/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230905.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 5, 2023, Vol. 25, No. 178 Headlines AKIMA GLOBAL: Filing for Class Cert. Bid Reset to March 1, 2024 ALLENTOWN, PA: Ex-HR Director May Join Wrongful Termination Suit ALTRIA GROUP: School District to Receive $3.2M as Vape Settlement AMAZON CANADA: Averts Delivery Drivers' Class Action AMERICAN FIRST: Andrade Files Cross Appeal With 9th Circuit AMP LTD: Settles Suit Over Fee for No Service Scandals for $110M ARCHER AVIATION: May Face Securities Fraud Class Action ARDENT LEISURE: Settles 2016 Dreamworld Tragedy Class Suit for $26M ARIZONA: Transgender Birth Cert. Suit Given Class Action Status ATOMIC WALLET: Faces Class Suit Over $100M Security Breach AUTOZONE INC: Judge Excludes Some Expert Testimony in 401(k) Suit B&G FOODS: Silva Bid to Modify Case Schedule Tossed BACK TO NATURE: Claims in Venticinque Suit Dismissed With Prejudice BLUETRITON BRANDS: Asaad Sues Over Failure to Pay Proper Wages BOARDWALK 1000: Artificially Inflates Room Prices, Fabel Suit Says BRITA PRODUCTS: Brown Sues Over False Water Filtration Pitchers BRITA PRODUCTS: Faces Consumer Class Action in California BUMBLE BEE: Burns Charest Discusses Ruling in Antitrust Suit BUMBLE INC: Attorneys' Fees & Costs Awarded in Securities Suit BUMBLE INC: Settlement in Securities Suit Wins Final Court Approval CAESARS ENTERTAINMENT: Blair-Smith Hits Room Price-Fixing CALYX ENERGY: Class Certification Bid Filing Due March 22, 2024 CERMARK PRODUCE: Faces Class Suit Over Biometric Privacy Violations CHARLES SCHWAB: Faces MOVEit Data Breach Class Action CITIGROUP INC: No Nationwide Class Suit in Bankruptcy Court CLOUDKITCHENS: Faces Class Action Over "Virtual Restaurants" COLETTE PETERS: Montalvo Loses Bid for Class Certification COMERICA INC: Ramos Sues Over Misleading Company Reports CONSERVICE LLC: Tenants File Class Action Over Billing Practices CPA GLOBAL: Parties Must File Summary Judgment Bids by Sept. 29 CRUMBL LLC: Faces Keers Suit Over Illegal Service Fee Charges DEFINITIVE HEALTHCARE: Lens Suit Alleges Illegal Debt Collection DETROIT, MI: Versen's Bid for Class Certification Granted in Part DIOCESE OF KEEWATIN: Proposed $13M Deal in Sex Abuse Suit Reached DOLE PACKAGED: Settles False Advertisement Class Suit for $4.3M DOUGLAS HOLDINGS: Class Settlement in Eberline Gets Initial Nod DRESSER LLC: LDEQ Dismissed from Barton Class Suit ETHOS TECHNOLOGIES: $1M Class Deal in Stein Suit Wins Prelim. Nod EXXON MOBIL: Bid for Class Suit Certification Partly Granted EZRICARE LLC: Class Cert Bid Filing Due Nov. 22 FACTOR75 LLC: Faces Lens Suit Over Illegal Debt Collection FAIRFAX ORAL: MSD Law Firm Investigates Data Breach Claims FENNEC PHARMACEUTICALS: Fisher Securities Suit Dismissed FORD MOTOR: 11th Circuit Remands Order of Class Suit Certification FOUNDEVER OPERATING: Plaintiffs Seek to File Exhibits Under Seal FRONTIER AIRLINES: Faces Suit Over "All You Can Fly Pass" Scheme GANNETT CO: Faces Class Suit Over White Workers' Discrimination GATEHOUSE MEDIA: Wins Bid to Redact Private Information in Exhibits GEISINGER HEALTH: Class Cert Bid Filing Extended to April 26, 2024 GOLDMAN SACHS (ASIA): MINISO ADS Securities Suit Ongoing GOLDMAN SACHS (ASIA): Yatsen ADS Securities Suit Ongoing GOLDMAN SACHS: Agrees to Settle Antirust Class Action for $500M GOLDMAN SACHS: Faces RICO Charges in New York Court GOLDMAN SACHS: Faces Securities Fraud Charges in NY Court GOLDMAN SACHS: Faces Securities Suit Over Stock Liquidation GOLDMAN SACHS: Named in Securities Suit Over Stock Offering GOLDMAN SACHS: Settlement in Discrimination Suit Initially OK'd GOOGLE LLC: $8.4MM Class Deal in Bowlay-Williams Suit Wins Final OK GOOGLE LLC: Court Rejects Dinerstein Privacy Class Action Suit GOOGLE LLC: Fails to Provide Info on NFL's Sunday Ticket Pricing GRAND CANYON: Court Narrows Claims in Ogdon Suit GRUPO TELEVISA: Order & Final Judgment Entered in Securities Suit HEALTH ENROLLMENT: Class Cert Bid Hearing Set for Sept. 11 HYATT FRANCHISING: Faces Class Suit Over Resort Fee Fraud HYATT HOTELS: Faces Class Action Over Junk Fee Practices INDIAN HILL: Filing Class Cert. Bid Due March 1, 2024 INDIVIOR PLC: Settles Suboxone Generic Competition Suit for $30M INTACT PROFESSIONAL: Cooper Sues Over Safety Managers' Unpaid OT J-M MANUFACTURING: Class Cert Fact Discovery Due Sept. 29 JACK IN THE BOX: Judgment Entered on Gessele's Meal Break Claims K&C EXECUTIVE: Walls Seeks Conditional Status of Collective Action KANSAS CITY, MO: Fine Allowed Leave to File Documents Under Seal KING LOGISTICS: Hammonds Sues Over Truck Drivers' Unpaid Wages LEMONADE INC: Jagher Appointed Class Counsel in Data Privacy Case LG ELECTRONICS: Court Tosses Bid to Certify March 29, 2023 Order LOUISIANA: Court Denies Alex's Bid to Access OJJ Client Records LOUISIANA: Plaintiffs' Bid to Compel Production of Docs Tossed MARRIOTT INTERNATIONAL: Bid for Class Decertification Granted MARRIOTT INTERNATIONAL: EFF Files Amicus Brief in Data Breach Suit MASIMO CORP: Bid for Lead Plaintiff Appointment Due Oct. 23 MAXIMUS INC: Fails to Protect Personal & Health Info, Beers Says MIDWESTERN PET: $6.4M Deal in Pet Food Contamination Gets Final OK MLN TOPCO: Ocean Trails Suit Moved to New York County Supreme Court MORGAN STANLEY: Final Judgment Vacation in Data Breach Suit Denied MSP RECOVERY: Bids for Lead Plaintiff Appointment Due Oct 23 MSP RECOVERY: Plaintiff Drops Class Action Complaint NATIONAL ENTERPRISE: Sued Over Notice's Itemized Date Usage NBC NEVADA: Martinez Sues Over Unpaid OT, Untimely Wage Payments NEW AMERICAN: Martin Bid for Class Certification Tossed as Moot NEW HAMPSHIRE: May Face Class Action Over Foster Care System NEW YORK, NY: Court Names Additional Counsel in Handschu v. NYPD NEW YORK, NY: Seeks Dismissal of Suit Over Drivers' Excessive Fines NEWREZ LLC: Court Grants Bid for Class Certification in Yates Suit NEWREZ LLC: Court OK's Yate Bid for Class Certification NORTHROP GRUMMAN: Sued Over Manufacturing Plant's Air Pollution NYC MEDICAL: Must File Bid to Decertify Class in Lawrence Suit OHIO HISTORY: MSD Law Firm Investigates Data Breach Claims OHIO: District Court Dismisses French v. Chambers-Smith, ODRC PAPA INC: Bid to Compel Discovery in Andersen Suit Granted in Part PARAMOUNT GLOBAL: Salazar Appeals Case Dismissal to 6th Cir. PEDDLE LLC: Faces Miller Class Suit Over Failure to Pay Consumers PHL VARIABLE: Class Settlement in AT&LES Suit Gets Initial Nod PRESTIGE COMMUNITY: Court OKs Stipulation to Briefing Sched in Le PRISMA LABS: Court Grants Bid to Compel Arbitration in Flora Suit PROCTER & GAMBLE: 9th Circuit Affirms Class Action Dismissal QANTAS AIRWAYS: Faces Class Suit Over COVID-19 Cancelled Flights QUEBEC: Sued Over Forced Sterilisation of Indigenous Women REGAL REXNORD: Faces Perez Class Suit Over Defective Controllers RES-CARE INC: Fails to Protect Personal Info, Deas Alleges REWARD ZONE: Dismissal of Trim's Claim for TCPA Violation Upheld REWARD ZONE: Ninth Cir. Affirms Dismissal of Count I in Trim Suit RIVIAN AUTOMOTIVE: Bid for Arbitration in Sexual Abuse Suit Denied ROHM SEMICONDUCTOR: Settles Class Suit Over Price Fixing for $42M ROTHCO INC: Angeles Files ADA Suit in S.D. New York SAM REED: AAERS Securities Suit Over SEC Misfiling Tossed SAM REED: Wells Securities Suit Over SEC Filings Dismissed SAN FRANCISCO HILTON: Loses Summary Judgment Bid vs Gonzalez SITEL OPERATING: Pherigo Suit Seeks Conditional Class Certification SPIRIT AIRLINES: Settles Bag Fee Class Action for $8.25 Mil. STAR MARKET: Faces Menin Class Suit Over Sending Marketing Texts SUFFOLK COUNTY, NY: Court Junks Butler Bid for Summary Judgment SYNAGRO WOONSOCKET: Faces Doire Suit Over Facility's Noxious Odors TC HEARTLAND: Prescott Sues Over Mislabeled Splenda Products TERM COMMODITIES: Court Certifies Class in Cotton Futures Suit TERM COMMODITIES: Court Certifies Class in Crosta Suit TERM COMMODITIES: Court Certifies Class in Ledwith Lawsuit TERM COMMODITIES: Court Certifies Class in Meierfeld Lawsuit TERM COMMODITIES: Court Certifies Class in Walford Lawsuit TESLA INC: Investors Awarded $40M Over Losses Due to Musk Tweet ULTIMATE FIGHTING: Attorney Discusses MMA Antitrust Class Action UNITED STATES: Lado Suit Seeks Provisional Class Certification UNIVERSITY OF CHICAGO: Court Rejects Dinerstein Privacy Class Suit UNIVERSITY OF VIRGINIA: Phillips Loses Bid for Prelim. Injunction UNUM GROUP: Faces Class Suit Over 2020 Data Breach VIRGIN AUSTRALIA: Sued Over Failure to Disclose Financial Info WELLS FARGO: Shareholders' Suit Over Fake Interviews Dismissed WENDY'S INT'L: Loses Bid to Dismiss Class Claim in Gollman Suit WEST VIRGINIA: Foster Care Class Certification Partly Granted ZUFFA LLC: Court Partly Grants Le Bid to Certify Class ********* AKIMA GLOBAL: Filing for Class Cert. Bid Reset to March 1, 2024 --------------------------------------------------------------- In the class action lawsuit captioned as Yeend, et al., v. Akima Global Services, LLC, Case No. 1:20-cv-01281 (N.D.N.Y.), the Hon. Judge Christian F. Hummel entered an order resetting deadlines as follows. -- All Fact Discovery is due by: Oct 1, 2023 -- The Plaintiffs Expert Disclosure Nov. 1, 2023 Deadline is: -- The Defendants Expert Disclosure Dec. 1, 2023 Deadline is: -- Rebuttal Expert Disclosure Dec. 29, 2023 Deadline is: -- Motion for Class Certification March 1, 2024 to be filed by: The suit involves labor-related allegations. Akima specializes in information technology system integration, detention management operations, as well as data and records management.[CC] ALLENTOWN, PA: Ex-HR Director May Join Wrongful Termination Suit ---------------------------------------------------------------- Rob Manch of 69 News WFMZ reports that Allentown's human resources director may have stepped down, but he's not staying quiet. Nadeem Shahzad spoke with 69 News on August 21, 2023 claiming he was forced out. He said in an email to 69 News that he is planning to file a class action lawsuit for wrongful termination, and that eight other former city employees are interested in joining the lawsuit. He says all of them have filed complaints with the federal Equal Employment Opportunity Commission, including himself. Shahzad says they're going to demand the city settle with them, or this will end up in court. Shahzad worked for the city for a total of less than two months. He said he was forced to resign because he stood up to Mayor Matt Tuerk. "He (Tuerk) just wanted everything done his way, and was very upset that the council was getting too much information," said Shahzad. He said that information had to do with payouts to employees who were let go and asked to sign non-disclosure agreements (NDA). "I said by law we have to give them because you agreed to a financial dealing without the council's approval, and if you don't give it to them they'll just subpoena it," said Shahzad. Shahzad said city council has requested information on how many former employees have received payments without their approval and signed NDAs. In response, Mayor Matt Tuerk said "Our administration is preparing a response to City Council's request. Mr. Shahzad and I did not have a conversation about this matter." Shahzad said recently he and Mayor Tuerk also disagreed on how to handle a letter, sent on NAACP letterhead, alleging discrimination in city government. "I said Mayor, I would not fight it. I would humbly request that you bring in an outside law firm or a professor to do an investigation, and whatever that finding is, then you respond to them," said Shahzad. Shahzad said Mayor Tuerk did not follow his advice. Tuerk said he would not comment on how they're handling the letter, because it's an ongoing investigation. Shahzad also brought up a disagreement he had with Mayor Tuerk about a specific employee who was fired in the HR Department that he didn't think should have been. In response, Mayor Tuerk told 69 News, "It's unfortunate that a 'human resources professional' would discuss such matters with a journalist." Shahzad said that last August 18, 2023, Tuerk called him into a meeting where he told him he could resign or be fired. "He said your choice. I said well I know if you fire me I'll be escorted out, so in that case I'd rather resign and leave myself, and that's what I chose to do," said Shahzad. Shahzad said he has already filed a complaint with the Equal Employment Opportunity Commission, and he plans to file a lawsuit for wrongful termination. Shahzad said any money he wins in a settlement he plans to donate to charity. [GN] ALTRIA GROUP: School District to Receive $3.2M as Vape Settlement ----------------------------------------------------------------- Madison Thomas, writing for KGUN, reports that Tucson Unified School District will soon start to receive several millions of dollars after settling a class action lawsuit against vaping companies. TUSD will receive $3.2 million as part of a class action lawsuit with thousands of other school districts across the country after settling with the Altria Group. The Altria Group is the parent company of several tobacco and vape products including Marlboro, Black and Mild cigars, and NJoy. This comes five months after the school district settled with Juul for just over $10 million. Both settlements are part of the same class action lawsuit. "Our staff spent countless hours developing depositions, data, and other things that really helped prove the effects of that of Juul and Altria . . . and how it affects our school district," said TUSD Governing Board President, Dr. Ravi Shah. He said vape companies target teenagers. "When our teens start using it, their brain is still developing, the adolescent brain is changing so much day after day, year after year. And it's so more apt to addiction and the effects of nicotine. And so when companies like Juul are targeting our teens they are doing it on purpose, right, because they know that they can target teens when they're most apt to be addicted to substances," said Shah. The school district will start receiving the money by the end of this year and will continue receiving it over the next few years. While the school district will not start receiving the money for several months, Shah said the district is working ahead. "We created a special task force made up of community experts in healthcare and addiction medicine to work with our staff and district leaders on figuring out what are the best evidence-based manners and procedures and relationships we need." The district's lawyers will receive 25% of the settlement amount. After the deduction the district will be left with about $10.3 million between the two settlements. "I want every penny of this money to be used to help prevent and treat addiction amongst our students, as well as address mental health needs in our students so that we can make sure our students are ready to learn and grow," said Shah. He said the school district already has programs in place to help students, but the additional money will further help them out. "This will really help increase the amount of services that we can provide as a district both in terms of prevention to help our students who aren't currently using, preventing them from using substances as well as helping students that are using to help them with treatment, with addiction management, and mental health management." [GN] AMAZON CANADA: Averts Delivery Drivers' Class Action ---------------------------------------------------- Analysis Group was retained on behalf of Amazon Canada Fulfillment Services, the defendant in a proposed class action brought by delivery drivers of Amazon packages in Canada. The plaintiff -- a member of a proposed class of approximately 73,000 individuals who used the Amazon Flex app to deliver packages -- alleged that some drivers had been mischaracterized as independent contractors, while others had an indirect contractual relationship with Amazon Canada that allowed it to avoid its employment obligations under Canadian law. The plaintiff sought to certify a nationwide class comprising all individuals who delivered Amazon packages in Canada since 2016. An Analysis Group team including Vice President Brendan Rogers and Managing Principals Gaurav Jetley and Jee-Yeon Lehmann provided consulting support to counsel and supported Senior Advisor Daniel Slottje, who filed an expert report and provided testimony. Dr. Slottje evaluated the plaintiff's expert's proposed damages model and opined that the proposed method for assessing class-wide proof of injury and proposed calculation of aggregate damages were fundamentally flawed. The Ontario Superior Court of Justice denied certification of the class and granted Amazon's motion to stay the class action for all delivery drivers in favor of arbitration. The Court stated that even if the proposed class action were certifiable, it would not have certified aggregate damages as a common issue because liability could not be determined in common, and found there was no viable method of quantifying aggregate damages. [GN] AMERICAN FIRST: Andrade Files Cross Appeal With 9th Circuit ----------------------------------------------------------- MARIA ANDRADE has filed a cross appeal in her lawsuit entitled Maria Andrade, individually and on behalf of all others similarly situated, Plaintiff, v. American First Finance, Inc., Defendant, Case No. 3:18-cv-06743-SK, in the U.S. District Court for the Northern District of California. The appellate case is captioned Maria Andrade v. American First Finance, Inc., Case No. 23-16087, in the United States Court of Appeals for the Ninth Circuit, filed on August 11, 2023. As previously reported in the Class Action Reporter, the Plaintiff filed this complaint against the Defendant for unfair business practices in violation of California's Business and Professions Code. On June 28, 2023, the Court found that restitution to the Plaintiff is appropriate under Business & Professions Code and awarded the Plaintiff a total amount of $2,161.15 in restitution. Judgment was entered on the same day, signed by Judge Sallie Kim. On July 17, 2023, the Defendant filed an administrative motion for extension of time to file bill of costs which the Court denied on July 18 through an Order entered by Judge Kim. The Defendant appealed to the United States Court of Appeals for the Ninth Circuit on July 31, 2023. That appellate case was captioned as Maria Andrade v. American First Finance, Inc., Case No. 23-16050. The briefing schedule in the Cross Appeal states that: -- Appellant Maria Andrade Mediation Questionnaire was due on August 18, 2023; -- First cross appeal brief for American First Finance, Inc. is due on November 6, 2023; -- Second brief on cross appeal for Maria Andrade is due on December 6, 2023; -- Third cross appeal brief for American First Finance, Inc. is due on January 5, 2024; and -- Optional cross appeal reply brief is due within 21 days of service of third brief on cross appeal. [BN] Plaintiff-Appellant MARIA ANDRADE, individually and on behalf of all others similarly situated, is represented by: Robert S. Green, Esq. Emrah M. Sumer, Esq. GREEN & NOBLIN, P.C. 2200 Larkspur Landing Circle, Suite 101 Larkspur, CA 94939 - and - James C. Sturdevant, Esq. THE STURDEVANT LAW FIRM 4040 Civic Center Drive, 4th Floor, Suite 200 San Rafael, CA 94903 Telephone: (415) 477-2410 Defendant-Appellee AMERICAN FIRST FINANCE, INC. is represented by: Adam Howard Charnes, Esq. KILPATRICK TOWNSEND & STOCKTON LLP 2001 Ross Avenue, Suite 4400 Dallas, TX 75201 Telephone: (214) 922-7106 - and - Patrick E. Gaas, Esq. KILPATRICK TOWNSEND & STOCKTON, LLP 700 Louisiana Street, Suite 4300 Houston, TX 77002 Telephone: (281) 809-4076 - and - Tomio Buck Narita, Esq. Jeffrey Topor, Esq. WOMBLE BOND DICKINSON (US), LLP 50 California Street, Suite 2750 San Francisco, CA 94111 Telephone: (415) 519-6093 (415) 433-1900 AMP LTD: Settles Suit Over Fee for No Service Scandals for $110M ----------------------------------------------------------------- Karren Vergara of Money reports that AMP has put to bed a class action relating to fee for no service scandals and misleading regulators as exposed by the Royal Commission but claims no responsibility in settling for $110 million. The class action filed in June 2018, affected AMP shareholders whose share price tanked following revelations of alleged misconduct by the Financial Services Royal Commission. In May 2019, the NSW Supreme Court ordered the litany of class actions levelled against AMP to merge into one after the Hayne Royal Commission exposed scathing revelations that included among other issues, charging fees for no services under various contexts. The class actions of Maurice Blackburn, and Slater and Gordon were consolidated into one while the other three lawsuits were put on ice. Maurice Blackburn referred to its class action under the plaintiff name of "Komlotex", while Slater and Gordon referred to its case as "Fernbrook". Commenting on the settlement, Maurice Blackburn said: "The trial was due to commence on August 22, 2023 but it has now been vacated. The settlement is subject to the execution of a deed of settlement and approval by the Supreme Court of New South Wales." In reaching a settlement, AMP said in a statement that it "makes no admission of liability". "The majority of the settlement amount will be met by available insurance proceeds," AMP said. "This settlement does not impact the current second tranche of capital return to shareholders and we remain committed to updating the market on the third tranche of capital return by December 31, 2023." The parties participated in mediation on June 29, 2023, facilitated by former Federal Court judge Peter Jacobson. This was their second attempt at mediation, but they were unable to reach an agreement until AMP announced on a settlement this morning. Komlotex represented shareholders who owned AMP between May 10, 2012, and April 13, 2018, or American Depositary Receipts attached to AMP shares between June 7, 2012 and April 13, 2018. At the crux of it, the class action alleged that AMP engaged in misconduct by charging fees for no services, withheld the breaches from ASIC, and then mislead ASIC about the nature and extent of the breaches. Subsequently, AMP's share price declined substantially. In March 2017, AMP shares reached as high as $5.47 and drastically unravelled during and post the Royal Commission, hitting $2.45 at the end 2018. Shares traded at about $1.25 at the time of writing. "As a result of AMP's contravening conduct, the price of AMP's securities was, prior to the Royal Commission disclosures, inflated above their true value and/or the price that would have prevailed in the event that the relevant facts were disclosed, or the relevant misleading conduct did not occur. Accordingly, the Plaintiffs and Group Members suffered loss and damage as a result of purchasing AMP securities during the Relevant Period at an inflated price," court documents show. AMP closed its books on the first half of 2023 financial year provisioning $50 million for the buyer of last resort class action. It is fighting two other legacy class actions that it says, "have not yet been quantified and participation has not yet been determined". These relate to superannuation, and commissions for advice and insurance. "Currently, it is not possible to determine the ultimate impact of these claims, if any, upon AMP and so they also continue to remain contingent," AMP said. [GN] ARCHER AVIATION: May Face Securities Fraud Class Action ------------------------------------------------------- Ch-aviation reports that Archer Aviation (Palo Alto) -- the US developer of electric vertical takeoff and landing (eVTOL) aircraft -- and certain of its officers and directors may face class action following investigations over alleged securities fraud, unlawful business practices, and potential breaches of fiduciary duty to their shareholders, US law firms advised. This followed allegations by The Grizzly Report that Archer relied on heavily edited videos of flights to "misrepresent the amount of flight testing the company actually performs, and to misrepresent the sophistication of Archer's eVTOL aircraft," said law firm Pomerantz, investigating the claims on behalf of Archer Aviation investors. Following The Grizzly Report, New York Stock Exchange-listed Archer's stock price fell USD0.41 per share, or 6.46%, to close at USD5.94 per share on August 16, 2023. Pomerantz, a leading corporate securities and antitrust class litigation expert, has asked investors to join a potential class action against the manufacturer, whose eVTOL aircraft are pending Federal Aviation Administration (FAA) approval before they can enter commercial operation. In a separate statement, Levi & Korsinsky advised Archer Aviation stockholders it had commenced investigations into potential breaches of fiduciary duty by the company's board of directors. The law firm specialises in prosecuting securities litigation involving financial fraud. ch-aviation has reached out to Archer Aviation for comment. According to its latest financial report, the company is working to certify its production aircraft - the 12-propeller Midnight that can carry four passengers - in late 2024 for entry into commercial service in 2025. Earlier this month, Archer Aviation announced a USD215 million investment from its long-term strategic partner Stellantis, United Airlines, Boeing, ARK Invest, and other financial institutions. This brought its total funding to date to more than USD1.1 billion. Stellantis alone has agreed to provide up to USD150 million in equity capital for potential draw by Archer Aviation at its discretion in 2023 and 2024. Archer Aviation also has a purchase agreement with United for USD1.5 billion worth of eVTOL aircraft and has been working with the airline to commercialise the Midnight. In August 2022, United paid USD10 million in pre-delivery payments for 100 aircraft covered under the purchase agreement. Archer Aviation also announced a landmark agreement with the United States Department of Defense valued at USD142 million, but The Grizzly Report claimed the DoD contract was a non-competitive award with indefinite quantity and indefinite delivery, meaning the revenue could be minimal and was also capped at USD1.3m in 2023. [GN] ARDENT LEISURE: Settles 2016 Dreamworld Tragedy Class Suit for $26M ------------------------------------------------------------------- Dominic Cansdale of ABC reports that Dreamworld's parent company will pay $26 million to settle a shareholder class action lawsuit in the wake of the 2016 tragedy that killed four people. Cindy Low, Kate Goodchild, Luke Dorsett and his partner Roozi Araghi died when their raft on the Thunder River Rapids Ride collided with an empty raft and flipped on October 25, 2016. In February 2017, Ardent Leisure reported a loss of almost $50 million after Dreamworld's attendance dropped by 27 per cent and it incurred costs of $95 million. About 300 shareholders claimed in June 2020 that Ardent Leisure misled investors about safety measures and corporate governance standards causing Ardent's shares to trade at an artificially inflated price. But in a statement to the ASX on August 24, 2023 morning, Ardent Leisure said it settled the class action in the best commercial interests of the company, following mediation with the shareholders involved. "The settlement (which is subject to Court approval) involves an all-inclusive payment of $26m to the applicants and is on the basis that there no admission of liability," the statement read. "The company will incur a one-off cost of approximately $4m in connection with the settlement. "The balance of the settlement payment is fully insured." A coronial inquest into the four deaths found there were a series of failures at Dreamworld, including safety and maintenance system described as "rudimentary at best" and "frighteningly unsophisticated". Ardent Leisure pleaded guilty to three breaches of workplace health and safety laws and was fined $3.6 million in September 2020. It was the biggest workplace fine in Queensland's history. Last December the Brisbane Supreme Court awarded the family of Cindy Low $2.1 million. Ardent Leisure has declined to comment. [GN] ARIZONA: Transgender Birth Cert. Suit Given Class Action Status --------------------------------------------------------------- kvoa.com reports that a federal district court in Tucson granted the plaintiffs' request to certify a class action in a case challenging Arizona's requirement that transgender people must have surgery to change the gender marker on their birth certificate. The National Center for Lesbian Rights, along with co-counsel Cooley LLP and Osborn Maledon, P.A., initially filed the case on behalf of three transgender individuals who sought to correct their birth certificates. "The stories of our clients are just a small representation of the thousands of individuals born in Arizona who are unable to amend their birth certificates to reflect who they are," said Rachel Berg, NCLR Staff Attorney. "We are thrilled that this case will now apply to all transgender individuals born in Arizona who wish to amend their birth certificates to accurately reflect their gender identity. Access to correct identity documents is critically important to the health and well-being of transgender people." The lawsuit alleges that Arizona's surgical requirement violates the Equal Protection and Due Process Clauses of the 14th Amendment to the U.S. Constitution. [GN] ATOMIC WALLET: Faces Class Suit Over $100M Security Breach ---------------------------------------------------------- Jonny Huang of BSC News reports that first reported on August 21, a group of investors affected by Atomic Wallet's security breach in June, which resulted in the loss of $100 million, have filed a class action lawsuit against the self-custody wallet provider. According to Max Gutbrod, a German lawyer who is leading in coordination of the lawsuit alongside Boris Feldman, 50 clients are being represented, who collectively lost some $12 million. According to Gutbrod, "Our legal team is actively working to recuperate the assets for the affected clients. A class action against Atomic Wallet is in the pipeline due to their lack of transparency post-hack." It has been claimed that Atomic Wallet failed to provide those affected with sufficient information regarding the attack, and further failed to notify authorities. Atomic Wallet Hacked For $100 Million In June 2023, Atomic Wallet, the provider of a self-custody wallet product, was the target of a hack which resulted in the loss of around $100 million in user funds, with some investors having their entire portfolios swiped. It is estimated that, in total, some 5,500 wallets were affected by the attack, as reported by blockchain analysis firm, Elliptic. [GN] AUTOZONE INC: Judge Excludes Some Expert Testimony in 401(k) Suit ----------------------------------------------------------------- Jacklyn Wille, writing for Bloomberg Law, reports that AutoZone Inc. convinced a federal judge to exclude some of the expert testimony offered by workers who say the company mismanaged their 401(k) plan by allowing Prudential Financial Inc.'s GoalMaker investment allocation service to steer money toward high-cost funds. The judge agreed to consider much of the testimony offered by Wendy Dominguez, an investment advising firm president who issued a report concluding that AutoZone's plan fees were excessive and that the company's fiduciary processes were lacking. Dominguez can testify about GoalMaker's fees and AutoZone's alleged missteps, but she can't offer legal conclusions about fiduciary breaches under the Employee Retirement Income Security Act (ERISA). [GN] B&G FOODS: Silva Bid to Modify Case Schedule Tossed --------------------------------------------------- In the class action lawsuit captioned as SABRINA SILVA, et al., v. B&G FOODS, INC., et al., Case No. 4:20-cv-00137-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered an order denying the Plaintiffs' administrative motion to modify case schedule as follows: The Plaintiffs Sabrina Silva and Nancy Schier have filed an administrative motion requesting that the Court continue the trial date and set a schedule for Plaintiffs to file a renewed motion for class certification. B&G oppose the motion. The Court will deny Plaintiffs' motion. First, Plaintiffs improperly filed their request as an administrative motion under Civil Local Rule 7-11, which governs motions "with respect to miscellaneous administrative matters, not otherwise governed by a federal statute, Federal Rule, local rule, or standing order of the assigned judge." The Plaintiffs' motion also fails on the merits. Under Rule 16, "[a] schedule may be modified only for good cause and with the judge’s consent." Fed. R. Civ. P. 16(b)(4). Good cause does not exist where, as here, "Plaintiffs do not identify any new evidence or legal theories of which they were not previously aware at no fault of their own." B&G manufactures, distributes, and markets a range of household products and shelf-stable and frozen food. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/3R0s3kc at no extra charge.[CC] BACK TO NATURE: Claims in Venticinque Suit Dismissed With Prejudice ------------------------------------------------------------------- In the case, GRACEMARIE VENTICINQUE, individually and on behalf of a class of similarly situated persons, Plaintiff v. BACK TO NATURE FOODS COMPANY, LLC, Defendant, Case No. 22-CV-7497 (VEC) (S.D.N.Y.), Judge Valerie Caproni of the U.S. District Court for the Southern District of New York grants the Defendant's motion to dismiss the Plaintiff's claims. Plaintiff Venticinque brings the putative class action against Back to Nature Foods, a manufacturer of plant-based snacks. She claims that the Defendant misled her and other consumers into believing that its "Stoneground Wheat Cracker" contains primarily whole wheat flour as opposed to enriched wheat flour. She brings claims for deceptive practices and false advertising under New York General Business Law Section 349-50 ("NYGBL"). The Defendant has moved to dismiss the Plaintiff's claims. Venticinque, a resident of Bronx, New York, purchased and consumed the Product in the years preceding the action based on the belief that the Product's main flour ingredient was organic whole wheat flour. The Product, manufactured by the Defendant under the brand name "Back to Nature," contains whole wheat flour, but its main source of flour is "organic unbleached enriched wheat flour." The Plaintiff alleges that the reason she believed that the Product contained primarily whole wheat flour is based on the label on the front of the package of the Product, which states "ORGANIC WHOLE WHEAT FLOUR" at the bottom. The Plaintiff alleges that the statement on the Product's package is deceptive and misleading to consumers, as it conveys that organic whole wheat flour is the main type of flour in the Product. She further alleges that, had she known that the Product's main flour ingredient was enriched wheat flour rather than whole wheat flour, she would not have purchased it, or, more accurately, would not have purchased it at the price she was charged. This is because enriched wheat flour is "of an inferior quality" compared to whole wheat flour because whole wheat flour "contains the full wheat kernel, consisting of the bran, endosperm, and germ," whereas "enriched wheat flour does not." On Sept. 13, 2022, the Plaintiff filed an Amended Complaint alleging damages of more than $5 million for one count of deceptive acts or practices in violation of New York General Business Law Section 349 and one count of false advertising in violation of New York General Business Law Section 350. On Dec. 2, 2022, the Defendant moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(6) and 12(b)(1), respectively. The Defendant moves to dismiss the Plaintiff's claims for failure to state a claim under Rule 12(b)(6) or, alternatively, for lack of subject matter jurisdiction under Rule 12(b)(1). Because the Plaintiff has not alleged facts from which the Court can infer that the label in question is materially misleading, Judge Caproni grants the Defendant's motion to dismiss and dismisses the Plaintiff's claims with prejudice. Judge Caproni opines that the Plaintiff has failed to allege adequately that a reasonable customer would be misled by the label on the Product. At best, a reasonable consumer would find the label ambiguous as to whether the Product's primary source of flour was whole wheat rather than enriched wheat flour. A simple tilt of the package would reveal the full list of ingredients and dispel the confusion. The Plaintiff alternatively moves to amend her complaint a second time to cure the deficiencies. Although the allegations may change, the Product's label remains the same as it was when the Plaintiff allegedly purchased it: ambiguous, at best, as to the Product's primary source of flour. Accordingly, the Plaintiff's motion for leave to amend is denied. The Clerk of Court is respectfully directed to terminate all open motions and deadlines and to close the case. A full-text copy of the Court's Aug. 8, 2023 Opinion & Order is available at https://tinyurl.com/5eecs2mz from Leagle.com. BLUETRITON BRANDS: Asaad Sues Over Failure to Pay Proper Wages -------------------------------------------------------------- NANCY ASAAD, an individual, on behalf of herself and others similarly situated, Plaintiff v. BLUETRITON BRANDS, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. CVRI2304363 (Cal. Super., Riverside Cty., Aug. 21, 2023) is a class action brought by the Plaintiff, individually and on behalf of all current and former non-exempt employees, seeking to recover unpaid wages (including minimum, regular, overtime, and double time wages), compensation for non-compliant meal periods and rest breaks, waiting time penalties, itemized wage statement penalties, liquidated damages, interest, reasonable attorneys' fees, and costs pursuant to the California Labor Code and the Business and Professions Code. The Plaintiff was employed by the Defendants as a non-exempt employee during the Class Period. Her employment with Defendants ended within one year of the filing of this action. Plaintiff's job duties included, inter alia, producing water bottle products and maintaining the production line. BlueTriton Brands, Inc. is an American beverage company based in Stamford, Connecticut.[BN] The Plaintiff is represented by: Daniel J. Hyun, Esq. LAW OFFICE OF DANIEL J. HYUN 1100 W. Town & Country Rd., Ste. 1250 Orange, CA 92868 Telephone: (949) 590-4122 Facsimile: (949) 528-2596 E-mail: dh@danielhyunlaw.com BOARDWALK 1000: Artificially Inflates Room Prices, Fabel Suit Says ------------------------------------------------------------------ Jacob Fabel, individually and on behalf of all others similarly situated, Plaintiff v. BOARDWALK 1000, LLC d/b/a HARD ROCK HOTEL & CASINO ATLANTIC CITY, BOARDWALK REGENCY LLC d/b/a CAESARS ATLANTIC CITY HOTEL & CASINO, CAESARS ENTERTAINMENT, INC., HARD ROCK INTERNATIONAL INC., HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC d/b/a HARRAH’S RESORT ATLANTIC CITY HOTEL & CASINO, MARINA DISTRICT DEVELOPMENT COMPANY, LLC d/b/a BORGATA HOTEL CASINO & SPA, MGM RESORTS INTERNATIONAL, SEMINOLE HARD ROCK SUPPORT SERVICES, LLC, TROPICANA ATLANTIC CITY CORPORATION d/b/a TROPICANA CASINO AND RESORT ATLANTIC CITY, and CENDYN GROUP, LLC, Defendants, Case No. 1:23-cv-06576 (D.N.J., Aug. 21, 2023) arises from the Defendants' engagement in a conspiracy in violation of the Sherman Act to fix, raise, maintain and stabilize inflate the price of casino-hotel guest rooms in Atlantic City, New Jersey. According to the complaint, Casino-Hotel Defendants began using the Rainmaker platform in the Atlantic City Casino-Hotel Market from June 27, 2018 to the present. In doing so, Casino-Hotel Defendants successfully replaced a competitive room pricing system in Atlantic City with a collusive one in which the Casino-Hotel Defendants, with Rainmaker and Defendant Cendyn's active participation and coordination, knowingly used the Rainmaker platform to artificially increase the prices paid by guests to rent guestrooms from Casino-Hotel Defendants, the suit alleges. The Defendants each caused substantial damages to Plaintiff and members of the Class, who paid supra-competitive rental prices directly to Casino-Hotel Defendants for guest rooms, says the suit. Plaintiff Fabel is a citizen and resident of the State of New Jersey who directly rented a room from one or more Casino-Hotel Defendants during the Class Period. Boardwalk 1000, LLC, d/b/a Hard Rock Hotel & Casino Atlantic City, is a casino-entertainment company in the U.S.[BN] The Plaintiff is represented by: Lisa J. Rodriguez, Esq. SCHNADER HARRISON SEGAL & LEWIS LLP Woodland Falls Corporate Park 220 Lake Drive East, Suite 200 Cherry Hill, NJ 08002 Telephone: (856) 482-5222 Facsimile: (856) 482-5754 E-mail: LRodriguez@schnader.com - and - Ira Richards, Esq. SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 751-2503 E-mail: irichards@schnader.com - and - Garrett D. Blanchfield, Esq. Brant D. Penney, Esq. REINHARDT WENDORF & BLANCHFIELD 332 Minnesota Street, Suite W1050 St. Paul, MN 55101 Telephone: (651) 287-2100 E-mail: g.blanchfield@rwblawfirm.com b.penny@rbwlawfirm.com - and - Catherine Pratsinakis, Esq. DILWORTH PAXSON LLP 1500 Market Street, Suite 3500E Philadelphia, PA 19102 Telephone: (215) 575-7013 Facsimile: (215) 575-7200 E-mail: cpratsinakis@dilworthlaw.com BRITA PRODUCTS: Brown Sues Over False Water Filtration Pitchers --------------------------------------------------------------- Corrado Rizzi of ClassAction.org reports that a proposed class action alleges the Brita Products Company has falsely and misleadingly overstated the capabilities of its water filtration pitchers, dispensers and filters, bilking consumers out of millions and deterring them from more effective options. In particular, the 67-page lawsuit says Brita has misled reasonable consumers into believing its products can remove or reduce from drinking water certain common contaminants -- including chlorine, mercury, copper, arsenic, chromium-6, nitrate, PFOA, PFAS and PFOS, among a litany of others -- to below lab detection limits. The filing alleges Brita has chosen to "take advantage of consumers and their families' basic and fundamental need for clean and safe drinking water" by deceptively touting its products as able to eliminate, or at least effectively reduce, contaminants. "Unfortunately, the Products are not nearly as effective as Defendant deliberately leads people to believe, causing consumers to overpay millions and forego more effective alternatives," the case summarizes. "In this way, Defendant has not only bilked millions of dollars from consumers in ill-gotten gains, but Defendant has put the health and welfare of millions of consumers and their families at risk." The representations challenged in the lawsuit include Brita's claim that its products offer "cleaner, great-tasting water" and can reduce the taste and odor of chlorine, mercury, copper and more. Further, the suit says Brita fails to expressly state on product packaging that its pitchers, dispensers and filters do not perform as effectively as advertised. According to the suit, the Brita products fail to remove "some of the highest risk, notorious, or prevalent contaminants" from drinking water, including arsenic, chromium-6, nitrate and nitrites, PFOA, PFOS, radium and uranium, to below detectable limits. Per the case, Brita has charged consumers a premium that they would not otherwise have paid had they known its products could not remove or reduce a slew of contaminants to below lab detection limits. The specific Brita products mentioned in the lawsuit include the company's Standard Water Filters (Model #OB03), Stream Filters (Model #OB05) and Elite/Longlast Filters (Model #OB06) and all compatible Brita-brand water dispensers and pitchers sold to consumers nationwide. The lawsuit looks to cover all United States residents who, within the applicable statute of limitations period, bought any eligible Brita product for purposes other than resale. [GN] BRITA PRODUCTS: Faces Consumer Class Action in California --------------------------------------------------------- Abraham Jewett, writing for Top Class Actions, reports that Brita Products Co. sells certain Brita brand water pitchers, dispensers, and filters that are "not nearly as effective" as the company "deliberately" leads consumers to believe, a new class action lawsuit alleges. Plaintiff Nicholas Brown claims Brita takes advantage of consumers and families' "basic and fundamental need for clean and safe drinking water" by allegedly misleading them to believe certain of their products will remove "common hazardous contaminants." Brown argues Brita's allegedly deceptive and misleading marketing tactics caused consumers to collectively overpay by millions of dollars and "forego more effective alternatives." "Defendant has not only bilked millions of dollars from consumers in ill gotten gains, but Defendant has put the health and welfare of millions of consumers and their families at risk," the Brita class action states. Brown wants to represent a nationwide class of consumers who have purchased certain Brita brand water pitchers, dispensers and filters within the applicable statute of limitations period and a California subclass of consumers who have done so within the past four years. Brita misleads consumers into believing products can remove, reduce common contaminants, class action alleges Brown argues Brita misleads reasonable consumers into believing certain products can remove or "reduce below lab detection limits" common contaminants -- including arsenic, radium and nitrate and nitrites, among other things -- from drinking water. "Defendant . . . fails to state, expressly, clearly, and conspicuously on the Products' packaging and labels that the Products will not remove or reduce contaminants hazardous to health," the Brita class action states. Brown claims Brita is guilty of unjust enrichment and breach of warranty, and of violating California's False Advertising Law, Consumers Legal Remedies Act and Unfair Competition Law. The plaintiff is demanding a jury trial and requesting declaratory and injunctive relief, along with an award of monetary and punitive damages for himself and all class members. A separate lawsuit involving Brita was filed last year by water filter startup Zero Technologies over claims Clorox filed an early patent application and created a monopoly for its Brita water filter. The plaintiff is represented by Ryan J. Clarkson, Katherine A. Bruce, Kelsey J. Elling and Olivia Treister of Clarkson Law Firm PC. The Brita water filtration class action lawsuit is Brown v. The Brita Products Co., Case No. 23STCV19534, in the Superior Court of the State of California, County of Los Angeles. [GN] BUMBLE BEE: Burns Charest Discusses Ruling in Antitrust Suit ------------------------------------------------------------ Kyle K Oxford, Esq., of Burns Charest LLP, in an article for Global Competition Review, disclosed that Rule 23(b)(3) of the Federal Rules of Civil Procedure requires plaintiffs to show that common questions predominate over individual issues to certify a class. The Ninth Circuit became the first appellate court to address the question of whether Rule 23 imposes a blanket prohibition against certifying classes that include more than a de minimis number of uninjured class members. In two decisions in Olean Wholesale Grocery Coop, Inc v Bumble Bee Foods LLC, the court reached drastically different answers. This article explains the approaches taken in the two opinions and the impact they will have on antitrust enforcement. Discussion points Opposing Ninth Circuit decisions in Olean Wholesale Grocery Coop, Inc v Bumble Bee Foods LLC De minimis standard Impact of Olean Wholesale going forward Referenced in this article In re Packaged Seafood Prod Antitrust Litigation Olean Wholesale Grocery Coop, Inc v Bumble Bee Foods LLC (Olean Wholesale I) Olean Wholesale Grocery Coop, Inc v Bumble Bee Foods LLC (Olean Wholesale II) In re Asacol Antitrust Litigation In re Rail Freight Fuel Surcharge Antitrust Litigation Private antitrust enforcement depends on class-wide liability. Antitrust cases are expensive to litigate, and an individual class member's recovery is usually too small to sue individually. And so, '[t]he realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30'.[1] Cases focusing on uninjured, absent class members have increased the plaintiff's burden in class certification. These cases hold that courts cannot certify a class with more than a de minimis number of uninjured plaintiffs.[2] The upshot of these cases is that defendants can injure large portions while effectively escaping antitrust liability. These cases left open a key question: can a court ever certify a class with more than a de minimis number of uninjured class members, even in instances where the plaintiffs present a reasonable method to winnow them out? Within the past year, the Ninth Circuit has reached opposing answers in Olean Wholesale Grocery Coop, Inc v Bumble Bee Foods LLC.[3] The three-judge panel adopted a blanket rule that more than a de minimis percentage of uninjured plaintiffs defeats certification, regardless of their impact on the litigation.[4] A majority of Ninth Circuit judges voted to rehear the case en banc. On rehearing, the 11 judges rejected the panel's per se rule.[5] Rather than ask whether the plaintiffs could show an injury to a threshold percentage of the class, they asked whether common evidence could resolve each class member's injury in 'one stroke'.[6] If so, common issues would predominate, even if the defendants' conduct had not injured a significant portion of the class. This article describes the two approaches taken by the Ninth Circuit, and their impact on antitrust enforcement going forward. A de minimis standard? To certify a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, plaintiffs must show that 'questions of law or fact common to class members predominate over any questions affecting only individual members'.[7] Courts may engage in a 'rigorous analysis' that 'overlap[s] with the merits of the plaintiff's underlying claim' before certifying a class.[8] But they cannot embark upon 'free-ranging merits inquiries at the class certification stage'.[9] Courts consider '[m]erits questions . . . to the extent -- but only to the extent -- that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied'.[10] Increasingly, courts have found predominance requires the plaintiff to prove that all or nearly all plaintiffs have been injured. In Asacol, for example, the plaintiffs alleged that two name-brand drug manufacturers conspired to preclude others from introducing a generic version.[11] The evidence at class certification showed that 10 per cent of class members were uninjured because they would not have switched to the generic drug, even if it had been available.[12] But there was no way to identify those class members that fell into that 10 per cent, such that they 'might be picked off in a manageable, individualized process at or before trial'.[13] Any class member may not be injured, and weeding them out would take 'a line of thousands of class members waiting their turn to offer testimony and evidence on individual issues'.[14] Without a mechanism to separate injured and uninjured class members, '[t]he need to identify those individuals will predominate and [will] render an adjudication unmanageable'.[15] Since 2018, appellate courts following this reasoning have declined to certify classes when defendants injure significant portions of the class. The First and DC circuits did so when the defendants 'only' injured 87.3 per cent[16] and 90 per cent[17] of the class, respectively. Some district courts have required even more.[18] One district court found that the permissible 'outer limit[]' of uninjured class members was 5 per cent or 6 per cent.[19] But, until recently, no court had decided 'whether it is ever permissible to define a proper class including more than a de minimis number of uninjured parties'.[20] Does a lack of injury always defeat predominance? Or was the lack of a winnowing mechanism in Asacol dispositive? The Packaged Seafood litigation The Ninth Circuit in Olean Wholesale Grocery Coop, Inc v Bumble Bee Foods LLC answered the question that the other courts left open. The plaintiffs in that case are grocery stores, commercial food preparers and individual consumers.[21] They sued the three largest domestic packaged tuna producers -- Tri Union Seafoods (doing business as Chicken of the Sea), Bumble Bee Foods and Starkist -- under state and federal antitrust law for conspiring to fix packaged seafood prices.[22] The plaintiffs relied on two statistical models to show the class-wide impact of the defendants' price-fixing conspiracy.[23] The first 'calculated what the price for wholesale tuna would have been "but for" the alleged price fixing'.[24] This model compared prices during the price-fixing conspiracy to prices either before or after the impacted period, a clean benchmark where there was no anticompetitive activity.[25] That comparison revealed that each class member suffered an average overcharge of 10.28 per cent.[26] Second, the plaintiffs ran a regression model against that benchmark to control for 'explanatory variables', such as 'product characteristics, supply and demand factors, and the period of alleged conspiracy'.[27] The regression model confirmed that '94.5 percent of the purchasers had at least one purchase above the predicted but-for price'.[28] The defendants took issue with the regression model. They argued that the model should have considered certain differences between individual class members. And if it had, the model would have shown that only '72% paid an inflated price, meaning 28% of the class members suffered no injury at all'.[29] The defendants argued that the district court must resolve the battle of the experts because the plaintiffs could not show that common issues predominate if their model could not show impact for more than 28 per cent of the class.[30] The district court left it to the jury to determine whose 'theory [was] right or wrong'.[31] At class certification, it was 'only concerned with whether the method itself is capable of showing [impact] to all, or nearly all of the Class members -- not that it does in fact show that the injury occurred'.[32] Because the plaintiffs met that burden, the court certified the plaintiff classes.[33] The defendants appealed that decision to the Ninth Circuit. The Ninth Circuit's divergent approaches to predominance Over the course of the appeal, the Ninth Circuit took two drastically different approaches in determining how uninjured class members affect predominance. The strict approach: predominance is a proxy for predominance The panel and the en banc dissent would have required that district courts must resolve the parties' competing claims as to the number of uninjured plaintiffs before certifying a class.[34] They interpreted Rule 23 and the line of cases addressing uninjured, absent class members as requiring a blanket rule that would prohibit district courts from certifying a class if it included more than a de minimis number of uninjured plaintiffs.[35] The dissent had two reasons for this rule. The first comes from Rule 23's text. Rule 23(b)(3) provides that 'questions of law or fact common to class members predominate over any questions affecting only individual members'.[36] Quoting the online version of the Merriam-Webster Dictionary, they found that 'common' meant 'belonging to or shared . . . by all members of a group', while 'predominate' meant 'to hold advantage in numbers or quantity'.[37] Putting the two together, they reasoned that 'Rule 23(b)(3) thus requires that questions of law or fact be shared by all or substantially all members of the class'.[38] This interpretation, according to the panel and en banc dissenters, precluded certifying a class with more than a de minimis number of uninjured class members, even if there were a method to separate the uninjured from the injured at trial.[39] 'Rule 23 allows a de minimis number of uninjured members but no more.'[40] They reasoned that, '[i]f a large number of class members "in fact suffered no injury", identifying those class members "will predominate"'.[41] This was so 'because those uninjured class members have little in common with those who have been harmed'.[42] Neither the panel nor the en banc dissent set the percentage of uninjured class members large enough to defeat predominance, but a statistical model that could not show antitrust impact for a quarter of the class could not prove predominance 'under any rubric'.[43] The dissent accused the majority of creating a circuit split by rejecting a de minimis rule.[44] Whereas the First and DC circuits found that a lack of injury in 10 per cent and 6 per cent of plaintiffs, respectively, could defeat predominance,[45] the majority would allow 'rather a massive grab bag of class members -- perhaps almost a third of the class -- who may not have suffered any harm'.[46] The strict interpreters' second argument arose from a concern for fairness.[47] 'Second, allowing more than a de minimis number of uninjured class members tilts the playing field in favor of plaintiffs.'[48] Without the fear that a court will decline to certify their overbroad class, plaintiffs 'will inflate the potential liability (and ratchet up the attorney's fees based in part on that amount) to extract a settlement, even if the merits of their claims are questionable'.[49] That pressure would 'impose an in terrorem effect on defendants'.[50] 'Faced with even a small chance of devastating loss, defendants will be pressured into settling questionable claims.'[51] The dissent warned that the majority's rule would 'unleash a tidal wave of monstrously oversized classes designed to pressure and extract settlements'.[52] Lenient approach: predominance, not percentage A majority of Ninth Circuit judges voted to take the case en banc 'to consider whether the district court erred in finding that each subclass satisfied the requirement that "questions of law or fact common to class members predominate over any questions affecting only individual members"'.[53] And in April 2022, the Ninth Circuit reversed the panel and affirmed the district court's class certification decision.[54] The majority's opinion began by explaining the plaintiffs' burden to show predominance at class certification. To carry that burden, the plaintiffs 'must show that the common question relates to a central issue in the plaintiffs' claim'.[55] Those common questions must be 'capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke'.[56] Answering that question 'begins . . . with the elements of the underlying cause of action'.[57] The elements of an antitrust claim are '(i) the existence of an antitrust violation; (ii) antitrust injury or impact flowing from that violation (i.e., the conspiracy); and (iii) measurable damages'.[58] And so: to prove there is a common question of law or fact that relates to a central issue in an antitrust class action, plaintiffs must establish that essential elements of the cause of action, such as the existence of an antitrust violation or antitrust impact, are capable of being established through a common body of evidence, applicable to the whole class.[59] The court noted that courts may need to weigh conflicting expert testimony to determine whether expert evidence can be resolved in one stroke, but courts can only do so 'necessary to ensure that Rule 23(b)(3)'s requirements are met and the "common, aggregation-enabling" issue predominates over individual issues'.[60] In so holding, the Ninth Circuit 'reject[ed] the . . . argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members'.[61] The court found that the experts' models could resolve the case in one stroke, regardless of which expert was correct.[62] If the jury found the plaintiffs' expert reliable, the plaintiffs 'would have succeeded in showing antitrust impact on a class-wide basis, an element of their antitrust claim'.[63] And if it did not find the expert reliable, 'the jury could conclude that the [plaintiffs] had failed to prove antitrust impact on a class-wide basis. In neither case would the litigation raise individualized questions regarding which [class members] had suffered an injury'.[64] Even 'a great number of members who for some reason could not have been harmed by the defendant's allegedly unlawful conduct' does not preclude class certification.[65] If the class is overinclusive, the court 'can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis'.[66] To pare down the overbroad class, the court 'may redefine the overbroad class to include only those members who can rely on the same body of common evidence to establish the common issue'.[67] The court disagreed with the dissent's argument that its opinion created a circuit split. According to the majority, no other appellate court adopted 'a per se rule that a class cannot be certified if it includes more than a de minimis number of uninjured class members'.[68] Rather, they held that the plaintiffs could not satisfy Rule 23's predominance requirement because, under the particular facts of those cases, the need to identify uninjured class members 'will predominate and render an adjudication unmanageable'.[69] Finally, the Ninth Circuit rejected the dissent's policy reasons for its rule against certifying classes that include more than a de minimis number of uninjured class members.[70] The court reasoned that it must 'apply Rule 23(b)(3) as written', regardless of policy preferences.[71] Antitrust enforcement going forward Private litigants play a key role in enforcing antitrust laws.[72] The government cannot prosecute every violation of federal antitrust law. Nor does the government see its role as compensative of the victims of antitrust violations. Private enforcement fills these gaps.[73] The class action mechanism makes that enforcement possible.[74] Given that importance, Olean Wholesale will have a large impact on antitrust enforcement going forward. Focusing on the right issues during class certification In Olean Wholesale II, the court correctly focused on predominance, rather than on whether the plaintiffs had proved that a certain number of plaintiffs had been injured at the class certification stage. Rule 23(b)(3) requires that common issues predominate; it does not require that plaintiffs prove that all or nearly all plaintiffs have been injured as a prerequisite to class certification.[75] Predominance is practical. It is about whether, in practice, common issues will predominate at trial.[76] In most antitrust cases, they will - regardless of whether impact is a common issue and regardless of whether injury is common to all or virtually all class members. The number of class members who have not suffered an injury is a poor proxy for predominance. Olean Wholesale is a perfect example. The defendants' expert testified that the plaintiffs cannot show harm to 28 per cent of the class. The plaintiffs' expert disagreed and offered a robustness check that confirmed harm to at least 94.5 per cent of class members. Even assuming the defendants win on this point at trial, and a jury determines that the plaintiffs failed to prove injury to 28 per cent of class members, there is no risk the trial court will have to adjudicate the issue of impact individually for those class members. The jury would already have done so, by deciding in the defendants' favour. Individual issues would not suddenly predominate. The court rejected the number of uninjured class members as a euphemism for predominance and, instead, focused on what predominance actually means: whether common questions can be resolved in a single adjudication and what that would look like. Can common issues predominate even if antitrust injury were an individual issue? The en banc court left an important question open: can common issues predominate, even if antitrust impact were an individual issue? In Olean Wholesale, the court seems to assume that common issues could not predominate if there are 'questions [that] relate to the injury status of class members'.[77] But, the Supreme Court and the Ninth Circuit have made clear that predominance 'does not require a plaintiff seeking class certification to prove that each element of their claim is susceptible to classwide proof'.[78] Rather, the focus at class certification is whether 'one or more common questions predominate'.[79] When one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.[80] Fundamentally, predominance gauges how litigation and trial will play out -- whether common questions would drive the case or whether it would devolve into a host of common issues.[81] A question's potential 'to drive the resolution of the litigation necessarily depends on the nature of the underlying legal claims that the class members have raised'.[82] Uninjured class members rarely drive antitrust cases. Antitrust cases turn almost entirely on the defendants' conduct and its effects, issues that by their nature are common to class members.[83] Did the defendants do what the plaintiffs allege? Did those actions violate the antitrust laws? Did they cause antitrust injury in general? What were the total damages? In contrast, defendants do not care what percentage of class members will ultimately recover. What matters to defendants is whether they have to write a cheque to plaintiffs and how big that cheque is. If plaintiffs prevail at trial -- or, far more frequently, settle the case -- defendants have no interest in how the money they pay is distributed. That is a task for the plaintiffs and the court to address at the tail end of the litigation process.[84] And there are practical ways to undertake that task, none of which will bog the court down in adjudicating individual issues. Rejecting the blackmail myth The panel and en banc dissent's policy arguments perpetuate the often-cited but never supported 'blackmail' myth -- that is, that plaintiffs' lawyers use class certification to extort defendants into settling unmeritorious claims in a manner that is tantamount to corporate blackmail.[85] Whatever merit the blackmail myth may have in the abstract,[86] it rings particularly hollow in Olean Wholesale. The panel's opinion began: 'There is little dispute over the existence of [the] price-fixing scheme' at issue in this case.[87] Starkist and its senior vice president pled guilty to 'a conspiracy among major packaged-seafood-producing firms . . . to fix, raise, and maintain the prices of packaged seafood in the United States'.[88] Bumble Bee Foods also pled guilty to that conspiracy,[89] while a jury convicted the company's CEO for conspiring to fix canned tuna prices, and the court sentenced him to 40 months in prison.[90] Chicken of the Sea admitted to fixing prices and agreed to cooperate with federal investigators.[91] And yet, they hope to shirk their responsibility to their victims by urging courts to adopt a new procedural hurdle to class certification that would effectively immunise them from civil antitrust enforcement. Were it not for a desire to avoid the merits entirely, it is unlikely that defendants like the ones in Olean Wholesale would want to defeat class certification. Their actual liability remains the same if the court decertifies this class, as the class members who were shown to have paid the overcharge could use the expert reports in their own actions. So, class certification 'should be beneficial to [defendants] - they have but one suit to meet, instead of innumerable ones'.[92] But the de minimis standard has never really been about giving defendants the chance to raise individual defences in individual cases. They want the standard so they never have to raise those defences at all. After all, 'only a lunatic or a fanatic sues for $30'.[93][GN] BUMBLE INC: Attorneys' Fees & Costs Awarded in Securities Suit -------------------------------------------------------------- In the case, IN RE BUMBLE, INC. SECURITIES LITIGATION, Civil Action No. 22-cv-624 (DLC) (S.D.N.Y.), Judge Denise L. Cote of the U.S. District Court for the Southern District of New York grants the Lead Counsel's motion for an award of attorneys' fees and litigation expenses. The matter came on for the Settlement Fairness Hearing on Aug. 8, 2023, on the Lead Counsel's motion for an award of attorneys' fees and Litigation Expenses. Judge Cote has considered all matters submitted to the Court at the Settlement Fairness Hearing. Having considered and determined the fairness and reasonableness of the attorneys' fees and Litigation Expenses requested, Judge Cote awards the Plaintiff's Counsel attorneys' fees in the amount of 15% of the Settlement Fund (including interest earned at the same rate as the Settlement Fund). The Lead Counsel is also awarded $83,125.85 in payment of Litigation Expenses to be paid from the Settlement Fund. The Lead Counsel will allocate the attorneys' fees awarded amongst the Plaintiff's Counsel in a manner which it, in good faith, believes reflects the contributions of such counsel to the institution, prosecution, and settlement of the Action. Administrative Expenses are capped at $675,000 without prejudice to a further application to the Court. Any appeal or any challenge affecting the Court's approval regarding any attorneys' fees and expense application will in no way disturb or affect the finality of the Judgment. Exclusive jurisdiction is retained over the Parties and the Settlement Class Members for all matters relating to the Action, including the administration, interpretation, effectuation, or enforcement of the Stipulation and the Order. In the event that the Settlement is terminated, or the Effective Date of the Settlement otherwise fails to occur, the Order will be rendered null and void to the extent provided by the Stipulation. There is no just reason for delay in the entry of the Order, and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/ykr6s5nf from Leagle.com. BUMBLE INC: Settlement in Securities Suit Wins Final Court Approval ------------------------------------------------------------------- In the case, IN RE BUMBLE, INC. SECURITIES LITIGATION, Civil Action No. 22-cv-624 (DLC) (S.D.N.Y.), Judge Denise L. Cote of the U.S. District Court for the Southern District of New York fully and finally approves the Settlement set forth in the Stipulation and Agreement of Settlement in all respects. Lead Plaintiff Louisiana Sheriffs' Pension & Relief Fund, on behalf of itself and the Settlement Class ; (b) Defendant Bumble; (c) Executive Defendants Whitney Wolfe Herd and Anuradha Subramanian; (d) Director Defendants Ann Mather, Christine L. Anderson, R. Lynn Atchison, Sachin J. Bavishi, Matthew S. Bromberg, Amy M. Griffin, Jonathan C. Korngold, Jennifer B. Morgan, Elisa A. Steele, and Pamela A. Thomas-Graham; (e) Blackstone Defendants Blackstone Inc., BX Buzz ML-1 Holdco L.P., BX Buzz ML-1 GP LLC, BXG Buzz Holdings L.P., BXG Holdings Manager L.L.C., Blackstone Growth Associates L.P., BXGA L.L.C., BX Buzz ML-2 Holdco L.P., BX Buzz ML-2 GP LLC, BCP Buzz Holdings L.P., BCP VII Holdings Manager — NQ L.L.C., Blackstone Management Associates VII NQ L.L.C., BMA VII NQ L.L.C., BX Buzz ML-3 Holdco L.P., BX Buzz ML-3 GP LLC, BSOF Buzz Aggregator L.L.C., Blackstone Strategic Opportunity Associates L.L.C., Blackstone Holdings II L.P., Blackstone Holdings I/II GP L.L.C., BX Buzz ML-4 Holdco L.P., BX Buzz ML-4 GP LLC, BTO Buzz Holdings II L.P., BTO Holdings Manager L.L.C., Blackstone Tactical Opportunities Associates L.L.C., BTOA L.L.C., Blackstone Holdings HI L.P., Blackstone Holdings III GP L.P., Blackstone Holdings III GP Management L.L.C., BX Buzz ML-5 Holdco L.P., BX Buzz ML-5 GP LLC, Blackstone Buzz Holdings L.P., BTO Holdings Manager -- NQ L.L.C., Blackstone Tactical Opportunities Associates -- NQ L.L.C., BTOA—NQ L.L.C., BX Buzz ML-6 Holdco L.P., BX Buzz ML-6 GP LLC, Blackstone Tactical Opportunities Fund—FD L.P., Blackstone Tactical Opportunities Associates III—NQ L.P., BTO DE GP—NQ L.L.C., BX Buzz ML-7 Holdco L.P., BX Buzz ML-7 GP LLC, Blackstone Family Investment Partnership Growth ESC L.P., BXG Side-by-Side GP L.L.C., Blackstone Group Management L.L.C., and Stephen A. Schwarzman; and (f) Underwriter Defendants Goldman Sachs & Co. LLC, Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC, Blackstone Securities Partners L.P., Evercore Group L.L.C., Jefferies LLC, RBC Capital Markets, LLC, BMO Capital Markets Corp., BTIG, LLC, Cowen and Company, LLC, Mizuho Securities USA LLC, Raymond James & Associates, Inc., Stifel, Nicolaus & Company, Incorporated, SMBC Nikko Securities America, Inc., AmeriVet Securities, Inc., C.L. King & Associates, Inc., Drexel Hamilton, LLC, Loop Capital Markets LLC, Seelaus & Co., LLC, Samuel A. Ramirez & Company, Inc., Siebert Williams Shank & Co., LLC, and Telsey Advisory Group LLC, have entered into a Stipulation and Agreement of Settlement, dated March 27, 2023 (the "Stipulation"), that provides for a complete dismissal with prejudice of the claims asserted against Underwriter Defendants in the Action on the terms and conditions set forth in the Stipulation, subject to the approval of the Court. By Order dated April 14, 2023, the Court entered the Preliminary Approval Order. Due and adequate notice has been given to the Settlement Class. Judge Cote conducted the Settlement Fairness Hearing on Aug. 8, 2023. Having reviewed and considered the Stipulation, she certifies for the purposes of the Settlement only, the Action as a class action pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure on behalf of the Settlement Class consisting of all persons or entities who purchased or otherwise acquired the publicly traded Class A common stock of Bumble between Sept. 10, 2021 and Jan. 24, 2022, inclusive directly in or traceable to Bumble's Secondary Public Offering of Bumble Class A stock, which closed on Sept. 15, 2021, and were damaged thereby. She finds that each element required for certification of the Settlement Class pursuant to Rule 23 of the Federal Rules of Civil Procedure has been met. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, Judge Cote certifies Lead Plaintiff Louisiana Sheriffs' Pension & Relief Fund as the Class Representative for the Settlement Class and appoints Lead Counsel Bernstein Litowitz Berger & Grossmann LLP as the Class Counsel for the Settlement Class. Pursuant to, and in accordance with, Rule 23(e)(2) of the Federal Rules of Civil Procedure, Judge Cote fully and finally approves the Settlement set forth in the Stipulation in all respects. The Action and all of the claims asserted against the Defendants in the Action by the Lead Plaintiff and the other Settlement Class Members are dismissed with prejudice. The Parties will bear their own costs and expenses, except as otherwise expressly provided in the Stipulation. The terms of the Stipulation and of the Judgment will be forever binding on the Defendants, the Lead Plaintiff, and all other Settlement Class Members, as well as their respective successors and assigns. Hammami Semi Cuarnens of Switzerland and Angela Nagele of New York, New York are excluded from the Settlement Class pursuant to request and are not bound by the terms of the Stipulation or this Judgment. Nothing in the Judgment will bar any action by any of the Parties to enforce or effectuate the terms of the Stipulation or the Judgment. Without affecting the finality of the Judgment in any way, the Court retains continuing and exclusive jurisdiction over (a) the Parties for purposes of the administration, interpretation, implementation, and enforcement of the Settlement; (b) the disposition of the Settlement Fund; (c) any motion for an award of attorneys' fees and/or Litigation Expenses by Lead Counsel in the Action that will be paid from the Settlement Fund; (d) any motion to approve the Plan of Allocation; (e) any motion to approve the Class Distribution Order; and (f) the Settlement Class Members for all matters relating to the settlement of this Action. Separate orders will be entered regarding approval of a plan of allocation and the motion of the Lead Counsel for an award of attorneys' fees and Litigation Expenses. Such orders will in no way affect or delay the finality of the Judgment and will not affect or delay the Effective Date of the Settlement. Without further approval from the Court, the Lead Plaintiff and the Defendants are authorized to agree to and adopt such amendments or modifications of the Stipulation or any exhibits attached thereto to effectuate the Settlement. If the Settlement is terminated as provided in the Stipulation or if the Effective Date of the Settlement otherwise fails to occur, the Judgment will be vacated and rendered null and void, and will be of no further force and effect, except as otherwise provided by the Stipulation. It will be without prejudice to the rights of the Lead Plaintiff, the other Settlement Class Members, and the Defendants, and the Lead Plaintiff and the Defendants will revert to their respective positions in the Action as of immediately prior to the execution of the Term Sheet on Feb. 6, 2023, as provided in the Stipulation. There is no just reason to delay the entry of the Judgment as a final judgment in this Action. Accordingly, the Clerk of the Court is directed to immediately enter the final judgment in the Action. A full-text copy of the Court's Aug. 8, 2023 Judgment is available at https://tinyurl.com/4ab9axmz from Leagle.com. CAESARS ENTERTAINMENT: Blair-Smith Hits Room Price-Fixing --------------------------------------------------------- MONICA BLAIR-SMITH, individually and on behalf of all others similarly situated, Plaintiff v. CAESARS ENTERTAINMENT, INC.; BOARDWALK REGENCY LLC d/b/a CAESARS ATLANTIC CITY HOTEL & CASINO; HARD ROCK INTERNATIONAL INC.; SEMINOLE HARD ROCK SUPPORT SERVICES, LLC; BOARDWALK 1000, LLC d/b/a HARD ROCK HOTEL & CASINO ATLANTIC CITY; HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC d/b/a HARRAH'S RESORT ATLANTIC CITY HOTEL & CASINO; MGM RESORTS INTERNATIONAL; MARINA DISTRICT DEVELOPMENT COMPANY, LLC d/b/a BORGATA HOTEL CASINO & SPA; TROPICANA ATLANTIC CITY CORPORATION d/b/a TROPICANA CASINO AND RESORT ATLANTIC CITY; and CENDYN GROUP, LLC, Defendants, Case No. 1:23-cv-06506 (D.N.J., Aug. 21, 2023) arises from the engagement of the Defendants in a continuing contract, combination, or conspiracy to unreasonably restrain interstate trade and commerce in violation of Section 1 of the Sherman Act According to the complaint, Defendants have been conspiring to fix, raise and stabilize the prices of guestrooms in their Atlantic City casino-hotel properties for years. Coordinated use of Defendant Cendyn's Rainmaker platform has led to Plaintiffs and class members paying supra-competitive prices for guestrooms. The Defendants' scheme is in violation of Section 1 of the Sherman Act and began no later than June 27, 2018 and continues to the present, says the suit. Specifically, Rainmaker, which was later acquired by Defendant Cendyn, began offering its hospitality clients a way to maximize profits derived from guestrooms -- all without having to compete on rates. Rainmaker developed and marketed several pricing algorithm products designed to help hospitality clients, including the Casino-Hotel Defendants, recapture "lost" guestroom revenues. First, each client inputs its current and non-public pricing and occupancy data. Next the Rainmaker platform collects, processes, and analyzes this information across all its hospitality clients in a given market in real time, then generates daily recommended guestroom rates to its clients. Clients, including Casino-Hotel Defendants, are strongly encouraged to implement the rates that the Rainmaker platform generates. The Rainmaker platform thus eliminates traditional competitive rate-setting, in favor of rate setting using aggregated non-public data across competitors. The increased revenues are a result of Casino-Hotel Defendants' willful usage of the Rainmaker platform to facilitate charging supra-competitive room rates during the Class Period, adds the suit. Thus, the Plaintiff brings this lawsuit on behalf of a class of all persons who directly rented hotel rooms from any Casino-Hotel Defendant or co-conspirator in Atlantic City during the Class Period to recover all damages and injunctive relief available under federal antitrust law. Caesars Entertainment, Inc. is an American hotel and casino entertainment company founded and based in Reno, Nevada.[BN] The Plaintiff is represented by: Stanley O. King, Esq. Eric G. Kahn, Esq. JAVERBAUM WURGAFT HICKS KAHN WIKSTROM & SININS, P.C. 231 South Broad Street Woodbury, NJ 08096 Telephone: (856) 845-3001 E-mail: stan@kingslaw.com EKahn@JaverbaumWurgaft.com - and - William G. Caldes, Esq. Jeffrey L. Spector, Esq. Icee N. Etheridge, Esq. SPECTOR ROSEMAN & KODROFF, P.C. 2001 Market Street, Suite 3420 Philadelphia, PA 19103 Telephone: (215) 496-0300 E-mail: bcaldes@srkattorneys.com jspector@srkattorneys.com ietheridge@srkattorneys.com - and - Jonathan M. Jagher, Esq. FREED KANNER LONDON AND MILLEN, LLC 923 Fayette Street Conshohocken, PA 19428 Telephone: (610) 234-6486 E-mail: jjagher@fklmlaw.com - and - Michael E. Moskovitz, Esq. FREED KANNER LONDON AND MILLEN, LLC 2201 Waukegan Road, Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 E-mail: mmoskovitz@fklmlaw.com - and - David P. McLafferty, Esq. MCLAFFERTY LAW FIRM, P.C. 923 Fayette Street Conshohocken, PA 19428 Telephone: (610) 940-4000 E-mail: dmclafferty@mclaffertylaw.com CALYX ENERGY: Class Certification Bid Filing Due March 22, 2024 --------------------------------------------------------------- In the class action lawsuit captioned as Indianola Resources, LLC, et al., on behalf of themselves and all others similarly situated, v. Calyx Energy III, LLC, Case No. 6:21-cv-00235-RAW (E.D. Okla.), the Hon. Judge Ronald A. White entered a first amended scheduling order as follows: Event Schedule Motions for leave to amend or add Sept. 8, 2023 additional parties Documents previously produced by Feb. 16, 2024 parties shall be deemed authenticated except as to those objected to Class Certification Motion filed with March 22, 2024 all supporting evidence, including expert disclosures Class Certification Response filed May 22, 2024 with all supporting evidence, including expert disclosures Class Certification Reply filed with June 24, 2024 any rebuttal evidence, including rebuttal expert disclosures, if any Class Certification Discovery Cutoff June 24, 2024 Class Certification Hearing TBD A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3EeV6Zp at no extra charge.[CC] CERMARK PRODUCE: Faces Class Suit Over Biometric Privacy Violations ------------------------------------------------------------------- David M. Krueger of Lexology reports that Cermak Produce No. 11, Inc. (Cermak), the defendant in this case, had been sued by a former employee in an underlying case for allegedly violating the Illinois Biometric Information Privacy Act (BIPA) by, amongst other things, failing to disclose to employees the purpose or duration for which it retained personal identifying information and by disclosing employees' biometric information to its timekeeping vendor without consent (Underlying Action). Cermak's insurer, Society Insurance, filed a federal declaratory judgment action seeking a declaration that it did not have an obligation to defend or indemnify Cermak in the Underling Action. Society Insurance sought judgment on the pleadings, arguing that their policies excluded coverage for the alleged BIPA violations under their Recording Exclusion, Disclosure Exclusion, and the Employment-Related Practices Exclusion. The Recording Exclusion, according to the plaintiff, excluded coverage for any violation of any federal, state, or local statute that addresses, prohibits, or limits the distribution of material or information, and named certain specific privacy statutes like the TCPA and CAN-SPAM Act. The plaintiff contended that BIPA fell squarely within this exclusion. The court, however, found that while the claims in the Underlying Action involved an alleged invasion of practice, the Recording Excluding was ambiguous when considered in its totality with respect to BIPA and the specific nature of the claims in the Underlying Action. The broad nature of the exclusion conflicted with the policy's inclusive nature, creating an ambiguity that the court had to resolve in favor of Cermak. Next, the Disclosure Exclusion barred coverage for "personal and advertising injury" arising out of any access to or disclosure of any person's confidential or personal information. Society Insurance argued that the alleged BIPA violations constituted "personal" injury as the disclosed information was biometrically unique to each individual and fell within the exclusion's "catch all" for "any other type of nonpublic information." However, the court found that the exclusion encompassed disparate types of information, none of which expressly mentioned privacy. Without an identifiable theme, the "catch-all" phrase of the Disclosure Exclusion could not be narrowed, and the court could not apply the exclusion to the alleged BIPA violations. Finally, the Employment-Related Practices Exclusion was the third provision under scrutiny. This exclusion precluded coverage for any employment-related practices, including the timekeeping practices alleged in the Underlying Lawsuit. However, using similar principles as to the earlier exclusions, the court concluded that the types of employment-related practices that were excluded (e.g., harassment, discrimination, etc.), were not of a similar nature of the claims in the Underlying Action, and that a broader construction would effectively eliminate coverage that the policies "purport to cover elsewhere." The court concluded that, at a minimum, Society Insurance had a duty to defend Cermak in the Underlying Lawsuit, though the issue of indemnification remains to be determined. This case underscores the importance of a thorough understanding of insurance policies and their exclusions, particularly in relation to privacy laws like BIPA. For businesses, this case serves as a reminder to review their insurance policies and understand the extent of their coverage, especially in relation to privacy and data protection laws. Legal advice should be sought to understand the potential risks and liabilities associated with their operations. As the legal landscape continues to evolve, staying informed and proactive is the best defense. [GN] CHARLES SCHWAB: Faces MOVEit Data Breach Class Action ----------------------------------------------------- Melanie Waddell, writing for Think Advisor, reports that Charles Schwab and TD Ameritrade are the latest firms to be sued for a data breach related to the ongoing cyberattack exploiting the MOVEit file-transfer software. The suit, filed on Aug. 23 by David Schultz in the U.S. District Court for the District of Nebraska, states that Schwab and TD waited nine weeks before telling Schultz, along with approximately 61,000 Schwab customers, that the hack had occurred. The attack this year on the MOVEit file transfer system was orchestrated by the Cl0P ransomware gang. At least 734 organizations have reported MOVEit-related breaches, according to KonBriefing Research. Those reports have affected at least about 43 million people. The class-action suit against Schwab and TD comes as there's less than two weeks to go before TD Ameritrade advisors and their clients' accounts are scheduled to move to the Charles Schwab platform. Schwab said in a statement shared with ThinkAdvisor that "Generic and conclusory allegations are often devoid of accuracy and context. Our focus is protecting our clients. We do that by not only standing by them in such matters but by thoroughly investigating any incident that may affect them. Our notification practices are consistent with our mission to see the world through our clients' eyes and are in keeping with our regulatory obligations." Schwab, TDA Suit Details According to the complaint against Schwab and TD Ameritrade, Schultz received a Notice of Data Breach letter dated Aug. 3, on or about Aug. 22 from TD Ameritrade Client Services. The letter notified Schultz that on May 30, 2023, Schwab and TD "became aware of an alert issued by Progress Software -- the company responsible for the MOVEit file transfer program." The letter, according to the complaint, notified Schultz that after an investigation, Schwab and TD "discovered unauthorized access to their customers' personal information which includes, but is not limited to Plaintiff's name, Social Security Number, financial account information, date of birth, government identification numbers, and other personal identifiers." Schultz was further advised that "he should spend time mitigating his losses by taking steps to help safeguard his information, including following recommendations by the Federal Trade Commission regarding identity theft protection and placing a fraud alert or security freeze on his credit file," the complaint states. [GN] CITIGROUP INC: No Nationwide Class Suit in Bankruptcy Court ----------------------------------------------------------- Glenn Glover of JD Supra reports that the Second Circuit's recent decision in Bruce v. Citigroup, Inc., 2023 WL 4919496, at *1 (2nd Cir. Aug 2, 2023) appears to be the second Circuit Court of Appeals (joining the Fifth Circuit) to specifically hold that a plaintiff may not maintain a nationwide class action in a bankruptcy court for violation of the bankruptcy discharge injunction. The Second Circuit in Bruce first noted the Supreme Court's 2019 decision on the discharge injunction in Taggart v. Lorenzen, which found that the bankruptcy discharge injunction statute - 11 U.S.C. Section 524(a) - brings with it the "old soil" that has long governed how injunctions are enforced. The court then found that that this "old soil" contained the "long-standing" equitable principle that the judge issuing an injunction is solely responsible for punishing the conduct that violated it. The court noted that the plaintiff had failed to cite a single case of a court "exercising its civil contempt authority on behalf of another court's injunction." While the plaintiff argued that a bankruptcy court's discharge "injunction" is normally a simple form using brief and boilerplate language and enforces a statutory and not judge-crafted injunction, the court rejected this argument as it previously had in similar decisions. Thus, the general rule that a class action for violation of the discharge injunction may be maintained in a single federal district in certain circumstances but not nationwide still appears to hold. Bruce will likely not be the end of litigation on the issue of nationwide class certification in bankruptcy courts for violation of the discharge injunction. First, only two circuits (the Second and the Fifth) now have held that a nationwide class may not be maintained. Second, the reasoning in Bruce that a form discharge order using brief boilerplate language ("A discharge under 11 U.S.C. Section 727 is granted to [the debtor") that enforces a federal statutory injunction is somehow unique to the bankruptcy judge entering it may not win the day in other courts. Indeed, the First Circuit already has held in a somewhat related context that the rule that the judge issuing the injunction is the only judge who can properly interpret and enforce it does not apply in the bankruptcy discharge injunction context. In short, defendants may need to focus less on this point and more on others in order to defeat attempts at nationwide class actions for violations of the bankruptcy discharge injunction. [GN] CLOUDKITCHENS: Faces Class Action Over "Virtual Restaurants" ------------------------------------------------------------ Corrado Rizzi, writing for ClassAction.org, reports that a proposed class action alleges "ghost kitchen" operator CloudKitchens has misrepresented the true origin of the food it displays on UberEats, Grubhub, Seamless and Postmates. The 38-page complaint says that although CloudKitchens, founded by former Uber CEO Travis Kalanick, purports on the online delivery platforms that its food comes from brick-and-mortar restaurants, the company's so-called "virtual restaurants" do not exist, as the cooking is outsourced to other existing restaurants who used a shared kitchen, or ghost kitchen, to service other menus and their own. The suit charges that CloudKitchens' use of misleading names and food categories puts consumers at risk of health problems linked to cross-contamination and negligence of dietary restrictions. Further, the case alleges CloudKitchens' virtual restaurants "flout the hygiene scores issued by health departments and do not match the quality and appeal shown on their menus." "Defendant does this behind the backs of consumers, who are misled into believing that their orders come from regular restaurants whose online menus match their physical presence," the suit alleges. Describing the defendant's business model as "secretive," the lawsuit explains CloudKitchens typically buys large commercial warehouses, remodels them to fit "numerous standalone kitchens," outfits them with bare-minimum kitchen essentials, and then rents them out to restauranteurs interested in operating a delivery-only ghost kitchen. In the last two years, the filing says, CloudKitchens has achieved a valuation of roughly $15 billion. Despite this outsized growth, however, CloudKitchens "operates in the shadows," with employees prohibited from naming the company on their LinkedIn profiles, the lawsuit relays. The suit notes that many of CloudKitchens' customers and workers "have left due to the company's broken promises and toxic work environment." At issue in the complaint is a branch of the defendant's business referred to as "Future Foods," i.e. the arm that operates the virtual restaurants that appear on online delivery platforms. In contrast to CloudKitchens' ghost kitchen business model, the Future Foods sector, rather than lease out commercial space to other restaurants, leverages the kitchens of existing restaurants to cook and prepare orders, the lawsuit says. Citing the company's website, the case relays that these virtual restaurants are referred to as such because "the customer can only see and order from these storefronts online." "In other words, Defendant's Virtual Restaurants exist on the Platforms as a hoax—a mirage that permits struggling and/or opportunistic brick-and-mortar restaurants to make an additional profit without risking their reputation," the suit reads. Many times, CloudKitchens' virtual restaurants operate from local establishments that "lack the capacity" to prepare certain dishes with the same quality and consistency maintained by eateries that handle large volumes of orders, the case adds. "In fact, the restaurants and delis that Defendant uses are often poorly rated—hence why they are willing to risk their own brands and reputations," the suit says. "And because they use the same kitchen to prepare multiple menus, the chances of cross-contamination are high." The lawsuit looks to cover all persons in the United States who, during the applicable statute of limitations period, bought food from CloudKitchens' virtual restaurants primarily for personal, family or household purposes and not for resale. [GN] COLETTE PETERS: Montalvo Loses Bid for Class Certification ---------------------------------------------------------- In the class action lawsuit captioned as Michael L. Montalvo, v. Colette Peters, Case No. 2:23-cv-00584-DJH-ESW (D. Ariz.), the Hon. Judge Diane J. Humetewa entered an order that: (1) Plaintiff's request for class certification is denied. (2) If Plaintiff does not complete service of the Summons and Amended Complaint on Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed. (3) The Clerk of Court must use the already completed and returned service forms for service of Defendant Peters. On April 6, 2023, Plaintiff Michael L. Montalvo, who is confined in the Federal Correctional Institution-Phoenix (FCI-Phoenix), filed a pro se civil rights Complaint pursuant to 28 U.S.C. section 1331 and a Memorandum of Law in Support, and paid the filing and administrative fees. On June 16, 2023, Plaintiff filed an Amended Complaint. The Court will order Defendant to answer the Amended Complaint. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/3QWnQhm at no extra charge.[CC] COMERICA INC: Ramos Sues Over Misleading Company Reports -------------------------------------------------------- DAVID RAMOS, individually and on behalf of all others similarly situated, Plaintiff v. COMERICA INCORPORATED, CURTIS C. FARMER, and JAMES J. HERZOG, Defendants, Case No. 2:23-cv-06843 (C.D. Cal., Aug. 21, 2023) is a class action on behalf of the Plaintiff and all persons or entities who purchased or otherwise acquired publicly traded Comerica securities between February 9, 2021 and May 29, 2023, inclusive, seeking to recover compensable damages caused by Defendants' violations of the federal securities laws under the Securities Exchange Act of 1934. The Defendants allegedly made materially false and/or misleading statements because they misrepresented and failed to disclose adverse facts pertaining to the Company's business, operations and prospects, which were known to Defendants or recklessly disregarded by them. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) Comerica failed to provide meaningful oversight over the vendors to whom it contracted out day-to-day operations of the Direct Express program, a system through which it is contracted to provide federal benefits on debit cards to millions of Americans without bank accounts; (2) as a result of violations in the day-to-day operations of Direct Express, including handling fraud disputes and allowing sensitive data to be handled out of a vendor's office in Pakistan, Comerica was not in compliance with the Federal Contract, and knew it was not in compliance; (3) Comerica knew and failed to disclose that it was in potential violation of Regulation E due to inadequate fraud prevention in the Direct Express program and responses to instances of fraud, and; (4) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. As a result of the foregoing, the market price of the Company's securities was artificially inflated during the Class Period. In ignorance of the falsity of Defendants' statements, Plaintiff and the other members of the Class relied on the statements described above and/or the integrity of the market price of the Company's securities during the Class Period in purchasing the Company's securities at prices that were artificially inflated as a result of Defendants' false and misleading statements, says the suit. The Plaintiff purchased Comerica securities during the Class Period. Comerica Inc. is a financial services company.[BN] The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 E-mail: lrosen@rosenlegal.com CONSERVICE LLC: Tenants File Class Action Over Billing Practices ---------------------------------------------------------------- Keristen Holmes, writing for CBS8, reports that renters in San Diego are fired up about Conservice, a third-party utility billing company, saying they're seeing unexplained costs and can't get answers. Conservice is a utility management provider, and they're responsible for billing for utilities like water, gas, trash, and, in some cases, electricity. Some tenants say they'd rather pay the bill to the utility company themselves -- instead of paying Conservice to pay the bill for them. Another problem tenants we talked to today said is that when they get bills from Conservice, they can't prove how much water or electricity each tenant uses. Tenants complain about those who conserve or overuse; they're all splitting one bill with no answers to how much each person uses or what each person owes. Mr. Crawford, who asked only to be identified by his last name, said he's been frustrated with Conservice billing issues for a while now. "It's a bully tactic. They're putting everything on me, and it's stressful and driving me crazy. When I moved in, my Conservice bill was less than $100. It went up to like four or $500. It said the 'gas and electric' rebill fee was $50. So, I'm looking at the word rebill. I didn't know what it was." But when he went to get answers, first from his apartment complex, then from SDG&E, he was redirected back to Conservice with no real response. Crawford explained, "Conservice had taken over my SDGE bill, paying it and charging me a rebill fee. I didn't want any of this. I was more than capable of paying my bill." When Crawford tried to get his bill broken down for his apartment, he says he hit a brick wall and that's when he was just told to pay up. "If you want me to pay the bill, shouldn't you show me the meter and the bill sent to you by SDG&E. What do you guys want me to do? You keep giving me this, but you're not giving me any justification." Jimmie Parker is a local attorney who has filed a class action lawsuit against Conservice. Parker explains, "Landlords can give reasonable estimates for use among all the property tenants. However, they're supposed to disclose that in their leases. They're representing that this is the amount owed pro rata per person, and it's not subject to any upcharge." CBS 8 contacted Conservice late last year when we started looking into utility bills. In an email to CBS 8, Conservice told us they work with tens of thousands of properties nationwide and support over 850+ residential communications and over 100,000 residents. Meanwhile, Crawford said he and tenants like him need answers. "We deserve to have a consumer report on what is going on with these fees." The next court date for the class action lawsuit is set for November. If you're a Conservice customer, there's nothing you need to do right now to join the lawsuit; It's still going through the legal system. Conservice customers will be contacted about the next steps if it moves forward. [GN] CPA GLOBAL: Parties Must File Summary Judgment Bids by Sept. 29 --------------------------------------------------------------- In the class action lawsuit captioned as BRAINCHILD SURGICAL DEVICES, LLC, V. CPA GLOBAL LIMITED, Case No. 1:21-cv-00554-RDA-LRV (E.D. Va.), the Hon. Judge Rossie D. Alston, Jr. entered an order granting the parties' joint submission regarding proposed briefing schedule for summary judgment, Daubert, and class certification motions. The following briefing schedule is set in this case: 1. The parties shall file any summary judgment motions and Daubert motions on or before September 29, 2023. 2. The parties shall file oppositions to the summary judgment motions and Daubert motions on or before October 31, 2023. 3. The parties shall file replies in support of the summary judgment motions and Daubert motions on or before November 17, 2023. 4. The Plaintiff shall file any class certification motion no later than 30 days after the Court rules on the summary judgment motions and Daubert motions. 5. The Defendant shall file an opposition to the class certification motion no later than 30 days after the class certification motion is filed. 6. The Plaintiff shall file a reply in support of the class certification motion no later than 14 days after the opposition is filed. CPA Global provides intellectual property (IP) and legal support services. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/47UBpE7 at no extra charge.[CC] CRUMBL LLC: Faces Keers Suit Over Illegal Service Fee Charges ------------------------------------------------------------- Alan Riquelmy of Courthouse News Service reports that Two California woman have filed a class action against cookie company Crumbl, accusing it of hiding a "sinister truth" -- that a concealed 2.95% service fee is added to every customer's purchase. Lisa Watson and Angela Keers filed the suit on August 21, 2023 in federal court in California against Crumbl LLC; Crumbl IP, LLC; and Crumbl Franchising, LLC. Crumbl, called in the suit the fastest growing gourmet cookie business in the country, offers online ordering through its app, website or on iPads in stores. Starting in 2017 with a Logan, Utah, store, Crumbl currently has over 800 bakeries throughout the country. Their cookies cost over $4 each. "However, Crumbl's promotion of a smooth, 'tech-driven’ customer experience hides a more sinister truth: every time a customer utilizes the Crumbl App, Crumbl charges a carefully concealed 2.95% 'Service Fee,'" the plaintiffs say in the complaint. "As a result of this automatic fee, customers pay a uniformly higher price for Crumbl's products than advertised on the menu." The plaintiffs break down the cost of a Crumbl cookie in the complaint. There are subtotal, taxes and fees, and tip categories when ordering through the app or online. A small, light gray question mark icon appears next to “taxes and fees” that the user must click to see a price breakdown. The 2.95% fee is then shown. "Given that the vast majority of American consumers already expect to pay sales tax on their purchase, Crumbl purposefully hides this charge among state taxes where it is unlikely to be discovered by reasonable consumers," the complaint states. The fee also is charged when people buy from a cashier in a store and those customers can't discover the fee until they have made their purchase. At no point is this service fee disclosed, according to the plaintiffs. Crumbl's failure to list the price of its products with the service fee is a violation of a California law that requires the total price, including surcharges, to be included in advertisements, the plaintiffs added. They argue that Crumbl added the fee to help cover rising operations costs, instead of increasing its menu prices, and that deceives people into thinking their purchase will cost less when they order. "In the face of increased competition and copycat products, Crumbl knows that raising its prices could result in the loss of sales," the complaint states. "Thus, Crumbl has incentive to hide additional costs to give the illusion to consumers that its prices have remained constant -- all the while increasing its profits by nearly 3%." Watson and Keers argue that Crumbl has "unfairly, deceptively, and/or misleadingly" charged customers this fee, and this pricing method was applied to all customers with no explanation or disclosure. "Crumbl engaged in its unfair and deceptive pricing scheme in order to induce plaintiffs, class members, and all reasonable consumers to purchase its products by representing a lower retail price, thus uniformly increasing its profits by 2.95%," they say in the complaint. The plaintiffs, who are seeking class certification and a jury trial, are asking for compensatory, exemplary and statutory damages for themselves and what they estimate to be thousands of people across California and the U.S. Watson, of Modesto, and Keers, of Redding, also asked the court to stop Crumbl from its "wrongful and unlawful conduct; " for attorneys' fees, and for pre-judgment and post-judgment interest at the highest rate allowed. A Crumbl representative could not immediately be reached for comment on August 22, 2023. [GN] DEFINITIVE HEALTHCARE: Lens Suit Alleges Illegal Debt Collection ---------------------------------------------------------------- ROBYN LENS, individually and on behalf of all those similarly situated, Plaintiff v. DEFINITIVE HEALTHCARE HOLDINGS, LLC D/B/A PATIENTFI, Defendant, Case No. CACE-23-017236 (Fla. Cir., 17th Judicial, Broward Cty., Aug. 21, 2023) arises from the Defendant's alleged violation of the Florida Consumer Collection Practices Act. According to the complaint, the Defendant sent an electronic communication to Plaintiff in connection with the collection of the consumer debt. The electronic communication was sent to Plaintiff between the hours of 9:00 PM and 8:00 AM in the time zone of Plaintiff. The Defendant did not have the Plaintiff's consent to communicate with her between the said hours. Accordingly, the Defendant is in violation of the FCCPA, says the suit. The Plaintiff is the alleged debtor of the consumer debt. Definitive Healthcare Holdings is a provider of healthcare commercial intelligence.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Jennifer G. Simil, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: (954) 907-1136 E-mail: jibrael@jibraellaw.com jen@jibraellaw.com DETROIT, MI: Versen's Bid for Class Certification Granted in Part ----------------------------------------------------------------- In the case, ERIC VERSEN, Plaintiff v. CITY OF DETROIT, Defendant, Case No. 21-11545 (E.D. Mich.), Judge Mark A. Goldsmith of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants in part and denies it in part the Plaintiff's motion for class certification. On May 21, 2021, Versen used his work vehicle to place a couch in an empty lot. According to the City, Versen's vehicle was towed and impounded after Detroit police officer Jeremy Woods reviewed surveillance footage of an alleged illegal dumping and identified Versen's vehicle as the vehicle involved. Woods located Versen's van parked on the street and called a towing company to remove the vehicle. Versen asserts that the van was legally parked in front of his home at the time of seizure. Detroit police officer Jana Greeno issued Versen a blight violation notice on May 25, 2021, informing Versen that he was subject to a fine of $800 and a fee of $30 and informing him that his court date for contesting the blight notice was Aug. 18, 2021. Versen asserts that he paid the fees and fines necessary to regain possession of the vehicle because his vehicle was necessary to his livelihood, and he would not have been able to wait the twelve weeks until the hearing. He asserts that the City has similarly impounded the vehicles of at least 56 individuals under the blight ordinance. Versen filed the lawsuit as a class action, alleging among other claims that: (i) the impoundment of his and putative class members' vehicles without a warrant violated their rights under the Fourth Amendment, (ii) Versen and the putative class members' rights to due process were violated by the failure to provide a prompt hearing to recover his vehicle, and (iii) the City's impoundment ordinance was facially unconstitutional. Versen moves for certification of two classes comprising: (1) All persons who were subjected to a warrantless seizure of their legally parked vehicles pursuant to Detroit's blight ordinance, after the alleged blight violation, where their vehicles were detained pending payment of the blight ordinance fines, beginning July 1, 2018 until present. (2) All persons whose vehicle were seized pursuant to Detroit's blight ordinance without a prior hearing who were not given an opportunity to contest the seizure in an administrative or judicial hearing until 14 or more days elapsed from the date their vehicles were seized. Versen moves for certification "on all issues except damages." Since the filing of Versen's certification motion, the Court granted summary judgment in favor of the City on Versen's Fourth Amendment claim and granted summary judgment as to all claims against officers Woods and Greeno. Although the City does not explicitly challenge Versen's ability to meet Rule 23(a)'s prerequisite requirements, Judge Goldsmith nonetheless analyzes each of these requirements and finds that they are satisfied. He says (i) the group is sufficiently numerous to satisfy the numerosity requirement; (ii) he is not aware of any reason that Versen's interests would conflict with those of the putative class; and (iii) Versen is an adequate class representative for reasons like those identified. Judge Goldsmith also determines whether certification is proper under Rule 23(b)(3)'s predominance, superiority, and implied ascertainability requirements. He finds that the Plaintiffs have satisfied the predominance, superiority, and implied ascertainability requirements under Rule 23(b). Having determined that the Plaintiffs also meet the requirements under Rule 23(a), Judge Goldsmith concludes that certification of the putative class as to liability is appropriate. Judge Goldsmith grants the motion in part, certifying for purposes of liability only, the second class defined. He appoints Kevin S. Ernst and Hannah R. Fielstra as the class counsel. Within 10 days, the parties must file a joint statement setting forth their agreement or disagreement on the form and manner of class notice. A full-text copy of the Court's Aug. 8, 2023 Opinion & Order is available at https://tinyurl.com/3j6wzvvh from Leagle.com. DIOCESE OF KEEWATIN: Proposed $13M Deal in Sex Abuse Suit Reached ----------------------------------------------------------------- sudbury.com reports that a proposed settlement in a multi-million dollar class-action lawsuit involving historic cases of sexual abuse committed against hundreds of Indigenous youth has been reached by the involved parties, though it still needs to be approved by the court. The class action first filed in 2017 against Ralph Rowe, Scouts Canada, and the Anglican Synod of the Diocese of Keewatin was seeking $110 million. The damages sought relate to numerous incidents of sexual abuse committed by Rowe between 1975 and 1985, when he was a priest and Scout leader in the geographic boundaries of the Anglican Diocese of Keewatin in Northern Ontario. According to a final settlement agreement released following a settlement approval hearing held in June, the defendants and third parties have agreed to collectively pay $13.25 million into an interest-bearing trust account. The settlement will be used to pay legal fees, administrative costs, and compensation to class members. Class action members will be entitled to varying amounts of compensation based on an allocation system. Victims of sexual assault can receive between $30,000 and $140,000, depending on the actions that were committed against them. A further compensation allocation system will provide between $120,000 and $210,000 based on physical, mental, and ongoing trauma and negative impacts of the assaults. Forms will also be made available to family of deceased class-action members to claim compensation as part of the proposed settlement. "The settlement will provide real compensation for a vulnerable class through a trauma-informed claims process," said Jonathan Park, a partner at Koskie Minsky LLP, the firm representing the class members, in a statement. "We believe it is an excellent settlement after many years of hard-fought litigation." The original statement of claim filed in 2017 alleged that Synod and Scouts Canada engaged in "systemic negligence and breach of fiduciary duty," which allowed "Rowe's sexual predation to continue for decades." Since 1988, Rowe has been convicted of nearly 60 crimes relating to sexual assault and abuse involving dozens of victims, and served less than five years in custody. A hearing is scheduled for Oct. 27, 2023 for the court to review the settlement agreement. If the agreement is approved, class action members can make claims for compensation. Any class members who oppose the settlement agreement must submit an objection form by Sept. 29, 2023. Those who support the agreement do not need to take any action. Class action members looking for more information can contact Koskie Minsky LLP by phone at 1-888-353-6661 or email at ralphroweclassaction@kmlaw.ca. [GN] DOLE PACKAGED: Settles False Advertisement Class Suit for $4.3M --------------------------------------------------------------- Top Class Actions reports that Dole agreed to pay over $4.3 million as part of a settlement to resolve claims it falsely advertised its fruit cups as containing "100% juice" -- and no proof of purchase is required for consumers to benefit. The settlement benefits consumers who purchased Dole Cherry Mixed Fruit, Diced Apples, Diced Pears, Diced/Chunk Mango, Papaya Mango, Peach Mango, Mandarin Oranges, Pineapple Tidbits/Slices/Chunks/Crushed, Mixed Fruit, Pineapple Paradise, Red Grapefruit Sunrise, Melon Medley, Tropical Fruit or Diced/Sliced Peaches labeled "in 100% juice" or "in 100% fruit juice" between Jan. 12, 2017, and June 27, 2023. Plaintiffs in the class action lawsuit challenge Dole's advertising of its fruit cups as containing fruit "in 100% juice." According to the plaintiffs, the fruit cup products actually contain trace amounts of ascorbic acid, citric acid and other non-juice ingredients. Dole is a fruit and vegetable company that sells a wide range of products, including fruit cups. Dole hasn't admitted any wrongdoing but agreed to a $4.3 million settlement to resolve the false advertising class action lawsuit. Under the terms of the Dole settlement, class members can receive a cash payment for the products they purchased. Without proof of purchase, class members can receive a refund of up to $9. With proof of purchase, class members can receive a larger refund of up to $18. As part of the settlement, Dole has agreed to remove "100% juice" claims from its product packaging or take other action to make its packaging more accurate. The deadline for exclusion and objection is Sept. 25, 2023. The final approval hearing for the settlement is scheduled for Oct. 26, 2023. In order to receive a settlement payment, class members must submit a valid claim form by Sept. 25, 2023. Who's Eligible Consumers who purchased Dole Cherry Mixed Fruit, Diced Apples, Diced Pears, Diced/Chunk Mango, Papaya Mango, Peach Mango, Mandarin Oranges, Pineapple Tidbits/Slices/Chunks/Crushed, Mixed Fruit, Pineapple Paradise, Red Grapefruit Sunrise, Melon Medley, Tropical Fruit, or Diced/Sliced Peaches labeled "in 100% juice" or "in 100% fruit juice" between Jan. 12, 2017, and June 27, 2023 Potential Award $18 Proof of Purchase No proof of purchase is required; however, proof of purchase may result in a higher payment. Acceptable proof of purchase is a receipt or other documentation from a third-party commercial source that, in the sole discretion of the settlement administrator, reasonably establishes the purchase of the product at issue, the quantity purchased and that the product was purchased in the United States or any of its territories during the class period. Claim Form CLICK HERE TO FILE A CLAIM » NOTE: If you do not qualify for this settlement do NOT file a claim. Remember: you are submitting your claim under penalty of perjury. You are also harming other eligible Class Members by submitting a fraudulent claim. If you're unsure if you qualify, please read the FAQ section of the Settlement Administrator's website to ensure you meet all standards (Top Class Actions is not a Settlement Administrator). If you don't qualify for this settlement, check out our database of other open class action settlements you may be eligible for. Claim Form Deadline 09/25/2023 Case Name Jackson v. Dole Packaged Foods LLC, Case No. 22-LA0022, in the Circuit Court for the 20th Judicial Circuit in St. Clair County, Illinois Final Hearing 10/26/2023 Settlement Website FruitMarketingSettlement.com Claims Administrator Fruit Marketing Settlement c/o Settlement Administrator 1650 Arch Street, Suite 2210 Philadelphia, PA19103 833-990-2010 Class Counsel Stuart L Cochran Blake E Mattingly COCHRAN LAW PLLC David C Nelson NELSON & NELSON ATTORNEYS AT LAW PC Matthew Armstrong ARMSTRONG LAW FIRM LLC Robert L King LAW OFFICE OF ROBERT L KING Defense Counsel Sarah L Brew Tyler A Young FAEGRE DRINKER BIDDLE & REATH LLP [GN] DOUGLAS HOLDINGS: Class Settlement in Eberline Gets Initial Nod --------------------------------------------------------------- In the class action lawsuit captioned as JOY EBERLINE, CINDY ZIMMERMANN, and TRACY POXSON, individually and on behalf of all others similarly situated, v. DOUGLAS J. HOLDINGS, INC., et. al., Case No. 5:14-cv-10887-JEL-KGA (E.D. Mich.), the Hon. Judge Judith E. Levy entered an order granting the plaintiffs' amended unopposed motion for conditional certification and preliminary approval of class and collective action settlement. The Class shall be conditionally certified pursuant to Federal Rule of Civil Procedure 23(a) and (b), and conditionally approved as a collective action under 29 U.S.C. section 216(b) for settlement purposes only. The Class shall include any student who attended Defendant Douglas J. Institute, Inc.’s cosmetology programs in Michigan and participated in the Alpha, Beta, Gamma, and/or Salon Life courses at any time between January 1, 2012, and December 31, 2022. The hybrid class and collective action Settlement set forth in the Amended Settlement Agreement, entered into among the parties and their counsel, is preliminarily approved as it appears to be proper, fall within the range of reasonableness, be the product of arm’s-length and informed negotiations, treat all Class members fairly, and be presumptively valid, subject to any objections that may be raised at the Final Approval Hearing. The Court appoints the named Plaintiffs, Joy Eberline, Cindy Zimmermann, and Tracy Poxson, as Class representatives. The named Plaintiffs have interests in common with each of the members of the Class and have demonstrated that they will vigorously prosecute the interests of the Class through qualified counsel. The Court appoints John Philo (jphilo@sugarlaw.org), Sugar Law Center for Economic & Social Justice, 4605 Cass Avenue, 2nd Floor, Detroit, Michigan 48201, and Kathryn Bruner James (kjames@goodmanhurwitz.com), Goodman Hurwitz & James PC, 1394 E. Jefferson Avenue, Detroit, Michigan 48207 as Class Counsel, finding that Class Counsel are well-qualified and experienced in wage and hour and class action litigation. Kroll Settlement Administration, LLC is hereby appointed as Settlement Administrator to provide Notice of Settlement to Class members as described in the Amended Settlement Agreement and to administer the process of soliciting, receiving, reviewing, approving, or denying claims, and distributing funds. The Court orders that the Final Approval Hearing is set for December 19, 2023 at 2:00 p.m. in the Courtroom of the Honorable Judge Judith E. Levy at the United States District Court for the Eastern District of Michigan, Ann Arbor Division, 107 Federal Building, 200 E. Liberty Street, Ann Arbor, MI 48104, to consider the fairness, reasonableness, and adequacy of the proposed Amended Settlement Agreement, the entry of any final order or judgment in the action, any application for attorneys' fees and costs, and other related matters. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3RgaQn1 at no extra charge.[CC] DRESSER LLC: LDEQ Dismissed from Barton Class Suit -------------------------------------------------- In the class action lawsuit captioned as MICHELLE BARTON, ET AL., v. DRESSER, LLC, ET AL., Case No. 1:22-cv-00263-DCJ-JPM (W.D. La.), the Hon. Judge David C. Joseph entered an order granting the Louisiana Department of Environmental Quality's motion to dismiss on grounds of eleventh amendment immunity. The Louisiana Department of Environmental Quality is dismissed from this lawsuit without prejudice. The LDEQ did not remove or join in the removal of this case to federal court, actions that under Supreme Court precedent would have constituted an intentional invocation of federal jurisdiction. The case arises from the operations of a now-closed pipe valve manufacturing facility located in Rapides Parish, Louisiana. The Plaintiffs, Michelle and William Barton, claim that the Facility improperly disposed of solvents, cutting oils, acids, and caustics, thereby contaminating the groundwater and soil in the surrounding area. The Plaintiffs further allege that this contamination migrated onto their nearby property, causing both property damage and either present or potential future personal injury due to their exposure to the toxins. Dresser designs, manufactures, and markets energy infrastructure products and services. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3KYO2nE at no extra charge.[CC] ETHOS TECHNOLOGIES: $1M Class Deal in Stein Suit Wins Prelim. Nod ----------------------------------------------------------------- In the case, CHRISTOPHER STEIN, et al., Plaintiffs v. ETHOS TECHNOLOGIES, INC., Defendant, Case No. 22-cv-09203-SK (N.D. Cal.), Magistrate Judge Sallie Kim of the U.S. District Court for the Northern District of California grants the Plaintiffs' unopposed motion for preliminary approval of a proposed settlement. The Plaintiffs seek the following: (1) provisional certification of the proposed Settlement Class and the California Subclass; (2) preliminary approval of the proposed Class Action settlement; (3) a determination that notice should issue to the Settlement Class and California Subclass; (4) a determination that the named Plaintiffs in the consolidated actions should be named as Class Representatives, and (5) the appointment of the Plaintiffs' Counsel as Settlement Class Counsel. The Defendant is a provider of insurance that specializes in life insurance. It provides an online application on its public website that enables web users to apply for life insurance for free. This application utilizes a third-party service provider to prefill and submit certain information, including applicants' Social Security numbers ("SSN"), to insurance carriers for underwriting purposes. As part of this process, SSNs are supposed to be encrypted and then returned to the page source code of the Defendant's web application layer. In August 2022, a change to the application's code caused unencrypted SSNs to be returned to the page's source code. The Defendant did not learn of this coding error until December 2022 after it discovered abnormal patterns of insurance applications. Its investigation revealed that the change to the application's code enabled "unknown actors" to access the SSNs of the page's users, including named Plaintiffs Christopher Stein, Josephine Dibisceglia, John Blumenstock, Thomas Rossello, Jeffry Branch, Derrick Carter, Trevor Pearch, James Schneider, and Tameka Young, and a group of other users of the application. Subsequently, Defendant sent notification letters to the Plaintiffs and approximately 34,000 other individuals whose SSNs were potentially exposed in the breach, and that group included approximately 1,302 residents of California. In total, the parties estimate that the Data Incident affected approximately 36,000 individuals. A series of class action lawsuits brought by certain of the named Plaintiffs individually and on behalf of all others similarly situated were filed in this Court and consolidated under this lead case. The Plaintiffs subsequently filed a Consolidated Class Action Complaint, consolidating the remainder of the named Plaintiffs under this action. The Plaintiffs and the Defendant exchanged Rule 408 discovery and engaged in mediation, ultimately accepting a proposal submitted by the mediator and memorialized in the parties' Settlement Agreement. The nationwide class definition for settlement purposes proposed by the Settlement Agreement is "all persons identified by Defendant (or its agents or affiliates) as being among those individuals impacted by the Data Incident, including all who were sent a notice of the Data Incident" (the "Settlement Class"). The Plaintiffs also seek to certify for settlement purposes a California Subclass defined as "all persons identified by the Defendant (or its agents or affiliates) as being among those individuals residing in California impacted by the Data Incident, including all who were sent a notice of the Data Incident" (the "California Subclass"). The Defendant has agreed to establish a $1 million non-reversionary cash Settlement Fund that will be applied in the following order: (1) Approved costs of settlement administration and notice, at an estimated cost of approximately $97,987. (2) The Plaintiffs' counsel has agreed to request no more than one-third of the Settlement Fund as reimbursement for attorneys' fees, and no more than $20,000 for reimbursement of costs and expenses. Thus far, the Plaintiffs' counsel have accrued a lodestar of approximately $281,536.40, and anticipate accruing additional lodestar totals as the case proceeds through confirmatory discovery, settlement administration, final approval, appeal, and any other hearings ordered by the Court. (3) The Plaintiffs intend to request service awards of up to $2,000 each. Any remaining funds will be applied until exhausted in the following order: (4) Claims for out-of-pocket expenses and loss reimbursement up to $5,000 per valid claim. The Settlement Agreement defines out-of-pocket expenses and losses as unreimbursed costs, expenditures, or losses that are fairly traceable to the Data Incident. (5) Cash payments to California Subclass members up to $100 per valid claim in addition to any other settlement benefits available as a result of the statutory claim available to them under the California Consumer Privacy Act (CCPA). These payments may be pro rata decreased if insufficient funds remain in the Settlement Fund. (6) Pro rata cash payments, up to $100 per Settlement Class Member, that will be pro rata increased or decreased based on the funds remaining in the Settlement Fund. All members of the Settlement Class will also be provided access to non-monetary settlement benefits. The Defendant will provide Experian credit monitoring and identity-protection services for a period of 12 months from the date a member claims the offer, consecutively to any credit monitoring services that a class member has received from Defendant. These monitoring services will include a minimum of the following features: (1) identity theft insurance with a $1,000,000 policy limit, (2) real-time credit monitoring services, and (3) access to fraud resolution agents. The Defendant will pay for the costs of such services separately and apart from the Settlement Fund, and such services may be obtained by all Settlement Class members regardless of whether they file a claim or submit a claim for monetary payment under the settlement. It has further agreed to take reasonable steps to secure personal information within its platform. The proposed Settlement Agreement states that, upon the Effective Date, each Settlement Class Member and Plaintiff, will be deemed to have, and by operation of the Final Approval Order will have fully, finally, and forever released, relinquished, and discharged all Released Claims, including Unknown Claims. Upon the Effective Date, the Settlement Class Members and the Plaintiffs will be permanently barred from participating in any action in any forum (other than participation in recovery in the present action) asserting any of the Released Claims. Settlement Class members submitting a claim for out-of-pocket losses, claims available under the CCPA, and/or a pro rata cash payment must complete and submit a claim form to the Claims Administrator, postmarked or submitted online on or before the claims deadline. The Court requires post-distribution accounting, with $50,000 of the attorneys' fees to be held back until that final accounting will be made. No later than 14 days after the entry of this Preliminary Approval Order, the Defendant will provide the Claims Administrator with the names, email addresses, and any last known physical addresses of each Settlement Class member. Notice Commencement Date is due 30 days after the entry of the Preliminary Approval Order. The Objection Deadline is 75 days from the Notice Commencement Date. For the opt-out deadline and claims deadline, the parties propose a date 75 days and 105 days from the Notice Commencement Date, respectively. The hearing on the motion for final approval will be held by the Court on Jan. 22, 2024. Judge Kim finds that the requirements of Rule 23(a) have been satisfied for the purpose of conditional certification of the Settlement Class and the California Subclass. In addition to meeting the conditions imposed by Rule 23(a), she determines that the class treatment appears to be warranted under Rule 23(a) and Rule 23(b)(3). Turning to the question whether the settlement should be preliminarily approved pursuant to Rule 23(e), Judge Kim she finds that the settlement agreement is fair, adequate, and reasonable to all concerned under Federal Rule of Civil Procedure 23(e)(2). The Settlement Agreement contains no substantive deficiencies precluding preliminary approval. Within 60 days after the Notice Commencement Date, the Class Counsel will move for an award of attorneys' fees, not to exceed one-third of the Settlement Fund, plus reimbursements and costs of up to $20,000, and service awards for the Class Representatives of up to $2,000 each. The amount of these awards and fees will be determined by the Court. With respect to the Class Notice Plan, Judge Kim holds that the notice requirements will be satisfied if the parties make the below revisions to the class notices attached to the proposed Settlement Agreement. The proposed Settlement Agreement provides for notice via email and/or physical mail. The Long Notice adequately explains the nature of the action. However, the Short Notice inadequately explains the nature of the action as well as the issues, claims, and defenses, and further fails to explain that a class member may enter an appearance through an attorney. The parties will revise the Short Notice to cure these deficiencies. As for attorneys' fees, the Plaintiffs' counsel have accrued a lodestar of approximately $281,536.40, and request not more than one-third of the Settlement Fund as reimbursement for their fees. Because the Plaintiffs' counsel's lodestar is closer to the 25% benchmark and seems unlikely to grow significantly in light of this preliminary approval, Judge Kim elects to use the lodestar method for calculating attorneys' fees. For the purposes of preliminary approval, the fee request is appropriate, but she defers her final ruling on the issue until the final approval hearing, at which the Court will make a final determination of Plaintiffs' counsel's fee award pursuant to the Settlement Agreement. The Plaintiffs' counsel will submit a motion seeking approval of attorneys' fees with their updated lodestar calculations within 60 days of the Notice Commencement Date. Finally, the counsel is instructed to submit an itemized sheet summarizing its costs with its motion for attorneys' fees so that the Court can determine whether these costs are reasonable litigation expenses incurred for the benefit of the class. For purposes of preliminary approval, the estimated costs are appropriate, but Judge Kim defers her final ruling on the issue until the final approval hearing. For the reasons she stated, Judge Kim grants the motion for preliminary approval of the class action settlement. The action is provisionally certified as a class for the purposes of settlement only, pursuant to Federal Rule of Civil Procedure 23. The settlement classes are defined as followed: a. The Settlement Class is defined as all persons identified by Defendant (or its agents or affiliates) as being among those individuals impacted by the Data Incident, including all who were sent a notice of the Data Incident. b. The California Subclass is defined as all persons identified by Defendant (or its agents or affiliates) as being individuals residing in California impacted by the Data Incident, including all who were sent a notice of the Data Incident. Certification of the settlement class will be solely for the purposes of settlement without prejudice to the parties in the event the settlement is not finally approved by the Court or otherwise does not take effect. Judge Kim appoints: a. M. Anderson Berry and Gregory Horoutunian of Clayeo C. Arnold, APC; Dylan J. Gould and Jonathan T. Deters of Markovits, Stock & DeMarco, LLC; Samuel J. Strauss; Raina Borrelli, and Brittany Resch of Turke & Strauss LLP; Jean S. Martin of Morgan & Morgan Complex Litigation Group; and John J. Nelson of Milberg Coleman Bryson Philips Grossman LLC as Class Counsel; b. Plaintiffs Christopher Stein, Josephine Dibisceglia, John Blumenstock, Thomas Rosello, Jeffrey Branch, Derrick Carter, Trevor Pearch, James Schneider, and Tameka Young as Class Representatives for settlement purposes only on behalf of the Settlement Class; and c. Kroll Settlement Administration, LLC, as the Claims Administrator. The Short Notice will be revised in accord with the Court's comments, after which notice will be provided in accordance with the notice plan as set forth in the Settlement Agreement. The date by which the Settlement Class members' objections to the Settlement must be postmarked by mailing them to the Court (the Objection Date) will be Nov. 20, 2023. The date by which Settlement Class Members' requests for exclusion from the Settlement Class must be postmarked by mailing them to the Claims Administrator (the Opt-Out-Date) will be Nov. 20, 2023. The date by which Settlement Class members must submit any valid Settlement Claims will (the Claims Deadline) will be Dec. 20, 2024. On Jan. 22, 2024, at 9:30 A.M., the Court will conduct the final approval hearing. The Class Counsel will file a motion seeking approval of attorneys' fees and costs and the proposed incentive awards within 60 days after the Notice Commencement Date. Written comments or objections to the settlement or to the attorneys' fees and costs must be postmarked no later than 45 days after the mailing of the class notice. The parties will amend the proposed Settlement Agreement to provide that the Class Counsel will be responsible for a post-distribution accounting of the Settlement Fund. $50,000 of the Class Counsel's approved fee will be held pending submission of the post-distribution accounting. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/35avyx2m from Leagle.com. EXXON MOBIL: Bid for Class Suit Certification Partly Granted ------------------------------------------------------------ Ben Miller of Bloomberg Law reports that Exxon Mobil Corp. investors suing the company for misrepresentations about its reserves related to climate change received partial approval for class-action status, a judge said in an opinion filed on August 21, 2023. Investors who were allegedly harmed by regulatory issues Exxon faced for its reserve accounting will be included in the certified class, Judge Ed Kinkeade said in his order. The oil giant sufficiently rebutted claims regarding the share price impact of alleged misstatements about its carbon proxy costs, he said in the order filed in US District Court for the Northern District of Texas. [GN] EZRICARE LLC: Class Cert Bid Filing Due Nov. 22 ----------------------------------------------- In the class action lawsuit captioned as TERESA PHILLIPS, v. EZRICARE, LLC, EZRIRX, LLC, and ARU PHARMA, INC., Case No. 3:23-cv-00153-MMH-MCR (M.D. Fla.), the Hon. Judge Marcia Morales Howard entered a case management and scheduling order and referral to mediation: Deadline for providing mandatory initial Aug. 31, 2023 disclosures. Deadline for moving to join a party or Dec. 11, 2023 amend the pleadings. Deadline for completing fact discovery and May 24, 2024 filing motions to compel. Deadline for disclosing expert reports. Plaintiff: June 24, 2024 Defendant: July 24, 2024 Plaintiff's Rebuttal: Aug. 9, 2024 Defendant' Rebuttal: Aug. 23, 2024 Defendants' deadline to depose Plaintiff's Sept. 23, 2024 expert(s). Plaintiff's deadline to depose Defendants' Oct. 23, 2024 expert(s). Deadline for completing expert discovery and Oct. 23, 2024 filing motions to compel. Deadline for moving for class certification. Nov. 22, 2024 Deadline for filing dispositive and Daubert Dec. 23, 2024 motions (responses due 21 days after service). Mediation Deadline: Dec. 16, 2024 Deadline for filing all other motions Apr. 28, 2025 including motions in limine. Deadline for filing the joint final pretrial May 12, 2025 statement. Final pretrial conference. May 19, 2025 Trial Term Begins June 2, 2025 A copy of the Court's order dated Aug. 7, 2023 is available from PacerMonitor.com at https://bit.ly/3KZqNK3 at no extra charge.[CC] FACTOR75 LLC: Faces Lens Suit Over Illegal Debt Collection ---------------------------------------------------------- LILIAN LENS, individually and on behalf of all those similarly situated, Plaintiff v. FACTOR75, LLC, Defendant, Case No. CACE-23-017241 (Fla. Cir., 17th Judicial, Broward Cty., Aug. 21, 2023) arises from the Defendant's alleged violation of the Florida Consumer Collection Practices Act. According to the complaint, the Defendant sent an electronic communication to Plaintiff in connection with the collection of the consumer debt. The electronic communication was sent to Plaintiff between the hours of 9:00 PM and 8:00 AM in the time zone of Plaintiff. The Defendant did not have the Plaintiff's consent to communicate with her between the said hours. Hence, the Defendant violated the FCCPA, says the suit. The Plaintiff is the alleged debtor of the consumer debt. Factor75, LLC is a subscription-based prepared meal delivery service.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. Jennifer G. Simil, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: (954) 907-1136 E-mail: jibrael@jibraellaw.com jen@jibraellaw.com FAIRFAX ORAL: MSD Law Firm Investigates Data Breach Claims ---------------------------------------------------------- Jonathan Deters, writing for Markovits, Stock & DeMarco, disclosed that Markovits, Stock & DeMarco, a law firm experienced in data breach cases, is investigating claims on behalf of victims of a data breach involving data entrusted to Fairfax Oral and Maxillofacial Surgery. Fairfax Oral and Maxillofacial Surgery is a medical group practice located in Alexandria, Virginia that specializes in oral and maxillofacial surgeries. If you received a notice of data breach letter from Fairfax Oral and Maxillofacial Surgery, please contact us as soon as possible to understand your legal rights in response to the data breach. WHAT HAPPENED? Fairfax Oral and Maxillofacial Surgery detected a cyberattack on its computer systems and network on May 16, 2023.[1] Fairfax Oral and Maxillofacial Surgery has disclosed the breach involves the encryption of confidential and personal information on its systems, including but not limited to: -- names, -- Social Security numbers, -- dates of birth, -- driver's license numbers, -- addresses, -- private medical information, -- health insurance information, and -- medical history information.[2] HOW MANY PEOPLE ARE IMPACTED BY THE DATA BREACH? Fairfax Oral and Maxillofacial Surgery did not report the data breach to the authorities and the affected parties for months – not until August 18, 2023.[3] In total, the data of 206,944 individuals was compromised in the breach.[4] WHAT SHOULD I DO IF I RECEIVED NOTIFICATION OF THE FAIRFAX ORAL AND MAXILLOFACIAL SURGERY DATA BREACH? If you would like to have a free, confidential consultation with an attorney to learn more about your rights and potential legal remedies in responding to the Fairfax Oral and Maxillofacial Surgery data breach, please contact Markovits, Stock & DeMarco attorney Terry Coates or Jon Deters at (513) 651-3700, email us at msd@msdlegal.com, or submit a Case Evaluation request through the form below. https://apps.web.maine.gov/online/aeviewer/ME/40/83ccde19-72d2-49ab-abec-7d93008b018e.shtml [1] https://apps.web.maine.gov/online/aeviewer/ME/40/83ccde19-72d2-49ab-abec-7d93008b018e.shtml [2] Id. [3] Id. [4] Id.[GN] FENNEC PHARMACEUTICALS: Fisher Securities Suit Dismissed -------------------------------------------------------- Fennec Pharmaceuticals Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 7, 2023, that on October 12, 2022, the United States District Court for the Middle District of North Carolina Judge issued a memorandum opinion and order dismissing the amended "Fisher v. Fennec Pharmaceuticals Inc., et al." in its entirety and with prejudice, and on October 14, 2022, entered judgment. Lead plaintiff had until November 14, 2022 to file a notice of appeal and did not file a notice of appeal. On February 9, 2022, plaintiff Jeffrey D. Fisher filed a putative federal securities class action lawsuit against the company and the company's CEO and CFO captioned "Fisher v. Fennec Pharmaceuticals Inc., et al.," Case No. 1:22-cv-00115. The complaint asserted a putative class period from May 28, 2021 through November 28, 2021, and alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 by making materially false and misleading statements or omissions regarding the status of the company's third-party PEDMARK(R) product manufacturing facility, the facility's compliance with current Good Manufacturing Practice (cGMP), and the impact its status and compliance would have on regulatory approval for PEDMARK(R) in the period leading up to the company's November 29, 2021 receipt of a Complete Response Letter (CRL) for a subsequent new drug application (NDA) for PEDMARK(R). The complaint sought an unspecified amount of damages and attorneys' fees and costs. On April 11, 2022, plaintiff Jeffrey D. Fisher filed a motion to be appointed lead plaintiff and represent the putative class and on May 9, 2022, the court appointed him as lead plaintiff. On June 23, 2022, lead plaintiff filed an amended complaint. The amended complaint asserted the same putative class period from May 28, 2021 through November 28, 2021, was brought against the same defendants and made allegations similar to those in the original complaint. On August 5, 2022, defendants filed a motion to dismiss the amended complaint. On August 26, 2022, lead plaintiff filed an opposition to the motion to dismiss. On September 9, 2022, defendants filed a reply in support of the motion to dismiss. On September 27, 2022, defendants filed a request for judicial notice regarding the FDA's press release announcing that it approved PEDMARK(R). On September 30, 2022, lead plaintiff filed an opposition to the request for judicial notice. On October 6, 2022, defendants filed a reply in support of the request for judicial notice. Fennec Pharmaceuticals Inc. is a commercial stage specialty pharmaceutical company with one U.S. FDA-approved and European Commission approved product, PEDMARK(R), developed to reduce the risk of ototoxicity associated with cisplatin in pediatric patients one month of age and older with localized, non-metastatic solid tumors. FORD MOTOR: 11th Circuit Remands Order of Class Suit Certification ------------------------------------------------------------------ Ty Jameson of Ellis Winters reports that a recent decision from the Eleventh Circuit involving allegations of fraud in Ford's marketing of Shelby Mustangs highlights how Rule 23(b)(3) 's predominance and superiority requirements can defeat class certification in cases where reliance is an element of the plaintiffs' claims. Cases such as this one illustrates why the necessity of proving reliance on an individual basis is a powerful weapon against class certification. Despite the individualized issues typically inherent in claims for fraud, the Eleventh Circuit in Tershakovec v. Ford Motor Co., Inc. was faced with a district court order that certified multiple state-law classes. No. 22-10575, 2023 WL 4377585 (11th Cir. July 7, 2023). On appeal, the Eleventh Circuit gave a much closer look at the elements of the state laws at issue and narrowed the claims that could be certified for class treatment. This post breaks down Tershakovec to demonstrate how predominance and superiority arguments can defeat certification of consumer fraud classes. Background to Consumer Fraud Classes Before diving into Tershakovec, it is useful to understand how courts usually treat, and often deny, certification of consumer fraud classes. Courts often deny certification on the ground that the predominance test is not satisfied because these claims often involve a fact-intensive inquiry into whether each plaintiff relied on the alleged misrepresentations.[1] As noted in Newberg and Rubenstein's treatise on class actions, courts are especially prone to deny certification in large, multi-state consumer fraud class actions where choice of law rules call for the application of multiple states' laws. See Newberg & Rubenstein on Class Actions Section 4:61 (6th ed.). Even the drafters of Rule 23(b)(3) commented on whether claims for fraud are proper for class certification. The drafters wrote that "a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed." Rules Advisory Committee Notes, 39 F.R.D. 69, 103 (1966). With this background in mind, we now turn to the district court's class certification order in Tershakovec. DISTRICT COURT CERTIFIES MULTIPLE STATE-LAW CLASSES Tershakovec involved a putative class action of purchasers of Ford's Shelby GT350 Mustangs. The Shelby Mustang is a high-performance vehicle named after Carroll Shelby, who was portrayed by Matt Damon in the 2019 film Ford v. Ferrari. Ford advertised Shelby Mustangs as "an all-day track car that's also street legal." However, plaintiffs purchased the two lowest trims out of the five offered—the "Base" and "Technology" trims. These two trims lacked transmission and differential coolers, which are designed to prevent engine overheating. Lacking transmission and differential coolers, these lower trim Shelby Mustangs reverted to "limp mode" at high RPMs—a self-preservation status that reduces the vehicle's power, speed, and performance to avoid engine damage. Plaintiffs alleged that their vehicles unexpectedly entered limp mode and that their vehicles were essentially unusable for sustained track driving. Plaintiffs brought a variety of claims under the statutes and common laws of several different states. Although the plaintiffs also included claims for breach of express and implied warranties, this post focuses on the plaintiffs' claims for fraud, which alleged that Ford falsely advertised the Shelby Mustangs as "track ready." The district court largely granted the plaintiffs' motion for class certification. Tershakovec v. Ford Motor Co., 546 F. Supp. 3d 1348 (S.D. Fla. 2021). In doing so, the district court had to address whether individualized issues of reliance predominated over common questions. The district court discussed a few federal court decisions allowing for class-wide proof where the defendant made uniform representations to the class such that reliance could be presumed.[2] The district court determined that Ford's representations to the plaintiffs about the Shelby Mustangs were uniform and that plaintiffs could not have known from Ford that their cars were incapable of completing a full track day. In weighing common versus individualized issues, the district court ruled that Ford's "uniform course of conduct" outweighed "the dearth of evidence pointing to individualized reliance issues" stemming from Ford's communications. While the district court viewed the predominance inquiry as "narrowly" tilting in favor of class certification, the superiority analysis "help[ed] push it over the edge." At most, the individual plaintiffs stood to recover $9,000 each. Thus, the district court concluded, a class action was a superior method to litigating these claims on an individual basis because the recovery would be swallowed by litigation costs. The district court also concluded that a class action would be manageable. Although the district court noted that manageability was a concern due to numerous state law classes, it determined that these concerns were insufficient to prevent certification. The district court's plan to address the manageability concerns was to use jury instructions and multiple verdict forms that ticked through the elements of the various state-law fraud claims. Finally, the district court turned to a state-by-state analysis to determine which state classes could be certified. Under Florida's choice of law rules, plaintiffs' claims were governed by the laws of the states where they purchased the vehicles. The district court analyzed the laws of the states where the named plaintiffs purchased their Shelby Mustangs and provided a cursory analysis of those state laws to determine whether they required plaintiffs to prove reliance. Although the district court recognized that some of these laws required individualized proof of reliance, it concluded that the mere possibility of individual reliance issues does not defeat predominance. The district court certified a mixture of statutory and common law fraud classes from nine states.[3] Each class was defined as "All persons who purchased a Class Vehicle from a Ford -authorized dealer or distributor located in [insert state here] before April 1, 2016." Eleventh Circuit Reins in District Court's Certification Order The Eleventh Circuit granted Ford's petition under Rule 23(f) to appeal the district court's certification order. The Eleventh Circuit's opinion in Tershakovec more closely resembles how other courts have treated consumer fraud class actions than did the district court's order. The Eleventh Circuit stated that the district court "leaned too heavily on the notion that reliance can sometimes be presumed" and that "overgeneralizing the presumption-of-reliance issue" was the "root of the district court's error." A presumption of reliance may sometimes apply, but only if the relevant state law allows for that presumption. States' fraud-based causes of action differ in terms of whether proof of reliance is required and how a plaintiff may establish that he or she reasonably relied on alleged misrepresentations. Thus, the Eleventh Circuit was tasked with determining "whether each cause of action at issue here requires proof of reliance and, if so, whether and under what circumstances a presumption of reliance is appropriate." To begin, the Eleventh Circuit discussed how presumption of reliance often turns on whether a fraud-based claim alleges affirmative misrepresentations or omissions (i.e., non-disclosures). Courts have been more apt to allow for a presumption of reliance when the case involves omissions.[4] Plaintiffs argued that their case was solely about omissions—that Ford failed to disclose that the Shelby Mustangs' two lowest trim levels are not capable of completing a full track day. The Eleventh Circuit disagreed, holding that this case is about misrepresentations, not omissions. The plaintiffs alleged that Ford misrepresented all Shelby Mustangs as "track capable." The omission—that the lower trim levels are not track capable—was only derivative of the affirmative misrepresentations. With the initial analysis of affirmative misrepresentations versus omissions out of the way, the Eleventh Circuit then took a deep dive into the details of the state laws at issue. The Eleventh's Circuit's opinion devotes far more time and analysis to whether each state law required plaintiffs to prove reliance on an individualized basis. The plaintiffs' claims were grouped into three categories. The first group consisted of causes of action that do not require proof of reliance. Because these causes of action did not require plaintiffs to prove reliance, the Eleventh Circuit held that Rule 23(b)(3)'s predominance requirement posed no barrier to class treatment of these claims and affirmed certification of these classes. The second group consisted of the opposite—causes of action that required the plaintiff to prove reliance affirmatively, without allowing for any presumption. Although some states had not directly ruled on this issue, the Eleventh Circuit declined to expand state law to include a presumption when state law did not provide a clear indication that a presumption is permissible. The Eleventh Circuit reversed certification of the four claims that fell under this second category. Finally, the third group consisted of causes of action where proof of reliance is required but reliance may be presumed under certain circumstances. Two claims fell in this category, both the California statutory claim and the California common-law claim. One scenario under which California statutory law allows for a presumption of reliance is where "the defendant so pervasively disseminated material misrepresentations that all plaintiffs must have been exposed to them." California common law allows for a presumption of reliance "when the same material misrepresentations have actually been communicated to each member of a class." The Eleventh Circuit remanded these claims to the district court to determine whether these preconditions to a presumption of reliance were satisfied. After discussing the predominance inquiry, the Eleventh Circuit then turned to the superiority analysis. Ford argued that the class action was unmanageable because jurors would have to keep track of which plaintiff came from which state and what the elements and burdens of proof are under each state's laws. The Eleventh Circuit expressed skepticism of the district court's plan to address these manageability concerns through use of jury instructions and multiple verdict forms. The Eleventh Circuit instructed the district court on remand to consider the manageability concerns anew and "more clearly articulate a plan for addressing them to ensure that the difficulties of managing the class action do not impede the fair and efficient adjudication of the case." *** Tershakovec demonstrates how the predominance and superiority requirements pose barriers to class certification when plaintiffs must prove reliance, especially when multiple states' laws are at issue. An effective defense in opposing certification will entail detailed research into the elements and burdens of each cause of action. As the Eleventh Circuit put it, the predominance inquiry turns on "(1) whether those laws require proof of reliance, (2) if so, whether they permit reliance to be presumed, and (3) if so, under what circumstances." Defense counsel will do well to thoroughly research applicable state law to answer these questions. [1] See, e.g., Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225 (11th Cir. 2016) (denying certification of putative class of consumers alleging fraud against manufacturer of front-loading washing machines); Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 434-35 (4th Cir. 2003) (denying certification of claims under South Carolina law for fraud and negligent misrepresentation). [2] See, e.g., Mullen v. GLV, Inc., 330 F.R.D. 155 (N.D. Ill. 2019) (allowing for class-wide proof of reliance). [3] On appeal, Plaintiffs no longer pursued their claims under the laws of two of the states (Oregon and Illinois). [4] See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153 (1972) (holding that positive proof of reliance is not a prerequisite to recovery where the case involved a failure to disclose). [GN] FOUNDEVER OPERATING: Plaintiffs Seek to File Exhibits Under Seal ---------------------------------------------------------------- In the class action lawsuit captioned as MERCEDES PHERIGO et al., v. FOUNDEVER OPERATING CORPORATION et al., Case No. 1:23-cv-00516-CFC (D. Del.), the Plaintiffs file a motion for leave to file under seal Exhibits in support of conditional certification. The Plaintiffs seek to rely on documents designated by Defendants as confidential. These documents comprise proposed Exhibit 9 to Plaintiffs' Motion for Conditional Certification. This document will be filed separately under seal. The Plaintiffs request to submit the documents under seal and do not now elect to challenge Defendants’ designation of these documents as confidential or the propriety of filing them under seal. Foundever specializes in customer relationship management offering outsourced inbound call management services through nearshore and offshore contact centers. A copy of the Plaintiffs' motion dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/45vHh4Y at no extra charge.[CC] The Plaintiffs are represented by: Patrick C. Gallagher, Esq. JACOBS & CRUMPLAR, P.A. 750 Shipyard Drive, Suite 200 Wilmington, DE 19801 Telephone: (302) 656-5445 Facsimile: (302) 656-5875 E-mail: pat@jcdelaw.com - and - Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: AFrisch@forthepeople.com - and - Matthew S. Parmet, Esq. PARMET PC 2 Greenway Plaza, Suite 250 Houston, TX 77046 Telephone: (713) 999-5228 E-mail: matt@parmet.law FRONTIER AIRLINES: Faces Suit Over "All You Can Fly Pass" Scheme ---------------------------------------------------------------- Anthony Losanno of The BulkHead Seat reports that a new lawsuit against Frontier Airlines alleges that its "GoWild! All You Can Fly Pass(TM)" is a bait-and-switch scheme. The legal action began over carry-on bag fees being tacked on even when the bags met the airline's required dimensions. Frontier offers several unlimited flight passes. These range from a monthly pass for $149, a summer pass for $999, and an annual pass for $1,999. With any of these passes, passengers are allowed to fly an unlimited number of both domestic and international flights. Domestic flights can be confirmed as soon as the day before the flight and international flights can be booked ten days or more before departure. CBS News reports that a South Carolina woman claims that the pass is "inoperable." Frontier advertises accepted dimensions for carry-on bags, but then says bags are too large at the airport and will incur a fee (even when they fit in the carrier's bag sizer). She also claims that the website only lets her choose flights departing in the year1904, which makes no sense. Frustrated, she tried to get a refund, but was told that Frontier's passes are non-refundable. This is not the only recent class action lawsuit filed against Frontier Airlines. A Florida woman filed a $100-million class action lawsuit in July. It alleges that the airline uses "bait-and-switch" and "gotcha" tactics that are intended to "confuse, trick and trap consumers." Anthony's Take: Low cost carriers make fees and guidelines pretty clear throughout the booking process. It will be interesting to see how these lawsuits play out. [GN] GANNETT CO: Faces Class Suit Over White Workers' Discrimination --------------------------------------------------------------- Daniel Wiessner of Reuters reports that Gannett Co Inc (GCI.N), the largest U.S. newspaper publisher, is facing a lawsuit claiming its efforts to diversify newsrooms led to discrimination against white workers. The proposed class action was filed in Virginia federal court on August 25, 2023 by five current and former Gannett employees who say they were fired or passed over for promotions to make room for less-qualified women and minorities. The plaintiffs say those decisions were driven by a policy announced in 2020 under which Gannett aims to have its newsrooms reflect the demographics of the communities they cover by 2025. Gannett has also tied executive bonuses and promotions to success meeting the goals outlined in the policy, according to the lawsuit. "Gannett executed their reverse race discrimination policy with a callous indifference towards civil rights laws or the welfare of the workers, and prospective workers, whose lives would be upended by it," the plaintiffs said in the lawsuit. Polly Grunfeld Sack, Virginia-based Gannett's chief legal counsel, said the company always seeks to recruit and retain the most qualified workers. "We will vigorously defend our practice of ensuring equal opportunities for all our valued employees against this meritless lawsuit," Sack said in a statement. The lawsuit comes amid growing backlash to increasingly prevalent corporate diversity policies. Unlike other pending cases brought by conservative groups, the claims against Gannett were filed directly by the company's employees. Starbucks Corp, Target Corp, and Progressive Insurance are among the companies that have faced shareholder lawsuits challenging diversity programs. A group founded by former Trump administration officials has filed more than a dozen complaints with a federal anti-bias agency accusing large companies of discriminating against white and male workers. Many experts expect an uptick in such challenges following a U.S. Supreme Court ruling in June that struck down race-conscious college admissions policies. On August 22, 2023, a group formed by conservative activist Edward Blum, who spearheaded the Supreme Court case, sued two major U.S. law firms over fellowships they offer to racial minorities and LGBT people. The lawsuit against Gannett notes that the Supreme Court said in the decision that "eliminating racial discrimination means eliminating all of it." In the lawsuit, plaintiff Steven Bradley says he was fired from a management job at the Democrat and Chronicle newspaper in Rochester, New York, and then passed over for a different position with Gannett because he is white. Bradley in April filed a similar lawsuit against Gannett in New York state court. The status of that case was unclear. Another plaintiff, Logan Barry, says he was in line for promotion to a leadership position at the Progress-Index in Petersburg, Virginia. After Gannett acquired the newspaper in 2019, the job went to a Black woman with fewer qualifications, according to the lawsuit. The plaintiffs accused Gannett of violating a federal law prohibiting race discrimination in contracts. They are seeking to require Gannett to eliminate the 2020 policy, along with lost pay and benefits and other money damages. [GN] GATEHOUSE MEDIA: Wins Bid to Redact Private Information in Exhibits ------------------------------------------------------------------- In the class action lawsuit captioned as JOHN EWALT, et al., v. GATEHOUSE MEDIA OHIO HOLDING II, INC., d/b/a THE COLUMBUS DISPATCH, et al., Case No. 2:19-cv-04262-ALM-KAJ (S.D. Ohio), the Hon. Judge Kimberly A. Jolson entered an order granting Private Personal motion to redact exhibits containing "the private personal information of third parties." GateHouse Ohio is Ordered to file the redacted version of Plaintiffs' Reply in Support of Their Motion for Class Certification consistent with the Order within seven days of the date of this Order. The Court concludes that a compelling interest exists; the non-parties' right to privacy outweighs the public's interest in access to the information; and the proposed redactions are narrowly tailored to serve the interest of privacy because only private personal information is redacted. Accordingly, the Court grants the proposed redaction of private personal information from the following: -- Exhibit B to the Affidavit of Jeffrey R. Corcoran (Doc. 244-1). Confidential Corporate, Customer Service, and Marketing Strategies Lastly, GateHouse Ohio moves to redact its confidential corporate, customer service, and marketing strategies. Specifically, GateHouse Ohio seeks to seal Deposition Exhibit 160 to Plaintiff's Reply, a customer service script. GateHouse Ohio moves to redact certain portions of the Groves Deposition Transcript explaining scripts about the Dispatch's premium editions used by customer service agents in 2018. The Court has already ruled that these scripts may remain sealed from the public and has allowed redactions to deposition transcripts discussing these scripts. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/3OV52wn at no extra charge.[CC] GEISINGER HEALTH: Class Cert Bid Filing Extended to April 26, 2024 ------------------------------------------------------------------ In the class action lawsuit re: Geisinger Health and Evangelical Community Hospital Healthcare Workers Antitrust Litigation, Case No. 4:21-cv-00196-MWB (M.D. Pa.), the Hon. Judge Matthew W. Brann entered an order granting joint motion for extension of time to all remaining deadlines in the current schedule: Event Deadline Deadline for completion of non-expert Oct. 31, 2023 depositions Close of fact discovery Oct. 31, 2023 Expert reports on all issues relating Nov. 28, 2023 to class and merits Opposing expert reports Jan. 19, 2024 Rebuttal expert reports Mar. 1, 2024 Motions for class certification/Daubert April 26, 2024 motions and supporting briefs A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/45tEDN1 at no extra charge.[CC] GOLDMAN SACHS (ASIA): MINISO ADS Securities Suit Ongoing -------------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that its subsidiary Goldman Sachs (Asia) L.L.C. (GS Asia) is among the underwriters named as defendants in a putative securities class action filed on August 17, 2022 in the U.S. District Court for the Central District of California and transferred to the U.S. District Court for the Southern District of New York on November 18, 2022 relating to MINISO Group Holding Limited's (MINISO) approximately $656 million October 2020 initial public offering of ADS. In addition to the underwriters, the defendants include MINISO and certain of its officers and directors. GS Asia underwrote 16,408,093 ADS representing an aggregate offering price of approximately $328 million. On April 24, 2023, the plaintiffs filed a second amended complaint, and on June 23, 2023, the defendants moved to dismiss the second amended complaint. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOLDMAN SACHS (ASIA): Yatsen ADS Securities Suit Ongoing -------------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that its subsidiary Goldman Sachs (Asia) L.L.C. (GS Asia) is among the underwriters named as defendants in a putative securities class action filed on September 23, 2022 in the U.S. District Court for the Southern District of New York relating to Yatsen Holding Limited's (Yatsen) approximately $617 million November 2020 initial public offering of ADS. In addition to the underwriters, the defendants include Yatsen, certain of its officers and directors and one of its shareholders. GS Asia underwrote 22,912,500 ADS representing an aggregate offering price of approximately $241 million. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOLDMAN SACHS: Agrees to Settle Antirust Class Action for $500M --------------------------------------------------------------- Chris Dolmetsch, writing for Bloomberg News, reports that Goldman Sachs Group Inc., Morgan Stanley, JPMorgan Chase & Co. and UBS AG agreed to pay nearly $500 million to settle an antitrust class action by US pension funds over the banks' control of the market for stock loans used for hedging and short selling. According to an Aug. 23 court filing by the pension funds in Manhattan federal court, the four banks agreed to pay $499 million and also cooperate in the litigation against Bank of America Corp., the sole remaining defendant. [GN] GOLDMAN SACHS: Faces RICO Charges in New York Court --------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that its subsidiary Goldman Sachs and Co. is facing a currencies-related Litigation in a putative class action filed in the U.S. District Court for the Southern District of New York on August 4, 2021. An amended complaint, filed on January 6, 2022, generally asserts claims under federal antitrust law and state common law in connection with an alleged conspiracy among the defendants to manipulate auctions for foreign exchange transactions on an electronic trading platform, as well as claims under the Racketeer Influenced and Corrupt Organizations Act (RICO). The complaint seeks declaratory and injunctive relief, as well as unspecified amounts of treble and other damages. On May 18, 2023, the court dismissed certain state common law claims, but denied dismissal of the remaining claims. On July 7, 2023, the plaintiffs filed a second amended complaint. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOLDMAN SACHS: Faces Securities Fraud Charges in NY Court --------------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that a putative securities class action lawsuit filed in the U.S. District Court for the Southern District of New York against the group and certain former officers of the firm on December 20, 2018, alleging violations of the anti-fraud provisions of the Exchange Act with respect to Group Inc.'s disclosures and public statements concerning 1MDB and seeking unspecified damages is ongoing. The plaintiff filed the second amended complaint on October 28, 2019. On June 28, 2021, the court dismissed the claims against one of the individual defendants but denied the defendants' motion to dismiss with respect to the firm and the remaining individual defendants. On November 12, 2021, the plaintiff moved for class certification. On July 31, 2023, the plaintiff's motion for leave to file a third amended complaint was granted. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOLDMAN SACHS: Faces Securities Suit Over Stock Liquidation ----------------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that the group is a defendant in putative securities class actions filed beginning in October 2021 and consolidated in the U.S. District Court for the Southern District of New York. The complaints allege that the group, along with another financial institution, sold shares in Baidu Inc., Discovery Inc., GSX Techedu Inc., iQIYI Inc., Tencent Music Entertainment Group, ViacomCBS, and Vipshop Holdings Ltd. based on material nonpublic information regarding the liquidation of the position of Archegos Capital Management, LP in Baidu, Discovery, Gaotu, iQIYI, Tencent, ViacomCBS and Vipshop, respectively. The complaints generally assert violations of Sections 10(b), 20A and 20(a) of the Exchange Act and seek unspecified damages. On June 13, 2022, the plaintiffs in the class actions filed amended complaints. On March 31, 2023, the court granted the defendants' motions to dismiss the amended complaints without prejudice. In May 2023, the plaintiffs in the class actions filed second amended complaints, and on July 18, 2023, the defendants moved to dismiss the second amended complaints. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOLDMAN SACHS: Named in Securities Suit Over Stock Offering ----------------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that that its subsidiary Goldman Sachs and Co. (GS&Co.) is among the underwriters named as defendants in a putative securities class action filed on August 13, 2021 in New York Supreme Court, County of New York, relating to ViacomCBS Inc.'s (ViacomCBS) March 2021 public offerings of $1.7 billion of common stock and $1.0 billion of preferred stock. In addition to the underwriters, the defendants include ViacomCBS and certain of its officers and directors. GS&Co. underwrote 646,154 shares of common stock representing an aggregate offering price of approximately $55 million and 323,077 shares of preferred stock representing an aggregate offering price of approximately $32 million. The complaint asserts claims under the federal securities laws and alleges that the offering documents contained material misstatements and omissions, including, among other things, that the offering documents failed to disclose that Archegos Capital Management, LP (Archegos) had substantial exposure to ViacomCBS, including through total return swaps to which certain of the underwriters, including GS&Co., were allegedly counterparties, and that such underwriters failed to disclose their exposure to Archegos. On December 21, 2021, the plaintiffs filed a corrected amended complaint. The complaint seeks rescission and compensatory damages in unspecified amounts. On January 4, 2022, the plaintiffs moved for class certification. On February 6, 2023, the court dismissed the claims against ViacomCBS and the individual defendants, but denied the defendants' motions to dismiss with respect to GS&Co. and the other underwriter defendants. On February 15, 2023, the underwriter defendants appealed the court's denial of the motion to dismiss. On March 10, 2023, the plaintiffs appealed the court's dismissal of the claims against ViacomCBS and the individual defendants. On April 18, 2023, the plaintiffs moved for class certification. On June 12, 2023, the court denied the underwriter defendants' motion to stay the proceedings pending their appeal of the court's denial of the motion to dismiss, and on June 27, 2023 the underwriter defendants appealed. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOLDMAN SACHS: Settlement in Discrimination Suit Initially OK'd --------------------------------------------------------------- The Goldman Sachs Group, Inc. disclosed in its Form 10-Q for the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that on May 15, 2023 U.S. District Court for the Southern District of New York preliminarily approved a settlement among the parties pursuant to a putative class action was filed on September 15, 2010 by three female former employees against its subsidiary, Goldman Sachs and Co. (GS&Co.) for $215 million. The complaint, as subsequently amended, alleges that the companies have systematically discriminated against female employees in respect of compensation, promotion and performance evaluations. The complaint alleges a class consisting of all female employees employed at specified levels in specified areas by Group Inc. and GS&Co. since July 2002, and asserts claims under federal and New York City discrimination laws. The settlement also provides that the firm will engage an independent expert to complete standard validation studies of its performance evaluation and promotion from vice president to managing director processes, continue or implement certain practices as part of its performance evaluation and promotion processes, and engage an independent expert to perform an annual pay equity analysis for the 2023, 2024 and 2025 year-end compensation cycles. The Goldman Sachs Group, Inc., a Delaware corporation, together with its consolidated subsidiaries, is a global financial institution that delivers a broad range of financial services to a large and diversified client base that includes corporations, financial institutions, governments and individuals. GOOGLE LLC: $8.4MM Class Deal in Bowlay-Williams Suit Wins Final OK ------------------------------------------------------------------- In the case, Cody Bowlay-Williams, individually and on behalf of others similarly situated, Plaintiff v. Google LLC, Defendant, Case No. 4:21-cv-09942-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California grants the Plaintiff's unopposed Motion for Final Approval of Class and Collective Action Settlement, and Motion for Attorneys' Fees, Costs, and a Service Payment. On July 27, 2023, Plaintiff Bowlay-Williams and Defendant Google appeared before the Court for the Plaintiff's Motion for Final Approval of Class and Collective Action Settlement, and for the Plaintiff's Motion for Attorneys' Fees, Costs, and a Service Payment. Google does not oppose either motion. On March 13, 2023, the Court preliminarily approved the parties' class and collective action settlement, approving a Maximum Settlement Amount of $8,369,000. In accordance with the Preliminary Approval Order, Class Members have been given notice of the terms of the settlement and the opportunity to object to it, to exclude themselves from its provisions, or to opt into the settlement. Having received and considered the settlement, the supporting papers filed by the parties, and the evidence and argument received by the Court at the hearing before her entered the Preliminary Approval Order and the final approval hearing on July 27, 2023, Judge Hamilton grants final approval of the settlement. The following persons are hereby certified as class members for the purpose of entering a settlement in the matter: The California Class: All non-exempt employees of Defendant who worked in California at any time from Dec. 22, 2017 through June 5, 2022, who were awarded restricted stock units that vested at any time during that period and/or who received a sign-on bonus during that period. The FLSA Collective: All non-exempt employees of Defendant who worked in the United States, but outside of California, at any time from Dec. 22, 2018 through June 5, 2022, who were awarded restricted stock units that vested at any time during that period and/or who received a sign-on bonus during that period. There are 6,517 individuals eligible to participate in the settlement classes: 3,277 in the California Class and 3,240 in the FLSA Collective. Judge Hamilton certifies the California Class solely for purposes of Settlement pursuant to Rule 23, Federal Rules of Civil Procedure, and certifies the FLSA Collective as a collective action solely for purposes of Settlement, pursuant to section 16(b) of the Fair Labor Standards Act, 29 U.S.C. Section 216(b). Judge Hamilton designates Plaintiff Cody Bowlay-Williams as the Class Representative, and Michele R. Fisher and Daniel S. Brome of Nichols Kaster, PLLP, and Charles Scalise of Ross Scalise Law Group, P.C. as the Class Counsel. The Defendant has discharged its obligations under the Class Action Fairness Act ("CAFA") to provide notice to the appropriate federal and state officials. The California Labor and Workforce Development Agency ("LWDA") was also given timely notice of the Settlement pursuant to the California Labor Code Private Attorneys General Act ("PAGA"), Cal. Lab. Code Section 2699(l)(2). No Class Members objected to the Settlement or stated an intent to appear at the final approval hearing. Eighteen of the 3,277 California Class Members (employee identifiers are 989618, 950740, 917639, 873624, 813656, 714906, 696486, 696228, 686882, 619767, 614867, 614702, 591838, 326024, 230515, 219752, 107044, and 63694) requested exclusion and therefore do not release any of the claims being released by California Class Members, with the exception of any PAGA claim they may have under California Labor Code sections 201-203, 226, 510, 1194, 1198, and 2698 et seq. For the excluded California Class Members, the Defendant will retain those settlement allocations from the Maximum Settlement Amount, except for their PAGA allocation, if any. Thus, 3,259 California Class Members did not request exclusion and are participating in the settlement. Of the 3,240 putative FLSA Collective Members, 662 of them submitted a valid Consent to Join form to be included in the action. Thus, 662 FLSA Collective Action Members are participating in the settlement. The 2,578 FLSA Collective Members who did not submit a Consent to Join form are not included in this action or the settlement, their rights are not impacted by this case or settlement, and Defendant will retain those settlement allocations from the Maximum Settlement Amount. There is therefore a total of 3,921 California Class Members who did not request exclusion and FLSA Collective Members who submitted a Consent to Join form ("Settling Plaintiffs"). Judge Hamilton finds and determines that the terms of the Settlement are fair, reasonable, and adequate to the Classes and to each Class Member, and that it is a reasonable compromise of a bona fide despite. The Settlement is ordered finally approved, and that all terms and provisions of the Settlement are ordered to be consummated. She also finds and determines that the Settlement Shares to be paid to the Settling Plaintiffs, to California Class Members in settlement of their PAGA claims, and to the LWDA as provided for by the Settlement, are fair and reasonable, and will be paid from the Maximum Settlement Amount. With respect to Class Counsel's request for costs ($16,700) and a service award to Plaintiff Bowlay-Williams ($3,000), Judge Hamilton approves of these requests to be paid from the Maximum Settlement Amount. Based on Class Counsel's representation at the final approval hearing that their costs decreased slightly due to the final approval hearing occurring by Zoom rather than in-person, $16,488.22 will go to the Class Counsel and $211.78 will be donated to Legal Aid at Work. She also finds that the requested service award of $3,000 has been adequately justified and appropriately reflects the named Plaintiff's contributions on behalf of the group, and the risk of reputational harm to benefit the group. With respect to the Class Counsel's request for attorneys' fees, Judge Hamilton says the Plaintiff seeks attorneys' fees based on the maximum hypothetical settlement amount that could have been reached under the agreement had all eligible class and collective members participated in the settlement, but that figure does not represent the benefit to the class in the action. The settlement agreement provides that the amount allocated to eligible collective members who do not participate in the settlement will be returned to Google. Given the 20% opt-in rate for the FLSA collective and the fact that Google will retain the amount allocated to non-participating members, she declines the Plaintiff's request to award fees as a percentage of an amount that would include funds retained by the Defendant. Instead, Judge Hamilton approves attorneys' fees totaling 25% of the total settlement fund that will benefit the class. The settlement amount that benefits the class is comprised of money that will be distributed to the class including the named Plaintiff service award and PAGA payment ($5,424,560.02), payment to the LWDA ($37,500), costs of litigation ($16,488.22), and the contingency fund and donation amount ($5,211.78). In total, this $5,483,760.02 figure comprises the primary benefit to the class. The attorneys' fees awarded will equal 25% of the Defendant's actual payment to resolve this action with the classes. The Defendant's total payment (which excludes amounts retained by defendant attributable to those who failed to opt-in) is $7,311,680.03, 25% of which constitutes the attorneys' fee award of $1,827,920.01. The Court finds that awarding fees at the benchmark percentage of 25% is justified by the results obtained in this settlement, the benefit ultimately provided to the Class, and counsel's work and skill that led to this result. It is also justified by the risk Class Counsel took in pursuing this novel claim against a large corporation. Additionally, the lodestar in the action totaled approximately $329,966.50 thus this award amounts to 5.5 times the lodestar calculation, which is high but justified for the reasons stated above and argued by plaintiff. Within 60 days, the Defendant will transfer the settlement funds to the settlement administrator via wire transfer. Within 14 days thereafter, the settlement administrator will pay to the Settling Plaintiffs and to California Class Members for their share of the PAGA Allocation the Settlement Shares (including all PAGA allocations regardless of any request for exclusion); to the Plaintiff, his Settlement Share and the Class Representative Payment; to the Class Counsel the Class Counsel Fees and Expenses Payment as outlined above; and to the LWDA the LWDA Payment. The settlement checks will be void after 90 days of issuance, however reissuance of lost or destroyed checks will be permitted upon request during that period. If uncashed settlement checks for California Class Members amount to more than $60,000, those funds will be redistributed pro rata based on Settlement Shares to the Settling California Class Members who timely cashed their settlement checks during the original check cashing period. Judge Hamilton orders that if any funds remain from the $5,000 contingency fund, from uncashed checks to the California Class Members if a redistribution is not required, from uncashed checks to California Class Members after a redistribution, or from uncashed checks to Settling FLSA Collective Members, that money will be donated to Legal Aid at Work. The Defendant will be separately responsible for payment of settlement administration to the settlement administrator. Without affecting the finality of her Order in any way, Judge Hamilton retains jurisdiction of all matters relating to the interpretation, administration, implementation, effectuation, and enforcement of this order and the Settlement. Upon completion of administration of the settlement, the settlement administrator will provide written certification of such completion to the Court and counsel for the parties. In consideration of the Plaintiff's awarded Class Representative Payment, the Plaintiff's Settlement Share, and the other terms and conditions of the settlement, as of the date the settlement becomes Final, except as provided in the Order, the Plaintiff releases any and all known and unknown claims against Google and any of its past and present owners(s), officers, directors, managers, insurers, and attorneys, and waives the protection of California Civil Code section 1542. The parties are ordered to comply with the terms of the Settlement. They will bear his, her, its, or their own respective attorneys' fees and costs except as otherwise provided in the Settlement. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/mr3b4dxk from Leagle.com. GOOGLE LLC: Court Rejects Dinerstein Privacy Class Action Suit -------------------------------------------------------------- Amy M. Magnano and Michael J. Madderra of Morgan Lewis report that the Seventh Circuit recently rejected a series of class action claims against Google and the University of Chicago Medical Center alleging that the medical center improperly sold patient health information to the tech giant, which, in conjunction with Google's other data, could be used to reveal patient identities and other sensitive information. The court's July 11, 2023 decision is a major win for privacy compliance officers, whose jobs have become increasingly arduous with the proliferation of new privacy laws and the potential for significant consequences for violations. In Dinerstein v. Google and The University of Chicago Medical Center, No. 1:19-cv-04311, the plaintiff was a patient at the university medical center in 2015. Plaintiff owned a smartphone containing Google applications and maintained a Google account that allegedly collected and transmitted his geolocation to Google. Two years later, the university and Google entered into a data partnership, with Google receiving anonymized health records for research purposes. Plaintiff sued Google and the university, alleging that, among other things, the university had breached the contractual obligations within its privacy notice, and Google impermissibly was capable of re-identifying patients because of its vast data network. The district court dismissed Plaintiff's consumer-fraud claim for lack of standing and the remaining claims on various state law grounds. 484 F. Supp. 3d 561 (N.D. Ill. Sept. 4, 2020). On appeal, the Seventh Circuit affirmed the judgment, concluding that all claims failed for lack of standing. First, the court denied Plaintiff's common law privacy claim, noting that it was skeptical of a "public-disclosure tort premised on the dissemination of anonymized information" and that Plaintiff had failed to plausibly allege that anonymization in this case was deficient. "At most, he alleges that some personally identifying information 'may have evaded redaction'"—an unsupported hypothetical. The court also rejected Plaintiff’s contention that the combination of data within the medical records alongside geolocation and demographic data sourced from smartphone apps created the "perfect formulation" for later re-identification. This too was deemed to be a hypothetical risk of future, anticipated harm. Second, the court found Plaintiff also lacked standing to bring his contract claim arguing that the university's Notice of Privacy Practices and Outpatient Agreement and Authorization that he signed upon admittance to the medical center "contractually obligated the [u]niversity to safeguard his medical information. In his view, transferring his medical records to Google was a flagrant breach of that obligation." The court rejected this claim as implausible, noting that Plaintiff "signed a release" giving express consent that his medical information could be used for research. (The Seventh Circuit did not reject or explicitly accept Plaintiff's argument that the Notice of Privacy Practices was a contractual agreement with a patient. Even if the notice was a contract, Plaintiff nonetheless failed to prove contractual damages. The court concluded that a contractual breach, without actual damages, was insufficient to confer standing.) This is a significant decision for privacy and medical professionals alike. The court rejected speculative claims that pointed only to the possibility that anonymized or pseudonymized data could be used to re-identify plaintiffs. As such, the data holder was not held accountable for merely possessing the data or allegedly having the capability to re-identify the subject: there must be some bad intent or actual bad act. Additionally, the decision underscores the importance of having a HIPAA-compliant Notice of Privacy Practices and making sure that adequate notices are given to patients to explain what information is collected, how the information is processed, and what the information may be used for. Plaintiff failed to show that Google took actions to use the data to re-identify patients; there was no evidence that the anonymization process was faulty; and the university had policies and procedures in place designed to give notice to patients. "Put simply, [Plaintiff] seeks to invoke the power of the federal courts to challenge the lawfulness of an event that caused him no harm." By taking adequate precautions to safeguard patient data and provide notice about its potential uses, Google and the university avoided potentially significant damages. To learn more about the case's impact and its implications for businesses, contact a Morgan Lewis healthcare or privacy lawyer. [GN] GOOGLE LLC: Fails to Provide Info on NFL's Sunday Ticket Pricing ---------------------------------------------------------------- Mike Florio of NBC Sports reports that Google's expensive purchase of the NFL's Sunday Ticket package has come with a free side of litigation. According to Reuters, Google has been sued for information relevant to the pending class action lawsuit against the NFL and DirecTV over the Sunday Ticket package. Google allegedly has failed and refused to provide information regarding retail pricing, rights fees, and subscriber numbers for Sunday Ticket. Google previously has claimed that the production of the requested information would be "unduly burdensome." Eventually, Google agreed to provide only three documents, characterized as "summary presentations" regarding the arrangement with the league. The apparent goal is to explore whether the NFL placed restrictions on Google similar to restrictions allegedly placed on DirecTV regarding the price of the package and the requirement that consumers purchase all games over all weeks, or none at all. "Evidence that the NFL imposed restrictions on Google will support plaintiffs' claims that the NFL imposed these same restraints on DirecTV during the class period, to the detriment of consumers," attorneys for the class alleged in the new claim against Google and YouTube. The effort to prove NFL control and influence over Google's pricing comes at a time when the league has filed what's known as a motion for summary judgment in the case. The basic argument in such motions is that there is no need for a trial because there is no dispute regarding any material fact that must be resolved by a jury, and that the case can be resolved by the judge applying the law to the undisputed record in the case. The question becomes whether the NFL fixed Sunday Ticket pricing in a way that violates antitrust law. Suggestions have emerged that Apple, which bid on the package, wanted to make Sunday Ticket available to consumers at a much lower price. The league enjoys a broadcast antitrust exemption, but there could be limits to the application of the license to shop TV rights as a collective. This litigation could test, and could show, that there are certain things that can’t be done when it comes to setting the price and the terms that consumers must pay to watch their favorite teams’ game, if those games aren't broadcast in the relevant local market. [GN] GRAND CANYON: Court Narrows Claims in Ogdon Suit ------------------------------------------------ In the class action lawsuit captioned as Katie Ogdon, v. Grand Canyon University Incorporated, et al., Case No. 2:22-cv-00477-DLR (D. Ariz.), the Hon. Judge Douglas L. Rayes entered an order granting in part and denying in part the Defendants' motion to dismiss. The Court finds the FAC plausibly states a claim under either test. Ogdon has plausibly tethered the alleged unfair conduct to perceived violations of the HEA, FAL, and CLRA. And, as alleged, Defendants' conduct—at bottom, lying to or misleading current and prospective students in order to induce them to enroll in degree programs that will leave them in debt but with little prospect of gainful employment in their chosen professions—plausibly is immoral, unethical, unscrupulous, and substantially injurious to consumers, and the Court can discern no utility in such conduct that would so clearly outweigh such harms as to mandate dismissal of this claim. The Court finds Ogdon has plausibly alleged a UCL unfair conduct claim. The Defendants argue that Ogdon lacks class action standing to represent persons who enrolled in degree programs other than her own. The Court agrees with Ogdon that this argument is more appropriately raised and resolved at the class certification stage, where the Court may more concretely grapple with whether Ogdon is an adequate and typical representative of the class she seeks to certify. The Court therefore denies Defendants' request to dismiss Ogdon's class action allegations to the extent they pertain to degree programs other than her own, but without prejudice to Defendants' reasserting these standing arguments at the class certification stage, if appropriate. The case arises out of Ogdon's enrollment in an online master’s degree program offered by Grand Canyon University. GCE once operated the University as a for-profit institution, but after the Department of Education imposed regulations on for profit colleges to better inform prospective students about their odds of getting a job in their chosen field, Defendants restructured in an effort to evade those new regulations. Grand Canyon is a private for-profit Christian university in Phoenix, Arizona. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/45r1IQC at no extra charge.[CC] GRUPO TELEVISA: Order & Final Judgment Entered in Securities Suit ----------------------------------------------------------------- Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York enters Order and Final Judgment in the case, In re GRUPO TELEVISA SECURITIES LITIGATION, Civil Action No. 18-cv-1979-LLS (S.D.N.Y.). Judge Stanton notes that it appears that a notice of the hearing substantially in the form approved by the Court on April 20, 2023 was provided to all individuals and entities, reasonably identifiable, who purchased or otherwise acquired Televisa American Depositary Receipts from April 11, 2013, to Nov. 17, 2017, inclusive, as shown by the records compiled by the Claims Administrator in connection with its providing of the Notice, at the respective addresses set forth in such records, and that a Summary Notice of the hearing substantially in the form approved by the Court on April 20, 2023, was published pursuant to the Order Preliminarily Approving Settlement and Providing for Notice. Judge Stanton has considered all matters submitted to it at the hearing and otherwise. He has considered and determined the fairness and reasonableness of the award of attorneys' fees and costs, charges, and expenses requested by Lead Counsel and the request for Class Representative's costs and expenses. Excluded from the Class is any Class Member that requested exclusion as listed on Exhibit 1 annexed to the Order and Final Judgment. Pursuant to Federal Rule of Civil Procedure 23, Judge Stanton approves the Settlement set forth in the Stipulation. He authorizes and directs implementation and performance of all the terms and provisions of the Stipulation, as well as the terms and provisions hereof. He dismisses the Litigation and all Released Claims with prejudice. The Settling Parties are to bear their own costs, except as and to the extent provided in the Stipulation and therein. The Releases are effective as of the Effective Date. Judge Stanton finds that the proposed Plan of Allocation, as described in the Notice, is fair, reasonable, and adequate. A separate order will be entered regarding the Lead Counsel's application for an award of attorneys' fees and expenses. Any order or proceeding relating to the Plan of Allocation or any order entered regarding any attorneys' fee and expense application will in no way disturb or affect this Judgment and will be considered separate from this Judgment. Any appeal or any challenge affecting the approval of (a) the Plan of Allocation submitted by Lead Counsel and/or (b) the Court's approval regarding any attorneys' fee and expense applications will in no way disturb or affect the finality of the other provisions of this Judgment nor the Effective Date of the Settlement. Judge Stanton finds that Judge Stanton has considered all matters submitted to it at the hearing and otherwise. The Defendants have satisfied their financial obligations under the Stipulation by paying or causing to be paid $95 million to the Escrow Account, in accordance with terms of the Stipulation. Without affecting the finality of this Judgment in any way, Judge Stanton retains continuing jurisdiction over the Defendants, the Class Representative, and the Class Members for all matters relating to the administration, interpretation, effectuation, or enforcement of the Stipulation and the Judgment. Judge Stanton finds that Palm Tran, BSF, SSBH, the Defendants, and the Defendants' Counsel each complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure in connection with the Litigation. In the event that the Settlement does not become effective in accordance with the terms of the Stipulation, or the Effective Date does not occur, or in the event that the Settlement Fund, or any portion thereof, is returned to the Defendants, then the Judgment will be rendered null and void to the extent provided by and in accordance with the Stipulation and will be vacated and may not be introduced as evidence or reflected in any action or proceeding by any person or entity. In such event, all orders entered, and releases delivered in connection herewith will be null and void to the extent provided by and in accordance with the Stipulation, and the Settling Parties will revert to their respective positions in the Litigation as of Nov. 15, 2022, as provided in the Stipulation. The Settling Parties are authorized, without further approval of the Court, to unanimously agree to and adopt in writing amendments, modifications, and expansions of the Stipulation, provided that such amendments, modifications, and expansions of the Stipulation are not materially inconsistent with this Judgment, and do not materially limit the rights of the Members of the Class under the Stipulation. Without further order of the Court, the Settling Parties may agree to reasonable extensions of time to carry out any of the provisions of the Stipulation. The Litigation and all Released Claims are dismissed with prejudice. The parties are to bear their own costs, except as otherwise agreed to in writing by the Settling Parties or as otherwise provided in the Stipulation or the Judgment. There is no reason for delay in the entry of this Judgment and the Court expressly directs immediate entry of the Judgment by the Clerk of the Court. A full-text copy of the Court's Aug. 8, 2023 Order & Final Judgment is available at https://tinyurl.com/4c92r8xk from Leagle.com. HEALTH ENROLLMENT: Class Cert Bid Hearing Set for Sept. 11 ---------------------------------------------------------- In the class action lawsuit captioned as Ketayi, et al., v. Health Enrollment Group et al., Case No. 3:20-cv-01198 (S.D. Cal., Filed June 26, 2020), the Hon. Judge Robert S. Huie entered an order setting hearing on the Plaintiffs' motion to certify class for Sept. 11, 2023. The nature of suit states Torts -- Personal Property -- Fraud. Health Enrollment is a company that operates in the Insurance industry.[CC] HYATT FRANCHISING: Faces Class Suit Over Resort Fee Fraud --------------------------------------------------------- Gary Leff of View from the Wing reports that a new private lawsuit has been filed against Hyatt over resort fees. Consumer group Travelers United has filed a class action in Washington, D.C. against the chain. Especially highlighted in the complaint is the Grand Hyatt Washington and its 'destination fee'. The hotel adds a $20 per night destination fee And Hyatt bundles this into "taxes and fees" - disclosed late in the checkout process - making it appear that this is a mandatory government charge Travelers United is suing under the District's Consumer Protection Procedures Act requires businesses to sell products at their advertised prices. But Hyatt advertises prices for this hotel at rates consumers cannot pay, since the hotel adds on a fixed amount to its prices in the form of destination fees. Resort Fees Harm Consumers Resort fees at hotels are a scam. They are mandatory, which means they are part of the cost of your room. But they aren't included in the room rate. The advertised rate doesn't cover the cost of the room. Hotels do this because, It makes them look cheaper than the competition, or at least if other hotels are charging resort fees it keeps them from looking more expensive In some jurisdictions it may save them on taxes, versus bundling in the room rate. It also may save on commissions. It may also fool customers into feeling that their stay is cheaper than it is. If the bundles of goods contained in resort and destination fees were beneficial to guests, they would be voluntary and guests would buy them. In most cases they're items that are useless to the majority of guests, but with high headline 'values' to perpetuate the fiction that they're valued-added. The practice harms consumers. Separating out part of the price of a hotel room from the price makes it harder to compare costs, even when the resort fee is disclosed prior to booking. You search hotels, and see a display that doesn't include full cost. So you'd have to click through to the final confirmation for each one and build a spreadsheet to do a comparison. Governments Have Turned Against Resort Fees During the Obama administration the Federal Trade Commission offered guidance that as long as resort fees were disclosed prior to booking. However more recently government opinion has turned against these fees. President Biden has called for a ban on resort fees but isn't actually doing anything about them (essentially, preserving them as a pocket book campaign issue). Four years ago several state attorneys general sued major hotel chains over their resort fee practices. Marriott entered into a settlement with Pennsylvania because that state was willing to forego any penalties and just obtain commitments of better behavior going forward. Generally Marriott displays full prices including taxes and fees on its website, but you won't see it when comparing different hotel brands with Marriott hotels on other sites. (Marriott doesn't always comply.) My understanding is that Hilton has the technology ready to do the same thing, but is just waiting to see what direction the industry goes. Other chains would face an IT lift. After Marriott was set up with resort fee transparency on its own site, Marriott settled with Texas agreeing to do what it was already doing (and not pay penalties for past behaviors). This was trumpeted as a win by embattled state attorney general Ken Paxton. Paxton is also suing Hyatt. This Is An Industry-Wide Problem, Not A Hyatt Problem It's not clear to me why Marriott and Hyatt are most in the crosshairs. In Texas, at least, Hyatt may be seen as 'the Democrat hotel chain' since it's controlled by the Pritzker family, heavy donors to Democrats, it includes a sitting state governor, as well as a former cabinet secretary in the Clinton administration. (The family wasn't all Democrats.) Hilton has been sued by other state attorneys general. IHG has some of the least control over its franchisees and has anecdotally resulted in some of the most egregious charges. Across chains we've seen hotels assess extra fees for electricity in the room, for the hotel's property taxes, and for credit card acceptances (whether paying with a credit card or not!) - fees that aren't disclosed up front and sometimes not even prior to making a booking. Marriott still hasn't fully gotten its act together but has moved in a positive direction to at least disclose all of these fees through its own channels, but ever-consumer unfriendly online booking sites haven't improved. Consumer lawsuits in jurisdictions with friendly consumer statutes are an interesting approach to pushing the industry to further clean up its act. [GN] HYATT HOTELS: Faces Class Action Over Junk Fee Practices -------------------------------------------------------- Angelique Platas, writing for Business Travel News, reports that traveler advocacy group Travelers United filed a class-action lawsuit against Hyatt Hotels Corp. over "junk fee practices," according to the group's attorneys. The lawsuit, filed in the civil division of the Superior Court of the District of Columbia, accuses Hyatt of "false advertising" of room rates "for years" by adding "junk fees," which are misrepresented by the hotel company as "destination" or "resort" fees at checkout. According to the complaint, "Hyatt's practice was to initially advertise a room rate that excludes junk fees, but then to add junk fees into the final charges as a consumer was required to pay." Also known as drip pricing or partitioned pricing, junk fees are defined by the Federal Trade Commission as "hidden" and "unfair or deceptive fees that are charged for goods or services that have little or no added value to the consumer." In the court filing, Travelers United alleges Hyatt, in one example, advertised a rate for the Grand Hyatt Washington at $248 per night, but upon booking, the "actual per night cost of the room" was $270.49, prior to additional "occupancy taxes." Hyatt then charged a "destination fee" of $45.98 for two nights filed under "taxes & fees," according to the complaint. These fees, the plaintiffs allege, violate the District of Columbia Consumer Protection Procedures Act. "This lawsuit will show that hotels violate the law when they charge resort fees without including them in the advertised price," Travelers United chief legal officer Lauren Wolfe said in a statement. The class action complaint follows Texas attorney general Ken Paxton's lawsuit against Hyatt for "deceptive" practices in May. Hyatt did not immediately return a request for comment. The news follows Marriott International's recent $225,000 fine by Pennsylvania's attorney general for resort fee noncompliance, which was the result of a previous lawsuit from the state. [GN] INDIAN HILL: Filing Class Cert. Bid Due March 1, 2024 ----------------------------------------------------- In the class action lawsuit captioned as R.L.K., v. INDIAN HILL EXEMPTED VILLAGE SCHOOL DISTRICT, Case No. 1:23-cv-00171-JPH (S.D. Ohio), the Hon. Judge Jeffery P. Hopkins entered a scheduling order: 1. Required disclosures under Sept. 13, 2023 Fed. R. Civ. P. 26(a)(1): 2. Deadline for motions directed to Dec. 15, 2023 pleadings: 3. Deadline for motions to amend Dec. 15, 2023 pleadings and/or add parties: 4. Deadline for Class Discovery: Jan. 15, 2024 5. Telephone Status Conference: Feb. 1, 2024 6. Deadline for Motion for Class March 1, 2024 Certification: 7. Deadline for Response to Motion April 1, 2024 for Class Certification: 8. Deadline for Reply in Support April 15, 2024 of Class Certification: Indian Hill is a public school district in Indian Hill, Ohio, a suburb of Cincinnati, Ohio. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/3QSs0H1 at no extra charge.[CC] INDIVIOR PLC: Settles Suboxone Generic Competition Suit for $30M ---------------------------------------------------------------- Fox News reports that Indivior has agreed to pay $30 million to settle a class action lawsuit filed in a U.S. court by health plans accusing the drugmaker of illegally suppressing generic competition for its opioid addiction treatment Suboxone. The settlement, disclosed on August 19, 2023 in a filing by lawyers for the health plans in federal court in Philadelphia, must still be approved by a judge. Indivior is still facing claims by drug wholesalers that bought Suboxone from the Virginia-based company directly, with a trial scheduled in October. "We remain focused on helping those suffering from substance use disorders and mental illness," Indivior CEO Mark Crossley said in a statement on August 21, 2023. "Resolving these legacy legal matters at the right value helps us further our mission for patients and creates greater certainty for our stakeholders." Lawyers for the health plans did not immediately respond to requests for comment. They said in their filing that the deal was "fair, reasonable, adequate and in the best interests" of the class. Suboxone was approved for U.S. sale in 2002. Indivior had the exclusive right to sell the treatment in tablet form until 2009. The health plans and drug wholesalers claimed in their lawsuits that Indivior switched to an oral film version of Suboxone from a tablet version to extend its monopoly, just as generic manufacturers were poised to sell their own lower-cost tablets. Generic tablets obtained federal approval in 2013. Indivior agreed in June to pay $102.5 million to settle related claims by 41 U.S. states and Washington, D.C. The company in 2020 agreed to pay $600 million to resolve U.S. government allegations that it fraudulently promoted Suboxone, including by marketing the film version as safer and less abuse-prone than similar drugs. More than 80,000 people in the United States died in 2021 from overdoses involving opioids, according to the U.S. Centers for Disease Control and Prevention. [GN] INTACT PROFESSIONAL: Cooper Sues Over Safety Managers' Unpaid OT ---------------------------------------------------------------- SHON COOPER and JACKIE READ, on behalf of themselves and all others similarly situated, Plaintiffs v. INTACT PROFESSIONAL HEALTH & SAFETY SERVICES, INC., Defendant, Case No. 4:23-cv-00140-SEB-KMB (S.D. Ind., Aug. 21, 2023) arises from the Defendant's alleged violation of the Fair Labor Standards Act by failing to provide Plaintiffs overtime premiums for all hours worked over 40 per workweek. Named Plaintiffs and the Class Members were hired by the Defendant as hourly safety managers who were responsible for ensuring various construction contractors followed safety policies and OSHA guidelines. Intact Professional Health & Safety Services, Inc. provides construction safety consulting and job site safety supervision to contractors in a number of different states.[BN] The Plaintiffs are represented by: Douglas B. Welmaker, Esq. WELMAKER LAW, PLLC 409 N. Fredonia, Suite 118 Longview, TX 75601 Telephone: (512) 799-2048 E-mail: doug@welmakerlaw.com J-M MANUFACTURING: Class Cert Fact Discovery Due Sept. 29 --------------------------------------------------------- In the class action lawsuit captioned as CAMBRIDGE LANE, LLC, v. J-M MANUFACTURING COMPANY, INC. dba J-M PIPE MANUFACTURING COMPANY, et al., Case No. 2:10-cv-06638-GW-MAR (C.D. Cal.), the Hon. Judge George H. Wu entered an order granting stipulation to continue class certification deadlines and set status Conference: -- Subject to the Court's agreement to modify the class certification briefing and hearing schedule, expert depositions of experts previously disclosed pursuant to Fed. R. Civ. Proc. 26(a)(2)(A) shall be completed by September 15, 2023, and will proceed in the following order: Ribbs, Rodio, Geoffroy, Ferry, Sexton, Glasgow. -- Rebuttal expert reports pursuant to Fed. R. Civ. Proc 26(a)(2)(C) shall be exchanged on September 29, 2023. -- Fact discovery (including any additional percipient witness depositions) shall be completed on September 29, 2023. -- The remainder of the deadlines relating to class certification shall be set by the Court following the Telephonic or Zoom Status Conference. J-M manufactures a wide array of high grade, high performance plastic pipe in the industry. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/3KXKdiE at no extra charge.[CC] JACK IN THE BOX: Judgment Entered on Gessele's Meal Break Claims ---------------------------------------------------------------- In the case, JESSICA GESSELE, ASHLEY ORTIZ, NICOLE GESSELE, TRICIA TETRAULT, and CHRISTINA MAULDIN, on behalf of themselves and all others similarly situated, Plaintiffs v. JACK IN THE BOX, INC., a corporation of Delaware, Defendant, Case No. 3:14-cv-01092-HZ (D. Or.), Judge Marco A. Hernandez of the U.S. District Court for the District of Oregon grants the Defendant's Rule 50(b) Motion for Judgment as a Matter of Law Regarding Plaintiffs' Unpaid Break Claim. The Plaintiffs were employed by Jack in the Box in its Oregon restaurants at various times. On Aug. 13, 2010, Jessica Gessele, Ashley Gessele, Nicole Gessele, and Tricia Tetrault filed a putative class-action Complaint (Gessele I, Case No. 3:10-CV-00960-ST) in this Court against Jack in the Box for violations of the minimum-wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201, et seq., and various Oregon wage-and-hour laws. On May 16, 2011, Jessica Gessele, Ashley Gessele, Nicole Gessele, and Tricia Tetrault filed a First Amended Complaint in Gessele I in which they added Christina Luchau as a named Plaintiff. On Aug. 13, 2012, Jessica Gessele, Ashley Gessele, Nicole Gessele, Tricia Tetrault, and Christina Luchau filed a Motion to Certify Oregon Rule 23(b)(3) Classes and Alternative Motions to Either Certify Hybrid FLSA Classes or Certify FLSA 216(b) Collectives. On Jan. 28, 2013, Magistrate Judge Stewart issued Findings and Recommendation in Gessele I in which she recommended, among other things, denying the Motion to Certify as to the Plaintiffs' proposed Rule 23(b)(3) meal break class. On April 1, 2013, Judge Ancer Haggerty entered an Order adopting the Jan. 28, 2013, Findings and Recommendation. After resolving various motions, Judge Anna Brown entered a Judgment on May 15, 2014, dismissing Gessele I without prejudice. On June 10, 2014, Jessica Gessele, Ashley Ortiz (formerly Ashley Gessele), Nicole Gessele, Tricia Tetrault, Christina Mauldin (formerly Christina Luchau), and Jason Diaz1 filed a putative class action against the Defendant in Multnomah County Circuit Court (Gessele II) in which they alleged claims for violation of Oregon's wage-and-hour laws, violation of the FLSA, breach of fiduciary duty, and equitable and quasi-contractual claims for return of money. On July 9, 2014, the Defendant removed Gessele II to this Court. On Aug. 31, 2015, the parties filed Cross-Motions for Summary Judgment. On March 10, 2016, Judge Brown issued an Opinion and Order in which she, among other things, granted the Defendant's Motion as to the Plaintiffs' FLSA claims and granted the Plaintiffs' Motion in part as to Defendant's eighth affirmative defense: private right of action. On March 2, 2017, the Plaintiffs filed a Motion for Rule 23(b)(3) Class Certification. On June 12, 2017, Judge Brown issued an Opinion and Order in which, among other things, she denied the Plaintiffs' request to certify the unpaid break class. On March 27, 2020, the Plaintiffs filed a Renewed Motion to Certify Unpaid Break Class. On June 5, 2020, Judge Brown issued an Opinion and Order in which she denied the Plaintiffs' Renewed Motion to Certify Unpaid Break Class. On Jan. 21, 2021, Gessele II was reassigned to this Court. On Sept. 15, 2021, the Plaintiffs filed a Motion for Reconsideration of Courts' Previous Denial of Class Certification for Plaintiffs' Unpaid Break Class. On Nov. 27, 2021, this Court issued an Opinion and Order in which it adhered to Judge Brown's previous Opinions and Orders denying the Plaintiffs' Motions to Certify the Unpaid Break Class. This matter proceeded to trial on Oct. 17, 2022. At the close of the Plaintiffs' case, the Defendant moved for judgment as a matter of law on Plaintiffs' meal break claims. The Court denied the Defendant's Motion. It addressed the meal break issue again at the close of the Defendant's case and advised the parties that it would permit the issue to go the jury, but it would also permit the parties to file post-trial motions on that issue. On Oct. 24, 2022, the jury returned a verdict in which, among other things, it found for the Plaintiffs on their meal break claim and that the Plaintiffs were entitled to lost wages for that claim totaling $700.27. On May 23, 2023, the Court entered a judgment. On June 14, 2023, the Defendant filed a Rule 50(b) Motion for Judgment as a Matter of Law Regarding Plaintiffs' Unpaid Break Claims. The Court took the Defendant's Motion under advisement on July 12, 2023. At issue in the Defendant's Rule 50(b) Motion is whether before June 1, 2010, Oregon law required that an employee who was required to return to work from a meal break before 30 minutes must be paid for the entire 30-minute meal period or paid only for the time the employee returned to work. Judge Hernandez concludes that before June 1, 2010, Oregon law did not require employers to pay employees for a 30-minute meal period when employees were called back to work before 30 minutes. Oregon law required that, at most, employers pay employees for any time they worked during a shortened meal period. As noted, the Plaintiffs stipulated that the Defendant paid them for all of the time they worked when they were called back early from their meal periods. Accordingly, Judge Hernandez concludes the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict. He, therefore, grants the Defendant's Rule 50(b) Motion and enters judgment as a matter of law for the Defendant on the Plaintiffs' meal break claims. He strikes lost meal break wages and meal break penalty wages awarded to the Plaintiffs. Judge Hernandez directs the parties to file an amended judgment consistent with his Opinion and Order. A full-text copy of the Court's Aug. 8, 2023 Opinion & Order is available at https://tinyurl.com/ndp3zrbe from Leagle.com. Jon M. Egan -- Jegan@eganlegalteam.com -- Lake Oswego, OR, Jim W. Vogele -- jim@employeelawyer.io -- in Portland, Oregon, Attorney for the Plaintiffs. Douglas S. Parker -- dparker@littler.com -- David P. R. Symes -- dsymes@littler.com -- LITTLER MENDELSON, P.C., in Portland, Oregon, Ian Maher -- imaher@littler.com -- LITTLER MENDELSON, P.C., in Los Angeles, California, Attorneys for the Defendant. K&C EXECUTIVE: Walls Seeks Conditional Status of Collective Action ------------------------------------------------------------------ In the class action lawsuit captioned as ANDREW WALLS, ET AL., v. K&C EXECUTIVE PROTECTION LLC, Case No. 2:23-cv-01110-JFM (E.D. Pa.), the Plaintiff asks the Court enter an order for conditional certification of a Fair Labor Standards Act (FLSA) collective action, and approve sending notices to all employed by Defendants during the three years immediately preceding the filing of this action who worked at Defendant, K&C Executive Protection LLC, business at 1712 Point Breeze Avenue, Philadelphia, Pennsylvania. K&C is a security provider that develops solutions for organizations throughout the Tri-State area. A copy of the Plaintiffs' motion dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3EzOoxD at no extra charge.[CC] The Plaintiffs are represented by: Roderick L. Foxworth, Jr., Esq. THE FOXWORTH LAW FIRM LLC 7715 Crittenden Street, Suite 382 Philadelphia, PA 19118 Telephone: (267) 674-2368 E-mail: rfoxworth@thefoxworthlawfirm.org KANSAS CITY, MO: Fine Allowed Leave to File Documents Under Seal ----------------------------------------------------------------- In the class action lawsuit captioned as ROBERT R. FINE, Individually and On Behalf Of All Others Similarly Situated, v. KANSAS CITY LIFE INSURANCE COMPANY, Case No. 2:22-cv-02071-SSS-PD (C.D. Cal.), the Hon. Judge Sunshine S. Sykes entered an order granting the Plaintiff's renewed application for leave to file under seal documents in support of the plaintiff's motion for class certification The following documents should be filed under seal in their entirety: 1. Those documents KCL contends contain confidential mortality assumptions and information about costs and profits. 2. Those documents KCL contends are product description manuals that contain internal processes and confidential explanations regarding KCL's products and policyholders and/or its expenses. 3. Those documents KCL contends consist of correspondence containing confidential information about potential KCL products and proposed methods of calculation. 4. Those documents KCL contends contain confidential information regarding its financial reserves and assets. 5. Those documents prepared by Plaintiff's expert that KCL contends rely on KCL's confidential documents. Kansas City Life Insurance Company is a public insurance company established in 1895 and located in Kansas City, Missouri. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/3ssQRXD at no extra charge.[CC] KING LOGISTICS: Hammonds Sues Over Truck Drivers' Unpaid Wages -------------------------------------------------------------- MARCUS HAMMONDS, individually and on behalf of all others similarly situated, Plaintiffs v. KING LOGISTICS, INC., M3 TRANSPORTATION, INC., and MARKO ZECEVIC, individually, Defendants, Case No. 1:23-cv-05796 (N.D. Ill., Aug. 21, 2023) alleges that Defendants have engaged in a pattern of conduct concerning the payment of wages and the treatment of commercial truck drivers in violation of the Fair Labor Standards Act, the Illinois Wage Payment and Collection Act, and the Federal Motor Carrier Safety Administration's Truth-in-Leasing regulations. Plaintiff Hammonds claims King Logistics and Zecevic failed to pay him and other individuals who have worked as "company drivers" and "lease drivers" all the wages they were entitled to receive in violation of the FLSA and the IWPCA. In addition, Hammonds alleges that Defendants have violated the TIL regulations, by failing to comply with the lease agreement, escrow, and "chargeback" provisions. The Plaintiff provided commercial truck driving services subject to a written agreement with King Logistics from about June or July 2020 to about June or July 2021, and again from June to July 2022. During both time periods, King Logistics classified Hammonds as an "independent contractor" driver. King Logistics, Inc. is a motor carrier registered with United States Department of Transportation to engage in interstate transport of goods and freight.[BN] The Plaintiff is represented by: James B. Zouras, Esq. STEPHAN ZOURAS, LLP 222 W. Adams St, Suite 2020 Chicago, IL 60606 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 E-mail: jzouras@stephanzouras.com - and - Hillary Schwab, Esq. Rachel Smit, Esq. Brant Casavant, Esq. FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 Telephone: (617) 607-3260 Facsimile: (617) 488-2261 E-mail: hillary@fairworklaw.com rachel@fairworklaw.com brant@fairworklaw.com LEMONADE INC: Jagher Appointed Class Counsel in Data Privacy Case ----------------------------------------------------------------- Freed Kanner Partner Jonathan Jagher was appointed as Class Counsel in Clarke et. al. v. Lemonade Inc. et. al., 2022LA000308 (Circuit Ct. DuPage County, Illinois) and he and his co-counsel negotiated a multi-million-dollar settlement on behalf of thousands of United States residents that made video claim submissions to Lemonade Insurance Company. This data privacy class action alleged that Lemonade collected, captured, received, or otherwise obtained and/or stored data or information that could be construed as biometric identifiers or biometric information in violation of various state consumer protection statutes, including, but not limited to, the Illinois Biometric Privacy Act, New York's Uniform Deceptive Trade Practices Act Section 349 and California's Unfair Competition Law, Bus. & Prof. Code § 17200, and other common-law claims, including claims for unjust enrichment. [GN] LG ELECTRONICS: Court Tosses Bid to Certify March 29, 2023 Order ---------------------------------------------------------------- In the class action lawsuit captioned as PEDRO BRITO, on behalf of himself and all others similarly situated, V. LG ELECTRONICS USA, INC. AND LG ELECTRONICS INC., Case No. 2:22-cv-05777-JMV-JSA (D.N.J.), the Hon. Judge John Michael Vazquez entered an order denying the Plaintiffs motion to certify the Court's March 29, 2023 Opinion and Order for interlocutory appeal. The March Opinion details this matter's factual and procedural history, which the Court incorporates by reference. The Plaintiff filed this class action lawsuit on September 29, 2022. On November 14, 2022, LG moved to dismiss and to compel arbitration. The Plaintiff then filed its First Amended Complaint ("FAC") which asserts violations of the New Jersey Consumer Fraud Action ("NJCFA") and Magnum-Moss Warranty Act ("MMWA") on behalf of the nationwide class (Counts I and II, respectively), and the Florida Deceptive and Unfair Trade Practice Act ("FDUTPA") on behalf of the Florida subclass (Count VI). The FAC also asserts claims of fraud by omission (Count III), unjust enrichment (Count VII), and breach of express and implied warranty of merchantability (Counts IV and V, respectively) on behalf of the nationwide class, or in the alternate, the Florida subclass. LG Electronics manufactures and distributes consumer electronic products. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/45r2Hjw at no extra charge.[CC] LOUISIANA: Court Denies Alex's Bid to Access OJJ Client Records --------------------------------------------------------------- In the case, ALEX, A., by and through his guardian, Molly Smith; BRIAN B.; and CHARLES C., by and through his guardian, Kenione Rogers, individually and on behalf of all others similarly situated v. GOVERNOR JOHN BEL EDWARDS, in his official capacity as Governor of Louisiana; WILLIAM SOMMERS, in his official capacity as Deputy Secretary of the Office of Juvenile Justice, JAMES M. LEBLANC, in his official capacity as Secretary of the Louisiana Department of Public Safety & Corrections, Civil Action No. 22-573-SDD-RLB (M.D. La.), Magistrate Judge Richard L. Bourgeois, Jr., of the U.S. District Court for the Middle District of Louisiana denies the Plaintiffs' Motion for Access to OJJ Client Records. The operative pleading in the action is the First Amended Class Action Complaint filed by Alex A., by and through his guardian Molly Smith, Brian B., and Charles C., by and through his guardian Kenione Rogers, on behalf of themselves and others similarly situated against Government John Bel Edwards, Deputy Secretary of the OJJ ("OJJ") Williams Sommers, and the Secretary of the Louisiana Department of Public Safety & Corrections James M. LeBlanc. In their Amended Complaint, the Plaintiffs seek declaratory and injunctive relief under 42 U.S.C. Section 1983 for violation of the Fourteenth Amendment (Count I), declaratory and injunctive relief for violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (Count II), and declaratory and injunctive relief for violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12101 et seq. (Count III). On Oct. 31, 2022, the Plaintiffs filed their Motion for Class Certification. The Motion for Class Certification remains pending before the district judge. On Nov. 21, 2022, the Defendants filed a Motion to Dismiss for Lack of Standing. They then sought a stay of discovery until resolution of the Motion to Dismiss, which the undersigned granted. On March 10, 2023, the Plaintiffs filed the instant Motion for Access. In support of the motion, they acknowledge that the motion is not made pursuant to the rules of discovery, but rather seeks an Order that OJJ comply with its own policies and procedures. Their counsel requested all juvenile records for the Plaintiffs Alex A., Brian B., and Charles C., as well as the records for the non-parties Daniel D. and Edward E. The Plaintiffs assert that their counsel have complied with all statutory and policy requirements for obtaining records by submitting requests for individual Plaintiffs through the OJJ online records request portal, but the Defendants have failed to provide a complete set of records to their counsel. In opposition, the Defendants argue that the Motion for Access must be denied as procedurally improper because it improperly addresses grievances unrelated to the claims in this litigation. They also represent that OJJ has properly responded to all records requests or is actively working to provide complete records. On July 5, 2023, the instant Motion for Access was referred to Judge Bourgeois for resolution. On July 17, 2023, the Plaintiffs filed a second Motion for Preliminary Injunction. The district judge subsequently held a status conference, set a preliminary injunction hearing to be held on Aug. 15, 2023, and required the parties to meet and confer for the purposes of submitting a joint proposed discovery scheduling order. On July 21, 2023, the parties submitted a joint status report detailing their positions regarding the scope of, and deadlines for, limited discovery prior to the preliminary injunction hearing. The record indicates that the parties have been conducting discovery in preparation of the preliminary injunction hearing set for Aug. 15, 2023 in accordance with their joint status report. On Aug. 1, 2023, the Plaintiffs filed a Motion to Compel, which has been referred to Judge Bourgeois for resolution. In relevant part, the Motion to Compel seeks the production of the complete OJJ file on each youth currently held at the Angola facility because the Defendants only agreed to produce the portion of these files reflecting the incident(s) leading to the youth's transfer to Angola and tenure there. Judge Bourgeois has ordered the Defendants to file a response to the Motion to Compel on an expedited basis. Having considered the record, he denies the Plaintiffs' Motion for Access, which seeks the production of the same information that is, in part, the subject of their later-filed Motion to Compel. The Plaintiffs' Motion for Access explicitly states that it is seeking an order from the Court compelling the production of documents outside of the scope of the discovery rules applicable to the action. But the Amended Complaint does not seek any substantive relief pertaining to access of documents held by the OJJ. Indeed, any substantive relief sought regarding access to documents is well beyond the scope of the allegations in the Amended Complaint. Judge Bourgeois holds that the Plaintiffs have not demonstrated that any source of law, outside of the discovery rules in the Federal Rules of Civil Procedure, would merit the issuance of an order compelling Defendants to produce any OJJ files in the action. The parties are currently engaged in a discovery dispute regarding the same OJJ files that are the subject to the instant motion. Accordingly, the Court will address whether the Defendants must produce the OJJ files sought in the context of resolving the pending Motion to Compel. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/mv4aanj7 from Leagle.com. LOUISIANA: Plaintiffs' Bid to Compel Production of Docs Tossed -------------------------------------------------------------- In the class action lawsuit captioned as ALEX A., by and through his guardian, Molly Smith; BRIAN B.; and CHARLES C., by and through his guardian, Kenione Rogers, individually and on behalf of all others similarly situated, V. GOVERNOR JOHN BEL EDWARDS, in his official capacity as Governor of Louisiana; WILLIAM SOMMERS, in his official capacity as Deputy Secretary of the Office of Juvenile Justice, JAMES M. LEBLANC, in his official capacity as Secretary of the Louisiana Department of Public Safety & Corrections, Case No. 3:22-cv-00573-SDD-RLB (M.D. La.), the Hon. Judge Richard L. Bourgeois, Jr. entered an order denying the Plaintiffs' motion to compel. The Court said, "The Plaintiffs not only fail to mention these productions in support of their motion, but also fail to describe with any particularly the categories of documents and information sought in discovery requests that have not been produced. Plaintiffs fail to identify any specific request for entire "personnel files" of the deposed employees. The Court has failed to find any reference to "employee files" or "personnel files" (as opposed to general staffing documents) in the document requests." The putative class action was commenced on behalf of certain individuals under the secure care of the Office of Juvenile Justice ("OJJ") to obtain injunctive relief preventing their transfer from the Bridge City Center for Youth to a location at the Louisiana State Penitentiary at Angola known as the Bridge City Center for Youth at West Feliciana. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/3QYxXCo at no extra charge.[CC] MARRIOTT INTERNATIONAL: Bid for Class Decertification Granted ------------------------------------------------------------- Alison Frankel of Reuters reports that last year, when a Maryland trial judge certified class actions by about 20 million Marriott (MAR.O) guests whose private data was exposed in a years-long hack of the hotel's reservations database, he dealt with myriad complex issues, from culling claims by business travelers who didn't pay for their own rooms to the adoption of an exceedingly sophisticated economic model for the value of stolen information. None of that painstaking analysis ended up mattering to the 4th U.S. Circuit Court of Appeals, which decertified several statewide classes in an Aug. 18 decision. The appeals court instead homed in on a critical threshold question that was not answered in the trial court decision from U.S. District Judge Paul Grimm of Greenbelt, Maryland: Did the Marriott guests who were members of certified classes actually waive their right to sue as a class when they signed up for a hotel rewards program? The other complexities of the case cannot be addressed, said 4th Circuit Judges Paul Niemeyer, Robert King and Pamela Harris, until that question is resolved. "The time to address a contractual class waiver is before, not after, a class is certified," Brown wrote for the panel. "That is the consensus practice. Courts consistently resolve the import of class waivers at the certification stage – before they certify a class, and usually as the first order of business." Not even the plaintiffs lawyers leading the Marriott case - Amy Keller of DiCello Levitt, James Pizzirusso of Hausfeld, and Andrew Friedman of Cohen Milstein, argued otherwise, the 4th Circuit said. The plaintiffs' appellate brief instead focused on whether Marriott, by dint of its strategic decisions in the course of nearly three years of litigation, had repudiated the right to enforce the class action waiver. The 4th Circuit treated those arguments as an invitation for the appeals court to resolve the enforceability dispute on its merits – and declined the invitation. It's true, wrote Harris, that the trial judge, Grimm, credited class counsel in a footnote for "strong arguments" against enforcement of the class waiver. But the 4th Circuit judges said not only that they "have some questions" about Grimm's offhand conclusion but also that the trial court needs to tease out both sides' contentions about the class action waiver before the appeals court dives in. The appeals court remanded the case to Grimm to decide if the waiver can be enforced. Class counsel Keller, Pizzirusso and Friedman said in an email statement that they're confident they will ultimately prove Marriott cannot rely on the waiver. They also said that the 4th Circuit jumped the gun when it agreed to an interlocutory review of Grimm's class certification ruling because the trial judge had acknowledged unresolved merits questions. "We believed it would be an inefficient use of the Court of Appeals' time to hear the appeal before those issues were resolved," Keller said. "It turns out, we were right. So all Marriott has done is put the issue off for a year, and waste the resources of the parties and the court system in the process." Marriott counsel Matthew Hellman of Jenner & Block said he and his client "expect that the class action waiver will be enforced according to its plain terms on remand, just as similar waivers are enforced every day in courts around the country." The 4th Circuit also vacated the certification of separate classes to determine whether Marriott's IT provider, Accenture (ACN.F), was liable to some Marriott guests for negligence. Those class certifications, the appeals court said, were based on the certification of the Marriott classes so must also be reconsidered on remand. Accenture is represented by Kirkland & Ellis. The all-important (for now) class action waiver was contained in the membership contract for Starwood Preferred Guests, who were required to agree to litigate their claims individually in New York courts under New York law. (Marriott acquired Starwood in 2016, two years after hackers breached Starwood's reservations system – and two years before Marriott discovered and disclosed the breach.) Marriott never sought to litigate the data breach case in New York courts or under New York law. It instead asked for all of the lawsuits that followed its 2018 disclosure of the breach to be consolidated in federal court in Maryland, where the company is based. Nor did the hotel chain invoke the "Choice of Law and Venue" clause in the years of negotiations about the selection of bellwether claims under various state consumer laws. According to class counsel, Marriott's only mention of the class action waiver in the early years of the case was a boilerplate reference in the company's answer to the consolidated class complaint. Plaintiffs argued that Marriott's litigation decisions were tantamount to a waiver of the clause. The hotel chain's "strategic gambit of pursuing multi-state litigation in Maryland is not going as well as it had hoped," class counsel told the 4th Circuit. "But Marriott cannot undo years of judicial work because it is now not happy with the outcome of its litigation strategy." Marriott argued that it had raised the waiver issue in opposing class certification – and contended that Grimm erred by deferring a decision on that threshold question. "It is no answer to say, as the district court did, that the class waiver can be characterized as a 'merits' issue," Marriott told the 4th Circuit. "A class waiver does not go to the merits of any plaintiff's claims but to how plaintiffs may pursue their claims—as a class under Rule 23, or as individuals." The 4th Circuit agreed. "We think this is the only approach consistent with the nature of class actions and the logic of class waivers," the appeals court said. Class certification, wrote Harris, is a "sharp line of demarcation." If that line is to be maintained, the 4th Circuit said, judges cannot certify classes at the behest of lead plaintiffs who have waived the right to sue as a class. [GN] MARRIOTT INTERNATIONAL: EFF Files Amicus Brief in Data Breach Suit ------------------------------------------------------------------ According to Electronic Front Foundation's Cindy Cohn, "When a company that collected your personal data negligently fails to secure it, you should have accountability and relief—including standing to sue." "EFF and our friends at Electronic Privacy Information Center filed an amicus brief in late November pointing this out to the U.S. Court of Appeals for the Fourth Circuit in a case arising from the 130 million consumer records stolen from Marriott in 2018. We detailed the science and evidence demonstrating that people impacted by such data breaches run the risk of identity theft, ransomware attacks and increased spam, along with corresponding increased anxiety, depression and other psychological injuries. "The Fourth Circuit's decision last week didn't address our arguments; instead it just kicked the can down the road. The appeals court found that the trial court had not properly considered whether consumers had waived their rights to bring a class action by joining Marriott's loyalty programs -- those programs that advertise huge benefits to loyal customers but put the costs you pay (like decreased ability to sue) into the fine print that no one reads. "We strongly disagree with the suggestion that any Marriott customer meaningfully agreed to waive a class action here. Few if any customers read a hotel loyalty program's fine-print terms and conditions, much less knowingly waive their right to bring a class action if the company negligently lets their data fall into the hands of thieves. We hope that on remand, the trial court will reject Marriott's poorly-taken waiver argument, and we can get back to trying to ensure that consumers have real accountability when companies fail to protect the data they increasingly extract from us. "This decision highlights one of EFF's criticisms of the proposed American Data Privacy and Protection Act last year. One of the reasons we did not support the bill was that it failed to override bogus waivers such as this. Privacy laws need to be strong and not full of holes that leave us without protection because of a single click or some tiny fine print that no one reads. We need a strong data privacy law that prohibits waivers and mandatory arbitration requirements letting companies sidestep users' basic legal rights." "We'll keep watching this important case and standing up for your rights both in the courts and in Congress." [GN] MASIMO CORP: Bid for Lead Plaintiff Appointment Due Oct. 23 ----------------------------------------------------------- Robbins LLP informs investors that a shareholder filed a class action on behalf of investors who purchased or otherwise acquired Masimo Corporation (NASDAQ: MASI) common stock between February 28, 2023 and July 17, 2023. Masimo is a global medical technology company that develops, manufactures, and markets a variety of noninvasive monitoring technologies. For more information, submit a form, email Aaron Dumas, Jr., or give us a call at (800) 350-6003. What is this Case About: Masimo Corporation (MASI) Misled Investors Regarding its Sales Forecast According to the complaint, defendants misled investors by creating the false impression that they possessed reliable information pertaining to the Company's sales pipeline. In reality, defendants' forecasting processes failed to adequately account for potential loss of sensor sales among Masimo's customers, as well as the potential decline in demand for premium and luxury audio categories. Alternatively, defendants deliberately ignored the decline in sales. In either event, defendants misled investors by providing the public with materially flawed revenue guidance for fiscal 2023. The truth emerged on July 17, 2023, when Masimo issued a press release announcing its second quarter 2023 earnings. Defendants announced lower than expected revenue for the second quarter of fiscal 2023 and preliminarily decreased full-year revenue estimates for both healthcare and non-healthcare segments. On this news, the price of Masimo's common stock declined from a closing price of $147.16 per share on July 17, 2023, to $117.73 per share on July 18, 2023, a decline of nearly 20%. What Now: Similarly situated shareholders may be eligible to participate in the class action against Masimo Corporation. Shareholders who want to act as lead plaintiff for the class must file their motion for lead plaintiff by October 21, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. You do not have to participate in the case to be eligible for a recovery. If you choose to take no action, you can remain an absent class member. For more information, click here. All representation is on a contingency fee basis. Shareholders pay no fees or expenses. About Robbins LLP: Some law firms issuing releases about this matter do not actually litigate securities class actions; Robbins LLP does. A recognized leader in shareholder rights litigation, the attorneys and staff of Robbins LLP have been dedicated to helping shareholders recover losses, improve corporate governance structures, and hold company executives accountable for their wrongdoing since 2002. Since our inception, we have obtained over $1 billion for shareholders. To be notified if a class action against Masimo Corporation settles or to receive free alerts when corporate executives engage in wrongdoing, sign up for Stock Watch today. Attorney Advertising. Past results do not guarantee a similar outcome. [GN] MAXIMUS INC: Fails to Protect Personal & Health Info, Beers Says ---------------------------------------------------------------- CLIFFORD BEERS and WADE NUGENT, individually and on behalf of all others similarly situated, Plaintiff v. MAXIMUS, INC. and MAXIMUS FEDERAL SERVICES, INC., Defendants, Case No. 1:23-cv-01107-PTG-LRV (E.D. Va., Aug. 21, 2023) is a class action brought on behalf of the Plaintiffs and similarly situated who are victims of a targeted cyberattack on Maximus that occurred on or before May 27, 2023, alleging that the Defendants failed to properly secure and safeguard personally identifiable information and protected health information. The Plaintiffs bring this lawsuit to address Maximus' inadequate safeguarding of their private information, for failing to provide adequate notice of the unauthorized access to their private information by a cyberattacker, and for failing to provide adequate notice of precisely what information was accessed and stolen. As a direct and proximate result of the data breach and subsequent exposure of their private information, Plaintiffs and Class Members have suffered, and will continue to suffer damages and economic losses in the form of lost time needed to take appropriate measures to avoid unauthorized and fraudulent charges, putting alerts on their credit files, and dealing with spam phone calls, letters, and emails received as a result of the data breach, says the suit. Maximus, Inc. is a provider of health and human services that contracts with federal, state, and local entities to manage and administer government programs.[BN] The Plaintiffs are represented by: Bernadette Armand, Esq. DICELLO LEVITT LLP 1101 17th Street, NW Suite 1000 Washington, DC 20036 Telephone: (202) 975-2288 E-mail: barmand@dicellolevitt.com - and - Patrick T. Egan, Esq. Christina L. Gregg, Esq. BERMAN TABACCO One Liberty Square Boston, MA 02109 Telephone: (617) 542-8300 E-mail: pegan@bermantabacco.com cgregg@bermantabacco.com - and - Adam J. Levitt, Esq. Amy E. Keller, Esq. DICELLO LEVITT LLP Ten North Dearborn St., Sixth Floor Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: alevitt@dicellolevitt.com akeller@dicellolevitt.com - and - Corban Rhodes, Esq. DICELLO LEVITT LLP 485 Lexington Ave., 10th Floor New York, NY 10017 Telephone: (646) 933-1000 E-mail: crhodes@dicellolevitt.com - and - Justin Hawal, Esq. DICELLO LEVITT LLP 8160 Norton Parkway Mentor, OH 44060 Telephone: (440) 953-8888 E-mail: jhawal@dicellolevitt.com MIDWESTERN PET: $6.4M Deal in Pet Food Contamination Gets Final OK ------------------------------------------------------------------ Julie Steinberg of Bloomberg Law reports that Pet owners and Midwestern Pet Foods Inc. and Nunn Milling Co. secured final approval for a $6.38 million class settlement in litigation alleging the companies marketed contaminated food that sickened or killed animals. The companies recalled Sportmix and other dog and cat food brands in 2020 and 2021 because of possible salmonella or high levels of mold-borne aflatoxin. The deal got final approval from Judge Matthew P. Brookman of the US District Court for the Southern District of Indiana. Brookman also awarded the plaintiffs' lawyers their requested fee of roughly $2.12 million, and unreimbursed litigation costs of nearly $72,000. [GN] MLN TOPCO: Ocean Trails Suit Moved to New York County Supreme Court ------------------------------------------------------------------- In the case, Ocean Trails CLO VII, et al., Plaintiffs v. MLN TopCo Ltd., et al., Defendants, Case No. 1:23-cv-05443-LGS (S.D.N.Y.), Judge Lorna G. Schofield of the U.S. District Court for the Southern District of New York remands the action to the Supreme Court of the State of New York, New York County. Removal of the action from Supreme Court of the State of New York is based on this Court's jurisdiction over the case under the Class Action Fairness Act ("CAFA"), as codified in 28 U.S.C. Sections 1332, 1453, 1711-15. Under 28 U.S.C. Section 1332(d)(5), CAFA will not apply to actions where the number of members of all proposed plaintiff classes in the aggregate is less than 100. Judge Schofield finds that there are 96 Plaintiffs named in the action. The action therefore does not satisfy CAFA's plaintiff numerosity requirement under 28 U.S.C. Section 1332(d)(5). The Defendants' notice of removal does not provide any other basis for the Court's jurisdiction over the case. Based on the foregoing, Judge Schofield remands the action to the Supreme Court of the State of New York, New York County. The Clerk of Court is directed to close the motion at Dkt. 24. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/5xu2xcsu from Leagle.com. MORGAN STANLEY: Final Judgment Vacation in Data Breach Suit Denied ------------------------------------------------------------------ In the case, In re Morgan Stanley Data Security Litigation, Case No. 20 Civ. 5914 (PAE) (S.D.N.Y.), Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York denies Melissa Linden's three pending motions: (1) a letter-motion to vacate the final judgment in the action; (2) her objection to the deadline to request redactions to the transcript of the Aug. 5, 2022 hearing; and (3) a letter-motion to impose sanctions for alleged misconduct by the counsel for Defendant Morgan Stanley Smith Barney LLC. On Aug. 5, 2022, the Court approved (1) the proposed class action settlement; and (2) attorneys' fees, costs, and service awards. At that hearing, the Court denied class member Linden's motion for joinder, and motion to stay, recognizing that the motions appear to be premised on her assertion that the settlement does not provide adequate relief and concern with her future ability to bring claims against Morgan Stanley for issues relating to her deceased father's account. The Court noted that, to the extent that Linden believed she had claims against Morgan Stanley based on issues related to her father's account, her recourse would have been to opt out of the class action. Because Linden had not opted out of the class action, the Court respectfully denied her motions. Separately, it noted Linden's objections to the settlement and at the hearing directed questions to the Plaintiffs' counsel about those objections. Judge Engelmayer addresses three pending motions by Linden: (1) a letter-motion to vacate the final judgment in the action; (2) her objection to the deadline to request redactions to the transcript of the Aug. 5, 2022 hearing; and (3) a letter-motion to impose sanctions for alleged misconduct by the counsel for Defendant Morgan Stanley Smith Barney LLC. He commissioned responses from the Plaintiffs, as to the motion to vacate, and from the Defendant's counsel, as to the motion for sanctions. Judge Engelmayer denies the relief sought. First, Linden moves to vacate the final judgment under Federal Rule of Civil Procedure 60(b)(1), claiming that she was "erroneously" labeled as a "non-party" and "non-party joiner" on the docket. She seeks relief including damages and the production of certain records. The Plaintiffs oppose her motion, noting that she was properly classified as a non-party because she was not a named plaintiff and that her motions were duly considered by the Court. The Plaintiffs are correct. Rule 60(b) allows a court to relieve a party or its legal representative from a final judgment based on, inter alia, mistake, inadvertence, surprise, or excusable neglect. Linden has not made any such showing here. She has failed to demonstrate that her classification on the docket and the Court's rulings as to her motions were erroneous, let alone that any error justifies relief under Rule 60(b). Her allegations appear to relate to matters beyond the scope of the class action. Judge Engelmayer denies her motion. Second, Linden objects to the termination of transcript deadline and asks for the transcript to be made available immediately, asserting that the people should be given access to the record of the Fairness hearing. Judge Engelmayer finds that Linden does not explain any deficiency in this process, or why she objects to the docket entry she references. He declines to take any action with respect to this objection. Third, Linden seeks sanctions against counsel for Morgan Stanley based largely on a Nov. 11, 2022 email to her from its outside counsel. The email, which responds to an email from Linden, stated that the counsel's law firm does not represent Linden or Morgan Stanley in connection with the issues she had raised and that the firm would not respond to further correspondence from her. Morgan Stanley opposes her motion. Upon review, Judge Engelmayer does not find any impropriety or basis for sanctions. The counsel's responses to Linden's inquiries, including the email that she challenges, were appropriate. As the counsel explained, Linden's requests related to matters outside the scope of this litigation and/or were subject to direct rulings by this Court. Linden's motion for sanctions is denied. The Plaintiffs' counsel will furnish a copy of the Order to Linden forthwith and file proof of service on the docket within one week of the Order. Judge Engelmayer directs the Clerk of Court to terminate all pending motions. The case remains closed. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/eum4zabz from Leagle.com. MSP RECOVERY: Bids for Lead Plaintiff Appointment Due Oct 23 ------------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, on Aug. 23 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of MSP Recovery, Inc. f/k/a Lionheart Acquisition Corp. II (NASDAQ: LIFW), which does business as LifeWallet: (1) between April 28, 2022 and August 17, 2023, both dates inclusive (the "Class Period"); (2) all persons or entities who held Lionheart common stock who were eligible to vote at Lionheart's May 18, 2022 special meeting; and/or (3) all persons who purchased or otherwise acquired MSP Recovery securities pursuant and/or traceable to the Company's July 1, 2022 Registration Statement. The lawsuit seeks to recover damages for MSP Recovery investors under the federal securities laws. To join the MSP Recovery class action, go to https://rosenlegal.com/submit-form/?case_id=18122 or call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose, among other things, that: (1) MSP Recovery did not disclose that it was under active investigation by the SEC and federal prosecutors; (2) certain financial information given to investors by MSP Recovery was materially false and misleading; (3) MSP Recovery did not fully disclose the extent of its issues when it admitted that its financial results would need to be restated; (4) MSP Recovery was unable to afford the assigned claims on which it depends, and defrauded a major healthcare provider that sold or assigned it its claims; (5) The Registration Statement contained various false or misleading statements and was negligently prepared; (6) The Proxy contained false or misleading statements; and (7) as a result, Defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times and/or were negligently prepared. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than October 23, 2023. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to https://rosenlegal.com/submit-form/?case_id=18122 or to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm's attorneys are ranked and recognized by numerous independent and respected sources. Rosen Law Firm has secured hundreds of millions of dollars for investors. Attorney Advertising. Prior results do not guarantee a similar outcome. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40thFloor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com www.rosenlegal.com [GN] MSP RECOVERY: Plaintiff Drops Class Action Complaint ---------------------------------------------------- Naomi Feinstein, writing for Miami New Times, reports that on August 28, the chief judge's deadline to address deficiencies in the complaint, the plaintiff dropped the case against LifeWallet and notified the court he does not intend to refile it. LifeWallet meanwhile filed a motion alleging that the Rosen Law Firm, which was representing the plaintiff, had improperly released ads soliciting clients for the lawsuit. According to the motion, marketing materials in which the firm sought out LifeWallet shareholders to represent did not receive the required approval of the Florida Bar. Chief U.S. District Judge Cecilia Altonaga referred the motion to a magistrate judge on August 29. Update published 8/25/2023 11:35 p.m.: A federal judge has dismissed the class action complaint against LifeWallet without prejudice, saying that it is formatted as an impermissible "shotgun pleading." The plaintiff's firm was given until Monday, August 28, to refile the case to comply with the judge's order. Chief U.S. District Judge Cecilia Altonaga took issue with complaint's use of boilerplate language, which she said made it unclear which specific claims apply to each count. Since prominent Miami attorney John Ruiz's medical claims company went public in a record-breaking reverse merger, shareholders have been decimated as the company fell far short of its nearly billion-dollar revenue projection, and its stock lost nearly all its value. It seemed it was only a matter of time before stockholder class-action claims started to flood federal courts -- and that moment has apparently arrived. On behalf of shareholders of MSP Recovery, AKA LifeWallet, New York-based Rosen Law Firm is suing Ruiz and the medical claims company in the Southern District of Florida, citing major accounting blunders and alleging the firm painted a bogus picture of its business prospects while paying exorbitant sums for air travel using Ruiz's decked-out, luxury plane. [GN] NATIONAL ENTERPRISE: Sued Over Notice's Itemized Date Usage ----------------------------------------------------------- Mikegibb of Accounts Recovery reports that a class-action lawsuit has been filed against a collector for violating the Fair Debt Collection Practices Act and Regulation F for sending a Model Validation Notice with an itemization date that is allegedly not one of the five options. A copy of the complaint, filed in the District Court for the Middle District of Florida, can be accessed by using case number 23-cv-00913 or by clicking https://www.accountsrecovery.net/wp-content/uploads/2023/08/23-cv-00913.pdf. The case was originally filed in Florida state court, but subsequently removed to federal court by the defendant. The complaint doesn't say how the plaintiff knows that the date used on the notice is not one of the five options, nor does the complaint state what the date might be. The complaint also accuses the defendant of failing to identify the name of the creditor to whom the debt was owed on the itemization date. The top of the notice says that the defendant is trying to collect a debt that is owed to Velocity Investments. At the top of the itemization table, the plaintiff is informed that she had a Upstart Funding Grantor Trust 2021-4 Account with Upstart Network with an account number that ended in 1890. The defendant is accused of violating Sections 1692e, 1692e(2)(A), 1692f, and 1692g of the FDCPA. The suit also seeks two classes of plaintiffs -- the itemization creditor class for individuals who were sent a letter where it allegedly failed to identify the name of the creditor on the identified itemization date, and an itemization date class for individuals who were sent a letter where the itemization date is not one of the five options allowed under Regulation F. [GN] NBC NEVADA: Martinez Sues Over Unpaid OT, Untimely Wage Payments ---------------------------------------------------------------- MAYRA MARTINEZ, on behalf of herself and all others similarly situated, Plaintiff v. NBC NEVADA MERCHANTS, LLC; DOES 1 through 50; inclusive, Defendants, Case No. A-23-876345-C (D. Nev., Clark Cty., Aug. 22, 2023) arises from the Defendants' alleged failure to pay overtime and failure to timely pay all wages due and owing to Plaintiff and similarly situated individuals in violation of the Nevada Revised Statute. The Plaintiff was employed by Defendant as a non-exempt hourly employee from November 2022 to January 2023. NBC Nevada Merchants, LLC is a domestic limited-liability company listed with the Nevada Secretary of State.[BN] The Plaintiff is represented by: Christian Gabroy, Esq. Kaine Messer, Esq. GABROY MESSER The District at Green Valley Ranch 170 South Green Valley Parkway Suite 280 Henderson, NV 89012 Telephone: (702) 259-7777 Facsimile: (702) 259-7704 E-mail: christian@gabroy.com kmesser@gabroy.com NEW AMERICAN: Martin Bid for Class Certification Tossed as Moot --------------------------------------------------------------- In the class action lawsuit captioned as KATRINA MARTIN, v. NEW AMERICAN CINEMA GROUP, INC, MARIE SERRA, a/k/a MM SERRA, Case No. 1:22-cv-05982-JLR (S.D.N.Y.), the Hon. Judge Jennifer Rochon entered an order denying as moot the motion for class certification, in light of the parties' agreed-upon judgment. On February 15, 2023, issued an Opinion & Order dismissing the Plaintiff's claims other than the claims for Copyright Infringement and Breach of Contract. On June 2, 2023, Defendants made an Offer of Judgment pursuant to Fed. R. Civ. P. 68. On June 13, 2023, the Plaintiff accepted said Offer of Judgment. New American is an artists run organization dedicated to the distribution and exhibition of alternative media in all its forms. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3Ei8Piq at no extra charge.[CC] NEW HAMPSHIRE: May Face Class Action Over Foster Care System ------------------------------------------------------------ Annmarie Timmins, writing for nhpr, report that Child Advocate Cassandra Sanchez was intentionally detailed and unsparing in describing what she saw and heard while checking on two boys the New Hampshire Department of Health and Human Services had sent to a Tennessee treatment facility. Children said staff offered them incentives to assault other children, Sanchez wrote in a 17-page report after visiting Bledsoe Youth Academy in Gallatin, Tenn. Cameras in bedrooms left little privacy to change. Kids suffered rug burns while restrained face-down on a carpet. And Sanchez said that New Hampshire officials have not kept an adequate database of reports of those restraints and seclusion actions for kids out of state, which could have signaled the problem earlier. "That is a clear dereliction of the duty of care entrusted to the Division (of Children, Youth, and Families), as well as interference with the (Office of Child Advocate's) oversight obligations," Sanchez wrote. The media attention that followed helped Sanchez accomplish what she wanted most: The state Department of Health and Human Services, which she said had never done an on-site evaluation to certify Bledsoe Youth Academy, promptly returned the boys to New Hampshire. But advocates for children want the public to know this is not the only case raising serious concerns about the state's handling of cases when it removes children from their homes over abuse and neglect concerns. In a federal lawsuit filed in 2021 against Gov. Chris Sununu and Department of Health and Human Services officials, New Hampshire Legal Assistance, Disability Rights Center-NH, ACLU New Hampshire, and the national advocacy group Children's Rights are alleging the state is systematically and unnecessarily institutionalizing older foster youth rather than placing them in homelike settings within or close to their communities. On Aug. 21, the parties asked the U.S. District Court in New Hampshire to certify the case, which they filed in 2021 on behalf of four youths, as a class action lawsuit. In a pleading, the parties allege that the state is over-reliant on congregate or institutional settings because it has failed to recruit and train foster families that can support high-needs kids and neglected to find youth placements with relatives. The consequences are significant, the lawsuit alleges. Spending months or longer in institutional settings, rather than with foster families or relatives in their communities, can be traumatic and lead to homelessness, unemployment, and lack of educational attainment, it says. If the court agrees to make the case a class action, foster youth would have to meet four criteria to qualify. They'd have to be between 14 and 17; be in legal custody or under the protective supervision of the Division for Children, Youth, and Families; have a mental diagnosis or record of one that substantially limits a major life activity; be "unnecessarily" placed in a congregate care setting or be at risk of that. While it's unclear how many youths could be included if the court agrees to make the case a class action lawsuit, the lawsuit suggested it could be many. As of April 2022, there were 196 older foster youth in DCYF custody, the lawsuit stated, citing department records. Of those, at least 184 had a mental health diagnosis recorded in the state's Medicaid Management Information System. The lawsuit did not indicate how many of them were in congregate care settings. "The Office of the Child Advocate has historically highlighted concerns with the frequency in which our state systems place children in residential care settings," Sanchez wrote in her report on Bledsoe Youth Academy. "This concern becomes heightened when children are placed out-of-state, away from family and community connections, into programs that do not have the level of oversight as in-state programs. Although acknowledged by many key stakeholders in New Hampshire, this is an issue we can no longer observe without action." Congregate care is the 'default' During a deposition for the lawsuit, Theodore Cross, a psychologist chosen by the plaintiffs as one of its expert witnesses, said he felt the state was not taking full advantage of non-congregate care opportunities. "I did not see indications that this kind of searching for community-based alternatives was conducted, and therefore, from that, I concluded that use of congregate care was being used as a default placement for youth," Cross said in May. Nationally, an average of 39.8 percent of older youth with mental health diagnoses were placed in congregate care in 2019, according to the lawsuit. New Hampshire's average that year was 90.5 percent, according to the lawsuit. The four youths named as plaintiffs were removed from their homes over abuse or neglect cases and all had been diagnosed with mental health diagnoses, the lawsuit states. They wanted to be in homelike settings, in their communities. But according to the lawsuit, DCYF told one of the youths "that no one wants them." In court filings, they are identified only by their initials and ages, which range from 14 to 16. The institutions they had been placed in were prioritizing discipline over therapeutic care, if there was care at all, the lawsuit alleges. In one alleged case, a youth identified as R.K. saw their mother only once during a two-month stay at one facility and never saw their siblings, according to the lawsuit. "(The facility) was a punitive and menacing environment where (R.K.) continuously experienced harsh treatment and ridicule by a particular staff member," the lawsuit alleges. "While there, staff threatened to strip R.K.'s room and remove their clothing as a consequence for refusing to take their ADHD medication that interfered with their ability to sleep." The lawsuit describes the challenges another youth, T.L., was experiencing. "The facility is often punitive in nature and T.L. perceives staff as uncaring and inattentive," it said. "Basic needs, such as food and clothing are regarded as privileges." The state has disputed the lawsuit's allegations on various legal grounds in court filings. "It is important to note that many New Hampshire youths requiring specialized services are well cared for by out-of-state programs," said Department of Health and Human Services spokesperson Jake Leon when asked about the Office of the Child Advocate's report on Bledsoe Youth Academy. "Some out-of-state placements are essential because some youth need specialized services; some placements in bordering states may be better for the family or may be closer to a youth's home community." 'We're not there yet' Sanchez was so concerned following her visit to the Bledsoe Youth Academy that she emailed the Bureau of Children's Behavioral Health at DHHS, which oversees child placements, from the parking lot there. She also reported her concerns to the Tennessee officials who license facilities like Bledsoe. Bledsoe did not return a message seeking comment. Sanchez acknowledged DCYF had been checking in on the children placed at Bledsoe. But she said the bureau would have shared her concerns about the facility and programming if staff had evaluated both during an on-site visit as required before awarding it certification. "(DCYF child protection workers) are not walking around getting a tour asking questions the way we are," Sanchez said in an interview. "I believe in one way the state's feeling, 'These children have been seen.' But we're voicing things that just meeting with the children is not enough to fully assess. So I do feel that they would have identified it sooner if they had visited." She noted in her report that staff could not explain the complicated point system that determines a child's privileges and punishments. Children were dressed in color-coded jumpsuits based on behavioral needs or punishments, a system that communicated personal information to all staff and kids. The facility appeared dirty, Sanchez wrote, had little recreation space, and was defined by a "culture of shame, humiliation, and inhumane punishment." Leon, DHHS' spokesperson, said the department had fulfilled its obligations when it certified Bledsoe for out-of-state placement and is investigating whether more visits to facilities would be appropriate. He also said that if DCYF was not receiving reports of seclusions and restraints, a concern Sanchez raised, it would take appropriate action. Sanchez made 11 recommendations in her report recounting her visit. Those included placing children in only New Hampshire or New England facilities that offer evidence-based treatment. DCYF staff should meet with children monthly, in person, and the state should visit out-of-state facilities in person on a quarterly basis, she said. Sanchez said she also plans to investigate the issues of out-of-state placements more broadly and report them to DHHS. There are currently 93 youths being served out of state, including 10 youths outside New England in Arkansas, Florida, Mississippi, Missouri, Pennsylvania, and Tennessee, Leon said. Leon highlighted the investments the department has prioritized to increase preventative care and treatment in New Hampshire. It has also added specialized care that had previously been available only out of state. "Over the past five years, we have been establishing the children's behavioral health system of care to reduce out-of-state placements," he said. "This includes rebuilding our youth behavioral health, child welfare, and juvenile justice systems around a trauma-informed, treatment-oriented model that puts the child and family first." Sen. Becky Whitley, a Hopkinton Democrat who has led legislative efforts to expand and improve treatment and protections for children, noted those investments as well. Part of that effort includes more supports for new mothers and children not involved in the child protection system. "I think what's important to remember is that we continue to be in the midst of a system transfer," Whitley said. "I think (these concerns) are emblematic of the failure to have a fully integrated system and the fact that we're just not catching kids and families early enough," she said in an interview. "I think this Tennessee example (involving Bledsoe Youth Academy) is important for us to realize that we're not quite there yet. And we have to keep our foot on the gas to get the system where we need it to be." [GN] NEW YORK, NY: Court Names Additional Counsel in Handschu v. NYPD ---------------------------------------------------------------- In the case, BARBARA HANDSCHU, et al., Plaintiffs v. POLICE DEPARTMENT OF THE CITY OF NEW YORK, et al., Defendants, Case No. 71 Civ. 2203 (CSH) (S.D.N.Y.), Judge Charles S. Haight of the U.S. District Court for the Southern District of New York appoints Perry Grossman, Daniel Lambright, and Gideon Orion Oliver as additional counsel for the Plaintiff Class. The Court is in receipt of a letter from the Plaintiffs' Class Counsel Jethro M. Eisenstein, dated Aug. 4, 2023. In that letter, pursuant to Federal Civil Rule 23(g), Eisenstein requests that the Court appoints additional counsel for the Plaintiff class. In particular, he notes that Attorney Paul Chevigny "has retired" and that he and his colleagues, Messrs. Eisenberg and Stolar, are inevitably advancing in age. Because the case will necessarily continue into the future, Eisenstein asserts that it would be prudent to seek approval for additional class counsel. Based on their civil rights litigation experience, he proposes approval of the following three members of the New York Bar and the Bar of the Court: (1) Perry Grossman, (2) Daniel Lambright, and (3) Gideon Orion Oliver. Considering their credentials, relevant experience, and knowledge of applicable law, Judge Haight concurs that the proposed attorneys are well equipped to fairly and adequately represent the interests of the class. Accordingly, he construes Eisenstein's letter of August 4 as a motion to appoint additional class counsel and grants it. Pursuant to Federal Rule of Civil Procedure 23(g)(1) and (4), Judge Haight appoints the named attorneys as additional counsel for the Plaintiff Class: Perry Grossman, Daniel Lambright, and Gideon Orion Oliver. Each is directed to enter an appearance for the Plaintiffs forthwith. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/345ef8y4 from Leagle.com. NEW YORK, NY: Seeks Dismissal of Suit Over Drivers' Excessive Fines ------------------------------------------------------------------- Katie Honan, writing for The City, reports that the city of New York is trying to toss out a class-action lawsuit filed on behalf of drivers who say they were unfairly targeted by their race when they were fined for illegally picking up street hails at city airports, the drivers' lawyers allege. The drivers' suit claims that the city Taxi and Limousine Commission (TLC) violated their constitutional rights and doled out excessive fines when it conducted undercover stings mainly at JFK and LaGuardia airports. In a motion to dismiss filed July 5, the city's Law Department said the claim lacks merit, but plaintiffs and their lawyers are pushing for a trial. The TLC conducts operations across the city in which undercover employees try to hail rides in areas where street-hail regulations ban drivers unlicensed by the TLC or who are otherwise operating illegally. Since January 2020, the TLC has doled out around 5,500 summonses for violations of the law -- collecting at least $1 million of $8 million in penalties, according to data from the beginning of the year shared in the suit. More than half of those summonses came from around JFK and LaGuardia airports, bringing in around $700,000 in fines. An analysis by Mobilization for Justice, a nonprofit serving as a counsel on the lawsuit, of summons data obtained through a Freedom of Information Law request showed that 86.5% of drivers ticketed are nonwhite. In opposition to the city's motion to dismiss, the lawyers said that nonwhite drivers make up just 56% of people who drop-off passengers at the city's airports, according to a compilation of census data. Targeting drivers by race and issuing fines of up to $1,500 for a first-time offense -- including the possible temporary suspension of a drivers' license and registration -- violates the Constitution, the lawyers argue. "I know that Mayor [Eric] Adams wants to crack down on crime but he should be focused on legitimate crime and not manufactured crimes by entrapment teams by the TLC," said Peter Romer-Friedman, a civil rights and class-action lawyer who is also working with Mobilization for Justice on the case. Jason Kersten, a TLC spokesperson, defended the undercover operations. "Safety is our top priority, and our undercover enforcement operations target drivers who are not licensed by the TLC, or TLC drivers operating illegally," Kersten told THE CITY in a statement. "These drivers are often uninsured, unlicensed, unsafe, and looking to exploit passengers. The riding public, especially tourists, are often unaware of this, and this puts passengers at risk." Stung by the TLC Some of the drivers named in the lawsuit, as well as others who were ticketed, say they never even picked up any passengers. Sean McMillan drove his dad from Neptune, New Jersey to JFK Airport in April, pulled over in the departure area, and gave his dad a hug goodbye. Soon after, he was approached by an older gentleman asking if he could drive him to LaGuardia Airport. McMillan is not white. "I was giving him respect, with a dismissive tone," the 26-year-old student at the New Jersey Institute of Technology told THE CITY. "Next thing I know two officers approached me and asked for my license and registration." McMillan was driving his mother's car, so the TLC officer gave two tickets, one to him and one to his mom, he said. His hearing has been postponed to later in the year, but he said the whole situation rattled him. "I almost feel like people are out to get me, it makes it really uncomfortable," McMillan said. "Now it makes me more closed off and I have anxiety." Moving Targets Other drivers caught in the ticketing snare work for ride-hailing apps, but only outside of the city — and are already familiar with TLC's restrictions on who can pick up street hails and at the airport. George Numfor lives in The Bronx and dropped off a Westchester passenger booked through Uber at JFK on March 1, 2022. At the time, Numfor didn't have a TLC license and worked primarily in counties outside of the city. When a man approached him at the departure gate and asked if he was a taxi, he said "no," he told THE CITY. The passenger then asked if there was a train to LaGuardia Airport, and finally asked how much it cost to take a cab to that airport from JFK, Numfor said. "I said, maybe $20 or $15? I don't know," he told THE CITY. Soon after, a TLC officer came over and asked to see his identification. He waited close to an hour before the officer returned to tell him he was being ticketed. "Is it a crime now if somebody asks for help?" said Numfor, 40, an immigrant from Cameroon who is Black. "He asked me something, I explain it to him." Without any dash camera or witnesses, he was advised by his lawyer to plead guilty, and he paid a $500 fine. "When I pay that money I have to now go into borrowing [from family]" to pay other bills, he said. "They're exploiting people." Romer-Friedman noted that Numfor said he repeatedly declined to give a ride and thinks the TLC enforcement agent misled him because of his accent. The lawsuit contends TLC enforcement agents should have to wear body cameras when conducting the sting operations. 'A Money-Making Thing' Fabion Lewis had just dropped off an Uber passenger from Westchester at JFK on a cold January day in 2019 when a man wearing just a T-shirt asked him about a ride. "He had this desperate look on his face and was trying to get my attention," the 38-year-old driver from St. Albans, Queens, told THE CITY. The man said he was with his wife and needed a ride to LaGuardia. "I said 'I can't do it.' He was like 'What do you mean you can't do it, you're an Uber driver,'" Lewis recalled. He told the man he could be ticketed. According to Lewis, the man replied: "You're gonna get a ticket for doing your job?" The man continued to beg for a ride for him and his wife, until Lewis agreed to take them for $30, he said. The fake travelers got in his car and stayed in character as a TLC officer walked by to talk to him, Lewis said. "I just looked at them when they were trying to stay in character -- I didn't react, I gave them a look of disgust," he said, noting he declined driving them multiple times. The TLC instructs its employees to not be "overly persuasive, preemptive, or pressuring when acting as decoys" -- which the lawyers in the suit call a "cruel farce" and Lewis also disagreed with. "There's a lot of resources that goes into it, the persistence," he said. "They're targeting some of the weakest people in our economy and obviously they're hiring people and investing a lot of money into this so clearly it's a money-making thing." [GN] NEWREZ LLC: Court Grants Bid for Class Certification in Yates Suit ------------------------------------------------------------------ In the case, IRENE YATES, Plaintiff v. NEWREZ LLC, d/b/a Shellpoint Mortgage Servicing, Defendant, Civil Action No. TDC-21-3044 (D. Md.), Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland grants the Plaintiff's Motion for Class Certification Plaintiff Yates, acting individually and on behalf of similarly situated individuals, has filed the class action against Shellpoint, in which she alleges that Shellpoint illegally charged inspection fees to Maryland homeowners in violation of Maryland law. Yates has filed a Motion for Class Certification, which is now fully briefed. Shellpoint is a mortgage servicing company that acts on behalf of the Federal National Mortgage Association ("Fannie Mae") and other owners of mortgage loans. The business model of companies like Shellpoint revolves around acquiring mortgage servicing rights, which then permit those companies to service residential mortgage loans in exchange for a portion of the interest payments made on the underlying residential mortgage loans. When a borrower is delinquent by 90 days, Shellpoint may order a property inspection to evaluate the occupancy and condition of the property, and it continues to conduct inspections once a month after that initial property inspection. To conduct property inspections, Shellpoint engages vendors whose contracts may permit them to charge borrowers for inspections on Shellpoint's behalf. Under the Maryland Usury Law, with certain exceptions not applicable in the case, a lender may not impose a lender's inspection fee in connection with a loan secured by residential real property. In 2018, after completing a review of Shellpoint's records that began in 2015, the Maryland Commissioner of Financial Regulation ("MCFR") found that Shellpoint had charged to or collected from Maryland borrowers more than $270,000 in illegal inspection fees. On Aug. 6, 2018, Shellpoint then executed a Memorandum of Understanding with the MCFR under which fines were imposed on Shellpoint, Shellpoint was required to return inspection fees to borrowers, and Shellpoint was required to implement a new system to prevent inspection fees from being charged to Maryland borrowers. In 2004, Yates purchased a home in Lanham, Maryland. To purchase the property, she secured a mortgage loan from Chevy Chase Bank. In 2008. She refinanced her mortgage loan through Chevy Chase Bank, which obtained the approval of Fannie Mae, which intended to acquire the loan by assignment and to engage Chevy Chase Bank as its loan servicer. Under the terms and conditions of the mortgage loan, Fannie Mae, Chevy Chase Bank, and Yates agreed that the loan would be governed by Maryland law, including as to express prohibitions on charging certain fees. In 2018, Shellpoint obtained the mortgage servicing rights to Yates' mortgage loan. In a June 22, 2018 monthly statement. Shellpoint charged Yates $105 and $20.66 in property inspection fees. In a July 20, 2018 monthly statement. Shellpoint charged Yates a $13 property inspection fee relating to a visual inspection of the property on July 16, 2018. In a Sept. 17, 2018 statement, Shellpoint charged Yates another $13.00 property inspection fee relating to an inspection on Aug. 21, 2018. On June 22, 2021, Yates filed a class action complaint in the Circuit Court for Prince George's County, Maryland against Shellpoint and Fannie Mae. After Yates amended the Complaint, Shellpoint and Fannie Mae removed the case to this Court. With its Notice of Removal, Shellpoint submitted a declaration specifically representing that based on a review of Shellpoint's electronic database, it had determined that prior to Dec. 31, 2018, Shellpoint had charged inspection fees to over 1,500 borrowers whose loans were serviced by Shellpoint and were still active as of six months before the filing of the lawsuit. After Yates voluntarily dismissed the claims against Fannie Mae, Yates filed the presently operative Second Amended Complaint in which she alleges in Count 1, on behalf of herself and a class of similarly situated persons, that Shellpoint's practice of charging property inspection fees violated the Maryland Usury Law, specifically, Section 12-121(b). In Count 2, she alleges that by imposing these illegal fees and then seeking to collect payments on the mortgage loan, Shellpoint violated the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law Sections 14-201 to 14-204. In Count 2, Yates also alleges a violation of the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Corn. Law Sections 13-101 to 13-320. In the Second Amended Complaint, Yates seeks to represent a class, referred to as "the Usury Class," consisting of the following persons who were also allegedly charged illegal property inspection fees by Shellpoint: Any person in the State of Maryland for whom (i) Shellpoint has serviced a loan related to a secured, mortgage loan on behalf of Fannie Mae., (ii) where Shellpoint imposed or charged their mortgage loan accounts with property inspection fees; and (iii) the mortgage loan accounts were not satisfied on or before April 5, 2021. The proposed class excludes any employees or independent contractors of Shellpoint or Fannie Mae, their relatives, employees of the Court, and class members in two other similar civil actions. Yates has now filed a Motion for Class Certification. In her Motion, she seeks certification of the Usury Class and asserts that all of the requirements for a class action set forth in Federal Rule of Civil Procedure 23 have been satisfied, including the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy, and the Rule 23(b)(3) requirements of predominance and superiority. Fed. R. Civ. P. 23(a), 23(b)(3). Yate also asserts that the class is ascertainable. In its memorandum in opposition to the Motion, Shellpoint argues that class certification should be denied on the grounds that: (1) the Usury Class is not ascertainable because to identify class members would require a file-by-file review of Shellpoint's mortgage loan files: (2) the Usury Class does not satisfy the requirements of numerosity, commonality, typicality, and adequacy, in particular because Yates is not an adequate class representative; (3) in light of the individualized issues on whether putative class members actually paid inspection fees the requirements of predominance and superiority have not be satisfied: and (4) the Usury Class definition is broader than permitted under the applicable state law statute of limitations. Judge Chuang finds that the class satisfies all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. He finds that (i) Shellpoint acknowledges that 1,232 borrowers had inspection fees identified on their loans between June and December 2018; (ii) Yates has identified multiple common questions of law or fact which when answered will resolve an issue that is central to the validity of each one of the claims in one stroke; (iii) Yates has alleged that Shellpoint engaged in a widespread policy of imposing property inspection fees on borrowers without the right to do so, and where advancing her claims would thereby simultaneously tend to advance the interests of the absent class members who have substantially similar claims under the Maryland Usury Law, the MCDCA, and the MCPA; and (iv) Yates has demonstrated some knowledge of this case and has fulfilled her duties as class representative by sitting for a deposition and participating in the litigation process, and her attorneys can adequately represent the class. In addition, Judge Chuang finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Yates has demonstrated the superiority of a class action and has sufficiently established predominance under Rule 23(b)(3) as needed for class certification. Finally, Judge Chuang finds that Section 12-111 establishes the statute of limitations for claims under the Maryland Usury Law, and the general three-year statute of limitations does not apply to the members of the putative class. Thus, there is no need to alter the class definition based on the applicable statute of limitations. Based on the foregoing, Judge Chuang grants Yates' Motion for Class Certification. A full-text copy of the Court's Aug. 8, 2023 Memorandum Opinion is available at https://tinyurl.com/yv5zthwc from Leagle.com. NEWREZ LLC: Court OK's Yate Bid for Class Certification ------------------------------------------------------- In the class action lawsuit captioned as Irene Yates v. NEWREZ LLC, d/b/d Shellpoint Mortgage Servicing, Case No. 8:21-cv-03044-TDC (D. Md.), the Hon. Judge Theodore D. Chuang entered an order granting the Plaintiff Yate's motion for class certification. -- The Parties shall file a joint status report within 21 days of the date of the order. Newrez is a nationwide mortgage lender and servicer. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/3P2bYb8 at no extra charge.[CC] NORTHROP GRUMMAN: Sued Over Manufacturing Plant's Air Pollution --------------------------------------------------------------- Kristin Thorne of abc7NY reports that dust samples from the attics of 12 homes in Bethpage, Levittown, and Plainview tested positive for an airborne, cancer-causing chemical, according to environmental experts retained by a law firm that is attempting to file a class action lawsuit against Northrop Grumman for polluting the air around its Bethpage manufacturing plant decades ago. The samples were taken in March and May and showed evidence of hexavalent chromium in the dust in the residents' attics. Hexavalent chromium is produced during many industrial processes and can cause a variety of cancers. The Occupational Safety and Health Administration calls the chemical "toxic" and has extensive requirements on how employers are supposed to protect workers from it. Stephanie Ciambra Ball's childhood home in Bethpage tested positive. "You always saw smoke," Ciambra Ball recalled growing up near the factory. "We didn't think about it. You always heard the turbines going." Ciambra Ball is a breast cancer survivor and wonders if her cancer came from the air she breathed in. She said when she was told of the positive hexavalent chromium result she was in disbelief. "To know that there was a possibility that the house was somehow contaminated," she told Eyewitness News investigative reporter Kristin Thorne. The attic of Lois Schiavetta, of Bethpage, also a breast cancer survivor, also tested positive for hexavalent chromium. "I kind of hoped they would find something that would explain what was going on," she said. Environmental experts said the air in the area is not toxic now, but may have been prior to 1995. The factory ceased operations in 1994. Concerns about groundwater and drinking water contamination around the Bethpage factory date back to the inception of the factory in the 1940s. In 2017, then New York Governor Andrew Cuomo released a study by the state which found that the "toxic plume" around the factory was larger and more contaminated than previously thought. The study said the contaminated plume had already spread to the Southern State Parkway and if it wasn't contained would eventually make its way to the Atlantic Ocean. Cuomo announced a $150 million plan to install 14 treatment wells on the perimeter of the plume and four wells inside it. In 2022, Grumman agreed to pay the U.S. government $35 million to remediate the soil and groundwater around the site. The law firm Napoli Shkolnik is representing the group of residents in their attempt at a class action lawsuit against Grumman. "The air contaminants historically emitted by the Facilities that impacted the Proposed Class Boundary are a cause for significant health and environmental concerns," the firm's environmental expert argued in court filings. A judge could rule at any time whether to allow the lawsuit to proceed as a class action. Grumman responded in court filings that the attic dust samples are unreliable and that the plaintiffs' environmental expert is not able to support his theory that because the soil at Bethpage Community Park is contaminated that the air - years ago - must have been as well. "Tellingly, he cites no study or peer review to support this apples-to-oranges comparison," the company responded in a letter to the judge. Grumman told Eyewitness News in a statement, "The EPA and New York DEC have evaluated potential risks to the Bethpage community from the legacy United States Navy/Grumman site and found none from historical air emissions. Northrop Grumman continues to work closely with federal and state agencies, including the EPA, New York DEC, and the United States Navy to coordinate all aspects of the work with the Town of Oyster Bay, to remediate groundwater and the Bethpage Community Park and to protect the health of the community." [GN] NYC MEDICAL: Must File Bid to Decertify Class in Lawrence Suit -------------------------------------------------------------- In the case, KEYLEE LAWRENCE, individually and on behalf of all others similarly situated, et al., Plaintiffs v. NYC MEDICAL PRACTICE, P.C., d/b/a Goals Aesthetics and Plastic Surgery, et al., Defendants, Case No. 1:18-cv-8649-GHW, Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York orders that the Defendants' anticipated motion to decertify the class action must be filed and served on Sept. 1, 2023. The Plaintiffs' opposition must be filed and served no later than three weeks from the date that the Defendants' motion is filed and served. The Defendants' reply, if any, must be filed and served no later than one week from the date of filing and service of the Plaintiffs' opposition. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/mueu7p4r from Leagle.com. OHIO HISTORY: MSD Law Firm Investigates Data Breach Claims ---------------------------------------------------------- Jonathan Deters, Esq., of Markovits, Stock & DeMarco, LLC, disclosed that Markovits, Stock & DeMarco, a law firm experienced in data breach cases, is investigating claims on behalf of victims of a data breach involving data entrusted to Ohio History Connection. Ohio History Connection is a history museum and research center in Columbus, Ohio. If you received a notice of data breach letter from Ohio History Connection, please contact us as soon as possible to understand your legal rights in response to the data breach. WHAT HAPPENED? Ohio History Connection detected a cyberattack on its computer systems and network in early July 2023.[1] Ohio History Connection has disclosed the breach involves the confidential and personal information of its employees on its systems, including but not limited to: Names, Social Security numbers, addresses, and financial account information.[2] HOW MANY PEOPLE ARE IMPACTED BY THE DATA BREACH? Ohio History Connection did not report the data breach to the authorities and the affected parties until August 23, 2023.[3] In total, the data of 7,600 individuals was compromised in the breach.[4] WHAT SHOULD I DO IF I RECEIVED NOTIFICATION OF THE OHIO HISTORY CONNECTION DATA BREACH? If you would like to have a free, confidential consultation with an attorney to learn more about your rights and potential legal remedies in responding to the Ohio History Connection data breach, please contact Markovits, Stock & DeMarco attorney Terry Coates or Jon Deters at (513) 651-3700, email us at msd@msdlegal.com, or submit a Case Evaluation request through the form below. https://apps.web.maine.gov/online/aeviewer/ME/40/83ccde19-72d2-49ab-abec-7d93008b018e.shtml form below. [1] https://apps.web.maine.gov/online/aeviewer/ME/40/83ccde19-72d2-49ab-abec-7d93008b018e.shtml [2] Id. [3] Id. [4] Id.[GN] OHIO: District Court Dismisses French v. Chambers-Smith, ODRC ------------------------------------------------------------- In the case, STEVEN FRENCH, Plaintiff v. ANNETTE CHAMBERS-SMITH, et al., Defendants, Case No. 2:22-cv-2760 (S.D. Ohio), Judge James L. Graham of the U.S. District Court for the Southern District of Ohio, Eastern Division, dismisses the Plaintiff's complaint. The pro se 42 U.S.C. Section 1983 action is before the Court for consideration of the Magistrate Judge's Report and Recommendation ("R&R") recommending dismissal of the Plaintiff's complaint. The Plaintiff is a former inmate at the Lorain Correctional Institution ("LoCI") who is now on Ohio Adult Parole Authority ("APA") supervision. He brings the action against Annette Chambers-Smith, director of the Ohio Department of Rehabilitation and Corrections ("ODRC"); Michael Anderson, Chief Hearing Officer of the APA; and Jennifer Gillece-Black, Warden of LoCI in their official capacities. The Plaintiff alleges that the ODRC, APA, and LoCI are illegally detaining him and 56 other individuals under the guise of post release control ("PRC") despite knowing that PRC was not legally imposed. Specifically, he alleges that the sentencing courts failed to give the required verbal and written advisements to impose PRC. He also alleges that the APA is deliberately imposing consecutive post release control time periods when they have no legal basis to do so and unconstitutionally hindering parolees right to file grievances. Finally, the Plaintiff alleges that the ODRC, APA, and LoCI committed various crimes including violations of 18 U.S.C. Sections 241, 242, 371, 1001, 1038, 1590, 1593A and 162. The Magistrate Judge performed a sua sponte review pursuant to 28 U.S.C. Sections 1915(e)(2)(B) and 1915A(b) to determine whether the complaint should be dismissed. She first concluded that the Plaintiff, as a pro se litigant, is limited to bringing his own claims; that he may not file a purported class action for the 56 other individuals. She then exhaustively analyzed each of the Plaintiff's claims and determined that all warrant dismissal. The Plaintiff filed objections to the R&R. The Plaintiff's Objections touch on two issues. First, the Plaintiff appears to object to the Magistrate Judge's conclusion that he may not act as class representative for the 56 similarly injured individuals who signed the Complaint. His sole statement in support is that "all names have 'same' issue in their findings. Judge Graham understands the Plaintiff's assertion to mean that he may represent the class because he is similarly situated to the fifty-six proposed members. That is not the issue. The issue is, as the Magistrate Judge correctly noted, whether the Plaintiff, an individual without legal training, may represent a class of similarly situated people. Generally, pro se litigants without legal training may only pursue their own claims. The Plaintiff has made no argument that he can adequately represent the class. Judge Graham therefore agrees that he may not act as class representative and that his Complaint is limited to only his personal claims. Second, the Plaintiff reiterates his claim that the Defendants illegally imposed PRC because he was not provided the required advisements. The Court agrees with the Magistrate Judge that this claim must be dismissed. To the extent the Plaintiff seeks immediate release or termination of PRC, such relief is available only in a writ of habeas corpus, not this civil rights action. The Plaintiff does not allege in his Complaint that his sentence has been invalidated by a federal or state court or other tribunal. Therefore, he may not proceed with a claim for damages in this Section 1983 action. For the reasons he stated, Judge Graham overrules the Plaintiff's objections, adopts and affirms the Magistrate Judge's report and recommendation, and dismisses the matter. The Clerk is directed to enter final judgment in the case. Judge Graham certifies pursuant to 28 U.S.C. Section 1915(a)(3) that for the foregoing reasons an appeal of the Order would not be taken in good faith. A full-text copy of the Court's Aug. 8, 2023 Opinion & Order is available at https://tinyurl.com/233y88pj from Leagle.com. PAPA INC: Bid to Compel Discovery in Andersen Suit Granted in Part ------------------------------------------------------------------ In the case, CARICE ASHLEY ANDERSEN, et al., Plaintiffs v. PAPA, INC., et al., Defendants, Case No. 21-cv-06326-RS (RMI) (N.D. Cal.), Magistrate Judge Robert M. Illman of the U.S. District Court for the Northern District of California, Eureka Division, grants in part and denies in part the Plaintiffs' request to compel discovery. Now pending before the court is a jointly filed letter brief setting forth a discovery dispute in this wage and hour case that is brought both as a putative class action, as well as being filed under California Labor Code Section 2698 et seq. The matter came on to be heard at oral argument on Aug. 8, 2023. The Plaintiffs' portion of the letter brief asks for certain contact information (California-based Pals) ("Pals" are a category of the Defendant's employees) and certain policy documents. As to the policy documents, the Defendant states that the Plaintiff has not identified -- and it is not aware of -- any specific responsive records that have not already been produced. The Plaintiffs' portion of the letter brief does not suitably address the Defendant's contention, nor did they raise the "policy documents" issue at oral argument. Accordingly, the Plaintiffs' request to compel further production in this regard is denied. As to the list of California-based Pals sought by the Plaintiffs, Judge Illman notes that both Parties' positions at oral argument fluctuated to some degree as compared to their written arguments presented in the joint letter brief. With regards to a class list, the Parties informed the court that the Defendant has supplied such information for 250+ putative California class members who did not opt-out. In this regard, it was unclear what else the Plaintiffs wanted and why they believed they were entitled to any further production in advance of their class certification effort. In other words, this sampling appears to be sufficient for the Plaintiffs' efforts towards class certification. However, as to the PAGA claim, Judge Illman finds that the Plaintiffs' position at oral argument (i.e., that the PAGA claim compels the production of a more fulsome PAGA class list at this time) was more persuasive than the Defendant's positions, and that the Plaintiffs should be provided with the PAGA class list. Accordingly, the Plaintiffs' request to produce the contact information for all California-based Pals is granted. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/4vppapbr from Leagle.com. PARAMOUNT GLOBAL: Salazar Appeals Case Dismissal to 6th Cir. ------------------------------------------------------------ Plaintiff Michael Salazar filed an appeal from the District Court's Memorandum Opinion and Order dated July 18, 2023 entered in the lawsuit entitled Michael Salazar, individually and on behalf of all others similarly situated v. PARAMOUNT GLOBAL, d/b/a 247SPORTS, Case No. 3:22-cv-00756, in the United States District Court for the Middle District of Tennessee at Nashville. The lawsuit, filed on September 27, 2022, is brought against the Defendant for violations of the federal Video Privacy Protection Act arising from the Defendant's practice of knowingly disclosing to a third party, Meta, Inc., data containing the Plaintiff's and other digital-subscribers Class Members' personally identifiable information or Facebook ID and the computer file containing video and its corresponding URL viewed. The Defendant chose to disregard Plaintiff's and hundreds of thousands of other 247Sports.com digital subscribers' statutorily protected privacy rights by releasing their sensitive data to Facebook. Accordingly, the Plaintiff brings this class action for legal and equitable remedies to redress and put a stop to Defendant's practices of intentionally disclosing its digital subscribers' Personal Viewing Information to Facebook in knowing violation of VPPA, says the complaint. On November 30, 2022, the Defendant filed a motion to dismiss for failure to state a claim and for lack of jurisdiction. On July 18, 2023, Judge Eli Richardson of the Middle District of Tennessee entered a Memorandum Opinion and Order holding that the Defendant's request to dismiss the complaint under Rule 12(b) of the Federal Rules of Civil Procedure is denied, and the Defendant's request for dismissal under Rule 12(b)(6) is granted. Specifically, Defendant's Motion is denied insofar as it requests dismissal based on lack of standing. However, the Motion is granted insofar as it requests dismissal for failure to state a claim upon which relief can be granted. This is the final order in the case. The appellate case is captioned as Michael Salazar v. Paramount Global, Case No. 23-5748, in the United States Court of Appeals for the Sixth Circuit, filed on Aug. 21, 2023.[BN] Plaintiff-Appellant MICHAEL SALAZAR, Individually and on behalf of all others similarly situated, is represented by: Brandon Michael Wise, Esq. PEIFFER, WOLF, CARR, KANE, CONWAY & WISE One U.S. Bank Plaza, Suite 1950 St. Louis, MO 63101 Telephone: (314) 833-4825 Defendant-Appellee PARAMOUNT GLOBAL, dba 247Sports, is represented by: David Lawrence Yohai, Esq. WEIL, GOTSHAL & MANGES 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 PEDDLE LLC: Faces Miller Class Suit Over Failure to Pay Consumers ----------------------------------------------------------------- Kelly Mehorter of ClassAction.org reports that Peddle, LLC faces a proposed class action that claims the car-buying service has failed to both timely pay consumers who sell their vehicles to the company and transfer ownership of vehicles at the time of sale. The 20-page case was filed by a Georgia consumer who claims he continuously tried to cash the check he received from Peddle after selling his vehicle to the company in December 2020, but the check always bounced. By the time Peddle contacted the plaintiff to tell him not to cash the check and that they would reissue a payment, the check had already gone through after the man attempted to deposit it for a third time, the suit says. The complaint states that after highway patrol pulled the plaintiff over and ran his license, he learned that a warrant for his arrest had been issued for theft by deception. The man was kept in jail overnight, bonded out, and his case was eventually dropped in May 2023, the filing relays. The plaintiff says he and other consumers would not have sold their vehicles to Peddle had they known they would not receive payment at a reasonable time. According to the case, consumers have also complained since at least 2020 that Peddle failed to provide them with the necessary transfer-of-ownership documentation within the required time frame after the company purchased their car. In these instances, a new buyer cannot legally drive the vehicle because the seller is still its legal owner, the suit notes. "Defendant breached the implied warranty of merchantability because the vehicles are not fit for their ordinary purpose of providing reasonably reliable and safe transportation because Defendant did not provide the proper payment and, in some cases, transfer of ownership, within the required time frame for new buyers to legally drive the car they purchased," the case states. In addition, some consumers who have used the car-buying service report that their vehicle was not picked up by the assigned tow company on the promised date, and that they received lower offers than what Peddle originally offered when their vehicle was picked up, the complaint contends. The lawsuit looks to represent anyone in the United States who entered into contracts with Peddle to sell their vehicle and had transfer-of-vehicle ownership issues or experienced problems with cashing checks or receiving payment. [GN] PHL VARIABLE: Class Settlement in AT&LES Suit Gets Initial Nod -------------------------------------------------------------- In the class action lawsuit captioned as ADVANCE TRUST & LIFE ESCROW SERVICES, LTA, AS NOMINEE OF LIFE PARTNERS POSITION HOLDER TRUST, and JAMES KENNEY, on behalf of themselves and all others similarly situated, v. PHL VARIABLE INSURANCE COMPANY, Case No. 1:18-cv-03444-MKV (S.D.N.Y.), the Hon. Judge Mary Kay Vyskocil entered an order approving preliminary class action settlement and certifying class. Pursuant to Rule 23(e)(1)(B)(ii), the Court also finds that it will likely be able to certify the Settlement Class, consisting of: "All owners of PAUL and PEL policies issued by PHL whose policies experienced an increase to the COI rate scales between (i) November 5, 2017 and (ii) the monthly deduction immediately preceding the policy's first policy anniversary date falling on or after January 1, 2021" for purposes of judgment on the proposal under Rule 23(b)(3)." The Court appoints Susman Godfrey L.L.P. as counsel to the Settlement Class for purposes of the Settlement, having determined that the requirements of Rule 23(g) of the Federal Rules of Civil Procedure are fully satisfied by this appointment. The Plaintiff Kenney will serve as representative of the Class for purposes of the Settlement. The Court appoints JND Legal Administration LLC, which is a competent firm, as the Settlement Administrator. T PHL offers life insurance and annuity services. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/3qPjjTe at no extra charge.[CC] PRESTIGE COMMUNITY: Court OKs Stipulation to Briefing Sched in Le ----------------------------------------------------------------- In the class action lawsuit captioned as TU LE, an individual; GENEVA NGUYEN, an individual; MAI LY, an individual, on behalf of themselves and a class of all others similarly situated; v. PRESTIGE COMMUNITY CREDIT UNION, a national credit union; and DOES 1 through 50, inclusive, Case No. 8:22-cv-00259-JVS-KES (C.D. Cal.), the Hon. Judge James V. Selna entered an order granting stipulation to briefing schedule. 1. Opposition to Plaintiffs' motion for class certification and the Defendant's motion for Summary Judgment will be due on or before August 28, 2023. 2. All replies will be due on or before September 29, 2023. 3. The hearing on the motions will be held on Monday October 16, 2023 at 1:30 p.m. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/44tqLkv at no extra charge.[CC] PRISMA LABS: Court Grants Bid to Compel Arbitration in Flora Suit ----------------------------------------------------------------- In the case, ACK FLORA, et al., Plaintiffs v. PRISMA LABS, INC., Defendant, Case No. 23-cv-00680-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S. District Court for the Northern District of California grants Prisma's motion to compel arbitration. Plaintiffs Jack Flora, Nathan Stoner, Courtney Owens, Eric Matson, and D.J. bring the putative class action against Defendant Prisma, accusing it of collecting their facial geometry through their use of its app, Lensa. The Plaintiffs contend that Lensa collects and stores the biometric data of users' faces obtained from their photos, violating the Illinois Biometric Information Privacy Act (BIPA). Prisma moves to compel arbitration, because the Plaintiffs assented to Lensa's Terms of Use, which includes a binding arbitration clause. Prisma's app, Lensa, allows users to upload photos to edit and retouch. In late 2022, Lensa's popularity skyrocketed with the launch of its "magic avatar" feature -- using AI to turn user's photos into artistic or cartoonish depictions of their likeness, applying different styles such as "cosmic," "anime," or "fairy princess." Criticism from many corners soon followed: Artists contended that Lensa employed AI trained on copyrighted images created by humans who received no compensation for their contributions to the images generated by Lensa; users found that the app would create sexualized images from non-sexual, fully-clothed photos; and, the subject of this lawsuit, advocates concerned with Lensa users' privacy argued that Prisma was capturing and retaining the facial geometry of the subjects of the images uploaded to Lensa, without their subjects' consent. When a user downloads the Lensa app, they are required to agree to Lensa's Terms of Use and Privacy Policy to use it. Each of the Plaintiffs allege that they "received disclosure" of Lensa's Privacy Policy and agreed to its Terms of Use when they downloaded the app in December 2022. At issue in this motion is the arbitration provision in Lensa's Terms of Use. The section, titled "Dispute Resolution; Binding Arbitration," appears in larger, bolded font (like the other section headings in the document) and states in smaller, bolded font underneath it: "Please read the following Section carefully because it requires you to arbitrate certain disputes and claims with the Company and limits the manner in which you can seek relief from us." The provision states that "all disputes arising out of or relating to these Terms or Lensa will be resolved through confidential binding arbitration held in Santa Clara County, California in accordance with the Streamlined Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and incorporated by reference. It also forbids class arbitrations and class actions; requires that the enforceability of the arbitration provision be governed by the FAA; gives the arbitrator exclusive authority to make all procedural and substantive decisions regarding any dispute; that for any arbitration the user initiates, the user will pay the filing fee and the Company will pay the remaining JAMS fees and costs; and that users may opt out of binding arbitration if they notify Prisma in writing within 30 days. The Plaintiffs make two arguments against compelling arbitration: First, the arbitration provision is unconscionable; and second, because some provisions in the arbitration agreement arguably fall below JAMS' Consumer Arbitration Minimum Standards, the arbitration provision is illusory. First, the Plaintiffs argue that the arbitration agreement is unenforceable because it is unconscionable. Judge Breyer concludes that because the Plaintiffs had a meaningful opportunity to opt out of the arbitration provision, the agreement was not adhesive. Additionally, while they do not argue the surprise element of procedural unconscionability, there was no surprise. Therefore, because the agreement is not procedurally unconscionable, and because both procedural and substantive unconscionability must be present for an agreement to be unenforceable, Judge Breyer does not reach the question whether the agreement was substantively unconscionable. Second, the Plaintiffs argue that, because two aspects of the arbitration provision in Lensa's Terms of Use arguably do not meet JAMS' Consumer Arbitration Minimum Standards, there was no meeting of the minds as to the arbitration provision in the contract. Judge Breyer cannot conclude that the parties clearly and unmistakably agreed to arbitrate arbitrability. While the parties' briefing does not discuss the parties' sophistication (or lack thereof) in any depth, nothing in the complaint indicates that, as lay users of a photo editing app, the Plaintiffs understood that by incorporating JAMS' Streamlined Arbitration Rules, that they were delegating gateway issues of arbitrability to a JAMS arbitrator. He therefore declines to extend Brennan to this case and proceeds to decide gateway questions of arbitrability. Because there are no other terms that conflict with JAMS' minimum standards, and because the forum selection provision can easily be severed without affecting any other provision, Judge Breyer severs that provision and enforces the arbitration agreement as otherwise agreed upon by the parties. For the foregoing reasons, Prisma's motion to compel is granted. The case is stayed pending arbitration pursuant to 9 U.S.C. Section 3. A full-text copy of the Court's Aug. 8, 2023 Order is available at https://tinyurl.com/bd7rbb24 from Leagle.com. PROCTER & GAMBLE: 9th Circuit Affirms Class Action Dismissal ------------------------------------------------------------ Jacob C. VanAusdall, Esq., of Maurice Wutscher LLP, in an article for Lexology, disclosed that the U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of a consumer's California consumer protection claims based on a consumer survey that purported to show that certain product labels were deceptive. In so ruling, the Ninth Circuit rejected the results of the consumer survey, and held that when a front label is ambiguous, the ambiguity can be resolved by reference to the back label. A copy of the opinion in McGinity v. Procter & Gamble Co. is available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/09/22-15080.pdf In 2019, a consumer purchased shampoo and conditioner related products named "Pantene Pro-V Nature Fusion." The products' front label displayed the words "Nature Fusion" in bold, capitalized letters, an image of an avocado on a green leaf, and an image of what appears to be a gold vitamin with the word "PRO-V" on it. The consumer alleged that the packaging represented that the product was natural, when, in fact, the product contained nonnatural and synthetic ingredients, harsh and potentially harmful ingredients. The consumer alleged that if the products were not from nature or otherwise natural, he would not have purchased the products or paid a price premium for the products. The consumer ultimately filed a lawsuit against the company and asserted claims under California's Unfair Competition Law (UCL), California's False Advertising Law (FAL), and California's Consumers Legal Remedies Act (CLRA). The consumer's lawsuit was heavily supported by a third-party survey of more than 400 consumers regarding their impressions of the products' front labels. Notably, the survey only assessed the products' front label. The survey results showed that, when given pictures of the front of the products, 74.9% of consumers thought the label conveyed that the shampoo contained more natural than synthetic or artificial ingredients, and 77.4% of consumers thought the same about the conditioner. Additionally, 52.6% of the surveyed consumers believed the phrase "Nature Fusion," meant that the product did not contain synthetic ingredients; 49.1% of consumers thought that the phrase "Nature Fusion" meant that the product contained only natural ingredients; and 69.2% of consumers thought that the phrase "Nature Fusion" meant that the product contained both natural and synthetic ingredients. The consumer plaintiff filed a lawsuit alleging violation of the UCL, FAL and CLRA. The company (defendant) moved to dismiss plaintiff's complaint for failure to state a claim. The trial court held that plaintiff's complaint did not "allege sufficient facts to show that a reasonable consumer would be deceived by defendant's labeling." Plaintiff appealed. On appeal, the Ninth Circuit noted that plaintiff's claims under the UCL, FAL, and CLRA are governed by the "reasonable consumer" standard which requires consumers to shows that members of the public are "likely to be deceived." Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). The important question under the "reasonable consumer" test is whether the product labeling and ads promoting the products have a meaningful capacity to deceive consumers. The Court of Appeals first analogized the issue to a recent case where they held that the label "100% New Zealand Manuka Honey" was not likely to deceive a reasonable consumer into believing that the product contained only honey from the Manuka flower. Moore v. Trader Joe's Co., 4 F.4th 874 (9th Cir. 2021). Similar to Trader Joe's, the Ninth Circuit here noted that the term "Nature Fusion" is not inherently deceptive but there is ambiguity as to what "Nature Fusion" means in the context of its packaging. However, the Ninth Circuit held, this ambiguity did not arise to "deception" because the survey relied upon by the plaintiff did not allow the consumers to view the back ingredient list to derive the meaning of "Nature Fusion." Although the back ingredient list does not allow a defendant to deceive a consumer on the front label and rectify the deception on the back ingredient list, the front label must be unambiguously deceptive for a defendant to be precluded from insisting that the back label be considered together with the front label. Ebner v. Fresh, Inc., 838 F.3d at 966. (9th Cir. 2016). In analyzing this issue, the Court noted that the "Nature Fusion" label did not promise that the product is wholly natural. Although the front label represented that something about the product bears a relationship to nature, the front label did not make any affirmative promise about what proportion of the ingredients are natural. Instead, "Nature Fusion" could mean any of a number of things: that the products are made with a mixture of natural and synthetic ingredients, that the products are made with a mixture of different natural ingredients, or something else entirely. The consumer argued that the ingredients list included many ingredients that are synthetic and that a reasonable consumer would not think are natural. The ingredient list clarifies that the products contain natural and synthetic ingredients. As a result, the Court of Appeals held that when a front label is ambiguous, the ambiguity can be resolved by reference to the back label. Although the product labeling was considered ambiguous, the back label effectively addressed this ambiguity. Next, the Ninth Circuit addressed the survey commissioned by plaintiff's counsel and relied upon in plaintiff's complaint. Notably, the Court noted, the participants of the survey did not view the back label of the products. Additionally, the survey showed that the survey respondents were split nearly 50/50 on the question of whether the products contain a mixture of natural and nonnatural ingredients, or if they instead contain all or substantially all natural ingredients. The Court of Appeals noted that this further supported that the products are ambiguous not misleading. In conclusion, the Ninth Circuit held that after reviewing the front and back label, no reasonable consumer would think that the products are either completely or substantially natural. Based on the forgoing, the survey results included in the consumer's complaint did not plausibly show the term "Nature Fusion" is misleading. Accordingly, the Ninth Circuit affirmed the trial court's dismissal. [GN] QANTAS AIRWAYS: Faces Class Suit Over COVID-19 Cancelled Flights ---------------------------------------------------------------- Sophie Venz and Johanna Leggatt of Forbes Advisor report that Australia's largest airline, Qantas, is facing a class action lawsuit due to flights cancelled during the Covid-19 pandemic and its reliance on vouchers and travel credits for affected consumers. The class action comes after Qantas reported a full-year underlying profit after tax of $2.47 billion, stating revenue had grown to $19.8 billion from $9.1 billion last year. "These results show a substantial turnaround in both our finances and service over the past year," chief executive Alan Joyce said, neglecting to comment on the service provided during the pandemic that has led to the class action lawsuit. Echo Law lodged the class action against Qantas in the Federal Court on August 21, 2023 alleging that the majority of customers, estimated to be in the hundreds of thousands, were entitled to cash refunds rather than flight credits or vouchers when the flights were cancelled. Qantas has rejected the claims—telling Nine news it told customers they were entitled to a refund—but the Melbourne-based specialist law firm is still urging Australians affected by cancelled Qantas flights to join the class action. Here's what the Qantas class action entails, including how you can join and the potential compensation you could receive. Qantas Class Action Explained When the pandemic hit and travel restrictions were put in place, Qantas was forced to cancel a staggering $2 billion in flights. Qantas customers who held tickets for affected flights–whether domestic or international–were entitled to receive a full cash refund for those cancellations, according to Australian consumer law. However, instead of issuing such refunds, Qantas chose to provide the majority of its customers with travel credits or vouchers. As Echo Law explains, these vouchers were subject to "significant restrictions" and would expire if not used. Further, these credits were of "much lower value" to the customers compared to the value of the refunds to which they were entitled. In a statement on its website, Echo Law said that by acting in this manner, Qantas was able to "enjoy significant financial benefits" at the expense of its customers. The specific allegations against Qantas (as per the Echo Law website) include that the airline: Breached its contracts with customers by failing to provide cash refunds for cancelled flights (or failing to provide refunds in a timely manner) and instead providing travel credits; -- Engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law by misleading customers as to their rights on flights cancelled due to Covid-19; Unlawfully benefited from customers by holding a very significant amount of customer funds (around $2 billion) for years that ought to have been refunded; and -- Engaged in unconscionable conduct in contravention of the Australian Consumer Law. "We consider that affected Qantas customers are entitled to compensation, even if they have used the credits they were issued," the law firm said. In addition to seeking refunds for Qantas customers and compensation for the difference between the credit voucher value and the cash refund they were entitled to, the claim also seeks to recover an award for "interest and for consequential losses". Echo Law explains these consequential losses to be compensation for loss of use of money, which "recognises the impact on customers who were deprived of a significant sum of money for a lengthy period of time". Do I Have to Accept a Voucher Instead of a Refund? There are different circumstances in which refunds and credit vouchers can be issued. Often, this depends on the fair trading rules of the state in which you made a purchase, along with other factors such as the price, the type of purchase and the time since the purchase was made. When it comes to the Qantas cancelled flights, Echo Law alleges that customers were entitled to a refund. The firm says the airline's choice of credit vouchers was not fair practice according to consumer law, hence the class action. How To Join Qantas Class Action To join the class action against Qantas, you will need to register online. You will be required to enter personal information, including your name, mobile number and address before answering a series of questions. The questions include how many times you were issued with Qantas or Jetstar travel credits for flights cancelled due to Covid-19 travel restrictions, and specific details of both the flight and the cancellation. This includes how you paid for the flight, the date it was supposed to depart, the date the flight was cancelled, the value of the credit voucher you received and more specific details. Echo Law informs those joining the class action that if they are unsure of these details relating to the flights, they should simply provide as much information as they can. The entries can be revised at a later date. Once you have filled out all of the information related to each travel credit you received, you will be asked to provide copies of any documents evidencing the flight cancellations and travel credits, such as emails from Qantas. Who Can Participate in the Qantas Class Action? Any individual who held tickets for Qantas flights that were cancelled due to travel restrictions put in place during the pandemic may be eligible to participate in the Qantas class action. While the claim is in relation to Qantas flights, customers who held Jetstar tickets that were cancelled are also invited to register for the class action via the Echo Law website. Echo Law explains that the class action is an "open class basis" meaning that if you are eligible, you will be automatically included as a group member in the class action. Does It Cost Money to Join the Class Action Against Qantas? It does not cost any money to participate in the class action. The proceeding is supported by third-party litigation funding, Echo Law explains, which means you will not have to pay any money out of your own pocket for legal expenses. You will also not be responsible to pay any costs in the event that the class action is unsuccessful. If the class action is successful and financial compensation is recovered from the airline, the legal costs payable will be deducted from the amount of compensation recovered for group members, Echo Law explains. "These costs will never exceed the amount of compensation to which you may otherwise become entitled and will be assessed by the Court to ensure any legal costs deducted from the amount of any compensation are fair and reasonable," the law firm says. Qantas' History With Consumer Law This isn't the first time Qantas has come under scrutiny for an issue related to refunds and consumer law. In December 2017, the ACCC published a report that looked into different Australian airlines issuing ‘no refund' statements. In relation to Qantas, the ACCC expressed particular concern that the airline informed customers that no refunds were available on its 'red e-deal' fare type, and that flight services were not subject to any statutory guarantees or warranties–including those as specified under Australian Consumer Law. At the time, Qantas addressed ACCC's concerns by cooperating with the commission and amending its terminology online. In regards to the current class action, Qantas has denied all of Echo Law's claims. Note: Consumers can contact Echo Law to discuss the class action by sending an email to enquiries@echolaw.com.au or calling Echo Law on (03) 7046 3565. [GN] QUEBEC: Sued Over Forced Sterilisation of Indigenous Women ---------------------------------------------------------- Scottish Legal News reports that indigenous women who were forcibly sterilised under Canada's eugenics programme have been granted permission to bring a first-of-its-kind class-action lawsuit in the province of Quebec. Justice Lukasz Granosik, of the Superior Court of Quebec, ruled that litigants UT and MX can bring the suit on behalf of all Atikamekw women forcibly sterilised from 1980 onwards and their families, The Guardian reports. Research published last year suggests there were at least 22 cases of forced sterilisation of indigenous women in Quebec from 1980 to 2019, though not all of these victims were of Atikamekw origin. UT and MX allege that they both underwent a forced tubal ligation at a local hospital after giving birth. Both each gave birth five times at the hospital. Their application named three doctors and the hospital itself as plaintiffs, but only the case against the doctors will go ahead. In his judgment, Judge Granosik said: "It is quite possible to argue that sterilising a woman without her free and informed consent constitutes a civil fault, ethical misconduct, a criminal act and a violation of [Quebec's] charter of human rights and freedoms." Similar class action lawsuits have been brought in four other Canadian provinces -- Saskatchewan, Manitoba, Alberta and British Columbia -- but are at an earlier stage. [GN] REGAL REXNORD: Faces Perez Class Suit Over Defective Controllers ---------------------------------------------------------------- Corrado Rizzi of ClassAction.org reports that a proposed class action alleges the Thomson Power Systems TSC900 Transfer Switch Controller is defective in that it will eventually fail to detect when utility power has been restored to a home or business and automatically stop a generator as intended. The 51-page complaint against Regal Rexnord Corporation and Thomson Technology Power Systems summarizes that although the TSC900 can automatically turn a generator on when utility power has failed, it fails to reliably turn that generator off when power is restored, essentially performing only half of its designed functions. Per the case, the companies have "affirmatively misled consumers" by representing the TSC900's core function of operating reliably and without a generator owner's assistance. The lawsuit claims that rather than fix the defect, Regal and Thomson have continued to sell the faulty TSC900 switch without informing consumers of the problem, much less correcting it. "In doing so, the Defendant released various firmware updates and news bulletins addressing symptoms of the defect, spoke with customers who experienced TSC900 failures, and ultimately removed the TSC900 from circulation in 2023 -- without ever disclosing the defect," the filing says. When a primary power source, such as utility power, fails and a generator is needed, the TSC900 is designed to automatically handle the switch between the two, the suit shares. Per the case, the TSC900 is meant to detect the power failure, transfer the load to the generator and connect the generator power to the structure. When utility power comes back, the complaint continues, the TSC900 is supposed to then transfer the load back to the main power source and stop the generator from running. However, consumers nationwide have complained that the automatic transfer switch control essentially does only half the job, the lawsuit says. "These consumers were left paying to inspect, diagnose, and replace defective TSC900s when the product failed, " the case claims, alleging the plaintiffs, two Florida consumers, collectively purchased "six TSC900s because their TSC900s repeatedly failed -- often in the matter of months.” According to the lawsuit, the supercapacitors with which the TSC900s are equipped -- which provide a backup power source to run the switch itself during the time delay between utility power loss and a generator kicking on -- do not function properly. This is because they are “inevitably exposed to over-voltage” given their placement in a series, which "produce[s] total voltage output levels that exceed each individual supercapacitor's individual maximum power rating," the filing shares. When this occurs, the case says, an "acidic and corrosive solution leaks from the supercapacitors" can damage the control unit that senses voltage from utility power and a generator. "The result of this damage is that the switch control unit cannot detect when utility power is restored and thus cannot initiate the transfer from the generator back to the utility power source," the suit summarizes. The complaint states that automatic transfer switches are "not only recommended but also essential to prolonging the life of a generator and reducing costs for the consumer" particularly because a generator left on for a prolonged period of time can overheat or break down. Moreover, switches such as the TSC900 are essential for safety reasons, especially if no one is available to physically turn a generator on and off, the filing says. The lawsuit looks to cover all persons in the United States and Puerto Rico who bought one or more TSC900s made by Regal or Thomson, or any of their subsidiaries or affiliates, within the applicable statute of limitations period. [GN] RES-CARE INC: Fails to Protect Personal Info, Deas Alleges ---------------------------------------------------------- SHADAI DEAS, individually and on behalf of all others similarly situated, Plaintiff v. RES-CARE, INC., D/B/A BRIGHTSPRING HEALTH SERVICES, Defendant, Case No. 5:23-cv-00308-CAR (M.D. Ga., Aug. 21, 2023) arises from a massive March 2023 cyberattack on the computer system network of Defendant resulting in a breach of employees' documents and information including, but are not limited to employee names, employee social security numbers, employee addresses and date of birth. The Plaintiff and thousands of Class Members suffered ascertainable losses in the form of financial losses resulting from identity theft, out-of-pocket expenses, the loss of the benefit of their bargain, and the value of their time reasonably incurred to remedy or mitigate the effects of the attack as a result of Defendant's data breach. Allegedly, the Defendant's failure to implement adequate and reasonable cyber-security procedures and protocols necessary to protect Plaintiff's private information directly resulted in the data breach. The Plaintiff seeks to remedy these harms on behalf of herself and all similarly situated individuals whose personal identifiable information was accessed during the data breach and, as such, brings this action against Defendant for negligence, breach of implied contract, unjust enrichment, and declaratory relief, seeking redress for Defendant's unlawful and reckless conduct. The Plaintiff is a former employee of Defendant working sporadically from 2020-2022 at Defendant's Macon, Georgia office. Res-Care, Inc., d/b/a BrightSpring Health Services, Inc., is a provider of comprehensive home and community-based health services.[BN] The Plaintiff is represented by: Brent Kaufman, Esq. Blake G. Abbott, Esq. Paul J. Doolittle, Esq. POULIN | WILLEY ANASTOPOULO, LLC 32 Ann Street Charleston, SC 29403 Telephone: (803) 222-2222 E-mail: brent.kaufman@poulinwilley.com blake.abbott@poulinwilley.com paul.doolittle@poulinwilley.com REWARD ZONE: Dismissal of Trim's Claim for TCPA Violation Upheld ---------------------------------------------------------------- In the case, LUCINE TRIM, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. REWARD ZONE USA LLC; DOES, 1-10 inclusive, Defendants-Appellees, Case No. 22-55517 (9th Cir.), the Court of Appeals for the Ninth Circuit affirms the district court's grant of Reward Zone's motion to dismiss the second cause of action. Plaintiff Trim appeals from the district court's partial judgment granting a motion to dismiss in favor of Reward Zone, in a putative class action lawsuit brought under the Telephone Consumer Protection Act (TCPA). In Trim's second cause of action, which is the subject of this opinion, Trim alleged a violation of the TCPA, 47 U.S.C. Section 227, because she received at least three mass marketing text messages from Reward Zone which utilized "prerecorded voices." On April 14, 2020, Trim received a text message from an unknown number providing a link directing her to a promotional website by Reward Zone. On this website, Reward Zone entices consumers to complete "Deals" to claim prizes. Although Trim was never a customer of Reward Zone and never provided her cell number to Reward Zone or its lead vendor, she received at least two more similar text messages from Reward Zone soliciting her to complete "Deals" within a 12-month period. Trim represents and is a member of a class of: "all persons within the United States who received any unsolicited text message sent using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice from Reward Zone, which text message was not made for emergency purposes or with the recipient's prior express consent within the four years prior to the filing of the Complaint through the date of class certification." In Trim's first cause of action, she alleged that the text messages were sent using an ATDS and thus violated the TCPA.1 In her second cause of action, she alleged that the text messages constituted "prerecorded voice messages" and, therefore, also violated the TCPA on that ground. To support this claim, Trim argued that, because one definition of "voice" in Meriam Webster's dictionary is "an instrument or medium of expression," the automatic messages sent to Trim (which were drafted before being sent), constituted "prerecorded voices" as prohibited by 47 U.S.C. Section 227(b)(1)(A). The initial complaint was filed by Tracy Eggleston and Monica Abboud in January 2020. Before Reward Zone filed an answer, the complaint was amended twice. First, on April 20, 2020, Trim was added as an additional class representative to the lawsuit in the Amended Complaint. Next, the Second Amended Complaint was filed in June 2020. In that complaint, Eggleston and Abboud decided not to pursue their claims, leaving only Trim as a class representative. In September 2020, the parties filed a joint stipulation to stay the case pending the Supreme Court's resolution of Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), which the district court granted. In April 2021, about a week after the Supreme Court decided Duguid, the district court ordered Trim to show cause as to why the Second Amended Complaint should not be dismissed considering the ruling. Trim believed that an amendment would cure the potential pleading deficiencies and requested leave to file a Third Amended Complaint in November 2021, which the district court granted. Trim then promptly filed the Third Amended Complaint, and, in December 2021, Reward Zone filed its motion to dismiss all of Trim's claims given their failures to state claims. The district court made a ruling on Jan. 28, 2022. As to the first cause of action (which alleged a violation of 47 U.S.C. Section 227(b)(1)(A) because Reward Zone's text messages used an ATDS), the district court held that Trim failed to plead the use of an ATDS. As to the second cause of action (which alleged a violation of Section 227(b)(1)(A) on the alternative ground that the text messages were "prerecorded voice messages"), the district court held that the text messages did not use voices and therefore did not violate the applicable section of the statute. Because Reward Zone's text messages did not involve an ATDS or an artificial or prerecorded voice, the district court dismissed the claims under Section 227(b) (causes of action one and two) with prejudice. In contrast, the district court dismissed causes of action three and four with leave to amend. In February 2022, Trim filed a Fourth Amended Complaint. Later that same month, Reward Zone filed an answer. Trim then filed an unopposed motion to certify for appeal her Section 227(b) claims (her first two causes of action) pursuant to Rule of Federal Civil Procedure 54(b), which allows a district court to certify an issue for immediate appeal as a partial judgment when multiple claims or parties are involved in a suit, a final decision as to one or more claims has been rendered, and the court finds there is no just reason for delay. The district court found that these factors weighed in favor of allowing an immediate appeal of the first two causes of action, granted Trim's motion, and entered partial judgment for Reward Zone on these causes of action. Trim timely filed a notice of appeal to the Ninth Circuit court. The Ninth Circuit holds that Congress clearly intended "voice" in 47 U.S.C. Section 227(b)(1)(A) to encompass only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound. It explains that the ordinary meaning of "voice" when the TCPA was enacted was a sound formed in or emitted from the human larynx in speaking. Other definitions also show that the ordinary meaning of voice relates only to audible sound. Based on the record, the Ninth Circuit concludes that the text messages did not use prerecorded voices under the TCPA, because they did not include audible components. Its conclusion follows from the statutory context of the TCPA, and the ordinary meaning of voice, which show that Congress used the word voice to include only an audible sound, and not a more symbolic definition such as an instrument or medium of expression. Therefore, the Ninth Circuit affirms. A full-text copy of the Court's Aug. 8, 2023 Opinion is available at https://tinyurl.com/yc8n5swh from Leagle.com. Todd M. Friedman -- tfriedman@toddflaw.com -- Adrian R. Bacon -- abacon@toddflaw.com -- and Thomas E. Wheeler -- twheeler@toddflaw.com -- Law Offices of Todd M. Friedman, Woodland Hills, California, for the Plaintiff-Appellant. Neil Asnen -- nasnen@kleinmoynihan.com -- Klein Moynihan Turco LLP, New York, New York; Jay T. Ramsey -- jramsey@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, Los Angeles, California, for the Defendant-Appellee. REWARD ZONE: Ninth Cir. Affirms Dismissal of Count I in Trim Suit ----------------------------------------------------------------- In the case, LUCINE TRIM, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. REWARD ZONE USA LLC; DOES, 1-10. inclusive, Defendants-Appellees, Case No. 22-55517 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the district court's partial judgment granting a motion to dismiss in favor of the Defendant. Trim appeals from the district court's partial judgment granting a motion to dismiss in favor of Reward Zone, in a putative class action lawsuit brought under the Telephone Consumer Protection Act (TCPA). Because the district court certified its interlocutory order pursuant to Federal Rule of Civil Procedure 54(b), the Ninth Circuit has jurisdiction under 28 U.S.C. Section 1291. It reviews de novo a district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Ninth Circuit affirms on the first cause of action. It finds that Trim's argument in that cause of action is foreclosed by its decision in Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022). In Borden, the Ninth Circuit held that a system constitutes an autodialer regulated by the TCPA only if it generates and dials random or sequential telephone numbers. Because Trim concedes that the subject dialing equipment did not generate telephone numbers using a random or sequential number generator, Reward Zone's text messages were not sent via use of an autodialer in violation of the TCPA. A full-text copy of the Court's Aug. 8, 2023 Memorandum is available at https://tinyurl.com/4ytp6e3f from Leagle.com. RIVIAN AUTOMOTIVE: Bid for Arbitration in Sexual Abuse Suit Denied ------------------------------------------------------------------ Patrick Dorrian of Bloomberg Law reports that Rivian Automotive LLC was denied arbitration of a female employee's claims that she and other women were subjected to sexual harassment. The ruling on August 21, 2023 is the latest to apply the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act to keep a sexual harassment plaintiff's lawsuit in court despite the existence of an agreement requiring them to arbitrate job discrimination disputes. The March 2022 law, which amended the Federal Arbitration Act, also means the electronic vehicle manufacturer can't enforce the class-action waiver provision of its arbitration agreement against former battery team member Angela Betancourt. [GN] ROHM SEMICONDUCTOR: Settles Class Suit Over Price Fixing for $42M ----------------------------------------------------------------- National Trending Staff of DH Canada reports that a combination of class-action settlement proposals has been reached totalling $42,165,000, and Canadians could get a chunk of the finalized money. According to a new release from law firm Foreman & Company, the class actions allege price-fixing and related conduct on behalf of Canadians who bought electrolytic and film capacitors and products containing electrolytic and film capacitors. "An 'electrolytic capacitor' and a 'film capacitor' are two types of electronic components used in an electrical circuit to store a charge," reads the release. These items are found inside electronics like TVs, home appliances, smartphones, and gaming consoles, among other things. The settling defendants in the case are Rohm, Fujitsu, Kemet, Nichicon, Nippon Chemi-Con Corporation and United Chemi-Con, Inc. (NCC/UCC). Earlier in July, Rohm, Fujitsu, Kemet, and Nichicon had collectively agreed to pay another $21,940,000. NCC/UCC is the latest to join the case, agreeing to pay $20,900,000 for the benefit of electrolytic settlement class members and $400,000 for the benefit of film settlement class members. This brings the total settlement amount to $42,165,000. The law firm handling the case says these settlements are not admissions of liability, fault, or wrongdoing but are compromises of disputed claims. To be eligible as a member in this class action, you must be a Canadian resident. You must have purchased "an aluminum and tantalum electrolytic capacitor or a product containing an aluminum and tantalum electrolytic capacitor between September 1, 1997, and December 31, 2014, or have purchased a film capacitor or a product containing a film capacitor between January 1, 2002, and December 31, 2014." You likely purchased something containing these capacitors during the defined periods, but don't get too excited yet -- you might have to wait a little for the money. If you qualify as a member, the settlement money will not be given to you immediately since the case is still awaiting court approval. "The Court must now determine whether the settlement is fair, reasonable and in the best interests of Electrolytic Settlement Class Members," says Foreman & Company. Motions to approve the settlements are scheduled to be heard at the Ontario Superior Court of Justice on September 28, 2023, the Supreme Court of BC on October 13, 2023, and the Superior Court of Quebec on September 26, 2023. The Ontario and Quebec hearings will be held via virtual conference, and the BC one will be held in person. While the BC and Quebec actions only cover the respective provinces, the Ontario action covers the rest of Canada. [GN] ROTHCO INC: Angeles Files ADA Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against Rothco Inc. The case is styled as Jenisa Angeles, on behalf of herself and all others similarly situated v. Rothco Inc., Case No. 1:23-cv-07475 (S.D.N.Y., Aug. 23, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Rothco -- https://www.rothco.com/ -- is America's foremost wholesale supplier of military, tactical and outdoor products.[BN] The Plaintiff is represented by: Patrick William Gallagher, Esq. MIZRAHI KROUB LLP 225 Broadway, Ste. 39th Floor New York, NY 10007 Phone: (212) 595-6200 Email: pgallagher@mizrahikroub.com SAM REED: AAERS Securities Suit Over SEC Misfiling Tossed --------------------------------------------------------- TreeHouse Foods, Inc. disclosed in its Form 10-Q fiscal year ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that that a shareholder class action "City of Ann Arbor Employees' Retirement System v. Reed, et al.," Case No. 2019-CH-06753 (June 3, 2019, Ill. Cir.) was consolidated and was dismissed in its entirety with prejudice on March 15, 2023. The plaintiffs filed a notice of appeal on March 16, 2023, and they filed the record on appeal on May 25, 2023, which is being responded to pursuant to a briefing schedule set by the appellate court. Sam K. Reed is the former president/CEO at Treehouse Foods Inc. Said action asserted state law claims for breach of fiduciary duty, unjust enrichment and corporate waste. The company, as nominal defendant, and certain of its directors, officers and former directors and officers are parties to the suit that alleges that TreeHouse, under the authority and control of the individual defendants: (i) made certain false and misleading statements regarding the Company's business, operations, and future prospects; and (ii) failed to disclose that (a) the company's private label business was underperforming; (b) the company's Flagstone Foods business was underperforming; (c) the company's acquisition strategy was underperforming; (d) the company had overstated its full-year 2016 guidance; and (e) TreeHouse's statements lacked reasonable basis. The complaints allege, among other things, that these actions artificially inflated the market price of TreeHouse common stock and resulted in harm to the company. On August 26, 2022, plaintiffs in the consolidated case filed a second amended complaint TreeHouse Foods, Inc. manufactures and distributes private label food and beverages in North America, primarily shelf stable and share similar customers and distribution. SAM REED: Wells Securities Suit Over SEC Filings Dismissed ---------------------------------------------------------- TreeHouse Foods, Inc. disclosed in its Form 10-Q fiscal year ended June 30, 2023, filed with the Securities and Exchange Commission on August 3, 2023, that a shareholder class action "Wells v. Reed, et al.," Case No. 2016-CH-16359 (December 22, 2016, Ill. Cir.) was consolidated and was dismissed in its entirety with prejudice on March 15, 2023. The plaintiffs filed a notice of appeal on March 16, 2023, and they filed the record on appeal on May 25, 2023, which is being responded to pursuant to a briefing schedule set by the appellate court. Sam K. Reed is the former president/CEO at Treehouse Foods Inc. Said action asserted state law claims for breach of fiduciary duty, unjust enrichment and corporate waste. The company, as nominal defendant, and certain of its directors, officers and former directors and officers are parties to the suit that alleges that TreeHouse, under the authority and control of the individual defendants: (i) made certain false and misleading statements regarding the Company's business, operations, and future prospects; and (ii) failed to disclose that (a) the company's private label business was underperforming; (b) the company's Flagstone Foods business was underperforming; (c) the company's acquisition strategy was underperforming; (d) the company had overstated its full-year 2016 guidance; and (e) TreeHouse's statements lacked reasonable basis. The complaints allege, among other things, that these actions artificially inflated the market price of TreeHouse common stock and resulted in harm to the company. on August 26, 2022, plaintiffs in the consolidated Wells case filed a second amended complaint TreeHouse Foods, Inc. manufactures and distributes private label food and beverages in North America, primarily shelf stable and share similar customers and distribution. SAN FRANCISCO HILTON: Loses Summary Judgment Bid vs Gonzalez ------------------------------------------------------------ In the class action lawsuit captioned as CARLOS GONZALEZ, et al., v. SAN FRANCISCO HILTON, INC., Case No. 4:14-cv-01523-JSW (N.D. Cal.), the Hon. Judge Jeffrey S. White entered an order denying motion to amend, denying motion for summary judgment, and denying motion to strike. The Court finds that Defendant has failed to meet its burden to demonstrate that there are no disputed facts regarding the understanding of a reasonable customer of the service charge. Accordingly, the Court denies the motion for summary and finds that a jury will have to decide what an objectively reasonable customer would have understood the mandatory service charge to be after viewing all of the evidence. The Plaintiffs, current and former banquet servers and bussers at the Hilton Hotel, sue pursuant to California Labor Code section 351 which allocates gratuities directly to employees in the service industry. The Plaintiffs challenge Defendants' failure to remit the total proceeds of the service charges collected at banquets and other large events held at the Hotel to those employees providing the food and beverage service for these events from January 6, 2010, through the present. A copy of the Court's order dated Aug. 8, 2023, is available from PacerMonitor.com at https://bit.ly/45pt8X6 at no extra charge.[CC] SITEL OPERATING: Pherigo Suit Seeks Conditional Class Certification ------------------------------------------------------------------- In the class action lawsuit captioned as MERCEDES PHERIGO, et al., v. SITEL OPERATING CORPORATION et al., Case No. 1:23-cv-00516-CFC (D. Del.), the Plaintiffs ask the Court to enter an order conditionally certifying action and order notice to issue to the potential collective members. In the wake of a company-wide payroll outage beginning December 2021, Foundever initially resorted to estimating its employees' hours instead of paying them for the actual time they worked, including overtime and shift differentials, and then implemented systems which still did not correctly track time or pay employees for the hours they worked. As a result, the wages these employees were owed were -- at a minimum -- delayed for months or remain unpaid, the lawsuit alleges. But a payroll outage does not excuse Foundever's non-compliance with the Fair Labor Standards Act (FLSA). Foundever's decision to initially ignore actual hours worked by affected employees, as well as its subsequent failure to implement systems to correctly pay its employees for their time, including overtime, flagrantly violates the FLSA, the lawsuit adds. Mercedes Pherigo, Tierra Hunt, Shrine Williams, and Kimberly Wright worked for Foundever as non-exempt hourly workers during the payroll outage. The Plaintiffs seek to allow their coworkers—other nonexempt Foundever workers who were subject to the same alleged illegal pay practices -- to receive notice of this collective action and have the opportunity to join it to recover any backwages they may still be owed along with liquidated damages for the failure to make these payments on time. Sitel provides business process outsourcing services. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/47Ouqwj at no extra charge.[CC] The Plaintiffs are represented by: Patrick C. Gallagher, Esq. JACOBS & CRUMPLAR, P.A. 750 Shipyard Drive, Suite 200 Wilmington, DE 19801 Telephone: (302) 656-5445 Facsimile: (302) 656-5875 E-mail: pat@jcdelaw.com - and - Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 8151 Peters Road, Suite 4000 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3013 E-mail: AFrisch@forthepeople.com - and - Matthew S. Parmet, Esq. PARMET PC 2 Greenway Plaza, Suite 250 Houston, TX 77046 Telephone: (713) 999-5228 E-mail: matt@parmet.law SPIRIT AIRLINES: Settles Bag Fee Class Action for $8.25 Mil. ------------------------------------------------------------ Brendan Pierson, writing for Reuters, reports that Spirit Airlines Inc (SAVE.N) has agreed to pay up to $8.25 million to settle a class action lawsuit by passengers who said the low-cost carrier blindsided them with surprise carry-on bag fees on tickets bought through third-party travel services. Lawyers for the passengers disclosed the deal in a motion late on Aug. 23 in federal court in Brooklyn and asked a judge to approve it, saying it "represents a fair compromise." The class includes first-time Spirit fliers who booked their flights through Expedia, Travelocity, Kiwi, CheapOair, CheapTickets or BookIt between August 2011 and May 2017, when the lawsuit was filed. Eligible travelers who seek refunds under the deal will get up to 75% of their fees back, though it could be lower depending on the total amount of refunds sought by all class members. The $8.25 million maximum payout will include attorneys' fees, according to the motion. Spirit and lawyers for the plaintiffs did not immediately respond to requests for comment. Like other low-cost airlines, Miramar, Florida-based Spirit relies on added fees to help make up for lower base fares. Plaintiffs in the 2017 lawsuit accused the carrier of advertising misleading low prices on travel websites that concealed the "gotcha" bag fees travelers would have to pay at the airport. They said these fees were sometimes as much as the tickets themselves. The plaintiffs originally sought $100 million in punitive damages, though that was dropped from a later version of the lawsuit. [GN] STAR MARKET: Faces Menin Class Suit Over Sending Marketing Texts ---------------------------------------------------------------- Susannah Sudborough of Boston.com reports that a Massachusetts woman has filed a class action lawsuit against Star Market for allegedly sending her marketing text messages after she opted out. The lawsuit was filed on August 22, 2023 on behalf of Linnea Menin in federal court in Boston. It seeks statutory damages on behalf of Menin and anyone who received a marketing text message from the New England grocery store chain after opting out during the last four years. "Through this action, Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals," the lawsuit reads. Under the Telephone Consumer Protection Act, companies must not only give people the option to opt out of marketing text messages, but are not allowed to contact them that way again if they opt out. A company can be ordered to pay up to $1,500 per illegal text. Star Market did not respond to a request for comment on August 23, 2023 evening. The grocery store chain is owned by Boise-based supermarket company Albertsons Inc. The lawsuit includes screenshots of text messages that are described in the lawsuit. They show that Menin first texted "STOP" to Star Market's automated marketing text message number on Jun. 23. They also show a reply that acknowledges that she opted out. But then, the screenshots show, a week later, the company allegedly sent her another text message ad from the same number. The lawsuit claims Star Market sent her marketing texts three times after she tried to opt out. "As demonstrated by the above screenshots, Defendant does not honor consumer requests to opt-out of text message solicitations," the lawsuit reads. Additionally, the lawsuit claims, the company didn't provide Menin with any other way to opt out of the text messages. The lawsuit speculates that the problem on Star Market's end is that it either doesn't have standard policies and procedures for text message marketing, doesn’t provide adequate training to text message marketers, or doesn’t maintain an internal do-not-call list — which is required by law. "Defendant's text message spam caused Plaintiff and the Class members harm, including violations of their statutory rights, trespass, annoyance, nuisance, invasion of their privacy, and intrusion upon seclusion," the lawsuit reads. The lawsuit estimates that thousands of people may have received marketing text messages from Star Market after opting out in the last few years. In 2012, Papa John's faced a similar lawsuit after a marketing company it hired sent 500,000 marketing text messages on its behalf to customers who never signed up to receive them. [GN] SUFFOLK COUNTY, NY: Court Junks Butler Bid for Summary Judgment --------------------------------------------------------------- In the class action lawsuit captioned as MACK BUTLER, DESHAUN SIMS, CLYDE LOFTON, PAUL ALVER, KEVIN KING, and RICKEY LYNCH, on behalf of themselves and all others similarly situated, v. SUFFOLK COUNTY, Case No. 2:11-cv-02602-JS-ST (E.D.N.Y.), the Hon. Judge Joanna Seybert entered an order that the Plaintiffs' summary judgment motion is denied, and the County's cross-motion is also denied. The Court further ordered that before October 6, 2023, counsel are to meet and confer in good faith in order to propose how best to proceed with this Action; while the parties are encouraged to formulate a consensual plan, the Court will consider different proposed courses of action. The parties' proposal(s) is(are) to be filed by no later than October 13, 2023. The Plaintiff's alternative notice was approved, which excluded from the Class definition "all persons who were or have been housed exclusively in the facility that opened in Yaphank in 2013." First, there is the Injunctive Class, pursuant to which class members are seeking injunctive and declaratory relief and which is composed of: "All persons who, now or at any time in the future, are or will be detainees or prisoners in the custody of the Suffolk County Sheriff's Department and housed in the Suffolk County Correctional Facilities located in Riverhead, New York and Yaphank, New York. The Plaintiffs Butler, Sims, Lofton, and Alver were accepted as class representatives for the Injunctive Class. Second, there is the Damages Class, pursuant to which class members are seeking monetary relief and which is composed of: "All persons who are or were detainees or prisoners in the custody of the Suffolk County Sheriff's Department and housed in the Suffolk County Correctional Facilities located in Riverhead, New York and Yaphank, New York, and who were or will be released from the SCCF on or after April 5, 2009. The Plaintiff King was accepted as the class representative for the Damages Class. Defendant Suffolk County, one of four counties located on Long Island in New York, operates the SCCF through the Suffolk County Sheriff's Office. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at at no extra charge.[CC] The Plaintiffs are represented by: Daniel H.R. LaGuardia, Esq. John F. Cove Jr., Esq. Alexis Scott Berkowitz, Esq. Edward Garth Timlin, Esq. Elizabeth Francoise Johnson, Esq. George B. Adams, Esq. Melissa Jane Godwin, Esq. Sheila Jain, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 - and - Anthony J. Licatesi, Esq. RUBIN & LICATESI PC 591 Stewart Avenue Garden City, NY 11530 The Defendant is represented by: Brian C. Mitchell, Esq. Arlene S. Zwilling, Esq. SUFFOLK COUNTY ATTORNEY'S OFFICE H. Lee Dennison Building, Fifth Floor 100 Veterans Memorial Highway Hauppauge, NY 11788 SYNAGRO WOONSOCKET: Faces Doire Suit Over Facility's Noxious Odors ------------------------------------------------------------------ Walter Wright Jr. of JD Supra reports that Plaintiffs Maurice Doire and Joshua Hoye, on behalf of themselves and all others similarly situated, filed a Class Action Complaint and Jury Demand ("Complaint") on July 26th in the United States District Court of Rhode Island against Synagro Woonsocket, LLC, ("SW") and Jacobs Engineering Group, Inc., ("JEG") for alleged damages associated with a Woonsocket, Rhode Island, wastewater treatment plant ("WWTP") and sewage sludge incinerator ("Incinerator") that they are stated to operate and maintain. See Case No. 1:23-cv-310. The Plaintiffs are alleged to either reside or have resided in Woonsocket, Rhode Island. JEG is alleged to operate and maintain the WWTP. SW is stated to operate and maintain the Incinerator. The Complaint alleges that the Facilities emit odors into the ambient air outside of the Facilities' boundaries. Such alleged odors are stated to have caused: Serious and substantial discomfort and inconvenience that have interfered with the use and enjoyment of Plaintiffs' properties Property damage Adverse effects to the value of Plaintiffs' properties Causes of action alleged in the Complaint include: Private nuisance Public nuisance Negligence The Complaint requests: Certification of the proposed Class Designation of the two individuals as representatives of the proposed Class Award of compensatory and exemplary relief in addition to any attorneys' fees and costs Injunctive relief not inconsistent with Defendants' federally and state enforced air permits An Order holding that entrance of the aforementioned noxious odors upon Plaintiffs' properties constitutes a nuisance An Order holding that entrance of the aforementioned noxious odors upon Plaintiffs' properties was done by Defendants' negligence [GN] TC HEARTLAND: Prescott Sues Over Mislabeled Splenda Products ------------------------------------------------------------ Corrado Rizzi of ClassAction.org reports that a proposed class action alleges certain Splenda sweeteners and drinks are not as helpful at managing diabetes as advertised since their main ingredient, a sugar alternative, has been shown to "cause and worsen" Type 2 diabetes, among other ill effects. The 57-page case says that although the labels of a number of Splenda shakes and sweeteners tout the products as "recommended" by doctors and dieticians and meant specifically for "diabetes care," among other claims, the items are nevertheless made with sucralose, making them "neither healthy nor suitable for these purposes." Crucially, the suit stresses, sucralose is harmful to pancreatic beta cells, which promote insulin resistance, and can destabilize glucose absorption, cause weight gain and hurt the gut microbiome. The lawsuit contends that the Splenda products "can be harmful to everyone," particularly those with diabetes, and that reasonable consumers have been misled into thinking the items are healthy and useful in managing blood sugar and diabetes. "In all cases, consumers are harmed by paying a premium for the health claims touted by [defendant TC Heartland, LLC] that are untrue," the complaint claims. The Splenda products mentioned in the lawsuit include Splenda "Diabetes Care" shakes, Splenda Zero Calorie Sweetener packets, Splenda Granulated Zero Calorie Sweetener, Splenda Zero Calorie Sweetener Minis, Splenda Liquid Sweetener Zero, Splenda Water Enhancers, Splenda Premium Sweet Tea and Splenda Multi-Use Syrup, all of which are touted as "suitable for people with diabetes" or marketed for "Diabetes Care." According to the suit, reasonable consumers understand the health claims on Splenda labels to mean that the products contain a healthy sugar alternative and are suitable for, or can aid in, the management of blood sugar levels and diabetes generally. The lawsuit emphasizes that millions of diabetics and prediabetics in the United States depend on truthful product labels to make informed choices to manage their disease and live a healthier life. The case charges that TC Heartland, rather than truthfully label the Splenda shakes and sweeteners, has chosen instead to "prey on [diabetics] for profit while knowingly ignoring the science on sucralose," conduct the suit calls "unconscionable" and illegal. Further, the filing alleges the "deliberateness" of the defendant's apparently false labeling is evidenced on the familiar yellow packets of Splenda, which are found in restaurants nationwide. Highlighted in red font on Splenda packets is the claim that the product is "suitable for people with diabetes," even though sucralose has been shown to "induce and worsen obesity, metabolic syndrome, and Type 2 diabetes" by interfering with the body's control of glucose and energy balance, the lawsuit shares. The lawsuit looks to cover all United States residents who, in the last four years, bought any of the Splenda products listed on this page for purposes other than resale. [GN] TERM COMMODITIES: Court Certifies Class in Cotton Futures Suit -------------------------------------------------------------- In the class action lawsuit Re: Term Commodities Cotton Futures Litigation, Case No. 1:12-cv-05732-ALC (Court), (S.D.N.Y.), the Hon. Judge Andrew L. Carter, Jr., entered an order certifying a class defined as: "All persons, corporations and other legal entities that (a) purchased between March 30 and May 6, 2011, a May 2011 Contract in order to liquidate a short position in such contract, including short positions held as part of spread positions; or (b) contracted to purchase cotton on call based on the May 2011 Contract price, and set the price on this contract between March 30 and May 6; or (c) purchased between June 7 and July 7, 2011, a July 2011 Contract in order to liquidate a short position therein, including short positions held as part of spread positions; or (d) contracted to purchase cotton on call based on the July 2011 Contract price, and set the price on this contract between June 7 and July 7, 2011." Excluded from the Class are Defendants, any parent, subsidiary, affiliate, agent or employee of any Defendant, and any co- conspirator. The Court appointed Lovell Stewart Halebian Jacobson LLP, 500 Fifth Avenue, Suite 2440, New York, New York 10110 as "Class Counsel" to represent the Class. The Plaintiffs in this lawsuit seek recovery from Defendants on behalf of the Class of persons and entities that traded the May and July 2011 ICE Cotton No. 2 futures contracts and cotton on call contracts during the Class Period, between March 30 and May 6, 2011 (inclusive) and June 7 and July 7, 2011 (inclusive). The Plaintiffs assert claims against Defendants under the Commodity Exchange Act and the Sherman Antitrust Act. The Plaintiffs allege Defendants engaged in substantial manipulative conduct, including making large late purchases of long cotton futures positions, and seeking to take large deliveries of cotton in satisfaction of those long positions all in the face of a known market congestion. The Plaintiffs further allege that Defendants uneconomically withheld liquidating orders and uneconomically refused to buy back cotton they had previously sold despite the alleged availability of favorable prices, and avoided and delayed purchasing physical cotton in the cash market that was cheaper than futures market cotton. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3qPjUEu at no extra charge.[CC] The Plaintiffs are represented by: Christopher Lovell, Esq. Christopher McGrath, Esq. Ben Jaccarino, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 500 Fifth Avenue, Suite 2440 New York, NY 10110 Telephone: (212) 608-1900 TERM COMMODITIES: Court Certifies Class in Crosta Suit ------------------------------------------------------ In the class action lawsuit captioned as Crosta v. Term Commodities, Inc., et al., Case No. 1:12-cv-05563 (S.D.N.Y.), the Hon. Judge Andrew L. Carter, Jr., entered an order certifying a class defined as: "All persons, corporations and other legal entities that (a) purchased between March 30 and May 6, 2011, a May 2011 Contract in order to liquidate a short position in such contract, including short positions held as part of spread positions; or (b) contracted to purchase cotton on call based on the May 2011 Contract price, and set the price on this contract between March 30 and May 6; or (c) purchased between June 7 and July 7, 2011, a July 2011 Contract in order to liquidate a short position therein, including short positions held as part of spread positions; or (d) contracted to purchase cotton on call based on the July 2011 Contract price, and set the price on this contract between June 7 and July 7, 2011." Excluded from the Class are Defendants, any parent, subsidiary, affiliate, agent or employee of any Defendant, and any co- conspirator. The Court appointed Lovell Stewart Halebian Jacobson LLP, 500 Fifth Avenue, Suite 2440, New York, New York 10110 as "Class Counsel" to represent the Class. The Plaintiffs in this lawsuit seek recovery from Defendants on behalf of the Class of persons and entities that traded the May and July 2011 ICE Cotton No. 2 futures contracts and cotton on call contracts during the Class Period, between March 30 and May 6, 2011 (inclusive) and June 7 and July 7, 2011 (inclusive). The Plaintiffs assert claims against Defendants under the Commodity Exchange Act and the Sherman Antitrust Act. The Plaintiffs allege Defendants engaged in substantial manipulative conduct, including making large late purchases of long cotton futures positions, and seeking to take large deliveries of cotton in satisfaction of those long positions all in the face of a known market congestion. The Plaintiffs further allege that Defendants uneconomically withheld liquidating orders and uneconomically refused to buy back cotton they had previously sold despite the alleged availability of favorable prices, and avoided and delayed purchasing physical cotton in the cash market that was cheaper than futures market cotton. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3QWU77M at no extra charge.[CC] The Plaintiffs are represented by: Christopher Lovell, Esq. Christopher McGrath, Esq. Ben Jaccarino, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 500 Fifth Avenue, Suite 2440 New York, NY 10110 Telephone: (212) 608-1900 TERM COMMODITIES: Court Certifies Class in Ledwith Lawsuit ---------------------------------------------------------- In the class action lawsuit captioned as Ledwith et al v. Term Commodities, Inc. et al., Case No. 1:12-cv-05732 (S.D.N.Y.), the Hon. Judge Andrew L. Carter, Jr., entered an order certifying a class defined as: "All persons, corporations and other legal entities that (a) purchased between March 30 and May 6, 2011, a May 2011 Contract in order to liquidate a short position in such contract, including short positions held as part of spread positions; or (b) contracted to purchase cotton on call based on the May 2011 Contract price, and set the price on this contract between March 30 and May 6; or (c) purchased between June 7 and July 7, 2011, a July 2011 Contract in order to liquidate a short position therein, including short positions held as part of spread positions; or (d) contracted to purchase cotton on call based on the July 2011 Contract price, and set the price on this contract between June 7 and July 7, 2011." Excluded from the Class are Defendants, any parent, subsidiary, affiliate, agent or employee of any Defendant, and any co- conspirator. The Court appointed Lovell Stewart Halebian Jacobson LLP, 500 Fifth Avenue, Suite 2440, New York, New York 10110 as "Class Counsel" to represent the Class. The Plaintiffs in this lawsuit seek recovery from Defendants on behalf of the Class of persons and entities that traded the May and July 2011 ICE Cotton No. 2 futures contracts and cotton on call contracts during the Class Period, between March 30 and May 6, 2011 (inclusive) and June 7 and July 7, 2011 (inclusive). The Plaintiffs assert claims against Defendants under the Commodity Exchange Act and the Sherman Antitrust Act. The Plaintiffs allege Defendants engaged in substantial manipulative conduct, including making large late purchases of long cotton futures positions, and seeking to take large deliveries of cotton in satisfaction of those long positions all in the face of a known market congestion. The Plaintiffs further allege that Defendants uneconomically withheld liquidating orders and uneconomically refused to buy back cotton they had previously sold despite the alleged availability of favorable prices, and avoided and delayed purchasing physical cotton in the cash market that was cheaper than futures market cotton. A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/47JtB7U at no extra charge.[CC] The Plaintiffs are represented by: Christopher Lovell, Esq. Christopher McGrath, Esq. Ben Jaccarino, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 500 Fifth Avenue, Suite 2440 New York, NY 10110 Telephone: (212) 608-1900 TERM COMMODITIES: Court Certifies Class in Meierfeld Lawsuit ------------------------------------------------------------ In the class action lawsuit captioned as Meierfeld v. Term Commodities, Inc. et al., Case No. 1:12-cv-05380 (S.D.N.Y.), the Hon. Judge Andrew L. Carter, Jr., entered an order certifying a class defined as: "All persons, corporations and other legal entities that (a) purchased between March 30 and May 6, 2011, a May 2011 Contract in order to liquidate a short position in such contract, including short positions held as part of spread positions; or (b) contracted to purchase cotton on call based on the May 2011 Contract price, and set the price on this contract between March 30 and May 6; or (c) purchased between June 7 and July 7, 2011, a July 2011 Contract in order to liquidate a short position therein, including short positions held as part of spread positions; or (d) contracted to purchase cotton on call based on the July 2011 Contract price, and set the price on this contract between June 7 and July 7, 2011." Excluded from the Class are Defendants, any parent, subsidiary, affiliate, agent or employee of any Defendant, and any co- conspirator. The Court appointed Lovell Stewart Halebian Jacobson LLP, 500 Fifth Avenue, Suite 2440, New York, New York 10110 as "Class Counsel" to represent the Class. The Plaintiffs in this lawsuit seek recovery from Defendants on behalf of the Class of persons and entities that traded the May and July 2011 ICE Cotton No. 2 futures contracts and cotton on call contracts during the Class Period, between March 30 and May 6, 2011 (inclusive) and June 7 and July 7, 2011 (inclusive). The Plaintiffs assert claims against Defendants under the Commodity Exchange Act and the Sherman Antitrust Act. The Plaintiffs allege Defendants engaged in substantial manipulative conduct, including making large late purchases of long cotton futures positions, and seeking to take large deliveries of cotton in satisfaction of those long positions all in the face of a known market congestion. The Plaintiffs further allege that Defendants uneconomically withheld liquidating orders and uneconomically refused to buy back cotton they had previously sold despite the alleged availability of favorable prices, and avoided and delayed purchasing physical cotton in the cash market that was cheaper than futures market cotton. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/45qDVAf at no extra charge.[CC] The Plaintiffs are represented by: Christopher Lovell, Esq. Christopher McGrath, Esq. Ben Jaccarino, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 500 Fifth Avenue, Suite 2440 New York, NY 10110 Telephone: (212) 608-1900 TERM COMMODITIES: Court Certifies Class in Walford Lawsuit ---------------------------------------------------------- In the class action lawsuit captioned as Walford et al v. Term Commodities, Inc. et al., Case No. 1:12-cv-05269 (S.D.N.Y.), the Hon. Judge Andrew L. Carter, Jr., entered an order certifying a class defined as: "All persons, corporations and other legal entities that (a) purchased between March 30 and May 6, 2011, a May 2011 Contract in order to liquidate a short position in such contract, including short positions held as part of spread positions; or (b) contracted to purchase cotton on call based on the May 2011 Contract price, and set the price on this contract between March 30 and May 6; or (c) purchased between June 7 and July 7, 2011, a July 2011 Contract in order to liquidate a short position therein, including short positions held as part of spread positions; or (d) contracted to purchase cotton on call based on the July 2011 Contract price, and set the price on this contract between June 7 and July 7, 2011." Excluded from the Class are Defendants, any parent, subsidiary, affiliate, agent or employee of any Defendant, and any co- conspirator. The Court appointed Lovell Stewart Halebian Jacobson LLP, 500 Fifth Avenue, Suite 2440, New York, New York 10110 as "Class Counsel" to represent the Class. The Plaintiffs in this lawsuit seek recovery from Defendants on behalf of the Class of persons and entities that traded the May and July 2011 ICE Cotton No. 2 futures contracts and cotton on call contracts during the Class Period, between March 30 and May 6, 2011 (inclusive) and June 7 and July 7, 2011 (inclusive). The Plaintiffs assert claims against Defendants under the Commodity Exchange Act and the Sherman Antitrust Act. The Plaintiffs allege Defendants engaged in substantial manipulative conduct, including making large late purchases of long cotton futures positions, and seeking to take large deliveries of cotton in satisfaction of those long positions all in the face of a known market congestion. The Plaintiffs further allege that Defendants uneconomically withheld liquidating orders and uneconomically refused to buy back cotton they had previously sold despite the alleged availability of favorable prices, and avoided and delayed purchasing physical cotton in the cash market that was cheaper than futures market cotton. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3sBezAY at no extra charge.[CC] The Plaintiffs are represented by: Christopher Lovell, Esq. Christopher McGrath, Esq. Ben Jaccarino, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 500 Fifth Avenue, Suite 2440 New York, NY 10110 Telephone: (212) 608-1900 TESLA INC: Investors Awarded $40M Over Losses Due to Musk Tweet --------------------------------------------------------------- Bloomberg reports that a group of Tesla investors stands to recover an average of about $12,000 a head for losses they incurred from Elon Musk's famous 2018 tweet that he had "funding secured" to take the car maker private at $420 a share -- and then didn't. The US Securities and Exchange Commission aims to pay the investors the $40 million plus interest that Tesla's chief executive officer and the company agreed to as civil penalties to settle a lawsuit by the regulator. That's just over half the $80 million the SEC reckons they lost from the stock's gyrations after the tweet -- and a mere sliver of the $12 billion in losses an expert witness for a class of Tesla investors calculated earlier this year in a separate class action trial. The SEC asked a judge for final approval of the plan in a court filing Wednesday evening. A total of 3,350 claims will be paid out of the fund set up from the settlement if the plan is approved, according to the filing. That works out to just under $12,400 an investor, on average. The judge said Thursday he would sign off on the plan on Sept. 1 if there are no objections from Tesla or Musk, the world's richest person. What accounts for the huge gap in estimated losses between the $80 million and the $12 billion? It's not entirely clear, but the expert's number applied to losses by all Tesla investors over 10 days after the Aug. 7, 2018, tweet. The SEC's number covers just over 27 hours after the tweet, excludes options and derivative trades and applies only to Tesla common stock. And not every eligible investor filed a claim. The investors in the class action case lost at trial in February, when the jury took just two hours to clear Musk of their claim that he defrauded them with the tweet. The case was one of the few corporate securities fraud claims to go to trial. The vast majority are thrown out or settled. The investors are appealing. [GN] ULTIMATE FIGHTING: Attorney Discusses MMA Antitrust Class Action ---------------------------------------------------------------- Priyanka, writing for Essentially Sports, reports that the world's biggest MMA promotion was officially granted class certification in an antitrust lawsuit dating back to 2014. The U.S. District Court's Judge Richard F. Boulware approved the case, started by close to 1,200 fighters in 2020, to go on as a class action lawsuit. Now, the promotion is currently caught up in a lawsuit that accuses them of trying to dominate the fighters unfairly. The lawsuit tries to highlight the organization's possible tough tactics to prevent fighters from becoming free agents during their MMA careers. The people suing, including ex-UFC fighters Cung Le and Jon Fitch, point out the unacceptable actions of UFC president Dana White and company. White and Co. put forward certain rules that established complete control over a fighter. Currently, Attorney Rob Maysey has explained more about the class action lawsuit that works in favor of the fighters. Let's dive deeper to find out more about it. UFC has new challenges on its way In an interview with MMA Uncensored, former UFC fighter Cung Lee and Attorney Rob Maysey spoke in detail about the class action lawsuit. They assured the viewers that it worked for the rights of the fighters. Maysey even detailed their further plans that would help fighters secure their rights and have a great MMA career. He said, "We're also working on the Ali expansion act. That's why we are in DC lobbying Congress and Senate to expand that act to cover fighters. That act essentially works because it requires disclosure to the fighters of the revenues their events generate. So the next time they negotiate with that promoter they know here's what dollars my events bring in." The Attorney made it clear that they are working on the Muhammad Ali Expansion Act for the benefit of fighters. Later, he added, "It works for that reason and it works because it separates rank and title from the promoter. That's really the UFC mechanism of control. They dictate title ascension. Whereas in a sport, titles independent of promoter have different paths to get to the top, so if you're treating me like an as*hole I can leave you and go somewhere else." From the words of the attorney, it is clear that the UFC boss would be forced to change the rules of the promotion. [GN] UNITED STATES: Lado Suit Seeks Provisional Class Certification -------------------------------------------------------------- In the class action lawsuit captioned as AL OTRO LADO, INC., a California Corporation; HAITIAN BRIDGE ALLIANCE, INC., a California Corporation; DIEGO DOE, ELENA DOE, GUADALUPE DOE, LAURA DOE, LUISA DOE, MICHELLE DOE, NATASHA DOE, PABLO DOE, AND SOMAR DOE, individually and on behalf of all others similarly situated; v. ALEJANDRO N. MAYORKAS, Secretary, U.S. Department of Homeland Security, in his official capacity; TROY A. MILLER, Senior Official Performing the Duties of Commissioner, U.S. Customs and Border Protection, in his official capacity; DIANE J. SABATINO, Acting Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in her official capacity, Case No. 3:23-cv-01367-AGS-BLM (S.D. Cal.), the Plaintiffs will move to seek provisional certification of a class consisting of: "All noncitizens who seek or will seek to present themselves at a Class A Port of Entry on the U.S.-Mexico border ("POE") to seek asylum, and were or will be prevented from accessing the U.S. asylum process by or at the direction of Defendants on or after May 12, 2023." The United States Department of Homeland Security is the U.S. federal executive department responsible for public security, roughly comparable to the interior or home ministries of other countries. A copy of the Plaintiffs' motion dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/3qHwqG9 at no extra charge.[CC] The Plaintiffs are represented by: Matthew H. Marmolejo, Esq. Ori Lev, Esq. Michelle N. Webster, Esq. Matthew E. Fenn, Esq. MAYER BROWN LLP 333 S. Grand Avenue, 47th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 E-mail: mmarmolejo@mayerbrown.com olev@mayerbrown.com Mwebster@mayerbrown.com Mfenn@mayerbrown.com - and - Stephen M. Medlock, Esq. Evan Miller, Esq. Nataly Farag, Esq. Alex Rant, Esq. Rami Abdallah E. Rashmawi, Esq. VINSON & ELKINS LLP 2200 Pennsylvania Ave., N.W., Ste. 500 W Washington, DC 20037 Telephone: (202) 639-6500 Facsimile: (202) 879-8939 E-mail: smedlock@velaw.com emiller@velaw.com nfarag@velaw.com arant@velaw.com rrashmawi@velaw.com - and - Melissa Crow, Esq. Neela Chakravartula, Esq. Robert Pauw, Esq. CENTER FOR GENDER AND REFUGEE STUDIES 1121 14th Street, N.W., Suite 200 Washington, DC 20005 Telephone: (202) 355-4471 Facsimile: (415) 581-8824 E-mail: crowmelissa@uclawsf.edu neela@uclawsf.edu rpauw@ghp-law.net - and - Baher Azmy, Esq. Angelo Guisado, Esq. CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499 E-mail: bazmy@ccrjustice.org aguisado@ccrjustice.org - and - Gianna Borroto, Esq. Katherine Melloy Goettel, Esq. Suchita Mathur, Esq. AMERICAN IMMIGRATION COUNCIL 1331 G St. NW, Suite 200 Washington, DC 20005 Telephone: (202) 507-7523 Facsimile: (202) 742-5619 E-mail: gborroto@immcouncil.org kgoettel@immcouncil.org smathur@immcouncil.org UNIVERSITY OF CHICAGO: Court Rejects Dinerstein Privacy Class Suit ------------------------------------------------------------------ Amy M. Magnano and Michael J. Madderra of Morgan Lewis report that the Seventh Circuit recently rejected a series of class action claims against Google and the University of Chicago Medical Center alleging that the medical center improperly sold patient health information to the tech giant, which, in conjunction with Google's other data, could be used to reveal patient identities and other sensitive information. The court's July 11, 2023 decision is a major win for privacy compliance officers, whose jobs have become increasingly arduous with the proliferation of new privacy laws and the potential for significant consequences for violations. In Dinerstein v. Google and The University of Chicago Medical Center, No. 1:19-cv-04311, the plaintiff was a patient at the university medical center in 2015. Plaintiff owned a smartphone containing Google applications and maintained a Google account that allegedly collected and transmitted his geolocation to Google. Two years later, the university and Google entered into a data partnership, with Google receiving anonymized health records for research purposes. Plaintiff sued Google and the university, alleging that, among other things, the university had breached the contractual obligations within its privacy notice, and Google impermissibly was capable of re-identifying patients because of its vast data network. The district court dismissed Plaintiff's consumer-fraud claim for lack of standing and the remaining claims on various state law grounds. 484 F. Supp. 3d 561 (N.D. Ill. Sept. 4, 2020). On appeal, the Seventh Circuit affirmed the judgment, concluding that all claims failed for lack of standing. First, the court denied Plaintiff's common law privacy claim, noting that it was skeptical of a "public-disclosure tort premised on the dissemination of anonymized information" and that Plaintiff had failed to plausibly allege that anonymization in this case was deficient. "At most, he alleges that some personally identifying information 'may have evaded redaction'"—an unsupported hypothetical. The court also rejected Plaintiff’s contention that the combination of data within the medical records alongside geolocation and demographic data sourced from smartphone apps created the "perfect formulation" for later re-identification. This too was deemed to be a hypothetical risk of future, anticipated harm. Second, the court found Plaintiff also lacked standing to bring his contract claim arguing that the university's Notice of Privacy Practices and Outpatient Agreement and Authorization that he signed upon admittance to the medical center "contractually obligated the [u]niversity to safeguard his medical information. In his view, transferring his medical records to Google was a flagrant breach of that obligation." The court rejected this claim as implausible, noting that Plaintiff "signed a release" giving express consent that his medical information could be used for research. (The Seventh Circuit did not reject or explicitly accept Plaintiff's argument that the Notice of Privacy Practices was a contractual agreement with a patient. Even if the notice was a contract, Plaintiff nonetheless failed to prove contractual damages. The court concluded that a contractual breach, without actual damages, was insufficient to confer standing.) This is a significant decision for privacy and medical professionals alike. The court rejected speculative claims that pointed only to the possibility that anonymized or pseudonymized data could be used to re-identify plaintiffs. As such, the data holder was not held accountable for merely possessing the data or allegedly having the capability to re-identify the subject: there must be some bad intent or actual bad act. Additionally, the decision underscores the importance of having a HIPAA-compliant Notice of Privacy Practices and making sure that adequate notices are given to patients to explain what information is collected, how the information is processed, and what the information may be used for. Plaintiff failed to show that Google took actions to use the data to re-identify patients; there was no evidence that the anonymization process was faulty; and the university had policies and procedures in place designed to give notice to patients. "Put simply, [Plaintiff] seeks to invoke the power of the federal courts to challenge the lawfulness of an event that caused him no harm." By taking adequate precautions to safeguard patient data and provide notice about its potential uses, Google and the university avoided potentially significant damages. To learn more about the case's impact and its implications for businesses, contact a Morgan Lewis healthcare or privacy lawyer. [GN] UNIVERSITY OF VIRGINIA: Phillips Loses Bid for Prelim. Injunction ----------------------------------------------------------------- In the case, DWAYNE PHILLIPS, et al., Plaintiffs v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, et al., Defendants, Civil Action No. 3:22-cv-00075 (W.D. Va.), Judge Robert S. Ballou of the U.S. District Court for the Western District of Virginia, Charlottesville Division, denies the Plaintiffs' motion for a preliminary injunction. In the Fall of 2021, UVA Health mandated that Tier 1 employees take the COVID-19 vaccine. UVA Health allowed exemptions from the vaccine requirement for medical or religious reasons, but employees who did not receive an exemption and still refused to take the vaccine were terminated. The Plaintiffs, 11 former UVA Health employees, were denied religious exemptions from the vaccine mandate and lost their jobs. The Plaintiffs bring the action against the Rector and Visitors of the University of Virginia ("UVA") and several UVA employees alleging constitutional and employment discrimination claims for denying them religious exemptions from the vaccination requirement. Before the Court is the Plaintiffs' motion for a preliminary injunction to require UVA to (1) offer the Plaintiffs reinstatement and (2) take no future adverse employment action against them based on their COVID-19 vaccination status. UVA Health announced on June 20, 2023, an intent to rescind its COVID-19 vaccine mandate effective Aug. 4, 2023. On Aug. 7, 2023, the Defendants filed a notice that UVA Health has indeed rescinded the mandate. The Plaintiffs each sought, but were denied, a religious exemption from the COVID-19 vaccination requirement for all UVA Health Tier I employees. They did not take the vaccination and lost their jobs. They bring the putative class action alleging Free Exercise and Establishment Clause claims under the federal and state constitutions and under Title VII for the termination, refusal to hire, and refusal to rehire employees and prospective employees who were denied religious exemptions and refused to comply with the vaccination mandate. The United States recorded its first confirmed case of the COVID-19 virus on Jan. 20, 2020. Efforts to combat the spread of the virus included the development of several vaccines and in the fall of 2021, UVA Health instituted a COVID-19 vaccine mandate for its employees effective Nov. 1, 2021, requiring each of its employees to become vaccinated or face termination. On Nov. 5, 2021, the Centers for Medicare and Medicaid Services ("CMS") directed that any healthcare worker who treats Medicare and Medicaid patients be vaccinated against COVID-19. A significant number of patients at UVA Health are Medicare or Medicaid recipients. The UVA Health vaccination policy allowed employees to submit requests for medical and religious exemptions. The initial vaccination policy adopted in 2021 created a Religious Exemption Committee to review exemption requests from employees based upon their sincerely held religious beliefs. The Plaintiffs here submitted requests under the 2021 Procedure for religious exemptions to the Religious Exemption Committee. The exemption requests were denied, and UVA Health dismissed each Plaintiff because they refused to take the COVID-19 vaccination. UVA Health disbanded the Religious Exemption Committee in October 2022 in favor of an expanded exemption request review procedure. UVA Health named Katy Hoffman as the Exemption Coordinator to determine whether an employee had a sincerely held religious belief that conflicts with the vaccine mandate. If so, UVA Health then sought to determine the extent to which accommodating a particular employee's religious exemption imposed an undue hardship on UVA Health. The Commonwealth of Virginia rescinded its COVID-19 vaccine mandate for state employees on Jan. 15, 2022, however, UVA Health continued to align its vaccination requirements with CMS guidance. The United States ended the COVID-19 public health emergency on May 11, 2023. CMS rescinded its vaccine mandate on June 5, 2023. UVA Health followed suit on Aug. 4, 2023, and does not require its Tier 1 employees to have the COVID-19 vaccination. The Plaintiffs filed the putative class action alleging constitutional and statutory violations based on UVA Health's COVID-19 vaccine mandate. They filed the action and the motion for a preliminary injunction on Dec. 14, 2022, more than a year after UVA Health instituted the vaccination requirement and they lost their jobs. A preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief, citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008)). A party seeking a preliminary injunction must establish that (1) the movant is likely to succeed on the merits; (2) the movant is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in the movant's favor; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. The court need not consider all four Winter factors before denying a preliminary injunction. The Plaintiffs argue that the action is not moot because the voluntary cessation doctrine applies. The doctrine traces to the principle that a party should not be able to evade judicial review by temporarily altering questionable behavior. Judge Ballou explains that the Plaintiffs take issue with the design of the religious exemption requirements. Each of them was terminated under the 2021 exemption procedure. That procedure is no longer in place and nor is the 2022 exemption procedure. The suggestion that UVA Health could reinstate its COVID-19 vaccine mandate (and thus some type of religious exemption procedure) is entirely speculative. Based on the foregoing, Judge Ballou opines that mootness renders the Plaintiffs' request for injunctive relief nonjusticiable, which obviates the need to review the Winter factors. He finds that a preliminary injunction is not appropriate because UVA Health has rescinded its COVID-19 vaccine mandate and any religious exemption requirements, thus removing the impediment on which the Plaintiffs base their motion. For these reasons, the Plaintiffs' motion for preliminary injunction is denied. An appropriate order will be issues. A full-text copy of the Court's Aug. 8, 2023 Memorandum Opinion is available at https://tinyurl.com/4yafpsku from Leagle.com. UNUM GROUP: Faces Class Suit Over 2020 Data Breach -------------------------------------------------- Kelly Mehorter of ClassAction.org reports that a proposed class action claims that Unum Group's failure to safeguard the personal information stored within its network resulted in a data breach that occurred between May 31 and June 1 of this year. According to the 51-page case, the insurance services provider revealed on August 3 that it had been affected by a cyberattack perpetrated against MOVEit Transfer, a third-party software application it uses to transfer data. The lawsuit claims that during the incident, an unauthorized party exploited a security vulnerability in the software and copied data belonging to former and current customers of Unum's subsidiary insurance companies. The complaint alleges that potentially thousands of individuals have had their private information exposed, including their names; dates of birth; addresses; Social Security or individual tax identification numbers; and medical, health insurance claim and policy information. The breach also involved financial information and other government-issued identification numbers for a "limited number of individuals," Unum's notice letter states. As the suit tells it, Unum "disregarded the rights of Plaintiff and Class Members" by failing to properly encrypt or redact files and file servers containing consumers' private information. The filing also argues that Unum had a legal duty to audit, monitor and verify the security practices of its IT vendors and affiliates. In fact, the case claims, the defendant was obligated under the Federal Trade Commission Act, the Health Insurance Portability and Accountability Act (HIPAA), industry standards and contractual promises to keep consumers' data confidential by implementing reasonable cybersecurity measures. The plaintiff, a Florida resident who received notice from Unum that her personal information was involved in the MOVEit data breach, claims that cybercriminals have likely sold her data on the dark web. Like other victims, the plaintiff now faces a "present and continuing risk" of identity theft and fraud and must pay out-of-pocket expenses associated with preventing, detecting and recovering from the misuse of her information, the complaint says. The filing further chides Unum for its alleged failure to timely and accurately notify affected individuals of the breach. Although the company claims to have detected "suspicious activity" involving an instance of its MOVEit Transfer application on June 1, it waited more than two months to report the incident to proposed class members, the case says, noting that the letter omitted details about the root cause of the breach and the remedial measures the company has taken to prevent a future attack. "This 'disclosure' amounts to no real disclosure at all, as it fails to inform, with any degree of specificity, Plaintiff and Class Members of the Data Breach's critical facts," the suit claims. "Without these details, Plaintiff's and Class Members' ability to mitigate the harms resulting from the Data Breach is severely diminished." The lawsuit looks to cover anyone in the United States whose private information was disclosed in the data breach announced by Unum Group. [GN] VIRGIN AUSTRALIA: Sued Over Failure to Disclose Financial Info -------------------------------------------------------------- CH - Aviation reports that an Australian Federal Court judge is expected to set a hearing date in 2024 for a class action suit against Virgin Australia (VA, Brisbane International) parent Virgin Australia Holdings and its former management team over allegations the company failed to disclose its actual financial position in a November 2019 prospectus to raise AUD325 million Australian dollars (USD208 million). The capital raise happened shortly before the Covid pandemic and Virgin's voluntary administration in April 2020 with debts over AUD 5billion (USD3.2 billion). Following the resolution before him of interlocutory issues in the class action (case NSD 346 of 2022) brought by Matheson Property Group Pty Ltd (MPG) against Virgin Australia Holdings Limited, New South Wales Federal Court Judge Bryan Joshua Lee, on August 8, 2023, ordered the matter to be brought back before him in December 2023. At such time, he expects all outstanding issues concerning documentary evidence and pleadings to be resolved, and for MPG to have filed all of its lay affidavits and material-in-chief. "One hopes that, at that time, it will be possible to set a hearing date for the matter, subject to it becoming clear what my commitments are in 2024," he noted. MPG represents a class comprising various holders of unsecured notes issued by Virgin Australia Holdings Limited (VAH), minority shareholders, and Blue Sky Alternative Investments insurers. MPG is represented by Australian law firm Corrs Chambers Westgarth, which also advised bondholders when Virgin Australia went into voluntary administration in April 2020. Corrs Chambers Westgarth declined to comment when approached by ch-aviation. Apart from VAH, respondents include Virgin Australia Group former chairwoman Elizabeth Bryan AM and former CEO and Managing Director Paul Scurrah, now Managing Director and CEO at Australian rail freight company Pacific National. ch-aviation has reached out to the holding for comment. In addition, according to the August 8 order, a slew of VAH's insurers have joined the suit as respondents, including Liberty Mutual Insurance Company, HDI Global Speciality SE, Beazley Lloyd's Syndicate, Endurance Worldwide Insurance Limited, Act Lloyd's Syndicate, Hiscox Lloyds Syndicate, CV Starr Lloyd's Syndicate, HCC International Insurance Company PLC, Aspen Lloyd's Syndicate, Assicurazioni Generali S.P.A. UK branch, Aviva Insurance Limited, Berkshire Hathaway Speciality Insurance Company, Travelers Lloyd's Syndicate, and RSG Underwriting Management Europe Limited trading as Startpoint Executive Risks. The class action lawsuit against Virgin Australia and its former executives was first launched in March 2022, on the allegation that the company hyped up its finances when promoting the prospectus to buy out a minority shareholder of its Velocity frequent flyer loyalty programme. Virgin Australia has downplayed the effects of the class action lawsuit and stated that it does not expect any financial consequences from the proceedings. [GN] WELLS FARGO: Shareholders' Suit Over Fake Interviews Dismissed -------------------------------------------------------------- Zacks Equity Research of Zacks reports that the lawsuit accusing Wells Fargo & Company of defrauding its shareholders by making commitments to interview diverse job candidates in its hiring process, while it actually faked interviews for positions that had already been filled, has been dismissed. U.S. District Judge, Trina Thompson, stated that shareholders failed to prove the conduct of fake interviews. Moreover, no evidence was found that could prove the chief executive, Charlie Scharf, and senior diversity executives had knowledge about the sham interviews. The plaintiffs through the class action suit claimed that Wells Fargo had inflated its stock price by issuing public statement discussing its guidelines mentioning workplace diversity. The said policy was adopted in 2020 and required at least 50% of candidates, who were interviewed for jobs paying at least $100,000, to be minorities, women or people from other disadvantaged groups. WFC has been facing legal hassles and operational challenges. In May 2023, it agreed to pay $1 billion related to a lawsuit accusing the bank of overstating its progress on resolving its 2016 fake account scandal and thereby defrauding shareholders. Though past litigations prove misleading statements by WFC, it cannot be considered as sufficient proof regarding its intent to defraud shareholders. Apart from various litigation expenses, the company has been slapped with numerous penalties and sanctions, including a cap on the asset position by Federal Reserve. These are likely to increase expenses in the upcoming period, limiting the company's bottom-line growth. Wells Fargo's shares have lost 8.1% over the past six months compared with the industry's decline of 10.4%. WFC presently carries a Zacks Rank #3 (Hold). You can see the complete list of August 22, 2023's Zacks #1 (Strong Buy) Rank stocks here. Financial Misconduct by Other Firms UBS Group AG (UBS Quick QuoteUBS - Free Report) has arrived at a settlement with the U.S. Department of Justice to pay $1.44 billion as penalty to resolve a long-running civil case. The civil action against UBS was filed in 2018, alleging misconduct with regard to underwriting, issuance and sale of residential mortgage-backed securities that were issued in 2006-2007. UBS said that the entire settlement has been provisioned in prior periods. Bank of America (BAC Quick QuoteBAC - Free Report) has been hit with substantial financial penalties that amount to $250 million. This includes $100 million in customer reimbursements and $150 million in fines due to a trio of unsavory practices involving overdraft fees, withholding credit card rewards and opening unauthorized accounts. Consumer Financial Protection Bureau (CFPB) and Office of the Comptroller of the Currency (OCC) have levied this colossal fine after BAC's actions were deemed illegal and a detriment to customer trust. The bank must refund $100 million to affected customers and pay $90 million to CFPB and $60 million to OCC. Zacks Names #1 Semiconductor Stock It's only 1/9,000th the size of NVIDIA which skyrocketed more than +800% since we recommended it. NVIDIA is still strong, but our new top chip stock has much more room to boom. With strong earnings growth and an expanding customer base, it's positioned to feed the rampant demand for Artificial Intelligence, Machine Learning, and Internet of Things. Global semiconductor manufacturing is projected to explode from $452 billion in 2021 to $803 billion by 2028. [GN] WENDY'S INT'L: Loses Bid to Dismiss Class Claim in Gollman Suit --------------------------------------------------------------- In the case, LEAH GOLLMAN, Plaintiff v. WENDY'S INTERNATIONAL LLC, THE WENDY'S COMPANY, WENDY'S OLD FASHIONED HAMBURGERS OF NEW YORK, LLC, WENDY'S RESTAURANTS OF NEW YORK, LLC, Defendant, Index No. 653783/2022, Motion Seq. No. 005 (N.Y. Sup.), Judge Lori S. Sattler of the Supreme Court of New York County denies the Defendants' motion to dismiss the first cause of action in the Amended Complaint. In this putative class action, Defendants Wendy's International LLC; The Wendy's Co.; Wendy's Old Fashioned Hamburgers of New York, LLC; and Wendy's Restaurants of New York, LLC, move for an order to dismiss the first cause of action in the Amended Complaint. Plaintiff Gollman opposes the motion. According to the Amended Complaint, Gollman was employed at the Wendy's restaurant located at 714 Third Avenue in Manhattan from April 2014 through July 2022. The Defendants are alleged to have jointly operated the restaurant from at least 2014 through May 2022, at which time a franchisee assumed ownership and control over the restaurant. An hourly employee, Gollman performed tasks such as food preparation, transaction processing, and maintenance of the restaurant's cleanliness that allegedly required her uniform to be cleaned after each shift. Gollman maintains that the Defendants required her and other members of the proposed class to wear a uniform consisting of a shirt, an apron, and a hat bearing the Wendy's logo during every shift. The Defendants allegedly provided her with only one hat, two aprons, and three shirts during the entirety of her employment despite the purported need to wash the uniform before each shift. Gollman claims that the Defendants did not launder or offer to launder her uniforms or those of the other putative class members. She further alleges that they did not pay her or her coworkers uniform maintenance pay or otherwise reimburse the cost of maintaining the uniform despite the requirement that employee uniforms be clean at the beginning of shifts. Gollman commenced the action on Oct. 12, 2022 and filed an Amended Complaint on May 12, 2023. She asserts three causes of action: a class claim for uniform maintenance pay, an individual claim under Section 195(1) of the New York Labor Law alleging failure to provide wage notice, and an individual claim under Section 193(3) of the New York Labor Law alleging failure to provide wage statements. Defendants now move to dismiss the first cause of action, arguing that CPLR 901(b) prevents Gollman from maintaining it as a class claim. The Defendants argue that the Uniform Maintenance Pay Order creates a "minimum measure of recovery" within the meaning of CPLR Section 901(b), rather than allowing for the recovery of compensatory damages, because the regulation sets forth a minimum weekly amount that employers must pay for uniform maintenance. They argue that were plaintiffs permitted to recover "actual compensatory damages," the damages would consist of "reimbursement of laundering receipts or dry-cleaning charges." They therefore contend Gollman is not permitted to maintain this cause of action as a class claim. In opposition, Gollman argues that the section merely sets forth a weekly supplement to class members' wages for having to maintain their uniforms. She claims that the damages for the first cause of action would be these unpaid supplemental wages, which she argues are class members' actual damages and not a minimum measure of recovery. Judge Sattler holds that recovery for nonpayment of the wages is effectuated pursuant to Labor Law Section 663(1). The first cause of action alleges the Defendants failed to pay putative class members wages required under the Uniform Maintenance Pay Order. Should the class members prevail, they would be entitled to recover the supplemental wages they were not paid by them. These would amount to actual compensatory damages, rather than a fixed minimum amount. Furthermore, it is well-established that class treatment is appropriate for claims of systemic wage violations, and the Court has routinely allowed class claims to proceed for alleged violations of minimum wage orders similar to the Uniform Maintenance Pay Order at issue. The Defendants fail to cite any applicable authority to the contrary. They, therefore, fail to conclusively show that Gollman's class claim lacks any basis as a matter of law. Accordingly, Judge Sattler denies the Defendants' motion. The Defendants will file and serve via NYSCEF an Answer to the Amended Complaint within 20 days of service of a copy of this Decision and Order with Notice of Entry. This constitutes the Decision and Order of the Court. A full-text copy of the Court's Aug. 8, 2023 Memorandum & Order is available at https://tinyurl.com/ymev72s6 from Leagle.com. WEST VIRGINIA: Foster Care Class Certification Partly Granted ------------------------------------------------------------- Chris Dickerson of West Virginia Record reports that a federal judge says a federal lawsuit challenging systemic deficiencies in the state's foster care system is "tailor-made" for class action status. On August 17, U.S. District Judge Joseph Goodwin issued an order granting in part and denying in part a renewed motion for class certification and appointment of class counsel in the case. That means more than 6,000 children in the system can be included in the lawsuit. "This is a careful, thoughtful decision, which will allow us to fully represent all these children and finally prove that the state's foster care system exposes children to the unreasonable risk of serious harm, which the Constitution bars the state from inflicting on children," Marcia Robinson Lowry, founder and executive director of A Better Childhood, said in a press release about the ruling. "We will be moving forward to now present evidence of the state's long-term neglect of these children, and how they have been seriously damaged by the state's foster care system." "The state is supposed to protect, not further harm, these vulnerable children. Instead, this system has ignored these children for far too long. It is time that the state is finally held accountable." A Better Childhood is a national nonprofit advocacy group that has attorneys representing the plaintiffs in the case. Currently, the plaintiffs in the case are 12 current and former foster care children who are challenging key aspects of West Virginia's child welfare system. They filed the lawsuit in 2019 against the West Virginia Department of Health and Human Resources, Gov. Jim Justice, former DHHR Secretary Bill Crouch, former DHHR Deputy Secretary Jeremiah Samples and former Bureau for Children and Families Commissioner Linda Watts seeking federal reform they say is caused by the state executive branch of government. "Plaintiffs paint a grim picture of a deeply flawed system that inflicts on vulnerable children much of the same abuse and neglect that it was designed to redress," Goodwin wrote in his 47-page memorandum order and opinion. "West Virginia's foster care system is 'in a state of crisis.' . . ." "As the Fourth Circuit illustrated, reforming foster care case-by-case would be like patching up holes in a sinking ship by tearing off the floorboards. Indeed, the court could not give to Jonathan without depriving Gretchen and, therefore, declines to play a zero-sum game." The plaintiffs describe longstanding deficiencies that include a shortage of foster care homes, overreliance on residential care facilities, high caseworker caseloads, inadequate case planning and a failure to maintain critical infrastructure that would allow children with mental health service needs to remain in their communities. In 2021, a federal judge granted the five motions to dismiss filed by the defendants. The plaintiffs appealed that decision to the 4th Circuit Court of Appeals, which rejected the rulings and remanded the case back to federal court. In May, the judge told the plaintiffs to file a renewed motion if they still sought class certification. They did so, asking the court to certify a general class, an ADA subclass and a Kinship subclass. The general class would include all West Virginia foster children who are or will be in the foster care custody of the DHHR or any successor agency. The ADA subclass would include all members of the general class who have physical, intellectual, cognitive or mental health disabilities. The Kinship subclass would include all members of the general class who are or will be in kinship placements for whom the DHHR is required to provide initial home safety assessments and other services. Goodwin's order grants class status for the general class and for the ADA subclass. He denied class status for the Kinship subclass, maintaining that the questions common to the general class are the same as the ones that would apply to the kinship subclass. The court said the plaintiffs have shown the DHHR "maintains an inadequate array of placements to meet the needs of these foster children" and that the DHHR "contrary to its own stated policies, fails to include families in the case planning process and engage in permanency planning for children." The plaintiffs also say children are referred to the West Virginia foster care system at a rate more than one-and-a-half times the national average. They also say many children are placed out-of-state or isolated in inadequate facilities and that children who age out of the system often aren't prepared for life outside of foster care. Goodwin also appointed the 12 named plaintiffs as the class representatives for the general class and nine of them for the ADA subclass. In addition, Goodwin appointed class counsel for the case. Those include attorneys from A Better Childhood, Shaffer & Shaffer and Disability Rights of West Virginia, another nonprofit. Earlier this year, the state Legislature passed laws ordering the DHHR to split at the beginning of 2024 into three agencies. "For decades DHHR has failed the children of West Virginia, not only by directly placing them in harm's way but also by failing to prepare them for life after foster care," said Rich Walters of Shaffer & Shaffer. "Our children deserve better, and the Court's decision on August 22, 2023 will help us continue the fight to protect West Virginia's children and fix a broken DHHR." U.S. District Court for the Southern District of West Virginia case number 3:19-cv-710 [GN] ZUFFA LLC: Court Partly Grants Le Bid to Certify Class ------------------------------------------------------- In the class action lawsuit captioned as CUNG LE, NATHAN QUARRY, JON FITCH, BRANDON VERRA, LUIS JAVIER VASQUEZ, and KYLE KINGSBURY, on behalf of themselves and all others similarly situated, v. ZUFFA, LLC D/B/A ULTIMATE FIGHTING CHAMPIONSHIP AND UFC, Case No. 2:15-cv-01045-RFB-BNW (D. Nev.), the Hon. Judge Richard F. Boulware, II entered an order granting part and denying in part the Plaintiff's motion to certify class. The Court certifies the following class of persons: "All persons who competed in one or more live professional UFC- promoted MMA bouts taking place or broadcast in the United States from December 16, 2010, to June 30, 2017." The Bout Class excludes all persons who are not residents or citizens of the United States unless the UFC paid such persons for competing in a bout fought in the United States. The Court will set a status conference for the parties to address Plaintiffs' claims for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(3) and invite additional briefing if required. The Court appoints named Plaintiffs as Class Representatives and appoints Interim Class Counsel as Class Counsel. The Plaintiffs allege that Zuffa's widespread success and dominance in MMA is due to anticompetitive behavior. Specifically, the Plaintiffs allege that Zuffa did the following: a) used exclusive contracts with specific provisions to retain fighters within the UFC; b) used its market power in both the input and output markets to render its fighter contracts effectively perpetual, and c) acquired or drove out rival promoters. Zuffa is in the business of promoting live Elite Professional MMA bouts in the United States and elsewhere, under the trade names of the Ultimate Fighting Championship (TM) or UFC (TM). A copy of the Court's order dated Aug. 9, 2023, is available from PacerMonitor.com at https://bit.ly/47SkrG9 at no extra charge.[CC] ********* 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 ***