/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230705.mbx C L A S S A C T I O N R E P O R T E R Wednesday, July 5, 2023, Vol. 25, No. 134 Headlines 3M COMPANY: Busby Suit Removed to N.D. Alabama 3M COMPANY: Settles "Forever Chemicals" Class Suit for $10.3B ADS-MYERS INC: Request to Set Aside Dismissal of Quiroz Suit Denied AMAZON.COM INC: Adams Suit Moved to Western District of Washington APRIA HEALTHCARE: Faces Class Suit Over Massive Data Breach ARIZONA: Faces Class Suit Over Transgender Birth Certificates ATOMIC WALLET: Fails to Secure Cryptocurrency Breach, Meany Says BALTIMORE GAS: Faces Class Suit Over Gas Regulator Installations BOB DEAN: Fewer Than Half Pursue Claims in Hurricane Ida Class Suit BUFFALO WILD: Faces Class Suit Over Restaurant's Takeout Fees CELSIUS NETWORK: Wintermute Added Defendant in Investors Class Suit CLEARWAY CLINIC: Faces Class Suit Over Misdiagnosed Pregnancy CLOVER HEALTH: Agrees to Settle Derivative, Securities Class Suits COINBASE GLOBAL: Motion to Suspend Cryptocurrency Suit Granted COINBASE GLOBAL: SC Affirms Denial of Motion to Compel Arbitration COLGATE-PALMOLIVE CO: Writ of Certiorari Filed in McCutcheon Suit COMMERCE INSURANCE: Court Rejects Class Certs Over Diminished Value CSX TRANSPORTATION: Dismissal of Shongo's Tort & Class Claims Nixed EPIC SYSTEMS: Discriminates Employees Over COVID Vaccine, Suit Says FLORIDA POWER: Petition for Writ of Prohibition in Velez Suit OK'd GDS HOLDINGS: Bergmann Sues Over Alleged Drop in Share Price GLAXOSMITHKLINE PLC: Agrees to Settle Zantac Cancer Class Suit HOME DEPOT: Agrees to Settle Wage Class Suit for $72.5M INDIANA: Denial of Class Cert. Bid in Gierek v. Hospitals Reversed INFORMATION SYSTEMS: Court Dismisses Riley Suit Without Prejudice INTELLIHARTX LLC: Faces Class Suit Over 490,000-Record Data Breach INTERCONTINENTAL TERMINALS: S.D. Texas Denies Class Cert. Bid INTERLAND INC: Stewart Files Suit in N.D. Illinois JACKSON COUNTY, MO: Faces Class Suit Over Property Assessment JP MORGAN: Remand of Palladino Antitrust Suit to State Court Denied JPMORGAN CHASE: Seeks Court Approval of Epstein Suit Settlement KIA MOTORS: Faces Suit Over Visa Fraud, Workers' Exploitation LENDINGTREE LLC: Court Stays Expert Report Deadlines in Lamie Suit LOUISIANA: Limited Precertification Discovery in AA v. LDH Allowed MAKER ECOSYSTEM: Settles Suit Over "Black Thursday" COVID Crash MAMA MANAGEMENT: Sanchez Suit Removed to C.D. California MARRIOTT INTERNATIONAL: Baek Sues Over Improper Hotel Fees MARSHALL & MELHORN: Thiel Files Suit in N.D. Ohio MARTEN TRANSPORT: Agrees to Settle Class Suit Over Data Breach MARTEN TRANSPORT: Parties Seek More Time for Class Cert Briefing MAXIMUM HUMAN PERFORMANCE: Luis Files ADA Suit in S.D. New York MAXUM INDEMNITY: Court OK's Bid to Enforce Settlement in Henry Suit MCCORMICK & COMPANY: Faces Salvaggio Suit Over Peppers' False Ads MCG HEALTH: Faces Class Suit Over Alleged Data Breach MDL 2262: Discovery in Schwab Short-Term v. BoA Due April 4, 2024 MDL 2262: Fact Discovery in Antitrust Litigation Due April 4, 2024 MDL 2262: Fact Discovery in Community v. BoA Due April 4, 2024 MDL 2262: Fact Discovery in ITI v. BoA Due April 4, 2024 MDL 2977: Court OK's Filing of Class Cert Reply Under Seal in Koch MDL 2977: Court OK's Filing of Class Cert Reply Under Seal in Mason MDL 2977: Filing of Class Cert Reply Under Seal in Colvin OK'd MDL 2977: Filing of Class Cert Reply Under Seal OK'd in McEntire MEADOWS AT COUNTRY PLACE: Jeffries Files Suit in Cal. Super. Ct. MEDLINE INDUSTRIES: Polousy Suit Removed to E.D. California MENARD INC: First Amended Scheduling Class Cert. Order Entered MERCEDES-BENZ USA: Capazzi Sues Over Failure to Honor Warranty MESTIZA NEW YORK: Robertson Files ADA Suit in S.D. New York META PLATFORMS: TASD Joins Class Suit Over Teen Mental Health METHODIST HOSPITALS: Chiaro Suit Removed to C.D. California METHODOLOGY INC: Slade Files ADA Suit in S.D. New York MICHIGAN: Bailey, et al., Seek Class Cert. Discovery MICROGENICS CORP: Court Narrows Claims in Steele-Warrick Class Suit MILLER INTERNATIONAL: Jones Files ADA Suit in S.D. New York MISTER SOFTEE INC: Reid Files ADA Suit in S.D. New York MITSUBISHI CHEMICAL: Settlement in Rodriguez Suit Gets Final Nod MOVE INC: Court Extends Class Certification Bid Filing to Oct. 10 MURPHY OIL USA: Watson Files Suit in M.D. Tennessee MYLES ATHLETIC INC: Toro Files ADA Suit in S.D. New York NATIONAL ARENA: Faces Suit Over Players, Coaches Pulled Paychecks NATIONSBENEFITS LLC: Fuss Files Suit in S.D. Florida NATIONSBENEFITS LLC: Wilczynski Files Suit in S.D. Florida NEOVIA LOGISTICS: Remand of Neims Suit to Superior Court Denied NEW ENCHANTMENT GROUP: Davila Files Suit in D. Arizona NEXTGENHEALTHCARE INC: Charboneau Files Suit in N.D. Georgia NHIAGAO DAVID: Court Enters Final Judgment in Favor of NJRI NIKY'S SPORTS INC: DiMeglio Files ADA Suit in S.D. New York NIXON INC: Toro Files ADA Suit in S.D. New York NORTHWEST MOTORSPORT: Court Dismisses Class Claims in Villafan Suit O'REILLY AUTO ENTERPRISES: Clark Files Suit in Cal. Super. Ct. OH MY GAUZE INC: Toro Files ADA Suit in S.D. New York OHIO: Denial of Tolliver's Class Certification Bid Recommended ONE SOURCE PLUS: DiMeglio Files ADA Suit in S.D. New York ORANGE COUNTY, NY: Deide Allowed Leave to File Class Certification ORIGINS NATURAL: Order on Class Cert. Bids Entered in Gutierrez ORNAMENT FACTORY: Velazquez Files ADA Suit in S.D. New York OTAY LAKES: Faces Renn Suit Over Mislabeled Alcoholic Beverages OWENS & MINOR: Mancilla Suit Removed to C.D. California PACIFIC GAS AND ELECTRIC: Thomas Files Suit in Cal. Super. Ct. PALLY 2 ENTERPRISES: Fails to Pay OT Wages Under FLSA, Robles Says PAN PACIFIC RV: Herrera Files Suit in Cal. Super. Ct. PAPA TEXAS: Harris FLSA Suit Transferred to N.D. Texas PARK AVENUE SECURITY: Morris Sues Over Labor Law Violations PENHALL COMPANY: Vazquez-Alfaro Files Suit in N.D. Texas PENN HIGHLANDS: Muraski Files Suit in W.D. Pennsylvania PEPPERDINE UNIVERSITY: Pinzon Seeks to Certify Class of Students PERFETTO ENTERPRISE: Richmond Sues to Recover Prevailing Wages PERFORMANCE NUTRITION: Luis Files ADA Suit in S.D. New York PESCIENCE LLC: Kunkle Files ADA Suit in S.D. New York PHARMACARE US: Corbett Allowed to Seal Portions of Class Cert Bid PHARMERICA CORPORATION: Luther Files Suit in W.D. Kentucky PHILLIPS 66: Dinsmore Seeks to Certify Settlement Class PLUMP P&C LLC: Delacruz Files ADA Suit in S.D. New York POINT32HEALTH INC: Boyle Files Suit in Mass. Super. Ct. PRO BOXING SUPPLIES: Castro Files ADA Suit in S.D. New York PROCOM HEATING INC: Velazquez Files ADA Suit in S.D. New York PROGRESSIVE UNIVERSAL: Extension to File Class Cert Bid Sought PROSUPPS USA: Scheibe Appeals Consumer Suit Dismissal to 9th Cir. PUMA BIOTECHNOLOGY: Dlamini Files Suit in C.D. California PUSH PEDAL PULL: DiMeglio Files ADA Suit in S.D. New York QUEST DIAGNOSTICS: Perez Files Suit in Cal. Super. Ct. QUICK BOX: Tan May Change Konnektive's Name in Amended Complaint R&B CORPORATION: Huamani Files Suit in E.D. Virginia REPUBLIC BAR AND LOUNGE: Chox Sues Over Unpaid Overtime Wages RICOLA USA: Faces Prescott Suit Over Cough Suppressant's False Ads ROCKET MORTGAGE: Faces Class Action Over Telemarketing Violations RUSTIC CUFF LLC: Toro Files ADA Suit in S.D. New York SAFETY INSURANCE: Court Rejects Class Certs Over Diminished Value SAN DIEGO COUNTY, CA: Dunsmore, et al., Can File Docs Under Seal SANOFI-AVENTIS: Thompson Files Suit in N.D. California SENIOR VILLAGE: Fails to Pay Proper Wages, Markle Alleges SHIPTONS BIG R: Jones Files ADA Suit in S.D. New York SHOEDAZZLE.COM INC: Toro Files ADA Suit in S.D. New York SIEMENS INDUSTRY: Enomoto Files Suit in Cal. Super. Ct. SIMPLE SICHUAN: Fajardo Sues Over Unpaid Minimum, Overtime Wages SMILE NEW YORK: Fails to Pay Proper Wages, Marty-Hernandez Says SOLID PROPERTIES: Fails to Pay OT Wages Under FLSA, Vega Alleges TALBOT COUNTY, MD: Turner's Bid to Certify Class Complaint Denied TECH MAHINDRA: Third Cir. Vacates Dismissal of Williams Class Suit TESLA INC: Judgment as a Matter of Law Denied in Securities Suit TEXAS: Court Denies Carter Class Certification Bid TEXAS: Court Denies Garcia Class Certification Bid TEXAS: Court Tosses Baker Class Certification Bid TMX FINANCE CORPORATE: Clark Files Suit in S.D. Georgia UNITED STATES: Fails to Pay Insurance Claims, Marandino Says UNITED STATES: Fisher's Bid for Interlocutory Appeal Cert. Denied VELROSE LINGERIE: Alexandria Files ADA Suit in S.D. New York VIRGINIA AGRICUTURAL: Faces Class Suit Over Unpaid Overtime Wages VITAL CARE: Fails to Pay Minimum & OT Wages, Robinson Alleges WESTERN CORRAL: Toro Files ADA Suit in S.D. New York WESTPORT BIG & TALL: Toro Files ADA Suit in S.D. New York WITHAM MEMORIAL: Discloses Private Info to FB, Ausherman Says ********* 3M COMPANY: Busby Suit Removed to N.D. Alabama ---------------------------------------------- The case captioned as Johnnie Winston Busby, et al., v. 3M Company, et al., Case No. 01-CV-2023-901653.00 was removed from the Circuit Court for the Tenth Judicial Circuit, Jefferson County, Alabama, to the United States District Court for the Northern District of Alabama on June 14, 2023, and assigned Case No. 2:23-cv-00782-AMM. The Plaintiffs seek to hold 3M and certain other the Defendants liable based on their alleged conduct in designing, manufacturing, and/or selling aqueous film-forming foams ("AFFF") and/or firefighter turnout gear ("TOG") that Plaintiffs allege were used in firefighting activities, thereby causing injury to the Plaintiffs.[BN] The Plaintiff is represented by: Gregory A. Cade, Esq. Gary A. Anderson, Esq. Kevin B. McKie, Esq. ENVIRONMENTAL LITIGATION GROUP, P.C. 2160 Highland Avenue South Birmingham, AL 35205 Phone: 205-328-9200 Facsimile: 205-328-9456 The Defendant is represented by: M. Christian King, Esq. Harlan I. Prater, IV, Esq. W. Larkin Radney, IV, Esq. Wesley B. Gilchrist, Esq. LIGHTFOOT, FRANKLIN & WHITE, L.L.C. The Clark Building 400 North 20th Street Birmingham, AL 35203-3200 Phone: (205) 581-0700 Email: cking@lightfootlaw.com hprater@lightfootlaw.com lradney@lightfootlaw.com wgilchrist@lightfootlaw.com 3M COMPANY: Settles "Forever Chemicals" Class Suit for $10.3B ------------------------------------------------------------- Bill McColl of Investopedia reports that 3M (MMM) announced that it had agreed to pay $10.3 billion to settle broad class-action lawsuits over so-called "forever chemicals." The conglomerate indicated the deal with public water suppliers provides for remediation for the effects of per- and polyfluorinated substances (PFAS) in drinking water. The payment will be spread over a 13-year period. 3M has been making PFAS since the 1950s, and is one of the leading manufacturers of the chemicals. CEO Mike Roman called the settlement "an important step forward for 3M," building on its actions that included announcing that the company would exit all PFAS production by the end of 2025. 3M said that it expects the agreement will result in a pre-tax charge of approximately $10.3 billion in the current quarter, and to reflect it as an adjustment in arriving at results, adjusted for special items. Earlier this month, DuPont (DD) and spinoffs Chemours (CC) and Corteva (CTVA) reached a $1.185 settlement over PFAS pollution. Shares of 3M initially rose on June 23, 2023 morning following the news, but gave up early gains and were 0.7% lower as of 11:30 a.m. Eastern Time. [GN] ADS-MYERS INC: Request to Set Aside Dismissal of Quiroz Suit Denied ------------------------------------------------------------------- In the case, JENNY QUIROZ, et al., Plaintiffs v. ADS-MYERS, INC., et al., Defendants, Case No. 20-cv-01755-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California denies the Plaintiffs' request to set aside the dismissal. The putative class action was stayed pending arbitration on Sept. 29, 2021. The parties were directed to file joint status reports on the arbitration every 90 days. More than one year passed, and nothing was filed on the ECF docket. On Jan. 11, 2023, the Court ordered the parties to file a joint status update by Jan. 18, 2023, and warned that a failure to meet this deadline will result in a dismissal of the complaint and closure of the case under Federal Rule of Civil Procedure 41(b). The deadline passed, and again nothing was filed. On Jan. 24, 2023, the Court dismissed the case with prejudice under Rule 41(b) for failure to prosecute and failure to follow the Court's orders. On Jan. 31, 2023, the Plaintiffs suddenly resurfaced and asked to set aside the dismissal pursuant to Rule 60(b)(1). They say their neglect is excusable and the draconian sanction of dismissal is unwarranted because the ECF notification from the Court's January 11 order was marked as "junk mail" in their email systems. They also say that they were engaged in settlement discussion with ADS-Myers when the Court dismissed the case but ADS-Myers says it heard nothing from the Plaintiffs on settlement between February 2021 and December 2022. Judge Donato holds that the statement by ADS-Myers gives the Court some pause in accepting the Plaintiffs' explanations. The junk mail excuse seems doubtful. There were more than 60 ECF entries and notifications sent before the January 11 order that the Plaintiffs received with no apparent problems. There were several more ECF entries and notifications after the order, which also did not give rise to any complaints by the Plaintiffs. In any event, the Plaintiffs had plenty of notice of the Court's orders and the consequences of not complying with them. The Court was not obliged to warn them again of the ramifications for failing to comply. The request to set aside the dismissal is denied for lack of good cause. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/yx9hz9mx from Leagle.com. AMAZON.COM INC: Adams Suit Moved to Western District of Washington ------------------------------------------------------------------ In the case, CYNTHIA ADAMS, individually and on behalf of all others similarly situated, Plaintiff v. AMAZON.COM, INC. and AMAZON.COM SERVICES LLC, Defendants, Civil Action No. 7:23-cv-00121-EKD (W.D. Va.), Judge Elizabeth K. Dillon of the U.S. District Court for the Western District of Virginia, Roanoke Division, transfers the matter to the U.S. District Court for the Western District of Washington. The lawsuit is a putative class action alleging that the Defendants' automatic renewal practices violate Virginia statutory and common law. Defendants Amazon.com, Inc. and Amazon.com Services LLC (collectively "Amazon") move to transfer this matter to the Western District of Washington. The Court held a hearing on this motion on June 6, 2023. Judge Dillon grans the motion to transfer. First, it is undisputed that the Plaintiff signed-in to her Amazon Prime account during the class period. It is also undisputed that to sign-in, she had to enter an email or mobile phone number and click on the "Continue" button. Immediately underneath that button, the page notes, "By continuing, you agree to Amazon's Conditions of Use with a hyperlink and Privacy Notice with a hyperlink." Thus, by clicking on the continue button, the Plaintiff agreed to Amazon's Conditions of Use (COUs). The COUs include a forum selection clause that requires "any dispute or claim relating in any way to your use of any Amazon Service to be adjudicated in the state or Federal courts in King County, Washington" and expressly states that users "consent to exclusive jurisdiction and venue in these courts." A forum selection clause is given controlling weight in all but the most exceptional cases, and the plaintiff bears the burden of proving why it should not be enforced. Hence, the Plaintiff has not met her burden of showing that the forum selection clause should not be enforced. Second, the public-interest factors favor transfer. Courts weighing transfer pursuant to Section 1404(a) evaluate considerations of private and public interest, but because there is an enforceable forum selection clause, Judge Dillon may consider arguments about public-interest factors only. The public-interest factors include respective docket congestion, the transferee court's familiarity with the relevant law, the pendency of a related action, and the relationship of the community to the controversy. The Plaintiff has failed to show that the public-interest factors overwhelmingly disfavor a transfer. Most notably, three similar and related cases -- one of which was filed by the Plaintiff's lawyers -- are already pending in the Western District of Washington before the same district judge. As the district court noted in Gonzalez v. Homefix Custom Remodeling, Corp., ___ F. Supp. 3d ___, 2023 WL 3115585, at *6 (E.D. Va. Apr. 26, 2023), it is generally in the interest of justice if a decision not to transfer would lead to courts rendering inconsistent judgments on the same issue. A full-text copy of the Court's June 14, 2023 Memorandum Opinion is available at https://tinyurl.com/3yfeza7s from Leagle.com. APRIA HEALTHCARE: Faces Class Suit Over Massive Data Breach ----------------------------------------------------------- John Russell of Inside Indiana Business reports that an Indianapolis-based supplier of oxygen kits, nebulizers and other home health care products is being sued in connection with a massive data breach of personal information and for waiting more than 18 months to report it. At least six separate lawsuits have been filed this month in U.S. District Court in Indianapolis against Apria Healthcare LLC. Most of the suits are seeking class-action status on behalf of the 1.8 million people whose information was hacked by an unauthorized third party. The hacked information included private and financial information. Apria notified authorities of the data breach on May 22. But the lawsuits say the company waited too long. The breaches occurred between April 2019 and October 2021. Apria said it discovered the breach on Oct. 1, 2021. Indiana's data breach notification law requires companies to disclose breaches "without unreasonable delay but no more than 45 days after the discovery of the breach." Apria was bought last year by global health care products distributor Owens & Minor Inc. of Richmond, Virginia, for about $1.6 billion. A customer-service representative at Apria's Indianapolis office referred questions to Owens & Minor's corporate headquarters. The corporate office did not immediately respond to an email or phone call from IBJ on June 23, 2023. Apria moved its headquarters to Indianapolis in 2022 from Los Angeles. Several of the lawsuits say that Apria delayed disclosure to artificially bolster its valuation in its acquisition, which closed March 29, 2022. Many of the suits claim negligence, invasion of privacy, breach of contract and unjust enrichment. Neither Apria nor Owens & Minor have yet filed responses to the lawsuits. [GN] ARIZONA: Faces Class Suit Over Transgender Birth Certificates ------------------------------------------------------------- John Woolley of Bloomberg Law reports that a group of transgender youth presented arguments to an Arizona federal judge on June 22, 2023 in favor of certifying a class in their suit challenging the state's requirements for correcting the sex marker on birth certificates. The plaintiffs proposed a class of all transgender individuals born in Arizona, now and in the future, who seek to change the sex listed on their birth certificates but haven't undergone a "sex change operation" as is currently required under state law. [GN] ATOMIC WALLET: Fails to Secure Cryptocurrency Breach, Meany Says ---------------------------------------------------------------- ROBERT MEANY; and GRAHAM DICKINSON, individually and on behalf of all others similarly situated, Plaintiffs v. ATOMIC WALLET; and KONSTANTIN GLADYCH, Defendants, Case No. 1:23-cv-01582 (D. Col., June 21, 2023) is a class action brought on behalf of all persons who have suffered damages as a result of the Defendants' negligent and unlawful conduct in connection with its cryptocurrency exchange platform, Atomic Wallet. According to the Plaintiffs in the complaint, the Defendants knew of existing security vulnerabilities in the Atomic Wallet platform since at least as early as 2022 but failed to take necessary security measures or precautions to protect user data and funds. Crypto research and security group Least Authority, who was hired by the Defendants to evaluate Atomic Wallet's infrastructure, architecture, and design, issued a report in early 2022, advising Defendants of serious "exiting security vulnerabilities." The Defendants were informed that funds held in Atomic Wallet may be at risk due to these security vulnerabilities but took no measures to inform users of those risks or protect against those risks, says the suit. Despite knowledge of security vulnerabilities, and recommendations by consultants to assess those vulnerabilities and protect user assets, the Defendants allegedly failed to implement reasonable safeguards leading to the hacking of the Atomic Wallet platform and stolen funds of the Plaintiffs. As a result of the Defendants' failures, over $100 Million in US Dollar equivalents were stolen from thousands users who used the Atomic Wallet platform, the suit alleges. ATOMIC WALLET is a universal, fully decentralized, multi-currency, and convenient app with a simple interface that supports other cryptocurrencies. [BN] The Plaintiffs are represented by: Douglass A. Kreis, Esq. Daniel J. Thornburgh, Esq. D. Nicole Guntner, Esq. AYLSTOCK, WITKIN, KREIS & OVERHOLTZ 17 East Main Street, Suite 200 Pensacola, FL 32502 Telephone: (850) 202-1010 Facsimile: (850) 916-7449 Email: dkreis@awkolaw.com dthornburgh@awkolaw.com nguntner@awkolaw.com BALTIMORE GAS: Faces Class Suit Over Gas Regulator Installations ---------------------------------------------------------------- Rebecca Pryor of Fox News reports that the three women arrested for protesting at a Baltimore Gas & Electric (BGE) worksite are now taking legal action of their own. On June 24, 2023, following an overnight stay in central booking, Claudia Towels, Magdalena Fitzsimmons, and Sandra Seward spoke to reporters about the incident for the first time. "It wasn't pleasant, but I have to tell you, I'm glad I did it and I would do it again," said Seward. Speaking in front of a crowd of Federal Hill residents, the demonstrators say their battle with BGE has just begun. "They're using their influence to bully and to just go through neighborhoods and completely dismiss our rights and that is not okay," Towels said. Attorney Thiru Vignarajah says a class-action lawsuit has been filed on behalf of the women and 11 other Baltimore City residents, plus a list of 121 more that plan to officially join in the coming days. They're seeking an immediate injunction to prevent BGE from installing external gas regulators that residents say deface the historic nature of older homes. The lawsuit also calls for BGE to stop shutting off gas to homes who refuse the utility work. Homes like Donna Sylvester's, the site of the protest. "On June 22, 2023 I was not even home," said Sylvester. Sylvester claims BGE only gave hours notice before cutting off her service, despite Maryland law requiring at least a 14-day warning period. "It feels unfair and like bullying," she said. However, according to BGE, that's not the case. "Customer notification was sent out as required by COMAR 14 days before the terminations," said a BGE spokesperson, "We have communicated with our customers across our service area to explain the need for this important safety work and address resident concerns." The utility company also sent FOX45 the following statement, explaining why they believe placing gas regulators outside of homes is a safer option: BGE is committed to the safe and reliable delivery of electricity and gas to our customers, and as part of this work we are modernizing the gas system and replacing aging low-pressure gas infrastructure with a higher-pressure system. The higher-pressure system will provide more reliable and resilient natural gas service to residents and also requires the installation of outdoor regulators to maintain a safe level of pressure between the gas system and customer homes and appliances. Externally placed regulators are safer because in the event of an unintended gas release, the gas will vent directly into the atmosphere as opposed to building up inside a structure where it is susceptible to ignition. External regulators are also readily accessible to first responders and BGE personnel in the event of a gas emergency. An explanation the residents and their attorney refute. "If they're so confident in their position, they should be able to put this off like a couple of days and allow the court to decide whether they're right or whether we're right," said Vignarajah. "BGE is trying to scare people off and push them to do something that we don't have any data for," said Seward. "They're in it for the profit, they're not in it for the interests of the public," said Fitzsimmons. It remains unclear who's footing the bill for the fleet of new gas meters. Although, residents fear it will be passed on to them with higher rates. Meanwhile, Towels, Fitzsimmons, and Seward are also waiting to learn the fate of the charges they now face, including disorderly conduct and failing to obey a lawful order. Charges that could potentially end in fines and jail time. "Look, if these charges don't get dropped, the criminal justice system will literally laughed him out of court," said Vignarajah. "The fact that those resources were used for a private company to bully their way through an unlawful action. We should all be outraged," said Towels. [GN] BOB DEAN: Fewer Than Half Pursue Claims in Hurricane Ida Class Suit ------------------------------------------------------------------- Kimberly Marselas of McKnights reports that only about 400 residents who experienced a harrowing 2021 Hurricane Ida evacuation or their survivors have filed claims to receive part of a $12 million class-action settlement. In all, nearly 850 patients were evacuated from seven nursing homes then owned by magnate Bob Dean -- meaning fewer than half are pursuing claims. The residents were moved to a former Louisiana warehouse owned by Dean to ride out the deadly storm. Conditions inside the warehouse, however, quickly deteriorated, and most residents had to be rescued by state health officials after several died. NOLA.com this week reported on ongoing efforts to divvy out the insurance payments, the total value of which could still increase to $14 million depending on a legal proceeding against one of the insurers involved. There are concerns, however, that some of the victims or their family members did not know about a June 15 claim deadline. Attorneys also have said about 100 of Dean's former residents have died since Ida. Retired Louisiana District Judge Rusty Knight is overseeing the settlement disbursements and told Nola.com late last week that he would spend the summer reviewing claims to determine payouts based on the severity of harm. Judicial District Judge Michael Mentz approved the settlement and also must sign off on final amounts to be paid. Knight said that former patients who didn't file claims are still eligible for a base payment. He also raised concerns that some might not pursue a claim out of concern it could affect Medicaid eligibility. Mentz's approved plan also directs 22.5% of the settlement to lawyers after former patients get paid. After Ida, Bob Dean was stripped of his nursing home licenses by the state and faces state charges in Louisana's Tangipahoa Parish for cruelty to the infirm and Medicaid fraud. He has claimed to have dementia and reports few personal assets for victims to go after in court. Early this year, the US Justice Department also brought a lawsuit against Dean charging him with "misappropriating and misusing the assets and income" of four nursing homes that had loans insured by the Federal Housing Administration. Justice officials say Dean required the nursing homes to pay a total of $1 million in rent on an industrial warehouse he had acquired to serve as a hurricane evacuation center. [GN] BUFFALO WILD: Faces Class Suit Over Restaurant's Takeout Fees ------------------------------------------------------------- Megha Badiger of Popdiaries reports Buffalo Wild Wings, one of the most popular American casual dining restaurants, is facing backlash and a class-action lawsuit over its controversial takeout fee. The restaurant chain started charging a 10% takeout fee to diners, who placed their orders for takeout during the pandemic. Many have criticized this move as an attempt to boost profits from takeout sales during a time of crisis. In this blog post, we will explore the details of the controversy surrounding Buffalo Wild Wings and provide our perspective on the issue. The Controversy Surrounding Buffalo Wild Wings Buffalo Wild Wings faced criticism from customers and social media users when the company started charging a 10% takeout fee for orders placed online, over the phone, or through a third-party delivery app. Customers argued that the fee was unfair, especially since many restaurants were waiving fees during the pandemic to encourage customers to order takeout and avoid dine-in options. Furthermore, the restaurant chain faced a backlash after customers discovered that the company was advertising the fee as a tip for its staff. However, it was later revealed that the fee was not going to the restaurant's employees as an additional wage but rather to the company's profits. Class-Action Lawsuit Following the outcry from customers, Buffalo Wild Wings is now facing a class-action lawsuit over the takeout fee. The lawsuit alleges that Buffalo Wild Wings violated its gift card policy, which states that the company cannot charge additional fees for the use of gift cards. The lawsuit also argues that the company’s advertising of the takeout fee as a tip for its staff is misleading and deceptive. In addition to the class-action lawsuit, Buffalo Wild Wings is facing scrutiny from state attorneys general, some of whom have launched investigations into the restaurant chain’s takeout fee. Buffalo Wild Wings' Response Buffalo Wild Wings has defended its takeout fee, stating that it is necessary to cover the restaurant's additional costs associated with takeout orders, including packaging and labor. The restaurant chain has also argued that it communicated the fee to customers when they placed their orders. In response to the backlash and class-action lawsuit, Buffalo Wild Wings has now waived the takeout fee for all orders placed online, over the phone, or through third-party delivery apps. The company has also stated that it will refund the fee to customers who paid it during the pandemic. Buffalo Wild Wings faced a significant backlash over its controversial takeout fee during the pandemic. The 10% fee for takeout orders was criticized as an attempt to boost profits during a time of crisis, especially since many other restaurants were waiving fees to encourage customers to order takeout. The class-action lawsuit and investigation by state attorneys general have further intensified scrutiny of the restaurant chain's business practices. While Buffalo Wild Wings has defended its takeout fee and argued that it was necessary to cover additional costs, the company has now waived the fee and agreed to refund customers who paid it during the pandemic. [GN] CELSIUS NETWORK: Wintermute Added Defendant in Investors Class Suit ------------------------------------------------------------------- Erik Larson and Yueqi Yang of Bloomberg Laws report that Wintermute Trading Ltd., one of the biggest cryptocurrency market makers, was accused in a proposed class-action lawsuit of helping former Celsius Network Ltd. Chief Executive Officer Alex Mashinsky dupe investors in his now-bankrupt crypto lending firm. Plaintiffs who sued Mashinsky and other Celsius executives in July 2022 amended their federal lawsuit in New Jersey this week to add London-based Wintermute as a defendant, entangling another major industry player in the fallout from Celsius's collapse. [GN] CLEARWAY CLINIC: Faces Class Suit Over Misdiagnosed Pregnancy ------------------------------------------------------------- Michael Rosenfield of NECN reports that a class action lawsuit has been filed against Clearway Clinic, a crisis pregnancy center in Worcester, Massachusetts. Its website says it's a medical clinic for pregnant women, but a client who visited the center in the fall says she was misdiagnosed and the clinic failed to adhere to accepted standards of medical care. "She went to Clearway because she found them on Google," said attorney Shannon Liss-Riordan. "She was looking for a place where she could get an ultrasound to confirm that she had a healthy, viable pregnancy." The lawsuit alleges that the pregnant woman was told the pregnancy was fine. But weeks later, her life was in jeopardy. "She had a sharp, shooting pain, was rushed to the hospital, had to have emergency surgery because it turned out that she had an ectopic pregnancy," said Liss-Riordan. "And Clearway had missed that." Clearway issued a statement on June 19, 2023, saying they cannot speak to any individual's medical claims or history due to HIPAA regulations. "Clearway Clinic has served more than 10,000 women and their families in the Worcester area for the past 22 years at no cost and have never had a complaint like this in the past," Executive Director Jill Jorgensen said. "We hope to continue to provide needed services to women and their families in Massachusetts for many more years." The Catholic Action League also told NBC10 Boston, "Faith based crisis pregnancy centers have been operating in Massachusetts, without incident, since the early 1970's. They offer women in troubled pregnancies compassionate alternatives to abortion." Recently, pregnancy centers like Clearway have come under fire. "While crisis pregnancy centers claim to offer reproductive healthcare services, their goal is to prevent people from accessing abortion and contraception," Gov. Maura Healey said in a statement last year. The clinic was vandalized last year, allegedly by an extreme abortion rights group. "These centers should not be deceiving women into thinking that they're regular medical centers where they can receive standard care," said Liss-Riordan. "They're there for a reason, which is to push a certain philosophy." [GN] CLOVER HEALTH: Agrees to Settle Derivative, Securities Class Suits ------------------------------------------------------------------ Elaine Mendonca of Best Stocks reports that on June 22, 2023, Clover Health made a major announcement that it has reached an agreement to settle derivative litigation. This settlement will bring an end to all remaining civil litigation relating to its de-SPAC transaction. However, the settlement is still subject to definitive documentation and final court approval. It is important to note that the defendants have denied all wrongdoing and have entered into the settlement to avoid the costs and uncertainties associated with continued litigation. This is a common strategy for companies facing legal challenges, as it allows them to move forward without the burden of ongoing lawsuits. In addition to the derivative litigation settlement, Clover Health has also settled a securities class action lawsuit for $22 million. This is a significant amount of money, but it will bring closure to another legal challenge that the company has been facing. Overall, the settlement of these legal challenges is a positive development for Clover Health. It will allow the company to focus on its core business and move forward without the distraction of ongoing litigation. Clover Health Investments Corp (CLOV) Median Target Price Forecasted to Increase by 27.86% in 12 Months: Investment Analysts Hold Stock On June 22, 2023, Clover Health Investments Corp (CLOV) had a median target price of 1.13, according to six investment analysts who offered 12-month price forecasts. The high estimate was 3.00, and the low estimate was 0.75. The median estimate represented a 27.86% increase from the last price of 0.88. The consensus among the six polled investment analysts was to hold the stock. Clover Health Investments Corp reported a loss of $0.14 per share for the current quarter, with sales of $490.8 million. The stock opened at 0.89 and closed at 0.87, a decrease of 2.25%. The company was set to report its earnings on August 8, 2023. [GN] COINBASE GLOBAL: Motion to Suspend Cryptocurrency Suit Granted -------------------------------------------------------------- Alexandra Jones of Courthouse News Service reports that a class action against Coinbase will be put on pause while the cryptocurrency exchange appeals to send the dispute to arbitration, the Supreme Court ruled 5-4 on June 23, 2023. "The sole question here is whether the district court must stay its pre-trial and trial proceedings while the interlocutory appeal is ongoing. The answer is yes," Justice Brett Kavanaugh wrote in the majority opinion. Cryptocurrency uses cryptography, which is foundational to internet security, to create a string of data that denotes a value. That value goes up and down, according to various market pressures, but the lure of increasing the value of one's investments has drawn scores of users to currency exchanges. Among the world's largest is Coinbase, founded in 2012 and valued at nearly $86 billion in 2021 when it debuted on Wall Street. Users can navigate the exchange to buy various cryptocurrency coins like Bitcoin or Ethereum. Abraham Bielski sued Coinbase after he lost over $31,000 from his account in a scam. Bielski gave an individual who claimed to be a representative of payment processing site PayPal access to his account. He says he attempted to contact Coinbase after the fraud but was unable to ever reach a human representative. According to Coinbase, this specific scam is warned about in its user agreement as well as a delegation clause compelling arbitration. A federal judge refused to send the case to arbitration, however, finding that the user agreement did not adhere to general contract principles and was thus unenforceable. As Coinbase appealed that decision, it claimed it should not have to participate in discovery for a case that it still might get to arbitrate. The district court declined to stay the matter, however, as did the Ninth Circuit. The case is the first ever case related to crypto to go before the high court, which reversed in favor of Coinbase on June 23, 2023. "It 'makes no sense for trial to go forward while the court of appeals cogitates on whether there should be one,'" Kavanaugh wrote. Bielski's attorney Hassan Zavareei was predictably critical of the result. "The imposition of an automatic stay every time a party appeals the denial of a motion to compel arbitration is an unprecedented, judge-made rule that will delay proceedings for no good reason in many cases," Zavareei said on June 23, 2023. "We hope the Courts of Appeal will expedite arbitration appeals as much as possible to minimize the delays resulting from June 24, 2023's decision." A representative for Coinbase meanwhile praised the ruling. "Companies like Coinbase, as well as our customers, bear significant burdens when cases that belong in an arbitration process instead proceed in lengthy and expensive court proceedings," Katherine Minarik, the company's vice president of litigation, said in a statement. "It makes sense that lower court litigation should be paused while an appellate court decides whether a case belongs in court at all." Justice Ketanji Brown Jackson emphasized the pitfalls of June 23, 2023's ruling in a fiery dissent, likening the mandatory general-stay rule adopted by the majority to a Pandora's box that encourages defendants to seek arbitration appeals in federal cases "at every opportunity." "No statute imposes it. Nor does any decision of this Court," the newest Supreme Court justice wrote, joined by her fellow liberal justices Sonia Sotomayor and Elena Kagan. "Yet June 24, 2023's majority invents a new stay rule perpetually favoring one class of litigants — defendants seeking arbitration. Those defendants will now receive a stay even when, according to the usual equitable analysis, there is no good reason for one. And, in reaching this result, the Court concludes for the first time that an interlocutory appeal about one matter (arbitrability) bars the district court from proceeding on another (the merits)." (Parentheses in original.) Kavanaugh meanwhile argued that it would negate the many advantages of arbitration to permit the advancement of class action litigation when arbitratability remains in reach. "If the district court could move forward with pre-trial and trial proceedings while the appeal on arbitrability was ongoing, then many of the asserted benefits of arbitration (efficiency, less expense, less intrusive discovery, and the like) would be irretrievably lost — even if the court of appeals later concluded that the case actually had belonged in arbitration all along," the Trump appointee wrote. "Absent a stay, parties also could be forced to settle to avoid the district court proceedings (including discovery and trial) that they contracted to avoid through arbitration." (Parentheses in original.) Justice Clarence Thomas signed on to a part of the dissent in which Jackson maintained that the trial judge, the judge closest to the case at hand, is qualified to make a determination upon request about whether a case should continue or be paused while an arbitration appeal is in the air. "This discretionary decision making promotes procedural fairness because it allows for a balancing of all relevant interests," Jackson wrote. Failing to allow trial judges such discretion could cause the loss of crucial evidence, the dissent continues. "Say a witness is on her deathbed. Under the majority's rule, if an interlocutory arbitrability appeal … is pending, discovery must be stayed and the evidence must be lost," Jackson wrote, adding that courts are now also unable to craft case-specific solutions that balance all parties' interests. "Under the traditional discretionary-stay rule, for instance, a judge could allow the parties to conduct only the forms of discovery that would also be permitted in arbitration. That would save time and leave nobody worse off even if, as the majority fears, the dispute ultimately heads to arbitration," Jackson said. The San Francisco-based Coinbase had said at arguments in March that Congress crafted the Federal Arbitration Act to allow immediate appeals when district courts deny motions to compel arbitration. Noting how a stay at the district court level would effectively prevent discovery that might interfere with future arbitration proceedings, the exchange's lawyer, Neal Katyal with Hogan Lovells, drew an analogy to how "toothpaste can't be put back in the tube." While the justices had initially considered a second case against Coinbase at oral arguments, the court noted on June 23, 2023 that David Suski's case is now dismissed as improvidently granted. [GN] COINBASE GLOBAL: SC Affirms Denial of Motion to Compel Arbitration ------------------------------------------------------------------ Gibson Dunn reports that on June 23, 2023, the Supreme Court held 5-4 that appealing the denial of a motion to compel arbitration automatically stays district court proceedings pending resolution of that appeal. Background: The Federal Arbitration Act ("FAA") authorizes interlocutory appeals from orders refusing to compel arbitration. 9 U.S.C. Section 16(a). The FAA does not expressly address stays pending appeal, and a circuit split developed. The majority position, adopted by the Third, Fourth, Seventh, Tenth, Eleventh, and D.C. Circuits, held that stays pending appeal are mandatory. The minority position, adopted by the Second, Fifth, and Ninth Circuits, held that the usual, four-factor standard for discretionary stays pending appeal applies. Bielski brought putative class-action claims against Coinbase in the Northern District of California. Coinbase moved to compel arbitration under its user agreement. After the district court denied Coinbase's motion, Coinbase appealed and sought a stay pending appeal. The district court declined to stay its proceedings, holding that under Ninth Circuit precedent a stay pending appeal was not mandatory and that a discretionary stay was not warranted. The Ninth Circuit likewise denied a stay. Issue: Is a stay pending appeal of the denial of a motion to compel arbitration mandatory? Court's Holding: Yes. Appealing the denial of a motion to compel arbitration automatically stays district court proceedings pending resolution of the appeal. "The sole question before this Court is whether a district court must stay its proceedings while the interlocutory appeal on arbitrability is ongoing. The answer is yes." Justice Kavanaugh, writing for the Court What It Means: June 23, 2023's decision is a win for defendants who appeal the denial of a motion to compel arbitration. Defendants who appeal the denial of a motion to compel arbitration cannot be forced to continue litigating in the district court during the appeal. In practice, this decision also should stay any district court discovery deadlines. This is a significant change for litigants in the Second, Fifth, and Ninth Circuits, which all previously refused to grant such automatic stays. In reaching this decision, the Supreme Court applied the general rule that an interlocutory appeal divests a district court of control over the issues on appeal. Because the issue on appeal is whether the case can go forward in the district court, the district court lacks power to require further litigation. The Court reasoned that "many of the asserted benefits of arbitration (efficiency, less expense, less intrusive discovery, and the like) would be irretrievably lost" without a stay during appeal, even if the court of appeals agrees that arbitration is required. This is especially true in class actions, where "the possibility of colossal liability can lead to . . . blackmail settlements." Slip op. 5–6. [GN] COLGATE-PALMOLIVE CO: Writ of Certiorari Filed in McCutcheon Suit ----------------------------------------------------------------- COLGATE-PALMOLIVE COMPANY, et al. filed a petition for writ of certiorari in the Supreme Court of United States from a decision entered by the United States Court of Appeals for the Second Circuit on March 13, 2023, in the lawsuit entitled Rebecca McCutcheon, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. Colgate-Palmolive Company, et al., Defendants, Case No. 20-3225. The Plaintiffs brought this action, on behalf of all others similarly situated, against the Defendants for violations of the Employee Retirement Income Security Act of 1974 ("ERISA"). The case before the U.S. Supreme Court is styled as Colgate-Palmolive Company, et al., Petitioners vs. Rebecca McCutcheon, et al., individually and on behalf of all others similarly situated, Case No. 22-1210, filed on June 14, 2023. [BN] Defendants-Petitioners COLGATE-PALMOLIVE COMPANY, et al., are represented by: Evan R. Chesler, Esq. CRAVTH, SWAINE & MOORE, LLP 825 Eighth Avenue New York, NY 10019 E-mail: echesler@cravath.com COMMERCE INSURANCE: Court Rejects Class Certs Over Diminished Value ------------------------------------------------------------------- Andrew G. Simpson of Insurance Journal reports that a judge in Massachusetts has denied class certifications for claimants seeking payments from two insurers for the lost resale value of their motor vehicles that were damaged in accidents and then repaired. Suffolk County Superior Court Justice Kenneth W. Salinger ruled that the damage and liability determinations being sought require individualized proof and cannot be addressed through class actions. Plaintiffs Jarret McGilloway, Linda Estrella and Adam Ercolini sought class certifications for their claims against Safety Insurance Co. and the Commerce Insurance Co. The two insurers allowed plaintiffs' claims for third-party collision damage and paid to repair their vehicles and restore them to their prior condition, but did not pay for alleged loss of resale value. The plaintiffs contend that the insurers committed breaches of contract, and also engaged in an unfair business practices, by not paying every class member for lost resale value that their motor vehicle allegedly suffered after being damaged in a collision and then fully repaired. The plaintiffs moved for class certifications on their claims for breach of contract and for violation of Chapter 93A, the state's consumer protection law. They filed separate motions in each of these consolidated cases, seeking certification of one class with claims against Safety and a separate class with claims against Commerce. The proposed class of plaintiffs with claims against Safety would have at least 26,000 members, while the class asserting claims against Commerce would have roughly 470,000 members. The kind of loss that plaintiffs sought to recover is known as inherent diminished value or IDV. This term refers to "the concept that a vehicle's fair market value may be less following a collision and repairs" and it equals the "difference between the resale market value of a motor vehicle immediately before a collision and the vehicle's market value after a collision and subsequent repairs. " Supreme Court Ruling The class action move followed a 2018 Massachusetts Supreme Judicial Court (SJC) ruling that the standard Massachusetts automobile insurance policy required insurers to pay third-party collision damage claims for IDV to vehicles that are damaged and subsequently repaired. However, as Superior Court Justice Salinger noted, the SJC stressed that the insurers should have to pay IDV only if the claimant establishes both that his or her vehicle suffered IDV, and the amount of IDV damages owed to him or her. The SIC made clear it was not suggesting "that every automobile that is involved in a collision and is subsequently repaired has suffered an IDV," explaining that "individualized proof is required to demonstrate that a given automobile has sustained some form of diminished value due to a collision or vehicular accident, even after repairs are made." With regard to the proposed classes, Justice Salinger found that a material dispute still exists regarding whether any of the plaintiffs' vehicles have suffered IDV due to a collision and, if so, whether and in what amount such damage can be quantified. Each plaintiff has the burden of proof on these issues. Regarding the rules governing class certifications, the Superior Court found that the proposed classes would satisfy some but not all of the requirements. They would meet the requirements of numerosity, commonality, typicality, and adequacy of representation. As for numerosity, the proposed class of plaintiffs with claims against Safety would have at least 26,000 members, and the class with claims against Commerce would have roughly 470,000 members. As for commonality and typicality, all putative class members would assert the same theories of liability and seek the same general kind of damages. And as for adequacy of representation, the interests of the named plaintiffs are aligned with those of the other putative class members, and plaintiff's counsel is well qualified to conduct the litigation on behalf of the proposed class members. That was the good news for the plaintiffs. Missing Criteria However, the judge continued, the proposed classes would not meet the requirements for predominance and superiority or the requirements under the consumer protections law (Chapter 93A), that class members have suffered similar injuries. The failure to show predominance and superiority also weighed against certifying classes as to the 93A claims, the judge added. The court cited testimony by Commerce's valuation expert that determining whether a vehicle's resale market value is less than it would have been immediately before the collision "requires detailed and individualized analysis of many factors, including the nature and severity of the damage and the quality of the repairs' whether the vehicle had a prior accident history; in what manner the vehicle is to be sold after being repaired (e.g., private sale, retail sale, trade-in); the general class of vehicle (e.g. inexpensive sedans, minivans, high- end luxury vehicles, etc.); and the market segment of buyer involved in any subsequent sale." There was also testimony that many vehicles that are damaged in a collision and then are fully repaired do not suffer any IDV, but instead are worth just as much and sometimes even more after being repaired than they were worth before the collision. Plaintiffs themselves conceded during oral argument that many class members may not have suffered IDV. The judge did not favor plaintiffs testimony that IDV damages can be determined using nothing but a standard vehicle valuation guide (like the one published by the National Automobile Dealers Association) and the damage appraisal report for each vehicle. But, the judge added, even if each IDV analysis could be much simpler than the Commerce expert testified, that would not change the fact that "liability cannot be determined on a class-wide basis and instead would have to be decided individually for the tens of thousands or hundreds of thousands of members of each proposed class." 'Individualized Proof' The court found that "individualized proof, analysis, and findings would be required to determine whether any putative class member's vehicle suffered some amount" of IDV and, if so, how much. The court said the evidence confirmed what the SJC in its 2018 ruling. "Because the issue of liability requires individualized proof and cannot be decided on a class wide basis, the Court finds and concludes that common issues do not predominate over individual ones, a class action is not superior to individual adjudication of claims, and denial of class certification is therefore appropriate," the judge wrote. Similarly, class certification is inappropriate under Chapter 93A for the further reason that not all class members were subjected to similar unfair or deceptive conduct and suffered similar injuries. Thus, class certification under 93A is also not appropriate. Plaintiffs further argued that the issue of which class members suffered injury in the form of uncompensated IDV raises only a question of damages that can be address later on, and should not preclude class certification. The court disagreed. "There is a difference between determining the extent of harm (the question of damages) and deciding whether there was any harm at all (which goes to liability). While obstacles to calculating damages may not preclude class certification, the putative class must first demonstrate economic; loss on a common basis," the judge explained. There is no liability for breaching a contract, like an insurance policy, if the alleged wrongdoing did not cause damages. A business or consumer is not entitled to collect even nominal damages under 93A without proving that the violation caused some sort of "separate" and "distinct" injury. The need in this case for an individualized inquiry to resolve such issues would involve much more than "merely a question of damages," and makes it appropriate to deny class certification, the court stated. [GN] CSX TRANSPORTATION: Dismissal of Shongo's Tort & Class Claims Nixed ------------------------------------------------------------------- In the case, CHEYENNE SHONGO, et al., Plaintiffs v. CSX TRANSPORTATION, INC., Defendant, Civil No. RDB-22-2684 (D. Md.), Judge Richard D. Bennett of the U.S. District Court for the District of Maryland denies CSX' Motion to Dismiss. On Dec. 30, 2021, there was an explosion in the North Reclaim Tunnel of the Curtis Bay Piers Coal Facility in Baltimore, Maryland. In this putative class action, Plaintiffs Cheyenne Shongo and Kennett Walker allege that this explosion "blanketed" their homes and properties in coal dust, and exposed them to contaminants associated with "cancer, lead poisoning, coal works pneumoconiosis, and other serious diseases. On behalf of themselves and others similarly situated, the Plaintiffs filed suit against CSX, the owner and operator of the Curtis Bay facility, alleging negligence, trespass, nuisance, and strict liability under Maryland law. They seek an injunction requiring adequate staffing and training at Curtis Bay, the establishment of an equitable fund for medical monitoring, and property damages. Now pending is CSX's Motion to Dismiss, seeking the dismissal of all four tort claims with prejudice, and dismissal of the class allegations in the alternative. The parties' submissions have been reviewed and no hearing is necessary. Curtis Bay is a coal transfer facility located at 1910 Benhill Ave, Baltimore, MD 21226. According to the Complaint, it is comprised of incoming and outgoing rail service, a railyard, a coal transfer yard, railcar offloading infrastructure, conveyor infrastructure, pier loading facilities, and associated office, maintenance, and operations buildings. During the Facility' ordinary operations, shipments of coal arriving at Curtis Bay are transferred along conveyors distributed through one of eight stacking tubes, and collected into piles in the transfer yard. Coal collected in the transfer yard is then diverted into reclaim tunnels through vibrating feeders set into the ground. The case arises from an explosion that occurred in the Northern Reclaim Tunnel, a 770-foot concrete tunnel that runs from north to south directly beneath the transfer yard, and is lined with coal feeders, conveyors, and related equipment. The Plaintiffs allege that methane and coal dust accumulated in the North Reclaim Tunnel between feeders 7 and 17, creating "a localized flammable atmosphere," which was aggravated and enhanced by poor ventilation that prevented the confluence of flammable gases from dissipating. On Dec. 30, 2021, these gases combusted, generating "a pressure wave" that collected coal dust as it ran along the tunnel. The outcome was a "massive explosion," producing a plume that erupted out of the northern escape tunnel and south surface entrance scattering pollutants into the air. The Curtis Bay Facility is located directly adjacent to a residential neighborhood, where the Plaintiffs and the putative class members reside. According to the Complaint, the Plaintiffs and the class members saw their homes blanketed in coal dust following the explosion. They allege that the dust and contamination released by the explosion settled onto the ground and requires further cleanup before their residences can be made safe. They further allege that the explosion released dangerous and/or carcinogenic substances including lead, arsenic, silica and/or particulate matter, and that the proposed class members were caused to inhale these substances, exposing them to a significantly increased risk of contracting latent diseases including cancer, lead poisoning, coal works pneumoconiosis, and other serious diseases. The Plaintiffs filed suit on Oct. 18, 2022, bringing Maryland tort claims on behalf of a putative class of individuals that the Plaintiffs claim were exposed to the same pollutants by the explosion at Curtis Bay. CSX has moved to dismiss the Complaint for failure to state a claim and seeks to dismiss or strike the Plaintiffs' classwide allegations in the alternative. The Plaintiffs bring the litigation on behalf of a putative class, defined as the residents of a neighborhood adjacent the Curtis Bay Facility that was blanketed in coal dust by the explosion. In their four-count Complaint, they raise four tort claims under Maryland law: (1) negligence (Count I); (2) trespass (Count II); (3) private nuisance (Count III); and (4) strict liability for abnormally dangerous activities (Count IV). CSX seeks the dismissal with prejudice of all four counts, and alternatively argues that the proposed class is impossible to certify. Judge Bennett denies CSX's Motion to Dismiss on all grounds. As to Count I, viewing the Complaint in the light most favorable to the Plaintiffs and drawing all reasonable inferences in their favor, the Plaintiffs' repeated assertion that they "reside" near the Facility and that coal dust was blown onto their "homes" and "properties" is sufficient to plausibly allege that they own the properties at issue. Taken together, and construed in the Plaintiffs' favor, these allegations plausibly suggest that they inhaled the toxins released by the explosion -- whether on the day of the explosion or sometime thereafter. As to Count II, Judge Bennett opines that the Plaintiffs cannot sustain a trespass claim under Maryland law based solely on an invasion of their property by air particles. Intangible intrusions like smoke, odor, light and noise are not typically actionable under a trespass theory. However, the alleged "blanketing" of the Plaintiffs' properties with a layer of coal dust is more tangible than an invasion by smoke, odor, light, and noise. Construing the Complaint in the light most favorable to the Plaintiffs, the blanketing of their homes in coal dust may be sufficient to interfere with their interest in the exclusive possession of their land. Accordingly, the Plaintiffs have stated a plausible claim for trespass, and CSX's Motion to Dismiss is denied as to Count II. With respect to Count III, Judge Bennett opines that whether the release of toxic chemicals from Curtis Bay constitutes a nuisance depends on the nature of the Defendant's activity and its impact on the Plaintiffs' use and enjoyment of the land, not on how much damage it caused. In this case, where the Plaintiffs claim that their land was contaminated with "carcinogenic chemicals," that the air was profuse with "noxious odors," and that these conditions have not been fully remediated, the character of the nuisance has been plausibly alleged. Accordingly, the Defendants' Motion to Dismiss is denied as to Count III. Regarding Count IV, although the Complaint is light on details regarding the likelihood of the harm, Judge Bennett opines that the ability to mitigate risk, and value to the community, these factors may be developed through discovery. For now, he finds that the Plaintiffs' allegations in support of "the most crucial factor" under Section 520 are enough to state a plausible claim. Accordingly, he denies the Defendant's Motion to Dismiss as to Count IV. As an alternative to dismissing the Complaint, CSX seeks the dismissal of all classwide allegations. The Plaintiffs' claims stem from a single tortious event: the explosion at Curtis Bay that spread coal dust across the class area and contaminated the class members' properties. As alleged in the Complaint, the central questions of liability stemming from this incident are all plausibly susceptible to classwide adjudication -- including whether the activities conducted at Curtis Bay are abnormally dangerous, whether the Defendant was negligent in operating the facility, and whether the explosion and its fallout interfered with class members' rights to exclusive possession of their properties or the use and enjoyment of their land. Judge Bennett opines that pre-certification discovery will reveal whether the class members' damages are so divergent as to require subclass treatment or to preclude certification entirely. For now, as CSX cannot show from the face of the complaint that the Plaintiff cannot and could not meet Rule 23's requirements for certification, its Motion to Dismiss is denied. For the foregoing reasons, Judge Bennett denies the Defendant CSX's Motion to Dismiss. A full-text copy of the Court's June 14, 2023 Memorandum Opinion is available at https://tinyurl.com/5n8kdkyz from Leagle.com. EPIC SYSTEMS: Discriminates Employees Over COVID Vaccine, Suit Says ------------------------------------------------------------------- Victoria ZIMMERMAN and Jeff GREIVELDINGER, on behalf of themselves and all others similarly situated v. EPIC SYSTEMS CORPORATION, Case No. 3:23-cv-00405 (W.D. Wis., June 16, 2023) alleges that Epic engaged in religious discrimination against the Plaintiffs and class members by revoking religious exemptions, and by designing unlawful policies, practices, and processes that systematically denied future requests for religious accommodations from its COVID vaccine requirement. The Plaintiffs contend that rather than providing accommodations, Epic implemented a policy and practices designed to uniformly refuse accommodations and to force employees to abandon or violate their religious beliefs and If employees would not, Epic purged them from the company. The Plaintiffs were employees of Epic who held sincere religious beliefs that prevented them from receiving any COVID vaccine. These employees posed no increased risk to their coworkers or customers. For employees like Mr. Greiveldinger, Epic summarily denied their requests for a religious accommodation exempting them from Epic's vaccine mandate without ever engaging in any interactive process or good-faith effort to determine if a reasonable accommodation was available, says the suit. Others, including Ms. Zimmerman, were informed by Epic leaders that their request for accommodation was granted. But these employees quickly learned that Epic's purported accommodation was a sham and was never intended to be reasonable. Epic leaders imposed pretextual rules intended to humiliate, stigmatize, and coerce religious employees, rather accommodate their beliefs. Epic demoted these employees, altered their positions and job requirements, and took other adverse actions without any legitimate cause or basis. Because of Epic's unlawful actions, Ms. Zimmerman, Mr. Greiveldinger, and class members suffered and continue to suffer economic and other damages in amounts to be proven at trial, including back pay, front pay, emotional distress damages, compensatory damages, punitive damages, and attorneys' fees. Plaintiff Victoria Zimmerman is a former employee of Epic where she worked from August 2012 until November 2021 in Quality Management. Plaintiff Jeff Greiveldinger is a former employee of Epic where he worked from March 2003 until September 2021 in Technical Services. Epic is a healthcare software developer.[BN] The Plaintiffs are represented by: Samuel W. Diehl, Esq. Harry Niska, Esq. Nathan Hopkins, Esq. CROSSCASTLE PLLC 333 Washington Avenue N. Ste 300-9078 Minneapolis, MN 55401 Telephone: (612) 429-8100 Facsimile: (612) 234-4766 E-mail: sam.diehl@crosscastle.com harry.niska@crosscastle.com nathan.hopkins@crosscastle.com FLORIDA POWER: Petition for Writ of Prohibition in Velez Suit OK'd ------------------------------------------------------------------ In the case, Florida Power & Light Company, Petitioner v. Heydi Velez, et al., Respondents, Case No. 3D23-0712 (Fla. Dist. App.), the District Court of Appeal of Florida for the Third District, grants FPL's petition for a Writ of Prohibition based on the trial court's denial of its Motion to Disqualify. The lawsuit is a class action against FPL arising out of power outages during and immediately after Hurricane Irma in 2017. At this stage in the litigation, the trial court has certified the class -- though an appeal of the class certification order remains pending -- and the parties are in the process of providing notice to the class. On March 30, 2023, the trial court held a case management conference to determine what information was needed to notify potential class members of the pending class action. Following the hearing, the court ordered FPL to provide not only information to assist the Plaintiffs in locating and giving notice to the class but also the duration of outage experienced during the relevant time period following Hurricane Irma until such time as full power was declared by FPL to be restored. A few days later, on April 5, the court held another case management conference on various pending motions, all of which were related to class notice. During the hearing, the trial judge explained he had ordered FPL to disclose power outage duration because he was thinking about his own damages model. Neither FPL nor the Plaintiffs had any motions pending related to damages and it is undisputed that the only issue before the trial court was notice to the class. Despite this, the trial judge proceeded to reject the theory of damages the Plaintiffs had set forth in their operative Complaint. According to the Complaint, the Plaintiffs' action does not seek a refund of charges nor does it challenge FPL's rates but, instead, exclusively seeks to recover consequential damages and any other damages awardable as a matter of law for the prolonged periods of power outages resulting from FPL's failure to fulfill its contractual obligation and gross negligence. These damages include but are not limited to loss of perishable goods and food, lost profits, and incurred expenses. Without any urging by the parties, the judge proposed his own damages model and weighed in on what evidence he thought would and would not be reliable. The judge went on to explain that he could foresee problems with the Plaintiffs' consequential damages model based on a conversation he had with his neighbor about the pending class action. The trial judge further compared the instant class action with a wholly unrelated tobacco case he presided over that involved distribution of a settlement fund. Following the April 5 hearing, FPL moved to disqualify the trial judge based on the specific statements outlined. In its motion, FPL argued that these comments crossed the line from judicial neutrality to advocacy for one side and give rise to a reasonable fear that the trial judge is not an impartial arbiter in the case. The trial court denied FPL's Motion to Disqualify as legally insufficient. FPL's Petition for Writ of Prohibition followed. The District Court of Appeals states that it is well-established that a petition for writ of prohibition is the proper method for seeking immediate review of an order denying a motion for disqualification. The standard of review of a trial judge's determination on a motion to disqualify is de novo. It is undisputed that FPL's motion complies with the procedural requirements set forth in Rule 2.330. The only issue is whether the facts alleged are legally sufficient for disqualification. The test for determining the legal sufficiency of a motion for disqualification is whether the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial. The District Court of Appeal's focus is how the message is received and the basis of the feeling. FPL's Motion contains specific statements indicating the trial judge crossed the line from neutral arbiter to active participant in the adversarial process. Although the only issues had to do with giving notice to the class, the trial judge sua sponte ordered FPL to disclose information related to damages. Further, at the April 5 hearing, the judge, without being prompted by either side, drifted into an irrelevant discourse on damages in which he proposed his own damages model. This is particularly troubling given that liability, let alone damages, has yet to be determined. Although the trial judge may have intended his comments to be helpful suggestions for a discussion of damages down the road, the District Court of Appeal does not evaluate the legal sufficiency of FPL's motion from the perspective of the trial judge but rather from the perspective of the party seeking disqualification. The District Court of Appeal, therefore, concludes that the trial judge's comments would place a reasonably prudent person in fear of not receiving a fair and impartial trial. It does not imply that the trial judge would actually be unfair or has an actual prejudice, the District Court of Appeal simply holds that under these circumstances, FPL's motion for disqualification is legally sufficient. Accordingly, it grants FPL's Petition but withholds formal issuance of the Writ as it is confident the trial judge will comply. Order is not final until disposition of timely filed motion for rehearing. A full-text copy of the Court's June 14, 2023 Opinion is available at https://tinyurl.com/3upn9ttr from Leagle.com. Joseph Ianno, Jr. -- joseph.iannojr@fpl.com -- (Juno Beach); Heise Suarez Melville, P.A., and Luis E. Suarez -- lsuarez@hsmpa.com -- and Thomas S. Ward -- tward@hsmpa.com -- Patricia Melville -- ddaggs@hsmpa.com -- Mark J. Heise -- mheise@hsmpa.com -- and Dorian N. Daggs -- ddaggs@hsmpa.com; Boies Schiller Flexner, LLP, and Sashi C. Bach -- sbach@bsfllp.com -- Stuart H. Singer -- ssinger@bsfllp.com -- and Pascual Oliu -- poliu@bsfllp.com -- (Ft. Lauderdale); Squire Patton Boggs (US) LLP, and Digna B. French -- digna.french@squirepb.com -- and Alvin B. Davis -- alvin.davis@squirepb.com -- for the Petitioner. Acosta Law Firm, and Julio C. Acosta -- jacosta@acostalaw.org; Armas Bertran Zincone, and J. Alfredo Armas, Eduardo E. Bertran, and Francesco A. Zincone; Dorta Law, and Gonzalo R. Dorta -- grd@dortalaw.com; MSP Recovery Law Firm, and Alexis Fernandez -- ddiaz@msprecovery.com -- and John H. Ruiz, for the Respondents. GDS HOLDINGS: Bergmann Sues Over Alleged Drop in Share Price ------------------------------------------------------------ LARRY BERGMANN, individually and on behalf of all others similarly situated, Plaintiff v. GDS HOLDINGS LIMITED; WILLIAM WEI HUANG; and DANIEL NEWMAN, Defendants, Case No. Case 2:23-cv-04900 (C.D. Cal., June 21, 2023) is a class action on behalf of persons or entities who purchased or otherwise acquired publicly traded GDS securities between April 12, 2021 and April 3, 2023, inclusive (the "Class Period"), the Plaintiff seeks to recover compensable damages caused by the Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint, the statements contained in Annual Reports of the Defendants filed with the Securities and Exchange Commission ("SEC") were materially false and misleading because they misrepresented and failed to disclose the following adverse facts pertaining to the Company's business, operations and prospects, which were known to the Defendants or recklessly disregarded by them. Specifically, the Defendants made false and misleading statements and failed to disclose that: (1) Defendant Huang had engaged in undisclosed pre-paid forward sale contract transactions as early as May 2020; (2) this presented a risk of Defendant Huang's ownership going below 5% of the Company's outstanding shares; (3) if Huang's ownership dipped below 5%, it would result in a change of control of the Company which, as the Company admitted, could result in disastrous consequences; and (4) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and lacked a reasonable basis at all relevant times, says the suit. The price of GDS ADSs declined by $0.74 per ADS, or 3.99 per cent, to close at $17.80 on April 4, 2023. The next day it declined a further $0.56 per ADS, or 3.14 per cent, to close at $17.24. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common shares, Plaintiff and other Class members have suffered significant losses and damages, the suit added. GDS HOLDINGS LIMITED operates as a leading developer and operator of data centers. The Company offers colocation and managed services, as well as direct private connection to major public cloud platforms. GDS Holdings serves large Internet companies, financial institutions, telecommunications, and IT service providers in China. [BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 Email: lrosen@rosenlegal.com GLAXOSMITHKLINE PLC: Agrees to Settle Zantac Cancer Class Suit --------------------------------------------------------------- Bill McColl of Investopedia reports American depositary receipts (ADRs) of GSK (GSK) jumped close to 5% on June 23, 2023 after the U.K.-based biopharma company said it had reached a settlement in a lawsuit accusing the firm's discontinued heartburn medicine, Zantac, of causing cancer. The drug maker said that the confidential agreement with James Goetz over the case he filed in California means that the trial set to begin July 24 has been dismissed. GSK indicated that the deal "reflects the Company's desire to avoid distraction related to protracted litigation." GSK added that it does not admit liability and will "vigorously defend itself" against any future Zantac lawsuits. Goetz claimed the medicine caused him to develop cancer, and his was to be the first of several Zantac cancer trials GSK faces. The largest number have been filed in Delaware, and hearings are likely in January. Zantac was approved for use in 1983, but the Food and Drug Administration (FDA) pulled all brand name and generic versions off the market in 2020 over concerns that its active ingredient, ranitidine, could degrade over time into a chemical linked to cancer. That prompted a string of lawsuits against GSK and other drug makers that also sold the product. June 23, 2023's gains put ADRs of GSK into positive territory for the year. [GN] HOME DEPOT: Agrees to Settle Wage Class Suit for $72.5M ------------------------------------------------------- Jonathan Stempel of WTVB reports that Home Depot has agreed to pay $72.5 million to end a long-running class-action lawsuit alleging the largest U.S. home improvement retailer underpaid workers in California. The preliminary settlement was filed late on June 22, 2023 in a San Francisco federal court, and requires a judge's approval. Half of the settlement, after taking out legal fees and costs, goes to hourly employees who worked closing shifts and were required to wait off-the-clock after stores were locked. Another 41% goes to employees who were not paid for time needed to collect and put on aprons, and 9% goes to employees who lost pay because Home Depot rounded their clock-in and clock-out times to the nearest quarter hour. The settlement covers more than 272,000 people employed by Home Depot in California since March 8, 2012 and is "fair, reasonable and adequate," the plaintiffs' lawyers said. Home Depot denied wrongdoing, but settled to avoid the burden, cost and uncertainty of litigation, court papers show. The Atlanta-based retailer said on June 23, 2023 that it was glad to settle, so it could focus on serving employees and customers. Lawyers for the plaintiffs did not immediately respond to requests for comment. The lawsuit began in March 2016, and a trial had been scheduled for this year. Lawyers for the plaintiffs plan to seek up to $24.2 million, or one-third of the settlement amount, for legal fees, plus up to $3.5 million for expenses. The case is Utne v Home Depot USA Inc, U.S. District Court, Northern District of California, No. 16-01854. [GN] INDIANA: Denial of Class Cert. Bid in Gierek v. Hospitals Reversed ------------------------------------------------------------------ The Court of Appeals of Indiana affirms in part and reverses in part the trial court's order denying the Indiana Patient's Compensation Fund's motion for partial summary judgment, granting the Hospital's cross-motion for partial summary judgment, and denying the Plaintiffs' motions for class certification in the case, Linda Gierek and Stephen Gierek, on behalf of themselves and all others similarly situated, Appellants-Plaintiffs, and K.W., G.S., L.P., L.W., S.B., S.J., C.D., S.S., E.M., P.H., C.M., A.S., and M.S., Intervenors-Plaintiffs v. Anonymous 1, Anonymous 2, and Anonymous 3, Appellees-Defendants, and Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund, Intervenor-Defendant. Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund, Counter/Cross-Plaintiff v. Linda Gierek and Stephen Gierek, on behalf of themselves and all others similarly situated, Appellants-Counterdefendants, and K.W., G.S., L.P., L.W., S.B., S.J., C.D., S.S., E.M., P.H., C.M., A.S., and M.S., Counterdefendants, Anonymous 1, Anonymous 2, and Anonymous 3, Appellees-Cross-claim Defendants. Cheyanne Bennett, individually and on behalf of all others similarly situated, Plaintiffs v. Anonymous Healthcare Provider 1, Anonymous Healthcare Provider 2, Anonymous Healthcare Provider 3, Anonymous Healthcare Provider 4, and John Doe 1, Defendants, and Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund, Intervenor-Defendant. Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient's Compensation Fund, Counter/Cross-Plaintiff v. Cheyanne Bennett, individually and on behalf of all others similarly situated, Counterdefendants, and Anonymous Healthcare Provider 1, Anonymous Healthcare Provider 2, Anonymous Healthcare Provider 3, Anonymous Healthcare Provider 4, and John Doe 1, Cross-Defendants, Case No. 22A-CT-1225 (Ind. App.). Linda Gierek and over a thousand other patients who underwent surgical procedures at a hospital operated by Anonymous 1, Anonymous 2, and Anonymous 3 (the Hospital) were informed by the Hospital that one of its technicians had failed to complete a step in the procedure for sterilizing certain surgical instruments and that, as a result, the patients may have been exposed to infectious diseases. Linda and her husband Stephen filed a class-action complaint with the trial court and a proposed class-action complaint with the commissioner of the Indiana Department of Insurance (DOI) asserting claims against the Hospital for negligent infliction of emotional distress, negligence, and, in the alternative, medical malpractice. The Giereks also filed motions requesting the certification of two classes, one for the Hospital's patients and one for the patients' spouses. Additionally, the Plaintiffs were permitted to intervene in the Giereks' action, which was consolidated with a later-filed class action brought by Cheyanne Bennett, who filed her own motion for class certification. Where appropriate, the Court of Appeals refers to the Giereks and Bennett collectively as the Plaintiffs. The Indiana Patient's Compensation Fund (PCF) intervened and filed a motion for partial summary judgment asserting that the Indiana Medical Malpractice Act (MMA) does not apply to the Plaintiffs' claims. The Plaintiffs filed statements in support of the PCF's motion. The Hospital filed a cross-motion for partial summary judgment asserting that the MMA does apply to the Plaintiffs' claims. The trial court entered an order denying the PCF's motion for partial summary judgment and granting the Hospital's cross-motion for partial summary judgment, ruling that the MMA applies to the Plaintiffs' claims. The court also denied the Plaintiffs' motions for class certification on the basis that it did not have subject matter jurisdiction to grant them as a preliminary determination under the MMA. In this interlocutory appeal, the Plaintiffs contend that the trial court's rulings are erroneous. Linda had surgery at the Hospital in June 2019. In November 2019, the Hospital sent letters to 1,181 of its surgical patients, including Linda. The letters stated that the Hospital is writing because Linda had a surgical procedure at the Hospital between April and September 2019. During this time, one of its seven surgical instrument sterilization technicians did not complete one step in a multistep sterilization process with certain surgical instruments. The surgical instruments in question were still treated with our usual chemical disinfection and machine sterilization processes which include a wide margin of safety; however, such instruments may or may not have been completely sterile. While the Hospital believes the risk is extremely low, out of the utmost caution, it wants to notify Linda that it is possible that this action may have exposed her to infections such as the hepatitis C virus, hepatitis B virus and human immunodeficiency virus (HIV). To be very conservative, the Hospital wants to offer patients free lab testing services to verify the absence or presence of any of these viruses. The surgical instruments at issue contained straw-like tubes called lumens, which the technician failed to clean out with a brush as required by step six of the nine-step sterilization process. Later that month, Linda filed both a class-action complaint against the Hospital in the trial court under cause number 20D02-1911-CT-243 (Cause 243) and a proposed class-action complaint against the Hospital with the DOI commissioner. She then filed with the trial court a motion requesting certification of a proposed class composed of patients to whom the Hospital had sent a similar letter or to whom the Hospital had not sent such a letter but who underwent surgery or other procedures that involved the use of surgical instruments between April and September 2019 (Proposed Class 1). In February 2020, Linda filed a four-count amended class-action complaint, which added Stephen as both a plaintiff and a representative of a second proposed class of persons who are or were married to members of Proposed Class 1 after the latter underwent surgery (Proposed Class 2). Count 1, asserted on behalf of Proposed Class 1, is captioned as a claim of negligent infliction of emotional distress. Count 1 alleges that the Hospital had "a professional and legal duty to perform surgical procedures in a safe, sterile, reasonable, and professional manner" and that the Hospital breached that duty by using surgical instruments that may not have been properly sterilized, which constituted direct physical impacts to the Plaintiffs. As a direct and proximate result of those breaches, the Plaintiffs were potentially exposed to innumerable infectious diseases, including potential incurable and fatal diseases, and they each suffered extreme and serious emotional distress and trauma as the result of" the Hospital's negligent conduct. Count 2, asserted on behalf of Proposed Class 1, is captioned as a claim of negligence based on the Hospital's use of surgical instruments that may not have been properly sterilized. Count 3, which purports to be asserted only on behalf of Proposed Class 1, is captioned as a medical malpractice claim, pleaded in the alternative to the negligence claims. It alleges that the Hospital's use of surgical instruments that were not properly sterilized failed to meet the applicable standard of medical care; that, as a direct and proximate result of the malpractice, members of Proposed Class 1 suffered and will continue to suffer extreme emotional distress and will incur medical testing and other expenses; and that, as spouses of those members, the members of Proposed Class 2 were potentially exposed to the same innumerable infectious diseases and suffered extreme and serious emotional distress and trauma, and have/will incur medical testing and other expenses as the result of" the Hospital's negligent conduct. Finally, Count 4, asserted on behalf of Proposed Class 2, is captioned as a negligence claim and alleges that the Hospital's aforementioned breaches of its professional and legal duty caused the aforementioned injuries to the members of Proposed Class 2. In March 2020, additional individual plaintiffs were permitted to intervene in the Giereks' action. Later that month, pursuant to Indiana Trial Rule 42(D), the Giereks and the Hospital filed a joint motion to consolidate the Giereks' action with a later-filed class action brought by Bennett under cause number 20D05-2002-CT-25. The trial court consolidated the actions under Cause 243, and the PCF was permitted to intervene. In April 2020, the Giereks filed a supplemental motion requesting certification of Proposed Class 2. Bennett later filed her own motion for class certification. In May 2020, the PCF filed a counterclaim and a cross-claim requesting a judgment declaring that the Giereks' claims arise out of ordinary negligence under common law, and therefore, the MMA does not apply to said claims. The Hospital and the PCF filed a joint motion to stay class certification proceedings pending a ruling on the MMA issue, which the trial court granted in August 2020. In March 2021, the PCF filed a motion for partial summary judgment asserting that the MMA does not apply to the Plaintiffs' claims. The Plaintiffs filed statements in support of the PCF's motion. Later that month, the Hospital filed a cross-motion for partial summary judgment asserting that the MMA does apply to the Plaintiffs' claims. In April 2022, after a hearing, the trial court entered an order denying the PCF's motion and granting the Hospital's cross-motion, concluding that the MMA applies to Plaintiffs' claims. It also denied the Plaintiffs' motions for class certification on the basis that it did not have subject matter jurisdiction to grant them as a preliminary determination under the MMA. The Giereks sought and received permission to bring this discretionary interlocutory appeal of the trial court's order pursuant to Indiana Appellate Rule 14 and filed a notice of appeal. Bennett filed a notice of joinder in the Giereks' appellate brief. The intervenor plaintiffs in the Giereks' action filed a notice of non-participation in this appeal. The PCF does not appeal the trial court's ruling on the MMA issue and asks the Court of Appeals to affirm the court's ruling on the class-certification issue. The Court of Appeals first considers whether the trial court erred in concluding that the MMA applies to the Plaintiffs' claims. The Plaintiffs' complaints allege that the Hospital committed tortious conduct. The contested issue is whether that conduct was malpractice, i.e., whether that conduct was either "health care" or "professional services" that were provided, or should have been provided, by the Hospital to the Plaintiffs. Without question, a surgical procedure is the very essence of "health care" as defined by the MMA: "an act or treatment performed or furnished by a health care provider to a patient during the patient's medical care or treatment." Because the alleged torts are based on health care that was provided by the Hospital to the Plaintiffs, the MMA clearly applies to their Plaintiffs' claims. The Plaintiffs' arguments to the contrary are unconvincing because they rely on either inapplicable premises-liability cases or language that does not appear in the MMA. Accordingly, the Court of Appeals affirms the trial court's ruling on this issue. The Court of Appeals now considers the Plaintiffs' argument that the trial court erred in concluding that it did not have subject matter jurisdiction to grant a motion for class certification as a preliminary determination under the MMA. It concludes that the issue of whether to certify a proposed class is a matter that may be preliminarily determined by motion per Trial Rule 12(D) and -(B)(7). As long as an order granting a motion for class certification does not instruct the medical review panel concerning the evidence that it may consider in reaching its opinion, or the form or substance of its opinion, it would not exceed the scope of the trial court's subject matter jurisdiction under Indiana Code Section 34-18-11-1. Accordingly, the Court of Appeals reverses the trial court's ruling on this issue and remands for a full consideration of the Plaintiffs' motions for class certification. Because the trial court has not yet addressed the merits of the motions, and because the factual and procedural posture of this case may shift at any moment, the Court of Appeals refrains from offering any guidance on the logistics of shepherding a class action through the review panel process. For these reasons, the Court of Appeals holds that the trial court did not err in concluding that the MMA applies to the Plaintiffs' claims. It also holds that the trial court erred in concluding that it did not have subject matter jurisdiction to grant the Plaintiffs' motions to certify a class as a preliminary determination under the MMA. Consequently, it affirms in part, reverses in part, and remands for further proceedings. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/3mhyyjv3 from Leagle.com. Eric S. Pavlack, Colin E. Flora, Pavlack Law, LLC, Indianapolis, Indiana, Attorneys for the Appellants. James L. Hough -- jhough@eichhorn-law.com -- Alyssa Stamatakos -- astamatakos@eichhorn-law.com -- Eichhorn & Eichhorn, LLP, Hammond, Indiana, Attorneys for the Appellees. A. Richard M. Blaiklock -- rblaiklock@lewiswagner.com -- Wade D. Fulford -- wfulford@lewiswagner.com -- Michael D. Heavilon, Lewis Wagner, LLP, Indianapolis, Indiana, ATTORNEYS FOR INTERVENOR COMMISSIONER, INDIANA, DEPARTMENT OF INSURANCE AS, ADMINISTRATOR OF THE INDIANA, PATIENT'S COMPENSATION FUND. Angela M. Smith -- asmith@hallrender.com -- Matthew M. Schappa -- mschappa@hallrender.com -- John D. French -- jfrench@hallrender.com -- Hall Render Killian Heath & Lyman, Indianapolis, Indiana, Attorneys for AMICUS CURIAE, INDIANA HOSPITAL ASSOCIATION. INFORMATION SYSTEMS: Court Dismisses Riley Suit Without Prejudice ----------------------------------------------------------------- In the case, LEIGH RILEY, GERARD DACHE, and HENRY SCHNEIDER, Plaintiffs v. INFORMATION SYSTEMS AUDIT AND CONTROL ASSOCIATION, INC., Defendant, Case Nos. 22 C 4465, 22 C 4644, 22 C 5566 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, grants the Defendant's motions to dismiss for failure to state a claim without prejudice. Information Systems Audit and Control Association, Inc. ("ISACA") controls and operates the Capability Maturity Model Integration ("CMMI Model"), a "best practices" model developed by Carnegie Mellon University and the Software Engineering Institute to assess a company's "CMMI Maturity Level Rating." ISACA sells an appraisal service using the CMMI Model to companies and government agencies. Organizations often consider a company's CMMI Maturity Level Rating in deciding whether to employ an entity. ISACA itself does not, however, actually conduct the appraisal directly; rather, third-party "Certified Lead Appraisers" ("CLA") run the CMMI Model appraisals, and ISACA vets the work for compliance with its standards before accepting the results. The three Plaintiffs -- Riley, Dache, and Schneider -- were CLAs. After ISACA terminated its contracts with each Plaintiff, they initiated separate lawsuits with nearly identical claims alleging antitrust violations under Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act, as well as unjust enrichment. ISACA moved to dismiss each complaint for failure to state a claim. The Clerk of the Court consolidated the three cases before the Court. Judge Kendall considers all three motions together. Judge Kendall states that antitrust discovery -- and litigation generally -- proves expensive. As such, the costs of federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint. Courts, then, must "insist upon" specificity and clarity in antitrust pleadings. The complaints here are deficient in both areas, Judge Kendall opines. ISACA offers several reasons why the collective antitrust claims should be dismissed -- mainly, the Plaintiffs lack antitrust standing and antitrust injury, and the complaint fails to allege any of the necessary elements for violations of the Sherman and Clayton Acts. Judge Kendall focuses on only one fatal defect common to each antitrust count: the failure to allege a relevant product market. She opines that the Plaintiffs do not allege sufficient facts to establish a relevant product market. Moreover, they fail to explain what the CMMI product is, why the product is useful, what market it operates in, what products might have reasonable interchangeability, and -- if the relevant product is simply a company's own product -- how their case falls outside the general rule. The claim for unjust enrichment fares no better. Judge Kendall says unjust enrichment is based on an implied contract, so it does not apply when an actual contract governs the parties' relationship. The three Plaintiffs identify as "contractors of Defendant ISACA's CMMI Certification Business" and declare that the relationship between them and ISACA is clearly founded upon a contract. The conceded existence of a contract decides the case easily. The Plaintiffs cannot recover, as unjust enrichment "does not apply when an actual contract" exists. Given these two deficiencies and other potential issues, ISACA asks that the complaints be dismissed with prejudice. However, Judge Kendall gives the three Plaintiffs a chance to amend their complaints. Doing so, she opines, would not be futile, dilatory, prejudicial, or undertaken in bad faith. They are also proceeding pro se; holding them to professional-lawyer standards of pleading would be unfair and contrary to the spirit of the long-established rule that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. A few gentle reminders for the Plaintiffs if they choose to file amended complaints. As per Federal Rule of Civil Procedure 8, paragraphs in a complaint should have one or two (generally short) sentences. Background information is also necessary. Federal judges are generalists, so assuming familiarity with a particular industry invites confusion. And facts must be paired with a correct understanding of the law. For these reasons, Judge Kendall grants the Defendant's motions to dismiss for failure to state a claim. The dismissal is without prejudice to the filing of an amended complaint or complaints no later than July 5, 2023. If no complaint is filed by that date, the dismissal will convert to one with prejudice. The motion for a class action is dismissed as moot. A full-text copy of the Court's June 14, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/495f83ae from Leagle.com. INTELLIHARTX LLC: Faces Class Suit Over 490,000-Record Data Breach ------------------------------------------------------------------ Steve Alder of The HIPAA Journal reports that a lawsuit has been filed against Intellihartx, LLC, (aka ITx Companies), over a cyberattack by the Clop ransomware group that exploited a vulnerability in Fortra's GoAnywhere Managed File Transfer (MFT) solution. The protected health information of 490,000 patients of its healthcare clients was compromised in the attack in late January. Intellihartx was one of 130 GoAnywhere users to be affected. Intellihartx, a revenue cycle management company, said protected health information was compromised in the January 30, 2023 cyberattack, including names, contact information, insurance information, diagnoses, medications, dates of birth, and Social Security numbers. Affected individuals were notified about the data breach on June 9, 2023, more than 4 months after the discovery of the attack. The lawsuit, Laren Perrone v. Intellihartx, LLC, was filed in the U.S. District Court of the Northern District of Ohio Western Division and alleges the defendant failed to properly secure and safeguard the protected health information of the plaintiff and class members, did not adequately supervise its business associates, vendors, and suppliers, and did not detect the data breach in a timely manner. The lawsuit claims the defendant was aware of the vulnerability on January 29, 2023, so could have prevented the data breach, and also prevented or limited the severity of the breach if it had limited the patient information it shared with its business associates and employed reasonable supervisory measures to ensure that adequate data security practices, procedures, and protocols were being implemented and maintained by its business associates. The lawsuit claims the plaintiff and class members face an imminent, immediate, and continuing increased risk of suffering ascertainable losses from the data breach, including identity theft and other fraudulent misuses of their data, and have and will continue to incur out-of-pocket expenses mitigating the effects of the data breach. The lawsuit does not allege that protected health information has already been misused or that identity theft or other fraud has been experienced. The lawsuit claims the defendant failed to comply with the standards of the Health Insurance Portability and Accountability Act (HIPAA) and FTC guidelines, citing security failures such as a lack of adequate data security systems, practices, and protocols to protect against reasonably anticipated threats or hazards and a failure to mitigate the risks of a data breach. While monetary relief is being sought to cure some of the plaintiff's and class members' injuries, injunctive relief is also sought to ensure the alleged information security issues are corrected to prevent further data breaches in the future. In addition to monetary relief, the lawsuit seeks an order from the court requiring the defendant to fully and accurately disclose the nature of the information that was compromised and to adopt sufficient security practices and safeguards to prevent similar incidents in the future. The plaintiff and class members are represented by Christopher Wiest, Atty at Law PLLC, and Mason Barney ad Tyler Bean of SIRI & GLIMSTAD LLP. [GN] INTERCONTINENTAL TERMINALS: S.D. Texas Denies Class Cert. Bid ------------------------------------------------------------- Tom Orewyler of Baker Botts reports that late on June 21, 2023, a judge in the Southern District of Texas denied class certification in connection with litigation filed against Baker Botts client Intercontinental Terminals Company (ITC), stemming from a March 2019 tank farm fire. The 2019 fire broke out at ITC's terminal facility located in Deer Park, Texas, and burned for several days. Following the incident, hundreds of individuals, businesses, and vessel owners filed lawsuits against ITC alleging various types of damages arising out of the fire. The majority of the lawsuits were consolidated in the Southern District of Texas. In one of those lawsuits, Bryant, plaintiffs sought certification of a putative class of individuals, businesses, schools, and government entities in the surrounding area, claiming damage from particulates released in the fire, including property damage, loss of use and enjoyment, annoyance and inconvenience, and lost wages. If certified, the proposed class would have included approximately 190,000 individuals and thousands of businesses. Magistrate Judge Dena Hanovice Palermo held a two-day hearing in December of last year on class certification. In June 23, 2023's ruling, Judge Palermo agreed with Baker Botts' arguments that the proposed class failed to satisfy the requirements for class certification set forth by Federal Rule 23(b)(3), which mandates that questions of law or fact common to class members predominate over any questions affecting only individual members. Judge Palermo further noted that the Bryant plaintiffs' bifurcated trial plan proposing separate liability and damages phases could not be used to "manufacture predominance." "We are pleased with the Court's decision denying class certification. We have consistently stressed that this case does not meet the high criteria of Rule 23. Class treatment of such individualized claims only would have injected needless confusion into an already complex litigation landscape," said Baker Botts partner Russell Lewis, who is leading the firm's representation of ITC. Last year, Baker Botts obtained summary judgment for ITC on Oil Pollution Act claims brought by another set of plaintiffs and arising out of the closure of the Houston Ship Channel, successfully arguing that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) precluded OPA liability for commingled spills of oil and CERCLA-regulated hazardous substances. The Baker Botts team defending ITC in the Bryant class action was comprised of lawyers in Houston and Washington, D.C., including partners Russell Lewis (Houston), Ben Gonsoulin (Houston), and Joshua Frank (Washington, D.C.); senior counsel Michael Goldberg (Houston); senior associates Kelly Hanen (Houston), Lindsay Buchanan (Houston), and Jennifer Golinsky Baseman (Washington, D.C.); and associates Elizabeth Furlow Malpass (Houston) and Samantha Olson (Washington, D.C.). [GN] INTERLAND INC: Stewart Files Suit in N.D. Illinois -------------------------------------------------- A class action lawsuit has been filed against Interland, Inc. The case is styled as Kendria Stewart, MMS Truckline LLC, Sherdell Mallett, and Grand Mallett Corp., individually and on behalf of others similarly situated v. Enzo Biochem, Inc., Enzo Clinical Labs Inc., Case No. 1:23-cv-03306 (N.D. Ill., May 25, 2023). The nature of suit is stated as Other Statutory Actions. Interland -- https://www.interland-inc.com/ -- is a professional in web hosting and website design that provides websites and web services to small and medium-sized businesses.[BN] The Plaintiffs are represented by: Christopher J. Wilmes, Esq. Clayton Read Pasley, Esq. HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 W. Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100 Email: cwilmes@hsplegal.com tpasley@hsplegal.com The Defendant is represented by: David L. LaPorte, Esq. LAPORTE & ASSOCIATES, P.C. P.O. Box 400 Flossmoor, IL 60422 Phone: (312) 339-8555 Email: dlaportelaw@gmail.com JACKSON COUNTY, MO: Faces Class Suit Over Property Assessment ------------------------------------------------------------- Angie Ricono of KCTV reports that a new class action lawsuit challenges the quality of Jackson County's property assessment. It calls into question if some increases are even legal considering some notices came in the mail after the June 15, 2023 deadline, as required by state statutes. The filing asks a judge to step in and offer injunctive relief. It also calls for a jury trial. The lawsuit was filed by attorney and developer Ken McClain on behalf of Trevor and Amanda Tilton of Odessa and two businesses. The lawsuit is critical of the methodology used by Jackson County to reach new values. It argues the newly built assessment system fails to include sufficient information and there's a lack of physical inspections. It points out that assessments should consider current market conditions. It argues that didn't happen when it came to commercial property. The lawsuit claims Jackson County uniformly increased the value of every non-vacant commercial property with an improvement by 25%. And vacant commercial properties had an across-the-board increase of roughly 50%. KCTV5 has heard from numerous homeowners who are shocked by the large increases in their assessments. Some question if they'll be able to keep their homes. They also question if they can realistically sell when property tax assessments increase so much in one fell swoop. There has been a 30% average increase in Jackson County. The Assessor's Office argues homeowners are seeing large increases because Jackson County real estate has not been assessed with Fair Market Valuations (FMV) for a long time and building costs have increased. The lawsuit is filed against Jackson County Executive Frank White, Assessor Gail McCann Beatty and other members of the Board of Equalization. KCTV5 reached out to Jackson County's public information officer for comment but we have not heard back yet. [GN] JP MORGAN: Remand of Palladino Antitrust Suit to State Court Denied ------------------------------------------------------------------- In the case, JOHN PALLADINO, GARIB KARAPETYAN, STEVE PALLADINO, AND JOHN NYPL, on behalf of themselves and all others similarly situated, Plaintiffs v. JP MORGAN CHASE & CO., JP MORGAN BANK, N.A., BANK OF AMERICA CORPORATION, BANK OF AMERICA, NATIONAL ASSOCIATION, BANK OF AMERICA N.A., WELLS FARGO & COMPANY, WELLS FARGO BANK, N.A., CITIGROUP INC, CITIBANK, N.A., CITIBANK, N.A. (NATIONAL ASSOCIATION), U.S. BANKCORP, US bancorp, U.S. BANK NATIONAL ASSOCIATION, PNC FINANCIAL SERVICES GROUP, INC., PNC, PNC BANK NATIONAL ASSOCIATION, CAPITAL ONE, F.S.B., CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE BANK (USA), NATIONAL ASSOCIATION, CAPITAL ONE NATIONAL ASSOCIATION, BANK OF THE WEST, VISA INC., VISA U.S.A. INC., VISA INTERNATIONAL SERVICE ASSOCIATION, MASTERCARD INCORPORATED, MASTERCARD, Defendants, Case No. 23-CV-1215 (MKB) (E.D.N.Y.), Judge Margo K. Brodie of the U.S. District Court for the Eastern District of New York denies the Plaintiffs' motion to remand the action to state court. Plaintiffs John Palladino, Garib Karapetyan, Steve Palladino and John Nypl commenced the putative antitrust class action on Dec. 30, 2022, in the Superior Court of the City of San Francisco, State of California, against Defendants Visa and MasterCard and banks that issue Visa and MasterCard payment cards that consumers use to purchase goods and services. On Jan. 11, 2023, the Plaintiffs filed an amended Complaint against the same defendants. The Plaintiffs allege on behalf of a putative class of Visa or MasterCard cardholders who are citizens of California and have made retail purchasers in California, that the Defendants conspired to fix the price of credit/debit-card interchange fees charged to consumers' credit/debit-card accounts and fail to disclose the fees charged, in violation of California's Cartwright Act, California Business and Professions Code Sections 16700, 16750, and California's Unfair Competition Law, California Business and Professions Code Section 17200 et seq. They are seeking monetary damages, disgorgement, and injunctive relief. On Jan. 30, 2023, the Defendants timely removed the action to the Northern District of California. The Plaintiffs now move to remand the action to state court and the Defendants oppose the Plaintiffs' motion. The putative class consists of California citizens, who are Visa or MasterCard cardholders and who have used a Visa or MasterCard payment-card to make a purchase transaction from at least Jan. 1, 2004, up until the filing of the action. The Defendants are the Visa and MasterCard payment networks and member banks that issue Visa or MasterCard cards to consumers and also acquire and process the sales transactions. The Plaintiffs allege that the Defendants conspired to fix the price of credit/debit-card fees charged when a consumer uses a payment card to purchase a retail good or a service (the "interchange fees"), harming competition and resulting in increased prices. They contend that they and the putative class members paid, without their knowledge, those interchange fees as direct and indirect purchasers and assert violations of the California Cartwright Act, as well as the California Unfair Competition Law. Freed by California's legislature from under the onerous penumbra of Illinois Brick's federal Sherman Act standing restrictions in federal price-fixing cases, the Plaintiffs filed the Complaint in state court and meticulously included no federal question claims, included no non-citizens as plaintiffs, and named at least two California residents as Defendants. On Jan. 30, 2023, the Defendants removed the action to federal court, alleging: (1) federal jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d), and (2) automatic removal pursuant to the Federal Edge Act of 1919 as amended in 1933, 12 U.S.C. Sections 632, 633. On Feb. 15, 2023, the Judicial Panel on Multidistrict Litigation transferred the matter from the Northern District of New York to the Eastern District of New York to become part of In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720, on the basis that the action involves questions of fact that are common to actions previously transferred to the Eastern District of New York and assigned to Judge Brodie. On Feb. 15, 2023, Visa Inc., Visa International Service Association and Visa U.S.A. Inc. answered the FAC. The Plaintiffs now argue that there is no basis for federal jurisdiction and that the Court should remand the case to state court. Judge Brodie holds that there is no dispute that the Court has jurisdiction under CAFA, and the only dispute is as to whether CAFA's local controversy exception applies, therefore, she limits its discussion to the disputed elements of the local controversy exception. The local controversy exception applies if: (1) more than two-thirds of putative class members are citizens of the state in which the action was filed; (2) at least one defendant is a citizen of the state in which the action was filed and that defendant is a defendant from whom "significant relief" is sought by members of the class and whose conduct forms a "significant basis" of the claims; (3) the "principal injuries resulting from the alleged conduct or any related conduct of each defendant" were incurred in the state in which the action was filed; and (4) no other class action asserting the same or similar factual allegations against any of the defendants have been filed in the last three years. Judge Brodie finds that the Plaintiffs do not satisfy either of the two contested elements and, as a result, the local controversy exception does not apply. She cannot find, by a preponderance of the evidence, that the Plaintiffs have shown that the principal injuries from the alleged conduct, or related conduct, were incurred in California. Moreover, other similar class actions were filed in three years preceding the filing of the instant action. Because the factual allegations in this case are like those in other cases, the local controversy exception does not apply and remand to the state court is inappropriate. Because the Court has jurisdiction under CAFA and the local controversy exception does not apply, Judge Brodie denies the Plaintiffs' motion to remand this action to state court. A full-text copy of the Court's June 14, 2023 Memorandum & Order is available at https://tinyurl.com/ynaau72f from Leagle.com. JPMORGAN CHASE: Seeks Court Approval of Epstein Suit Settlement --------------------------------------------------------------- Lauren del Valle of WSILTV.com reports that attorneys filed a preliminary plan to facilitate a $290 million settlement fund for JPMorgan Chase to compensate victims of Jeffrey Epstein. If approved by a federal judge the settlement will resolve a class action lawsuit first brought on November 2022 alleging that the financial institution where Epstein banked for 15 years facilitated and enabled Epstein's sex trafficking enterprise. The agreed upon settlement first announced by the parties earlier this month may compensate anyone "harmed, injured, exploited, or abused" by Jeffrey Epstein or an associate of his or his sex trafficking from January 1, 1998, to August 10, 2019 - the time frame coinciding with the beginning of Epstein's banking relationship with JPMC and his death although the bank cut ties with him in 2013. The proposed settlement does not put a cap on potential awards to eligible victims -- unlike the settlement plan negotiated by the same plaintiff attorneys in a similar lawsuit with Deutsche Bank, which was recently granted preliminary approval -- that provides approved claimants $75,000 to $5 million in compensation for abuse by Epstein from 2013 until his death in 2019. The class action lawsuit represented by an anonymous Epstein victim also alleged JPMC aided Epstein in evading regulators and prevented authorities from discovering the illegal scheme -- allowing Epstein to increase the size and scale of his access to and control of victims. JPMorgan does not admit any liability or wrongdoing per the settlement. "JPMC is entering into this Stipulation solely to eliminate the burden, expense, and uncertainty of further protracted litigation. For the avoidance of any doubt, JPMC makes no admission of liability, fault, damages, or any form of wrongdoing whatsoever, and this Settlement in no way represents, and may not be construed as, an admission of the merits of any claim," the settlement stipulation says. Attorneys for the parties have suggested Simone Lelchuk oversee the JPMC settlement process as she has already been appointed claims administrator for the Deutsche Bank settlement. Lelchuk also oversaw a claims fund to resolve sexual abuse claim against Harvey Weinstein and affiliated companies. Claimants can see the award money from both bank settlements, though the JPMorgan settlement language notes that any award amount received through the Deutsche Bank settlement will be considered when processing their claim with JPMC. The claim administrator will also consider the "the circumstances, severity, type, and extent of the alleged harm, injury, exploitation, abuse or trafficking, the nature and duration of the relationship with Epstein, any cooperation with government investigations or refusal to cooperate with government investigations or refusal to cooperate with this civil litigation including any convictions relating to Epstein's sex trafficking venture, and the impact of the alleged conduct on the Participating Claimant," according to the settlement plan pending approval. The administrator can evaluate a claimant's credibility and their determination, including a denial, is final under the current plan. The victims also must sign a release barring them from bringing any related litigation against the financial institution and its affiliates in the future. Victims can formally opt out of the class reserving their right to bring their own lawsuit. JPMorgan Chase remains tied up in litigation over its longtime relationship with Epstein in a pending lawsuit brought by the government of the US Virgin Islands. The bank is also pursuing restitution from its former executive Jes Staley, whose close relationship with Epstein is largely to blame for the convicted sex trafficker's continued account at JPMC, according to the cross claim brought by the bank. [GN] KIA MOTORS: Faces Suit Over Visa Fraud, Workers' Exploitation ------------------------------------------------------------- Jared Culver of NumbersUSA reports that Kia is attempting to get a class action lawsuit tossed that alleges visa fraud and exploitation of workers in the little-known TN visa category. The accusations tell a common story in a rarely discussed visa category that was first created in the North American Free Trade Agreement (NAFTA). When President Trump renegotiated that agreement, his Administration chose not to alter the terms of the TN visa in his United States-Mexico-Canada Agreement (USMCA). The lawsuit tells the story of Mexican high-skilled engineers being roped in with promises of high paying white-collar jobs that turned into low pay blue-collar assembly line work. The labor exploitation keeps on rolling on the river. For a little background, the TN Visa applies to nationals from treaty signatories Mexico and Canada. The visa does require employer sponsorship, but the regulations are extremely limited. Basically, the employer must simply provide a letter to Customs and Border Protection (if Canadian) or to the Department of State (if Mexican) attesting that they want to hire the alien for a job provided under the list of approved professions for the visa. These professions include everything from lawyers, to teachers, to dentists. Other than the profession restrictions and the requirement that the employer attest to hiring the alien for one of those professions, there are no labor requirements that attach like with other temporary work visas. There are no requirements for labor certification or for recruiting American workers before seeking foreign workers. Similarly, employers are not required to pay a prevailing wage in the profession, nor is there any numerical cap on the number of TNs allowed into the United States annually. Given what we know about the extensive abuse in more highly regulated visa categories, it is not at all surprising that the largely unregulated TN visa is rife with abuse as well. The allegations in the lawsuit are that Mexican engineers were lured to the United States with a promise of office jobs, and then put on the assembly line for manual labor. This means employers are finding ways to violate visa categories even when the rules are minimal to begin with. While these are allegations that have not been proven in court, they seem plausible when you look at reports of abuse within the category. Centro de los Derechos del Migrante, Inc. (CDM) released a report in 2017 that alleged similar bait-and-switch employment arrangements where alien professionals were promised one job and then forced into manual labor. That report also lists other abuse that we see across the temporary worker categories, including wage theft and illegal recruitment fee collection. There have been other lawsuits alleging similar recruitment of TN professionals for manual labor. So, while we are simply at the pleading stage of the Kia lawsuit, this is not the first time we are hearing of abuse within the category. Many aliens have suffered similar fates. When you mix limited regulations and unlimited numbers and throw in a dash of unscrupulous employers, this type of abuse ensues. It is also another example of how odd it is to hear our business community and Congress bemoan a lack of legal pathways to enter the United States. How many more legal pathways do we need? At the very least, we need to secure the existing pathways before creating more exciting ways to exploit foreign labor. President Trump missed a grand opportunity to introduce reforms or outright eliminate the TN visa during his renegotiation of NAFTA. It is a failure that has vast repercussions for both American and foreign workers. The opportunities to reform TN are limited, given its existence is tied to a treaty, rather than to statute. This is the primary reason that immigration policy should never be created within trade agreements or treaties. Not only does the government largely neglect labor interests in trade agreements, but the ability to amend the requirements of the visa are minimal. We should not barter away labor protections for the benefit of corporate profits. However, the Departments of Labor, State, and Homeland Security should all at least attempt to enforce the meager requirements of the visa to protect foreign professionals and the blue collar workforce they are being defrauded into replacing. One obstacle, as we have noted before, is that the sheer number of foreign nationals being admitted to work in the United States far exceeds the government's capacity to oversee. This is why even in highly regulated visa categories we see extensive exploitation of the most egregious kind. Congress needs to overhaul temporary work visas with an aim of reducing the numbers to a level that can be protected by the existing bureaucracy. In the meantime, the Executive Branch should pay attention to the obvious recurring fraud themes within visa categories and focus on enforcement instead of rubber stamping approvals. When the same common abuse themes keep repeating and the government keeps missing them, it appears that the abuse is a feature, not a bug. [GN] LENDINGTREE LLC: Court Stays Expert Report Deadlines in Lamie Suit ------------------------------------------------------------------ In the case, CHRISTOPHER LAMIE and AMABEL LIN, on behalf of themselves and all others similarly situated, Plaintiffs v. LENDINGTREE, LLC, Defendant, Case No. 3:22-CV-307-FDW-DCK (W.D.N.C.), Magistrate Judge David C. Keesler of the U.S. District Court for the Western District of North Carolina, Charlotte Division, grants the Parties' Joint Notice of Settlement and Request to Stay Deadlines. The matter is before the Court on the Parties Joint Notice of Settlement and Request to Stay Deadlines filed June 7, 2023. This motion has been referred to Judge Keesler pursuant to 28 U.S.C. Section 636(b) and immediate review is appropriate. Having carefully considered the motion and the record, Judge Keesler grants the motion. By the instant filing, the Parties report that they have reached a settlement in principle in the matter and seek a stay of all pending case deadlines for 45 days to allow the Parties to finalize the settlement terms and file a motion for preliminary approval. It appears that their request only directly impacts the expert report deadlines. Judge Keesler commends the mediator, the counsel, and the Parties for their efforts in resolving this matter and will allow the requested relief. However, the Parties are advised that further extensions of deadlines are unlikely to be allowed and if they fail to finalize their Settlement by July 20, 2023, they will be expected to promptly resume and complete discovery. The Plaintiffs will file a Motion for Preliminary Approval of Class Action Settlement on or before July 20, 2023. The expert report deadlines are stayed until otherwise ordered. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/29n3e9jd from Leagle.com. LOUISIANA: Limited Precertification Discovery in AA v. LDH Allowed ------------------------------------------------------------------ In the case, A. A., by and through his mother, P.A., ET AL. v. DR. COURTNEY N. PHILLIPS, in her official capacity, as Secretary of the Louisiana Department of Health, ET AL., Civil Action No. 19-00770-BAJ-SDJ (M.D. La.), Judge Brian A. Jackson of the U.S. District Court for the Middle District of Louisiana grants in part the Plaintiffs' oral motion to conduct limited precertification class discovery. Before the Court is the Plaintiffs' oral motion to conduct limited precertification class discovery, consisting of expert declarations, made at the May 18, 2023 oral argument on the parties' competing positions regarding the meaning of the terms intensive care coordination, crisis services, and intensive behavioral services, and whether these terms can be defined in a manner that produces an ascertainable class under Federal Rule of Civil Procedure 23. Judge Jackson allows the Plaintiffs to conduct limited expert discovery aimed to define the term "intensive behavioral services." Discovery is not needed on the meaning of the terms "intensive care coordination" and "crisis services" because Defendants Dr. Courtney N. Phillips, in her official capacity as Secretary of the Louisiana Department of Health, and the Louisiana Department of Health (collectively "LDH"), now concede that these terms, as currently defined by the Plaintiffs, yield an "identifiable" class. The Plaintiffs initiated the putative class action on Nov. 7, 2019, challenging whether LDH is fulfilling its statutory duty to provide medically necessary mental health interventions to Medicaid-eligible children with diagnosed mental health disorders. As detailed in the Court's prior orders, the Plaintiffs consist of Medicaid-eligible children under the age of 21, diagnosed with mental and behavioral health disorders, for whom intensive home- and community-based behavioral health interventions have been prescribed. The Plaintiffs allege that instead of providing these intensive interventions as required by Title XIX of the Social Security Act, 42 U.S.C.A. Section 1396a (the "Medicaid Act"), LDH offers only basic mental health interventions --medication management and infrequent counseling -- with the result that Plaintiffs remain effectively untreated and, when they inevitably experience mental health crises, are forced to seek emergency care or, worse, psychiatric institutionalization. The Plaintiffs propose to represent a class of similarly situated Medicaid-eligible children spread across the state of Louisiana. Similar lawsuits are being pursued against state agencies across the country and have been certified for class treatment. On May 25, 2021, this Court entered its Class Certification Order, certifying a class consisting of: All Medicaid-eligible youth under the age of 21 in the State of Louisiana (1) who have been diagnosed with a mental health or behavioral disorder, not attributable to an intellectual or developmental disability, and (2) for whom a licensed practitioner of the healing arts has recommended intensive home- and community-based services to correct or ameliorate their disorders. It further defined the term "intensive home and community-based services (IHCBS)" to mean "intensive care coordination, crisis services, and intensive behavioral services and supports that are necessary to correct or ameliorate Plaintiffs' mental illnesses or conditions." Over the Plaintiffs' opposition, the U.S. Court of Appeals for the Fifth Circuit granted LDH's motion for leave to immediately appeal the Court's Class Certification Order. On appeal, LDH challenged every aspect of the Court's Rule 23 certification analysis. The Circuit, however, focused its review on just one element -- ascertainability -- and on Feb. 13, 2023, issued its judgment and mandate vacating the Class Certification Order. The Circuit remanded the case to this Court, with instructions to clarify which services are included in the term IHCBS, leaving for another day LDH's remaining objections to class certification. Consistent with the Circuit's instructions on remand, on Feb. 17, 2023, this Court ordered the parties to meet and confer in good faith to determine whether they could reach a stipulation specifying the behavioral health services included in the terms "intensive care coordination," "crisis services," and "intensive behavioral services." Alternatively, if unable to reach agreement regarding these terms, it ordered the parties to brief their respective positions. Unable to reach agreement, on March 17, 2023, the Plaintiffs submitted their opening brief regarding the meaning of "intensive care coordination," "crisis services," and "intensive behavioral services," taking the position that each of these terms can be defined with reference to "service definitions from the Centers for Medicare and Medicaid Services (hereinafter 'CMS'), the federal agency that oversees Medicaid." On March 31, 2023, LDH submitted its response to the Plaintiffs' proposed definitions, conceding the 'crisis services' refers to 'mobile crisis response.' Further, it complained that the Plaintiffs have not submitted any proof that providers prescribe services called 'intensive behavioral services' to the Louisiana Plaintiffs. On April 7, 2023, the Plaintiffs submitted their reply brief, arguing that LDH's demand for a class definition limited according to therapeutic interventions already provided by LDH impermissibly conflates the issues of ascertainability and liability, because the Medicaid Act expressly guarantees that the Plaintiffs are entitled to their prescribed therapeutic interventions regardless whether or not such services are currently covered under Louisiana's Medicaid plan. On May 18, 2023, the Court heard argument from the parties. The Plaintiffs restated their position that the Court should adopt the proposed definitions of "intensive care coordination," "crisis services," and "intensive behavioral services" set forth in their March 17 brief. As an intermediate alternative, they moved for leave to conduct limited precertification discovery to bolster their proposed definitions with ground-level data, consisting of expert declarations that would more fully describe the services at issue, who they're for, what they do, how they differ from what LDH already provides. LDH, for its part, restated its concerns regarding the Plaintiffs' proposed definitions, and flatly opposed allowing Plaintiffs to conduct discovery. At the conclusion of argument, the Court ordered post-hearing briefs from the parties regarding the Plaintiffs' request for limited discovery. LDH filed its post-hearing brief first, on May 25. Significantly, it affirmed (with absolute clarity this time) that the Plaintiffs' proposed definitions of "intensive care coordination" and "crisis services" each yield an "identifiable" class, and that the parties can "constructively move forward" without additional discovery aimed to flesh out the meaning of these terms. The Plaintiffs' submitted their post-hearing brief on May 26, re-stating their position that they are not seeking the services currently offered by LDH," and, as such, limited expert discovery will clarify the objective criteria for class membership. They specifically propose to obtain a limited number of expert declarations regarding intensive care coordination, crisis services, and intensive behavioral services. These declarations aim to supplement CMS's definitions of these services. The scope of the proposed expert declarations will be limited to explanations of the following: (a) CMS's service definitions; (b) the substance of the services; (c) the children for whom the services are designed and necessary; and (d) how these services differ from services designed for children with less intensive needs. On remand from the Circuit, the sole issue before the Court is whether the Plaintiffs are capable of defining a class that is "clearly ascertainable" -- in other words, one that is defined mechanically by reference to "objective" criteria," and not dependent on an "individualized 'causal' determination on the merits." Judge Jackson determines that the case would benefit from precertification class discovery, as have other class action challenges to Medicaid-funded intensive behavioral health interventions for children, in jurisdictions across the country. He concludes that LDH concedes that the Plaintiffs' proposed definitions of "intensive care coordination" and "crisis services" yield an "identifiable" class. As such, discovery is not required as to these terms. Judge Jackson further determines that limited expert discovery on the issue of the definition of "intensive behavioral services" will aid the Court's assessment of re-certification. As such, the Plaintiffs and LDH will be allowed to conduct limited expert discovery, and the Plaintiffs will be allowed to resubmit their request for class certification/ Accordingly, the Plaintiffs' oral motion to conduct limited precertification discovery made at the May 18, 2023 oral argument is granted in part. The Plaintiffs are permitted to conduct limited expert discovery aimed to define the term "intensive behavioral services" for purposes of this litigation. Their limited precertification discovery will consist of not more than two expert declarations, the scope of which will be limited to explanations of the following: (a) CMS's service definition(s) of the term "intensive behavioral services"; (b) the substance of "intensive behavioral services"; c) the children for whom "intensive behavioral services" are designed and necessary; and (d) how these services differ from services designed for children with less intensive needs. The Plaintiffs will serve their expert declaration(s) on LDH within 30 days of the date of the Order. Within 30 days of the date of service of the Plaintiffs' expert declaration(s), LDH will be permitted to serve the Plaintiffs not more than two rebuttal declarations, limited to the same scope set forth. Within 21 days of receiving LDH's rebuttal declarations (if any), the Plaintiffs will submit a motion to amend the Court's original class certification order to conform the proposed class to the definitions of "intensive care coordination," "crisis services," and "intensive behavioral services" developed on remand from the Circuit. Consistent with the Circuit's instructions on remand, the Plaintiffs' motion to amend will be limited solely to the issue of ascertainability and will not exceed 15 pages. LDH's opposition to the Plaintiffs' motion to amend, if any, will be due within 14 days of receiving the Plaintiffs' motion and will not exceed 15 pages. No reply briefing will be allowed. The deadlines set forth will not be modified absent a showing of good cause and any party's unexcused failure to satisfy the deadlines set forth will result in waiver. A full-text copy of the Court's June 14, 2023 Ruling & Order is available at https://tinyurl.com/fz9ts6w4 from Leagle.com. MAKER ECOSYSTEM: Settles Suit Over "Black Thursday" COVID Crash --------------------------------------------------------------- Shalini Nagarajan of Blockworks reports that a pair of firms operating under the Maker ecosystem has moved to settle for $1.16 million with investors who sought compensation for financial losses suffered after the "Black Thursday" COVID crash in March 2020. Plaintiff Peter Johnson lodged the class action lawsuit one month after the collapse. The case was filed for numerous investors who claimed the Maker Foundation and related entities intentionally misrepresented the risks of collateralized debt positions (CDPs) on the platform, leading to losses totaling $8.3 million. Maker's CDPs (or vaults) allow users to take out overcollateralized DAI loans using crypto such as ether (ETH), but those assets can be liquidated if the value of their collateral slips below a certain point. Johnson said he experienced such losses when ETH tanked up to 45% around Mar. 12, 2020 -- a day dubbed "Black Thursday" -- dropping from $200 to $110. MakerDAO's native token MKR sank about 60% at the same time, while the total crypto market lost nearly one-third of its value. Meanwhile, MakerDAO's dollar-pegged stablecoin DAI jumped up to $1.06 on some exchanges during the Black Thursday chaos. A court filing released on June 22, 2023 showed that both sides reached a settlement agreement, despite the Maker Foundation denying any wrongdoing or legal violations. Blockworks has reached out to MakerDAO for comment. Maker liquidation case was first dismissed Originally, the defendants in the case were the Maker Ecosystem Growth Foundation, the Dai Foundation and Maker Ecosystem Growth Holdings. In February this year, Judge Maxine Chesney of the US District Court in California granted the Maker firms' motion to toss out the lawsuit, but gave the plaintiff about a month to amend the complaint. As a result, a third amended class action was filed -- this time against only Maker Ecosystem Growth Holdings, now known as Metronym. But on Apr. 20, the parties and their lawyers got together for a mediation session and came to an agreement the same day, per court documents. Following this, both parties signed a term sheet to put their agreement in writing. The plaintiff agreed to resolve the matter in exchange for a million-dollar payment. Exact details of the settlement are still subject to court approval. The Maker firm agreed to enter the deal "solely to eliminate the uncertainty, burden and expense of further litigation, and to put the released claims to rest, finally and forever," Johnson's counsel said. [GN] MAMA MANAGEMENT: Sanchez Suit Removed to C.D. California -------------------------------------------------------- Carlos Alonso Sanchez, individually and on behalf of all others similarly situated v. MAMA MANAGEMENT USA, LLC; and DOES 1 through 20, inclusive, Case No. 23STCV06892 was removed from the Superior Court of the State of California for the County of Los Angeles, to the United States District Court for the Central District of California on June 20, 2023, and assigned Case No. 2:23-cv-04868. On March 29, 2023, Plaintiff filed a putative class action complaint alleging nine causes of action for: Failure to Pay Minimum Wages; Failure to Pay Overtime Wages; Failure to Provide Meal Periods; Failure to Permit Rest Breaks; Failure to Reimburse Business Expenses; Failure to Provide Accurate Itemized Wage Statements; Failure to Pay Wages Timely During Employment; Failure to Pay All Wages Due Upon Separation of Employment; and Violation of Business & Professions Code Section.[BN] The Defendant is represented by: Mia Farber, Esq. Michael R. Minguet, Esq. Judy Kang, Esq. JACKSON LEWIS P.C. 725 South Figueroa Street, Suite 2500 Los Angeles, CA 90017-5408 Phone: (213) 689-0404 Facsimile: (213) 689-0430 Email: Mia.Farber@Jacksonlewis.com Michael.Minguet@Jacksonlewis.com Judy.Kang@Jacksonlewis.com MARRIOTT INTERNATIONAL: Baek Sues Over Improper Hotel Fees ---------------------------------------------------------- NINA BAEK; and MEGAN RAMSEY, individually and on behalf of all others similarly situated, Plaintiffs v. MARRIOTT INTERNATIONAL, INC.; COURTYARD MANAGEMENT, LLC.; and MARRIOTT HOTEL SERVICES, LLC, Defendants, Case No. 23STCV14318 (Cal. Sup., Los Angeles Cty., June 21, 2023) alleges that the representations of the Defendant to guests regarding the HWPO Fee are deceptive and confuse guests into believing that the fee goes towards the cost of compliance with the Ordinance and that it is imposed by the City of Los Angeles, when, in fact, it is not. In June 2022, the City of Los Angeles enacted a Hotel Worker Protection Ordinance, which took effect on August 12, 2022. Under the Ordinance, hotels in Los Angeles are required to take a number of steps to protect workers from exploitation, sexual harassment, and sexual assault. To counter sexual harassment and assault, the Ordinance requires hotels to provide workers with personal security devices (also known as panic buttons) as well as paid time off to report violent or threatening conduct. To prevent worker exploitation, the Ordinance sets limits on the amount of square footage hotels can require Room Attendants to clean each day; grants hotel employees the right to decline workdays over ten hours long; and requires that occupied guest rooms be cleaned and sanitized once per day, unless the guest affirmatively declines the service. After the Ordinance went into effect, the Defendants began to impose a new mandatory nightly fee on hotel guests at select Los Angeles-area hotels. Marriott calls the fee a "Hotel Worker Protection Ordinance Costs Surcharge" ("HWPO Fee") and refers to it as a "local fee." The fee is mandatory and non-waivable for guests staying at the hotels. Despite its representation to guests that the HWPO Fee goes toward the cost of compliance with the Ordinance, the sum brought in by the Fee far exceeds the costs of compliance, says the suit. The HWPO Fee is nothing more than a "junk fee" under the guise of "worker protection," directly benefiting Marriott at the expense of their guests. The fee also gives Marriott an unfair advantage over its competitors by enabling it to market rooms at a lower rate, then offset the discount via the hidden HWPO fee, which is added to the total during booking. This allows Marriott to advertise a lower room rate than it actually charges its guests, the suit alleges. MARRIOTT INTERNATIONAL, INC. owns and operates hotels and motels. The Company provides hotel accommodations, luxury suites, car rental, fitness and recreation, pool, internet, and other amenities. [BN] The Plaintiff is represented by: Joshua F. Young, Esq. Benjamin M. O'Donnell, Esq. Mitzi Marquez-Avila, Esq. GILBERT & SACKMAN A LAW CORPORATION 3699 Wilshire Boulevard, Suite 1200 Los Angeles, CA 90010 Telephone: (323) 938-3000 Facsimile: (323) 937-9139 Email: jyoung@gslaw.org bodonnell@gslaw.org mmarquez@gslaw.org MARSHALL & MELHORN: Thiel Files Suit in N.D. Ohio ------------------------------------------------- A class action lawsuit has been filed against Marshall & Melhorn, LLC. The case is styled as Kaitlyn Thiel, individually and on behalf of all others similarly situated v. Marshall & Melhorn, LLC, Case No. 3:23-cv-01222-JRK (N.D. Ohio, June 21, 2023). The nature suit is stated as Other P.I. for Contract Dispute. Marshall Melhorn -- https://www.marshall-melhorn.com/ -- is a full-service law firm.[BN] The Plaintiff is represented by: Gary M. Klinger, Esq. MILBERG COLEMAN PHILLPS GROSSMAN PLLC 227 W. Monroe Street, Suite 2100 Chicago, IL 60606 Phone: (866) 252-0878 Fax: (865) 522-0049 Email: gklinger@milberg.com MARTEN TRANSPORT: Agrees to Settle Class Suit Over Data Breach -------------------------------------------------------------- Emily Garcia of Bloomberg Law reports that Marten Transport Ltd. agreed to settle a class action suit over a data breach that may have leaked the personal information of hundreds of thousands of job applicants to the company, according to a June 23, 2023 court filing. Scott Linman brought the suit in the US District Court for the Western District of Wisconsin, alleging that he had suffered injury trying to mitigate his risk of identify theft in the aftermath of the breach. Linman applied for a job with Marten in 2018. On his application, he was required to provide Marten with sensitive personal information, including his date of birth. [GN] MARTEN TRANSPORT: Parties Seek More Time for Class Cert Briefing ---------------------------------------------------------------- In the class action lawsuit captioned as SCOTT LINMAN, on behalf of himself and all others similarly situated, v. MARTEN TRANSPORT, LTD. Case No. 3:22-cv-00204-jdp (W.D. Wisc.), the Parties ask the Court to enter an order extending the briefing schedule for class certification, to permit the Defendant 45 days to file an opposition to the Plaintiff's motion (which would remain due by June 30, 2023), and the Plaintiff 30 days to file a reply. The Parties are not requesting the Court extend the deadline for class certification motions itself, nor any other deadlines in this case (including discovery, summary judgment, pre-trial submissions, or trial). Rather, their proposal is a compromise of a dispute regarding the appropriate timing for expert disclosures and because the Parties have scheduled a private mediation for June 20, 2023, with an experienced data breach class action mediator, so seek to coordinate class certification briefing with the mediation process. Marten Transport is a largest Refrigerated Truckload, Intermodal and Brokerage provider in the U.S. Canada and Mexico. A copy of the Parties' motion dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3qZov6J at no extra charge.[CC] The Plaintiff is represented by: M. Anderson Berry, Esq. CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORP. 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 239-4778 E-mail: aberry@justice4you.com - and - Terence R. Coates, Esq. MARKOVITZ, STOCK & DEMARCO, LLC 119 East Court Street, Suite 530 Cincinnati, OH 45202 Telephone: (513) 651-3700 E-mail: tcoates@msdlegal.com - and - Anne T. Regan, Esq. Nathan D. Prosser, Esq. HELLMUTH & JOHNSON PLLC 8050 West 78th Street Edina, MN 55439 Telephone: (952) 941-4005 E-mail: aregan@hjlawfirm.com nprosser@hjlawfirm.com The Defendant is represented by: Jordan O'Donnell, Esq. MULLEN COUGHLIN 426 W. Lancaster Avenue, Suite 200 Devon, PA 19333 Telephone: (267) 930-4106 E-mail: jsodonnell@mullen.law MAXIMUM HUMAN PERFORMANCE: Luis Files ADA Suit in S.D. New York --------------------------------------------------------------- A class action lawsuit has been filed against Maximum Human Performance, LLC. The case is styled as Kevin Yan Luis, individually and on behalf of all others similarly situated v. Maximum Human Performance, LLC, Case No. 1:23-cv-05172-JHR-JW (S.D.N.Y., June 19, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Maximum Human Performance (MHP) -- https://mhpstrong.com/ -- is a leading sports nutrition and weight management company whose brands include MHP, MuscleMeds and Fit & Lean.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com MAXUM INDEMNITY: Court OK's Bid to Enforce Settlement in Henry Suit ------------------------------------------------------------------- In the class action lawsuit captioned as BRANDON HENRY, ET AL., V. MAXUM INDEMNITY COMPANY, ET AL., Case No. 2:20-cv-02995-WBV-JVM (E.D. La.), the Hon. Judge Janis Van Meerveld entered an order granting the motion to enforce settlement and to dismiss all claims with prejudice. The Court finds a valid and enforceable settlement agreement on the following terms: 1. The confidential payment amounts and methods laid out in the January 4, 2023, term sheet. 2. All three lawsuits will be dismissed with prejudice. 3. The Plaintiffs' counsel must obtain signed releases from all 148 plaintiffs. The Court finds that the plaintiffs will meet their obligation to provide signed releases even if the releases are signed by their counsel, properly authorized via a signed mandate on the form presented by plaintiffs in support of their motion, subject to any particular succession requirements that may apply. The Court finds that the scope of the settlement extends only to the Law Firm the Defendants' handling of the plaintiffs' Subsistence Claims; however, the settlement does include release of the employees of the Law Firm the Defendants. Prior to 2010, the plaintiffs in this litigation caught and harvested seafood from the Louisiana coastal areas to sustain their basic personal and family dietary, economic, and security needs. They claim that following the oil spill caused by the BP Deepwater Horizon explosion on April 20, 2010 (the "BP Oil Spill"), they were unable to continue catching and harvesting fish because of fishing closures. As a result of the BP Oil Spill, litigation proceeded in the United States District Court for the Eastern District of Louisiana with claimants asserting many different kinds of damages, from "subsistence damages," to personal injuries suffered during the cleanup efforts. Maxum Indemnity operates as an insurance company. The Company offers property, casualty, inland marine, and liabilities insurance services. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/431H4V4 at no extra charge.[CC] MCCORMICK & COMPANY: Faces Salvaggio Suit Over Peppers' False Ads ----------------------------------------------------------------- Joseph Salvaggio, individually and on behalf of all others similarly situated v. McCormick & Company, Incorporated, Case No. 6:23-cv-06334 (W.D.N.Y., June 18, 2023) alleges that the Defendant's peppers described as "New Mexico Chile Pods" promoted as "Authentic - The Original and Preferred For More than 30 Years" under the El Guapo brand (Product) is deceptively misdescriptive because the Product is not grown and harvested in New Mexico. The Plaintiff alleges that despite what appears to be a "seal" on the Product's front label, this is not the New Mexico Certified Chile Certification Mark, but a self-designated indication describing it as "authentic." Neither El Guapo or McCormick are registered as licenses with the NMCA. A review of customs import data reveals the Defendant and/or its subsidiaries import large volumes of chili peppers of the type that are often sold as "New Mexico" chili peppers. The fine print of "Packed in USA" in the lower left corner of its back packaging is a hint that the chili peppers were imported from outside of New Mexico but packaged in the United States, the Plaintiff claims. The value of the Product that the Plaintiff purchased was materially less than its value as represented by the Defendant. As a result of the alleged false and misleading representations, the Product is sold at a premium price, $2.09 for 2.5 oz, excluding tax and sales. The Plaintiff seeks certification of the following classes: New York Class: All persons in the State of New York who purchased the Product during the statutes of limitations for each cause of action alleged; Consumer Fraud Multi-State Class: All persons in the States of South Dakota, Utah, Idaho and West Virginia who purchased the Product during the statutes of limitations for each cause of action alleged. Mr. Salvaggio is a citizen of Livonia, Livingston County, New York. He purchased the Product between 2020 and the present. The Defendant owns and controls the nationally acclaimed El Guapo brand of spices and seasonings through its ownership and control of Mojave Foods Corp.[BN] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com - and – James Chung, Esq. JAMES CHUNG OFFICE OF LAW 4322 216th St. Bayside NY 11361 Telephone: (718) 461-8808 E-mail: jchung_77@msn.com MCG HEALTH: Faces Class Suit Over Alleged Data Breach ----------------------------------------------------- John Woolley of Bloomberg Law reports that MCG Health LLC must still face some consumer and data protection claims in connection to a data breach involving the private information of approximately 1.1 million people, a Washington federal court ruled. Twenty plaintiffs across 10 states sued MCG in a proposed class action last year alleging the health consulting company acted negligently, breached contractual obligations, and violated several state laws when an unauthorized individual gained access to information stored in the company's computer network. [GN] MDL 2262: Discovery in Schwab Short-Term v. BoA Due April 4, 2024 ----------------------------------------------------------------- In the class action lawsuit captioned as Schwab Short-Term Bond Market Fund et al., v. Bank of America Corporation et al., Case No. 1:11-cv-06409 (S.D.N.Y., Filed Sept. 14, 2011), the Hon. Judge Naomi Reice Buchwald entered a scheduling order as follows: -- Deadline for substantial completion Sept. 7, 2023 of Defendants rolling production of all document discovery relating to the Upstream Issues and class certification in the OTC action: -- Close of fact discovery (including April 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Close of expert discovery (including Sept. 13, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline to file summary judgment motions Oct. 4, 2024 on the Upstream Issues, Deadline for Plaintiffs to file motion to certify the OTC class with respect to the Foreign Defendants, Deadline to file motions to exclude experts concerning the Upstream Issues and OTC class certification: -- Deadline for service of privilege logs, Oct. 10, 2023 if any, concerning the Upstream Issues and class certification in the OTC action: -- Deadline to serve Hague requests to obtain Oct. 23, 2023 testimony abroad concerning the Upstream Issues or class certification in the OTC Action: -- Deadline for parties to propound Jan. 19, 2024 interrogatories and RFAs concerning the Upstream Issues or class certification in The OTC action: -- Deadline to notice fact depositions Feb. 2, 2024 concerning the Upstream Issues or class certification in the OTC action: -- Close of fact discovery (including Feb. 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline for parties to serve April 19, 2024 opening expert reports concerning the Upstream Issues and OTC class certification: -- Deadline for parties to serve rebuttal June 18, 2024 Expert reports concerning the Upstream Issues and OTC class certification: The suit alleges violation of the Securities Exchange Act and Racketeering (RICO) Act. The Schwab Short-Term case is consolidated in Libor-Based Financial Instruments Antitrust Litigation MDL No. 2262. The Plaintiffs argue that their actions involve a primarily local transaction between an Ohio business and its local bank, and that the action does not involve any antitrust claims. These arguments are unconvincing. A review of the Cicchini Enterprises complaint demonstrates that the action shares multiple issues with actions already in the MDL concerning alleged manipulation of the London Interbank Offered Rate (Libor), the Court says. The Bank of America Corporation is an American multinational investment bank and financial services holding company headquartered at the Bank of America Corporate Center in Charlotte, North Carolina, with investment banking and auxiliary headquarters in Manhattan. A copy of the Court's order dated June 21, 2023 is available from PacerMonitor.com at https://bit.ly/46s416J at no extra charge.[CC] MDL 2262: Fact Discovery in Antitrust Litigation Due April 4, 2024 ------------------------------------------------------------------ In the class action lawsuit re: Libor-Based Financial Instruments Antitrust Litigation, Case No. 1:11-md-02262 (S.D.N.Y., Filed Aug. 12, 2011), the Hon. Judge Naomi Reice Buchwald entered a scheduling order as follows: -- Deadline for substantial completion Sept. 7, 2023 of Defendants rolling production of all document discovery relating to the Upstream Issues and class certification in the OTC action: -- Close of fact discovery (including April 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Close of expert discovery (including Sept. 13, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline to file summary judgment motions Oct. 4, 2024 on the Upstream Issues, Deadline for Plaintiffs to file motion to certify the OTC class with respect to the Foreign Defendants, Deadline to file motions to exclude experts concerning the Upstream Issues and OTC class certification: -- Deadline for service of privilege logs, Oct. 10, 2023 if any, concerning the Upstream Issues and class certification in the OTC action: -- Deadline to serve Hague requests to obtain Oct. 23, 2023 testimony abroad concerning the Upstream Issues or class certification in the OTC Action: -- Deadline for parties to propound Jan. 19, 2024 interrogatories and RFAs concerning the Upstream Issues or class certification in The OTC action: -- Deadline to notice fact depositions Feb. 2, 2024 concerning the Upstream Issues or class certification in the OTC action: -- Close of fact discovery (including Feb. 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline for parties to serve April 19, 2024 opening expert reports concerning the Upstream Issues and OTC class certification: -- Deadline for parties to serve rebuttal June 18, 2024 Expert reports concerning the Upstream Issues and OTC class certification: The suit alleges violation of the Securities Exchange Act and Racketeering (RICO) Act. The case is consolidated in Libor-Based Financial Instruments Antitrust Litigation MDL No. 2262. The Plaintiffs argue that their actions involve a primarily local transaction between an Ohio business and its local bank, and that the action does not involve any antitrust claims. These arguments are unconvincing. A review of the Cicchini Enterprises complaint demonstrates that the action shares multiple issues with actions already in the MDL concerning alleged manipulation of the London Interbank Offered Rate (Libor), the Court says. The Bank of America Corporation is an American multinational investment bank and financial services holding company headquartered at the Bank of America Corporate Center in Charlotte, North Carolina, with investment banking and auxiliary headquarters in Manhattan. A copy of the Court's order dated June 21, 2023 is available from PacerMonitor.com at https://bit.ly/3JE7NjE at no extra charge.[CC] MDL 2262: Fact Discovery in Community v. BoA Due April 4, 2024 -------------------------------------------------------------- In the class action lawsuit captioned as Community Bank & Trust v. Bank of America Corporation et al., Case No. 1:12-cv-04205 (S.D.N.Y., Filed May 25, 2012), the Hon. Judge Naomi Reice Buchwald entered a scheduling order as follows: -- Deadline for substantial completion Sept. 7, 2023 of Defendants rolling production of all document discovery relating to the Upstream Issues and class certification in the OTC action: -- Close of fact discovery (including April 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Close of expert discovery (including Sept. 13, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline to file summary judgment motions Oct. 4, 2024 on the Upstream Issues, Deadline for Plaintiffs to file motion to certify the OTC class with respect to the Foreign Defendants, Deadline to file motions to exclude experts concerning the Upstream Issues and OTC class certification: -- Deadline for service of privilege logs, Oct. 10, 2023 if any, concerning the Upstream Issues and class certification in the OTC action: -- Deadline to serve Hague requests to obtain Oct. 23, 2023 testimony abroad concerning the Upstream Issues or class certification in the OTC Action: -- Deadline for parties to propound Jan. 19, 2024 interrogatories and RFAs concerning the Upstream Issues or class certification in The OTC action: -- Deadline to notice fact depositions Feb. 2, 2024 concerning the Upstream Issues or class certification in the OTC action: -- Close of fact discovery (including Feb. 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline for parties to serve April 19, 2024 opening expert reports concerning the Upstream Issues and OTC class certification: -- Deadline for parties to serve rebuttal June 18, 2024 Expert reports concerning the Upstream Issues and OTC class certification: The suit alleges violation of the Securities Exchange Act and Racketeering (RICO) Act. The Community case is consolidated in Libor-Based Financial Instruments Antitrust Litigation MDL No. 2262. The Plaintiffs argue that their actions involve a primarily local transaction between an Ohio business and its local bank, and that the action does not involve any antitrust claims. These arguments are unconvincing. A review of the Cicchini Enterprises complaint demonstrates that the action shares multiple issues with actions already in the MDL concerning alleged manipulation of the London Interbank Offered Rate (Libor), the Court says. The Bank of America Corporation is an American multinational investment bank and financial services holding company headquartered at the Bank of America Corporate Center in Charlotte, North Carolina, with investment banking and auxiliary headquarters in Manhattan. A copy of the Court's order dated June 21, 2023 is available from PacerMonitor.com at https://bit.ly/433Qrnb at no extra charge.[CC] MDL 2262: Fact Discovery in ITI v. BoA Due April 4, 2024 -------------------------------------------------------- In the class action lawsuit captioned as Independence Trading Inc. v. Bank of America Corporation et al., Case No. 1:11-cv-04736 (S.D.N.Y., Filed July 8, 2011), the Hon. Judge Naomi Reice Buchwald entered a scheduling order as follows: -- Deadline for substantial completion Sept. 7, 2023 of Defendants rolling production of all document discovery relating to the Upstream Issues and class certification in the OTC action: -- Close of fact discovery (including April 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Close of expert discovery (including Sept. 13, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline to file summary judgment motions Oct. 4, 2024 on the Upstream Issues, Deadline for Plaintiffs to file motion to certify the OTC class with respect to the Foreign Defendants, Deadline to file motions to exclude experts concerning the Upstream Issues and OTC class certification: -- Deadline for service of privilege logs, Oct. 10, 2023 if any, concerning the Upstream Issues and class certification in the OTC action: -- Deadline to serve Hague requests to obtain Oct. 23, 2023 testimony abroad concerning the Upstream Issues or class certification in the OTC Action: -- Deadline for parties to propound Jan. 19, 2024 interrogatories and RFAs concerning the Upstream Issues or class certification in The OTC action: -- Deadline to notice fact depositions Feb. 2, 2024 concerning the Upstream Issues or class certification in the OTC action: -- Close of fact discovery (including Feb. 4, 2024 depositions) concerning the Upstream Issues and class certification in the OTC action: -- Deadline for parties to serve April 19, 2024 opening expert reports concerning the Upstream Issues and OTC class certification: -- Deadline for parties to serve rebuttal June 18, 2024 Expert reports concerning the Upstream Issues and OTC class certification: The suit alleges violation of the Securities Exchange Act and Racketeering (RICO) Act. The Independence case is consolidated in Libor-Based Financial Instruments Antitrust Litigation MDL No. 2262. The Plaintiffs argue that their actions involve a primarily local transaction between an Ohio business and its local bank, and that the action does not involve any antitrust claims. These arguments are unconvincing. A review of the Cicchini Enterprises complaint demonstrates that the action shares multiple issues with actions already in the MDL concerning alleged manipulation of the London Interbank Offered Rate (Libor), the Court says. The Bank of America Corporation is an American multinational investment bank and financial services holding company headquartered at the Bank of America Corporate Center in Charlotte, North Carolina, with investment banking and auxiliary headquarters in Manhattan. A copy of the Court's order dated June 21, 2023 is available from PacerMonitor.com at https://bit.ly/44q8LYH at no extra charge.[CC] MDL 2977: Court OK's Filing of Class Cert Reply Under Seal in Koch ------------------------------------------------------------------ In the class action lawsuit Re: Sanderson and Koch Broiler Chicken Grower Litigation, Case No. 6:20-cv-00478 (E.D. Okla., Filed Dec. 21, 2020), the Hon. Judge Cecilia M. Romero entered an order granting the Plaintiffs' motion to provisionally file their class certification reply papers under seal. The nature of suit states Other Statutes -- Antitrust. The Koch suit is consolidated in Broiler Chicken Grower Antitrust Litigation (No. II) MDL 2977. The Lead case is Case No. 6:20-md-02977. The Court authorizes the electronic filing of documents under seal by counsel. The Clerk shall grant the ability to view sealed documents filed in this case to all attorneys who have entered an appearance in the case and whose appearance has not been terminated. The actions in the MDL share factual questions arising from allegations that defendants agreed not to compete for "Broiler Grow-Out Services, " i.e., the services of farmers (referred to by the parties as Growers) who raise broiler chickens under contracts with chicken processors such as defendants. Specifically, plaintiffs allege an agreement among defendants not to recruit or contract with Growers contracted by another defendant or co-conspirator. They also challenge as anticompetitive defendants' submission of cost information to Agri Stats—a third party—for use in benchmarking reports. The Plaintiffs in each of the actions assert the same claims under the Sherman Act and the Packers and Stockyard Act with respect to the same putative nationwide classes of Growers. Tyson Foods is an American multinational corporation based in Springdale, Arkansas that operates in the food industry. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3PuaU1A at no extra charge.[CC] MDL 2977: Court OK's Filing of Class Cert Reply Under Seal in Mason ------------------------------------------------------------------- In the class action lawsuit captioned as Mason, et al., v. Tyson Foods, Inc. et al., Case No. 6:21-cv-00033 (E.D. Okla., Filed Feb. 1, 2021), the Hon. Judge Cecilia M. Romero entered an order granting the Plaintiffs' motion to provisionally file their class certification reply papers under seal. The nature of suit states Other Statutes -- Antitrust. The Mason suit is consolidated in Broiler Chicken Grower Antitrust Litigation (No. II) MDL 2977. The Lead case is Case No. 6:20-md-02977. The Court authorizes the electronic filing of documents under seal by counsel. The Clerk shall grant the ability to view sealed documents filed in this case to all attorneys who have entered an appearance in the case and whose appearance has not been terminated. The actions in the MDL share factual questions arising from allegations that defendants agreed not to compete for "Broiler Grow-Out Services, " i.e., the services of farmers (referred to by the parties as Growers) who raise broiler chickens under contracts with chicken processors such as defendants. Specifically, plaintiffs allege an agreement among defendants not to recruit or contract with Growers contracted by another defendant or co-conspirator. They also challenge as anticompetitive defendants' submission of cost information to Agri Stats—a third party—for use in benchmarking reports. The Plaintiffs in each of the actions assert the same claims under the Sherman Act and the Packers and Stockyard Act with respect to the same putative nationwide classes of Growers. Tyson Foods is an American multinational corporation based in Springdale, Arkansas that operates in the food industry. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/44iGgw0 at no extra charge.[CC] MDL 2977: Filing of Class Cert Reply Under Seal in Colvin OK'd -------------------------------------------------------------- In the class action lawsuit captioned as Colvin v. Tyson Foods, Inc. et al., Case No. 6:20-cv-00480 (E.D. Okla., Filed Dec. 21, 2020), the Hon. Judge Cecilia M. Romero entered an order granting the Plaintiffs' motion to provisionally file their class certification reply papers under seal. The nature of suit states Other Statutes -- Antitrust. The Colvin suit is consolidated in Broiler Chicken Grower Antitrust Litigation (No. II) MDL 2977. The Lead case is Case No. 6:20-md-02977. The Court authorizes the electronic filing of documents under seal by counsel. The Clerk shall grant the ability to view sealed documents filed in this case to all attorneys who have entered an appearance in the case and whose appearance has not been terminated. The actions in the MDL share factual questions arising from allegations that defendants agreed not to compete for "Broiler Grow-Out Services, " i.e., the services of farmers (referred to by the parties as Growers) who raise broiler chickens under contracts with chicken processors such as defendants. Specifically, plaintiffs allege an agreement among defendants not to recruit or contract with Growers contracted by another defendant or co-conspirator. They also challenge as anticompetitive defendants' submission of cost information to Agri Stats—a third party—for use in benchmarking reports. The Plaintiffs in each of the actions assert the same claims under the Sherman Act and the Packers and Stockyard Act with respect to the same putative nationwide classes of Growers. Tyson Foods is an American multinational corporation based in Springdale, Arkansas that operates in the food industry. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/44kXhG9 at no extra charge.[CC] MDL 2977: Filing of Class Cert Reply Under Seal OK'd in McEntire ---------------------------------------------------------------- In the class action lawsuit captioned as McEntire, et al., v. Tyson Foods, Inc. et al., Case No. 6:20-cv-00479 (E.D. Okla., Filed Dec. 21, 2020), the Hon. Judge Cecilia M. Romero entered an order granting the Plaintiffs' motion to provisionally file their class certification reply papers under seal. The nature of suit states Other Statutes -- Antitrust. The McEntire suit is consolidated in Broiler Chicken Grower Antitrust Litigation (No. II) MDL 2977. The Lead case is Case No. 6:20-md-02977. The Court authorizes the electronic filing of documents under seal by counsel. The Clerk shall grant the ability to view sealed documents filed in this case to all attorneys who have entered an appearance in the case and whose appearance has not been terminated. The actions in the MDL share factual questions arising from allegations that defendants agreed not to compete for "Broiler Grow-Out Services," i.e., the services of farmers (referred to by the parties as Growers) who raise broiler chickens under contracts with chicken processors such as defendants. Specifically, plaintiffs allege an agreement among defendants not to recruit or contract with Growers contracted by another defendant or co-conspirator. They also challenge as anticompetitive defendants' submission of cost information to Agri Stats—a third party—for use in benchmarking reports. The Plaintiffs in each of the actions assert the same claims under the Sherman Act and the Packers and Stockyard Act with respect to the same putative nationwide classes of Growers. Tyson Foods is an American multinational corporation based in Springdale, Arkansas that operates in the food industry. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3JwLgVX at no extra charge.[CC] MEADOWS AT COUNTRY PLACE: Jeffries Files Suit in Cal. Super. Ct. ---------------------------------------------------------------- A class action lawsuit has been filed against The Meadows at Country Place, LLC, et al. The case is styled as Marichu Jeffries, on behalf of herself, all others similarly situated, and on behalf of the general public v. G The Meadows at Country Place, LLC, Does 1-100, Case No. 23CV003530 (Cal. Super. Ct., Sacramento Cty., June 21, 2023). The case type is stated as "Other Employment Complaint Case." The Meadows at Country Place -- https://themeadowsatcountryplace.com/ -- is an assisted living facility in Sacramento, California.[BN] MEDLINE INDUSTRIES: Polousy Suit Removed to E.D. California ----------------------------------------------------------- The case captioned as Jeyson Polousy, individually and on behalf of all others similarly situated v. MEDLINE INDUSTRIES, LP, an Illinois Limited Partnership; RANDSTAD NORTH AMERICA, INC., a Delaware Corporation and DOES 1-50, inclusive, Case No. STK-CV-UOE-2023-2954 was removed from the San Joaquin County Superior Court, to the United States District Court for the Eastern District of California on June 14, 2023, and assigned Case No. 1:23-at-00508. On March 27, 2023, Plaintiff filed a Class Action which asserts the following eight causes of action: Failure to Pay Wages Including Overtime as Required by Labor Code; Failure to Provide Meal Periods as Required by Labor Code; Failure to Provide Rest Periods as Required by Labor Code; Failure to Pay Timely Wages Required by Labor Code; Failure to Timely Pay Wages During Employment Required by Labor Code; Failure to Provide Accurate Itemized Wage Statements as Required by Labor Code; Failure to Indemnify Necessary Business Expenses as Required by Labor Code; Violation of Business & Professions Code.[BN] The Defendant is represented by: Steven A. Groode, Esq. LITTLER MENDELSON, P.C. Treat Towers 1225 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Phone: 925.932.2468 Fax: 925.946.9809 Email: sgroode@littler.com - and - Jannine E. Kranz, Esq. LITTLER MENDELSON, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067-3107 Phone (310) 553-0308 Fax (310) 553-5583 Email: jkranz@littler.com MENARD INC: First Amended Scheduling Class Cert. Order Entered -------------------------------------------------------------- In the class action lawsuit captioned as GLENN SHOEMAKER, on behalf of himself and all others similarly situated, v. MENARD, INC., DISSTON COMPANY, and GINO DEVELOPMENT, INC., Case No. 2:22-cv-04089-MDH (W.D. Mo.), the Hon. Judge Douglas Harpool_ entered a first amended scheduling class certification order: 1. All Motions related to Class November 13, 2023 Discovery shall be filed by: 2. All pre-trial discovery as to December 11, 2023 class certification shall be completed by: 3. The Plaintiff shall file all December 11, 2023. motions seeking class certification by: 4. The Defendant shall file any January 11, 2024. responsive motions objecting to class certification by: 5. The Plaintiff will designate any September 11, 2023 expert witnesses as to class certification by: 6. The Defendants will designate November 13, 2023 any expert witnesses as to class certification by: Menards is an American home improvement retail company. A copy of the Court's order dated June 6, 2023, is available from PacerMonitor.com at https://bit.ly/3JmHNsZ at no extra charge.[CC] MERCEDES-BENZ USA: Capazzi Sues Over Failure to Honor Warranty -------------------------------------------------------------- Robert Capazzi, individually and on behalf of others similarly situated v. MERCEDES-BENZ USA, LLC, Case No. 2023CV380681 (Ga. Super. Ct., Fulton Cty., May 25, 2023), is brought arising from Mercedes's failure to honor its warranty obligations with regard to new vehicles it sells throughout the United States. Mercedes has received hundreds of reports of a defective navigation system in its new vehicles. These defects are mission-critical—the navigation system directs drivers to the wrong locations, will not recognize voice commands, suffers from other failures, or does not work at all. Mercedes has acknowledged these problems, releasing a series of publicly-available technical bulletins that describe the multitude of problems and provide some suggested solutions, as well as initiating a service campaign to make fixes to some of the vehicles in its fleet. These programs have not fixed the critical deficiencies in the navigation system. The Plaintiff, owner of a Mercedes S 560 Coupe, has experienced all of the aforementioned problems. The navigation system directed Plaintiff's vehicle to the wrong location in some instances, would not recognize voice commands, and in some instances simply failed to work at all. Given the repeated unsuccessful attempts to repair the vehicles of Plaintiff and class members, Mercedes is obligated to replace the defective navigation units on all affected vehicles that are within the warranty period. Mercedes has refused to do that. The Plaintiff, on behalf of himself and others similarly situated, seeks damages and appropriate equitable relief from Defendant's refusal to honor its warranty obligations, says the complaint. The Plaintiff leased a Mercedes 2021 S-Class S560 4 MATIC Coupe, with the sticker price of approximately $150,000 In 2021. Mercedes is a distributor of luxury vehicles, with a marketing tag line of "The Best or Nothing."[BN] The Plaintiff is represented by: Matthew R. Wilson, Esq. Michael J. Boyle, Jr., Esq. MEYER WILSON CO., LPA 305 West Nationwide Boulevard Columbus, OH 43215 Phone: (614) 224-6000 Facsimile: (614) 224-6066 Email: mwilson@meyerwilson.com mboyle@meyerwilson.com MESTIZA NEW YORK: Robertson Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Mestiza New York, Inc. The case is styled as Jasmine Robertson, on behalf of herself and all others similarly situated v. Mestiza New York, Inc., Case No. 1:23-cv-05122 (S.D.N.Y., June 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Mestiza New York -- https://mestizanewyork.com/ -- offers opulent architectural silhouettes, bejeweled embellishments and iridescent handwoven tassels.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com META PLATFORMS: TASD Joins Class Suit Over Teen Mental Health ------------------------------------------------------------- Meredith Peachey of For The Daily Herald reports that in addition to approving several staff changes and the 2023-2024 general fund budget at their June 13 regular session, the Tyrone Area School District (TASD) board of directors also voted to approve a resolution authorizing TASD's retention of counsel for litigation against META Platforms, Inc., et al. Superintendent Leslie Estep told The Daily Herald the litigation was initiated by a school district in Seattle, that Pittsburgh Public Schools joined the litigation in April, that the (plaintiffs) continue to grow in the Commonwealth and the case has since grown into a nationwide class-action lawsuit. "It's against META Platforms Inc., which includes Facebook, Instagram, Siculus, Snap, TikTok, ByteDance, Alphabet, Google and YouTube and subsidiaries WhatsApp, Messenger, Quest 2, META Payments, etc.," Estep said. "The allegations indicate that these social media platforms, and the great amount of time spent on them by teens, have played a substantial factor in the youth mental health crisis. June 24, 2023's teens exhibit a higher and higher incidence of struggles with anxiety, depressions, and thoughts of self-harm. Essentially, the litigation is to hold these platforms accountable for what has been seen as inherent design and operation to exploit teens and their desire to connect with others via these platforms." Estep said TASD decided to get involved in the class action lawsuit because it allows the administration to take a stand against the exploitation of local youth through electronic means. Estep believes joining the class-action benefits the TASD community because doing so provides a level of support for students. "The district has seen changes in its students comparable to our neighboring districts in the surrounding counties where social media is involved," Estep said. "District personnel have dealt with an increased number of student conflicts involving social media and have seen higher incidents of students experiencing depression, addiction to social media, and self-harm and other dangerous behaviors." Estep told The Daily Herald the information was brought to TASD by the solicitor, whose firm has partnered with Levin Sedran & Berman LLP and Robert Peirce & Associates in this case. Estep explained the law firms are working together to pursue claims on behalf of multiple Pennsylvania districts and that other districts in the area have also proposed the opportunity to join the class-action to their school boards for consideration. [GN] METHODIST HOSPITALS: Chiaro Suit Removed to C.D. California ----------------------------------------------------------- Keith Chiaro, Individually, and on behalf of all others similarly situated v. THE METHODIST HOSPITALS, INC., Case No. 49D01-2305-PL-017931 was removed from the Court from the Indiana Commercial Court, Marion County, Indiana, to the United States District Court for the Southern District of Indiana on June 16, 2023, and assigned Case No. 1:23-cv-01051-SEB-MKK. The Plaintiff alleges that TMH engaged in unlawful wiretapping and invaded his privacy by allegedly using the Meta Pixel on TMH's public website.[BN] The Defendant is represented by: Tyler Moorhead, Esq. Philip R. Zimmerly, Esq. BOSE MCKINNEY & EVANS LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Phone: (317) 684-5000 Fax: (317) 684-5173 Email: TMoorhead@boselaw.com PZimmerly@boselaw.com - and - Paul G. Karlsgodt, Esq. Michelle R. Gomez, Esq. BAKER & HOSTETLER LLP 1801 California Street, Ste. 4400 Denver, CO 80202 Phone: (303) 861-0600 Fax: (303) 861-7805 Email: MGomez@bakerlaw.com PKarlsgodt@bakerlaw.com METHODOLOGY INC: Slade Files ADA Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Methodology, Inc. The case is styled as Linda Slade, individually and as the representative of a class of similarly situated persons v. Methodology, Inc., Case No. 1:23-cv-05099 (S.D.N.Y., June 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Methodology, Inc. -- https://www.gomethodology.com/ -- provides fast food services. The Company offers healthy and nourishing food services.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com MICHIGAN: Bailey, et al., Seek Class Cert. Discovery ----------------------------------------------------- In the class action lawsuit captioned as PAULA BAILEY, et al., on behalf of themselves and others similarly situated, v. HEIDI WASHINGTON, et al., Case No. 2:19-cv-13442-VAR-EAS (S.D. Mich.), the Plaintiffs ask the Court to enter an order permitting it to conduct discovery as to all topics leading up to the filing of a motion for class certification. The Plaintiffs' motion for discovery needed for class certification discovery asks the Court to determine: 1. Whether the Plaintiffs should be permitted to seek in discovery the following information before the deadline to move for class certification. 2. Whether discovery should proceed in the normal course and not bifurcated. The case was stayed for mediation in May of 2022, after more than two months negotiating the parameters of a stay. The case arises out of the conditions at Women's Huron Valley Correctional Facility and the development of mold and subsequent mold-related symptoms for women within the facility. The Plaintiffs brought this action on November 20, 2019, on behalf of themselves and other inmates at Michigan Department of Corrections' ("MDOC") Women's Huron Valley Correctional Facility ("WHV"). All three the Plaintiffs are members of the Current and Former Inmate Class, which is defined as: "All current and former detainees and inmates in WHV who, while incarcerated at WHV, experienced symptoms consistent with mold exposure since November 20, 2016." The Plaintiffs Zentz and Clark, who are still incarcerated at WHV, are members of the Injunctive Relief Class: "All detainees and inmates of WHV who were incarcerated at WHV since November 20, 2016." The Plaintiffs are Paula Bailey, Krystal Clark, and Hope Zentz. A copy of the Plaintiffs' motion dated June 12, 2023 is available from PacerMonitor.com at https://bit.ly/44e3WBR at no extra charge.[CC] The Plaintiffs are represented by: Jonathan R. Marko, Esq. MARKO LAW, PLLC 1300 Broadway Street, Suite 500 Detroit, MI 48226 Telephone: (313) 777-7529 E-mail: jon@markolaw.com - and - Matthew H. Morgan, Esq. Rebekah L. Bailey, Esq. Melanie A. Johnson, Esq. NICHOLS KASTER, PLLP 80 South Eighth St., Ste 4700 Minneapolis, MN 55402 Telephone: (612) 256-3200 E-mail: bailey@nka.com - and - Cary S. McGehee, Esq. Beth M. Rivers, Esq. PITT MCGEHEE PALMER & RIVERS PC Channing Robinson-Holmes (P81698) 117 W. 4th Street, Suite 200 Royal Oak, MI 48067 Telephone: (248) 398-9800 E-mail: cmcgehee@pittlawpc.com - and - David S. Steingold, Esq. Samantha M. Baker, Esq. LAW OFFICES OF DAVID S. STEINGOLD, PLLC 500 Griswold St., Ste. 2320 Detroit, MI 48226 Telephone: (313) 962-0000 E-mail: detroitdefender@yahoo.com - and - Ari Kresch, Esq. EXCOLO LAW, PLLC 26700 Lahser Road, Ste. 301 Southfield, MI 48033 Telephone: (866) 939-2656 E-mail: akresch@1800lawfirm.com - and - Solomon M. Radner, Esq. RADNER LAW GROUP 17515 W. Nine Mile Rd., Ste 1175 Southfield, MI 48075 Telephone: (313) 355-3425 E-mail: solomon@radnerlawgroup.com The Defendants are represented by: Joshua S. Smith, Esq. John L. Thurber, Esq. Kristin M. Heyse, Esq. Michael R. Dean, Esq. Jennifer A. Foster, Esq. Zachary A. Zurek, Esq. Sara E. Trudgeon, Esq. Keith G. Clark, Esq. MI DEP'T OF ATTORNEY GEN. MDOC Division Lansing, MI 48909 Telephone: (517) 335-3055 E-mail: mertensS@michigan.gov MICROGENICS CORP: Court Narrows Claims in Steele-Warrick Class Suit ------------------------------------------------------------------- In the class action lawsuit captioned as NADEZDA STEELE-WARRICK and DARRYL SCHULTZ, individually and on behalf of all others similarly situated, v. MICROGENICS CORPORATION, THERMO FISHER SCIENTIFIC, INC., ANTHONY ANNUCCI, JAMES O’GORMAN, CHARLES KELLY, RICHARD FINNEGAN, DONALD VENETTOZZI, ANTHONY RODRIGUEZ, COREY BEDARD, and JENNIFER BOOTH, Case No. 1:19-cv-06558-FB-VMS (E.D.N.Y.), the Hon. Judge Frederic Block entered an order that the Defendants' motions to dismiss are granted with respect to the Plaintiffs' Eighth Amendment claim and denied as to all other claims. -- The Plaintiff's Eighth Amendment claim is dismissed with prejudice. -- The Defendants' motion to strike the Plaintiffs' class allegations is denied. The Defendants first argue that the Plaintiffs' putative class lacks commonality or predominance under Rules 23(a)(2) and (b)(3). Their request to strike on these grounds is denied as premature, as these issues are properly addressed at the certification stage. The Defendants argue that the putative class includes individuals who were not punished for false-positive urinalysis results, and who therefore lack standing to sue. This issue is unfit for adjudication at the pleading stage because the composition of the putative class is more effectively resolved on a certification motion, after discovery is complete. Microgenics Corporation develops, manufactures, and markets immunodiagnostic tests for drugs of abuse testing, therapeutic drug monitoring, and calibration. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3Nsp8wW at no extra charge.[CC] The Plaintiffs are represented by: Matthew D. Brinckerhoff, Esq. EMERY CELLI BRINCKERHOFF 600 Fifth Avenue, 10th Floor New York, NY 10020 Karen L. Murtagh, Esq. PRISONERS' LEGAL SERVICES OF NEW YORK 41 State Street, Suite M112 Albany, NY 12207 The Defendants are represented by: Erica Mekles, Esq. BOWMAN AND BROOKE LLP 317 George Street, Suite 320 New Brunswick, NJ 08901 MILLER INTERNATIONAL: Jones Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Miller International, Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Miller International, Inc., Case No. 1:23-cv-05066-JMF (S.D.N.Y., June 15, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Miller International, Inc. provides western apparel. The Company offers a range of clothes, footwear, and accessories for men, women, and children.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com MISTER SOFTEE INC: Reid Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Mister Softee, Inc. The case is styled as Nadreca Reid, individually and as the representative of a class of similarly situated persons v. Mister Softee, Inc., Case No. 1:23-cv-05098 (S.D.N.Y., June 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Mister Softee -- https://mistersoftee.com/ -- is the largest operator of soft ice cream trucks, known for its stability.[BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Phone: (917) 373-9128 Email: shakedlawgroup@gmail.com MITSUBISHI CHEMICAL: Settlement in Rodriguez Suit Gets Final Nod ---------------------------------------------------------------- In the case, SANDRO RODRIGUEZ, on behalf of himself and all others similarly situated, Plaintiffs v. MITSUBISHI CHEMICAL CARBON FIBER AND COMPOSITES, INC., et al., Defendants, Case No. 8:21-CV-01711-CJC (JDEx) (C.D. Cal.), Judge Cormac J. Carney of the U.S. District Court for thr Central District of California grants Rodriguez's unopposed Motion for Final Approval of a Class Action Settlement and Motion for Attorneys' Fees, Costs, and Service Awards. The parties have entered into a Joint Stipulation of Settlement and Release. The matter came on for a hearing before the Court on June 12, 2023 at 1:30 p.m. Judge Carney has reviewed and considered the Motion, the accompanying memorandum and supporting documents, the Settlement Agreement, and the file in the case. His Judgment incorporates by reference the Order Granting In Substantial Part Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement And Motion for Attorneys' Fees and Costs, which the Court entered on June 12, 2023. Rodriguez filed two lawsuits against Defendants Mitsubishi Chemical Carbon Fiber and Composites, Inc., Mitsubishi Chemical Holdings America, Inc., and Mitsubishi Chemical America, Inc.: Rodriguez v. Mitsubishi Chemical Carbon Fiber and Composites, Inc. et al., Case 8:21-cv-01711-CJC-JDE, pending in the U.S. District Court, Central District of California (the "Class Action" or "Action"); and Rodriguez v. Mitsubishi Chemical Carbon Fiber and Composites, Inc. et al., Case 30-2022-01253057-CU-OE-CXC, pending in the Orange County Superior Court (the "PAGA Action"). As part of settlement, the Parties agreed to amend the operative complaint in the Class Action to add a PAGA claim and agreed to dismiss the PAGA Action. The Court in the Class Action approved the Plaintiff's request to amend the complaint. On Sept. 13, 2022, the Plaintiff filed a First Amended Complaint adding a PAGA claim for civil penalties in addition to his class claims. The parties exchanged informal discovery, including a review of company documents and information that reflect Class data and company policies, and engaged in an early mediation of the Plaintiff's claims with well-respected private mediator, the Hon. Jay Ghandi (Ret.). With the assistance of the mediator, the parties reached a settlement in principle of all of the Plaintiff's class and representative claims. On Sept. 26, 2022 the Parties executed the Settlement Agreement, setting forth the terms of the Settlement. Pursuant to the Preliminary Approval Order of Jan. 18, 2023, the Settlement Administrator mailed the Class Notice to all Class Members by first-class U.S. mail. In response to the Notice, no members of the Class filed objections to the Settlement, and no members of the Class requested to be excluded from the Settlement. Judge Carney determines that all Class Members who did not timely and validly submit a Request for Exclusion are bound by this Judgment and that all Class Members who did timely and validly submit a Request for Exclusion are bound by this Judgment with respect only to the PAGA portion of the Settlement. Judge Carney finds and determines that the terms of the Settlement Agreement are fair, reasonable, and adequate to the Class and to each Class Member, and in the best interest of the Class. As such, he grants final approval to the Settlement as, in all respects, fair, adequate, and reasonable, and directs the parties to effectuate the Settlement according to its terms. The Court has certified for settlement purposes only the following Class pursuant to Rule 23 of the Federal Rule of Civil Procedure: All current and former non-exempt employees who worked for Defendants in California during the period Dec. 23, 2018 through Oct. 1, 2022. Judge Carney finally approves Rodriguez as the Class Representative. He determines that the requested Enhancement Award to Plaintiff and class representative Rodriguez in the amount of $5,000 is appropriate under the circumstances of the case and the time and effort spent by the Plaintiff in litigating the case on behalf of the Class and the PAGA Group Members. Having determined that the Individual Settlement Payments provided for by the terms of the Settlement Agreement are fair and reasonable, Judge Carney orders the payment of those Individual Settlement Payments to the Class Members in accordance with the terms of the Settlement Agreement. Judge Carney appoints Bradley/Grombacher, LLP and Capstone Law APC, as the Class Counsel. He awards the Class Counsel attorneys' fees in the amount of $194,000 and litigation costs in the amount of $15,000 to be paid from the settlement fund as final payment for and complete satisfaction of any and all attorneys' fees and costs incurred by and/or owed to Class Counsel. He also awards the Settlement Administrator the amount of $9,000 in administrative costs for its work on the settlement administration in this case. Judge Carney finally approves payment to the Labor Workforce Development Agency ("LWDA") in the amount of $37,500 and determines that it is fair and reasonable. He likewise approves payment in the amount of $12,500 to PAGA Group Members: All Class Members employed by Defendants at any time between Sept. 7, 2020 through Oct. 1, 2022. Judge Carney finds and determines that the release of the Released Parties from the Released Claims contained in the Settlement Agreement is appropriate and will bind all Class Members who did not timely opt out of the Settlement. Nothing in the Order will preclude any action to enforce the Parties' obligations pursuant to the Settlement Agreement or pursuant to the Judgment, including the requirement that Defendants make payments in accordance with the Settlement Agreement. Judge Carney enters final judgment in accordance with the terms of the Settlement Agreement, the Court's Order Granting Preliminary Approval of the Settlement, and the Court's Order Granting In Substantial Part Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement And Motion for Attorneys' Fees and Costs. The parties will bear their own costs and attorneys' fees except as otherwise provided by the Judgment. A full-text copy of the Court's June 14, 2023 Judgment is available at https://tinyurl.com/3p3mb7ss from Leagle.com. BRADLEY/GROMBACHER, LLP Marcus Bradley, Kiley Grombacher -- kgrombacher@bradleygrombacher.com -- Lirit King Westlake Village, CA. CAPSTONE LAW APC Orlando Villalba -- Orlando.Villalba@CapstoneLawyers.com -- Helga Hakimi -- Helga.Hakimi@CapstoneLawyers.com -- Roxanna Tabatabaeepour -- Roxanna.Taba@CapstoneLawyers.com -- Los Angeles, CA, Attorneys for the Plaintiff. MOVE INC: Court Extends Class Certification Bid Filing to Oct. 10 ----------------------------------------------------------------- In the class action lawsuit captioned as Priestley Faucett v. Move, Inc., Case No. 2:22-cv-04948-ODW-AS (C.D. Cal.), the Hon. Judge Otis D. Wright II entered an order extending the deadline by which the Plaintiff may move for class certification to October 10, 2023. On June 9, 2023, the Plaintiff moved for clarification or, in the alternative, an extension of time for the plaintiff to file a motion for class certification. Move Inc. is an online real estate platform operating various websites for rental listings, home finance services, and moving services. A copy of the Court's order dated June 12, 2023 is available from PacerMonitor.com at https://bit.ly/46of8xM at no extra charge.[CC] MURPHY OIL USA: Watson Files Suit in M.D. Tennessee --------------------------------------------------- A class action lawsuit has been filed against Murphy Oil USA, Inc. The case is styled as Jason Watson, on behalf of himself and all others similarly situated v. Murphy Oil USA, Inc., Case No. 2:23-cv-00036 (M.D. Tenn., June 16, 2023). The nature of suit is stated as Other Contract for Breach of Contract. Murphy Oil Corporation -- https://www.murphyoilcorp.com/ -- is a global oil exploration & production company.[BN] The Plaintiff is represented by: Bryan E. Delius, Esq. DELIUS & MCKENZIE, PLLC. 124 Court Avenue Sevierville, TN 37862 Phone: (865) 643-8913 Email: bdelius@deliusmckenzie.com - and - Daniel Z. Goldman, Esq. Thomas H. Bienert, Jr., Esq. BIENERT KATZMAN LITTRELL WILLIAMS 903 Calle Amanecer, Suite 350 San Clemente, CA 92673 Phone: (949) 369-3700 Fax: (949) 369-3701 Email: dgoldman@bklwlaw.com tbienert@bklwlaw.com - and - Gordon Ball, Esq. Jonathan Tanner Ball, Esq. GORDON BALL 3728 West End Avenue Nashville, TN 37205 Phone: (865) 525-7028 Email: gball@gordonball.com jtannerball@gmail.com - and - Times Wang, Esq. NORTH RIVER LAW PLLC 1300 I Street NW, Suite 400E Washington, DC 20005 Phone: (202) 838-6489 Email: twang@northriverlaw.com MYLES ATHLETIC INC: Toro Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Myles Athletic, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Myles Athletic, Inc., Case No. 1:23-cv-05056-ER (S.D.N.Y., June 15, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Myles Apparel -- https://mylesapparel.com/ -- has grown into a full line activewear made for making moves anytime, anywhere.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com NATIONAL ARENA: Faces Suit Over Players, Coaches Pulled Paychecks ----------------------------------------------------------------- Mark Singelais of Times Union reports that the head coach of the Albany Empire said members of the arena football team are planning a class-action lawsuit against owner Antonio Brown after all the players and coaches discovered the paychecks from their final game were pulled from their bank accounts. The National Arena League kicked out the Empire on June 15, six days after they played their last game, a loss at the Orlando Predators. "I'm frustrated," Empire head coach Moe Leggett said. "I'm frustrated. I tried to give (Brown) the benefit of the doubt. I tried to work with him. I was trying to be the peacemaker, the mediator to make sure things ran smoothly and just under the radar. But I can no longer do that." The news of the pulled paychecks was first reported by WTEN (Ch. 10). Leggett said team members were paid last June 22, 2023 and June 23, 2023 for the Orlando game. But a member of their group chat on June 21, 2023 night posted a screenshot of the bank account reversal. When Leggett checked his account the next morning, his paycheck also had been deducted. Leggett says players are still owed amounts of $500 and up for their final game. Leggett said he tried to reach Brown, the former NFL All-Pro wide receiver, his accountant Alex Gunaris and team president Alberony Denis without success. Efforts by the Times Union to reach Brown, Gunaris and Denis were unsuccessful. Leggett said he's looking for a lawyer to file a lawsuit against Brown and the trust of which Brown is a representative. Empire wide receiver Fabian Guerra quickly found another playing job after the Empire ended. He's playing for the Massachusetts Pirates, an Indoor Football League team in Worcester, Mass. He said he would join a lawsuit against Brown. "I'm thinking since he didn't pay us, it's only the right thing to do," Guerra said. "It's kind of like bad business by him, but I'm over here in Massachusetts and playing with a new team, so I'm not worried. It sucks it has to come down to that and now there's going to be a lawsuit, so he just looks bad." Guerra had an amicable relationship with Brown, who also is a rapper. They had worked out together in Miami, where both were raised. "I feel like this was his plan all along," Guerra said. "I feel like he does stuff for social media and to sell his songs. I think it's just what he does. That's the type of guy he is. No one trusts him anymore. I see it hard for him to get any future deals going because of how he is as a person." Empire lineman Brandon Thorpe, who is from Georgia, said he is staying at a friend's house in Troy until he gets his paycheck back. "My feelings are everywhere because I feel like he's basically doing us so wrong to the point of no return," Thorpe texted. The fall of the Empire could lead to a flurry of litigation. MVP Arena general manager Bob Belber said this week he considers the Empire to be in default of their license agreement with the arena. That agreement was due to expire after this season. The NAL kicked out the Empire after an emergency vote by the league owners. Commissioner Chris Siegfried said Brown owed $21,000 in league assessment fees. "We have certain damages we're going to be demanding from the Empire ownership," Belber said. "Assuming there's a favorable response to that, then everything can be worked out and we'll get paid hopefully the damages that we'll be owed. If it doesn't, then we'll see what other actions we may have to take." [GN] NATIONSBENEFITS LLC: Fuss Files Suit in S.D. Florida ---------------------------------------------------- A class action lawsuit has been filed against NationsBenefits, LLC. The case is styled as Leroy Fuss, Sadie Brooks, on behalf of themselves and all others similarly situated v. NationsBenefits, LLC, Case No. 0:23-cv-61014-AHS (S.D. Fla., May 30, 2023). The nature of suit is stated as Other P.I. NationsBenefits -- https://www.nationsbenefits.com/ -- is a supplemental benefits company that provides managed care organizations.[BN] The Plaintiff is represented by: Lori G. Feldman, Esq. GEORGE FELDMAN MCDONALD, PLLC 102 Half Moon Bay Drive Croton-on-Hudson, NY 10520 Phone: (917) 983-9321 Email: LFeldman@4-Justice.com - and - Brittany Leanne Brown, Esq. David J. George, Esq. GEORGE GESTEN MCDONALD PLLC 9897 Lake Worth Road, Ste. 302 Lake Worth, FL 33467 Phone: (561) 232-6002 Email: BBrown@4-Justice.com NATIONSBENEFITS LLC: Wilczynski Files Suit in S.D. Florida ---------------------------------------------------------- A class action lawsuit has been filed against Nationsbenefits, LLC, et al. The case is styled as Edward Wilczynski, individually and on behalf of all others similarly situated v. Nationsbenefits, LLC, NationsBenefits Holdings, LLC, Aetna Inc., Case No. 0:23-cv-60950-RAR (S.D. Fla., May 22, 2023). The nature of suit is stated as Other Fraud. NationsBenefits -- https://www.nationsbenefits.com/ -- is a supplemental benefits company that provides managed care organizations.[BN] The Plaintiff is represented by: Zachary Scott Bower, Esq. James E. Cecchi, Esq. Jordan M. Steele, Esq. Kevin G. Cooper, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO 5 Becker Farm Road Roseland, NJ 07068-1739 Phone: (973) 994-1700 Email: zbower@carellabyrne.com jcecchi@carellabyrne.com - and - Jason Henry Alperstein, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO 2222 Ponce De Leon Boulevard Miami, FL 33134 Phone: (973) 994-1700 Email: jalperstein@carellabyrne.com The Defendants are represented by: Kristine McAlister Brown, Esq. ALSTON & BIRD 1201 W. Peachtree Street, Ste. 4900 Atlanta, GA 30309 Phone: (404) 881-7584 Email: kristy.brown@alston.com NEOVIA LOGISTICS: Remand of Neims Suit to Superior Court Denied --------------------------------------------------------------- In the case, Patrick Joseph Neims v. Neovia Logistics Distribution, LP, et al., Case No. EDCV 23-716 PA (SHKx) (C.D. Cal.), Judge Percy Anderson of the U.S. District Court for the Central District of California denies the Plaintiff's Motion to Remand. Before the Court is Neims' Motion to Remand. He contends that the Notice of Removal filed by Defendants Neovia Logistics Distribution, LP, and Neovia Logistics Services, LLC fails to satisfactorily establish that the amount in controversy exceeds the $5 million jurisdictional minimum for the Court's subject matter jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, Judge Anderson finds that the matter is appropriate for decision without oral argument. The hearing calendared for June 26, 2023, is vacated, and the matter taken off calendar. The Plaintiff filed his Complaint in San Bernardino Superior Court on Oct. 28, 2022, and filed a First Amended Complaint ("1st AC") on March 22, 2023. He served the Defendants with the 1st AC on March 22, 2023. The Defendants filed their Notice of Removal alleging that this Court possesses diversity jurisdiction over this action pursuant to CAFA on April 21, 2023. The Plaintiff filed his Motion to Remand challenging the adequacy of the Notice of Removal's allegations concerning the amount in controversy on May 19, 2023. Judge Anderson states that federal subject matter jurisdiction may be based on diversity of citizenship pursuant to CAFA. The party seeking federal subject matter jurisdiction under CAFA must show that at least one plaintiff and one defendant are citizens of different states, and the aggregate amount in controversy exceeds $5 million exclusive of interests and costs. A defendant cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions. The Plaintiff's 1st AC alleges wage and hour claims on behalf of himself and a putative class. Specifically, he alleges claims for: (1) Failure to Pay Minimum Wages [Cal. Lab. Code Sections 204, 1194, 1194.2 and 1197]; (2) Failure to Pay Overtime Wages [Cal. Lab. Code Sections 1194, and 1198]; (3) Failure to Provide Meal Periods [Cal. Lab. Code Sections 226.7, 512]; (4) Failure to Permit Rest Breaks [Cal. Lab. Code Sections 226.7]; (5) Failure to Reimburse Business Expenses; (6) Failure to Provide Accurate Itemized Wage Statements [Cal. Lab. Code Section 226]; (7) Failure to Pay Wages Timely During Employment; (8) Failure to Pay All Wages Due Upon Separation of Employment; (9) Unfair Business Practices [Cal. Bus. & Prof Code Sections 17200, et seq.]; and (10) Enforcement of California Labor Code Section 2698, et seq. ("PAGA"). According to the Notice of Removal, and the Declaration of Alan Calhoun submitted in support of the Notice of Removal, the putative class contains at least 1,878 employees in California who collectively worked approximately 132,260 workweeks during the class period with an average hourly rate of $19.25. For purposes of the 1st AC's claim for waiting time penalties for failure to pay all wages due upon separation, the Notice of Removal alleges that the Defendants severed employment with at least 1,213 employees in California during the class period and that those severed employees' average hourly pay rate was $18.48, for a daily rate of $147.68. It alleges that for the claim for waiting time penalties alone, the amount in controversy "is at least $5,374,075.20 ($18.46 per hour × 8 hours × 30 days × 1,213 putative class members). The Plaintiff challenges the 100% violation rate and maximum 30 day penalty assumed by the Defendants in their calculation of the amount in controversy for the waiting time penalty claim. Judge Anderson states that in similar circumstances, the Ninth Circuit has explained that it was not unreasonable for the removing defendant to assume that the vast majority (if not all) of the alleged violations over the four years at issue in this case would have happened more than 30 days before the suit was filed, which would entitle the employees to the 30-day penalty. The fact that a very small percentage of employees might possibly not be entitled to the maximum penalty is not an appropriate reason to dismiss altogether the Defendant's estimate for this claim. While some of the other assumptions the Defendants rely on in their Opposition to the Motion to Remand lack evidentiary support or a reasonable basis, Judge Anderson concludes that the Defendants have satisfied their burden to establish that the waiting time penalty claim alone exceeds CAFA's amount in controversy requirement. Even if that claim did not exceed $5 million, and even at far lower violations rates than those assumed by the Defendants, the value of those other claims, combined with the waiting time penalties and attorneys' fees, exceeds CAFA's jurisdictional minimum. For all of the foregoing reasons, Judge Anderson concludes that the Defendants have satisfied their burden of showing, by a preponderance of the evidence, that the amount in controversy exceeds $5 million as required for subject matter jurisdiction under CAFA. He, therefore, denies the Motion to Remand. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/2vc4rnv4 from Leagle.com. NEW ENCHANTMENT GROUP: Davila Files Suit in D. Arizona ------------------------------------------------------ A class action lawsuit has been filed against New Enchantment Group LLC, et al. The case is styled as Daniel Davila, individually and on behalf of all similarly situated persons v. New Enchantment Group LLC, Case No. 2:23-cv-01098-SRB (D. Ariz., June 14, 2023). The nature of suit is stated as Other Personal Injury for Federal Trade Commission Act. Enchantment Group -- https://www.enchantmentgroup.com/ -- is a collection of resorts, spas, and golf courses all with a connection to their unique locations.[BN] The Plaintiff is represented by: Cristina Perez Hesano, Esq. PEREZ LAW GROUP PLLC 7508 N 59th Ave. Glendale, AZ 85301 Phone: (623) 826-5593 Email: cperez@perezlawgroup.com - and - William B Federman, Esq. FEDERMAN & SHERWOOD 10205 N Pennsylvania Ave. Oklahoma City, OK 73120 Phone: (405) 235-1560 Email: wbf@federmanlaw.com NEXTGENHEALTHCARE INC: Charboneau Files Suit in N.D. Georgia ------------------------------------------------------------ A class action lawsuit has been filed against NextGenHealthcare, Inc. The case is styled as Joan Charboneau, on behalf of herself and all others similarly situated v. NextGenHealthcare, Inc., Case No. 1:23-cv-02784-TWT (N.D. Ga., June 21, 2023). The nature suit is stated as Other Contract for Breach of Fiduciary Duty. NextGenHealthcare, Inc. -- https://www.nextgen.com/ -- are a leading provider of innovative ambulatory healthcare technology solutions.[BN] The Plaintiff is represented by: G. Franklin Lemond , Jr., Esq. WEBB, KLASE & LEMOND, LLC 1900 The Exchange, SE, Suite 480 Atlanta, GA 30339 Phone: (770) 444-9594 Fax: (770) 444-0271 Email: flemond@webbllc.com - and - Marc H. Edelson EDELSON & ASSOCIATES, LLC 45 West Court Street Doylestown, PA 18901 Phone: (215) 230-8043 Email: medelson@edelson-law.com NHIAGAO DAVID: Court Enters Final Judgment in Favor of NJRI ----------------------------------------------------------- In the class action lawsuit captioned as NATIONWIDE JUDGMENT RECOVERY, INC., v. NHIAGAO DAVID VUE, Case No. 8:21-mc-00042-TPB-TGW (M.D. Fla.), the Hon. Judge Tom Barber entered an order granting Nationwide Judgment Recovery, Inc.'s "Motion for Final Judgment in Garnishment as to Garnishee First National Bank of Wauchula." The Clerk is directed to enter final judgment in garnishment in favor of Nationwide Judgment Recovery, Inc., and against First National Bank of Wauchula, in the amount of $417.27 held in the checking account ending in 5280, under § 77.083, F.S., which shall be made payable to the attorney trust account of Nationwide's counsel. First National Bank of Wauchula's request for $100 in statutory Attorney's fees under § 77.28, F.S., made payable by Nationwide directly to First National Bank of Wauchula or its counsel upon demand, is granted. Nationwide demonstrated that it complied with all statutory requirements. Namely, Nationwide filed a motion stating the amount of the judgment entered against Vue in the WDNC, obtained a writ of garnishment against First National Bank of Wauchula, and provided the requisite statutory notice to Vue of both the Writ and First National Bank of Wauchula's answer. Neither Vue nor any other party objected, filed a claim of exemption, or moved to dissolve the Writ, the Court says. ZeekRewards operated a Ponzi scheme in 2010 and 2011, which led to thousands of individuals (the "Net Winners"), including Vue, to receive benefits at the expense of individuals who lost money because of the scheme (the "Net Losers"). In 2012, the Securities and Exchange Commission filed suit in the WDNC seeking to shut down the scheme. In that action, the court appointed a receiver, Kenneth Bell, to identify and locate Net Winners, to recover their ill-gotten gains, and to split those funds among the Net Losers. Given his charge, Receiver Bell initiated an action in the WDNC against the Net Winners and obtained class certification of those individuals. On August 14, 2017, the WDNC entered a final judgment in favor of Receiver Bell and against the class of Net Winners. Specifically, as to Vue, the WDNC entered judgment in the amount of $35,754.21, with an award of post-judgment interest. The Magistrate Judge granted Nationwide's request on February 27, 2023, and, on the same day, the Clerk of Court issued a writ of garnishment to First National Bank of Wauchula, along with the required notice to Vue of his rights pursuant to section 77.041(1), F.S.). On March 2, 2023, First National Bank of Wauchula answered the Writ, identifying a checking account ending in 5280 held in the name of Vue, with an available balance of $417.27 as of March 2, 2023, the date of service of the Writ. A copy of the Court's order dated June 9, 2023, is available from PacerMonitor.com at https://bit.ly/3NmagAa at no extra charge.[CC] NIKY'S SPORTS INC: DiMeglio Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Niky's Sports, Inc. The case is styled as Maria DiMeglio, on behalf of herself and all others similarly situated v. Niky's Sports, Inc., Case No. 1:23-cv-05048-LGS (S.D.N.Y., June 15, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Niky's Sports -- https://www.nikys-sports.com/ -- provides turf soccer shoes, indoor soccer shoes, running shoes, slides, and sandals.[BN] The Plaintiff is represented by: Ara Vahe Naljian, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 584-5575 Email: analjian@steinsakslegal.com NIXON INC: Toro Files ADA Suit in S.D. New York ----------------------------------------------- A class action lawsuit has been filed against Nixon, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Nixon, Inc., Case No. 1:23-cv-05060-JPC (S.D.N.Y., June 15, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Nixon -- http://www.nixon.com/-- is an American watches, accessories and audio brand, founded in 1997 in Encinitas, California.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com NORTHWEST MOTORSPORT: Court Dismisses Class Claims in Villafan Suit ------------------------------------------------------------------- In the case, SETH VILLAFAN, et al., Plaintiff v. NORTHWEST MOTORSPORT, LLC, et al., Defendant, Case No. C20-1616 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, grants the Defendants' motion to dismiss. The Plaintiffs agree that dismissing their class claims pursuant to 28 U.S.C. Section 1332(d)(4)(A) and (B) is appropriate. They further agree to the dismissal of all claims brought by individual Plaintiffs Seth Villafan and Joshua Graves. Only Plaintiff Olson's claims remain in the case. Judge Zilly finds the case is appropriate for mediation under Local Civil Rule 39.1(c). He orders the parties to exchange written demands for settlement and that counsel meet and discuss settlement pursuant to Local Civil Rule 39.1(c)(2) no later than Aug. 6, 2023. The parties are advised that the Court's home page at www.wawd.uscourts.gov contains a roster of approved mediators and their profiles. This information is also available for viewing in Seattle and Tacoma at the intake counter of the Clerk's Office. The counsel are directed to file with the Court the name of the mediator as soon as one is selected. The mediation will be conducted at such time or times as set by the mediator. Mediation will be completed no later than Sept. 1, 2023, and a letter of compliance will be filed with the Court no later than Sept. 8, 2023. Therefore, Judge Zilly dismisses the Plaintiffs' class action claims with prejudice; strikes their motion to certify class as moot; and dismisses Plaintiff Villafan's and Plaintiff Graves' claims with prejudice and dismisses them from the case. The Clerk is directed to send a copy of the Order to all counsel of record. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/bdhybdwz from Leagle.com. O'REILLY AUTO ENTERPRISES: Clark Files Suit in Cal. Super. Ct. -------------------------------------------------------------- A class action lawsuit has been filed against O'Reilly Auto Enterprises, LLC. The case is styled as Elizabeth Clark, as an individual and on behalf of all others similarly situated v. O'Reilly Auto Enterprises, LLC, Case No. STK-CV-UOE-2023-0006241 (Cal. Super. Ct., San Joaquin Cty., June 16, 2023). The case type is stated as "Unlimited Civil Other Employment." O'Reilly Auto Enterprises, LLC -- https://corporate.oreillyauto.com/ -- owns and operates retail auto parts stores. The Company provides private-label and generic automotive products for domestic and imported cars, including new and remanufactured automotive replacement parts, maintenance items, and accessories.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. DIVERSITY LAW GROUP 515 S Figueroa St., Ste. 1250 Los Angeles, CA 90071-3316 Phone: 213-488-6555 Fax: 213-488-6554 Email: lwlee@diversitylaw.com OH MY GAUZE INC: Toro Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Oh My Gauze, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Oh My Gauze, Inc., Case No. 1:23-cv-05128 (S.D.N.Y., June 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Oh My Gauze -- https://www.ohmygauze.com/ -- specializes in providing designs that are manufactured using 100% cotton fabrics mainly crinkled gauze.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com OHIO: Denial of Tolliver's Class Certification Bid Recommended -------------------------------------------------------------- In the case, KEVIN A. TOLLIVER, Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS, et al., Defendants, Civil Action No. 2:22-cv-4567 (S.D. Ohio), Magistrate Judge Kimberly A. Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, recommends that the Court: a. denies Tolliver's Motion to Certify as Class Action and request to appoint counsel; and b. dismisses some claims in the Amended Complaint but allows some claims to proceed to further development. The matter is before the Court for consideration of Tolliver's Motion to Certify as Class Action and for an initial screening of his Amended Complaint. The Plaintiff, a state prisoner proceeding in forma pauperis and without the assistance of counsel, submitted his original complaint to this Court in December 2022, seeking declaratory and injunctive relief under 42 U.S.C. Section 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Section 2000cc-1. After an initial screening of the Complaint, Judge Jolson recommended that the Court dismisses some claims but allow some claims to proceed to further development. The Plaintiff objected. The first Report and Recommendations and the Plaintiff's Objections to it are pending. The Plaintiff submitted an Amended Complaint in May 2023, which was received and filed by the Clerk on June 1, 2023. He also filed a Motion to Certify as Class Action (and to appoint counsel) under Fed. R. Civ. P. 23. In the original Complaint, the Plaintiff appeared to name the Ohio Department of Rehabilitation and Corrections (ODRC) and Annette Chambers-Smith, its Director, as Defendants. The Plaintiff describes the Complaint in this action as a direct challenge to practices and policies of the ODRC. As noted, he is proceeding under 42 U.S.C. Section 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. Section 2000cc-1. He alleges violations of his First Amendment rights under the United States Constitution in regard to freedom of religion and violations of protections against establishment of religion. More specifically, he asserts that the ODRC policies and practices are ineffective and insufficient to lead to the hiring of qualified contractors/service providers to serve the Islamic community within Ohio's prisons. This leads, says the Plaintiff, to the denial of certain religious services, and constitutes religious persecution, denial or infringement of religious rights, and an establishment of religion in favor of both Christianity and the WD Muhammad style of practice, which is an ongoing harm to the Plaintiff and all similarly situated mainstream adherents to the Islamic faith in Ohio prisons. The Plaintiff appears to base this conclusion, at least in part, on the fact that there are no Muslim employees anywhere in the Religious Services Departments of ODRC, qualified by advanced education in Islamic studies (M.A. or Ph.D.) or similar religious accreditations (A'lim, Mufti, or Shaykh), and that there is no one on staff to properly oversee hiring of contractors and/or to administer and supervise policy issues on behalf of one of ODRC's principal faith group. He has had conflicts with the contractors providing such religious services. Judge Jolson understood the Plaintiff's Complaint as raising claims under 42 U.S.C. Section 1983 for violations of the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, as well as a claim under RLUIPA. She concluded the initial screening by recommending that the Court: A. dismisses all claims raised against the ODRC pursuant to 42 U.S.C. Section 1983, as the ODRC is not a person subject to suit under that statute; B. dismisses all claims raised on behalf of other Muslim inmates, as the Plaintiff lacks standing to raise claims on their behalf; C. dismisses Counts 3-6 seeking a declaration that religious groups of which the Plaintiff is not a member deserve their own policies, as he lacks standing to raise these claims; D. dismisses all claims raised under Section 1983 alleging that the ODRC policies were not followed (possibly part of Counts 2 and 8), as the violation of state policy is outside the scope of Section 1983; E. dismisses Count 14 concerning the provision of Halal or Kosher meals, as the Plaintiff has failed to allege an actual injury sufficient to state a claim; F. allows the following claims to proceed at this time, and subject to further order of Court: The claim against the ODRC under RLUIPA, and the claims against Director Chambers-Smith under Section 1983 and RLUIPA. These claims appear to correspond to Counts 1-2 and 7-13 in the Complaint, as narrowed. In response to the recommendation that the Court dismisses claims raised on behalf of other Muslim inmates, the Plaintiff indicated that he would be seeking class certification. He filed his Motion to Certify as Class Action shortly thereafter. In the Motion, he also requests the appointment of counsel. The Plaintiff asserts in his Motion that he will fairly and adequately protect the interests of the class. But he also acknowledges that he is unrepresented and unqualified to pursue this action as a pro se litigant. As the case does not present any extraordinary circumstances warranting the appointment of counsel, and because the Plaintiff has presented no basis for departing from the general rule that pro se plaintiffs are inadequate class representatives, Judge Jolson recommends that the Court denies the Motion to Certify as Class Action. The Amended Complaint largely restates the original Complaint but seeks several additional declarations and makes several changes. In it, the Plaintiff: 1. Asks that the case proceed as a class action with Tolliver as the Plaintiff On behalf of himself and all others situated. 2. Adds as Plaintiffs All mainstream Sunni-Muslims incarcerated by Ohio Department of Rehabilitation and Corrections (ODRC) at any time since 2012 to present who have been, are currently, or who will be designated under and subject to Administrative Rule 5120.01, ODRC Policy 72-REG-01, 02 and 12 and/or have been, are currently, or will be residing in any ODRC facility. This appears to include 46 inmates. 3. Adds as Defendants (in addition to the ODRC and Annette Chambers-Smith) the following: Dr. Mike Davis (Chief of Religious Services), Jennifer Urrah, (Chief of Holistic Services), John and Jane Doe Administrators, and Staff, John and Jane Doe Islamic Services Contractors. 4. Adds an Eighth Amendment claim for deliberate indifference and/or cruel and unusual punishment. 5. Adds or supplements a Fourteenth Amendment equal protection claim concerning the treatment of Plaintiff and Muslim inmates more generally. 6. Adds a claim for breach of third-party contract under state law. Judge Jolson orders that: a. Section III.A. "Section 1983 Claims Cannot Be Raised Against the ODRC" of the first R&R stands as written; b. Section III.B. "Plaintiff Cannot Raise Claims on Behalf of Other Inmates" of the first R&R stands as written; c. Section III.C. "The Court Can Construe the Allegations About Injuries to Plaintiff" of the first R&R stands as written, concerning the analogous declarations sought in the Amended Complaint; d. Section III.D. "Alleged Violations of ODRC Policy are not Actionable under Section 1983" of the first R&R stands as written; e. the Plaintiff's expanded equal protection claim(s) -- with respect to Halal or kosher meals and with respect to treatment of Plaintiff as a Muslim inmate generally in Section III.E. "Plaintiff's Allegation That He Was Denied Halal Meals Does Not State a Claim for a Violation of RLUIPA, the First Amendment, or the Equal Protection Clause" -- be permitted to proceed to further development at this time; and f. she did not make determinations on issues in Section III.F. "The Doctrine of Res Judicata May Bar this Action," Section III.G. "The Statutes of Limitations May Bar These Claims," and Section III.H. "The Requests for Declaratory and Injunctive Relief May be Moot" but indicates that the parties should be prepared to address them at a later time. With respect to the new matter raised in the Amended Complaint, Judge Jolson recommends that the Court should deny the Plaintiff's Motion to Certify as Class Action and limit the claims in the Amended Complaint to the Plaintiff's own claims, rejecting the new plaintiffs and the Plaintiff's request to expand the scope of this action. She also recommends that that the claims raised against Defendants Davis and Urrah be allowed to proceed to further development, with the exception of those discrete claims that should be dismissed. She recommends the claims for deliberate indifference and/or cruel and unusual punishment under the Eighth Amendment be allowed to proceed to further development at this time. On the Motion to Certify as Class Action and Amended Complaint, Judge Jolson recommends that the Court denies the Plaintiff's Motion to Certify as Class Action, including his request for appointment of counsel. Having screened the Amended Complaint as required by 28 U.S.C. Section 1915(e)(2) and 28 U.S.C. Section 1915A(a), she now recommends that the Court: A. dismisses all claims raised against the ODRC pursuant to 42 U.S.C. Section 1983, as the ODRC is not a person subject to suit under that statute; B. dismisses all claims raised on behalf of other Muslim inmates, as the Plaintiff lacks standing to raise claims on their behalf; C. dismisses Declarations 15-17 seeking a declaration that religious groups of which the Plaintiff is not a member deserve their own policies, as the Plaintiff lacks standing to raise these claims; D. dismisses all claims raised under Section 1983 alleging that the ODRC policies were not followed as the violation of state policy is outside the scope of Section 1983; E. allows the following claims to proceed at this time, and subject to further order of Court: The claim against the ODRC under RLUIPA; and the claims against Director Chambers-Smith, Defendants Davis and Urrah, and the John Doe and Jane Doe Defendants, under Section 1983, RLUIPA, and state law. The claims under Section 1983 that should proceed assert violations of the Free Exercise and Establishment Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Cruel and Unusual Punishments Clause of the Eighth Amendment. F. certifies pursuant to 28 U.S.C. Sections 1915(a)(3) that an appeal of any Order adopting this Report and Recommendations would not be taken in good faith, and therefore, denies the Plaintiff leave to appeal in forma pauperis. Although he may file Objections to the Report and Recommendations, the Plaintiff is directed to refrain from filing substantive motions in this case until after the Court has had the opportunity to consider and resolve both pending Reports and Recommendations. The Court is in receipt of the summons forms and United States Marshal forms (USM-285) for Defendant Chambers-Smith only. The Plaintiff is ordered to provide the Clerk with summons forms and United States Marshal forms (USM-285) for Defendants Davis and Urrah within 21 days of the date of the Report and Recommendations. The forms for each John Doe or Jane Doe Defendant will be required as soon as these Defendants are formally identified. If any party objects to this Report and Recommendations ("R&R"), the party may serve and file specific, written objections to it within 14 days after being served with a copy thereof. All objections will specify the portion(s) of the R&R objected to and will be accompanied by a memorandum of law in support of the objections. The Court may extend the 14-day objections period if a timely motion for an extension of time is filed. The parties are specifically advised that failure to object to the R&R will result in a waiver of the right to have the District Judge review the R&R de novo, and will also operate as a waiver of the right to appeal the decision of the District Court adopting the R&R. A full-text copy of the Court's June 14, 2023 Report & Recommendations is available at https://tinyurl.com/yy9jtw88 from Leagle.com. ONE SOURCE PLUS: DiMeglio Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against One Source Plus, Inc. The case is styled as Maria DiMeglio, on behalf of herself and all others similarly situated v. One Source Plus, Inc., Case No. 1:23-cv-05051-JLR (S.D.N.Y., June 15, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. One Source Plus, Inc., doing business as Club Furniture, provides furniture products. The Company offers beds and headboards, dining room collections, sofas, chairs, footstools, tables, and other related products.[BN] The Plaintiff is represented by: Ara Vahe Naljian, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 584-5575 Email: analjian@steinsakslegal.com ORANGE COUNTY, NY: Deide Allowed Leave to File Class Certification ------------------------------------------------------------------ In the class action lawsuit captioned as SIDI MOUHAMED DEIDE, ADAMA SY, ABDALLAHI SALEM, MOUHAMED SAID MALOUM DIN, and JHONNY NEIRA on behalf of himself and all similarly situated people, Plaintiffs, v. EDWIN J. DAY as Rockland County Executive; STEVEN M. NEUHAUS as Orange County Executive, Case No. 7:23-cv-03954-NSR (S.D.N.Y.), thev Hon. Judge Nelson Stephen Roman entered an order waiving the pre-motion conference requirement and granting the Plaintiffs leave to file a motion for class certification pursuant to the following briefing schedule: -- The Plaintiff's opening motion papers shall July 27, 2023 be served (not filed) on: -- The Defendants' opposition papers shall Sept. 12, 2023 be served (not filed) on: -- The Plaintiff's reply papers shall be Sept. 27, 2023 served on: A copy of the Court's order dated June 12, 2023 is available from PacerMonitor.com at https://bit.ly/3Xs0Wjc at no extra charge.[CC] The Plaintiffs are represented by: Amy Belsher, Esq. Antony Gemmell, Esq. Guadalupe Victoria Aguirre, Esq. Ifeyinwa Chikezie, Esq. Christopher Dunn, Esq. NYCLU ACLU OF NEW YORK 125 Broad Street, 19th Floor New York, NY 10004 Telephone: 212-607-3300 E-mail: abelsher@nyclu.org The Defendants are represented by: Matthew G. Parisi, Esq. BLEAKLEY PLATT & SCHMIDT, LLP One North Lexington Avenue White Plains, NY 10601 Telephone: (914) 287-6184 Facsimile: (914) 683-6956 E-mail: MParisi@bpslaw.com ORIGINS NATURAL: Order on Class Cert. Bids Entered in Gutierrez --------------------------------------------------------------- In the class action lawsuit captioned as NORA GUTIERREZ, v. ORIGINS NATURAL RESOURCES INC., et al., Case No. 2:23-cv-03152-FMO-JC (C.D. Cal.), the Hon. Judge Fernando M. Olguin entered an order regarding motions for class certification as follows: 1. Joint Brief: The parties shall work cooperatively to create a single, fully integrated joint brief covering each party's position, in which each issue (or sub-issue) raised by a party is immediately followed by the opposing party's/parties' response. 2. Citation to Evidence: All citation to evidence in the joint brief shall be directly to the exhibit and page number(s) of the evidentiary appendix, or page and line number(s) of a deposition. Parenthetical explanations are encouraged. 3. Unnecessary Sections: The parties need not include a "procedural History" section, since the court will be familiar with the procedural history. 4. Evidentiary Appendix: The joint brief shall be accompanied by one separate, tabbed appendix of declarations and written evidence (including documents, photographs, deposition excerpts, etc.). Origins Natural is an American cosmetics brand founded in 1990 by Leonard Lauder, son of Estee Lauder. A copy of the Court's order dated June 12, 2023, is available from PacerMonitor.com at https://bit.ly/3Ns1Mb7 at no extra charge.[CC] ORNAMENT FACTORY: Velazquez Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against The Ornament Factory LLC. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. The Ornament Factory LLC, Case No. 1:23-cv-05017-JGK (S.D.N.Y., June 14, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. The Ornament Factory -- https://www.hallmarkornaments.com/ -- is a secondary market place for Hallmark Keepsake ornaments.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com OTAY LAKES: Faces Renn Suit Over Mislabeled Alcoholic Beverages --------------------------------------------------------------- ALBERT RENN, individually and on behalf of all others similarly situated, Plaintiff v. OTAY LAKES BREWERY, LLC, Defendant, Case No. 3:23-cv-01139-GPC-BLM (S.D. Cal., June 20, 2023) seeks to enjoin the Defendant from deceptively marketing and selling its line of "Nova" alcoholic kombucha ("Nova Kombucha" or the "Products") where the Defendant labels it as being "good for you" and promoting "health, balance and goodness." According to the complaint, the Defendant labels Nova Kombucha with such claims because consumers are attracted to products they perceive as healthy or "better for you" than other alternatives in a food and beverage category. The Defendant's representations, however, are false and misleading because the Products are 6-8% alcohol by volume, and consuming alcohol causes a wide variety of health risks and problems, both in the short and long term, says the suit. OTAY LAKES BREWERY, LLC is engaged in the business of manufacturing malt beverages such as beer and liquors. [BN] The Plaintiff is represented by: Paul K. Joseph, Esq. Jack Fitzgerald, Esq. Paul K. Joseph, Esq. Melanie Persinger, Esq. Trevor M. Flynn, Esq. Caroline S. Emhardt, Esq. FITZGERALD JOSEPH LLP 2341 Jefferson Street, Suite 200 San Diego, CA 92110 Telephone: (619) 215-1741 Email: jack@fitzgeraldjoseph.com paul@fitzgeraldjoseph.com melanie@fitzgeraldjoseph.com trevor@fitzgeraldjoseph.com caroline@fitzgeraldjoseph.com OWENS & MINOR: Mancilla Suit Removed to C.D. California ------------------------------------------------------- Eurico A. Mancilla, individually and on behalf of all others similarly situated v. OWENS & MINOR DISTRIBUTION, INC., and DOES 1 through 20, inclusive, Case No. CIVSB2308374 was removed from the San Bernardino County Superior Court, to the United States District Court for the Central District of California on June 20, 2023, and assigned Case No. 5:23-cv-01179. In the Complaint, Plaintiff asserts class claims for: failure to pay minimum wages; failure to pay overtime wages; failure to provide meal periods; failure to permit rest breaks; failure to reimburse business expenses; failure to provide accurate itemized wage statements; failure to pay wages timely during employment; failure to pay all wages due upon separation of employment; and violation of business and professions code.[BN] The Defendant is represented by: Melinda Riechert, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025-1015 Phone: +1 650 614 7400 Facsimile: +1 650 614 7401 Email: mriechert@orrick.com - and - Scott Morrison, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 2050 Main Street, Suite 1100 Irvine, CA 92614-8255 Phone: +1 949 567 6700 Facsimile: +1 949 567 6710 Email: scott.morrison@orrick.com PACIFIC GAS AND ELECTRIC: Thomas Files Suit in Cal. Super. Ct. -------------------------------------------------------------- A class action lawsuit has been filed against Pacific Gas and Electric Company, et al. The case is styled as Bridgette Nichole Thomas, Toya Carter, on behalf of all others similarly situated v. Pacific Gas and Electric Company, Does 1 through 50, Case No. 23CV003490 (Cal. Super. Ct., Sacramento Cty., June 21, 2023). The case type is stated as "Other Employment Complaint Case." Pacific Gas and Electric Company -- https://www.pge.com/ -- provides natural gas and electric service.[BN] PALLY 2 ENTERPRISES: Fails to Pay OT Wages Under FLSA, Robles Says ------------------------------------------------------------------ Manuel Gerardo Vielma Robles, individually and on behalf of those similarly situated v. PALLY 2 ENTERPRISES INC DBA Ash Grocery, Case No. 1:23-cv-00685 (W.D. Tex., June 16, 2023) seeks to recover unpaid overtime wages owed to the Plaintiff and all other similarly situated workers employed by Ash Grocery under the Fair Labor Standards Act (FLSA). The Defendant allegedly paid the Plaintiff his hourly rate (i.e., "straight time") for each work hour in the company, including his overtime hours. The Defendant paid all similarly situated employees in the same manner. Although schedules are subject to change, the Plaintiff's general schedule with the Defendants required the Plaintiff to work on average 60 hours per week. By engaging in this pay practice, the Defendants deprived employees of their right under the FLSA to receive time-and-a-half pay for their overtime hours, the suit contends. The Plaintiff seeks to represent current and former employees of the Defendants who worked within the past three (3) years. In addition, the Plaintiffs seek damages for unpaid wages, liquidated damages, and reasonable attorneys' fees and costs. Plaintiffs seek compensation for Defendants' Negligence under supplemental jurisdiction theories of recovery. The Plaintiff was employed by Ash Grocery to perform general labor in the store from March 2019 until January 22, 2023. Pally 2 Enterprises is a privately owned for-profit entity, that operates the supermarket Ash Grocery and other commercial businesses in the state of Texas.[BN] The Plaintiff is represented by: James M. Dore, Esq. JUSTICIA LABORAL LLC 6232 N. Pulaski Road, Suite 300 Chicago, IL 60646 Telephone: (773) 415-4898 E-mail: jdore@justicialaboral.com PAN PACIFIC RV: Herrera Files Suit in Cal. Super. Ct. ----------------------------------------------------- A class action lawsuit has been filed against Pan Pacific RV Centers, Inc., et al. The case is styled as Ricky Herrera, an individual, on behalf all others similarly situated v. Pan Pacific RV Centers, Inc., Matthew Curtis Jones, Josef Darin Shields, Sherry Lavonne Shields, Case No. STK-CV-UOE-2023-0005862 (Cal. Super. Ct., San Joaquin Cty., May 25, 2023). The case type is stated as "Unlimited Civil Other Employment." Pan Pacific RV Centers, Inc. was founded in 1985. The Company's line of business includes the retail sale of new and used motor homes, recreational trailers, and campers.[BN] PAPA TEXAS: Harris FLSA Suit Transferred to N.D. Texas ------------------------------------------------------ The case styled as Miracle Harris, individually and on behalf of similarly situated persons v. PAPA TEXAS, LLC, Case No. 4:23-cv-01564 was transferred from the U.S. District Court for the Southern District of Texas, to the U.S. District Court for the Northern District of Texas on June 20, 2023. The District Court Clerk assigned Case No. 3:23-cv-01376-X to the proceeding. The lawsuit is brought over alleged violation of the Fair Labor Standards Act. PAPA TEXAS, LLC -- https://apply.jobappnetwork.com/papa-texas/en -- doing business as Papa John's is the fourth largest pizza delivery restaurant chain in the United States.[BN] The Plaintiff is represented by: C. Ryan Morgan, Esq. Jolie N. Pavlos, Esq. MORGAN & MORGAN, P.A. 20 N. Orange Ave., 15th Floor P.O. Box 4979 Orlando, FL 32802-4979 Phone: (407) 420-1414 Email: RMorgan@forthepeople.com JPavlos@forthepeople.com The Defendant is represented by: Byron K Henry, Esq. SCHEEF & STONE LLP 2600 Network Blvd., Suite 400 Frisco, TX 75034 Phone: (214) 472-2100 Fax: (214) 472-2150 Email: byron.henry@solidcounsel.com PARK AVENUE SECURITY: Morris Sues Over Labor Law Violations ----------------------------------------------------------- Darryl Morris, on behalf of himself and all others similarly situated v. PARK AVENUE SECURITY SOUTH, INC., d/b/a PARK AVENUE SECURITY EAST, Case No. 712420/2023 (N.Y. Sup. Ct., Queens Cty., June 15, 2023), is brought for damages and other legal and equitable relief against the Defendant for violations of the New York State Labor Law ("NYLL"), the New York Code of Rules and Regulations ("NYCRR"), The New York Wage Theft Prevention Act. Defendant required Plaintiff to wear a uniform as a condition of his employment. Defendant's uniform consisted of a blazer and shirt emblazoned with Defendant's logo, and a pair of grey pants. At his time of hire, Plaintiff was provided a uniform. Plaintiff was required by Defendant to wear this uniform every shift. Plaintiff did, in fact, wear the uniform every shift. Defendant did not launder Plaintiff's required uniforms. Defendant did not offer to launder or otherwise maintain the required uniforms. Defendant did not ensure that Plaintiff had access to additional uniforms. Plaintiff's uniform was issued by Defendant for the express benefit of Defendant and it was a condition of Plaintiff's employments to wear it in a clean condition during each shift. Plaintiff's uniform required daily washing. Defendant never paid any uniform maintenance pay or reimbursement for the cost of maintaining the uniform. Plaintiff spent time off-the-clock and money to clean to maintain the uniform consistent with the uniform appearance standards Defendant required. Plaintiff was entitled to reimbursement or additional pay for time spent off the clock and money spent in laundering and maintaining Defendant's uniform. Defendant never reimbursed or offered to reimburse Plaintiff for the cost of any additional uniforms. This pattern of conduct was continuous throughout Plaintiff's employment. Defendant's unlawful conduct has been widespread, repeated, and consistent, says the complaint. The Plaintiff was employed by Defendant and predecessor-entities as a security guard. The Defendant is a domestic corporation organized pursuant to the laws of the State of New York.[BN] The Plaintiff is represented by: Mark Gaylord, Esq. BOUKLAS GAYLORD LLP 357 Veterans Memorial Highway Commack, NY 11725 Phone: (516) 742-4949 PENHALL COMPANY: Vazquez-Alfaro Files Suit in N.D. Texas -------------------------------------------------------- A class action lawsuit has been filed against Penhall Company. The case is styled as Jose Luis Vazquez-Alfaro, on behalf of himself and all others similarly situated v. Penhall Company, Case No. 3:23-cv-01355-X (N.D. Tex., June 16, 2023). The nature of suit is stated as Other Contract for Contract Dispute. Penhall -- http://www.penhall.com/-- is the country's largest provider of concrete cutting, scanning, and removal services.[BN] The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP, PLLC - DALLAS 3811 Turtle Creek Blvd., Suite 1450 Dallas, TX 75219 Phone: (214) 744-3000 Fax: (214) 744-3015 Email: jkendall@kendalllawgroup.com PENN HIGHLANDS: Muraski Files Suit in W.D. Pennsylvania ------------------------------------------------------- A class action lawsuit has been filed against Penn Highlands Healthcare, Inc. The case is styled as Martin Muraski, Devin Young, on behalf of themselves and all others similarly situated v. Penn Highlands Healthcare, Inc., Case No. 3:23-cv-00135-SLH (W.D. Penn., June 21, 2023). The nature suit is stated as Other P.I. Penn Highlands Healthcare -- https://www.phhealthcare.org/ -- is an eight-hospital integrated health system in northwestern Pennsylvania.[BN] The Plaintiffs are represented by: Jonathan K. Cohn, Esq. STEMBER COHN & DAVIDSON-WELLING, LLC The Hartley Rose Building 425 First Avenue, 7th Floor Pittsburgh, PA 15219 Phone: (412) 338-1445 Fax: (412) 338-1446 Email: jcohn@stembercohn.com PEPPERDINE UNIVERSITY: Pinzon Seeks to Certify Class of Students ---------------------------------------------------------------- In the class action lawsuit captioned as Joseph Pinzon v. Pepperdine University, Case No. 2:20-cv-04928-DMG-KS (C.D. Cal.), the Plaintiffs ask the Court to enter an order under Federal Rule of Civil Procedure 23(b)(3), certifying a class defined as: "All students who paid or were obligated to pay tuition, fees, or other costs to Pepperdine University for the Spring 2020 academic term." Excluded from the class definition are all students who enrolled in Pepperdine's education programs that, prior to March 16, 2020, were offered exclusively online. Also excluded from the class is the Defendant, the Defendant's officers, directors, agents, trustees, parents, children, corporations, trusts, representatives, employees, principals, servants, partners, joint ventures, or entities controlled by the Defendant, and their heirs, successors, assigns, or other people or entities related to or affiliated with the Defendant and/or the Defendant’s officers and/or directors, the judges assigned to this action, and any member of a judge's immediate family." The Plaintiffs also ask the Court to enter an order: 1. appointing the Plaintiffs Mathew Rezvani and Joseph Pinzon as Class Representatives; 2. appointing the Plaintiffs' counsel Hagens Berman Sobol Shapiro LLP and Shegerian & Associates, Inc. as Co-Lead Class Counsel; and 3. directing that notice of this class action, along with the rights of absent class members to exclude themselves or remain in the action, be disseminated to the members of the proposed class in the manner and by the deadlines set by the Court. Pepperdine University is a private research university affiliated with the Churches of Christ with its main campus in Los Angeles County, California. A copy of the Plaintiffs' motion dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3NL446t at no extra charge.[CC] The Plaintiffs are represented by: Daniel J. Kurowski, Esq. Christopher R. Pitoun, Esq. Steve W. Berman, Esq. Whitney K. Siehl, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 920 Pasadena, CA 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 E-mail: christopherp@hbsslaw.com steve@hbsslaw.com dank@hbsslaw.com whitneys@hbsslaw.com - and - Carney R. Shegerian, Esq. Anthony Nguyen, Esq. Cheryl A. Kenner, Esq. SHEGERIAN & ASSOCIATES, INC. 11520 San Vicente Boulevard Los Angeles, CA 90049 Telephone: (310) 860-0770 Facsimile: (310) 860-0771 E-mail: CShegerian@Shegerianlaw.com ANguyen@Shegerianlaw.com CKenner@Shegerianlaw.com PERFETTO ENTERPRISE: Richmond Sues to Recover Prevailing Wages -------------------------------------------------------------- Compton Richmond, Marcus Washington, and Matica Pruitt, individually and on behalf of all putative class members v. PERFETTO ENTERPRISE CO., INC., NATIONWIDE MUTUAL INSURANCE COMPANY, and JOHN DOE BONDING COMPANIES, Case No. 517693/2023 (N.Y. Sup. Ct., Kings Cty., June 16, 2023), is brought to recover prevailing wages, daily overtime and supplemental benefits they were contractually and statutorily entitled to receive for work, including weekend, evening and holiday work, they performed on the sites of the Public Works Projects, pursuant to the New York Common law, on behalf of themselves and a New York Civil Practice Laws & Rules ("CPLR"). The Defendant has contracted with the City of New York through the Department of Design and Construction ("DDC"), the Department of Parks and Recreations ("Parks Dept."), the Department of Environmental Protection ("DEP"), and other city agencies to provide construction, repair and maintenance of sewers, water mains, milling, and other street construction work on public streets and roadways (the "Public Works Projects"). The Defendant is required to supply flaggers to ensure safety of the public and the construction crew on the Public Works Projects. The Named Plaintiffs and members of the putative class (collectively, the "Plaintiffs") are construction flaggers who furnished labor to Perfetto on Public Works Projects throughout the 5 boroughs of New York City. Throughout their respective employment periods with Defendants, Plaintiffs were not paid the applicable prevailing rate of wages or supplemental benefits for labor they furnished on the Public Works Projects, says the complaint. The Plaintiffs worked for Perfetto as "flaggers." Perfetto Enterprise Co., Inc. is a general construction contractor specializing in utility, infrastructure, and other heavy construction projects on New York City streets and roadways.[BN] The Plaintiff is represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. Alison L. Mangiatordi, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Phone: (212) 385-9700 Email: pelton@peltongraham.com graham@peltongraham.com mangiatordi@peltongraham.com Web: www.peltongraham.com PERFORMANCE NUTRITION: Luis Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Performance Nutrition Formulators, LLC. The case is styled as Kevin Yan Luis, individually and on behalf of all others similarly situated v. Performance Nutrition Formulators, LLC, Case No. 1:23-cv-05163 (S.D.N.Y., June 19, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Performance Nutrition Formulators LLC doing business as VMI Sports -- https://www.vmisports.com/ -- is Sports Nutrition Lifestyle brand that Develops the highest quality best tasting supplements for all types of Fitness Enthusiasts.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com PESCIENCE LLC: Kunkle Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Pescience, LLC. The case is styled as Frank Kunkle, on behalf of himself and all others similarly situated v. Pescience, LLC, Case No. 1:23-cv-05094 (S.D.N.Y., June 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. PEScience -- https://pescience.com/ -- makes a wide range of sports supplements: Protein, Protein Bars, Pre-Workouts, Amino Acids & more.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com PHARMACARE US: Corbett Allowed to Seal Portions of Class Cert Bid ----------------------------------------------------------------- In the class action lawsuit captioned as MONTIQUENO CORBETT, et al., v. PHARMACARE U.S., INC. et al., Case No. 3:21-cv-00137-JES-AHG (S.D. Cal.), the Hon. Judge James E. Simmons, Jr. entered an order granting the Plaintiff's ex parte application to seal portions of the Plaintiff's motion for class certification. Pharmacare creates, markets and sells healthcare products. A copy of the Court's order dated June 12, 2023 is available from PacerMonitor.com at https://bit.ly/3r4ExMp at no extra charge.[CC] PHARMERICA CORPORATION: Luther Files Suit in W.D. Kentucky ---------------------------------------------------------- A class action lawsuit has been filed against Pharmerica Corporation. The case is styled as Charley Luther, individually and on behalf of all others similarly situated v. Pharmerica Corporation, Case No. 3:23-cv-00315-GNS (W.D. Ky., June 21, 2023). The nature suit is stated as Other Personal Property for Personal Injury. PharMerica -- https://pharmerica.com/ -- is the total long-term care pharmacy solution, offering national expertise with a community focus.[BN] The Plaintiff is represented by: Amanda V. Boltax, Esq. James J. Pizzirusso, Esq. HAUSFELD LLP 888 16th Street, N.W., Suite 300 Washington, DC 20006 Phone: (202) 540-7200 - and - Amy Keller, Esq. DICELLO LEVITT LLP Ten North Dearborn Street, 6th Floor Chicago, IL 60602 Phone: (312) 214-7900 - and - Casey L. Hinkle, Esq. KAPLAN JOHNSON ABATE & BIRD LLP 710 W. Main Street, Suite 400 Louisville, KY 40202 Phone: (502) 416-1630 Fax: (502) 855-4971 Email: chinkle@kaplanjohnsonlaw.com - and - Cecily C. Jordan, Esq. Kim D. Stephens, Esq. TOUSLEY BRAIN STEPHENS PLLC 1200 Fifth Avenue, Suite 1700 Seattle, WA 98101 Phone: (206) 682-5600 - and - David A. Straite, Esq. DICELLO LEVITT LLP 485 Lexinton Avenue, Suite 1001 New York, NY 10017 Phone: (646) 933-1000 - and - Lawrence L. Jones, II, Esq. JONES WARD 445 Baxter Avenue, Suite 275 Louisville, KY 40204 Phone: (502) 882-6000 Email: larry@jonesward.com - and - Steven M. Nathan, Esq. HAUSFELD LLP 33 Whitehall Street, 14th Floor New York, NY 10004 Phone: (643) 357-1100 PHILLIPS 66: Dinsmore Seeks to Certify Settlement Class ------------------------------------------------------- In the class action lawsuit captioned as Marvin B. Dinsmore, et al., on behalf of themselves, and all others similarly situated, v. Phillips 66 Company, Case No. 6:22-cv-00044-JFH (E.D. Okla.), the Plaintiffs request that the Court enter the agreed proposed Preliminary Approval Order: (1) certifying the Settlement Class for Settlement purposes; (2) preliminarily approving the Settlement; (3) appointing the Plaintiffs as Class Representatives for the Settlement Class; (4) appointing Reagan E. Bradford, Ryan K. Wilson, and James U. White as Co-Lead Class Counsel for the Settlement Class; (5) approving the form and manner of the proposed Notice; (6) appointing JND Legal Administration as Settlement Administrator; (7) appointing MidFirst Bank as Escrow Agent; and (8) setting a hearing date for final approval of the Settlement and application for an award of the Plaintiffs' Attorneys' Fees, Litigation Expenses and Administration, Notice, and Distribution Costs, and Case Contribution Awards to the Plaintiffs. The Plaintiffs1 have obtained an outstanding recovery for the Settlement Class. Specifically, the Plaintiffs have reached a settlement with Phillips 66 Company worth $7,000,000.00 in cash for the Plaintiffs' class claims for statutory interest owed on late payments of oil-and-gas proceeds under Oklahoma law. Additionally, the Plaintiffs have obtained future benefits for the Settlement Class by obtaining an agreement from the Defendant that it will implement procedures to calculate and pay interest without a demand. The Plaintiffs initiated this case on February 7, 2022, alleging that the Defendant violated Oklahoma's Production Revenue Standards Act (PRSA), by failing to pay statutory interest owed on the payment of oil-and-gas proceeds made outside of the timelines set out in the PRSA. The Defendant filed its answer on March 1, 2022. the Plaintiffs issued their first set of written discovery requests to the Defendant on March 23, 2022. The parties conferred and filed a joint status report on April 6, 2022. The Court then entered a scheduling order on April 8, 2022. The Defendant served its written discovery responses on April 29, 2022. The Plaintiffs move the Court to certify a Settlement Class consisting of: "All non-excluded persons or entities who: (1) received Late Payments from the Defendant (or the Defendants designee) for oil- and-gas proceeds from Oklahoma wells; or whose proceeds were escheated to a government entity by the Defendant; or whose proceeds from Oklahoma wells were held in suspense by the Defendant on or before March 10, 2023; and (2) who have not already been paid statutory interest on the Late Payments or on the amounts held in suspense by the Defendant on or before March 10, 2023." Excluded from the Class are: (1) the Defendant, its affiliates, predecessors, and employees, officers, and directors; (2) agencies, departments, or instrumentalities of the United States of America or the State of Oklahoma; and (3) any Indian tribe as defined at 30 U.S.C. § 1702(4) or Indian allottee as defined at 30 U.S.C. section 1702(2). The proposed Settlement Class satisfies the requirements of Rule 23, and thus this Court should certify the Settlement Class. Phillips 66 is an American multinational energy company. A copy of the Court's order dated June 12, 2023, is available from PacerMonitor.com at https://bit.ly/3qXQFiy at no extra charge.[CC] The Plaintiffs are represented by: Reagan E. Bradford, Esq. Ryan K. Wilson, Esq. BRADFORD & WILSON PLLC 431 W. Main Street, Suite D Oklahoma City, OK 73102 Telephone: (405) 698-2770 E-mail: reagan@bradwil.com ryan@bradwil.com – and – James U. White, Jr., Esq. WHITE, COFFEY AND FITE, P.C. Oklahoma City, OK 73154 Telephone: (405) 842-7545 E-mail: jwhite@wcgflaw.com PLUMP P&C LLC: Delacruz Files ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Plump P&C, LLC. The case is styled as Emanuel Delacruz, on behalf of himself and all other persons similarly situated v. Plump P&C, LLC, Case No. 1:23-cv-05027-KPF (S.D.N.Y., June 14, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Plump P&C, LLC offers cosmetics and cosmetics preparations; cosmetics skincare products.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com POINT32HEALTH INC: Boyle Files Suit in Mass. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against Point32health, Inc., et al. The case is styled as Anne Boyle, on behalf of Herself and others similarly situated v. Point32health, Inc., Harvard Pilgrim Health Care, Inc., Case No. 2382CV00547 (Mass. Super. Ct., Norfolk Cty., June 14, 2023). The case type is stated as "Torts." Point32Health -- https://www.point32health.org/ -- is a leading health & wellbeing organization, delivering an ever-better health care experience to everyone.[BN] The Plaintiffs are represented by: Kurt Hagstrom, Esq. HAGSTROM LAW GROUP 66 North Second St. New Bedford, MA 02740 PRO BOXING SUPPLIES: Castro Files ADA Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Pro Boxing Supplies, Inc. The case is styled as Felix Castro, on behalf of himself and all others similarly situated v. Pro Boxing Supplies, Inc., Case No. 1:23-cv-05087-ER (S.D.N.Y., June 16, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Pro Boxing Supplies -- https://proboxingsupplies.com/ -- produces the highest quality, USA-made fight equipment since 1980.[BN] The Plaintiff is represented by: Noor Abou-Saab, I, Esq. LAW OFFICE OF NOOR A. SAAB 380 North Broadway, Suite 300 Jericho, NY 11753 Phone: (718) 740-5060 Email: noorasaablaw@gmail.com PROCOM HEATING INC: Velazquez Files ADA Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Procom Heating, Inc. The case is styled as Bryan Velazquez, on behalf of himself and all others similarly situated v. Procom Heating, Inc., Case No. 1:23-cv-05020-ER (S.D.N.Y., June 14, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ProCom Heating Inc. -- https://www.usaprocom.com/ -- is one of the world's leading manufacturers of heating appliances with high quality fireplace ideas for your home.[BN] The Plaintiff is represented by: Mark Rozenberg, Esq. STEIN SAKS, PLLC One University Plaza, Ste. 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Email: mrozenberg@steinsakslegal.com PROGRESSIVE UNIVERSAL: Extension to File Class Cert Bid Sought -------------------------------------------------------------- In the class action lawsuit captioned as AMY KROEGER, individually and on behalf of all others similarly situated, v. PROGRESSIVE UNIVERSAL INSURANCE COMPANY, Case No. 4:22-cv-00104-SHL-HCA (S.D. Iowa), the Parties ask the Court to enter an order modifying the amended scheduling order: Current Proposed Deadline Deadline The Plaintiff's Expert Disclosures June 14, 2023 July 7, 2023 The Plaintiff's Motion for Class June 14, 2023 July 7, 2023 Certification The Defendant's Expert Disclosures Aug. 14, 2023 Sept. 8, 2023 The Defendant's Opposition to Aug. 14, 2023 Sep. 8, 2023 Motion for Class Certification The Plaintiff's Reply in support: Sept. 25, 2023 Oct. 23, 2023 of Class Certification: Deadline for completion of Sept. 13, 2023 N/A Expert Discovery The Plaintiff Amy Kroeger and the Defendant Progressive Universal Insurance Company, pursuant to Local Rules 7(i) and (j), jointly move for expedited relief to modify the Amended Scheduling Order entered by the Court on January 26, 2023. The case is one of 32 nearly identical statewide class actions against the Defendant and its affiliates challenging the calculation of the Projected Sold Adjustment ("PSA") in valuing total-loss claims (the "PSA Cases"). King & Spalding LLP represents the defendants in all the PSA Cases, and Shamis & Gentile P.A., Edelsberg Law P.A., Normand PLLC, and Carney Bates & Pulliam represent nearly all plaintiffs in the PSA Cases. On January 26, 2023, this Court granted the Parties’ request to continue the trial and amend the Scheduling Order to allow additional time to complete fact discovery which included extensive document production of all Iowa insureds' total loss claim files as well as to conduct depositions in the case. Progressive Universal operates as an insurance firm. The Company provides property and casualty insurance services. A copy of the Court's order dated June 12, 2023, is available from PacerMonitor.com at https://bit.ly/3XvTdR1 at no extra charge.[CC] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - J. Barton Goplerud, Esq. SHINDLER, ANDERSON, GOPLERUD & WEESE P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 Facsimile: (515) 223-8887 Email: goplerud@sagwlaw.com The Defendant is represented by: Allison Hill White, Esq. Jeffrey S. Cashdan, Esq. Zachary A. McEntyre, Esq. J. Matthew Brigman, Esq. KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 E-mail: jcashdan@kslaw.com zmcentyre@kslaw.com mbrigman@kslaw.com awhite@kslaw.com - and - Michael W. Thrall, Esq. NYEMASTER GOODE, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309 Telephone: (515) 283-3189 E-mail: mwt@nyemaster.com PROSUPPS USA: Scheibe Appeals Consumer Suit Dismissal to 9th Cir. ----------------------------------------------------------------- JACOB SCHEIBE is taking an appeal from a court order dismissing his lawsuit entitled Jacob Scheibe, individually and on behalf of all others similarly situated, Plaintiff, v. ProSupps USA, LLC, Defendant, Case No. 3:22-cv-01784-BEN-MSB, in the U.S. District Court for the Southern District of California. As previously reported in the Class Action Reporter, the Plaintiff alleges that the Defendant manufactured, packaged, labeled, advertised, distributed, and sold dietary supplement products that are misbranded and falsely advertised in violation of the California Business & Professions Code and the Consumer Legal Remedies Act. On Mar. 6, 2023, the Plaintiff filed an amended complaint, which the Defendant moved to dismiss on Mar. 20, 2023. On May 18, 2023, the Court granted the Defendant's motion to dismiss without prejudice through an Order entered by Judge Roger T. Benitez. The Court agreed with the Defendant's argument that the Plaintiff's state law claims are preempted because the Plaintiff did not plead that he followed the protocol mandated by the U.S. Food and Drug Administration (FDA) in testing product. The appellate case is captioned Jacob Scheibe v. ProSupps USA, LLC, Case No. 23-55526, in the United States Court of Appeals for the Ninth Circuit, filed on June 14, 2023. The briefing schedule in the Appellate Case states that: -- Appellant Jacob Scheibe Mediation Questionnaire was due on June 21, 2023; -- Appellant Jacob Scheibe opening brief is due on August 14, 2023; -- Appellee ProSupps USA, LLC answering brief is due on September 13, 2023; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiff-Appellant JACOB SCHEIBE, on behalf of himself and all others similarly situated, is represented by: Charles C. Weller, Esq. CHARLES C. WELLER, APC 11412 Corley Court San Diego, CA 92126 Telephone: (858) 414-7465 Defendant-Appellee PROSUPPS USA, LLC is represented by: Jaikaran Singh, Esq. FOLEY & LARDNER, LLP 11988 El Camino Real, Suite 400 San Diego, CA 92130 Telephone: (858) 847-6700 PUMA BIOTECHNOLOGY: Dlamini Files Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been filed against Puma Biotechnology, Inc. The case is styled as Mfolozi Dlamini, individually and on behalf of all others similarly situated v. Puma Biotechnology, Inc., Case No. 2:23-cv-04120-AB-RAO (C.D. Cal., May 26, 2023). The nature of suit is stated as Other P.I. for Tort/Non-Motor Vehicle. Puma Biotechnology -- https://www.pumabiotechnology.com/ -- is a publicly traded biopharmaceutical company headquartered in Los Angeles, California.[BN] The Plaintiff is represented by: M. Anderson Berry, Esq. Brandon Pierce Jack, Esq. Gregory Haroutunian, Esq. CLAYEO ARNOLD APLC 6200 Canoga Avenue, Suite 735 Woodland Hills, CA 91367 Phone: (747) 777-7748 Fax: (916) 924-1829 Email: aberry@justice4you.com bjack@justice4you.com gharoutunian@justice4you.com - and - Justin C. Walker, Esq. MARKOVITS STOCK AND DEMARCO LLC 119 East Court Street, Suite 530 Cincinnati, OH 45202 Phone: (513) 651-3700 Fax: (513) 665-0219 Email: jwalker@msdlegal.com PUSH PEDAL PULL: DiMeglio Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Push Pedal Pull, Inc. The case is styled as Maria DiMeglio, on behalf of herself and all others similarly situated v. Push Pedal Pull, Inc., Case No. 1:23-cv-05047-VSB (S.D.N.Y., June 15, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Push Pedal Pull -- https://pushpedalpull.com/ -- is a local commercial & home exercise equipment experts.[BN] The Plaintiff is represented by: Ara Vahe Naljian, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 584-5575 Email: analjian@steinsakslegal.com QUEST DIAGNOSTICS: Perez Files Suit in Cal. Super. Ct. ------------------------------------------------------ A class action lawsuit has been filed against Quest Diagnostics Incorporated, et al. The case is styled as Lorenzo Perez, on behalf of all others similarly situated v. Quest Diagnostics Incorporated, Does 1-10, Case No. 23CV003213 (Cal. Super. Ct., Sacramento Cty., June 14, 2023). The case type is stated as "Other Employment Complaint Case." Quest Diagnostics -- https://www.questdiagnostics.com/ -- is an American clinical laboratory.[BN] QUICK BOX: Tan May Change Konnektive's Name in Amended Complaint ---------------------------------------------------------------- In the case, LEANNE TAN, Plaintiff v. QUICK BOX, LLC, et al., Defendants. CHAD BIGGINS, Cross Claimant v. LA PURA DEFENDANTS and JOHN DOES 1-10, as defined in Plaintiff's First Amended Complaint, Cross Defendants, Case No. 20cv1082-LL-DDL (S.D.N.Y.), Judge Linda Lopez of the U.S. District Court for the Southern District of California: a. grants in part and denies in part the Plaintiff's Motion for Leave to Amend the First Amended Complaint; and b. denies her Motion for Leave to File Documents Under Seal. On June 12, 2020, the Plaintiff filed a putative consumer fraud class action against alleged operators of an online "free trial" scam. She alleges the Defendants fraudulently lured her, and other consumers like her, into purchasing a monthly installment of La Pura skin care products by offering "free samples" of the products. Despite assurances she would only have to pay the nominal costs of shipping the sample, the Plaintiff alleges that the Defendants charged her the full price for the product, along with ongoing installment payments. The Plaintiff filed the action against the La Pura Defendants (except for Rocket Management Group, LLC and Kiet Lieu), who allegedly operated the deceptive offer; Quick Box, LLC, Quick Holdings, LLC, Stephen Adele, Chad Biggins, and James Martel (the "Quick Box Defendants"), who allegedly facilitated the offer through fulfillment services and other services; and Konnektive Corp., Martorano Holdings, LLC, Konnektive Rewards, LLC, Matthew Martorano, and Katheryn Martorano (the "Konnektive Defendants"), who allegedly facilitated the offer through the provision of software and other services. On Jan. 7, 2021, the Plaintiff filed the FAC. Each of the Defendants moved to dismiss the FAC, and on April 7, 2021, the Court denied each of their motions in significant part. The La Pura Defendants (except Rocket and Lieu), Quick Box Defendants, and Konnektive Defendants filed answers to the FAC. The Quick Box Defendants and the Konnektive Defendants also asserted crossclaims and third-party claims against the La Pura Defendants (including Rocket and Lieu). The La Pura Defendants filed answers to the crossclaims and third-party claims. On June 30, 2021, Magistrate Judge Daniel E. Butcher issued a scheduling order, setting a deadline of Aug. 30, 2021 to amend pleadings or join other parties. The scheduling order also set deadlines for class certification and fact discovery. Per a joint stipulation by the parties, the deadline to file any motion to amend pleadings or join other parties was extended to Nov. 1, 2021. The Parties then entered discovery. On Oct. 29, 2021, the case was stayed pending relief of an automatic stay imposed in a related bankruptcy action. On March 21, 2022, the stay was lifted. Shortly thereafter, Magistrate Judge Daniel E. Butcher issued a new scheduling order resetting the date for all discovery related to the motion for class certification to be completed by Sept. 16, 2022, and for the motion for class certification to be filed by Oct. 14, 2022. The scheduling order, however, did not reset the deadline to amend pleadings or join other parties. Discovery resumed, and the Court observes that the discovery phase of this litigation has been somewhat contentious with both sides filing several discovery-related motions. On Oct. 14, 2022, the Plaintiff filed a motion for class certification. On Nov. 4, 2022, she filed the instant Motion to Amend, including the proposed and red-lined Second Amended Complaint ("SAC"), seeking permission to add additional parties Lieu, Phong Ngo, Marc Evans, and Rocket as defendants, and reflect a post-suit name change by Konnektive Corporation to Converging Resources Corporation. In response to the filing of the Motion to Amend, the Quick Box Defendants and Konnective Defendants (collectively "Defendants") filed an ex parte application to extend the Court's class certification briefing schedule pending the resolution of the Plaintiff's Motion to Amend. On Nov. 23, 2022, the Court granted the ex parte application to set the class certification briefing schedule after the Court rules on the Plaintiff's pending Motion to Amend. On the same day, the Defendants filed an Opposition to the Motion to Amend. The Plaintiff filed a Reply to the Motion to Amend on Dec. 1, 2022. Judge Lopez first examines the Plaintiff's Motion for Leave to Amend the First Amended Complaint. The Plaintiff seeks leave to file a SAC for the following purposes: (1) to add Lieu, Ngo, Evans, and Rocket as defendants to the action; and (2) to reflect a post-suit name change by "Konnektive Corporation" to "Converging Resources Corporation." The Defendants oppose on the grounds that the Plaintiff's proposed amendments are untimely, prejudicial, and futile. Judge Lopez holds that the Plaintiff fails to demonstrate her diligence in filing the Motion to Amend. Therefore, she fails to establish "good cause" for modifying the scheduling order deadline under Rule 16. The Plaintiff's lack of diligence alone is a sufficient basis to deny the Motion to Amend, but Judge Lopez also concludes that the proposed amendments would prejudice the Defendants. Hence, she denies the Plaintiff's Motion to Amend as to the addition of Lieu, Ngo, Evans, and Rocket as potential defendants in this action. Judge Lopez grants the Plaintiff's request to correct Konnektive's name in the action. She directs the Clerk to reflect the change in Konnektive's name to "Converging Resources Corporation" on the docket. Therefore, she grants in part the Plaintiff's Motion to Amend as to the post-suit name change of Konnektive. Lastly, the Plaintiff seeks leave to file under seal unredacted versions of the Motion to Amend and a redlined version of her proposed SAC. Judge Lopez finds that the Plaintiff offers the exact same justifications and reasons she provided in her other motions to seal. Further, the information contained in her Motion to Amend and its corresponding documents are not subject to sealing under the governing standards of the Ninth Circuit. The Plaintiff only cites to the protective order as justification for sealing portions of the Motion for Leave to Amend and its corresponding documents. Therefore, her Motion to Seal is denied. For the foregoing reasons, Judge Lopez denies the Plaintiff's Motion to Amend as to the addition of four new defendants; grants her Motion to Amend as to the post-suit name change of "Konnektive Corporation" to "Converging Resources Corporation"; and denies the Plaintiff's Motion to Seal. The Clerk is directed to reflect Defendant Konnektive Corporation's name change to "Converging Resources Corporation" on the docket. Given the Court's ruling on the Plaintiff's Motion to Amend, a new class certification briefing schedule is to follow. Within seven days of the issuance of the Order, the Plaintiff will file on the public docket unredacted copies of ECF Nos. 240, 240-2, and 240-3. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/23675s4n from Leagle.com. R&B CORPORATION: Huamani Files Suit in E.D. Virginia ---------------------------------------------------- A class action lawsuit has been filed against R&B Corporation of Virginia. The case is styled as Veronica Huamani, on behalf of herself and all others similarly situated v. R&B Corporation of Virginia doing business as: Credit Control Corporation, Case No. 4:23-cv-00067-EWH-LRL (E.D. Va., May 30, 2023). The nature of suit is stated as Other Contract. R&B Corporation of Virginia doing business as Credit Control -- https://creditcontrol.net/ -- is a debt collection agency.[BN] The Plaintiffs are represented by: David Hilton Wise, Esq. Joseph Michael Langone, Esq. Wise Law Firm, PLC 10640 Page Avenue, Suite 320 Fairfax, VA 22030 Phone: (703) 934-6377 Fax: (703) 934-6379 Email: dwise@wiselaw.pro jlangone@wiselaw.pro REPUBLIC BAR AND LOUNGE: Chox Sues Over Unpaid Overtime Wages ------------------------------------------------------------- Maria Chox, individually and on behalf of all others similarly situated v. REPUBLIC BAR AND LOUNGE INC. d/b/a REPUBLIC LATIN FUSION; REPUBLICA BAR AND LOUNGE INC. d/b/a REPUBLIC LATIN FUSION; CHRISTIAN ALMONTE; SYED HOSSAIN; and MICHAEL PHILLIPI, Case No. 1:23-cv-04494 (E.D.N.Y., June 16, 2023), is brought seeking equitable and legal relief including unpaid overtime wages for Defendants' violations of the Fair Labor Standards Act of 1938 ("FLSA"); the New York Labor Law ("NYLL"); the New York State Human Rights Law ("NYSHRL"); the New York City Human Rights Law ("NYCHRL"). The Plaintiff was a non-exempt employee under the FLSA and NYLL and was entitled to receive spread of hours pay and overtime compensation for all hours she worked in excess of 40 per week. The Plaintiff was not paid overtime compensation of one and one-half times the minimum wage rate or her regular hourly rate of pay, whichever is greater, for all hours worked in excess of 40 per week. The Defendants also failed to pay Plaintiff for one additional hour of work at the applicable minimum wage rate on days in which Plaintiff worked a spread of hours that exceeded 10 hours. The Defendants also failed to furnish to Plaintiff a payroll notice at the time of her hire, or at any time thereafter, containing Plaintiff's rates of pay, the designated payday, or other information required by NYLL. the Defendants further failed to furnish to Plaintiff, with each wage payment, an accurate statement listing Plaintiff's regular and overtime rates of pay and the number of regular and overtime hours worked, or any other information required by NYLL, says the complaint. The Plaintiff worked for the Defendants as a salad chef and a food preparer from March 2022 until September 2022. Republic Bar and Lounge Inc. is a domestic corporation located in Bronx, New York.[BN] The Plaintiff is represented by: Nicole Grunfeld, Esq. KATZ MELINGER PLLC 370 Lexington Avenue, Suite 1512 New York, NY 10017 Phone: (212) 460-0047 Fax: (212) 428-6811 Email: ndgrunfeld@katzmelinger.com RICOLA USA: Faces Prescott Suit Over Cough Suppressant's False Ads ------------------------------------------------------------------ Steven Prescott, individually and on behalf of all others similarly situated v. Ricola USA, Inc., Case No. 5:23-cv-02983-SVK (N.D. Cal., June 16, 2023) alleges that the Defendant made express and implied representations that the lozenges "Made With Swiss Alpine Herbs" functioned as a cough suppressant and oral anesthetic due to the presence of herbal ingredients, in violation of the California's Unfair Competition Law, the California's False Advertising Law, and the California's Consumer Legal Remedies Act. The Plaintiff contends that despite the front label representations of "Original Herb Cough Drops," "Cough Suppressant," "Oral Anesthetic," "Effective Relief," "Made With Swiss Alpine Herbs," pictures of ten herbs of peppermint, elder, wild thyme, horehound, hyssop, mallow, sage, linden flowers, lemon balm and thyme and a picture of an amber lozenge, the Product's therapeutic effects are not provided by any of these pictured herbs. This is shown through a review of the Drug Facts on the back label, which identify menthol as the only active ingredient. However, the herbs promoted on the front label are exclusively "Inactive Ingredients", the Plaintiff claims. Since the Product contains ingredients that are used to treat concurrent symptoms, its statement of identity is required to include the name of the drug, menthol, and identify its function as an oral anesthetic and cough suppressant. Though the front label is allowed and required to identify the Product as a cough suppressant and oral anesthetic, the failure to include the drug ingredient of menthol renders its labeling misleading to consumers, the Plaintiff adds. As a result of the alleged false and misleading representations, the Product is sold at a premium price of no less than $3.99 per 21 lozenges, excluding tax and sales, higher than similar products, represented in a non-misleading way, and higher than it would be sold for absent the misleading representations and omissions. The Plaintiff purchased the Product on one or more occasions at stores including Grocery Outlet, in and around Santa Cruz, California, between July 2020 and May 2023. Ricola manufactures cough suppressant and oral anesthetic lozenges under the Ricola brand.[BN] The Plaintiff is represented by: Kyle Gurwell, Esq. LAW OFFICE OF KYLE GURWELL 7755 Center Ave Ste 1100 Huntington Beach CA 92647 Telephone: (714) 372-2245 E-mail: kng@lawofficekg.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com ROCKET MORTGAGE: Faces Class Action Over Telemarketing Violations ----------------------------------------------------------------- Andrew Martinez of National Mortgage News reports that Rocket Mortgage is fighting four class action complaints from consumers accusing it of persistent, unwanted calls and text messages, as it reckons with some of the numerous telemarketing complaints lodged against lenders. Citizens have filed over 65 lawsuits in the past few years against mortgage firms for alleged violations of the decades-old Telephone Consumer Protection Act. Four other TCPA complaints against Rocket have reached conclusions via arbitration or settlement, but four consumers continue to seek class action certification. The industry leader in a statement this week highlighted its awards for customer satisfaction, and suggested attorneys for plaintiffs are littering the industry with "baseless" TCPA claims in search of quick, lucrative settlements. [GN] RUSTIC CUFF LLC: Toro Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Rustic Cuff, LLC. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Rustic Cuff, LLC, Case No. 1:23-cv-05321 (S.D.N.Y., June 22, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rustic Cuff -- https://www.rusticcuff.com/ -- offers new designs and styles for our beaded bracelets, cuffs, and other jewelry and accessories.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com SAFETY INSURANCE: Court Rejects Class Certs Over Diminished Value ----------------------------------------------------------------- Andrew G. Simpson of Insurance Journal reports that a judge in Massachusetts has denied class certifications for claimants seeking payments from two insurers for the lost resale value of their motor vehicles that were damaged in accidents and then repaired. Suffolk County Superior Court Justice Kenneth W. Salinger ruled that the damage and liability determinations being sought require individualized proof and cannot be addressed through class actions. Plaintiffs Jarret McGilloway, Linda Estrella and Adam Ercolini sought class certifications for their claims against Safety Insurance Co. and the Commerce Insurance Co. The two insurers allowed plaintiffs' claims for third-party collision damage and paid to repair their vehicles and restore them to their prior condition, but did not pay for alleged loss of resale value. The plaintiffs contend that the insurers committed breaches of contract, and also engaged in an unfair business practices, by not paying every class member for lost resale value that their motor vehicle allegedly suffered after being damaged in a collision and then fully repaired. The plaintiffs moved for class certifications on their claims for breach of contract and for violation of Chapter 93A, the state's consumer protection law. They filed separate motions in each of these consolidated cases, seeking certification of one class with claims against Safety and a separate class with claims against Commerce. The proposed class of plaintiffs with claims against Safety would have at least 26,000 members, while the class asserting claims against Commerce would have roughly 470,000 members. The kind of loss that plaintiffs sought to recover is known as inherent diminished value or IDV. This term refers to "the concept that a vehicle's fair market value may be less following a collision and repairs" and it equals the "difference between the resale market value of a motor vehicle immediately before a collision and the vehicle's market value after a collision and subsequent repairs." Supreme Court Ruling The class action move followed a 2018 Massachusetts Supreme Judicial Court (SJC) ruling that the standard Massachusetts automobile insurance policy required insurers to pay third-party collision damage claims for IDV to vehicles that are damaged and subsequently repaired. However, as Superior Court Justice Salinger noted, the SJC stressed that the insurers should have to pay IDV only if the claimant establishes both that his or her vehicle suffered IDV, and the amount of IDV damages owed to him or her. The SIC made clear it was not suggesting "that every automobile that is involved in a collision and is subsequently repaired has suffered an IDV," explaining that "individualized proof is required to demonstrate that a given automobile has sustained some form of diminished value due to a collision or vehicular accident, even after repairs are made." With regard to the proposed classes, Justice Salinger found that a material dispute still exists regarding whether any of the plaintiffs' vehicles have suffered IDV due to a collision and, if so, whether and in what amount such damage can be quantified. Each plaintiff has the burden of proof on these issues. Regarding the rules governing class certifications, the Superior Court found that the proposed classes would satisfy some but not all of the requirements. They would meet the requirements of numerosity, commonality, typicality, and adequacy of representation. As for numerosity, the proposed class of plaintiffs with claims against Safety would have at least 26,000 members, and the class with claims against Commerce would have roughly 470,000 members. As for commonality and typicality, all putative class members would assert the same theories of liability and seek the same general kind of damages. And as for adequacy of representation, the interests of the named plaintiffs are aligned with those of the other putative class members, and plaintiff's counsel is well qualified to conduct the litigation on behalf of the proposed class members. That was the good news for the plaintiffs. Missing Criteria However, the judge continued, the proposed classes would not meet the requirements for predominance and superiority or the requirements under the consumer protections law (Chapter 93A), that class members have suffered similar injuries. The failure to show predominance and superiority also weighed against certifying classes as to the 93A claims, the judge added. The court cited testimony by Commerce's valuation expert that determining whether a vehicle's resale market value is less than it would have been immediately before the collision "requires detailed and individualized analysis of many factors, including the nature and severity of the damage and the quality of the repairs' whether the vehicle had a prior accident history; in what manner the vehicle is to be sold after being repaired (e.g., private sale, retail sale, trade-in); the general class of vehicle (e.g. inexpensive sedans, minivans, high- end luxury vehicles, etc.); and the market segment of buyer involved in any subsequent sale." There was also testimony that many vehicles that are damaged in a collision and then are fully repaired do not suffer any IDV, but instead are worth just as much and sometimes even more after being repaired than they were worth before the collision. Plaintiffs themselves conceded during oral argument that many class members may not have suffered IDV. The judge did not favor plaintiffs testimony that IDV damages can be determined using nothing but a standard vehicle valuation guide (like the one published by the National Automobile Dealers Association) and the damage appraisal report for each vehicle. But, the judge added, even if each IDV analysis could be much simpler than the Commerce expert testified, that would not change the fact that "liability cannot be determined on a class-wide basis and instead would have to be decided individually for the tens of thousands or hundreds of thousands of members of each proposed class." 'Individualized Proof' The court found that "individualized proof, analysis, and findings would be required to determine whether any putative class member's vehicle suffered some amount" of IDV and, if so, how much. The court said the evidence confirmed what the SJC in its 2018 ruling. "Because the issue of liability requires individualized proof and cannot be decided on a class wide basis, the Court finds and concludes that common issues do not predominate over individual ones, a class action is not superior to individual adjudication of claims, and denial of class certification is therefore appropriate," the judge wrote. Similarly, class certification is inappropriate under Chapter 93A for the further reason that not all class members were subjected to similar unfair or deceptive conduct and suffered similar injuries. Thus, class certification under 93A is also not appropriate. Plaintiffs further argued that the issue of which class members suffered injury in the form of uncompensated IDV raises only a question of damages that can be address later on, and should not preclude class certification. The court disagreed. "There is a difference between determining the extent of harm (the question of damages) and deciding whether there was any harm at all (which goes to liability). While obstacles to calculating damages may not preclude class certification, the putative class must first demonstrate economic; loss on a common basis," the judge explained. There is no liability for breaching a contract, like an insurance policy, if the alleged wrongdoing did not cause damages. A business or consumer is not entitled to collect even nominal damages under 93A without proving that the violation caused some sort of "separate" and "distinct" injury. The need in this case for an individualized inquiry to resolve such issues would involve much more than "merely a question of damages," and makes it appropriate to deny class certification, the court stated. [GN] SAN DIEGO COUNTY, CA: Dunsmore, et al., Can File Docs Under Seal ---------------------------------------------------------------- In the class action lawsuit captioned as DARRYL DUNSMORE, ANDREE ANDRADE, ERNEST ARCHULETA, JAMES CLARK, ANTHONY EDWARDS, LISA LANDERS, REANNA LEVY, JOSUE LOPEZ, CHRISTOPHER NELSON, CHRISTOPHER NORWOOD, JESSE OLIVARES, GUSTAVO SEPULVEDA, MICHAEL TAYLOR, and LAURA ZOERNER, on behalf of themselves and all others similarly situated, v. SAN DIEGO COUNTY SHERIFF’S DEPARTMENT, COUNTY OF SAN DIEGO, SAN DIEGO COUNTY PROBATION DEPARTMENT, and DOES 1 to 20, inclusive, Case No. 3:20-cv-00406-AJB-DDL (S.D. Cal.), the Hon. Judge Anthony J. Battaglia entered an order granting the plaintiffs' motion to file documents under seal. The Court agrees with the Plaintiffs. The exhibit at issue makes direct references to the Plaintiffs' medical health histories, conditions, diagnoses, and treatments. Release of this information to the public could potentially embarrass or injure the Plaintiffs. Moreover, balancing the need for the public's access to information regarding the Plaintiffs' health conditions weighs strongly in favor of sealing. Additionally, the Plaintiffs do not seek to seal information regarding conditions, communications, and custody and medical staff practices that are at issue in the underlying Motions. The Court finds the Plaintiffs have met their burden of overcoming the strong presumption in favor of public access, their request is narrowly tailored, and the names and identification numbers of non-party inmates have no bearing on this action. See San Diego County Sheriff's Department is the primary and largest law enforcement agency in San Diego County, California. A copy of the Court's order dated June 12, 2023 is available from PacerMonitor.com at https://bit.ly/3pi9ht3 at no extra charge.[CC] SANOFI-AVENTIS: Thompson Files Suit in N.D. California ------------------------------------------------------ A class action lawsuit has been filed against Sanofi-Aventis U.S. LLC, et al. The case is styled as Kristyn Thompson, individually and on behalf of all others similarly situated v. Sanofi-Aventis U.S. LLC, Case No. 3:23-cv-03073-JD (N.D. Cal., June 22, 2023). The nature of suit is stated as Other Fraud. Sanofi-Aventis U.S. LLC develops, manufactures,, and markets pharmaceutical products. Areas that Sanofi US cover include cardiovascular disease, central nervous system ailments, and metabolic disorders.[BN] The Plaintiff is represented by: Erika Angelos Heath, Esq. FRANCIS MAILMAN SOUMILAS, P.C. 369 Pine Street, Suite 410 San Francisco, CA 94104 Phone: (628) 246-1352 Fax: (215) 940-8000 Email: eheath@consumerlawfirm.com SENIOR VILLAGE: Fails to Pay Proper Wages, Markle Alleges --------------------------------------------------------- HEATHER MARKLE; & TERESA WHEELER, individually and on behalf of all others similarly situated, Plaintiffs v. SENIOR VILLAGE MANAGEMENT, LLC, Defendant, Case No. 5:23-cv-11461-GAD-EAS (E.D. Mich., June 21, 2023) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiffs were employed by the Defendant as caregivers. SENIOR LIVING MANAGEMENT CORP. was founded in 1993. The company's line of business includes providing management consulting services. [BN] The Plaintiffs are represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Rd Suite #126 Columbus, OH 43220 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 Email: mcoffman@mcoffmanlegal.com SHIPTONS BIG R: Jones Files ADA Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Shiptons Big R, Inc. The case is styled as Damon Jones, on behalf of himself and all others similarly situated v. Shiptons Big R, Inc., Case No. 1:23-cv-05294 (S.D.N.Y., June 22, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Shipton's Big R, Inc. -- https://shiptonsbigr.com/ -- operates as a farm and ranch store. The Company retails a range of products such as animal health and tacks, vaccines, medicine, health supplies, fencing, sporting goods, jewelry, power equipment and tools, heavy duty hauling, and other products.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com SHOEDAZZLE.COM INC: Toro Files ADA Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Shoedazzle.com, Inc. The case is styled as Jasmine Toro, on behalf of herself and all others similarly situated v. Shoedazzle.com, Inc., Case No. 1:23-cv-05323-PGG-BCM (S.D.N.Y., June 22, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. ShoeDazzle -- https://www.shoedazzle.com/ -- is a California- based online fashion subscription service that offers a monthly selection of shoes, handbags and jewelry curated to their members' fashion preferences.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com SIEMENS INDUSTRY: Enomoto Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against Siemens Industry, Inc. The case is styled as Chanielle Enomoto, Brandon Johnson, individually and on behalf of all others similarly situated v. Transdev Services, Inc., Transdev North America, Inc., Case No. 23CV036600 (Cal. Super. Ct., Alameda Cty., June 22, 2023). The case type is stated as "Other Employment Complaint Case." Siemens -- http://www.siemens.com/-- is a German multinational conglomerate corporation and the largest industrial manufacturing company in Europe.[BN] The Plaintiff is represented by: Jonathan M. Lebe, Esq. LEBE LAW, A PROFESSIONAL LAW CORPORATION 777 S Alameda St., Fl. 2 Los Angeles, CA 90021-1657 Phone: 213-444-1973 Website: www.lebelaw.com SIMPLE SICHUAN: Fajardo Sues Over Unpaid Minimum, Overtime Wages ---------------------------------------------------------------- Katherine Fajardo and Victor Morales, individually and on behalf of others similarly situated v. SIMPLE SICHUAN INC. (D/B/A O MANDARIN), PETER LIU, JIANG ZHENG AKA KEVIN ZHENG, and DANIEL NEGRIN, Case No. 7:23-cv-05304-NSR (S.D.N.Y., June 23, 2023), is brought for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), and for violations of the N.Y. Labor Law (the "NYLL"), and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor (herein the "Spread of Hours Wage Order"), including applicable liquidated damages, interest, attorneys' fees and costs. The Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay the Plaintiffs the required "spread of hours" pay for any day in which they had to work over 10 hours a day. Furthermore, the Defendants failed to pay the Plaintiffs' wages on a timely basis. The Defendants paid the Plaintiffs at a rate that was lower than the required tip-credit rate. The Defendants' conduct extended beyond Plaintiffs to all other similarly situated employees. The Defendants maintained a policy and practice of requiring Plaintiffs and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, says the complaint. The Plaintiffs are former employees of the Defendants who were employed as a runner and as a server. The Defendants own, operate, or control a Chinese Restaurant, located in Hartsdale, New York under the name "O Mandarin."[BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 SMILE NEW YORK: Fails to Pay Proper Wages, Marty-Hernandez Says --------------------------------------------------------------- NAISHA MARTY-HERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. SMILE NEW YORK OUTREACH, LLC; DYNAMIC HR SERVICES LLC; and ERIK LAZAR, Defendants, Case No. 1:23-cv-04637 (E.D.N.Y., June 21, 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 Marty-Hernandez was employed by the Defendants as a dental assistant. SMILE NEW YORK OUTREACH, LLC provides dental services. [BN] The Plaintiff is represented by: Joshua Levin-Epstein, Esq. Jason Mizrahi, Esq. Levin-Epstein & Associates, P.C. 60 East 42nd Street, Suite 4700 New York, NY 10165 Tel: (212) 792-0046 Email: Joshua@levinepstein.com SOLID PROPERTIES: Fails to Pay OT Wages Under FLSA, Vega Alleges ---------------------------------------------------------------- ARTURO SANDOVAL VEGA, individually and on behalf of all others similarly situated v. SOLID PROPERTIES, LLC, OAK PARK APARTMENTS, LLC, 1835-1837 GOOD HOPE ROAD, LLC, and MADISON INVESTMENTS, LLC, Case No. 1:23-cv-01762 (D.D.C., June 16, 2023) alleges that the Defendants maintained an illegal and collective-wide practice of unlawfully refusing to pay overtime wages and violating the federal Fair Labor Standards Act, the District of Columbia Minimum Wage Revision Act Revision Act, and the District of Columbia Wage Payment and Collection Law. The Defendants employed the Plaintiff to perform renovation work in apartment buildings owned and/or managed by Defendants throughout the District of Columbia. The Plaintiff regularly and customarily worked 48 hours per week. The Defendants allegedly paid the Plaintiff at his regular hourly rate for all the hours he worked each week regardless of how many hours he worked. At no time during the relevant period did the Defendants ever compensate the Plaintiff at a rate of one-and-one-half times (1.5x) his regular rate of pay for the hours he worked over 40 each week, says the suit. In an apparent effort to minimize the number of overtime hours showing on the Plaintiff's checks, the Defendants paid the Plaintiff with checks from different entities for work performed in the same week. For example, the Plaintiff received two checks, both dated March 10, 2022, for equal amounts. One check was from Oak Park and the other from Good Hope Road. Moreover, despite the Plaintiff's legal status as an employee, the Defendants paid him as though he was a contractor. The Defendants unlawfully paid the Plaintiff via regular checks, rather than payroll checks, to avoid paying their portion of payroll-related taxes, such as social security and Medicare, the suit contends. The Plaintiff's employment began in February 2022 and ended on May 1, 2023. Solid Properties provides property management services to the owners of residential properties throughout the District of Columbia and surrounding areas.[BN] The Plaintiff is represented by: Michael K. Amster, Esq. Anthony G. Bizien, Esq. ZIPIN, AMSTER & GREENBERG, LLC 8757 Georgia Avenue, Suite 400 Silver Spring, MD 20910 Telephone: (301) 587-9373 Facsimile: (240) 839-9142 E-mail: mamster@zagfirm.com abizien@zagfirm.com TALBOT COUNTY, MD: Turner's Bid to Certify Class Complaint Denied ----------------------------------------------------------------- In the case, DEON ARNELL TURNER, Plaintiff v. TERRY KOKOLIS, et al., Defendants, Civil Action No. JRR-23-0555 (D. Md.), Judge Julie R. Rubin of the U.S. District Court for the District of Maryland: a. denies Turner's motions for the appointment of counsel and for certification of his Complaint as a class action; and b. grants Turner's motion to proceed in forma pauperis. On May 1, 2023, Turner filed motions for the appointment of counsel and for certification of his Complaint as a class action. Turner made similar motions on March 28, 2023, which were denied by the Court on April 4, 2023. Turner has also moved to proceed in forma pauperis. On May 11, 2023, Turner filed an Amended Complaint as directed by the Court. The Court must screen the Amended Complaint for sufficiency pursuant to 28 U.S.C. Section 1915A(b). In deciding whether a complaint is frivolous, or fails to state a claim upon which relief may be granted, the district court need not look beyond the complaint's allegations. It must, however, hold the pro se complaint to less stringent standards than pleadings drafted by attorneys and must read the complaint liberally. Judge Rubin finds that Turner presents no exceptional circumstances requiring the appointment of a lawyer. He simply states that he has limited access to the law library, limited knowledge of the law, and a lawyer would be better equipped to present the case. These proffered circumstances are not exceptional, and the issues before the Court are not unduly complicated. Further, upon careful consideration of the motions and previous filings by Turner, Judge Rubin finds that he has demonstrated the wherewithal to either articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so. Accordingly, there is nothing that would warrant the appointment of an attorney to represent Turner at this time. The motion is denied without prejudice. Turner also asks that his Complaint be certified as a class action. Federal Rule of Civil Procedure 23(a) delineates the prerequisites for a class action and provides that one or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. In his Motion, Turner simply restates the criteria outlined, Judge Rubin holds. She says he provides no additional facts or details to support that the prerequisites required by Federal Rule of Civil Procedure 23(a) have been satisfied. Simply reiterating the rule is insufficient. In the absence of any additional detail, the Court cannot determine if there is a viable class of persons for whom, if they were permitted to prosecute separate actions on their own behalf, would risk "inconsistent or varying adjudications" that would create incompatible standards of conduct for the party opposing the class. Judge Rubin now screens Turner's Amended Complaint pursuant to 28 U.S.C. Section 1915A. In his Amended Complaint, Turner names seven Defendants: Terry Kokolis, Director of the Talbot County Detention Center ("TCDC"); "Jane Doe Correctional Officer(s)"; "John Doe Correctional Officer(s)"; "Food Service Provider (Trinity) Chief Executive Officer"; Commissary Service Provider (Keefe) Chief Executive Officer"; Healthcare Service Provider (WellPath) Chief Executive Officer"; and "Telephone Service Provider (Securus) Chief Executive Officer." Turner alleges the following violations of his rights: deliberate indifference to medical needs, chilling effect on speech and association, access to court, cruel and unusual punishment, denial of due process and freedom of speech and association. As relief, he seeks a "declaration" that his rights have been violated, a preliminary and permanent injunction to establish terms or practices favorable to the Plaintiff(s) and to require strict adherence to policy and procedure to administer COMAR as written, and almost $2 million in damages. Based on the factual background set forth in the Amended Complaint, Judge Rubin finds that Turner has, at best, attempted to state the following federal claims: 1) denial of access to the courts; 2) claims regarding inadequate living conditions, denial of constitutionally adequate medical care, and use of excessive force; 3) denial of due process; and 4) violation of his religious rights. His complaint is therefore analyzed accordingly. However, these claims are inadequately plead and thus must be dismissed. Judge Rubin reasons that (i) Turner's bald allegations that Defendant Kokolis has not provided "an adequate law library or adequate assistance from persons trained in the law" are insufficient; (ii) Turner fails to state what medical issues were causing pain and fluid retention, how long he was denied care, who denied him care, or what injuries he suffered as a result; (iii) Turner does not allege injury traceable to the conditions of his confinement, nor does he name any individual he alleges is personally responsible for these conditions; (iv) Turner's bald, unsupported allegation that Corporal Minner used excessive force against the Plaintiff in the corner of Fox housing unit is insufficient to state a claim for excessive force; (v) Turner has not named proper defendants or put forth sufficient facts to state a claim; and (vi) Turner has failed to meet his burden of demonstrating that the prison's policy exacts a substantial burden on religious exercise. For these reasons, Judge Rubin grants Turner's Motion to Proceed in Forma Pauperis; denies Turner's motions for the appointment of counsel and for certification of his Complaint as a class action; and dismisses Turner's Complaint as to all claims and the Defendant. The Clerk is directed to close the case. A full-text copy of the Court's June 14, 2023 Memorandum is available at https://tinyurl.com/3c9r5eh7 from Leagle.com. TECH MAHINDRA: Third Cir. Vacates Dismissal of Williams Class Suit ------------------------------------------------------------------ In the case, LEE WILLIAMS, individually and in his representative capacity, Appellant v. TECH MAHINDRA (AMERICAS) INC., Case Nos. 21-1365, 21-1394 (3d Cir.), the U.S. Court of Appeals for the Third Circuit vacates the District Court's order dismissing the complaint and remands for further proceedings. In this putative class action, a fired employee sues his former employer alleging a pattern or practice of race discrimination against non-South Asians in violation of 42 U.S.C. Section 1981. The employee had previously attempted to join another class action against the company but after that case was stayed, he filed this suit -- years after his termination. The employer moved to dismiss the complaint under Rule 12(b)(6) as untimely. In response, the employee conceded that the relevant statutes of limitations had expired, and instead he resorted to two forms of tolling: wrong-forum and American Pipe. The District Court concluded that American Pipe tolling did not allow the employee to commence a successive class action, and the employee does not contest that ruling. Tech Mahindra is an information technology company incorporated in New Jersey and wholly owned by a like-named major Indian corporation. It has over 5,000 employees across approximately 25 offices in the United States, including several offices in New Jersey. The company's workforce consists of about 90% South Asians although that group comprises only 1-2% of the United States population and around 12% of the relevant labor market. In addition, Tech Mahindra annually applies for and receives approvals for thousands of H-1B visas. It uses those visas, which permit hiring foreign workers for specialty occupations, to staff a significant percentage of its labor force with South Asians. In May 2014, Tech Mahindra hired Williams, a Caucasian American. The following month, Williams began working in the company's Columbus, Ohio office as a Regional Manager and Senior Director of Business Development. He was one of only two non-South Asians in his sales group, and he reported to a South Asian supervisor. During his time with Tech Mahindra, Williams also attended three of the company's regional conferences, where the majority of attendees were South Asian and where Hindi was often spoken to his exclusion. Williams' tenure with the company was short-lived. In June 2015, his manager informed him that because he was not meeting his sales goals, he would be placed on a 60-day performance improvement plan. Then, on Aug. 19, 2015, Tech Mahindra terminated his employment. As a non-South Asian fired by Tech Mahindra, Williams was a member of a putative class action against the company for claims of racial discrimination -- Grant v. Tech Mahindra (Americas), Inc., 2019 WL 7865165, at *1 (D.N.D. Dec. 5, 2019). That suit was filed by another former Tech Mahindra employee, Roderick Grant, on Aug. 10, 2018, in federal court in North Dakota. Tech Mahindra originally moved to dismiss Grant's claims, but it withdrew that motion to seek to compel Grant to arbitrate. Grant opposed that motion and, on June 5, 2019, sought leave to amend his complaint to add Williams as a named plaintiff. On Feb. 6, 2020, the district court in North Dakota granted Tech Mahindra's motion to compel individual arbitration, denied Grant's motion for leave to amend, and stayed the case. Williams then filed this putative class action on April 21, 2020 -- approximately four years and eight months after his employment with Tech Mahindra ended. Invoking the jurisdiction of the U.S. District Court for the District of New Jersey, he brought a single claim for disparate treatment on the basis of race under 42 U.S.C. Section 1981, seeking class-wide relief. Williams' claim alleged that Tech Mahindra engaged in a pattern or practice of racial discrimination against its non-South Asian employees and applicants that extended to the company's hiring, staffing, promotion, and termination practices. As it did in Grant's case, Tech Mahindra moved to dismiss Williams' complaint. It did so on three grounds: lack of Article III standing; failure to allege a plausible claim of race discrimination; and untimeliness under the statute of limitations. Williams defended his standing and the plausibility of his allegations, but he did not deny that the longest applicable statute of limitations, four years, had already expired. Instead, he argued that the statute of limitations should be tolled on two distinct theories: wrong-forum tolling and American Pipe tolling, citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). The District Court rejected several of Tech Mahindra's arguments, but it ultimately granted the motion and dismissed Williams' complaint without prejudice. It concluded that Williams had standing and that he was likely a member of the putative class in the Grant action. Next, in evaluating the timeliness of Williams' claim, the District Court considered American Pipe tolling, under which the filing of a putative class action suspends the statute of limitations for absent class members' individual claims. But in recognizing that the Supreme Court in China Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2018), had declined to extend American Pipe tolling to successive class actions, the District Court determined that Williams could not maintain a class action. As for his remaining individual action, Williams had to plead that but for his race he would not have suffered the loss of any legal interests protected by Section 1981. And, upon considering Williams's complaint, the District Court determined that it did not plausibly allege but-for causation on an individual basis. Accordingly, it dismissed Williams's claim without prejudice. Instead of amending his pleading, Williams elected to stand on his complaint and appeal, which triggered the Court of Appeal's appellate jurisdiction. Williams' principal contention on appeal is that the District Court erred by dismissing his class action as untimely without addressing his wrong-forum tolling argument. In response, Tech Mahindra asserts that the ground on which the District Court rejected American Pipe tolling -- the Supreme Court's decision in China Agritech -- also bars wrong-forum tolling. The Third Circuit states that a class plaintiff's burden in making out a prima facie case of discrimination is different from that of an individual plaintiff and that the former need not initially show discrimination against any particular present or prospective employee, including himself. As a result, it opines that Williams was not required to plead but-for causation on an individual basis to avoid dismissal given the availability of the pattern-or-practice method of proof at later stages of the case. Under these principles, as long as Williams' complaint plausibly alleges a prima facie case under the pattern-or-practice method, his Section 1981 claim cannot be dismissed on the ground that he failed to plead that race was the but-for cause of any individual class member's injury, including his own. The Third Circuit concludes that the District Court dismissed the complaint without considering the applicability of wrong-forum tolling. On de novo review, that was error: the unavailability of American Pipe tolling does not inherently preclude wrong-forum tolling. And because tolling is appropriately addressed by district courts in the first instance, the dismissal order is vacated and the case is remanded for the District Court to consider whether wrong-forum tolling applies and/or whether Williams has plausibly pleaded a prima facie pattern-or-practice claim. A full-text copy of the Court's June 14, 2023 Opinion is available at https://tinyurl.com/454yyad2 from Leagle.com. Mark A. Hammervold -- mhammervold@kotchen.com -- [ARGUED] Daniel Kotchen -- dkotchen@kotchen.com -- KOTCHEN & LOW, 1918 New Hampshire Avenue, N.W. Washington, DC 20009, Counsel for the Appellant. Kenneth Gage -- kennethgage@paulhastings.com -- [ARGUED] Daniel Richards -- danrichards@paulhastings.com -- PAUL HASTINGS, 200 Park Avenue, 30th Floor, New York, NY 10166, Counsel for the Appellee. TESLA INC: Judgment as a Matter of Law Denied in Securities Suit ---------------------------------------------------------------- In the case, IN RE TESLA INC., SECURITIES LITIGATION, Case No. 18-cv-04865-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California denies the Plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial. Glen Littleton filed a securities class action against Defendants Tesla, Elon Musk (Tesla's CEO and former Chairman), and Tesla's Board of Directors based on Musk's two tweets made in August 2018 about taking Tesla from a public to a private company. After a three-week trial in January 2023, the jury awarded a verdict for the Defendants on all claims. Now pending before the Court are (1) the Plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial, and (2) supplemental briefing from the parties regarding whether the Court will award costs to the +Defendants as the prevailing party under Federal Rule of Civil Procedure 54. Littleton represents a class of individuals and entities, who purchased or sold Tesla stock, options, and other securities from 9:48 a.m. (PST) on Aug. 7, 2018 to Aug. 17, 2018 (the "Class Period"). Plaintiff brought claims against Defendants Elon Musk and Tesla for violations of Sections 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5(b) when Musk published from his personal Twitter account two tweets on Aug. 7, 2018: "Am considering taking Tesla private at $420. Funding secured" and "Investor support is confirmed. Only reason why this is not certain is that it's contingent on a shareholder vote." The Plaintiff also brought a Section 20(a) claim against all members of Tesla's Board of Directors on the grounds that they were controlling persons of Tesla. On April 1, 2022, the Court granted partial summary judgment to the Plaintiff on the issues of falsity and scienter. It declined to grant summary judgment for the Plaintiff on the element of reliance under the fraud-on-the-market presumption because there were disputed issues of material fact on materiality and Defendants were entitled to rebut the fraud-on-the-market presumption. The Defendants asked the Court to reconsider its summary judgment ruling. The Court concluded that it did not find materiality with respect to the misrepresentation or a reckless disregard or knowingly scienter with regard to any such material representation. In its Minute Order following the hearing, it reiterated that a statement can be factually false but not material. On Jan. 17, 2023, the parties went to trial on the Plaintiff's claims. At trial, the Plaintiff bore the burden to prove each element of his Rule 10b-5 claim against the Musk and Tesla: (1) that Musk and/or Tesla made untrue statements of a material fact in connection with the purchase or sale of securities, (2) Musk and/or Tesla acted with the necessary state of mind, (3) Musk and/or Tesla used an instrument of interstate commerce, (4) the Plaintiff justifiably relied on Musk and/or Tesla's untrue statements of material fact in buying or selling Tesla securities, and (5) loss causation. In addition, as to Tesla, the Plaintiff bore the burden to impute Musk's state of mind to Tesla. The Plaintiff also bore the burden to prove his Section 20(a) claim against each of the Director Defendants. Following closing argument, the jury deliberated and found that the Defendants were not liable for any of the claims. Because the jurors used a general verdict form, the jurors did not make any findings as to particular elements of the claims. On Feb. 1, 2023, before the close of evidence, the Plaintiff filed a Rule 50(a) motion for judgment as a matter of law with respect to two issues: (1) the Rule 10b-5 claim element of materiality, and (2) classwide and individual reliance. He did not move for judgment as to the entire Rule 10b-5 claim or other essential elements of the claim, such as loss causation. Nor did the Plaintiff move for judgment as Tesla's imputed liability or his Section 20(a) claim against the Director Defendants. On March 7, 2023, the Plaintiff filed the instant Motion for Judgment as a Matter of Law or in the Alternative for a New Trial. The motion is limited to the issues of materiality, class-wide reliance, and individual reliance. The Plaintiff also moved for a new trial on damages based on three purportedly confusing jury instructions. Judge Chen first examines the Plaintiff's Motion for Judgment as a Matter of Law. He finds that procedurally and substantively, the Plaintiffs' motion is flawed. He begins by discussing the limited scope of the Plaintiffs' initial Rule 50(a) motion, which necessarily limits the relief that the Plaintiffs are able to secure in their Rule 50(b) motion. But, even if the Plaintiffs had sought judgment on all elements of their claims, Judge Chen still deny the motion because there was substantial evidence supporting the jury's verdict with respect to materiality. At the outset, Judge Chen cannot enter judgment as a matter of law for the Plaintiff on the Rule 10b-5 claim because he did not move with respect to loss causation. Moreover, there was substantial evidence at trial from which the jury could have concluded that the Tweets were not material and, therefore, that the elements of materiality and reliance had not been satisfied. The Plaintiff's motion is unavailing because substantial evidence at trial supported the conclusion that the Tweets were not material. Judge Chen says substantial evidence supports the finding that the Tweets were not material. Although the Plaintiff marshals evidence which suggests that the Tweets were material, the Court may grant judgment as a matter of law only if, under the governing law, there can be but one reasonable conclusion as to the verdict. Because the Plaintiff has not shown that no reasonable juror could have found that the Tweets were not material, Judge Chen denies the motion on this ground. The Plaintiff's argument with respect to reliance also fails because there was substantial evidence upon which the jury could conclude that the Plaintiff failed to meet his burden to prove reliance via the fraud-on-the-market presumption. Judge Chen finds that substantial evidence exists that Plaintiff had not established the fraud-on-the-market presumption of reliance. So, he denies the Plaintiff's request for judgment as a matter of law with respect to the fraud-on-the-market presumption of reliance. Judge Chen now examines the Plaintiff's Motion for a New Trial. The Plaintiff presents two arguments in support of his request for a new trial. First, he claims that because the evidence at trial firmly supports that Musk's tweets were material and, in turn, the elements of reliance and loss causation should be decided in the Plaintiff's favor letting the jury's verdict stand would amount to a manifest miscarriage of justice. Second, he contends that a new trial is warranted because the jury instructions created confusion amongst the jurors that led to the erroneous verdict. Neither argument passes muster, Judge Chen holds. He finds that because the Plaintiff has not shown that the verdict was against the clear weight of the evidence and there is no miscarriage of justice, the Plaintiff's first argument for a new trial is rejected. He also finds that Jury Instruction No. 6 did not misstate the elements that needed to be proven at trial, nor was the Court's formulation of the instruction an abuse of instruction. The Plaintiff's argument to the contrary is denied. The Court also did not err in its formulation of Jury Instruction No. 9. Accordingly, Judge Chen denies the Plaintiff's argument. He says the jury instruction expressly conveyed that scienter had been established for the Section 10b-5 claim. Furthermore, the degree to which Musk acted knowingly made much of the evidence regarding what happened in meetings with the PIF, the communications in connection therewith, and Musk's perception thereof highly relevant. Judge Chen further holds that the Court did not err in rejecting the proposed missing witness instruction. The Plaintiff's argument is denied. Judge Chen reasons that whether to give a missing witness instruction is within the discretion of the Court. Turning to the final issue, which is whether the Court should order the Plaintiff to pay the Defendants' taxable costs as the prevailing party, Judge Chen finds that the Plaintiff has rebutted Rule 54's presumption that he should pay costs and orders each party to bear its own costs. Each party will bear their own costs. For the foregoing reasons, Judge Chen denies the Plaintiff's motion for judgment as a matter of law and for a new trial. He orders each party to bear their own costs. His Order disposes of Docket Nos. 657, 685, and 689. A full-text copy of the Court's June 14, 2023 Order is available at https://tinyurl.com/2p9n66t6 from Leagle.com. TEXAS: Court Denies Carter Class Certification Bid --------------------------------------------------- In the class action lawsuit captioned as Carter v. O'Daniel, et al., Case No. 1:23-cv-00137 (N.D. Tex., Filed June 13, 2023), the Hon. Judge James Wesley Hendrix entered an order denying class certification and severing cases. The Plaintiffs are ten state prisoners, all housed in the Robertson Unit of the Texas Department of Criminal Justice (TDCJ), who are proceeding pro se. The Plaintiffs seek to proceed jointly and represent a class of "all TDCJ Residents confined within the TDCJ. They also seek emergency injunctive relief under Federal Rule of Civil Procedure 65. And they seek reconsideration of another court's order transferring the case here, with a change of venue returning the case to their chosen forum. The Court denies Plaintiffs' requests for change of venue, to proceed jointly, for class certification, and for preliminary injunctive relief. The complaints of Matthew Baker, Scott Zirus, Timothy Cone, Dannie Carter, Eric Quinones, Benjamin Grisham, Corry Garcia, Zachary Guerra, and Jeffrey Johnson will be severed into separate actions as to each plaintiff. The Clerk is directed to assign each new civil action to the undersigned United States District Judge and to file a copy of the original complaint and this order in each of the new civil actions. The nature of suit states Prisoner Petitions -- Habeas Corpus -- Civil Rights. The Plaintiffs complain about the conditions of their confinement in the Robertson Unit. Specifica11y, they complain about both the quantity and quality of the food served at the Robertson Unit. They a1lege that the food portions are too small and are consistently watered down, resulting ln caloric deficiencies. They also claim that the meals offered are unbalanced and unvaried, resulting in nutritional deficiencies. And they assert that they are given insufficient time to eat, compounding the caloric and nutritional deficiencies. The Texas Department of Criminal Justice is a department of the government of the U.S. state of Texas. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3Juiq8I at no extra charge.[CC] TEXAS: Court Denies Garcia Class Certification Bid -------------------------------------------------- In the class action lawsuit captioned as Garcia v. O'Daniel, et al., Case No. 1:23-cv-00140 (N.D. Tex., Filed June 13, 2023), the Hon. Judge James Wesley Hendrix entered an order denying class certification and severing cases. The Plaintiffs are ten state prisoners, all housed in the Robertson Unit of the Texas Department of Criminal Justice (TDCJ), who are proceeding pro se. The Plaintiffs seek to proceed jointly and represent a class of "all TDCJ Residents confined within the TDCJ. They also seek emergency injunctive relief under Federal Rule of Civil Procedure 65. The Plaintiffs also seek reconsideration of another court's order transferring the case here, with a change of venue returning the case to their chosen forum. The Court denies Plaintiffs' requests for change of venue, to proceed jointly, for class certification, and for preliminary injunctive relief. The complaints of Matthew Baker, Scott Zirus, Timothy Cone, Dannie Carter, Eric Quinones, Benjamin Grisham, Corry Garcia, Zachary Guerra, and Jeffrey Johnson will be severed into separate actions as to each plaintiff. The Clerk is directed to assign each new civil action to the undersigned United States District Judge and to file a copy of the original complaint and this order in each of the new civil actions. The nature of suit states Prisoner Petitions -- Habeas Corpus -- Civil Rights. The Plaintiffs complain about the conditions of their confinement in the Robertson Unit. Specifica11y, they complain about both the quantity and quality of the food served at the Robertson Unit. They a1lege that the food portions are too small and are consistently watered down, resulting ln caloric deficiencies. They also claim that the meals offered are unbalanced and unvaried, resulting in nutritional deficiencies. And they assert that they are given insufficient time to eat, compounding the caloric and nutritional deficiencies. The Texas Department of Criminal Justice is a department of the government of the U.S. state of Texas. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/3JudLnl at no extra charge.[CC] TEXAS: Court Tosses Baker Class Certification Bid ------------------------------------------------- In the class action lawsuit captioned as Baker v. O'Daniel, et al., Case No. 1:23-cv-00134 (N.D. Tex., Filed June 13, 2023), the Hon. Judge James Wesley Hendrix entered an order denying class certification and severing cases. The Plaintiffs are ten state prisoners, all housed in the Robertson Unit of the Texas Department of Criminal Justice (TDCJ), who are proceeding pro se. The Plaintiffs seek to proceed jointly and represent a class of "all TDCJ Residents confined within the TDCJ. They also seek emergency injunctive relief under Federal Rule of Civil Procedure 65. And they seek reconsideration of another court's order transferring the case here, with a change of venue returning the case to their chosen forum. The Court denies Plaintiffs' requests for change of venue, to proceed jointly, for class certification, and for preliminary injunctive relief. The complaints of Matthew Baker, Scott Zirus, Timothy Cone, Dannie Carter, Eric Quinones, Benjamin Grisham, Corry Garcia, Zachary Guerra, and Jeffrey Johnson will be severed into separate actions as to each plaintiff. The Clerk is directed to assign each new civil action to the undersigned United States District Judge and to file a copy of the original complaint and this order in each of the new civil actions. The nature of suit states Prisoner Petitions -- Habeas Corpus -- Civil Rights. The Plaintiffs complain about the conditions of their confinement in the Robertson Unit. Specifica11y, they complain about both the quantity and quality of the food served at the Robertson Unit. They a1lege that the food portions are too small and are consistently watered down, resulting ln caloric deficiencies. They also claim that the meals offered are unbalanced and unvaried, resulting in nutritional deficiencies. And they assert that they are given insufficient time to eat, compounding the caloric and nutritional deficiencies. The Texas Department of Criminal Justice is a department of the government of the U.S. state of Texas. A copy of the Court's order dated June 13, 2023, is available from PacerMonitor.com at https://bit.ly/46oQkW7 at no extra charge.[CC] TMX FINANCE CORPORATE: Clark Files Suit in S.D. Georgia ------------------------------------------------------- A class action lawsuit has been filed against TMX Finance Corporate Services, Inc. The case is styled as Lana Clark, on behalf of herself and all others similarly situated v. TMX Finance Corporate Services, Inc., Case No. 4:23-cv-00168-RSB-CLR (S.D. Ga., June 22, 2023). The nature of suit is stated as Other Fraud. TMX Finance Corporate Services, Inc. -- https://www.tmxfinancefamily.com/ -- provides consumer credit products.[BN] The Plaintiffs are represented by: Kris K. Skaar, Esq. SKAAR & FEAGLE, LLP 133 Mirramont Lake Drive Woodstock, GA 30189 Phone: (770) 427-5600 Email: kskaar@skaarandfeagle.com UNITED STATES: Fails to Pay Insurance Claims, Marandino Says ------------------------------------------------------------ SHEENA MARANDINO; SEAN MARANDINO; NANCY CARRIGAN CLAIRE FREDA; KELLEY FREDA; ALICE HART; ROBERT F. HART; TORRE MASTROIANNI; and CONGREGATION BETH ISRAEL OF WORCESTER, individually and on behalf of all others similarly situated, Plaintiffs v UNITED STATES FIRE INSURANCE COMPANY; and THE NORTH RIVER INSURANCE COMPANY, Defendants, Civil Action No. 4:23-cv-40072 (D. Mass., June 21, 2023) is an action for declaratory judgment and to recover statutory damages stemming from the Defendants' refusal to make a reasonable settlement offer for claims that the Defendants' insured caused extensive property damage to the Plaintiffs and a certified class of similarly situated individuals. The Plaintiff alleges in the complaint, despite having had the Plaintiffs' expert's opinions for over two years and despite an overwhelming evidentiary record in the underlying lawsuit, Defendants are unable to provide any factual, scientific or legal arguments as to why liability is not clear in the underlying lawsuit. Instead, they have offered various unsupported and shifting defenses and refused to settle because "discovery remains ongoing," apparently hoping evidence will develop out of thin air to support their defense. As such, it has become abundantly clear that the Defendants' positions are simply pretexts and they have no intention of meeting their obligations, says the suit. UNITED STATES FIRE INSURANCE COMPANY provides health insurance, automobile, burglary, fire, and underwriting services to its clients. [BN] The Plaintiffs are represented by: Raymond P. Austotas, Esq. John E. (Jed) DeWick, Esq. ARROWOOD LLP 10 Post Office Square, 7th Floor Boston, MA 02109 Tel: (617) 849-6200 Fax: (617) 849-6201 Email: rausrotas@arrowwoodllp.com jdewick@arrowwoodllp.com - and – Jeffrey S. Strom, Esq. LAW OFFICE OF JEFFREY S. STROM Boylston, MA 01505 Tel: (508) 925-5525 Email: jeffrey@jeffreystromlaw.com - and - John Regan, Esq. ERG, LLC 185 Devonshire Street, Ste. 200 Boston, MA 02110 Tel: (857) 277-0902 Fax: (857) 233-5287 Email: jregan@maeployeerights.com UNITED STATES: Fisher's Bid for Interlocutory Appeal Cert. Denied ----------------------------------------------------------------- In the case, BRYNDON FISHER, Plaintiff v. THE UNITED STATES, Defendant, Case No. 15-1575 (Fed. Cl.), Judge Thompson M. Dietz of the U.S. Court of Federal Claims denies Fisher's motion to certify for interlocutory appeal. Before the Court is a motion filed by Fisher, requesting that the Court certifies for interlocutory appeal its Dec. 7, 2022, opinion and order denying his motion for class certification. The government opposes Fisher's motion. Fisher filed a complaint on Dec. 28, 2015, alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and illegal exaction. He claims that the government overcharged Public Access to Court Electronic Records ("PACER") users for accessing federal court dockets online via a systematic flaw in PACER's billing code. On Dec. 4, 2020, Fisher filed a motion seeking class certification for his claims under Rule 23 of the Rules of the U.S. Court of Federal Claims ("RCFC") on behalf of "all PACER users who, from Dec. 28, 2009 through class certification, accessed a U.S. District Court, Bankruptcy Court, or the U.S. Court of Federal Claims and were charged for at least one docket report." On Dec. 7, 2022, the Court issued an opinion and order denying Fisher's motion for class certification. After reviewing hundreds of pages of briefing and holding oral argument, it denied the motion because it found that Fisher failed to satisfy the predominance and superiority requirements of RCFC 23(b). It concluded that Fisher failed to demonstrate that questions of law or fact common to the members of his proposed class predominated over questions affecting only individual members because the individualized questions of harm and damages overwhelmed the common questions. Further, the Court held that Fisher failed to establish that a class action would be superior to other available methods for adjudication because the likely difficulties in managing the case as a class action due to the individualized questions of harm and damages far outweighing the other RCFC 23(b)(3) factors. Following the Court's decision, Fisher requested that the Court certifies for interlocutory appeal its Dec. 7, 2022, opinion and order denying class certification. He contends the following question warrants certification: "whether, at class certification, a plaintiff must prove classwide injury in order to certify a class under RCFC 23(b)(3)." On Feb. 24, 2023, the government filed its opposition to Fisher's motion. Fisher filed his reply on March 10, 2023. Judge Dietz concludes that the question presented by Fisher is not a controlling question of law as required by 28 U.S.C. Section 1292(d)(2). As such, certification of interlocutory appeal is not warranted. Judge Dietz reasons that Section 1292 first requires a plaintiff to identify a controlling question of law. A controlling question of law is a question that materially affects issues remaining to be decided in the trial court. In this instance, the question of "whether, at class certification, a plaintiff must prove classwide injury in order to certify a class under RCFC 23(b)(3)" does not materially affect the issues remaining to be decided by the Court because the question is based upon a mischaracterization of the Court's class certification opinion and has no bearing on the remaining issue to be decided. Furthermore, Fisher's proposed question does not materially affect the remaining issue to be resolved -- whether he was overcharged for his PACER access. This is a liability determination to be made regardless of whether this litigation proceeds as a class action or a single plaintiff action. Accordingly, Fisher has not identified a controlling question of law and thus, has not satisfied the requirements for certification of interlocutory appeal under 28 U.S.C Section 1292(d)(2). Because Fisher has not presented a controlling question of law, Judge Dietz concludes certification for interlocutory appeal is not warranted. Therefore, he denies Fisher's motion for interlocutory appeal. A full-text copy of the Court's June 14, 2023 Opinion & Order is available at https://tinyurl.com/3v68k9aj from Leagle.com. Amber L. Schubert -- rschubert@sjk.law -- Schubert, Jonckheer & Kolbe, LLP, San Francisco, CA, counsel for the Plaintiff. Meen G. Oh, U.S. Department of Justice, Civil Division, Washington, DC, counsel for the Defendant. VELROSE LINGERIE: Alexandria Files ADA Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Velrose Lingerie, Inc. The case is styled as Erika Alexandria, on behalf of herself and all others similarly situated v. Velrose Lingerie, Inc., Case No. 1:23-cv-05300 (S.D.N.Y., June 22, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Velrose Lingerie, Inc. -- http://www.velroselingerie.com/-- is in the Lingerie (Outerwear) business.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com VIRGINIA AGRICUTURAL: Faces Class Suit Over Unpaid Overtime Wages ----------------------------------------------------------------- Kelly Mehorter of ClassAction.org reports two Mexican farmworkers have filed a proposed class action against Virginia Agricultural Growers Association (VAGA), Baskerville Farms and Dusty Road Farms over their alleged failure to pay overtime wages. The 23-page case explains that VAGA is an agricultural association that employs thousands of predominately Mexican farmworkers to work on its Virginia-based member farms on temporary H-2A work visas. According to the lawsuit, the plaintiffs and other migrant workers jointly employed by VAGA and its grower-member farms regularly worked in excess of 40 hours per week throughout the 2021 and 2022 growing seasons but never received time-and-a-half overtime pay. Instead, VAGA and its grower-members paid farmworkers at their regular hourly rate for every hour worked over 40 each week in "knowing" violation or "reckless disregard" of the Virginia Overtime Wage Act, which was enacted on July 1, 2021, the suit contends. The plaintiffs, two workers who say they were denied overtime pay for their respective work harvesting tobacco at Baskerville Farms and Dusty Road Farms during the 2021 and 2022 growing seasons, claim that VAGA employed an estimated 1,290 to 2,460 workers at numerous Virginia farms throughout this period who were all paid according to the same practices and policies. Per the suit, the plaintiffs and similarly situated workers routinely performed 50 and 60 hours of labor each week in "grueling" conditions and "sweltering heat." Some employees worked up to 70 and 80 hours per week during busier periods, the filing adds. Overall, the defendants' alleged misconduct has deprived migrant workers of at least $2,531,474 in unpaid overtime wages, the suit alleges. "The Defendants took full advantage of the Plaintiffs' and other class members' indigence, inability to speak or understand English, and their lack of understanding of the laws of the United States in order to forgo paying overtime payments," the case scathes. The lawsuit looks to represent all current and former farmworkers who worked exclusively within Virginia for Virginia Agricultural Growers Association and its grower-members for more than 40 hours in any given week from July 1, 2021 to June 30, 2022. [GN] VITAL CARE: Fails to Pay Minimum & OT Wages, Robinson Alleges ------------------------------------------------------------- NIA ROBINSON, individually, and on behalf of other aggrieved employees v. VITAL CARE AMBULANCE, INC., a California corporation; NAZIK KAZARYAN, an individual; and DOES 1 through 50, inclusive, Case No. 23STCV1 4033 (Cal. Super., June 16, 2023) seeks to recover unpaid minimum wages and overtime wages, in violation of the California labor laws, regulations, and the Industrial Welfare Commission Wage Orders. The Defendant allegedly maintained a policy and practice of regularly rounding employee work time to the closest half hour, to the overall detriment of employees, thereby unlawfully failing to pay Defendant's non-exempt employees, including Plaintiff, for all hours worked. The Defendant also failed to pay premium wages to the Plaintiff and other aggrieved employees who were denied proper meal and rest periods, in violation of Labor Code Sections 226.7, 512, 558, and the applicable IWC Wage Order, the suit claims. The Plaintiff and other aggrieved employees were routinely denied, and not authorized to take, a proper, timely, uninterrupted, 30-minute meal period for every shift worked that exceeded 5 hours, or a second, proper, timely, uninterrupted, 30-minute meal period for every shift worked that exceeded 10 hours but were not paid premium wages of one-hour at their regular rate of pay for each missed, short, or interrupted meal period, the suit says. Additionally, the Defendants failed to pay the Plaintiff all wages owed to the Plaintiff upon discharge or resignation, the suit contends. The Plaintiff was employed the Defendants as a dispatcher in April 2022. Vital Care provides Basic Life Support transport services to Los Angeles and the surrounding areas.[BN] The Plaintiff is represented by: Aidin D. Ghavimi, Esq. Ilana N. Fine, Esq. STARPOINT, LC 15233 Ventura Boulevard, Suite PH16 Sherman Oaks, CA 91403 Telephone: (310) 424-9971 Facsimile: (424) 255-4035 E-mail: service@starpointlaw.com WESTERN CORRAL: Toro Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Western Corral, Inc. The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Western Corral, Inc., Case No. 1:23-cv-05305 (S.D.N.Y., June 22, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Western Corral, Inc. -- https://www.corralwestern.com/ -- is a family owned western clothing, boot, tack and saddle shop.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com WESTPORT BIG & TALL: Toro Files ADA Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Westport Big & Tall, LLC The case is styled as Luis Toro, on behalf of himself and all others similarly situated v. Westport Big & Tall, LLC, Case No. 1:23-cv-05310 (S.D.N.Y., June 22, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Westport Big & Tall -- https://www.westportbigandtall.com/ -- has provided premium clothing for big and tall men since our founding in 1989.[BN] The Plaintiff is represented by: Mars Khaimov, Esq. 10826 64th Avenue, Ste. 2nd Floor Forest Hills, NY 11375 Phone: (917) 915-7415 Email: mars@khaimovlaw.com WITHAM MEMORIAL: Discloses Private Info to FB, Ausherman Says ------------------------------------------------------------- SHERRIE AUSHERMAN, individually and on behalf of all others similarly situated v. BOARD OF TRUSTEES OF THE FLAVIUS J. WITHAM MEMORIAL HOSPITAL, Case No. 49D03-2306-CT-024271 (Ind. Super., June 16, 2023) seeks to address the Defendant's outrageous, illegal, and widespread practice of disclosing Plaintiff's and Class Members' confidential personally identifiable information (PII) and protected health information (PHI) to third parties, including Meta Platforms, Inc. d/b/a Meta (Facebook). Unbeknownst to the Plaintiff and Class Members, the Defendant has embedded the Facebook Tracking Pixel on their Website, surreptitiously forcing the Plaintiff and Class Members to transmit to Facebook every click, keystroke, and intimate detail about their medical treatment. In addition to the Facebook Pixel, the Defendant also installed and implemented Facebook's Conversions Application Programming Interface (CAPI) on its Website servers. Because CAPI is located on the website owner's servers and is not a bug planted onto the website user's browser, it allows website owners like the Defendant to circumvent any ad blockers or other denials of consent by the website user that would prevent the Pixel from sending website users' Private Information to Facebook directly, says the suit. By installing and implementing both tools, the Defendant caused the Plaintiff's and Class Members' communications to be intercepted and transmitted from Plaintiff's and Class Members' browsers directly to Facebook via the Pixel, or to be recorded on Defendant's servers and then transferred to Facebook via Conversions API, the Plaintiff claims. The Plaintiff seeks to remedy these harms and bring causes of action for invasion of privacy, negligence, negligence Per Se, breach of implied contract, unjust enrichment, breach of fiduciary duty, violation of the Indiana Deceptive Consumer Sales Act, and violation of the Indiana Wiretapping Act. Plaintiff Ausherman is a natural person, resident, and a citizen of Indiana. She has no intention of moving to a different state in the immediate future. She is a current patient of the Defendant. Witham is a progressive, modern health care provider. In addition, Witham operates a free-standing ER and medical facility in Anson, Indiana and an ambulatory care center in Clinton County, Indiana.[BN] The Plaintiff is represented by: Tyler B. Ewigleben, Esq. Christopher D. Jennings, Esq. Winston Hudson, Esq. Laura Edmondson, Esq. THE JOHNSON FIRM 610 President Clinton Ave., Suite 300 Little Rock, AR 72201 Telephone: (501) 372-1300 E-mail: tyler@yourattorney.com chris@yourattorney.com winston@yourattorney.com ledmondson@yourattorney.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 ***