: (610) 421-1326 E-mail: jgs@sstriallawyers.com jbk@sstriallawyers.com TRINITY HEALTH: Faces Class Suit Over Alleged Data Breach --------------------------------------------------------- Christopher Brown of Bloomberg Law reports that Trinity Health Corp. breached their duty to protect the personal information of 21,000 people that was exposed in a March data breach, a new proposed federal class action said. Jennifer Medenblik alleged Trinity Health failed to implement adequate data-security practices, comply with industry data-security standards and those required under the Health Insurance Portability and Accountability Act, or properly monitor its network for intrusions. Information exposed in the breach included names, addresses, birthdates, driver's-license and state-identification numbers, Social Security numbers, financial account information, medical record numbers, Medicare and Medicaid identification numbers, treatment information, diagnosis codes, dates of service and discharge, prescription. [GN] TROPICAL INDUSTRIES: Fails to Pay Proper Wages, Bautista Says ------------------------------------------------------------- ELIA BAUTISTA, individually and on behalf of all others similarly situated, Plaintiff v. TROPICAL INDUSTRIES, INC., Defendant, Case No. 2:23-cv-03159 (D.N.J., June 9, 2023) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Bautista was engaged by the Defendant as a sales representative. TROPICAL INDUSTRIES, INC. is a food manufacturer who contracts with retail stores to carry and sell its products to the stores’ customers. [BN] The Plaintiff is represented by: Matthew D. Miller, Esq. Richard S. Swartz, Esq. Justin L. Swidler, Esq. SWARTZ SWIDLER, LLC 9 Tanner St. Ste 101 Haddonfield, NJ 08033 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 UNIVERSAL LOGISTICS: Seeks to Stay Class Cert Briefing in Valdez ---------------------------------------------------------------- In the class action lawsuit captioned as ANGELA VALDEZ, RICKY ABEYTA, MARK FRANKLIN, and MICHAEL CHILDS, individually and on behalf of all others similarly situated, v. UNIVERSAL LOGISTICS OF VIRGINIA, LLC, a Virginia Limited Liability Company, Case No. 1:23-cv-01015-PAB-KLM (D. Colo.), Universal asks the Court to enter an order staying briefing on the Plaintiffs' Motion so that it may have a fair opportunity to conduct discovery comports with the Federal Rules of Civil Procedure, decisional law from this Court and others, as well as this Court's civil practice standards. The Plaintiffs' position on Universal's deadline to respond to their motion not only fails to find support in the rules or case law, but also runs contrary to the civil practice standards issued by this Court. Under those practice standards, the presumptive period for discovery in a case is six months. The Plaintiffs filed their Individual and Class Action Complaint in the District Court for Arapahoe County on March 13, 2023, and Universal removed the action to this Court on April 24, 2023. Universal answered the Complaint on April 28, 2023. On May 8, 2023, the Court issued its Order Setting Scheduling/Planning Conference setting the Fed. R. Civ. P. 16(b) conference for June 20, 2023. No. 11. Eleven days later, on May 19, 2023, the Plaintiffs filed their Motion for Class Certification. Universal Logistics transports general freight, metal sheet, log pole, building maintenance, large machinery, paper, and more. A copy of the Defendant's motion dated June 1, 2023, is available from PacerMonitor.com at https://bit.ly/3CvtNJt at no extra charge.[CC] The Plaintiffs are represented by: David H. Miller, Esq. Victoria Guzman, Esq. THE WILHITE LAW FIRM 1600 Ogden Street Denver, CO 80218 Telephone: (303) 551-7667 E-mail: dhmiller@wilhitelawfirm.com vguzman@wilhitelawfirm.com The Defendant is represented by: James T. Spolyar, Esq. SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C. 10 West Market Street, Suite 1400 Indianapolis, IN 46204 Telephone: (317) 637-1777 Facsimile: (317) 687-2414 E-mail: jspoloyar@scopelitis.com - and - Sterling J. LeBoeuf, Esq. DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 E-mail: sterling.leboeuf@dgslaw.com VARSITY BRANDS: Seeks to Strike Maki Declaration in Jones Suit -------------------------------------------------------------- In the class action lawsuit captioned as JONES, ET AL., v. VARSITY BRANDS, LLC, ET AL., Case No. 2:20-cv-02892-SHL-tmp (W.D. Tenn.), the Defendants ask the Court to enter an order striking the Maki Declaration. The Defendants also request that the Court grant them leave to file a surreply of up to twenty pages to address new arguments and material presented in the Plaintiffs' Reply. In light of the substantial volume of arguments and material submitted by the Plaintiffs for the first time in connection with their reply, good cause exists for the Defendants' requested surreply. The Defendants make this request for a joint surreply, instead of a separate request for each the Defendant, to present necessary responses to the Plaintiffs' arguments in the most efficient and concise manner possible. Pursuant to this Court's scheduling orders and Rules 16, 26, and 37, the Defendants move to strike the supplemental declaration of the Plaintiffs' expert witness Jen Maki, PhD, submitted in connection with their Reply in Support of Indirect Purchaser the Plaintiffs' Motion for Class Certification. The Defendants also seek leave to file a surreply in opposition to the Plaintiffs' Motion for Class Certification to address the substantial volume of new arguments and material in the reply. Varsity Brands is an American apparel company owned by Bain Capital. A copy of the Defendants' motion dated June 1, 2023, is available from PacerMonitor.com at https://bit.ly/3qRSEEL at no extra charge.[CC] The Defendants are represented by: George S. Cary, Esq. Steven J. Kaiser, Esq. Linden Bernhardt, Esq. CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, NW Washington, DC 20037 Telephone: (202) 974-1500 Facsimile: (202) 974-1999 E-mail: gcary@cgsh.com skaiser@cgsh.com lbernhardt@cgsh.com - and - Jennifer Kennedy Park, Esq. Heather Nyong’o, Esq. CLEARY GOTTLIEB STEEN & HAMILTON LLP 1841 Page Mill Road, Suite 250 Palo Alto, CA 94304 Telephone: (650) 815-4100 Facsimile: (202) 974-1999 E-mail: jkpark@cgsh.com hnyongo@cgsh.com - and - Matthew S. Mulqueen, Esq. Adam S. Baldridge, Esq. Grady Garrison, Esq. Nicole Berkowitz Riccio , Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0866 E-mail: mmulqueen@bakerdonelson.com abaldridge@bakerdonelson.com ggarrison@bakerdonelson.com nriccio@bakerdonelson.com - and - Paul E. Coggins, Esq. Brendan P. Gaffney, Esq. LOCKE LORD LLP 2200 Ross Avenue, Suite 2800 Dallas, TX 75201 Telephone: (214) 740-8000 Facsimile: (214) 740-8800 E-mail: pcoggins@lockelord.com bgaffney@lockelord.com - and - Edward L. Stanton III, Esq. S. Keenan Carter, Esq. BUTLER SNOW LLP 6075 Poplar Avenue, Suite 500 Memphis, Tennessee 38119 Telephone: (901) 680-7336 Facsimile: (901) 680-7201 E-mail: Edward.Stanton@butlersnow.com Keenan.Carter@butlersnow.com WALLACE J 2755: Faces Tran Suit Over Unsolicited Text Messages -------------------------------------------------------------- TRIEU TRAN, individually and on behalf of all others similarly situated, Plaintiff v. WALLACE J 2755 SE FEDERAL HIGHWAY, LLC d/b/a WALLACE CHRYSLER JEEP DODGE RAM, Defendant, Case No. 2:23-cv-14164 (S.D. Fla., June 6, 2023) is a putative class action brought by the Plaintiff pursuant to the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act. According to the complaint, the Defendant engages in unsolicited text message marketing, including to individuals who have registered their telephone numbers on the National Do-Not-Call Registry, and to those who have not provided Defendant with their prior express written consent as required by the FTSA. The Defendant's unsolicited text message spam caused Plaintiff and the Class members harm, including violations of their statutory rights, trespass, annoyance, nuisance, invasion of their privacy, and intrusion upon seclusion. The Defendant's text messages also occupied storage space on Plaintiff's and the Class members’ telephones, says the suit. Through this action, Plaintiff seeks an injunction and statutory damages on behalf of Plaintiff and the Class members and any other available legal or equitable remedies resulting from the alleged unlawful actions of Defendant. Wallace J 2755 SE Federal Highway, LLC, d/b/a Wallace Chrysler Jeep Dodge Ram, is a jeep dealer based 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 WALMART INC: Court Terminates Bid to Certify Class in Guzman ------------------------------------------------------------ In the class action lawsuit captioned as Guzman et al v. Walmart Inc., et al., Case No. 5:21-cv-09133 (N.D. Cal., Filed Nov. 24, 2021), the Hon. Judge Nathanael M. Cousins entered an order administratively terminating motion to certify class in light of stay of the case. The Motion may be noticed for a new hearing date when the stay is lifted. The termination is not on the merits, Judge Cousins says. The nature of suit states Civil Rights -- Employment. Walmart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores in the United States, headquartered in Bentonville, Arkansas.[CC] WALT DISNEY: Fraud Securities Class Action Suit May Proceed ----------------------------------------------------------- Corrina Murdoch of InsideTheMagic.com reports that Disney is in the headlines, and this time it's not good press as a class action lawsuit against The Walt Disney Company moves forward. While it's not the first legal action the company's encountered, the nature of this massive lawsuit is alarming. Litigation, a fun legalese term for arguing, has always been a method of finding order in chaos. There are two types: criminal and civil. The latter deals with money, while criminal punishments tend toward jail time or other corollary remedies. And Disney's no newbie when it comes to the courtroom, both in its shows and in the real world. There's the lawsuit that cost Dwayne Johnson his job. The 2023 lawsuits in Florida became all the buzz. Arrests after recent illegal activity led to dozens facing legal action. But, if you thought that one of these led to the class action lawsuit against the Walt Disney Company, you’d be wrong. In the end, it all comes down to the great greenback: money. The class action lawsuit against the Walt Disney Company is a matter of securities fraud. According to official records, the fresh legal action is a result of alleged false filings. The idea is that Disney used analytics to estimate the top and bottom lines. These figures turned out to be incorrect, to the estimation of $1.47 billion. The release of these Q4 reports caused a drastic stock downturn of 13.2%. The official class action alleges, "Disney+ was suffering decelerating subscriber growth, losses, and cost overruns," and that "the true costs incurred in connection with Disney+ had been concealed by Disney executives by debuting certain content intended for Disney+ initially on legacy distribution channels (. . .)" Essentially, the suit claims that Disney knowingly misled vested parties to the detriment of the plaintiffs. The lawsuit representing the allegedly injured parties is actively seeking those who meet the parameters. The deadline for participation is July 11, 2023. [GN] WELLS FARGO: Appellate Court Affirms Order Dismissing Rogers Suit ----------------------------------------------------------------- In the case, RALEIGH G. ROGERS, Plaintiff v. WELLS FARGO BANK, N.A., Defendant, Case No. COA22-978 (N.C. App.), the Court of Appeals of North Carolina affirms the trial court's order granting Wells Fargo's motion to dismiss. The Plaintiff alleges the Defendant opened a fraudulent bank account in his name in December 2013. He filed a complaint in the superior court of Caldwell County, which was removed by Defendant to the U.S. District Court for the Western District of North Carolina. The Defendant petitioned for dismissal in federal court for res judicata, citing the judgment in Jabbari v. Wells Fargo & Co., No.15-CV-02159-VC, 2017 U.S. Dist. LEXIS 106294, 2017 WL 5157608, at *3, (N.D. Cal. July 8, 2017), aff'd sub nom., Jabbari v. Farmer, 813 F. App'x 259 (9th Cir. 2020) (unpublished). Jabbari was a nationwide class action settlement of all customer claims based on the Defendant opening unauthorized or "fraudulent" accounts and related misconduct from May 1, 2002 until April 20, 2017. The trial judge in the Western District dismissed the Plaintiff's claim on May 5, 2021, holding the judgment and settlement in Jabari is binding on the Plaintiff, has a preclusive effect on his claims, and any claims he might assert are subject to the exclusive jurisdiction of the U.S. District Court for the Northern District of California. While the Defendant's motion to dismiss was pending in the Western District, the Plaintiff filed this new action in Caldwell County Superior Court in October 2020. He had a summons issued on April 19, 2021. The Defendant moved to dismiss or alternatively to stay the action while the appeal proceeded in the federal action. The superior court stayed the action following a hearing on Oct. 4, 2021. The U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of the Plaintiff's complaint. The Supreme Court of the United States denied the Plaintiff's petition for writ of certiorari. The Defendant noticed the hearing on the pending motion to dismiss and its intention to seek the court to lift the stay on June 27, 2022. Prior to the hearing, the Defendant drafted a letter to the presiding judge, which provided background on the case's procedural history and materials supporting their motion. The letter and materials were sent through the trial court coordinator and the Plaintiff was copied. At the hearing on Aug. 23, 2022, a different judge, from whom the letter and materials were provided, presided. The trial court informed the parties he was taking the arguments under advisement. The parties were told, if the court lifted the motion to stay and dismissed the action, the Defendant's counsel would be asked to prepare a proposed order. The trial court stated the parties would be informed of his decision within two weeks. The next day, the trial court coordinator advised the Defendant's counsel the trial court was going to lift the stay and asked the Defendant's counsel to draft a proposed order. The Defendant's counsel drafted the proposed order and provided it to the Plaintiff for review. The Plaintiff responded to the court and submitted a draft order to lift the stay and deny the Defendant's motion to dismiss. The Defendant's counsel submitted the proposed draft order to the court to lift the stay and allow the motion to dismiss. The trial court filed the Defendant's proposed order lifting the stay and allowing the motion to dismiss on Sept. 19, 2022. The Plaintiff emailed the trial court coordinator requesting a formal investigation and court conference into any ex parte communications with the Defendant and the trial court regarding how the Defendant's counsel received "advance notice" of what the trial court was going to rule prior to the expiration of two weeks. The Plaintiff noticed his appeal to this Court. The Plaintiff argues the trial court: (1) lacked neutrality; (2) the trial court engaged in ex parte communications; (3) erred by ruling his claims were barred by res judicata in Jabbari; (4) the trial court erred by allowing his motion to dismiss; (5) violated the Americans with Disabilities Act ("ADA") and North Carolina's Racketeering Influenced and Corrupt Organizations Act ("RICO") by dismissing his claim without a jury trial; and, (6) erred that by dismissing his claims violated his due process rights in violation of the Law of the Land Clause in Article I, Section 19 of the North Carolina Constitution. The Court of Appeals holds that the Plaintiff failed to raise the trial court's purported lack of neutrality, alleged engagement in ex parte communications, alleged violations of the ADA and our State's RICO statutes, or his claim under the Law of the Land Clause in argument or motion before the trial court or in a post-hearing motion. It says the Plaintiff has waived appellate review on these issues. The Court of Appeals now turns to the Plaintiff's remaining issues asserting the trial court erred by allowing the Defendant's motion to dismiss for res judicata. It combines these issues for review. It finds that the Plaintiff's claims all arise from the same factual basis: the Defendant's admitted opening of an unauthorized or "fraudulent" account in the Plaintiff's name. As the Western District, the Fourth Circuit, and the United States Supreme Court all held, the Plaintiff met the class member description is Jabbari, had actual notice of the settlement, and had failed to affirmatively "opt out" to avoid the preclusive effect of the settlement. Hence, the trial court properly dismissed the Plaintiff's claim for failure to state a claim upon which relief could be granted for res judicata. For these reasons, the Court of Appeals concludes that the Plaintiff litigated the same factual basis in federal court prior to this action. Res judicata precludes him from relitigating the same claims in this action. The Court of Appeals affirms the trial court's conclusion to dismiss the Plaintiff's claim pursuant to Rule 12(b)(6) based upon res judicata. It is so ordered. A full-text copy of the Court's June 6, 2023 Opinion is available at https://tinyurl.com/47jepx7z from Leagle.com. Raleigh Rogers pro se. McGuire Woods LLP, by Bradley R. Kutrow -- bkutrow@mcguirewoods.com -- and Abigail A. Golden -- agolden@mcguirewoods.com -- for the Defendant-Appellee. WEST VIRGINIA AMERICAN: Suit Over 2015 Line Break May Proceed ------------------------------------------------------------- Roger Adkins of The Lincoln Journal 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, West Virginia. The high court issued the ruling this week 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. [GN] WESTECH SECURITY: Fails to Pay Proper Wages, Carrasquillo Says -------------------------------------------------------------- ANA CARRASQUILLO, individually and on behalf of all others similarly situated, Plaintiff v. WESTECH SECURITY AND INVESTIGATION INC., Defendants, Case No. 1:23-cv-04931 (S.D.N.Y., June 12, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Carrasquillo was employed by the Defendant as a security guard. WESTECH SECURITY AND INVESTIGATION INC. operates a security and private investigation company under the name "WESTECH," which provides services to both commercial and residential sites. [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 WESTERN EXPRESS: Fails to Pay Proper Wages, Martin Alleges ---------------------------------------------------------- THOMAS MARTIN; FREDERICK NEAL; and CARL McROBERTS, JR., individually and on behalf of all others similarly situated, Plaintiffs v. WESTERN EXPRESS, INC., Defendant, Case No. 3:23-cv-00775 (D. Conn., June 14, 2023) seeks to recover from the Defendant unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as truck drivers. WESTERN EXPRESS, INC. provides transportation solutions. The Company offers truckload van, dedicated fleet, flatbed transportation, expedited truck and rail, and logistics services. [BN] The Plaintiffs are represented by: Peter Goselin, Esq. THE LAW OFFICE OF PETER GOSELIN P.O. Box 331313 Hartford, CT 06133 Telephone: (860) 580-9675 Email: pdgoselin@gmail.com - and - Hillary Schwab, Esq. Rachel Smit, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 Email: hillary@fairworklaw.com rachel@fairworklaw.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***