/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/230906.mbx C L A S S A C T I O N R E P O R T E R Wednesday, September 6, 2023, Vol. 25, No. 179 Headlines 1ST SOURCE: Tompach Sues Over Failure to Safeguard Data ABBVIE INC: Camargo Files Suit Over Adalimumab Prices AC DISASTER: Shepard Sues Over Disaster Specialists' Unpaid OT ACLARIS THERAPEUTICS: Settles Fulcher Shareholder Suit ACLARIS THERAPEUTICS: Settles Rosi Consolidated Shareholder Suit ACUTUS MEDICAL: Faces Consolidated Shareholder Suit Over SEC Filing ADDA LLC: Fails to Pay Proper Wages, Adams Suit Alleges AETNA LIFE: Loses Bid to Appeal Class Certification in Wolff Suit ALLEGIANT AIR: Class Settlement in Rolle Suit Wins Final Approval ALLSTATE INSURANCE: Golla Files Suit in N.D. Ohio AMERICAN EAGLE: Herrera ADA Suit Removed to D. New Jersey AMERICAN HONDA: Gonzalez Files Suit in C.D. California APPLE INC: Court Dismisses Costa Class Suit With Leave to Amend ARCUS HUNTING: Web Site Not Accessible to Blind, Santana Alleges ARDENT MILLS: Court Grants Bid to Remand Arceo Class Suit ASHLEY FURNITURE: Herrera ADA Suit Removed to D. New Jersey AXSOME THERAPEUTICS: Gru Shareholder Suit Hits SEC Misreporting BANK OF AMERICA: Magers Sues Over Misappropriating Information BENDIX COMMERCIAL: Faces Gressley Wage-and-Hour Suit in N.D. Ohio BEREAL SAS: Hare Files Suit in N.D. Illinois BESTOP PRP: Web Site Not Accessible to Blind, Santana Says BLOOMINGDALE'S INC: Rosenthal Suit Dismissed Without Prejudice BP EXPLORATION: Court Dismisses Colston's Claims and Closes Suit BRAEMAR HOTELS AND RESORTS: Labor Suit Over Missed Breaks Ongoing BYRON UDELL: Bryant Class Suit Dismissed With Leave to Amend CAL-TEX PROTECTIVE: Lassiter-Williams Suit Removed to D. New Jersey CIRCLES OF CARE: Landini Files Suit in M.D. Florida CISCO SYSTEMS: Bracalente ERISA Suit Dismissed With Leave to Amend CLARIVATE PLC: Faces Consolidated Shareholder Suit Over SEC Filings CLARIVATE PLC: Faces Shareholder Suit Over Share Issuance CO-DIAGNOSTICS INC: Court Consolidates Stadium and Lee Class Suits DIAMOND CENTRAL: Fails to Pay Proper Wages, Benavente Alleges DOLGENCORP INC: Button Appeals Remand Bid Denial to 3rd Cir. DOLLAR GENERAL: Bid to Remand Allinder Suit to State Court Denied DOLLAR GENERAL: Bid to Remand Button Suit to Superior Court Denied DOMINION ENERGY: Galyean Sues Over Unsolicited Telemarketing Calls DOUGLAS J HOLDINGS: Eberline's Class Settlement Wins Prelim. Nod DRESSER LLC: LDEQ Dismissed From Barton Suit Without Prejudice ELANCO ANIMAL: Settles Consolidated Suits Over Flea Collar EP GLOBAL: Fails to Secure Customers' Info, Hasbrook Suit Claims FIELD ASSET: Carranza Suit Remanded to San Francisco Superior Court FRONTIER AIRLINES: Hartsfield Sues Over Airline Passes' False Ads FSST MGMT: Bid to Dismiss and Compel Arbitration in Harris Denied FUBOTV INC: Court Dismisses Lee Securities Suit GENENTECH INC: Wehner Suit to Proceed to Bench Trial on Oct. 30 GOLDMAN SACHS: Consolidated Securities Suit Ongoing GOLDMAN SACHS: Securities Suit Over Natera's IPO Ongoing GOLDMAN SACHS: Securities Suit Over Rivian's IPO Dismissed GOLDMAN SACHS: To Settle Reata IPO Securities in Texas Court HARRIS & HARRIS: Oigbokie Files FDCPA Suit in N.D. Illinois HARTFORD LIFE: Liable to Compromised Info, McCreery Suit Alleges HARVARD PILGRIM: Rowntree Sues Over Failure to Secure PHI & PII HAWAIIAN ELECTRIC: Faces Bhangal Suit Over Drop in Share Price HOME OIL COMPANY: Harper Files ADA Suit in M.D. Alabama HOP ENERGY: Mullaney Sues Over High Home Heating Oil's Price Rates HUDSON INSURANCE: Faces Immunomedics Suit Over Breach of Contract INTELLIHARTX LLC: Timmons Files Suit in N.D. Ohio JED C. KAMINETSKY: DiAmbrose Files Suit in S.D. New York JUSTIN MARTORELLO: Bid to Dismiss Bluetech From Galloway Suit Nixed KNA SOLUTIONS: Shackelford Personal Injury Suit Removed to D.D.C. LM GENERAL: Grant Suit Transferred From W.D. to E.D. Pennsylvania LOS ANGELES, CA: Harris' Bid for Jurisdictional Discovery Granted MARTINEZ REFINING: Piscitelli Sues Over Refinery's Noxious Odors MASIMO CORP: Vazquez Sues Over Share Price Decline MINDBODY IN FLORIDA: Lens Sues Over Illegal Debt Collection MISTRAS GROUP: Settles Price Labor Suit Lodged in Cal. Sup. MYLAN NV: Securities Suit Over Manufacturing Plants Report Ongoing NEWREZ LLC: Bid to Seal Class Cert Documents OK'd in Yates NISSAN OF NORTH AMERICA: Bid to Arbitrate Simpson's Claims Granted PAC-12 CONFERENCE: Faces Griggs Suit Over Concussion Effects PACIFIC 2.1 ENTERTAINMENT: Faces De Leon Wage-and-Hour Suit in Cal. PCB BANCORP: Faces Min Woo Bae Suit Over Data Breach PENSION BENEFITS: Glabb Files Suit in D. Minnesota PENSION BENEFITS: Williams Files Suit in D. Minnesota PHL VARIABLE: Class Deal in Advance Suit Wins Prelim. Approval PRINCE GEORGE'S COUNTY, MD: Entry of Judgment in Butler Suit Denied PROGRESS SOFTWARE: LoGiudici Sues Over Unprotected Personal Info PROGRESSIVE SPECIALTY: Court Certifies Two Classes in Drummond Suit RESIDENCE INN: Rodriguez Wage-and-Hour Suit Removed to S.D. Cal. RICHARD INDUSTRIAL: Lozano Sues Over Pipe Designers' Unpaid Wages RLC LANDSCAPING: Hernandez Sues Over Laborers' Unpaid Overtime ROSEBUD ECONOMIC: Can Compel Arbitration in Huntley Class Suit S.K.C. ENTERPRISES: Sends Unsolicited Marketing Calls, Reed Claims SANDISK LLC: Jafri Sues Over Sale of Defective Solid-State Drives SANDISK LLC: Solid-State Drives "Defective," Perrin Suit Alleges STATE FARM: M.D. Florida Denies Bids to Dismiss Sanchez RICO Suit STIHL INC: Bid to Remand Chambers MMWA Suit to State Court Denied SUFFOLK COUNTY, NY: Bid for Substitution in Butler Suit Granted SUFFOLK COUNTY, NY: Williams, Miller Added as Plaintiffs in Butler SUNOPTA INC: Hayes Sues Over Contaminated Frozen Fruit Products TC HEARTLAND: Splenda's Healthy Labels "False," Prescott Alleges TERM COMMODITIES: Court Certifies Class in Pinkham Lawsuit TERM COMMODITIES: Court Certifies Class in Satullo Lawsuit TERM COMMODITIES: Parties to Review Revisions to Class Notice Form TRUSTMARK NATIONAL: Shareholder Suit Over Stanford Collapse Ongoing TWIST BIOSCIENCE: Peters Files Shareholder Suit Over SEC Filings UNIVERSITY OF ROCHESTER: Harling Sues Over Unauthorized Info Access USHEALTH ADVISORS: Court Denies Bids to Dismiss Prosser TCPA Suit VENTURA COUNTY CREDIT: Medina Files Suit in C.D. California VIATRIS INC: Faces RICO/Antitrust Charges Over EpiPen Pricing VIATRIS INC: Faces Securities Suit Over Misleading Statements VIATRIS INC: Faces Securities Suit Over Upjohn-Mylan Merger Deal WENDY'S INT'L: Bid to Dismiss Gollman's 1st Cause of Action Denied WORLD WILDLIFE: Valenzuela Suit Removed to C.D. California ZUFFA LLC: Sanchez Suit Removed to C.D. California ZURU LLC: Bui Files Suit in C.D. California ********* 1ST SOURCE: Tompach Sues Over Failure to Safeguard Data ------------------------------------------------------- Pamela Tompach, on behalf of herself and all others similarly situated v. 1st SOURCE CORPORATION and 1st SOURCE BANK, Case No. 3:23-cv-00711-DRL-MGG (N.D. Ind., July 26, 2023), is brought for its failure to properly secure and safeguard her and roughly 450,000 similarly situated individuals' names, Social Security numbers, driver's license or state identification card numbers, other government-issued identification numbers, and dates of birth (the "Private Information") from hackers. On July 19, 2023, 1st Source filed a data breach notification with the Attorney General of Maine. Around the same time, 1st Source also sent out data breach letters (the "Notice") to individuals whose Private Information was compromised as a result of the hacking incident. Based on the Notice, 1st Source became aware of a critical vulnerability impacting its secure file transfer solution and conducted an investigation that determined that third parties gained access to and "may have" acquired its customers' files, including Plaintiff's and Class Members' Private Information (the "Data Breach"). In response, 1st Source is providing affected customers with access to up to 12 months of credit monitoring and identity protection services. The Plaintiff and "Class Members" were, and continue to be, at significant risk of identity theft and various other forms of personal, social, and financial harm. The risk will remain for their respective lifetimes. The Private Information compromised in the Data Breach included highly sensitive data that represents a gold mine for data thieves, including but not limited to, names and Social Security numbers that 1st Source collected and failed to protect. Now armed with the Private Information accessed in the Data Breach, data thieves can commit a variety of crimes including, e.g., opening new financial accounts in Class Members' names, taking out loans in Class Members' names, obtaining government benefits, filing fraudulent tax returns, obtaining driver's licenses in Class Members' names but with another person's photograph, and giving false information to police during an arrest. There has been no assurance offered by 1st Source that all personal data or copies of data have been recovered or destroyed, or that Defendant has adequately enhanced its data security supervisory and monitoring practices sufficient to avoid a similar breach of its customers' Private Information in the future. Therefore, Plaintiff and Class Members have suffered and are at an imminent, immediate, and continuing increased risk of suffering ascertainable losses in the form of harm from identity theft and other fraudulent misuse of their Private Information, the loss of the benefit of their bargain, out-of pocket expenses incurred to remedy or mitigate the effects of the Data Breach, and the value of their time reasonably incurred to remedy or mitigate the effects of the Data Breach, says the complaint. The Plaintiff provided their Private Information to 1st Source. 1st Source is the largest locally controlled financial institution in the northern Indiana-southwestern Michigan area with nearly $8 billion in assets and more than 1,100 employees.[BN] The Plaintiff is represented by: Kathleen A. DeLaney, Esq. Christopher S. Stake, Esq. DELANEY & DELANEY LLC 3646 North Washington Blvd. Indianapolis, IN 46205 Phone: (317) 920-0400 Email: kathleen@delaneylaw.net cstake@delaneylaw.net - and - Mason A. Barney, Esq. Tyler J. Bean, Esq. SIRI & GLIMSTAD LLP 745 Fifth Avenue, Suite 500 New York, NY 10151 Phone: (212) 532-1091 Email: mbarney@sirillp.com tbean@sirillp.com ABBVIE INC: Camargo Files Suit Over Adalimumab Prices ----------------------------------------------------- AbbVie 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 in April 2023, a putative class action lawsuit, "Camargo v. AbbVie Inc.," was filed in the United States District Court for the Northern District of Illinois on behalf of arthritis drug "Humira" (adalimumab) patients who paid for Humira based on its list price or who, after losing insurance coverage, discontinued Humira because they could not pay based on its list price, alleging that Humira's list price is excessive in violation of multiple states' unfair and deceptive trade practices statutes. The plaintiff generally seeks monetary damages, injunctive relief, and attorneys' fees. AbbVie Inc. is a pharmaceutical company headquartered in North Chicago, Illinois. AC DISASTER: Shepard Sues Over Disaster Specialists' Unpaid OT -------------------------------------------------------------- LaRHONDA SHEPARD, individually and on behalf of all others similarly situated, Plaintiff v. AC DISASTER CONSULTING LLC, Defendant, Case No. 4:23-cv-00857-P (N.D. Tex., August 16, 2023) is a class action against the Defendant for its failure to pay overtime wages in violation of the Fair Labor Standards Act. The Plaintiff worked for the Defendant as a full-time, benefits-eligible Disaster Recovery Specialist employee from June 17, 2020 until May 26, 2023. AC Disaster Consulting LLC is a nationwide emergency management firm based in Arlington, Texas. [BN] The Plaintiff is represented by: Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 8151 Peters Rd., Suite 4000 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327-3016 E-mail: afrisch@forthepeople.com ACLARIS THERAPEUTICS: Settles Fulcher Shareholder Suit ------------------------------------------------------ Aclaris Therapeutics, 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 in January 2022, it settled a securities class action filed by a Robert Fulcher on September 5, 2019 captioned "Fulcher v. Aclaris Therapeutics, Inc., et al." in the U.S. District Court for the Southern District of New York against the Company and certain of its executive officers. On November 6, 2019, the court consolidated the Fulcher action. The parties signed and filed a settlement agreement in July 2021. The court granted final approval of the settlement on December 9, 2021. Aclaris Therapeutics, Inc. is a clinical-stage biopharmaceutical company focused on developing drug candidates for immuno-inflammatory diseases. ACLARIS THERAPEUTICS: Settles Rosi Consolidated Shareholder Suit ---------------------------------------------------------------- Aclaris Therapeutics, 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 in January 2022, it settled a securities class action filed by a Linda Rosi on July 30, 2019 captioned "Rosi v. Aclaris Therapeutics, Inc., et al." in the U.S. District Court for the Southern District of New York against the Company and certain of its executive officers. On November 6, 2019, the court consolidated the Rosi action. The parties signed and filed a settlement agreement in July 2021. The court granted final approval of the settlement on December 9, 2021. Aclaris Therapeutics, Inc. is a clinical-stage biopharmaceutical company focused on developing drug candidates for immuno-inflammatory diseases. ACUTUS MEDICAL: Faces Consolidated Shareholder Suit Over SEC Filing ------------------------------------------------------------------- Acutus Medical, 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 the company and certain of its current and former officers have been named as defendants in two putative securities class action lawsuits filed by stockholders in the United States District Court for the Southern District of California on February 15, 2022 and March 23, 2022. Plaintiffs allege violations of Section 10(b) of the Exchange Act and Rule 10b-5, and Section 20(a) of the Exchange Act. The complaints allege that the defendants made false and misleading statements about its business, prospects and operations. The putative claims are based upon statements made in filings made by us with the SEC, press releases and on earnings calls between May 13, 2021 and November 11, 2021. The lawsuits seek, among other relief, a determination that the alleged claims may be asserted on a class-wide basis, unspecified compensatory damages, attorney's fees, other expenses and costs. On July 19, 2022, the court consolidated the two actions, appointed a lead plaintiff and appointed lead counsel for the proposed class. On September 16, 2022, the lead plaintiff filed a consolidated amended complaint. Acutus Medical, Inc. designs, manufactures and markets a range of tools for catheter-based ablation procedures to treat various arrhythmias including access sheaths, diagnostic and mapping catheters, ablation catheters, mapping and imaging consoles and accessories, as well as supporting algorithms and software programs. ADDA LLC: Fails to Pay Proper Wages, Adams Suit Alleges ------------------------------------------------------- LINDSEY BROOKE ADAMS; TAKISHA GREEN; and TIASIA LEE, individually and on behalf of all others similarly situated, Plaintiffs v. ADDA, LLC; and VENU DANDA, Defendants, Case No. 1:23-cv-03781-SCJ (N.D. Ga., Aug. 24, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as servers. ADDA, LLC owns and operates Adda Sports Pub & Eatery restaurant located at Suwanee, Georgia. [BN] The Plaintiffs are represented by: Gordon Van Remmen, Esq. Meredith Carter, Esq. HALL & LAMPROS, LLP 300 Galleria Parkway, Suite 300 Atlanta, GA 30339 Telephone: (404) 876-8100 Facsimile: (404) 876-3477 AETNA LIFE: Loses Bid to Appeal Class Certification in Wolff Suit ----------------------------------------------------------------- In the case, JOANNE WOLFF, individually and on behalf of a Class of Similarly Situated Individuals v. AETNA LIFE INSURANCE COMPANY; THE RAWLINGS COMPANY. Aetna Life Insurance Company, Petitioner, Case No. 22-8056 (10th Cir.), the U.S. Court of Appeals for the Third Circuit denies Aetna's petition to appeal under Federal Rule of Civil Procedure 23(f). Federal Rule of Civil Procedure 23(f) authorizes interlocutory review of orders "granting or denying class-action certification." To seek interlocutory review under Rule 23(f), a party must file a 23(f) petition within 14 days of such an order. In the case, Aetna filed a 23(f) petition, months after the District Court certified a class, but 14 days after the District Court revised its class certification order by rewording the class definition. The case requires the Third Circuit therefore, to clarify when modifications to a prior class certification order entitle litigants to a new 14-day period to file a 23(f) petition. Wolff was covered by a long-term disability plan provided by her employer, Bank of America, and administered by Aetna. In 2015, Wolff was seriously injured in a car accident. Because of her injuries, she received disability benefits from Aetna pursuant to her disability plan. In 2017, Wolff received a personal injury settlement payment from the party responsible for the 2015 accident. After Wolff received her settlement, Aetna sought to collect some of the settlement funds to recoup the disability benefits it had paid to Wolff following the car accident. But Wolff maintained that, under the terms of her plan, Aetna was not entitled to recoup disability payments from the third-party settlement paid to her for her personal injuries. Nevertheless, in 2018, Wolff did repay a portion of the disability payouts that Aetna demanded. Wolff filed a putative class action against Aetna in 2019. She alleged that, according to the terms of her disability plan, Aetna had no right to recoup Aetna's disability plan payments from Wolff's personal injury settlement. She further alleged that Aetna's disability plans utilized standard form language without meaningful variation both within and between employers -- i.e., the plan language on the recoupment of personal injury payments was similar regardless of whether the disability plan member was employed by Bank of America or a different employer. So if it were impermissible for Aetna to recoup disability payments from Wolff's personal injury settlement, the same would be true for any other person who enrolled in Aetna's standard form disability plan through his or her employer. Accordingly, Wolff sought to certify a nationwide class composed of all employees who had enrolled in an Aetna standard form disability plan -- beyond just Bank of America employees -- who were allegedly coerced into repaying a portion of their disability payments from their personal injury recoveries. Aetna opposed class certification. On May 25, 2022, the District Court granted Wolff's motion for class certification. It certified a class defined as follows: All persons who were injured and received long-term disability benefits from the defendants as a result of an injury causing event and as against whom defendant sought or recovered reimbursement of long-term disability benefits it had paid to insured from the insureds' tort recoveries and who suffered harm and damages which include, by way of exemplification and not in limitation, the loss of use of money, the loss of interest on money, the loss of possession of their funds, the loss of enjoyment of their funds, their losses in having to free their funds from defendants' encumbrances and payment of money from their tort recoveries to the defendant as a result of defendants' wrongful reimbursement demands and actions based on a violation of the policy. After the District Court certified the class, Aetna took no action to challenge the Class Certification Order within Rule 23(f)'s 14-day period. Three weeks later, on June 15, 2022, Wolff filed a proposed class notice. Aetna filed objections to Wolff's proposed notice on June 23, 2022. On Aug. 17, 2022, nearly three months after the District Court certified a class, Aetna filed a motion to reconsider the Class Certification Order. On Nov. 22, 2022, the District Court filed an order granting in part and denying in part Aetna's motion for reconsideration. The District Court reaffirmed its prior analysis. It did, however, reword the class definition to address a potential fail-safe issue. The District Court revised the class definition to read as follows: All persons who, between Aug. 8, 2013 and Nov. 30, 2017, were members of a long-term disability benefits plan insured and administered by Defendant Aetna Life Insurance Company, were insured under a long-term disability policy that did not identify personal injury recoveries as Other Income Benefits, were injured and received long-term disability benefits from Aetna Life Insurance Company as a result of an injury causing event, and as against whom Aetna Life Insurance Company sought or recovered reimbursement of such long-term disability benefits from funds received from the person's personal injury recovery. On Dec. 6, 2022, 14 days after the District Court's Reconsideration Order and 195 days after the Class Certification Order, Aetna filed the instant 23(f) petition now. In its petition and opening brief, Aetna asserted that we should grant the petition because "the district court disregarded the Court's recent precedent in Allen v. Ollie's Bargain" by certifying a class without performing "Rule 23's required 'rigorous analysis.'" In response, Wolff asserted that the Third Circuit should deny Aetna's petition because it is "patently untimely." She asserted that the District Court's November 22 Reconsideration Order did not change the status quo of class certification. She therefore contended that Aetna was required to file a 23(f) petition within fourteen days of May 25, 2022, which it failed to do. In its reply, Aetna argued for the first time that its 23(f) petition was timely because the district court materially altered its analysis to comply with Ollie's Bargain in a manner that materially altered the composition of the class. It therefore asserted that the 14-day period for seeking appeal under 23(f) began to run from Nov. 22, 2022. The Third Circuit opines that the Nov. 22, 2022, Reconsideration Order made no material change to the Class Certification Order entered on May 25, 2022. The changes to the class definition were minor, and their practical effect on the class will be, at most, limited. Nor did the District Court alter its analysis to conform with any intervening authority. Thus, the proper reference point for assessing the timeliness of Aetna's 23(f) petition is May 25, 2022. And because Aetna did not file the 23(f) petition within 14 days of May 25, its petition is untimely and it denies it. For the foregoing reasons, Aetna's petition to appeal under Federal Rule of Civil Procedure 23(f) is denied. A full-text copy of the Court's Aug. 9, 2023 Opinion is available at https://tinyurl.com/4523637z from Leagle.com. John P. Elliott -- JPE@elliottgreenleaf.com -- Kyle M. Elliott -- kme@elliottgreenleaf.com -- Stewart J. Greenleaf, Jr. -- SJGJr@elliottgreenleaf.com -- Mark J. Schwemler -- mjs@elliottgreenleaf.com -- [ARGUED], Elliott Greenleaf, 925 Harvest Drive, Suite 300, Blue Bell, PA 19422, Counsel for Petitioner Aetna Life Insurance Co. Charles Kannebecker, [ARGUED] 104 W High Street, Milford, PA 18337, Counsel for Respondent Joanne Wolff, individually and on behalf Of a Class of Similarly Situated, Individuals. ALLEGIANT AIR: Class Settlement in Rolle Suit Wins Final Approval ----------------------------------------------------------------- In the case, PAMELA ROLLE, individually, and on behalf of other members of the general public similarly situated, Plaintiff v. ALLEGIANT AIR, LLC, a Nevada corporation; and DOES 1 through 100, inclusive, Defendants, Case No. 2:20-cv-10232-SSS-PDx (C.D. Cal.), Judge Sunshine Sykes of the U.S. District Court for the Central District of California grants the Plaintiff's Motion for Final Approval of Class Action Settlement. Judge Sykes finds that the Settlement was made and entered into in good faith. She approves the Settlement as fair, adequate and reasonable to all Class Members. No objections were received. Any Class Members who have not timely and validly requested exclusion from the Class are thus bound by the Judgment. For purposes of effectuating the Settlement, Judge Sykes finally certifies the following Class: All persons employed by Allegiant as California-based flight attendants at any point from Sept. 25, 2016, through April 25, 2023. She confirms the appointment of Rolle as the class representative and The Bainer Law Firm APC as the Class Counsel. Judge Sykes finds that the following Class Members submitted a valid and timely Request for Exclusion and therefore will not be bound by the terms of the Stipulation: Deanna Tregre, Patricia Johnson, and Victor Cipolla. The Plaintiff and all other Class Members, except the Class Member(s) identified, will have fully, finally, and forever released, relinquished, and discharged the Released Parties from all Released Claims as defined by the Stipulation. They are enjoined from filing or prosecuting any other cases, claims, suits or administrative proceedings involving Released Claims. Judge Sykes authorizes the Settlement Administrator to pay the Net Settlement Amounts to the Class Members in accordance with the terms of the Stipulation. The Class Counsel will be paid $650,000 as their attorneys' fees and $12,818.66, for reimbursement of costs and expenses from the Gross Settlement Amount in accordance with the terms of the Stipulation. Rolle will be paid an Enhancement Payment in the amount of $10,000 from the Gross Settlement Amount in accordance with the terms of the Stipulation. The Settlement Administrator will be paid $7,500 from the Gross Settlement Amount for the costs and expenses of administering the Settlement. A payment in the amount of $50,000 from the Gross Settlement Amount will be allocated to penalties under The Labor Code Private Attorneys General Act of 2004, California Labor Code sections 2698, et seq., and paid by the Settlement Administrator directly to the California Labor and Workforce Development Agency. The Parties will implement the Settlement according to its terms. The Court reserves exclusive and continuing jurisdiction over the Action, the Plaintiff, the Class Members, and Allegiant for purposes of supervising the implementation, enforcement, construction, administration and interpretation of the Settlement and the Judgment. Judge Sykes enters judgment for the Plaintiff and the Class Members in accordance with the terms of the Stipulation, and her Order is a final and appealable order. If the Settlement does not become final and effective in accordance with its terms, the Judgment will be rendered null and void and will be vacated and, in such event, all related orders entered, and all releases delivered in connection therewith also will be rendered null and void. The Court sets a Non-Appearance Hearing (Case Review) Re: Distribution on Feb. 10, 2024, at 2:00 p.m. The parties must file a final report regarding distribution by Feb. 2, 2024. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/4mr4mwjb from Leagle.com. ALLSTATE INSURANCE: Golla Files Suit in N.D. Ohio ------------------------------------------------- A class action lawsuit has been filed against Allstate Insurance Company. The case is styled as Sherry Golla, individually and on behalf of all other similarly situated v. Allstate Insurance Company, Case No. 1:23-cv-01469-DAR (N.D. Ohio, July 27, 2023). The nature of suit is stated as Insurance. The Allstate Corporation -- http://www.allstate.com/-- is an American insurance company, headquartered in Northfield Township, Illinois, near Northbrook, since 1967.[BN] The Plaintiff is represented by: Frank A. Bartela, Esq. Patrick J. Perotti, Esq. DWORKEN & BERNSTEIN-PAINESVILLE 60 South Park Place Painesville, OH 44077 Phone: (440) 352-3391 Email: fbartela@dworkenlaw.com pperotti@dworkenlaw.com - and - James A. DeRoche, Esq. GARSON JOHNSON 2nd Floor Van Roy Building 2900 Detroit Avenue Cleveland, OH 44113-2710 Phone: (216) 696-9330 Fax: (216) 696-8558 Email: jderoche@garson.com - and - Victor T. DiMarco, Esq. WESTON HURD - CLEVELAND 1300 East Ninth Street, Ste. 1400 Cleveland, OH 44114 Phone: (216) 687-3269 Fax: (216) 621-8369 Email: vdimarco@westonhurd.com The Defendant is represented by: Emily C. Eggmann, Esq. DENTONS US - CHICAGO 233 South Wacker Drive, Ste. 5900 Chicago, IL 60606 Phone: (312) 876-2818 Email: emily.eggmann@dentons.com AMERICAN EAGLE: Herrera ADA Suit Removed to D. New Jersey --------------------------------------------------------- The case styled as Carlos Herrera, on behalf of himself and all others similarly situated v. American Eagle Outfitters, Inc., Case No. HUD-L-001812-23 was removed from the Superior Court of New Jersey, Hudson County, to the U.S. District Court for the District of New Jersey on July 27, 2023. The District Court Clerk assigned Case No. 2:23-cv-04036-SDW-ESK to the proceeding. The lawsuit is brought over alleged violation of the Americans with Disabilities Act. American Eagle Outfitters, Inc. -- http://www.aeo-inc.com/-- is an American clothing and accessories retailer headquartered at SouthSide Works in Pittsburgh, Pennsylvania.[BN] The Plaintiff is represented by: Daniel Zemel, Esq. ZEMEL LAW LLC 660 Broadway Paterson, NJ 07514 Phone: (862) 227-3106 Fax: (973) 525-2552 Email: dz@zemellawllc.com The Defendant is represented by: Benjamin Reed Zakarin, Esq. BARCLAY DAMON LLP 1270 Avenue Of The Americas, Suite 501 New York, NY 10020 Phone: (646) 265-5703 Email: bzakarin@barclaydamon.com AMERICAN HONDA: Gonzalez Files Suit in C.D. California ------------------------------------------------------ A class action lawsuit has been filed against American Honda Motor Co., Inc., et al. The case is styled as Aida Milena Gonzalez, on behalf of herself and all others similarly situated v. Managed Care of North America Inc., Honda Motor Co., Ltd., Case No. 5:23-cv-01462-CJC-AS (C.D. Cal., July 25, 2023). The nature of suit is stated as Other Contract for Breach of Contract. The American Honda Motor Company, Inc. -- https://www.honda.com/ -- is the North American subsidiary of the Honda Motor Company.[BN] The Plaintiff is represented by: Marion Curry Passmore, Esq. Melissa A. Fortunato, Esq. BRAGAR EAGEL AND SQUIRE PC 445 South Figueroa Street Suite 3100 Los Angeles, CA 90071 Phone: (213) 612-7235 Fax: (213) 214-0506 Email: passmore@bespc.com fortunato@bespc.com APPLE INC: Court Dismisses Costa Class Suit With Leave to Amend --------------------------------------------------------------- In the case, FRANCIS COSTA, Plaintiff v. APPLE, INC., Defendant, Case No. 23-cv-01353-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California grants Apple's motion to dismiss a putative class action claim. Apple moves to dismiss a putative class action claim brought under California's Unfair Competition Law ("UCL") by Plaintiff Amanda Hoffman, a former Apple employee who alleges that the company violated the law by not including the value of vested restricted stock units ("RSUs") in calculating employees' regular and overtime pay. Of the five claims asserted in the First Amended Complaint ("FAC"), Apple challenges only the UCL claim, arguing that: (1) because Hoffman pleaded that she is entitled to remedies at law (in the form of damages and penalties), she cannot recover equitable remedies; and (2) because Hoffman is a former Apple employee, she lacks standing to pursue injunctive relief. Costa filed the lawsuit in March 2023, alleging that Apple, his former employer, violated the Fair Labor Standards Act ("FLSA") when it did not include the value of vested RSUs in the regular pay rates for its hourly, non-exempt employees, and thus underpaid their overtime rates. Upon a motion to dismiss from Apple, Costa filed the FAC, which adds Hoffman as a named Plaintiff and alleges violations of California law. Because the instant motion focuses on Hoffman's UCL claim, Judge Orrick focuses on the facts most relevant to it. Hoffman worked for Apple as a "Genius" (a "retail sales employee/senior tech advisor") and "At-Home Senior Tech Advisor" in Palm Desert, California, from September 2012 to October 2022. At the time, she was an hourly, non-exempt employee. The FAC alleges that in addition to regular hourly pay, Apple compensated the Plaintiffs in the form of RSUs that they earned during their employment and had a one- to three-year vesting period. It asserts that Apple maintains a common corporate policy not to include the value of vested restricted stock unit compensation" in the Plaintiffs' regular pay rates and thus "unlawfully underpaid" their overtime pay rates. As a result, the FAC alleges, the Plaintiffs worked more than 40 hours per week and/or 8 hours per day—which they allegedly did on a routine basis -- without receiving proper overtime pay. Because Apple allegedly did not pay its non-exempt employees the appropriate overtime rate, the FAC alleges that Apple's wage statements did not accurately reflect all rates of pay and did not correctly itemize the hours worked at each rate of pay It also alleges that Apple did not pay all the wages that were due when Hoffman's employment ended, including the appropriate rate of overtime pay. I The FAC asserts an FLSA claim on behalf of the Plaintiffs and the "FLSA Collective" class. It also alleges four state law claims on behalf of Hoffman and a California class: failure to pay overtime in violation of California Labor Code sections 510, 1194, and 1198, and California Wage Order No. 4; failure to provide accurate itemized wage statements in violation of California Labor Code section 226; waiting time penalties in violation of sections 201 to 203; and violations of the UCL. Only the UCL claim is now at issue. Apple first argues that the UCL claim should be dismissed with prejudice because Hoffman has not (and cannot) plead that she lacks an adequate legal remedy. The Plaintiffs' response is three-fold. First, they contest the application of Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020) to the case, arguing that Sonner "is limited to when federal courts are exercising diversity jurisdiction" and "does not apply here where the court has supplemental jurisdiction over Hoffman's state law claims because it has original jurisdiction under the FLSA." Even if Sonner applies, they argue that Hoffman has plausibly pleaded that she has an inadequate remedy at law, because the Labor Code claims would only allow her to recover three years' worth of back wages, while the UCL would allow her to recover four. Finally, they contend that Hoffman is allowed to plead alternative claims for relief at this stage of the case. A plaintiff need not allege facts showing why their remedies at law are inadequate or otherwise prove that inadequacy at the pleadings stage. At this point, a plaintiff must only allege "an unconditional statement that his legal remedies are inadequate." As pleaded, Judge Orrick finds that the FAC does not satisfy this minimum requirement. But the proposed Second Amended Complaint ("SAC") does. If Sonner applies to this case, the Plaintiffs can remedy this issue through amendment. Judge Orrick gives them the opportunity to do so. Next, Apple argues that Hoffman lacks standing to pursue injunctive relief under the UCL because she "has not alleged that she has a reasonably certain need for prospective relief pertaining to Apple's future employment practices" as a former company employee. Judge Orrick finds that as a former employee, Hoffman has not shown an actual, imminent, or certainly impending injury that would support standing to seek "a permanent injunction requiring Apple to pay required wages." Because additional allegations—namely, the addition of a current Apple employee as a named plaintiff -- could cure this problem, Judge Orrick again gives the Plaintiffs leave to amend. For these reasons, Judge Orrick concludes that if Sonner applies, Hoffman may seek equitable relief in the alternative at this early stage of the case. The problem is that she does not plead the minimum: that she lacks an adequate remedy at law. Nor has she established standing to seek injunctive relief as a former Apple employee. The Plaintiffs requested leave to file an amended complaint that appears to resolve these deficiencies by expressly pleading a lack of an adequate remedy at law and adding a third named plaintiff who currently works for Apple. Their request to file a SAC is granted, although Judge Orrick would have given leave to amend regardless. Any amended complaint is due 20 days after the issuance of the Order. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/yv4xtpc3 from Leagle.com. ARCUS HUNTING: Web Site Not Accessible to Blind, Santana Alleges ---------------------------------------------------------------- JUAN SANTANA, individually, and on behalf of all others similarly situated, Plaintiff v. ARCUS HUNTING, LLC, Defendant., Case No. 1:23-cv-01044-GLS-CFH (N.D.N.Y., Aug. 24, 2023) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. ARCUS HUNTING, LLC manufactures and markets athletic equipment. The Company offers bow hunting, archery consumables, and accessories. Arcus Hunting serves customers in the United States. [BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 Email: ekroub@mizrahikroub.com ARDENT MILLS: Court Grants Bid to Remand Arceo Class Suit --------------------------------------------------------- In the case, Jose Arceo v. Ardent Mills, LLC et al., Case No. 5:23-cv-01146-AB-E (C.D. Cal.), Judge Andre Birotte Jr. of the U.S. District Court for the Central District of California grants the Plaintiff's Motion for Remand and denies the Defendant's Ex Parte Application to File Sur-reply. The Defendant filed an opposition to the motion and the Plaintiff filed a reply. The Defendant also filed an Ex Parte Application to File Sur-reply that the Plaintiff opposed. Judge Birotte resolves these matters without oral argument and therefore vacates the Aug. 11, 2023 hearing. The Plaintiff filed this putative class action in state court, alleging state law wage and hour violations, and, in a First Amended Complaint, adding a claim for PAGA penalties. Defendant The removed, invoking traditional diversity jurisdiction under 28 U.S.C. Section 1332(a). The Plaintiff's Motion for Remand argues that the Defendant failed to establish diversity of citizenship because it did not plausibly allege its own citizenship: The Defendant is an LLC, but it alleged its citizenship as if it were a corporation. He also argued that the Defendant failed to establish the amount in controversy. After briefing closed, the Defendant filed an Ex Parte Application to File a Sur-reply, and two days later, on Aug. 4, 2023, without leave, filed the Sur-reply. The Defendant seeks leave to file a sur-reply, claiming that it needs to do so since the Plaintiff's Reply raises four new arguments that he failed to raise in its Motion and because it has discovered new facts regarding the diversity of the parties. But the four new arguments that the Defendant faults the Plaintiff for raising the first time in his reply are merely responses to arguments that it made for the first time in its opposition and failed to present in its Notice of Removal (NOR). Accordingly, the Plaintiff's PAGA arguments do not entitle the Defendant to file a sur-reply. Nor do the Defendant's "new facts" regarding the diversity of the parties warrant a sur-reply. The "new facts" that the Defendant wishes to brief concern its own citizenship, in particular, the citizenship of the corporations that are members of Ardent Mills, LLC. But information about the Defendant's own citizenship is not new, because a corporate defendant, like any other, is presumed to know its own citizenship. For these reasons, Judge Birotte denies the Defendant's Ex Parte Application to File Sur-reply and strikes the sur-reply. As noted, in its NOR, the Defendant alleged its citizenship as if it were a corporation. But it is an LLC, and an LLC is a citizen of every state of which its owners/members are citizens. Thus, to properly allege diversity jurisdiction with respect to a limited liability company, the citizenship of all of the members must be pled. In its opposition, the Defendant tried to correct this error, but apparently still left out some information concerning the citizenship of "additional business entities" that it sought to add through the sur-reply. But the Court is denying the Defendant's Ex Parte Application to file that Sur-reply, so it has not fully alleged the citizenship of all of its members and has therefore failed to allege complete diversity. On this ground alone, Judge Birotte holds that the Motion to Remand is granted. Finally, Judge Birotte holds that the Defendant has not established the amount in controversy. He calculates the amount in controversy to be $20,485.04. This amount, he says, is far below the jurisdictional threshold. Accordingly, the Defendant has not shown by a preponderance of the evidence that the amount in controversy is satisfied. The Motion for Remand is granted on this basis, too. For the foregoing reasons, the Defendant has failed to establish either complete diversity of the parties, or that the amount in controversy is satisfied. Accordingly, it has failed to meet its burden of establishing diversity jurisdiction. The Plaintiff's Motion for Remand is therefore granted. The Clerk of Court is ordered to immediately remand this action to the state court from which it was removed. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/228ca8ys from Leagle.com. ASHLEY FURNITURE: Herrera ADA Suit Removed to D. New Jersey ----------------------------------------------------------- The case styled as Carlos Herrera, on behalf of himself and all others similarly situated v. Ashley Furniture Industries, Inc., Case No. HUD-L-002142-23 was removed from the Superior Court of New Jersey, Hudson County, to the U.S. District Court for the District of New Jersey on July 28, 2023. The District Court Clerk assigned Case No. 2:23-cv-04053-ES-MAH to the proceeding. The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Ashley Furniture Industries, Inc. -- https://www.ashleyfurniture.com/ -- is an American home furnishings manufacturer and retailer, headquartered in Arcadia, Wisconsin.[BN] The Plaintiff is represented by: Daniel Zemel, Esq. ZEMEL LAW LLC 660 Broadway Paterson, NJ 07514 Phone: (862) 227-3106 Fax: (973) 525-2552 Email: dz@zemellawllc.com The Defendant is represented by: Amber M. Spataro, Esq. LITTLER MENDELSON PC One Newark Center, 8th Floor Newark, NJ 07102 Phone: (973) 848-4700 Email: aspataro@littler.com - and - David S. Ostern, Esq. LITTLER MENDELSON P.C. One Newark Center 1085 Raymond Blvd., 8th Floor Newark, NJ 07102 Phone: (973) 848-4712 Email: dostern@littler.com AXSOME THERAPEUTICS: Gru Shareholder Suit Hits SEC Misreporting --------------------------------------------------------------- Axsome Therapeutics, Inc. disclosed in its Form 10-Q the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 7, 2023, that a securities class action filed on May 13, 2022 by an Evy Gru captioned "Gru v. Axsome Therapeutics, Inc., et al." in the U.S. District Court for the Southern District of New York against the company and certain of its current and former officers and one director is ongoing. The complaint asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder, and alleges, among other things, that the defendants made false statements and omissions concerning the company's Chemistry Manufacturing and Controls practices, and its New Drug Application with the FDA, with respect to one of its product candidates, "AXS-07." The named plaintiff seeks unspecified damages, fees, interest, and costs. On October 7, 2022, the Gru plaintiffs filed an amended complaint, which contains substantially similar allegations as in the initial complaint. Defendants filed their motion to dismiss the amended complaint on December 16, 2022, which motion remains pending before the court. Axsome Therapeutics, Inc. is a biopharmaceutical company developing and delivering therapies for central nervous system. The company's portfolio includes three not yet approved product candidates, AXS-07, AXS-12, and AXS-14, which are being developed for multiple indications, and two approved products, Auvelity(R) and Sunosi(R), both of which are also being developed for further indications. BANK OF AMERICA: Magers Sues Over Misappropriating Information -------------------------------------------------------------- Jason Robert Magers and Randy Hermann, individually and on behalf of all other persons similarly situated v. BANK OF AMERICA, N.A., Case No. 3:23-cv-00459-RJC-DCK (W.D.N.C., July 25, 2023), is brought arising out of Bank of America's deceitful business practices which harmed thousands of consumers over a period of many years, beginning in 2012, and across multiple product lines and services for misappropriating sensitive personal information to open accounts without customer knowledge or authorization. On July 11, 2023, the Consumer Financial Protection Bureau ("CFPB") ordered Bank of America to pay more than $100 million to customers, in part for misappropriating sensitive personal information to open accounts without customer knowledge or authorization. Under the Consumer Financial Protection Act of 2010 ("CFPA"), the CFPB has the authority to take action against institutions violating consumer financial protection laws. According to the CFPB, Bank of America's practices inter alia violated the CFPA by engaging in unfair and deceptive or otherwise prohibited acts or practices, the Fair Credit Reporting Act by using or obtaining consumer reports without a permissible purpose in connection with unauthorized credit cards, and the Truth in Lending Act implementing Regulation Z, by issuing credit cards to consumers without their knowledge or consent. Bank of America deployed sales-based incentive goals and evaluation criteria for its employees, resulting in some employees illegally applying for and enrolling consumers in credit card accounts without consumers' knowledge or authorization, says the complaint. The Plaintiffs are ongoing customers of Bank of America. Bank of America is a global bank serving 68 million people and small business clients and is the second largest bank providing consumer services in the country.[BN] The Plaintiffs are represented by: Joel R. Rhine, Esq. Martin Ramey, Esq. RHINE LAW FIRM, P.C. North Carolina State Bar No. 16028 1612 Military Cutoff, Suite 300 Wilmington, NC 28403 Phone: 910-772-9960 Fax: 910-772-9062 Email: jrr@rhinelawfirm.com mjr@rhinelawfirm.com - and - Mona Lisa Wallace, Esq. John S. Hughes, Esq. WALLACE AND GRAHAM, P.A. 525 North Main Street Salisbury, NC 28144 Phone: 704-633-5244 Fax: 704-633-9434 Email: mwallace@wallacegraham.com jhughes@wallacegraham.com - and - Jeffrey S. Goldenberg, Esq. Todd B. Naylor, Esq. GOLDENBERG SCHNEIDER, L.P.A. 4445 Lake Forest Drive, Suite 490 Cincinnati, OH 45242 Phone: (513) 345-8291 Fax: (513) 345-8294 Email: jgoldenberg@gs-legal.com tnaylor@gs-legal.com - and - D. Aaron Rihn, Esq. ROBERT PEIRCE & ASSOCIATES, P.C. 707 Grant Street, Suite 125 Pittsburgh, PA 15219 Phone: 412-281-7229 Fax: 412-281-4229 Email: arihn@peircelaw.com - and - Charles E. Schaffer, Esq. Daniel C. Levin, Esq. Nicholas J. Elia, Esq. LEVIN SEDRAN & BERMAN LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Phone: (215)592-1500 Fax: (215)592-4663 Email: cschaffer@lfsblaw.com dlevin@lfsblaw.com nelia@lfsblaw.com - and - Joseph M. Lyon, Esq. THE LYON FIRM 2754 Erie Ave. Cincinnati, OH 45208 Phone: (513) 381-2333 Fax: (513) 766-9011 Email: jlyon@thelyonfirm.com BENDIX COMMERCIAL: Faces Gressley Wage-and-Hour Suit in N.D. Ohio ----------------------------------------------------------------- CODY GRESSLEY, individually and on behalf of all others similarly situated, Plaintiff v. BENDIX COMMERCIAL VEHICLE SYSTEMS LLC, Defendant, Case No. 1:23-cv-01609 (N.D. Ohio, August 17, 2023) is a class action against the Defendant for its failure to pay overtime wages in violation of the Fair Labor Standards Act. The Plaintiff worked for the Defendant as a non-exempt employee from September 2022 until January 2023. Bendix Commercial Vehicle Systems LLC is a manufacturer of commercial vehicle systems based in Ohio. [BN] The Plaintiff is represented by: Joshua R. Graham, Esq. GRAHAM & GRAHAM CO. LPA 17 North 4th Street, 3rd Fl. Zanesville, OH 43702 Telephone: (740) 454-8585 Facsimile: (740) 454-0111 E-mail: jrg@grahamlpa.com - and - Charles R. Ash, Esq. ASH LAW, PLLC 402 W. Liberty Street Ann Arbor, MI 48103 Telephone: (734) 234-5583 E-mail: cash@nationalwagelaw.com - and - Oscar Rodriguez, Esq. HOOPER HATHAWAY, PC 126 South Main Street Ann Arbor, MI 48104 Telephone: (734) 662-4426 E-mail: orod@hooperhathaway.com BEREAL SAS: Hare Files Suit in N.D. Illinois -------------------------------------------- A class action lawsuit has been filed against BeReal S.A.S. The case is styled as Pierce Hare, on behalf of himself and all others similarly situated v. BeReal S.A.S., Case No. 1:23-cv-04974 (N.D. Ill., July 30, 2023). The nature of suit is stated as Other Personal Property for Property Damage. BeReal SAS -- https://bereal.com/en/ -- provides social media platform. The Company focuses on building a mobile application that everyday, at a random time, notifies everyone to capture and share a photos.[BN] The Plaintiff is represented by: Blake Hunter Yagman, Esq. ISRAEL DAVID LLC 17 State Street, Suite 4010 New York, NY 10004 Phone: (212) 739-0622 Email: blake.yagman@davidllc.com BESTOP PRP: Web Site Not Accessible to Blind, Santana Says ---------------------------------------------------------- JUAN SANTANA, individually, and on behalf of all others similarly situated, Plaintiff v. BESTOP PRP, LLC, Defendant, Case No. 1:23-cv-01053-AMN-TWD (N.D.N.Y., Aug. 24, 2023) alleges violation of the Americans with Disabilities Act. The Plaintiff alleges in the complaint that the Defendant's Web site, speedstrap.com, is not fully or equally accessible to blind and visually-impaired consumers, including the Plaintiff, in violation of the ADA. The Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's Web site will become and remain accessible to blind and visually-impaired consumers. BESTOP PRP, LLC manufactures automobile parts. The Company offers bumpers, guards, tire carriers, doors, window kits, floor mats, cargo liners, seating, bed caps, steps and running boards, and cleaning products for jeeps, trucks, bronco, and gladiator. [BN] The Plaintiff is represented by: Edward Y. Kroub, Esq. MIZRAHI KROUB LLP 225 Broadway, 39th Floor New York, NY 10007 Telephone: (212) 595-6200 Facsimile: (212) 595-9700 Email: ekroub@mizrahikroub.com BLOOMINGDALE'S INC: Rosenthal Suit Dismissed Without Prejudice -------------------------------------------------------------- In the case, Scott Rosenthal, individually and on behalf of all others similarly situated, Plaintiff v. Bloomingdale's, Inc., Defendant, Civil Action No. 22-11944-NMG (D. Mass.), Judge Nathaniel M. Gorton of the U.S. District Court for the District of Massachusetts grants the Defendant's motion to dismiss without prejudice. The putative class action arises from alleged violations of the Massachusetts Wiretap Statute, M.G.L. ch. 272, Section 99 and Massachusetts privacy law, M.G.L. ch. 214, Section 1. The named Plaintiff, Rosenthal, seeks for himself and on behalf of persons similarly situated, judicial relief from Bloomingdales.com, LLC ("Bloomingdale's"). He alleges that Bloomingdale's unlawfully wiretapped the personal and private electronic communications of visitors to its website, www.bloomingdales.com, without their consent. The Plaintiff brings claims for damages because of the alleged violations of his privacy. Pending before the Court is the Defendant's motion to dismiss for lack of personal jurisdiction and failure to state a claim. Rosenthal resides in Barnstable County, Massachusetts. Bloomingdale is an Ohio limited liability company with its principal place of business in New York.1 The sole member of Bloomingdales.com, LLC is Bloomingdale's, LLC, of which the sole member is Macy's Retail Holdings, LLC. The sole member of that LLC is Macy's, Inc., a Delaware corporation with its principal place of business in New York. As alleged in the complaint, Bloomingdale's commissions third-party vendors to embed snippets of JavaScript computer code ("Session Replay Code") on Bloomingdale's website, which then deploys on each website visitor's internet browser for the purpose of intercepting and recording that visitor's electronic communications with the Bloomingdale's website. Those third-party vendors (collectively, "Session Replay Providers") create and deploy the Session Replay Code at Bloomingdale's request. The Plaintiff names one vendor, FullStory, as an example of Bloomingdale's Session Replay Providers. Bloomingdale's and the Session Replay Providers then use those recorded Website Communications to recreate the website visitors' entire visit to www.bloomingdales.com. The Session Replay Providers create a video replay of the user's behavior on the website and provide it to Bloomingdale's for analysis. In essence, the Plaintiff contends that Bloomingdale's is "looking over the shoulder" of each website visitor for the entire duration of their website interaction. He alleges that while in Massachusetts, he visited www.bloomingdales.com on his computer or cellphone approximately once or twice a month and during those visits, Bloomingdale's unlawfully recorded and collected his Website Communications and sent them to Session Replay Providers. In November 2022, Rosenthal filed a two-count complaint in the Court against Bloomingdale's contending that its alleged collection and use of information about his activity on its website constituted unlawful wiretapping and an invasion of privacy in violation of M.G.L. ch. 272, Section 99 and M.G.L. ch. 214, Section 1. Bloomingdale's moved to dismiss in February 2023. Judge Gorton finds that the complaint states in a conclusionary fashion that personal jurisdiction exists because the claims "resulted from defendant's purposeful and tortious acts directed towards citizens of Massachusetts." Bloomingdale's did not, however, initiate contact with the forum state, instead, a Massachusetts resident accessed www.bloomingdales.com while in the Commonwealth. Because the complaint fails to identify a "demonstrable nexus" between the Plaintiff's claims and Bloomingdale's contacts with Massachusetts, the Court does not have specific personal jurisdiction over Bloomingdale's. The complaint is dismissed. The Plaintiff requested leave to amend his complaint in the event of dismissal. Rosenthal is be permitted to file an amended complaint within 30 days of the date of the Decision. For the foregoing reasons, Bloomingdale's motion to dismiss is allowed without prejudice. A full-text copy of the Court's Aug. 11, 2023 Memorandum & Order is available at https://tinyurl.com/musn35wf from Leagle.com. BP EXPLORATION: Court Dismisses Colston's Claims and Closes Suit ---------------------------------------------------------------- In the case, DOMINIQUE COLSTON, Plaintiff v. BP EXPLORATION & PRODUCTION INC., et al., Defendants, Civil Action No. 1:22-cv-422-TFM-MU (S.D. Ala.), Judge Terry F. Moorer of the U.S. District Court for the Southern District of Alabama, Southern Division, dismisses the claims with prejudice and directs the Clerk of Court to close the case. Pending before the Court is the parties' Rule 41(a) Stipulation of Dismissal With Prejudice, filed Aug. 9, 2023. The joint stipulation is signed by both sides, and the Plaintiff states she reserves her remaining rights that he may have under the Deepwater Horizon Medical Benefits Class Action Settlement Agreement. Consequently, by operation of Fed. R. Civ. P. 41, the action has been dismissed in accordance with the joint notice. Therefore, the claims in the case are dismissed with prejudice with each party to bear their own attorneys' fees and costs. The Clerk of the Court is directed to close the case. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/bdev9mvk from Leagle.com. BRAEMAR HOTELS AND RESORTS: Labor Suit Over Missed Breaks Ongoing ----------------------------------------------------------------- Braemar Hotels & Resorts 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 a class action lawsuit filed against one of the company's hotel management companies in the Superior Court of the State of California in and for the County of Contra Costa on December 20, 2016, is still ongoing. Suit alleges violations of certain California employment laws, which class action affects two hotels owned by subsidiaries of the company. The court has entered an order granting class certification with respect to a statewide class of non-exempt employees of the hotel's manager who were allegedly deprived of rest breaks as a result of its manager's previous written policy requiring its employees to stay on premises during rest breaks and a derivative class of non-exempt former employees of its manager who were not paid for allegedly missed breaks upon separation from employment. Notices to potential class members were sent out on February 2, 2021. Potential class members had until April 4, 2021 to opt out of the class, however, the total number of employees in the class has not been definitively determined and is the subject of continuing discovery. The opt out period has been extended until such time that discovery has concluded. In May 2023 the trial court requested additional briefing from the parties to determine whether the case should be maintained, dismissed, or the class de-certified. The trial court set a due date of August 7, 2023 for the briefs. As of June 30, 2023, no amounts have been accrued. Braemar Hotels and Resorts Inc., together with its subsidiaries, is a Maryland corporation that invests primarily in high revenue per available room luxury hotels and resorts. BYRON UDELL: Bryant Class Suit Dismissed With Leave to Amend ------------------------------------------------------------ In the case, JOHN BRYANT, Individually and on behalf of all others similarly situated, Plaintiff v. BYRON UDELL & ASSOCIATES INC. D/B/A ACCUQUOTE, Defendant, Civil Action No. 1:23-cv-00414 (AJT/LRV) (E.D. Va.), Judge Anthony J. Trenga of the U.S. District Court for the Eastern District of Virginia, Alexandria Division, grants the Defendant's Motion to Dismiss with leave for the Plaintiff to file a second amended complaint. Before the Court is the Defendant's Motion to Dismiss under Rule 12(b)(1) and 12(b)(6). Plaintiff Bryant's First Amended Class Action Complaint ("FAC") alleges violations of state and federal telemarketing laws. The action stems from the Plaintiff's receipt of a single unwanted telephone call soliciting insurance policies that purportedly violated federal and state telemarketing laws. The Complaint names both AccuQuote and Mutual of Omaha Insurance Co. as Defendants. However, on July 24, 2023, the Plaintiff and Defendant Mutual of Omaha filed a notice of settlement. On Aug. 9, 2023, the Plaintiff moved to voluntarily dismiss with prejudice Mutual of Omaha, which the Court granted. As alleged in the FAC, the Plaintiff's cell phone number was registered on the National Do Not Call Registry, yet on Aug. 31, 2022, he received a pre-recorded call from a spoofed Virginia area code that did not allow callbacks. The pre-recorded call solicited information about reducing or eliminating costs not covered by Medicare, and the Plaintiff was soon transferred to a licensed insurance agent for more information. While the pre-recorded caller originally identified herself as "Jackie" calling on behalf of "Senior Life," upon transfer to a live agent, a message immediately played thanking the Plaintiff for calling Mutual of Omaha. A live agent then joined the call who identified himself as "Burt Smith with Mutual of Omaha," following which the Plaintiff ultimately terminated the call. According to the Plaintiff, during discovery in the action, Mutual of Omaha has revealed that Accuquote, or a vendor they retained, made this pre-recorded call. He further alleges that one of Mutual of Omaha's strategies for marketing its insurance policies and generating new customers is telemarketing done by third parties, including Accuquote to individuals who did not consent to such calls. The Plaintiff, on behalf of himself and the proposed class, purports to "have been harmed by the acts of Defendant because their privacy has been violated, they were annoyed and harassed, and, in some instances, they were charged for incoming calls and the calls occupied their cellular telephone lines, rendering them unavailable for legitimate communication." The Plaintiff identifies four separate classes and will presumably seek class certification under Rule 23(b)(3). He alleges four counts in the FAC: (1) Violations of the Telephone Consumer Protection Act) ("TCPA"), 47 U.S.C. Section 227(b)(1)(A); (2) Violation of the Virginia Telephone Privacy Protection Act ("VTPPA"), Va. Code Section 59.1-514; (3) Violation of the VTTPA, Va. Code Section 59.1-512; and (4) Violation of the VTPPA, Va. Code Section 59.1-513. The claims for relief are principally based on (a) non-emergency calls to cellular numbers using artificial or prerecorded voice (Count I); (b) calls made to numbers listed on the National Do Not Call Registry without prior express written consent (Count II); (c) telephonic solicitation calls where the caller failed to identify themselves by their first and last names and/or failed to promptly identify on whose behalf the call was made (Count III); and (d) recipients' inability to call back the original caller (Count IV). Each count carries a statutory penalty of $500 for first offenses; a willfulness finding may result in treble damages available for Count I and up to $5,000 for Counts II-IV. The Plaintiff also seeks injunctive relief to prohibit the Defendant from making phone calls to numbers on the National Do Not Call Registry. AccuQuote moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, Rule 12(b)(6) for failure to state a claim. Judge Trenga opines that the Plaintiff has failed to plead with sufficient detail that the telemarketing call was "fairly traceable" to AccuQuote. But even if he reads "they" in paragraph 32 as referring to AccuQuote, the allegations are still insufficient to plausibly allege liability on the part of AccuQuote, as opposed to this mysterious vendor that AccuQuote may have "retained." And without any indication of the nature of the relationship or terms of agreement between AccuQuote and its unknown vendor, the connection between the wrongful conduct and AccuQuote is entirely speculative and not fairly traceable to it. Similarly, because the Plaintiff has not sufficiently alleged traceability, he cannot show that a favorable judicial decision is likely to redress his injury. Therefore, the Plaintiff has failed to establish standing and the Court is thus without subject matter jurisdiction. Judge Trenga grants the Motion under Rule 12(b)(1). In the alternative, AccuQuote urges dismissal under Rule 12(b)(6) on the grounds that the Plaintiff does not allege AccuQuote placed the call itself and does not allege facts to support a theory of vicarious liability for the actions of an unidentified third party. Judge Trenga holds that dismissal is also warranted on Rule 12(b)(6) grounds. He opines that the Plaintiff has failed to state a claim on the TCPA or VTTPA counts under direct and vicarious liability theories. The Plaintiff has adduced no facts to suggest that AccuQuote initiated the telephone call outside of conclusory allegations and unspecified discovery from Mutual of Omaha that was both (a) devoid of supporting fact and detail and (b) inconclusive as to whether AccuQuote, one of AccuQuote's vendors, or another one of Mutual of Omaha's vendors completely unrelated to AccuQuote placed the call. The Plaintiff was also alleging that the single call was made by a vendor retained by AccuQuote, vicarious liability cannot attach without identifying this vendor and what instructions may have been given to it. For the foregoing reasons, Judge Trenga grants AccuQuote's Motion to Dismiss and dismisses the action. He grants the Plaintiff leave to amend the FAC within 14 days of the date of the Order. The hearing scheduled for Aug. 16, 2023, at 10:00 a.m. was cancelled. Judge Trenga denies as moot the Plaintiff's Motion for Leave to Appear Without Local Counsel at the Hearing. The Clerk is directed to forward copies of the Order to all counsel of record. A full-text copy of the Court's Aug. 11, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/mww6nfac from Leagle.com. CAL-TEX PROTECTIVE: Lassiter-Williams Suit Removed to D. New Jersey ------------------------------------------------------------------- The case styled as Carol Lassiter-Williams, On behalf of herself and all others similarly situated v. Cal-Tex Protective Coatings, Inc., Case No. ESX-L-3737 23 was removed from the Superior Court of New Jersey, Essex County, to the U.S. District Court for the District of New Jersey on July 24, 2023. The District Court Clerk assigned Case No. 2:23-cv-03926-MEF-ESK to the proceeding. The nature of suit is stated as Other Fraud. Cal-Tex Protective Coatings -- https://www.caltexus.com/ -- is a manufacturer of environmental and appearance-protection products for the automotive.[BN] The Plaintiff is represented by: Andrew R. Wolf, Esq. JAVIER LUIS MERINO, Esq. THE DANN LAW FIRM PC 1520 U.S Highway 130, Suite 101 North Brunswick, NJ 08902 Phone: (732) 545-7900 Fax: (732) 545-1030 Email: awolf@dannlaw.com jmerino@dannlaw.com - and - David C. Ricci, Esq. LAW OFFICE OF DAVID C. RICCI, LLC 51 JFK Parkway, First Floor West Short Hills, NJ 07078 Phone: (973) 218-2627 Fax: (973) 206-6955 Email: dricci@njconsumerlawyer.com The Defendant is represented by: Mark Jason Leavy, Esq. CHERRYTREE CORPORATE CENTER 585 Route 38 East, Suite 501 Cherry Hill, NJ 08002 Phone: (856) 406-1317 Email: mleavy@moodklaw.com CIRCLES OF CARE: Landini Files Suit in M.D. Florida --------------------------------------------------- A class action lawsuit has been filed against Circles of Care, Inc., et al. The case is styled as James Landini, Kaela Marie Perry, individually and on behalf of all others similarly situated v. Circles of Care, Inc., Case No. 6:23-cv-01405-WWB-DCI (M.D. Fla., July 25, 2023). The nature of suit is stated as Other Contract for Federal Trade Commission. Circles of Care -- https://www.circlesofcare.org/ -- is a private mental health, social and family service agency.[BN] The Plaintiffs are represented by: Thiago Coelho, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., Ste. 12th Floor Los Angeles, CA 90010 Phone: (213) 381-9988 Fax: (213) 381-9989 Email: thiago@wilshirelawfirm.com - and - Kevin Lewis, Esq. KL Law, P.L.L.C. 150 S. Pine Island Rd., Suite 300 Plantation, FL 33324 Phone: (954) 551-2295 Email: service@kevinlewislaw.com CISCO SYSTEMS: Bracalente ERISA Suit Dismissed With Leave to Amend ------------------------------------------------------------------ In the case, ROBERT BRACALENTE, et al., Plaintiffs v. CISCO SYSTEMS, INC., et al., Defendants, Case No. 5:22-cv-04417-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, grants Cisco's Motion to Dismiss with leave to amend. The putative ERISA class action is brought by individual participants ("Plaintiffs") in Defendant Cisco's 401(k) Plan and alleges that Cisco breached its ERISA fiduciary duties by offering certain BlackRock LifePath Index Funds.1Cisco has moved to dismiss the Complaint under Rule 12(b)(6), and two amicus briefs have also been filed in support of Cisco's Motion. Plaintiffs Robert Bracalente and Boris Gdalevich have brought the action both individually and on behalf of similarly situated participants and beneficiaries of Cisco's Plan. They allege that Cisco is a fiduciary under the Employee Retirement Income Security Act ("ERISA"), responsible for selecting, monitoring, and retaining the Plan's investment options. Cisco's Plan is a participant-directed 401(k) retirement plan, meaning that participants decide where their contributions should be invested. The Plan's investment options include mutual funds, collective trust funds, and target date funds ("TDFs"). A TDF is an actively managed investment portfolio that gradually changes its investment strategies to be more conservative as the "target" retirement year approaches, a transition referred to as the fund's "glide path." TDF glide paths may vary based on whether they are "to" retirement. They may contain a variety of constituent investments, which can include passively managed assets, actively managed assets, or a mix of both; however, the TDF itself is inherently actively managed. Most pertinent to the action, Cisco offered its employees a suite of ten BlackRock LifePath Index Funds ("BlackRock TDFs") with multiple target retirement year "vintages." Cisco designated the BlackRock TDFs as the Plan's Qualified Default Investment Alternative ("QDIA"), which is the default investment for Plan participants who do not affirmatively indicate where their assets should be invested. The Complaint alleges that the BlackRock TDFs underperformed significantly during the Class Period compared to other TDF providers, so much so that a simple weighing of the merits and features of all other available TDFs would have raised significant concerns for prudent fiduciaries and indicated that the BlackRock TDFs were not a suitable and prudent option for the Plan. The Complaint compares the BlackRock TDFs with the four other largest TDF series, which include the Vanguard Target Retirement funds, T. Rowe Price Retirement funds, American Funds Target Date Retirement funds, and Fidelity Freedom Index funds (collectively, the "Comparator TDFs"). Specifically, the Complaint provides the three- and five-year annualized returns of the BlackRock TDF for each quarter of the Class Period and juxtaposes them alongside the same returns for the best and worst performing Comparator TDF in the same quarter. Compared alongside these Comparator TDFs, the BlackRock TDFs are the third largest TDF series by total assets, possessing 8.8% market share, behind Vanguard TDFs (36.4%) and T. Rowe Price TDFs (10.7%). The Plaintiffs filed the present Class Complaint on July 29, 2022, asserting three claims: (1) breach of ERISA fiduciary duty; (2) failure to monitor fiduciaries and co-fiduciary breaches; and, in the alternative, (3) liability for knowing breach of trust. On Oct. 31, 2022, Cisco moved to dismiss the Complaint. The parties subsequently agreed to stay discovery pending the resolution of Cisco's Motion. On Nov. 7, 2022, the Court received two amicus curiae briefs -- one from a coalition comprised of the American Benefits Council, American Retirement Association, Committee on Investment of Employee Benefit Assets, Inc., and ERISA Industry Committee; and one from the Chamber of Commerce of the United States. After Cisco's Motion was fully briefed but before the hearing, Cisco filed two statements of recent decision, alerting the Court to decisions in the Western District of Washington and the Eastern District of Virginia that also involved allegations based upon the same BlackRock TDFs and their alleged imprudence. To the extent the Plaintiffs attempt to state an ERISA claim for imprudence based solely on the BlackRock TDFs' underperformance, Judge Davila cannot reasonably infer from underperformance alone that the BlackRock TDFs were imprudent investments. Hence, the Plaintiffs' First Claim for breach of fiduciary duty under ERISA, therefore, is dismissed. Judge Davila cannot conclude that the further factual allegations would be futile and, accordingly, grants the Plaintiffs leave to amend the deficiencies addressed in his Order. The Plaintiffs are cautioned, however, that simply providing metrics or opinions further describing the BlackRock TDFs' underperformance is not likely to cure these deficiencies. Because he finds that the Plaintiffs' allegations of underperformance alone are insufficient to render an investment imprudent, Judge Davila need not address issues relating to the metrics of that underperformance in comparison to other TDFs. Other district courts that similarly dismissed ERISA claims for containing only underperformance allegations have also declined to address these issues. Finally, because Judge Davila finds that allegations of the BlackRock TDFs' underperformance do not state a claim for fiduciary breach, the Complaint also fails to state a claim that Cisco failed to oversee or monitor the members of the Administrative Committee. Similarly, Cisco could not have "knowingly participated in breaches of fiduciary duty by permitting the Plan to offer a menu of imprudent investment options" where the BlackRock TDFs have not been alleged to be imprudent. Based on the foregoing, Judge Davila grants the Defendant's Motion to Dismiss. All claims in the Complaint are dismissed with leave to amend. Any amended complaint will be filed no later than 21 days after the date of the Order. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/3uvxpzb8 from Leagle.com. CLARIVATE PLC: Faces Consolidated Shareholder Suit Over SEC Filings ------------------------------------------------------------------- Clarivate PLC 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 it is facing a consolidated securities class action in the United States District Court for the Eastern District of New York. Between January and March 2022, three putative securities class action complaints were filed in against Clarivate and certain of its executives and directors alleging that there were weaknesses in the company's internal controls over financial reporting and financial reporting procedures that it failed to disclose in violation of federal securities law. The complaints were consolidated into a single proceeding on May 18, 2022. On August 8, 2022, plaintiffs filed a consolidated amended complaint, seeking damages on behalf of a putative class of shareholders who acquired Clarivate securities between July 30, 2020, and February 2, 2022, and/or acquired Clarivate common or preferred shares in connection with offerings on June 10, 2021, or Clarivate common shares in connection with a September 13, 2021, offering. The amended complaint, like the prior complaints, references an error in the accounting treatment of an equity plan included in the company's 2020 business combination with CPA Global that was disclosed on December 27, 2021, and related restatements issued on February 3, 2022, of certain of the company's previously issued financial statements; the amended complaint also alleges that the company and certain of its executives and directors made false or misleading statements relating to the company's product quality and expected organic revenues and organic growth rate, and that they failed to disclose significant known changes to the company's business model. Defendants moved to dismiss the amended complaint on October 7, 2022. Without deciding the motion, the court entered an order on June 23, 2023 allowing plaintiffs limited leave to amend, and plaintiffs filed an amended complaint on July 14, 2023. Clarivate PLC is a provider of proprietary and comprehensive information, analytics, professional services and workflow solutions that enable users across government and academic institutions, life science and healthcare companies, corporations and law firms to power the entire innovation lifecycle, from cultivating curiosity to protecting the world's critical intellectual property assets. Clarivate has three reportable segments namely Academia & Government, Intellectual Property, and Life Sciences & Healthcare. It is a public limited company organized under the laws of Jersey, Channel Islands, pursuant to the definitive agreement entered into on May 13, 2019 to effect a merger between Camelot Holdings (Jersey) Limited and Churchill Capital Corp, a Delaware corporation. CLARIVATE PLC: Faces Shareholder Suit Over Share Issuance ---------------------------------------------------------- Clarivate PLC 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 it is facing a class action filed in Pennsylvania state court in the Court of Common Pleas of Philadelphia on June 7, 2022, asserting claims under the Securities Act of 1933. Said action alleges that there were weaknesses in the company's internal controls over financial reporting and financial reporting procedures that it failed to disclose in violation of federal securities law, particularly in respect to alleged misstatements and omissions in the offering documents for two issuances of Clarivate ordinary shares in June and September 2021. The company moved to stay this proceeding on August 19, 2022, and filed its preliminary objections to the state court complaint on October 21, 2022. Briefing on defendants' preliminary objections was completed on December 12, 2022, and the preliminary objections remain pending. On January 4, 2023, the court granted a partial stay of all proceedings until further court order after oral argument on the stay motion. Following oral argument on April 11, 2023, the court denied a further stay of the proceedings on April 17, 2023. Clarivate PLC is a provider of proprietary and comprehensive information, analytics, professional services and workflow solutions that enable users across government and academic institutions, life science and healthcare companies, corporations and law firms to power the entire innovation lifecycle, from cultivating curiosity to protecting the world's critical intellectual property assets. Clarivate has three reportable segments namely Academia & Government, Intellectual Property, and Life Sciences & Healthcare. It is a public limited company organized under the laws of Jersey, Channel Islands, pursuant to the definitive agreement entered into on May 13, 2019 to effect a merger between Camelot Holdings (Jersey) Limited and Churchill Capital Corp, a Delaware corporation. CO-DIAGNOSTICS INC: Court Consolidates Stadium and Lee Class Suits ------------------------------------------------------------------ In the cases, STADIUM CAPITAL LLC, on behalf of itself and all others similarly situated, Plaintiff v. CO-DIAGNOSTICS, INC., DWIGHT H. EGAN, and BRIAN L. BROWN, Defendants. DREW LEE, Individually and On Behalf of All Other Similarly Situated, Plaintiff v. CO-DIAGNOSTICS, INC., DWIGHT H. EGAN, and BRIAN L. BROWN, Defendants, Case Nos. 1:22-cv-06978-MKV, 1:22-cv-07988-MKV (S.D.N.Y.), Judge Mary Kay Vyskocil of the U.S. District Court for the Southern District of New York grants Stadium's motion to consolidate cases, appoint Stadium as lead plaintiff, and approve its selection of Kaplan Fox & Kilsheimer, LLP as lead counsel. On Aug. 16, 2022, Stadium filed a putative class action, alleging securities violations under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b) and Rule 10b-5, on behalf of a class of all persons and entities who purchased the publicly traded securities of Defendant Co-Diagnostics Inc. ("Co-Dx") from May 12, 2022 through Aug. 11, 2022 at 4:00 p.m. (EST). Specifically, Stadium alleged that the Defendants reassured its investors about demand for Co-DX's Logix Smart COVID-19 test but failed to disclose that demand for the test had plummeted. As a result, it contends that Co-DX's stock fell almost 82% after the company disclosed its revenue for the quarter ending in June 2022. On the same day that Stadium filed its complaint, it also published a notice to all class members on Globe Newswire, announcing that it had initiated a securities action against the Defendants. The notice informed class members that they had until Oct. 17, 2022 to move the court to serve as lead plaintiff for the proposed class. On Aug. 31, 2022, the Court entered a Stipulation and Order submitted by Stadium and the Defendants, ordering that any member of the putative class had until Oct. 17, 2022 to request that the Court appoints such member to serve as lead plaintiff for the putative class. Several weeks later, on Sept. 19, 2022, Plaintiff Drew Lee filed a complaint in this Court against the same Defendants, alleging the same misconduct during the same time period. On Oct. 17, 2022, Stadium filed a motion to consolidate cases, appoint Stadium as lead plaintiff, and approve its selection of Kaplan Fox as lead counsel. No other class member -- including Plaintiff Lee -- filed a timely application for appointment as lead plaintiff, or otherwise opposed Stadium's motion. Judge Vyskocil finds that Stadium is the most adequate Plaintiff to represent the purported class. First, Stadium's adequacy to represent the class and pursue its claims is self-evident, given that it is the only plaintiff who seeks to serve as lead plaintiff. Second, given its large financial stake, Stadium is presumptively the most adequate plaintiff. After reviewing Stadium's application and the other filings in the case, Judge Vyskocil finds that Stadium has made a sufficient preliminary showing that it satisfies the requirements of Rule 23. She therefore grants its application to serve as lead plaintiff. Judge Vyskocil additionally approves the choice by Stadium Capital of Kaplan Fox to serve as Lead Counsel. As exhibited in Stadium's submissions, Kaplan Fox has experience in large securities class actions. It has also been appointed to represent plaintiffs in a number of other cases, including In re Bank of America Corp. Securities, Derivative, and ERISA Litigation (S.D.N.Y.), In re Merrill Lynch & Co., Inc. Securities Litigation (S.D.N.Y.), and In re Air Cargo Shipping Services Antitrust Litigation (E.D.N.Y.). See Uris Dec. Ex. D. For the foregoing reasons, Stadium's motion is granted. The Clerk of Court is requested to consolidate these actions under Case No. 1:22-cv-06978 and to terminate ECF No. 15 in Case No. 1:22-cv-06978 and ECF No. 9 in Case No. 1:22-cv-07988. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/4njv929u from Leagle.com. DIAMOND CENTRAL: Fails to Pay Proper Wages, Benavente Alleges ------------------------------------------------------------- WILBER BENAVENTE, individually and on behalf of all others similarly situated, Plaintiffs v. DIAMOND CENTRAL, LLC; ETRUSCO BINI; and JENNIFER BONILLA, Defendants, Case No. 1:23-cv-06360 (E.D.N.Y., Aug. 24, 2023) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Plaintiff Benavente was employed by the Defendants as a flyer distributor. DIAMOND CENTRAL, LLC own and operate 2 OSHA training/certification schools both under the trade name "Diamond Central" in Queens, New York. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, Eighth Floor New York, NY 10011 Telephone: (212) 465-1180 Facsimile: (212) 465-1181 DOLGENCORP INC: Button Appeals Remand Bid Denial to 3rd Cir. ------------------------------------------------------------ Plaintiff Ryan Button filed an appeal from the District Court's Memorandum Order dated August 9, 2023 denying his motion to remand his lawsuit styled as RYAN BUTTON, on behalf of himself and those similarly situated, Plaintiff v. DOLLAR GENERAL CORPORATION et al., Defendants, Case No. 3-22-cv-07028, pending in the United States District Court for the District of New Jersey. The Plaintiff filed the putative class action lawsuit on October 6, 2022, in the Superior Court of New Jersey, Law Division, Monmouth County, asserting four causes of action against Defendants: (I) declaratory judgment under N.J. Stat. Ann. as to violations of New Jersey consumer protection laws; (II) violations of the General Advertising Regulations and the New Jersey Consumer Fraud Act; (III) violations of the Unit Price Disclosure Regulations and the NJCFA; and (IV) violations of the Truth-in-Consumer Contract, Warranty, and Notice Act. The Defendants removed the action to this Court pursuant to Class Action Fairness Act of 2005 on December 5, 2022. On December 27, 2022, Defendants filed two separate motions to dismiss -- one as to the claims against Vasos, Owen, Sunderland, and Taylor, and one as to the claims against DCG and Dolgencorp. The Plaintiff subsequently filed a Motion to Remand on January 16, 2023. Upon the request of the parties, the Court stayed the motions to dismiss pending the disposition of Plaintiff's Motion to Remand. The Defendants then jointly opposed the Motion to Remand on February 7, 2023. The Plaintiff replied on March 2. On August 9, 2023, Judge Michael A. Shipp entered a Memorandum Order wherein the Plaintiff's motion to remand, or in the alternative, for jurisdictional discovery, was denied. The appellate case is captioned as Ryan Button v. Dolgencorp Inc, et al., Case No. 23-8034, in the United States Court of Appeals for the Third Circuit, filed on Aug. 21, 2023.[BN] Plaintiff-Petitioner RYAN BUTTON, on behalf of himself and those similarly situated, is represented by: Javier L. Merino, Esq. THE DANN LAW FIRM 1520 U.S. Highway 130, Suite 101 North Brunswick, NJ 08902 Telephone: (201) 355-3440 Defendants-Respondents DOLGENCORP INC, Agent of Dollar General, et al., are represented by: Philip A. Goldstein, Esq. MCGUIREWOODS 1251 Avenue of the Americas, 20th Floor New York, NY 10020 Telephone: (212) 548-2167 DOLLAR GENERAL: Bid to Remand Allinder Suit to State Court Denied ----------------------------------------------------------------- In the case, MALCOLM ALLINDER, Plaintiff v. DOLLAR GENERAL CORPORATION, Defendant, Case No. 4:22-CV-00801-BRW (E.D. Ark.), Judge Billy Roy Wilson of the U.S. District Court for the Eastern District of Arkansas, Central Division, denies the Plaintiff's Motion to Remand. The Plaintiff's complaint alleges that the Defendant filed to comply with the "Pre-Sale Availability Rule" of warranties, in violation of the Magnuson-Moss Warranty Act ("MMWA"). He filed his Complaint on July 6, 2022 in the Circuit Court of Lonoke County, Arkansas, alleging only violations of the MMWA. On Sept. 6, 2022, the Defendant filed its Notice of Removal, asserting jurisdiction under 28 U.S.C. 1332(d), under the Class Action Fairness Act of 2005 ("CAFA"). The Plaintiff now seeks to remand the case to state court. The Plaintiff contends Judge Wilson lacks subject matter jurisdiction over his claim under the MMWA, which contains some unique jurisdictional requirements for class actions brought in federal court. Alternatively, he contends that remand is also appropriate because the Defendant failed to meet the $5 million amount-in-controversy threshold for CAFA removal. Judge Wilson believes that satisfaction of the MMWA's jurisdictional requirements is not necessary considering CAFA jurisdiction. In addition, he says the Defendant's declaration attached to its removal papers, response to the motion to remand, and the accompanying declaration establish that the overall cost of the requested injunctive relief and declaratory judgment might be above CAFA's amount-in-controversy threshold. With the addition of attorneys' fees, which the Plaintiff seeks, it is all but guarantees that the case will exceed $5 million. Without conceding that CAFA jurisdictional standards apply, the Plaintiff argues that the Defendant does not convincingly prove that the matter in controversy exceeds the sum or value of $5 million. Although the Plaintiff pushes back, his burden, at this point, is to establish to a legal certainty that the case will not exceed $5 million. He has failed to meet his burden and this case is properly in federal court. Based on the findings of fact and conclusions of law, the Plaintiff's Motion to Remand is denied. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/53dx8cet from Leagle.com. DOLLAR GENERAL: Bid to Remand Button Suit to Superior Court Denied ------------------------------------------------------------------ In the case, RYAN BUTTON, on behalf of himself and those similarly situated, Plaintiff v. DOLLAR GENERAL CORPORATION et al., Defendants, Civil Action No. 22-7028 (MAS) (RLS) (D.N.J.), Judge Michael A. Shipp of the U.S. District Court for the District of New Jersey denies the Plaintiff's Motion to Remand, or in the Alternative, for Jurisdictional Discovery. The matter comes before the Court on Plaintiff Button's Motion to Remand, pursuant to the "local controversy" exception, 28 U.S.C. Sectiokn 1332(d)(4)(A), to the Class Action Fairness Act of 2005 ("CAFA"), or in the Alternative, for Jurisdictional Discovery. Defendants Dollar General Corporation, Dolgencorp, LLC d/b/a Dollar General, Todd Vasos, Jeff Owen, Steve Sunderland, and Emily Taylor jointly opposed, and the Plaintiff replied. Judge Shipp has considered the parties' written submissions and decides the Motion without oral argument, pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. Defendant Dollar General Corp. ("DGC") is a Tennessee corporation with its principal place of business in Goodlettsville, Tennessee. Dolgencorp, which is organized under the laws of Kentucky and similarly based in Goodlettsville, Tennessee, is a DGC subsidiary that operates stores trading as "Dollar General" in the State of New Jersey. Vasos is the CEO of DGC and is a member of its Board of Directors. Owen is the COO of DGC. Sunderland is the Executive Vice President of Store Operations of DGC. Taylor is the Executive Vice President and Chief Merchandising Officer of DGC. Vasos, Owen, Sunderland, and Taylor are all citizens of Tennessee. The Plaintiff is a New Jersey citizen, residing in Cliffwood Beach, New Jersey. The Plaintiff regularly shops at the Dollar General store located at 228 NJ-35, Keyport, New Jersey 07735. In early 2022, he noticed some discrepancies between the prices of merchandise displayed on the store shelves and what was charged at checkout. For this reason, he began to document the prices displayed on the store shelves compared to what he was actually charged. From May 2022 through July 2022, the Plaintiff made several purchases at Dollar General Keyport where he was allegedly charged a higher price for certain items than the shelf price on display. The alleged pricing discrepancies included: a collective overcharge of $1.30 for three separate items on June 16; an overcharge of $0.25 for a single item on June 21; an overcharge of $0.05 for a single item on June 23; a collective overcharge of $1.05 for three separate items on June 28; and a collective overcharge of $0.85 for two separate items on July 1. According to the Plaintiff, it is the Defendants' policy and practice to charge a higher price at the register for merchandise than the price advertised on the unit price labels for the same merchandise on the shelves at Dollar General stores in New Jersey, and they used the same procedures that they employed in charging a higher price than advertised to him when selling the same and/or similar merchandise to numerous other New Jersey consumers. As such, the Plaintiff seeks to represent a class of consumers defined as: "All persons who resided in New Jersey on the date this Complaint was filed, who at any time on or after the day six years prior to the date on which the Complaint was filed, purchased merchandise at a Dollar General store located in New Jersey." He also sets forth a subclass, defined as: "All members of the Class who paid more for merchandise than the advertised price labeled on the shelf at s Dollar General store located in New Jersey." The Plaintiff filed the putative class action lawsuit on Oct. 6, 2022, in the Superior Court of New Jersey, Law Division, Monmouth County, asserting four causes of action against the Defendants: (I) declaratory judgment under N.J. Stat. Ann. Section 2A:16-50, et seq. as to violations of New Jersey consumer protection laws; (II) violations of the General Advertising Regulations (the "GA Regulations"), N.J. Admin. Code Section 13:45A-9.1, et seq., and the New Jersey Consumer Fraud Act ("NJCFA"), N.J. Stat. Ann. Section 56:8-1, et seq.; (III) violations of the Unit Price Disclosure Regulations (the "PD Regulations"), N.J. Admin. Code Section 13:45A-14.1, et seq., and the NJCFA; and (IV) violations of the Truth-in-Consumer Contract, Warranty, and Notice Act ("TCCWNA"), N.J. Stat. Ann. Section 56:12-14, et seq. The Defendants removed the action to this Court pursuant to CAFA on Dec. 5, 2022. On Dec. 27, 2022, the Defendants filed two separate Motions to Dismiss -- one as to the claims against Vasos, Owen, Sunderland, and Taylor, and one as to the claims against DCG and Dolgencorp. The Plaintiff subsequently filed a Motion to Remand on Jan. 16, 2023. Upon the request of the parties, the Court stayed the Motions to Dismiss pending the disposition of the Plaintiff's Motion to Remand. The Defendants then jointly opposed the Motion to Remand. The Plaintiff replied. The Plaintiff argues that remand is warranted pursuant to the local controversy exception to CAFA. According to him, the local controversy exception applies because the putative class includes only individuals who are New Jersey residents and because at least one of the John Doe defendants, defined as officers, supervisors, regional directors, or managers at Dollar General stores in New Jersey by the Complaint, is a New Jersey citizen whose conduct forms a significant basis for the claims asserted and from whom significant relief is sought. Alternatively, he seeks jurisdictional discovery as to the identities and residences of the John Does. In opposition, the Defendants contend that the Plaintiff has failed to demonstrate the applicability of the local controversy exception. They highlight that the exception requires the Plaintiff to have presently named a local defendant and that the John Doe placeholders are insufficient. As such, the Plaintiff cannot show that his lawsuit involves a local defendant whose conduct forms a significant basis for the claims asserted and from whom significant relief is sought. Judge Shipp opines that the Plaintiff cannot demonstrate the applicability of the local controversy exception. Remand is, therefore, unwarranted. Further, even if the Plaintiff ascertains the identities of the John Does via discovery, he will be unable to show that any one of the John Does, all of whom are purportedly Dollar General employees at New Jersey stores, is "significant" under the local controversy exception. In the alternative, regardless of the requested jurisdictional discovery, Judge Shipp opines that the Plaintiff will be unable to set forth at least one local defendant whose alleged conduct forms a significant basis for all the claims asserted in the action. Because the CAFA exceptions require the Plaintiff to prove all of the elements in the conjunctive, the jurisdictional discovery he sought would not impact the Court's decision in the case and would be futile. For these reasons, the Plaintiff's Motion to Remand, or the in the Alternative, for Jurisdictional Discovery, is denied. A full-text copy of the Court's Aug. 9, 2023 Memorandum Opinion is available at https://tinyurl.com/ycyeme2s from Leagle.com. DOMINION ENERGY: Galyean Sues Over Unsolicited Telemarketing Calls ------------------------------------------------------------------ Terry Galyean, and Gregg Snare, individually and on behalf of all others similarly situated v. DOMINION ENERGY, INC., Case No. 3:23-cv-00477-DJN (E.D. Va., July 27, 2023), is brought in order to obtain monetary damages, attorneys' fees and costs, and other relief for Defendant's acts, omissions and/or practices in the form of unsolicited telemarketing calls in violation of the Telephone Consumer Protection Act (the "TCPA") and the regulations promulgated pursuant to said Act by the Federal Communications Commission (FCC). The TCPA prohibits the use of "an automated telephone dialing system" to make any non-emergency call to a telephone number assigned to a "cellular telephone service" without the prior express consent of the called party. The TCPA prohibits the use of "an artificial or prerecorded voice" to make any non-emergency call to a telephone number assigned to a "cellular telephone service" without the prior express consent of the called party. The Defendant has conducted a wide-scale calling campaign, repeatedly making unsolicited telemarketing calls to the telephones of persons in violation of applicable federal law. Principally, Defendant is making robo-calls in violation of the TCPA, and calling persons who have affirmatively requested not to be called in violation of the TCPA. As a result of Defendant's unlawful acts, omissions and/or practices, the Plaintiffs and all proposed class members have suffered harm, including, but not limited to, in the form of lost time, loss of use of their cellular and/or residential telephones as the calls came in, involuntary telephone charges, involuntary electrical charges due to the increased battery use necessitated by the calls, and mental and emotional distress, says the complaint. The Plaintiff has resided in and has been a citizen of the Commonwealth of Virginia living in Cana, Virginia. The Defendant is a utility company that generates substantial profits from soliciting potential customers through telemarketing in markets where consumers have a choice as to what utility company they use.[BN] The Plaintiff is represented by: Ashley T. Davis, Esq. ALLEN, ALLEN, ALLEN & ALLEN 1809 Staples Mill Rd. Richmond, VA 23230 Phone: (804) 257-7526 Facsimile: (804) 257-7526 Email: ashley.davis@allenandallen.com - and - Randall K. Pulliam, Esq. Courtney E. Ross, Esq. CARNEY BATES & PULLIAM, PLLC 519 W. 7th Street Little Rock, AR 72201 Phone: (501) 312-8500 Facsimile: (501) 312-8505 Email: rpulliam@cpblaw.com cross@cbplaw.com - and - Don Bivens, Esq. DON BIVENS, PLLC 15169 N. Scottsdale Road, Suite 205 Scottsdale, AZ 85254 Phone: (602) 708-1450 Email: don@donbivens.com DOUGLAS J HOLDINGS: Eberline's Class Settlement Wins Prelim. Nod ---------------------------------------------------------------- In the case, JOY EBERLINE, CINDY ZIMMERMANN, and TRACY POXSON, individually and on behalf of all others similarly situated, Plaintiffs v. DOUGLAS J. HOLDINGS, INC., et al., Defendants, Case No. 14-10887 (E.D. Mich.), Judge Judith E. Levy of the U.S. District Court for the Eastern District of Michigan, Southern Division, grants the Plaintiffs' Amended Unopposed Motion for Conditional Certification and Preliminary Approval of Class And Collective Action Settlement. Judge Levy has considered the motion and brief in support, together with the proposed Settlement Agreement, class notice, claim form, and other relevant documents and submissions of the parties. Hearings were held on June 15, 2023, and Aug. 9, 2023. The Class will 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. It will 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 Jan. 1, 2012, and Dec. 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 Amended Settlement Agreement, together with its attached exhibits and/or referenced documents, sets forth the terms and conditions for the proposed Settlement and dismissal with prejudice of the Litigation. Judge Levy approves, as to form and content, the proposed Class Action Notices. She directs notice to the Class. She further directs that the Email Notice be emailed to each Class member and that the expanded Class Notice, be posted on the Settlement website, along with the full text of the Amended Settlement Agreement. Within 14 days of receiving the Class Data, the Settlement Administrator will commence sending the Email Notice of the Amended Settlement Agreement to the most recent known email address for each Class member. For any Class member as to whom the Email Notice bounces back as undeliverable or which the Claims Administrator's email distribution system does not show as having been read within seven days of being sent, the Settlement Administrator will check the Class Member's last-known address against the National Change of Address database and search commercially available databases to seek to obtain updated mailing and possible email addresses; and within 21 days, send a Postcard Notice to the best known address for the Class Member via First-Class United States mail. For any Class Member whose Postcard Notice is returned as undeliverable within 28 days of mailing, the Settlement Administrator will send an additional Notice of Settlement to any additional email addresses identified during the search of commercially available databases. To the fullest extent possible, such re-emailing will be completed within 60 days of the date that Notices of Settlement were originally emailed. If the email is returned as undeliverable, no further action is necessary. Judge Levy approves, as to form and content, the proposed Claim Form. She approves the proposed Claim Form for use in administering the Settlement. Claim Forms can be completed online at the Settlement website or can be downloaded and printed from the Settlement website and then mailed to the Settlement Administrator. All Claim Forms must be completed online at the Settlement website within 90 days of the date on which the Notice of Settlement is required to be emailed or, if mailed to the Settlement Administrator, must be postmarked within 90 days of the date on which the Notice of Settlement is required to be mailed. Judge Levy approves the proposed procedure for submitting requests for exclusion from the members of the Class. Any member of the Class wishing to opt-out from the Amended Settlement Agreement must complete, sign, and mail an Opt Out form to the Settlement Administrator. The Opt Out form can be completed online at the Settlement website or can be downloaded from the Settlement website and mailed to the Settlement Administrator. If completed online, the Opt Out form must be submitted within 75 days after entry of the Preliminary Approval Order or, if downloaded and mailed to the Settlement Administrator, must be postmarked no later than 75 days after entry of the Preliminary Approval Order. The Notice of Settlement will designate the Settlement Administrator as the entity to whom opt out requests will be sent. The Settlement Administrator will be responsible for the receipt of all responses from putative Class members and will preserve all opt out requests and all other written communications from putative Class members or any other person in response to the Notice of Settlement until administration of the Amended Settlement Agreement is complete or pursuant to further Order of the Court. Judge Levy approves the proposed procedure for submitting Objections to the Settlement. All objections must be in writing and must be postmarked no later than 75 days after entry of the Preliminary Approval Order. The Counsel will file all objections received and any responses with the Clerk of Court no later than seven days before the Final Fairness and Approval Hearing. The Class Counsel will file all such Objections with the Court at least 14 days before the Final Approval Hearing. Any objecting Class member may appear at the Final Approval Hearing in person, with or without such Class member's separate counsel. If, for any reason, the Amended Settlement Agreement is not finally approved or does not become effective, the Order, including but not limited to the conditional certification, will be null and void and automatically deemed vacated. Judge Levy appoints (i) the named Plaintiffs, Joy Eberline, Cindy Zimmermann, and Tracy Poxson, as the Class representatives; (ii) 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 the Class Counsel; and (iii) Kroll Settlement Administration, LLC as the Settlement Administrator. At least seven days before the Final Fairness and Approval Hearing, the Defendants' counsel will file a report with the Court confirming that notices to the United States Attorney General and the Attorney General for the State of Michigan containing the information required under 28 U.S.C. Section 1715 were timely sent. Within 14 days of the deadline for Claims Reporting as described in the Amended Settlement Agreement, the Class Counsel will file a motion with the Court requesting a Final Fairness and Approval Hearing; all reply briefs must be filed no later than seven days before the Final Fairness and Approval Hearing. The Final Approval Hearing is set for Dec. 19, 2023, at 2:00 p.m. All proceedings in the action other than such as may be necessary to carry out the terms and conditions of the Amended Settlement Agreement or the responsibilities related or incidental thereto are stayed and suspended until further notice of the Court. The Plaintiffs' initial, unopposed motion for certification and preliminary approval of a class and collective action settlement of the case; the Plaintiffs' corrected, unopposed motion for certification and preliminary approval of a class and collective action settlement; and the Plaintiffs' duplicative amended motion are denied as moot. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/y22y9x6b from Leagle.com. DRESSER LLC: LDEQ Dismissed From Barton Suit Without Prejudice -------------------------------------------------------------- In the case, MICHELLE BARTON, ET AL. v. DRESSER, LLC, ET AL., Civil No. 1:22-CV-00263 (W.D. La.), Judge David C. Joseph of the U.S. District Court for the Western District of Louisiana, Alexandria Division, grants LDEQ's motion to dismiss. In the Motion to Dismiss on Grounds of Eleventh Amendment Immunity, the Louisiana Department of Environmental Quality ("LDEQ") purports to exercise its rights as an arm of the State of Louisiana to immunity from suit in federal court. The matter -- among others -- 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. They 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. The Plaintiffs filed a state court petition on June 11, 2020, in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, against the LDEQ. Their First Amended and Supplemental Petition: (i) requests the certification of a class of similarly situated plaintiffs pursuant to Louisiana Code of Civil Procedure article 591 et seq.; (ii) asserts state-law claims against Dresser, LLC, Baker Hughes Holdings, LLC, GE Oil and Gas US Holdings 1, Inc., and the Louisiana Department of Environmental Quality; and (iii) seeks class-wide monetary damages for alleged personal injuries and property-related torts. Defendants Dresser, LLC and Baker Hughes Holdings, LLC removed the case to the Middle District of Louisiana on Aug. 5, 2020, pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d). Removal to the Middle District was premised on the Bartons' Louisiana citizenship and the corporate citizenship of Dresser and Baker Hughes in Delaware, Ohio, and Texas. Importantly, the LDEQ did not consent to this matter's removal to the Middle District of Louisiana -- nor was its consent required for removal pursuant to 28 U.S.C. Section 1332(d)(2). But by its co-defendants' removal of the case, the LDEQ found itself a defendant in federal rather than state court. On April 16, 2021, Dresser and Baker Hughes filed a motion to transfer the case to this Court under 28 U.S.C. Section 1404(a), which was opposed by the Plaintiffs. The LDEQ joined in the transfer motion, with full reservation of rights afforded to it by the Eleventh Amendment of the U.S. Constitution for the reasons set forth by Dresser. The motion to transfer was subsequently granted by Judge Jackson and the matter was transferred to this Court on Jan. 28, 2022. After the matter was transferred to this Court, on April 20, 2022, the LDEQ filed a Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim. A Report and Recommendation was subsequently issued by the Magistrate Judge, which the Court adopted in part and assigned reasons in declining to dismiss the LDEQ as a defendant. The LDEQ did not raise Eleventh Amendment immunity as a defense in its Rule 12(b)(6) motion, nor did it affirmatively waive immunity. On May 16, 2023, the Plaintiffs filed a Motion to Certify a Class pursuant to Rule 23(b)(3) requesting certification of a bifurcated proceeding whereby "common issues related to Dresser's and their co-defendants' liability" would be decided on a classwide basis, followed by a second, more particularized phase "involving individual trials to determine specific causation and the amount of individual damages for the putative class members. lass certification was opposed by all Defendants, including the LDEQ. The Court denied class certification by Memorandum Order on Aug. 3, 2023, for the reasons stated therein. [Doc. 95]. On June 16, 2023, the LDEQ filed this instant Motion asserting immunity from suit in federal court. The Plaintiffs filed a memorandum in opposition, to which the LDEQ filed a Reply. Judge Joseph concludes that the LDEQ did not remove or join in the removal of the case to federal court, actions that under Supreme Court precedent would have constituted an intentional invocation of federal jurisdiction. Rather, removal was effected only by the LDEQ's codefendants, Dresser and Baker Hughes. Nor has the LDEQ ever made a statement or filing in this case in which it indicated unequivocally that it was submitting to federal jurisdiction. To the contrary -- though remaining an active participant in discovery and motion practice -- the LDEQ has previously indicated that it did not intend to waive its Eleventh Amendment immunity by such participation. Accordingly, because the LDEQ (i) did not remove or join in the removal of this matter to federal court; and (ii) has not otherwise made a "clear declaration" of its intention to waive its Eleventh Amendment immunity and submit to federal court jurisdiction, Judge Joseph finds the LDEQ is immune from suit in this Court. Accordingly, the LDEQ's Motion to Dismiss is granted. The LDEQ is dismissed from the lawsuit without prejudice. A full-text copy of the Court's Aug. 9, 2023 Memorandum Ruling is available at https://tinyurl.com/ymr8e6f2 from Leagle.com. ELANCO ANIMAL: Settles Consolidated Suits Over Flea Collar ---------------------------------------------------------- Elanco Animal Health Incorporated 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 in June 2023, the parties in putative class action lawsuits were filed in federal courts in the U.S. alleging that the company's Seresto(TM) collars contain pesticides that can cause serious injury and death to cats and/or dogs wearing the product, agreed on the monetary terms of a potential settlement. Claims seeking actual damages, injunctive relief and/or restitution for allegedly deceptive marketing have been made against Elanco Animal Health Inc. and Bayer HealthCare LLC, along with other Elanco and Bayer entities, arising out of the use of Seresto(TM), a non-prescription flea and tick collar for cats and dogs. In August 2021, the lawsuits were consolidated by the Judicial Panel on Multidistrict Litigation, and the cases were transferred to the Northern District of Illinois. Elanco Animal Health Incorporated is a pharmaceutical company which produces medicines and vaccinations for pets and livestock. EP GLOBAL: Fails to Secure Customers' Info, Hasbrook Suit Claims ---------------------------------------------------------------- GEOFF HASBROOK, individually and on behalf of all others similarly situated, Plaintiff v. EP GLOBAL PRODUCTION SOLUTIONS, LLC and DOES 1 through 10, inclusive, Defendants, Case No. 23STCV19711 (Cal. Super., Los Angeles Cty., August 17, 2023) is a class action against the Defendants for negligence, negligence per se, breach of fiduciary duty, unjust enrichment, breach of implied contract, and violations of the California Consumer Privacy Act of 2018, the California Consumer Legal Remedies Act, and the California Unfair Competition Law. The case arises from the Defendants' failure to properly secure and safeguard the personally identifiable information of the Plaintiff and similarly situated customers stored within EP Global's network systems following a data breach on June 30, 2023. The Defendants also failed to timely notify the Plaintiff and similarly situated individuals about the data breach. As a result, the PII of the Plaintiff and Class members were compromised and damaged through access by and disclosure to unknown and unauthorized third parties, says the suit. EP Global Production Solutions, LLC is a provider of technology-enabled payroll and production services, headquartered in Burbank, California. [BN] The Plaintiff is represented by: Leah M. Beligan, Esq. Jerusalem F. Beligan, Esq. BELIGAN LAW GROUP LLP 19800 MacArthur Boulevard, Suite 300 Newport Beach, CA 92612 Telephone: (949) 224-3881 E-mail: lmbeligan@bbclawyers.net - and - Jonathan Shub, Esq. Benjamin F. Johns, Esq. Samantha E. Holbrook, Esq. SHUB & JOHNS LLC Four Tower Bridge 200 Barr Harbor Drive, Suite 400 Conshohocken, PA 19428 Telephone: (610) 477-8380 E-mail: jshub@shublawyers.com bjohns@shublawyers.com sholbrook@shublawyers.com FIELD ASSET: Carranza Suit Remanded to San Francisco Superior Court ------------------------------------------------------------------- Judge William H. Orrick of the U.S. District Court for the Northern District of California grants Carranza's a motion to remand the case, REMBERTO CARRANZA, Plaintiff v. FIELD ASSET SERVICES, INC., et al., Defendants, Case No. 3:23-cv-02874-WHO (N.D. Cal.). Carranza alleges that he was an employee of Field Asset Services, that he was misclassified as an independent contractor, and that he was not paid proper wages under various California state laws. The Defendants removed the case from state court and now Carranza filed a motion to remand. Under this district's local rules, the case was related to the underlying worker misclassification and wage-and-hour litigation in Bowerman v. Field Asset Services, No. 13-cv-00057 (N.D. Cal. April 4, 2023), which was initially filed on Jan. 7, 2013. After trial, the Ninth Circuit decertified the class and reversed the summary judgment decision. Judge Orrick found that the statute of limitations had been tolled from the filing of the Bowerman case until 60 days after notice to the former class members. Subsequently, dozens of members of that decertified class filed individual cases in federal court, which were related to the original Bowerman case under this district's Local Rules. The instant case, though, was filed in California State Superior Court in San Francisco, against Field Asset Services, Inc., Field Asset Services, LLC, Xome Field Services LLC, Cyprexx Services, LLC, and ten Doe defendants (collecting, "FAS"). Carranza says that he is a citizen of Texas and so was Field Asset Services, Inc., which was succeeded in interest by Field Asset Services, LLC, then acquired by Xome and the Cyprexx, both citizens of Delaware and Florida. The complaint asserts four causes of action against FAS: (1) failure to pay overtime wages under California law; (2) failure to indemnify for expenses under California law; (3) waiting time penalties under California law; and (4) violation of California's Unfair Competition Law ("UCL"). The Defendants removed the case to this Court, asserting that I have jurisdiction under the Class Action Fairness Act ("CAFA"). Carranza filed a motion to remand. FAS filed an opposition and Carranza replied. Under Civil Local Rule 7-1(b), Judge Orrick found the matter appropriate for resolution without oral argument. Carranza moves to remand this case based on lack of federal subject matter jurisdiction. Judge Orrick holds that FAS has not met its burden to establish that the Court has jurisdiction over Carranza's claims. He says the cases cited by FAS provide that a court does not lose jurisdiction over existing named plaintiffs' individual claims under CAFA just because of subsequent events in the litigation, save for a few exceptions not applicable. FAS's theory is that CAFA jurisdiction attached at the time that Bowerman filed his complaint and post-filing developments do not affect that jurisdiction. Therefore, FAS has not met its burden to establish that Judge Orrick has jurisdiction over Carranza's claims. Hence, he grants the motion to remand. Carranza seeks fees for litigating this removal motion under 28 U.S.C. Section 1447(c). Judge Orrick says it was objectively reasonable for the Defendants to believe that CAFA provided jurisdiction over the unnamed class members' claims; though they were wrong on the law, it was not unreasonable for them to believe that some combination of cases supported their theory, particularly because there is apparently no binding appellate precedent addressing these specific procedural circumstances. Accordingly, the request for fees is denied. For those reasons, the case is remanded to the California Superior Court for the County of San Francisco. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/yc79mpfw from Leagle.com. FRONTIER AIRLINES: Hartsfield Sues Over Airline Passes' False Ads ----------------------------------------------------------------- JERIYMA HARTSFIELD, individually and on behalf of all others similarly situated, Plaintiff v. FRONTIER AIRLINES, INC., FRONTIER AIRLINES HOLDING, INC., FRONTIER AIRLINES MANAGEMENT, INC., INDIGO PARTNERS, LLC, Defendants, Case No 1:23-cv-02093-KAS (D. Colo., August 17, 2023) is a class action against the Defendants for negligence, negligent misrepresentation, unjust enrichment, breach of express warranty, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, breach of contract, strict product liability for misrepresentation, fraud, and fraudulent misrepresentation. The case arises from the Defendants' alleged false advertising, labeling, and marketing of their All You Can Fly Pass. The Defendants offer an all-you-can-fly style of ticket, which allows budget conscious flyers to all now fly as much as they want on just one ticket. But, unfortunately for consumers, the Defendants' program amounts to no more than a fraudulent scam. Had the Plaintiff and Class members known of the true nature of the Pass, in that it was a nonrefundable and inoperable, they would not have purchased the Pass. As a result, the Plaintiff and Class members have been defrauded of their purchase price, been deprived of their benefit of the bargain, and have been greatly inconvenienced, says the suit. Frontier Airlines, Inc. is an airline company, with its principal place of business at 4545 Airport Way, Denver, Colorado. Frontier Airlines Holding, Inc. is a holding corporation that owns or controls or holds Frontier Airlines based in Denver, Colorado. Frontier Airlines Management, Inc. is a company that manages Frontier Airlines based in Denver, Colorado. Indigo Partners, LLC is a private equity firm that owns Frontier Airlines, with its principal place of business in Phoenix, Arizona. [BN] The Plaintiff is represented by: Blake G. Abbott, Esq. Paul J. Doolittle, Esq. POULIN | WILLEY ANASTOPOULO, LLC 32 Ann Street Charleston, SC 29403 Telephone: (803) 222-2222 E-mail: blake.abbott@poulinwilley.com paul.doolittle@poulinwilley.com FSST MGMT: Bid to Dismiss and Compel Arbitration in Harris Denied ----------------------------------------------------------------- In the case, JOSHUA HARRIS, on behalf of plaintiff and the class members, Plaintiff v. FSST MANAGEMENT SERVICES, LLC d/b/a 605 LENDING; FIRST DIRECT MEDIATION, INC.; STEVE CHRISTENSEN; DUSTIN DERNIER; and JOHN DOES 1-20, Defendants, Case No. 22 C 1063 (N.D. Ill.), Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois, Eastern Division, denies Defendants FSST Management Services, LLC, First Direct Mediation, Inc., Steve Christensen, Dustin Dernier, and John Does 1-20's Motion to Dismiss and Compel Arbitration. FSST is a lending entity affiliated with the Flandreau Santee Sioux Tribe -- a federally recognized Indian tribe located in Moody County, South Dakota. The controversy arises out of FSST Defendants' involvement in a lending enterprise operating through the website www.605lending.com. Defendant First Direct Mediation, Inc. was responsible for collecting the loans and Defendants Steve Christensen and Dustin Dernier served as COO and CEO, respectively, of FSST. Plaintiff Harris filed his class action complaint on behalf of two classes pursuant to FED. R. CIV. P. 23(a) and (b)(3). The Complaint alleges that the Defendants lending operation is what is referred to as a "rent-a-tribe" lending scheme. This scheme consists of tribal lenders' attempt to evade state and federal consumer protection laws by claiming their high-interest lending practices are owned and operated by Indian tribes and therefore entitled to tribal sovereign immunity. The Plaintiff seeks a declaratory judgment that the loans are void, an injunction against their collection, and damages pursuant the Illinois Interest Act, the Predatory Loan Prevention Act, and the Illinois Consumer Fraud Act. The Complaint also brings a RICO claim against the individual Defendants and a Fair Debt Collection Practices Act claim against First Direct Mediation. Plaintiff alleges Defendants engaged in usury and criminal lending practices by collecting short-term online installment loans from Illinois residents at interest rates far higher than the enforceable rate of 9%. The Complaint alleges that Plaintiff Harris took out an installment loan from FSST in an amount of $450 with an interest rate of 775.30% pursuant to a Loan Agreement. The Defendants moved to dismiss the Complaint and compel arbitration under FED. R. CIV. P. 12(b)(3) for improper venue in light of the mandatory arbitration provision in the loan agreement entered into between FSST and the Plaintiff. They argue in the alternative they are entitled to sovereign immunity and thus immune from the suit pursuant to FED. R. CIV. P. 12(b)(1) and/or 12(b)(6), and for failure to state a claim under FED. R. CIV. P. 12(b)(6). The Defendants moved to bifurcate the Court's consideration of their Motion to Dismiss so that the Court first decide the threshold matter of whether to compel arbitration before deciding their other grounds for dismissal. The Court granted the Motion to Bifurcate. The Defendants assert that Plaintiff's claims squarely qualify as a "dispute" under the arbitration agreement, and thus the arbitration provision should be enforced and the Plaintiff's Complaint dismissed for improper venue under FED. R. CIV. P. 12(b)(3). The Plaintiff responds that the entire loan agreement, which implicitly includes the delegation and arbitration provisions, are unenforceable because (1) they serve as an improper prospective waiver of federal and state rights; and (2) they are substantively and procedurally unconscionable. Judge Leinenweber holds that the delegation clause in the Harris Agreement is unenforceable as a prospective waiver in violation of public policy. He also holds that the Loan Agreement is unenforceable on the separate ground of unconscionability. Relegating exclusive review of arbitration awards to tribal courts which do not have subject matter jurisdiction over the borrowers renders the loan agreement unconscionable for the same reason that subjecting the borrowers to nonexistent tribal arbitration law renders the agreement unconscionable. Judge Leinenweber concludes that the Harris Agreement is unenforceable as a prospective waiver of federal and state statutory rights, and because the agreement is substantively and procedurally unconscionable. Thus, the Defendant's Motion to Dismiss and to Compel Arbitration is denied. The parties are ordered to submit a briefing schedule for the remaining bases on which the Defendants move to dismiss. A full-text copy of the Court's Aug. 9, 2023 Memorandum Opinion & Order is available at https://tinyurl.com/xtekuykz from Leagle.com. FUBOTV INC: Court Dismisses Lee Securities Suit ----------------------------------------------- fuboTV 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 a putative shareholder Steven Lee filed "Lee v. fuboTV, Inc., David Gandler, Edgar M. Bronfman Jr., & Simone Nardi," Case No. 21-cv-01641 (February 24, 2021, S.D.N.Y.) seeking damages and other relief. The case has been dismissed. Plaintiffs allege defendants violated federal securities laws by disseminating false and misleading statements regarding the company's financial health and operating condition, including its ability to grow subscription levels, prospects, future profitability, seasonality factors, cost escalations, ability to generate advertising revenue, valuation, and entering the online sports wagering market in violation of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, as well as Section 20(a) of the Exchange Act. On April 29, 2021, the court consolidated the Lee action under "In re FuboTV Inc. Securities Litigation," Case No. 1:21-cv-01412, S.D.N.Y. The defendants filed a motion to dismiss on September 10, 2021. Plaintiffs filed an opposition on November 9, 2021 and defendants filed their reply in support of the motion to dismiss on December 9, 2021. On March 30, 2023, the Court granted the Class Action Defendant's motion to dismiss without prejudice. fuboTV Inc. is a subscription-based live TV streaming platform for sports, news, and entertainment. GENENTECH INC: Wehner Suit to Proceed to Bench Trial on Oct. 30 --------------------------------------------------------------- In the case, MATTHEW WEHNER, Plaintiff v. GENENTECH, INC., et al., Defendants, Case No. 20-cv-06894-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California denies both the Defendants' motion to exclude the testimony of the Plaintiff's expert Michael Geist and their motion for summary judgment. The lawsuit will proceed to a bench trial, which is set to begin on Oct. 30, 2023. Plaintiff Wehner, a former employee of Defendant Genentech, brings the class action under the Employee Retirement Income Security Act ("ERISA") against Defendants Genentech, and the U.S. Roche DC Fiduciary Committee for breach of their fiduciary duties -- specifically, the duty of prudence with respect to Recordkeeping and Administrative ("RK&A") fees and a derivative claim for failure to monitor co-fiduciary breaches. The Defendants have moved to exclude the testimony of the Plaintiff's expert Geist on the basis that they are unsupported and speculative, as well as moved for summary judgment. The Plaintiff opposes, arguing that Geist's testimony is supported by his experience, and there remain genuine disputes over facts material to the case. Genentech is a large, California-based biotechnology company that employs over 13,000 people. As part of the benefits package offered to its employees, it sponsors and administers a defined contribution plan, the U.S. Roche 401(k) Savings Plan, in which eligible employees save for retirement through 401(k) contributions. The Plan is of a considerable size: as indicated in its most recent Form 5500, a report that ERISA plans are required to file annually with the Department of Labor, the Plan holds over $12 billion in assets for over 35,000 participants. Immediate responsibility of administering the Plan was delegated to the Committee, which is comprised of five to eight senior level managers from Genentech and its affiliates, who are appointed by the Board of Directors. The Committee is governed by a Charter that details its expectations and responsibilities and is required to meet a minimum of four times per year. The Plaintiff is a former Genentech employee and current participant in the Plan, who maintained investments through the Plan and paid associated recordkeeping fees. He first filed suit against the Defendants in October 2020, averring breaches of fiduciary duty for: (1) excessive RK&A fees; (2) excessive investment management fees; and (3) the retention of investment funds that allegedly underperformed, despite high fees. After two rounds of motions to dismiss, the only of the Plaintiff's claims to survive were his claim for a violation of duty of prudence for excessive RK&A fees, and the derivative claim for failure to monitor. The parties stipulated to class certification, which was approved on Nov. 22, 2022. The following class was certified: "All participants and beneficiaries in the U.S. Roche 401(k) Savings Plan at any time on or after Oct. 2, 2014 to the present ("the "Class Period"), including any beneficiary of a deceased person who was a participant in the Plan at any time during the Class Period. The Plaintiff's recordkeeping fee expert, Geist, opines that the Plan Fiduciaries' process during the Class period had a multitude of significant errors and represented an imprudent process. The Defendants move to exclude Geist under Federal Rule of Evidence 702. They generally take issue with: (1) Geist's failure to cite any sources to support his opinions about flaws in the Defendants' RFP process and (2) Geist's failure to consider the specific services other recordkeepers provided to their plans and how those services compared to what Fidelity provided to the Plan. Judge Seeborg finds that vigorous cross-examination, presentation of contrary evidence, and careful instruction are the traditional and appropriate means of attacking shaky but admissible evidence. The Defendants are correct that there are serious questions about certain of Geist's opinions, and perhaps those objections may prove disabling at trial. At this juncture, however, Geist's opinions are not so unreliable as to require wholesale exclusion. Moreover, it is more appropriate to probe the relative merits of the Plaintiff's expert's testimony through cross examination. For all these reasons, therefore, the Defendants' motion to exclude the testimony of Geist is denied. The Defendants argue that summary judgment is appropriate where, as in the case, the evidence demonstrates that a prudent process was implemented and followed, and where the Plaintiff "cannot present any evidence" to satisfy its burden of proving a fiduciary breach that resulted in losses to the Plan. Having found Geist's testimony admissible, Judge Seeborg says there are accordingly several disputed facts that preclude summary judgment. For one, while the Parties acknowledge that the best way accurately to determine a reasonable market rate for a plan's RK&A services is through a formal RFP, there are genuine disputes over whether the Defendants' conduct in connection with the RFPs was sufficiently prudent. The Defendants have not provided an explanation to justify either why an extension at the same rate (and lack of negotiation) was reasonable, or why the RFP process was not initiated in time to evaluate and decide on potential alternatives before the expiration of the 2014 contract with Fidelity. To be clear: this oversight, if indeed it was one, may not ultimately be sufficient to demonstrate imprudence, but at this stage, there is sufficient dispute on the issue to foreclose summary judgment for Defendants. For the reasons he discussed, Judge Seeborg denies the motion to exclude the expert testimony of Geist. Though the Plaintiff's claims for breach of fiduciary duty appear uncertain, the availability of Geist's testimony leads to disputes of material fact that caution against summary judgment. Accordingly, the motion for summary judgment is denied, and the case will proceed to a bench trial, to begin on Oct. 30, 2023. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/mr4dcu32 from Leagle.com. GOLDMAN SACHS: Consolidated 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 it is facing a consolidated amended complaint filed on July 25, 2011, which named as defendants the group and certain current and former officers and employees of the group and its affiliates, generally alleges violations of Sections 10(b) and 20(a) of the Exchange Act and seeks monetary damages. The defendants have moved for summary judgment. Beginning in April 2010, a number of purported securities law class actions were filed in the U.S. District Court for the Southern District of New York challenging the adequacy of the group's public disclosure of, among other things, the firm's activities in the collateralized debt obligation market, and the firm's conflict of interest management. On April 7, 2020, the U.S. Court of Appeals for the Second Circuit affirmed the district court's August 14, 2018 grant of class certification. On June 21, 2021, the United States Supreme Court vacated the judgment of the Second Circuit and remanded the case for further proceedings, and on August 26, 2021, the Second Circuit vacated the district court's grant of class certification and remanded the case for further proceedings. On December 8, 2021, the district court granted the plaintiffs' motion for class certification. On March 9, 2022, the Second Circuit granted defendants' petition seeking interlocutory review of the district court's grant of class certification. Complaints were filed in the U.S. District Court for the Southern District of New York on July 25, 2019 and May 29, 2020 against Goldman Sachs Mortgage Company and GS Mortgage Securities Corp. by U.S. Bank National Association, as trustee for two residential mortgage-backed securitization trusts that issued $1.7 billion of securities. The complaints generally allege that mortgage loans in the trusts failed to conform to applicable representations and warranties and seek specific performance or, alternatively, compensatory damages and other relief. On November 23, 2020, the court granted in part and denied in part defendants' motion to dismiss the complaint in the first action and denied defendants' motion to dismiss the complaint in the second action. On January 14, 2021, amended complaints were filed in both actions. 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: Securities Suit Over Natera's IPO 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 and Co. (GS&Co.) is among the underwriters named as defendants in putative securities class actions in New York Supreme Court, County of New York and the U.S. District Court for the Western District of Texas filed on March 10, 2022 and October 7, 2022, respectively, relating to Natera Inc.'s (Natera) approximately $585 million July 2021 public offering of common stock. In addition to the underwriters, the defendants include Natera and certain of its officers and directors. GS&Co. underwrote 1,449,000 shares of common stock representing an aggregate offering price of approximately $164 million. On July 15, 2022, the parties in the state court action filed a stipulation and proposed order approving the discontinuance of the action without prejudice. On December 16, 2022, the defendants moved to dismiss the amended complaint in the federal action. 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: Securities Suit Over Rivian's IPO Dismissed ---------------------------------------------------------- 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. (GS&Co.) is among the underwriters named as defendants in putative securities class actions filed on March 7, 2022 and February 28, 2023 in the U.S. District Court for the Central District of California and in the Superior Court of the State of California, County of Orange, respectively, relating to Rivian Automotive Inc.'s (Rivian) approximately $13.7 billion November 2021 initial public offering. On June 30, 2023, the court in the state court action granted the defendants' motion to dismiss the complaint. In addition to the underwriters, the defendants include Rivian and certain of its officers and directors. GS&Co. underwrote 44,733,050 shares of common stock representing an aggregate offering price of approximately $3.5 billion. On March 2, 2023, the plaintiffs in the federal court action filed an amended consolidated complaint, and on July 3, 2023, the court denied the defendants' motion to dismiss the amended consolidated 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: To Settle Reata IPO Securities in Texas 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.(GS&Co.) is among the underwriters named as defendants in a consolidated amended complaint for a putative securities class action filed on June 21, 2022 in the U.S. District Court for the Eastern District of Texas relating to Reata Pharmaceuticals, Inc.'s (Reata) approximately $282 million December 2020 public offering of common stock. In addition to the underwriters, the defendants include Reata and certain of its officers and directors. GS&Co. underwrote 1,000,000 shares of common stock representing an aggregate offering price of approximately $141 million. On September 7, 2022, the defendants moved to dismiss the consolidated amended complaint. In July 2023, the parties reached a settlement in principle, subject to final documentation and court approval, to resolve this action. 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. HARRIS & HARRIS: Oigbokie Files FDCPA Suit in N.D. Illinois ----------------------------------------------------------- A class action lawsuit has been filed against Harris & Harris, Ltd. The case is styled as Joselyn Oigbokie, individually and on behalf of all others similarly situated v. Harris & Harris, Ltd., Case No. 1:23-cv-05014 (D.N.J., July 31, 2023). The lawsuit is brought over alleged violation of the Fair Debt Collection Practices Act. Harris & Harris -- https://www.harriscollect.com/ -- is a proud member of the Innovation Council (powered by The iA Institute), where business leaders converge to solve problems.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC One University Plaza, Suite 620 Hackensack, NJ 07601 Phone: (201) 282-6500 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com HARTFORD LIFE: Liable to Compromised Info, McCreery Suit Alleges ---------------------------------------------------------------- DAPHNE MCCREERY, individually and on behalf of all others similarly situated, Plaintiff v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, Defendant, Case No. 3:23-cv-01095-OAW (D. Conn., August 17, 2023) is a class action against the Defendant for negligence, negligence per se, breach of confidence, breach of implied contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment, and declaratory judgment. The case arises from the Defendant's failure to properly secure and safeguard the personally identifiable information (PII) of the Plaintiff and similarly situated customers stored within its network systems following a data breach discovered on May 29, 2023. The Defendant also failed to timely notify the Plaintiff and similarly situated individuals about the data breach. As a result, the PII of the Plaintiff and Class members were compromised and damaged through access by and disclosure to unknown and unauthorized third parties, says the suit. Hartford Life and Accident Insurance Company is a provider of insurance products based in Hartford, Connecticut. [BN] The Plaintiff is represented by: Robert T. Naumes, Jr., Esq. JEFFREY GLASSMAN INJURY LAWYERS One International PL., 18th Fl. Boston, MA 02110 Telephone: (617) 777-7777 Facsimile: (617) 722-9999 E-mail: bnaumes@jeffreysglassman.com - and - Daniel Srourian, Esq. SROURIAN LAW FIRM, P.C. 3435 Wilshire Blvd., Suite 1710 Los Angeles, CA 90010 Telephone: (213) 474-3800 Facsimile: (213) 471-4160 E-mail: daniel@slfla.com HARVARD PILGRIM: Rowntree Sues Over Failure to Secure PHI & PII --------------------------------------------------------------- Colin Rowntree and Angela Rowntree, individually and on behalf of those similarly situated v. HARVARD PILGRIM HEALTH CARE, INC. and POINT32HEALTH, INC., Case No. 1:23-cv-11744-NMG (D. Mass., July 31, 2023), is brought against the Defendants for failure to properly secure and safeguard Plaintiffs' and Class Members' protected health information ("PHI") and personally identifiable information ("PII") stored within Defendants' information network. Entities that provide services in the healthcare industry and handle patients' sensitive, PHI and PII owe a duty to the individuals to whom that data relates. This duty arises because it is foreseeable that the exposure of patients' PHI and PII to unauthorized persons— especially hackers with nefarious intentions—will result in harm to the affected individuals, including, but not limited to, the invasion of their private health matters. Harvard Pilgrim breached its duty to protect the sensitive PHI/PII entrusted to it, and failed to abide by its own Privacy Policy. As such, Plaintiffs bring this Class action on behalf of themselves and the over 2.5 million other patients whose PHI/PII was accessed and exposed to unauthorized third parties during a data breach of Defendant's system during the period from March 28, 2023, to April 17, 2023, which Harvard Pilgrim announced on or about May 23, 2023 (the "Data Breach"). Indeed, Harvard Pilgrim did not inform Plaintiffs of the Data Breach until June 15, 2023, even though it became aware of the data breach on or about April 17, 2023. Based on the public statements of Harvard Pilgrim to date, a wide variety of PHI/PII was implicated in the breach, including but not limited to, names, physical addresses, phone numbers, dates of birth, health insurance account information, Social Security numbers, provider taxpayer identification numbers, and clinical information (e.g., medical history, diagnoses, treatment, dates of service, and provider names). As a direct and proximate result of Harvard Pilgrim's inadequate data security, and its breach of its duty to handle PHI/PII with reasonable care, Plaintiff' PHI/PII has been accessed by hackers, posted on the dark web, and exposed to an untold number of unauthorized individuals. The Plaintiffs are now at a significantly increased and certainly impending risk of fraud, identity theft, misappropriation of health insurance benefits, intrusion of his health privacy, and similar forms of criminal mischief, and such risk may last for the rest of his life. Consequently, Plaintiffs must devote substantially more time, money, and energy to protect himself, to the extent possible, from these crimes, says the complaint. The Plaintiffs are victims of the Data Breach. Harvard Pilgrim is a non-profit health services company providing benefits to over 2.5 million plan members in Massachusetts, Maine, Connecticut, New Hampshire and Rhode Island.[BN] The Plaintiffs are represented by: Jason M. Leviton, Esq. Brendan Jarboe, Esq. BLOCK & LEVITON LLP 260 Franklin Street, Suite 1860 Boston, MA 02110 Phone: (617) 398-5600 Facsimile: (617) 507-6020 Email: jason@blockleviton.com brendan@blockleviton.com - and - Marc H. Edelson, Esq. EDELSON LECHTZIN LLP 411 S. State Street, Suite N300 Newtown, PA 18940 Phone: (215) 867-2399 Email: medelson@edelson-law.com - and - Joshua H. Grabar, Esq. GRABAR LAW OFFICE One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, PA 19103 Phone: 267-507-6085 Email: jgrabar@grabarlaw.com HAWAIIAN ELECTRIC: Faces Bhangal Suit Over Drop in Share Price -------------------------------------------------------------- BHAPINDERPAL S. BHANGAL, individually and on behalf of all others similarly situated, Plaintiff v. HAWAIIAN ELECTRIC INDUSTRIES, INC.; CONSTANCE H. LAU; SCOTT W. H. SEU; GREGORY C. HAZELTON; and PAUL K. ITO, Defendants, Case No. 3:23-cv-04332 (N.D. Cal., Aug. 24, 2023) is a federal securities class action on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired Hawaiian Electric securities between February 28, 2019 and August 16, 2023, both dates inclusive (the "Class Period"), seeking to recover damages caused by the Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). The Plaintiff alleges in the complaint that throughout the Class Period, the Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, the Defendants made false and misleading statements and failed to disclose that: (i) Hawaiian Electric's wildfire prevention and safety protocols and procedures were inadequate to meet the challenges for which they were ostensibly designed; (ii) accordingly, despite knowing the degree of risk that wildfires posed to Maui, the Company's inadequate safety protocols and procedures placed Maui at a heightened risk of devastating wildfires; and (iii) as a result, the Company's public statements were materially false and misleading at all relevant times. Hawaiian Electric's stock price fell $2.54 per share, or 17.43 per cent, to close at $12.03 per share on August 17, 2023. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, the suit asserts. HAWAIIAN ELECTRIC INDUSTRIES, INC. is a diversified holding company that delivers a variety of services to the people of Hawaii. The Company's subsidiaries offer electric utilities, savings banks, and other businesses, primarily in the state of Hawaii. [BN] The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 Email: jpafiti@pomlaw.com HOME OIL COMPANY: Harper Files ADA Suit in M.D. Alabama ------------------------------------------------------- A class action lawsuit has been filed against Home Oil Company, Inc. The case is styled as Jessica Harper, on her own behalf and on behalf of all others similarly situated v. Home Oil Company, Inc. doing business as: Hobo Pantry, Case No. 1:23-cv-00453-RAH-KFP (M.D. Ala., July 31, 2023). The lawsuit is brought over alleged violation of the Americans with Disabilities Act. Home Oil Company, Inc. -- https://www.homeoilco.com/ -- distributes petroleum products. The Company supplies lubricants and fuel products to gas stations, convenience stores, and other businesses.[BN] The Plaintiff is represented by: Edward Ira Zwilling, Esq. LAW OFFICE OF EDWARD I ZWILLING LLC 4000 Eagle Point Corporate Drive Birmingham, AL 35242 Phone: (205) 822-2701 Fax: (205) 314-5799 Email: edwardzwilling@zwillinglaw.com - and - John Allen Fulmer, II, Esq. FULMER LAW FIRM, P.C. 2330 Highland Avenue Birmingham, AL 35205 Phone: (205) 703-4892 Email: jaf@jafulmerlaw.com - and - Peter Harrington Burke, Esq. BURKE HARVEY LLC 2400 Freeman Mill Road; Suite 200 Greensboro, NC 27406 Phone: (205) 930-9091 Fax: (877) 718-9952 Email: phburke@crlegalteam.com HOP ENERGY: Mullaney Sues Over High Home Heating Oil's Price Rates ------------------------------------------------------------------ MICHELLE MULLANEY and ROBERT MULLANEY, individually and on behalf of all others similarly situated, Plaintiffs v. HOP ENERGY, LLC, Defendant, Case No. 7:23-cv-07318 (S.D.N.Y., August 17, 2023) is a class action against the Defendant for breach of contract and breach of the implied covenant of good faith and fair dealing. The case arises from HOP Energy's breach of contract and bad faith pricing practices, causing tens of thousands of consumers to pay considerably more than they bargained for to obtain home heating oil. The Defendant provides heating oil to consumers in eight states across the Northeast. HOP Energy contracted with the Plaintiffs and the Class to sell its heating oil at its prevailing retail price for home heating oil that is in effect at the time of delivery. However, HOP Energy failed to perform its obligations under the contract, because its rates were not the prevailing retail price for home heating oil that was in effect at the time of delivery. The Plaintiffs and all Class members were damaged as a result because they were billed and paid prices for home heating oil that were higher than the Defendant was authorized to charge under the contract's terms, the suit alleges. HOP Energy, LLC is a provider of residential and commercial heating oil and services, with its principal place of business in White Plains, New York. [BN] The Plaintiffs are represented by: J. Burkett McInturff, Esq. Ethan D. Roman, Esq. Daniel J. Brenner, Esq. WITTELS MCINTURFF PALIKOVIC 305 Broadway, 7th Floor New York, NY 10007 Telephone: (917) 775-8862 E-mail: jbm@wittelslaw.com edr@wittelslaw.com djb@wittelslaw.com - and - Jonathan Shub, Esq. SHUB & JOHNS LLC Four Tower Bridge 200 Barr Harbor Drive, Suite 400 Conshohocken, PA 19428 Telephone: (610) 477-8380 E-mail: jshub@shublawyers.com HUDSON INSURANCE: Faces Immunomedics Suit Over Breach of Contract ----------------------------------------------------------------- IMMUNOMEDICS, INC., a wholly owned subsidiary of GILEAD SCIENCES, INC., individually and on behalf of all others similarly situated, Plaintiff v. HUDSON INSURANCE COMPANY, Defendant, Case No. N23C-08-179 PRW CCLD (Del. Super., August 17, 2023) is a class action against the Defendant for breach of contract and declaratory relief. The case arises from the Defendant's breach of its obligations under its follow-form TruXS Excess Liability Insurance Policy issued and sold to Immunomedics. The Defendant, Immunomedics' third-layer excess insurer, refused to pay its limits of liability for the lawsuit captioned Ahmad Odeh, individually and on behalf of all others similarly situated v. Immunomedics, Inc., et al., Case No. 2-18-cv-17645-ESK, in direct violation of the terms of the Hudson Excess Policy. Immunomedics now seeks a declaration as to the existence, scope, and breach of Hudson's obligations to pay Immunomedics' losses arising from the Odeh Action, and damages for Hudson's breach of contract for refusing to comply with its coverage obligations owed to Immunomedics under the Hudson Excess Policy. Immunomedics, Inc. is a biotechnology company, with its principal place of business in Foster City, California. Hudson Insurance Company is an insurance firm with its principal place of business in New York, New York. [BN] The Plaintiff is represented by: John P. DiTomo, Esq. Miranda N. Gilbert, Esq. MORRIS, NICHOLS, ARSHT & TUNNEL LLP 1201 N. Market Street Wilmington, DE 19801 Telephone: (302) 658-9200 E-mail: jditomo@morrisnichols.com mgilbert@morrisnichols.com - and - Adam Ziffer, Esq. Meredith Elkins, Esq. Jason Sumbaly, Esq. COHEN ZIFFER FRENCHMAN & MCKENNA 1325 Avenue of the Americas, 31st Floor New York, NY 10019 Telephone: (212) 584-1832 E-mail: aziffer@cohenziffer.com melkins@cohenziffer.com jsumbaly@cohenziffer.com INTELLIHARTX LLC: Timmons Files Suit in N.D. Ohio ------------------------------------------------- A class action lawsuit has been filed against Intellihartx, LLC. The case is styled as Nicholas Timmons, individually and on behalf of all others similarly situated v. Intellihartx, LLC, Case No. 3:23-cv-01452-JRK (N.D. Ohio, July 25, 2023). The nature of suit is stated as Other Personal Property for Property Damage. IntelliHARTx, LLC -- https://www.itxcompanies.com/ -- is a leading company in healthcare revenue cycle focusing exclusively on Patient Balances.[BN] The Plaintiff is represented by: Christina L. Gregg, Esq. Patrick T. Egan, Esq. BERMAN TABACCO - BOSTON One Liberty Square Boston, MA 02109 Phone: (617) 542-8300 Email: cgregg@bermantabacco.com pegan@bermantabacco.com - and - Nathaniel L. Orenstein, Esq. BERMAN DEVALERIO One Liberty Square Boston, MA 02109 Phone: (617) 542-8300 Fax: (617) 542-8300 Email: norenstein@bermandevalerio.com - and - Daniel R. Karon, Esq. LAW OFFICE OF DANIEL R. KARON 700 St. Clair Avenue, W., Ste. 200 Cleveland, OH 44113 Phone: (216) 622-1851 Fax: (216) 241-8175 Email: dkaron@karonllc.com JED C. KAMINETSKY: DiAmbrose Files Suit in S.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Jed C. Kaminetsky, M.D., P.C. The case is styled as Joseph DiAmbrose, individually and on behalf of all others similarly situated v. Jed C. Kaminetsky, M.D., P.C. doing business as: University Urology, doing business as: University Urology Associates, Case No. 1:23-cv-06484-JHR (S.D.N.Y., July 26, 2023). The nature of suit is state as Other Contract for Deceptive Trade Practices. Jed C. Kaminetsky, M.D., P.C. doing business as University Urology -- https://uuanj.com/ -- is dedicated to delivering patient-centered urologic care to men, women and children along the Gulf Coast.[BN] The Plaintiff is represented by: Evan Stone Rothfarb, Esq. SCHLANGER LAW GROUP 80 Broad Street, Suite 1301 New York, NY 10004 Phone: (212) 500-6114 Fax: (646) 612-7996 Email: erothfarb@consumerprotection.net JUSTIN MARTORELLO: Bid to Dismiss Bluetech From Galloway Suit Nixed ------------------------------------------------------------------- In the case, RENEE GALLOWAY, et al., Plaintiffs v. JUSTIN MARTORELLO, et al., Defendants, Civil Action No. 3:19-cv-314 (E.D. Va.), Judge Robert E. Paynes of the U.S. District Court for the Eastern District of Virginia, Richmond Division, denies the Motion to Dismiss the Complaint Pursuant to Rule 12(b)(2) as to Defendant Bluetech Irrevocable Trust. The matter is before the Court on the Motion to Dismiss the Complaint Pursuant to Rule 12(b)(2) as to Defendant Bluetech Irrevocable Trust. The case comes out of a long series of litigation concerning Matt Martorello ("Martorello") and his short-term loan schemes. Martorello allegedly engaged in a "rent-a-tribe" scheme to make usurious short-term loans with interest rates in the triple digits. Bluetech Irrevocable Trust is one of Martorello's companies allegedly entangled within his elaborate corporate web. Bluetech is a trust incorporated under the laws of the Cook Islands. The Plaintiffs allege that Martorello created Bluetech to conceal his ownership interest in the companies involved in the allegedly illegal lending scheme and create an additional layer of protection for the illegal money received from consumers. Martorello created an elaborate and ever-shifting corporate structure. Lac Vieux Desert Band of Lake Superior Chippewa Indians ("the Tribe"), at Martorello's urging, created Red Rock Tribal Lending, later rebranded as Big Picture Loans, LLC, to issue high-interest short-term loans via the internet. On Oct.25, 2011, Red Rock hired Martorello's company, Bellicose VI ("Bellicose"), as its servicer to "completely" operate the lending business. Under the Servicing Agreement, Bellicose received 98% of all gross proceeds from the lending operation. On July 31, 2012, with retroactive effect to the start of Bellicose's service agreement, Bellicose assigned the servicing agreement to SourcePoint VI, its wholly owned subsidiary. As was the case with Bellicose, SourcePoint also received 98% of all net profits from the loan operation. From 2011 to 2016, the money ran through a convoluted series of corporations from SourcePoint to Bluetech. From Oct. 25, 2011 to Dec. 31, 2013, Bluetech received 70% of the total revenue from the lending operation, the other 30% went directly to Matt Martorello and his brother, Justin Martorello. On Jan. 1, 2014, Martorello made several alterations to his corporate structure and Bluetech's share in the enterprise lowered to 60%. On March 2, 2015, Bluetech's share dropped by 0.5% to 59.5% of the loan operation's revenue. In January 2016, the lending enterprise went through a general re-structuring. On Jan. 26, 2016, SourcePoint and Bellicose Capital merged into Ascension Technologies, a tribal entity. Before the sale, Martorello had created a new company called Eventide Credit Acquisitions to effectuate the sale of Bellicose Capital to the Tribe. However, he structured the sale to continue to profit from the lending enterprise. To pay for Bellicose, the Tribe signed a Secured Promissory Note in which it was obliged to pay Eventide between 94-96% of the enterprise's gross revenue up to $300 million or seven years. The money then flowed from Eventide through a series of corporations. After the sale, Eventide's members were as follows: Breakwater (59.5%); Gallant Capital (25.5%); Justin Martorello (10%); Brian McFadden (2%); James Dowd (1.5%); and Simon Liang (1.5%). Throughout this period, Bluetech owned Breakwater. Thus, after the transfer, Bluetech continued to derive a significant percentage of income from the enterprise. The Plaintiffs have asserted 28 claims against Bluetech under state and federal laws. The Complaint denotes the claims as Causes of Action (such as "Firt Cause of Action"). The Memorandum Opinion refers to them as Counts (such as "Count 1"). The Court dismissed, without prejudice, Counts 6 to 27 in their entirety and Counts 24 to 30, except as asserted under Virginia law. For purposes of deciding the Rule 12(b)(2) motion, the two RICO counts (Counts 1 and 2) are asserted by the Plaintiffs as the providing the jurisdictional predicate. The Plaintiffs argue that there is personal jurisdiction under either: (1) Fed. R. Civ. P. 4(k)(1)(C) (using the RICO's nationwide service of process provision, 18 U.S.C. Section 1965(d)), and under (2) Fed. R. Civ. P. 4(k)(2). Furthermore, they argue that the Fifth Amendment's Due Process clause does not prevent the Court from asserting personal jurisdiction. Among other things, Judge Paynes finds that Bluetech "directly profited" from making loans in the United States and cannot now disentangle itself from a web woven by it. Taking into consideration Bluetech's contacts with the United States, the United States' substantial interest in this litigation, and Bluetech's knowledge that it could be hailed before American courts, the Plaintiffs have made out, by the preponderance of the evidence, that there is personal jurisdiction under a stream of revenue theory. In addition, Judge Paynes holds that the Plaintiffs have demonstrated that Bluetech, whose settlor is Martorello, participated in the conspiracy by serving as the final repository for the scheme's allegedly ill-gotten funds. Bluetech shared in the conspiracy's "common plan" to collect, retain, and redistribute the profits from the RICO enterprise. Thus, Bluetech has adequately participated in the conspiracy to meet this component of Unspam. Accordingly, under well-settled conspiracy law, the contacts of the other alleged co-conspirators are imputed to Bluetech. And, because Bluetech participated in and reaped the benefits of the conspiracy, it cannot claim that it was altogether blindsided by its co-conspirator's contacts with the forum. Instead, the impact in the forum was the principal object of the conspiracy. Finally, Judge Paynes holds that the Supreme Court cautioned federal courts against reaching out to exercise jurisdiction over foreign entities, but Bluetech cannot rely on the border between the Cook Islands and the United States as a shield for its illegal activities. The Due Process Clause may not readily be wielded as a territorial shield to avoid obligations that have been voluntarily assumed. Under either Rule 4(k)(1)(C) or 4(k)(2), the Court may exercise personal jurisdiction over Bluetech in accordance with Due Process. As the Court has personal jurisdiction over Bluetech, Judge Paynes denies the Motion to Dismiss the Complaint Pursuant to Rule 12(b)(2) as to Defendant Bluetech Irrevocable Trust. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/3sjnnf7h from Leagle.com. KNA SOLUTIONS: Shackelford Personal Injury Suit Removed to D.D.C. ----------------------------------------------------------------- The case styled JOSHUA SHACKELFORD, individually and on behalf of all others similarly situated v. KNA SOLUTIONS, LLC and LYFT, INC., Case No. 2023-CAB-001665, was removed from the Superior Court of the District of Columbia to the U.S. District Court for the District of Columbia on August 16, 2023. The Clerk of Court for the District of Columbia assigned Case No. 1:23-cv-02385-APM to the proceeding. The nature of suit is stated as personal injury. KNA Solutions, LLC is a limited liability corporation with its principal place of business in Dover, Delaware. Lyft, Inc. is a ride hailing company based in California. [BN] The Defendant is represented by: Denise E. Giraudo, Esq. Christopher R. Williams, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 2099 Pennsylvania Avenue, NW, Suite 100 Washington, DC 20006 Telephone: (202) 747-1906 Facsimile: (202) 747-3933 E-mail: dgiraudo@sheppardmullin.com cwilliams@sheppardmullin.com LM GENERAL: Grant Suit Transferred From W.D. to E.D. Pennsylvania ----------------------------------------------------------------- Judge Christy Criswell Wiegand of the U.S. District Court for the Western District of Pennsylvania transfers the case, TIMOTHY GRANT, individually and on behalf of all others similarly situated, Plaintiff v. LM GENERAL INSURANCE COMPANY, Defendant, Case No. 2:23-CV-01153-CCW (W.D. Pa.), to the Eastern District of Pennsylvania. LM General moves to dismiss, transfer, or stay the putative class-action pursuant to the first-filed rule. Alternatively, it moves to dismiss the bad faith and breach of fiduciary duty claims pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, LM General's Motion will be GRANTED, and this case will be transferred forthwith to the Eastern District of Pennsylvania. Grant alleges that, on Aug. 10, 2021, he was injured in an accident while driving a dump truck owned by his employer. He alleges that the other driver's insurance did not fully compensate him for the injuries he sustained, so he filed a claim for underinsured motorist benefits under his personal LM General Personal Automobile Policy. Grant alleges that LM General denied him underinsured motorist benefits pursuant to the policy's "regular use exclusion." This exclusion precludes an individual from receiving underinsured motorist benefits if he suffered injuries when using, occupying, or struck by a vehicle that he does not own but regularly uses. Grant alleges that LM General improperly denied him underinsured motorist benefits in light of Pennsylvania Superior Court decisions that found these type of general use exclusions are unlawful under the Pennsylvania Motor Vehicle Financial Responsibility Law ("MVFRL"). He alleges that his attorneys asked LM General to reconsider its denial considering Rush on two separate occasions but, each time, LM General denied the request. On May 19, 2023, Grant filed a putative class action Complaint in the Court of Common Pleas of Allegheny County against LM General. He asserted (1) a breach of contract (Count One); (2) statutory and common law bad faith (Count Two); and (3) a breach of fiduciary duty. Grant brought these claims on behalf of himself and a putative class defined as: All people who were insured under a LM General Insurance Company motor vehicle insurance policy in Pennsylvania and made a claim, during the Applicable Statute of Limitations, to LM General Insurance Company for bodily injury UIM benefits but their claims were denied by LM because of a UIM policy exclusion the same or substantively similar to the following: We do not provide Underinsured Motorists Coverage for bodily injury sustained by an insured, as defined in this endorsement, while using, occupying, or when struck by, any non-owned motor vehicle that is furnished or made available for your regular use, or the regular use of a family member, which is not insured for Underinsured Motorists Coverage under this policy. This includes a trailer of any type used with that vehicle. In addition, Grant requested compensatory damages, punitive damages, attorneys' fees, costs, expenses, and interest. On June 22, 2023, LM General timely removed the action to this Court. On Sept. 9, 2022, seven months before Grant filed his Complaint, another plaintiff named Warren Baskerville filed a putative class action complaint in the Court of Common Pleas of Philadelphia County against LM General. LM General subsequently removed that case to the Eastern District of Pennsylvania. In his complaint, Baskerville alleges that, on April 15, 2020, he suffered injuries while operating a SEPTA bus owned by his employer. According to him, because the other drivers involved in the accident were not covered by any insurance, he filed a claim for underinsured motorist benefits under his LM General Personal Automobile Policy, which LM General denied pursuant to the regular use exclusion. Bakersville alleges that after the Pennsylvania Superior Court issued Rush, his attorney asked LM General to reconsider its denial, but LM General declined to do so. Baskerville asserts claims for (1) declaratory relief (Count I) and (2) compensatory relief (Count II) on behalf of himself and a putative class defined as: A class of persons injured in motor vehicle accidents from 1990 to the present as a result of the negligence of an uninsured or an underinsured motorist who were insureds under Automobile Policies providing uninsured and/or underinsured motorist coverage in accordance with the MVFRL and where: (a) the named insured had uninsured and underinsured motorist coverage; (b) a claim was made for recovery of uninsured and/or underinsured motorist coverage under the policy; and, (c) the claim for recovery of uninsured or underinsured motorist coverage was denied by reason of the regular use exclusion. In the current Western District of Pennsylvania case, LM has moved to dismiss, transfer or stay this case in light of the earlier-filed Baskerville case in the Eastern District of Pennsylvania. With briefing now complete, the Motion is ripe for adjudication. In the case before her, Grant seeks relief on behalf of himself and a putative class against LM General for denying him underinsured motorist benefits pursuant to the regular use exclusion. In the first-filed case pending before the Eastern District of Pennsylvania, Baskerville seeks the same. Because of the substantial overlap between the two cases, LM General asks that the case be dismissed, transferred, or stayed under the first-filed rule. Judge Wiegand finds that transferring this case to the I.S. District Court for the Eastern District of Pennsylvania is appropriate. She holds that the substantial overlap in the subject matter between the two lawsuits favors invoking the first-filed rule and given the substantial overlap in the subject matter and similarity of the parties, the first-filed rule applies. Given the Third Circuit's directive that a stay or transfer of a second-filed action will be more appropriate than a dismissal, Judge Wiegand does not dismiss Grant's case. Rather, she defers to the court which first has possession, and transfers the action to the Eastern District of Pennsylvania. For the foregoing reasons, LM General's Motion to Dismiss, Transfer, or Stay is granted to the extent that it seeks transfer of the action pursuant to the first-filed rule. The matter transferred forthwith to the Eastern District of Pennsylvania for all further proceedings. Upon transfer, the Clerk of Court will mark the case as closed. A full-text copy of the Court's Aug. 9, 2023 Opinion is available at https://tinyurl.com/5n7nn6wf from Leagle.com. LOS ANGELES, CA: Harris' Bid for Jurisdictional Discovery Granted ----------------------------------------------------------------- In the case, DARCEL HARRIS, by and through him, T.H., his minor child, and DAPHNE HAYWOOD, individually and on behalf of all others similarly situated, Plaintiffs v. HOUSING AUTHORITY OF THE CITY OF LOS ANGELES, Defendant, Case No. 2:23-cv-04339-SPG-JPR (C.D. Cal.), Judge Sherilyn Peace Garnett of the U.S. District Court for the Central District of California: a. denies the Plaintiffs' Motion to Remand without prejudice; and b. grants the Plaintiffs' motion for jurisdictional discovery. Before the Court is Plaintiffs Darcel Harris, by and through T.H., his minor child, and Daphne Haywood's motion to remand. Defendant Housing Authority of the City of Los Angeles opposes. On Dec. 31, 2022, the Defendant discovered it was the victim of a ransomware attack. On March 10, 2023, the Plaintiffs received notification letters from the Defendant about the data security incident. They allege that, during a year-long data breach of HACLA's computer system, hackers gained unauthorized access to the private identifying information ("PII"), including full names, social security numbers, dates of birth, and financial account numbers, of the Plaintiffs and other individuals who receive Defendant's housing services. On May 2, 2023, the Plaintiffs filed a class action complaint in the Los Angeles County Superior Court. They allege that all parties are citizens of California. Their proposed class definition includes "All persons whose PII/PHI was compromised in or as a result of the Data Breach that was discovered by Defendant on or around December 31, 2022." On June 12, 2023, the counsel for the Plaintiffs requested by email the states of the mailing addresses of the Class members. On June 13, 2023, the counsel for the Defendant replied by email that the request is not reasonably calculated to address a jurisdictional issue. On June 30, 2023, the Plaintiffs filed the present Motion requesting the case be remanded back to the Los Angeles County Superior Court or, alternatively, that the Court compels the Defendant to produce jurisdictional discovery. The Defendant opposed on July 19, 2023 and the Plaintiffs replied on July 26, 2023. Judge Garnett holds that the Plaintiffs have not shown that either the mandatory or discretionary home state exception applies. He finds that the Plaintiffs have not pointed to any facts in evidence from which the Court can determine the class members' citizenship. He also cannot find that an exception applies without evidence of class members' citizenship. Moreover, Judge Garnett holds that it is not unlikely that discovery will reveal a similarly "substantial cushion" such that the Court can determine whether either the mandatory or discretionary home state exception applies. If, for example, 95% of the mailing addresses are in California, the Mandatory Exception would almost certainly apply under the preponderance of the evidence standard, and the Court would decline jurisdiction over the case. Thus, the Plaintiffs' alternative request for jurisdictional discovery is granted. For the foregoing reasons, Judge Garnett denies the Plaintiffs' Motion to Remand without prejudice to the Plaintiffs renewing the motion based on facts uncovered during discovery. He further orders that the Plaintiffs will be entitled to conduct limited jurisdictional discovery for 60 days regarding the citizenship of the putative class only. If the Defendant does not stipulate to remand and the Court ultimately finds that a mandatory exception applies, the Court will consider whether to award the Plaintiffs their fees for the cost of remanding the case. Such fees may include the cost of acquiring and reviewing the class member information that the Defendant has been ordered to provide. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/znkb56d8 from Leagle.com. MARTINEZ REFINING: Piscitelli Sues Over Refinery's Noxious Odors ---------------------------------------------------------------- JOSEPH PISCITELLI and LARA ZANZUCCHI, on behalf of themselves and all others similarly situated, Plaintiffs v. MARTINEZ REFINING COMPANY LLC, Defendant, Case No. 3:23-cv-04184-LB (N.D. Cal., August 16, 2023) is a class action against the Defendant for public and private nuisance, negligence, and trespass. The case arises from the Defendant's release of noxious odors and dust into the Plaintiffs' properties through its Martinez Refinery located at 3485 Pacheco Boulevard, Martinez California. The Defendant has, and continues to, unnecessarily and unreasonably cause substantial noxious odors and dust to be emitted off-site into the Plaintiffs' homes and similarly situated neighboring residential properties in Martinez, California. As a result, the Plaintiffs and Class members have been injured. Martinez Refining Company LLC is a company that operates petroleum refinery headquartered in Parsippany, New Jersey. [BN] The Plaintiffs are represented by: Mike M. Arias, Esq. Arnold C. Wang, Esq. M. Anthony Jenkins, Esq. ARIAS SANGUINETTI WANG & TORRIJOS, LLP 6701 Center Drive West, 14th Floor Los Angeles, CA 90045 Telephone: (310) 844-9696 Facsimile: (310) 861-0168 - and - Steven D. Liddle, Esq. Laura L. Sheets, Esq. Matthew Z. Robb, Esq. LIDDLE SHEETS COULSON P.C. 975 E. Jefferson Avenue Detroit, MI 48207 Telephone: (313) 392-0015 Facsimile: (313) 392-0025 MASIMO CORP: Vazquez Sues Over Share Price Decline -------------------------------------------------- SERGIO VAZQUEZ, individually and on behalf of all others similarly situated, Plaintiff v. MASIMO CORPORATION, JOSEPH KIANI, MICAH YOUNG, Defendants, Case No. 3:23-cv-01546-L-DEB (S.D. Cal., Aug. 22, 2023) is a federa1 securities class action on behalf of the Plaintiff and all investors who purchased or otherwise acquired Masimo common stock between February 28, 2023 and July 17, 2023, inclusive, seeking to recover damages caused by Defendants' violations of the Securities Exchange Act. According to the complaint, during the Class Period, Masimo Corp. and the Defendants made materially false and misleading statements and engaged in a scheme to deceive the market and a course of conduct that artificially inflated the price of Masimo's common stock and operated as a fraud or deceit on Class Period purchasers of Masimo's common stock by materially misleading the investing public. Later, when Masimo and Defendants' prior misrepresentations and fraudulent conduct became apparent to the market, the price of Masimo's common stock materially declined, as the prior artificial inflation came out of the price over time. The truth emerged on July 17, 2023, when Masimo issued a press release announcing its second quarter 2023 earnings. The 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, says the suit. From a closing market price of $147.16 per share on July 17, 2023, Masimo's stock price fell to $117.73 per share on July 18, 2023, a decline of nearly 20% in the span of just a single day, the suit asserts. Masimo Corp. is a global medical technology company that develops, manufactures, and markets a variety of noninvasive monitoring technologies.[BN] The Plaintiff is represented by: Adam M. Apton, Esq. LEVI & KORSINSKY LLP 445 South Figueroa Street, 31st Floor Los Angeles, CA 90071 Telephone: (213) 985-7290 E-mail: aapton@zlk.com MINDBODY IN FLORIDA: Lens Sues Over Illegal Debt Collection ----------------------------------------------------------- ROBYN LENS, individually and on behalf of all those similarly situated, Plaintiff v. MINDBODY IN FLORIDA, INC. D/B/A MINDBODY, INC., Defendant, Case No. CACE-23-017291 (Fla. Cir., 17th Judicial, Broward Cty., Aug. 22, 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. By sending the electronic communication referenced herein, the Defendant violated the FCCPA, says the suit. The Plaintiff is the alleged debtor of the consumer debt. Mindbody in Florida, Inc. is a full service heath club and wellness facility.[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 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com jen@jibraellaw.com MISTRAS GROUP: Settles Price Labor Suit Lodged in Cal. Sup. ----------------------------------------------------------- Mistras 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, 2023, that a settlement was agreed upon by the parties, received final court approval on September 26, 2022, and the company paid settlement proceeds and related payroll taxes to the claims administrator in the fourth quarter of 2022. Two proceedings were filed in California Superior Court for the County of Los Angeles regarding alleged violations of the California Labor Code. Both cases were captioned "Justin Price v. Mistras Group, Inc.," one being a purported class action lawsuit on behalf of current and former Mistras employees in California, filed on June 10, 2020, and the other was filed on September 18, 2020, on behalf of the State of California under the California Private Attorney General Act on the basis of the same alleged violations. The two cases were consolidated and requested payment of all damages, including unpaid wages, and various fines and penalties available under California law. On May 4, 2021, the company agreed to a settlement of all claims in the cases, which was more formally documented pursuant to a settlement agreement completed October 5, 2021, as amended as of May 3, 2022. Pursuant to the settlement, the Company agreed to pay $2.3 million to resolve the allegations in these proceedings and to be responsible for the employer portion of payroll taxes on the amount of the settlement allocated to wages. Mistras Group, Inc., together with its subsidiaries is a multinational provider of integrated technology-enabled asset protection solutions. MYLAN NV: Securities Suit Over Manufacturing Plants Report Ongoing ------------------------------------------------------------------ Viatris 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 June 26, 2020, a putative class action complaint was filed by the Public Employees Retirement System of Mississippi, which was subsequently amended on November 13, 2020, against Mylan N.V., certain of Mylan N.V.'s former directors and officers, and an officer and director of the company in the U.S. District Court for the Western District of Pennsylvania on behalf of certain purchasers of securities of Mylan N.V. The amended complaint alleges that defendants made false or misleading statements and omissions of purportedly material fact, in violation of federal securities laws, in connection with disclosures relating to the Nashik and Morgantown manufacturing plants and inspections at the plants by the FDA. Plaintiff seeks certification of a class of purchasers of Mylan N.V. securities between February 16, 2016 and May 7, 2019. On May 18, 2023, the court dismissed 45 of the 46 challenged statements. The complaint seeks monetary damages, as well as the plaintiff’s fees and costs. Viatris is a global healthcare company headquartered in Pittsburgh, Pennsylvania, with global centers in Shanghai, China and Hyderabad, India. It operate approximately 40 manufacturing facilities, which produce complex dosage forms, injectables, oral solid doses and active pharmaceutical ingredients. Viatris Inc. was formed on November 16, 2020 when Upjohn, a legacy division of Pfizer, spun off its off-patent branded and generic established medicines business and combined with Mylan N.V. NEWREZ LLC: Bid to Seal Class Cert Documents OK'd in Yates ---------------------------------------------------------- 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 Defendant's motion to seal. The Court further entered an order that the Declaration of Jean Knowles and Exhibits 1-14 to Shell Memorandum of Law in Opposition to the Plaintiff's motion to certify class shall be sealed. 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/44qxDPH at no extra charge.[CC] NISSAN OF NORTH AMERICA: Bid to Arbitrate Simpson's Claims Granted ------------------------------------------------------------------ In the case, ARIEL SIMPSON, DOMINIQUE BROGDEN, TARA MARTINS, GREGORY SWANN, DANIELLE ROMANOFF, and PERRY ROYSTER, and NINA FEZZA, individually and on behalf of all others similarly situated, Plaintiffs v. NISSAN OF NORTH AMERICA, INC., and NISSAN MOTOR CO., LTD., Defendants, Case No. 3:22-cv-00747 (M.D. Tenn.), Judge Aleta A. Trauger of the U.S. District Court for the Middle District of Tennessee, Nashville Division, grants Nissan North America, Inc.'s Motion to Compel Arbitration and Stay Litigation as to the claims of Dominique Brogden and Perry Royster On Sept. 23, 2022, the Plaintiffs filed a putative class action complaint against Nissan North America, Inc. ("NNA") and Nissan Motor Co., Ltd. pursuant to the consumer protection laws of several states and the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2301. They allege that they and others like them were injured by design and/or manufacturing defects that caused transmission malfunctions in Nissan Altima automobiles. On Jan. 31, 2023, NNA filed a Motion to Compel Arbitration and Stay Litigation directed at the claims of two of the Plaintiffs. It argues that those Plaintiffs -- Brogden and Royster -- signed sales contracts requiring them to submit their claims to arbitration. The contracts are not entirely identical, but they are essentially the same for the purposes at issue. Each contract is between the relevant plaintiff, identified as the "Buyer," and a "Seller-Creditor." Brogden's Seller-Creditor is identified as Passport Nissan of Alexandria in Alexandria, Virginia. Royster's Seller-Creditor is identified as Nissan of Lumberton in Lumberton, North Carolina. NNA is not a party to either contract. Brogden's agreement includes a choice-of-law provision stating that "federal law and the law of the state of Virginia apply to this contract," and Royster's has the same provision, but with "North Carolina" in the place of "Virginia." Each contract has a signature block, signed by the relevant plaintiff, explicitly acknowledging the existence of an arbitration agreement later in the contract. The arbitration agreements themselves are relatively lengthy. The Plaintiffs filed a Response arguing that arbitration is not required here because, among other things, the relevant agreement was between the Plaintiffs and the car dealerships from which they purchased their vehicles -- not between them and NNA as the manufacturer. Judge Trauger cannot conclude that the parties failed to agree clearly and unmistakably to delegate issues of enforceability to the arbitrator. The fact that the delegation provision applicable in the case lists issues of arbitrability separately from issues of interpretation and scope suggests that the concept of "arbitrability" addresses more than simply the question of whether a claim falls inside or outside the boundaries of the underlying arbitration clause. The most straightforward reading of such language would include issues of enforceability. Judge Trauger further finds that the Plaintiffs' position that the arbitration agreement does not reach claims against NNA may well be correct. The arbitration agreement very conspicuously fails to specifically identify the manufacturer of the purchased vehicle in the group of parties covered by the arbitration clause, even though lawsuits between vehicle owners and manufacturers are commonplace and foreseeable. The arbitration agreements are not, however, specific to the delegation provision. The reasons why NNA arguably should not be able to rely on that provision are the same as the reasons why NNA arguably should not be able to rely on the arbitration agreement as a whole. Finally, Judge Trauger finds that the Plaintiffs do not dispute that an order referring threshold issues of the arbitrability of Brogden's and Royster's claims would provide a basis for staying the court's consideration of those claims. The Plaintiffs ask, however, that the Court not stay its consideration of the other Plaintiffs' claims. The Defendants have not identified any reason why it would be improper to do so. Judge Trauger, accordingly, stays her consideration of the claims stated by Brogden and Royster, but does not stay any other aspect of the case. For the foregoing reasons, the Motion to Compel Arbitration and Stay Litigation is granted as to the claims of Royster and Brogden, which Judge Trauger refers to arbitration of the threshold issue of arbitrability. She stays her consideration of those claims. An appropriate order will be entered. A full-text copy of the Court's Aug. 9, 2023 Memorandum is available at https://tinyurl.com/3rrffrxk from Leagle.com. PAC-12 CONFERENCE: Faces Griggs Suit Over Concussion Effects ------------------------------------------------------------ JEANNIE GRIGGS and JASMINE PATTERSON, individually and as heirs of MARK GUSTAFSON, Deceased, and on behalf of all others similarly situated, Plaintiffs v. PAC-12 CONFERENCE AND NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendants, Case No. 2:23-cv-06926 (C.D. Cal., Aug. 22, 2023) is a class action against the Defendants for negligence, fraudulent concealment, breach of express contract, breach of implied contract, and unjust enrichment arising from Defendants' reckless disregard for the health and safety of University of California, Los Angeles student-athletes. The issue in this complaint is the number of violent head impacts that are suffered by college football players every single year. These head impacts frequently result in concussions and can, over time, increase the risk for a number of deleterious neurological and brain conditions, including Parkinson's disease, dementia, loss of memory, loss of executive skills, paranoia, Chronic Traumatic Encephalopathy (CTE), and other related symptoms and conditions. These violent head impacts often recur frequently throughout the season, both at practices and during games, which only amplifies the long-term health risks. The complaint alleges that the Defendants knew of the long-term consequences of sub-concussive impacts, concussions, and concussion related injuries that resulted from college football, but opted to actively conceal what they knew to preserve the revenue generated by the game. As a direct and proximate result of the Defendants' actions (or failures to act), Plaintiffs, as heirs of Mark Gustafson, bring this complaint on behalf of Gustafson and a Class of former players who suffered and/or continue to suffer from neurological and cognitive injuries, including symptoms resulting from CTE. Plaintiff Jeannie Griggs is Gustafson's long-term partner, executor of his will, and one of two named heirs. Plaintiff Patterson is Gustafson's only child and one of two named heirs. Plaintiffs Griggs and Patterson bring this lawsuit on behalf of Gustafson, a football player who played for UCLA in the 1960s and died in 2021 from, among other causes, CTE. Pac-12 Conference is an unincorporated association with its principal place of business located in San Francisco, California.[BN] The Plaintiffs are represented by: Todd Logan, Esq. EDELSON PC 150 California Street, 18th Floor San Francisco, CA 94111 Telephone: (415) 212-9300 Facsimile: (415) 373-9435 E-mail: tlogan@edelson.com - and - Patrick DeBlase, Esq. DEBLASE BROWN EYERLY LLP Los Angeles, CA 90021 Telephone: (310) 575-9955 Facsimile: (310) 575-9919 E-mail: deblase@dbelegal.com - and - Justin Shrader, Esq. D'Arcy L.R. Rapp, Esq. Jim Hartle, Esq. Nick Fernelius, Esq. SHRADER & ASSOCIATES 9 Greenway Plaza, Suite 2300 Houston, TX 77046 Telephone: (713) 782-0000 Facsimile: (713) 571-9605 E-mail: justin@shraderlaw.com darcy@shraderlaw.com jim@shraderlaw.com nick@shraderlaw.com PACIFIC 2.1 ENTERTAINMENT: Faces De Leon Wage-and-Hour Suit in Cal. ------------------------------------------------------------------- ADAM DE LEON, individually and in his representative capacity, Plaintiff v. PACIFIC 2.1 ENTERTAINMENT GROUP, INC., a California corporation; TWENTIETH TELEVISION, INC., a foreign corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 23STCV20148 (Cal. Super., Los Angeles Cty., Aug. 22, 2023) arises from the Defendants' alleged violations of the California Labor Code. The Plaintiff was employed as a non-exempt and non-union background talent by Defendants Pacific 2.1 Entertainment Group, Inc. and Twentieth Television, Inc. In addition to his base hourly rate, the Plaintiff earned other forms of compensation not excludable under California law when calculating an employee's regular rate. The Plaintiff's allegations arise from Defendants' failure to factor these forms of non-discretionary remuneration into the calculation of the regular rate of pay for the payment of overtime (and double time) and the calculation of the regular rate of compensation for the payment of break premiums under Labor Code. Pacific 2.1 Entertainment Group, Inc. is an entertainment company.[BN] The Plaintiff is represented by: Frank H. Kim, Esq. KIM LEGAL, APC 3435 Wilshire Blvd, Suite 2700 Los Angeles, CA 90010 Telephone: (323) 482-3300 Facsimile: (866) 652-7819 E-mail: fkim@kim-legal.com - and - Helen U. Kim, Esq. HELEN KIM LAW, APC 3435 Wilshire Blvd, Suite 2700 Los Angeles, CA 90010 Telephone: (323) 487-9151 Facsimile: (866) 652-7819 E-mail: helen@helenkimlaw.com PCB BANCORP: Faces Min Woo Bae Suit Over Data Breach ----------------------------------------------------- PCB Bancorp 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 it is facing case captioned "Min Woo Bae v. Pacific City Bank,: Case Number 21STCV45922 filed on December 16, 2021, over an incident on September 7, 2021 where an outside entity had illegally accessed and/or acquired certain data on its network. This incident impacted certain files containing certain customer information, some related to loan applications, such as tax returns and payroll records. Min Woo Bae, individually and on behalf of all others similarly situated, filed this in the Los Angeles County Superior Court and claims for damages, injunctive relief and equitable relief and seeks to form a class action and alleges causes of action for negligence, unjust enrichment, violations of California's Consumer Privacy Act, Civil Code Sections 1798.150(a) and violations of California's unfair competition law (Cal. Bus. & Prof. Code Section 17200, et seq.) PCB Bancorp is a bank holding company whose subsidiary is PCB Bank, which is a single operating segment which offers a broad range of loans, deposits, and other products and services predominantly to small and middle market businesses and individuals. The company changed its subsidiary name from Pacific City Bank to PCB Bank on August 25, 2022. PENSION BENEFITS: Glabb Files Suit in D. Minnesota -------------------------------------------------- A class action lawsuit has been filed against Pension Benefits Information, LLC. The case is styled as Scott Glabb, on behalf of himself and all others similarly situated v. Pension Benefits Information, LLC, Case No. 0:23-cv-02240-KMM-DTS (D. Minn., July 27, 2023). The nature of suit is stated as Other Contract. Pension Benefits Information (PBI) -- https://www.pbinfo.com/ -- is a third-party vendor utilized by thousands of entities to verify information to prevent overpayments to retirees.[BN] The Plaintiff is represented by: Bryan L. Bleichner, Esq. Philip Joseph Krzeski, Esq. CHESTNUT CAMBRONNE PA 100 Washington Avenue South, Suite 1700 Minneapolis, MN 55401 Phone: (612) 339-7300 Fax: (612) 336-2940 Email: bbleichner@chestnutcambronne.com pkrzeski@chestnutcambronne.com The Defendant is represented by: Emily Liebman, Esq. MASLON LLP 3300 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Phone: (612) 750-0548 Email: emily.liebman@maslon.com - and - Keiko L. Sugisaka, Esq. MASLON LLP 90 S 7th St Ste 3300 Mpls, MN 55402 Phone: (612) 672-8309 Fax: (612) 642-8309 Email: keiko.sugisaka@maslon.com PENSION BENEFITS: Williams Files Suit in D. Minnesota ----------------------------------------------------- A class action lawsuit has been filed against Pension Benefits Information, LLC. The case is styled as Glen Williams, individually and on behalf of all others similarly situated v. Pension Benefits Information, LLC, The Berwyn Group, Inc., Does 1-10, Case No. 0:23-cv-02240-KMM-DTS (D. Minn., July 27, 2023). The nature of suit is stated as Other Contract. Pension Benefits Information (PBI) -- https://www.pbinfo.com/ -- is a third-party vendor utilized by thousands of entities to verify information to prevent overpayments to retirees.[BN] The Plaintiff is represented by: Karen Hanson Riebel, Esq. Kate M. Baxter-Kauf, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Ave S Ste 2200 Mpls, MN 55401-2179 Phone: (612) 339-6900 Fax: (612) 339-0981 Email: Khriebel@locklaw.com kmbaxter-kauf@locklaw.com The Defendant is represented by: Claudia D. McCarron, Esq. Paulyne Gardner, Esq. MULLEN COUGHLIN LLC 426 W. Lancaster Avenue, Suite 200 Devon, PA 19333 Phone: (267) 930-4770 Fax: (267) 930-4771 Email: cmccarron@mullen.law pgardner@mullen.law - and - Emily Liebman, Esq. MASLON LLP 3300 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Phone: (612) 750-0548 Email: emily.liebman@maslon.com - and - Keiko L. Sugisaka, Esq. MASLON LLP 90 S 7th St Ste 3300 Mpls, MN 55402 Phone: (612) 672-8309 Fax: (612) 642-8309 Email: keiko.sugisaka@maslon.com PHL VARIABLE: Class Deal in Advance Suit Wins Prelim. Approval -------------------------------------------------------------- In the case, 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, Plaintiffs v. PHL VARIABLE INSURANCE COMPANY, Defendant, Case No. 1:18-cv-03444 (MKV) (S.D.N.Y.), Judge Mary Kay Vyskocil of the U.S. District Court for the Southern District of New York grants the Class Plaintiff's Motion for Preliminary Approval and Class Certification. The Class Counsel has applied for an order preliminarily approving the terms and conditions of the Settlement with Defendant PHL, as set forth in the Joint Stipulation and Settlement Agreement. Judge Vyskocil has considered the Agreement and Exhibits annexed thereto, the Class Plaintiff's Motion for Preliminary Approval and Class Certification and all the papers filed in support of such motion. Pursuant to Federal Rule of Civil Procedure 23(e), she finds that it will likely be able to approve the Settlement under Rule 23(e)(2), and therefore preliminarily approves the Settlement as set forth in the Agreement. Pursuant to Rule 23(e)(1)(B)(ii), she also finds that she 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) Nov. 5, 2017 and (ii) the monthly deduction immediately preceding the policy's first policy anniversary date falling on or after Jan. 1, 2021" for purposes of judgment on the proposal under Rule 23(b)(3). Judge Vyskocil appoints (i) Susman Godfrey L.L.P. as the counsel to the Settlement Class; (ii) Plaintiff James Kenney as the representative of the Class; and (iii) JND Legal Administration LLC ("JND") as the Settlement Administrator. The Settlement Administrator will be responsible for receiving requests for exclusion from the Settlement Class Members. Funds required to pay the Settlement Administrator may be paid from the Settlement Fund as they become due as set forth in the Agreement. As of the date hereof, all proceedings in the actions will be stayed and suspended until further order of the Court, except as may be necessary to implement the Settlement or comply with the terms of the Agreement. Pursuant to Rule 23(e)(1)(B), Judge Vyskocil directs that notice be provided to class members through the Notices and through the notice program. Upon entry of the Preliminary Approval Order, the parties will begin implementation of the notice program as outlined in Paragraph 63 of the Agreement and Paragraphs 7-11 and 24-31 of the Intrepido-Bowden Declaration. Within 14 days after the entry of the Order, the Defendant will deliver a Notice List to the Settlement Administrator. The Settlement Administrator will run an update of the last known addresses provided by the Defendant through the National Change of Address database before initially mailing the Class Notice. A copy of the Notice will also be posted on the Internet at a website address. Any member of the Settlement Class may request to be excluded from the Class. To be effective, written notice must be postmarked no later than 45 days after the Notice Date as set forth in the Notice. Settlement Class Members may object to the Settlement by filing a written objection with the Court and serving any such written objection on counsel for the respective Parties (as identified in the Class Notice) no later than 45 calendar days after the Notice Date. Judge Vyskocil schedules a Final Fairness Hearing to occur on Dec. 19, 2023, at 10:00 a.m. All papers in support of any Fee and Expense Request will be filed within 60 days of the date of the Order; all papers in support of the proposed distribution plan and all papers in support of final approval of the Settlement will be filed within 90 days of the date of the Order; and all reply briefs in support of any motion for final approval will be filed no later than seven days before the Final Fairness Hearing, and 103 days from the date of the Order. No later than seven days before the final fairness hearing, all other relevant reply papers will be filed and served by the parties to the action. If the Settlement or the Agreement fails to be approved, fails to become effective, is terminated by PHL pursuant to Paragraph 54 of the Agreement, or otherwise fails to be consummated, or if there is no Final Settlement Date, then: (i) the parties will be returned to status quo ante, as if the Agreement had never been negotiated or executed, with the right to assert in the Action any argument or defense that was available to it at that time. No later than 10 days after the Motion for Preliminary Approval of the Settlement has been filed with the Court, the Defendant will serve the Class Action Fairness Act ("CAFA") Notice on the Attorney General of the United States and the state attorneys general as required by 28 U.S.C. Section 1715(b). Thereafter, it will serve any supplemental CAFA Notice as appropriate. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/48aw8zvd from Leagle.com. PRINCE GEORGE'S COUNTY, MD: Entry of Judgment in Butler Suit Denied ------------------------------------------------------------------- In the case, CHRISTOPHER BUTLER, et al., individually and on behalf of a class of similarly situated persons, Plaintiffs v. PRINCE GEORGE'S COUNTY, MARYLAND, et al., Defendants, Civil No. 22-1768 PJM (D. Md.), Judge Peter J. Messitte of the U.S. District Court for the District of Maryland denies the Plaintiffs' Motion for Entry of Judgment Under Rule 54(b), or, in the Alternative, to Certify a Partial Appeal Under 28 U.S.C. Section 1292. The putative class action has been brought by current and former detainees charged with crimes in Prince George's County, Maryland against Defendants Prince George's County and Maryland state court judges sitting in Prince George's County. It challenges the process by which pretrial release determinations are accomplished in the County. Judge Messitte considers the Plaintiffs' Motion for Entry of Judgment Under Rule 54(b), or, in the Alternative, to Certify a Partial Appeal Under 28 U.S.C. Section 1292. In its Memorandum Opinion dated June 7, 2023, the Court denied the Plaintiffs' Motion for Reconsideration Under Rule 54(b) and the Judge Defendants' Motion for Clarification and Reconsideration or, in the Alternative, to Substitute Defendant Proper Parties. On June 20, 2023, the Plaintiffs filed a Motion for Entry of Judgment. In their Motion, the Plaintiffs ask the Court to enter partial judgment with respect to the Court's dismissal of their monetary damages claims against the County so that they may pursue an immediate appeal. Alternatively, they ask the Court to certify for appeal the question of the County's quasi-judicial immunity pursuant to 28 U.S.C. Section 1292. The County opposes the Motion. Having considered the parties' arguments, no hearing being necessary, Judge Messitte denies the Motion for Entry of Judgment. The Plaintiffs first request the Court to enter partial judgment with respect to its dismissal of their monetary damages claims pursuant to Federal Rule of Civil Procedure 54(b). Judge Messitte finds just reasons to delay entry of final judgment under Rule 54(b). He says the Plaintiffs' money damages claim is directly tied to the question still before the Court of Defendant Prince George's County's liability for injunctive relief. It is still not clear, in the absence of discovery, just what it is that the Plaintiffs claim Defendant County is doing illegally, much less what remedies against the County for its conduct, if any, would be appropriate. According to Judge Messitte, it is, therefore, premature for the Plaintiffs to appeal the separate issue of money damages prior to the determination of what exactly Defendants are alleged to have done in the case. Indeed, the money damages claim may well be mooted in whole or part by a finding in favor of Prince George's County on the unadjudicated claim. Furthermore, certifying partial final judgment at this stage would further delay discovery in a case that both sides, Judge Messitte believes, are eager to resolve. Finally, entering partial judgment would conflict with the Fourth Circuit's well-known aversion to piecemeal appeals, especially where "the parties on appeal remain contestants below." In the alternative, the Plaintiffs request that the Court grants them a certificate of appealability with respect to the monetary damages issue pursuant to 28 U.S.C. Section 1292. Judge Messitte holds that the issue of monetary damages in the case does not meet the criteria for certification because it does not pose a "controlling question of law." The issue is not "controlling" because its disposition on appeal would not resolve the entire litigation, in which a viable claim for injunctive relief unquestionably remains. Further, the issue of monetary damages is not a pure "question of law." To be precise: the Plaintiffs do not contest the existence of the legal principle of quasi-judicial immunity of judges, but rather the Court's extension of the principle to the County, based on a functional and fact-specific inquiry. Section 1292(b) certification is not appropriate for that type of mixed-law-and-fact question. Accordingly, Judge Messitte denies the Plaintiff's request for a certificate of appealability on the issue of monetary damages pursuant to Section 1292(b). For the foregoing reasons, the Plaintiffs' Motion for-Entry of Judgment is denied. Within 30 days from the date of the Order, the counsel for all parties will submit a Joint Proposed Scheduling Order to the Court that includes a timetable for discovery as well as a proposed briefing schedule to address, if appropriate, any Amended Motion for Class Certification that the Plaintiffs might choose to file. A full-text copy of the Court's Aug. 9, 2023 Memorandum Opinion is available at https://tinyurl.com/yc82u7s7 from Leagle.com. PROGRESS SOFTWARE: LoGiudici Sues Over Unprotected Personal Info ---------------------------------------------------------------- DANA LOGIUDICI, individually and on behalf of all others similarly situated, Plaintiff v. PROGRESS SOFTWARE CORPORATION and PENSION BENEFIT INFORMATION, LLC d/b/a PBI RESEARCH SERVICES, Defendants, Case No. 1:23-cv-11916-GAO (D. Mass., Aug. 22, 2023) is a class action against the Defendants for negligence, negligence per se, breach of implied contract, and unjust enrichment arising from Defendants' failure to safeguard Plaintiff's and Class members' personally identifying information(PII). The Plaintiff brings this class action lawsuit on behalf of all persons who entrusted Defendants with sensitive personal information that was exposed in a data breach when, between May 29, 2023 and May 30, 2023, an unauthorized third party accessed PBI's internal MOVEit Transfer servers which contained individuals' sensitive PII. As a result of the PBI's inadequate digital security and notice process, Plaintiff and Class members' PII was exposed to criminals, says the suit. The Plaintiff and the Class have suffered and will continue to suffer injuries including: financial losses caused by misuse of PII; the loss or diminished value of their PII as a result of the data breach; lost time associated with detecting and preventing identity theft; and theft of personal, medical, and financial information, the suit asserts. Progress Software Corp. is a software company that offers software products and services to corporate and governmental entities, including cloud hosting and secure file transfer services such as MOVEit.[BN] The Plaintiff is represented by: Gary S. Ishimoto, Esq. Mark S. Reich, Esq. Courtney E. Maccarone, Esq. LEVI & KORSINSKY, LLP 55 Broadway, 4th Floor, Suite 427 New York, NY 10006 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: gishimoto@zlk.com mreich@zlk.com cmaccarone@zlk.com PROGRESSIVE SPECIALTY: Court Certifies Two Classes in Drummond Suit ------------------------------------------------------------------- In the case, LEON DRUMMOND, LEE WILLIAMS, and YESHONDA DRIGGINS, on behalf of themselves and all others similarly situated, Plaintiffs v. PROGRESSIVE SPECIALTY INSURANCE COMPANY and PROGRESSIVE ADVANCED INSURANCE COMPANY, Defendants, Civil Action No. 21-4479 (E.D. Pa.), Judge Edward G. Smith of the U.S. District Court for the Eastern District of Pennsylvania: a. grants the Plaintiffs' motion for class certification; and b. denies Progressive's Daubert motions to exclude the reports and testimonies of various expert witnesses proffered by the Plaintiffs. The case involves a group of Plaintiffs who allege that their automobile insurance company failed to pay them the actual cash value of their vehicles after said vehicles were deemed a total loss. The Plaintiffs have filed a motion to certify a proposed class on behalf of similarly situated insureds, which the insurance company has opposed. Plaintiffs Leon Drummond and Lee Williams initiated the putative class action against Progressive Advanced Insurance Co. and Progressive Specialty Insurance Co. ("Progressive Advanced" and "Progressive Specialty" - or collectively "Progressive") on Oct. 12, 2021. In their original complaint, Drummond and Williams alleged that Progressive violated insurance contracts between the two Plaintiffs and the company -- as well as the insurance contracts of other insureds who experienced a total loss -- by applying projected sold adjustments ("PSA") to artificially deflate the value of totaled vehicles and thereby pay insureds less than the contractually obligated actual cash value ("ACV") of said vehicles. Additionally, the complaint noted that Drummond and Williams would seek class certification to represent all persons who made a first-party claim on an insurance policy from Progressive where the payout was decreased after the application of a PSA. The complaint contained four causes of action. First, the complaint proposed that Drummond would lead a class asserting a breach-of-contract cause of action against Progressive Specialty (First Cause of Action) and Williams would lead a class asserting a breach-of-contract cause of action against Progressive Advanced (Second Cause of Action). Moreover, both Drummond and Williams sought declaratory judgment (Third and Fourth Causes of Action). On Dec. 17, 2021, Progressive filed an answer, in which it denied that the use of PSAs constituted a breach of contract and asserted that the proposed class did not meet the requirements for class certification. On June 14, 2022, the Court consolidated the action with Driggins v. Progressive Advanced Insurance Co., Civ. A. No. 22-1065. Consequently, on June 29, 2022, Drummond and Williams filed with Yeshonda Driggins ("Driggins") an amended complaint, the operative complaint in this case. The amended complaint contains the same causes of action as the original complaint, except Driggins joins Williams in leading a breach-of-contract cause of action and seeking declaratory judgment against Progressive Advanced. On July 22, 2022, Progressive answered the amended complaint, raising largely the same claims and arguments contained within its first answer. Drummond, Williams, and Driggins (collectively the "putative Plaintiffs") filed a motion for class certification on Oct. 12, 2022. Progressive filed a response in opposition to class certification on Nov. 21, 2022. On Jan. 18, 2023, Progressive filed Daubert motions to exclude the expert reports and testimonies of Jeffery Martin, Jason Merritt, Paul Mlinko, and Kirk Felix. On Feb. 8, 2023, the putative Plaintiffs filed motions in opposition to these Daubert challenges, arguing exclusion would be premature and unjustified. Five days later, Progressive filed its replies in support of its Daubert motions. Between 2018 and 2021, each putative Plaintiff was involved in a car accident that resulted in physical damage to their respective vehicles. Moreover, each putative Plaintiff held an insurance contract with Progressive at the time of their accident -- Drummond through Progressive Specialty and Williams and Driggins through Progressive Advanced. Following their accidents, they each filed a property damage claim with Progressive. Progressive subsequently declared each vehicle a total loss and seemingly paid each putative Plaintiff the ACV of their vehicle pursuant to Progressive's insurance policies. The putative Plaintiffs are now seeking to certify the following classes of individuals: a. Progressive Advanced Class: All persons who made a first-party claim on a policy of insurance issued by Progressive Advanced Insurance Co. to a Pennsylvania resident who, from Oct. 12, 2017 through the date an order granting class certification is entered, received compensation for the total loss of a covered vehicle, where that compensation was based on a dual source valuation report prepared by Mitchell (i.e. report type code = DSCN) and the actual cash value was decreased based upon Projected Sold Adjustments to the comparable vehicles used to determine actual cash value. b. Progressive Specialty Class: All persons who made a first-party claim on a policy of insurance issued by Progressive Specialty Insurance Co. to a Pennsylvania resident who, from Oct. 12, 2017 through the date an order granting class certification is entered, received compensation for the total loss of a covered vehicle, where that compensation was based on a dual source valuation report prepared by Mitchell (i.e. report type code = DSCN) and the actual cash value was decreased based upon Projected Sold Adjustments to the comparable vehicles used to determine actual cash value. Williams and Driggins are the proposed class representatives for the Progressive Advanced Class and Drummond is the proposed class representative for the Progressive Specialty Class. The putative Plaintiffs contend that they meet all prerequisites for class certification under Rule 23(a) and that class treatment is proper under Rule 23(b)(3). Judge Smith heard oral argument on both the putative Plaintiffs' motion for class certification and Progressive's Daubert motions on Feb. 14, 2023. Beginning with the three Daubert motions, he finds all relevant expert testimony to be qualified, reliable, and fit for the purposes of the case. Accordingly, their respective reports and testimonies are admissible. Turning next to the Plaintiffs' motion for class certification, he finds that the Plaintiffs have satisfied all requirements. Specifically, the Plaintiffs have demonstrated numerosity, commonality, typicality, and adequacy under Rule 23(a), predominance and superiority under Rule 23(b)(3), and Rule 23's implicit requirement of ascertainability. For these reasons, Judge Smith denies Progressive's motions to exclude the reports and testimonies of Martin, Merritt, Mlinko, and Felix. At the same time, he grants the putative Plaintiffs' motion for class certification. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/y3n2v6cj from Leagle.com. RESIDENCE INN: Rodriguez Wage-and-Hour Suit Removed to S.D. Cal. ---------------------------------------------------------------- The case styled LISA RODRIGUEZ, individually and on behalf of all others similarly situated v. RESIDENCE INN BY MARRIOTT, LLC, MAVIS AMBROSIO, and DOES 1 through 100, inclusive, Case No. 37-2023-00022584-CU-OE-CTL, was removed from the Superior Court of the State of California, County of San Diego, to the U.S. District Court for the Southern District of California on August 16, 2023. The Clerk of Court for the Southern District of California assigned Case No. 3:23-cv-01504-JAH-BGS to the proceeding. The Plaintiff brings this class action suit against the Defendants for wage-and-hour violations pursuant to California Labor Code. Residence Inn by Marriott, LLC is a hospitality company based in Maryland. [BN] The Defendant is represented by: Daniel B Chammas, Esq. Caleb Y. Lee, Esq. FORD & HARRISON LLP 350 South Grand Avenue, Suite 2300 Los Angeles CA 90071 Telephone: (213) 237-2400 Facsimile: (213) 237-2401 E-mail: dchammas@fordharrison.com cyleefordharrison.com RICHARD INDUSTRIAL: Lozano Sues Over Pipe Designers' Unpaid Wages ----------------------------------------------------------------- TIMOTHY LOZANO, individually and on behalf of all others similarly situated, Plaintiff v. RICHARD INDUSTRIAL GROUP, INC. and RICHARD DESIGN SERVICES, INC. Defendants, Case No. 2:23-cv-00208 (S.D. Tex., Aug. 22, 2023) is a class action against the Defendant seeking to recover unpaid overtime and other damages under the Fair Labor Standards Act. Plaintiff Lozano worked for Defendants as a pipe designer from approximately July 2022 through January 2023. The Plaintiff asserts that all similarly situated employees were paid a straight hourly wage for all hours worked, but did not receive overtime for all hours worked over 40 in each workweek. Richard Industrial Group, Inc. provides engineering services doing business in the State of Texas.[BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Casey L. Kellum, Esq. ANDERSON ALEXANDER, PLLC 101 N. Shoreline Blvd., Ste. 610 Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com casey@a2xlaw.com RLC LANDSCAPING: Hernandez Sues Over Laborers' Unpaid Overtime -------------------------------------------------------------- DENNIS HERNANDEZ, on behalf of himself and all others similarly situated, Plaintiff v. RLC LANDSCAPING LLC., a Florida Limited Liability Company, DEGRAW OUTDOOR LLC., a Florida Limited Liability Company and RAMON COLON, individually, Defendants, Case No. 6:23-cv-01606 (M.D. Fla., Aug. 22, 2023) is brought as a collective action against the Defendants under the Fair Labor Standards Act to recover unpaid overtime compensation owed to Plaintiff and other similarly situated employees. The Plaintiff is an adult resident of Florida and was employed by Defendants as a non-exempt hourly paid laborer from September 2020 through August 2023. RLC Landscaping LLC provides lawn and landscaping services.[BN] The Plaintiff is represented by: Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 10368 West State Road 84, Suite 103 Davie, FL 33324 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 E-mail: noah@floridaovertimelawyer.com ROSEBUD ECONOMIC: Can Compel Arbitration in Huntley Class Suit -------------------------------------------------------------- In the case, KATEY HUNTLEY and GARY JACKSON, et al., Plaintiffs v. ROSEBUD ECONOMIC DEVELOPMENT CORPORATION, et al., Defendants, Case No. 22-cv-1172-L-MDD (S.D. Cal.), Judge M. James Lorenz of the U.S. District Court for the Southern District of California grants Defendant 777 Partner, LLC's Motion to Compel Arbitration, and denies as moot its Motion to Dismiss. On Nov. 29, 2019, Plaintiff Huntley took out an unsecured consumer loan from Defendant Rosebud Lending LZO d/b/a ZocaLoans ("Zoca") with a principal amount of $1,000 and an interest rate of 736.38% APR. In August 2021, Plaintif Jackson took out an unsecured consumer loan of $700 from Zoca at an interest rate of 492.56% APR. The Plaintiffs made payments on the loans, but eventually were unable to make regular payments. ZocaLoans thereafter made attempts to collect on the loans. The Plaintiffs assert that Zoca falsely advertises that it is wholly owned by Rosebud Economic Development Corp. ("REDC"), a tribal corporation incorporated under the laws of the Rosebud Sioux Tribe of the Rosebud Indian Reservation, but instead it is controlled entirely by non-tribal members. They aver in the Complaint that Defendant Tactical Marketing Partners, a non-tribal entity, obtains consumer credit reports on behalf of the business endeavor and provides that information to Defendants Zoca and 777. Non-tribal Defendant 777 purportedly provides the employees and systems that are utilized to underwrite and approve the loans made by Zoca. Once the loans are approved, Tactical and 777 transmit the approval information to Zoca and Zoca then funds the loan. However, the Plaintiffs contend that the loans are funded from accounts held by non-tribal Defendants Tactical, Fintech Financial, LLC, and 777 to which tribal Defendants REDC and Zoca have no access. They claim that the funding of the loan by Zoca is in name only and is intended to use Zoca's status as a tribal entity to avoid liability for the schemes' unlawful lending practices. On Aug. 22, 2022, the Plaintiffs Huntley and Jackson filed the putative class action asserting violations of 18 U.S.C. Section 1962, the Racketeer Influenced and Corrupt Organizations ACT ("RICO"); 47 U.S.C. Section 227 the Telephone Consumer Protection Act; California's Unfair Competition Law, Cal. Bus. & Prof. C. Sections 17200 et seq.; and California's Rosenthal Fair Debt Collection Practices Act, Cal. Civ. C. Sections 1788, et seq. On Nov. 17, 2022, 777 filed the present Motion to Compel Arbitration and Motion to Dismiss. On Jan. 6, 2023, the Plaintiffs filed Oppositions to the Motion to Compel Arbitration and Motion to Dismiss. On Jan. 20, 2023, 777 filed a Reply to the Motion to Compel and a Reply to the Motion to Dismiss. 777 argues that the Court should compel Plaintiffs to arbitrate their claims because the loan agreements included arbitration agreements requiring arbitration for all claims arising under the contracts. It further contends that the delegation provision contained in the arbitration agreements is enforceable and requires the arbitrator to address challenges to enforceability. The Plaintiff responds that 777 cannot enforce the arbitration agreement because it is not a party to the agreement. Because 777 is not a party to the Agreements, they contend 777 could potentially only enforce the arbitration clause under the state contract law theory of equitable estoppel but the theory does not apply under the test in Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1128 (9th Cir. 2013). The Plaintiff further argues that (1) the Court should determine threshold issues of arbitrability, (2) the choice of law provision is unenforceable, (3) the arbitration agreements are unenforceable, and (4) Defendants have waived their right to compel arbitration by filing a motion to dismiss on the merits. First, the present case involves 777, a nonsignatory, seeking to compel a signatory, the Plaintiffs, to arbitrate its claims against the nonsignatory. Under the facts as alleged 777 may enforce the arbitration agreements as non-parties under either equitable estoppel theory. The Plaintiffs allege that nonsignatory 777 acts in concert with signatory Zoca and other Defendants to lure unsophisticated consumers into procuring unsecured personal loans with interest rates and other terms that violate RICO and California law. The resulting loan agreements contain terms which form the foundation of the Plaintiffs claims. Therefore, Judge Lorenz finds that nonsignatory 777 may compel arbitration because the claims are intimately founded in and intertwined with the underlying contract and the signatory alleges substantially independent and concerted misconduct by the non-signatory and another signatory and the allegations of interdependent misconduct are found in or intimately connected with the obligations of the underlying agreement. Next, the Plaintiffs argue that even if there is a valid delegation agreement, it is unworkable and unconscionable because it requires the arbitrator to apply the laws of the Rosebud Sioux Tribe but Defendant has not shown that there is a body of general contract law under those laws that may be applied by the arbitrator. In response, 777 contends the choice of law provisions does not render the delegation provision unconscionable because the Rosebud Sioux Tribe has a body of law that includes a chapter on damages for breach of contract. Judge Lorenz finds that the Plaintiffs argument fails considering the Defendants citation to the governing provision of the Rosebud Sioux Tribe contract law provision. Finally, the Plaintiffs challenge the Agreements on multiple grounds of unconscionability claiming that the Agreements are procedurally unconscionable because they were contracts of adhesion. The Defendant counters that the loan Agreements are not procedurally unconscionable because Plaintiffs were not obligated to choose the loan product offered by Defendants, there was no oppression involved, and there was no surprise because the Arbitration Agreement was in bold font under a clear heading. Judge Lorenz holds that the Rosebud Sioux Tribe has a substantial relationship to the agreements in question because ZocaLoans is a business formed under the Rosebud Tribal Law. The loans were entered into with the Plaintiffs who were California residents, but who accessed the loans via the internet. ZocaLoans does not have any storefronts in California. Although the Plaintiffs challenge the interest rate and loan process as violative of California usury laws, California has no strong public policy against a particular rate of interest so long as the charging of that rate is permitted by law to the specific lender. Hence, the Plaintiffs have failed to show that the substantive law of the Rosebud Sioux Tribe is contrary to California's policy on usury, or that the arbitrator will not apply California law to those claims, therefore, the choice of law provision does not violate California's choice of law framework. For these foregoing reasons, 777's Motion to Compel Arbitration is granted and its Motion to Dismiss is denied as moot. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/9edafd8u from Leagle.com. S.K.C. ENTERPRISES: Sends Unsolicited Marketing Calls, Reed Claims ------------------------------------------------------------------ KEERA REED, on behalf of herself and all others similarly situated, Plaintiff v. S.K.C. ENTERPRISES, INC. D/B/A RENT ONE, Defendant, Case No. 4:23-cv-01013 (E.D. Mo., August 16, 2023) is a class action against the Defendant for violation of Oklahoma's Telephone Solicitation Act of 2022. According to the complaint, the Defendant is engaged in transmitting telephonic sales calls to consumers in an attempt to promote its goods and services without obtaining prior express written consent. The Defendant's telephonic sales calls have caused the Plaintiff and Class members harm, including violations of their statutory rights, statutory damages, annoyance, nuisance, and invasion of their privacy, says the suit. S.K.C. Enterprises, Inc., doing business as Rent One, is a home furnishing store operator based in Saint Louis, Missouri. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE P.A. 14 NE 1st Ave., Suite 705 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. Christopher Gold, Esq. EDELSBERG LAW, P.A. 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (786) 289-9471 E-mail: scott@edelsberglaw.com chris@edelsberglaw.com SANDISK LLC: Jafri Sues Over Sale of Defective Solid-State Drives ----------------------------------------------------------------- SAIF JAFRI, individually and on behalf of all others similarly situated, Plaintiff v. SANDISK LLC and WESTERN DIGITAL CORPORATION, Defendants, Case No. 5:23-cv-04206 (N.D. Cal., August 17, 2023) is a class action against the Defendants for breach of the implied warranty of merchantability, unjust enrichment, and violations of the California's Unfair Competition Law, California's Consumers Legal Remedies Act, and California's False Advertising Law. The case arises from the Defendants' alleged design, marketing, and distribution of defective SanDisk and Western Digital solid-state drives. According to the complaint, after data has been stored on the drives, failure can occur without any further input from the user. A drive that has a defect causing an extreme risk of failure and permanent data loss does not function as a drive and has no value; no reasonable consumer would pay hundreds of dollars for a storage device that has a high likelihood of failing at any time and causing permanent data loss. As a result, the Plaintiff and Class members did not receive the goods as impliedly warranted by the Defendants to be merchantable, says the suit. SanDisk LLC is a wholly owned brand of Western Digital Corp., with its headquarters in Milpitas, California. Western Digital Corporation is a digital storage solutions company headquartered in San Jose, California. [BN] The Plaintiff is represented by: Neal J. Deckant, Esq. Stefan Bogdanovich, Esq. Luke Sironski-White, Esq. BURSOR & FISHER, PA 1990 N. California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ndeckant@bursor.com sbogdanovich@bursor.com lsironski@bursor.com SANDISK LLC: Solid-State Drives "Defective," Perrin Suit Alleges ---------------------------------------------------------------- MATTHEW PERRIN and BRIAN BAYERL, individually and on behalf of all others similarly situated, Plaintiffs v. SANDISK LLC, WESTERN DIGITAL CORPORATION, and WESTERN DIGITAL TECHNOLOGIES, INC., Defendants, Case No. 5:23-cv-04201-SVK (N.D. Cal., August 17, 2023) is a class action against the Defendants for breach of express warranty, breach of the implied warranty, fraudulent misrepresentation, fraud by omission, negligent misrepresentation, unjust enrichment, and violations of the California's Unfair Competition Law, California's Consumers Legal Remedies Act, California's False Advertising Law, and Florida Deceptive and Unfair Trade Practices Act. The case arises from the Defendants' alleged design, marketing, and distribution of defective SanDisk and Western Digital solid-state drives (SSDs). According to the complaint, the SanDisk SSDs are suddenly, and without warning, wiping data and, in some cases, becoming unreadable. In other words, the SSDs suddenly become worthless. After months of inaction, Defendant Western Digital finally admitted in May of 2023 that the SanDisk SSDs had a firmware problem and released a firmware update that purported to resolve issues on some of the SanDisk SSDs that are regularly failing customers. At the time, Western Digital announced that they addressed this firmware issue in the manufacturing process, and they can confirm that the issue is not impacting currently shipping products. However, Western Digital's purported fix has not resolved anything and consumers continue to have their products fail, causing them to lose the valuable data they stored on the SanDisk SSDs, and defeating the purpose of owning a SanDisk SSD in the first place. As a result, the Plaintiffs and Class members did not receive the goods as impliedly warranted by the Defendants to be merchantable, says the suit. SanDisk LLC is a wholly owned brand of Western Digital Corp., with its headquarters in Milpitas, California. Western Digital Corporation is a digital storage solutions company headquartered in San Jose, California. Western Digital Technologies, Inc. is a company that develops and manufactures storage solutions, with its principal place of business in San Jose, California. [BN] The Plaintiffs are represented by: Todd A. Seaver, Esq. Matthew D. Pearson, Esq. BERMAN TABACCO 425 California Street, Suite 2300 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: tseaver@bermantabacco.com mpearson@bermantabacco.com - and - Ian W. Sloss, Esq. Johnathan Seredynski, Esq. Brett L. Burgs, Esq. SILVER GOLUB & TEITELL LLP One Landmark Square, Floor 15 Stamford, CT 06901 Telephone: (203) 425-4491 E-mail: isloss@sgtlaw.com jseredynski@sgtlaw.com bburgs@sgtlaw.com STATE FARM: M.D. Florida Denies Bids to Dismiss Sanchez RICO Suit ----------------------------------------------------------------- In the case, CARMEN DANIELLE MORA SANCHEZ, on behalf of herself and all others similarly situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, HIDAY & RICKE, P.A., JEFF RICKE, an individual, and ROBERT HIDAY, an individual, Defendants, Case No. 3:21-cv-372-TJC-LLL (M.D. Fla.), Judge Timothy J. Corrigan of the U.S. District Court for the Middle District of Florida, Jacksonville Division, denies the Defendants' Motions to Dismiss. The debt-collection class action case is before the Court on its second round of motions to dismiss. The Court previously granted in part Defendants State Farm and Hiday & Ricke, P.A.'s Motions to Dismiss, and dismissed Plaintiff Carmen Danielle Mora Sanchez's Racketeer Influenced and Corrupt Organizations Act (RICO) counts without prejudice. The Court provided Sanchez one final opportunity to amend her RICO counts and she opted to do so. Now before the Court are the Defendants' Motions to Dismiss Sanchez's RICO counts and Sanchez's responses in opposition. Sanchez brings claims under both 18 U.S.C. Section 1962(c) (against Jeff Ricke and Robert Hiday) and Section 1962(d) (against State Farm). Section 1962(c) makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. Similarly, Section 1962(d) makes it "unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. To survive Defendants' motions to dismiss, Sanchez must plausibly allege that the Defendants (1) operated or managed (2) an enterprise (3) through a pattern (4) of racketeering activity that included at least two predicate acts of racketeering, which (5) caused (6) injury to the business or property of the plaintiff. If a plaintiff fails to adequately plead any one of these elements, she has failed to state a claim upon which relief may be granted. The Court dismissed Sanchez's RICO counts in the First Amended Complaint because she failed to properly allege the existence of an enterprise. In the Second Amended Complaint, she alleges that Jeff Ricke and Robert Hiday "conducted or participated in the affairs" of Hiday & Ricke "through a pattern of racketeering activity," and that State Farm knew about and profited off their illegal tactics. The Defendants contend that Sanchez has not sufficiently pled the predicate acts of mail fraud or extortion, a pattern of racketeering, and/or causation. Ricke and Hiday argue that Sanchez has provided only conclusory allegations as to how they engaged in racketeering activity. Judge Corrigan disagrees. Ricke and Hiday also argue that they lacked the requisite intent to commit mail fraud because Florida Statute Section 324.131 is ambiguous. However, Judge Corrigan finds that Sanchez has alleged enough to plausibly infer (in accordance with 9(b)) that Defendants intended to defraud Sanchez and others. Finally, State Farm argues that Sanchez has not alleged the required "agreement" for her conspiracy count. Judge Corrigan again disagrees and thinks that the allegations, assumed as true, barely cross the threshold into plausibility. While the Court questions whether Sanchez will ultimately succeed on her RICO claims, Sanchez has alleged just enough to survive a motion to dismiss. Judge Corrigan is confident the Defendants will provide the Court another opportunity to consider the RICO claims at the summary judgment stage. Accordingly, the Defendants' Motions to Dismiss are denied. The Defendants will answer the Second Amended Complaint no later than Sept. 8, 2023. State Farm's Request for Oral Argument on Motion to Dismiss is denied as moot. The parties continue to be governed the Phase One Case Management and Scheduling Order. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/3xxfh4bh from Leagle.com. STIHL INC: Bid to Remand Chambers MMWA Suit to State Court Denied ----------------------------------------------------------------- In the case, STEVEN CHAMBERS, Plaintiff v. STIHL INCORPORATED USA, Defendant, Case No. 4:22-CV-00688-BRW (E.D. Ark.), Judge Billy Roy Wilson of the U.S. District Court for the Eastern District of Arkansas, Central Division, denies the Plaintiff's Motion to Remand to state court. The case arises out of the warranties the Defendant allegedly provides with products that it manufactures and sells. The Plaintiff alleges the warranties prohibit the use of third-party repair services or parts in violation of the Magnuson-Moss Warranty Act ("MMWA"). The Plaintiff filed his Complaint on June 24, 2022 in the Circuit Court of Lonoke County, Arkansas, alleging only violations of MMWA. On July 29, 2022, the Defendant filed its Notice of Removal, asserting jurisdiction under 28 U.S.C. 1332(d), under the Class Action Fairness Act of 2005 ("CAFA"). The Plaintiff now seeks to remand the case to state court. He contends that Judge Wilson lacks subject matter jurisdiction over his claim under the MMWA, which contains some unique jurisdictional requirements for class actions brought in federal court. Alternatively, the Plaintiff contends that remand is also appropriate because the Defendant failed to meet the $5 million amount-in-controversy threshold for CAFA removal. Judge Wilson believes that satisfaction of the MMWA's jurisdictional requirements is not necessary considering CAFA jurisdiction. The Defendant's declaration attached to its removal papers, response to the motion to remand, and the accompanying declaration establish that the overall cost of the requested injunctive relief and declaratory judgment might be above CAFA's amount-in-controversy threshold. With the addition of attorneys' fees, which the Plaintiff seeks, it is all but guaranteed that the case will exceed $5 million. Without conceding that CAFA jurisdictional standards apply, the Plaintiff argues that the Defendant does not convincingly prove that the matter in controversy exceeds the sum or value of $5 million. Although the Plaintiff pushes back, his burden, at this point, is to establish to a legal certainty that the case will not exceed $5 million. He has failed to meet his burden and the case is properly in federal court. Based on the findings of fact and conclusions of law, Judge Wilson denies the Plaintiff's Motion to Remand. A full-text copy of the Court's Aug. 11, 2023 Order is available at https://tinyurl.com/yfe4sbxj from Leagle.com. SUFFOLK COUNTY, NY: Bid for Substitution in Butler Suit Granted --------------------------------------------------------------- In the case, MACK BUTLER, DESHAUN SIMS, CLYDE LOFTON, PAUL ALVER, KEVIN KING, and RICKEY LYNCH, on behalf of themselves and all others similarly situated, Plaintiffs v. SUFFOLK COUNTY, Defendant, Case No. 11-CV-2602 (JS)(ST) (E.D.N.Y.), Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York grants the Plaintiffs' Substitution Motion to the extent that they may add: (1) Daryl Miller and Kenneth Williams as Named Plaintiffs for the Injunctive Class; and (2) Richard McMahon and Jermaine Yates as Named Plaintiffs for the Damages Class. The lawsuit is a prisoners' conditions-of-confinement class action suit. Presently before the Court is the Plaintiffs' Motion to Intervene Additional Class Representatives" ("Substitution Motion") filed in response to the Court's Sept. 19, 2019 Electronic Order. Defendant County opposes said Substitution Motion. In its summary judgment motion, the County argues that the Plaintiffs' claims are unexhausted and must be dismissed pursuant to the Prison Litigation Reform Act (PLRA). It points out that none of the Representative Plaintiffs filed grievances regarding conditions at the Yaphank Facility and that while one Representative Plaintiff filed a pre-suit grievance concerning the Riverhead Facility, he did not grieve the conditions about which the Plaintiffs complain in the action. In response, the Plaintiffs contend that the exhaustion requirement does not apply to their claims, that exhaustion was excused because the grievance process was a simple dead end, that exhaustion was excused because inmates were hindered and intimidated from grieving, and as relevant in the case, that class members other than the Representative Plaintiffs (with the limited exception of Sims either properly exhausted under the PLRA or were excused from exhausting because they are not incarcerated (or were not incarcerated at the time of joining the class action). Upon review of several complaints that were consolidated into the action, the Court notes that other inmates purport to have filed grievances prior to filing suit. It does not pass on the parties' arguments at this juncture. Rather, to the extent certain class members fully exhausted administrative remedies or are not incarcerated (or were not incarcerated at the time of joining the class action) and are therefore not subject to the exhaustion requirement, the Court directs the Plaintiffs to file a motion proposing those class members as substitute class representatives [i.e., the Intervention Motion]. Having ruled on the Cross-Motions, Judge Seybert issues this corresponding order on the Substitution Motion. The Plaintiffs argue that no substitution or addition is necessary, but, nonetheless, propose as additional Named Plaintiffs and class representatives: (1) Miller and Williams as to the Injunctive Class; and (2) McMahon and Yates as to the Damages Class. In opposition, the County argues neither Miller nor Williams should be substituted as Injunctive Class members since: (1) Miller has not been incarcerated in the SCCF since August 2012, before the March 2013 date when the Class was certified; and (2) Williams did not fully exhaust his grievance. It also opposes adding McMahon and Yates as additional representatives of the Damages Class arguing: (3) McMahon is not a class member because he was not incarcerated in the SCCF in the Damages Class period; and (4) Yates is not a member of the Riverhead Damages Subclass because he was not incarcerated in Riverhead in the Damages Subclass period. Considering its Cross-Motions Order and having considered the papers submitted in support of and in opposition to the Substitution Motion, Judge Seybert grants the Substitution Motion to the extent that the Plaintiffs may add the proposed class members as Named Plaintiffs. Judge Seybert finds the County's argument against the substitution of Miller unavailing. As an initial matter, in certifying the Classes in the Action, the Court rejected the exact argument the County makes, i.e., that Miller is not a member of the Injunctive Class. Instead, the Court noted it is the date of the complaint, not the date of the certification motion, that is relevant. Since Miller was incarcerated when his complaint was filed, he has standing to request injunctive relief and is a member of the Injunctive Class. In any event, as the Court stated in its Cross-Motions Order, because the Court has determined that grievances such as Williams' regarding the Facilities' toilets were not within the Warden's control, they also were not subject to exhaustion. Similarly, the County's contention that Williams cannot serve as a class representative because he did not exhaust his grievance is both unpersuasive and disingenuous. As the Plaintiffs highlight, pursuant to the SCCF's grievance procedure, a grievance that was "accepted" cannot be appealed; therefore, the County's reliance upon Williams' failure to sign the "accepted" grievance is specious. Indeed, in its Cross-Motions Order, the Court found this grievance procedure illusory, thereby excusing exhaustion. And, to the extent the County argues McMahon and Yates cannot serve as Damages Class representatives because they were not incarcerated during the Damages Class period, that argument lacks merit. The County's opposition to the substitution by or addition of McMahon and Yates as Damages Class representatives based upon its interpretation that the Damages Class period ended in March 2013 is inapposite to the Court's definition of the Damages Class and the language the Court approved for Class Notice and, therefore, fails to sustain the County's Opposition. Accordingly, Judge Seybert grants the Plaintiffs' Substitution Motion to the extent that they may add: (1) Williams and Miller as Named Plaintiffs for the Injunctive Class; and (2) McMahon and Yates as Named Plaintiffs for the Damages Class. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/mua34xxc from Leagle.com. Daniel H.R. LaGuardia, Esq. -- daniel.laguardia@shearman.com -- John F. Cove Jr., Esq. -- john.cove@shearman.com -- George B. Adams, Esq., Shearman & Sterling LLP, New York, New York, Erin B. Harrist, Esq., New York Civil Liberties Union, New York, New York, for the Plaintiffs. Arlene S. Zwilling, Esq., Suffolk County Attorney's Office, Hauppauge, New York, for the Defendant. SUFFOLK COUNTY, NY: Williams, Miller Added as Plaintiffs in Butler ------------------------------------------------------------------ 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 granting motion to intervene additional class representatives. Accordingly, the Plaintiffs' Substitution Motion is granted to the extent that they may add: (1) Williams and Miller as Named Plaintiffs for the Injunctive Class; and (2) McMahon and Yates as Named Plaintiffs for the Damages Class. The Court finds the County's argument against the substitution of Miller unavailing. To the extent the County argues McMahon and Yates cannot serve as Damages Class representatives because they were not incarcerated during the Damages Class period, that argument lacks merit. Suffolk County is the easternmost county in New York State and is divided into 10 towns. A copy of the Court's order dated Aug. 9, 2023 is available from PacerMonitor.com at https://bit.ly/3YX07ja at no extra charge.[CC] The Plaintiffs are represented by: Daniel H.R. LaGuardia, Esq. John F. Cove Jr., Esq. George B. Adams, Esq. SHEARMAN & STERLING LLP 599 Lexington Avenue New York, NY 10022 - and - Erin B. Harrist, Esq. NEW YORK CIVIL LIBERTIES UNION 125 Broad Street, 19th Floor New York, NY 10004 The Defendant is represented by: Arlene S. Zwilling, Esq. SUFFOLK COUNTY ATTORNEY’S OFFICE H. Lee Dennison Building, Fifth Floor 100 Veterans Memorial Highway Hauppauge, NY 11788 SUNOPTA INC: Hayes Sues Over Contaminated Frozen Fruit Products --------------------------------------------------------------- Kymberlee Hayes, individually on behalf of herself and on behalf of her minor child, H.H., and on behalf of all others similarly situated, Plaintiff v. SunOpta, Inc.; Sunrise Growers, Inc., Defendants, Case No. 3:23-cv-04205-MGL (D.S.C., Aug. 22, 2023) is a class action against the Defendants for negligence, breach of express warranty, breach of implied warranty of merchantability, fraudulent misrepresentation, fraud by omission, and unjust enrichment arising from the Defendants' alleged failure to ensure the quality and safety of their frozen fruit products. According to the complaint, Defendants' negligent failure led to the recall of Defendants' frozen fruit products. These recalled products were recalled due to bacterial contamination concerns. Specifically, the bacteria species Listeria monocytogenes is believed to have contaminated Defendants' recalled products. Despite the known risks of Listeria monocytogenes, Defendants have recklessly and/or knowingly sold the recalled products without disclosing the possible contamination. The Defendants' omissions are material, false, misleading, and reasonably likely to deceive the public. This is especially true, considering the long-standing campaign that markets the recalled products as healthy, safe, and high quality, so as to induce customers to purchase the products, says the suit. The Plaintiff ingested Defendants' products as part of her normal routine and diet, and specifically enjoyed Defendant's frozen cherries. For months on end, up until June 2023, Plaintiff regularly ingested recalled products, specifically from the retailer Walmart, and became ill. SunOpta, Inc. is a multi-national food and mineral company headquartered in Eden Prairie, Minnesota.[BN] The Plaintiff is represented by: Paul J. Doolittle, Esq. Blake G. Abbott, Esq. POULIN | WILLEY ANASTOPOULO, LLC 32 Ann Street Charleston, SC 29403 Telephone: (803) 222-2222 E-mail: paul.doolittle@poulinwilley.com blake.abbott@poulinwilley.com TC HEARTLAND: Splenda's Healthy Labels "False," Prescott Alleges ---------------------------------------------------------------- STEVEN PRESCOTT, on behalf of himself and all others similarly situated, Plaintiff v. TC HEARTLAND, LLC, Defendant, Case No. 5:23-cv-04192-VKD (N.D. Cal., August 17, 2023) is a class action against the Defendant for violations of California Consumers Legal Remedies Act, California False Advertising Law, and California Unfair Competition Law, and for breach of express warranty and unjust enrichment/restitution. According to the complaint, the Defendant is engaged in false, deceptive, and misleading advertising, labeling, and marketing of Splenda products. The products are labeled they are "recommended" by doctors and dietitians and are for "Diabetes Care." The products are made of sucralose, they are neither healthy nor suitable for these purposes. Rather, according to science yet unknown to consumers, sucralose negatively affects pancreatic beta cells, which promote insulin resistance, destabilizes glucose absorption, causes obesity, and harms the gut microbiome. In all cases, consumers are harmed by paying a premium for the health claims touted by the Defendant that are untrue, says the suit. TC Heartland, LLC is a company that provides packaged food products, headquartered in Carmel, Indiana. [BN] The Plaintiff is represented by: Shireen M. Clarkson, Esq. Bahar Sodaify, Esq. Alan Gudino, Esq. Ryan Ardi, Esq. CLARKSON LAW FIRM, P.C. 22525 Pacific Coast Highway Malibu, CA 90265 Telephone: (213) 788-4050 E-mail: sclarkson@clarksonlawfirm.com bsodaify@clarksonlawfirm.com agudino@clarksonlawfirm.com rardi@clarksonlawfirm.com TERM COMMODITIES: Court Certifies Class in Pinkham Lawsuit ---------------------------------------------------------- In the class action lawsuit captioned as Pinkham, et al., v. Term Commodities, Inc. et al., Case No. 1:12-cv-05334 (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/3Ee6STY 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 Satullo Lawsuit ---------------------------------------------------------- In the class action lawsuit captioned as Satullo v. Term Commodities, Inc. et al., Case No. 1:12-cv-05470 (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/45ucW6H 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: Parties to Review Revisions to Class Notice Form ------------------------------------------------------------------ In the case, IN RE: TERM COMMODITIES COTTON FUTURES LITIGATION. This Document Relates To: All Actions, Master Docket: 12-cv-05126 (ALC) (JW) (S.D.N.Y.), Judge Andrew L. Carter, Jr., of the U.S. District Court for the Southern District of New York orders the Parties to review revisions to their proposed Notice Form and be prepared to discuss at oral argument. Judge Carter has attached revisions to the Parties' proposed Notice Form in his Order. The Notice is directed to all persons, corporations and other legal entities that (a) purchased between March 30 and May 6, 2011 a May 2011 ICE Cotton No. 2 futures contract in order to liquidate a short position in such contract 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 ICE Cotton No. 2 futures contract in order to liquidate a short position therein; 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. The Plaintiffs in the lawsuit seek recovery from the 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). They assert claims against Defendants under the Commodity Exchange Act, 7 U.S.C. Section 1, et seq. ("CEA"), and the Sherman Antitrust Act, 15 U.S.C. Section 2, et seq. ("Sherman Act"). The Plaintiffs allege the 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. They further allege that the 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. As a result of the Defendants' conduct, the Plaintiffs allege that May and July 2011 ICE Cotton No. 2 futures contract prices increased to, and Class members paid, artificially high prices to liquidate their short positions in such futures contracts, and/or paid artificially high prices pursuant to their cotton on call contracts. After the May and July 2011 contracts expired, the InterContinental Exchange ("ICE"), which regulates the cotton futures trading at issue here, hired a cotton market participant who had warned ICE of distorted prices and potentially unlawful behavior in the cotton market in April 2011. The Plaintiffs also allege the Defendants were positioned to profit from the alleged increases in prices and did profit by as much as $185 million. The Defendants deny all of the Plaintiffs' allegations and deny that Defendants violated any laws or engaged in any wrongdoing. The Action was filed in June 2012 by Mark Allen. On March 16, 2018, the Plaintiffs filed their Third Consolidated Amended Complaint, naming Mark Allen and Brian Ledwith as the Class representatives. On Sept. 30, 2020, the Court denied the Defendants' Rule 56 summary judgment motion in all respects and held that the Plaintiffs have alleged enough facts and evidence that a reasonable jury could render a verdict in their favor on their CEA and Sherman Act claims. On Feb. 17, 2022, the Court granted the Plaintiffs' Rule 23 motion to certify the Class. It appointed Mark Allen (but not Brian Ledwith) as a Class representative. On July 7, 2022, the U.S. Court of Appeals for the Second Circuit denied the Defendants' Rule 23(f) petition that sought immediate review of the Court's class certification decision, finding that an immediate appeal is not warranted. The Class certified by the Court is 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. The Court appointed Lovell Stewart Halebian Jacobson LLP, 500 Fifth Avenue, Suite 2440, New York, New York 10110 as the "Class Counsel" to represent the Class. The Notice summarizes the rights and options of the class members. If one is a member of the Class, he/she will need to decide whether to: (a) remain in the Class; or (b) request to be excluded from the Class. A full-text copy of the Court's Aug. 9, 2023 Order is available at https://tinyurl.com/4y65ew96 from Leagle.com. TRUSTMARK NATIONAL: Shareholder Suit Over Stanford Collapse Ongoing ------------------------------------------------------------------- Trustmark Corporation 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 Trustmark's wholly-owned subsidiary, Trustmark National Bank (TNB), has been named as a defendant in several lawsuits related to the collapse of the Stanford Financial Group. On August 23, 2009, a purported class action complaint was filed in the District Court of Harris County, Texas, by Peggy Roif Rotstain, Guthrie Abbott, Catherine Burnell, Steven Queyrouze, Jaime Alexis Arroyo Bornstein and Juan C. Olano, on behalf of themselves and all others similarly situated, naming TNB and four other financial institutions and one individual, each of which are unaffiliated with Trustmark, as defendants. The complaint sought to recover alleged fraudulent transfers from each of the defendants in the amount of fees and other monies received by each defendant from entities controlled by R. Allen Stanford and damages allegedly attributable to alleged conspiracies by one or more of the defendants with the Stanford Financial Group to commit fraud and/or aid and abet fraud on the asserted grounds that defendants knew or should have known the Stanford Financial Group was conducting an illegal and fraudulent scheme. In November 2009, the lawsuit was removed to federal court by certain defendants and then transferred by the United States Panel on Multidistrict Litigation to federal court in the Northern District of Texas (Dallas), where multiple Stanford related matters have been consolidated for pre-trial proceedings. In May 2010, all defendants (including TNB) filed motions to dismiss the lawsuit. In August 2010, the court authorized and approved the formation of an Official Stanford Investors Committee (OSIC) to represent the interests of Stanford investors and, under certain circumstances, to file legal actions for the benefit of Stanford investors. In December 2011, the OSIC filed a motion to intervene in this action, which was granted in December 2012. The OSIC initially sought to recover from TNB and the other defendant financial institutions alleged fraudulent transfers in the amount of the fees each of the defendants allegedly received from Stanford Financial Group, the profits each of the defendants allegedly made from Stanford Financial Group deposits, and other monies each of the defendants allegedly received from Stanford Financial Group, damages attributable to alleged conspiracies by each of the defendants with the Stanford Financial Group to commit fraud and/or aid and abet fraud and conversion on the asserted grounds that the defendants knew or should have known the Stanford Financial Group was conducting an illegal and fraudulent scheme and punitive damages. In July 2013, all defendants (including TNB) filed motions to dismiss the OSIC's claims. In March 2015, the court entered an order authorizing the parties to conduct discovery regarding class certification, staying all other discovery and setting a deadline for the parties to complete briefing on class certification issues. In April 2015, the court granted in part and denied in part the defendants' motions to dismiss the plaintiffs' claims and the OSIC's claims. The court dismissed all of the plaintiffs' fraudulent transfer claims and dismissed certain of the OSIC’s claims. The court denied the motions by TNB and the other financial institution defendants to dismiss the OSIC’s constructive fraudulent transfer claims. On June 23, 2015, the court allowed the Class Plaintiffs to file a Second Amended Class Action Complaint (SAC), which asserted new claims against TNB and certain of the other defendants for aiding, abetting and participating in a fraudulent scheme, aiding, abetting and participating in violations of the Texas Securities Act, aiding, abetting and participating in breaches of fiduciary duty, aiding, abetting and participating in conversion and conspiracy. On July 14, 2015, the defendants (including TNB) filed motions to dismiss the SAC and to reconsider the court’s prior denial to dismiss the OSIC's constructive fraudulent transfer claims against TNB and the other financial institutions that are defendants in the action. On July 27, 2016, the court denied the motion by TNB and the other financial institution defendants to dismiss the SAC and also denied the motion by TNB and the other financial institution defendants to reconsider the court's prior denial to dismiss the OSIC’s constructive fraudulent transfer claims. On August 24, 2016, TNB filed its answer to the SAC. On October 20, 2017, the OSIC filed a motion seeking an order lifting the discovery stay and establishing a trial schedule. On November 4, 2016, the OSIC filed a First Amended Intervenor Complaint, which added claims for aiding, abetting or participation in violations of the Texas Securities Act and (ii) aiding, abetting or participation in the breach of fiduciary duty. On November 7, 2017, the court denied the Class Plaintiffs’ motion seeking class certification and designation of class representatives and counsel, finding that common issues of fact did not predominate. The court granted the OSIC's motion to lift the discovery stay that it had previously ordered. On May 3, 2019, individual investors and entities filed motions to intervene in the action. On September 18, 2019, the court denied the motions to intervene. On October 14, 2019, certain of the proposed intervenors filed a notice of appeal. On February 3, 2021, the Fifth Circuit Court of Appeals affirmed the denial of the motions to intervene; this decision was affirmed by a panel of the Fifth Circuit on March 12, 2021. On February 12, 2021, all defendants (including TNB) filed a motion for summary judgment with respect to OSIC claims that applied to all defendants. In addition, on the same date, TNB filed a separate motion for summary judgment with respect to aspects of OSIC claims that applied specifically to TNB. On March 19, 2021, OSIC filed notice with the court that it was abandoning as against all of the defendants (including TNB) certain of the claims previously set forth in the SAC. As a result, only the claims for aiding, abetting and participating in breaches of fiduciary duty, aiding, abetting and participating in violations of the Texas Securities Act, and punitive damages remain as against TNB. On January 20, 2022, the court denied TNB's motion for summary judgment, as well as the motion for summary judgment filed by all defendants (including TNB) with respect to OSIC claims that apply to all defendants. The parties to the action have agreed that the case is to be tried in the District Court for the Southern District of Texas. On March 25, 2021, the District Court for the Northern District of Texas rescinded its previously-issued trial scheduling orders so that the Southern District of Texas could set scheduling for this case once the case had in fact been remanded. On January 19, 2022, the judge of the District Court for the Northern District of Texas to whom the case was then assigned issued a recommendation to the Judicial Panel on Multidistrict Litigation that the case be remanded to the District Court for the Southern District of Texas in light of that judge's determination with respect to the summary judgment motions that triable issues of fact exist. On January 21, 2022, the panel approved the remand of the case to the District Court for the Southern District of Texas, and on January 28, 2022 the remand of the case became effective. On June 9, 2022, the court entered an order scheduling trial beginning February 27, 2023, which will be held as a jury trial in front of Judge Kenneth M. Hoyt of the District Court for the Southern District of Texas. Trustmark Corporation is a bank holding company headquartered in Jackson, Mississippi. Through its subsidiaries, Trustmark operates as a financial services organization providing banking and financial solutions to corporate institutions and individual customers through offices in Alabama (includes the Georgia Loan Production Office), Florida, Mississippi, Tennessee and Texas. TWIST BIOSCIENCE: Peters Files Shareholder Suit Over SEC Filings ---------------------------------------------------------------- Twist Bioscience Corporation disclosed in its Form 10-Q the quarterly period ended June 30, 2023, filed with the Securities and Exchange Commission on August 7, 2023, that it is facing a putative securities class action lawsuit captioned "Peters v. Twist Bioscience Corporation, et al.," Case No. 22-cv-08168 (N.D. Cal.) filed on December 12, 2022. Said case names the company and certain of its officers as defendants and asserts claims under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. It is based in large part on allegations concerning, among other things, its DNA chip technology and accounting practices. The initial complaint alleges that various statements that the defendants made between December 13, 2019 and November 14, 2022 were materially false and misleading in light of said allegations and seeks unspecified damages on behalf of all persons and entities who purchased or acquired company securities during an alleged class period that began on December 13, 2019 and ended on November 14, 2022, as well as certain other costs. Twist Bioscience Corporation is a synthetic biology company that has developed a disruptive DNA synthesis platform. UNIVERSITY OF ROCHESTER: Harling Sues Over Unauthorized Info Access ------------------------------------------------------------------- SABRINA HARLING, individually and on behalf of all others similarly situated, Plaintiff v. THE UNIVERSITY OF ROCHESTER, Defendant, Case No. 6:23-cv-06471 (W.D.N.Y., August 17, 2023) is a class action against the Defendant for negligence, negligence per se, breach of implied contract, unjust enrichment, and declaratory and injunctive relief. The case arises from the Defendant's failure to properly secure and safeguard the personally identifiable information of the Plaintiff and similarly situated individuals stored within its network systems following a data breach discovered on or around May 31, 2023. The Defendant also failed to timely notify the Plaintiff and similarly situated individuals about the data breach. As a result, the PII of the Plaintiff and Class members were compromised and damaged through access by and disclosure to unknown and unauthorized third parties, says the suit. The University of Rochester is a private research university located in Rochester, New York. [BN] The Plaintiff is represented by: Randi Kassan, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC 100 Garden City Plaza Garden City, NY 11530 Telephone: (212) 594-5300 E-mail: rkassan@milberg.com - and - Joseph M. Lyon, Esq. THE LYON FIRM 2754 Erie Ave. Cincinnati, OH 45208 Telephone: (513) 381-2333 Facsimile: (513) 766-9011 E-mail: jlyon@thelyonfirm.com USHEALTH ADVISORS: Court Denies Bids to Dismiss Prosser TCPA Suit ----------------------------------------------------------------- In the case, CHRISTOPHER PROSSER, Plaintiff v. USHEALTH ADVISORS, LLC, et al., Defendants, Case No. 4:23-cv-124-MTS (E.D. Mo.), Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denies Defendant USHealth Advisors, LLC's Motions to Dismiss. The matter is before the Court on USHA's Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Prosser filed a class action lawsuit against USHA and John and Jane Doe 1 through 501, alleging claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227 and the Missouri No Call List and Telemarketing prohibitions, Mo Rev. Stat. Sections 407.1098.1, 407.1076. USHA offers a service where they solicit individuals to purchase various types of insurance policies. The Plaintiff alleges the Defendants called and texted him over 87 times without his express written consent and even though his number was listed on both state and federal do-not-call lists. USHA filed a Motion to Dismiss. The first issue is whether there is personal jurisdiction over non-resident USHA. Judge Schelp concludes that the Plaintiff plausibly alleged facts showing USHA's conduct fell within at least two of the activities enumerated in Missouri's long-arm statute. Under Missouri law, when considering whether specific personal jurisdiction exists over a nonresident defendant, the court must first determine if the defendant's conduct falls within a category enumerated in Missouri's long-arm statute. The suit must arise out of the activities enumerated in the long-arm statute. There are six activities enumerated in Missouri's long-arm statute. USHA next argues the Plaintiff failed to state a claim against it under the TCPA because he did not sufficiently allege (1) vicarious liability or (2) use of an automated telephone dialing system ("ATDS"). Neither argument is persuasive, Judge Schelp holds. First, the Plaintiff provided specific factual allegations which, if taken as true, could support at least one, if not more, of these theories of agency liability. Second, while a bare allegation that a defendant used an ATDS is likely not enough, the Plaintiff pled factual information rendering it plausible the system used meets Facebook, Inc. v. Duguid's definition of an ADTS. Accordingly, USHA's Motions to Dismiss is denied and the Plaintiff's Motion to File Surreply is granted. A full-text copy of the Court's Aug. 9, 2023 Memorandum & Order is available at https://tinyurl.com/2w4bhszh from Leagle.com. VENTURA COUNTY CREDIT: Medina Files Suit in C.D. California ----------------------------------------------------------- A class action lawsuit has been filed against Ventura County Credit Union. The case is styled as Jennifer Medina, individually and on behalf of all others similarly situated v. Ventura County Credit Union., Case No. 2:23-cv-06159-SVW-E (C.D. Cal., July 28, 2023). The nature of suit is stated as Other Fraud. Ventura County Credit Union (VCCU) -- https://www.vccuonline.net/ -- is a full-service, Southern California credit union with branches in Ventura, Port Hueneme, Oxnard, RiverPark, Camarillo, Thousand Oaks, Simi Valley and Moorpark.[BN] The Plaintiff is represented by: Nicole Ramirez Jones, Esq. Jeffrey A. Koncius, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211-2910 Phone: (310) 854-4444 Fax: (310) 854-0812 Email: ramirez@kiesel.law koncius@kiesel.law The Defendant is represented by: Rachel Aleeza Straus, Esq. SHOOK HARDY AND BACON LLP 2049 Century Park East Suite 3000 Los Angeles, CA 90067 Phone: (424) 285-8330 Fax: (424) 204-9093 Email: rstraus@shb.com VIATRIS INC: Faces RICO/Antitrust Charges Over EpiPen Pricing ------------------------------------------------------------- Viatris 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 beginning in March 2020, the company, together with other non-Viatris affiliated companies, were named as defendants in putative direct purchaser class actions filed in the U.S. District Court for the District of Minnesota relating to contracts with certain pharmacy benefit managers concerning EpiPen(R) Auto-Injector. The plaintiffs claim that the alleged conduct resulted in the exclusion or restriction of competing products and the elimination of pricing constraints in violation of (Racketeer Influenced and Corrupt Organizations Act) RICO and federal antitrust law. These actions have been consolidated. They seek monetary damages, attorneys' fees and costs. Viatris is a global healthcare company headquartered in Pittsburgh, Pennsylvania, with global centers in Shanghai, China and Hyderabad, India. It operate approximately 40 manufacturing facilities, which produce complex dosage forms, injectables, oral solid doses and active pharmaceutical ingredients. VIATRIS INC: Faces Securities Suit Over Misleading Statements ------------------------------------------------------------- Viatris 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 beginning in May 2023, putative class action complaints were filed against the company and certain of the company's current and former officers, directors, or employees in the U.S. District Court for the Western District of Pennsylvania on behalf of certain purchasers of securities of the company. The complaints allege that defendants made false or misleading statements and omissions of material fact, in violation of federal securities laws, in connection with disclosures relating to the company's projected financial performance and biosimilars business. Plaintiffs seek certification of a class of purchasers of company securities between March 1, 2021 and February 25, 2022. Plaintiffs seek monetary damages, reasonable costs and expenses, and certain other equitable and injunctive relief. Viatris is a global healthcare company headquartered in Pittsburgh, Pennsylvania, with global centers in Shanghai, China and Hyderabad, India. It operate approximately 40 manufacturing facilities, which produce complex dosage forms, injectables, oral solid doses and active pharmaceutical ingredients. VIATRIS INC: Faces Securities Suit Over Upjohn-Mylan Merger Deal ---------------------------------------------------------------- Viatris 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 28, 2021, the company and certain of its then officers and directors were named as defendants in a putative class action lawsuit filed in the Court of Common Pleas of Allegheny County, Pennsylvania on behalf of former Mylan shareholders who received company common stock in connection with the formation of Viatris when Upjohn, a legacy division of Pfizer, spun off its off-patent branded and generic established medicines business and combined with Mylan N.V. The complaint alleges violations of Sections 11, 12(a)(2), and 15 of the Securities Act of 1933 for purportedly failing to disclose or misrepresenting material information in the registration statement and related prospectus issued in connection with the combination. On January 3, 2023, an amended complaint was filed naming the same defendants and alleging the same violations as the original complaint. Plaintiffs seek monetary damages, reasonable costs and expenses, and certain other equitable and injunctive relief. Viatris is a global healthcare company headquartered in Pittsburgh, Pennsylvania, with global centers in Shanghai, China and Hyderabad, India. It operate approximately 40 manufacturing facilities, which produce complex dosage forms, injectables, oral solid doses and active pharmaceutical ingredients. WENDY'S INT'L: Bid to Dismiss Gollman's 1st Cause of Action Denied ------------------------------------------------------------------ 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 U.S. Supreme Court of the 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 Gollman 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. The 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 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 the 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 the Defendants. 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 like the Uniform Maintenance Pay Order at issue in this action. 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 motion. The Defendants will file and serve via NYSCEF an Answer to the Amended Complaint within 20 days of service of a copy of her 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. 11, 2023 Decision + Order is available at https://tinyurl.com/2vz85w6p from Leagle.com. WORLD WILDLIFE: Valenzuela Suit Removed to C.D. California ---------------------------------------------------------- The case styled as Sonya Valenzuela, individually and on behalf of all others similarly situated v. World Wildlife Fund, Inc. doing business as: www.worldwildlife.org, Case No. 23STCV14554 was removed from the Los Angeles Superior Court, to the U.S. District Court for the Central District of California on July 27, 2023. The District Court Clerk assigned Case No. 2:23-cv-06112-WLH-MAA to the proceeding. The nature of suit is stated as Other Fraud. World Wildlife Fund Inc. -- https://www.worldwildlife.org/ -- is a nonprofit, tax-exempt charitable organization.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS APC 4100 Newport Place Drive Suite 800 Newport Beach, CA 92660 Phone: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com The Defendant is represented by: Jacob Michael Harper, Esq. Sancho Accorsi, Esq. DAVIS WRIGHT TREMAINE LLP 865 South Figueroa Street 24th Floor Los Angeles, CA 90017-2566 Phone: (213) 633-6800 Fax: (213) 633-6899 Email: jacobharper@dwt.com sanchoaccorsi@dwt.com - and - Caleah N. Whitten, Esq. DAVIS WRIGHT TREMAINE LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104 Phone: (206) 622-3150 Fax: (206) 757-7700 Email: caleahwhitten@dwt.com ZUFFA LLC: Sanchez Suit Removed to C.D. California -------------------------------------------------- The case styled as Isaiah Sanchez, individually and on behalf of all other persons similarly situated v. Zuffa, LLC doing business as: UFC Fight Pass, Does One through One Hundred inclusive, Case No. 23STCV02154 was removed from the Superior Court of CA - County of Los Angeles, to the U.S. District Court for the Central District of California on July 27, 2023. The District Court Clerk assigned Case No. 2:23-cv-06113-SPG-KS to the proceeding. The nature of suit is stated as Other Contract for Contract Dispute. Zuffa is an American sports promotion company specializing in mixed martial arts.[BN] The Plaintiff is represented by: Marc G. Reich, Esq. Adam T. Hoover, Esq. REICH RADCLIFFE AND HOOVER LLP 4675 MacArthur Court Suite 550 Newport Beach, CA 92660 Phone: (949) 975-0512 Fax: (949) 975-0514 Email: mgr@reichradcliffe.com adhoover@reichradcliffe.com - and - Lawrence Timothy Fisher, Esq. BURSOR AND FISHER PA 1990 North California Boulevard Suite 940 Walnut Creek, CA 94596 Phone: (925) 300-4455 Fax: (925) 407-2700 Email: ltfisher@bursor.com The Defendant is represented by: Ashley L. Shively, Esq. Daniel P. Kappes, Esq. Zachary T. Watterson, Esq. HOLLAND AND KNIGHT LLP 560 Mission Street Suite 1900 San Francisco, CA 94105 Phone: (415) 743-6900 Fax: (415) 743-6951 Email: ashley.shively@hklaw.com daniel.kappes@hklaw.com ZURU LLC: Bui Files Suit in C.D. California ------------------------------------------- A class action lawsuit has been filed against Zuru, LLC. The case is styled as Hannah Bui, individually and on behalf of all others similarly situated v. Zuru, LLC., Case No. 2:23-cv-06125-FMO-MRW (C.D. Cal., July 28, 2023). The nature of suit is stated as Other Contract for Breach of Contract. ZURU -- https://zuru.com/ -- is a disruptive and award-winning company that designs, manufactures and markets innovative toys and consumer products.[BN] The Plaintiff is represented by: Eric Marc Poulin, Esq. Blake G Abbott, Esq. Paul Doolittle, Esq. POULIN WILLEY & ANASTOPOULO 32 Ann Street Charleston, SC 29403 Phone: (843) 614-8888 Email: eric@akimlawfirm.com blake@akimlawfirm.com pauld@akimlawfirm.com - and - John C. Bohren, Esq. BOHREN LAW 8560 West Sunset Boulevard, 4th Floor West Hollywood, CA 90069 Phone: (619) 433-2803 Fax: (800) 867-6779 Email: yanni@bohrenlaw.com The Defendant is represented by: E. Paul Dougherty, Jr., Esq. Ashan Kyle Peiris, Esq. WILSON ELSER MOSKOWITZ EDELMAN AND DICKER LLP 555 South Flower Street Suite 2900 Los Angeles, CA 90071 Phone: (213) 443-5100 Fax: (213) 442-5101 Email: Paul.Dougherty@wilsonelser.com ashan.peiris@wilsonelser.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2023. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***