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/raid1/www/Hosts/bankrupt/CAR_Public/230804.mbx C L A S S A C T I O N R E P O R T E R Friday, August 4, 2023, Vol. 25, No. 156 Headlines 22ND CENTURY: Class Settlement in Noto Suit Wins Prelim. Approval A.O. SMITH CORP: Fails to Pay Proper Overtime Wages, Cummings Says ADVANCED MEDICAL: Fails to Safeguard Customers' Info, Woerner Says ALIGNMENT HEALTHCARE: Maglione Sues Over Illegal Company Agreement AMERICAN HONDA: Completion of Class Cert Discovery Due May 2, 2024 ATLANTIC GENERAL: Ehrisman Action Consolidated with Rentschler AUSTRALIA: Live Cattle Export Ban Suit Refiled After Unlawful Order AXCESS FINANCIAL: Linton Suit Moved to Alameda County Super. Court BEST PROFESSIONAL: Loses Bid to Dismiss Garcia's Class Complaint BOCA RESTAURANT: Fails to Pay Dishwashers' OT Wages Under FLSA CARDINAL LOGISTICS: Fails to Pay Drivers' Wages, Roland Suit Says CASEY'S GENERAL: Food-Delivery Drivers File Labor Class Action CHEWY INC: Millican Seeks to Recover CSRs' OT Wages Under FLSA COLGATE-PALMOLIVE CO: Filing for Class Cert Bid Due Dec. 13, 2024 DISH NETWORK: Files Cross Appeal in Fuentes Suit DOVENMUEHLE MORTGAGE: Jackson Parties May File Redacted Settlement EARTHLINK HOLDINGS: Bids to Dismiss Amended Murray Complaint Denied ENVIRONMENTAL DESIGNERS: Gomez Sues Over Labor Law Violations FASHION INSTITUTE: Court Enters Scheduling Order in Mahulawde Suit FEDERAL BUREAU OF PRISONS: Robinson Class Suit Tossed w/o Prejudice FORD MOTOR: Court Rules on Joint Discovery Submission in Avila Suit GOOGLE LLC: Walkingeagle Appeals Suit Dismissal to 9th Cir. GREAT STAR: Court Extends Time for Gair to File Class Cert Reply H&R BLOCK: Discloses Tax Return to Meta, Pabon Class Suit Claims HANOVER VENTURES: Gonzalez Can File Class Cert Reply Until Oct. 13 HCA HEALTHCARE: Fails to Secure Patients' Info, Sandstrom Says IMAGINE360 LLC: Collins Sues Over Data Breach of Private Info INFINITY Q: Judgment Entered in SEC Complaint as to Wildcat Partner ISS FACILITY: Court Compels Identity of Absent Class Members ITS LOGISTICS: Prelim. Approval of Guthrie Class Settlement Denied JHPDE FINANCE: New Jersey Court Dismisses Jones Suit W/o Prejudice KS AUTOMOTIVE: Romo Class Suit Seeks Unpaid Minimum & OT Wages LASERSHIP INC: Bid to Exclude Drivers' Info Denied in West Suit LUMICO LIFE: Schwartz Sues Over Prerecorded Telemarketing Calls MALLINCKRODT PLC: Continental General Sues Over False Statements MONDELEZ GLOBAL: Clay Sues Over Delayed Notice of Data Breach MPE PARTNERS: Fails to Enforce ESOP's Right to Buy, Walther Alleges OPTEON APPRAISAL: Fails to Pay Appraisers' OT Wages Under FLSA PACIFIC COAST: Onn Sues Over Canned Tomatoes' False Ads PNC BANK: Bradley Sues Over Delays of Certificate of Titles POINT32HEALTH INC: Harrison, Placido Sue Over Reported Data Breach PORSCHE CARS: Settlement of Bowen Class Suit Gets Final Approval PROGRESS SOFTWARE: Fails to Safeguard Customers' Info, Smith Says PROGRESS SOFTWARE: Fails to Secure Personal Info, Truesdale Says QUEST DIAGNOSTICS: Allowed to File Supplemental Brief RAIN ONCOLOGY: Thant Sues Over $1.22 Stock Price Share Drop ROCKET COMPANIES: Review of Partial Dismissal of Shupe Suit Denied SAFECO INSURANCE: Bid to Certify Questions in Cogent Suit Denied SIRIUS XM: Mitchell Seeks to Recover CSRs' OT Wages Under FLSA SITEL OPERATING CORP: Fails to Pay Overtime Wages, Earnest Alleges SMOSH DOT: 9th Cir. Reverses Dismissal of First Amended Hall Suit TAMKO BUILDING: Filing for Class Certification Bids Due August 10 TECO ENERGY: Roche Seeks to Recover $82,000 Pension Benefits Loss THE 1975: July 2023 Concert Stopped Abruptly, Class Suit Says TMX FINANCE: Court Stays All Deadlines in Coria Suit Until August 8 TMX FINANCE: Court Stays All Deadlines in Millner Until August 8 TMX FINANCE: Court Stays All Deadlines in Oltean Until August 8 TMX FINANCE: Court Stays All Deadlines in Pickens Until August 8 TMX FINANCE: Court Stays All Deadlines in Rodriguez Until August 8 UNITED STATES: Donohue Must Show Good Cause to Retain Case v. HUD UNIVERSITY OF SAN DIEGO: Court Won't Review Nixing of Expert Report WATERS CORP: Daggett Sues Over Breach of Fiduciary Duty Under ERISA WILMINGTON TRUST: Third Cir. Affirms Refusal to Dismiss Henry Suit WINDSOR CHEVIOT: Fails to Pay Minimum, OT Wages, Washington Alleges WISCONSIN: Smith Ordered to Pay Full Filing Fee in Suit v. Carr XEROX CORP: Cole Must File Class Certification Bid by June 21, 2024 Asbestos Litigation ASBESTOS UPDATE: PPG Industries Has $49MM Reserves as of June 30 ASBESTOS UPDATE: Travelers Cos. Still Receives A&E Exposure Claims ********* 22ND CENTURY: Class Settlement in Noto Suit Wins Prelim. Approval ----------------------------------------------------------------- In the case, JOSEPH NOTO, GARDEN STATE TIRE CORP., and STEPHENS JOHNSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. 22ND CENTURY GROUP, INC., HENRY SICIGNANO, III, and JOHN T. BRODFUEHRER, Defendants, Case No. 19-CV-1285 (JLS) (MJR) (W.D.N.Y.), Judge John L. Sinatra, Jr. of the U.S. District Court for the Western District of New York grants the Plaintiffs' motion for preliminary approval of the class action settlement. The Plaintiffs commenced the putative class action in January 2019, seeking relief on behalf on behalf of themselves and others similarly situated for violations of federal securities laws. After litigation before this Court and the Second Circuit, including amended pleadings and motions to dismiss, the parties reported their success at mediation and intent to settle the case on March 30, 2023. On April 25, 2023, the Plaintiffs moved for preliminary approval of the class action settlement. The parties appeared before United States Magistrate Judge Michael J. Roemer on May 18, 2023, to discuss the motion for preliminary approval, and the Plaintiffs submitted supplemental authority on May 24, 2023. On June 15, 2023, Judge Roemer issued a Report and Recommendation (R&R), recommending that this Court grants the Plaintiffs' motion for preliminary approval of the class action settlement in its entirety. On June 20, 2023, the parties submitted a joint letter, indicating that none of the parties objects to the R&R, and asking the Court to consider and adopt the R&R in its entirety at its earliest opportunity. Neither party objected to the R&R, and the time to do so has expired. A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. A district court must conduct a de novo review of those portions of a magistrate judge's recommendation to which a party objects. But neither 28 U.S.C. Section 636 nor Federal Rule of Civil Procedure 72 requires a district court to review the recommendation of a magistrate judge to which no objections are raised. Though not required to do so here, Judge Sinatra nevertheless reviewed Judge Roemer's R&R. Based on that review, and absent any objections, he accepts and adopts the R&R. For the reasons he stated and in the R&R, he grants the Plaintiffs' motion for preliminary approval of the class action settlement. Judge Sinatra refers the case back to Judge Roemer, consistent with the referral order at Dkt. 70, for further proceedings, including the settlement hearing scheduled for Oct. 3, 2023. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/46urht7c from Leagle.com. A.O. SMITH CORP: Fails to Pay Proper Overtime Wages, Cummings Says ------------------------------------------------------------------ MONIQUE CUMMINGS, On Behalf of Herself and All Others Similarly Situated, Plaintiff v. A.O. SMITH CORPORATION c/o Corporation Service Company, Defendant, Case No. 2:23-cv-00904-JPS (E.D. Wis., July 7, 2023) arises out of the Defendant's alleged violations of the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act. From approximately March 9, 2021 through May 2022, Plaintiff has been employed by Defendant as a manufacturing employee at Defendant's Groveport, Ohio plant. However, the Defendant has allegedly maintained a practice of not paying Plaintiff and other similarly situated manufacturing employees for all time worked and overtime compensation at a rate of one and one-half times their regular rate of pay for all the hours they worked over 40 each workweek, says the suit. Headquartered in Milwaukee County, Wisconsin, A. O. Smith manufactures water heaters, boilers, and water treatment products. It operates manufacturing plants at multiple locations in the United States. [BN] The Plaintiff is represented by: Charles J. Crueger, Esq. Erin K. Dickinson, Esq. CRUEGER DICKINSON, LLC 4532 N. Oakland Ave. Whitefish Bay, WI 53211 Telephone: (414) 210-3868 E-mail: cjc@cruegerdickinson.com ekd@cruegerdickinson.com - and - Matthew S. Grimsley, Esq. Anthony J. Lazzaro, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Building, Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 E-mail: matthew@lazzarolawfirm.com anthony@lazzarolawfirm.com ADVANCED MEDICAL: Fails to Safeguard Customers' Info, Woerner Says ------------------------------------------------------------------ TYLER WOERNER, on behalf of himself and all others similarly situated v. ADVANCED MEDICAL MANAGEMENT, LLC, Case No. 1:23-cv-01905-RDB (D. Md., July 14, 2023) sues the Defendant for failing to properly secure, safeguard, and adequately destroy Plaintiff's and Class Members' sensitive personal identifiable information that it had acquired and stored for its business purposes. The Defendant's data security failures allowed a targeted cyberattack in May 2023 to compromise Defendant's network that contained personally identifiable information (PII) and protected health information (PHI) of the Plaintiff and other individuals. The Data Breach was a Hacking/IT ransomware incident and included the Private Information of 319,485 individuals, including the Plaintiff and Class. Despite learning of the Data Breach on May 11, 2023, the Defendant allegedly did not begin sending notices of the Data Breach (the "Notice of Data Breach Letter") until June 29, 2023. Based on the public statements of the Defendant to-date, a wide variety of PII and PHI was implicated in the breach, including: name, address, email, phone number, date of birth, Social Security number, driver's license, treatment or diagnosis information, provider name, dates of service, account number, guarantor ID, policy number, health insurance information, health insurance policy number, or treatment cost information, says the suit. The Data Breach was a direct result of Defendant's failure to implement adequate and reasonable cyber-security procedures and protocols necessary to protect individuals' Private Information with which it was entrusted for either treatment or employment or both. As a result of the Data Breach, the Plaintiff and Class Members are now at a current, imminent, and ongoing risk of fraud and identity theft. The Plaintiff and Class Members must now and for years into the future closely monitor their medical and financial accounts to guard against identity theft, the suit claims. As a result of Defendant's alleged unreasonable and inadequate data security practices, the Plaintiff and Class Members have suffered numerous actual and concrete injuries and damages. Plaintiff Tyler Woerner is an adult individual who at all relevant times has been a citizen and resident of the Commonwealth of Pennsylvania. Advanced Medical manages companies who provide healthcare services to patients and consumers in the United States and throughout the Baltimore-Washington metropolitan area and the Delmarva Peninsula.[BN] The Plaintiff is represented by: Courtney L. Weiner, Esq. LAW OFFICE OF COURTNEY WEINER PLLC 1629 K Street NW, Suite 300 Washington, DC 20006 Telephone: (202) 827-9980 E-mail: cw@courtneyweinerlaw.com - and - Kenneth J. Grunfeld, Esq. Kevin Fay, Esq. GOLOMB SPIRT GRUNFELD P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Telephone: (215) 346-7338 Facsimile: (215) 985-4169 E-mail: KGrunfeld@GolombLegal.Com KFay@GolombLegal.com ALIGNMENT HEALTHCARE: Maglione Sues Over Illegal Company Agreement ------------------------------------------------------------------ ERIC MAGLIONE, on behalf of himself and all similarly situated stockholders of ALIGNMENT HEALTHCARE, INC., Plaintiff, v. JOSEPH S. KONOWIECKI, DAVID C. HODGSON, DR. JACQUELINE B. KOSECOFF, YON JORDEN, JOHN E. KAO, JEFFREY H. MARGOLIS, DR. MARK B. MCCLELLAN, JODY L. BILNEY, MARGARET M. MCCARTHY, THOMAS J. CARELLA, and ROBERT N. VORHOFF, Defendants, and ALIGNMENT HEALTHCARE, INC., Nominal Defendant, Case No. 2023-0691 (Del. Ch., July 7, 2023) arises out of the Defendants' violations of the Delaware General Corporation Law. The Plaintiff brings this action because Alignment has entered into an agreement that impermissibly interferes with the Board's duty to manage the Company's business and affairs and is designed to entrench and perpetuate certain favored minority stockholders' control over Alignment's affairs in a manner that is illegal and invalid under Delaware law. Specifically, the Stockholders Agreement, entered into just four days after the Company's initial public offering, violates Section 141(a) of the DGCL, says the Plaintiff. Alignment is a publicly traded company incorporated in Delaware and headquartered in Orange, CA. The company partners with leading health care systems and Medicare advantage plans in order to provide health care that is more convenient and coordinated for senior citizens, and that results in improved outcomes. Its common stock is traded on the Nasdaq under the ticker symbol ALHC. [BN] The Plaintiff is represented by: Peter B. Andrews, Esq. Craig J. Springer, Esq. David M. Sborz, Esq. Andrew J. Peach, Esq. Jackson E. Warren, Esq. ANDREWS & SPRINGER LLC 4001 Kennett Pike, Suite 250 Wilmington, DE 19807 Telephone: (302) 504-4957 - and - Kimberly A. Evans, Esq. Robert Erikson, Esq. BLOCK & LEVITON LLP 3801 Kennett Pike, Suite C-305 Wilmington, DE 19807 Telephone: (302) 499-3600 AMERICAN HONDA: Completion of Class Cert Discovery Due May 2, 2024 ------------------------------------------------------------------ In the class action lawsuit captioned as ALEC PLOTTS, et al. v. AMERICAN HONDA MOTOR CO., INC., Case No. 2:22-cv-04529-CJC-AS (C.D. Cal.), the Hon. Judge Cormac J. Carney entered a scheduling Order as follows: 1. All discovery, including discovery motions, shall be completed by May 2, 2024. Discovery motions must be filed and heard prior to this date. 2. The parties shall have until July 1, 2024, to file and have heard all other motions, including motions to join or amend the pleadings. 3. A pretrial conference will be held on Monday, August 26, 2024, at 03:00 PM. Full compliance with Local Rule 16 is required. 4. The case is set for a jury trial, Tuesday, September 10, 2024, at 08:30 AM. 5. The parties are referred to ADR Procedure No. 3 -- Private Mediation. The parties shall have until May 16, 2024, to conduct settlement proceedings. 6. The Plaintiff shall have until December 4, 2023, to file and have heard any class certification motion. American Honda develops and manufactures automobiles. The Company offers passenger cars, trucks, motorcycles, ATVs, and generators. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/44GQMhq at no extra charge.[CC] ATLANTIC GENERAL: Ehrisman Action Consolidated with Rentschler -------------------------------------------------------------- In the class action lawsuit captioned as Michael Rentschler, individually, and on behalf of all others similarly situated, v. Atlantic General Hospital Corporation, Case No. 1:23-cv-01005-JRR (D. Md.), the Hon. Judge Julie R. Rubin entered an order on motion to consolidate related actions and to appoint interim co-lead counsel as follows: 1. The Ehrisman Action is consolidated with the Rentschler Action. 2. Rentschler, Case No. 1:23-cv-01005, is designated as the lead case, with all further filings to be captioned and docketed in that case pending further order of the court. 3. All pending deadlines and hearings in the Rentschler and Ehrisman actions are struck. 4. In the event a future case that arises out of the same subject matter as the Consolidated Action is hereafter filed in this Court or transferred from another court, defense counsel shall promptly serve a copy of this Order on the attorneys for the plaintiff(s) in the newly filed case and promptly notify the Court so it may determine if the newly filed case should be consolidated in the Consolidated Action. 5. James Ulwick of Kramon & Graham P.A., Daniel O. Herrera of Cafferty Clobes Meriwether & Sprengel LLP, and Gary M. Klinger of Milberg Coleman Bryson Phillips Grossman PLLC shall serve as Interim Co-Lead Counsel. 6. Co-Lead Counsel shall have the sole authority to speak for the Plaintiffs in all matters regarding pre-trial procedure, trial, and settlement negotiations and shall make all work assignments in such manner as to facilitate the orderly and efficient prosecution of this litigation and to avoid duplicative or unproductive effort. 7. Co-Lead Counsel shall be responsible for coordinating all activities and appearances on behalf of the Plaintiffs. No motion, request for discovery, or settlement discussion, other pre-trial or trial proceedings will be initiated or filed by any the Plaintiffs except through Co-Lead Counsel. 8. The Defendant's counsel may rely upon all agreements made with Co-Lead Counsel, or other duly authorized representative of Co- Lead Counsel, and such agreements shall be binding on all plaintiffs. 9. Interim Co-Lead Counsel are directed to consult and file a consolidated class action complaint within 30 days of the entry of this Order. 10. The Defendant shall have forty-five (45) days after the filing of the consolidated class action complaint to answer or otherwise respond. Atlantic General provides medical and surgical hospital services. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3KiyIln at no extra charge.[CC] AUSTRALIA: Live Cattle Export Ban Suit Refiled After Unlawful Order ------------------------------------------------------------------- Alys Marshall, Michelle Stanley, and Belinda Varischetti of ABC News report that a live cattle export ban class action is set to go back to court more than 12 years after the federal government's unlawful 2011 ruling to suspend the trade with Indonesia. The assistant secretary for the Office of Legal Services Coordination in the Attorney-General's Department, Michael Johnson, told Senate Estimates in May that the Commonwealth had made a $215 million settlement offer with a July 21 deadline for acceptance. Luke Bowen, the chief executive of Cattle Australia, said the offer was a far cry from the $1.2 billion the class action proposed damages to cost in 2022. "With a feeble offer like that on the table let's go back to court," Mr Bowen said. "The court will determine the volume of lost sales to Indonesia over the period of years that followed the ban." Mr Bowen said the discrepancy between the $215 million offer and the $1.2 billion damages figure from the class action came down to arguing the extent of the "flow-on effect". "This has obviously been a hurdle the Commonwealth has been unable to get themselves over," he said. "It's not just that period of time when the ban was in place, we're actually talking about the number of years that followed when we saw the volume of trade decline dramatically through permits that were issued from Indonesia." It is the second settlement offer made by the Commonwealth this year, with the first rejected in February. In a statement, the Department of Finance said "the Commonwealth is yet to receive a substantive response from the class action lawyers". Lawyers representing the class action have been granted an extension until September to respond to the offer -- the same time the case it set to reappear in court. Long time coming This has been a 12-year fight for Michael Thompson who runs Mundabullangana Station, 70 kilometres south-west of Port Hedland. He was one of the original claimants in the class action, campaigning and providing funds for the legal fight against the Commonwealth. "I was that angry . . . I became the first Western Australian and the only one of 21 [to join the class action]," Mr Thompson said. He estimated the ban "conservatively" cost his family business as much as $2 million in the first five years alone. "A lot of other pastoralists would've lost [more]. I don't think you could put a value on it," he said. Mr Thompson expected the overall legal stoush would have cost the class action at least $30 million in legal fees alone so far. And he said he will stay in the fight, "whatever it costs". "I've seen what it cost my family back then, and I've seen the damage it's done to so many families throughout Australia that were involved -- not only in the pastoral industry but in the livestock industry generally," he said. [GN] AXCESS FINANCIAL: Linton Suit Moved to Alameda County Super. Court ------------------------------------------------------------------ In the case, LAKISHA COLE LINTON, Plaintiff v. AXCESS FINANCIAL SERVICES, INC., Defendant, Case No. 23-cv-01832-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California: a. grants Linton's the motion to remand her class action to the Superior Court of the State of California for the County of Alameda; and b. denies Axcess' motion to dismiss Linton's action for failure to join an indispensable party as moot. Linton, a California resident, obtained a $1,000 consumer loan from Axcess, an Ohio corporation. She alleges that, because Axcess does not hold a license to make loans in California, it is subject to the 10% maximum interest rate limitations dictated by Article XV, Section 1 of the California Constitution. Under the parties' Loan Agreement, Axcess set Linton's interest rate at an Annual Percentage Rate ("APR") of 214.41%, far exceeding the 10% maximum interest rate permitted under California law. Linton brings claims under California's Unfair Competition Law, Bus. & Prof. Code Section 17200 et seq. ("UCL"), alleging that by advertising, making, and/or servicing loans in California that carry interest rates exceeding the maximum rate allowed by California law, Defendants have engaged in unlawful and/or unfair business acts or practices, in violation of the UCL. On Feb. 24, 2023, Linton filed the putative class action complaint in the Alameda County Superior Court. Axcess timely removed Linton's action pursuant to the Class Action Fairness Act ("CAFA"). Linton now moves to remand the case back to state court, while Axcess moves to dismiss Linton's action for failure to join an indispensable party. Linton moves to remand the case to state court for two reasons: first, because the Court lacks equitable jurisdiction over her restitution and injunctive relief claims; second, because she lacks Article III standing to bring her claim for injunctive relief. With respect to equitable jurisdiction, Judge Breyer explains that in Sonner v. Premier Nutrition Corp., the Ninth Circuit held that traditional equitable principles derived from federal common law apply to UCL restitution claims. In particular, Sonner held that a federal court in a diversity action does not have equitable jurisdiction to award restitution to a party under the UCL unless that party first establishes that they lack an adequate remedy at law. Importantly, courts in this Circuit have extended Sonner's inadequate-remedy-at-law requirement not only to equitable claims filed in federal court, but also to those removed from state court. Axcess does not dispute that, under Sonner, the Court has no equitable jurisdiction over Linton's restitution claim -- nor could it. Linton did not allege in her complaint that she lacked an adequate remedy at law. She argues that, while she could have sought legal remedies, such as damages for usury, she elected not to do so. Under Sonner, Judge Breyer holds that the Court does not have equitable jurisdiction over Linton's restitution claim. Regarding whether Sonner applies to Linton's claim for injunctive relief, Axcess contends that Sonner is specifically limited to restitution claims and does not preclude claims for injunctive relief to prevent future harm. Judge Breyer agrees -- while monetary damages would compensate Linton for past loans acquired from Axcess under the allegedly unlawful interest rates, they would not guarantee that Linton (or other borrowers) can avoid these interest rates in the future. Because retrospective monetary damages will not prevent the future harm only remediable by an injunction ordering Axcess to stop issuing loans with unfair interest rates, he declines to extend Sonner's inadequate-remedy-at-law requirement to Linton's injunctive relief claim. Therefore, the Court has equitable jurisdiction over Linton's claim for injunctive relief. With respect to Article III standing, Judge Breyer holds that because Linton alleges no intention to obtain another loan from Axcess -- even at a reasonable rate -- she has no Article III standing to bring her claim for injunctive relief. Because the Court lacks equitable jurisdiction over Linton's restitution claim and Linton lacks Article III standing to bring her claim for injunctive relief, Judge Breyer grants Linton's motion to remand and remands the case back to state court. Finally, Axcess moves to dismiss Linton's action for failure to join CCBank, which it argues is an indispensable party. Because he grants Linton's motion to remand, Judge Breyer denies Axcess' motion to dismiss as moot. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/84625wzd from Leagle.com. BEST PROFESSIONAL: Loses Bid to Dismiss Garcia's Class Complaint ---------------------------------------------------------------- In the case, MARVIN GARCIA, individually and behalf of himself and others similarly situated, Plaintiff v. BEST PROFESSIONAL HOME CARE AGENCY, INC., Defendant, Index No. 530659/2022 (N.Y. Sup.), Judge Ingrid Joseph of the New York Supreme Court, Kings County: a. denies the Defendant's motion to dismiss; b. grants in part and denies in part the Plaintiff's cross motion; and c. grants Non-party RSC Insurance Brokerage, Inc.'s ("RSC") motion moves for an order quashing the subpoena served upon it by the Plaintiff to the extent that the subpoena is stricken pursuant to New York Civil Practice Law and Rule 3103(a). The Defendant moves for an order: (1) pursuant to CPLR 3211(a)(3), dismissing the complaint for lack of standing; (2) pursuant to CPLR 3211(a)(7), dismissing the complaint for failure to state a cause of action; and (3) pursuant to CPLR 3211(a)(10), dismissing the complaint for failure to join a necessary party. Plaintiff Garcia cross-moves for an order: (1) pursuant to CPLR 3214, lifting/vacating the automatic stay of discovery arising from the Defendant's CPLR 3211 motion to dismiss; (2) granting him an extension of time to move for class certification; and (3) compelling the Defendant to respond to his discovery demands. Non-party RSC moves for an order, pursuant to CPLR 2304, quashing the subpoena served upon it by the Plaintiff, or, in the alternative, pursuant to CPLR 3103, issuing a protective order denying the subpoena in its entirety. In his putative class action complaint, the Plaintiff alleges that he and the putative class members are or were home health care aides employed by the Defendant to provide personal care, assistance, health-related tasks, and other home care services to the Defendant's clients. He further alleges that the Defendant (a) failed to pay wages in violation of the weekly wage payment requirements of Labor Law Section 191, (b) improperly withheld wages in violation of Labor Law Section 193, (c) willfully failed to pay prevailing wages as required by Home Care Worker Wage Parity Act (Public Health Law Section 3614-c), (d) failed to pay living wages in violation of New York City Fair Wages for Workers Act (Administrative Code of City of N.Y. Section 6-109), (e) failed to pay spread of hours premium as required by 12 NYCRR 142-2.4, and (f) failed to provide accurate wage notices and wage statements in violation of Labor Law Section 195. The Plaintiff alleges that he commenced this action on behalf of himself and a class consisting of each employee of the Defendant who provided home care services to its clients since 2016. Among other things, he believes that the putative class consists of over 200 persons and that his claims are typical of those of the class. Initially, Judge Joseph finds that the Plaintiff has demonstrated that the Defendant's motion to dismiss pursuant to CPLR 3211 is unavailing. In the affidavit of service filed on Oct. 28, 2022, the Plaintiff's process server states that he delivered a copy of the summons and complaint on Oct. 27, 2022, to a person authorized to accept service upon the Defendant at its corporate address. This affidavit of service constitutes prima facie evidence of proper service on that date pursuant to CPLR 311(a)(1). The Defendant had until Nov. 16, 2022, to appear, answer or make a motion, which it failed to do. Thus, it is in default. The Defendant's motion to dismiss, which was made on Nov. 29, 2022, without a request for an extension of time to answer, appear or make a pre-answer motion pursuant to CPLR 3211, is untimely and may not be considered. Assuming arguendo that the Defendant's motion was timely, Judge Joseph would still deny the motion for the following reasons. She says the Plaintiff has adequately pleaded the prerequisites that are required for a claim to proceed as a class action under CPLR 901 and adequately pleaded the Defendant's failure to pay wages as required by the various statutes and regulations. Thus, for purposes of CPLR 3211(a)(7), the Plaintiff's complaint states a class action cause of action for failure to pay the required wages. In support of its motion, the Defendant has also submitted an affidavit from Susan Smith, its administrator, who asserts that the Defendant is not the employer of the Plaintiff and the putative class members, but rather, is a "fiscal intermediary" within the meaning of a Medicaid program known as Consumer Directed Personal Assistance Program (Social Services Law Section 365-f; 18 NYCRR 505.28). Smith further asserts that the consumers who are cared for by plaintiff and the putative class of home health care workers are the actual employers of the Plaintiff and the putative class members. This affidavit, however, fails to demonstrate for purposes of a CPLR 3211(a)(7) motion that the Plaintiff's allegation that the Defendant is his employer is not a fact at all. Moreover, assuming that Smith's affidavit is sufficient to conclusively establish that the Defendant acts as a fiscal intermediary, this does not necessarily exclude it from being deemed an employer for purposes of the Plaintiff's wage claims. Even if the Defendant is deemed an employer, the Defendant asserts that it is entitled to dismissal pursuant to CPLR 3211(a)(10) because the consumer (i.e., the person cared for by the Plaintiff) is a necessary party to this action since the consumer is, at the very least, a joint-employer of him. The Defendant, however, has failed to identify how the failure to join the consumer would impede the Court's ability to provide complete relief between the parties or that the consumer would be inequitably affected by a judgment in this action. Finally, the Defendant's contention that it is entitled to dismissal pursuant to CPLR 3211(a)(3) because the Plaintiff lacks standing to bring this class action is based only on its assertion that he has failed to adequately plead the requirements for a class action. Since Judge Joseph has found that the Plaintiff's allegations are sufficient at this pleading stage, she rejects the Defendant's arguments regarding standing. Turning to the Plaintiff's cross motion, Judge Joseph finds that the Plaintiff's need to conduct pre-class certification discovery to determine whether the prerequisites of a class action set forth in CPLR 901 (a) can be satisfied constitutes good cause for the extension of the 60-day time for moving for class certification fixed by CPLR 902. With respect to the Plaintiff's request to lift CPLR 3214 (b)'s automatic stay of disclosure during the pendency of the Defendant's CPLR 3211 motion, this request has been rendered moot by this Court's denial of the Defendant's CPLR 3211 motion to dismiss. Finally, the portion of the Plaintiff's motion seeking to compel disclosure from the Defendant is denied as premature, since, until now, disclosure has been stayed pursuant to CPLR 3214, and, as such, the Defendant cannot be deemed to have failed to respond to the Plaintiff's discovery demands within the meaning of CPLR 3124. However, Judge Joseph notes that the parties may consult each other regarding the Plaintiff's discovery demands to expedite the pre-class certification discovery to which he is entitled. The Plaintiff's pre-class certification discovery demands at this juncture are limited to ascertaining only those facts which are necessary to support an application for class status. Regarding RSC's motion for an order quashing the subpoena and/or providing for a protective order, Judge Joseph finds that the subpoena at issue provides ample information regarding the circumstances of the action and the reason disclosure is required such that plaintiff has satisfied the notice requirement of CPLR 3101(a)(4). Nevertheless, since discovery at this pre-class certification stage of the action is limited to those facts necessary to support an application for class status, she finds that the subpoena is overbroad and burdensome in that it contains demands for 26 categories of documents that, for the most part, are irrelevant to the issue of class action certification. Since it is counsel's burden to serve a proper demand and not the court's burden to correct a palpably bad one, Judge Joseph elects to issue a protective order striking the entirety of the Plaintiff's patently overbroad demands and directs him to issue a new subpoena that is limited in scope. Accordingly, Judge Joseph denies the Defendant's motion. She grants the Plaintiff's cross motion to the extent that the Plaintiff's time to move for class certification is extended until 90 days after service of a copy of the Court's Decision and Order with notice of entry. That portion of the Plaintiff's cross motion requesting the lifting/vacatur of CPLR 3214's automatic stay of discovery is denied as academic based on the Court's denial of the Defendant's CPLR 3211 motion to dismiss. That branch of his cross motion seeking to compel discovery is denied as being premature. RSC's motion is granted to the extent that the subpoena is stricken pursuant to CPLR 3103(a). All other issues not addressed are either without merit or moot. This constitutes the decision and order of the Court. A full-text copy of the Court's June 30, 2023 Decision & Order is available at https://tinyurl.com/mr2utddb from Leagle.com. BOCA RESTAURANT: Fails to Pay Dishwashers' OT Wages Under FLSA -------------------------------------------------------------- DANIEL MEJIA, individually and on behalf of others similarly situated v. BOCA RESTAURANT & STEAK HOUSE CORP (D/B/A BOCA RESTAURANT AND LOUNGE), EMMANUEL CARELA, and BERNARDO JOSE GONZALEZ, Case No. 1:23-cv-06094 (S.D.N.Y., July 14, 2023) seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. The Plaintiff asserts that the Defendants maintained a policy and practice of requiring Plaintiff Mejia and other employees to work in excess of 40 hours per week without providing the overtime compensation required by federal and state law and regulations. The Defendants also failed to maintain accurate recordkeeping of the hours worked and failed to pay the Plaintiff Mejia appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium, the Plaintiff adds. The Plaintiff Mejia worked from 2:00 p.m. until 12:00 a.m., 4 days a week and from 2:00 p.m. until 11:00 p.m., 1 day a week (typically 49 hours per week). From March 1, 2023, until March 4, 2023, the Defendants only paid half of the Plaintiff Mejia's wages for his work. Plaintiff Mejia seeks certification of this action as a collective action on behalf of himself, individually, and all other similarly situated employees and former employees of the Defendants. Mr. Mejia was employed by the Defendants as a dishwasher at Boca Restaurant and Lounge from March 14, 2022, until March 5, 2023. BOCA RESTAURANT & STEAK HOUSE CORP. is a New York-based restaurant.[BN] The Plaintiff is represented by: Catalina Sojo, Esq. CSM LEGAL, P.C 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 CARDINAL LOGISTICS: Fails to Pay Drivers' Wages, Roland Suit Says ----------------------------------------------------------------- FREDERIC ROLAND and JOSE ANTONIO RAMOS LIMA, on behalf of themselves and all others similarly situated v. CARDINAL LOGISTICS MANAGEMENT CORPORATION, d/b/a CARDINAL HOME DELIVERY CARRIERS, Case No. 1:23-cv-11586 (D. Mass., July 14, 2023) seeks to recover wages due to them under the Massachusetts Wage Act. Although Cardinal classified the Plaintiffs, as well as other class members, as independent contractors, the control manifested over the drivers by Cardinal as well as the drivers' inability to maintain an independently established business demonstrates that they qualify as Cardinal's employees under the Massachusetts Wage Act. Accordingly, Cardinal requires delivery drivers with which it contracts to have or lease a truck that meets specifications determined by Cardinal. Cardinal also requires delivery drivers to obtain insurance, including automobile liability, commercial general liability, umbrella liability, cargo, and worker's compensation coverage, at levels dictated by Cardinal. Cardinal also allegedly deducts certain expenses directly from the compensation it pays, including deductions for insurance, uniforms, and administrative costs such processing fees, and compels the Plaintiffs and other drivers to incur certain expenses which would normally be borne by an employer, such as for fuel costs, vehicle maintenance costs, and payments to helpers. The Plaintiffs and similarly situated drivers are employees of Cardinal pursuant to the Massachusetts Wage Law, M.G.L. c. 149, section 148. As a result, the actions of Cardinal in deducting certain expenses from its workers' pay, including for damage claims, uniforms, and insurance are unlawful under the Massachusetts Wage Law, M.G.L. c.149, section 148, and c. 149, section 150. Thus, the Plaintiffs bring this action on behalf of themselves and on behalf of a class of similarly situated persons who have worked as delivery drivers for Cardinal in Massachusetts and who were classified as independent contractors for statutory claims that stem from the same Wage Act violations. Plaintiff Roland worked for Cardinal in the Commonwealth of Massachusetts as a delivery driver delivering Bob's Discount Furniture merchandise from October 2022 until April 2023. Plaintiff Lima worked for Cardinal in the Commonwealth of Massachusetts as a delivery driver from September 2022 to May 2023, delivering Bob's Discount Furniture merchandise. Cardinal is in the business of providing the delivery of retail merchandise to its customers. Cardinal provides delivery services for companies such as Bob's Discount Furniture.[BN] The Plaintiffs are represented by: Harold L. Lichten, Esq. Olena Savytska, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994 5800 E-mail: hlichten@llrlaw.com osavytska@llrlaw.com - and - James W. Simpson, Esq. LAW OFFICES OF JAMES W. SIMPSON, JR., P.C. 100 Concord St., Ste. 3B Framingham, MA 01702 Telephone: (508) 872-0002 E-mail: james@simpsonlawoffices.com CASEY'S GENERAL: Food-Delivery Drivers File Labor Class Action -------------------------------------------------------------- Clark Kauffman, writing for Iowa Capital Dispatch, reports that another class-action lawsuit has been filed in federal court on behalf of food-delivery drivers, this time targeting a Pizza Hut operator based in Iowa. The lawsuit, which is similar to those filed against Casey's General Stores and Domino's in recent years, was filed in the U.S. District Court for the Southern District of Iowa. As with the other lawsuits, the new filing alleges that food-delivery drivers who are paid near-minimum wage salaries are forced to "kick back" some of their pay to their employer in the form of uncompensated use of their personal vehicles - lowering their net pay to something less than the minimum wage. Named as defendants are Comes Investments of West Des Moines, which owns and operates Pizza Hut locations in Iowa, Minnesota and Wisconsin; and company owners Joseph Comes, Jill Comes, Mark Adams and Eric Broeker. All delivery drivers employed at the company's Pizza Hut stores have essentially the same job duties, delivering pizzas in return for wages and tips, and working inside the stores where they do not collect tips, according to the lawsuit. The workers are paid minimum wage or slightly more than minimum wage, the lawsuit claims, and are also required to maintain and pay for operable, safe vehicles to use in delivering the company's pizza and other products. The lawsuit alleges the company doesn't compensate or "adequately reimburse" the drivers for costs such as vehicle depreciation, gasoline expenses, automobile maintenance, insurance, financing charges and registration costs. The compensation received by the delivery drivers, after deducting the non-reimbursed expenses, results in the drivers receiving less than minimum wage for each hour worked, the lawsuit claims. The named plaintiff in the case, Michele Lopez, worked as a delivery driver at a Pizza Hut located in Minnesota in 2020 and 2021. She averaged four deliveries per hour and regularly drove about seven miles for each delivery, according to the lawsuit. Based on those numbers, as well as the federal government's mileage reimbursement rate for that period of 57 cents per mile, the lawsuit claims Pizza Hut effectively reduced Lopez's hourly wage while making deliveries by $16.10 per hour - creating a situation in which she kicked back to Pizza Hut more than she was being paid. The lawsuit seeks class-action status to broaden the pool of plaintiffs in the case to include all current and former Minnesota delivery drivers employed by the Comes Investments for the past three to six years. The attorney who filed the case, Thomas Newkirk, is with the Newkirk Zwagerman Law Firm of Des Moines. The company has yet to file a response to the lawsuit. A similar lawsuit against Casey's General Stores was filed in 2021 and was settled last year with the company agreeing to pay the one named defendant, Jolene Greever, $3,000. A separate lawsuit against Casey's, filed in 2022 on behalf of delivery driver Derek Powell and others, is still pending in federal court. A 2021 lawsuit filed against Domino's on behalf of driver Alexia Stevens and others was dismissed in 2022 with no public reference to any settlement. [GN] CHEWY INC: Millican Seeks to Recover CSRs' OT Wages Under FLSA -------------------------------------------------------------- LACRECIA MILLICAN, on behalf of herself and all others similarly situated v. CHEWY, INC., a Delaware corporation, Case No. 1:23-cv-11587 (D. Mass., July 14, 2023) seeks to recover overtime wages pursuant to the Fair Labor Standards Act. The Plaintiff contends that the Defendant systematically failed to compensate its CSRs for work tasks completed before and after their scheduled shifts and during their unpaid meal periods, when they are not logged into Defendant's timekeeping system, which resulted in customer service representatives (CSRs) not being paid for all overtime hours worked, and in non-overtime workweeks, for regular hours. The Defendant's CSRs, including the Plaintiff, performed work off-the-clock at the end of their scheduled shift, after clocking out of the Defendant's timekeeping system, when they shut-down/log out of the programs and applications that they utilized during their shifts. Because the Defendant required its CSRs, including the Plaintiff, to perform pre-, mid- and post-shift work off-the-clock, the hours tracked in Defendant's timekeeping system are inaccurate representations of the total amount of time CSRs spent working for Defendant. Thus, the hours reflected on the CSRs' paystubs are also inaccurate representations of the hours they worked, the suit claims. As a result of the pre-, mid- and post-shift off-the-clock work, the Plaintiff and other CSRs were unlawfully deprived of approximately seven minutes of compensation every day. Thus, the Plaintiff seeks a declaration that her rights, and the rights of the putative Collective and Class members, were violated, a judgment awarding her unpaid back wages, liquidated damages, attorneys' fees and costs to make her and the putative Collective and Class whole for damages they suffered, and any other remedies to which they may be entitled, and to help ensure the Defendant will not subject future workers to the same illegal conduct in the future. Plaintiff LaCrecia Millican worked for the Defendant as an hourly, non-exempt CSR in its Richardson, Texas brick-and-mortar location from November 16, 2021, through December 2021, and remotely from January 2022 through July 2022. Chewy Inc. is an online retailer of branded and private-label pet food, grooming supplies and other pet-related products.[BN] The Plaintiff is represented by: Benjamin Knox Steffans, Esq. STEFFANS LEGAL PLLC 10 Wendell Ave. Ext. Suite 208 Pittsfield, MA 01201 Telephone: (413) 418-4176 E-mail: bsteffans@steffanslegal.com - and - Kevin J. Stoops, Esq. Alana Karbal, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: kstoops@sommerspc.com akarbal@sommerspc.com COLGATE-PALMOLIVE CO: Filing for Class Cert Bid Due Dec. 13, 2024 ----------------------------------------------------------------- In the class action lawsuit captioned as Schneider, et al., v. Colgate-Palmolive Company, et al., Case No. 5:22-cv-01294-DNH-TWD (N.D.N.Y.), the Hon. Judge Terese Wiley Dancks entered a uniform pretrial scheduling order as follows: (1) The deadlines set in this scheduling order supersede the deadlines set forth in fed. r. civ. p.26(a)(3) and are firm and will not be extended, even by stipulation of the parties, absent good cause. (2) Venue motions are to be filed within sixty (60) days of the date of this Order following the procedures set forth in Local Rule 7.1 (b)(2) and are to be made returnable before the assigned Magistrate Judge. (3) jurisdiction motions are to be filed within 60 days of the date of this Order following the procedures set forth in Local Rule 7.1 (b)(1) (unless a party who is not an attorney is appearing pro se, in which case L.R. 7.1 (b)(2) should be followed) and are to be made returnable before Judge Hurd. (4) Joinder of parties: Any application to join any person as a party to this action shall be made on or before Oct. 20, 2023. (5) Amendment of Pleadings: Any application to amend any pleading in this action shall be made on or before Oct. 20, 2023. (6) Discovery: Rule 33 and 34 Requests to be served by Aug. 18, 2023. Requests to Admit to be served by Dec. 15, 2023. All discovery in this matter is to be completed on or before Oct. 29, 2024. Discovery Motions due Nov. 12, 2024. Class Certification Motions to be filed by Dec. 13, 2024. Daubert Motions to be filed by Dec. 13, 2024. (7) Motions: Class Certification Motion to be filed by Dec. 13, 2024. Colgate-Palmolive Company is an American multinational consumer products company. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3OdOtLJ at no extra charge.[CC] DISH NETWORK: Files Cross Appeal in Fuentes Suit ------------------------------------------------ DISH NETWORK, LLC has filed a cross appeal from a court ruling in the lawsuit entitled Narciso Fuentes, individually and on behalf of all others similarly situated, Plaintiff, v. Dish Network, LLC, Defendant, Case No. 4:16-cv-02001-JSW, in the U.S. District Court for the Northern District of California. On March 7, 2016, the Plaintiff filed a complaint in the California Superior Court for the County of Alameda, asserting putative class claims against the Defendant for alleged violations of California's Home Solicitation Sales Act, Civil Code section 1632, the Consumer Legal Remedies Act, and the Unfair Competition Law. The Defendant removed the case to the U.S. District Court for the Northern District of California on the basis that the Court had jurisdiction under the Class Action Fairness Act. On Mar. 30, 2023, Plaintiff filed a motion to remand the case for lack of jurisdiction, which the Court denied through an Order entered by Judge Jeffrey S. White on May 17, 2023. The Court agreed with the Defendant that because the Court has ruled on the question of liability on each of his claims, there are no unadjudicated claims to remand. The Plaintiff appealed. The Defendant's cross appeal case is captioned Narciso Fuentes v. Dish Network, LLC, Case No. 23-15989, in the United States Court of Appeals for the Ninth Circuit, filed on July 12, 2023. The briefing schedule in the Appellate Case states that: -- Appellant Dish Network, LLC Mediation Questionnaire was due on July 19, 2023; -- Appellee Narciso Fuentes first cross appeal brief is due on September 18, 2023; -- Appellant Dish Network, LLC second brief on cross appeal is due on October 17, 2023; -- Appellee Narciso Fuentes third brief on cross appeal is due on November 17, 2023; and -- Optional cross appeal reply brief for Dish Network, LLC is due within 21 days of service of third brief on cross appeal. [BN] Plaintiff-Appellee NARCISO FUENTES, individually and on behalf of all others similarly situated, is represented by: Elliot Jason Conn, Esq. CONN LAW, PC 354 Pine Street, 5th Floor San Francisco, CA 94104 Telephone: (415) 417-2780 - and - Arthur David Levy, Esq. 3950 Broadway Oakland, CA 94611 Telephone: (415) 702-4551 Defendant-Appellant DISH NETWORK, LLC is represented by: Richard R. Patch, Esq. Clifford Yin, Esq. COBLENTZ PATCH DUFFY & BASS, LLP One Montgomery Street, Suite 3000 San Francisco, CA 94104 Telephone: (415) 391-4800 - and - Arthur David Levy, Esq. 3950 Broadway Oakland, CA 94611 DOVENMUEHLE MORTGAGE: Jackson Parties May File Redacted Settlement ------------------------------------------------------------------ In the case, AMBER JACKSON, Plaintiff v. DOVENMUEHLE MORTGAGE, INC., Defendant, Case No. 22-CV-1280-JPS (E.D. Wis.), Judge J.P. Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin: a. denies the parties' joint motion for approval of their settlement without prejudice; b. grants the parties' joint motion to file their settlement agreement in redacted form; c. administratively closes the action; and d. vacates the remaining dates in the Court's trial scheduling order. On Oct. 28, 2022, the Plaintiff filed this putative collective and class action pursuant to the Fair Labor Standards Act (the "FLSA"), and Wisconsin's Wage Payment and Collection Laws. On June 29, 2023, the parties informed the Court that they have reached a settlement that will terminate the case with prejudice. The settlement resolves only the Plaintiff's claims on an individual basis. No class or collective was certified. The parties nonetheless move for approval of the settlement, though such approval is not required, as a condition of the settlement. The parties further move for leave to file their Confidential Settlement Agreement and General Release in redacted form. Because no class was certified, the settlement approval process prescribed by Federal Rule of Civil Procedure 23(e) does not apply. No collective was certified either, and the settlement resolves only the Plaintiff's individual claims. The parties request the Court's approval of their settlement ostensibly because they have included such approval as a condition of the settlement in the Settlement Agreement. As the Court has held before, while it is cognizant that the parties themselves negotiated for a judicial-approval clause in their agreement they have not persuasively argued that such a clause was justified under existing circuit case law, citing Unifirst Corp. v. Rapshus, 23-CV-97-JPS, ECF No. 11 (May 15, 2023). The Seventh Circuit has never explicitly held that court approval of individual FLSA settlement agreements is required, and the Court will not, in this case, self-impose or adopt such a requirement where the FLSA does not explicitly require it. The parties rely heavily on the Court's opinion in Jimenez v. Illini Precast LLC as supporting the Court's approval of their settlement. No. 19-CV-1623-JPS, 2023 WL 1777528 (E.D. Wis. Feb. 6, 2023). But there, the parties had not reached an agreement as to attorneys' fees, as the parties have here, and therefore, the Court was required to make a "prevailing party" determination. Therefore, Judge Stadtmueller denies the motion without prejudice. As in Unifirst, the parties may, however, refile the motion for settlement approval at any time; any renewed motion should address why, in the absence of a statutory command or requirement arising from binding case law, the Court's approval of the parties' agreement is necessary. The parties also move to file the Settlement Agreement in redacted form. Their proposed redactions are limited and tailored to cover only the specific amounts of the settlement payments to the Plaintiff and the amount of fees negotiated to be paid to her counsel. Further, the parties explain that the reason they seek the redactions is because a condition of the Confidential Settlement Agreement is that the parties have agreed to not discuss, reveal, or otherwise disclose the terms and conditions of the Confidential Settlement Agreement, the payment or receipt of money, or the negotiations. However, as the Court has already noted, the law is unsettled as to whether court approval is required as to a stipulated settlement of individual FLSA claims. Judge Stadtmueller finds at this juncture that these proffered bases support good cause for filing the Settlement Agreement with the minimal redactions applied by the parties. The parties do not proffer their confidentiality agreement as the sole reason to support good cause; they also explain that the confidentiality agreement was a material component of their negotiations and provide an additional argument that the redactions will "serve some social purpose." Judge Stadtmueller is further persuaded because the necessity of court approval of the Settlement Agreement is unclear. This is not to say, however, that he would not be swayed down the road by a challenge to the redactions filed by an interested member of the public. For the reasons he set forth, Judge Stadtmueller denies the parties' joint motion for approval of the settlement without prejudice. He grants the parties' joint motion to file the Settlement Agreement in redacted form. The Court administratively closes the action upon the docketing of this Order pending either a renewed motion for approval of the settlement or the stipulation of dismissal with prejudice contemplated by the Settlement Agreement. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/yhuvmkna from Leagle.com. EARTHLINK HOLDINGS: Bids to Dismiss Amended Murray Complaint Denied ------------------------------------------------------------------- In the case, ROBERT MURRAY, On Behalf of Himself And All Others Similarly Situated, Plaintiff v. EARTHLINK HOLDINGS CORP., et al., Defendants, Case No. 4:18-cv-202 JM (E.D. Ark.), Judge James M. Moody, Jr., of the U.S. District Court for the Eastern District of Arkansas, Central Division, denies the Defendants' motions to dismiss the Second Amended Complaint. Mr. Murray filed the purported class action for securities violations arising out of the 2017 merger between Windstream and Earthlink. Pending are two motions to dismiss the SAC. One motion was filed by Defendants Windstream; its directors Carol B. Armitage, Samuel E. Beall III, Jeannie H. Diefenderfer, Robert E. Gunderman, Jeffrey T. Hinson, William G. LaPerch, Larry Laque, Kristi Moody, Michael G. Stoltz, Tony Thomas and Alan L. Wells; and EarthLink (all collectively, the "Windstream Defendants"). The remaining defendants, directors of Earthlink -- Susan D. Bowick, Joseph F. Eazor, Kathy S. Lane, Garry K. McGuire, R. Gerard Salemme, Julie A. Shimer, Marc F. Stoll and Walter L. Turek ("EarthLink Directors"), filed the second. The Defendants have adopted each other's arguments. The Plaintiff filed a single response to both. The Plaintiff, a former EarthLink stockholder, filed the case on March 3, 2018 for violations of federal securities law in connection with the merger of EarthLink and Windstream. An amended complaint was filed on July 27, 2018 before the Defendants responded to the original complaint. The Defendants filed motions to dismiss the first amended complaint ("FAC") for failure to state a claim and as being barred by the statute of limitations. A hearing was set for oral arguments but was continued after Windstream filed for Chapter 11 bankruptcy on Feb. 25, 2019. The bankruptcy court determined that the automatic stay extended to all the Defendants in this case, but it granted the Plaintiff limited relief from the stay for the Court to hear oral argument and rule on the pending motions to dismiss. The Court heard argument on the then-pending motions to dismiss on Aug. 22, 2019. The automatic bankruptcy stay was lifted on June 26, 2020 when the bankruptcy court confirmed Windstream's plan of reorganization. The Plaintiff filed a motion for leave to amend a second time, attaching a redlined copy of the proposed SAC, and the parties jointly moved for an order accepting the filing of the SAC. Briefing on the motions to dismiss the SAC was completed in October of 2021. The Plaintiff filed a notice of recent authority on April 20, 2022 which spawned more briefing. He filed another notice of recent authority on Oct. 7, 2022, to which no response was filed. The Court apologizes to the parties for the delay in ruling. The SAC alleges that as of Aug. 8, 2016, Earthlink was a strong, consistently performing company that had generated positive income for the second quarter in a row. On Oct. 5, 2016, Windstream submitted an indication of interest to Earthlink contemplating a merger. One month later, the EarthLink Directors unanimously approved the merger which was then completed on Feb. 27, 2017. Windstream filed for Chapter 11 bankruptcy relief two years following the merger. When its reorganization plan was confirmed by the bankruptcy court in June of 2020, all of Windstream's shares of common stock were declared "cancelled, discharged and of no force and effect. The Plaintiff seeks to represent a class of individuals who acquired Windstream shares because of "Offering Documents" filed with the SEC in advance of the merger and also individuals who held Earthlink stock at the time of the merger. The Offering Documents include a registration statement filed by Windstream on Dec. 8, 2016; a joint proxy statement/prospectus filed by Windstream on Jan. 24, 2017; and a proxy statement filed by EarthLink on Jan. 24, 2017. The SAC alleges that Windstream historically paid robust dividends, and the Offering Documents stated that the merger would provide support for the continued payment of the $.60 per share annual dividends, which was a substantial increase in the annual dividend currently received by the EarthLink stockholders. When Earthlink and Windstream merged, each share of EarthLink common stock was exchanged for .818 shares of Windstream common stock. The Windstream stock was valued at $39.25 at that time of the merger. Things did not go well for Windstream following the merger. It struggled to keep up with the competitive market and had increasingly poor quarterly returns. On August 3, 2017, about five months after the merger, Windstream announced that it was ending its quarterly stockholder dividends effective immediately. By June of 2018 Moody's had downgraded Windstream's debt level to "distressed," and Windstream filed for bankruptcy soon after. Over a third of the SAC relates to a complex arrangement Windstream had with Uniti Group, Inc. that began in March of 2015 (the "Uniti Arrangement"). The Plaintiff alleges that Windstream established Uniti as a new publicly traded Real Estate Investment Trust ("REIT"). Next Windstream's operating subsidiaries, Windstream Services, transferred assets they valued at $7.4 billion to Uniti in exchange for cash and Uniti stock. Then Windstream and Uniti entered a lease in which Uniti leased the assets back to Windstream Services in exchange for annual payments from Windstream for an initial rate of $650,000 million which included rent, real estate taxes, insurance, and maintenance of the assets. These lease payments were not set at fair market value. The Uniti Arrangement was "disguised financing" in an attempt to provide a short-term economic solution for Windstream's growing challenges. The Plaintiff alleges that Windstream misrepresented the Uniti Arrangement to the SEC, allowing it to underreport the size of its liabilities and to avoid a breach of restrictive covenants in an indenture from a $700 million note. He alleges that the mischaracterization of the Uniti Arrangement the Offering Documents supports its claims for securities act violations. In the SAC, the Plaintiff asserts five claims arising out of the Offering Documents. Count I alleges violations of Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 based on materially misleading statements and failure to disclose material facts in the Joint Proxy/Prospectus and the Proxy. Count II asserts a controlling persons claims against the Windstream Defendants and the Earthlink Directors pursuant to Section 20(a) of the Exchange Act. Count III alleges violations of Section 11 of the Securities Act of 1933 against the Windstream Defendants based on inaccurate, misleading, and omitted facts contained in the Registration Statement. Count IV alleges violations of Section 12(a)(2) of the Securities Act against the Windstream Defendants based on the Joint Proxy/Prospectus. Count V alleges a controlling persons claim pursuant to Section 15 of the Securities Act against the Windstream Individual Defendants who promulgated the Prospectus. The Plaintiff explicitly states that he is bringing claims for strict liability or negligence under the statutes, not fraud or recklessness. These are the same five claims contained in the FAC. First, the Defendants argue that the statute of repose began running on Feb. 27, 2017, the date the merger was completed. They do not challenge that both the original complaint and the FAC were filed well within the three-year statute of repose (March 3, 2018 and July 27, 2018, respectively). The Defendants argue that when he filed the SAC, the Plaintiff asserted new claims, that they call the Uniti Claims, for the first time. It is these "claims" that the Defendants argue are barred. Judge Moody finds that the Defendants had no right to repose if the Plaintiff's action was pending. Next, the Defendants argue that the Uniti allegations are new to the SAC and are barred by the one-year statute of limitations. The Plaintiff argues that the allegations in the SAC "arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth" in the FAC and relate back to the date is was filed pursuant to Federal Rule of Civil Procedure 15(c)(2). Judge Moody holds that while the SAC goes into significantly more detail about the Uniti Arrangement and how it resulted in materially misleading statements and omissions of material facts in the Offering Documents, that the Uniti claims in the SAC relate back to the filing of the FAC. The Plaintiff has not pleaded himself out of Court. Finally, Judge Moody finds that the Plaintiff has sufficiently stated a claim for each of his alleged securities violations. Since he is denying the Defendants' motions to dismiss, and any ultimate appeal would be a de novo standard of review, Judge Moody does not go into detail on its ruling. The parties well and fully briefed the law as it relates to the Plaintiff's specific allegations. The Plaintiff's chief complaints are that the Offering Documents contained misleading half-truths and material omissions regarding Windstream's long-term debt levels and the sustainability of the dividend. Judge Moody finds that the bold, italicized statements in SAC are sufficient to state a claim for violations of Section 14(a) of the Exchange Act and Sections 11, 12(a)(2) of the Securities Act. The same is true for the derivative controlling person claims. Taking the Plaintiff's allegations as true and drawing reasonable inferences in his favor, the SAC is sufficient to survive the Defendants' motions to dismiss. Therefore, Judge Moody denies the Defendants' motions to dismiss. The Defendants are ordered to file answers to the SAC. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/2jcvesvn from Leagle.com. ENVIRONMENTAL DESIGNERS: Gomez Sues Over Labor Law Violations ------------------------------------------------------------- JOSE GOMEZ, on his own behalf, and on behalf of all similarly situated persons, Plaintiffs v. ENVIRONMENTAL DESIGNERS LAWN AND LANDSCAPE MAINTENANCE, LLC, and all other affiliated entities and/or joint employers, all whose true names are unknown, and ROBERT VIRONE, Individually, Defendants, Case No. 3:23-cv-03666 (D.N.J., July 7, 2023) arises out of the Defendants' alleged violations of the Fair Labor Standards Act, the New Jersey State Wage and Hour Law and associated provisions of the New Jersey Administrative Code, the New Jersey Wage Payment Law, and the New Jersey Sick Leave Law. Plaintiff Gomez was employed by Defendants as a full-time non-exempt landscape laborer, in or about June 2021, and worked for Defendants throughout New Jersey until in or about the end of May 2023. He routinely worked approximately 50 hours per work week. However, he was not compensated at one- and one-half times his regular rate of pay for his hours worked in excess of 40. On May 26, 2023, the Plaintiff was sick and called in to advise Defendants that he was unable to present to work but he was wrongfully terminated on May 30, 2023 as a result of his absence. Headquartered in New Jersey, Environmental Designers provides landscaping and design services. [BN] The Plaintiff is represented by: Jodi J. Jaffe, Esq. Andrew I. Glenn, Esq. 300 Carnegie Center, Suite 150 Princeton, NJ 08540 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: jjaffe@jaffeglenn.com aglenn@jaffeglenn.com FASHION INSTITUTE: Court Enters Scheduling Order in Mahulawde Suit ------------------------------------------------------------------ In the class action lawsuit captioned as DAWNN KAREN MAHULAWDE, v. FASHION INSTITUTE OF TECHNOLOGY, JOSEPH MAIORCA, ROBERTA PALEY, and ROBERTA DEGNORE, Case No. 1:21-cv-03878-JHR-SLC (S.D.N.Y.), the Hon. Judge Sarah L. Cave entered a disovery conference scheduling order as follows: -- All pretrial motions and applications, including those relating to scheduling and discovery (but excluding motions to dismiss or for judgment on the pleadings, for injunctive relief, for summary judgment, or for class certification under Fed. R. Civ. P. 23) must be made to Magistrate Judge Cave and must comply with her Individual Practices, available on the Court's website at https://www.nysd.uscourts.gov/hon-sarah-l-cave. Fashion Institute is a public college in New York City. It is part of the State University of New York and focuses on art, business, design, mass communication, and technology connected to the fashion industry. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/43LEK4O at no extra charge.[CC] FEDERAL BUREAU OF PRISONS: Robinson Class Suit Tossed w/o Prejudice ------------------------------------------------------------------- In the class action lawsuit captioned as JONTE ROBINSON et al., v. FEDERAL BUREAU OF PRISONS, Case No. 1:22-cv-01098-TJK (D.D.C.), the Hon. Judge Timothy J. Kelly entered an order granting BOP's motion to dismiss: -- The Plaintiffs' operative complaint is dismissed without prejudice. The Plaintiffs may seek leave to file a new complaint to correct the deficiencies identified by August 14, 2023. If they do not seek leave by that date, the Court will dismiss the case as well. -- The Plaintiffs have the "rigorous burden to establish standing," and neither has done so here. Thus, the Court must dismiss the complaint for lack of subject-matter jurisdiction. -- Finally, the Court notes that Robinson has pleaded no facts to suggest that his past denial of compassionate release -- allegedly brought about by BOP’s use of the multiplier -- continues to affect him in some way that would support an ongoing or future injury. For many years, the Bureau of Prisons, or BOP, assessed kidney function differently for black inmates than for non-black inmates. the Plaintiffs—one former and one current black inmate whose kidneys were assessed under that method—sue BOP because they say that policy caused them medical injuries and resulted in denial of their compassionate-release requests. Federal Bureau of Prisons is a United States federal law enforcement agency under the Department of Justice that is responsible for the care, custody, and control of incarcerated individuals. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3Ou1HFt at no extra charge.[CC] FORD MOTOR: Court Rules on Joint Discovery Submission in Avila Suit ------------------------------------------------------------------- In the case, ROBERT AVILA, Plaintiff v. FORD MOTOR COMPANY, KELLER FORD LINCOLN; AND DOES 1-10, INCLUSIVE Defendants, Case No. 22-cv-00542-EJD (SVK) (N.D. Cal.), Magistrate Judge Susan van Keulen of the U.S. District Court for the Northern District of California enters an Order on the Parties' Joint Discovery Submission. Before the Court is the Parties' Submission pursuant to which the Plaintiff seeks an order compelling further responses to 14 requests for production. Judge van Keulen has reviewed the Submission, the relevant law and the litigation history in the action and determines that 1) her rulings on general disputes are likely to inform resolution of individual RFPs; and 2) therefore the action may be resolved without oral argument. To the extent she orders production of documents or supplemental responses, such production and responses are to be completed. First, the captions used by the Parties in the action are not consistent. Judge van Keulen says this must be corrected immediately. The Parties are to meet and confer and file a stipulation to amend the case caption to reflect the proper Parties. The disputed discovery is directed to Ford Motor Co., in this Order referred to "Defendant." Second, the Submission fails to comply with the Court's Standing Order on Civil and Discovery Referral Matters in three key respects. First, the Parties use improperly footnotes for additional factual assertions and argument. The Court has not considered any footnotes that violate section 9. Second, the Parties misuse the joint chart (section 8) to set forth innumerable additional pages of argument in blatant violation of page limits for the joint submission. The Court has not considered any argument set forth in the chart which is not addressed in the Submission and declines to address any specific interrogatory. Third, the chart is to set forth the Parties' requests, responses and proposed compromises. Compromises, if any, are hopelessly lost in the morass of improper argument. As a result of these failings, the joint chart is rendered unusable, requiring the Court to draft this Order. The Parties are admonished that any future submission that fails to conform with the Standing Order will be stricken in its entirety. Third, Judge van Keulen identified the following issues from the properly formatted portions of the Submission: 1. The definition of the Transmission Defect; 2. Whether production of documents responsive to Plaintiff's requests which were also collected and produced in a related class action is appropriate in this case; 3. Whether production of Defendant emails is appropriate in this case; 4. Whether production of certain deposition transcripts and organizational charts from the related class action is appropriate in this case; and 5. Whether Defendants should provide supplemental written responses that clarify the status of their production. Regarding the definition of "Transmission Defect," the Complaint identifies a number of defects with the subject vehicle. In particular, the Transmission Defect is defined by its symptoms in the Complaint as "defects that can result in various problems, including, but not limited to slipping of the transmission, hesitation on acceleration, improper transmission engagement and/or harsh and/or hard shifts ("Transmission Defects")." This definition is supplemented in the discovery requests to include "jerking, shuddering and/or juddering." Up to this point, Transmission Defect is sufficiently defined by symptoms to give the Defendant adequate notice and to establish discovery parameters. However, in both the Complaint and the discovery requests, Judge van Keulen says the Plaintiff goes on to describe Transmission Defect more vaguely as "requiring reprogramming of the transmission control module (TCM) and/or powertrain control module (PCM); failure and/or replacement the transmission as reflected in SUBJECT VEHICLE's repair history." Id. This latter language is too vague and is stricken from the definition. With this guidance, to the extent the Defendant has not searched for or has withheld documents based on an objection to the definition of Transmission Defect, it is to supplement its production and provide supplemental responses in accordance with this Order. With respect to production of documents from a related class action, this action is not merely "a consumer warranty case involving a single F-150 pickup truck" as described repeatedly by the Defendant. It is also a fraud case, with specific allegations that Defendant "concealed and failed to disclose" known defects to the Plaintiff. The Plaintiff asserts, and Defendant does not dispute, that there is a related class action, O'Connor v. Ford Motor Co. class action (Case No. 19-CV-5045) (N.D. Ill.), which addresses the same defective 10R80 transmission in 2017-2020 Ford F-150 trucks. However, as the Defendant argues and the Plaintiff must concede, this case comprises the breach of warranty and fraud allegations of a single plaintiff, not a putative class. The Defendant further points to its voluminous production to date in this action. Judge Keulen appreciates that culling an existing production for responsive documents in another action may be unduly burdensome. Therefore, the Defendant may elect whether to simply turn over the entire O'Connor production or only those portions responsive to requests in this action. It may also elect whether to remove duplicate documents from the O'Connor production that it has already produced in this action. To the extent the Plaintiff objects to the Defendant selecting responsive documents from the O'Connor production, that objection is overruled. Regarding the production of emails, Judge van Keulen says this issue is largely dealt with in the ruling above: To the extent emails produced in the O'Connor action are responsive to document requests in this action, they are proportional to the needs of this action and are to be produced. Also, at the time of production, the Defendant is to identify the custodians and search terms used in identifying relevant emails in the O'Connor action. The Plaintiff may, having first evaluated the production and engaged in the requisite meet and confer, make a good faith request to the Court for additional custodians or search terms. Any such request will be subject to a rigorous proportionality analysis in light of the production ordered thus far. RFP 49 is for the organizational charts of the Defendant. Organizational charts of a large corporate defendant are relevant and proportional, even in a single plaintiff case such as this one. Accordingly, Judge Keulen orders the charts to be produced. RFP 55 is for deposition transcripts of Defendant pursuant to Rule 30(b)(6) and the attendant state provision. The Plaintiff's request is premature. By the production date set forth above, the Defendant is ordered to identify the agreed-upon topics on which its corporate representatives gave deposition testimony in the O'Conner action. The Parties are to meet and confer thereafter on production of relevant, proportional transcripts. Finally, the Defendant is to provide supplemental responses that reflect the status of its production as to RFPs 1-3. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/y23rzzv8 from Leagle.com. GOOGLE LLC: Walkingeagle Appeals Suit Dismissal to 9th Cir. ----------------------------------------------------------- VICTOR WALKINGEAGLE, et al. are taking an appeal from a court order dismissing their lawsuit entitled Victor Walkingeagle, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. Google, LLC, et al., Defendants, Case No. 3:22-cv-00763-MO, in the U.S. District Court for the District of Oregon. As previously reported in the Class Action Reporter, the case arises from the Defendants' alleged engagement in an illegal automatic renewal scheme with respect to their subscription plans for YouTube (YT) branded products and services that are available exclusively to consumers who enroll in their auto-renewal membership programs. When consumers sign up for the YT Subscriptions, the Defendants actually enroll them in a program that automatically renews their YT Subscriptions from month-to-month or year-to-year and results in monthly or annual charges to their credit card, debit card, or third-party payment accounts. In doing so, the Defendants fail to provide the requisite disclosures and authorizations required to be made to consumers under Oregon law, says the suit. On Dec. 2, 2022, the Defendants filed a motion to dismiss the case for failure to state a claim, which the Court granted through an Order entered by Judge Michael W. Mosman on June 12, 2023. The Court dismissed the case with prejudice. The appellate case is captioned Victor Walkingeagle, et al. v. Google, LLC, et al., Case No. 23-35465, in the United States Court of Appeals for the Ninth Circuit, filed on July 12, 2023. The briefing schedule in the Appellate Case states that: -- Appellants Nathan Briggs, Donald Molina and Victor Walkingeagle Mediation Questionnaire was due on July 19, 2023; -- Appellants Nathan Briggs, Donald Molina and Victor Walkingeagle opening brief is due on October 19, 2023; -- Appellees Google, LLC and YouTube, LLC answering brief is due on November 20, 2023; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. [BN] Plaintiffs-Appellants VICTOR WALKINGEAGLE, et al., on behalf of themselves and all others similarly situated, are represented by: Neal J. Deckant, Esq. BURSOR & FISHER, PA 1990 N. California Boulevard, Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Defendants-Appellees GOOGLE, LLC, et al. are represented by: Amit Quint Gressel, Esq. WILSON SONSINI GOODRICH & ROSATI, PC One Market Plaza, Suite 3300 San Francisco, CA 94105 Telephone: (415) 947-2087 - and - Peter D. Hawkes, Esq. Edward Addison Piper, Esq. ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 Portland, OR 97204 Telephone: (503) 954-2232 - and - Victor Hao-Jan Jih, Esq. WILSON SONSINI GOODRICH & ROSATI, PC 1900 Avenue of the Stars, Suite 2800 Los Angeles, CA 90067 Telephone: (424) 446-6904 - and - Vivek Vijay Tata, Esq. WILSON SONSINI GOODRICH & ROSATI, PC 1301 Avenue of the Americas, 40th Floor New York, NY 10019 Telephone: (212) 999-5800 GREAT STAR: Court Extends Time for Gair to File Class Cert Reply ---------------------------------------------------------------- In the class action lawsuit captioned as CANDICE GAIR on behalf of herself and all others similarly situated, v. GREAT STAR TOOLS, USA, INC., Case No. 4:21-cv-00976-MWB (M.D. Pa.), the Hon. Judge Matthew W. Brann entered an order granting the Plaintiff's motion to extend time for the Plaintiff to file reply in Support of Class Certification. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/474WA5P at no extra charge.[CC] H&R BLOCK: Discloses Tax Return to Meta, Pabon Class Suit Claims ---------------------------------------------------------------- MICHELLE PABON, individually, and on behalf of all others similarly situated v. H&R BLOCK, INC., HRB DIGITAL LLC, and HRB TAX GROUP, INC, Case No. 2:23-cv-05363 (E.D.N.Y., July 14, 2023) seeks damages for actual and imminent or impending injuries as a result of Defendants' unlawful disclosure of the Plaintiff's and putative class members' private tax return information to unauthorized third parties, including Meta Platforms, Inc. and Google. The confidential, private tax return information included names; health savings account contributions; college tuition grants, scholarships, and educational expenses; and specific pages visited by the customer, including pages related to dependents, certain types of income (e.g., rental income or capital gains), and certain tax credits or deductions. Accordingly, H&R Block maintained and operated, and continues to maintain and operate a website, https://www.hrblock.com. Through this website, taxpaying customers, among other things, can utilize H&R Block's tax preparation software to prepare and file federal and state taxes. Until November 23, 2022, the Plaintiff's TRI was unlawfully transmitted to Meta and Google. The transmission was effectuated using Meta Pixel, a line of code inserted into the online tax preparation software, or Google Analytics. H&R Block did not attempt to forestall or prevent the disclosure, dissemination, transmission, and/or release of customer TRI until after they were approached by The Markup in November 2022, the Plaintiff contends. The Plaintiff and Class Members had a reasonable expectation of privacy in their Confidential TRI. Plaintiff, Nationwide Class, and New York Subclass Members, did not authorize, consent to, or have any reason to know about H&R Block's intrusion into their privacy at the time the intrusion occurred. H&R Block's unlawful actions or inactions have impacted hundreds of thousands, if not millions, of taxpaying customers in the United States and New York State, the lawsuit claims. The Plaintiff, Nationwide Class Members, and New York Subclass Members seek appropriate relief for their injuries, including monetary damages to compensate them for the harm of their privacy interests and disgorgement of profits made by H&R Block as a result of its intrusions into Plaintiff's, Nationwide Class Members', and New York Subclass Members' private matters. The Plaintiff is a customer of H&R Block and used H&R Block's website to prepare and file her federal and state income taxes for the tax years from 2018 through 2022. H&R Block is a tax preparation company in the United States.[BN] The Plaintiff is represented by: Raymond C. Silverman, Esq. Jerrold S. Parker, Esq. Melanie H. Muhlstock, Esq. PARKER WAICHMAN LLP 6 Harbor Park Drive Port Washington, NY 11050 Telephone: (516) 466-6500 Facsimile: (516) 466-6665 E-mail: rsilverman@yourlawyer.com jparker@yourlawyer.com mmuhlstock@yourlawyer.com HANOVER VENTURES: Gonzalez Can File Class Cert Reply Until Oct. 13 ------------------------------------------------------------------ In the class action lawsuit captioned as Gonzalez v. Hanover Ventures Marketplace LLC et al, Case No. 1:21-cv-01347-ER (S.D.N.Y.), the Hon. Judge Edgardo Ramos entered an order extending the deadlines for parties' motion for summary judgment and Plaintiff's motion for class certification as follows: -- The Defendants' cross-motion for summary judgment and opposition to class certification is extended one week to July 15, 2023. -- The Plaintiffs' response and reply is extended one week to Oct. 13, 2023. -- The Defendant's reply is extended one week to Oct. 20, 2023. Hanover Ventures is a liquor license holder. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3Y6ubZb at no extra charge.[CC] The Plaintiffs are represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 143 W. 24th Street, Eight Floor New York, NY 10011 Telephone: (212) 465-1180 Facsimile: (212) 465-1181 E-mail: INFO@LEELITIGATION.COM HCA HEALTHCARE: Fails to Secure Patients' Info, Sandstrom Says -------------------------------------------------------------- PETER SANDSTROM and GREG MARCISZ, on behalf of themselves and all others similarly situated v. HCA HEALTHCARE, INC., a Tennessee corporation, Case No. (M.D. Tenn., July 17, 2023) sues the Defendant for failing to safeguard the personally identifiable information and protected health information of the patients of hospitals and physician groups it owned or operated. On July 5, 2023, an unauthorized third-party cybercriminal infiltrated an external storage location exclusively used to automate the formatting of email messages that the Defendant uses to store sensitive personal information (including Private Information) of its patients. As a result of the Data Breach, the Private Information of patients at hospitals and other medical facilities owned or operated by Defendant, including the Plaintiffs and the proposed Class members, were stolen and released on a dark web hacker forum including their names, cities, states, zip codes, email addresses, phone numbers, dates of birth, genders, patient service dates, patient service locations, and next appointment dates, says the suit. The Defendant's own investigation concluded that the Private Information compromised in the Data Breach included the Plaintiffs' and approximately 11 million other Class members' Private Information, across 27 million rows of data, the suit claims. The Defendant's alleged harmful conduct has injured the Plaintiffs and Class members in multiple ways, including: (i) the lost or diminished value of their Private Information; (ii) costs associated with the prevention, detection, and recovery from identity theft, tax fraud, and other unauthorized use of their data; (iii) lost opportunity costs to mitigate the Data Breach's consequences, including lost time; and (iv) emotional distress associated with the loss of control over their highly sensitive Private Information. The Plaintiffs bring causes of action against the Defendant for negligence, negligence per se, invasion of privacy, breach of implied contract, unjust enrichment and violation of the California Confidentiality of Medical Information Act and seeking an award of monetary damages and injunctive and declaratory relief, resulting from the Defendant's failure to adequately protect their highly sensitive Private Information. Mr. Sandstrom is an individual resident and citizen of the state of Florida, and a patient of HCA Florida West Surgical Specialists, which is one of the affected facilities listed in Defendant's Data Security Incident announcement. The Defendant is a company headquartered in Nashville, Tennessee that owns and operates hospitals, ambulatory care centers, and physician groups in 20 U.S. states and the United Kingdom.[BN] The Plaintiff is represented by: Alexandra M. Honeycutt, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLC 800 S. Gay St., Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: ahoneycutt@milberg.com - and - M. Anderson Berry, Esq. Gregory Haroutunian, Esq. Brandon P. Jack, Esq. CLAYEO C. ARNOLD, Esq. A PROFESSIONAL CORPORATION 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 239-4778 Facsimile: (916) 924-1829 E-mail: aberry@justice4you.com gharoutunian@justice4you.com bjack@justice4you.com IMAGINE360 LLC: Collins Sues Over Data Breach of Private Info ------------------------------------------------------------- ANTHONY COLLINS, individually and on behalf of all others similarly situated, Plaintiff, v. IMAGINE360, LLC, Defendant, Case No. 2:23-cv-02603-GEKP (E.D. Pa., July 7, 2023), alleges claims against the Defendant for negligence, breach of implied contract, breach of third-party beneficiary contract, unjust enrichment and for violations of the Federal Trade Commission Act and the Health Insurance Portability and Accountability Act. Allegedly, the Defendant failed to comply with industry standards to protect highly sensitive private information and failed to provide adequate notice to Plaintiff and other Class Members that their sensitive private information had been compromised. Moreover, Plaintiff seeks, among other things, orders requiring Defendant to fully and accurately disclose the nature of the information that has been compromised and to adopt sufficient security practices and safeguards to prevent incidents like the data breach in the future, says the suit. Imagine360 is a healthcare revenue cycle company located in Wayne, Pennsylvania. [BN] The Plaintiff is represented by: Nicholas Sandercock, Esq. Mason A. Barney, Esq. Tyler J. Bean, Esq. SIRI & GLIMSTAD LLP 745 Fifth Avenue, Suite 500 New York, NY 10151 Telephone: (212) 532-1091 E-mail: nsandercock@sirillp.com mbarney@sirillp.com tbean@sirillp.com INFINITY Q: Judgment Entered in SEC Complaint as to Wildcat Partner ------------------------------------------------------------------- In the case, SECURITIES AND EXCHANGE COMMISSION, Plaintiff v. INFINITY Q CAPITAL MANAGEMENT, LLC, Defendant. and WILDCAT PARTNER HOLDINGS, LP, Relief Defendant, Case No. 23-Civ. 5081 (PKC) (S.D.N.Y.), Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York enters Judgment as to Relief Defendant Wildcat Partner Holdings, LP. Plaintiff Securities and Exchange Commission ("SEC") filed a Complaint and Relief Defendant Wildcat Partner Holdings, LP ("WPH") (F/K/A Bonderman Family Limited Partnership) entered a general appearance; consented to the Court's jurisdiction over WPH and the subject matter of the action; consented to entry of this Judgment without admitting or denying the allegations of the Complaint (except as to jurisdiction); waived findings of fact and conclusions of law; and waived any right to appeal from this Judgment. Relief Defendant WPH is liable for disgorgement of $18.05 million, which will be deemed satisfied by WPH's payment of $15.65 million into the class action settlement fund in the class action titled In re Infinity Q Diversified Alpha Fund Securities Litigation, Index No. 651295/2021 (N.Y. Sup.) (the "Class Action"); and its relinquishment of its right to any distributions on account of its shares of Infinity Q Volatility Alpha Fund, L.P. it received from Infinity Q Capital Management, LLC, which shares were valued at $2.4 million at the time of transfer to WPH. In the event this judgment is not deemed satisfied in accordance with the preceding paragraph within 60 days of the occurrence of one of the following: (i) the Court presiding over the Class Action denies approval of the currently proposed Class Action settlement, and any modified versions agreed to by the parties, in a final, non-appealable, non stayed order; (ii) WPH withdraws from and terminates the Class Action Settlement as to WPH; or (iii) the Class Action Settlement is otherwise irrevocably terminated as to WPH, then the Order will be null and void and will be vacated, nunc pro tunc, and without prejudice to the status quo ante rights of WPH and the SEC. The Court will retain jurisdiction of this matter for purposes of enforcing the terms of this Judgment. There being no reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Clerk is ordered to enter this Judgment forthwith and without further notice. A full-text copy of the Court's June 30, 2023 Judgment is available at https://tinyurl.com/mtvepvxk from Leagle.com. ISS FACILITY: Court Compels Identity of Absent Class Members ------------------------------------------------------------- In the class action lawsuit captioned as CLAUDIA GARCIA, v. ISS FACILITY SERVICES, INC., et al., Case No. 3:19-cv-07807-RS (N.D. Cal.), the Hon. Judge Robert M. Illman entered an order granting the Plaintiff's request to compel the identity and contact information of absent putative class members subject to the Belaire-West opt-out procedures. -- The Parties are ordered to promptly meet and confer for the purpose of implementing the appropriate procedures for the effectuation and transmission of the opt-out notices such that the Plaintiff can promptly receive the identity and contact information of those putative class members who do not object to the disclosure of their identity and contact information. -- Perhaps once the Plaintiff secures this information, she will be better situated to either advance a prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied, or to demonstrate that that the further discovery she seeks would be likely to produce substantiation of her class allegations. -- In the meantime, the remainder of the Plaintiff’s requests to compel are denied without prejudice. -- Thus, the opportunity to object to the disclosure of one's personal information is the lynchpin Constitutional privacy right as interpreted by the California Supreme Court, and since no such opportunity to object to the disclosure of that information to putative class counsel is extant simply by virtue of a protective order addressing how the information is to later be used by counsel in cases such as this one, a protective order does not seem to address the core issue. This is a pre-certification putative class-action case brought under the California Labor Code's wage and hour provisions, and a representative action for alleged wage and hour violations brought pursuant to Private Attorney General Act of 2004 (PAGA). ISS is a workplace experience and facility management company. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3ObHjaJ at no extra charge.[CC] ITS LOGISTICS: Prelim. Approval of Guthrie Class Settlement Denied ------------------------------------------------------------------ In the case, KEITH GUTHRIE, individually, on a representative basis, and on behalf of all others similarly situated, Plaintiff v. ITS LOGISTICS, LLC, Defendant, Case No. 1:21-cv-00729-ADA-EPG (E.D. Cal.), Judge Ana de Alba of the U.S. District Court for the Eastern District of California denies the Plaintiff's motion for preliminary approval without prejudice. The Plaintiff brings a putative class action, mainly alleging various violations of California's Labor Code regarding the Defendant's employment of drivers. After the parties reached a settlement, the Plaintiff filed a motion for preliminary approval of the settlement, which was referred to the assigned Magistrate Judge. On April 5, 2023, the assigned Magistrate Judge entered findings and recommendations, recommending that the Plaintiff's motion for preliminary approval be denied without prejudice, generally concluding that the settlement did not offer a fair, reasonable, and adequate recovery. Both parties filed timely objections. In its objections, the Defendant objects to the Magistrate Judge's finding that the settlement is "too low." Regarding class certification, among the Rule 23(a) requirements, it mainly argues the adequacy of representation requirement under Rule 23(a)(4) of the Federal Rules of Civil Procedure is satisfied. Overall, the Defendant asserts that both parties believe that the proposed settlement and allocation to the class members is fair, reasonable, and adequate, despite mediation occurring early in the case. In the Plaintiff's objections, he argues that the motion for preliminary approval of the class action settlement should be granted because the proposal and decision to accept it followed a robust exchange of information and documents. He indicates that if the Court adopts the findings and recommendations, the parties will proceed forward with a more limited class, claims, and class period. Having carefully reviewed the entire file, including the parties' objections, Judge de Alba finds the findings and recommendations to be supported by the record and proper analysis and denies the Plaintiff's motion for preliminary approval of the class action settlement without prejudice. As calculated by the Plaintiff, the gross settlement amount of $365,000 is approximately 10% of the potential maximum recovery, less PAGA penalties, of $3,581,927, and the net settlement amount of $218,500, is approximately 6% of the potential maximum recovery. Judge de Alba finds that the computation of these percentages reveals a very low percentage of the potential maximum recovery. Although she may approve a settlement for a low recovery percentage, the Plaintiff has failed to demonstrate that his claims have been adequately valued. The Plaintiff failed to explain the methodology for calculating the PAGA claims and the rationale behind the percentage discounts for all claims. As the Magistrate Judge found, there is no clearly discernible formula used for either the Labor Code claims or the PAGA claims. Without any legal authority to support Plaintiff's calculations of how much to discount each claim due to the Defendant's defenses, Judge de Alba cannot find that the settlement is fair, reasonable, and adequate. In comparison to other class action settlements that the Court has approved, the Plaintiff's proposed gross settlement amount is low. Overall, the Plaintiff has not provided sufficient information for the Court to evaluate the strengths and weaknesses of his case. Judge de Alba further notes that settlement was reached very early in the case, which weighs against approval of the instant motion. The parties did not engage in any formal discovery or motion practice when it filed a status report on March 16, 2022, notifying the Court that the parties had reached a settlement after a mediation. Therefore, she denies the motion for preliminary approval, without prejudice to renewal, because it does not have enough information to evaluate the settlement's merits. Accordingly, the findings and recommendations issued on April 5, 2023, are adopted in full. Judge de Alba denies the Plaintiff's motion for preliminary approval without prejudice. The matter is referred to the assigned Magistrate Judge for further proceedings. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/yc4yk2c5 from Leagle.com. JHPDE FINANCE: New Jersey Court Dismisses Jones Suit W/o Prejudice ------------------------------------------------------------------ In the case, TIFFANY ALEXIS JONES, on behalf of herself and those similarly situated, Plaintiff v. JHPDE FINANCE I, LLC, et al., Defendants, Civil Action No. 19-13865 (ES) (CLW) (D.N.J.), Judge Esther Salas of the U.S. District Court for the District of New Jersey: a. grants the Defendants' motion to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing; and b. dismisses the Plaintiff's Second Amended Complaint without prejudice. Plaintiff Jones, on behalf of herself and those similarly situated, brings this putative class action against Defendants JHPDE Finance I, LLC; Federated Law Group, PLLC; Douglas C. Jacobsen; and Bryan Manno for violations of the Fair Debt Collection Practices Act ("FDCPA"). JHPDE is a debt buyer and Jacobsen is its CEO. Federated is a collection agency and Manno is its managing member. On an unspecified date, the Plaintiff incurred a debt arising from one or more transactions for personal, family, or household purposes that became past-due. JHPDE purchased the debt and transferred it to Federated for collection. On July 6, 2018, the Defendants mailed a collection letter to the Plaintiff. The Plaintiff alleges that the letter was computer-generated by merging electronically-stored information with a form template and mailed to consumers throughout New Jersey, such as the Plaintiff, from whom the Defendants were attempting to collect a debt. The Plaintiff attaches the letter to the Second Amended Complaint, in which the balance is listed as $3,535.32. The Collection Letter is on Federated's letterhead. The current creditor is listed as JHPDE; and the original creditor is listed as Citibank N.A. The Collection Letter provides that the Plaintiff's account has been sold to our client, JHPDE. The Plaintiff alleges that the Defendants violated the FDCPA when it sent her, and others similarly situated, the Collection Letter because JHPDE was not licensed to do so under the New Jersey Consumer Finance Licensing Act, N.J.S.A. Section 17:11C-3. Further, she alleges that the Collection Letter violated the FDCPA because it failed to correctly identify the current creditor to whom the Debt is owed since the creditor is not JHPDE. She does not allege who the correct current creditor is. The Plaintiff initiated the action on June 15, 2019. In November 2019, the parties engaged in settlement discussions, which ultimately proved unsuccessful. On July 19, 2021, the Plaintiff filed an amended complaint, which the Defendants moved to dismiss for lack of standing on Sept. 1, 2021. The Defendants' motion was terminated on Feb. 15, 2022, pending resolution of discovery issues. On Aug. 15, 2022, the Plaintiff filed the Second Amended Complaint, in which she brings a single count against the Defendants for violating the FDCPA. On Nov. 14, 2022, the parties attended mediation, which was unsuccessful. That same day, the Defendants filed the instant motion to dismiss the Second Amended Complaint for lack of standing, which has been fully briefed. On May 10, 2023, the Plaintiff submitted a notice of supplemental authority in further support of her opposition to the instant motion to dismiss, in which she cites the Third Circuit's recent decision in Deutsch v. D&A Servs. LLC, No. 22-1042, 2023 WL 2987568 (3d Cir. Apr. 18, 2023). On May 26, 2023, the Defendants filed a response to her notice of supplemental authority. The Defendants argue that the Plaintiff's allegation of a statutory violation is insufficient to establish standing because she does not allege how she was affected by the Collection Letter, much less that she suffered an injury in fact that is concrete. Nor has the Plaintiff alleged an injury that bears a close relationship to a traditionally recognized harm. The Plaintiff opposes. In her opposition brief, she argues that the common law analogue applicable here is fraud; in her supplemental submission, she appears to alternatively argue that the appropriate common law analogue is informational injury. Judge Salas opines that the Plaintiff fails to allege concrete injury under either theory. She says the Plaintiff has not alleged that she suffered any concrete harm. Consistent with the Defendants' position, the Plaintiff does not sufficiently allege any harm associated with informational injury. She does not allege that the failure to correctly identify the current creditor caused her to pay more than she would otherwise have paid, or that it delayed her repayment of the debt, that it harmed her credit rating, or even that it caused her distress, confusion, or wasted time. Nor does the Plaintiff allege that it frustrated her ability to intelligently choose her response to the debt collection letter and deprived her of her right to enjoy the benefits provided by the FDCPA. Because the Plaintiff has not alleged that she suffered any concrete harm, the case cannot proceed in federal court and must be dismissed on jurisdictional grounds for lack of standing. Even if Judge Salas were to view the common law analogue as fraud, she holds that the Plaintiff still fails to establish standing because the harm traditionally associated with fraud requires some form of reliance. Because the Plaintiff has not alleged reliance on the Collection Letter, she has not established a concrete harm resulting from any fraudulent misrepresentation. The Plaintiff does not allege that she suffered any such consequences in the Second Amended Complaint, and Plaintiff may not amend the pleadings in her opposition brief. Therefore, she lacks standing to bring a claim analogous to common law fraud because she has not adequately alleged facts resembling reliance. Based on the foregoing, Judge Salas grants the Defendants' motion. As the parties concede, dismissal is without prejudice. An appropriate Order follows. A full-text copy of the Court's June 30, 2023 Opinion is available at https://tinyurl.com/muyn2x49 from Leagle.com. KS AUTOMOTIVE: Romo Class Suit Seeks Unpaid Minimum & OT Wages -------------------------------------------------------------- JOSE ROMO, on behalf of the State of California, and others similarly situated and aggrieved v. KS AUTOMOTIVE VALENCIA, LLC, a Delaware Limited Liability Company; HELLO AUTO HOLDINGS, LLC, a Delaware Limited Liability Company; HELLO K SC, LLC, a Delaware Limited Liability Company; and DOES 1-100, inclusive, Case No. 23STCV16696 (Cal. Super., July 17, 2023) alleges that the Defendants failed to compensate the Plaintiff and Aggrieved Employees for all hours worked, resulting in the underpayment of minimum and overtime wages. The Defendants allegedly failed to compensate the Plaintiff and the Aggrieved Employees for all hours worked by virtue of the Defendants' automatic deduction and time rounding policies, and failure to relieve employees of all duties/employer control during unpaid meal periods or otherwise unlawful practices for missed or improper meal periods. Accordingly, the Defendants allegedly required Aggrieved Employees to perform pre-shift and/or post-shift off-the-clock work, such as contacting prospective customers/customers, completing paperwork and/or data entry, cleaning and/or setting up Defendants' facilities and/or show room(s), making and/or responding to work-related communications and/or completing other off-the-clock work tasks that were neither recorded nor compensated, resulting in Defendants' failure to pay Aggrieved Employees for all hours worked and the underpayment of minimum wages and overtime, says the suit. The Plaintiff seeks to recover civil penalties (75% payable to the Labor and Workforce Development Agency and 25% payable to Aggrieved Employees) for the Defendants' violations of the California Labor Code. The Plaintiff brings this action under the PAGA, as a representative action on behalf of the State of California and all Aggrieved Employees, regarding violations of the California Labor Code as to all Aggrieved Employees. Said "Aggrieved Employees" include All current and former non-exempt employees that worked either directly or via a staffing agency for any one or more of the Defendants at any location in California at any time from one year plus 65 days from the filing of the initial Complaint through the present. The Plaintiff worked for the Defendants as a non-exempt employee with a job title of parts counterperson and/or a similar title and/or position from April 25, 2022 through July 18, 2022. KS AUTOMOTIVE VALENCIA is an automotive services provider.[BN] The Plaintiff is represented by: Zachary M. Crosner, Esq. Jamie Serb, Esq. Brandon Brouillette, Esq. CROSNER LEGAL, PC 9440 Santa Monica Blvd. Suite 301 Beverly Hills, CA 90210 Telephone: (866) 276-7637 Facsimile: (310) 510-6429 E-mail: zach@crosnerlegal.com jamie@crosnerlegal.com bbrouillette@crosnerlegal.com LASERSHIP INC: Bid to Exclude Drivers' Info Denied in West Suit --------------------------------------------------------------- In the class action lawsuit captioned as DANIEL WEST, ROMAINE CLARKE, RYON MORGAN, and SAADALA ABOULESSAN, on behalf of themselves and all others similarly situated, v LASERSHIP, INC., SO SURE TRANSPORTS INC., RICHARD GRACE AND RICHARD LLC, and UNKNOWN SUBCONTRACTOR COMPANIES A-Z, Case No. 1:21-cv-05382-LTS-SLC (S.D.N.Y.), the Hon. Judge Sarah L. Cave entered an order denying the Plaintiffs' request to exclude from the definition of "Confidential Information" in the Parties' anticipated protective order all "driver pay records, working time, and driver lists unless they contain PII. -- The parties shall promptly file their proposed protective order for the Court’s review and entry. -- A telephone conference is scheduled for Tuesday, August 22, 2023 at 12:00 pm on the Court’s conference line to discuss the status of Phase I Discovery. -- The Parties are directed to call: (866) 390-1828; access code: 380-9799, at the scheduled time. If there are any discovery disputes requiring the Court’s attention, then by August 18, 2023, the parties shall file a joint letter outlining any such disputes. -- The Court continues to HOLD IN ABEYANCE the deadlines to amend any pleadings, join other parties, and file motions, including Lasership’s anticipated motion for judgment on the pleadings and the Plaintiffs’ anticipated motions for conditional collective and class certification. -- The Parties shall promptly order a transcript of the Conference. LaserShip is a regional last-mile delivery company that services the Eastern and Midwest United States. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3KkSmgD at no extra charge.[CC] LUMICO LIFE: Schwartz Sues Over Prerecorded Telemarketing Calls --------------------------------------------------------------- MICHAEL SCHWARTZ, individually and on behalf of all others similarly situated v. LUMICO LIFE INSURANCE COMPANY, INSURED FOR LIFE, LLC, & EDM LEADS, LLC, Case No. 1:23-cv-00443-JPH (S.D. Ohio, July 17, 2023) contends that the Defendant promotes and markets its merchandise, in part, by placing prerecorded telemarketing calls to wireless phone users, in violation of the Telephone Consumer Protection Act. The Plaintiff's telephone number was registered to a wireless, cellular telephone service. He registered this telephone number on the National Do Not Call Registry on May 24, 2021. Between December 2021 and the present, IFL and EDM have placed numerous telephone calls to the Plaintiff's telephone number using a prerecorded voice to promote the sale of Lumico's final expense insurance products, says the Plaintiff. For instance, on April 5, 2022, the Plaintiff received a call which used a prerecorded voice to convey the following: "Hi. This is Kate with Senior Benefits. I am calling you about a new low cost final expense insurance that has just been approved in your state. Our program is designed to cover 100% of your burial or cremation expenses. Our licensed agent is here to provide more information on how these affordable plans can benefit you and your family. Would you like more information about new affordable final expense insurance plans?" The Plaintiff did not provide prior express written consent to receive these calls, the lawsuit says. Given the automated and generic telemarketing nature of these calls, the Defendants placed similar unsolicited prerecorded calls to thousands of others individuals who also did not consent to receive them, the Plaintiff alleges. These calls harmed the Plaintiff and the other call recipients. They were deprived of legitimate use of their phones because the phone line was tied up, their time was wasted with unsolicited communications, and their privacy was invaded, the suit further contends. Mr. Schwartz is an individual who resides in Ohio. Lumico is an insurance company that sells a variety of insurance products, including final expense insurance.[BN] The Plaintiff is represented by: David B. Schultz, Esq. Jeremiah E. Heck, Esq. LUFFMAN. HECK & ASSOCIATES, L.L.P. 6253 Riverside Drive, Suite 200 Dublin, OH 4301 7 Telephone: (614) 224-1500 Facsimile: (614) 224-2894 E-mail: JHeck@lawlh.com - and - Timothy J. Sostrin, Esq. Keith J. Keogh, Esq. KEOGH LAW, LTD. 55 W. Monroe St., Ste. 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: tsostrin@keoghlaw.com keith@keoghlaw.com - and - Patric A. Lester, Esq. CONSUMER ATTORNEY ADVOCATES INC. 5694 Mission Center Road, #358 San Diego, CA 92108 Telephone: (619) 665-3888 Facsimile: (619) 320-9444 E-mail: pl@lesterlaw.com MALLINCKRODT PLC: Continental General Sues Over False Statements ---------------------------------------------------------------- CONTINENTAL GENERAL INSURANCE COMPANY and PERCY ROCKDALE, LLC, individually and on behalf of all others similarly situated, Plaintiffs v. MALLINCKRODT PLC, SIGURDUR OLAFSSON, BRYAN M. REASONS, and PAUL BISARO, Defendants, Case No. 3:23-cv-03662 (D.N.J., July 7, 2023) arises out of the Defendants' violations of the Securities Exchange Act of 1934. Throughout the Class Period (between June 17, 2022 and June 14, 2023, both dates inclusive), Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Mallinckrodt had overstated its financial strength, including purported enhancements to its liquidity and balance sheet, following its emergence from Chapter 11 bankruptcy protection; (ii) accordingly, the Company overstated its ability to timely make one or more payments to the Trust for the Opioid Settlement; (iii) all the foregoing negatively impacted Mallinckrodt's ability and/or willingness to timely meet interest payment obligations on certain bonds; (iv) as a result of all the foregoing, the Company was at an increased risk of having to again file for Chapter 11 bankruptcy protection; and (v) as a result, the Company’s public statements were materially false and misleading at all relevant times, says the suit. Headquartered in Dublin, Ireland, Mallinckrodt develops, manufactures, markets, and distributes specialty pharmaceutical products and therapies, including certain opioid products, in the U.S., Europe, the Middle East, Africa, and internationally. [BN] The Plaintiffs are represented by: Thomas H. Przybylowski, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016BB Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: tprzybylowski@pomlaw.com jalieberman@pomlaw.com ahood@pomlaw.com - and - David J. Schwartz, Esq. DJS LAW GROUP LLP 274 White Plains Road, Suite 1 Eastchester, NY 10709 Telephone: (914) 206-9742 E-mail: david@djslawllp.com MONDELEZ GLOBAL: Clay Sues Over Delayed Notice of Data Breach ------------------------------------------------------------- DEIDRA CLAY, individually and on behalf of all others similarly situated, Plaintiff, v. MONDELEZ GLOBAL LLC, Defendant, Case No. 1:23-cv-04402 (N.D. Ill., July 7, 2023), alleges claims against the Defendant for negligence, breach of implied contract, breach of the implied covenant of good faith and fair dealing, and for unjust enrichment in connection with a data breach that compromised Plaintiff's and Class Members' protected health information and personally identifiable information stored within Defendant's information network. The Plaintiff asserts that the Defendant violated the Health Insurance Portability and Accountability Act's Breach Notification Rule, which requires Defendant to provide notice of the Data Breach to each affected individual without unreasonable delay and in no case later than 60 days following the discovery of the breach. Headquartered in Illinois, Mondelez Global LLC is a multinational food, snack, beverage, and confectionery company. [BN] The Plaintiff is represented by: Kevin Laukaitis, Esq. LAUKAITIS LAW LLC 954 Avenida Ponce De Leon Suite 205, #10518 San Juan, PR 00907 Telephone: (215) 789-4462 E-mail: klaukaitis@laukaitislaw.com MPE PARTNERS: Fails to Enforce ESOP's Right to Buy, Walther Alleges ------------------------------------------------------------------- Martha Walther, Trent Kumfer, and Jayme Lea, as representatives of a class of similarly situated persons, and on behalf of the 80/20, Inc. Employee Stock Ownership Plan v. John Wood, Brian Eagle, MPE Partners II, L.P., and MPE Partners III, L.P., Case No. 1:23-cv-00294 (N.D. Ind., July 14, 2023) alleges that the Defendants violated their Employee Retirement Income Security Act fiduciary duties by failing to exercise or enforce the Employee Stock Ownership Plan's right to buy 80/20, Inc. shares from the company founder's estate and by divesting the ESOP from the company altogether for less than fair value in a deal that benefited company leadership at the expense of the ESOP, the Plaintiffs contend. Defendants MPE Partners II, L.P. and MPE Partners III, L.P. acquired the company's equity knowing that their bargain was the result of their co-Defendants' violations of ERISA. The Defendants allegedly caused these prohibited transactions in their capacities as the ESOP fiduciaries responsible for approving the redemption transaction on behalf of the ESOP. The company's financial results and comparable market valuations show that the consideration provided for the ESOP shares in the redemption transaction was inadequate and below fair market value, the lawsuit says. The purpose of the ESOP was to allow 80/20 employees to beneficially own company stock and receive retirement benefits based on the company's value. The Plaintiffs seek damages, ill-gotten gains, and equitable remedies on behalf of the ESOP and Class. The Plaintiffs seek recovery for injuries to the ESOP sustained as a result of prohibited transactions and fiduciary breaches and seek equitable relief on behalf of the ESOP as a whole pursuant to 29 U.S.C. sections 1109(a) and 1132(a)(3). Ms. Walther worked for 80/20 between 2013 and June 2021 and had an ESOP account until the ESOP closed and distributed all its assets as result of the MPE deal. Mr. Kumfer worked for 80/20 between 2011 and July 2021 and had an ESOP account until the ESOP closed and distributed all its assets. Ms. Lea worked for 80/20 between 2015 and March 2020 and had an ESOP account until the ESOP closed. John Wood is a natural person residing in Hickory Corners, Michigan. He was chairman of 80/20's board from the fall of 2018 through the closing of the MPE deal in March 2021.[BN] The Plaintiffs are represented by: Jennifer K. Lee, Esq. Carl F. Engstrom, Esq. Charles C. Gokey, Esq. ENGSTROM LEE LLC 729 N. Washington Ave., Suite 600 Minneapolis, MN 55401 Telephone: (612) 305-8349 E-mail: jlee@engstromlee.com cengstrom@engstromlee.com cgokey@engstromlee.com OPTEON APPRAISAL: Fails to Pay Appraisers' OT Wages Under FLSA -------------------------------------------------------------- SCOTT KIMBLE, individually, and on behalf of others similarly situated v. OPTEON APPRAISAL, INC., Case No. 6:23-cv-06399 (W.D.N.Y., July 14, 2023) seeks declaratory and injunctive relief, unpaid overtime wages, and liquidated damages pursuant to the Fair Labor Standards Act as well as damages for unlawful wage deductions and liquidated damages under the New York Labor Law. According to the complaint, the Defendant often assigns Staff Appraisers to complete a number of Appraisals per week which necessitates the Staff Appraisers to work in excess of 40 hours in a work week. Moreover, as of January 17, 2023, Opteon implemented a six-day work week, requiring Staff Appraisers to meet Saturday deadlines. This has significantly increased the overtime hours per week worked by the Plaintiff and other Staff Appraisers. At a company meeting on March 7, 2023, Opteon's Chief Appraiser advised the Staff Appraisers in attendance that they should be operating on a schedule of ten-hour workdays, six days per week, resulting in a sixty-hour work week. The Defendant allegedly failed and continues to fail to pay its Staff Appraisers an overtime premium. Instead, as part of Opteon's business model, it pays Staff Appraisers a fixed percentage of the fee received by Opteon for each report, says the suit. Accordingly, the Plaintiff has never agreed to work 60 hours per week at Opteon, and his contract does not specify that his pay is intended to cover a specific number of hours per week. The Plaintiff's contract says the he is to be paid a commission of 55% of the value of each appraisal fee Opteon receives. The standard fee received by Opteon is $400, making Plaintiff's earned commission $220. However, Opteon charges all Staff Appraisers an $11 "innovation fee" which is deducted from each commission. Opteon keeps that fee, which is not for the benefit of the appraisers, the suit further asserts. Mr. Scott Kimble was formerly employed by Northeastern Appraisal Associates, Inc. as a Staff Appraiser. He began his employment with Opteon Appraisal in July 2022 when Opteon acquired Northeastern, and has worked out of his home in Amherst, New York until the present. Opteon provides appraisal management services in the United States.[BN] The Plaintiff is represented by: Jason Rozger, Esq. Brenna Rabinowitz, Esq. Raya Saksouk, Esq. MENKEN SIMPSON & ROZGER LLP 80 Pine St., 33rd Fl. New York, NY 10005 Telephone: (212) 509-1616 E-mail: jrozger@nyemployeelaw.com - and – Bryan Schwartz, Esq. Renato Flores, Esq. BRYAN SCHWARTZ LAW, P.C. 180 Grand Avenue, Suite 1380 Oakland, CA 94612 Telephone: (510) 444-9300 E-mail: bryan@bryanschwartzlaw.com PACIFIC COAST: Onn Sues Over Canned Tomatoes' False Ads ------------------------------------------------------- DANIEL ONN, individually and on behalf of all others similarly situated v. PACIFIC COAST PRODUCERS, Case No. 5:23-cv-03524-SVK (N.D. Cal., July 14, 2023) alleges that the Defendant markets its canned tomatoes in a systematically misleading manner by misrepresenting that the Products do not contain preservatives. The Defendant clearly lists "No Preservatives" on Products' label, capitalizing on the preference of health-conscious consumers to purchase foods that are free from preservatives. However, the Defendant's Products contain "citric acid"-a well-known preservative used in food products, the lawsuit asserts. The citric acid contained in the Products is commercially produced, manufactured, and the result of extensive chemical processing. In fact, more than 90% of commercially produced citric acid, including the citric acid contained in the Products, is manufactured through a processed derivative of black mold, Aspergillus niger, which can cause allergic reactions and diseases in humans, the lawsuit claims. The Plaintiff purchased Defendant's Products and, on behalf of himself and similarly situated purchasers, asserts claims for violations of California Unfair Competition Law, Cal. Business & Professions Code section 17200, et seq., for unjust enrichment, and for breach of express warranty, the lawsuit adds. The Plaintiff seeks to represent a class defined as all persons in the United States who during the maximum period of time permitted by law, purchased Defendant's Products primarily for personal, family or household consumption, and not for resale (the "Nationwide Class"). The Plaintiff also seeks to represent a subclass defined as all Class members who reside in California who purchased the Products (the "California Subclass"). Mr. Onn has purchased the Products for his personal use at various times. Most recently, around October 2023, Mr. Onn purchased a "Summer is Inside" can of tomatoes from a Safeway market in Saratoga, California for $5. The Defendant operates a tomato canning facility in the United States, and formulates, manufactures, advertises, and/or sells multiple types of canned tomatoes throughout the United States, including in California.[BN] The Plaintiff is represented by: Frederick J. Klorczyk III, Esq. Julian C. Diamond, Esq. BURSOR & FISHER, P.A. 1330 Avenue of the Americas, 32nd Fl. New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: fklorczyk@bursor.com jdiamond@bursor.com PNC BANK: Bradley Sues Over Delays of Certificate of Titles ----------------------------------------------------------- Jason Bradley, on behalf of himself and others similarly situated, Plaintiff v. PNC Bank N.A., Defendant, Case No. 3:23-cv-02355-GCS (S.D. Ill., July 7, 2023) arises from the Defendant's failure to timely mail or deliver releases and/or certificates of title after receiving payments satisfying its security interest in the vehicles owned by Plaintiff and other similarly situated borrowers. The Plaintiff alleges claims against the Defendant for breach of contract and for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, citing the Defendant's failure timely provide Plaintiff with a release of security interest or certificate of title as required by Illinois Vehicle Code. The Plaintiff also seeks to recover actual damages (including compensation for the expense of obtaining proof that PNC has released its security interest in their vehicles and/or compensation for the expense of acquiring new certificates of title), statutory penalties, punitive damages, attorney's fees, and costs. PNC Bank N.A., is a District of Columbia corporation with its principal place of business in Pennsylvania. It provides banking services and asset management products.[BN] The Plaintiff is represented by: Tyler Schneider, Esq. Kenneth J. Brennan, Esq. TORHOERMAN LAW LLC 210 South Main Street Edwardsville, IL 62025 Telephone: (618) 656-4400 E-mail: tyler@thlawyer.com kbrennan@thlawyer.com - and – Troy E. Walton, Esq. Michael B. Marker, Esq. WALTON TELKEN, LLC 241 N. Main Street Edwardsville, IL 62025 Telephone: (618) 307-9880 E-mail: twalton@waltontelken.com mmarker@waltontelkon.com POINT32HEALTH INC: Harrison, Placido Sue Over Reported Data Breach ------------------------------------------------------------------ KARA HARRISON and MICHAEL PLACIDO, individually and on behalf of all others similarly situated, Plaintiffs v. POINT32HEALTH, INC. and HARVARD PILGRIM HEALTH CARE, INC., Defendants, Case No. 1:23-cv-11536 (D. Mass., July 7, 2023) alleges claims against the Defendants for negligence, negligence per se, unjust enrichment, breach of implied contract, and for violations of the Health Insurance Portability and Accountability Act and the Federal Trade Commission Act. Plaintiffs Harrison and Placido seek to hold Defendants responsible for the injuries Defendants inflicted on Plaintiffs and approximately 2,550,922 similarly situated persons due to Defendants' impermissibly inadequate data security, which caused the personal information of Plaintiffs and those similarly situated to be exfiltrated by unauthorized access by cybercriminals from March 28, 2023 to April 17, 2023. The Plaintiffs claim that the Defendants failed to comply with healthcare industry standards related to data security and all federal and state laws protecting customers' and members' personally identifiable information and protected health information, and provide adequate notice to customers if their PII or PHI is disclosed without proper authorization. Headquartered in Canton, Massachusetts, Point32Health is a healthcare company offering a broad range of health plans and tools for navigating healthcare and well-being. Point32Health is comprised of a family of companies, including Harvard Pilgrim. [BN] The Plaintiffs are represented by: Garret D. Lee, Esq. MORGAN & MORGAN 155 Federal Street, Suite 1502 Boston, MA 02110 Telephone: (857) 383-4906 Facsimile: (813) 223-5402 E-mail: krose@forthepeople.com - and - John A. Yanchunis, Esq. Marcio W. Valladares, Esq. Ra O. Amen, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 North Franklin Street 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: JYanchunis@forthepeople.com MValladares@forthepeople.com Ramen@forthepeople.com - and – John G. Emerson, Esq. EMERSON FIRM, PLLC 2500 Wilcrest Drive Suite 300 Houston, TX 77042-2754 Telephone: (800) 551-8649 Facsimile: (501) 286-4659 E-mail: jemerson@emersonfirm.com PORSCHE CARS: Settlement of Bowen Class Suit Gets Final Approval ---------------------------------------------------------------- David A. Wood of CarComplaints.com reports that a Porsche Communication Management (PCM) settlement is final for owners of vehicles equipped with PCM 3.1 (infotainment) systems and XM radio antennas. The Porsche class action lawsuit alleges the vehicles received an update in May 2020 which caused the PCM 3.1 systems to continuously turn on and off. The PCM settlement includes "all entities and individuals in the United States who, as of May 20, 2020, owned or leased" any of these vehicles. 2010-2016 Porsche Panamera 2011-2016 Porsche Cayenne 2012-2016 Porsche 911 Carrera 2012-2016 Porsche Boxster 2012-2016 Porsche Cayman 2015-2016 Porsche Macan According to the PCM class action lawsuit, the May 2020 update caused the infotainment systems to enter a near-continuous rebooting cycle which drained the batteries and caused loud static noise. Porsche PCM Settlement Agreement A Porsche owner can submit a claim for one of two options, but not both. A Porsche owner can receive reimbursement for the expense of repairing or replacing the PCM system, or the owner can receive a $25 cash payment or a $50 credit at a Porsche dealership. The attorneys representing the plaintiffs will receive $2,049,388.63. You can read more about the PCM settlement by visiting PorschePCMSettlement.com. The Porsche PCM settlement was handled in the U.S. District Court for the Northern District of Georgia (Atlanta Division): Bowen vs. Porsche Cars N.A., Inc. The plaintiff is represented by Caplan Cobb LLP, Meyer Wilson Co., LPA, and Gibbs Law Group LLP. [GN] PROGRESS SOFTWARE: Fails to Safeguard Customers' Info, Smith Says ----------------------------------------------------------------- JONATHAN SMITH, individually and on behalf of all others similarly situated v. PROGRESS SOFTWARE CORPORATION a/k/a PROGRESS, Case No. 1:23-cv-11580-FDS (D. Mass., July 14, 2023) alleges that the Defendant failed to properly secure and safeguard the Plaintiff's and Class Members' protected personally identifiable information. The alleged negligent failure to implement and maintain reasonable cybersecurity procedures and practices with respect to its MOVEit product resulted in a data breach, which was discovered in May or June 2023. The Plaintiff received a letter from Department of Innovation and Technology (DoIT), dated July 5, 2023, stating that his name, address, and social security number, which was in the possession, custody and/or control of the Defendant, was involved in the Data Breach. Accordingly, the Data Breach has impacted more than 17.5 million people, through more than 200 organizations, including pension fund management companies, corporations, government agencies, and law and accounting firms. The Defendant failed to timely and accurately disclose to clients, the Plaintiff, and Class Members that their personal information had been improperly acquired or accessed and/or was available for sale to criminals on the dark web. The Plaintiff and Class Members could have taken action to protect their personal information if they were provided timely notice, says the suit. The Plaintiff brings this class action complaint to redress injuries related to the Data Breach, on behalf of himself and a nationwide class and an Illinois subclass of similarly situated persons. The Plaintiff asserts claims on behalf of a nationwide class for negligence; negligence per se; common law invasion of privacy; violation of the Illinois' Personal Information Protection Act ("PIPA"), 815 ILCS 530/10(a); unjust enrichment; and declaratory judgment. The Plaintiff is a citizen and resident of the State of Illinois. The Defendant develops and sells a variety of software for businesses, including the secure file transfer application MOVEit.[BN] The Plaintiff is represented by: Randi Kassan, Esq. Gary M. Klinger, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 100 Garden City Plaza Garden City, NY 11530 Telephone: (212) 594-5300 E-mail: rkassan@milberg.com gklinger@milberg.com - and - Jeff Ostrow, Esq. Kristen Lake Cardoso, Esq. Steven Sukert, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 E-mail: ostrow@kolawyers.com cardoso@kolawyers.com sukert@kolawyers.com - and - Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com PROGRESS SOFTWARE: Fails to Secure Personal Info, Truesdale Says ---------------------------------------------------------------- MONIKA TRUESDALE, individually and on behalf of all others similarly situated v. PROGRESS SOFTWARE CORPORATION (PSC); THE JOHNS HOPKINS UNIVERSITY; and THE JOHNS HOPKINS HEALTH SYSTEM CORPORATION, Case No. 1:23-cv-01913-LKG (D. Md., July 17, 2023) sues the Defendants for their failure to properly secure and safeguard personally identifiable information and private health information including Plaintiff's and Class Members' names, Social Security numbers, birthdates, demographic information, insurance policy numbers, and other financial information. On May 31, 2023, PSC posted a notice on its website stating that it had found an SQL injection vulnerability in its MOVEit Transfer application dating as far back as 2021 that allowed an unauthorized third party to access Plaintiff's and Class Member's Private Information. PSC has not sent direct notice to those individuals such as the Plaintiff impacted by the Data Breach. The Plaintiff seeks remedies including compensatory damages, reimbursement of out-of-pocket costs, future costs of identity theft monitoring, injunctive relief including improvements to Defendants' data security systems, and future annual audits. Accordingly, the Plaintiff brings this action against the Defendants seeking redress for their unlawful conduct and asserting claims for: negligence; breach of third-party beneficiary contract; negligence per se; unjust enrichment; and declaratory judgment. The "Nationwide Class" that Plaintiff seeks to represent is defined as: All persons whose Private Information was accessed or acquired during the Data Breach as a result of the exploitation of PSC's MOVEit Application vulnerability with a "Johns Hopkins Subclass" defined as: "All persons whose Private Information was maintained by Johns Hopkins and accessed or acquired during the Data Breach as a result of the exploitation of PSC's MOVEit Application vulnerability." The Plaintiff Truesdale is a former employee of and currently a patient of at Johns Hopkins. PSC is a Massachusetts based software company that offers a wide range of software products and services to corporate and governmental entities throughout the United States and the world, including cloud hosting and secure file transfer services such as MOVEit.[BN] The Plaintiff is represented by: Courtney L. Weiner, Esq. LAW OFFICE OF COURTNEY WEINER PLLC 1629 K Street NW, Suite 300 Washington, DC 20006 Telephone: (202) 827-9980 E-mail: cw@courtneyweinerlaw.com - and - Jason P. Sultzer, Esq. Philip J. Furia, Esq. THE SULTZER LAW GROUP P.C. 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com furiap@thesultzerlawgroup.com QUEST DIAGNOSTICS: Allowed to File Supplemental Brief ----------------------------------------------------- In the class action lawsuit RE QUEST DIAGNOSTICS ERISA LITIGATION, Case No. 2:20-cv-07936-JXN-LDW (D.N.J.), the Hon. Judge Julien Xavier Neals entered an order granting leave to file supplemental brief in opposition to the Plaintiffs' motion for class certification. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3Qd4sfy at no extra charge.[CC] Quest Diagnostics is an American clinical laboratory. A Fortune 500 company, Quest operates in the United States, Puerto Rico, Mexico, and Brazil.[CC] RAIN ONCOLOGY: Thant Sues Over $1.22 Stock Price Share Drop ----------------------------------------------------------- MYO THANT, individually and on behalf of all others similarly situated v. RAIN ONCOLOGY INC., AVANISH VELLANKI, and RICHARD BRYCE, Case No. 3:23-mc-80185 (N.D. Cal., July 14, 2023) is a securities class action suit brought by the Plaintiff and all persons similarly situated who purchased or otherwise acquired Rain securities between July 20, 2021 to May 19, 2023, seeking to compensate investors and recover the damages they sustained because of the Defendants' fraudulent conduct, pursuant to the Securities Exchange Act of 1934. Rain's lead drug candidate was milademetan, a drug designed to treat dedifferentiated liposarcoma. Rain first licensed milademetan from Daiichi Sankyo Company, Limited, in September 2020 based on positive results from a Phase 1 clinical trial. Instead of conducting additional trials to test the safety and dosing of milademetan, Rain proceeded straight to a Phase 3 clinical trial. Rain referred to the Phase 3 trial as the "MANTRA" trial. During the Class Period, the Plaintiff and other similarly situated investors bought Rain securities at artificially inflated prices due to the Defendants' false and/or materially misleading statements. When the truth concerning the MANTRA trial emerged, Rain's stock price decreased resulting in significant losses to investors, says the suit. Rain commenced the MANTRA trial in July 2021. For nearly two years, Rain provided the market with false and misleading information about the trial's design quality and approval risks for milademetan related to its clinical development strategy. Then, on Monday, May 22, 2023, the Defendants announced topline data from the MANTRA trial, revealing that milademetan had failed to show statistical significance on the trial's primary endpoint and that the Company was abandoning further pursuit of milademetan for treating DD LPS. In response to the announcement, Rain's stock price plummeted as investors and analysts reevaluated the Company's future testing and drug development. Throughout the Class Period, Rain's stock price slowly lost value, but when the truth finally was revealed, the bottom fell out, the suit claims. In the span of just a day, Rain's stock price substantially dropped from $9.93 per share to $1.22 per share, eliminating approximately $316 million in market capitalization in one day, the suit adds. The Plaintiff purchased Rain securities at artificially inflated prices during the Class Period and was damaged upon the revelation of Defendants' fraud. Rain is a biopharmaceutical company that develops oncology therapeutics.[BN] The Plaintiff is represented by: Adam M. Apton, Esq. LEVI & KORSINSKY, LLP 1160 Battery Street East, Suite 100 San Francisco, CA 9411 E-mail: aapton@zlk.com ROCKET COMPANIES: Review of Partial Dismissal of Shupe Suit Denied ------------------------------------------------------------------ In the case, CARL SHUPE, individually and on behalf of all others similarly situated, Plaintiffs v. ROCKET COMPANIES, INC., DANIEL GILBERT, and ROCKET HOLDINGS, INC., Defendants, Case No. 1:21-cv-11528 (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, denies the Defendants' Motion for Reconsideration. In this securities-fraud case, the Defendants seek partial reconsideration of an order partially granting their motion to dismiss. Specifically, they want to revisit three of the seven alleged misrepresentations. The Defendants rely on alleged errors they believe would change the outcome of the prior order. A group of shareholders brought this class action against Rocket Companies and some of its officers and directors, arguing they artificially inflated the price of Rocket Class A common stock through seven public misstatements made from February 25 to May 5, 2021. The Plaintiffs also claim that the CEO and controlling shareholder, Daniel Gilbert, used insider information to trade securities. In July 2022, the Defendants filed a motion to dismiss, which was granted in part as follows: 1. The consumer-demand statements from Julie Booth and Jay Farner are not actionable -- they are not vague or unspecific puffery, they are truthful, and they do not involve material omissions. 2. Jay Farner's two interest-rate statements are not actionable -- they are false; Farner knew the statements were false; and they nonprotected backward-looking statements concerning a future event. 3. The volume-by-channel statement that Jay Farner made is actionable -- it was not vague; it was objectively false because closed-loan volume was declining; it altered the total mix of information available. 4. Jay Farner's and Daniel Gilbert's broker tweets are actionable -- they were objectively false and misleading when made. 5. Walter Roberts did not make any statements. Hence, Julie Booth and Robert Walters were dismissed from the case, leaving Daniel Gilbert, Rocket Companies, and Rocket Holdings as the three remaining Defendants. Come March 2023, the Defendants filed a motion for reconsideration challenging only three of the five actionable statements. First, they rehash their arguments that Farner's interest-rate statements are protectable forward-looking statements and included cautionary language. They also reassert their argument that Farner's interest-rate misrepresentations were cured by information in a prospectus discussing the risks of rising interest rates. And the Defendants re-raise their argument that Farner's false volume-by-channel statements are not actionable, as he also referred to a projection released six months prior that contradicted his claims. Motions for reconsideration of nonfinal orders are disfavored and may be granted in only three circumstances: (1) a mistake that changes the outcome of the prior decision, (2) an intervening change in controlling law that warrants a different outcome, or (3) new facts that could not have been previously discovered warrant a different outcome. E.D. Mich. LR 7.1(h)(2). The Defendants seek a second look at Jay Farner's interest-rate statements and volume-by-channel statement based on alleged "mistakes." But Judge Ludington finds that they do not contest the findings that Farner's broker tweet or Gilbert's broker tweet violated the Securities and Exchange Act. So even if Farner's other four statements were reconsidered and reversed, the same Defendants would be facing the same claims. That is, granting reconsideration would not change "the outcome of the prior decision" -- that Farner and Gilbert have plausibly violated Section 10(b) of the Exchange Act, 20(a) of the Exchange Act, and Rule 10b-5 -- which "fails to justify reconsideration." The Defendants are essentially rehashing the same arguments they made in their motion to dismiss, seeking a different outcome based on the same facts and the same laws. So, their desire for a different outcome "does not warrant reconsideration." Moreover, the Defendants are not contesting the truth or existence of the statements at issue. They instead seek reconsideration to "streamline the case as the parties proceed to discovery" -- without specifying any burdensome or prejudicial discovery they hope to avoid. Yet the Parties' extensive stipulated orders covering various aspects of discovery suggest that the discovery process would serve to benefit the Defendants in proving their defenses, which will be addressed at the summary-judgment stage. For these reasons, the Defendants' Motion for Reconsideration is denied. This is not a final order and does not close the captioned case. A full-text copy of the Court's June 30, 2023 Opinion & Order is available at https://tinyurl.com/5aestpcx from Leagle.com. SAFECO INSURANCE: Bid to Certify Questions in Cogent Suit Denied ---------------------------------------------------------------- In the case, COGENT BRAIN, PS, Plaintiff v. SAFECO INSURANCE COMPANY OF AMERICA, INC., a Washington corporation, and FIRST NATIONAL INSURANCE COMPANY OF AMERICA, a Washington corporation; LIBERTY MUTUAL FIRE INSURANCE CO. and LIBERTY MUTUAL INSURANCE COMPANY, foreign insurance companies, Defendants, Case No. 2:23-cv-00544 RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, denies the Defendants' Motion to Certify Questions to the Washington Supreme Court. The matter comes before the Court on Defendants Safeco, First National, Liberty Mutual Fire, and Liberty Mutual Insurance's ("Liberty")'s Motion to Certify Questions to Washington Supreme Court. Liberty argues that the following questions should be certified: (1) as to bill reductions taken after 2016, do the OIC's approval of Liberty's PIP policy language and its testimony reaffirming its opinion that Liberty's bill review practice is legal establish a CPA "safe harbor" defense; and (2) as to bill reductions taken after 2016, do the OIC's approval of Liberty's PIP policy language and its testimony reaffirming its opinion that Liberty's bill review practice is legal establish a "good faith" defense. Cogent Brain, PS, filed class actions in King County Superior Court on March 7, 2023, alleging that Liberty's common PIP practice of denying full payment of covered PIP claims based solely on a geographic database without an individualized assessment of the reasonableness of the charge is unlawful under Washington law. Liberty removed these cases on April 10, 2023, asserting diversity jurisdiction under the Class Action Fairness Act ("CAFA") and on May 3, 2023, the parties requested that the cases be consolidated. The Court granted the parties' requested order on May 5, 2023. Liberty now requests that the Court certify its questions to the Supreme Court because state law is not settled on the issue of whether the OIC's 2016 approval of Liberty's PIP language establishes "safe harbor" and "good faith" defenses. Cogent urges the Court to deny Liberty's request for four reasons: (1) the Court does not have authority to issue an order certifying questions to the Washington Supreme Court when a motion to remand is pending; (2) the local law is "clearly determined;" (3) a stay of proceedings mitigates the risk of inconsistent decision; and (4) Liberty's proposed certified questions are arguments not questions. Judge Martinez explains that the certification process serves the important judicial interests of efficiency and comity. As noted by the United States Supreme Court, certification saves "time, energy and resources and helps build a cooperative judicial federalism." The decision whether to certify a question to the Washington Supreme Court rests in the discretion of the federal court considering certification, citing Murray v. BEJ Mins., LLC, 924 F.3d 1070, 1071 (9th Cir. 2019). However, even when state law is unclear, the court is not obligated to use the certification process. In deciding whether to exercise discretion, the Court considers: (1) whether the question presents important public policy ramifications yet unresolved by the state court; (2) whether the issue is new, substantial, and of broad application; (3) the state court's caseload; and (4) the spirit of comity and federalism. As an initial matter, Judge Martinez will not consider whether it is appropriate for a federal court to certify questions to state court when a motion to remand is pending because such motion has not yet been filed. Liberty has not provided a compelling reason for certification under the Murray factors. Liberty argues that previous cases do not address whether the OIC's approval of the 2016 policy language and its subsequent testimony can support a "safe harbor" defense under RCW 19.86.170 and a "good faith" defense under Leingang v. Pierce County Med. Bureau, 131 Wn.2d 133, 155, 930 P.2d 288 (1997). It also argues that a pending case before the Washington Supreme Court, Stan Schiff, M.D., Ph.D. v. Liberty Mut. Fire Ins. Co., No. 101576-3, although it will address the PIP policy of the instant Defendant, will likely not address the OIC's 2016 approval of Liberty's policy language since Schiff deals with bill reductions that took place prior to 2016. However, Washington courts have ruled on similar issues in the past. These prior rulings and the pending case before the Washington Supreme Court shed light on the issue before the Court. It is possible that the Court could rule on any legal issues now, without burdening the Washington State Supreme Court with questions that are already before it. However, Judge Martinez further finds that a stay is warranted since it is likely that the pending state Supreme Court case will have an impact on the arguments to be made here. This stay is requested by Cogent in the alternative and Liberty appears to agree that this is appropriate alternative relief. Having reviewed the briefing and the remainder of the record, Judge Martinez denies the Defendants' Motion to Certify Questions to the Washington Supreme Court. The case is stayed and the parties are directed to notify the Court once the Washington State Supreme Court issues a decision on Schiff. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/yz2um5br from Leagle.com. SIRIUS XM: Mitchell Seeks to Recover CSRs' OT Wages Under FLSA -------------------------------------------------------------- KELLEE MITCHELL, individually, and on behalf of others similarly situated v. SIRIUS XM RADIO INC., a corporation, Case No. 1:23-cv-06092 (S.D.N.Y., July 14, 2023) seeks to recover overtime wages pursuant to the Fair Labor Standards Act. The Plaintiff contends that the Defendant systematically failed to compensate its customer service representatives for work tasks completed before and after their scheduled shifts and during their unpaid meal periods, when they are not logged into Defendant's timekeeping system, which resulted in CSRs not being paid for all overtime hours worked, and in non-overtime workweeks, for regular hours. The Defendant used its attendance and adherence policies against The Plaintiff and its CSRs in order to pressure them into performing pre-, mid- and post-shift work off-the-clock. As a result, the Plaintiff and other CSRs were unlawfully deprived of approximately twenty-five (25) minutes of compensation every day. Because the Defendant required its CSRs, including Plaintiff, to perform pre-, mid- and post-shift work off-the-clock, the hours tracked in Defendant's timekeeping system are inaccurate representations of the total amount of time CSRs spent working for Defendant. Thus, the hours reflected on the CSRs' paystubs are also inaccurate representations of the hours they worked, the suit added. The Plaintiff seeks a declaration that her rights, and the rights of the putative Collective and Class members, were violated, a judgment awarding her unpaid back wages, liquidated damages, attorneys' fees and costs to make her and the putative Collective and Class whole for damages they suffered, and any other remedies to which they may be entitled, and to help ensure the Defendant will not subject future workers to the same illegal conduct in the future. The Defendant employed the Plaintiff as an hourly call center employee with the job title as CSR from November 2020 through August 2021. The Plaintiff's recent compensation is $17.00 per hour. The Defendant operates "two complementary audio entertainment businesses -- one of which it refers to as "SiriusXM" and the second of which it refers to as "Pandora and Off-platform."[BN] The Plaintiff is represented by: Jason T. Brown, Esq. BROWN, LLC 111 Town Square Place, Suite 400 Jersey City, NJ 07310 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com - and - Kevin J. Stoops, Esq. Alana Karbal, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, 17th Floor Southfield, Michigan 48076 Telephone: (248) 355-0300 E-mail: kstoops@sommerspc.com akarbal@sommerspc.com SITEL OPERATING CORP: Fails to Pay Overtime Wages, Earnest Alleges ------------------------------------------------------------------ JOCELYN EARNEST, individually and on behalf of all others similarly situated Plaintiff v. SITEL OPERATING CORPORATION, Defendant, Case No. 9:23-cv-00110 (E.D. Tex., July 7, 2023) arises out of the Defendant's alleged violations of the Fair Labor Standards Act. Plaintiff Jocelyn Earnest worked for as a telephone-dedicated customer service employees who make calls to and receive calls from customers and potential customers of Sitel's clients. However, Plaintiff and the Class Members were not paid by the Sitel for the hours they spent for doing preparatory and concluding activities before and after their assigned work shifts. Moreover, Sitel fails to record the time spent performing these compensable work duties, says the Plaintiff. Sitel Operating Corporation is a foreign for-profit corporation that provides customer experience services to its clients. [BN] The Plaintiff is represented by: William S. Hommel, Jr., Esq. HOMMEL LAW FIRM PC 5620 Old Bullard Road, Suite 115 Tyler, TX 75703 Telephone: (903) 596-7100 E-mail: bhommel@hommelfirm.com SMOSH DOT: 9th Cir. Reverses Dismissal of First Amended Hall Suit ----------------------------------------------------------------- In the case, KRISTEN HALL, Plaintiff-Appellant v. SMOSH DOT COM, INC., Smosh; MYTHICAL ENTERTAINMENT, LLC, Defendants-Appellees, Case No. 22-16216 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit reversed the district court's order granting the Defendants' motion to dismiss the First Amended Complaint. Plaintiff-Appellant Hall alleges that the Defendants-Appellees sent five text messages to a cell phone number that she had placed on the National Do-Not-Call Registry and provided to her thirteen-year-old son. Hall filed a putative class action lawsuit alleging violations of Section 227(c) of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. Section 227 et seq., and other claims that are not at issue in this appeal. The district court dismissed the FAC for lack of Article III standing, reasoning that Hall failed to allege she was the "actual user" of the phone or the "actual recipient" of the five text messages at issue. The Ninth Circuit has held that the receipt of unsolicited phone calls or text messages in violation of the TCPA is a concrete injury in fact sufficient to confer Article III standing. That is because unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients. However, Article III requires a plaintiff to assert her own legal rights, and to count herself among the injured. This case presents the question whether the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry, who may not be the phone's primary user, suffers an injury in fact when the phone receives unsolicited text messages. The Defendants have been digital content creators for more than sixteen years. They produce "sketch comedy" videos and sell merchandise for an adolescent audience. Since 2016, they have operated a website with an online store that markets retail apparel and accessories related to their digital content. Hall alleges that they derive substantial profits from collecting, selling and transmitting consumer data, and that they engage in 'direct' telemarketing via text message and calls to phone numbers entered on the website smosh.com. At the time of all events relevant to this case, Hall was a resident of Willis, Texas, along with her 13-year-old son. She alleges that she owned a cellular phone, the number for which was 575-XXX-0669, and which was used primarily for residential purposes. She also alleges that she allowed her son to use this phone "at times," and that she placed its number on the National Do-Not-Call Registry to obtain solitude from invasive and irritating solicitation calls and to protect her minor son from being inundated with advertisers and data-miners. According to the FAC, Defendants obtained personal information from Hall's son on or around November 3, 2019. Thereafter, between December 25, 2019, and June 29, 2020, Defendants sent at least five text messages to Hall's number soliciting business and offering discounts on Smosh merchandise. Hall contends that she "found those solicitation messages to be irritating, exploitative and invasive," and that they "were precisely the type of communications she sought to avoid when she registered her number on the Do Not Call Registry." In pre-suit communications between the parties' attorneys, Defendants claimed that Hall's son had "opted in" to receive these communications on November 3, 2019. Hall filed the operative FAC on Dec. 28, 2021. Among other claims, the FAC alleged that Defendants violated Section 227(c) of the TCPA and its implementing regulations by sending text messages to numbers listed on the National Do-Not-Call Registry. The Defendants moved to dismiss the FAC for failure to state a claim, and for lack of standing. As relevant to the standing issue, they argued that Hall lacks Article III standing because she has not pleaded that she was the user of the Number or that she actually received any messages from the Defendants. The district court granted the Defendants' motion on July 12, 2022, rejecting the proposition that Hall has Article III standing merely as the subscriber/owner of the phone. Because the district court concluded that Hall lacked standing, it did not reach any merits issues, including whether Hall properly stated a claim under Fed. R. Civ. P. 12(b)(6). This appeal followed. The sole issue before us is whether Hall has Article III standing to bring claims under the TCPA. The Ninth Circuit now holds that the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry has suffered an injury in fact when unsolicited telemarketing calls or texts are sent to the number in putative violation of the TCPA. In instructing the Federal Communications Commission to adopt a National Do-Not-Call Registry, Congress granted residential phone subscribers the right to create a private line, free from unsolicited calls and intrusive texts. The owner and subscriber of the phone suffers a concrete, de facto injury when their right to be free from such communications is violated—even if the communications are intended for or solicited by another individual, and even if someone else is using the phone at the time the messages are transmitted. As Hall alleges that she was the owner and subscriber of a cell phone number on the Do-Not-Call Registry that received unsolicited text messages in violation of the TCPA, she has stated an injury in fact sufficient to satisfy Article III. For these reasons, the Ninth Circuit holds that that the owner and subscriber of a cell phone listed on the Do-Not-Call Registry has Article III standing to bring claims under the TCPA for unsolicited calls or text messages directed to its number. Hall alleges that the Defendants texted a phone number that she owned and subscribed to, contrary to the precise privacy expectations she vindicated by placing her number on the Do-Not-Call Registry. Nothing more is required. The issues of whether Hall's son consented to receive messages, and whether such consent would be sufficient to satisfy the TCPA, are reserved for the district court on remand. Accordingly, the Ninth Circuit reverses the dismissal of the FAC for lack of Article III standing, and remands for further proceedings consistent with its Opinion. A full-text copy of the Court's June 30, 2023 Opinion is available at https://tinyurl.com/y7p39z28 from Leagle.com. Jacob U. Ginsburg (argued), Kimmel & Silverman P.C., Ambler, Pennsylvania; Christopher E. Roberts -- croberts@butschroberts.com -- Butsch Roberts & Associates LLC, Clayton, Missouri; for the Plaintiff-Appellant. Jordan Susman -- jsusman@nolanheimann.com -- (argued) and Margo Arnold -- marnold@nolanheimann.com -- Nolan Heimann LLP, Encino, California, for the Defendants-Appellees. TAMKO BUILDING: Filing for Class Certification Bids Due August 10 ----------------------------------------------------------------- In the class action lawsuit captioned as MARTIN MELNICK, BETH MELNICK, LIA LOUTHAN, and SUMMERFIELD GARDENS CONDOMINIUM, on behalf of themselves and all others similarly situated, v. TAMKO BUILDING PRODUCTS LLC, Case No. 2:19-cv-02630-JAR-KGG (D. Kan.), the Hon. Judge Julie A. Robinson entered an order granting joint motion for extension of briefing schedule: -- The Plaintiffs' reply on their motion for class certification, the Parties' oppositions to Daubert motions, and the Plaintiffs' opposition to the Defendant's motion for summary judgment shall be filed by August 10, 2023. -- The Parties' replies on Daubert motions and the Defendant's reply on its motion for summary judgment Motion shall be filed by September 8, 2023. TAMKO Building is an independent manufacturer of residential roofing shingles. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3QfTKVE at no extra charge.[CC] TECO ENERGY: Roche Seeks to Recover $82,000 Pension Benefits Loss ----------------------------------------------------------------- Alejandro Roche, individually and on behalf of all others similarly situated v. TECO Energy, Inc. and TECO Energy Group Retirement Plan, Case No. 8:23-cv-01571 (M.D. Fla., July 14, 2023) alleges that Teco violates Employee Retirement Income Security Act by omitting material in Plan's summary plan description ("SPD") that caused Mr. Roche to lose over $82,000 in lump sum pension Benefits. On September 22, 2022, Mr. Roche completed a TECO Retirement Application, had his supervisor sign it on September 26, 2022, and, per the instructions in the Application, emailed it on that date to TECO's "Total Rewards Retirement Team" at Retirement@tecoenergy.com. The SPD's failure to disclose the Plan's lump sum calculation methodology for Grandfathered Participants or explain the interest rate factors that influence the amount of their pension lump sum in an increasing segment rate environment violated the SPD protections and effectively cost Mr. Roche over $82,000 in lost lump sum pension benefits, the lawsuit asserts. The Plan likewise does not adequately disclose the lump sum calculation methodology for Grandfathered Participants. If Mr. Roche had known that higher interest rates would be used to compute a lump sum paid to him in 2023 he would have ceased work and submitted his Retirement Application sooner to ensure that his lump sum would be calculated as paid or payable in 2022, the Plaintiff contends. Mr. Roche seeks to recover for himself and all others similarly situated the shortfall they experienced in their lump sum pension benefits on account of the SPD's material omissions. Mr. Roche brings his Claim on behalf of the following individuals: All Grandfathered Participants who in 2023 received or will receive an optional pension lump sum from the Plan calculated using the Code §417(e) segment rates for August 2022. Mr. Roche worked for TECO for nearly 33 years from March 1990 until December 2, 2022. Mr. Roche's position on his last day of work was Gas Design Project Manager. He was a "Member" of the Plan and a "participant" in the Plan. TECO is an energy-related holding company based in Tampa, Florida.[BN] The Plaintiff is represented by: Sean Estes, Esq. HOYER LAW GROUP, PLLC 2801 W. Busch Blvd., Suite 200 Tampa, FL 33618 Telephone: (813) 375-3702 Facsimile: (813) 375-3710 E-mail: sean@hoyerlawgroup.com - and - Eva Cantarella, Esq. Robert Geller, Esq. Elizabeth Thomson, Esq. HERTZ SCHRAM PC 1760 S. Telegraph Rd. Bloomfield Hills, MI 48302 Telephone: (248) 335-5000 Facsimile: (248) 335-3346 E-mail: ecantarella@hertzschram.com THE 1975: July 2023 Concert Stopped Abruptly, Class Suit Says ------------------------------------------------------------- Petaling Jaya of The Star reports that a group of lawyers is working probono on a class action suit by local artistes and vendors against the British band The 1975. "We are putting our hearts and minds to improving the first working draft of the class action," said lawyer Mathew Thomas Philip in a Facebook post on July 23, 2023. "If there is any information that you may possess and which may have a bearing on the suit against The 1975, such as the location of their assets, please contact our probono team," he added. The 1975's concert at Good Vibes Festival 2023 on July 21, 2023 was stopped abruptly after lead singer Matty Healy ranted and then kissed bassist Ross MacDonald on stage, leading to the organiser pulling the plug on the band's act. The act has led to a total ban on The 1975 performing in the country, while the organisers were forced to refund tickets after the Communications and Digital Ministry cancelled the rest of the festival that was supposed to end on July 23, 2023. Meanwhile, the group of lawyers is reportedly calling for a townhall meeting with artistes and vendors affected by the concert's cancellation. The townhall is tentatively scheduled to be held at 7pm on July 25, 2023 at Barrister's Brew, Sri Hartamas in Kuala Lumpur. [GN] TMX FINANCE: Court Stays All Deadlines in Coria Suit Until August 8 ------------------------------------------------------------------- In the class action lawsuit captioned as VICTORIA FLORES CORIA, v. TMX FINANCE CORPORATE SERVICES, INC., Case No. CV423-094 (S.D. Ga.), the Hon. Judge Christopher L. Ray entered an order terminating as moot all stay and extension requests. The Plaintiffs in this case and several other related cases brought actions against entities associated with the Defendant TMX alleging failure to properly secure and safeguard the Plaintiffs' personal identifiable information. See, e.g., Kolstedt v. TMX Fin. Corp. Servs., Inc., Case No. CV423-076 (S.D. Ga., March 31, 2023). The parties in these cases have filed requests for extensions of deadlines, requests to stay deadlines, and motions to consolidate the cases. The District Judge set a status conference for July 25, 2023, in all of the cases to address the Plaintiff's consolidation request in Kolstedt. Instead of addressing each stay and extension request individually before the District Judge's status conference, the Court stays all deadlines in the cases until August 8, 2023. The Clerk is directed to terminate all pending motions except the following motions: -- Kolstedt, Case CV423-076: Docs. 16, 25 & 33. -- Trottier v. TMX Fin. Corp. Servs., Inc., CV423-083 (S.D. Ga. April 5, 2023): Doc. 16 -- Johnson et al v. TMX Fin. Corp. Servs., Inc., CV423-096 (S.D. Ga. Apr. 12, 2023): Doc. 5 TMX Finance is the parent company to the brands TitleMax, TitleBucks, EquityAuto Loan, and InstaLoan. The company holds more than 900 stores in over fourteen states including Alabama, Arizona, Delaware, Florida, Georgia, Mississippi, Missouri, Nevada, New Mexico, South Carolina, Tennessee, Texas, Utah, and Wisconsin, and an online presence in Idaho. A copy of the Court's order dated July 10, 2023, is available from PacerMonitor.com at https://bit.ly/3rLBn0o at no extra charge.[CC] TMX FINANCE: Court Stays All Deadlines in Millner Until August 8 ---------------------------------------------------------------- In the class action lawsuit captioned as EBONY MILLNER, v. TMX FINANCE CORPORATE SERVICES, INC., Case No. CV423-098 (S.D. Ga.), the Hon. Judge Christopher L. Ray entered an order terminating as moot all stay and extension requests. The Plaintiffs in this case and several other related cases brought actions against entities associated with the Defendant TMX alleging failure to properly secure and safeguard the Plaintiffs' personal identifiable information. See, e.g., Kolstedt v. TMX Fin. Corp. Servs., Inc., Case No. CV423-076 (S.D. Ga., March 31, 2023). The parties in these cases have filed requests for extensions of deadlines, requests to stay deadlines, and motions to consolidate the cases. The District Judge set a status conference for July 25, 2023, in all of the cases to address the Plaintiff's consolidation request in Kolstedt. Instead of addressing each stay and extension request individually before the District Judge's status conference, the Court stays all deadlines in the cases until August 8, 2023. The Clerk is directed to terminate all pending motions except the following motions: -- Kolstedt, Case CV423-076: Docs. 16, 25 & 33. -- Trottier v. TMX Fin. Corp. Servs., Inc., CV423-083 (S.D. Ga. April 5, 2023): Doc. 16 -- Johnson et al v. TMX Fin. Corp. Servs., Inc., CV423-096 (S.D. Ga. Apr. 12, 2023): Doc. 5 TMX Finance is the parent company to the brands TitleMax, TitleBucks, EquityAuto Loan, and InstaLoan. The company holds more than 900 stores in over fourteen states including Alabama, Arizona, Delaware, Florida, Georgia, Mississippi, Missouri, Nevada, New Mexico, South Carolina, Tennessee, Texas, Utah, and Wisconsin, and an online presence in Idaho. A copy of the Court's order dated July 10, 2023, is available from PacerMonitor.com at https://bit.ly/44Skuj2 at no extra charge.[CC] TMX FINANCE: Court Stays All Deadlines in Oltean Until August 8 --------------------------------------------------------------- In the class action lawsuit captioned as CLAUDIA OLTEAN, v. TMX FINANCE CORPORATE SERVICES, INC., Case No. CV423-085 (S.D. Ga.), the Hon. Judge Christopher L. Ray entered an order terminating as moot all stay and extension requests. The Plaintiffs in this case and several other related cases brought actions against entities associated with the Defendant TMX alleging failure to properly secure and safeguard the Plaintiffs' personal identifiable information. See, e.g., Kolstedt v. TMX Fin. Corp. Servs., Inc., Case No. CV423-076 (S.D. Ga., March 31, 2023). The parties in these cases have filed requests for extensions of deadlines, requests to stay deadlines, and motions to consolidate the cases. The District Judge set a status conference for July 25, 2023, in all of the cases to address the Plaintiff's consolidation request in Kolstedt. Instead of addressing each stay and extension request individually before the District Judge's status conference, the Court stays all deadlines in the cases until August 8, 2023. The Clerk is directed to terminate all pending motions except the following motions: -- Kolstedt, Case CV423-076: Docs. 16, 25 & 33. -- Trottier v. TMX Fin. Corp. Servs., Inc., CV423-083 (S.D. Ga. April 5, 2023): Doc. 16 -- Johnson et al v. TMX Fin. Corp. Servs., Inc., CV423-096 (S.D. Ga. Apr. 12, 2023): Doc. 5 TMX Finance is the parent company to the brands TitleMax, TitleBucks, EquityAuto Loan, and InstaLoan. The company holds more than 900 stores in over fourteen states including Alabama, Arizona, Delaware, Florida, Georgia, Mississippi, Missouri, Nevada, New Mexico, South Carolina, Tennessee, Texas, Utah, and Wisconsin, and an online presence in Idaho. A copy of the Court's order dated July 10, 2023, is available from PacerMonitor.com at https://bit.ly/3Ka3XiF at no extra charge.[CC] TMX FINANCE: Court Stays All Deadlines in Pickens Until August 8 ---------------------------------------------------------------- In the class action lawsuit captioned as SOPHIA PICKENS, v. TMX FINANCE CORPORATE SERVICES, INC., Case No. CV423-081 (S.D. Ga.), the Hon. Judge Christopher L. Ray entered an order terminating as moot all stay and extension requests. The Plaintiffs in this case and several other related cases brought actions against entities associated with the Defendant TMX alleging failure to properly secure and safeguard the Plaintiffs' personal identifiable information. See, e.g., Kolstedt v. TMX Fin. Corp. Servs., Inc., Case No. CV423-076 (S.D. Ga., March 31, 2023). The parties in these cases have filed requests for extensions of deadlines, requests to stay deadlines, and motions to consolidate the cases. The District Judge set a status conference for July 25, 2023, in all of the cases to address the Plaintiff's consolidation request in Kolstedt. Instead of addressing each stay and extension request individually before the District Judge's status conference, the Court stays all deadlines in the cases until August 8, 2023. The Clerk is directed to terminate all pending motions except the following motions: -- Kolstedt, Case CV423-076: Docs. 16, 25 & 33. -- Trottier v. TMX Fin. Corp. Servs., Inc., CV423-083 (S.D. Ga. April 5, 2023): Doc. 16 -- Johnson et al v. TMX Fin. Corp. Servs., Inc., CV423-096 (S.D. Ga. Apr. 12, 2023): Doc. 5 TMX Finance is the parent company to the brands TitleMax, TitleBucks, EquityAuto Loan, and InstaLoan. The company holds more than 900 stores in over fourteen states including Alabama, Arizona, Delaware, Florida, Georgia, Mississippi, Missouri, Nevada, New Mexico, South Carolina, Tennessee, Texas, Utah, and Wisconsin, and an online presence in Idaho. A copy of the Court's order dated July 10, 2023, is available from PacerMonitor.com at https://bit.ly/3q0tST0 at no extra charge.[CC] TMX FINANCE: Court Stays All Deadlines in Rodriguez Until August 8 ------------------------------------------------------------------ In the class action lawsuit captioned as ALEJANDRO RODRIGUEZ, v. TMX FINANCE CORPORATE SERVICES, INC., and TMX FINANCE LLC, Case No. CV423-093 (S.D. Ga.), the Hon. Judge Christopher L. Ray entered an order terminating as moot all stay and extension requests. The Plaintiffs in this case and several other related cases brought actions against entities associated with the Defendant TMX alleging failure to properly secure and safeguard the Plaintiffs' personal identifiable information. See, e.g., Kolstedt v. TMX Fin. Corp. Servs., Inc., Case No. CV423-076 (S.D. Ga., March 31, 2023). The parties in these cases have filed requests for extensions of deadlines, requests to stay deadlines, and motions to consolidate the cases. The District Judge set a status conference for July 25, 2023, in all of the cases to address the Plaintiff's consolidation request in Kolstedt. Instead of addressing each stay and extension request individually before the District Judge's status conference, the Court stays all deadlines in the cases until August 8, 2023. The Clerk is directed to terminate all pending motions except the following motions: -- Kolstedt, Case CV423-076: Docs. 16, 25 & 33. -- Trottier v. TMX Fin. Corp. Servs., Inc., CV423-083 (S.D. Ga. April 5, 2023): Doc. 16 -- Johnson et al v. TMX Fin. Corp. Servs., Inc., CV423-096 (S.D. Ga. Apr. 12, 2023): Doc. 5 TMX Finance is the parent company to the brands TitleMax, TitleBucks, EquityAuto Loan, and InstaLoan. The company holds more than 900 stores in over fourteen states including Alabama, Arizona, Delaware, Florida, Georgia, Mississippi, Missouri, Nevada, New Mexico, South Carolina, Tennessee, Texas, Utah, and Wisconsin, and an online presence in Idaho. A copy of the Court's order dated July 10, 2023, is available from PacerMonitor.com at https://bit.ly/3K9CwVU at no extra charge.[CC] UNITED STATES: Donohue Must Show Good Cause to Retain Case v. HUD ----------------------------------------------------------------- In the case, KELLY JUNIOR-DONOHUE, AS INDIVIDUAL PLAINTIFF AND AS REPRESENTATIVE OF SECTION 8 ENHANCED VOUCHER TENANTS OR WILL MAKE UP THIS CLASS ACTION LITIGATION IN REGION II, Plaintiff v. THE HON. MARCIA L. FUDGE, AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants, Case No. 23-CV-2474 (VSB) (S.D.N.Y.), Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York orders the Plaintiff to submit a letter demonstrating good cause as to why the case should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). On March 23, 2023, the Plaintiff filed this action against the Defendant. She has not obtained a summons, filed an affidavit of service, or taken any other action to prosecute this case. Accordingly, Judge Broderick orders the Plaintiff to submit a letter of no more than three pages, supported by legal authority, demonstrating good cause as to why the case should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). Good cause is generally found only in exceptional circumstances where the plaintiff's failure to serve process in a timely manner was the result of circumstances beyond its control. She is warned that failure to submit a letter and to demonstrate good cause for failure to serve the Defendant within 90 days after the complaint was filed will result in dismissal of the action. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/yf85xvyf from Leagle.com. UNIVERSITY OF SAN DIEGO: Court Won't Review Nixing of Expert Report ------------------------------------------------------------------- In the case, In re University of San Diego Tuition and Fees COVID-19 Refund Litigation. This document relates to: All Actions, Case No. 20-cv-1946-LAB-WVG (S.D. Cal.), Magistrate Judge William V. Gallo of the U.S. District Court for the Southern District of California denies the Plaintiffs' Notice of Motion and Ex Parte Motion to Reconsider the Court's May 23 Order Striking the Supplemental Expert Report and Awarding Costs. On April 24, 2023, the Parties jointly contacted Judge Gallo's Chambers to raise a discovery dispute pertaining to the Plaintiffs' disclosed expert's, Gareth Macartney, Ph.D., April 20, 2023 expert report. The Defendant contended that Dr. Macartney's April 20, 2023 expert report was improper and untimely served in light of the Court's Feb. 6, 2023 deadline for the exchange of expert reports. The Plaintiffs contended that Dr. Macartney's April 20, 2023 expert report was a supplement to Dr. Macartney's Feb. 6, 2023 initial expert report. That day, the Court ordered the Parties to lodge directly to Judge Gallo's chambers copies of the expert reports in dispute and documentation to support each party's position, no later than April 26, 2023. On April 26, 2023, the Plaintiffs timely lodged 16 documents, including Dr. Macartney's Feb. 6, 2023 initial report, Dr. Macartney's Feb. 20, 2023 rebuttal report, Dr. Macartney's April 20, 2023 report. The Defendant timely lodged six documents. On April 27, 2023, the Parties deposed Dr. Macartney and the Defendant sought permission to lodge directly to Judge Gallo's Chambers a copy of Dr. Macartney's certified expedited deposition transcript as soon as it was made available. The Court granted this request and on May 2, 2023, the Defendant lodged directly to Judge Gallo's Chambers excerpts of Dr. Macartney's certified expedited deposition transcript. On May 5, 2023, the Court convened a Video Discovery Conference. Michael Tompkins and Yvette Golan appeared for the Plaintiffs. Zachary Foster and Joseph Poehlmann appeared for the Defendant. During the Video Discovery Conference, the Defendant requested the Court strikes the Plaintiffs' expert's third expert report and award sanctions, pursuant to Federal Rule of Civil Procedure 37, for attorney's fees incurred in seeking this relief. The Court then subsequently ordered the Parties to file all documents previously lodged directly to Judge Gallo's chambers, related to this dispute, no later than May 10, 2023. On May 10, 2023, the Parties timely filed all documents previously lodged directly to Judge Gallo's chambers related to this dispute. On May 23, 2023, the Court issued an order (1) Granting Defendant's Motion to Strike Plaintiffs' Expert Witness's Third Expert Report; (2) Granting Defendant's Request for Sanctions; (3) Setting Deadline for Submission of Costs. The May 23, 2023 Order found Dr. Macartney's April 20, 2023 expert report impermissibly exceeded the scope of supplementation under Rule 26(e) because it was (1) an entirely new report and (2) relied upon information available at the time of his Feb. 6, 2023 report. The May 23, 2023 Order also found Dr. Macartney's April 20, 2023 expert report to be unjustified and not harmless. It granted the Defendant's request for sanctions and ordered Dr. Macartney's April 20, 2023 expert report to be stricken, excluded from the record, and precluded from use at trial for any reason. On May 25, 2023, the Defendant filed a Notice of Filing Fee Application Pursuant to Order at Docket 144, submitting its billing records for attorney's fees and costs pursuant to the Court's May 23, 2023 Order. On May 30, 2023, the Plaintiffs filed this instant Motion for Reconsideration. On June 2, 2023, the Defendant timely filed its Response in Opposition to Plaintiffs' Motion for Reconsideration. Even though the Plaintiffs' Motion for Reconsideration was filed within 28 days of the Court's May 23, 2023 Order, Judge Gallo says the order the Plaintiffs challenge is neither a final judgment nor has judgment been entered against them. The Plaintiffs' Motion for Reconsideration also does not fall within the purview of Civil Local Rule 7.2. Accordingly, he construes the Plaintiffs' Motion for Reconsideration to be brought under Federal Rules of Civil Procedure 60(b). Rule of Civil Procedure 60(b) provides that on motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding based on (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Judge Gallo holds that the Plaintiffs have not satisfied the requirements of Rule 60(b) justifying relief from the Court's May 23, 2023 Order. The May 23, 2023 Order sustained the Defendant's objections to the Plaintiffs' expert's third report and struck the report from the record and use at trial because (1) the expert report impermissibly exceeded the scope of supplementation under Federal Rule of Civil Procedure 26(e) since it was an entirely new report, (2) relied upon information available by the initial expert report disclosure deadline, and (3) was prejudicial to the Defendant. In addition to their argument that the Plaintiffs were precluded from providing the Court with briefing, the Plaintiffs now present three main arguments for reconsideration of the May 23, 2023 Order. First, the Plaintiffs argue reconsideration is appropriate because the Court erroneously determined that they had defined the purported class before it was finalized in March 2023. Second, they argue the April 20, 2023 report was not a new report because it is an 11-paragraph blow-by-blow of Dr. Macartney putting into a calculator the data he identified in his February Reports. Third, the Plaintiffs argue the May 23, 2023 Order is prejudicial because they were not afforded the opportunity to file briefing and the Defendant now seeks to capitalize on the Court's erroneous rulings in support of its Motion to Supplement Briefing in Opposition to Plaintiffs' Motion for Class Certification. Judge Gallo finds that the Plaintiffs' first and second arguments fail under Rule 60(b)(2). He says the Plaintiffs' first argument fails to present any new evidence which with reasonable diligence, could not have been discovered before the Feb. 6, 2023 expert report deadline or May 23, 2023 Order, and are of such magnitude to change the basis of the Court's May 23, 2023 Order. The Plaintiffs' second argument also fails to present any new evidence pursuant to Rule 60(b)(2) to modify the Court's analysis that Dr. Macartney's April 20, 2023 report was not a supplement and instead an entirely new report. Their second argument also seemingly contradicts their first argument that the class definition was required for Dr. Macartney's damages analysis. The Plaintiffs second argument reiterates the same facts and contentions raised at the May 5, 2023 Discovery Conference, contradicts their own representations at the May 5, 2023 Discovery Conference, and fails to augment or provide the Court with new evidence that Dr. Macartney's April 20, 2023 report was in fact a supplement rather than a new report. The record does not demonstrate nor support reconsideration based upon the Plaintiffs' second argument. Hence, the Court holds, neither of the Plaintiffs' first nor second arguments warrant reconsideration under Rule 60(b)(2). Finally, Rule 60(b)(6)'s catch-all provision is unavailable to the Plaintiffs. The Plaintiffs' third argument, that the Court's May 23, 2023 Order is prejudicial as they were not afforded the opportunity to file briefing and the Defendant now seeks to capitalize on the Court's erroneous rulings in support of its Motion to Supplement Briefing in Opposition to Plaintiffs' Motion for Class Certification, does not satisfy the standard under Rule 60(b)(6). Judge Gallo says the Plaintiffs failed to provide any other support or citation to demonstrate that reconsideration is appropriate due to an absence of briefing. They also never requested an additional opportunity to submit briefing nor did they request additional time to prepare for the May 5, 2023 Discovery Conference. Finally, with respect to the Plaintiffs' contention they have been prejudiced as the Defendant now seeks to capitalize on the Court's erroneous rulings and use the report as "ammunition" for the Defendant's challenge to the Plaintiffs' counsel's adequacy is speculation at best. The Court's docket demonstrates that as of the date of this Order, the Defendant's Supplemental Briefing Regarding Adequacy of Representation, its Opposition to Plaintiffs' Motion for Class Certification, and the Plaintiffs' Motion for Class Certification are all still pending before the district court. The Plaintiffs' Motion to Set Aside this Court's May 23, 2023 Order is also still pending before the district court. Hence, the Plaintiffs' third argument fails to demonstrate relief is warranted under Rule 60(b)(6). Based on the foregoing, Judge Gallo denies the Plaintiffs' Motion for Reconsideration. A full-text copy of the Court's June 30, 2023 Order is available at https://tinyurl.com/5c769y4u from Leagle.com. WATERS CORP: Daggett Sues Over Breach of Fiduciary Duty Under ERISA ------------------------------------------------------------------- DAVID DAGGETT, individually, and as a representative of a Class of Participants and Beneficiaries of the Waters Employee Investment Plan, Plaintiff v. WATERS CORPORATION, WATERS TECHNOLOGIES CORPORATION, BOARD OF DIRECTORS OF WATERS TECHNOLOGIES CORPORATION, and EMPLOYEE BENEFITS ADMINISTRATION, COMMITTEE OF WATERS TECHNOLOGIES CORPORATION, Defendants, Case No. 1:23-cv-11527 (D. Mass., July 7, 2023) arises out of the Defendants' violations of the Employee Retirement Income Security Act. Plaintiff Daggett alleges that the Defendants breached its fiduciary duty of prudence for incurring unreasonable and imprudent total of recordkeeping and administrative fees. In addition, he claims that the Defendants also breached its fiduciary duty of prudence for imprudently maintaining the underperforming active suite of Fidelity Freedom Funds until 2022. Waters Technologies Corporation, which a subsidiary of Waters Corporation, produces water-based products. Waters manufactures laboratory instruments and instrumentation systems for the research and testing of water. It is located at 34 Maple Street, Milford, Massachusetts. [BN] The Plaintiff is represented by: Jonathan M. Feigenbaum, Esq. 184 High Street, Suite 503 Boston, MA 02110 Telephone: (617) 357-9700 E-mail: jonathan@erisaattorneys.com - and - Paul M. Secunda, Esq. WALCHESKE & LUZI, LLC 235 N. Executive Dr., Suite 240 Brookfield, WI 53005 Telephone: (414) 828-2372 E-mail: psecunda@walcheskeluzi.com WILMINGTON TRUST: Third Cir. Affirms Refusal to Dismiss Henry Suit ------------------------------------------------------------------ In the case, MARLOW HENRY, on behalf of the BSC Ventures Holdings, Inc. Employee Stock Ownership Plan, and on behalf of a class of all other persons similarly situated v. WILMINGTON TRUST NA; BRIAN SASS; E. STOCKTON CROFT, IV, Appellants, Case No. 21-2801 (3d Cir.), the U.S. Court of Appeals for the Third Circuit affirms the judgment of the District Court denying the Defendants' motion to dismiss. Mr. Henry participated in an employee stock ownership plan ("ESOP") sponsored by his employer. After the ESOP purchased stock at what Henry believed was an inflated price, Henry filed a lawsuit against Wilmington Trust, the plan's trustee, and Brian Sass and E. Stockton Croft, executives of his employer. He alleged that the Defendants breached their fiduciary duties to the ESOP imposed by the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. Section 1001 et seq., and engaged in transactions prohibited by ERISA. The Defendants moved to dismiss. They contended that an arbitration provision, added to the ESOP's plan documents after Henry joined the ESOP, barred Henry from pursuing his claims in federal court. The District Court denied the motion to dismiss. Mr. Henry worked at BSC Ventures Holdings, Inc. ("BSC"), a company that makes custom return envelopes for mass mailings, between 2012 and 2019. In 2015, BSC created an ESOP for its employees. The ESOP is a pension plan subject to the requirements of ERISA. All BSC employees, including Henry, were automatically enrolled in the ESOP and were not permitted to opt out. Wilmington Trust served as the ESOP's trustee. Sass and Croft were executives at BSC who owned BSC stock and provided financial information and projections about BSC to Wilmington Trust. Mr. Henry worked at BSC Ventures Holdings, Inc. ("BSC"), a company that makes custom return envelopes for mass mailings, between 2012 and 2019. In 2015, BSC created an ESOP for its employees. The ESOP is a pension plan subject to the requirements of ERISA. All BSC employees, including Henry, were automatically enrolled in the ESOP and were not permitted to opt out. Wilmington Trust served as the ESOP's trustee. Sass and Croft were executives at BSC who owned BSC stock and provided financial information and projections about BSC to Wilmington Trust. All ERISA plans must "be established and maintained pursuant to a written instrument." In accordance with that statutory requirement, a plan document sets forth the structure of the BSC ESOP. ERISA plans must also "provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan." The plan document gave BSC "the right to amend the [ESOP] from time to time in its sole discretion." BSC also reserved the right to terminate the ESOP at any time. The ESOP purchased $50 million in BSC stock from Sass, Croft, and others in 2016. That purchase was mainly funded by a note payable to BSC. BSC stock was not (and is not) publicly traded, so Wilmington Trust had to value the stock before the ESOP could purchase it. Henry contends that Wilmington Trust breached its fiduciary duty to the ESOP by incurring debt to purchase BSC stock at an inflated price. Henry alleges that the price was excessive given the relative weakness of BSC's business model and the fair market value of the stock. He also contends that Wilmington Trust improperly relied on flawed financial projections provided by self-interested executives Sass and Croft to justify the transaction. BSC amended the plan document in 2017 to include an arbitration provision. In relevant part, this arbitration provision required that any "claims for breach of fiduciary duty" be "resolved exclusively by binding arbitration." It also included a class action waiver. Mr. Henry filed suit in the U.S. District Court for the District of Delaware on Oct. 10, 2019. Suing on behalf of a putative class of ESOP participants, he sought several forms of relief, including a declaratory judgment that the defendants breached their fiduciary duties, a declaratory judgment that an indemnification agreement between Wilmington Trust and BSC violates ERISA, disgorgement, attorneys' fees, and other appropriate equitable relief to the ESOP and its participants and beneficiaries. The Defendants moved to dismiss in December 2019, arguing that Henry lacked Article III standing to bring his ERISA claims and that, even if he had standing, Henry failed to state a claim for relief because the plan document required him to pursue his claims in arbitration. Henry opposed the motion to dismiss, arguing that the arbitration clause was invalid because it was added unilaterally and he had not consented to it. He also argued that the class action waiver -- and, because of the nonseverabilty provision, the arbitration clause as a whole -- was invalid because it required him to waive his rights to pursue plan-wide relief authorized by ERISA. After oral argument on the motion, the parties filed supplemental briefing on whether the class action waiver was invalid because it required him to waive his right to pursue plan-wide relief. The District Court denied the motion to dismiss. It concluded that it could not dismiss Henry's complaint in favor of arbitration because all parties to an arbitration agreement must manifest assent to the agreement, and Henry had not manifested his assent to BSC's addition of an arbitration provision to the ESOP plan document. Because it disposed of the motion by concluding that Henry had not consented to adding the arbitration clause, the District Court only briefly addressed the class action waiver issue in a footnote. It expressed skepticism that Henry could succeed on that issue. The District Court suggested that only a "clear and express command by Congress that an arbitration provision requiring a class action waiver is void" could establish the invalidity of the class action waiver and indicated that, in its view, the relevant remedial provisions of ERISA did not amount to the requisite clear statement by Congress. As a threshold matter, Henry argues that the Court of Appeals lack appellate jurisdiction to review the District Court's order denying the Defendants' motion to dismiss. The Defendants argue that the District Court erred in concluding that the arbitration provision was unenforceable because Henry did not consent to it. Henry disagrees, but also argues on appeal that the class action waiver (and, by extension, the arbitration provision as a whole) is not enforceable because it requires him to waive statutory rights and remedies guaranteed by ERISA. The Third Circuit need address only the latter issue -- whether the class action waiver amounts to an illegal waiver of statutory remedies -- to resolve this appeal. It agrees with Henry that the class action waiver is unenforceable because it requires him to waive statutory remedies. And because the class action waiver is expressly nonseverable from the rest of the arbitration provision, it affirms the District Court's order declining to enforce the arbitration provision. The Third Circuit explains that the class action waiver purports to waive plan participants' rights to seek remedies expressly authorized by statute. Because the class action waiver purports to prohibit statutorily authorized remedies, the class action waiver and the statute cannot be reconciled. In short, the class action waiver in the case cannot be enforced. And even if Henry's complaint is not properly construed as seeking removal of the fiduciary, it unmistakably seeks other forms of relief (such as restitution) that are both expressly authorized by statute and necessarily plan-wide. Finally, the class action waiver requires ESOP participants to waive their statutory right to pursue statutorily authorized remedies. It is therefore unenforceable even if it permits the Department of Labor to pursue those remedies on behalf of the ESOP's participants. Having concluded that the class action waiver clause of the arbitration provision is an unenforceable prospective waiver of Henry's ERISA rights, the Third Circuit also must determine whether the remaining portion of the arbitration provision is enforceable in the absence of the class action waiver. It is not, the Third Circuit opines. The class action waiver is explicitly nonseverable from the rest of the arbitration provision, and the Defendants have conceded that the entire arbitration provision must fall with the class action waiver. Because the arbitration provision is void in its entirety, it affirms the District Court's order declining to enforce it. For the foregoing reasons, the Third Circuit affirms the order of the District Court. A full-text copy of the Court's June 30, 2023 Opinion is available at https://tinyurl.com/2p9798mv from Leagle.com. Sarah M. Adams -- sadams@groom.com -- [ARGUED] Michael J. Prame -- mprame@groom.com -- Groom Law Group Chartered. 1701 Pennsylvania Avenue NW, Suite 1200, Washington, DC 20006. Counsel for Appellant Wilmington Trust NA Mark A. Nebrig -- marknebrig@mvalaw.com -- Moore & Van Allen. 100 N Tryon Street, NationsBank Corporate Center, 47th Floor, Charlotte, NC 28202. Kevin J. Connors Marshall Dennehey Warner Coleman & Goggin, P.C., 1007 N Orange Street, Nemours Building, Suite 600, Wilmington, DE 19801, Counsel for Appellants Brian Sass and E. Stockton Croft, IV. Daniel Feinberg -- dan@feinbergjackson.com -- Feinberg Jackson Worthman & Wasow, 2030 Addison Street, Suite 500, Berkeley, CA 94704. David A. Felice -- dfelice@baileyglasser.com -- Bailey & Glasser LLP. 2961 Centerville Road, Suite 302, Wilmington, DE 19808. Ryan T. Jenny -- rjenny@baileyglasser.com -- Gregory Y. Porter -- gporter@baileyglasser.com -- Bailey & Glasser LLP. 1055 Thomas Jefferson Street, N.W., Suite 540, Washington, D.C. 20007. Peter K. Stris -- pstris@stris.com -- [ARGUED] Rachana A. Pathak -- rpathak@stris.com -- John R. Stokes -- jstokes@stris.com -- Stris & Maher LLP, 777 S. Figueroa Street, Suite 3850, Los Angeles, CA 90017. Tillman J. Breckenridge -- tbreckenridge@stris.com -- Stris & Maher LLP, 1717 K Street, N.W., Suite 900, Washington, DC, 20006, Counsel for the Appellee. WINDSOR CHEVIOT: Fails to Pay Minimum, OT Wages, Washington Alleges ------------------------------------------------------------------- ANGELIA WASHINGTON, an individual and on behalf of all others similarly situated v. WINDSOR CHEVIOT HILLS, LLC, a California limited liability company; and DOES 1 through 100, inclusive, Case No. 23STCV16672 (Cal. Super., July 17, 2023) alleges that the Defendants had and have a policy or practice of failing to compensate the Plaintiff and other Aggrieved Employees with minimum wages for all hours worked and overtime wages, in violation of California state wage and hour laws. The Plaintiff alleges that the Defendants failed to accurately track and/or pay for all minutes actually worked, failed to include all forms of remuneration, including non-discretionary bonuses, incentive pay, meal allowances, mask allowances, gift cards and other forms of remuneration into the regular rate of pay for the pay periods where overtime was worked and the additional compensation was earned for the purpose of calculating the overtime rate of pay; detrimental rounding of employee time entries, editing and/or manipulation of time entries to show less hours than actually worked; and for paying straight pay instead of overtime pay to the detriment of the Employee and other aggrieved employees. Accordingly, the Defendants require employees: to come early to work and leave late work without being able to clock in for all that time, to suffer under Employer's control due to long lines for clocking in, to complete pre-shift tasks before clocking in and post-shift tasks after clocking out, to clock out for meal periods and continue working, to clock out for rest periods, to attend company meetings off the clock, to make phone calls off the clock, says the suit. The Plaintiff was employed by the Defendant from June 2021 through August 2022 as a non-exempt employee, with duties that included preventive nursing care.[BN] The Plaintiff is represented by: David D. Bibiyan, Esq. Diego Aviles, Esq. Jasmin Aradi, Esq. BIBIYAN LAW GROUP, P.C. 8484 Wilshire Boulevard, Suite 500 Beverly Hills, CA 90211 Telephone: (310) 438-5555 Facsimile: (310) 300-1705 E-mail: diego@tomorrowlaw.com david@tomorrowlaw.com jaradi@tomorrowlaw.com WISCONSIN: Smith Ordered to Pay Full Filing Fee in Suit v. Carr --------------------------------------------------------------- In the case, JAMES ALFRED SMITH, JR., JONATHAN WINN, KAMAAL ALLEN, MARTINEZ M. EDWARDS, DEVONTE MITCHELL, ROMELE WALLACE, and EQUANTEZ SLOAN, Plaintiff v. SECRETARY KEVIN A. CARR, Defendant, Case No. 23-cv-261-wmc (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin grants in part and denies in part Smith's motion for reconsideration of the denial of his motion for class certification and to allow him to proceed without prepaying the filing fee. These pro se Plaintiffs contend that their due process and equal protection rights were violated in extended supervision revocation proceedings. Judge Peterson denied their motion for class certification and appointment of class counsel. He also explained that for this case to move forward, Smith had to pay the full filling fee because he had "struck out" under the Prison Litigation Reform Act and that each of the remaining Plaintiffs had to either pay the fee or file a motion to proceed in forma pauperis. No Plaintiff responded by the deadline, so the Court dismissed the case. Smith asks Judge Peterson to reconsider his denial of the motion for class certification and to allow him to proceed without prepaying the filing fee. To begin, Judge Peterson finds that Smith does not present any reason to reconsider class certification. He denied the motion because pro se prisoners cannot represent a class in a class action and the Plaintiffs did not establish that the Court's assistance with recruiting class counsel would be appropriate. Smith asserts that the Plaintiffs have contacted "several lawyers requesting representation" without response. Even so, Judge Peterson says their motion for class certification did not address other requirements for class certification under Federal Rule of Civil Procedure 23. For example, a class must be clearly defined with objective criteria. And Rule 23(a) imposes threshold requirements of numerosity, commonality, and typicality in addition to adequacy of representation. The class must also meet the requirements of at least one of the types of class actions listed in Rule 23(b). Smith makes no attempt to address these issues on reconsideration. The case will not proceed as a class action, but Judge Peterson reopens it and allows the Plaintiffs a final opportunity to pursue it as individuals because Smith suggests that they missed the deadline due to mail delays and difficulties communicating with each other. As for Smith, he cannot proceed in forma pauperis in any lawsuit or appeal he files while incarcerated, except for instances in which he alleges that he is in "imminent danger of serious physical injury" at the time he filed the lawsuit or appeal. He did not raise any such allegations in the complaint, which challenges certain revocation proceedings and supervision conditions, so Judge Peterson orders him to pay the full filing fee. Judge Peterson is also not persuaded otherwise on reconsideration. To meet the imminent danger requirement of 28 U.S.C. Section 1915(g), the "threat or prison condition must be real and proximate," and imminent or occurring at the time the complaint is filed. Smith now notes that he has been placed in segregation. He also asserts that he was sexually assaulted at some point, and reported the assault, and conclusorily references "excessive force" and the "denial of adequate medical care" without supporting factual detail. In general, allegations of past harm do not suffice, and Judge Peterson cannot conclude based on these assertions that Smith faced an ongoing or imminent danger of physical injury when the Plaintiffs filed the lawsuit in April of 2023. For this case to move forward, Smith must pay the full filling fee and each remaining Plaintiff must either pay the fee or file a motion to proceed in forma pauperis. Judge Peterson notes that Smith does not represent the other Plaintiffs in this matter because he is not a lawyer and cannot file motions or make representations on their behalf. He dismisses each Plaintiff who does not respond by the deadline indicated below and dismiss this case again if no Plaintiff responds. Once the Plaintiffs have complied with the filing fee requirement, Judge Peterson will screen the complaint as required under 28 U.S.C. Sections 1915, 1915A. Although he has not yet considered the merits of the Plaintiffs' claims, he notes for their benefit that as a general matter if they are seeking to challenge ongoing revocation proceedings, this federal court cannot interfere with those proceedings under Younger v. Harris, 401 U.S. 37 (1971), absent extraordinary circumstances. Nor can the Plaintiffs pursue damages claims in this type of civil lawsuit if a judgment in their favor would "necessarily imply the invalidity" of a prior conviction, sentence, or revocation. In view of the foregoing, Judge Peterson grants in part and denies in part Smith's motion for reconsideration as described in his order. The case is reopened. Smith may not proceed as a plaintiff in this lawsuit unless he pays the full $402 filing fee. The remaining Plaintiffs will be dismissed from this lawsuit unless they each either pay the full filing fee or file a motion to proceed in forma pauperis. A full-text copy of the Court's June 30, 2023 Opinion & Order is available at https://tinyurl.com/276xth2n from Leagle.com. XEROX CORP: Cole Must File Class Certification Bid by June 21, 2024 ------------------------------------------------------------------- In the class action lawsuit captioned as BARRY COLE, on behalf of himself and all others similarly situated and on behalf of the general public, v. XEROX CORPORATION, a New York corporation, and DOES 1 through 10, inclusive, Case No. 2:23-cv-03846-AB-RAO (C.D. Cal.), the Hon. Judge Andre Birotte Jr. entered an order granting stipulation to set motion for class certification and related deadlines as follows: 1. The Plaintiff must file his motion for class certification by June 21, 2024. 2. The Defendant must file its opposition by August 2, 2024. 3. The Plaintiff must file his reply by August 23, 2024. 4. The hearing it set for September 20, 2024, at 10:00 a.m. Xerox is an American corporation that sells print and digital document products and services. A copy of the Court's order dated July 13, 2023, is available from PacerMonitor.com at https://bit.ly/3Oe82TU at no extra charge.[CC] Asbestos Litigation ASBESTOS UPDATE: PPG Industries Has $49MM Reserves as of June 30 ---------------------------------------------------------------- PPG Industries Inc.'s asbestos-related reserves totaled $49 million and $51 million as of June 30, 2023 and December 31, 2022, respectively, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. As of June 30, 2023, the Company was aware of certain asbestos-related claims pending against the Company and certain of its subsidiaries. The Company is defending these asbestos-related claims vigorously. The asbestos-related claims consist of claims against the Company alleging: exposure to asbestos or asbestos-containing products manufactured, sold or distributed by the Company or its subsidiaries ("Products Claims"); personal injury caused by asbestos on premises presently or formerly owned, leased or occupied by the Company ("Premises Claims"); and asbestos-related claims against a subsidiary the Company acquired in 2013 ("Subsidiary Claims"). The Company believes that, based on presently available information, the total reserves of $49 million for asbestos-related claims will be sufficient to encompass all of the Company's current and estimable potential future asbestos liabilities. These reserves, which are included within Other liabilities on the accompanying consolidated balance sheets, involve significant management judgment and represent the Company's current best estimate of its liability for these claims. The amount reserved for asbestos-related claims by its nature is subject to many uncertainties that may change over time, including (i) the ultimate number of claims filed; (ii) whether closed, dismissed or dormant claims are reinstituted, reinstated or revived; (iii) the amounts required to resolve both currently known and future unknown claims; (iv) the amount of insurance, if any, available to cover such claims; (v) the unpredictable aspects of the tort system, including a changing trial docket and the jurisdictions in which trials are scheduled; (vi) the outcome of any trials, including potential judgments or jury verdicts; (vii) the lack of specific information in many cases concerning exposure for which the Company is allegedly responsible, and the claimants' alleged diseases resulting from such exposure; and (viii) potential changes in applicable federal and/or state tort liability law. All of these factors may have a material effect upon future asbestos-related liability estimates. While the ultimate outcome of the Company's asbestos litigation cannot be predicted with certainty, the Company believes that any financial exposure resulting from its asbestos-related claims will not have a material adverse effect on the Company's consolidated financial position, liquidity or results of operations. A full-text copy of the Form 10-Q is available at https://tinyurl.com/fp4r7e2u ASBESTOS UPDATE: Travelers Cos. Still Receives A&E Exposure Claims ------------------------------------------------------------------ The Travelers Companies, Inc., in the ordinary course of its insurance business, has received and continues to receive claims for insurance arising under policies issued by them asserting alleged injuries and damages from asbestos- and environmental-related exposures that are the subject of related coverage litigation, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission. In addition to claims against policyholders, proceedings have been launched directly against insurers, including the Company, by individuals challenging insurers' conduct with respect to the handling of past asbestos claims and by individuals seeking damages arising from alleged asbestos-related bodily injuries. It is possible that other direct actions against insurers, including the Company, could be filed in the future. It is difficult to predict the outcome of these proceedings, including whether the plaintiffs would be able to sustain these actions against insurers based on novel legal theories of liability. The Company believes it has meritorious defenses to any such claims and has received favorable rulings in certain jurisdictions. Because each policyholder presents different liability and coverage issues, the Company generally reviews the exposure presented by each policyholder with open claims at least annually. Among the factors the Company may consider in the course of this review are: available insurance coverage, including the role of any umbrella or excess insurance the Company has issued to the policyholder; limits and deductibles; an analysis of the policyholder's potential liability; the jurisdictions involved; past and anticipated future claim activity and loss development on pending claims; past settlement values of similar claims; allocated claim adjustment expense; the potential role of other insurance; the role, if any, of non-asbestos claims or potential non-asbestos claims in any resolution process; and applicable coverage defenses or determinations, if any, including the determination as to whether or not an asbestos claim is a products/completed operation claim subject to an aggregate limit and the available coverage, if any, for that claim. A full-text copy of the Form 10-Q is available at https://tinyurl.com/3pttvauh ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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