/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230822.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 22, 2023, Vol. 25, No. 168 Headlines 342 W 6TH STREET: Court Enters Standing Order in Copper Class Suit AETNA LIFE: Court Denies Bid to Decertify Class in Hendricks Suit ALDEYRA THERAPEUTICS: Paice Sues Over 27.44% Drop of Stock Price ALLBIRDS INC: Court Consolidates Shnayder and Delgado Class Suits AMC ENTERTAINMENT: Class Settlement in Stockholder Suit Approved AMERICARE HEALTHCARE: Court Junks Bid to Stay Walsh Class Suit ARBORWORKS LLC: Class Cert Bid Filing Extended to August 28, 2024 ARIZONA: District Court Grants Bid for Clarification in Carson Suit ARKANSAS: Arkansas Voter Suit Remanded to Pulaski County Cir. Court ASPYR MEDIA INC: Mickelonis Files Suit in C.D. California BAPTIST HEALTH: Fails to Pay OT Wages Under FLSA, Webb Suit Alleges BLUE DIAMOND: Faces Rhodes Class Suit Over Almonds' False Ads BMW OF NORTH AMERICA: Wins Bid for Judgment on Pleadings in Hurst CANOPY GROWTH: Turpel Files Suit in S.D. New York CASA TUA: Fails to Properly Pay Restaurant Staff, Silva Alleges CHEGG INC: Can Compel Arbitration in Moyer Suit; Litigation Stayed CHRISTIAN DIOR: Loses Bid for Attys.' Fees in Warmack-Stillwell CLOROX COMPANY: Swetz Seeks Initial OK of Class Settlement CLUB 360: Court OK's Golan Class Cert Bid for EFTA Claim COAST DENTAL: Tenbrock Suit Seeks Unpaid OT for Office Managers COGIR MANAGEMENT: Class Cert Bid Filing Continued to March 11, 2024 COMMUNITY HEALTH: Faces Consolidated Suit Over Data Breach COMMUNITY HEALTH: Settlement in Padilla Suit Initially OK'd CONOCOPHILLIPS CO: Shareholder Suit in California Court Ongoing CONSUMER ADJUSTMENT: Wins Summary Judgment v. Brittingham CORELOGIC CREDCO: Class Cert Bid Filing Extended to Dec. 7 DALE COLLIER: Civil Standing Order Entered in Cheng Class Suit DEJA VU: Hoffman Seeks to Certify Class Action DEL MONTE: N.D. California Narrows Claims in Bryan Class Suit DELTA AIR: Filing of Class Cert Bid Due Feb. 28, 2024 DTE ELECTRIC: Brown Files Bid for Class Certification ENERGY TRANSFER: Parities Seek More Time for Expert Discovery EQUIFAX INFORMATION: Patrick Sues Over Inaccurate Consumer Reports FAY SERVICING: Ridley Files FDCPA Suit in E.D. Virginia FIREMAN'S FUND: 9th Cir. Affirms Dismissal of Oregon Clinic Suit FRANKLIN COUNTY, IL: More Time to Stay Class Cert Briefing Sought GPB HOLDINGS: Deluca Seeks to Certify Class & Subclasses GRAND CANYON EDUCATION: Consolidated Shareholder Suit Ongoing GRAND CANYON EDUCATION: Faces Shareholder Class Suit HANOVER VENTURES: Gonzalez Seeks Rule 23 Class Certification HUDDLE HOUSE INC: Hoffman Files Suit Over Alleged Tip Skimming IMPERIAL AIR: Underpays Repair Technicians, Valdivia Suit Alleges JASON MUSSELMAN: Court Directs Filing of Discovery Plan JOHNSON & JOHNSON: Tylenol Gelcaps' Ads "Deceptive," Musikar Claims KEYCORP: Faces Gurevitch Suit Over Drop in Share Price KIA MOTORS: Faces Class Suit Over Defective Charging Ports LA FINCA FARMER: Cabrera Sues Over Unpaid Overtime Wages LOGOUP.COM INC: Has Made Unsolicited Calls, Garcia Suit Claims MANAGEABILITY INC: Stoimenoff Class Suit Seeks OT Wages Under FLSA MDL 1720: Fikes Plaintiffs Seek to Certify Franchisee Subclass MDL 2924: Court Dismisses All Economic Loss Class Action Cases MDL 2924: Final Judgment Entered in Medical Monitoring Class Cases MEMPHIS WINGS: Fails to Pay Proper Wages, Hicks Suit Alleges MENARD INC: Bid to Compel Arbitration Granted; Domer Suit Tossed MICHAEL COOKSON: Partial Default Judgment in Ramirez Suit Endorsed MILLENNIUM SEARCH: Faces Woods Wage-and-Hour Suit in W.D. Tenn. MISSOURI: Court Orders May to File Signed Amended Complaint MW SERVICING: Court Grants Motion to Decertify Moore Class Suit NABORS COMPLETION: Court Confirms $387K Damages Award for Brown NABORS COMPLETION: Court Confirms $410K Damages Award for Figueroa NATIONAL FOOTBALL: Bids to Review Arbitration Order in Flores Nixed NEW PERSPECTIVE: Parties Seek to Certify Class of Caregivers NEW SOUTH WALES: Faces Class Suit Over Serious Staff Underpayments NOVARTIS PHARMACEUTICALS: Final Judgment Entered in Antitrust Suit NRA GROUP: Chamberlain Seeks Extension to File Class Cert Reply O' HARE AUTO: Fails to Pay Proper Wages, Gonzalez Alleges OLO INC: Order Denying Bid to Dismiss Steamship Suit Reconfirmed OPSEC SECURITY: Loses Bid to Alter Judgment on Deal With Hanigan PAPA JOHN'S: Court Issues Final Settlement Approval in Sobol Suit PARTY CITY: Faces Shulman Suit Over 22% Stock Price Drop PHARMACARE US: Seeks Denial of Corbett Class Cert Bid PRIME HYDRATION: Castillo Sues Over Mislabeled Energy Drinks PROGRESSIVE GULF: Wright Sues Over Retained Insureds' Deductibles PUMA BIOTECHNOLOGY: Court OK's Settlement in Hsu Class Action PUMA BIOTECHNOLOGY: Dlamini Sues Over Data Breach Incident QUEST DIAGNOSTICS: Plaintiffs Seek Class Cert. in ERISA Litigation QUICK BOX: Court Defers Class Cert Ruling in Tan Suit QUONTIC BANK: Sapan Class Status Bid Tossed w/o Prejudice REDFIN CORP: Settlement in Bell Suit Initially OK'd REDFIN CORP: Settlement in Cook Suit Initially Approved RICHARD KING: Filing for Class Cert. Bid in Zaidi Reset to Oct. 4 RICOLA USA: Davis Seeks Class Status in Cough Suppressant Suit SPARK ELECTRIC: Perdomo Sues Over Unpaid OT, Retaliatory Discharge TACO BELL: Siragusa Sues Over Menu Items' Overstated Ingredients TAXSLAYER INC: Shares Taxpayers' Data to 3rd Parties, Temple Says TESLA INC: Ruiz Suit Remanded to San Bernardino Superior Court THOMPSON CREEK: 4th Cir. Affirms Dismissal of Bailey Class Suit TWITTER INC: Scott and Israel Named Co-Lead Class Counsel in Gerber TZUMI INNOVATIONS: Final Approval of Class Action Settlement Sought UAG ESCONDIDO: S.D. California Grants Bid to Dismiss Esparza Suit ULTA SALON: $1.5M Class Deal in Kabasele Suit Wins Prelim. Approval UNILEVER UNITED: S.D.N.Y. Dismisses Wiggins' Amended Complaint UNION BANK: Interim Co-Lead Class Counsel Named in Scott Suit VIRGINIA: Wall v. Clarke to Proceed Solely on Retaliation Claims VISA INC: Class Certification Order in National ATM Suit Affirmed WILLIS TOWERS: Fails to Pay CSRs' OT Wages Under FLSA, Pitts Says YELLOW CORP: Rivera Sues Over Mass Layoffs Without Prior Notice ********* 342 W 6TH STREET: Court Enters Standing Order in Copper Class Suit ------------------------------------------------------------------ In the class action lawsuit captioned as DENNIS COOPER, v. 342 W 6TH STREET, LLC, et al., Case No. 5:23-cv-01454-JGB-SHK (C.D. Cal.), the Hon. Judge Jesus G. Bernal entered a standing order as follows: -- Service of the Complaint The Plaintiff shall serve the Complaint promptly in accordance with Fed. R. Civ. P. 4 and file the proofs of service pursuant to L.R. 5−3.1. -- Removed Actions Any answers filed in state court must be re−filed in this Court (separately) as a supplement to the petition. Any pending motions must be re−noticed in accordance with L.R. 6−1. -- Assignment to a Magistrate Judge. Under 28 U.S.C. section 636, the parties may consent to have a Magistrate Judge preside over all proceedings. The Magistrate Judges who accept those designations are identified on the Central District's website, which also contains the consent form. -- Electronic Filing As of January 1, 2008, the United States District Court for the Central District of California implemented mandatory electronic filing ("e−filing") of documents in all new and pending civil cases. -- Mandatory Chambers Copies Counsel shall provide one conformed chambers copy of ONLY the following filed documents. -- Civil matters Motions and related documents (opposition, replies, exhibits); ex parte applications and related documents oppositions and exhibits); and Joint Rule 26(f) reports. A copy of the Court's order dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3YwuqN8 at no extra charge.[CC] AETNA LIFE: Court Denies Bid to Decertify Class in Hendricks Suit ----------------------------------------------------------------- In the case, BRIAN HENDRICKS and ANDREW SAGALONGOS, on behalf of themselves and all others similarly situated, Plaintiffs v. AETNA LIFE INSURANCE COMPANY, Defendant, Case No. CV 19-06840-CJC (MRWx) (C.D. Cal.), Judge Cormac J. Carney of the U.S. District Court for the Central District of California denies Aetna's motion to decertify the class in light of the Ninth Circuit's recent decision in Wit v. United Behavioral Health, 58 F.4th 1080 (9th Cir. 2023). Plaintiffs Hendricks and Sagalongos bring this class action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Sections 1001-1461, against Aetna. They allege that they were harmed because of Aetna's general policy of denying coverage requests for lumbar artificial disc replacement surgery because the surgery is experimental or investigational. The Court previously certified the following class: All persons covered under Aetna Plans, governed by ERISA, self-funded or fully insured, whose requests for lumbar artificial disc replacement surgery were denied at any time within the applicable statute of limitations, or whose requests for that surgery will be denied in the future, on the ground that lumbar artificial disc replacement surgery is experimental or investigational, and whose denials will be subject to abuse of discretion review by the district court. Now before the Court is Aetna's motion to decertify the class considering the Ninth Circuit's recent decision in Wit. The Plaintiffs, who are each covered by Aetna insurance plans issued through their employers, suffer from disc disease in their lumbar (lower) spine, which causes them significant pain and immobility. After medication and corrective exercises failed to mitigate their symptoms, both Plaintiffs consulted with surgeons who recommended lumbar artificial disc replacement surgery ("Lumbar ADR" or "L-ADR"). Lumbar ADR involves replacing a diseased spinal disc with an artificial one. Traditionally, surgeons had recommended spinal fusion to treat degenerative lumbar disc disease, but Lumbar ADR has the potential for improved flexibility and mobility. The U.S. Food and Drug Administration (FDA) has approved at least two lumbar disc replacement products. The Plaintiffs requested coverage of their respective Lumbar ADR procedures, and Aetna denied both requests on the ground that Lumbar ADR was experimental or investigational. As Aetna insureds, both Plaintiffs received summary plan descriptions ("SPDs"), which state that Aetna generally does not cover "experimental or investigational" devices or procedures. And Aetna's Clinical Policy Bulletin 591 ("CPB 591") states that Aetna considers Lumbar ADR "experimental or investigational" because there is insufficient evidence of the effectiveness of prosthetic lumbar discs. After paying out-of-pocket for their Lumbar ADR procedures, the Plaintiffs appealed Aetna's decision to deny them coverage. After Aetna affirmed its initial denial for each Plaintiff, they filed the lawsuit alleging claims under ERISA for (1) denial of plan benefits and clarification of rights and (2) breach of fiduciary duty. The Plaintiffs asserted their claims on behalf of "all persons covered under Aetna Plans, governed by ERISA whose requests for lumbar ADR were denied on the ground that lumbar ADR is experimental or investigational." They seek, among other things, an injunction requiring Aetna to retract CPB 591 because it erroneously classifies claims for Lumbar ADR as experimental and investigational. Aetna raises several arguments predicated on the Ninth Circuit's decision in Wit as to why decertification is warranted for failure to satisfy Rule 23(a) and Rule 23(b)'s requirements. First, Aetna argues that Wit's holding that the futility exception does not apply to contractually mandated exhaustion of administrative appeals renders the Plaintiffs, who failed to exhaust their appeals, atypical of the class and prohibits excusal of any unnamed class members' failure to exhaust. Second, it argues that Wit's rejection of a "reprocessing" remedy under ERISA means that the commonality requirement is no longer satisfied. Third, Aetna argues that Wit's rejection of "reprocessing" and Aetna's retraction of CPB 591 after this suit was filed mean that certification is improper under any subpart of Rule 23(b). The Plaintiffs contest each of these points. They argue, among other things, that Aetna's systematic denial of coverage on the ground that Lumbar ADR was "experimental or investigational" excused satisfaction of the exhaustion condition of their respective plans and that commonality under Rule 23(a)(2), as well as the requirements under Rule 23(b)(1)(A) through (b)(2), remain satisfied notwithstanding Wit's holdings on the "reprocessing" remedy and Aetna's retraction of CPB 591. Judge Carney agrees with the Plaintiffs. Regarding the Rule 23(a) requirements, he finds that (i) the Plaintiffs are typical of the class notwithstanding their failure to exhaust administrative appeals; and (ii) the Plaintiffs can show that they and the class members are entitled to benefits under their plans if outstanding factual determinations were resolved in their favor through adjudication of the common issue of the propriety of CPB 591. With respect to Rule 23(b) requirements, Judge Carney finds that (i) Aetna's revision of its policy does not moot the Plaintiffs' request for an injunction; (ii) Aetna's challenge to certification under Rule 23(b)(1)(B) fails; and (iii) injunctive relief concerning Lumbar ADR coverage is still available and corresponding declaratory relief likewise remains available. For the foregoing reasons, Aetna's motion to decertify the class is denied. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/mrwdw758 from Leagle.com. ALDEYRA THERAPEUTICS: Paice Sues Over 27.44% Drop of Stock Price ---------------------------------------------------------------- JULIANA PAICE, individually and on behalf of all others similarly situated, Plaintiff v. ALDEYRA THERAPEUTICS, INC., TODD C. BRADY, JOSHUA REED, and BRUCE GREENBERG, Defendants, Case No. 1:23-cv-11737-DJC (D. Mass., July 31, 2023) is a class action against the Defendants for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. According to the complaint, the Defendants made materially false and misleading statements regarding Aldeyra's business, operations, and compliance policies in order to trade Aldeyra securities at artificially inflated prices between March 17, 2022 and June 20, 2023. Specifically, the Defendants failed to disclose that: (i) the new drug application (NDA) for ADX-2191, a dihydrofolate reductase inhibitor, did not include adequate and well-controlled investigations and thus failed to show substantial evidence of ADX-2191's effectiveness; (ii) as a result, the Food and Drug Administration (FDA) was unlikely to approve the ADX-2191 NDA in its current form; (iii) accordingly, the company had overstated ADX-2191's clinical and/or commercial prospects; and (iv) as a result, the company's public statements were materially false and misleading at all relevant times. When the truth emerged, Aldeyra's stock price fell $2.92 per share, or 27.44 percent, to close at $7.72 per share on June 21, 2023, says the suit. Aldeyra Therapeutics, Inc. is a pharmaceutical firm, with principal executive offices located at 131 Hartwell Avenue, Suite 320, Lexington, Massachusetts. [BN] The Plaintiff is represented by: Daryl Andrews, Esq. Glen DeValerio, Esq. ANDREWS DEVALERIO LLP P.O. Box 67101 Chestnut Hill, MA 02467 Telephone: (617) 999-6473 E-mail: daryl@andrewsdevalerio.com glen@andrewsdevalerio.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com ALLBIRDS INC: Court Consolidates Shnayder and Delgado Class Suits ----------------------------------------------------------------- In the case, GENNADY SHNAYDER, Plaintiff v. ALLBIRDS, INC., et al., Defendants, Case No. 23-cv-01811-AMO (N.D. Cal.), Judge Araceli Martinez-Olguin of the U.S. District Court for the Northern District of California: a. consolidates Shnayder v. Allbirds, Inc. et al, Case No. 23-1811, with Delgado Jr. v. Allbirds, Inc., et al., Case No. 23-2372; b. appoints Yau Noi and Qu Jinghua ("Noi-Jinghua Family") the Lead Plaintiffs; and c. appoints Pomerantz LLP as the Interim Class Counsel. Pending before the Court are four putative class members' motions requesting consolidation, appointment of the lead plaintiff, and approval of lead counsel pursuant to the Private Securities Litigation Reform Act of 1995 ("PSLRA"). All four sets of papers filed seek to consolidate Gennady with Delgado. The cases are both putative class actions that involve nearly identical legal claims and factual issues. Both actions are brought on behalf of persons or entities that purchased Allbirds Class A common stock in connection with its initial public offering and/or who purchased Allbirds securities between Nov. 4, 2021, and March 9, 2023. Both actions allege identical claims against Allbirds, including violations of Sections 11 and 15 of the Securities Act and Sections 20(a), 10(b), and Rule 10b-5 of the Exchange Act. Judge Martinez-Olguin finds that (i) the notice requirement is satisfied because the notice was published within 20 days of the Schnayder complaint's filing and because the Noi-Jinghua Family filed their motion to be appointed lead plaintiff within 60 days of the notice's publication; (ii) the members of the Noi-Jinghua Family are the movants with the largest financial interest at stake and thus are the Plaintiffs most adequate to represent the class' interests; and (iii) the Noi-Jinghua Family satisfies the Rule 23 typicality and adequacy requirements at this preliminary stage. Because the Noi-Jinghua Family meets the statutory requirements to serve as lead plaintiff, Judge Martinez-Olguin grants their uncontested motion for appointment as the Lead Plaintiffs under Title 15 U.S.C. Section 78u-4(a)(3). Having appointed the Noi-Jinghua Family, Judge Martinez-Olguin proceeds to the appointment of interim lead counsel. The Noi-Jinghua Family seeks appointment of Pomerantz LLP as interim lead counsel. He finds that the Noi-Jinghua Family establishes that Pomerantz meets the Rule 23(g) factors. Pomerantz has (i) extensive experience litigating securities class actions; (ii) has previously served as lead counsel in high-profile securities class actions where it successfully recovered on behalf of investors; (iii) has secured significant settlements on behalf of investors; and (iv) Pomerantz's previous securities class actions have required considerable resources to effectively manage the litigation and protect the interest of the class, demonstrating that the firm is capable of committing the requisite resources to this case. Given the statutory presumption in favor of lead plaintiffs' selection of lead counsel and the Court's satisfaction with Pomerantz meeting the Rule 23(g) factors, Pomerantz is appointed to serve as the Interim Class Counsel. Because Judge Martinez-Olguin concludes that the cases assert substantially the same PSLRA claims and involve similar questions of law and fact, he grants the motions to consolidate the Related Cases. For the foregoing reasons, Judge Martinez-Olguin grants the motions to consolidate the Related Cases, the Noi-Jinghua Family's uncontested motion for appointment as lead plaintiffs, and appoints Pomerantz to serve as the Interim Class Counsel. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/2cpzrjmv from Leagle.com. AMC ENTERTAINMENT: Class Settlement in Stockholder Suit Approved ---------------------------------------------------------------- In the case, IN RE AMC ENTERTAINMENT HOLDINGS, INC. STOCKHOLDER LITIGATION, Consol. C.A. No. 2023-0215-MTZ (Del. Ch.), Judge Morgan T. Zurn of the Court of Chancery of Delaware approves the Proposed Settlement, awards the Plaintiffs' counsel a 12% fee award, and awards the Plaintiffs $5,000 incentive awards out of their counsel's fee award. Common stockholders of AMC brought direct claims on behalf of a putative class of common stockholders, and have reached a settlement with the Defendants, AMC's directors and the Company. The settlement consideration consists of additional shares of common stock awarded to current common stockholders to offset the dilutive effects of the conduct underlying the Plaintiffs' claims. In return, the Plaintiffs and the Defendants suggest the class should release claims relating to that conduct. As Delaware law requires, the parties submitted the settlement terms to the Court for approval. The Plaintiffs' counsel have also requested fees based on the settlement's benefit to AMC's stockholders. This is Judge Zurn's second opinion considering the settlement terms. The first was issued on July 21, 2023, and declined to approve the settlement because the release was unsound (the "July 21 Opinion"). The instant opinion adopts the defined terms used in the July 21 Opinion, assumes the parties' familiarity with the July 21 Opinion, and refers readers to that decision for the necessary background regarding the underlying transactions and the litigation. The day after the July 21 Opinion, the parties cut the offending provision from the release and asked the Court to consider the settlement as revised. The instant Opinion of Judge Zurn considers that revised settlement. Her consideration of a proposed settlement comprises four tasks. First, Judge Zurn determines whether the class should be certified under Court of Chancery Rule 23, and if she should be certified as opt-out or non-opt-out. She certifies the class as a non-opt-out class under Rules 23(a), 23(b)(1), and 23(b)(2). Judge Zurn declines to afford the right to opt out because an opt-out right is not warranted given the Proposed Settlement's structure. Second, Judge Zurn reviews the adequacy of notice of the proposed settlement to the class. She concludes the notice was sufficient and its delivery was adequate. Under Delaware law, only stockholders of record are required to receive notice when the class is certified as a non-opt-out class. In the case, comprehensive electronic notice, coupled with supplemental but imperfect postcard notice, was adequate notice under Delaware law. Third, Judge Zurn reviews the terms of the proposed settlement for reasonableness, and determines whether to approve it. She concludes the settlement is reasonable. While the Plaintiffs' fiduciary duty claim had merit, she finds that a remedy for that claim that is equitable and beneficial to the class overall is challenging to identify. The Plaintiffs' statutory claim had no merit. The release of those claims, and others with the identical factual predicate to the Plaintiffs' complaints, is sufficiently supported by the settlement consideration. And finally, if the settlement is approved, Judge Zurn resolves the Plaintiffs' petition for an award of attorney's fees and expenses. She awards the Plaintiffs' counsel fees worth 12% of the settlement consideration. She holds that the parties should derive the Plaintiffs' counsel's fee from the closing price of AMC common stock on the date Settlement Shares are issued. The parties should make any necessary adjustments to account for dilution to the legacy common stockholders, perhaps in the same manner as Plaintiffs' expert, to the extent that the stock price does not reflect any such dilution. In no event will the fee and expenses exceed $20 million, per the agreement reflected in the Notice. The Plaintiffs seek approval of modest $5,000 incentive awards to Franchi and Allegheny, to be paid exclusively out of any fees awarded to Plaintiffs' counsel. Judge Zurn grants the Plaintiffs' requests for modest incentive awards. She opines that the Plaintiffs should receive credit for conferring a benefit to the class. The $5,000 incentive awards are appropriate, if low. An objector moved for a stay pending appeal if the settlement was approved, indicating an intention to appeal the July 21 Opinion's holding that the release does not improperly release future claims. Judge Zurn concludes such a stay would not be appropriate. For the forgoing reasons, the Proposed Settlement is approved, the Plaintiffs' counsel is awarded a 12% fee award, and the Plaintiffs are awarded $5,000 incentive awards out of their counsel's fee award. A full-text copy of the Court's July 26, 2023 Memorandum Opinion is available at https://tinyurl.com/mzjbcnrb from Leagle.com. Gregory V. Varallo -- Greg.Varallo@blbglaw.com -- Daniel E. Meyer -- Daniel.Meyer@blbglaw.com -- BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP, Wilmington, Delaware; Mark Lebovitch -- markl@blbglaw.com -- Edward Timlin -- edward.timlin@blbglaw.com -- BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP, New York, New York; Michael J. Barry -- mbarry@gelaw.com -- Kelly L. Tucker -- ktucker@gelaw.com -- Jason M. Avellino, GRANT & EISENHOFER, P.A., Wilmington, Delaware; Thomas Curry -- tcurry@saxenawhite.com -- SAXENA WHITE P.A., Wilmington, Delaware, Attorneys for Plaintiffs Allegheny County Employees' Retirement System and Anthony Franchi. Raymond J. DiCamillo -- dicamillo@rlf.com -- Kevin M. Gallagher -- gallagher@rlf.com -- Matthew W. Murphy -- murphy@rlf.com -- RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware; John A. Neuwirth -- john.neuwirth@weil.com -- Joshua S. Amsel -- joshua.amsel@weil.com -- Tanner S. Stanley -- tanner.stanley@weil.com -- WEIL, GOTSHAL & MANGES LLP, New York, New York, Attorneys for Defendants AMC Entertainment Holdings, Inc., Adam M. Aron, Denise Clark, Howard W. Koch, Jr., Kathleen M. Pawlus, Keri Putnam, Anthony J. Saich, Philip Lader, Gary F. Locke, Lee Wittlinger, and Adam J. Sussman. AMERICARE HEALTHCARE: Court Junks Bid to Stay Walsh Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as MARTIN J. WALSH, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, v. AMERICARE HEALTHCARE SERVICES, INC., et al, Case No. 2:21-cv-05076-EAS-KAJ (S.D. Ohio), the Hon. Judge Edmund A. Sargus, Jr. entered an order denying the Defendant's motion to stay. -- The Case remains open on the Court's docket. -- Further, even if Defendants win the Americare Challenge in the Western District of Pennsylvania, Defendants will still need to convince this Court that the 2013 Rule is invalid. -- The Americare Challenge contests only the regulatory provision that states that third-party agencies (as opposed to individuals or families who employ home care workers directly) cannot claim the companionship services or live-in domestic service employee exemptions from FLSA requirements. The Plaintiff Martin J. Walsh, Secretary of Labor, United States Department of Labor, filed this action against Americare and Dilli Adhikari, the owner of Americare. The Secretary alleges in his Amended Complaint that Defendants operate a domestic homecare business and that they willfully failed to pay overtime premium pay to their employees employed as direct care workers (DCWs) or caregivers in violation of the Fair Labor Standards Act of 1938, as amended (FLSA). The Amended Complaint further alleges Defendants violated the FLSA overtime provisions by paying DCWs at straight regular rates for overtime hours worked and manipulating employees' hourly rates by reducing such rates in workweeks in which DCWs worked overtime such that the DCWs always received the equivalent of their typical straight hourly rates instead of a bona fide overtime premium rate. A copy of the Court's order dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/445ip2u at no extra charge.[CC] ARBORWORKS LLC: Class Cert Bid Filing Extended to August 28, 2024 ----------------------------------------------------------------- In the class action lawsuit captioned as RAMON TOVAR GONZALEZ, an individual, on behalf of himself, and on behalf of all others similarly situated, v. ARBORWORKS, LLC, a California Limited Liability Company; and DOES 1 TO 50, Case No. 1:22-cv-01030-ADA-SKO (E.D. Cal.), the Hon. Judge Sheila K. Oberto entered an order granting joint stipulation to extend deadline to file motion for class certification as follows: -- The Parties' deadline to complete Class July 23, 2024 Certification Discovery is extended to: -- Plaintiff's deadline to file his motion Aug. 28, 2024 for class certification is extended to: -- Any opposition by Defendant to motion Sept. 25, 2024 for class certification is extended to: -- Any reply by Plaintiff in support of Oct. 23, 2024 motion for class certification is extended to: -- The motion for class certification shall Nov. 20, 2024 be heard on: ArborWorks is a professional tree care firm that specializes in Utility Line Clearance and Vegetation Management across the West Coast. A copy of the Court's order dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/446syMf at no extra charge.[CC] The Plaintiff is represented by: Jonathan Melmed, Esq. Meghan Higday, Esq. MELMED LAW GROUP P.C. 1801 Century Park East, Suite 850 Los Angeles, CA 90067 Telephone: (310) 824-3828 Facsimile: (310) 862-6851 E-mail: jm@melmedlaw.com mh@melmedlaw.com The Defendants are represented by: Greg S. Labate, Esq. Keahn N. Morris, Esq. Gal Gressel, Esq. Nina Montazeri, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 650 Town Center Drive, 10th Floor Costa Mesa, CA 92626 Telephone: (714) 513-5100 Facsimile: (714) 513-5130 E-mail: glabate@sheppardmullin.com kmorris@sheppardmullin.com ggressel@sheppardmullin.com nmontazeri@sheppardmullin.com ARIZONA: District Court Grants Bid for Clarification in Carson Suit ------------------------------------------------------------------- In the lawsuit styled Phillip Lee Carson, Plaintiff v. Unknown Parties, Defendant, Case No. CV-23-01379-PHX-ROS (CDB) (D. Ariz.), Senior District Judge Roslyn O. Silver of the U.S. District Court for the District of Arizona, Judge Silver rules that the Plaintiff's Motion for Clarification is granted to the extent set forth in the order. Plaintiff Phillip Lee Carson, who is confined in the Arizona State Prison Complex-Eyman, has filed a Motion for Clarification of the July 14, 2023 Notice of Assignment in this matter. On June 29, 2023, the Plaintiff filed a "Notice to Court Via Class Action Members Emergency ("911") at Court's Order" in Jensen v. Thornell, CV-12-00601-PHX-ROS (D. Ariz.), a class action lawsuit. In a July 10, 2023 Order, Senior District Judge Roslyn O. Silver directed the Clerk of Court to file the Notice as a new civil action. That same day, the Clerk of Court opened a new case, and the Plaintiff's Notice was filed as a civil rights Complaint pursuant to 42 U.S.C. Section 1983 (the "Complaint"). In a July 19, 2023 Order, the Court dismissed the Complaint with leave to amend and gave the Plaintiff 30 days to (1) file an amended complaint on a Court-approved form, and (2) either pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis. In his Motion for Clarification, the Plaintiff objects to the Court construing the Notice he filed in Jensen as a civil rights Complaint and opening a new case without his consent. He states that the Court in Jensen ruled in favor of the class members, and in his Notice, he requested that the legal monitors in that case help look into violations against him. The Plaintiff states that he did not file a new complaint, and he has not exhausted administrative remedies under the Prison Litigation Reform Act (PLRA). He states that he did not pay for a new case and does not have the money to pay for one, he does not know all the names of the parties, who are in violation of the Court's Order in Jensen, and he requested that the legal monitors "help look into the violations," so that the Court, not the Plaintiff, could address the violations. The Plaintiff asks whether he must file a motion to voluntarily dismiss this case due to the Clerk of Court's "error," and if so, whether he will be assessed a strike under the PLRA. The Court will grant the Plaintiff's Motion for Clarification to the extent set forth here. To the extent that the Plaintiff seeks any other relief, it will be denied. Although the Plaintiff is a member of the class in Jensen, he may not contact the Court directly, and he cannot assert his own individual claims in Jensen, Judge Silver opines. Rather, to obtain specific relief, the Plaintiff must file his own lawsuit. The Court in Jensen previously instructed unnamed class members, such as the Plaintiff, to file individual actions to challenge their own healthcare. The Plaintiff refers to the Court's April 7, 2023 Order and Permanent Injunction in Jensen. To date, Judge Silver notes, the mechanism for prisoners to submit information to the monitors is in process but not yet active. When it becomes active, the Plaintiff may then provide information to the legal monitors in Jensen. The Plaintiff must not file further notices or other documents in Jensen, Judge Silver points out. If the Plaintiff takes no further action in this case, Judge Silver says the case will be dismissed without prejudice and without accruing a strike after the time in which to file an amended complaint and Application to Proceed In Forma Pauperis has elapsed. Alternatively, the Plaintiff may file a notice of voluntary dismissal under Rule 41(a)(1) of the Federal Rules of Civil Procedure. If the Plaintiff files a notice of voluntary dismissal, the case will also be dismissed without prejudice and without accruing a strike. If the Plaintiff wishes to proceed with this case but is unable to pay the filing fee, Judge Silver reminds that he must file an Application to Proceed In Forma Pauperis. If granted, the filing fee will be collected incrementally only when he has funds in his inmate trust account. If he has no funds in his trust account, no fees will be collected. If the Plaintiff decides to proceed with this case and he both files an Application to Proceed In Forma Pauperis and an amended complaint, he will be assessed the filing fee and may accrue a strike if this case is later dismissed pursuant to 28 U.S.C. Section 1915(e)(2). Judge Silver rules that the Plaintiff's Motion for Clarification is granted to the extent set forth here. In all other respects, the Motion is denied. A full-text copy of the Court's Order dated July 27, 2023, is available at https://tinyurl.com/45xve5s3 from Leagle.com. ARKANSAS: Arkansas Voter Suit Remanded to Pulaski County Cir. Court ------------------------------------------------------------------- In the case, ARKANSAS VOTER INTEGRITY INITIATIVE, INC., CONRAD REYNOLDS and DONNIE SCROGGINS, Plaintiffs v. JOHN THURSTON, in his official capacity As ARKANSAS SECRETARY OF STATE, The ARKANSAS STATE BOARD OF ELECTION COMMISSIONERS, in its Official capacity, and ELECTION SYSTEMS AND SOFTWARE, LLC, Defendants, Case No. 4:23CV00479-JM (E.D. Ark.), Judge James M. Moody, Jr., of the U.S. District Court for the Eastern District of Arkansas, Central Division, grants the Plaintiffs' motions for expedited review and to remand. The Plaintiffs' complaint was originally filed in the Circuit Court of Pulaski County, Arkansas on Dec. 19, 2022. On May 4, 2023, the Plaintiffs filed an amended complaint naming two additional plaintiffs. The Amended Complaint alleges the following causes of action: (1) Declaratory Judgment pertaining to state law; (2) Declaratory Judgment pertaining to the Help America Vote Act of 2022, 52 U.S.C. Sections 20901, et seq., ("HAVA"), (3) Illegal exaction, (4) violation of the Arkansas Deceptive Trade Practices Act, (5) Fraud, and (6) Injunctive relief. The Defendants removed the action to this Court on May 24, 2023 on the basis of federal question jurisdiction. The Plaintiffs have filed a motion to remand, and a motion for expedited consideration. The Plaintiffs' amended complaint seeks a declaratory judgment that the voting machines currently approved by the Secretary of State and the State Board of Election Commissioners fail to comply with state and federal law. The suit seeks class action status as to an alleged illegal exaction, violation of the Arkansas Deceptive Trade Practices Act and fraud claims. The Plaintiffs seek reimbursement to the taxpayers of Arkansas for the illegally spent tax dollars; damages and punitive damages against ESS for violation of the Arkansas Deceptive Trade Practices Act and for fraudulent conduct, and temporary and permanent injunctive relief to prevent the use of ESS machines as they are currently configured. The Plaintiffs allege that ESS manufactures the ExpressVote electronic voting device and DS200 electronic tabulator currently used in Arkansas for elections in every county. Plaintiffs claim all ESS machines are serviced through a contract with the State and counties. They assert that the ExpressVote and DS200 do not comply with Arkansas law or the Help America Vote Act of 2002 because the voter cannot independently verify the votes selected by the voter on the ballot prior to being cast by the voter. The Defendants removed the case to this Court on May 24, 2023 arguing that federal question jurisdiction exists. The Plaintiffs seek a remand arguing that the amended complaint does not contain a substantial federal question and instead contains only state law claims. They argue that the only federal implication in the Amended Complaint is a declaratory judgment that the ESS voting machines, as configured and approved for use in Arkansas elections, do not comply with HAVA or state statute. The Defendants removed the case to this Court based on federal question jurisdiction. Federal question jurisdiction can be established in two ways: 1) if the plaintiffs plead a cause of action created by federal law; or 2) if plaintiffs' state-law claims implicate significant federal issues because the claims recognized under state law nonetheless turn on substantial questions of federal law, citing Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 312 (2005). Under the second test, known as the Grable doctrine, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Applying the Grable factors to this case, Judge Moody finds that the case does not fall within the "special and small category of cases" in which a federal question arises from a complaint alleging state law claims. First, the Plaintiffs request for declaratory relief finding that the ESS voting machines fail to comply with HAVA does not expand the court's federal jurisdiction. Additionally, in this case, where there is no private right of action to enforce HAVA, the Plaintiffs' state law claims which incorporate a federal standard do not sufficiently support federal question jurisdiction. For these reasons, the Plaintiffs' motions for expedited review and to remand are granted. The Clerk is directed to transfer the case back to the Circuit Court of Pulaski County, Arkansas forthwith. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/bde66m47 from Leagle.com. ASPYR MEDIA INC: Mickelonis Files Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been filed against Aspyr Media, Inc., et al. The case is styled as Malachi Mickelonis, individually and on behalf of all others similarly situated v. Aspyr Media, Inc., Saber Interactive, Inc., Does 1-5, Case No. 8:23-cv-01220-FWS-ADS (C.D. Cal., July 8, 2023). The nature of suit is stated as Other Fraud. Aspyr Media, Inc. -- http://www.aspyr.com/-- is an American video game developer and publisher founded by Michael Rogers and Ted Staloch in Austin, Texas.[BN] The Plaintiff is represented by: Alan H Kang, Esq. AK LAW, ACPC 333 City Boulevard West, 17th Floor Orange, CA 92868 Phone: (714) 388-6937 Fax: (714) 820-1099 Email: alan@aklawsc.com BAPTIST HEALTH: Fails to Pay OT Wages Under FLSA, Webb Suit Alleges ------------------------------------------------------------------- OPHELIA WEBB and YOLANDA BLOUNT, each individually and on behalf of all others similarly situated v. BAPTIST HEALTH SYSTEM, INC., BAPTIST MEDICAL CENTER OF THE BEACHES, INC., BAPTIST MEDICAL CENTER OF NASSAU, INC., BAPTIST MEDICAL CENTER OF CLAY, INC., SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC. and BAPTIST HEALTH SYSTEM FOUNDATION, INC, Case No. 3:23-cv-00898 (M.D. Fla., Aug. 1, 2023) seeks to recover overtime wages, pursuant to the Fair Labor Standards Act. In December 2021, Kronos, the timekeeping system implemented by Defendants, was hacked and became inoperable. Kronos functions were restored in March of 2022. During the Kronos blackout, the Plaintiffs received the same amount of pay from week to week regardless of how many hours they worked. When the Plaintiffs worked hours over 40 during the Kronos blackout, they did not receive 1.5 times their regular hourly rate for those hours, the Plaintiff claims. The Plaintiffs seek declaratory judgment, monetary damages, liquidated damages, costs, and a reasonable attorneys' fee. Plaintiffs Webb and Blount were employed by the Defendant as hourly-paid Mental Health Evaluators from June of 2021 until August of 2022 and from January of 2022 until the present, respectively. Baptist Health System is a hospital and medical facility system located in San Antonio, Texas.[BN] The Plaintiffs are represented by: Carlos Leach, Esq. Edward Wimp, Esq. THE LEACH FIRM, PA 1560 N. Orange Ave., Suite 600 Winter Park, FL 32789 Telephone: (844) 722-7567 E-mail: cleach@theleachfirm.com ewimp@theleachfirm.com - and - Sean Short, Esq. SANFORD LAW FIRM, PLLC Kirkpatrick Plaza 10800 Financial Centre Pkwy, Suite 510 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: sean@sanfordlawfirm.com BLUE DIAMOND: Faces Rhodes Class Suit Over Almonds' False Ads ------------------------------------------------------------- GARRETT RHODES, individually and on behalf of all others similarly situated v. BLUE DIAMOND GROWERS, a Cooperative, Case No. 5:23-cv-01012-LCB (N.D. Ala., Aug. 1, 2023) alleges that the Defendant's almonds are represented as processed in a smokehouse, even though they are not. The Defendant's product contains liquid smoke flavoring, which must be disclosed to consumers on the front label which it fails to do. The front label representations include pictures of what appear to be smoked almonds, the name of "Blue Diamond Almonds" and the descriptive word, "Smokehouse." These representations obviously are touting the almonds as having been enhanced by being naturally processed in a smokehouse, the Plaintiff claims. The Plaintiff and the classes relied on the words, terms coloring, descriptions, layout, packaging, and/or images on the Product's labeling, statements, omissions, claims, and instructions, made by the Defendant or at its direction. The Plaintiff and the classes paid more for the Product than they would have if the Plaintiff and the classes had known such was not enhanced in a smokehouse or with any real smoke but would have paid less or not purchased same at all. The Product was worth less than what the Plaintiff paid, and he would not have paid as much absent the Defendant's false and misleading statements and omissions, says the Plaintiff. Plaintiff Rhodes, for himself and on behalf of the class and subclass, brings this action under the consumer protection statutes of the Alabama Deceptive Trade Practices Act, California Consumers Legal Remedies Act, Florida Deceptive and Unfair Trade Practices Act, Illinois Consumer Fraud and Deceptive Business Practices Act, and Missouri Merchandising Practices Act. The Plaintiff intends to, seeks to, and will purchase the Product again when he can do so with the assurance the Product's representations are consistent with its abilities, attributes, and/or composition; i.e. such would truly be processed in a smokehouse. The Defendant is a cooperative of almond growers.[BN] The Plaintiff is represented by: Charles M. Thompson, Esq. CHARLES M. THOMPSON, P.C. 101 Mohawk Drive Trussville, AL 35173 Telephone: (205) 995-0068 Facsimile: (866) 610-1650 E-mail: cmtlaw@aol.com BMW OF NORTH AMERICA: Wins Bid for Judgment on Pleadings in Hurst ----------------------------------------------------------------- In the case, BRIAN HURST, individually and on behalf of all others similarly situated, Plaintiff v. BMW OF NORTH AMERICA LLC, Defendant, Civil Action No. 22-3928 (SDW) (AME) (D.N.J.), Judge Susan D. Wigenton of the U.S. District Court for the District of New Jersey grants BMW NA's Motion for Judgment on the Pleadings. Before the Court is BMW NA's Motion for Judgment on the Pleadings of Brian Hurst's Class Action Complaint, pursuant to Federal Rule of Civil Procedure 12(c). Jurisdiction and venue are proper pursuant to 28 U.S.C. Sections 1332(d)(2) and 1391, respectively. The Plaintiff is a New Jersey resident. The Defendant is a subsidiary of the automobile manufacturer Bayerische Motoren Werke Aktiengesellschaft ("BMW AG"), incorporated in Delaware, with a principal place of business in New Jersey from where it conducts United States activities including marketing, warranty operations, and consumer relations. In October 2018, the Plaintiff purchased a certified pre-owned 2015 BMW i3 with Range Extender ("i3 REx") from an authorized New Jersey BMW dealer. At the time of purchase, his i3 REx was still under the manufacturer's new vehicle warranty and it had 23,261 miles on it. The BMW i3 REx is an electric vehicle equipped with a gasoline engine that extends the driving range beyond what can be reached with an electric battery alone, and it costs $3850 more than the purely electric i3. It has a lower all-electric range than a purely electric i3, because of the added weight of this extra gasoline engine. In advertising the i3 REx and other i3 model electric vehicles (collectively, the "Class Vehicles"), the Defendant did not disclose, concealed, or misrepresented, the Class Vehicles' real-world cold weather ranges, and only provided vehicle range figures from testing in optimal conditions. The Plaintiff purchased the Vehicle in large part because of the Defendant's advertisements stating that the i3 REx had a range of 80 miles on battery only and 150 miles with the range extender. A window sticker on the Vehicle similarly indicated that its electric battery mileage range was 72 miles. However, the Plaintiff was only able to travel 39 miles on a fully charged battery in winter months. The Vehicle's dashboard display indicated an electric range of less than 50 miles during cold weather, even after it was fully charged, and indicated a decline of 10 more miles after driving 1 to 2 miles. The Defendant misrepresented the Vehicle and Class Vehicles' driving ranges in the following advertisements and printed materials. First, the window sticker indicated that the Plaintiff's Vehicle had a range of 72 miles on electric alone. Second, a page on the Nalley BMW dealership's website, which the Plaintiff viewed and relied upon prior to buying his vehicle, states that the range of a BMW i3 with Range Extender is 150 miles. Third, the i3 Owner's Manual stated that the range "can be abruptly reduced" by, inter alia, "climate and terrain conditions" without disclosing the dramatic reduction in range caused by cold weather—a reduction of more than 50% in the case of the Plaintiff's Vehicle. Fourth, a Service and Warranty Information pamphlet set forth the wrong range and failed to inform buyers that cold weather would significantly reduce the range. Fifth, in two promotional YouTube videos from 2011 and 2013, BMW representatives boasted that the range extender doubled the range of the i3 and that the range was 100 miles. In the 2011 video, the speaker was a Manager of Electric Vehicle Operations and Strategy for BMW NA, and in the 2013 video, the speaker was the Head of Electric Vehicle Operations and Strategy for BMW NA. In addition to these advertisements, several of the Defendant's sales representatives directly reassured Plaintiff that cold weather does not significantly, if at all, decrease the electric range of the i3. The Plaintiff contacted various BMW dealerships around the country to inquire about how outdoor temperatures affected the i3, and several representatives responded assuring him that cold weather does not affect the range, while others stated that it affects performance "a bit" but not significantly. The Defendant knew prior to the date it introduced Class Vehicles into the U.S. market that cold weather severely diminishes the Class Vehicles' driving range and that the Class Vehicles would not attain the ranges indicated in advertising or promotional material. It maintains cold weather testing sites in Sweden and elsewhere to test the effects of cold weather on its vehicles' performance. It also carefully monitors online forums in which customers have complained about Class Vehicles' reduced range in winter. Moreover, the Defendant distributed internally -- but did not disclose to consumers -- a dealer training chart titled "Real-World Electric Range Experience" which shows that cold weather diminishes driving ranges for electric and hybrid vehicles. The Plaintiff notified the Defendant of the significantly lower than advertised range and was told to bring his vehicle to an authorized service center for diagnostic testing, which he did on Feb. 18, 2021. The BMW technician fully charged the car batteries at room temperature, but the vehicle still indicated a range of only 55 miles. The technician informed the Plaintiff that there were no flaws found in his battery during testing, but that the cold weather reduced the Vehicle's range and that storing the car outside in 15-20 degree weather would result in the range dropping down to almost nothing. Thus, he learned of the false representations giving rise to his claims in February 2021. The Plaintiff would not have purchased the Vehicle, or would have paid less for it, had he known that cold weather severely decreases its driving range. Because the Vehicle has a significantly shorter ranger than Defendant advertised, the Plaintiff has used the car only half as much as he intended to, and he was unable to use the car for its intended purpose -- his wife's commute of approximately 50 miles round trip. He has also paid more for gasoline, and his car has less resale value. The Plaintiff filed the putative class action on June 15, 2022 on behalf of himself and similarly situated individuals who have owned or leased a Class Vehicle. The Complaint asserts the following claims: breach of express warranties under UCC Section 2-313 (Count I); breach of an implied warranty of merchantability under UCC Section 2-314 (Count II); employment of unconscionable commercial practices in violation of the New Jersey Consumer Fraud Act ("NJCFA"), N.J. Stat. Ann. Sections 56:8-2 et seq. (Count IV); negligent misrepresentation (Count V); and unjust enrichment (Count VI). The Defendant filed the instant motion for judgment on the pleadings on Dec. 27, 2022, along with a request for judicial notice, and the parties have completed briefing. On April 26, 2023, the Defendant filed a notice of supplemental authority to which the Plaintiff has responded. The Plaintiff asserts in Counts I, V, and VI that the Defendant breached an express warranty created in part by the window sticker, negligently misrepresented Class Vehicle ranges in the window sticker, and was unjustly enriched in part due to the window sticker's misrepresentations. These claims are expressly and impliedly preempted. Judge Wigenton opines that to the extent the Plaintiff argues that the Defendant was required to list a lower, "real-world" driving range on the window sticker, that claim is also expressly preempted by 49 U.S.C. Section 32919. The Plaintiff's claims based on the window sticker are also preempted under principles of conflict preemption, which is implicated when a state law would stand as an obstacle to the accomplishment of the full purposes and objectives of Congress. In Count I, the Plaintiff asserts that the Defendant breached an express warranty, made in its advertising, that the Vehicle would attain a certain range. Judge Wigenton holds that although the Plaintiff alleges some misleading advertisements and statements about BMW i3s, they did not plausibly form part of his "bargain for the product," or decision to purchase his Vehicle, because he fails to allege any specific statement that was made prior to the purchase of his vehicle, by the Defendant, and regarding a 2015 BMW i3 REx. The allegations fall far short of demonstrating that the Defendant made an express warranty to the Plaintiff at or before the time he purchased his Vehicle. In Count II, the Plaintiff asserts that Defendant breached an implied warranty of merchantability because his Vehicle was defective with respect to battery performance in cold weather and unfit for the ordinary purposes for which passenger vehicles are used because of those defects. Judge Wigenton opines that although the Plaintiff alleges in Count II that his battery was defective and his Vehicle was unfit for use, those allegations are belied by other assertions in the Complaint. The Plaintiff alleges that, upon inspection in February 2021, no defects were found with his Vehicle's battery. Moreover, although he alleges that he was not able to use the car for a specific intended purpose his Complaint makes plain that he was able to, and in fact did, use the car for the ordinary purpose for which cars are used generally, which is transportation. The Plaintiff concedes that he drove the Vehicle for more than 20,000 miles over at least two years. In Count IV, the Plaintiff asserts that the Defendant breached the NJCFA by misrepresenting and omitting information regarding the effects of cold weather on his Vehicle's driving range. In Count V, he alleges that the Defendant's advertisements amounted to negligent or reckless misrepresentations. As noted above with respect to Count I, the Plaintiff has not sufficiently alleged any misleading advertisements or statements made by the Defendant, that he viewed prior to purchasing his used Vehicle in 2018, which were about the particular vehicle model that he purchased. His claim that the Service and Warranty Information pamphlet contained an "incorrect" range is not pleaded with the specificity required by Rule 9(b). Accordingly, Judge Wigenton opines that the Plaintiff has failed to plausibly allege that he justifiably relied on any specific misrepresentation by the Defendant, or that it acted unlawfully in any manner that caused him an ascertainable loss. In Count VI, the Plaintiff asserts that Defendant was unjustly enriched through its wrongful acts alleged in the previous Counts. Judge Wigenton opines that the Plaintiff has not sufficiently alleged that the Defendant received a financial benefit from him. He alleges that he purchased the Vehicle from an unidentified "authorized New Jersey BMW dealer," so it appears that this dealership was enriched by his purchase, and not Defendant, particularly given that it was a pre-owned vehicle. Even if the Court accepts as true that the Defendant was enriched when the Plaintiff purchased a used car from a BMW dealership, the Plaintiff has failed to show that any benefit the Defendant received was unjust. This claim is predicated on the wrongful acts alleged in the previous counts which are insufficient to show that the Defendant acted unlawfully in advertising his Vehicle. For the foregoing reasons, Judge Wigenton grants the Defendant's Motion for Judgment on the Pleadings and dismisses without prejudice the Plaintiff's Complaint. The Plaintiff will have 30 days to file an Amended Complaint. An appropriate order follows. A full-text copy of the Court's July 26, 2023 Opinion is available at https://tinyurl.com/5n7zas7f from Leagle.com. CANOPY GROWTH: Turpel Files Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against Canopy Growth Corporation, et al. The case is styled as Columbus Allen, Jr., individually and on behalf of all others similarly situated v. Canopy Growth Corporation, David Klein, and Judy Hong, Case No. 2:23-cv-02352-NJB-MBN (S.D.N.Y., July 9, 2023). The nature of suit is stated as Insurance for Insurance Contract. Canopy Growth Corporation -- http://www.canopygrowth.com/-- formerly Tweed Marijuana Inc., is a cannabis company based in Smiths Falls, Ontario.[BN] The Plaintiff appears pro se. The Defendants are represented by: Alexander C Drylewski, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Manhattan West New York, NY 10001-8602 Phone: (212) 735-2129 Email: alexander.drylewski@skadden.com - and - Rene H. Dubois, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP (MA) 500 Boylston Street Boston, MA 02116 Phone: (617) 573-4869 Email: rene.dubois@skadden.com CASA TUA: Fails to Properly Pay Restaurant Staff, Silva Alleges --------------------------------------------------------------- RUTH B. SILVA, individually and on behalf of all others similarly situated, Plaintiff v. CASA TUA CUCINA (MIAMI) ASSOCIATES LLC, Defendant, Case No. 1:23-cv-22862 (S.D. Fla., July 31, 2023) is a class action against the Defendant for failure to pay overtime wages and failure to pay minimum wages in violation of the Fair Labor Standards Act of 1938. The Plaintiff was employed by the Defendant at its restaurant as a non-exempted, full-time dishwasher and kitchen employee, from on or about August 15, 2020 through approximately April 15, 2021. Casa Tua Cucina (Miami) Associates LLC is an operator of Italian restaurant/bar located at 70 SW 7th St., Miami, Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, PA. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com CHEGG INC: Can Compel Arbitration in Moyer Suit; Litigation Stayed ------------------------------------------------------------------ In the case, SHERI MOYER, individually and on behalf of all others similarly situated, Plaintiff v. CHEGG, INC., a Delaware corporation; and DOES 1 to 10, inclusive, Defendants, Case No. 22-cv-09123-JSW (N.D. Cal.), Judge Jeffrey S. White of the U.S. District Court for the Northern District of California grants Chegg's motion to compel arbitration and stays all further litigation pending the completion of arbitration. Chegg is a leading online learning platform that provides students with educational materials, including textbooks for sale or rent. Since 2016, to use Chegg's services, a user must create a Chegg account and agree to Chegg's Terms of Use ("TOUs") by clicking the "Create account" button. Chegg makes its TOUs available to its users on its "Create an account" pop-up screen. The first page of Chegg's TOUs also contains an "ARBITRATION NOTICE." The notice contains a class action waiver in bold and all-caps. Chegg allows users to "opt out of arbitration" by providing written notice to Chegg within 30 days of first receiving the TOUs. The "Dispute Resolution" section of the TOUs states, "If you do not provide Chegg with an Arbitration Opt-out Notice within this thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute in court except as expressly set forth with respect to individual actions in small claims courts." The American Arbitration Association's ("AAA") rules, including the AAA's "Commercial Arbitration Rules," are incorporated into the Arbitration Agreement. The AAA rules are not provided in the arbitration agreement but are accessible on the AAA's website, www.adr.org. On Aug. 29, 2022, Moyer purchased an "e-textbook" from Chegg's website, www.chegg.com. She alleges after her "e-textbook" purchase, Chegg enrolled her into an automatic renewal subscription that charged her $19.99 on Oct. 17, 2022. The Plaintiff alleges she was unknowingly enrolled in Chegg's "e-textbook" automatic renewal and continuous service offer in violation of California Consumer Legal Remedies Act, California Civil Code section 1750 et seq., and California's Unfair Competition Law, California Business and Professions Code section 17200, et seq. The Plaintiff brings the case on behalf of herself, and all persons similarly situated. She seeks certification of the following class, "All persons in the United States who purchased a product or service from Chegg as part of an automatic renewal plan or continuous service offer within the four years prior to the filing of this Complaint." Chegg now moves the Court to compel the Plaintiff to arbitrate her claims. Pursuant to the Federal Arbitration Act, arbitration agreements will be valid, irrevocable, and enforceable, save upon such grounds that exist at law or in equity for the revocation of any contract. The parties do not dispute that Chegg's arbitration agreement, should it be found enforceable, encompasses the Plaintiff's claims. The issue is whether a valid arbitration agreement exists. Chegg argues the Court must compel arbitration because the Arbitration Agreement delegates arbitrability disputes to the arbitrator and incorporates the AAA's Commercial Arbitration Rules. The Plaintiff disagrees. She asserts that before the Court can assess whether these issues were properly delegated, the Court must determine if an arbitration agreement exists. The Plaintiff contends no such agreement exists because (1) Chegg did not put her on inquiry notice of its Arbitration Agreement and (2) she did not unambiguously manifest her assent to arbitration. Judge White holds that that it is for a court to decide whether an arbitration agreement exists even where a delegation provision submits this issue to an arbitrator. Based on the evidence submitted, he finds no genuine issue of fact concerning the Plaintiff's assent to Chegg's TOUs. The "Create an account" screenshot submitted by Chegg demonstrates that the Plaintiff must have clicked "Create account" even if using the Google icon option. The Plaintiff's sole reliance upon her declaration does not dictate otherwise. Judge White concludes the Plaintiff received constructive notice of the arbitration agreement and assented to its terms by clicking the "Create account" button when she created her Chegg account. Accordingly, an arbitration agreement exists between the Plaintiff and Chegg. For these reasons, Judge White grants Chegg's motion to compel arbitration and stays all further litigation pending completion of arbitration. The parties will file a joint status report every 180 days apprising the Court of the status of the arbitration proceedings, including when the stay may be lifted. The parties will alert the Court within five court days of the completion of arbitration. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/2f22yd8c from Leagle.com. CHRISTIAN DIOR: Loses Bid for Attys.' Fees in Warmack-Stillwell --------------------------------------------------------------- Judge Elaine E. Bucklo of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies the Defendant's motion for attorneys' fees in the lawsuit entitled Delma Warmack-Stillwell, on behalf of herself and all others similarly situated, Plaintiff v. Christian Dior, Inc., Defendant, Case No. 22 C 4633 (N.D. Ill.). Judge Bucklo previously dismissed this putative class action based on an exemption in the statute under which Plaintiff Delma Warmack-Stillwell sued, the Illinois Biometric Information Privacy Act ("BIPA"). That decision and the resulting judgment in favor of Defendant Christian Dior, Inc. are currently on appeal at the Seventh Circuit (Warmack-Stillwell v. Christian Dior, Inc., No. 23-1468 (7th Cir.)). Dior now moves for an award of attorneys' fees. The parties disagree on two main issues. First, whether BIPA ever permits an award of attorneys' fees to the Defendants. Second, if so, whether they should be awarded in this case. Judge Bucklo finds it unnecessary to resolve the first issue because, even assuming the Defendants may recover attorneys' fees under BIPA generally, they are not warranted here. All agree that, because BIPA says the Court "may" award attorneys' fees, that award is within the trial court's discretion. Warmack-Stillwell contends that Dior may not recover attorneys' fees here because it has failed to make the threshold showing that she acted in bad faith. Dior responds that bad faith is not required, but is instead one factor among many that a court should consider. In Krautsack v. Anderson, 861 N.E.2d 633 (Ill. 2006), the Illinois Supreme Court considered a fee provision in a different statute, the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). Because, like BIPA, ICFA states that a prevailing party "may" receive attorneys' fees, the court found that such awards are left to the discretion of the trial court. The court has determined that it "must go beyond the plain language" and "examine the fee-shifting provision in light of the entire statute, keeping in mind the subject the statute addresses, the legislature's apparent objective in adopting the statute, and the evils sought to be remedied." After doing so, the court concluded that an ICFA defendant can secure attorneys' fees only where a plaintiff has acted in bad faith. Similarly, Judge Bucklo says, BIPA gives no indication of the circumstances under which an award of attorneys' fees to a defendant is appropriate. As in Krautsack, Judge Bucklo must consider the overall purpose of the statute to determine whether a threshold showing of the Plaintiff's bad faith is required. Judge Bucklo concludes it is. Contrary to Dior's argument, nothing in the Illinois Supreme Court's recent Cothron decision demands a different result, Judge Bucklo opines, citing Cothron v. White Castle Sys., Inc., ___ N.E.3d ___, 2023 WL 4567389 (Ill. Feb. 17, 2023). There, the court reiterated well-trodden rules of statutory interpretation, such as that courts may not "create new elements or limitations not included by the legislature." Having performed the analysis required by Krautsack, Judge Bucklo says she has no trouble concluding that attorneys' fees are not available to prevailing BIPA defendants absent a showing of bad faith--to the extent BIPA allows them to recover attorneys' fees at all. According to Judge Bucklo, Dior has failed to demonstrate bad faith here. Though at the time Warmack-Stillwell filed her complaint, one court had found that virtual try-on tools used for prescription glasses, as well as nonprescription sunglasses, fell under BIPA's healthcare exemption, and another court agreed shortly after she filed suit, those decisions are not binding. Neither the Seventh Circuit nor the Illinois Supreme Court has expressed guidance on the matter, so it was not unreasonable for the Plaintiff to pursue her case. Nor does it matter that, in Clements v. Gunnar Optiks, LLC, No. 1:22-cv-4634 (N.D. Ill.)--a case similar to this one and brought by the Plaintiff's counsel--the plaintiff opted to stay the case pending appeal of Svoboda, an appeal that has since been dismissed pursuant to a joint stipulation (Svoboda v. Frames for Am., No. 22-2781 (7th Cir. Apr. 5, 2023)). As the Plaintiff aptly observes, Judge Bucklo says attorneys serve clients, and clients may pursue different litigation strategies for a variety of reasons. For these reasons, Dior's motion for attorneys' fees is denied. A full-text copy of the Court's Memorandum Opinion and Order dated July 27, 2023, is available at https://tinyurl.com/2p86m2rt from Leagle.com. CLOROX COMPANY: Swetz Seeks Initial OK of Class Settlement ---------------------------------------------------------- In the class action lawsuit captioned as Bryan Swetz, v. The Clorox Company, Case No. 7:22-cv-09374-PMH (S.D.N.Y.), the Plaintiffs move the Court pursuant to Federal Rule of Civil Procedure 23(e), for an Order: 1) preliminarily approving this proposed class action settlement; 2) preliminarily certifying the class for settlement purposes; and 3) granting approval of the proposed notice plan. Clorox is an American global manufacturer and marketer of consumer and professional products. A copy of the Plaintiffs' motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/45oqyQv at no extra charge.[CC] The Plaintiff is represented by: Jason P. Sultzer, Esq. Jeremy Francis, Esq. THE SULTZER LAW GROUP P.C. 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12061 Telephone: (845) 483-7100 Facsimile: (888) 749-7747 E-mail: sultzerj@thesultzerlawgroup.com francisj@thesultzerlawgroup.com - and - Charles E. Schaffer, Esq. David C. Magagna Jr., Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 E-mail: cschaffer@lfsblaw.com dmagagna@lfsblaw.com - and - Jeffrey K. Brown, Esq. LEEDS BROWN LAW, P.C. 1 Old Country Rd., Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 E-mail: jbrown@leedsbrownlaw.com - and - Stephen J. Fearon, Jr., Esq. Paul Sweeny, Esq. SQUITIERI & FEARON, LLP 305 Broadway, 7th Floor New York, NY 10007 Telephone: (212) 421-6492 Facsimile: (212) 421-6553 E-mail: Stephen@sfclasslaw.com Paul@sfclasslaw.com CLUB 360: Court OK's Golan Class Cert Bid for EFTA Claim -------------------------------------------------------- In the class action lawsuit captioned as EDWIN BAZARGANFARD and BARAK GOLAN, on behalf of themselves and all others similarly situated, v. CLUB 360 LLC et al., Case No. 2:21-cv-02272-CBM-PLA (C.D. Cal.), the Hon. Judge Consuelo B. Marshall entered an order: -- Granting Plaintiff Golan's motion for class certification as to his Electronic Funds Transfer Act (EFTA) claim for monetary relief; and -- Denying the Motion for Class Certification as to any claim for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2). The concentration of litigation regarding the $9.99 amount club members charged by Defendants during the pandemic closures without preauthorization favors a class action in this forum. Accordingly, Golan demonstrates the requirements for class certification are satisfied under Federal Rules of Civil Procedure 23(a) and 23(b)(3) as to his EFTA claim for monetary relief. The putative class action arises from an allegedly unauthorized $9.99 fee electronically transferred from members' bank accounts while Defendants' health clubs were closed due to state and local health orders regarding the COVID-19 pandemic. On October 28, 2022, following various motion practice, the Plaintiff filed a Second Amended Complaint (SAC) naming Club 360 LLC, ABC Financial Services, LLC, Jehangir Meher, Valley Gym Corp., North Hollywood Fitness LLC, and Van Nuys Fitness Center LLC as Defendants, and asserting the following two causes of action: (1) violations of EFTA by Plaintiff Golan and on behalf of the EFTA class; and (2) violations of the Unfair Competition Law (UCL) under the Unfair and Unlawful prongs by both Plaintiffs and the UCL class. A copy of the Court's order dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/45p7odr at no extra charge.[CC] COAST DENTAL: Tenbrock Suit Seeks Unpaid OT for Office Managers --------------------------------------------------------------- ERICA TENBROCK, individually and on behalf of all others similarly situated, Plaintiff v. COAST DENTAL SERVICES, LLC and INTELIDENT SOLUTIONS, LLC, Defendants, Case No. CACE-23-016309 (Fla. Cir. Ct., 17th Jud. Cir., Broward Cty., July 31, 2023) is a class action against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Plaintiff was employed by the Defendants as an office manager. Coast Dental Services, LLC is a general dentistry services provider headquartered in Florida. Intelident Solutions, LLC is a dental technology and services company headquartered in Florida. [BN] The Plaintiff is represented by: Gregg I. Shavitz, Esq. Paolo C. Meireles, Esq. Tamra C. Givens, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Road, Suite 285 Boca Raton, FL 33431 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 COGIR MANAGEMENT: Class Cert Bid Filing Continued to March 11, 2024 ------------------------------------------------------------------- In the class action lawsuit captioned as XENIA CESILIA DE ALBA, individually and on behalf of all others similarly situated, v. COGIR MANAGEMENT USA INC.; WELLTOWER COGIR TENANT, LLC; and DOES 1 through 20, inclusive, Case No. 2:22-cv-01568-TLN-AC (E.D. Cal.), the Hon. Judge Troy L. Nunley entered an order granting joint stipulation to continue class certification deadlines as follows: 1. The Deadline to complete Phase 1 discovery is continued from August 11, 2023, to December 11, 2023. 2. The Deadline to designate non-rebuttal experts is continued from September 12, 2023, to January 10, 2024. 3. The Deadline for Plaintiff to file her Motion for Class Certification is continued from November 10, 2023, to March 11, 2024. A copy of the Court's order dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3QEjECC at no extra charge.[CC] COMMUNITY HEALTH: Faces Consolidated Suit Over Data Breach ---------------------------------------------------------- Community Health Systems, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that a number of practically identical purported class action lawsuits were filed against the company in the United States District Court for the Middle District of Tennessee related to the "Fortra" data breach. The latter is a third-party vendor that provides a secure file transfer software platform utilized by the company's subsidiaries, experienced a security breach whereby Protected Health Information of certain patients of its healthcare facilities and certain facilities for which the company performed services were exposed to Fortra's cyber attacker. The first of these cases filed was "Kuffrey v. Community Health Systems, Inc. and CHSPSC, LLC." The individuals filing these cases all sought to represent a purported class of individuals who are alleged victims of the Fortra breach. On May 19, 2023, the District Court consolidated all of these cases into a single case. Community Health Systems is a healthcare provider based in Franklin, Tennessee. COMMUNITY HEALTH: Settlement in Padilla Suit Initially OK'd ----------------------------------------------------------- Community Health Systems, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that a tentative settlement of the case captioned "Caleb Padilla, individually and on behalf of all others similarly situated v. Community Health Systems, Inc., Wayne T. Smith, Larry Cash, and Thomas J. Aaron," filed in the United States District Court for the Middle District of Tennessee on May 30, 2019 was preliminarily approved by the District Court on May 31, 2023. The hearing to determine the court's final approval of the settlement is set for October 13, 2023. Said case seeks class certification on behalf of purchasers of the company's common stock between February 20, 2017 and February 27, 2018 and alleges misleading statements resulted in artificially inflated prices for its common stock. On November 20, 2019, the District Court appointed Arun Bhattacharya and Michael Gaviria as lead plaintiffs in the case. The lead plaintiffs filed a consolidated class complaint on January 21, 2020. The company filed a motion to dismiss the consolidated class complaint on March 23, 2020, and the District Court denied that motion on August 17, 2022. Community Health Systems is a healthcare provider based in Franklin, Tennessee. CONOCOPHILLIPS CO: Shareholder Suit in California Court Ongoing --------------------------------------------------------------- ConocoPhillips Co. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that in July 2021, a federal securities class action was filed against Concho, certain of Concho's officers, and ConocoPhillips as Concho's successor in the United States District Court for the Southern District of Texas. On October 21, 2021, the court issued an order appointing Utah Retirement Systems and the Construction Laborers Pension Trust for Southern California as lead plaintiffs. On January 7, 2022, the lead plaintiffs filed their consolidated complaint alleging that Concho made materially false and misleading statements regarding its business and operations in violation of the federal securities laws and seeking unspecified damages, attorneys' fees, costs, equitable/injunctive relief, and such other relief that may be deemed appropriate. The defendants filed a motion to dismiss the consolidated complaint on March 8, 2022. On June 23, 2023, the court denied defendants' motion as to most defendants including Concho/ConocoPhillips. ConocoPhillips is one of the world's largest independent oil exploration and production companies based on production and proved reserves. CONSUMER ADJUSTMENT: Wins Summary Judgment v. Brittingham --------------------------------------------------------- In the class action lawsuit captioned as DANNY BRITTINGHAM, v. CONSUMER ADJUSTMENT CO., INC., Case No. 1:21-cv-00096-MU (S.D. Ala.), the Hon. Judge Bradley Murray entered an order: 1. Granting the Defendant Consumer Adjustment Company, Inc.'s Motion for Summary Judgment; 2. Denying the Plaintiff Danny Brittingham's Motion to Supplement his Opposition to Defendant's Motion for Summary judgment; and 3. Mooting the Plaintiff's second motion for class certification. On May 1, 2023, Plaintiff filed a Second Motion to Certify Class. The Plaintiff claims that from at least September 1, 2019, through September 30, 2020, CACi's business model mimicked that of Midwest Recovery Systems, LLC, with the collection of bogus debts by reporting them under a false name on the credit reports of Plaintiff and class members. The Plaintiff alleges he and the Class described are victims of this "scheme," as plead in his complaint. Because Plaintiff's complaint has been dismissed in its entirety with the granting of summary judgment in favor of Defendant CACi, Plaintiff's Motion to Certify Class is denied as moot. Consumer Adjustment is a debt collection agency. A copy of the Court's order dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3qm2Dmb at no extra charge.[CC] CORELOGIC CREDCO: Class Cert Bid Filing Extended to Dec. 7 ---------------------------------------------------------- In the class action lawsuit captioned as MARLENE STEINBERG, v. CORELOGIC CREDCO, LLC, Case No. 3:22-cv-00498-H-SBC (S.D. Cal.), the Hon. Judge Marilyn L. Huff entered an order granting the parties' joint motion to extend the pending deadlines by 21 days: -- The Plaintiff must file a motion Aug. 18, 2023 for preliminary approval of class action settlement by: -- The deadline for class certification Oct. 19, 2023 expert designations and disclosures is: -- The deadline for rebuttal class Nov. 20, 2023 certification expert designations and disclosures is: -- The deadline to file a motion for class Dec. 7, 2023 certification is: -- The deadline to file an opposition to Jan. 5, 2024 the motion for class certification is: -- The deadline to file a reply in support Feb. 8, 2024. of the motion for class certification is: On February 24, 2022, Plaintiff Marlene Steinberg filed a complaint against the Defendant CoreLogic in the California Superior Court for the County of San Diego. On April 12, 2022, the Defendant filed a notice of removal to the United States District Court for the Southern District of California pursuant to 28 U.S.C. section 1446. On May 23, 2022, Defendant filed an answer to the complaint. On March 8, 2023, the parties filed a joint motion to stay the case pending settlement negotiations. CoreLogic Credco is a third-party consumer credit reporting agency that provides merged credit reports to a number of mortgage lenders. A copy of the Court's order dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/3s50Bal at no extra charge.[CC] DALE COLLIER: Civil Standing Order Entered in Cheng Class Suit -------------------------------------------------------------- In the class action lawsuit captioned as MARIA ELIZABETH SANTOS CHENG, et al. v. DALE COLLIER, et al., Case No. 2:22-cv-06794-HDV-MRW (C.D. Cal.), the Hon. Judge Hernan D. Vera entered a civil standing order: -- The Plaintiff shall promptly serve the complaint in accordance with Federal Rule of Civil Procedure 4 and shall comply with Local Rule 5-3 with respect to all proofs of service. -- Any defendant, including any "Doe" or fictitiously named defendant, not served within 90 days after the case is filed shall be dismissed pursuant to Fed. R. Civ. P. 4(m). -- The Court is committed to fostering the development of new and Diverse lawyers in the legal community. Consequently, the Court strongly encourages litigants to provide opportunities for less experienced lawyers or lawyers whose identities and/or backgrounds further the diversity of the legal profession to conduct hearings before the Court, particularly where they contributed significantly to the underlying motion. -- The Court expects that everyone in the courtroom be treated with dignity and respect at all times. -- The Court hears status conferences and scheduling conferences on Thursdays at 10:00 a.m. Pursuant to Federal Rules of Civil Procedure 16(b) and 26(f), the Court will issue an Order Setting a Scheduling Conference. -- Unless otherwise ordered, no later than 14 days before the Scheduling Conference, counsel shall file a Joint Rule 26(f) Report. -- All discovery matters are referred to the assigned Magistrate Judge. Proposed protective orders must also be submitted to the Magistrate Judge. -- Counsel in putative class actions shall commence litigation promptly and begin discovery immediately so that the motion for class certification can be filed expeditiously. -- No party may file more than one motion pursuant to Federal Rule of Civil Procedure 56, regardless of whether such motion is denominated a motion for summary judgment or summary. adjudication. A copy of the Court's order dated July 26, 2023 is available from PacerMonitor.com at https://bit.ly/45rdZE2 at no extra charge.[CC] DEJA VU: Hoffman Seeks to Certify Class Action ---------------------------------------------- In the class action lawsuit captioned as Ashleigh Hoffman, On behalf of himself and those similarly situated, v. Deja Vu Pizza, LLC d/b/a Papa John’s Pizza, et al., Case No. 1:22-cv-00006-DMT-CRH (D.N.D.), the Plaintiff asks the Court to enter an order: -- certifying case as class action, and -- designating her as the representative of the following class: "All current and former delivery drivers employed by the Defendants at the Defendants' Papa John’s stores in the State of Wisconsin between the date six years prior to the filing of the original complaint and the date of final judgment in this matter. In connection with this certification, the Plaintiff moves this Court to affirm her selection of counsel by appointing Biller & Kimble, LLC as Class Counsel pursuant to Rule 23(g). The Plaintiff also asks that she be permitted to send notice of this lawsuit to putative class members pursuant to Rule 23(c)(2). Additionally, pursuant to 29 U.S.C. section 216(b), the Plaintiff Hoffman moves this Court for an Order allowing the Plaintiff to send notice of this action to her similarly situated co-workers. A copy of the Plaintiff's motion dated July 27, 2023 is available from PacerMonitor.com at https://bit.ly/3OSl2jN at no extra charge.[CC] The Plaintiff is represented by: Andrew R. Biller, Esq. Andrew P. Kimble, Esq. Laura E. Farmwald, Esq. BILLER & KIMBLE, LLC 8044 Montgomery Road, Suite 515 Cincinnati, OH 45236 Telephone: (513) 202-0710 Facsimile: (614) 340-4620 E-mail: abiller@billerkimble.com akimble@billerkimble.com lfarmwald@billerkimble.com - and - Leo F.J. Wilking, Esq. Wilking Law Firm, PLLC PO Box 3085 Fargo, ND 58108-3085 Telephone: (701) 356-6823 Facsimile: (701) 478-7621 DEL MONTE: N.D. California Narrows Claims in Bryan Class Suit ------------------------------------------------------------- In the case, KERSTINE BRYAN, Plaintiff v. DEL MONTE FOODS, INC., Defendant, Case No. 23-cv-00865-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California grants in part and denies in part Del Monte's to Dismiss Plaintiffs' Class Action Complaint. Del Monte is a Delaware corporation with a principal place of business in California. Bryan, a citizen of Oregon, alleges she purchased, at retailers throughout Oregon, fruit cups manufactured by Del Monte, specifically, Mango Chunks and Peach Chunks, and that she did so in reliance on an assertedly false and misleading statement made on their respective front labels. Specifically, Bryan alleges that in purchasing the fruit cups, she saw and relied on the phrase "fruit naturals," with a bolded emphasis on "naturals," which she understood to mean the products "contained only natural ingredients," when, in fact, they contained multiple synthetic ingredients, including citric acid, potassium sorbate, sodium benzoate, and methylcellulose gum. She further alleges that other Del Monte products include the same "fruit naturals" phrase on their front labels, despite containing the same synthetic ingredients. Based on said allegations, Bryan, on her own behalf and on behalf of three putative classes, asserts the following five claims for relief: (1) Violation of California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Section 17200, et seq. (Count I); (2) Violation of the False Advertising Law (FAL), Cal. Bus. & Prof. Code Section 17500, et seq. (Count II); (3) Violation of Oregon's Unlawful Trade Practices Act (UTPA) (Count III); (4) Unjust Enrichment (Count IV); and (5) Violation of State Consumer Protection Statutes (Count V). By its Motion to Dismiss, filed June 2, 2023, Del Monte seeks an order dismissing the action under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of Article III standing, and/or under Rule 12(b)(6) for failure to state a claim. Judge Chesney grants in part and denies in part Del Monte's Motion to Dismiss. She grants the Motion to Dismiss to the extent Bryan seeks injunctive relief, asserts in Count V claims under the laws of states other than California or Oregon, and asserts claims based on any unidentified product, asserts a claim for Unjust Enrichment. She denies the Motion to Dismiss in all other respects. Judge Chesney finds that (i) Bryan's allegations are sufficient to establish an economic injury for purposes of Article III standing; (ii) Del Monte is correct about the CAC's insufficient allegations of future harm to obtain injunctive relief; (iii) to the extent Count V is brought under the laws of 11 states other than California and Oregon, such claim is subject to dismissal for lack of standing; (iv) to the extent Bryan asserts claims based on the above-listed identified products she herself did not purchase, she has adequately demonstrated Article III standing; (v) to the extent Bryan asserts claims based on any unidentified products, such claims are subject to dismissal for failure to demonstrate Article III standing. Judge Chesney further finds that (i) the ingredient list's inclusion of synthetic ingredients does not support dismissal of Bryan's claims; (ii) to the extent Bryan challenges identified products, the claims alleging violation of state consumer protection laws are not subject to dismissal under Rule 9(b); (iii) courts have found allegations like Bryan's sufficient to plead claims under both the UCL and FAL; (iv) Bryan has alleged facts sufficient to show Del Monte knew it was misrepresenting its Products as natural; and (v) Bryan fails to plausibly allege, even in the alternative, that she lacks an adequate remedy at law. As Del Monte has not shown leave to amend necessarily would, in all respects, be futile, Bryan's request for such leave is grants. If Bryan wishes to file a First Amended Complaint to cure the deficiencies, she will do so no later than Aug. 25, 2023. In the event she does not file a First Amended Complaint by said deadline, the action will proceed on the remaining claims in the CAC. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/yxjj22hh from Leagle.com. DELTA AIR: Filing of Class Cert Bid Due Feb. 28, 2024 ----------------------------------------------------- In the class action lawsuit captioned as MARVIN TOLEDO, an individual, on behalf of himself and all other similarly situated non-exempt current and former employees, v. DELTA AIR LINES, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Case No. 3:22-cv-00081-AMO (N.D. Cal.), the Hon. Judge Araceli Martinez-Olguin entered an order granting the Joint Stipulation and orders to continue dates and deadlines as follows: -- Last day to hear dispositive motion: June 27, 2024 -- Last day to file dispositive motion: May 23, 2024 -- Last Day for Opening Expert Reports: Feb. 29, 2024 -- Last Day for Rebuttal Expert Reports: March 29, 2024 -- Close of Expert Discovery: May 30, 2024 -- Close of Fact Discovery: May 30, 2024 -- Last day to file class certification Feb. 28, 2024 motion: -- Last day to file opposition to class April 17, 2024 certification motion: -- Last day to file reply re class May 8, 2024 certification motion: -- Class Certification Motion May 30, 2024 Hearing: Delta Air is one of the major airlines of the United States and a legacy carrier. A copy of the Court's order dated July 27, 2023 is available from PacerMonitor.com at https://bit.ly/3OUlYV1 at no extra charge.[CC] The Plaintiff is represented by: Shaun Setareh, Esq. Thomas Segal, Esq. SETAREH LAW GROUP 9665 Wilshire Blvd., Suite 430 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com thomas@setarehlaw.com The Defendants are represented by: Carrie S. Gonell, Esq. Andrew P. Frederick, Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626-7653 Telephone: (714) 830-0600 Facsimile: (714) 830-0700 E-mail: carrie.gonell@morganlewis.com andrew.frederick@morganlewis.com DTE ELECTRIC: Brown Files Bid for Class Certification ------------------------------------------------------ In the class action lawsuit captioned as DARRYL BROWN, v. DTE ELECTRIC COMPANY, Case No. 2:22-cv-12633-DML-DRG (E.D. Mich.), the Plaintiffs ask the Court to enter an order granting their motion for conditional certification, judicial notice and document production, pursuant to 29 U.S.C. section 216(b): DTE allegedly failed to pay their System Supervisors for time spent performing necessary work tasks before and after their scheduled shifts and failed to pay them overtime for working more than 40 hours per week, the Plaintiffs' contend. System Supervisor Darryl Brown has brought an action against DTE on behalf of himself and other similarly situated employees. There are two groups of System Supervisors that were so harmed: those who have executed a mandatory arbitration agreement which requires them to pursue their claims via arbitration, and those who have not signed a mandatory arbitration agreement. The group which Darryl Brown seeks to represent are those who have not signed an arbitration agreement and are, therefore, allowed to pursue their rights before the Court. There is a corollary arbitration claim which another group of System Supervisors have filed, which is currently pending before an AAA arbitrator. The Plaintiffs seek to conditionally certify this action as a collective action brought on behalf of the following persons: "All persons who were employed by DTE Energy in the position of either System Supervisor I or System Supervisor II, at any time since November 1, 2019, and who have not executed a mandatory arbitration agreement that requires litigation against DTE Energy to proceed through arbitration, and who either (a) worked more than 40 hours during any workweek without receiving a pay rate of 1.5 times their hourly rate for all hours worked above forty or (b) worked any time without compensation." DTE generates, transmits, and distributes electricity to residential and commercial sectors. A copy of the Plaintiffs' motion dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/44axQq2 at no extra charge.[CC] The Plaintiffs are represented by: Richard G. Mack, Esq. Kurt N. Koning, Esq. MILLER COHEN, PLC. 7700 Second Avenue, Suite 335 Detroit, MI 48202 Telephone: (313) 964-4454 Facsimile: (313) 964-4490 E-mail: richardmack@millercohen.com kurtkoning@millercohen.com The Defendant is represented by: Sharon Rae Gross, Esq. Lori Fixley Winland, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWARD, P.C. 34977 Woodward Avenue, Suite 300 Birmingham, MI 48009 Telephone: (248) 593-6400 E-mail: rae.gross@ogletree.com Lori.winland@ogletree.com ENERGY TRANSFER: Parities Seek More Time for Expert Discovery -------------------------------------------------------------- In the class action lawsuit captioned as ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM, EMPLOYEES' RETIREMENT SYSTEM OF THE CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE, DENVER EMPLOYEES RETIREMENT PLAN, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS NATIONAL PENSION FUND, and IOWA PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Individually and On Behalf of All Others Similarly Situated, v. ENERGY TRANSFER LP, KELCY L. WARREN, THOMAS E. LONG, MARSHALL MCCREA, and MATTHEW S. RAMSEY Case No. 2:20-cv-00200-GAM (E.D. Pa.), the Parties stipulate and ask the Court to enter an extending expert discovery Deadlines and setting briefing schedule for summary judgment: 1. The deadline for Parties to identify the subject areas of expert testimony they intend to proffer with respect to non-class certification issues for which they bear the burden of proof shall be July 28, 2023. 2. The deadline for Parties to serve expert reports and all other expert disclosures required pursuant to FED. R. CIV. P. 26 with respect to non-class certification issues for which they bear the burden of proof shall be September 15, 2023. 3. The deadline for Parties to serve expert reports and all other expert disclosures required pursuant to FED. R. CIV. P. 26 with respect to non-class certification issues for which they do not bear the burden of proof shall be November 10, 2023. 4. The deadline for taking expert depositions on non-class certification issues shall begin on November 27, 2023 and end on December 22, 2023. 5. The deadline for filing any Motions for Summary Judgment and any briefs in support of Motions for Summary Judgment shall be January 19, 2024. 6. The deadline for filing any answering brief to a Motion for Summary Judgment shall be March 1, 2024. 7. The deadline for filing any reply brief in further support of a Motion for Summary Judgment shall be March 29, 2024. Energy Transfer is an American company engaged in natural gas and propane pipeline transport. A copy of the Court's order the Parties' motion dated July 27, 2023 is available from PacerMonitor.com at https://bit.ly/45qunF6 at no extra charge.[CC] The Plaintiffs are represented by: Jeffrey W. Golan, Esq. Robert A. Hoffman, Esq. Chad A. Carder, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 Facsimile: (215) 963-0838 E-mail: jgolan@barrack.com rhoffman@barrack.com jbarrack@barrack.com ccarder@barrack.com - and - John C. Browne, Esq. Adam H. Wierzbowski, Esq. Michael M. Mathai, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: johnb@blbglaw.com adam@blbglaw.com michael.mathai@blbglaw.com The Defendants are represented by: Karen Pieslak Pohlman, Esq. Laura H. McNally, Esq. Amanda F. Lashner, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 Telephone: (215) 963-5000 Facsimile: (215) 963-5001 E-mail: karen.pohlmann@morganlewis.com laura.mcnally@morganlewis.com amandalashner@morganlewis.com - and - John T. Cox, III, Esq. Brian M. Lutz, Esq. Colin B. Davis, Esq. GIBSON DUNN & CRUTCHER, LLP 2001 Ross Ave., Suite 2100 Dallas, TX 75201 Telephone: (214) 698-3100 Facsimile: (214) 571-2900 E-mail: tcox@gibsondunn.com blutz@gibsondunn.com cdavis@gibsondunn.com EQUIFAX INFORMATION: Patrick Sues Over Inaccurate Consumer Reports ------------------------------------------------------------------ RANDEL J. PATRICK, Jr., on behalf of himself and all others similarly situated, Plaintiff v. EQUIFAX INFORMATION SERVICES, LLC; TRANS UNION, LLC; and WELLS FARGO BANK, N.A., Defendants, Case No. 1:23-cv-04092 (D.N.J., July 31, 2023) is a class action against the Defendants for violation of the Fair Credit Reporting Act. The case arises from the Defendants' issuance of false and inaccurate credit information and consumer reports that they have disseminated to various persons and credit grantors, both known and unknown. The Plaintiff was being reported incorrectly as deceased by the Defendants due to their failure to conduct reasonable investigation procedures to assure maximum possible accuracy of the information on the Plaintiff's consumer report. As a result of the Defendants' erroneous reporting, the Plaintiff's reputation, creditworthiness, and credit score have been damaged, says the suit. Equifax Information Services, LLC, is a consumer reporting agency based in New Jersey. Trans Union, LLC, is a consumer reporting agency based in New Jersey. Wells Fargo Bank, N.A. is a banking company headquartered in San Francisco, California. [BN] The Plaintiff is represented by: Eliyahu Babad, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Telephone: (201) 282-6500 E-mail: EBabad@SteinSaksLegal.com FAY SERVICING: Ridley Files FDCPA Suit in E.D. Virginia ------------------------------------------------------- A class action lawsuit has been filed against Fay Servicing, LLC. The case is styled as Sasha Ridley, on behalf of herself and all similarly situated consumers v. Fay Servicing, LLC, Case No. 1:23-cv-00864-TSE-JFA (E.D. Va., July 3, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Fay Servicing, LLC -- https://fayservicing.com/ -- provides mortgage lending services. The Company offers mortgages, loans, refinance, licensing, and other related services.[BN] The Plaintiff is represented by: Casey Shannon Nash, Esq. Kristi Cahoon Kelly, Esq. KELLY GUZZO PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Phone: (703) 424-7571 Fax: (703) 591-0167 Email: casey@kellyguzzo.com kkelly@kellyguzzo.com FIREMAN'S FUND: 9th Cir. Affirms Dismissal of Oregon Clinic Suit ---------------------------------------------------------------- In the case, THE OREGON CLINIC, PC, an Oregon professional corporation, Plaintiff-Appellant v. FIREMAN'S FUND INSURANCE COMPANY, a California corporation, Defendant-Appellee, Case No. 22-35047 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the District Court's judgment dismissing with prejudice Oregon Clinic's complaint. The appeal arises out of a commercial property insurance policy that Oregon Clinic purchased from Fireman's Fund. The Policy provides Oregon Clinic, a medical provider with more than fifty locations in Oregon, with coverage for reduction of business income only if its insured property suffers "direct physical loss or damage." In March 2020, after the COVID-19 pandemic began, Oregon Clinic, like hundreds of other insured businesses nationwide, sought coverage under its Policy. It alleged that it suffered "direct physical loss or damage" because of the COVID-19 pandemic and related governmental orders that prevented it from fully making use of its insured property. Fireman's Fund denied coverage. Oregon Clinic then sued Fireman's Fund in the U.S. District Court for the District of Oregon, asserting claims for breach of contract and breach of the implied duty of good faith and fair dealing. As most courts nationwide have done when faced with similar complaints, the District Court dismissed with prejudice Oregon Clinic's complaint under Federal Rule of Civil Procedure 12(b)(6). Oregon Clinic timely appealed. At Oregon Clinic's request, the Ninth Circuit certified to the Oregon Supreme Court the interpretation of direct physical loss or damage under Oregon law and stayed proceedings. The Oregon Supreme Court declined the certification request. Oregon Clinic is a medical provider with 57 locations in the Portland, Oregon metro area. Like it did to most businesses, the COVID-19 pandemic severely impacted Oregon Clinic. As alleged in Oregon Clinic's complaint, between March and November 2020, approximately 22 of Oregon Clinic's employees or patients confirmed they were infected with the COVID-19 virus while they were on its premises. The continuous dispersal of the COVID-19 virus into the air and onto physical surfaces and other property rendered Oregon Clinic's cleaning practices ineffective, requiring physical and other changes to its property and practices. Making matters worse for Oregon Clinic's business operations, Oregon Governor Kate Brown issued a series of orders that required Oregon Clinic, and all other health clinics, to stop performing non-urgent healthcare procedures. These orders restricted or eliminated Oregon Clinic's ability to use its facilities. The pandemic and governmental orders had a detrimental effect on Oregon Clinic's business income. Before the pandemic, Oregon Clinic purchased a commercial property insurance policy from Fireman's Fund that provides Oregon Clinic with coverage for business income lost because of "direct physical loss or damage" to its property. As part of the Policy, Oregon Clinic also purchased additional specialty coverages from Fireman's Fund. The Policy was effective at all times material to Oregon Clinic's COVID-19 allegations, including in March 2020. Of major import in the case, coverage under each Policy provision expressly requires direct physical loss or damage to property. The Policy, however, does not define "direct physical loss or damage." On March 17, 2020, Oregon Clinic provided timely written notice to Fireman's Fund of its insurance coverage claims related to COVID-19 and the governmental orders. Fireman's Fund performed a limited investigation of Oregon Clinic's claim and concluded that there was no "direct physical loss or damage to property at Oregon Clinic's locations or within 1,000 feet of such locations," as required by the Policy. On May 13, 2020, Fireman's Fund denied coverage. In response, Oregon Clinic sued Fireman's Fund in the District Court, seeking a declaration of coverage and alleging claims for breach of contract and breach of the implied duty of good faith and fair dealing. Oregon Clinic asserted coverage under ten Policy provisions: (1) Property Coverage; (2) Business Income and Extra Expense Coverage; (3) Business Access Coverage; (4) Civil Authority Coverage; (5) Dependent Property Coverage; (6) Expediting Expense Coverage; (7) Extended Business Income and Extra Expense Coverage; (8) Communicable Disease Coverage; (9) Ordinance or Law Coverage; and (10) Loss Adjustment Expense Coverage. In its complaint, Oregon Clinic alleged that its insured locations suffered direct physical loss or damage to property because of COVID-19 and, in the alternative, the governmental orders. It also included more than 10 pages of allegations in its complaint about the nature of COVID-19. For example, Oregon Clinic alleged that COVID-19 is caused by a highly contagious virus that causes illness and death in humans, is spread by asymptomatic carriers, survives for up to twenty-eight days on a variety of surfaces, and cannot be eliminated from property by routine cleaning. The District Court granted Fireman's Fund's motion to dismiss without granting Oregon Clinic leave to amend. It relied on a long line of cases from district courts in the Ninth Circuit in which courts held that neither COVID-19 nor the governmental orders associated with it cause or constitute property loss or damage for purposes of insurance coverage. Persuaded by this authority, the District Court concluded that Oregon Clinic did not plausibly allege that COVID-19 or the governmental orders caused "direct physical loss or damage" to its property because Oregon Clinic did not allege its property had been damaged in a manner that required it to "suspend operations to conduct repairs or replace any insured property." Rather, it determined Oregon Clinic's alleged losses were purely economic. Oregon Clinic timely appealed the District Court's order. It also filed a separate motion asking this Panel to certify several questions to the Oregon Supreme Court on the definition of the phrase "direct physical loss or damage" to property. The Ninth Circuit granted the certification request after hearing oral argument in this case and stayed the proceedings pending a response from the Oregon Supreme Court. The Oregon Supreme Court declined the request. The Ninth Circuit reviews de novo the District Court's order granting a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). It opines that contrary to Oregon Clinic's position, loss of only the intended use of the property -- as opposed to a total dispossession of the property -- is not a "direct physical loss." Its conclusion that the Oregon Supreme Court would construe the phrase "direct physical loss or damage" as requiring an insured to allege physical alteration of its property is also consistent with the conclusion reached in more than 800 cases nationwide, including decisions from the federal courts of appeal and state supreme courts. Oregon Clinic has not adequately alleged its property suffered such loss or damage. Therefore, Oregon Clinic's alleged consequential damages are not covered by the Policy. The Ninth Circuit therefore affirms the district court's dismissal of Oregon Clinic's complaint. The Ninth Circuit also concludes the district court correctly dismissed Oregon Clinic's complaint without leave to amend. It finds no additional facts or allegations could cure the deficiency in Oregon Clinic's current complaint. And Oregon Clinic has not proposed any new allegations that would address the problems identified by the District Court. Because amendment would be futile, the Ninth Circuit concludes the District Court did not abuse its discretion and affirms the dismissal of Oregon Clinic's complaint without leave to amend. A full-text copy of the Court's July 25, 2023 Opinion is available at https://tinyurl.com/564kz4nf from Leagle.com. Seth H. Row -- seth.row@millernash.com -- (argued), Iván Resendiz Gutierrez -- ivan.resendiz@millernash.com -- and Katelyn J. Fulton -- katelyn.fulton@millernash.com -- Miller Nash LLP, Portland, Oregon; Jodi S. Green , Miller Nash LLP, Long Beach, California, for the Plaintiff-Appellant. Brett D. Solberg -- brett.solberg@dlapiper.com -- (argued), DLA Piper LLP (US), Houston, Texas; Joseph D. Davison -- joseph.davison@dlapiper.com -- and Anthony Todaro -- anthony.todaro@dlapiper.com -- DLA Piper LLP (US), Seattle, Washington, for the Defendant-Appellee. James M. Davis -- JimDavis@perkinscoie.com -- Perkins Coie LLP, Seattle, Washington; Bradley H. Dlatt -- BDlatt@perkinscoie.com -- Perkins Coie LLP, Chicago, Illinois; Stephen M. Feldman -- SFeldman@perkinscoie.com -- Perkins Coie LLP, Portland, Oregon; for Amicus Curiae United Policyholders. FRANKLIN COUNTY, IL: More Time to Stay Class Cert Briefing Sought ----------------------------------------------------------------- In the class action lawsuit captioned as L.S., on behalf of himself and all others similarly situated, by his next friend JASON MAURER, v. FRANKLIN COUNTY, CHIEF JUDGE MELISSA MORGAN of the Second Judicial Circuit Court, DARLA FITZJERRELLS, Director of the Court Services of the Second Judicial Circuit Court, and LAVONDA PORTER, Acting Superintendent of the Franklin County Juvenile Detention Center Case No. 3:23-cv-02303-NJR (S.D. Ill.), the Defendants ask the Court to enter an order granting their unopposed motion for an extension of time until September 26, 2023, to respond to Plaintiffs' Complaint and to stay any briefing on Plaintiffs' motion for class certification. The Plaintiffs filed their class action complaint on June 30, 2023, and motion and memorandum for class certification on July 2, 2023. The Individual Defendants' responsive pleadings are due between July 28, 2023, and August 2, 2023. Franklin County is located within the Research Triangle Region of North Carolina, home of The Research Triangle Park. A copy of the Defendant's motion dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/45tZa3P at no extra charge.[CC] The Defendants are represented by: Hal B. Dworkin, Esq. OFFICE OF THE ILLINOIS ATTORNEY GENERAL 100 W. Randolph Street, 13th Floor Chicago, IL 60601 Telephone: (312) 814-5159 E-mail: Hal.Dworkin@ilag.gov GPB HOLDINGS: Deluca Seeks to Certify Class & Subclasses -------------------------------------------------------- In the class action lawsuit captioned as BARBARA DELUCA, DREW R. NAYLOR, and PEGGY ROLLO, on behalf of themselves and other similarly situated limited partners, v. GPB HOLDINGS, LP, et al., Case No. 1:19-cv-10498-LAK-JW (S.D.N.Y.), the Plaintiffs ask the Court to enter an order pursuant to Federal Rule of Civil Procedure 23, certifying the following Class and Subclasses: "All persons or entities that purchased or otherwise acquired limited partnership units in GPB investments as follows: (Subclass 1) all persons or entities that purchased or otherwise acquired limited partnership units in GPB Automotive Portfolio LP, between June 10, 2013 and December 31, 2018; (Subclass 2) all persons or entities that purchased or otherwise acquired limited partnership units in GPB Holdings, LP between June 6, 2013, and December 31, 2018; (Subclass 3) all persons or entities that purchased or otherwise acquired limited partnership units in GPB Holdings II, LP between April 28, 2015 and December 31, 2018; and (Subclass 4) all persons or entities that purchased or otherwise acquired limited partnership units in GPB Waste Management, LP between August 30, 2016 and December 31, 2018. Excluded from the Class definition are the Defendants herein, and any entity in which the Defendants have a controlling interest, and the officers, directors, affiliates, legal representatives, immediate family members, heirs, successors, subsidiaries and/or assigns of any such individual or entity. The Plaintiffs also seek their appointment as class representatives, and the appointment of their counsel, as lead class counsel. A copy of the Plaintiffs' motion dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3DQI8kH at no extra charge.[CC] The Plaintiffs are represented by: Daniel L. Berger, Esq. Caitlin M. Moyna, Esq. Abigail F. Coster, Esq. Vincent J. Pontrello, Esq. Mica A. Cocco, Esq. GRANT & EISENHOFER P.A. 485 Lexington Ave. 29th Fl. New York, NY 10017 Telephone: (646) 722-8500 E-mail: dberger@gelaw.com cmoyna@gelaw.com acoster@gelaw.com vpontrello@gelaw.com mcocco@gelaw.com - and - Catherine Pratsinakis, Esq. Douglas M. Weck, Esq. Jack M. Small, Esq. DILWORTH PAXSON LLP 1500 Market St., Suite 3500E Philadelphia, PA 19102 Telephone: (215) 575-7000 Facsimile: (215) 754-4603 E-mail: cpratsinakis@dilworthlaw.com dweck@dilworthlaw.com jsmall@dilworthlaw.com GRAND CANYON EDUCATION: Consolidated Shareholder Suit Ongoing ------------------------------------------------------------- Grand Canyon Education, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that it is facing a consolidated shareholder suit over the circumstances surrounding the company's sale of Grand Canyon University to a non-profit entity on July 1, 2018 and the subsequent decision of the U.S. Department of Education to continue to treat the University as a for-profit institution for education regulatory purposes. In June 12, 2020 a complaint was filed was filed in the U.S. District Court for the District of Delaware by Grant Walsh making allegations against the company, Brian E. Mueller and Daniel E. Bachus of violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder and sought unspecified monetary relief, interest, and attorneys' fees. In August 13, 2020, the case was consolidated and the Fire and Police Association of Colorado, the Oakland County Employees' Retirement System and the Oakland County Voluntary Employees' Beneficiary Association Trust were appointed as lead plaintiffs. Thereafter, the plaintiffs filed a consolidated amended complaint on October 20, 2020 and the Company filed a motion to dismiss on December 21, 2020. In August 23, 2021, the court granted the company's motion to dismiss in its entirety but permitted plaintiffs to file a further amended complaint to correct deficiencies in the initial complaint. The plaintiffs filed further amended complaints on September 28, 2021 and January 21, 2022, and the company filed a further motion to dismiss on March 15, 2022. In March 28, 2023, the company's motion to dismiss was denied. Grand Canyon Education, Inc. is a publicly traded education services company dedicated to serving colleges and universities. GRAND CANYON EDUCATION: Faces Shareholder Class Suit ----------------------------------------------------- Grand Canyon Education, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that it is facing a consolidated shareholder suit over the circumstances surrounding the company's sale of Grand Canyon University to a non-profit entity on July 1, 2018 and the subsequent decision of the U.S. Department of Education to continue to treat the University as a for-profit institution for education regulatory purposes. In May 12, 2020, a securities class action complaint was filed in the U.S. District Court for the District of Delaware by the City of Hialeah Employees' Retirement System naming the company, Brian E. Mueller and Daniel E. Bachus as defendants for allegedly making false and materially misleading statements regarding said case. The complaint asserted a putative class period stemming from January 5, 2018, the date when the company announced that it had applied to the University's accreditor for approval of the conversion, to January 27, 2020, the date prior to the publication of a short-seller report focused on the conversion. Grand Canyon Education, Inc. is a publicly traded education services company dedicated to serving colleges and universities. HANOVER VENTURES: Gonzalez Seeks Rule 23 Class Certification ------------------------------------------------------------ In the class action lawsuit captioned as DENNY GONZALEZ, on behalf of himself, and all FLSA Collective Plaintiffs and the Class, v. HANOVER VENTURES MARKETPLACE LLC, d/b/a LE DISTRICT, JOHN DOE COMPANY 1, d/b/a HPH HOSPITALITY, PAUL LAMAS, PETER A POULAKAKOS, NICOLAS ABELLO, and DAVID COUCKE Case No. 1:21-cv-01347-ER (S.D.N.Y.), Plaintiff will move the court for motion for class Certification pursuant To fed. R. Civ. P. 23. Hanover is a liquor license holder. A copy of the Plaintiff's motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/3YvDphC at no extra charge.[CC] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, Eighth Floor New York, NY 10011 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 HUDDLE HOUSE INC: Hoffman Files Suit Over Alleged Tip Skimming -------------------------------------------------------------- AMANDA HOFFMAN, individually and on behalf of all other similarly situated, Plaintiff v. HUDDLE HOUSE, INC., Defendant, Case No. 1:23-cv-01160-STA-jay (W.D. Tenn., Aug. 4, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Hoffman was employed by the Defendant as a staff. HUDDLE HOUSE, INC. owns and operates Huddle House restaurants in Tennessee. [BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. James L. Holt, Jr., Esq. J. Joseph Leatherwood IV, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 Email: gjackson@jsyc.com rbryant@jsyc.com jholt@jsyc.com jleatherwood@gmail.com IMPERIAL AIR: Underpays Repair Technicians, Valdivia Suit Alleges ----------------------------------------------------------------- HUMBERTO H. VALDIVIA, on behalf of himself and all others similarly situated, Plaintiff v. IMPERIAL AIR SERVICES INC. and EDGARDO VERGNE, Defendants, Case No. 1:23-cv-22846 (S.D. Fla., July 31, 2023) is a class action against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act of 1938. The Plaintiff was employed by the Defendants as an aircraft pallet repair technician from approximately March 15, 2019, to July 28, 2023. Imperial Air Services Inc. is an aircraft and air cargo pallet repair services provider in Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, PA. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com JASON MUSSELMAN: Court Directs Filing of Discovery Plan -------------------------------------------------------- In the class action lawsuit captioned as Doe v. Musselman Case No. 1:23-cv-01247-JBM-JEH (C.D. Ill.), the Hon. Judge Jonathan E. Hawley entered a standing order as follows: -- Rule 16 scheduling conference The Court will set a Rule 16 scheduling conference approximately 30 days after the answer or other responsive pleading is filed. The conference will generally be conducted by telephone. -- Discovery plan The discovery plan shall be filed with the Court at least three calendar days before the Rule 16 scheduling conference. -- Waiver of the Rule 16 scheduling conference If the parties agree on all matters contained in the discovery plan, then the parties may waive the Rule 16 scheduling conference. To do so, the parties shall indicate in the discovery that the parties agree upon all maters contained within the discovery plan, and they request that the Rule 16 scheduling conference be cancelled. -- Failure of counsel to attend a scheduled telephone hearing For the convenience of counsel, the Court conducts most hearings by telephone when possible. Counsel's failure to appear for a telephone hearing will be treated as a failure of counsel to appear for an in-person hearing. -- Discovery disputes brought to the Court's attention after the discovery deadline has already passed The parties may not raise a discovery dispute with the Court after the relevant discovery deadline has passed; all discovery disputes must be brought to the Court's attention before the relevant discovery deadline passes. Any discovery disputes raised with the Court after the expiration of the relevant discovery deadline shall be deemed waived by the Court, even if the parties agreed to conduct discovery after the relevant discovery deadline has passed. If the parties agree to conduct discovery after the expiration of a deadline set by the Court, they must still file a motion requesting that the Court move that deadline as agreed by the parties in order to avoid any subsequent discovery disputes being deemed waived. -- Settlement conferences and mediation The parties are encouraged to seek a settlement conference or mediation with a magistrate judge. Where parties request a settlement conference or mediation in a case referred to Judge Hawley, Judge Hawley will conduct said conference or mediation. A copy of the Court's order dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/3OQnbwr at no extra charge.[CC] JOHNSON & JOHNSON: Tylenol Gelcaps' Ads "Deceptive," Musikar Claims ------------------------------------------------------------------- RHONDA MUSIKAR-ROSNER, individually and on behalf of all others similarly situated, Plaintiff v. JOHNSON & JOHNSON CONSUMER INC., Defendant, Case No. 1:23-cv-11746 (D. Mass., July 31, 2023) is a class action against the Defendant for violation of Massachusetts Consumer Protection Act, and for breach of implied warranty of merchantability, breach of express warranty, unjust enrichment, and declaratory relief. According to the complaint, the Defendant is engaged in false, deceptive, and misleading advertising, labeling, and marketing of its analgesic or pain-relieving medicines under the Tylenol brand name. The Defendant advertised Tylenol rapid release gelcaps to work faster than other acetaminophen products. The Plaintiff and Class members would not have purchased Tylenol rapid release gelcaps had the Defendant disclosed accurate, truthful information about the products and not misled them into believing that the rapid release gelcaps would provide faster relief than other, cheaper acetaminophen products. Johnson & Johnson Consumer Inc. is a consumer products manufacturer, with its principal place of business at 199 Grandview Road, Skillman, Somerset County, New Jersey. [BN] The Plaintiff is represented by: Alex R. Straus, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN 280 S. Beverly Drive, PH Suite Beverly Hills, CA 90212 Telephone: (917) 471-1894 E-mail: astraus@milberg.com - and - Mitchell M. Breit, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN 405 E. 50th Street New York, NY 10022 Telephone: (630) 796-0903 E-mail: mbreit@milberg.com - and - Adam A. Edwards, Esq. William A. Ladnier, Esq. Virginia A. Whitener, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 E-mail: aedwards@milberg.com wladnier@milberg.com gwhitener@milberg.com - and - Jay Barnes, Esq. An Truong, Esq. Erin Gee, Esq. SIMMONS HANLY CONROY LLC 112 Madison Avenue, 7th Floor New York, NY 10016 Telephone: (212) 784-6400 E-mail: jaybarnes@simmonsfirm.com atruong@simmonsfirm.com egee@simmonsfirm.com KEYCORP: Faces Gurevitch Suit Over Drop in Share Price ------------------------------------------------------ MENACHEM GUREVITCH, individually and on behalf of all others similarly situated, Plaintiff v. KEYCORP; CHRISTOPHER M. GORMAN; BETH E. MOONEY; CLARK H. I. KHAYAT; and DONALD R. KIMBLE, Defendants, Case No. 1:23-cv-01520 (N.D. Ohio, Aug. 4, 2023) is a federal securities class action on behalf of a class consisting of all persons and entities other than the Defendants that purchased or otherwise acquired Key securities between February 27, 2020 and June 9, 2023, both dates inclusive, seeking to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. The Plaintiff alleges in the complaint that throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, the Defendants made false and misleading statements and failed to disclose that: (i) Key downplayed concerns with its liquidity while overstating the effectiveness of its long-term liquidity strategy; (ii) Key overstated its projected NII for the second quarter ("Q2") and full year ("FY") of 2023, as well as related positive NII drivers, while downplaying negative NII drivers; (iii) as a result, Key was likely to negatively revise its previously issued NII guidance; (iv) all the foregoing, once revealed, was likely to negatively impact Key's business, financial results, and reputation; and (v) as a result, Defendants' public statements were materially false and/or misleading at all relevant times, says the suit. The Company's stock price fell $0.46 per share, or 4.31 per cent, to close at $10.22 per share on June 12, 2023. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, the suit added. KEYCORP operates as a holding company. The Company, through its subsidiaries, provides retail and commercial banking, commercial leasing, investment management, consumer finance, and investment banking products and services to individual, corporate, and institutional clients. [BN] The Plaintiff is represented by: Robert J. Wagoner, Esq. DITTMER, WAGONER & STEELE, LLC 107 W. Johnstown Road Gahanna, OH 43230 Telephone: (614) 471-8181 Facsimile: (614) 540-7473 Email: bob@dwslaw.com - and - Jeremy A. Lieberman, Esq. Gustavo F. Bruckner, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 Email: jalieberman@pomlaw.com gfbruckner@pomlaw.com ahood@pomlaw.com KIA MOTORS: Faces Class Suit Over Defective Charging Ports ---------------------------------------------------------- Lynn Walford of Auto Connected Car News reports that owners of Hyundai Ioniq 5s, Ioniq 6s, Genesis GV60s and Kia EV6s file class-action lawsuit over charging port defect that leaves drivers with uncharged batteries, say automakers' alleged "fix" further slows charging. Owners of Hyundai Ioniq 5s, Hyundai Ioniq 6s, Genesis GV60s and Kia EV6s filed a nationwide class-action lawsuit against the automakers following more than a year of reports of seriously defective charging ports in their vehicles, leaving owners and lessors potentially stranded, according to leading automotive law firm Hagens Berman. About the Hyundai, Kia and Genesis Charging Port Defect The lawsuit was filed July 26, 2023, in the U.S. District Court for the Central District of California, and alleges Hyundai and Kia prominently advertised vehicle charging times between five to seven hours, depending on vehicle make, with use of a Level 2 home charger. In reality, vehicle charging ports frequently overheat in as little as 30 minutes, causing the charging session to unexpectedly and repeatedly fail. Owners report a protracted and burdensome charging process. According to the complaint, frustrated vehicle owners have taken to consumer forums and social media to report that the charging defect leaves them to either constantly monitor charging sessions and manually ensure they complete, or else contend with unexpectedly uncharged batteries when they return to their vehicles to find the charging session has failed due to overheating. Owners also "pay for this wasted energy via higher utility bills," the complaint states. The complaint alleges that the fix Hyundai and Kia issued further slows charging rates to ten hours or more. To add insult to injury, Hyundai and Kia continue to sell the defective vehicles, with full knowledge of the issue, attorneys say. "Not only do Hyundai, Kia, and Genesis continue to sell vehicles that are clearly incapable of performing as advertised, they also issued a software patch which substantially worsens charging rates and widens the gap between what they promised and what they delivered," said Steve Berman, managing partner at Hagens Berman and the attorney leading the case. The filed complaint cites one plaintiff's experience in which fully charging his 2023 Ioniq 5 takes 20 hours, at a 5% charge rate per hour. "Car owners rely on them to drive to work, drop off their kids at school and get to doctor's appointments. Unexpectedly finding a car with an uncharged battery in the morning causes serious disruption to people's lives and could have dire consequences in an emergency," Berman said. "These aren't hybrids. The battery charge is essential, and we believe the state of these EVs is simply unacceptable." Hyundai and Kia "Put a Band-Aid" on Serious Defect According to the complaint, Hyundai, Kia and Genesis advertise the affected electric vehicles as capable of charging at a rate of up to 48 amps, but owners report charging session failure at a rate as slow as 28 amps. In March 2023, Hyundai issued a technical service bulletin to ostensibly address the charging port defect. The software update issued by the automakers causes affected vehicles to automatically lower the charging rate to 23 amps if overheating occurs, rather than halting the charging session. According to the complaint, the technical service bulletin did not disclose, at any point, that the supposed "fix" was to cap the charger's amp level, thereby doubling the vehicle charging time experienced by one named plaintiff in the case. "This so-called fix does nothing to address the real problem, which is that these vehicles were not manufactured to reliably charge at a rate even close to 48 amps. It's unacceptable for Hyundai to put a Band-Aid on such a serious defect impeding the vehicle's stated performance," Berman said. The lawsuit brings claims of violation of the Computer Fraud and Abuse Act, violation of the California Computer Data Access and Fraud Act, and violations of the applicable state consumer protection laws, and seeks to recover just compensation for vehicle owners and lessors. [GN] LA FINCA FARMER: Cabrera Sues Over Unpaid Overtime Wages -------------------------------------------------------- Roberto Cabrera, and all others similarly situated v. LA FINCA FARMER MARKET CORP., a Florida corporation, NELSON SANTANA and TANIA PEREIRA, as individuals, Case No. 1:23-cv-22782-XXXX (S.D. Fla., July 26, 2023), is brought for unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"). Starting in February 2022 (when he started full time), Plaintiff worked 6 days per week, from Tuesday through Sunday, with a start time of 5:00 a.m. until approximately 2:00 p.m. Plaintiff therefore worked 54 hours per week. The Defendants failed to pay Plaintiff any overtime premium (time and a half) for hours worked over 40 in each workweek. The Defendants' conduct extended beyond Plaintiff to all other similarly situated employees, including non-exempt employees working in other departments of the Corporate Defendant business. As part of their regular business practice, Defendants intentionally, willfully, and repeatedly harmed Plaintiff and similarly situated individuals by engaging in a pattern, practice, and/or policy of violating the FLSA, says the complaint. The Plaintiff worked for the Defendants for 1 year and 3 months, from November 2021 through and including February 2023 as a chef. The Defendant is a farm and restaurant.[BN] The Plaintiff is represented by: Nolan Klein, Esq. LAW OFFICES OF NOLAN KLEIN, P.A. 5550 Glades Rd., Ste. 500 Boca Raton, FL 33431 Phone: (954) 745-0588 Email: klein@nklegal.com amy@nklegal.com melanie@nklegal.com LOGOUP.COM INC: Has Made Unsolicited Calls, Garcia Suit Claims -------------------------------------------------------------- MARISA GARCIA, individually and on behalf of all others similarly situated, Plaintiff v. LOGOUP.COM, INC., Defendant, Case No. CACE-23-016544 (Fla. Cir., Broward Cty., Aug. 6, 2023) seeks to stop the Defendants' practice of making unsolicited calls. LOGOUP.COM, INC. specializes in customized logo apparel and printing logo promotional products. [BN] The Plaintiff is represented by: Joshua A. Glickman, Esq. Shawn A. Heller, Esq. SOCIAL JUSTICE LAW COLLECTIVE, PL 974 Howard Ave. Dunedin, FL 34698 Telephone: (202) 709-5744 Facsimile: (866) 893-0416 Email: josh@sjlawcollective.com shawn@sjlawcollective.com MANAGEABILITY INC: Stoimenoff Class Suit Seeks OT Wages Under FLSA ------------------------------------------------------------------ GAIL STOIMENOFF, individually and on behalf of similarly situated persons v. MANAGEABILITY INCORPORATED and FDI GROUP, Case No. 2:23-cv-11863-LVP-EAS (E.D. Mich., Aug. 1, 2023) sues the Defendants for failing to properly pay time-and-a-half for hours worked over 40 in a week to individuals performing RN Case Management services at their regular hourly rate, in violation of the Fair Labor Standards Act. Beginning in August 2019, the Defendants solely paid the Plaintiff on an hourly basis. The Defendants paid the Plaintiff the same hourly rate for all hours worked. The Defendants did not guarantee the Plaintiff a minimum weekly amount of pay each week, the Plaintiff alleges. The Plaintiff and the Collective worked more than 40 hours a week for the Defendants providing case management services. But they were not paid time-and-a-half overtime premium for hours worked over 40 in a week, the Plaintiff claims. The Defendants are liable to the Plaintiff and the Collective for their unpaid wages, plus an additional equal amount as liquidated damages, together with reasonable attorney fees and costs, the suit says. Plaintiff Gail Stoimenoff is an adult resident of Portage, Michigan who worked as an RN Case Manager for the Defendants in Novi, Michigan from August 2019 until February 2022. The Defendant is in the business of working with insurance companies, employers, and third-party administrators to help injured parties return to work or to attain maximum medical improvement.[BN] The Plaintiff is represented by: Angela L. Walker, Esq. BLANCHARD & WALKER, PLLC 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 Telephone: (734) 929-4313 E-mail: walker@bwlawonline.com MDL 1720: Fikes Plaintiffs Seek to Certify Franchisee Subclass -------------------------------------------------------------- In the class action lawsuit re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, Case No. 1:05-md-01720-MKB-VMS (E.D.N.Y.), the Fikes plaintiffs file motion: (1) permit them to intervene; (2) certify the proposed Franchisee Subclass and appoint them as class representatives; and (3) appoint their undersigned attorneys as subclass counsel. The Fikes Plaintiffs1 are representatives from a large group of franchisees represented by undersigned counsel. They and other Branded Operators and associations have repeatedly appeared before the Court to express their concern that they would be cut out of any recovery in the case, even though they are the direct payors of interchange fees for the transactions at their retail locations. Fikes Wholesale is a multi-branded petroleum products marketer that has been in business since the 1950s. The Defendants include Travel Related Services Co. and Visa U.S.A., Inc. A copy of the Plaintiffs' motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/455nIjM at no extra charge.[CC] The Plaintiffs are represented by: Jana Eisinger, Esq. LAW OFFICE OF JANA EISINGER, PLLC 4610 South Ulster Street, Suite 150 Denver, CO 80237 Telephone: (303) 209-0266 E-mail: jeisinger@eisingerlawfirm.com - and - David B. Esau, Esq. CARLTON FIELDS, P.A. 525 Okeechobee Boulevard, Suite 1200 West Palm Beach, FL 33401 Telephone: (561) 659-7070 E-mail: desau@carltonfields.com - and - Ronald K. Gardner, Esq. DADY & GARDNER, P.A. 80 South Eighth Street 5100 IDS Center Minneapolis, MN 55402 Telephone: (612) 359-3501 E-mail: rkgardner@dadygardner.com MDL 2924: Court Dismisses All Economic Loss Class Action Cases -------------------------------------------------------------- In the case, IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, Case No. 20-MD-2924 (S.D. Fla.), Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida enters final judgment in the medical monitoring class action cases and dismisses all of the economic loss class action cases for lack of standing. In this MDL, the Plaintiffs filed two types of class action claims: medical monitoring class action claims and economic loss class action claims. To resolve these class action claims, the Court, through its case management plan, first addressed the issue of general causation -- can ranitidine (the drug at issue in this MDL) cause cancer in humans? Were the Plaintiffs' personal injury claims to survive the general causation challenges, the Plaintiffs then could file their motion for class certification pursuant to the Court's case management plan. The Plaintiffs' claims, however, did not survive the Daubert challenges. Before the Plaintiffs moved for class certification, the Court concluded that the Plaintiffs have no reliable evidence that ranitidine could cause certain cancers. Considering its Daubert ruling, the Court undertook to determine whether the Plaintiffs still could move for certification of their medical monitoring and economic loss class action claims. In her Order, Judge Rosenberg sets forth why the Plaintiffs cannot do so. Throughout the course of the MDL, the Plaintiffs had a standing theory. Their standing theory was clearly pled; it was the centerpiece of all of their standing arguments; and this standing theory survived multiple rounds of motions to dismiss. In this section, the Court reviews those allegations in the Plaintiffs' complaints relevant to standing, the Plaintiffs' arguments opposing the Defendants' motions to dismiss based on lack of standing, and the Court's rulings on standing. In the Plaintiffs' class action complaint first filed in the MDL, they alleged that ranitidine was inherently defective, unreasonably dangerous, not fit to be used for its intended purpose, and, therefore, worthless. They did not allege in their complaint that ranitidine was otherwise ineffective or did not perform as advertised. The Defendants moved to dismiss the complaint in its entirety for lack of standing, arguing that the Plaintiffs failed to state an injury-in-fact fairly traceable to them. In opposition, the Plaintiffs argued that they had suffered an economic injury-in-fact when they purchased ranitidine since it was a "worthless, dangerous drug" that created NDMA. The Plaintiffs' standing theory rested on four points: ranitidine causes cancer, was unsafe, should not have been sold, and, therefore, was worthless, or at least worth less. In its Order on the first round of motions to dismiss, the Court determined that it could not "undertake a full Article III standing analysis" because the complaint under review was a shotgun pleading, but it did reach certain conclusions about standing. First, in line with the parties' agreement, standing for the class action claims should be evaluated before the class certification stage of the proceedings. Second, the Court would evaluate standing on a claim-by-claim basis. Third, the juridical link doctrine did not apply in this MDL; as a result, the doctrine did not permit the Plaintiffs to sue on behalf of others with the same injury. Fourth, the named Plaintiffs lacked standing to assert claims on behalf of class members whose claims arise under other states' laws. Significantly, fifth, the Court determined that the Plaintiffs could not rely on Debernardis v. IQ Formulations, LLC, 942 F.3d 1076 (11th Cir. 2019), to support their theory of standing. In Debernardis, the Eleventh Circuit determined that the plaintiffs had standing to sue the manufacturers of a supplement that was presumptively "adulterated" under the Federal Food, Drug, and Cosmetic Act ("FDCA"), because the supplement was illegal to sell, and the FDA had warned the manufacturers (before they sold the supplements) that the supplements were illegal to sell. In this MDL, ranitidine was legal to sell and the FDA never instructed the Defendants to stop selling ranitidine before the FDA requested that the Defendants voluntarily recall the drug. Since ranitidine was legal to sell, the Court determined that the Plaintiffs must rely on other caselaw to support their standing position when they amended their shotgun pleadings. The Plaintiffs expanded upon their standing theory during the second round of motions to dismiss. In summary, to prove that the Plaintiffs had suffered an economic injury-in-fact and therefore had standing to sue, they argued that ranitidine: could cause cancer; was unsafe; was misbranded since its label failed to disclose that the product was unsafe; should not have been sold; and, as a result, was worthless. The Court refers to this standing theory as the Plaintiffs' "misbranding theory" because it aligns with the FDCA's prohibition against the sale of "misbranded drugs," as that term is defined in the FDCA. Importantly, all of the Plaintiffs' standing arguments rested on this misbranding theory. The Plaintiffs never made any other arguments in support of their standing to sue during the multiple rounds of motions to dismiss. The Plaintiffs only raised and, thus, the Court's early attention and rulings on standing were singularly focused on the Plaintiffs' misbranding theory. Based on this theory, the Court concluded the Plaintiffs had standing to pursue their claims stated in the Second Amended Consolidated Economic Loss Class Action Complaint ("SAELC"). Despite its ruling on standing at the motion to dismiss stage of the proceedings, the Court informed the parties that it would return to the issue of standing when the evidentiary record in this MDL was more developed. After the motion to dismiss stage, the parties and the Court proceeded to the Daubert stage of the MDL, at which time the Plaintiffs submitted their strongest evidence to prove that ranitidine could cause the Designated Cancers. The Court determined that the Plaintiffs' scientific evidence was unreliable, and as a result, they lack reliable evidence that ranitidine causes Designated Cancers, as well as Non-Designated Cancers (since the Plaintiffs did not present any evidence of Non-Designated Cancers), see DE 6299. Given the Plaintiffs do not have any evidence of other cancers with which to support their class action claims -- the Plaintiffs do not have any reliable evidence of cancer causation. In light of the Daubert ruling, the parties agreed that the Court should not proceed with briefing on class certification. In the Class Plaintiffs' Motion to Stay Class Proceedings Pending the Outcome of Appellate Proceedings on this Court's Daubert and Summary Judgment Rulings, the Plaintiffs moved the Court to stay class proceedings until they completed their appeals of the Daubert ruling. The Defendants, in response, requested that the Court enter final judgment for them on the class action claims because both sets of the Plaintiffs' class action claims, the medical monitoring and economic loss class action claims, are no longer viable as pled. The Plaintiffs concede that their medical monitoring class action claims are no longer viable, but they assert that they still can pursue their economic loss class action claims. Judge Rosenberg finds that the Plaintiffs concede that their medical monitoring class action claims are no longer viable. Even if the Plaintiffs did not concede the viability of these claims, she concludes from her own analysis that the medical monitoring class action claims are no longer viable. For this reason, she grants summary judgment pursuant to Rule 56(f) and the Court's prior orders to cause under Rule 56(f) for the Defendants on the Plaintiffs' medical monitoring class action claims. Because of this entry of summary judgment, the Defendants are entitled to the entry of final judgment on the medical monitoring class action claims. The Clerk of the Court will enter the final judgment attached to Judge Rosenberg's Order as Exhibit C in each of the medical monitoring class action cases attached as Exhibit A. Additionally, the Plaintiffs lack standing to pursue their economic loss class action claims. When a district court concludes that a plaintiff does not have standing to bring their claims, the court must dismiss the claims without prejudice, even if this jurisdictional issue is discovered at the summary judgment stage of the litigation. Accordingly, Judge Rosenberg dismisses the Plaintiffs' economic loss class action claims for lack of subject matter jurisdiction. The Clerk of the Court will enter a copy of the Order in each case listed on Exhibit B and close those cases as dismissed. The Plaintiffs' Motion to Stay is denied as moot. A full-text copy of the Court's July 26, 2023 Order is available at https://tinyurl.com/4ztdf8xe from Leagle.com. MDL 2924: Final Judgment Entered in Medical Monitoring Class Cases ------------------------------------------------------------------ In the case, IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY LITIGATION, Case No. 20-MD-2924 (S.D. Fla.), Judge Robin L. Rosenberg of the U.S. District Court for the Southern District of Florida enters final judgment in the medical monitoring class action cases and dismisses without prejudice all of the economic loss class action cases for lack of standing. In this MDL, the Plaintiffs filed two types of class action claims: medical monitoring class action claims and economic loss class action claims. To resolve these class action claims, the Court, through its case management plan, first addressed the issue of general causation -- can ranitidine (the drug at issue in this MDL) cause cancer in humans? Were the Plaintiffs' personal injury claims to survive the general causation challenges, the Plaintiffs then could file their motion for class certification pursuant to the Court's case management plan. The Plaintiffs' claims, however, did not survive the Daubert challenges. Before the Plaintiffs moved for class certification, the Court concluded that the Plaintiffs have no reliable evidence that ranitidine could cause certain cancers. Considering its Daubert ruling, the Court undertook to determine whether the Plaintiffs still could move for certification of their medical monitoring and economic loss class action claims. In her Order, Judge Rosenberg sets forth why the Plaintiffs cannot do so. Throughout the course of the MDL, the Plaintiffs had a standing theory. Their standing theory was clearly pled; it was the centerpiece of all of their standing arguments; and this standing theory survived multiple rounds of motions to dismiss. In this section, the Court reviews those allegations in the Plaintiffs' complaints relevant to standing, the Plaintiffs' arguments opposing the Defendants' motions to dismiss based on lack of standing, and the Court's rulings on standing. In the Plaintiffs' class action complaint first filed in the MDL, they alleged that ranitidine was inherently defective, unreasonably dangerous, not fit to be used for its intended purpose, and, therefore, worthless. They did not allege in their complaint that ranitidine was otherwise ineffective or did not perform as advertised. The Defendants moved to dismiss the complaint in its entirety for lack of standing, arguing that the Plaintiffs failed to state an injury-in-fact fairly traceable to them. In opposition, the Plaintiffs argued that they had suffered an economic injury-in-fact when they purchased ranitidine since it was a "worthless, dangerous drug" that created NDMA. The Plaintiffs' standing theory rested on four points: ranitidine causes cancer, was unsafe, should not have been sold, and, therefore, was worthless, or at least worth less. In its Order on the first round of motions to dismiss, the Court determined that it could not "undertake a full Article III standing analysis" because the complaint under review was a shotgun pleading, but it did reach certain conclusions about standing. First, in line with the parties' agreement, standing for the class action claims should be evaluated before the class certification stage of the proceedings. Second, the Court would evaluate standing on a claim-by-claim basis. Third, the juridical link doctrine did not apply in this MDL; as a result, the doctrine did not permit the Plaintiffs to sue on behalf of others with the same injury. Fourth, the named Plaintiffs lacked standing to assert claims on behalf of class members whose claims arise under other states' laws. Significantly, fifth, the Court determined that the Plaintiffs could not rely on Debernardis v. IQ Formulations, LLC, 942 F.3d 1076 (11th Cir. 2019), to support their theory of standing. In Debernardis, the Eleventh Circuit determined that the plaintiffs had standing to sue the manufacturers of a supplement that was presumptively "adulterated" under the Federal Food, Drug, and Cosmetic Act ("FDCA"), because the supplement was illegal to sell, and the FDA had warned the manufacturers (before they sold the supplements) that the supplements were illegal to sell. In this MDL, ranitidine was legal to sell and the FDA never instructed the Defendants to stop selling ranitidine before the FDA requested that the Defendants voluntarily recall the drug. Since ranitidine was legal to sell, the Court determined that the Plaintiffs must rely on other caselaw to support their standing position when they amended their shotgun pleadings. The Plaintiffs expanded upon their standing theory during the second round of motions to dismiss. In summary, to prove that the Plaintiffs had suffered an economic injury-in-fact and therefore had standing to sue, they argued that ranitidine: could cause cancer; was unsafe; was misbranded since its label failed to disclose that the product was unsafe; should not have been sold; and, as a result, was worthless. The Court refers to this standing theory as the Plaintiffs' "misbranding theory" because it aligns with the FDCA's prohibition against the sale of "misbranded drugs," as that term is defined in the FDCA. Importantly, all of the Plaintiffs' standing arguments rested on this misbranding theory. The Plaintiffs never made any other arguments in support of their standing to sue during the multiple rounds of motions to dismiss. The Plaintiffs only raised and, thus, the Court's early attention and rulings on standing were singularly focused on the Plaintiffs' misbranding theory. Based on this theory, the Court concluded the Plaintiffs had standing to pursue their claims stated in the Second Amended Consolidated Economic Loss Class Action Complaint ("SAELC"). Despite its ruling on standing at the motion to dismiss stage of the proceedings, the Court informed the parties that it would return to the issue of standing when the evidentiary record in this MDL was more developed. After the motion to dismiss stage, the parties and the Court proceeded to the Daubert stage of the MDL, at which time the Plaintiffs submitted their strongest evidence to prove that ranitidine could cause the Designated Cancers. The Court determined that the Plaintiffs' scientific evidence was unreliable, and as a result, they lack reliable evidence that ranitidine causes Designated Cancers, as well as Non-Designated Cancers (since the Plaintiffs did not present any evidence of Non-Designated Cancers), see DE 6299. Given the Plaintiffs do not have any evidence of other cancers with which to support their class action claims -- the Plaintiffs do not have any reliable evidence of cancer causation. In light of the Daubert ruling, the parties agreed that the Court should not proceed with briefing on class certification. In the Class Plaintiffs' Motion to Stay Class Proceedings Pending the Outcome of Appellate Proceedings on this Court's Daubert and Summary Judgment Rulings, the Plaintiffs moved the Court to stay class proceedings until they completed their appeals of the Daubert ruling. The Defendants, in response, requested that the Court enter final judgment for them on the class action claims because both sets of the Plaintiffs' class action claims, the medical monitoring and economic loss class action claims, are no longer viable as pled. The Plaintiffs concede that their medical monitoring class action claims are no longer viable, but they assert that they still can pursue their economic loss class action claims. Judge Rosenberg finds that the Plaintiffs concede that their medical monitoring class action claims are no longer viable. Even if the Plaintiffs did not concede the viability of these claims, she concludes from her own analysis that the medical monitoring class action claims are no longer viable. For this reason, she grants summary judgment pursuant to Rule 56(f) and the Court's prior orders to cause under Rule 56(f) for the Defendants on the Plaintiffs' medical monitoring class action claims. Because of this entry of summary judgment, the Defendants are entitled to the entry of final judgment on the medical monitoring class action claims. The Clerk of the Court will enter the final judgment attached to Judge Rosenberg's Order as Exhibit C in each of the medical monitoring class action cases attached as Exhibit A. Additionally, the Plaintiffs lack standing to pursue their economic loss class action claims. When a district court concludes that a plaintiff does not have standing to bring their claims, the court must dismiss the claims without prejudice, even if this jurisdictional issue is discovered at the summary judgment stage of the litigation. Accordingly, Judge Rosenberg dismisses the Plaintiffs' economic loss class action claims for lack of subject matter jurisdiction. The Clerk of the Court will enter a copy of the Order in each case listed on Exhibit B and close those cases as dismissed. Judge Rosenberg denies as moot the Plaintiffs' Motion to Stay. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/yckjr8tb from Leagle.com. MEMPHIS WINGS: Fails to Pay Proper Wages, Hicks Suit Alleges ------------------------------------------------------------ DEMETRIOUS HICKS, individually and on behalf of all others similarly situated, Plaintiff v. MEMPHIS WINGS OPERATIONS, LLC, d/b/a WING STOP; and TROY MORRISON, Defendants, Case No. 2:23-cv-02477 (W.D. Tenn., Aug. 4, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Hicks was employed by the Defendants as a kitchen staff. MEMPHIS WINGS OPERATIONS, LLC, d/b/a WING STOP owns and operates several Wing Stop franchised restaurants in Tennessee and other states. [BN] The Plaintiff is represented by: Gordon E. Jackson, Esq. J. Russ Bryant, Esq. James L. Holt, Jr., Esq. J. Joseph Leatherwood IV, Esq. JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 754-8524 Email: gjackson@jsyc.com rbryant@jsyc.com jholt@jsyc.com jleatherwood@gmail.com MENARD INC: Bid to Compel Arbitration Granted; Domer Suit Tossed ---------------------------------------------------------------- In the case, PILAR DOMER, Plaintiff v. MENARD, INC., Defendant, Case No. 22-cv-444-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin grants Menard's renewed motion to compel arbitration and dismisses the case without prejudice. In this proposed class action, Domer alleges that Menard, the owner of Menards home improvement stores, adds a hidden fee to items purchased on the Menards website that are picked up in-store. Domer's initial complaint asserted claims for unjust enrichment, breach of contract, and violations of state consumer protection statutes. Menard moved to compel Domer to arbitrate her claims and Domer responded by submitting an amended complaint that omitted her claims for breach of contract. The Court denied Menards' arbitration motion without prejudice. Before the Court is Menards' renewed motion to compel arbitration directed at Domer's amended complaint. It contends that the arbitration clause in its terms of service applies to all of Domer's claims, not just her now-abandoned claims for breach of contract. Domer counters that she did not agree to arbitrate her claims, and that even if she did, her remaining claims fall outside of the scope of the agreement. The lawsuit arises from Domer's purchase of a can of paint from the Menards website. Menards gives customers three options for receiving their online purchase: customers may (1) have the item shipped to them; (2) pay online, go to the Menards' store, and locate the item on the shelf themselves; or (3) have a Menard employee locates the item and prepare it for in-store pickup. If a customer chooses the third option, Menard charges the customer a handling fee of $1.40 per item. Domer elected to have an employee prepare her item for pickup. She alleges that Menard did not disclose that selecting this option would incur an additional fee. When Domer went to complete her purchase, she was presented with a checkout page. Menard submitted a screenshot of the checkout page from a different order to illustrate how the page is organized. Domer does not dispute that the screenshot accurately represents the layout of the checkout page when she completed her purchase in April 2021. Near the bottom of the page is a two-line notice that begins "Please note" in a bold font. Underneath the notice are two hyperlinks that read "View Return Policy" and "Terms of Order Information." Clicking the "Terms of Order Information" opens up a textbox with the Terms of Order. Among other things, the Terms of Order provide that the purchaser "agrees that any and all controversies or claims arising out of or relating to this contract" must be resolved in arbitration. Domer did not see the notice or the Terms of Order Information hyperlink when she went to complete her purchase. The Court has jurisdiction over the proposed class action under the Class Action Fairness Act, 28 U.S.C. Section 1332(d), because the amount in controversy plausibly exceeds $5 million and there is at least minimal diversity between the parties: Domer is a citizen of Indiana and Menards is a citizen of Wisconsin. Judge Peterson concludes that Domer assented to the arbitration clause in Menard's Terms of Order and that her claims fall within the scope of the clause. He finds that Menards' website gave Domer reasonable notice that she was accepting its terms of service by placing an order, so Domer agreed to the arbitration clause by completing her purchase. Domer's consumer protection and unjust enrichment claims related to her purchase fall within the broad language of the arbitration clause. Menard asked the Court to stay rather than dismiss the case, but the Court's general practice is to dismiss the case if all of the claims are arbitrable. This practice is consistent with recent Seventh Circuit decisions stating that dismissal, not transfer, is the proper remedy when a party files a lawsuit that is governed by an arbitration agreement. For the reasons he stated, Judge Peterson grants Menard's renewed motion to compel arbitration. The case is dismissed without prejudice. A full-text copy of the Court's July 26, 2023 Opinion & Order is available at https://tinyurl.com/573fs8r2 from Leagle.com. MICHAEL COOKSON: Partial Default Judgment in Ramirez Suit Endorsed ------------------------------------------------------------------ In the case, ERICK MOISES LUCAS RAMIREZ, et al., Plaintiffs v. MICHAEL COOKSON CONSTRUCTION, INC. and MICHAEL SHERMAN COOKSON, Defendants, Case No. 1:22-cv-01623-SKO (E.D. Cal.), Magistrate Judge Sheila K. Oberto of the U.S. District Court for the Eastern District of California recommends that the Plaintiffs' motion for default judgment against Defendants Michael Cookson Construction and Michael Sherman Cookson be granted in part and denied in part. On May 11, 2023, Plaintiffs Erick Moises Lucas Ramirez, Isidro Jeronimo Gomez, and Diego Matzar Mendez filed a motion for default judgment against the Defendants pursuant to Fed. R. Civ. P. 55(b)(2). No opposition to either motion has been filed. Judge Oberto reviewed the parties' papers and all supporting material and found the matter suitable for decision without oral argument, pursuant to E.D. Cal. Local Rule 230(g). The hearing set for June 21, 2023, was therefore vacated. The Plaintiffs allege they were employed by Defendant Michael Cookson Construction ("Defendant MCC") and its alter ego Cookson as drivers and general laborers from June 2020 to August 2022. On Dec. 20, 2022, the Plaintiffs filed the lawsuit alleging that during their employment the Defendants violated various federal and state labor laws, including failure to pay minimum wage and overtime, failure to pay waiting time penalties, failure to provide rest breaks, and failure to provide complete wage statements. On Feb. 15, 2023, Cookson was personally served with the lawsuit, and MCC was served through its registered agent, Cookson. Neither Defendant has filed an answer or taken any action indicating that they intend to defend the suit. The Plaintiffs requested entry of default against the Defendants on March 28, 2023, which was entered by the Clerk of Court that same day. On May 11, 2023, the Plaintiffs filed the present motion for default judgment, requesting entry of judgment in their favor in the amounts of $108,992.20 to Ramirez, $54,800 to Gomez, and $54,800 to Mendez. The Plaintiffs also seek an award of $4,130 in attorney's fees and costs. They seek attorney's fees of $3,260 for the work of their counsel, James M. Dore, in this matter. They also seek costs of $870 expended on this matter. No opposition to the motion for default judgment has been filed. Judge Oberto states that granting or denying default judgment is within the court's sound discretion. The court is free to consider a variety of factors in exercising its discretion, citing Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claims, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. In considering the Plaintiffs' motion, Judge Oberto concludes that all of the Eitel factors except the seventh weigh in favor of default judgment. The second and third factors, which are the most important, strongly favor default judgment. Accordingly, she recommends that the Plaintiffs' motion for default judgment against the Defendants be granted in part. Having concluded that the Plaintiffs are entitled to default judgment, Judge Oberto considers whether they have established that they are entitled to the relief requested. She finds that a downward adjustment to the rate requested by Dore is appropriate to reflect the prevailing rates in the Eastern District of California. Therefore, she recommends awarding Dore attorney's fees at an hourly rate of $300. In sum, Judge Oberto recommends the Plaintiff's request for attorney's fees and costs be granted in part, as modified. In view of the foregoing, Judge Oberto recommends that: 1. The Plaintiffs' motion for default judgment against the Defendants be granted in part and denied in part as to Claims 3, 4, 9, 10, 15, and 16, and granted as to all other claims; 2. Judgment be entered against Defendants Michael Cookson Construction and Michael Sherman Cookson; 3. Ramirez be awarded the following damages: $23,660 in unpaid wages; $23,660 in liquidated damages; $6,000 in waiting time penalties; $38,808 for failure to provide rest and meal periods; and $4,000 for failure to provide complete and accurate wage statements; 4. Gomez be awarded the following damages: $1,440 in unpaid wages; $1,440 in liquidated damages; $6,000 in waiting time penalties; $45,000 for failure to provide rest and meal periods; and $4,000 for failure to provide complete and accurate wage statements; 5. Mendez be awarded the following damages: $1,440 in unpaid wages; $1,440 in liquidated damages; $6,000 in waiting time penalties; $45,000 for failure to provide rest and meal periods; and $4,000 for failure to provide complete and accurate wage statements; 6. The Plaintiffs' request for attorney's fees and costs be granted in part and denied in part; and 7. The Plaintiffs be awarded their attorney's fees and costs in the amount of $3,315. The Clerk of Court will assign a district judge to this matter. Within 21 days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Failure to file objections within the specified time may waive the right to appeal the district judge's order. A full-text copy of the Court's July 25, 2023 Findings & Recommendations Order is available at https://tinyurl.com/2pu8zcas from Leagle.com. MILLENNIUM SEARCH: Faces Woods Wage-and-Hour Suit in W.D. Tenn. --------------------------------------------------------------- ROBIN WOODS, on behalf of himself and all others similarly situated, Plaintiff v. MILLENNIUM SEARCH, LLC, Defendant, Case No. 2:23-cv-02455-SHL-cgc (W.D. Tenn., July 31, 2023) is a class action against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standards Act of 1938. Mr. Woods worked for Millennium Search as a recruiting manager from approximately July 2020 until April 2022. Millennium Search, LLC is an employment agency, with its principal place of business in Memphis, Tennessee. [BN] The Plaintiff is represented by: Bryce W. Ashby, Esq. DONATI LAW PLLC 1545 Union Avenue Memphis, TN 38104 Telephone: (901) 278-1004 Facsimile: (901) 278-3111 E-mail: bryce@donatilaw.com - and - Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. William M. Hogg, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com whogg@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 E-mail: rburch@brucknerburch.com MISSOURI: Court Orders May to File Signed Amended Complaint ----------------------------------------------------------- In the case, THOMAS MAY, Plaintiff v. ANNE L. PRECYTHE, et al., Defendants, Case No. 4:23-cv-00890-MTS (E.D. Mo.), Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri, Eastern Division, orders the Plaintiff to: a. file a signed, amended complaint on a Court-provided form; and b. either file a Court-provided "Application to Proceed in District Court without Prepaying Fees or Costs" or pay the $402 filing fee. The matter is before the Court on review of self-represented May's civil rights complaint. On July 10, 2023, 14 individuals incarcerated at the Missouri Eastern Correctional Center ("MECC"), including the Plaintiff, filed a "class action" lawsuit. The class action lawsuit names six Defendants affiliated with MECC. The Defendants are accused of allowing the Plaintiffs to be restrained with plastic zip-ties for an excessive amount of time while the Correctional Emergency Response Team searched their housing unit. Only one of the Plaintiffs, David Wilson, signed the complaint, filed an application to proceed in the district court without prepaying filing fees and costs, and submitted a copy of his inmate account statement. Because the Court does not allow multiple prisoners to join together in a single lawsuit under Federal Rule of Civil Procedure 20, new cases were opened for each individual plaintiff. This case is one of the newly-opened cases brought by a plaintiff who did not sign the original complaint. Judge Schelp holds that the complaint in this action is defective for two reasons. First, the complaint is not signed by May. Second, the complaint alleges violations of the rights of a group of inmates as a whole, rather than describing the specific constitutional violations alleged by each Plaintiff individually. Because plaintiff is representing himself, Judge Schelp gives him the opportunity to file a signed, amended complaint to set forth his own claims for relief. The Plaintiff should type or neatly print his complaint on the Court's prisoner civil rights form, which will be provided to him. In the "Caption" section of the form, he should clearly name all parties he seeks to sue. In the "Statement of Claim" section, the Plaintiff should provide a short and plain statement of the factual allegations supporting his claim. The Plaintiff is warned that the filing of an amended complaint completely replaces the original complaint. If he does not file an amended complaint on the Court-provided form within 30 days as instructed, the Court will dismiss the action without prejudice and without further notice to him. Finally, the Plaintiff has not paid the $402 filing fee, and has not filed an "Application to Proceed without Prepaying Fees or Costs." He must either pay the full filing fee or file the application to proceed in the district court without prepaying fees and costs (which the Court will mail to him) within 30 days of the date of the order. If the Plaintiff does not timely comply with the Order, the Court will dismiss his action without prejudice and without further notice. Accordingly, the Clerk of Court will mail to the Plaintiff a copy of the Court's prisoner civil rights complaint form and "Application to Proceed in District Court without Prepaying Fees or Costs" form. The Plaintiff must file an amended complaint on the Court's prisoner civil rights complaint form within 30 days of the date of the Order. The Plaintiff must either pay the $402 filing fee or file the application to proceed without prepaying fees and costs within 30 days of the date of the Order. If he fails to timely comply with the Order, the Court will dismiss the action without prejudice and without further notice. A full-text copy of the Court's July 25, 2023 Memorandum & Order is available at https://tinyurl.com/3n4khdcu from Leagle.com. MW SERVICING: Court Grants Motion to Decertify Moore Class Suit --------------------------------------------------------------- Gerald L. Maatman, Jr. and Emilee N. Crowther of DuaneMorris.com reports that In Moore v. MW Servicing, LLC, No. 20-CV-217 (E.D. La. Aug. 2, 2023), Judge Greg Guidry of the U.S. District Court for the Eastern District of Louisiana granted Defendants Motion to Decertify Plaintiffs' Collective Action, holding that, pursuant to Swales v. KLLM Transportation Services, L.L.C., 985 F.3d 430 (5th Cir. 2021), Plaintiffs had not met their burden of establishing they were "similarly situated" to the opt-ins during the decertification stage. The decision in Moore evidences the new Fifth Circuit regime in certifying/decertifying collective actions post-Swales, in that it properly places the "similarly situated" burden in Plaintiff's court at all relevant times. The ruling should be required reading for all businesses defending wage & hour litigation in the states comprising the Fifth Circuit. Case Background Defendants MW Servicing, LLC, WBH Servicing, LLC, Bruno, Inc., and Joshua Bruno ("Defendants") own and operate various properties in Louisiana. Plaintiffs Brittany Moore, Dmitry Feller, Jada Eugene, Christopher Willridge, and five opt-in Plaintiffs ("Plaintiffs") worked for Defendants as property managers, leasing agents, leasing consultants, accounting managers, executive assistants, janitorial/maintenance workers, and babysitters. Plaintiffs filed their a collective action (the "Complaint") against Defendants on January 20, 2020, asserting Defendants failed to pay minimum wage under the Federal Labor Standards Act ("FLSA"), and failed to pay, or untimely paid, Plaintiffs their final checks under the Louisiana Wage Payment Act ("LWPA"). The Lusardi v. Xerox Corporation Standard At the time Plaintiffs filed their Complaint, the standard practice in federal courts to certify a collective action and send notice to potential opt-in plaintiffs followed the two-step process outlined in Lusardi v. Xerox Corporation, 116 F.R.D. 351 (D.N.J. 1987). The first Lusardi step, also known as the "notice stage," required courts to determine whether the named plaintiffs and potential opt-in plaintiffs were "similarly situated" solely on the basis of the pleadings and affidavits submitted by the parties. Id. at 360-61. Once the named plaintiffs met this lenient threshold, courts often granted conditional certification and notice was sent to the potential opt-ins. Id. The second Lusardi step, also known as the "decertification stage," permitted defendants to move to decertify the conditional certification, but shifted the burden of establishing that plaintiffs are not "similarly situated" to defendants. Id. In Moore, Plaintiffs filed their motion for conditional certification on May 5, 2020. Almost a year later, on March 15, 2021, the Court granted Plaintiffs' Motion for Conditional Certification. The Fifth Circuit's Departure From Lusardi "Notice Stage" In Swales In Swales v. KLLM Transport Services, L.L.C., 985 F.3d 430, 441 (5th Cir. 2021), the Fifth Circuit rejected Lusardi's "notice stage" approach. The Fifth Circuit held that the text of the FLSA did not require a certification phase, and courts should instead determine at the outset of the case "what facts and legal considerations are material to determining whether Plaintiff and the proposed class are similarly situated." (emphasis added). Importantly, in rejecting Lusardi's "notice stage" approach, the Fifth Circuit held that the burden of establishing that the plaintiffs and opt-ins are "similarly situated" rests with plaintiffs at all relevant times. Id. at 443, n. 65 ("a plaintiff should not be able to simply dump information on the district court and expect the court to sift through it and make a determination as to similarity"). On January 5, 2022, Defendants in Moore filed a motion to decertify the collective action. They asserted that Plaintiffs were not "similarly situated," and the collective action should be decertified. The Court's Decision On August 2, 2023, Judge Guidry granted Defendants motion to decertify on the grounds that Plaintiffs had not met their burden to establish they were "similarly situated" to the opt-ins. Moore, No. 20-217, at 7. In reaching its decision, the Court acknowledged that while Swales rejected the traditional Lusardi "notice stage," the Fifth Circuit clarified that the factors considered by courts in Lusardi's "decertification stage" could "help inform or guide" courts "similarly situated analysis." Id. at 3 (citing Loy v. Rehab Synergies, L.L.C., 71 F 4th 329, 336-37 (5th Cir. 2023)). Thus, even though Lusardi's "notice stage" had been employed in this case, the Court elected to impose Swales for the decertification stage and required Plaintiffs to establish that they had met the "similarly situated" requirement of the FLSA. Id. The court considered three factors, including: "(1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant which appear to be individual to each plaintiff; [and] (3) fairness and procedural considerations." Id. at 3 (quoting Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001)). As to the first factor, the Court noted substantial differences existed between the plaintiffs and opt-ins' method of payment (salary versus hourly), employer (all worked for different entities), job titles, and the asserted wrongful acts of Defendants. Id. at 5-6. As to the second factor, the Court found that too many individualized claims remained in the matter (such as joint employment, good faith and willfulness, common policies, and salary status), which would necessarily require individualized defenses. Id. at 6. As to the final factor, while the Court acknowledged that the plaintiffs and opt-ins did have some overlapping common issues, "other methods of managing [the] litigation to the benefit of judicial efficiency" existed. Id. Ultimately, the Court found that a single trial of all plaintiffs' claims would "result in confusion both for the jury and management of the trial itself," and granted Defendants' motion to decertify the collective action. Id. at 7. Implications for Employers In the Fifth Circuit pre-Swales, plaintiffs' counsel could readily establish that plaintiffs and opt-ins were "similarly situated" during the notice stage by presenting minimal evidence. After plaintiffs' counsel met this low threshold and conditional certification was granted, employers were left with two options: (1) expend significant resources to conduct extensive discovery in pursuit of establishing that plaintiffs and opt-ins were not "similarly situated"; or (2) settle. Thus, until Swales, Plaintiffs' counsel were able to utilize employers' looming financial burden to unfairly obtain settlements on the basis of threadbare evidence. Post-Swales, however, district courts in the Fifth Circuit are required to "rigorously scrutinize the realm of 'similarly situated' workers, [at] the outset of the case, not after a lenient, step-one 'conditional certification.'" Swales, 985 F.3d at 434. By placing the FLSA's "similarly situated" burden on Plaintiffs, this ensures that collective action complaints can no longer be used as fishing expeditions, and reduces the likelihood that frivolous lawsuits are filed. Since Swales, the Sixth Circuit in Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003, 1009 (6th Cir. 2023), similarly rejected Lusardi's two-step certification approach, but elected not to adopt Swales "rigorous scrutiny" standard. Instead, the Sixth Circuit held that notice must only be sent to potential plaintiffs if they show "a 'strong likelihood' that those employees are similarly situated to the plaintiffs themselves." Id. at 1011. While at present only the Fifth and Sixth Circuits have departed from the longstanding Lusardi standard, other circuits may follow suit, and depending on how many circuits "jump ship" from Lusardi, the issue may soon be ripe for judicial review with the U.S. Supreme Court. [GN] NABORS COMPLETION: Court Confirms $387K Damages Award for Brown --------------------------------------------------------------- In the lawsuit captioned DUANE BROWN, Petitioner v. NABORS COMPLETION & PRODUCTION SERVICES CO., n/k/a C&J WELL SERVICES, INC., a Delaware corporation, Respondent, Case No. 2:22-cv-08340-DDP-JPRx (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California confirms the final arbitration award for the Petitioner in the amount of $386,925 in damages. Presently before the Court is Petitioner Duane Brown's Petition to Confirm Final Arbitration Award and for Further Attorneys' Fees and Costs, and to Enter Judgment Against Respondent Nabors Completion and Production Services Co. The Petitioner performed oil well plug and abandonment work for Nabors in the Port of Long Beach, as part of a larger project to replace the Gerald Desmond Bridge. On April 2, 2015, former Nabors employees, who performed similar work on the project, filed a putative class action in state court against Nabors for violations under the California Labor Code, on behalf of themselves and similarly situated employees, including Brown. Nabors removed the action to this Court, and thereafter filed a motion to compel arbitration pursuant to the parties' arbitration agreement. The Court denied the motion to compel arbitration. Nabors appealed to the Ninth Circuit. The Ninth Circuit reversed and remanded the Court's denial of the motion to compel arbitration. On March 30, 2018, Brown submitted a Demand for Arbitration to JAMS, asserting the following wage-and-hour violations: (1) failure to pay prevailing wages; (2) waiting time penalties; (3) failure to provide accurate itemized wage statements; and (4) unfair competition. Thereafter, the Honorable Jeffrey King (Ret.) was appointed as arbitrator. Petitioner Brown filed a motion for summary adjudication pursuant to JAMS Employment Rule 18. Justice King declined to rule on the motion because of a pending full hearing in another Nabors arbitration before him. On Feb. 23, 2022, the matter proceeded to a virtual arbitration hearing. On April 25, 2022, Justice King issued an Interim Arbitration Award. On Aug. 29, 2022, Brown filed a motion to set the amount of attorney's fees and costs with Justice King. On Oct. 27, 2022, the Arbitrator issued a Final Arbitration Award incorporating the interim award of $386,925.45 in damages and awarding $116,664.53 in attorneys' fees and $4,205.75 in costs. A new Arbitrator, Joel M. Grossman, was appointed between the interim and final awards due to the unexpected passing of Justice King. The Petitioner now moves to confirm the Final Arbitration Award and seeks $9,971 in post-award attorneys' fees and $402 in costs for filing of the initial complaint in this confirmation action. Nabors contends that the Arbitrator exhibited a manifest disregard of the law through several alleged errors with respect to Nabors' liability and damages. Judge Pregerson finds that Nabors fails to identify any instances in the record where the Arbitrator recognized the applicable law and then ignored it. The alleged errors are based on misinterpretation or misapplication of the law--such legal errors are insufficient to vacate an Arbitration Award. Finding no manifest disregard of the law exhibited in the Arbitration Award, the Court declines to vacate the Arbitration Award. The Court, therefore, grants Brown's Petition to confirm the Arbitration Award. As the prevailing party in this action, Judge Pregerson holds that Brown is entitled to reasonable attorneys' fees and costs, including fees incurred in connection with the confirmation action. Thus, the only issue before the Court is whether the requested fees and costs are reasonable. The Petitioner seeks $9,971 in attorneys' fees. The Court finds, and Nabors does not dispute, that the rates set forth by Brown's counsel are within the range of reasonable rates for attorneys in the local community, taking into consideration the experience, skill, and reputation of the attorney. Specifically, the Court finds that the following rates are reasonable: * Richard E. Donahoo, Attorney; $700/hour * Sarah L. Kokonas, Attorney: $495/hour * Kelsey Ung, Senior Paralegal: $295/hour With respect to the time spent for work performed on this matter, Brown's counsel has submitted detailed billing records of work performed and an accompanying declaration. Brown's motion and Richard Donahoo's declaration estimate that counsel spent a total of 17.5 hours on tasks related to the post-award confirmation action. The Court has adjusted these hours for reasonableness. Specifically, the court has subtracted 2.3 hours from the amount of time billed by Richard Donahoo in connection with the preparation of the petition and motion to confirm the arbitration award. Given that the Court decided to take this matter under submission without a hearing, the Court has subtracted 0.8 hours from the amount of time Richard Donahoo anticipated billing for preparing for and attending the hearing. With the adjustments, the Court showed the reasonable number of hours expended by counsel in relation to the confirmation action and request for post-award fees. Thus, Judge Pregerson says, Brown is entitled to $7,857 in fees and $402 for the cost of filing the complaint. For the reasons stated, the Court grants Brown's Petition to Confirm the Arbitration Award. The Final JAMS Arbitration Award issued on Oct. 27, 2022, in the Arbitration JAMS Case No. 1220059023, is confirmed. The Court will enter judgment in favor of Duane Brown and against Nabors in the amount of $386,925.45 in damages; $116,664.53 in attorneys' fees; $4,205.75 in costs. The Court further grants Brown's request for post-award attorneys' fees in the amount of $7,857 and for costs in the amount of $402. A full-text copy of the Court's Order dated July 27, 2023, is available at https://tinyurl.com/yksrcdnk from Leagle.com. NABORS COMPLETION: Court Confirms $410K Damages Award for Figueroa ------------------------------------------------------------------ In the lawsuit styled EDUARDO FIGUEROA, Petitioner v. NABORS COMPLETION & PRODUCTION SERVICES CO., n/k/a C&J WELL SERVICES, INC., a Delaware corporation Respondent, Case No. 2:22-cv-08163-DDP-JPRx (C.D. Cal.), Judge Dean D. Pregerson of the U.S. District Court for the Central District of California confirms the final arbitration award for the Petitioner in the amount of $409,857 in damages. Presently before the Court is Petitioner Eduardo Figueroa's Petition to Confirm Final Arbitration Award and for Further Attorneys' Fees and Costs, and to Enter Judgment Against Respondent Nabors Completion and Production Services Co. Mr. Figueroa performed oil well plug and abandonment work for Nabors in the Port of Long Beach, as part of a larger project to replace the Gerald Desmond Bridge. On April 2, 2015, former Nabors employees, who performed similar work on the project, filed a putative class action in state court against Nabors for violations under the California Labor Code, on behalf of themselves and similarly situated employees, including Figueroa. Nabors removed the action to this Court, and thereafter filed a motion to compel arbitration pursuant to the parties' arbitration agreement. The Court denied the motion to compel arbitration. Nabors appealed to the Ninth Circuit. The Ninth Circuit reversed and remanded the Court's denial of the motion to compel arbitration. On March 30, 2018, Figueroa submitted a Demand for Arbitration to JAMS, asserting the following wage-and-hour violations: (1) failure to pay prevailing wages; (2) waiting time penalties; (3) failure to provide accurate itemized wage statements; and (4) unfair competition. Thereafter, the Honorable Jeffrey King (Ret.) was appointed as arbitrator. Mr. Figueroa filed a motion for summary adjudication pursuant to JAMS Employment Rule 18. On June 21, 2021, Justice King granted Figueroa's motion, ruling on the issues pertaining to Nabors' liability. On Feb. 22-23, 2022, the matter proceeded to a virtual arbitration hearing on damages. On April 25, Justice King issued an Interim Arbitration Award. On Sept. 16, 2022, Figueroa filed a motion to set the amount of attorney's fees and costs with the Arbitrator. On Oct. 22, 2022, the Arbitrator issued a Final Arbitration Award. A new Arbitrator, the Honorable Richard D. Aldrich (Ret.), was appointed between the interim and final awards due to the unexpected passing of Justice King. Through the Final Arbitration Award, Justice King awarded Figueroa $409,857.96 in damages and $303,710 in attorneys' fees. Mr. Figueroa now moves to confirm the Final Arbitration Award and seeks $11,004 in post-award attorneys' fees and $402 in costs for filing of the initial complaint in this confirmation action. Nabors contends that Justice King exhibited a manifest disregard of the law through several alleged errors with respect to Nabors' liability and damages. Nabors, however, fails to identify any instances in the record where Justice King "recognized the applicable law and then ignored it," Judge Pregerson opines. The alleged errors are based on misinterpretation or misapplication of the law--such legal errors are insufficient to vacate an Arbitration Award. Finding no manifest disregard of the law exhibited in the Arbitration Award, the Court declines to vacate the Arbitration Award. The Court, therefore, grants Figueroa's Petition to confirm the Arbitration Award. As the prevailing party in this action, Judge Pregerson holds that Figueroa is entitled to reasonable attorneys' fees and costs, including fees incurred in connection with the confirmation action. Thus, the only issue before the Court is whether the requested fees and costs are reasonable. Mr. Figueroa seeks $11,004 in attorneys' fees. the Court finds, and Nabors does not dispute, that the rates set forth by his counsel are within the range of reasonable rates for attorneys in the local community, taking into consideration the experience, skill, and reputation of the attorney. Specifically, the Court finds that the following rates are reasonable: * Richard E. Donahoo, Attorney; $700/hour * Sarah L. Kokonas, Attorney: $495/hour * Kelsey Ung, Senior Paralegal: $295/hour Judge Pregerson notes that with respect to the time spent for work performed on this matter, Figueroa's counsel has submitted detailed billing records of work performed and an accompanying declaration. Figueroa's motion and Richard Donahoo's declaration estimate that counsel spent a total of 18.2 hours on tasks related to the post-award confirmation action. Of these hours, Figueroa claims that 8 hours are attributable to Richard Donahoo, 5.7 hours are attributable to Sarah Kokonas, 1.5 hours are attributable to Kelsey Ung, and 3 hours are attributable to time Richard Donahoo anticipated he would spend preparing a reply and anticipated judgment. The Court has adjusted these hours for reasonableness. With the adjustments, the Court showed the reasonable number of hours expended by counsel in relation to the confirmation action and request for post-award fees. Thus, Judge Pregerson says Figueroa is entitled to $8,444 in fees and $402 for the cost of filing the complaint. For the reasons stated, the Court grants Figueroa's Petition to Confirm the Arbitration Award. The Final JAMS Arbitration Award issued by Hon. Richard D. Aldrich (Ret.) on Oct. 25, 2022, in the Arbitration JAMS Case No. 1220058991, is confirmed. The Court enters judgment in favor of Eduardo Figueroa and against Nabors in the amount of $409,857.96 in damages and $303,710 in attorneys' fees. The Court further grants Figueroa's request for post-award attorneys' fees in the amount of $8,444 and for costs in the amount of $402. A full-text copy of the Court's Order dated July 27, 2023, is available at https://tinyurl.com/4t37pnkf from Leagle.com. NATIONAL FOOTBALL: Bids to Review Arbitration Order in Flores Nixed ------------------------------------------------------------------- In the case, BRIAN FLORES, STEVE WILKS, and RAY HORTON, as Class Representatives, on behalf of themselves and all others similarly situated, Plaintiffs v. THE NATIONAL FOOTBALL LEAGUE; NEW YORK FOOTBALL GIANTS, INC. d/b/a NEW YORK GIANTS; MIAMI DOLPHINS, LTD. d/b/a MIAMI DOLPHINS; DENVER BRONCOS FOOTBALL CLUB d/b/a DENVER BRONCOS; HOUSTON NFL HOLDINGS, L.P. d/b/a HOUSTON TEXANS; ARIZONA CARDINALS FOOTBALL CLUB LLC d/b/a ARIZONA CARDINALS; TENNESSEE TITANS ENTERTAINMENT, INC. d/b/a TENNESSEE, TITANS and JOHN DOE TEAMS 1 through 26, Defendants, Case No. 22-CV-0871 (VEC) (S.D.N.Y.), Judge Valerie Caproni of the U.S. District Court for the Southern District of New York denies: a. the Plaintiffs' motion for reconsideration of the portions of the Arbitration Opinion granting the motion to compel arbitration; and b. the Defendants' cross-motion for reconsideration, seeking to compel arbitration of the remaining claims. The Plaintiffs, who are current and former coaches for NFL teams, have sued the NFL and various member teams for racial discrimination and retaliation in violation of 42 U.S.C. Section 1981 and several state laws. The Court granted in part and denied in part the Defendants' motion to compel arbitration in an opinion dated March 1, 2023. It compelled arbitration of the claims brought by Ray Horton against the Tennessee Titans, Steve Wilks against the Arizona Cardinals, and Brian Flores against the Miami Dolphins, as well as all related claims against the NFL; it denied the motion to compel arbitration of Flores' claims against the New York Giants, the Denver Broncos, and the Houston Texans, as well as his related claims against the NFL. The Plaintiffs moved for reconsideration of the portions of the Arbitration Opinion granting the motion to compel arbitration, and the Defendants cross-moved for reconsideration, seeking to compel arbitration of the remaining claims. The Defendants sought to compel arbitration of Flores' claims against the Denver Broncos, New York Giants, and Houston Texans arguing, inter alia, that the arbitration provisions in his recent contract with the Pittsburgh Steelers, and the NFL Constitution incorporated therein, applied retroactively to claims against any NFL team. They alternatively sought to compel arbitration of his claims against the Denver Broncos because those claims arose when he was coaching for the New England Patriots. See id. His contract with the Patriots had an arbitration agreement that applied to claims against any NFL team. The Court held that Mr. Flores did not have a valid arbitration agreement with the Steelers because the Defendants had not proven that the arbitration agreement was part of a valid contract. Section 12 of the Flores-Steelers Agreement states that the contract would "become valid and binding upon each party only when and if it will be approved by the Commissioner of the NFL;" in the version of the contract filed by Defendants in support of their motion to compel arbitration, the Commissioner's signature line was blank. Accordingly, the Flores-Steelers Agreement submitted by Defendants, by its own terms, was not "valid and binding." The Court also held that the arbitration agreement contained in the NFL Constitution and incorporated into the Flores-Patriots Agreement was unenforceable because the NFL retained the unilateral right to modify the NFL Constitution and the arbitration agreement, rendering the arbitration agreement illusory according to Massachusetts state law. Judge Caproni holds that as the parties moving to compel arbitration, the Defendants carried the burden of proving the existence of a written agreement binding the parties to arbitrate the present matter. When the Defendants moved to compel arbitration, they failed to do so. Moreover, Massachusetts law precludes enforcement of the arbitration agreement incorporated into the Flores-Patriots Agreement because the contract is illusory; because an illusory contract is no contract at all, severance is not possible. The Plaintiffs' motion for reconsideration extensively relitigates their arguments that the arbitration agreements are unconscionable and prevent effective vindication of their statutory claims, which the Court previously considered at length and rejected. As in their opposition to the motion to compel arbitration, the Plaintiffs primarily base their arguments on their speculation that the NFL Commissioner will necessarily be biased as an arbitrator. Judge Caproni holds that the Plaintiffs, in essence, ask the Court to fashion a specific rule out of whole cloth to protect them from potential arbitrator bias that may never manifest itself. To do so would be in direct violation of the Federal Arbitration Act's admonition against carving out rules disfavoring the enforcement of arbitration agreements from generally applicable contract law. For the foregoing reasons, both the Plaintiffs' and the Defendants' motions for reconsideration are denied. The Clerk of Court is respectfully directed to terminate the open motions at docket entries 79 and 81. The parties are ordered to appear for a pretrial conference in Courtroom 443 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York, 10007. The parties must submit a joint letter, the contents of which are described on pages 29 and 30 of the Arbitration Opinion. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/ycydx8rw from Leagle.com. NEW PERSPECTIVE: Parties Seek to Certify Class of Caregivers ------------------------------------------------------------ In the class action lawsuit captioned as LATERRA WOODS, on behalf of herself and all others similarly situated, v. NEW PERSPECTIVE SENIOR LIVING, LLC, Case No. 2:22-cv-00412-LA (E.D. Wis.), the Parties ask the Court to enter an order granting their stipulated motion to certify Rule 23 Class of: "All Caregivers employed by Defendant from April 1, 2020, through February 21, 2022, in Wisconsin and whose names appear on Exhibit A to this Settlement Agreement." The Parties stipulate and agree that the requisites for stablishing Rule 23 Class certification have been met and are met with respect to the Rule 23 Class. If the Parties' proposed settlement is not finally approved by the Court, or the settlement is terminated or fails to become effective in accordance with the terms of the Settlement Agreement, the Stipulation and the Court's Order as to this Stipulation shall be vacated without further order of the Court, the Parties will request a new schedule from the Court, and Defendant reserves the right to oppose Rule 23 class certification. New Perspective offers independent and assisted senior living as well as memory care community options. A copy of the Parties' motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/44axVdk at no extra charge.[CC] The Plaintiff is represented by: Larry A. Johnson, Esq. Summer H. Murshid, Esq. Timothy P. Maynard, Esq. HAWKS QUINDEL, S.C. 5150 N. Port Washington Road, Suite 243 Milwaukee, WI 53217-5470 Telephone: (414) 271-8650 Facsimile: (414) 607-6079 E-mail: ljohnson@hq-law.com smurshid@hq-law.com tmaynard@hq-law.com The Defendant is represented by: Joseph L. Olson, Esq. Elizabeth A. Odian, Esq. Leah N. Moon, Esq. MICHAEL BEST & FRIEDRICH LLP 790 North Water Street, Suite 2500 Milwaukee, WI 53202 Telephone: (414) 271-6560 Facsimile: (414) 277-0656 E-mail: jlolson@michaelbest.com eaodian@michaelbest.com lnmoon@michaelbest.com NEW SOUTH WALES: Faces Class Suit Over Serious Staff Underpayments ------------------------------------------------------------------ Miklos Bolza of The West Australian reports that the NSW government allegedly engaged in the systematic underpayment of staff by forcing them to work excess overtime without breaks, better wages or weekend penalty rates. A class action filed in the Federal Court last month accuses the state-run Sydney Trains of "serious contraventions" of Australian employment law. The lawsuit alleges the government entity arranged rosters without taking into account employees' health and safety, fatigue or quality of life, nor its own duty of care. Staff were also allegedly required to work excess overtime outside of rostered hours, were regularly asked to do shifts without meal or rest breaks, and were only paid according to rostered hours instead of actual hours worked. Workers are seeking compensation for the allegedly underpaid wages plus further pecuniary penalties. Adero Law, the firm behind the class action, says Sydney Trains failed to keep complete records of overtime and entitlements paid and could not provide these documents sought on multiple occasions. "Sydney Trains' failure to comply with their inspection obligations leads the applicant and group members to believe that Sydney Trains failed to make and keep the overtime records and entitlements records without significant deficiencies," the class action pleadings say. Entitlements owed under the 2018 and 2022 enterprise agreements which allegedly remain unpaid include overtime loading, shift interval loading, public holiday penalties and weekend penalties. Sydney Trains also did not stick to terms of the 2022 enterprise agreement by omitting to give each worker a one-off payment of $4500 or back-pay staff for pay rises promised under the new workplace deal, the lawsuit claims. "(The) contraventions were part of a systemic pattern of conduct engaged in by Sydney Trains," the pleadings say. Heading the class action, train worker Ritchie White started as a signaller with Sydney Trains in September 2016 and was promoted to area controller in October 2019. Employees eligible to join the class action are those who worked for Sydney Trains as area controllers or signallers from May 1, 2018 until July 18 this year when the lawsuit was filed. A spokesperson from Sydney Trains declined to comment as the matter was before the courts. The class action is the second lawsuit brought on behalf of rail workers in the past two months, joining the Rail, Tram and Bus Union which filed proceedings against logistics firm Qube. That lawsuit has been brought on behalf of 180 freight workers after 12 months of enterprise agreement negotiations broke down. The RTBU has lobbed similar claims against Qube as the class action, saying the firm failed to pay proper penalties and loading by instead paying "rolled-up pay rates" to its workers. Qube has denied the claims, saying it would vigorously defend the lawsuit. [GN] NOVARTIS PHARMACEUTICALS: Final Judgment Entered in Antitrust Suit ------------------------------------------------------------------ Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York enters Final Judgment and Order of Dismissal in the case, IN RE: NOVARTIS AND PAR ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: All Direct Purchaser Class Actions, Case No. 1:18-cv-04361 (AKH) (S.D.N.Y.). Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, and in accordance with the terms of the Settlement Agreement dated Dec. 23, 2022, between Class Representatives Drogueria Betances, LLC, Rochester Drug Co-Operative, Inc. ("RDC"), FWK Holdings, LLC, and KPH Healthcare Services, Inc., a/k/a Kinney Drugs, Inc. ("KPH"), and on behalf of the Class, and Defendants Novartis Pharmaceuticals Corp. and Novartis AG (collectively "Novartis"), Judge Hellerstein incorporates the Final Judgment and Order of Dismissal by reference the definitions in the Settlement Agreement among the Plaintiffs and Novartis. The following class ("Direct Purchaser Class") has been certified under Fed. R. Civ. P. 23(b)(3): All persons or entities in the United States, including its territories, possessions, and the Commonwealth of Puerto Rico, who purchased Exforge directly from Novartis, or who purchased a generic version of Exforge directly from Par, at any time during the Class Period from Sept. 21, 2012, until March 30, 2015 (Exforge Direct Purchasers). Excluded from the Class are Novartis and Par and their officers, directors, management and employees, predecessors, subsidiaries and affiliates, and all federal governmental entities. Also excluded from the Class for purposes of this Settlement Agreement are the following entities: CVS Pharmacy, Inc. (which includes Omnicare), Rite Aid Corporation, Rite Aid Hdqtrs. Corp., Walgreen Co., The Kroger Co. (which includes Peytons), and H-E-B L.P. (Retailer Plaintiffs). The Court previously appointed (i) the Class Representatives Betances, RDC, FWK and KPH; and (ii) Garwin Gerstein & Fisher, LLP as Lead Counsel for the Class. Due and adequate notice of the proceedings has been given to the Class and a full opportunity has been offered to the Class to participate in the May 16, 2023 Fairness Hearing. All Class Members are bound by the Order and Final Judgment. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Judge Hellerstein approves the Settlement, and finds that the Settlement is, in all respects, fair, reasonable, and adequate to Class members and in their best interests. Accordingly, the Settlement will be consummated in accordance with the terms and provisions of the Settlement Agreement. Judge Hellerstein approves the Plan of Allocation of the Settlement Fund as proposed by the Class Counsel, which was summarized in the Notice of Proposed Settlement and is attached to the Plaintiffs' Motion for Final Approval of Settlement. He directs RG/2 Claims Administration, the firm retained by the Class Counsel and previously appointed by the Court as the Claims Administrator, to distribute the net Settlement Fund as provided in the Plan of Allocation. All claims brought by the Direct Purchaser Class Plaintiffs against Novartis in In re: Novartis and Par Antitrust Litigation, 18-cv-04361-AKH (S.D.N.Y.) (the "Direct Purchaser Class Action") are dismissed with prejudice, and without costs. Upon consideration of the Class Counsel's petition for fees, costs and expenses, the Class Counsel are awarded attorneys' fees totaling $42.15 million (representing 33 1/3% of the Settlement Fund net of service awards awarded), to be paid solely from the Settlement Fund and only if and after the Settlement becomes final in accordance with the Settlement Agreement. Upon consideration of the Class Counsel's petition for service awards for Class Representatives, Betances, RDC, FWK and KPH are each awarded $100,000, to be paid solely from the Settlement Fund and only if and after the Settlement becomes final in accordance with the Settlement Agreement. Class Counsel Bruce E. Gerstein of Garwin Gerstein & Fisher LLP will allocate and distribute such attorneys' fees among the various Class Counsel which have participated in the litigation. The Releasees will have no responsibility for, and no liability whatsoever with respect to, any payment or disbursement of attorneys' fees, expenses, costs or service awards among Class Counsel and/or Class Representatives, nor with respect to any allocation of attorneys' fees, expenses, costs or service awards to any other person or entity who may assert any claim thereto. The attorneys' fees and service awards authorized and approved by the Final Judgment and Order will be paid to Garwin Gerstein & Fisher LLP within five business days after the first distributions of the Settlement Fund are made to Class Members or as soon thereafter as is practical and in accordance with the terms of the Settlement Agreement and the Escrow Agreement. The attorneys' fees and service awards authorized and approved by the Final Judgment and Order will constitute full and final satisfaction of any and all claims that the Plaintiffs and any Class member, and their respective counsel, may have or assert for reimbursement of fees, costs, and expenses, and service awards, and the Plaintiffs and the members of the Class will not seek or demand payment of any fees and/or costs and/or expenses and/or service awards from Novartis other than from the Settlement Fund. The Court retains exclusive jurisdiction over the Settlement and the Settlement Agreement as described, including the administration and consummation of the Settlement, and over the Final Judgment and Order. Judge Hellerstein finds that the Final Judgment and Order adjudicates all of the claims, rights and liabilities of the parties to the Settlement Agreement and is final and will be immediately appealable. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/ykpxsb6k from Leagle.com. NRA GROUP: Chamberlain Seeks Extension to File Class Cert Reply --------------------------------------------------------------- In the class action lawsuit captioned as Autumn Chamberlain, on behalf of herself and all others similarly situated, v. NRA Group, LLC d/b/a National Recovery Agency, Case No. 1:21-cv-00281-JPW (M.D. Pa.), the Plaintiff moves for an extension of time, up to and including August 23, 2023, to file a reply in support of her motion for class certification. On June 28, 2023, Plaintiff filed her motion for class certification. On July 19, 2023, Defendant filed its Opposition to Plaintiff's motion for class certification. The Plaintiff's current deadline to file a reply in support of her motion for class certification is August 2, 2023. National Recovery Agency is a debt collection agency. A copy of the Plaintiff's motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/44WDPA5 at no extra charge.[CC] The Plaintiff is represented by: Stephen Taylor, Esq. Joshua Markovits, Esq. LEMBERG LAW, LLC 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 O' HARE AUTO: Fails to Pay Proper Wages, Gonzalez Alleges --------------------------------------------------------- MARCOS CALA GONZALEZ, individually and on behalf of all others similarly situated, Plaintiff v. O' HARE AUTO RECYCLING CORPORATION; and DANIEL DONNELLY, Defendants, Case No. 1:23-cv-05147 (N.D. Ill., Aug. 4, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Gonzalez was employed by the Defendants as a mechanic. O' HARE AUTO RECYCLING CORPORATION is a company that operates in the automotive industry. [BN] The Plaintiff is represented by: Nathan C. Volheim, Esq. Chad W. Eisenback, Esq. SULAIMAN LAW GROUP LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 575-8180 Facsimile: (630) 575-8188 Email: nvolheim@sulaimanlaw.com ceisenback@sulaimanlaw.com OLO INC: Order Denying Bid to Dismiss Steamship Suit Reconfirmed ---------------------------------------------------------------- In the case, STEAMSHIP TRADE ASSOCIATION OF BALTIMORE-INTERNATIONAL LONGSHOREMAN'S ASSOCIATION PENSION FUND, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. OLO INC., NOAH GLASS, and PETER J. BENEVIDES, Defendants, Case No. 22-cv-8228 (JSR) (S.D.N.Y.), Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York reconfirms his April 10 order denying the Defendants' motion to dismiss. The lawsuit is a putative class action filed by Plaintiff Steamship Trade Association of Baltimore-International Longshoreman's Association Pension Fund against Defendants Olo, a provider of software to restaurants, and two of Olo's officers, Noah H. Glass and Peter J. Benevides. The Complaint alleges that defendants made false and/or misleading statements about the number of restaurants that actively used Olo's services and about Olo's partnership with Subway restaurants. On Feb. 3, 2023, the Defendants moved to dismiss the First Amended Complaint ("FAC"). After full consideration of the parties' written submissions and oral arguments, the Court denied the Defendants' motion by "bottom-line order" dated April 10, 2023. Judge Rakoff's Opinion reconfirms that order and explains the reasoning behind his rulings. Olo provides software to restaurants to assist with online ordering and food delivery. The FAC alleges that Olo misled investors in two ways. First, the FAC alleges that Olo failed to timely disclose that one of its partners, Subway restaurants, intended to terminate its partnership with Olo. Second, the FAC alleges that Olo mispresented the number of its "active locations" -- that is, the number of unique restaurant locations using at least one of Olo's product modules. In March 2021, Olo went public. At Olo's initial public offering ("IPO"), shares of Olo were offered for sale at a price of $25 per share. The Plaintiff purchased such shares. On Aug. 11, 2022, Olo disclosed both the Subway Transition and that its FY 2022 revenue would be lower than expected. On this news, Olo's share price dropped by approximately 36%, from $12.99 at the close of Aug. 11, 2022, to $8.26 at the close of Aug. 12, 2022. The FAC asserts two claims: (1) That Olo, as well as the Individual Defendants, made false or misleading statements of material fact, in violation of Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 promulgated thereunder; and (2) that the Individual Defendants violated Section 20(a) of the Securities and Exchange Act of 1934 by making materially false and misleading statements on behalf of Olo. Judge Rakoff opines that Olo's projections of its future growth were protected by the safe harbor for forward-looking statements. And the Plaintiff does not identify any other statement made by Olo that was allegedly misleading without disclosure of the Subway Transition. Thus, the FAC fails to allege that Olo's non-disclosure of the Subway Transition was an actionable omission. In addition, Judge Rakoff finds that the FAC plausibly pleads that Olo misstated its number of active locations, in violation of Section 10(b). He says (i) the FAC adequately alleges that the statements about the active locations are false or misleading; (ii) the FAC plausibly alleges materiality; (iii) a plausible inference from the allegations is that at least some of the decline in Olo's share price on Aug. 12, 2022 is attributable to Olo's alleged misstatements; and (iv) the FAC plausibly pleads that Olo misstated its number of active locations, in violation of Section 10(b). Thus, the Defendants' motion to dismiss Count I of the FAC must be denied. Finally, Judge Rakoff denies the Defendants' motion to dismiss Count II of the Complaint. He finds that the FAC sufficiently pleads that Olo violated Section 10(b). Additionally, the FAC alleges that the Individual Defendants controlled Olo and themselves made some of Olo's allegedly fraudulent misstatements. It therefore sufficiently alleges a control person violation under Section 20(a). For the reasons explained, Judge Rakoff reconfirms the rulings made in his April 10 order denying the Defendants' motion to dismiss. A full-text copy of the Court's July 25, 2023 Opinion is available at https://tinyurl.com/2zrws3eu from Leagle.com. OPSEC SECURITY: Loses Bid to Alter Judgment on Deal With Hanigan ---------------------------------------------------------------- Chief District Judge David C. Nye of the U.S. District Court for the District of Idaho denies the Defendants' Motion to Alter, Amend, or Vacate the Judgment in the lawsuit titled EMILY HANIGAN, Plaintiff v. OPSEC SECURITY, INC.; and OPSEC ONLINE, LLC, Defendants, Case No. 1:22-cv-00064-DCN (D. Idaho). On behalf of herself and "all others similarly situated," Plaintiff Emily Hanigan brought a Fair Labor Standards Act ("FLSA") overtime wage claim against Defendants OpSec Security, Inc. and OpSec Online, LLC. The Court conditionally certified a collective action under the FLSA and authorized notice of the collective action to be provided to all persons, who worked for OpSec since February 16, 2019, as brand analysts, senior analysts, or other similar positions. On Nov. 2, 2022, OpSec extended an offer of judgment to Hanigan. It provided that judgment would be entered against OpSec and that OpSec would pay a lump sum of $100,000 plus reasonable attorneys' fees and costs incurred by Hanigan and allegedly similarly situated employees in full satisfaction of their claims against OpSec. At the time OpSec made its offer, thirteen individuals besides Hanigan had filed consent forms to become parties in the case. Hanigan and the opt-in Plaintiffs (collectively "Hanigan," unless otherwise stated) timely accepted the offer, which triggered entry of judgment under Federal Rule of Civil Procedure 68. Subsequently, OpSec filed the instant Motion, asking the Court to alter, amend, or vacate the Judgment. At issue is the Judgment's scope. OpSec argues that the offer of judgment was extended to the current Plaintiffs, as well as those individuals, who later opted in. Hanigan, on the other hand, contends that only she and the then-existing opt-in Plaintiffs could legally accept the offer. Judge Nye notes that the issue is whether the Judgment was a manifest error of law. OpSec argues that it was because Hanigan and the other opt-in Plaintiffs accepted different judgment terms than the ones it offered. Specifically, OpSec asserts that Hanigan purported to accept the offer, which it argues was made to all individuals in the collective, only on behalf of herself and the other opt-in Plaintiffs. Because of this alleged discrepancy between offer and acceptance, OpSec contends that the Court's Judgment, which reflects Hanigan's understanding, is a manifest error of law and causes manifest injustice to OpSec. In other words, OpSec relies on contract principles to argue that Hanigan cannot accept an offer of judgment that OpSec did not make. In its view, she must accept the offer as written or else reject it. Ms. Hanigan counters that no mistake has been made. She argues that the only lawful and reasonable reading of OpSec's offer is that it applied only to the individuals, who were parties in the case at the time OpSec made its offer. Thus, her acceptance of the offer must stand. The Court agrees. The overarching issue is not controlled by general contract principles, but by specific rules and statutes, Judge Nye opines. Unlike a Rule 23 class action, in an FLSA collective action, conditional certification does not produce a class with an independent legal status, or join additional parties to the action, Judge Nye explains, citing Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013). Thus, Judge Nye says, reading Rule 68 and the FLSA together, the law provides that when OpSec made its offer, the only opposing parties in the case were Hanigan and the thirteen opt-in Plaintiffs. Accordingly, they were the only parties to which OpSec could make an offer. It follows that Hanigan and the opt-in Plaintiffs were the only parties who could accept that offer. The fact that Hanigan accepted the offer--and the Court entered judgment--in the only sense that it could be legally valid is hardly a manifest error of law. Nor does such a judgment cause manifest injustice. The Parties also assert competing interpretations of the Rule 68 offer. Here, Judge Nye observes, OpSec may have thought it made a global settlement covering parties and non-parties, so long as they are allegedly similarly situated employees. But the Court finds that, within the framework of the FLSA, "allegedly similarly situated employees" meant the thirteen additional opt-in Plaintiffs, who were similarly situated to Hanigan at the time of the offer. To find otherwise would be to ignore the import of Rule 68 and 29 U.S.C. Section 216(b), Judge Nye points out. Ultimately, the Court finds none of the grounds upon which a Rule 59(e) Motion can be granted present. Likewise, OpSec has not made a sufficient showing for this Court to reconsider its previous judgment under Rule 60(b). Thus, the extraordinary relief that OpSec seeks is unwarranted. A full-text copy of the Court's Memorandum Decision and Order dated July 27, 2023, is available at https://tinyurl.com/3hbtx42p from Leagle.com. PAPA JOHN'S: Court Issues Final Settlement Approval in Sobol Suit ----------------------------------------------------------------- Judge Cathy Seibel of the U.S. District Court for the Southern District of New York issued a Final Approval Order and Judgment approving the settlement in the lawsuit entitled RICHARD SOBOL, MUHAMMAD SULTAN, AMANDA HUBBARD, AARON NELSON, EDGAR BUSTAMANTE, JACOB PONTOW, MILTON DEARRY, REYNARD WEBB; and JOSHUA BOYLAND, for themselves and all others similarly situated, Plaintiffs v. PAPA JOHN'S INTERNATIONAL, INC., Defendant, Case No. 7:16-cv-03592-CS-JCM (S.D.N.Y.). Plaintiffs Amanda Hubbard, Joshua Boyland, Edgar Bustamante, Milton Dearry, Aaron Nelson, Jacob Pontow, Renard Webb, Richard Sobol and Muhammed Sultan, individually and on behalf of others allegedly similarly situated, and Defendant Papa John's International, Inc., have moved for final approval of the proposed class action and collective action settlement. The Court entered its Order Preliminarily Approving Settlement and Providing for Notice on Dec. 19, 2022, and said notice has been made, and the final fairness hearing has been held. Upon consideration of the Plaintiffs' Unopposed Motion for Final Collective Action Settlement Approval, the accompanying Memorandum of Law and all exhibits thereto, the representations of counsel during the July 27, 2023 Final Approval Hearing, and all other papers and proceedings, and for the reason set forth on the record, Judge Seibel orders as follows. Judge Seibel finds that the Settlement Agreement is procedurally fair because, among other reasons, the Parties engaged in arm's-length negotiations overseen by an experienced mediator, Judge Wayne Andersen, and the value of the Settlement is higher than the value proposed by Judge Andersen. The Court notes that the Class's reaction to the Settlement was excellent, as there were no objections and only three opt-outs in a class of over 48,000 members, Accordingly, the Court approves the proposed Settlement as fair, reasonable, and adequate in light of all the relevant considerations, including the test established in City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) and Cheeks v. Freeport Pancake House, Inc., 796 F.3d 1199, 201 (2d Cir. 2015). The Court appoints Amanda Hubbard, Joshua Boyland, Edgar Bustamante, Milton Dearry, Aaron Nelson, Jacob Pontow, Renard Webb as Class Representatives, and Richard Sobol and Muhammed Sultan as Class and Collective Action Representatives. The Court finally certifies the Class for the reasons set forth in its order preliminarily certifying the Class, and appoints Jeremiah Frei-Pearson and Andrew C. White of Finkelstein, Blankinship, Frei-Pearson & Gather LLP and Mark Potashnick of Weinhaus & Potashnick as Class Counsel. The Court finds that the requested Service Awards are reasonable to compensate the Service Award recipients for their service to the Class. Accordingly, the Court approves payment of Service Awards of $5,000 for each of the Named Plaintiffs Sobol, Sultan, Hubbard, Nelson, Bustamante, Pontow, Dearry, Webb, and Boyland. The Court also approves Service Awards of $1,000 for each of various Service Award recipients as described in the Settlement Agreement. The Court approves the Plaintiffs' counsel's request for $6,666,650 in attorneys' fees and $650,00,00 in litigation expenses as fully justified in light of the substantial recovery, the hours expended, the reasonable hourly rates charged by Plaintiffs' counsel, and the excellent quality of the Plaintiffs' counsel's work. The Court approves payment to RG/2 Claims Administration, the Settlement Administrator, of $211,651 for its work in this litigation. The Settlement Administrator will make all required payments pursuant to the Settlement Agreement. The claims of any Class Member, who did not opt-out of the Class, or Opt-In Plaintiff, who did not opt-out, are released pursuant to the terms of the Settlement Agreement. The Clerk will mark the case dismissed with prejudice. Without affecting the finality of the Order, the Court retains jurisdiction for the purposes of enabling the settling Parties to apply to this Court for such further orders or guidance as may be necessary for the construction, modification, or enforcement of the Settlement Agreement or this Final Approval Order and Judgment. A full-text copy of the Court's Final Approval Order and Judgment dated July 27, 2023, is available at https://tinyurl.com/bdcf86y2 from Leagle.com. PARTY CITY: Faces Shulman Suit Over 22% Stock Price Drop -------------------------------------------------------- RYAN SHULMAN, individually and on behalf of all others similarly situated v. BRADLEY WESTON and TODD VOGENSEN, Case No. 2:23-cv-04121 (D.N.J., Aug. 1, 2023) is a securities fraud class action on behalf of all persons and entities that purchased or otherwise acquired Party City securities between November 8, 2022, and June 9, 2023, inclusive, under the Securities Exchange Act of 1934. These proceedings arise from Party City's material misrepresentations and omissions about its liquidity, the adequacy of its borrowing capacity, and its ability to continue as a going concern. On November 8, 2022, the first day of the Class Period, Party City filed a Form 10-Q with the SEC. The Q3 2022 10-Q included multiple misleading statements about the Company's liquidity position, capital resources and borrowing capacity. For example, the Company stated that it had "total liquidity of $121.5 million" at September 30, 2022, consisting of $29.8 million in cash on hand plus the $91.7 million of available borrowings under its credit agreements. Ten weeks later, on January 17, 2023, Party City abruptly filed bankruptcy. Information disclosed in the bankruptcy filings indicates that Party City was well aware of its liquidity problems and lending shortfalls for several months, dating back to before it filed its Q3 2022 10-Q. The Company nevertheless omitted those issues in its Q3 2022 10-Q. As a result of these misleading statements and omissions, the Company's stock price was artificially inflated throughout the Class Period, says the suit. On June 9, 2023, the Company filed its Form 8-K revealing the going concern omission, the existence of a material weakness in internal control, and E&Y's resignation. The information in the Form 8-K partially corrected the misrepresentations and omissions regarding both the going concern issue and the status of the Company’s internal controls. On this news, the price of the Company's stock declined by 22% in three trading days. Plaintiff Shulman is a resident of Fort Lauderdale, Florida. He purchased 70,000 shares of Party City common stock on February 1, 2023 at a total cost of $10,029. Party City is an American publicly traded retail chain of party stores. Defendant Weston was Party City's chief executive officer.[BN] The Plaintiff is represented by: Michael Dell'Angelo, Esq. Andrew Abramowitz, Esq. James Maro, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: mdellangelo@bm.net aabramowitz@bm.net jmaro@bm.net - and - Joshua H. Grabar, Esq. GRABAR LAW OFFICE One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: 267-507-6085 E-mail: jgrabar@grabarlaw.com PHARMACARE US: Seeks Denial of Corbett Class Cert Bid ----------------------------------------------------- In the class action lawsuit captioned as MONTIQUENO CORBETT, DAMARIS LUCIANO, and ROB DOBBS individually and on behalf of all others similarly situated, v. PHARMACARE U.S., INC., a Delaware Corporation, Case No. 3:21-cv-00137-JES-AHG (S.D. Cal.), the Defendant asks the Court to enter an order denying Plaintiffs' motion for class Certification, appointment of class representatives and class counsel. The Defendant contends that the Plaintiffs present their lawsuit as a temptingly simple case in which the Court need only determine whether Defendant's elderberry products violate the federal Food, Drug and Cosmetics Act ("FDCA") -- either because they contain a new dietary ingredient ("NDI") that requires FDA approval before marketing, or because they make an impermissible disease claim on their labels (the Misrepresentation Products). The Plaintiffs cannot privately enforce the FDCA and their state law claims of consumer deception and breach of express and implied warranties, as actually alleged, are impossible to certify on a classwide basis, the Defendant adds. PharmaCare is a Wellness and Fitness Services, Health & Nutrition Products, and Nutricueticals company. A copy of the Defendant's motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/3Oxb1qP at no extra charge.[CC] The Defendant is represented by: Lawrence E. Butler, Esq. Giovanna A. Ferrari, Esq. Joseph J. Orzano, Esq. Aaron Belzer, Esq. SEYFARTH SHAW LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: lbutler@seyarth.com gferrari@seyfarth.com jorzano@seyfarth.com abelzer@seyfarth.com PRIME HYDRATION: Castillo Sues Over Mislabeled Energy Drinks ------------------------------------------------------------ ELIZABETH CASTILLO, individually and on behalf of all others similarly situated, Plaintiff v. PRIME HYDRATION LLC, Defendant, Case No. 5:23-cv-03885-SVK (N.D. Cal., August 2, 2023) is a class action lawsuit on behalf of similarly situated consumers ("Class Members") who purchased for personal, family, or household use, Defendant's Prime Hydration Grape Sports Drink (the "Product"), which is prominently labeled and marketed as a healthy drink with antioxidants, electrolytes and vitamins to "refresh, replenish, and refuel," when, in fact, the Plaintiff's testing has revealed that the Product contains per- and polyfluoralkyl substances ("PFAS"), a category of synthetic chemicals that are, by definition, artificial. The Plaintiff alleges in the complaint, the Defendant's uniform marketing is intentionally designed to drive sales and increase profits, including by targeting health-conscious consumers who reasonably believe that the Product is a healthy hydration drink that contains nutritious ingredients such as vitamins and antioxidants, and is free from ingredients which are known to be harmful to human health. However, despite the Defendant's consistent and pervasive marketing representations, Plaintiff's independent testing has determined that the Product actually contains PFAS—a category of man-made chemicals with a toxic, persistent, and bioaccumulative nature which are associated with numerous health concerns, the suit says. PRIME HYDRATION LLC market and sells sports drinks, drink mixes, and energy drinks. [BN] The Plaintiff is represented by: Trenton R. Kashima, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 402 West Broadway St., Suite 1760 San Diego, CA 92101 Telephone: (619) 810-7047 Email: tkashima@milberg.com - and - Rachel Soffin, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 Email: rsoffin@ milberg.com - and - Nick Suciu III, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 6905 Telegraph Road, Suite 115 Bloomfield Hills, MI 48301 Telephone: (313) 303-3472 Email: nsuciu@milberg.com - and - Erin Ruben, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC 900 W. Morgan Street Raleigh, NC 27603 Telephone: (919) 600-5000 Email: eruben@milberg.com - and - J. Hunter Bryson, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 405 E 50th Street New York, NY 10022 Telephone: (630) 796-0903 Email: hbryson@milberg.com PROGRESSIVE GULF: Wright Sues Over Retained Insureds' Deductibles ----------------------------------------------------------------- KEONDRAE WRIGHT, on behalf of herself and all others similarly situated, Plaintiff v. PROGRESSIVE GULF INSURANCE COMPANY, Defendant, Case No. CV-23-983205 (Ohio Ct. Com. Pl., Cuyahoga Cty., July 31, 2023) is a class action against the Defendant for breach of contract and restitution/unjust enrichment. The case arises from the Defendant's failure to keep its contractual promise to apply Mississippi law when it recovered the Plaintiff's deductible through subrogation and then pro-rated the amount of the deductible paid to the Plaintiff. The Defendant obtained additional profits and revenues for itself at the expense of its Mississippi insureds. Progressive Gulf Insurance Company is an insurance company with its principal place of business in Cuyahoga County, Ohio. [BN] The Plaintiff is represented by: Joseph F. Murray, Esq. Brian K. Murphy, Esq. MURRAY MURPHY MOUL + BASIL LLP 1114 Dublin Road Columbus, OH 43215 Telephone: (614) 488-0400 Facsimile: (614) 488-0401 E-mail: murray@mmmb.com murphy@mmmb.com - and - Robert G. Methvin, Jr., Esq. James M. Terrell, Esq. METHVIN, TERRELL, YANCEY, STEPHENS & MILLER, PC 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: rgm@mtattorneys.com jterrell@mtattorneys.com PUMA BIOTECHNOLOGY: Court OK's Settlement in Hsu Class Action ------------------------------------------------------------- Puma Biotechnology, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that in August 3, 2022, the court ordered final approval of the parties' settlement and dismissed the class action lawsuit captioned Hsu v. Puma Biotechnology, Inc. et al. filed with the U.S. District Court of the Central District of California. In October 29, 2021, the parties to said class action lawsuit informed the court that they had reached a settlement in principle. In November 9, 2021, the court granted the parties' request, ordering that settlement documents should be filed by December 3, 2021. That same day, the court also clarified an earlier order by making clear that no judgment was entered against any party and that the court would retain jurisdiction over the settlement process. The parties' settlement provides that there will be no judgment for liability entered against the company or its Chief Executive Officer, Alan H. Auerbach, and provides for two installment payments by the Company of approximately $27.1 million each, which were paid in January 2022 and June 2022. in December 29, 2021, the court issued an order preliminarily approving the parties' settlement. Puma Biotechnology, Inc., is a biopharmaceutical company based in Los Angeles, California that develops and commercializes innovative products to enhance cancer care and improve treatment outcomes for patients. PUMA BIOTECHNOLOGY: Dlamini Sues Over Data Breach Incident ---------------------------------------------------------- Puma Biotechnology, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that in May 26, 2023, a certain Mfolozi Dlamini filed a class action complaint against the company in the United States District Court for the Central District of California, alleging injuries as a result of unauthorized disclosure of certain individuals' personally identifiable information in connection with a data security incident discovered by the company in June 2022. The plaintiff seeks monetary and injunctive relief on behalf of himself and the putative class. Puma Biotechnology, Inc., is a biopharmaceutical company based in Los Angeles, California that develops and commercializes innovative products to enhance cancer care and improve treatment outcomes for patients. QUEST DIAGNOSTICS: Plaintiffs Seek Class Cert. in ERISA Litigation ------------------------------------------------------------------ In the class action lawsuit re Quest Diagnostics Incorporated ERISA Litigation, Case No. 2:20-cv-07936-JXN-LDW (D.N.J.), the Plaintiffs will move for entry of the proposed Order granting plaintiffs' motion for class certification. A copy of the Court's order dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3KCvbys at no extra charge.[CC] The Plaintiffs are represented by: James C. Shah, Esq. Alec J. Berin, Esq. John C. Roberts Kolin C. Tang, Esq. James E. Miller, Esq. Laurie Rubinow, Esq. MILLER SHAH LLP 2 Hudson Place, Suite 10 Hoboken, NJ 07030 Telephone: (866) 540-5505 Facsimile: (866) 300-7367 E-mail: jcshah@millershah.com ajberin@millershah.com jcroberts@millershah.com kctang@millershah.com jemiller@millershah.com lrubinow@millershah.com QUICK BOX: Court Defers Class Cert Ruling in Tan Suit ----------------------------------------------------- In the class action lawsuit captioned as LEANNE TAN, v. QUICK BOX, LLC, et al., Case No. 3:20-cv-01082-LL-DDL (S.D. Cal.), the Hon. Judge Linda Lopez entered an order granting joint motion to defer rulings on the Plaintiff's motion for class certification: On July 26, 2023, the Plaintiff Leanne Tan and the Defendants Quick Box, LLC, Stephen Adele, James Martell, and Chad Biggins (collectively the "Quick Box Parties") and the Defendants Converging Resources Corporation, Konnektive LLC, Konnektive Rewards LLC, Kathryn Martorano, and Matthew Martorano (collectively the "Konnektive Parties") filed a joint motion to defer rulings on the Plaintiff's Motion for Class Certification until August 31, 2023. The parties shall file a joint status report on or before August 9, 2023, to update the Court on the status of mediation and settlement discussions. A copy of the Court's order dated July 27, 2023 is available from PacerMonitor.com at https://bit.ly/3OQwhcy at no extra charge.[CC] QUONTIC BANK: Sapan Class Status Bid Tossed w/o Prejudice --------------------------------------------------------- In the class action lawsuit captioned as Paul Sapan v. Quontic Bank et al., Case No. 8:22-cv-00849-CJC-ADS (C.D. Cal.), the Hon. Judge Cormac J. Carney entered an order: -- Denying without prejudice the Plaintiff's motion for class certification; -- Continuing deadline to file motion for class certification; and -- Denying as moot plaintiff's pending request to decline to consider any late-filed papers and Defendants' Written application for continuance. On July 27, 2023, Defendants filed a motion to withdraw as counsel and noticed a hearing date for August 28. Because the Court believes that it is more just and efficient to rule on this motion before ruling on Plaintiff's pending motion for class certification, the motion for class certification is denied without prejudice. After the Court has ruled on the withdrawal motion, the Plaintiff may refile the motion for class certification to the extent that Plaintiff deems doing so necessary and appropriate. Accordingly, the deadline set in the Court's Scheduling Order to file and have heard any motion for class certification is continued to October 9, 2023. further, the plaintiff's request to decline to consider any late-filed papers and deem Defendant to have consented to class certification, and Defendants' written application for continuance of opposition, reply and hearing date on the plaintiff's motion for class certification for approximately 30 days, are denied as moot. Quontic is a U.S.-based digital bank headquartered in Astoria, New York City. A copy of the Court's order dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/3qs7272 at no extra charge.[CC] REDFIN CORP: Settlement in Bell Suit Initially OK'd --------------------------------------------------- Redfin Corporation disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that in May 23, 2022, pursuant to a combined mediation, it settled a lawsuit brought by a Jason Bell subject to court approval. In April 7, 2023, plaintiffs filed a motion for preliminary approval of the class settlement and was granted by the court in May 4, 2023. In November 20, 2020, Jason Bell, a former lead agents as well as a former associate agent, filed a complaint against us in the U.S. District Court for the Southern District of California. The complaint was pled as a class action and alleged that, during the time he served as an associate agent, the company misclassified him as an independent contractor instead of an employee and during the time he served as a lead agent, he was misclassified as an employee who was exempt from minimum wage and overtime laws. The plaintiff also asserted representative claims under California's Private Attorney General Act (PAGA). He sought unspecified amounts of unpaid overtime wages, regular wages, meal and rest period compensation, waiting time and other penalties, injunctive and other equitable relief, and plaintiff's attorneys' fees and costs. The Redfin Corporation is a Seattle-based operator of a residential real estate brokerage. It operates in more than 100 markets in the United States and Canada. REDFIN CORP: Settlement in Cook Suit Initially Approved ------------------------------------------------------- Redfin Corporation disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission, that in May 23, 2022, pursuant to a combined mediation, it settled a lawsuit brought by a Devin Cook subject to court approval. In April 7, 2023, plaintiff filed a motion for preliminary approval of the class settlements and the motion was granted by the court in May 4, 2023. In August 28, 2019, Devin Cook, a former independent contractor licensed sales associates filed a complaint in the Superior Court of California, County of San Francisco. The plaintiff initially pled the complaint as a class action and alleged that the company misclassified her as an independent contractor instead of an employee. The plaintiff also sought unspecified penalties pursuant to representative claims under California's Private Attorney General Act (PAGA). On January 30, 2020, the plaintiff filed a first amended complaint dismissing her class action claim and asserting only claims under PAGA. The Redfin Corporation is a Seattle-based operator of a residential real estate brokerage. The company operates in more than 100 markets in the United States and Canada RICHARD KING: Filing for Class Cert. Bid in Zaidi Reset to Oct. 4 ----------------------------------------------------------------- In the class action lawsuit captioned as ALI ZAIDI, Individually and on Behalf of All Others Similarly Situated, v. RICHARD A. KING, Case No. 4:19-cv-08051-JSW (N.D. Cal.), the Hon. Judge Jeffrey S. White entered an order granting Parties' stipulation and order staying case and resetting deadlines as follows: Event Current Proposed Deadline Deadline Plaintiff to file motion for Oct. 4, 2023 Jan. 10, 2024 class certification Defendant to file opposition to Nov. 15, 2023 March 15, 2024 motion for class certification Plaintiffs to file reply to Dec. 20, 2023 April 17, 2024 motion for class certification Hearing on motion for class Jan. 26, 2024 May 24, 2024 certification Deadline to amend pleading or May 1, 2024 Aug. 30, 2024 add parties Deadline to complete fact May 13, 2024 Sept. 10, 2024 discovery Deadline to file further joint June 21, 2024 June 21, 2024 case management conference statement Deadline to complete expert Aug. 28, 2024 Jan. 30, 2025 discovery A copy of the Court's order dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3Ots11j at no extra charge.[CC] The Plaintiff is represented by: Leanne H. Solish, Esq. Robert V. Prongay, Esq. Christopher R. Fallon GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: rprongay@glancylaw.com lsolish@glancylaw.com cfallon@glancylaw.com The Defendant is represented by: Patrick E. Gibbs, Esq. Shannon M. Eagan, Esq. Tijana Brien, Esq. Janelle M. Fernandes, Esq. COOLEY LLP 3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5000 Facsimile: (650) 849-7400 E-mail: pgibbs@cooley.com seagan@cooley.com tbrien@cooley.com jfernandes@cooley.com RICOLA USA: Davis Seeks Class Status in Cough Suppressant Suit -------------------------------------------------------------- In the class action lawsuit captioned as Lacie Davis, individually and on behalf of all others similarly situated, v. Ricola USA, Inc., Case No. 3:22-cv-03071-CRL-KLM (C.D. Ill.), the Plaintiff asks the Court to enter an order: 1. Certifying all persons who purchased cough suppressant and oral anesthetic lozenges labeled on the front as "Made With Swiss Alpine Herbs" sold by Ricola USA, Inc. in Illinois from February 3, 2019 through the present, excluding the judge or magistrate assigned to this case; Defendant; any entity in which the Defendant has a controlling interest; Defendant's Officers, directors, legal representatives, successors, and assigns; and persons who purchased the product for the purpose of resale; 2. Appointing Lacie Davis as representative of the Class; and 3. Appointing Sheehan & Associates, P.C. as Class Counsel. Ricola is the U.S. branch of the Swiss cough drop manufacturer. A copy of the the Plaintiff's motion dated July 28, 2023 is available from PacerMonitor.com at https://bit.ly/3OSvesB at no extra charge.[CC] The Plaintiff is represented by: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 60 Cuttermill Rd. Ste 412 Great Neck NY 11021 Telephone: (516) 268-7080 E-mail: spencer@spencersheehan.com SPARK ELECTRIC: Perdomo Sues Over Unpaid OT, Retaliatory Discharge ------------------------------------------------------------------ ROLANDO PERDOMO, individually and on behalf of all others similarly situated, Plaintiff v. SPARK ELECTRIC INC. and RAUL DELGADO, Defendants, Case No. 1:23-cv-22858 (S.D. Fla., July 31, 2023) is a class action against the Defendants for failure to pay overtime wages and retaliatory discharge in violation of the Fair Labor Standards Act. Mr. Perdomo was employed by the Defendants as an electrician from approximately August 01, 2020, through July 20, 2023. Spark Electric Inc. is an electrical company, with its place of business in Dade County, Florida. [BN] The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com TACO BELL: Siragusa Sues Over Menu Items' Overstated Ingredients ---------------------------------------------------------------- FRANK SIRAGUSA, individually and on behalf of all others similarly situated, Plaintiff v. TACO BELL CORP., Defendant, Case No. 1:23-cv-05748 (E.D.N.Y., July 31, 2023) is a class action against the Defendant for violations of New York Deceptive Acts and Practices Act. The Plaintiff brings a class action against the Defendant for unfair and deceptive trade practices for falsely advertising the amount of beef and/or ingredients contained in Taco Bell's Crunchwrap Supreme, Grande Crunchwrap, Vegan Crunchwrap, Mexican Pizza, and Veggie Mexican Pizza menu items. Taco Bell materially overstates the amount of beef and/or ingredients contained in its advertisements for the mentioned menu items by at least double the amount. Had the Plaintiff and Class members known the truth, they would not have purchased the menu items or would have paid less for them, says the suit. Taco Bell Corp. is a fast-food restaurant company, with its headquarters located in Irvine, California. [BN] The Plaintiff is represented by: James Kelly, Esq. THE LAW OFFICE OF JAMES C. KELLY 244 5th Avenue, Suite K-278 New York, NY 10001 Telephone: (212) 920-5042 E-mail: jkelly@jckellylaw.com - and - Anthony J. Russo, Jr., Esq. ANTHONY J. RUSSO, JR., P.A. d/b/a THE RUSSO FIRM 301 West Atlantic Avenue, Suite 0-2 Delray Beach, FL 33444 Telephone: (844) 847-8300 E-mail: anthony@therussofirm.com TAXSLAYER INC: Shares Taxpayers' Data to 3rd Parties, Temple Says ----------------------------------------------------------------- ROBERT C. TEMPLE, on behalf of himself and all others similarly situated v. TAXSLAYER, INC., Case No. 230800122 (Pa. Com. Pl., Philadelphia Cty., Aug. 1, 2023) is a class action lawsuit brought on behalf of Pennsylvania residents against TaxSlayer for intercepting, using, and sharing sensitive taxpayer data with Meta Platforms, Inc. and Google LLC and its affiliates without the taxpayers' knowing and voluntary consent, in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act. According to the complaint, the confidential tax return information TaxSlayer unlawfully intercepted, disclosed, disseminated, and transmitted to third-parties, including Meta and Google, included taxpayers' names, phone numbers, and the names of dependents. In developing its website and other online applications, TaxSlayer allegedly inserted pixels into the code and used other tools, including Google Analytics, to intercept the Plaintiff's and the Class Members' electronic communications automatically and surreptitiously, says the suit. The Plaintiff brings this class action on behalf of himself and a class of persons: All persons who while residing in Pennsylvania used TaxSlayer's online tax preparation software to prepare and/or file a tax return during the time that Meta Pixel or Google Analytics coding was present and active on TaxSlayer's website and/or its other online mobile and desktop applications up and until November 23, 2022. Excluded from the Class are TaxSlayer (as defined), its parents, subsidiaries, affiliates, officers and directors, any entity in which TaxSlayer has a controlling interest, all persons within the class definition who make a timely election to be excluded, governmental entities, and all judges assigned to hear any aspect of this litigation, as well as their immediate family members. Due to TaxSlayer's violations, TaxSlayer is liable to the Plaintiff and the Class Members for actual damages, but not less than liquidated, statutory damages computed at the rate of $100 a day for each day of the violation, or $1,000, whichever is higher; punitive damages; and reasonable attorney's fees and other litigation costs reasonably incurred. Mr. Temple is a citizen of the Commonwealth of Pennsylvania, and resides in Montour County. He used TaxSlayer's online tax preparation and filing services in 2021 to file federal and state tax returns jointly with his wife. TaxSlayer developed, maintained, offered and operated online tax preparation software on the internet at http://www.taxslayer.com for the purpose of assisting taxpayers in preparing and filing federal, state, and local tax returns.[BN] The Plaintiff is represented by: James P. Goslee, Esq. Michael Coren, Esq. Eric S. Pasternack, Esq. COHEN, PLACITELLA & ROTH, P.C. 2001 Market St., Suite 2900 Philadelphia, PA 19103 Telephone: (215) 567-3500 E-mail: jgoslee@cprlaw.com mcoren@cprlaw.com epasternack@cprlaw.com TESLA INC: Ruiz Suit Remanded to San Bernardino Superior Court -------------------------------------------------------------- Judge Fernando M. Olguin of the U.S. District Court for the Central District of California remands the lawsuit titled Rocio Juarez Ruiz v. Tesla, Inc., et al., Case No. ED CV 22-0693 FMO (KKx) (C.D. Cal.), to the Superior Court of the State of California for the County of San Bernardino. On Jan. 21, 2022, Plaintiff Rocio Juarez Ruiz filed a first amended complaint in state court against Tesla, Inc., and Atlantic Solutions Group Inc. On April 22, 2022, Tesla removed the then-putative class action pursuant to the Class Action Fairness Act of 2005 ("CAFA"), which requires only minimal diversity of the parties. In its Notice of Removal ("NOR"), Tesla did not set forth Atlantic's citizenship. On Sept. 19, 2022, the Plaintiff filed the operative Second Amended PAGA Representative Action Complaint, asserting only a representative claim for civil penalties under the Private Attorneys General Act, ("PAGA"). The Plaintiff did not set forth the basis for the Court's jurisdiction. On June 23, 2023, the Court issued an order to show cause directing the parties to set forth the basis for its jurisdiction. The parties responded to the order to show cause. The Plaintiff contends that at the time Tesla removed the action, minimal diversity may have been lacking, and that even if removal was proper, the Court should decline to exercise supplemental jurisdiction over the remaining PAGA claim. The Defendants state that minimal diversity existed at the time of removal, but recognize that the Court may decline to exercise supplemental jurisdiction over the PAGA claim. The Defendants contend that "principles of judicial economy and convenience support the Court exercising supplemental jurisdiction" because their motion to compel arbitration is fully briefed. They assert that remanding the case would delay resolution of their motion and would not promote economy or convenience. However, as the Court stated in its prior order, to the extent the parties rely on the initial removal pursuant to CAFA, the Court would consider whether an exception to CAFA applies, and in doing so, could order supplemental briefing and jurisdictional discovery. Also, because the Plaintiff seeks to conduct jurisdictional discovery to address the applicability of a CAFA exception, Judge Olguin says a ruling on the motion to compel arbitration would be substantially delayed. Moreover, the Court has not issued any substantive orders in this case. Thus, the Court will exercise its discretion and decline to exercise supplemental jurisdiction over the remaining PAGA claim. Judge Olguin says this Order is not intended for publication. Nor is it intended to be included in or submitted to any online service, such as Westlaw or Lexis. Based on the foregoing, Judge Olguin holds that: 1. the action will be remanded to the Superior Court of the State of California for the County of San Bernardino; 2. the Clerk will send a certified copy of this Order to the state court; and 3. any pending motion is denied as moot. A full-text copy of the Court's Order dated July 27, 2023, is available at https://tinyurl.com/5cktn8v2 from Leagle.com. THOMPSON CREEK: 4th Cir. Affirms Dismissal of Bailey Class Suit --------------------------------------------------------------- In the lawsuit captioned LAWRENCE BAILEY; WILLIAM ESTRADA, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants v. THOMPSON CREEK WINDOW COMPANY, a Maryland Corporation; RICK WUEST, Defendants-Appellees, Case No. 21-2345 (4th Cir.), the United States Court of Appeals for the Fourth Circuit affirms the dismissal of the underlying class action. Lawrence Bailey and William Estrada each bought windows from Thompson Creek Window Company. Thompson Creek markets its windows as being ENERGY STAR-certified, a moniker attached to windows that meet a certain, government-set, energy efficiency standard. But, according to Bailey and Estrada, Thompson Creek windows are not ENERGY STAR-certified. So Bailey and Estrada sued them in federal court, in a class action lawsuit, for various Maryland state law torts. The trouble with suing Thompson Creek in federal court is that Bailey and Estrada had promised not to do that when they bought their windows, the Panel notes. When purchasing the windows, they both signed contracts that contained an arbitration agreement. In a section labeled "Additional Terms and Conditions," there was a subsection titled "Arbitration of Disputes." The district court dismissed the suit, finding it must be arbitrated. It rejected the Plaintiffs' argument that the arbitration provision was unenforceable because it lacked consideration and because it was unconscionable. The Plaintiffs now appeal, raising those same two arguments. The Court of Appeals agrees with the district court and so affirms. The Panel finds that the arbitration agreements between Bailey and Thompson Creek and Estrada and Thompson Creek were supported by consideration. All parties to the Thompson Creek arbitration agreements promised to arbitrate some claims. So the agreement had enough consideration to be enforceable, the Panel points out. Plaintiffs-Appellants Bailey and Estrada fight this conclusion by arguing that Thompson Creek's promise to submit to arbitration is illusory because Thompson Creek was allowed to sue purchasers in court to "enforce the monetary obligation represented by the" window purchase agreement. Since, according to them, these are the only claims Thompson Creek might plausibly bring, Thompson Creek has not truly agreed to bring any claims in arbitration. Therefore, according to Bailey and Estrada, Thompson Creek has not agreed to be bound by anything at all. This argument fails because it mistakes the nature of consideration, the Court of Appeals opines. The question is not whether Thompson Creek has agreed to give up its ability to bring a certain class of claims. It is whether Thompson Creek has agreed to arbitrate any claims at all--no matter who brings them or how likely those claims were to be brought. And it has. Along with its own claims unrelated to enforcing monetary obligations, Thompson Creek has agreed to arbitrate all claims brought by purchasers against it. That is all the consideration Maryland law requires, the Panel points out. According to the Court of Appeals, the arbitration agreement is not substantively unconscionable. The parties agreed to arbitrate certain claims and Thompson Creek reserved the right to bring others in court. Thompson Creek may have gotten the better of that bargain, but that does not render the agreement unconscionable. So the district court was correct to hold it enforceable. Affirmed. Affirmed by unpublished per curiam opinion. A full-text copy of the Court's Opinion dated July 27, 2023, is available at https://tinyurl.com/4zu4kzcj from Leagle.com. Christopher Le -- cle@boiesbattin.com -- BOIESBATTIN LLP, in Fairfax, Virginia; Elaine A. Ryan -- eryan@auer-ryan.com -- AUER RYAN P.C., in Maricopa, Arizona; Karl J. Protil, Jr. -- kprotil@shulmanrogers.com -- SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A., in Potomac, Maryland; Tim Bosson -- tbosson@bossonlaw.com -- BOSSON LEGAL GROUP, PC, in Fairfax, Virginia, for the Appellants. John A. Bourgeois -- jbourgeois@kg-law.com -- Bradley M. Strickland -- bstrickland@kg-law.com -- KRAMON & GRAHAM, P.A., in Baltimore, Maryland; Diane J. Zelmer, BERENSON LLP, in Jupiter, Florida, for the Appellees. TWITTER INC: Scott and Israel Named Co-Lead Class Counsel in Gerber ------------------------------------------------------------------- In the case, STEPHEN GERBER, et al., Plaintiffs v. TWITTER, INC., et al., Defendants, Case No. 23-cv-00186-KAW (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California grants the Plaintiffs' motion to appoint interim class counsel. On Jan. 13, 2023, the Plaintiffs filed the instant putative class action against Twitter, alleging that a defect in the Defendant's application programming interface ("API") allowed cybercriminals to exploit the defect and "scrape" user data, including usernames, e-mail addresses, and phone numbers. Pending before the Court is the Plaintiffs' unopposed motion to appoint interim class counsel. The Court previously deemed the matter suitable for resolution without a hearing pursuant to Civil Local Rule 7-1(b). On Jan. 13, 2023, Gerber filed the instant putative class action, alleging claims of negligence, breach of contract, and violations of California's Unfair Competition Law based on the alleged data security breach. On Jan. 17, 2023, a similar putative class action was filed in state court, which was later removed to federal court, citing Weitzman v. Twitter, Inc., Case No. 23-766-KAW. On April 6, 2023, the Court granted the parties' joint administrative motion to consolidate the two cases. On April 20, 2023, the operative consolidated class action complaint was filed. On April 4, 2023, the Plaintiffs filed a motion to appoint Scott+Scott Attorneys at Law LLP and Israel David LLC as the interim co-lead class counsel. They also requested that the Court appoints a Steering Committee. On May 5, 2023, the Court requested supplemental briefing as to why a steering committee was necessary, citing cases that declined to appoint such committees where the Plaintiffs failed to explain how the interests of the class diverged or were dissimilar. On May 19, 2023, the Plaintiffs filed a supplemental brief, withdrawing their request for a steering committee. On May 5, 2023, the Court requested further supplemental briefing as to why appointment of interim class counsel was necessary. On June 13, 2023, the Plaintiffs filed their second supplemental brief. To date, no opposition has been filed to the pending motion to appoint interim class counsel. Judge Westmore explains that while Rule 23 does not articulate a standard for appointment of interim counsel, courts typically consider the factors contained in Rule 23(g)(1), namely: (1) the work counsel has done in identifying or investigating the claims in the action, (2) counsel's experience in handling class actions, complex litigation, and/or the types of claims asserted in the case, (3) counsel's knowledge of the applicable law, and (4) the resources that counsel will commit to representing the class. Based on the filings before the Court, Judge Westmore finds that the proposed interim counsel would be appropriate per the standards of Rule 23(g)(1). The proposed interim lead counsel has investigated the Defendant's response to the data breach and technical specifications of the breach, conducted factual research, discussed the breach with potential expert witnesses, reviewed whistleblower reports, and analyzed similar data breaches. Moreover, the proposed interim lead counsel appears to have significant experience in class actions and data breach cases. Finally, the proposed interim lead counsel state that collectively, they possess the ability to finance the litigation through trial without seeking third-party funding. Given that the instant motion effectively avoids contested motions for appointment of interim lead counsel, as well as the potential for additional lawsuits (and competing attorneys), Judge Westmore finds that appointment of interim counsel is warranted. This is particularly the case where the parties have significant experience in both class actions and data privacy cases, have investigated the breach at issue, and have demonstrated an ability to cooperate with one another to save both party and judicial resources. For the reasons she stated, Judge Westmore grants the Plaintiffs' motion and appoints Scott+Scott LLP and Israel David LLC as the Interim Co-Lead Class Counsel. The counsel will be responsible for litigating this action, including but not limited to coordinating discovery, briefing, organizing the litigation, settlement negotiations, entering into stipulations with opposing counsel, preparing status reports, maintaining time and disbursement records covering services for all Plaintiffs' counsel, and the delegation of tasks to other counsel and monitoring of any other law firms that might seek to represent putative class members to ensure that schedules are met. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/2v6xhc5s from Leagle.com. TZUMI INNOVATIONS: Final Approval of Class Action Settlement Sought ------------------------------------------------------------------- In the class action lawsuit captioned as IRIS BOLING, JOHN GORDON, and KARI PROSKIN on behalf of a class of all others similarly situated, V. TZUMI INNOVATIONS, LLC, Case No. 1:22-cv-05919-JSR (S.D.N.Y.), the Plaintiffs ask the Court to enter an order granting their motion for certification of the Settlement Class and Final Approval of the Class Action Settlement pursuant to Rule 23 of the Federal Rules of Civil Procedure. A copy of the Plaintiffs' motion dated July 28, 2023, is available from PacerMonitor.com at https://bit.ly/3OySx9j at no extra charge.[CC] The Plaintiff is represented by: Rachel Soffin, Esq. Russell Busch, Esq. Nick Suciu III, Esq. Trenton R. Kashima, Esq. J. Hunter Bryson, Esq. Zoe T. Aaron, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Telephone: (865) 247-0080 E-mail: rsoffin@milberg.com rbusch@milberg.com nsuciu@milberg.com tkashima@milberg.com hbryson@milberg.com zaaron@milberg.com - and - Joel Smith, Esq. BURSOR & FISHER, P.A. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 E-mail: jsmith@bursor.com UAG ESCONDIDO: S.D. California Grants Bid to Dismiss Esparza Suit ----------------------------------------------------------------- Chief District Judge Dana M. Sabraw of the U.S. District Court for the Southern District of California grants the Defendant's motion to dismiss the lawsuit captioned MIGUEL ESPARZA, individually and on behalf of all others similarly situated, Plaintiff v. UAG ESCONDIDO A1 INC., a Delaware corporation, dba ACURAOFESCONDIDO.COM, and DOES 1 through 10, inclusive, Defendants, Case No. 23cv0102 DMS(KSC) (S.D. Cal.). As alleged in the Complaint, sometime between November 2021 and November 2022, Plaintiff Miguel Esparza used his smart phone to visit the Defendant's website, acuraofescondido.com. Through the website's chat feature, the Plaintiff had a conversation with Defendant UAG Escondido A1 Inc. The Plaintiff alleges he is a consumer privacy advocate with dual motivations for initiating a conversation with the Defendant. First, he was genuinely interested in learning more about the goods and services offered by the Defendant. Second, he is a tester, who works to ensure that companies abide by the privacy obligations imposed by California law. Mr. Esparza alleges the Defendant was secretly recording their conversations or allowing, aiding, and abetting a third party to intercept and eavesdrop on them in real time. Indeed, he alleges the Defendant secretly wiretaps the private conversations of everyone, who communicates through the chat feature at www.acuraofescondido.com, and allows at least one third party to eavesdrop on such communications in real time and during transmission to harvest data for financial gain. The Plaintiff alleges that to enable the wiretapping, the Defendant has covertly embedded software code that functions as a device and contrivance into its website that automatically intercepts, records and creates transcripts of all conversations using the website chat feature. As a result of his experience with the Defendant's website, and its alleged practices with regard to other visitors to its website, the Plaintiff, individually and on behalf of all others similarly situated, filed the present case against the Defendant in the Superior Court of the State of California for the County of San Diego. In the Complaint, the Plaintiff alleges two claims under California's Invasion of Privacy Act, one for violation of California Penal Code Section 631 and one for violation of California Penal Code Section 632.7. On Jan. 19, 2023, the Defendant removed the case to this Court pursuant to the Class Action Fairness Act. The present motion followed. Judge Sabraw finds that the present motion is not unlike the motion to dismiss filed in Garcia v. Build.com, Inc., Case No. 22cv1985 DMS (KSC). That case involved different parties, but the complaint in that case is otherwise identical to the Complaint in the present case, and the Plaintiff's counsel in both cases is the same. The motion in Garcia also raised many of the same issues raised in the present motion. In a recent order, the Court granted the motion to dismiss in Garcia (Garcia, Case No. 22-cv-01985-DMS-KSC, 2023 WL 4535531 (S.D. Cal. July 13, 2023)). Given that the Complaint in this case is nearly identical to the Garcia complaint, and in light of the overlap between the arguments raised in the present motion and the arguments raised in Garcia, the Court incorporates the reasoning of Garcia to this case, and grants the Defendant's motion to dismiss the present case, as well. For the reasons stated in Garcia, Judge Sabraw holds that the Plaintiff's first claim alleging a violation of California Penal Code Section 631 is dismissed without prejudice to the extent it is based on Clause 4 of that statute. All other claims are dismissed with prejudice. If the Plaintiff wishes to amend his claim under Clause 4, his First Amended Complaint was due on Aug. 10, 2023. A full-text copy of the Court's Order dated July 27, 2023, is available at https://tinyurl.com/4tnhsuus from Leagle.com. ULTA SALON: $1.5M Class Deal in Kabasele Suit Wins Prelim. Approval ------------------------------------------------------------------- In the case, DORCAS-COTHY KABASELE, an individual, Plaintiff v. ULTA SALON, COSMETICS & FRAGRANCE, INC.; and DOES 1-100, inclusive, Defendant, Case No. 2:21-cv-1639 WBS CKD (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California grants the Plaintiff's unopposed renewed motion for preliminary approval of a class action settlement. Plaintiff Kabasele, individually and on behalf of similarly situated individuals, brought the putative class action against Ulta, alleging violations of California wage and hour laws. Before the Court is the Plaintiff's unopposed renewed motion for preliminary approval of a class action settlement. Ulta employed the Plaintiff and other proposed class members as hourly-paid or non-exempt employees. The Plaintiff brought the action for (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal breaks; (4) failure to provide rest breaks; (5) failure to pay sick pay; (6) failure to furnish accurate itemized wage statements; (7) failure to pay wages due at end of employment; (8) failure to indemnify all necessary business expenditures; (9) violation of California's Unfair Competition Law, California Business & Professions Code Section 17200 et seq.; and (10) penalties under California's Private Attorneys General Act of 2004 ("PAGA"), Cal. Lab. Code Section 2698 et seq. The case is one of four actions against Ulta covering similar class and PAGA claims. The other actions are Gonzalez v. Ulta Salon Cosmetics & Fragrance, Inc., No. 2:22-cv-00363 AB RAO (C.D. Cal.), a federal class and PAGA action; Arellano v. Ulta Salon, Cosmetics and Fragrance, Inc., No. 5:22-cv-00639 JGB KK (C.D. Cal.), a federal class action; and Arellano v. Ulta Salon, Cosmetics and Fragrance, Inc., No. CIVSB2209151 (San Bernardino Super. Ct.), a state PAGA action. The proposed settlement disposes of all four actions. All parties agreed to seek settlement approval only in this action; once the settlement receives final approval and all class payments are distributed, the counsel in the Gonzalez and Arellano actions (state and federal) will voluntarily dismiss their cases. The putative class consists of all current and former hourly-paid or non-exempt employees who worked for Ulta within California between Oct. 12, 2019 and Nov. 8, 2022. There are approximately 18,711 individuals in the putative class. The parties propose a gross settlement amount of $1.5 million, which covers all four actions and includes the following: (1) $5,000 incentive awards for the three lead plaintiffs and $500 for each remaining named plaintiff, for a total of $27,000 in plaintiff incentive awards; (2) maximum attorneys' fees of $500,000, or 33.33% of the gross settlement amount; (3) settlement administration costs of approximately $65,000; and (4) $50,000 for PAGA penalties, of which 75% (i.e., $37,500) will be distributed to the Labor and Workforce Development Agency ("LWDA") and the remaining 25% will be distributed to individual aggrieved employees. After deduction of the incentive awards, fees, costs, and the LWDA's share of penalties, the net settlement amount would be approximately $870,500, to be distributed to class members pro rata based on their number workweeks during the class period. The settlement would release the Defendant from any and all class claims that were pled or could have been pled based on the factual allegations in the operative or prior complaints, and any and all PAGA claims for civil penalties premised on the released class claims. A hearing on the first motion for preliminary approval was set for March 6, 2023. Due to an error in the briefing identified by counsel during the hearing, the Court declined to hear further oral argument at that time. It subsequently issued an order explaining its evaluation of the initial briefing and ordered the parties to submit supplemental briefing. Following supplemental briefing, the Court denied the motion, indicating that the parties needed to provide adequate factual support for the figures and calculations they relied upon in arguing that the settlement was fair and adequate. The putative class consists of all current and former hourly-paid or non-exempt employees who worked for Defendant Ulta within California between Oct. 12, 2019 and Nov. 8, 2022. Judge Shubb grants the Plaintiff's motion for preliminary certification of a conditional settlement class and preliminary approval of the class action and PAGA settlement. He also grants the Plaintiff's request for leave to amend the operative complaint in order to join the named plaintiffs from the other actions covered by this settlement. The Plaintiff has 10 days from the date of the Order to file the amended complaint. The following class be provisionally certified for the purpose of settlement: All current and former hourly-paid or non-exempt employees who worked for Defendant within the state of California during the time period from Oct. 12, 2019 through Nov. 8, 2022. The proposed settlement is preliminarily approved as fair, just, reasonable, and adequate to the members of the settlement class, subject to further consideration at the final fairness hearing after distribution of notice to members of the settlement class. For purposes of carrying out the terms of the settlement only: (a) Dorcas-Cothy Kabasele is appointed as the representative of the settlement class and is provisionally found to be an adequate representative within the meaning of Federal Rule of Civil Procedure 23; (b) the law firms of Mayall Hurley, P.C., SW Employment Law Group, APC, and Lavi & Embrahimian, LLP, are provisionally found to be fair and adequate representatives of the settlement class and are appointed as class counsel for the purposes of representing the settlement class conditionally certified in the Order; and (c) Simpluris, Inc. is appointed as the Settlement Administrator. The form and content of the proposed Notice of Class Action Settlement is approved, except to the extent that it must be updated to reflect dates and deadlines specified in the Order. No later than 15 calendar days from the date the Order is signed, the Defendant's counsel will provide the Settlement Administrator with the following information about each class member: full name; last known address; last known telephone number; dates of employment with the Defendant as an hourly-paid or non-exempt employee; the number of workweeks worked during the Class Period; the number of workweeks worked during the PAGA Period; Social Security number; and the last known email address. No later than 10 calendar days from the date the Defendant submits the contact information to the Settlement Administrator, it will mail a Notice of Class Action Settlement to all members of the settlement class via first class mail. If a Notice is returned to the Settlement Administrator with a forwarding address, the Settlement Administrator will re-send the Notice to the forwarding address. If no forwarding address is provided, the Settlement Administrator will attempt to locate a more current address within three business days of receipt of the returned mail. No later than 60 days from the date Settlement Administrator mails the Notice of Class Action Settlement, though in the case of a re-mailed notice the deadline will be extended by 15 days, any member of the settlement class who intends to dispute the number of workweeks credited to him or object to, comment upon, or opt out of the settlement will mail written notice of that intent to the Settlement Administrator pursuant to the instructions in the Notice of Class Action Settlement. The final fairness hearing is set for Feb. 5, 2024, at 1:30 p.m. in Courtroom 5 of the Robert T. Matsui United States Courthouse, 501 I Street, Sacramento, California. No later than 28 days before the final fairness hearing, the class counsel will file with the Court a petition for an award of attorney's fees and costs. Any objections or responses to the petition will be filed no later than 14 days before the final fairness hearing. The class counsel may file a reply to any objections no later than seven days before the final fairness hearing. No later than 28 days before the final fairness hearing, the class counsel will file and serve upon the Court and the Defendant's counsel all papers in support of the settlement, the incentive award for the class representative, and any award for attorney's fees and costs. No later than 28 days before the final fairness hearing, the Settlement Administrator will prepare, and the class counsel will file and serve upon the court and the Defendant's counsel, a declaration setting forth the services rendered, proof of mailing, a list of all class members who have opted out of the settlement, a list of all class members who have commented upon or objected to the settlement. To be heard in opposition at the final fairness hearing, a person must, no later than 60 days from the date the Settlement Administrator mails the Notice of Class Action Settlement, (a) serve by hand or through the mails written notice of his or her intention to appear, stating the name and case number of the action and each objection and the basis therefore, together with copies of any papers and briefs, upon the class counsel and counsel for the Defendant, and (b) file said appearance, objections, papers, and briefs with the Court, together with proof of service of all such documents upon counsel for the parties. Responses to any such objections will be served by hand or through the mails on the objectors, or on the objector's counsel if there is any, and filed with the court no later than 14 calendar days before the final fairness hearing. Objectors may file optional replies no later than seven calendar days before the final fairness hearing in the same manner described. Pending final determination of whether the settlement should be ultimately approved, the Court preliminarily enjoins all class members (unless and until the class member has submitted a timely and valid request for exclusion) from filing or prosecuting any claims, suits, or administrative proceedings regarding claims to be released by the settlement. A full-text copy of the Court's July 25, 2023 Memorandum & Order is available at https://tinyurl.com/5fb9zzse from Leagle.com. UNILEVER UNITED: S.D.N.Y. Dismisses Wiggins' Amended Complaint -------------------------------------------------------------- In the case, CRAIG WIGGINS, REBECCA TORRES, and CHARITA HARRELL, on behalf of themselves and all others similarly situated, Plaintiffs v. UNILEVER UNITED STATES, INC., dba DOVE, Defendant, Case No. 21 Civ. 1964 (PGG) (S.D.N.Y.), Judge Paul G. Gardephe of the U.S. District Court for the Southern District of New York grants Unilever's motion to dismiss the Amended Complaint. Plaintiffs Wiggins, Torres, and Harrell bring the class action against Unilever pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. Section 1332(d)(2). They allege violations of Sections 349 and 350 of the New York General Business Law ("GBL") and violations of similar provisions of California and Pennsylvania law, as well as breach of warranty and unjust enrichment under New York, Pennsylvania, and California law. Unilever has moved to dismiss the Amended Complaint, pursuant to (1) Fed. R. Civ. P. 12(b)(1) for lack of standing; (2) Rule 12(b)(2) for lack of personal jurisdiction as to Tones and Harrell's claims; and (3) Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Unilever manufactures, markets, and sells cosmetic products, including certain "washes, and shampoos," under the "Dove" brand name. Its Dove products are sold throughout the United States. Unilever labels many of its Dove products as "hypoallergenic," and its baby washes and shampoos make a "tear-free" claim. Wiggins alleges that he regularly purchased Dove's Nourishing Body Wash and Dove's Men+Care Body and Face Wash Sensitive Shield from the Rite Aid store located at 840 Westchester Avenue, Bronx, New York for approximately 36 months every four to six weeks. Torres alleges that she regularly purchased Dove's Beauty Bar, Deodorant, Dry Skin Relief Body Lotion, and Shampoo Rich Moisture from the Walmart store located at 5200 Van Buren Boulevard, Riverside, California, and from the Food4Less store located at 4250 Van Buren Boulevard, Riverside, California, for approximately 36 months every two weeks. Harrell alleges that she regularly purchased Dove's Baby Bar Rich Moisture, Lotion Rich Moisture, Night Time Lotion, Nourishing Body Wash, and Tip to Toe Wash Rich Moisture from the Rite Aid store located at 1105 North 63rd Street, Philadelphia, Pennsylvania for approximately 24 months every two to three weeks. The Plaintiffs allege that they have suffered skin irritation, eye irritation, dermatitis, and/or an allergic skin reaction in the past. Like similarly situated consumers, they do not know the identity of every ingredient to which they or their families are allergic and do not know to which ingredients they or their families may develop an allergy. The Plaintiffs further allege that consumers seek products labelled as "hypoallergenic" and "tear free" "to avoid developing a skin allergy, to avoid the inflammatory cascade caused by an unidentified skin allergen, and to avoid causing their children to suffer eye irritation or damage during bath time. They saw, relied upon, and reasonably believed the label representation that the products they purchased were 'hypoallergenic' and Plaintiffs Torres and Harrell saw, relied upon, and reasonably believed the label representation that certain of the products they purchased were "'tear free.'" The Amended Complaint claims that Unilever's products are not actually hypoallergenic or tear-free because they all contain (1) ingredients that have been shown to cause serious eye damage lasting longer than 21 day; or (2) skin allergens in an amount that has been shown to cause an allergic reaction in a significant portion of the population under the United Nation's Globally Harmonized System of Classification and Labeling of Chemicals (the "UN Standards") and as determined by the American Contact Dermatitis Society.) The Plaintiffs assert that had they known at the time that the Dove products contain skin sensitizers or allergens or substances that cause skin or eye damage they would not have purchased the products. They further allege that they (1) purchased, purchased more of, or paid more for, the Dove products than they would have had they known that the products were not hypoallergenic, as promised; (2) paid a price premium for a product that was not as represented; and (3) were deprived of the benefit of the bargain because the Dove products had less value than what was represented. Finally, the Plaintiffs allege that if Dove's products were reformulated such that its representations were truthful, they would consider purchasing Dove's products again in the future. The Complaint was filed on March 5, 2021 and the Amended Complaint was filed on Aug. 18, 2021. On Nov. 3, 2021, Unilever moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1), (b)(2), and (b)(6). Unilever has moved to dismiss pursuant to Rule 12(b)(1) for lack of standing, arguing that (1)the Amended Complaint does not adequately allege an injury-in-fact; and (2)the Plaintiffs lack standing to seek injunctive relief. First, Judge Gardephe that the Plaintiffs have standing to seek monetary relief. Courts in this Circuit have consistently ruled that plaintiffs satisfy the requirements of Article III standing when they plead that defendants' misrepresentations caused them to purchase a product that they otherwise would not have purchased. However, Judge Gardephe concludes that the Plaintiffs lack standing to seek injunctive relief. He finds that hypothetical future purchases do not demonstrate the "real or immediate threat" of injury necessary to pursue injunctive relief. Accordingly, the Plaintiffs' claim for injunctive relief are dismissed. Second, Judge Gardephe dismisses Torres and Harrell's claims against Unilever under California and Pennsylvania law, including Torres and Harrell's unjust enrichment and breach of warranty claims (Counts 1, 2, 5, 6, 7, and 8), for lack of personal jurisdiction. He finds that the Plaintiffs have not cited to any "authority approving of the non-traditional application of pendent personal jurisdiction sought here, where a foreign defendant, subject to specific personal jurisdiction with respect to state law claims brought pursuant to the law of the forum state, contests pendent personal jurisdiction with respect to state law claims brought by other plaintiffs pursuant to the laws of non-forum states. Given the dismissal of Torres and Harrell's claims, only Wiggins' claims against Unilever under New York's General Business Law Sections 349 and 350 and for breach of express warranty and unjust enrichment remain. Judge Gardephe finds that the Defendant has not demonstrated that the Plaintiffs' proposed consumer understanding of "hypoallergenic" is unreasonable as a matter of law at this stage in the litigation. Moreover, the Amended Complaint does not adequately plead that the Dove "hypoallergenic" and "tear-free" product labelling is misleading. Accordingly, the Plaintiff Wiggins' claims under the New York General Business Law are dismissed. Third, because the Amended Complaint does not sufficiently plead that Wiggins provided Unilever with notice of the alleged breach of warranty, Judge Gardephe grants Unilever's motion to dismiss the breach of warranty claim. The Amended Complaint does not disclose when Wiggins purchased the Dove products at issue, or when he discovered the alleged defect in these products. Accordingly, Wiggins has not demonstrated that he gave notice within a reasonable time after he "discovered the alleged breach of warranty." Fourth, because Wiggins' unjust enrichment claim is duplicative of his other claims, Judge Gardephe grants Unilever's motion to dismiss the unjust enrichment claim. He finds that Wiggins' argument that the longer statute of limitations for unjust enrichment renders that claim not duplicative ignores controlling law. Finally, the Plaintiffs have requested leave to amend should the Court conclude that the Plaintiffs' allegations are insufficient. Although they have previously amended, leave to amend will be granted, because Judge Gardephe cannot find that no amendment could succeed. For the reasons he stated, Judge Gardephe grants Unilever's motion to dismiss, both as to all of the Plaintiffs' claims and their request for injunctive relief. Any motion for leave to amend must be filed and will include as an exhibit the proposed Second Amended Complaint. Any proposed Second Amended Complaint will have to do some combination of the following: substantiate the Plaintiffs' claims that the in-use concentration of the potentially harmful ingredients in the Dove products are sufficient to cause harm, demonstrate that the Dove products have actually caused some of the harms the Plaintiffs say they can cause, and/or significantly strengthen their allegations that the information necessary to state a claim is exclusively in the Defendant's control. The Clerk of Court is directed to terminate the motion. A full-text copy of the Court's July 26, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/4z8bzzfu from Leagle.com. UNION BANK: Interim Co-Lead Class Counsel Named in Scott Suit ------------------------------------------------------------- In the cases, JEFFREY SCOTT and BONNIE SCOTT, individually and on behalf of all others similarly situated; Plaintiffs v. UNION BANK AND TRUST COMPANY, Defendant. PAUL F. BENDER, individually and on behalf of all others similarly situated; Plaintiff v. UNION BANK AND TRUST COMPANY, Defendant, Case Nos. 4:23CV3126, 8:23CV298 (D. Neb.), Magistrate Judge Michael D. Nelson of the U.S. District Court for the District of Nebraska grants the Plaintiffs' Motion to Consolidate Related Actions and Appoint Interim Co-Lead Class Counsel. The matter is before the Court on the Motion to Consolidate Related Actions and Appoint Interim Co-Lead Class Counsel filed by the Plaintiffs in each of the cases. The Plaintiffs seek consolidation of the related cases, as well as any subsequently filed or transferred related actions, for all purposes pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. After review of the pleadings and the motion, Judge Nelson finds consolidation pursuant to Fed. R. Civ. P. 42(a) is warranted. He finds that the Plaintiffs' claims all arise out of a cyberattack on the Defendant's computer network beginning on May 29, 2023, and May 31, 2023, which compromised the Plaintiffs' sensitive private information. Thus, both actions will involve common questions of law and fact. The Plaintiffs have proposed filing a consolidated amended complaint in what the Court will designate the Lead Case, Scott et al v. Union Bank and Trust Company, Case No. 4:23-cv-03126; thereafter, the Plaintiffs propose administratively closing the remaining member case. Filing a consolidated amended complaint will obviate the need for the Plaintiffs to serve process upon the Defendant in multiple cases and will require the Defendant to only file one responsive pleading. As such, consolidation at this early juncture will conserve the parties' and the Court's resources and better serve the interests of judicial economy. The Plaintiffs also move for the appointment of Mason A. Barney of Siri & Glimstad LLP, David S. Almeida of Almeida Law Group, and Tyler W. Hudson of Wagstaff & Cartmell, LLC, as the Interim Co-Lead Class Counsel. After review of the Rule 23(g)(3) factors, Judge Nelson finds the consolidated actions would benefit from interim class counsel for efficient case management. Proposed interim co-lead counsel are experienced and qualified attorneys, and each has knowledge of the applicable law, experience in managing and prosecuting cases involving data security and privacy, notable successes against large corporate defendants, and resources they are willing to expend to litigate these cases. They were the first to file a case arising out of the data breach at issue in these cases, and have been involved in investigating, prosecuting, and coordinating this litigation. The proposed interim co-lead counsel also plans to contact defense counsel to begin a process of voluntary discovery that may result in early mediation. And, although there is no other counsel currently vying for appointment as interim lead counsel, and the proposed interim co-lead counsel already represent all the current plaintiffs in this consolidated action, the Court nevertheless finds appointment of interim counsel at this juncture makes sense. The data breach at issue allegedly occurred in May 2023, and notice to affected individuals -- of which there are over 200,000 -- began in June 2023. Given the relatively recent notification of thousands of affected individuals, it is reasonable to assume more lawsuits with similar or same claims arising out of the same data breach are forthcoming. For these reasons, Judge Nelson finds the appointment of the proposed interim co-lead counsel is appropriate under Federal Rule of Civil Procedure 23(g). Upon consideration, Judge Nelson grants the Plaintiffs' Motion to Consolidate Related Actions and Appoint Interim Co-Lead Class Counsel. He consolidates the cases for all purposes. He designates Case No. 4:23CV3126 as the Lead Case and Case No. 8:23CV298 as a Member Case. The Court's CM/ECF System has the capacity for spreading text among the consolidated cases. If properly docketed, the documents filed in the Lead Case will automatically be filed in all Member Cases. To this end, the parties are instructed to file all further documents in the Lead Case, 4:23CV3126, Scott et al v. Union Bank and Trust Company, and to select the option yes in response to the System's question whether to spread the text. The Plaintiffs will file a Consolidated Amended Complaint in the Lead Case by Sept. 7, 2023. Once they file a Consolidated Amended Complaint in the Lead Case, the Clerk of Court is directed to administratively close the Member Case. For subsequently filed or transferred cases arising out of the same subject matter at issue in the Consolidated Lead Case, attorneys of record must notify the Court that the case is related to this action pursuant to NEGenR. 1.4(A). Mason Barney, Siri & Glimstad, LLP; David Almeida, Almeida Law Group LLC; and Tyler Hudson, Wagstaff & Cartmell, LLP; are appointed as the Interim Co-Lead Class Counsel. A full-text copy of the Court's July 25, 2023 Order is available at https://tinyurl.com/2p9ya46a from Leagle.com. VIRGINIA: Wall v. Clarke to Proceed Solely on Retaliation Claims ---------------------------------------------------------------- Senior District Judge James P. Jones of the U.S. District Court for the Western District of Virginia, Roanoke Division, rules that the lawsuit titled GARY WALL, Plaintiff v. HAROLD CLARKE, ET AL., Defendants, Case No. 7:19CV00260 (W.D. Va.), will proceed solely on the First Amendment retaliation claims against Sgt. B. Meade, K. Moore, et al. The Plaintiff, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. Section 1983 against more than twenty individuals employed by the Virginia Department of Corrections (collectively, the VDOC Defendants). Wall's Second Amended Complaint asserted multiple constitutional claims against the VDOC Defendants, including alleged violations of his Eighth and Fourteenth Amendment rights related to his long-term confinement in segregation. On March 29, 2023, Judge Jones granted in part and denied in part a Motion for Summary Judgment filed by the VDOC Defendants. In the same Opinion and Order, Judge Jones sua sponte dismissed the Eighth and Fourteenth Amendment claims related to the solitary confinement asserted against three VDOC Defendants on the basis that they are duplicative of the claims asserted against the same defendants in Thorpe v. Virginia Department of Corrections, No. 2:20CV00007, a class action pending in this Court in which Wall is one of the named plaintiffs. Judge Jones directed the parties to brief whether these claims against other remaining Defendants should be severed into a separate action and, if so, whether further proceedings on such claims should be stayed pending the outcome of Thorpe. After review of the record in both cases and the parties' responses, Judge Jones finds it appropriate to sever and stay these claims. Judge Jones holds that relevant factors weigh in favor of severing Wall's claims that he was held in solitary confinement without receiving due process and that his conditions of confinement violated his Eighth Amendment right to be free from cruel and unusual punishment. The factual and legal issues presented by these claims are distinct from those presented by the other remaining claims of retaliation, excessive force, assault, and battery, and will require different witnesses and documentary evidence. Additionally, Judge Jones says, given the number of issues and defendants, trying all of the claims together would be unwieldy, confusing to a jury, and potentially prejudicial to both sides. Severance will also enable the case to proceed to trial more quickly on the claims that survived summary judgment and are ready to be tried. For these reasons, Judge Jones finds that severance is appropriate. Judge Jones also finds it appropriate to stay further proceedings in the new civil action pending the resolution of Thorpe. The decision to stay litigation rests within the broad discretion of the district court. Here, Judge Jones holds that the relevant factors weigh in favor of staying further proceedings on the claims being severed into a new action. Although the Defendants in the new action do not overlap with those named in Thorpe, the cases clearly involve common issues of law and fact. The resolution of the claims and defenses in Thorpe may substantially affect the claims and defenses asserted in the new action, Judge Jones explains. The imposition of a stay will, therefore, promote the interests of judicial economy and consistency and avoid duplication of effort. It will also obviate any ethical concerns associated with defense counsel communicating directly with Wall about the same issues for which he is represented by counsel in the class action. Finally, given the current trial schedule in Thorpe, a stay will not unduly prejudice any party. For these reasons, Judge Jones finds that a stay is warranted. In accordance with the foregoing, Judge Jones ordered as follows: 1. The present case, No. 7:19CV00260, will proceed solely on the First Amendment retaliation claims against Sgt. B. Meade, K. Moore, J. Looney, A. Duncan, and L. Collins, and the Eighth Amendment and state law claims of excessive force, assault, and battery against J. Dickenson, A. Mullins, and B. Begley. The Clerk is directed to set the present case, limited to those claims, for jury trial; 2. The solitary confinement Eighth and Fourteenth Amendment claims are severed into a new and separate civil action against Lt. J. Kiser, A. Gallihar, W. Swiney, A. Duncan, L. Collins, S. Day, C. Gilbert, G. Adams, C. Stanley, J. Lambert, R. Kegley, R. Boyd, M. Taylor, and J. Artrip; 3. The Clerk will docket a copy of the Second Amended Complaint in the new civil action, as well as a copy of the Answer thereto, and a copy of this Order; and 4. All further proceedings in the new action are stayed pending the resolution of Thorpe and further order of the Court. A full-text copy of the Court's Opinion and Order dated July 27, 2023, is available at https://tinyurl.com/4nvt8kff from Leagle.com. Richard C. Vorhis -- rvorhis@oag.state.va.us -- Senior Assistant Attorney General, in Richmond, Virginia, for the Defendants. VISA INC: Class Certification Order in National ATM Suit Affirmed ----------------------------------------------------------------- In the case, NATIONAL ATM COUNCIL, INC., ET AL., Appellees v. VISA INC., ET AL., Appellants, No. 21-7109, Consolidated with Nos. 21-7110, 21-7111 (D.C. App.), the U.S. Court of Appeals for the District of Columbia Circuit affirms the U.S. District Court for the District of Columbia's class certification decision. Mastercard and Visa operate networks that enable banks to communicate with automated teller machines (ATMs) operated by third parties. The Mastercard and Visa networks (CIRRUS and Plus) are enabled on nearly every debit card in circulation in the United States, and by some estimates, are used to process over half of all ATM transactions. Mastercard and Visa require that ATM operators seeking to use their networks agree to rules governing the "access fees" that ATMs may charge cardholders (the Access Fee Rules). A group of ATM operators, along with debit cardholders who were charged fees at bank and non-bank ATMs, filed class action lawsuits challenging those Rules as a violation of antitrust law. Three plaintiff groups filed parallel class-action suits against Mastercard and Visa (Defendants) claiming that the Access Fee Rules restrain competition in violation of Section 1 of the Sherman Act. The ATM Operator Plaintiffs are entities who operate independent ATMs, Burke Plaintiffs are cardholders who were charged unreimbursed access fees at independent ATMs, and Mackmin Plaintiffs are cardholders who were charged unreimbursed access fees at bank-operated ATMs. ATM Operators, Burke Plaintiffs, and Mackmin Plaintiffs (collectively, Plaintiffs) allege that cardholders pay inflated access fees because of the Defendants' anticompetitive restrictions on ATM operators, and that those same restrictions prevent independent operators from using cardholder access-fee discounts to expand their own market share. The district court consolidated the cases, and each plaintiff group moved for class certification. The Defendants opposed class certification on the ground that the Plaintiffs had not shown common antitrust injury and thus failed to meet the predominance requirement of Rule 23(b)(3). As the Court of Appeals observed in a prior appeal of these cases, the three plaintiff groups advance distinct but complementary theories of antitrust harm. ATM Operators claim that the Access Fee Rules' ban on differential surcharging enables Defendants to maintain artificially high network fees that eat into the ATM Operators' revenue. They further claim that the Rules protect Visa's and Mastercard's high network fees from downward pressure that might otherwise be exerted if independent ATMs could compete for customers by charging lower access fees to use their machines to complete transactions over lower-cost networks. According to the Burke and Mackmin plaintiffs, the artificially high network fees lead ATM operators to preserve profits by charging higher access fees to the cardholder class members than they would otherwise. Burke Plaintiffs aim to show that Visa's and Mastercard's inflated network fees have price effects akin to those of a tax on the independent ATM operator industry -- that is, they place upward pressure on the final price of the service, raising the access fee paid by the cardholder at the ATM terminal. And Mackmin Plaintiffs seek to illustrate that effect with additional evidence that high network fees eat into the net revenue that bank ATM operators receive from other banks, which leads ATM operators to charge higher access fees. The district court granted the motions and certified three classes, finding that each satisfied the requirements of Rule 23(a) and Rule 23(b)(3). The Defendants timely sought interlocutory review of the district court's class certification ruling. The Court of Appeals reviews that ruling for abuse of discretion. Mastercard and Visa argue that the district court failed to give a "hard" or "close look" at the Plaintiffs' evidence or to perform a "rigorous analysis" as to whether the Plaintiffs met the predominance requirement. And they assert that the district court erroneously deferred the issue of classwide injury to the merits stage. They contend that the court thus abused its discretion in finding that the Plaintiffs meet the Rule 23(b)(3) requirement that questions of law or fact common to the class predominate over any questions affecting only individual members. The Defendants assert that the evidence indisputably shows each class to contain uninjured members, and they fault the Plaintiffs for not identifying a common "winnowing mechanism" to exclude them. Put simply, Mastercard and Visa contend that the district court did not reach its class certification ruling through rigorous analysis, and that the Plaintiffs do not satisfy Rule 23(b)(3). The Court of Appeals disagrees and remands to the district court for further proceedings consistent with its Order. The Defendants' sole challenge to the class certification order is that the district court abused its discretion in holding that common questions predominate over individualized ones. They object that the district court failed to take a hard look at whether the Plaintiffs' injury models can prove classwide injury through common proof, as binding precedent requires; they assert that the court instead pretermitted the requisite legal scrutiny by improperly deferring it to the 'merits' stage. First, the Court of Appeals concludes that the Defendants' assertions that the district court applied an incorrect legal standard are unfounded. The district court approved the Plaintiffs' evidentiary case as "reasonable" and based on "well established," "well-accepted methodologies" showing class-wide injury. Second, the Court of Appeals confirmed not only that the Plaintiffs offered common proof of injury, but also that their methods of establishing injury were reasonable, well accepted, and reliable. The district court's predominance determination is unaffected by lack of a common method to identify uninjured members. Finally, the district court's order does not bear the hallmarks of class certification decisions that the Court of Appeals or the Supreme Court have invalidated for lack of rigor. The district court was not required at class certification to make the ultimate determination which of two dueling experts to accept, and no party here argues that it would be either necessary or appropriate to do so at this stage on this record. For these reasons, the Court of Appeals affirms the district court's class certification decision. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc. A full-text copy of the Court's July 25, 2023 Judgment is available at https://tinyurl.com/44e5vuv7 from Leagle.com. WILLIS TOWERS: Fails to Pay CSRs' OT Wages Under FLSA, Pitts Says ----------------------------------------------------------------- STEPHANIE PITTS, individually, and on behalf of others similarly situated v. WILLIS TOWERS WATSON US LLC, a limited liability company, and EXTEND HEALTH, LLC, a limited liability company, Case No. 2:23-cv-02951 (E.D. Pa., Aug. 1, 2023) fails to pay customer service representatives their regular hourly rate for all hours worked in non-overtime workweeks, overtime gap time in weeks where it occurred and the federally mandated overtime compensation for all work performed over 40 hours per week in violation of the Fair Labor Standards Act. The Plaintiff alleges that the Defendants engaged in an unlawful policy and practice of requiring the Plaintiff and all the proposed Collective members to perform pre- and post-shift work off the clock, every shift. According to the complaint, CSRs were instructed to be call ready the moment their scheduled shift started, yet the Defendants prohibited them from clocking in before the start of their shift. During the boot-up and login process, the Defendants' CSRs often experienced technical difficulties, increasing the amount of off-the-clock work they performed that day. As a result of the pre- and post-shift off-the-clock work, the Plaintiff and other CSRs were unlawfully deprived of 30 to 40 minutes of compensation every day, the lawsuit claims. The Plaintiff seeks 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 Defendants will not subject future workers to the same illegal conduct in the future. Ms. Pitts worked remotely for the Defendants as an hourly, non-exempt CSR from August 2022 through January 2023. Willis Towers is an advisory, broking and solutions company that helps clients around the world turn risk into a path for growth.[BN] The Plaintiff is represented by: Adam S. Levy, Esq. LAW OFFICE OF ADAM S. LEVY, LLC Oreland, PA 19075 Telephone: (267) 994-6952 E-mail: adamslevy@comcast.net - 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 YELLOW CORP: Rivera Sues Over Mass Layoffs Without Prior Notice --------------------------------------------------------------- ARMANDO RIVERA, on behalf of himself and all others similarly situated v. YELLOW CORPORATION, YRC INC. (d/b/a YRC FREIGHT), USF HOLLAND LLC, NEW PENN MOTOR EXPRESS LLC, and USF REDDAWAY INC., Case No. 1:23-cv-00830-UNA (D. Del., Aug. 1, 2023) sues the Defendants for failing to provide 60 days advance written notice of their terminations, as required by the Worker Adjustment and Retraining Notification Act, the California Labor Code, and 90 days' notice as required by the New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act. According to the complaint, the Plaintiff was terminated along with nearly 30,000 other similarly situated employees as part of, or as the foreseeable result of mass layoffs or plant closings ordered by The Defendants beginning on or about July 28, 2023. The Defendants failed to pay the Plaintiff and each of the Class Members their respective wages, salary, commissions, bonuses, health and life insurance premiums, accrued holiday pay and accrued vacation for 60 days following their respective terminations, and failed to provide employee benefits including health insurance, for 60 days from and after the dates of their respective termination, the lawsuit asserts. The Plaintiff also brings a claim under the New Jersey WARN Act for damages to the New Jersey-based employees of the Defendants, for severance pay equivalent to one week of pay for each full year that he or she worked. The Plaintiff was employed by the Defendants as a dock worker and union steward from July 1998, until July 28, 2023. Yellow Corporation is a less than truckload business with operations throughout the United States in which carriers ship goods from multiple shippers in single trailers.[BN] The Plaintiff is represented by: Christopher D. Loizides, Esq. LOIZIDES, P.A. 1225 King Street, Suite 800 Wilmington, DE 19801 Telephone: (302) 654-0248 Facsimile: (302) 654-0728 E-mail: loizides@loizides.com - and - Jack A. Raisner, Esq. Rene S. Roupinian, Esq. RAISNER ROUPINIAN LLP 270 Madison Avenue, Suite 1801 New York, NY 10016 Telephone: (212) 221-1747 Facsimile: (212) 221-1747 E-mail: jar@raisnerroupinian.com rsr@raisnerroupinian.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***