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/raid1/www/Hosts/bankrupt/CAR_Public/231204.mbx C L A S S A C T I O N R E P O R T E R Monday, December 4, 2023, Vol. 25, No. 242 Headlines 3M CO: City of Bend Joins PFAS Water Contamination Class Suit AC2T RESEARCH: Dec. 1 Settlement Claims Filing Deadline Set ADVANCE AUTO: Bids for Lead Plaintiff Appointment Due Dec. 8 ALLIANCE ENTERTAINMENT: Continues to Defend McKnight Class Suit ALTAMED HEALTH: Faces Class Action Over Private Data Sharing AMAZON.COM INC: Faces Class Action Over Systemic Pay Bias AMAZON.COM INC: Faces Pay Discrimination Class Action in Wash. APPLE INC: Faces Class Action Over Abuse of Market Power APPLE INC: Faces P2P Payment Antitrust Class Action ARIZONA: Class Action Over Birth Certificate Change Rule Pending AUXLY CANNABIS: Ontario Court Approves Class Action Settlement AVANQUEST NORTH: Fernandez Sues Over Automatic Renewal Program AVIAGAMES INC: Users File Class Action Over Casino Apps BAKER HUGHES: Escudero Seeks to Recover Unpaid OT Wages Under FLSA BEAUTY HEALTH: Alghazwi Sues Over Misleading Company Statements BIEWER LUMBER: Evans Sues Over Alleged Employment Discrimination BLUE APRON: Continues to Defend Hayes Labor Class Suit BLUE APRON: Continues to Defend Mitchell Labor Class Suit BP CANADA: Rebein et al. Sue Over Alleged Disaster Profiteering BUCKNELL UNIVERSITY: Camden Seeks COVID-19 Tuition Fee Refund BUZZFEED INC: Hunthausen Sues Over Video Privacy Issues in Apps COCA-COLA CO: Class Action Over Rewards Points Stayed CONCORDIA UNIVERSITY: Jewish Students File Antisemitism Class Suit CONSERVICE LLC: Garcia Consumer Credit Suit Removed to M.D. Fla. COREBRIDGE FINANCIAL: Faces Chuck Suit Over Insurance Dispute COREBRIDGE FINANCIAL: Faces Moriarty Suit Over Insurance Dispute CRONOS GROUP: Osler Attorneys Discuss Ruling in Securities Suit DAMERON HOSPITAL: Doe Files Class Suit in Calif. State Court DEE MARK: Lorenzo's Collective Action Bid Granted in Part DOLLAR ENERGY: Flagella et al. Sue Over Unprotected Customer Data DRAFTKINGS INC: Consolidated Securities Suit Dismissed DRAFTKINGS INC: Faces Breach of Contract Suit Over Denied Prizes DRAFTKINGS INC: Faces Consolidated Securities Suit Over Merger Deal DRAFTKINGS INC: Faces Securities Violations Suit Over NFT Sales DRG MEDICAL: Faces Suit Over Alleged Sexual Assault in Patients EL FUERTE DELI: Almendares Seeks to Recover Unpaid Wages EMERGENT BUSINESS: Faces Charles Suit Over Unfair Debt Collection ENOVIX CORP:Continues to Defend Consolidated Securities Class Suits EXCELL COMMUNICATIONS: Fails to Pay Wages Weekly, Martinez Says FEDEX GROUND: Faces Class Action Over Unpaid Overtime Wages FINEPOINTS PRIVATE: Faces Bobb Suit Over Labor Law Violations FMC CORP: Faces Investor Class Actions Over Misledading SEC Filings FORD MOTOR: Katz Sues Over Defective Vehicle Camera System FRONTIER AIRLINES: Faces Class Action Over Bogus Baggage Fees GODADDY INC: Appealed TCPA Case Remanded GRUBHUB INC: Jack Tate Alleges Unauthorized Use of Restaurant Names HARD ROCK CAFE: Francis Sues Over Breach of Tip Credit Regulations HAWTHORNE LAB: Has Made Unsolicited Calls, Bilbao Suit Claims HEALTH CAROUSEL: Class Certification Bid Due April 1, 2024 HELIX FINANCIAL: Faces Class Action Over Rent-a-Bank Scheme INVIVYD INC: Continues to Defend Brill Securities Class Suit IONQ INC: Continues to Defend Leacock Consolidated Class Suit JACK CLEVELAND: Prime Seeks Proper Wages for Tipped Employees JOHNSON & JOHNSON: Faces Class Action Over Cold Medications JOHNSON & JOHNSON: Faces Wilson Class Action Lawsuit in D.N.J. KENVUE INC: Autrey Sues Over Misleading IPO Registration Statement KENVUE INC: Faces Securities Class Action Over IPO KOS INC: Barnes and Menkowitz Sue Over False Ads of Protein Powders LI-CYCLE HOLDINGS: Bids for Lead Plaintiff Deadline Due Jan. 8 LINCARE INC: Cowan Allowed Leave to File Reply Brief in Class Suit LOANDEPOT INC: Initial OK of Settlement in Class Suit Pending LOS ANGELES, CA: Legarda Sues Over Delayed Payment of OT Wages LUMINAR TECHNOLOGIES: Continues to Defend Johnson Class Suit MASS GENERAL: Sued Over Potential Hepatitis, HIV Exposure MDL 3076: 8 Suits Consolidated in S.D. Fla. MGM RESORTS: Fails to Secure Customers' Personal Info, Bezak Says MR. COOPER: Randall Sues Over Failure to Protect Personal Info NAHON & SAHAROVICH: Faces Garbarino Class Action Suit in E.D. Mo. NAPCO SECURITY: Continues to Defend Zornberg Securities Class Suit NATIONAL COLLEGIATE: Sued Over TV Revenue Earned by Networks NATIONAL VISION: Continues to Defend Southfield Class Suit NATURE'S BOUNTY: Challenges "Fish Oil" Product Class Action NAVISTAR INC: Shaw Sues Over Unfair Meal Break Policy NESTLE PURINA: Kueck and Silver Sue Over Pet Food's False Labeling NEWARK GROUP: Antitrust Suit Hearing Set for July 2025 NORTHWELL HEALTH: Fails to Prevent Data Breach, Belov Alleges NUTANIX INC: Judge Approves Shareholder Class Action Settlement OPENAI INC: Faces Copyright Infringement Class Action in New York PANAMERICAN CONSULTING: Rady Fraud Suit Removed to N.D. Ill. PDD HOLDINGS: Faces Class Action Over Unprotected Customer Data PROGRESS SOFTWARE: Fails to Secure Consumers' Info, Dickmeyer Says PROGRESSIVE GULF: Vantree Bid to Seal Docs Tossed PUBLIX SUPER: Faces Class Action Over Unpaid Overtime Wages QUICK MART FOOD: Fails to Pay Proper Wages, Goksu Alleges RE/MAX HOLDINGS: Class Action Settlement Granted Preliminary OK RON'S ORGANICS: Fails to Pay Proper Wages, Salas and Saavedra Claim SALT LIFE: Faces Mackey Suit Over Illegal Telemarketing Calls SHIFT4 PAYMENTS: Baear, O'Meara Suits Consolidation Bid Pending SIMILASAN CORP: Sells Unsafe Eye Drops, Ortega Suit Says SONY CORP: Must Face GBP5-Bil. Playstation Class Action in UK SPIRIT AIRLINES: Jan. 10 Settlement Claims Filing Deadline Set STATE FARM: Locke Lord Attorneys Discuss GIPA Class Action SWOONDLE LLC: Website Inaccessible to Blind Users, Bunting Says SYRACUSE UNIVERSITY: Filin g of Class Cert Bid Due Dec. 11 SYSTEM1 INC: Continues to Defend TS Software Class Suit in Calif. TELUS INTERNATIONAL: Settlement in Meagher Gets Initial Nod TRACY LOGISTICS: Picou Files Class Suit in Cal. State Court TUSIMPLE HOLDINGS: Continues to Defend Consolidated Suits TYRONE OLIVER: Court Tosses Butler Bid for Class Certification UNITED EGG: To Pay Damages in Antitrust Suit Over Price Fixing UNITED STATES: Plaintiffs Class Cert Response Due Dec 8 UNITED STATES: Plaintiffs' Claims Gets Initial Certification UNITED STATES: Seeks More Time for Filing Class Cert Replies UNITY SOFTWARE: Bid to Dismiss Amended Complaint Pending UNIVERSAL MUSIC: Averts Suit Over Spotify Share Acquisition UPSIDE SERVICES: Allec Sues Over Misleading Referral Program USAA CASUALTY: Faces Consumer Class Action in Washington VERRA MOBILITY: Brantley Class Suit Trial Set for March 2025 VETNIQUE LABS: Bunting Sues Over Blind-Inaccessible Website VIRGIN GALACTIC: Continues to Defend Lavin Class Suit VOLKSWAGEN GROUP: Plaintiffs Lose Discovery Extension Bid WALMART INC: Faces Lyons Fraud Class Action Lawsuit in M.D. Ala. WEILL CORNELL: Faces Suit Over Sexual Abuses in Medical Practice WELLS FARGO: Order on Stipulated Final Judgment Entered WEST VIRGINIA: Filing of Class Cert Prelim Approval Due Dec. 8 WESTERN DIGITAL: Ackerman Sues Over Defective Marketing of SSDs XITLALI DELI: Lawrence Sues Over Disability Discrimination ZAPPOS.COM LLC: Collects Data Without Consent, Casillas Alleges ZOOM VIDEO: Warren Suit Sues Over Automatic Renewal Scheme ZUFFA LLC: Plaintiffs Seek Approval of Bout Class Notice in Le Suit [*] Cooley LLP Discusses Illinois Brick Rule in Antitrust Suit [*] Securities Class Settlement Opt-Outs Increased, Report Says [*] Video Privacy Class Action Wave Slowed by High Dismissal Rate ********* 3M CO: City of Bend Joins PFAS Water Contamination Class Suit ------------------------------------------------------------- Anna Kaminski, writing for The Bulletin, reports that the city of Bend joined national class-action lawsuits against manufacturers 3M Co. and DuPont de Nemours after a small amount of forever chemicals was found in a well that supplies drinking water to Bend residents. Bend's water, however, remains safe to drink, officials said. As part of nationally mandated testing, city officials in May tested for PFAS, a group of thousands of chemicals called forever chemicals because they don't break down in the body or the environment. One well -- the Copperstone Well near NW Mt. Washington Drive -- tested positive for the chemicals. PFAS is an abbreviation for perfluoroalkyl and polyfluoroalkyl substances. The well was immediately shut down and will remain shut down to allow for further testing and planning. Officials tested that well again in August, and no PFAS chemicals were detected. The cause is currently unknown, and it's proved to be a bit of a mystery for local and state officials. Typically, manufacturing facilities, airports and military bases are the most likely culprits of PFAS chemical contamination, said Harry Esteve, a spokesperson for the Oregon Department of Environmental Quality. But in Bend, those sources are few and far between. "We're kind of puzzled by that actually because there's no likely source," Esteve said. PFAS chemicals are everywhere, though. "They're essentially these manmade chemicals that are in everything from Teflon cookware to cosmetics to Gore-Tex," Esteve said. PFAS chemicals are also a common ingredient in firefighting foam, he said. The Oregon Health Authority and the Environmental Protection Agency have set health advisory limits for PFAS chemical levels. OHA's is 30 points per trillion, and the EPA's is less than a quarter of a point per trillion. One point per trillion is equivalent to a single drop in 500,000 barrels of water. In the Copperstone Well, the city of Bend's tests discovered four PFAS chemicals, ranging from 4.2 to 8.7 points per trillion. Bend is not alone. Twenty-five public water systems across Oregon have detected PFAS chemicals, according to OHA spokesperson Jonathan Modie. Hope for a remedy The Bend City Council voted unanimously on Nov. 15 to join class-action lawsuit against two major manufacturers of PFAS-containing products, 3M and DuPont. Bend joined dozens of other jurisdictions across the country that are also opting into the suits, which were filed in U.S. District Court for the District of South Carolina. The PFAS chemical contaminations have been decades in the making. 3M began manufacturing and selling PFAS-containing products from the 1940s until 2002, and DuPont from the 1950s through today, the lawsuits read. All that, "with the knowledge that these toxic compounds would be released into the environment," the suits read. Interactive map of PFAS contamination sites across the U.S. As a result of the class-action suits, which were settled in September, 3M has agreed to pay out between $10.5 billion and $12.5 billion, and DuPont has agreed to pay out $1.15 billion. The state of Oregon has also joined the 3M lawsuit as an interested party, according to court documents. Bend, which has fared better in terms of contamination compared to large metropolitan areas in the south and along the East Coast, has a better chance of receiving funds to mitigate the contamination by joining the plaintiffs, Mayor Melanie Kebler said. "In the end, I think the council wanted to recognize it'd be very difficult do it on our own," she said. The 'forever' in 'forever chemicals' The lawsuits are just one piece of a bigger pie, said Michael Selkirk, an associate attorney for the city. All levels of government are now confronting PFAS chemicals, and they are just one part of a larger issue: The contamination of public water supply, Selkirk said. "How the city continues to manage its watershed, and the availability of clean drinking water -- there are going to be issues with how to deal with that into the future," Selkirk said. While Bend's contamination wasn't as substantial or widespread as other jurisdictions, joining the lawsuits, gives the city the opportunity to offset the costs associated with addressing the PFAS contamination while looking toward the future. "How we as a country respond to the risk of PFAS contamination, that issue is serious," Selkirk said. The EPA is developing regulations for PFAS chemicals that are expected to be finalized late this year or in early 2024. Statewide regulations could also be possible. Depending on imminent test results from the city's contaminated well and how much money the city receives from the lawsuits, that future could look differently, according to Mike Buettner, the city's utilities director. For certain, testing for PFAS chemicals will be part of the city's regular water-quality assessments, Buettner said. What will be done to the well, is less certain. Decommissioning it would be the cheapest option, and removing and moving it elsewhere could cost between $5 million and $10 million, he said. Regardless, as Buettner looks toward the summertime, when water use in Bend is at its peak, it'll be important to respond. The city can manage without one well thanks to Bend's relatively small geographic footprint, but it will be tough long term, he said. Buettner and Drexell Barnes, the city's manager of water quality and lab services, agree that PFAS contamination wasn't a matter of if -- it was a matter of when. "This one is really weird," said Barnes. "If you look for it, you're going to find it." The presence of PFAS chemicals in drinking water, and likely wastewater, will be an ongoing issue. It's the new normal in the world of water, and it spares no one, Barnes said. "We all live here," Barnes said. "We all drink this water. This is an issue for all of us." More information on PFAS chemicals can be found at epa.gov/pfas and bendoregon.gov/waterquality. [GN] AC2T RESEARCH: Dec. 1 Settlement Claims Filing Deadline Set ----------------------------------------------------------- Eden Villalovas, writing for Washington Examiner, reports that the deadline to file a claim in a $3.6 million class-action settlement from Spartan Mosquito repellent is on Dec. 1. A Mississippi-based company called AC2T, the manufacturer of Spartan Mosquito Eradicator, agreed to a settlement earlier this year to resolve false advertising claims. Consumers of Spartan Mosquito products, such as the Spartan Mosquito Eradicator and Spartan Mosquito Pro Tech, who made a purchase between Dec. 21, 2016, and Aug. 2, 2023, may be eligible for financial compensation from the settlement. Multiple factors will determine how much a consumer's payout could be. Those who do not provide any proof of purchase can file a claim for up to $7 for one qualifying Spartan Mosquito repellent per household. Those who provide proof of purchase can receive $10 per household. AC2T was embroiled in a class-action lawsuit after allegations that their advertising, claiming the product would reduce mosquito populations for 15 days, was false. Plaintiffs said the company falsely misled consumers and that the repellent did not perform as advertised. The company has not admitted to any wrongdoing but agreed to the settlement to resolve the lawsuit. Spartan Mosquito repellent customers have until Dec. 1 to file a claim. Filers can either send a claim form by mail, which must be postmarked by the deadline, or fill one out online. The court will hold a hearing on Dec. 4 to decide the final approval for the class-action settlement. [GN] ADVANCE AUTO: Bids for Lead Plaintiff Appointment Due Dec. 8 ------------------------------------------------------------ Pomerantz LLP on Nov. 19 disclosed that a class action lawsuit has been filed against Advance Auto Parts, Inc. ("AAP" or the "Company") (NYSE: AAP) and certain officers. The class action, filed in the United States District Court for the Eastern District of North Carolina, Western Division, and docketed under 23-cv-611, is on behalf of a class consisting of all persons and entities other than Defendants that purchased or otherwise acquired AAP securities between November 16, 2022 and May 30, 2023, inclusive (the "Class Period"), against AAP and certain of its officers and/or directors for violations of the Securities Exchange Act of 1934 (the "1934 Act" or the "Exchange Act")). As set forth in detail below, Defendants violated Section 10(b) of the 1934 Act by failing to disclose pertinent information relevant to the Company, or, alternatively providing information about the Company which was materially misleading or deceptive. If you are a shareholder who purchased or otherwise acquired AAP securities during the Class Period, you have until December 8, 2023 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. AAP is a retailer specializing in automobile parts and accessories, serving both automobile professionals and non-professional consumers. The Company operates stores called "Advanced Auto Parts," "Autopart International," "Carquest," and "Worldpac." AAP operates over 4,700 stores (across all four brands) in the U.S. and Canada. The Complaint alleges that, throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: 1) defendants misrepresented the efficacy of AAP's strategic pricing initiative and the impact of the price reductions; 2) omitted and/or concealed the negative impacts of the pricing initiative; 3) provided investors with an overly optimistic perception of AAP's operations; and 4) created the false impression that inflation and macroeconomic factors had an insubstantial impact on the Company's margins. At the beginning of the Class Period, on November 16, 2022, the Company held its quarterly earnings call for investors. During the earnings call, President and Chief Executive Officer Thomas R. Greco ("Greco") announced "strategic pricing initiatives" aimed to help propel margins growth into 2023. Specifically, Greco stated "we've tested and will make surgical pricing actions in certain categories to enable us to better address changes in competitive pricing dynamics." The Company initiated these "strategic pricing initiatives" despite Greco's recognition that "our research has consistently indicated that price is not the most important driver for choice for professional customers." He later stated, "availability is the #1 driver of choice for the professional installers, and as we said many times, price is much lower down the list." On February 28, 2023, the Company held its quarterly earnings call for the 2022 fourth quarter. During that call, Greco stated, "[w]e continue to execute the disciplined inventory and pricing actions we discussed this quarter. These actions contributed to stronger results, and we expect to improve parts availability throughout 2023, which we believe is the single most important driver to accelerate line growth." Greco also dismissed the impact of the U.S. economy and other macroeconomic factors on sales and margins. He stated, "we remain cautious surrounding the macroeconomic backdrop, including the potential for ongoing pressure on low-to-middle income consumers. However, our 2023 guidance is underpinned by continued industry strength with the drivers of demand remaining positive." The Company then issued its 2023 guidance, projecting net sales of $11.4 billion to $11.6 billion and an operating income margin of 7.8% to 8.2%. The Company also remained "committed to paying quarterly cash dividends," according to Executive Vice President and Chief Financial Officer Jeffrey W. Shepherd ("Shepherd"). On May 31, 2023, AAP held its quarterly earnings call for 2023 first quarter. During that call, Greco conceded, "our financial results in the first quarter were well below expectations." Because the Company slashed prices on products, Greco stated "we had less price realization than plans, which put substantially higher pressure on our product margin price." Shepherd revealed during the May call that the Company's strategic pricing program resulted in the Company being "unable to price to cover product costs in the quarter." The Company consequently revised downward its 2023 guidance to an operating margin of 5% to 5.3% from the previously announced 7.8% to 9.2% margins. Investors reacted negatively to these revelations and the reduced 2023 guidance. On May 30, 2023, AAP shares closed at $112.20. The following day, on May 31, 2023, AAP shares closed at $72.89 on unusually high volume. This $39.31 difference reflects a 35% one-day drop. Pomerantz LLP, with offices in New York, Chicago, Los Angeles, London, Paris, and Tel Aviv, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, Pomerantz pioneered the field of securities class actions. Today, more than 85 years later, Pomerantz continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered billions of dollars in damages awards on behalf of class members. See www.pomlaw.com. Attorney advertising. Prior results do not guarantee similar outcomes. CONTACT: Robert S. Willoughby Pomerantz LLP rswilloughby@pomlaw.com 888-476-6529 ext. 7980 [GN] ALLIANCE ENTERTAINMENT: Continues to Defend McKnight Class Suit --------------------------------------------------------------- Alliance Entertainment Holdings Corp. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the McKnight class suit in the Delaware Court of Chancery. In particular, on March 31, 2023, a class action complaint, titled Matthew McKnight v. Alliance Entertainment Holding Corp. f/k/a Adara Acquisition Corp., Adara Sponsor LLC, Thomas Finke, Paul G. Porter, Beatriz Acevedo-Greiff, W. Tom Donaldson III, Dylan Glenn, and Frank Quintero, was filed in the Delaware Court of Chancery against the Company’s pre-Business Combination board of directors and executive officers and Adara Sponsor LLC, alleging breaches of fiduciary duties by purportedly failing to disclose certain information in connection with the Business Combination and by approving the Business Combination. The Company intends to vigorously defend the lawsuit. Alliance Entertainment is a distributor and wholesaler of stock selection of music, movies, video games, electronics, and arcades.[BN] ALTAMED HEALTH: Faces Class Action Over Private Data Sharing ------------------------------------------------------------ Kelsey McCroskey, writing for ClassAction.org, reports that a class action accuses AltaMed Health Services Corporation of sharing the private health data of website visitors with third parties, including Facebook, without consent. A proposed class action accuses AltaMed Health Services Corporation of sharing the private health data of website visitors with third parties, including Facebook, without consent. The 88-page lawsuit says the healthcare system, which offers medical services at numerous locations across Los Angeles, has "intentionally" embedded invisible web-tracking tools into its website and patient portal. According to the suit, the technology intercepts and transmits visitors' personal information to unauthorized third parties, which then use it for targeted advertising purposes. The case explains that the tracking tools -- which include Facebook's Meta pixel and Conversions Application Programming Interface (API) -- are designed to capture a visitor's every interaction with a website in real time. By knowingly using such back-end technologies on AltaMed.org and the patient portal found at MyAltaMed.net without obtaining permission from users, the corporation has violated patients' privacy rights and breached state and federal law, the complaint claims. Per the filing, patients can use the website to access the healthcare company's patient portal, research treatments, find doctors, communicate with providers and more. However, unbeknownst to website visitors, AltaMed discloses to third parties its patients' "extremely sensitive" medical data, including details about their health conditions, diagnoses, procedures, treatments sought and the location and specialty of their doctors, the lawsuit alleges. In addition, the suit contends that the defendant unlawfully shares other personally identifying information, such as a visitor's IP address, buttons clicked, pages accessed, any information entered into online forms and their Facebook ID -- an identifier uniquely linked to an individual's Facebook account. This combination of data can be used to personally identify patients in connection with their communications and activities on AltaMed's website, the case relays. As the complaint tells it, visitors to AltaMed.org reasonably believed that their private information would be safeguarded by the healthcare company rather than intentionally handed over to unauthorized third parties. "In browsing [AltaMed's] Web Properties -- be it to make an appointment, locate a doctor with a specific specialty, find sensitive information about their diagnosis, or investigate treatment for their diagnosis -- [the plaintiffs] and Class Members did not expect that every search (including exact words and phrases they typed into [the defendant's] website search bars), page visits, or even their access/interactions on [the company's] online portals would be intercepted, captured, or otherwise shared with Facebook in order to target [the plaintiffs] and Class Members with advertisements, in conscious disregard of their privacy rights," the filing states. The lawsuit looks to represent anyone in the United States whose private information was disclosed to a third party without authorization through the Meta pixel on AltaMed.org and MyAltaMed.net. [GN] AMAZON.COM INC: Faces Class Action Over Systemic Pay Bias --------------------------------------------------------- Patrick Dorrian, writing for Bloomberg News, reports that Amazon.com Inc. pays women less than male employees performing the same or comparable work, a class lawsuit filed on Nov. 20 in federal court in Seattle charges. The lawsuit also alleges that female employees experience systemic discrimination in promotions based on sex and that Amazon retaliates against those who complain about the bias. It was filed in the US District Court for the Western District of Washington by Caroline Wilmuth, Katherine Schomer, and Erin Combs, who seek to represent "all women who worked for Amazon in a Covered Position at any time from three years before the filing" of the suit and when the allegations are resolved. [GN] AMAZON.COM INC: Faces Pay Discrimination Class Action in Wash. -------------------------------------------------------------- Patrick Dorrian, Kelsey Butler and Matt Day, writing for Bloomberg News, report that Amazon.com Inc. pays women less than male employees performing the same or comparable work, a class lawsuit filed on Nov. 20 in federal court in Seattle charges. The lawsuit also alleges that female employees experience systemic discrimination in promotions based on sex and that Amazon retaliates against those who complain about the bias. It was filed in the US District Court for the Western District of Washington by Caroline Wilmuth, Katherine Schomer, and Erin Combs, who seek to represent "all women who worked for Amazon in a Covered Position at any time from three years before the filing" of the suit and when the allegations are resolved. "We do expect that there will be many others signing on, we have already spoken to numerous other women," Cassandra Lenning, a partner at Outten & Golden LLP, which represents the proposed class said on Nov. 20. "We do have some witness affidavits already and we expect that after filing this, other women will come forward." The pay bias typically begins at the hiring stage, as Amazon uses "common compensation-setting policies across its organization" that assigns workers to various "job codes" based on job function, the suit says. Amazon considers a worker's past compensation history in determining their job code, and it "regularly assigns women to lower job codes for the same job functions as comparable male employees," according to the suit. That starting pay bias perpetuates and deepens, as an "employee's job code largely determines their base salary, bonuses, stock awards, and other compensation," and "Amazon additionally regularly fails to advance women to higher job codes," the suit says. Even where female and male workers doing equal work are assigned to the same job code, the company "nonetheless regularly pays women lower salaries and/or stock awards than men," the suit says. Company Denies 'False' Claims "We believe these claims are false and will demonstrate that through the legal process," Brad Glasser, an Amazon spokesperson, said on Nov. 20 in an email. The company doesn't tolerate workplace bias of any kind, Glasser said. Amazon instead investigates all reported incidents and takes appropriate action when an employee is found to have violated company policy, up to and including termination, he said. Amazon also annually inspects its pay equity data, and a 2022 review showed that "women globally and in the U.S. earned 99.6 cents and 99.5 cents, respectively, for every dollar that men earned performing the same jobs," he said. Individual Claims, Too Wilmuth, Schomer, and Combs have all experienced pay discrimination as a result of the job coding, as well as other sex bias during their Amazon tenures, according to the suit. That includes paying Wilmuth nearly $200,000 less than a male subordinate, and a male supervisor "taking credit for" Wilmuth's and Combs' work, the suit says. The unequal pay has continued even after the women and others "brought the pay disparity to Amazon's attention," the suit says. Wilmuth, Schomer, and Combs were all demoted within weeks of complaining about the sex discrimination, and Amazon continues to discriminate and retaliate against them, according to the suit. That includes after they each returned from medical leaves needed by the physical and mental toll of the pay and other discrimination, the suit says. The complaint includes class and individual claims under the Equal Pay Act, the Family and Medical Leave Act, Washington's Law Against Discrimination, the Washington Equal Pay and Opportunities Act, and the Washington Family and Medical Leave Act. The relief requested includes back pay with prejudgment interest, emotional distress damages, and double or exemplary damages under the Washington EPOA. It also includes pre- and post-judgment interest, service payments for the class representatives, attorneys' fees and costs, and monetary relief for any adverse tax consequences of the damages awards. The case is Wilmuth v. Amazon.com, Inc., W.D. Wash., No. 2:23-cv-01774, class complaint 11/20/23. [GN] APPLE INC: Faces Class Action Over Abuse of Market Power -------------------------------------------------------- Competition Policy International reports that in a proposed class action filed on Nov. 17, Apple finds itself in legal hot water as Venmo and Cash App customers allege that the tech giant has wielded its market influence to stifle competition in the mobile peer-to-peer payments sector. According to Reuters, the lawsuit, filed by four consumers from different states, claims that Apple's actions have led to consumers paying "rapidly inflating prices." The legal action, brought forth in the federal court in San Jose, California, accuses Apple of violating U.S. antitrust laws through its agreements with popular payment platforms Venmo, owned by PayPal, and Cash App, owned by Block. The plaintiffs argue that Apple's agreements impose restrictions that hinder "feature competition" among peer-to-peer payment apps. Notably, the complaint points to clauses preventing platforms, both existing and new, from utilizing "decentralized cryptocurrency technology." According to the lawsuit, these restrictions limit innovation and hinder healthy competition within the mobile payment landscape. The plaintiffs seek an injunction that could potentially compel Apple to divest or segregate its Apple Cash business, a move aimed at restoring competition within the industry. Apple, headquartered in Cupertino, California, has not yet responded to requests for comment on the matter. This legal challenge adds to Apple's growing list of antitrust concerns. In September, a U.S. judge in California ruled that payment card issuers could proceed with a lawsuit against Apple, alleging anticompetitive practices related to its Apple Pay mobile wallet. As regulatory scrutiny continues to intensify, Apple faces increasing pressure to address concerns related to its market dominance and alleged anti-competitive behavior in various sectors. [GN] APPLE INC: Faces P2P Payment Antitrust Class Action --------------------------------------------------- Benjamin Godfrey, writing for CoinSpeaker, reports that in a recent legal development, Apple Inc (NASDAQ: AAPL) finds itself entangled in a class-action lawsuit filed by Venmo and Cash App customers. The plaintiffs, hailing from New York, Hawaii, South Carolina, and Georgia, allege that Apple has abused its market dominance to stifle competition in the mobile Peer-to-Peer payments (P2P) sector. Apple's Agreements against Competition and Decentralized Crypto The heart of the lawsuit filed on November 17 revolves around the claim that Apple entered into anti-competitive agreements with Venmo and Cash App, restricting the use of decentralized cryptocurrency technology in payment applications. The plaintiffs argue that these agreements stifle feature and price competition, preventing the incorporation of decentralized crypto technology in existing or new iOS Peer-to-Peer Payment apps. The complaint asserts that Apple's constraints force new iOS P2P payment apps to exclude crypto functionality as a prerequisite for entry into the market. This, according to the plaintiffs, has resulted in users paying "rapidly inflating prices" due to limited competition and innovation in the sector. The lawsuit also alleges that Apple employs "technological and contractual restraints," such as hardware-enforced App Store exclusivity and "contractual limitations on web browser technology," to maintain control over every app installed and run on iPhones and iPads. By doing so, Apple allegedly suppresses competition and innovation, effectively limiting consumer choice and leading to inflated fees. The complaint further noted that Apple has excluded at least two Bitcoin wallet apps, Zeus and Damus, from its App Store. Damus is backed by Block Inc (NYSE: SQ) founder Jack Dorsey. Consequently, the plaintiffs seek to recover excessive fees and overcharging resulting from Apple's alleged anticompetitive conduct. Additionally, they seek injunctive relief to prevent Apple from continuing to enter into and enforce anti-competitive agreements that restrain competitors in the iOS P2P payment market. Apple's History of Antitrust Scrutiny Notably, the complaint highlights a previous ruling by the Court of Appeals for the Ninth Circuit in April, which found Apple in violation of California's competition laws for not allowing apps to direct users to non-Apple linked payment solutions. This lawsuit adds to Apple's recent antitrust challenges. In September, a US judge ruled that payment card issuers could sue Apple over alleged anti-competitive practices related to its Apple Pay mobile wallet. Another case involving Epic Games challenges restrictions on in-app payment processing, with Apple seeking Supreme Court intervention. The class-action lawsuit against Apple underscores the growing scrutiny the tech giant faces regarding its business practices. Besides Apple, other tech giants including Alphabet Inc (NASDAQ: GOOGL) and Meta Platforms Inc (NASDAQ: META) have also been probed for anti-competitive practices. As the legal landscape evolves, these cases will shape the future of competition in the digital marketplace. For consumers and industry stakeholders, the outcome of these legal battles may influence the direction of innovation and competition in the mobile peer-to-peer payments sector. [GN] ARIZONA: Class Action Over Birth Certificate Change Rule Pending ---------------------------------------------------------------- Mary Anne Pazanowski, writing for Bloomberg Law, reports that Arizona and a class of transgender citizens asked a federal judge to decide without trial whether the state's administrative process for changing the sex listed on a birth certificate is unconstitutional. There "can be no doubt" that Arizona's birth certificate amendment procedure discriminates against transgender people on its face, a class of adults and minors said in a motion for summary judgment Nov. 17 in the US District Court for the District of Arizona. The amendment process requires applicants to file a letter from a physician attesting that they've undergone a "sex change operation," the class members said. [GN] AUXLY CANNABIS: Ontario Court Approves Class Action Settlement -------------------------------------------------------------- Berger Montague (Canada) PC on Nov. 19 disclosed that the Ontario Superior Court of Justice (the "Court") has approved the class action settlement regarding Daniel Relvas v. Auxly Cannabis Group Inc. CV-19-00617136-00CP (the "Action"). This Notice is directed to all persons and entities, excluding certain persons associated with the Defendant, wherever they may reside or be domiciled, who purchased or otherwise acquired Auxly Cannabis Group Inc. ("Auxly") common shares in the secondary market, on or after November 12, 2018, and held some or all of those securities until after the close of trading on February 6, 2019 ("Class Members" and the "Class"). PURPOSE OF THIS NOTICE A class action brought on behalf of Class Members has been settled. The Settlement has been approved by the Ontario Superior Court of Justice. This Notice provides Class Members with information about how to submit a Claim Form to the Administrator in order to participate in the distribution of the Net Settlement Amount. THE CLASS ACTION This shareholder class action was commenced on behalf of investors who purchased Auxly common shares in the secondary market during the Class Period, against Auxly in the Ontario Superior Court: Daniel Relvas v. Auxly Cannabis Group Inc. CV-19-00617136-00CP (the "Action"). The Plaintiff in the Action alleges that the Defendant made misrepresentations during the Class Period related to Auxly's business, operations and finances by omitting from its Q2 2018 Management Discussion & Analysis, material facts regarding the status of its project with FSD Pharma Inc. to build-out 220,000 square feet of cannabis cultivation space in Cobourg, Ontario. The Defendant denies all such allegations. The settlement of the Action, without an admission of liability on the part of the Defendant, was approved by The Honourable Justice Edward Morgan on November 14, 2023. This notice provides a summary of the settlement. SUMMARY OF THE SETTLEMENT TERMS Auxly's insurers will pay CAD $4 million (the "Settlement Amount"), in full and final settlement of all claims against Auxly in the Action. Class Counsel Fees, including out-of-pocket expenses and taxes, were fixed by the Court as a first charge on the Settlement Amount in the amount of thirty (30) percent of CAD $4 million, plus disbursements, plus taxes. The settlement for the Class, less the Class Counsel Fees and disbursements, administrator's expenses, and taxes, will be distributed to the Class in accordance with the Court-approved Plan of Allocation. The Settlement Agreement and Plan of Allocation may be viewed at https://bergermontague.ca/cases/auxly-cannabis-group-inc/. HOW TO MAKE A CLAIM FOR COMPENSATION: CLAIMS FOR COMPENSATION MUST BE RECEIVED BY MARCH 28, 2024 Each Class Member must submit a completed Claim Form on or before March 28, 2024, in order to participate. On December 15, 2023, the Claim Form can be accessed or downloaded at https://bergermontague.ca/cases/auxly-cannabis-group-inc/ or obtained by calling the Administrator at (855) 212-2601. If you do not submit a completed Claim Form by March 28, 2024, you will not receive any part of the Net Settlement Amount. The Court appointed Berger Montague (Canada) PC as the Administrator of the settlement to, among other things: (i) receive and process Claim Forms; (ii) decide eligibility for compensation; and (iii) distribute the net Settlement Amount to eligible Class Members. The Claim Form should be submitted to the Administrator by using the secure Online Claims System at https://bergermontague.ca/cases/auxly-cannabis-group-inc/. You may submit a paper Claim Form only if you do not have internet access. The paper Claim Form may be sent by mail or courier to: Auxly Claims Administrator 330 Bay Street, Suite 1302 Toronto, ON M5H 2S8 (855) 212-2601 Email: info@bergermontague.ca QUESTIONS Questions for the Class Members' lawyers may be directed to: Berger Montague (Canada) PC 330 Bay Street, Suite 1302 Toronto, ON M5H 2S8 (855) 212-2601 Email: info@bergermontague.ca [GN] AVANQUEST NORTH: Fernandez Sues Over Automatic Renewal Program -------------------------------------------------------------- ANTONIO FERNANDEZ, individually and on behalf of all others similarly situated, Plaintiff v. AVANQUEST NORTH AMERICA LLC, a California limited liability company; and DOES 1-50, inclusive, Defendants, Case No. 23STCV28134 (Cal. Super., Los Angeles Cty., November 16, 2023) arises from the Defendants' failure to provide clear and conspicuous disclosures as mandated by California's Automatic Renewal Law and the Unfair Competition Law. According to the complaint, Avanquest offers software products for what is advertised to be a fixed price for a limited period of time, whereas upon receipt of an order, Avanquest enrolls the consumer in a subscription program that will automatically renew from one period to the next and results in subsequent charges to the consumer's credit card, debit card, or third-party payment account. Avanquest North America LLC is a California limited liability company that advertises and sells computer software, including the software program entitled inPixio Photo Studio, as well as a number of other programs. It offers and sells its software products online through several websites, including but not limited to https://www.avanquest.com/USA and https://www.inpixio.com. [BN] The Plaintiff is represented by: James T. Hannink, Esq. Zach P. Dostart, Esq. DOSTART HANNINK LLP 4225 Executive Square, Suite 600 La Jolla, CA 92037-1484 Telephone: (858) 623-4200 Facsimile: (858) 623-4299 E-mail: jhannink@sdlaw.com zdostart@sdlaw.com AVIAGAMES INC: Users File Class Action Over Casino Apps ------------------------------------------------------- Josh Kosman, writing for New York Post, reports that AviaGames -- the Silicon Valley-based developer of popular casino apps like Bingo Tour and Solitaire Clash -- has been slapped with a class-action lawsuit that claims users were duped into playing against bots instead of similarly skilled human players. "Avia users collectively have wagered hundreds of millions of dollars to compete in these games of 'skill' against what Avia says are other human users," according to the suit filed on Nov. 17 in the US Northern District of California. "However, as it turns out, the entire premise of Avia's platform is false: Instead of competing against real people, Avia's computers populate and/or control the games with computer "bots" that can impact or control the outcome of the games," the suit alleged. The stakes are high as Avia's offerings are among the most popular apps in Apple's App Store and Android's Google Play store, according to the suit. As of the suit's filing on Nov. 17, Avia's Solitaire Clash, Bingo Clash and Bingo Tour were the Nos. 2, 4 and 7 apps in the casino category, according to the suit. "Avia's games are manipulated games of chance that amount to an unapproved gambling enterprise," the suit claimed. The suit seeking class-action status was filed by Andrew Pandolfi of Texas, who estimates he lost thousands of dollars playing Avia's games; and Mandi Shawcroft of Idaho, who says she lost hundreds. It includes all other impacted players who participated in games using the Pocket7Games app, which can be used to access multiple casino games. AviaGames, a private company based in Mountain View, Calif. that most recently raised cash from investors in 2021 in a deal valuing the company at $620 million. Sensor Tower says it has 3.5 million monthly active users. AviaGames did not return calls about the class-action suit. This suit by players follows lawsuits filed in 2021 by Avia rival Skillz Games for patent and copyright infringement against AviaGames that uncovered the alleged bot use and are still making their way through the courts. Skillz alleges AviaGames is able to match up players for games quickly because they are actually bots, enabling it to grab market share from Skillz, whose customers can wait up to 15 minutes for an opposing human player. The Skillz suits against AviaGames turned upside down in late May when at the end of discovery AviaGames coughed up nearly 20,000 documents covering internal communications in Chinese, court filings said. Skillz translated them and allegedly found evidence that AviaGames used bots. In the Skillz patent case, US District Judge Beth Labson Freeman ruled in September that internal communications between AviaGames executives revealed in the trove of discovery documents "appear to suggest that AviaGames uses bots in its Pocket7Games platform." Skillz has been seeking communications between AviaGames and its lawyers about bots, and Judge Freeman ruled that Skillz has met the standard to see some of the communications which AviaGames was required to turn over by Nov. 17, according to court filings. New York City Malpractice Attorney Andrew Lavoott Bluestone, who is not involved in the AviaGames cases, said it is very rare a plaintiff gets a judge to give it the right to see attorney-client communications under the act. "The judge [who reviews the privileged information first] has to find that there is probable cause a crime or fraud has been committed." If a defendant is asking how to protect themselves against charges of a crime or fraud it is protected attorney-client communications. But the judge can break that seal if they see instead a conversation was about the furtherance of a fraud or crime that had not yet been committed. "They need to see that the defendant asked for advice on how not to get caught." Asked last month about allegations that the company's apps use bots, an AviaGames spokeswoman responded with a written statement. "The claims against AviaGames are baseless and the company is focusing its attention on supporting our diverse, growing, and very satisfied gamer community and addressing these false assertions at the appropriate time and place in legal proceedings, in which we are confident we will prevail." "While we are unable to comment on the details of ongoing litigation at this time, the accusations presented are unsubstantiated and AviaGames is looking forward to refuting these unwarranted and baseless charges at trial." "AviaGames stands behind its IP, unique gaming technology, the design of its games, and the integrity of its executive team. Avia is the only skill-based gaming publisher offering one seamless, all-in-one platform that delivers an accessible, reliable, and high-quality mobile gaming experience for all its players," the spokeswoman said. Some players have long suspected the games are rigged. There is a Pocket7Games/AviaGames = Scam Facebook group. "Because Pocket7Games blocks people who speak honestly about the fraudulent manner in which they operate, it seemed necessary to create a group to hold them to account for their actions and to warn others," group organizer Caitlin Cohen said on Facebook. "It's absolutely rigged. After initial wins to fool you, you'll be placed in winning or losing slots AFTER you've gotten your score; they choose who wins in group games AND 1 on 1 games," Gretchen Woods said in March on Quora. "Sometimes you simply see a generic player you're matched up with. That's a sign they're manipulating the outcome." [GN] BAKER HUGHES: Escudero Seeks to Recover Unpaid OT Wages Under FLSA ------------------------------------------------------------------ Adriel Escudero-Nunez, individually and on behalf of all similarly situated persons v. Baker Hughes Oilfield Operations LLC, Case No. 7:23-cv-00161-DC-RCG (W.D. Tex., Oct. 23, 2023) is a class action lawsuit brought by the Plaintiff and on behalf of his former co-workers against the Defendant to recover unpaid overtime that is required by the Fair Labor Standards Act. The Defendant allegedly has a business plan that includes hiring coordinators/dispatchers who schedule jobs for the Defendant's customers and misclassifying them as exempt employees even though they do not perform the job duties of an exempt employee. Plaintiff Escudero regularly worked more than 40 hours per week. However, the Defendant did not pay the Plaintiff an overtime premium for any of the hours he worked over 40 in a workweek. Instead, the Defendant paid the Plaintiff the same salary no matter how many hours he worked in a workweek, the suit claims. Plaintiff Escudero worked with numerous other individuals who were paid on a salary basis and who were misclassified as exempt employees. The Defendant paid these other individuals a set salary for all hours that they worked in a workweek. The Defendant intentionally misclassified the Plaintiff Escudero and his co-workers as exempt employees in order to try to avoid paying overtime to those individuals. In addition to wrongfully taking money and benefits from its employees, the Defendant's intentional and knowing actions allowed the Defendant to gain an unfair advantage over its competition in the marketplace, the Plaintiff asserts. Mr. Escudero worked for Baker Hughes as a service delivery coordinator/dispatcher from January of 2023 until October of 2023. Baker Hughes focuses in drilling wells for oil or gas field operations.[BN] The Plaintiff is represented by: Josef F. Buenker, Esq. THE BUENKER LAW FIRM Houston, TX 77206 Telephone: (713) 868-3388 Facsimile: (713) 683-9940 E-mail: jbuenker@buenkerlaw.com BEAUTY HEALTH: Alghazwi Sues Over Misleading Company Statements --------------------------------------------------------------- ABDULADHIM A. ALGHAZWI, individually and on behalf of all others similarly situated, Plaintiff v. THE BEAUTY HEALTH COMPANY, ANDREW STANLEICK, LIYUAN WOO, and MICHAEL MONAHAN, Defendants, Case No. 2:23 cv-09733 (C.D. Cal., November 16, 2023) alleges violations of the the Securities Exchange Act of 1934. Plaintiff Alghazwi brings this class action on behalf of persons and entities that purchased or otherwise acquired Beauty Health securities between May 10, 2022 and November 13, 2023, inclusive. Throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors that, among other things, Hydrafacial's leading product Syndeo devices had issues leading to frequent treatment interruptions that caused significant costs to develop enhancements. The Defendants also failed to disclose that the Company would no longer market Syndeo devices and incur significant inventory write-downs. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the suit. Headquartered in Long Beach, CA, Beauty Health is a health and beauty company. Its flagship brand is Hydrafacial through which the company provides goods and services related to hydradermabrasion, a dermatological procedure involving a mechanical exfoliation and infusion of facial serums.[BN] The Plaintiff is represented by: Robert V. Prongay, Esq. Charles Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: info@glancylaw.com - and - Rebecca Dawson, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Ave, Suite 358 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: rdawson@glancylaw.com BIEWER LUMBER: Evans Sues Over Alleged Employment Discrimination ---------------------------------------------------------------- John Evans and others similarly situated, Plaintiff v. Biewer Lumber, LLC, Case No. 3:23-cv-03094-CWR-FKB (S.D. Miss., November 16, 2023) arises out of the Defendant's employment discrimination that violates the Civil Rights Act of 1866. Plaintiff Evans began working at the Defendant's sawmill on February 25, 2020. In his class action complaint, Plaintiff Evans alleges that black workers are kept on the cleaning crew and other less desirable jobs while their white coworkers are handling the high-paying jobs, such as supervisor, manager, forklift driver, bulldozer operator, and crane operator. Headquartered in St. Clair, MI, Biewer Lumber owns and operates a sawmill in Newton County, Mississippi. [BN] The Plaintiff is represented by: Joel F. Dillard, Esq. JOEL F. DILLARD, P.A. 775 N. Congress St. Jackson, MS 39202 Telephone: (601) 509-1372 E-mail: joel@joeldillard.com BLUE APRON: Continues to Defend Hayes Labor Class Suit ------------------------------------------------------ Blue Apron Holdings Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the Hayes labor class suit in the California Superior Court in Contra Costa County. The Company is a party to a class action lawsuit entitled Stevie A. Hayes v. Blue Apron, LLC ("Hayes"), that was filed in the California Superior Court in Contra Costa County under the California wage and hour laws on behalf of certain non-exempt employees in the Company's former Richmond, California fulfillment center. The Hayes class action complaint was filed on June 21, 2023, and alleges that during the time the Company operated the Richmond, California fulfillment center, the Company failed to pay minimum wages and overtime, provide required meal and rest breaks, provide wages due upon separation from employment, provide accurate wage statements, to non-exempt employees in violation of California law. On September 11, 2023, Hayes filed an additional Private Attorneys General Act complaint seeking damages under California Labor Code section 2699, et seq., for identical allegations made in the Hayes class action complaint. On July 27, 2023, the Company removed the Hayes class action complaint from the Contra Costa County state court to federal court in the Northern District of California based on the Class Action Fairness Act ("CAFA"). On August 11, 2023, Hayes filed a Motion for Remand, which the Company opposed. The Company is awaiting for the court to rule on the remand. The Company is in the preliminary stages of reviewing the allegations made in the Hayes class action complaint and believes that it has strong defenses and intends to vigorously defend against this lawsuit. Blue Apron operates a direct-to-consumer platform that delivers original recipes and fresh, seasonal ingredients.[BN] BLUE APRON: Continues to Defend Mitchell Labor Class Suit --------------------------------------------------------- Blue Apron Holdings Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the Mitchell labor class suit in the California Superior Court in Contra Costa County. The Company is also a party to a second class action lawsuit entitled Cortez Mitchell v. Blue Apron, LLC ("Mitchell"), that was filed in the California Superior Court in Contra Costa County under the California wage and hour laws on behalf of certain non-exempt employees that worked for the Company and directly or indirectly for staffing agencies in the Company's former Richmond, California fulfillment center. The Mitchell class action complaint was filed on August 25, 2023, and alleges nearly identical claims as the Hayes class action complaint for failure to pay minimum wages and overtime, provide required meal and rest breaks, provide wages due upon separation from employment, and failure to provide accurate wage statements, to non-exempt employees in violation of California law. In addition, the Mitchell class action complaint alleges a new cause of action for a failure to reimburse certain necessary business expenses. On September 15, 2023, Mitchell filed an additional Private Attorneys General Act complaint seeking damages under California Labor Code section 2699, et seq., for similar allegations made in the Mitchell class action complaint along with additional claims including but not limited to violations of sick leave, failure to pay vested vacation or paid time off, failure to provide a safe and healthful workplace, and unlawful agreements of criminal history inquiries. On October 6, 2023, the Company removed the Mitchell case from the Contra Costa County state court to federal court in the Northern District of California based on CAFA. Mitchell failed to file a Motion for Remand by the deadline of November 6, 2023 and, as a result, the Mitchell case will remain in federal court. The Company is in the preliminary stages of reviewing the allegations made in the Mitchell class action complaint and believes that it has strong defenses and intends to vigorously defend against this lawsuit. Blue Apron operates a direct-to-consumer platform that delivers original recipes and fresh, seasonal ingredients.[BN] BP CANADA: Rebein et al. Sue Over Alleged Disaster Profiteering --------------------------------------------------------------- David J. Rebein, Daniel B. Giroux, Judy Krueger, and Michael T. Jilka, individually and on behalf of all others similarly situated, Plaintiffs v. BP Canada Energy Marketing Corp., BP Energy Company, Chevron Natural Gas, a division of Chevron USA, Inc., ETC Marketing, Ltd., and Macquarie Energy LLC, Defendants, Case No. 6:23-cv-01245 (D. Kan., November 17, 2023) arises out of the Defendants' violations of the Kansas Consumer Protection Act. The Plaintiffs allege that the Defendants have violated the state consumer protection law by inducing customers into transactions that are excessively one-sided and by engaging in disaster profiteering during Winter Storm Uri. Allegedly, the Defendants profited handsomely from the incredible costs that the Kansas consumers must now pay for natural gas during the winter storm. In addition, the Defendants made false force-majeure declarations in their existing agreements with those distributors to deliver the natural gas to other distributors at the higher spot price, say the Plaintiffs. BP Canada Energy Marketing Corp. is a for-profit corporation organized in Delaware with its principal place of business in Nebraska. It produced and sold natural gas to Kansas residential consumers through Black Hills. [BN] The Plaintiffs are represented by: Jay F. Fowler, Esq. Samuel J. Walenz, Esq. FOULSTON SIEFKIN, LLP 1551 N. Waterfront Parkway, Suite 100 Wichita, KS 67206-4466 Telephone: (316) 291-9541 Facsimile: (316) 267-6345 E-mail: jfowler@foulston.com swalenz@foulston.com - and - Scott C. Nehrbass, Esq. Lee M. Smithyman, Esq. James P. Zakoura, Esq. FOULSTON SIEFKIN, LLP 7500 College Blvd., Suite 1400 Overland Park, KS 66210 Telephone: (913) 484-4627 Facsimile: (913) 498-2101 E-mail: snehrbass@foulston.com lsmithyman@foulston.com jzakoura@foulston.com BUCKNELL UNIVERSITY: Camden Seeks COVID-19 Tuition Fee Refund ------------------------------------------------------------- SAMANTHA CAMDEN, on behalf of herself and all others similarly situated, Plaintiff v. BUCKNELL UNIVERSITY, Defendant, Case No. 4:23-cv-01907-MWB (M.D. Pa., November 16, 2023) arises from the Bucknell's refusal to provide a prorated refund of tuition or fees tied to its on-campus education, services, and amenities that were not available to students for a significant part of the Spring 2020 semester. The Plaintiff alleges that Bucknell breached its contracts with students or was otherwise unjustly enriched by not giving prorated refunds for tuition or fees charged for on-campus education and services not provided. Moreover, the Plaintiff seeks disgorgement of the prorated, unused amounts of the fees that she and other putative Class members paid, but for which they were not provided the benefit, as well as a partial prorated tuition reimbursement representing the difference in fair market value between the on-campus product for which they had paid, and the online product that they received. Founded in 1846, Bucknell is a private university that offers 60 majors and 70 minors, 11 graduate programs. Its principal campus is located in the city of Lewisburg, PA. [BN] The Plaintiff is represented by: Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. Nicholas A. Colella, Esq. LYNCH CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: gary@lcllp.com jamisen@lcllp.com nickc@lcllp.com BUZZFEED INC: Hunthausen Sues Over Video Privacy Issues in Apps --------------------------------------------------------------- BuzzFeed, Inc. disclosed in its Form 10-Q report for the fiscal year ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that on May 16, 2023, a lawsuit titled "Hunthausen v. BuzzFeed, Inc." was filed against the company in the United States District Court for the Southern District of California, asserting class action claims for alleged violation of the Video Privacy Protection Act (VPPA) based on the claimed transmission of personally identifying information via the Meta pixel, Google Analytics, and the TikTok pixel, all of which are purportedly connected to posts on the BuzzFeed.com website. The putative class plaintiff is seeking an injunction to stop further alleged wrongful conduct, to recover unspecified compensatory damages and an award of costs, and any further appropriate relief. The company has moved to dismiss the case. BuzzFeed, Inc. is a digital media company that derives its revenue primarily from advertising, content, and commerce and other sold to leading brands. COCA-COLA CO: Class Action Over Rewards Points Stayed ----------------------------------------------------- Nicholas Malfitano, writing for Legal Newsline, reports that a federal judge has stayed class action litigation against The Coca-Cola Company pending the completion of arbitration, in a case that alleged the company unfairly redirected its reward points towards charitable causes. Glenn Coe (individually and on behalf of all others similarly-situated) of Orchard Park, N.Y. first filed suit in the U.S. District Court for the Western District of New York on June 6, 2022 versus The Coca-Cola Company, of Atlanta. The suit said Coca-Cola's rewards program began with customers redeeming bottle caps for movie tickets and gift cards, but it was changed to eliminate or reduce the frequency of prices. Instead, customers redeemed points to participate in raffles and contests. Now, the program no longer provides any things of value, according to the suit. "Instead, customers are only able to donate their accumulated rewards to pre-selected charities, such as the American Red Cross. While Americans have one of the highest personal charitable donation rates in the world, this is based on their own generosity and ability to choose the organizations they support," the suit said. The suit added trading stamps, or small paper stamps issued to customers, were an early form of loyalty programs, but were outlawed by the State of New York -- however, the plaintiff contends that Coca-Cola's rewards program is a modern-day trading stamp system, by virtue of the alphanumeric codes on its bottle caps. In a subsequent motion to compel arbitration filed on Oct. 24, 2022, Coca-Cola argued that when Coe and other users joined the rewards program, they agreed to a terms of use policy which stated that any disputes would be submitted to individual mandatory arbitration, and included a waiver of any and all class action litigation. UPDATE More than one year later and in a Nov. 14 memorandum opinion, U.S. District Court for the Western District of New York Judge William M. Skretny granted Coca-Cola's motion to move the case to arbitration proceedings, and stay it until those proceedings concluded. Skretny found that arbitration is "a matter of contract" and applied New York state law to the subject. That requires a party "must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound." "Coke's plain interface, set out above, put Coe on inquiry notice of the mandatory-arbitration provisions. Coke's [interface] is uncluttered and warns users that they are agreeing to the hyperlinked Terms of Use and Privacy Policy by clicking the box and proceeding with the account creation. The check box is conspicuously displayed in bold and underlining at the bottom of the page in spatially-reasonable font and size. It is not obscured in any way, nor are there other hyperlinks, advertisements, or other distractions. The only other information appearing on the interface is a simple form requiring biographical and password information. The hyperlinked Terms of Use containing the mandatory-arbitration provisions were thus clearly and conspicuously presented, providing Coe with reasonable notice," Skretny said. "Whether Coe actually clicked the hyperlink and read the Terms of Use before agreeing to them is of no moment. First, Coe submitted no evidence that he did not read the Terms of Use. Second, a reasonable user of Coke's website would know that by clicking the 'I agree' box, the user was agreeing to the Terms of Use accessible through the hyperlink. Consequently, regardless of whether Coe actually clicked the hyperlink, he was sufficiently on notice of the Terms of Use. Turning to manifestation of assent, the undisputed record reveals that Coe expressly assented to the mandatory-arbitration provisions. The check box signaling agreement with the Terms of Use is spatially and temporally coupled with the hyperlink containing the terms, as is the directly following 'submit' button. Moreover, Coe could not have created his account, which he concedes he created and continuously used, without affirmatively checking the 'I agree' box directly beside the Terms of Use hyperlink and clicking 'submit.' Finally, the interface makes clear that by checking the box, the user agrees to the Terms of Use. Consequently, by checking the box and completing his account creation, Coe unambiguously and affirmatively accepted the terms in the hyperlinked Terms of Use and Privacy Policy." According to Skretny, because Coe "was on inquiry notice of the Terms of Use, and because he unambiguously manifested his assent to those terms, including the mandatory-arbitration provisions, the parties created a binding agreement to arbitrate." Skretny added that Coca-Cola's mandatory arbitration provisions were not "unconscionable", or "so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforceable according to its literal terms." "Coe first argues that Coke's Terms of Use containing the mandatory arbitration provisions are procedurally unconscionable because they constitute a contract of adhesion. In so arguing, Coe highlights Coke's size, its bargaining power and the take-it-or-leave-it nature of the Terms of Use. But these arguments challenge the Terms of Use as a whole. They do not specifically challenge the mandatory arbitration provisions, which is required under U.S. Supreme Court precedent. In any event, the Second Circuit recognizes that unbalanced bargaining power and take-it-or-leave-it provisions do not necessarily render an arbitration agreement procedurally unconscionable. Coe's specific challenge to the mandatory arbitration provisions themselves is his suggestion that he did not understand the word 'arbitration,' lacked sophistication in legal matters and had no opportunity to study the provisions or consult a lawyer. He further suggests that the arbitration provisions were buried in fine print within the Terms of Use document. None of these arguments is persuasive," Skretny said. "Coe has presented no evidence, in affidavit form or otherwise, that he did not read the arbitration provisions, did not understand the word 'arbitration,' or otherwise lacked sophistication. Moreover, it is clear from the nature of Coke's programs that there was no immediacy or time-is-of-the-essence required for participation. Coe thus had ample opportunity to read and study the provisions, to educate himself on the meaning of 'arbitration,' and to consult a lawyer. And there is no merit to the suggestion that the arbitration provisions were buried in fine print in the Terms of Use document. To the contrary, the provisions are set out in the same font, size and format as the rest of the Terms of Use provisions -- no fine print. And unlike other provisions, the mandatory arbitration provision contains an explicit directive to read the terms carefully. Moreover, the very first full paragraph on the first page of the Terms of Conditions advises in bold, underlined, all-capped writing that, "THESE TERMS INCLUDE AN AGREEMENT TO SUBMIT ALL DISPUTES TO INDIVIDUAL MANDATORY ARBITRATION -- PLEASE READ CAREFULLY." Consequently, Coe fails to demonstrate that the mandatory arbitration provisions are procedurally unconscionable." Nor did Coe prove substantive unconscionability, Skretny ruled. "As to substantive unconscionability, Coe raises no factual or legal arguments. Instead, he simply requests a hearing to determine whether the Terms of Use were substantively unconscionable. Again, however, Coe presents no specific challenge to the substantive reasonableness of the mandatory-arbitration provisions, nor does he raise any factual disputes. A hearing is therefore unnecessary, and Coe's request for one is denied. Making no meaningful arguments, Coe fails to demonstrate that the mandatory-arbitration provisions are substantively unconscionable," Skretny said. "A court must grant a motion to compel arbitration 'if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of law.' Such is the case here. The undisputed evidence reveals that Coe and Coke agreed to arbitrate any disputes arising from Coe's participation in Coke's programs. Because Coe's challenges to that agreement fall flat, this Court is obligated to compel arbitration. Coke's motion will therefore be granted, and this action will be stayed pending completion of arbitration." The plaintiff is represented by Spencer I. Sheehan of Sheehan & Associates, in Great Neck, N.Y. The defendant is represented by Steven Lawrence Penaro, Alan F. Pryor, Andrew G. Phillips and Angela M. Spivey of Alston & Bird, in New York, N.Y. and Atlanta, Ga. U.S. District Court for the Western District of New York case 1:22-cv-00430 [GN] CONCORDIA UNIVERSITY: Jewish Students File Antisemitism Class Suit ------------------------------------------------------------------ Rob Harkavy, writing for CDR, reports that a group of Jewish students, faculty and staff at Concordia University in Montreal have filed a proposed class-action lawsuit against the university and its student union, accusing them of creating a "safe space for antisemitism" on campus. The lawsuit, which seeks CAD 15 million in damages, alleges that the defendants have failed to address and prevent antisemitic incidents and discrimination at Concordia for decades, leaving the claimants and other members of the proposed class "psychologically scarred". The claimants, who are requesting anonymity for fear of retaliation, claim that they have suffered "significant psychological injury" as a result of the "repeated discrimination" they have faced at Concordia. They say they have experienced nightmares, flashbacks, fear of being on campus and fear of identifying themselves as Jewish. The lawsuit cites several examples of antisemitic acts and sentiments at Concordia, including: the violent clash between pro-Israel and pro-Palestinian students that resulted in one arrest and injuries to two security guards and one student; the suspension of a lecturer who criticised the student union for its anti-Israel stance and accused it of supporting terrorism; the graffiti of swastikas and other hateful messages on campus buildings and property; the disruption and intimidation of Jewish speakers and events by pro-Palestinian activists; the adoption of resolutions and motions by the student union that endorse the boycott, divestment and sanctions (BDS) movement against Israel and condemn its actions in the Israel-Hamas war. The lawsuit claims that Concordia and its student union have breached their duty to provide a safe and respectful learning and working environment for the claimants and the proposed class. It accuses them of neglecting to investigate and punish antisemitic behaviours, failing to offer support and protection to Jewish students and staff, and failing to educate students on the issue of antisemitism. Detailing the legal basis for the claim, the claimants are alleging that the defendants have violated the Quebec Charter of Human Rights and Freedoms, the Canadian Charter of Rights and Freedoms, and the Civil Code of Quebec by discriminating against the claimants and the proposed class on the basis of their religion, ethnic origin and political opinions. The claimants are represented by two Montreal law firms, De Louya Markakis and Eidelmann Law, in partnership with Diamond & Diamond, a Toronto-based firm that is against other Canadian universities. Neither the university nor its student union immediately responded to a request for comment. [GN] CONSERVICE LLC: Garcia Consumer Credit Suit Removed to M.D. Fla. ---------------------------------------------------------------- The class action lawsuit captioned as Garcia v. Conservice LLC, Case No. 2023CA005138AX (Sept. 6, 2023), was removed from the 12th Judicial Circuit, Manatee County, Florida to United States District Court for the Middle District of Florida (Tampa) on October 20, 2023. The Middle District of Florida Court Clerk assigned Case No. 8:23-cv-02390-SDM-CPT to the proceeding. The suit alleges Consumer Credit related violation. The case is assigned to the Hon. Judge Steven D. Merryday. Conservice provides utility management and billing solutions to property owners and managers.[BN] The Plaintiff is represented by: Brian W. Warwick, Esq. Janet R. Varnell, Esq. Jeffrey Lee Newsome, II, Esq. Pamela G Levinson, Esq. VARNELL AND WARWICK PA 400 N. Ashley Drive, Suite 1900 Tampa, FL 33602 Telephone: (352) 753-8600 Facsimile: (352) 504-3301 E-mail: bwarwick@vandwlaw.com jvarnell@vandwlaw.com jnewsome@vandwlaw.com PLevinson@VandWLaw.com - and - Glenn Scott Banner, Esq. LAW OFFICE OF GLENN S. BANNER, P.A. 5245 Commissioners Drive Jacksonville, FL 32224 Telephone: (904) 240-4401 E-mail: gbanner@gbannerlaw.com The Defendant is represented by: Michael R. Freed, Esq. Gregory Lathrop Pierson, Esq. Lauren Ashley Marcil, Esq. GUNSTER, YOAKLEY & STEWART, P.A 1 Independent Drive, Suite 2300 Jacksonville, FL 32202 Telephone: (904) 350-7167 Facsimile: (904) 354-2170 E-mail: mfreed@gunster.com gpierson@gunster.com lshumate@gunster.com COREBRIDGE FINANCIAL: Faces Chuck Suit Over Insurance Dispute ------------------------------------------------------------- Corebridge Financial, Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that its subsidiary, American General Life Insurance Company (AGL) is a defendant in "Chuck v. American General Life Insurance Co.," pending in California Superior Court for the County of Los Angeles, which was filed on September 6, 2023 as a putative class action. Cases is still at an early stage. Corebridge Financial, Inc. is a provider of retirement solutions and life insurance products in the United States with its primary business operations consisting of sales of individual and group annuities and life insurance products to individuals and institutional markets. COREBRIDGE FINANCIAL: Faces Moriarty Suit Over Insurance Dispute ---------------------------------------------------------------- Corebridge Financial, Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that its subsidiary, American General Life Insurance Company (AGL) is currently facing a putative class action captioned "Moriarty v. American General Life Insurance Company, No. 17-cv-1709 (July 18, 2017, S.D. Cal.) Plaintiff's complaint argues that policies issued and delivered prior to January 1, 2013, like the $1 million policy issued to plaintiff's husband do not lapse despite nonpayment of premiums. On February 7, 2022, plaintiff filed motions for summary judgment and class certification; AGL opposed both motions and filed its own motion for partial summary judgment. On July 26, 2022, the District Court granted in part and denied in part AGL's motion for partial summary judgment, and on September 7, 2022, the District Court denied plaintiff's motion for summary judgment. In those 2022 summary judgment decisions, the District Court declined to adopt her theory that a failure to comply with the Act necessitates payment of policy benefits or to make a pre-trial determination as to AGL's liability. On September 27, 2022, the District Court denied plaintiff's motion for class certification without prejudice. The District Court declined to certify her proposed class consisting of claims for monetary damages and equitable relief, but indicated that she could seek the certification of a narrower class consisting only of claims for monetary damages. The District Court indicated, however, that it had "substantial concerns" as to whether individual issues such as actual damages and causation would predominate, precluding class certification. Subsequently, the case was reassigned to a new district court judge, who requested additional briefing on certain issues addressed by the summary judgment decisions and heard additional oral argument on those issues on July 19, 2023. On August 14, 2023, the District Court granted Plaintiff's motion for summary judgment, adopting Plaintiff's theory that failure to comply with the Act means the policy did not lapse and as a result, AGL breached the terms of the policy by refusing to pay the death benefit. In the order granting the motion, the District Court declined to revisit the September 2022 denial of class certification; therefore, this matter became an individual case only. At a status conference on August 23, 2023, the District Court decided that Plaintiff could file a motion regarding the propriety of revisiting class certification. Plaintiff filed such a motion on September 1, 2023, and AGL filed a provisional motion to certify the District Court's August 14, 2023 summary judgment order for interlocutory appeal to the Court of Appeals for the Ninth Circuit on the same date. On September 26, 2023, the District Court decided that good cause exists to allow Plaintiff to file a third motion for class certification; however, at the same time, the Court certified AGL's petition for interlocutory appeal and stayed court proceedings pending the outcome of AGL's appeal. Corebridge Financial, Inc. is a provider of retirement solutions and life insurance products in the United States with its primary business operations consisting of sales of individual and group annuities and life insurance products to individuals and institutional markets. CRONOS GROUP: Osler Attorneys Discuss Ruling in Securities Suit --------------------------------------------------------------- Allan Coleman, Robert Carson and Lipi Mishra of Osler, disclosed that in Badesha v. Cronos Group, Inc., the Ontario Superior Court recently certified a global class in a securities class action against Toronto-based Cronos Group Inc.,[1] even though U.S. shareholders who purchased their shares on the NASDAQ are also potential class members in a parallel U.S. securities class action. The decision addresses when an Ontario court should contend with the inclusion of U.S. shareholders in an Ontario securities class action. Background Cronos shares are cross-listed on the TSX and NASDAQ. The plaintiff in the Ontario action asked the Ontario court to certify a global class, regardless of whether the shareholders purchased their shares on the TSX or NASDAQ. Cronos objected on various grounds, including that a parallel class action against Cronos is already underway in the U.S.[2] That U.S. action includes a potential class of U.S. shareholders who, during the relevant class period, purchased shares over the NASDAQ. Cronos conceded that an Ontario court had jurisdiction over the claims of those shareholders, but sought to stay those claims under the doctrine of forum non conveniens and the principle of comity, arguing that the U.S. court was the more appropriate forum to resolve the claims of U.S. shareholders who purchased shares over the NASDAQ. Justice Morgan dismissed Cronos's motion and certified a global class of all purchasers, wherever they reside and wherever they purchased their shares. When will the 'day of reckoning' arrive? Justice Morgan recognized that U.S. shareholders in cross-border securities cases will inevitably face a "day of reckoning" in which one court will be asked to recognize the judgment or settlement of the other. Justice Morgan warned that "it will be for this Court in the event of a future settlement or judgment to keep in mind that "no class member should get 'two bites at the apple' against any defendant". Justice Morgan's reasons review a line of Ontario cases addressing jurisdiction and forum issues in cross-border securities class actions, including: Abdula v. Canadian Solar: The Court of Appeal held that a class action asserting claims under Part XXIII.1 of the Ontario Securities Act could include claims of investors who purchased their shares of an Ontario-based "responsible issuer" over a foreign exchange.[3] Silver v. Imax Corp.: In the initial Imax certification decision, the Ontario Superior Court found that any concerns over conflict of laws issues were premature and that it was more appropriate to "wait and see" how the issues, if any, developed in the parallel Ontario and U.S. class actions.[4] In a subsequent decision -- after "waiting and seeing" -- the Court granted the defendants' motion to amend the Ontario class to exclude those who were part of the class in the U.S. action.[5] Like the Imax decision, the Cronos decision defers any decision about the "right" court until one of the actions reaches its "day of reckoning" in the form of a settlement or judgment. This "day of reckoning" analysis may work better in an action like this one against Cronos, in which claims are asserted only under Part XXIII.1 of the Ontario Securities Act, not under common law torts. Because this class action did not plead other common law or statutory causes of action, issues that would have otherwise arisen -- for instance, the location of the alleged tort -- were not at issue in the Cronos case. Comity: a 'dismal swamp'? Although Cronos argued that the "imperatives of international comity" favour a U.S. court deciding the claims of U.S. shareholders, Justice Morgan was not prepared to stay the claims of U.S. shareholders on this basis, either. He found that, unlike other elements of the forum non conveniens analysis, comity "cannot be understood as a set of well-defined rules" and has therefore been colourfully characterized as a "dismal swamp". Justice Morgan noted that some courts and commentators have expressed a frustration with comity because it includes contradictory meanings, each of which can be used in the service of whoever deploys it. Justice Morgan recognized that Canada and the U.S. approach the issues differently. U.S. actions under §10(b)-5 of the Securities Exchange Act of 1934 are generally restricted to shares that were traded on an American exchange. By contrast, Section 138.3 of the Ontario Securities Act has been interpreted as being broad enough to provide access to justice for a global class against an Ontario-based responsible issuer, regardless of where the shareholders purchased their shares. According to Justice Morgan, "the U.S. wants to stop 'stepping on another nation's toes', while Ontario wants to hold foreign nationals' hand. American law expresses a need to decolonize and contract, Canadian law exudes a need to expand and embrace". Considerations Although the contradictory approaches in Ontario and the U.S. remain unresolved, Justice Morgan's remarks in Cronos encourage further analysis about how courts on both sides of the border should respect comity and address the challenges that may continue to arise from these seemingly "double-edged view[s] of the legal world". The bottom line for securities class actions appears to be that, for the foreseeable future, a cross-listed responsible issuer that is headquartered in Ontario will often face a proposed global class in an Ontario action -- even if the issuer is already defending against a U.S. class in a parallel U.S. case. However, the analysis and outcome may differ from the Cronos case if the plaintiff seeks to certify common law or other statutory causes of action alongside claims under Part XXIII.1 of the Ontario Securities Act. We will continue to monitor and report on developments in this area. Given the fundamental inconsistency between the Canadian and American approaches, and the Ontario court's restrictive interpretation of the principles of comity, we may receive appellate guidance in this or future cases. [1] 2023 ONSC 5678. [2] In re Cronos Group Securities Litigation, Civil Action No. 2:20-cv-01310-ENV-SIL. [3] 2012 ONCA 211, leave to appeal to the Supreme Court of Canada ref'd [2012] S.C.C.A. No. 246. [4] Silver v. Imax Corporation, 2009 CanLII 72334 (ON SC). [5] Silver v. IMAX, 2013 ONSC 1667. [GN] DAMERON HOSPITAL: Doe Files Class Suit in Calif. State Court ------------------------------------------------------------ A class action lawsuit has been filed against the Dameron Hospital Foundation. The case is captioned as JANE DOE, individually and on behalf of all others similarly situated, v. DAMERON HOSPITAL FOUNDATION D/B/A DAMERON HOSPITAL, Case No. STK-CV-UOCT-2023-0012027 (Cal. Super., San Joaquin Cty., November 14, 2023). A case management conference is set for May 13, 2024, before Judge Jayne Lee. Dameron Hospital Foundation is a charitable organization headquartered in Stockton, California.[BN] The Plaintiff is represented by: Vess A. Miller, Esq. COHEN & MALAD, LLP One Indiana Square Suite 1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 E-mail: vmiller@cohenandmalad.com DEE MARK: Lorenzo's Collective Action Bid Granted in Part --------------------------------------------------------- In the class action lawsuit captioned as FILOGONIO BACILIO LORENZO, v. DEE MARK INC. et al., Case No. 1:23-cv-00048-MKV-GWG (S.D.N.Y.), the Hon. Judge Gabriel W. Gorenstein entered an order granting in part and denying in part the plaintiff's motion for approval of a collective action. Lorenzo has requested the Court order several measures in addition to collective action approval, including approval of a notice and consent form; the production of "names, titles, compensation rates, dates of employment, last known mailing addresses, email addresses, all known telephone numbers," and Social Security Numbers of the relevant employees; and "the posting of the notice, along with the consent forms, in defendants’ places of business where [the relevant employees] are employed, by Plaintiff's counsel at any time during regular business hours." Additionally, Lorenzo requests that notice be sent to workers who were employed" by Defendants on or after the date that is 6 years before the filing of the Complaint." Plaintiff Filogonio Bacilio Lorenzo, on behalf of himself and a putative class and proposed collective, has sued defendants Dee Mark Inc., Dee Jing Inc., Limupoke Inc., Penkae Poolsuk, and Chatchai Huadwattana for violations of the Fair Labor Standards Act (FLSA), New York State Labor Law (NYLL) wage-and-hour provisions, and the Internal Revenue Code, as well as for breach of contract. The Plaintiff was employed as a delivery person by defendant Dee Mark Inc., d/b/a Aroy Dee Thai. The Plaintiff alleges that defendants collectively operate three restaurants: (1) Aroy Dee Thai (operated by Dee Mark Inc.); (2) Kuu Ramen FiDi (operated by Dee Jing Inc.); and (3) Kuu Ramen UES (operated by Limupoke Inc.). The Plaintiff proposes that the collective encompass "all non-exempt tipped employees, including delivery persons, servers, runners, bussers, and bartenders among others." A copy of the Court's opinion and order dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/47njo0w at no extra charge.[CC] DOLLAR ENERGY: Flagella et al. Sue Over Unprotected Customer Data ----------------------------------------------------------------- JESSICA FLAGELLA, on behalf of herself and her minor children A.F. and A.F., and all others similarly situated, Plaintiff v. DOLLAR ENERGY FUND, Defendant, Case No. 2:23-cv-01988-WSS (W.D. Pa., November 17, 2023) arises from the Defendant's failure to properly secure and safeguard Plaintiffs' and other similarly situated customers' private information from hackers and asserts claims for negligence, negligence per se, breach of contract, breach of implied contract, intrusion upon seclusion/invasion of privacy, unjust enrichment, and declaratory judgement. According to Defendant's Notice, it learned of unauthorized access to its computer systems on February 5, 2023, with such unauthorized access having taken place between January 31, 2023 and February 5, 2023. However, it was only on or about October 4, 2023, roughly six months after the Defendant learned that the Class's private information was first accessed by cybercriminals, the Defendant finally began to notify customers that its investigation determined that their private information was breached. Accordingly, Plaintiffs seek to remedy the harms caused by the data breach, says the suit. Headquartered in Pittsburgh, PA, Dollar Energy Fund is a non-profit organization that provides utility assistance grants to limited-income families and individuals. [BN] The Plaintiffs are represented by: Randi Kassan, Esq. MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, LLC 100 Garden City Plaza Garden City, NY 11530 Telephone: (212) 594-5300 E-mail: rkassan@milberg.com - and - Nicholas Sandercock, Esq. Mason A. Barney, Esq. Tyler J. Bean, Esq. SIRI & GLIMSTAD LLP 745 Fifth Avenue, Suite 500 New York, NY 10151 Telephone: (212) 532-1091 E-mail: mbarney@sirillp.com tbean@sirillp.com DRAFTKINGS INC: Consolidated Securities Suit Dismissed ------------------------------------------------------ Draftkings Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that on January 10, 2023, the U.S. District Court for the Southern District of New York granted the company's motion to dismiss and final judgment was entered dismissing case captioned "In re DraftKings Securities Litigation." On July 2, 2021, the first of two substantially similar federal securities law putative class actions was filed in said court against the company and certain of its officers. The actions alleged violations of Sections 10(b) and 20(a) of the Exchange Act on a behalf of a putative class of persons who purchased or otherwise acquired the company's stock between December 23, 2019 and June 15, 2021. The allegations related to, among other things, allegedly false and misleading statements and/or failures to disclose information about the company's business and prospects. On November 12, 2021, the court consolidated the two actions under the caption "In re DraftKings Securities Litigation" and appointed a lead plaintiff. The lead plaintiff filed a consolidated amended complaint on January 11, 2022. Draftkings Inc. is a digital sports entertainment and gaming company that provides users with online sports betting, online casino and daily fantasy sports product offerings, as well as retail sportsbook, media and other consumer product offerings. DRAFTKINGS INC: Faces Breach of Contract Suit Over Denied Prizes ---------------------------------------------------------------- Draftkings Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that on January 9, 2023, Simpson G. Turley, individually and on behalf of all others similarly situated, filed a purported class action against the company in the United States District Court for the District of Massachusetts. Plaintiff alleges, among other things, that he was a contestant in the company's daily fantasy showdown contest for the January 2, 2023 NFL game between the Cincinnati Bengals and the Buffalo Bills. The Bengals-Bills Game was postponed and eventually cancelled due to Damar Hamlin collapsing during the game. Plaintiff alleges that he was winning prizes in multiple showdown contests at the point in time that the Bengals-Bills Game was cancelled (with 5:58 remaining in the first quarter). Plaintiff alleges that, instead of paying out the prize money, the company refunded entry fees to contestants that entered showdown or flash draft fantasy contests. On May 8, 2023, plaintiff Turley and a new plaintiff (Erik Ramos) filed a First Amended Class Action Complaint. The plaintiffs assert claims for breach of contract, unfair and deceptive acts and practices, false advertising, and unjust enrichment. Among other things, plaintiffs seek statutory damages, monetary damages, punitive damages, attorney fees and interest. Draftkings Inc. is a digital sports entertainment and gaming company that provides users with online sports betting, online casino and daily fantasy sports product offerings, as well as retail sportsbook, media and other consumer product offerings. DRAFTKINGS INC: Faces Consolidated Securities Suit Over Merger Deal ------------------------------------------------------------------- Draftkings Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that it is facing consolidated case captioned "In re Golden Nugget Online Gaming, Inc. Stockholders Litigation," consolidated on October 12, 2022 in the Delaware Court of Chancery. On September 9, 2022, two putative class actions were filed in the Delaware Court of Chancery against former directors of GNOG Inc. and its former controlling stockholder, one of which also names the Company and Jefferies Financial Group, Inc. as defendants. The lawsuits assert claims on behalf of a putative class of former minority stockholders of GNOG alleging that certain former officers and directors of GNOG and its former controlling stockholder (Tilman Fertitta and/or Fertitta Entertainment, Inc.) breached their fiduciary duties to minority stockholders of GNOG. in connection with the GNOG merger with Draftkings Inc. and the other defendants aided and abetted the alleged breaches of fiduciary duty. One of the actions also alleges that the company aided and abetted the alleged breaches of fiduciary duty. On October 12, 2022, the Delaware Court of Chancery consolidated these two actions into another case under the caption "In re Golden Nugget Online Gaming, Inc. Stockholders Litigation." Draftkings Inc. is a digital sports entertainment and gaming company that provides users with online sports betting, online casino and daily fantasy sports product offerings, as well as retail sportsbook, media and other consumer product offerings. On May 5, 2022, DraftKings Inc. (formerly New Duke Holdco, Inc.) consummated the acquisition of Golden Nugget Online Gaming, Inc., pursuant to a definitive agreement and plan of merger, dated August 9, 2021, in an all-stock transaction. DRAFTKINGS INC: Faces Securities Violations Suit Over NFT Sales --------------------------------------------------------------- Draftkings Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that on March 9, 2023, a putative class action was filed in Massachusetts federal court by alleged purchasers of non-fungible tokens (NFT) on the DraftKings Marketplace. The complaint asserts claims for violations of federal and state securities laws against the Company and three of its officers on the grounds that, among other things, the NFTs that are sold and traded on the Marketplace allegedly constitute securities that were not registered with the SEC in accordance with federal and Massachusetts law, and that the DK Marketplace is a securities exchange that is not registered in accordance with federal and Massachusetts law. Based on these allegations, plaintiff brings claims seeking rescissory damages and other relief on behalf of himself and a putative class of persons who purchased NFTs on the Marketplace between August 11, 2021 and the present. On July 17, 2023, the company received a subpoena from the Securities Division of the Office of the Secretary of the Commonwealth of Massachusetts seeking documents and requesting answers to interrogatories concerning, among other things, Marketplace and NFTs that are sold on DK Marketplace and related matters. Draftkings Inc. is a digital sports entertainment and gaming company that provides users with online sports betting, online casino and daily fantasy sports product offerings, as well as retail sportsbook, media and other consumer product offerings. DRG MEDICAL: Faces Suit Over Alleged Sexual Assault in Patients --------------------------------------------------------------- Malky Wigder and Jane Doe, on behalf of themselves and all others similarly situated, Plaintiffs v. Robert Goodman, DRG Medical PLLC, and Maimonides Medical Center, Defendants, Case No. 533555/2023 (N.Y. Sup., Kings Cty., November 15, 2023) seeks to hold accountable the people and entities who perpetuated Dr. Robert Goodman's abuse for years, causing lasting, irreparable damage to Plaintiffs and the putative class of victims they represent. Dr. Goodman, an internal medicine physician based in Borough Park, Brooklyn, has regularly sexually assaulted female patients with impunity for more than fifteen years. When female patients came to Dr. Goodman for medical care, he regularly and routinely violated their trust and used his position of authority to grope, molest, and sexually assault them, the suit alleges. DRG Medical PLLC is Dr. Goodman's current medical practice. It was incorporated in 2011 and its place of business is 1523 45th Street, Brooklyn, NY. [BN] The Plaintiff is represented by: Alanna Kaufman, Esq. Alison Frick, Esq. KAUFMAN LIEB LEBOWITZ & FRICK LLP 18 E. 48thth Street, Suite 802 New York, NY 10017 Telephone: (212) 660-2332 EL FUERTE DELI: Almendares Seeks to Recover Unpaid Wages -------------------------------------------------------- LILIAN ALMENDARES, individually and on behalf of all others similarly situated, Plaintiff v. EL FUERTE DELI AND GROCERY CORP. and EL FUERTE DELI AND GROCERY II, CORP. and JUNIOR CASTRO JR. and RAMONA VARGAS, as individuals, Defendants, Case No. 2:23-cv-08505 (E.D.N.Y., November 16, 2023) alleges violations of the Fair Labor Standards Act and the New York Labor Law. Plaintiff Almendares was required work approximately 133 hours hours per week from in or around May 2022 until in or around July 2022. Her primary duties were as a cook, food preparer, and cleaner. She performed these duties simultaneously at two Defendants' locations. The Defendants issued Plaintiff a check in the amount of $600 after her employment ended, but the check was unable to be cashed or deposited due to insufficient funds. Furthermore, the Defendants failed to pay Plaintiff the legally prescribed minimum wage for all her hours worked from in or around May 2022 until in or around July 2022, a blatant violation of the minimum wage provisions contained in the FLSA and NYLL, says the suit. El Fuerte Deli and Grocery Corp operates two locations in New York: Hempstead and Uniondale.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. (RA 5508) HELEN F. DALTON & ASSOCIATES, PC 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 EMERGENT BUSINESS: Faces Charles Suit Over Unfair Debt Collection ----------------------------------------------------------------- A class action lawsuit has been filed against EMERGENT BUSINESS GROUP, INC. et al. The case is captioned as CHARLES v. EMERGENT BUSINESS GROUP, INC. et al., Case No. 3:23-cv-21360-MAS-TJB (D.N.J., Oct. 20, 2023). The suit alleges violation of the Fair Debt Collection Act involving consumer credit. The case is assigned to the Hon. Judge Michael A. Shipp. Emergent is a comprehensive receivables management, acquisitions and servicing firm.[BN] The Plaintiff is represented by: Lawrence C. Hersh, Esq. 17 Sylvan Street, Suite 102B Rutherford, NJ 07070 Telephone: (201) 507-6300 E-mail: lh@hershlegal.com ENOVIX CORP:Continues to Defend Consolidated Securities Class Suits ------------------------------------------------------------------- Enovix Corp. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the consolidated securities class suits in the U.S. District Court for the Northern District of California. On January 6, 2023, a purported Company stockholder filed a securities class action complaint in the U.S. District Court for the Northern District of California against the Company and certain of its current and former officers and directors. The complaint alleges that defendants violated Sections 10(b) and 20(a) of the Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making material misstatements or omissions in public statements related to the Company's manufacturing scaleups and testing of new equipment. A substantially identical complaint was filed on January 25, 2023 by another purported Company stockholder. Following consolidation of the cases and court appointment of two purported Company stockholder lead plaintiffs, a consolidated complaint alleging substantially similar claims, including allegations that the defendants made material misstatements or omissions in public statements related to testing of new equipment, was filed on July 7, 2023. The consolidated complaint seeks unspecified damages, interest, fees and costs on behalf of all persons and entities who purchased and/or acquired shares of the Company or RSVAC's common stock between June 24, 2021 and January 3, 2023. The Company and the named officers and directors moved to dismiss the complaint on September 15, 2023. Based on currently available information, the Company is unable to make a reasonable estimate of loss or range of losses, if any, arising from this matter. Enovix Corporation designs, develops, manufactures and commercializes next generation Lithium-ion, or Li-ion, battery cells. EXCELL COMMUNICATIONS: Fails to Pay Wages Weekly, Martinez Says --------------------------------------------------------------- DANIEL MARTINEZ, RAFAEL RODRIGUEZ, TERRENCE BULLARD, SUNGHAI ANDERSON, RYAN HAMILTON, STEVEN HAYNES, and ANDY ROLLE, on behalf of themselves and all other persons similarly situated, Plaintiffs v. EXCELL COMMUNICATIONS, INC. and ABEL BARBOSA, Defendants, Case No. 618753/2023 (N.Y. Sup., Nassau Cty., November 16, 2023) seeks to recover unpaid wages under the New York Labor Law. The Plaintiffs bring this lawsuit as a class action pursuant to Civil Practice Law and Rules on behalf of themselves and similarly-situated current and former employees of Defendants who worked as non-exempt, hourly-paid individuals employed in manual positions in the state of New York at any time during the period of July 18, 2016 through September 5, 2022, for violations of the New York Labor Law and the supporting New York State Department of Labor regulations. One of the Plaintiffs, Daniel Martinez, was employed by Defendants as a fiber optic installation technician from in or about March 2022 until in or about Summer 2023. Throughout the class period, the Defendants, however, failed to pay Plaintiff Martinez and other manual workers wages on a weekly basis and not later than seven calendar days after the end of the week in which the wages were earned, as required by NYLL. Among other things, the Defendants also failed to provide Plaintiffs and the Class Members with accurate wage statements indicating, among other things, their accurate regular and overtime rates of pay, number of regular and overtime hours worked, or their correct gross pay, net pay, or deductions, during each pay period. Headquartered in Plainview, NY, Excell Communications, Inc. is engaged in the installation of network infrastructure for the wireless, fiber and utility industries in New York. [BN] The Plaintiffs are represented by: David D. Barnhorn, Esq. Peter A. Romero, Esq. ROMERO LAW GROUP PLLC 490 Wheeler Road, Suite 250 Hauppauge, NY 11788 Telephone: (631) 257-5588 FEDEX GROUND: Faces Class Action Over Unpaid Overtime Wages ----------------------------------------------------------- Kelsey McCroskey, writing for ClassAction.org, reports that FedEx Ground Package System, Inc. faces a proposed class action that claims it has failed to pay hourly employees proper overtime wages for time spent undergoing COVID and security screenings outside of each shift. The nine-page lawsuit was filed by a former employee who alleges that the company has violated the Pennsylvania Minimum Wage Act (PMWA) by failing to pay him the required time-and-a-half rate for overtime hours worked in excess of 40 in a week. The suit relays that the plaintiff, a Pennsylvania resident, worked as a package handler at a FedEx Ground distribution facility from around January 2020 to September 2023. The man claims he often worked over 40 hours -- and sometimes over 50 hours -- per week during various weeks since November 2020. According to the case, the company required the plaintiff and other workers to undergo both a COVID and security screening at a building on the premises before walking to the distribution warehouse and clocking in to begin each shift. In addition, after clocking out at the end of each shift, employees were required to submit to an anti-theft screening outside the warehouse, the complaint says. The filing contends that the company failed to pay workers for the time they spent performing these mandatory pre- and post-shift duties despite it being considered compensable time under the PMWA. As such, the plaintiff and other package handlers are owed proper overtime wages for weeks during which they worked over 40 hours, the case claims. The lawsuit looks to represent anyone who, during at least one week since November 7, 2020, has been employed by FedEx Ground at any Pennsylvania facility as a package handler, seasonal package handler or any similar hourly position entailing loading, unloading and sorting packages, and has been credited with working over 40 hours. [GN] FINEPOINTS PRIVATE: Faces Bobb Suit Over Labor Law Violations ------------------------------------------------------------- MARGARET BOBB, Plaintiff, on behalf of herself and others similarly situated v. FINEPOINTS PRIVATE DUTY HEALTHCARE, LLC and CYNTHIA KELLER-BEE, Defendants, Case No. 1:23-cv-03129-ADC (D. Md., November 16, 2023) arises from the Defendants' willful refusal to pay Plaintiff's and similarly situated employees' wages, including overtime and travel-time wages in violation of the Fair Labor Standards Act, the Maryland Wage and Hour Law, and the Maryland Wage Payment and Collection Law. From approximately January 2021 to March 2023, the Defendants employed Plaintiff to provide in-home care to Defendants' clients. However, throughout her employment, the Defendants willfully misclassified Plaintiff and other home care aides as independent contractors, despite the fact that none of the legal factors within the applicable six-part test to support this classification. Through this unlawful practice, Defendants evaded the payment of wages owed to Plaintiff and others similarly situated under the FLSA, MWHL and the MWPCL, says the suit. FinePoints provides home care services to individuals in various locations throughout Maryland, including Harford County, Baltimore County, Cecil County and Baltimore City. [BN] The Plaintiff is represented by: Daniel Kohrman, Esq. Benjamin Davis, Esq. AARP FOUNDATION 601 E Street, NW Washington, DC 20049 Telephone: (202) 434-2064 - and - David Rodwin, Esq. PUBLIC JUSTICE CENTER 201 North Charles Street, Suite 1200 Baltimore, MD 21201 Telephone: (410) 625-9409 FMC CORP: Faces Investor Class Actions Over Misledading SEC Filings ------------------------------------------------------------------- Ryan Hagglund, Esq., of Loeb & Loeb LLP, in an article for Lexology, disclosed that manufacturers of pharmaceuticals, biologics, and herbicides, as well as companies in virtually every industry, routinely make statements in SEC filings, as well as public statements to investors regarding patent litigation, patent office invalidation proceedings, patent validity, and market exclusivity. Many of these statements acknowledge the risk of adverse decisions finding patents covering a product invalid or not infringed that could lead to entry of generic or competing products that can adversely affect financial results and the pendency of litigation and invalidation proceedings when they are occurring. Such run-of-the-mine statements rarely lead to investor challenges. However, despite such disclosures, two investor class action suits, Heeg v. FMC Corp., No. 2:23-cv-4398 (E.D. Pa. filed Nov. 9, 2023) and Employer-Local Teamsters Local Nos. 165 & 505 Health & Welfare Fund v. FMC Corp., No. 2:23-cv-4487 (E.D. Pa. filed Nov. 14, 2023), have recently been filed against chemical manufacturing company FMC Corp. alleging that the company misled investors regarding losses in patent- and exclusivity- related matters in India, China, and Brazil relating to FMC's flagship diamide insecticides, specifically chlorantraniliprole and cyantraniliprole, resulting in trading of FMC stock at inflated prices and losses to investors. These cases allege that FMC and its executives made a series of false statements about the status of patent protection for FMC's diamide products in SEC filings, press releases, and presentations to the market via securities analysts, money and portfolio managers, and institutional investors following legal defeats in India, China, and Brazil that FMC had concealed from investors resulting in harm to them. The complaints rely in large part on information compiled and set forth in a research report published on September 7, 2023 by short activist investment firm Blue Orca Capital contending that FMC made false statements regarding, and concealed from investors, that losses in patent litigation and proceedings allowed competitors to launch competing generic diamide insecticide products at significantly lower prices than FMC's products. The report cites to FMC's SEC filings and conference call transcripts, witness interviews, and documents obtained from India, China, and Brazil, including foreign language news articles and documents obtained from courts and regulatory agencies. On the day the report was published, FMC's stock price fell by approximately 7.4%, representing approximately $630 million in shareholder losses, and continued to fall over the next two days. FMC has taken the position that the report contains misleading and factually inaccurate statements regarding FMC's diamide insecticide patents and inaccurately speculated on the strength of FMC's business. For instance, the complaints allege that FMC made false statements about patent litigation in India against competitor Natco. The complaints acknowledge that FMC initially obtained an interim injunction in July 2021 and issued a press release, but state that in September 2022, the High Court of Delhi vacated the injunction and found that FMC failed to show infringement. However, on November 2, 2022, FMC filed a Form 10-Q with the SEC stating that "[p]atents may be challenged in the courts, as well as in various administrative proceedings before U.S. or foreign patent offices, and may be deemed unenforceable, invalidated or circumvented" and that "an adverse patent enforcement decision which could lead to the entry of competing chlorantraniliprole products in relevant markets may materially and adversely impact our financial results." The complaints contend this statement is false and misleading because it framed a risk that had already materialized, a loss in a significant legal matter concerning intellectual property protections in India, as merely a theoretical possibility. FMC appealed and lost its appeal in December 2022. The complaints also allege that FMC separately lost a case in India against GSP Crop Sciences clearing the way for GSP to introduce a generic chlorantraniliprole product. Despite these losses, FMC stated in its Form 10-K filed with the SEC in February 2023 that during 2022 it initiated patent enforcement proceedings against generic producers and infringers resulting favorable judgments and settlements, including in India and China and the complaints contend that FMC's CFO told analysts that it had won infringement cases in both China and India. The complaint alleges that these statements were materially false and misleading and failed to disclose material adverse facts—namely the aforementioned losses in India. The complaints also allege that FMC made false and misleading statements concerning patent protection in China as well as about regulatory proceedings in India. While the merits of the allegations in the complaints will be determined during the course of the litigations, these suits illustrate a cautionary tale for manufacturers and underwriters alike when it comes to regulatory filings and public statements regarding patent validity and litigation. Detailed disclosure regarding various decisions during the course of a litigation is often unnecessary. However, while the facts of each case are different, companies run a risk of misleading investors when they fail to disclose adverse substantive decisions that can result in increased competition and entry of competitors into the market, such as those finding invalidity or non-infringement, especially where the party has publicized earlier favorable decisions. General statements acknowledging the risk of a patent being found invalid or not infringed are not likely to insulate a party from potential liability to investors in such circumstances where the party is aware of a negative substantive result on infringement or validity but fails to specifically disclose it as material information is nonetheless withheld. Where the adverse decision is on appeal, the better course is to disclose the adverse decision and the appeal, rather than to rely on a general disclosure of risk, perhaps based on the thinking that the adverse decision is not final in the sense that it is not appealable. Moreover, issues of validity and infringement as well as the significance of various decisions vary from country to country, so counsel in each jurisdiction where a patent case is pending should be consulted with respect to both the decision to disclose and content of any disclosure. We are short FMC Corporation ("FMC" or the "Company") because FMC has concealed from investors that it has suffered a recent string of stunning legal defeats around the globe that have enabled competitors to now launch competing generics at prices up to 80% below the price of FMC's flagship insecticide product. Contrary to the Company's claims, FMC's process patents do not protect its flagship product from generic competition. The dam has broken. [GN] FORD MOTOR: Katz Sues Over Defective Vehicle Camera System ---------------------------------------------------------- NANETTE KATZ, on behalf of herself and all others similarly situated, Plaintiff v. FORD MOTOR COMPANY, Defendant, Case No. 2:23-cv-04440-MRP (E.D. Pa., Nov. 10, 2023) is a class action brought under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, on behalf of the Plaintiff and a proposed class of Pennsylvania consumers who purchased or leased vehicles designed and manufactured by Defendant Ford and equipped with a 360-Degree Camera system. According to the complaint, Ford designed, manufactured, marketed, advertised, and sold or leased the affected vehicles to Plaintiff and the class with a defective 360-Degree Camera system, which routinely and systematically "glitches" or malfunctions while the affected vehicles are operating in reverse, resulting in a total loss of the rear camera image and displaying instead a blank screen or blue or black image. This defect leaves the vehicle operator with no operational rear-view camera, and renders the 360-Degree Camera feature -- an upgraded option for which Plaintiff and the class paid extra -- effectively useless while reversing, says the suit. Moreover, the defective cameras in the affected vehicles are covered by manufacturer's warranty of Ford, and therefore are entitled to be repaired or replaced under such warranty. Despite this, Defendant Ford and its authorized dealerships have refused to adequately repair or replace the Defective Cameras in the affected vehicles, the suit asserts. Ford Motor Company is an American multinational automobile manufacturer headquartered in Dearborn, Michigan.[BN] The Plaintiff is represented by: Stephen P. DeNittis, Esq. Shane T. Prince, Esq. DENITTIS OSEFCHEN PRINCE, P.C. 1515 Market Street, Suite 1200 Philadelphia, PA 19102 Telephone: (215) 564-1721 Facsimile: (215) 564-1759 E-mail: sdenittis@denittislaw.com sprince@denittislaw.com - and - Michael E. Criden, Esq. Lindsey C. Grossman, Esq. CRIDEN & LOVE, P.A. 7301 SW 57th Court, Suite 515 South Miami, FL 33143 Telephone: (305) 357-9000 Facsimile: (305) 357-9050 E-mail: mcriden@cridenlove.com lgrossman@cridenlove.com FRONTIER AIRLINES: Faces Class Action Over Bogus Baggage Fees ------------------------------------------------------------- Chad Pradelli and Cheryl Mettendorf, writing for WPVI, report that a popular discount airliner that operates out of both Philadelphia International and Trenton-Mercer airports is accused of misleading passengers and improperly charging for bags. The Action News Investigative Team began looking into issues involving Frontier Airlines and its personal bag fees. Since our investigation began, a proposed class action lawsuit has been filed. The lawsuit and some passengers said gate agents are flagging their free personal item bags that meet size requirements as oversized and then charging them a $99 fee. "It was just embarrassing and just so frustrating," said Monica Smith of Bucks County. Smith said she tried to board a Frontier flight to Florida at Trenton Mercer Airport in April. She had her backpack as her free personal carry-on item and said it fit in the sizer at the gate. But a gate agent said it didn't meet the size requirement and she would have to pay $100 on the spot at the gate. "I'm in shock. I'm absolutely in shock," she said. "I'm looking at my bag and I'm looking at her and I'm like, 'No ma'am, no it clearly fits.'" Smith said after some back and forth, the Frontier gate agent called the sheriff. "The sheriff gives me instructions and he says, 'Listen, just take pictures of it, I see that it fits,'" she said. "Pay the $100 so that you can go on your trip." Smith said that turned out not to be an option. The next thing she knew, the gate agent shut the boarding door, and she and her daughter missed the flight. "She was just determined to make sure that I paid for this bag," she added. On TikTok, the Investigative Team found video threads about complaints and even hacks to get a personal item bag past the gate. "At the end of the day, they lied," said Attorney Mike Mann. Mann represents nearly a dozen plaintiffs in a proposed class action lawsuit against Frontier. Smith is not part of the Mann's lawsuit. "They said that personal items were a certain size and passengers were showing up with that bag size, and then getting charged," said Mann. The lawsuit accuses the Denver-based airline of not only flagging properly sized bags but also accuses Frontier of using bag sizes smaller than the advertised dimension of 14" tall x 18" wide x 8" long. Mann also claims Frontier has a quota for flagging personal items. In exchange, he said Frontier gate agents get a $10 kickback for every $100 charged. "We've got people bragging about it," said Mann. "You know, making a couple thousand bucks just off the commission." A Frontier Airlines flight attendant spoke to the Investigative Team on the condition she'd remain anonymous for fear of losing her job. "I feel the passengers are being extorted," she said. She also confirmed the $10 commissions and said flight attendants like herself have to deal with the fallout from passengers. "They're crying, they're distraught, they're angry," she said. "They want to take it out on the next Frontier person." The Investigative Team flew Frontier from Philadelphia International Airport. We also witnessed passengers flagged at the gate and even emptying bags to avoid trying to pay the $99 fee. "It's not fair," said one passenger to our Investigative Team. "They flagged my bag but not everyone's. Other people got on with much larger bags." A spokesperson for Frontier told us it can't comment on pending litigation but did not deny the incentive program for gate agents. In a statement, Frontier said: "Incentives for our airport customer service agents help ensure compliance with our policies and that all customers are treated equally. Most customers pay for their bags in advance, in accordance with our policies, and we provide multiple reminders and opportunities to do so at a lower price in advance of departure. Allowing customers to board without paying would be inequitable to every other customer who paid for their bags as required." Frontier has also filed a motion to dismiss the lawsuit. In legal filings, the discount airline said it is barred by the carrier agreement and federal law. [GN] GODADDY INC: Appealed TCPA Case Remanded ---------------------------------------- GoDaddy Inc. disclosed in its Form 10-Q report for the quarterly period ended September 30, 2023, filed with the Securities and Exchange Commission on November 3, 2023, that on July 24, 2023, the en banc 11th Circuit reversed its July 27, 2022 decision and remanded the appeal for further action. On January 19, 2021, a single objector to the settlement of certain class action complaints alleging violation of the Telephone Consumer Protection Act (TCPA), filed a notice of appeal to the 11th Circuit Court of Appeals. On July 27, 2022, the 11th Circuit vacated the settlement approval order and remanded the case for further action due to standing issues among the class members. On August 18, 2022, the plaintiffs filed a petition for a rehearing before the 11th Circuit. On December 7, 2022, the 11th Circuit was notified of the death of one of the plaintiffs, Jason Bennett. On March 13, 2023, the 11th Circuit granted the plaintiffs' petition for a rehearing before the 11th Circuit; the rehearing occurred on June 13, 2023. GoDaddy Inc. is a publicly traded internet domain registry, domain registrar and web hosting company headquartered in Tempe, Arizona, and incorporated in Delaware. GRUBHUB INC: Jack Tate Alleges Unauthorized Use of Restaurant Names ------------------------------------------------------------------- JACK TATE d/b/a THE TIN PIG, LLC, on behalf of himself and all others similarly situated, Plaintiff v. GRUBHUB INC., Defendant, Case No. 1:23-cv-15865 (N.D. Ill., Nov. 10, 2023) is a class action brought by the Plaintiff seeking judgment after (a) finding that Grubhub has violated the Lanham Act by using restaurant names and logos without authorization and in a manner likely to confuse consumers; (b) finding that Grubhub's conduct was deceptive and unfair; and (c) ordering that Grubhub cease its unlawful conduct, turn over its ill-gotten gains, and pay damages to the restaurants it has harmed. According to the complaint, Grubhub's use of Plaintiff's and subclass members' registered marks is likely to cause and has in fact caused customer confusion as to the source of the services offered through Grubhub's website and mobile apps. Consumers reasonably believe that Grubhub's use of the restaurants' trademarks mean the restaurants are working cooperatively with Grubhub to provide them with accurate, reliable, and timely food services where in fact names and logos were used without permission, the suit alleges. The Plaintiff owns one of the restaurants Grubhub added to its online platform without permission, and brings this proposed class action on behalf of more than 150,000 restaurants whose names and logos were likewise used without permission. Grubhub Inc. is an American online and mobile prepared food ordering and delivery platform based in Chicago, Illinois.[BN] The Plaintiff is represented by: Robert K. Shelquist, Esq. Rebecca A. Peterson, Esq. Kyle J. Pozan, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 E-mail: rkshelquist@locklaw.com rapeterson@locklaw.com kjpozan@locklaw.com - and - Jon Tostrud, Esq. Anthony Carter, Esq. TOSTRUD LAW GROUP, P.C. 1925 Century Park East Suite 2100 Los Angeles, CA 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 E-mail: jtostrud@tostrudlaw.com acarter@tostrudlaw.com - and - Charles J. LaDuca, Esq. Blaine Finley, Esq. Brendan S. Thompson, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Ave. NW Suite 200 Washington, DC 20016 Telephone: (202) 789-3960 Facsimile: (202) 589-1813 E-mail: charles@cuneolaw.com brendant@cuneolaw.com bfinley@cuneolaw.com - and - J. Barton Goplerud, Esq. SHINDLER, ANDERSON, GOPLERUD & WEESE, PC 5015 Grand Ridge Drive, Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 E-mail: goplerud@sagwlaw.com HARD ROCK CAFE: Francis Sues Over Breach of Tip Credit Regulations ------------------------------------------------------------------ ZAC FRANCIS, individually and on behalf of all others similarly situated, Plaintiff v. HARD ROCK CAFE INTERNATIONAL (STP), INC., Defendant, Case No. 1:23-cv-00760-TSB (S.D. Ohio, November 17, 2023) seeks to address the Defendant's practices and policies that willfully violated the Fair Labor Standards and the Constitution of the State of Ohio, Article II, Section 34a. Plaintiff Zac Francis has been employed by Defendant since approximately January 2023 as a non-exempt server. He is paid an hourly rate by Defendant that is less than the federal minimum wage rate and less than the Ohio minimum wage rate. In addition, the Defendant took a "tip credit" against Defendant's minimum wage obligations even it failed to comply the statutory requirements. Headquartered in Davie, FL, Hard Rock Cafe International owns and operates a casino, the Hard Rock Casino Cincinnati, and related restaurants and bars in Ohio. [BN] The Plaintiff is represented by: Joseph F. Scott, Esq. Ryan A. Winters, Esq. SCOTT & WINTERS LAW FIRM, LLC 50 Public Square, Suite 1900 Cleveland, OH 44113 Telephone: (216) 912-2221 Facsimile: (440) 846-1625 E-mail: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com - and - Kevin M. McDermott II, Esq. SCOTT & WINTERS LAW FIRM, LLC Telephone: (216) 912-2221 Facsimile: (440) 846-1625 1925 Pearl Rd., Suite 310 Strongsville, OH 44136 E-mail: kmcdermott@ohiowagelawyers.com - and - Anthony J. Lazzaro, Esq. Lori M. Griffin, Esq. Matthew S. Grimsley, Esq. THE LAZZARO LAW FIRM, LLC The Heritage Building, Suite 250 34555 Chagrin Boulevard Moreland Hills, OH 44022 Telephone: (216) 696-5000 Facsimile: (216) 696-7005 E-mail: anthony@lazzarolawfirm.com lori@lazzarolawfirm.com matthew@lazzarolawfirm.com - and - Don J. Foty, Esq. HODGES & FOTY, LLP 2 Greenway Plaza, Suite 250 Houston, TX 77046 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 E-mail: dfoty@hftrialfirm.com HAWTHORNE LAB: Has Made Unsolicited Calls, Bilbao Suit Claims ------------------------------------------------------------- AXEL BILBAO, individually and on behalf of all others similarly situated, Plaintiff v. HAWTHORNE LAB, INC., Defendant, Case No. CACE-23-021345 (Fla. Cir., Broward Cty., Nov. 17, 2023) seeks to stop the Defendants' practice of making unsolicited calls. Hawthorne Labs is a company engaged in developing mobile software products. [BN] The Plaintiff is represented by: Joshua A. Glickman, Esq. Shawn A. Heller, Esq. SOCIAL JUSTICE LAW COLLECTIVE, PL 974 Howard Ave. Dunedin, FL 34698 Telephone: (202) 709-5744 Facsimile: (866) 893-0416 Email: josh@sjlawcollective.com shawn@sjlawcollective.com HEALTH CAROUSEL: Class Certification Bid Due April 1, 2024 ---------------------------------------------------------- In the class action lawsuit captioned as NOVIE DALE CARMEN, v. HEALTH CAROUSEL, LLC, Case No. 1:20-cv-00313-DRC (S.D. Ohio), the Hon. Judge Douglas R. Cole entered an amended scheduling order as follows: Event Date 1. Class certification fact Dec. 22, 2023 discovery closes 2. Class certification Jan. 15, 2024 expert disclosures 3. Class certification Feb. 15, 2024 rebuttal expert disclosures 4. Class certification expert March 15, 2024 discovery closes 5. Motion for class certification April 1, 2024 filed 6. Dispositive motions filed On or before 210 days following the Court's order on class certification Health Carousel provides employment services. A copy of the Court's Amended Scheduling Order dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/40NGIlk at no extra charge.[CC] HELIX FINANCIAL: Faces Class Action Over Rent-a-Bank Scheme ----------------------------------------------------------- Kelsey McCroskey, writing for ClassAction.org, reports that a proposed class action claims online lender Helix Financial and its partner bank have engaged in a "rent-a-bank" scheme whereby they issue loans with illegal interest rates to Georgia residents. The 32-page lawsuit alleges that despite state usury law, which prohibits unlicensed lenders from issuing loans with interest rates at more than 16 percent, Helix -- operated by defendant Hyphen, LLC -- and Lead Bank have "brazenly" extended payday loans that are "plainly unlawful" and regularly have annual percentages rates (APRs) in excess of 400 percent. According to the suit, Georgia's Payday Lending Act (PLA) explicitly prohibits loans for which a "de facto lender" claims to function as an agent for an exempt financial institution. The case contends that Helix purports to be a "brand" of its Missouri-based partner bank -- referring to itself as "Helix by Lead Bank" on its website -- which the lender says is responsible for issuing and servicing the loans made to consumers. However, in reality, the complaint alleges, Helix is an entirely separate company that handles every material step of the unlawful loan transactions. "[A] cursory examination of the true relationship between Helix and Lead Bank, as well as between Helix and Georgia borrowers, demonstrate [sic] that Helix is the true lender," the filing argues. "And, moreover, Helix has plainly employed a scheme, device, or contrivance -- i.e., its claim that it is a 'brand' of its partner bank -- in an attempt to evade Georgia's restrictions on payday lending." On its website, Helix often refers to itself as a "lender" and admits that it sets loan application criteria, makes lending decisions and approves consumers for loans, the lawsuit relays. Per the suit, the company manages all loan-related customer inquiries, oversees borrower acquisition, and operates the website. What's more, as soon as a loan is issued by Lead Bank, the borrower is immediately informed that it has been transferred to Helix for servicing, the case adds. "[T]he bank's brief involvement in each loan transaction is a mere façade to allow Helix to make blatantly unlawful loans to consumers," the complaint charges. "This is precisely the sort of rent-a-bank scheme that the Georgia General Assembly has declared unlawful." As the filing tells it, Helix has "jumped around from bank to bank" in recent years and reportedly switched from using Lead Bank "as a cover for its scheme" to Kansas-based Kendall Bank in January 2021. According to the lawsuit, Helix again moved on in September 2022, this time to its current partner, Missouri's Bank of Orrick. The plaintiff, a Georgia resident, was issued by the online lender in December 2019 a $700 loan with an APR of a "whopping" 547 percent, "more than 34 times the legal limit provided under the PLA," the suit contends. The case shares that the plaintiff is apparently not alone in her experience with the lender. "Helix, with the help of its partner banks, lulled countless borrowers into believing that they were applying for and receiving legitimate, lawful loans, only to learn that Helix was the de facto, and predatory, lender lurking in the shadows," the complaint claims. "Helix's conduct is plainly governed by, and unlawful under, the PLA." The lawsuit looks to represent any Georgia residents who entered into a loan agreement with Helix Financial with an APR that exceeded 16 percent. [GN] INVIVYD INC: Continues to Defend Brill Securities Class Suit ------------------------------------------------------------ Invivyd Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the Brill securities class suit in the U.S. District Court for the District of Massachusetts. On January 31, 2023, a securities class action lawsuit captioned Brill v. Invivyd, Inc., et. al., Case No. 1:23-CV-10254-LTS, was filed against the Company and certain of its former officers in the U.S. District Court for the District of Massachusetts. The complaint alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder on the basis of purportedly materially false and misleading statements and omissions concerning ADG20’s effectiveness against the Omicron variant of COVID-19. The complaint seeks, among other things, unspecified damages, attorneys' fees, expert fees, and other costs. The court appointed lead plaintiffs for the action on June 28, 2023. Invivyd, Inc., f/k/a Adagio Therapeutics, Inc., is a clinical-stage biopharmaceutical company.[BN] On August 23, 2023, the lead plaintiffs filed an amended complaint that makes allegations similar to those in the original complaint and asserts the same claims against the same defendants as the original complaint. On October 19, 2023, the parties filed a joint stipulation to advise the court that the lead plaintiffs intend to seek leave to file a second amended complaint; by November 17, 2023, the parties will file a stipulation regarding the filing of the proposed second amended complaint and a briefing schedule for defendants’ response thereto. The Company believes that is has strong defenses, and it intends to vigorously defend against this action. The lawsuit is in early stages, and, at this time, no assessment can be made as to the likely outcome or whether the outcome will be material to the Company. IONQ INC: Continues to Defend Leacock Consolidated Class Suit ------------------------------------------------------------- IonQ Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the Leacock stockholder class suit in the United States District Court for the District of Maryland. In May 2022, a securities class action complaint captioned Leacock v. IonQ, Inc. et al., Case No. 8:22-cv-01306, was filed by a stockholder of the Company in the United States District Court for the District of Maryland (the "Leacock Litigation") against the Company and certain of the Company's current officers. In June 2022, a securities class action complaint captioned Fisher v. IonQ, Inc., Case No. 8:22-cv-01306-DLB (the "Fisher Litigation") was filed by a stockholder against the Company and certain of the Company's current officers ("IonQ Defendants"). Both the Leacock Litigation and Fisher Litigation, which have been consolidated into a single action, allege violations of Section 10(b) of the Exchange Act, and Rule 10b-5 promulgated thereunder, and Section 20(a) of the Exchange Act and seek damages. In September 2022, the Court appointed lead plaintiffs and counsel for lead plaintiffs, and ordered lead plaintiffs to file a consolidated amended complaint. The consolidated amended complaint was filed on November 22, 2022. As part of the consolidated amended complaint, certain members of the Company's board of directors as well as other dMY-related defendants ("Additional Defendants") have been added as defendants to the case. On February 7, 2023, the IonQ Defendants and the Additional Defendants each filed a motion to dismiss the consolidated amended complaint. On March 23, 2023, lead plaintiffs filed their omnibus opposition to the motions to dismiss. On April 26, 2023, the IonQ Defendants and the Additional Defendants each filed a reply in support of the motions to dismiss. On September 29, 2023, the District Court of Maryland issued an order dismissing plaintiffs' claims against the IonQ Defendants and the Additional Defendants with prejudice and directed the clerk to close the case. On October 26, 2023, the plaintiffs filed a motion for post-judgment relief, seeking to amend their consolidated amended complaint. IonQ's response to the plaintiffs' motion will be due on November 9, 2023 and the plaintiffs reply will be due on November 27, 2023. Both the IonQ Defendants and Additional Defendants believe that the allegations in the complaints are without merit and intend to defend the matters vigorously. IONQ, INC. operates as a computing hardware and software company. The Company develops a general-purpose trapped ion quantum computer and software to generate, optimize, and execute quantum circuits. [BN] JACK CLEVELAND: Prime Seeks Proper Wages for Tipped Employees ------------------------------------------------------------- DAWN M. PRIME, individually, and on behalf of all others similarly situated, Plaintiff v. JACK CLEVELAND CASINO LLC, Defendant, Case No. 1:23-cv-02216 (N.D. Ohio, November 15, 2023) asserts claims against the Defendant for violations of the Fair Labor Standards Act and the Ohio Prompt Pay Act. From approximately November 2014 through the present, the Plaintiff has been employed by Defendant at its casino property located at 100 Public Square, Cleveland, OH. During her employment, Plaintiff has worked as a table games dealer, which is a tipped, hourly, non-exempt position. Allegedly, the Defendant paid Plaintiff other similarly situated tipped employees a sub-minimum direct cash wage but failed to properly notify them of the tip credit requirements of the FLSA, says the suit. Jack Cleveland is a Delaware limited liability company that operates a casino property located in Cleveland, OH. [BN] The Plaintiff is represented by: Drew Legando, Esq. MERRIMAN LEGANDO WILLIAMS & KLANG LLC 1360 West 9th Street, Suite 200 Cleveland, OH 44113 Telephone: (216) 522-9000 Facsimile: (216) 522-9007 E-mail: drew@merrimanlegal.com - and - George A. Hanson, Esq. Alexander T. Ricke, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: hanson@stuevesiegel.com ricke@stuevesiegel.com - and - Ryan L. McClelland, Esq. McCLELLAND LAW FIRM, P.C. The Flagship Building 200 Westwoods Drive Liberty, MO 64068 Telephone: (816) 781-0002 Facsimile: (816) 781-1984 E-mail: ryan@mcclellandlawfirm.com JOHNSON & JOHNSON: Faces Class Action Over Cold Medications ----------------------------------------------------------- Ozten Shebahkeget, writing for CBC News, reports that a Winnipeg nurse is seeking class-action status for her lawsuit against several top drug companies, accusing them of profiting for decades by marketing non-prescription oral decongestant medications containing an active ingredient that several studies have found ineffective. Barb Eori's lawsuit claims nearly 50 years of alleged negligent misrepresentation of the drug phenylephrine as an effective pill-form nasal decongestant, breaching the Food and Drugs Act and several consumer protection and/or business practice laws. The companies named in the suit, filed with Manitoba Court of King's Bench on Nov. 10, are Johnson & Johnson, Pfizer Canada, Procter & Gamble and GlaxoSmithKline Consumer Healthcare. All four are connected with 24 over-the-counter medications containing phenylephrine as the only active ingredient with an alleged decongesting effect, the suit says -- including many commonly used cold medications like types of Benylin, NeoCitran and Tylenol. None of the allegations have been proven in court. Statements of defence have not been filed. Phenylephrine became the main ingredient in non-prescription decongestants in the U.S. after the drug pseudoephedrine was restricted in 2006 because it can be illegally processed into methamphetamine. In September, a panel of 16 external advisers to the U.S. Food and Drug Administration voted unanimously that phenylephrine is ineffective as a decongestant when taken in pill form. The FDA's expert advisers came to that conclusion after finding that only trace levels of the drug reach nasal passages to relieve congestion when taken orally. The drug appears to work better when applied nasally, whether by sprays or drops, and those products are not under review in the U.S. Companies 'made billions': suit The September decision supported the conclusions of an earlier FDA scientific review that found numerous flaws in studies from the 1960s and 1970s that supported phenylephrine's original approval. Regulators said those studies used statistical and research techniques no longer accepted by the agency. The medications currently marketed in Canada as nasal congestion treatments named in the suit are: -- Benylin Extra Strength Cold & Sinus Day. -- Benylin D For Infants. -- The Contac products Cold Nasal Congestion, Cold & Sinus Extra Strength, Cold & Sinus Hot Medicated Drink, Extra Strength Cold & Sinus Hot Medicated Drink and Super Strength Cold & Sinus Hot Medicated Drink. -- Dayquil Cold & Flu and Sinus Liquicaps products. -- The NeoCitran products Extra Strength Cold & Congestion and Extra Strength Total Cold. -- Robitussin Complete Daytime. -- Sudafed PE Extra Strength. -- Triaminic Thin Strips Cold & Cough, Nasal Congestion and Nighttime Cold & Cough products. -- Tylenol's Cold and Flu Daytime, Cold Rapid Release, Extra Strength Cold Daytime, Extra Strength Flu Daytime, Extra Strength Sinus Daytime, Regular Strength Cold Daytime, Regular Strength Sinus Daytime and Sinus Liquicaps products. -- Vicks's Custom Care Nasal Congestion and Sinex Pressure & Pain products. Eori, who has worked as a nurse for 33 years, purchased some of the drugs mentioned for herself and her family more than eight times per year under the impression that they would be sufficient to treat nasal congestion, the suit says. "The defendants have made billions of dollars selling drugs with phenylephrine and marketing them as decongestants," it alleges. "None of those products ever worked as a decongestant," the suit claims, referring to the FDA's September decision. "She would not have bought these products if she knew that they did not work when taken orally." Louis Sokolov, one of the lawyers for the suit, said some of the medications continue to be sold in Canada. "While the losses by individual consumers may be relatively modest, the scale of this case is large, given the popularity of the products and the amount of time that they were sold for," Sokolov said in a statement. Class action Over the years, several studies have questioned the benefits of phenylephrine, finding it no better than a placebo in trials. But the suit says through prominent claims displayed on packaging and public websites, the companies knowingly or recklessly led consumers, wholesalers, retailers and distributors to believe phenylephrine works as an oral decongestant. That continued after the FDA released its September decision, which was information that consumers "could not have reasonably discovered" before then, according to the suit. The companies "actively, intentionally and fraudulently concealed the fact that phenylephrine does not work as an oral decongestant" in order to increase sales, continue to charge prices reflecting its efficacy as an oral decongestant, and protect their reputations, the suit says. Eori's lawsuit requests class-action certification so people in several Canadian provinces (a subclass is identified for each province except New Brunswick and Nova Scotia) can receive either all or part of the money they paid for the alleged ineffective medications, which it says they are entitled to as damages. Representatives from Pfizer and GlaxoSmithKline told CBC News that they have not sold the mentioned products since 2019, as both of their consumer health-care businesses demerged into Haleon. Haleon did not respond to requests for comment prior to publication. Representatives for Johnson & Johnson and Procter & Gamble did not provide comment on the suit. [GN] JOHNSON & JOHNSON: Faces Wilson Class Action Lawsuit in D.N.J. -------------------------------------------------------------- A class action lawsuit has been filed against JOHNSON & JOHNSON CONSUMER, INC. et al. The case is captioned as WILSON v. JOHNSON & JOHNSON CONSUMER, INC. et al, Case No. 2:23-cv-21276-EP-ESK (D.N.J., Oct. 19, 2023). The nature of suit states Diversity-Contract Default. The case is assigned to the Hon. Judge Evelyn Padin. Johnson researches, develops, manufactures, and sells pharmaceutical products, medical devices, and consumer products.[BN] The Plaintiff Andrea Wilson On behalf of herself and all others similarly situated, is represented by: Stephen J. Fearon, Jr., Esq. SQUITIERI & FEARON, LLP 305 Broadway, 7th Floor New York, NY 10007 Telephone: (212) 421-6492 E-mail: stephen@sfclasslaw.com KENVUE INC: Autrey Sues Over Misleading IPO Registration Statement ------------------------------------------------------------------ ROBERT JAMES AUTREY, individually and on behalf of all others similarly situated, Plaintiff v. KENVUE INC., JOHNSON & JOHNSON, THIBAUT MONGON, PAUL RUH, and HEATHER HOWLETT, Defendants, Case No. 3:23-cv-22435 (D.N.J., November 16, 2023) alleges violations of the U.S. Securities Act of 1933. Plaintiff Autrey brings this securities class action on behalf of all persons and entities other than Defendants that purchased or otherwise acquired Kenvue securities pursuant and/or traceable to the registration statement and related prospectus issued in connection with Kenvue's initial public offering and suffered compensable damages caused by Defendants' violations of the law. Kenvue was previously the consumer health division of Johnson & Johnson, and the IPO of that division as a standalone company was predicated on it and its products being viable. However, the registration statement did not warn about the commercial viability of products containing phenylephrine (phenylephrine or PE), which was being investigated by the U.S. Food and Drug Administration (FDA) over the purported inefficacy of PE. Soon after the IPO, an FDA panel unanimously voted to declare oral formulations of PE ineffective for relieving nasal congestion and published its findings in a document called "Efficacy of Oral Phenylephrine as a Nasal Decongestant". In May 2023, Defendants held the IPO, offering approximately 171,812,560 shares of Kenvue common stock to the investing public at $22.00 per share. By the commencement of the class action, Kenvue's shares trade below its IPO price, causing the investors to suffer damages, says the suit. Kenvue describes itself as the "world's largest pure-play consumer health company by revenue with $15.0 billion in net sales in 2022." Its brands include Tylenol, Neutrogena, Listerine, Johnson’s, Band-Aid, Aveeno, Zyrtec and Nicorette. The company's common stock trades on the New York Stock Exchange under the ticker symbol "KVUE." [BN] The Plaintiff is represented by: Thomas H. Przybylowski, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (917) 463-1044 E-mail: tprzybylowski@pomlaw.com jalieberman@pomlaw.com ahood@pomlaw.com KENVUE INC: Faces Securities Class Action Over IPO -------------------------------------------------- Law.com reports that Kenvue, the former consumer health division of Johnson & Johnson and the proprietor of well-known brands such as Band-Aid, Benadryl and Tylenol, was named in a federal putative securities class action over the company's initial public offering. The plaintiff alleged that the registration statement for the IPO did not warn purchasers of the commercial viability of products containing phenylephrine, which is used in over-the-counter cold medicines, or that it was under investigation in connection with the product's efficacy by the U.S. Food and Drug Administration. [GN] KOS INC: Barnes and Menkowitz Sue Over False Ads of Protein Powders ------------------------------------------------------------------- CATHERINE BARNES and ELIZABETH MENKOWITZ, individually and on behalf of all others similarly situated, Plaintiffs v. KOS, INC., Defendant, Case No. 7:23-cv-10104 (S.D.N.Y., November 16, 2023) alleges claims against the Defendants for breach of warranty, breach of implied warranty of merchantability, unjust enrichment, and for violations of the New York General Business Law in connection with the deceptive marketing of protein powder products. The Defendant marketed and advertised these products as "wellness" and "superfood" products that are "nature-powered" and "organic." However, an independent laboratory testing revealed that these products contain dangerous levels of per- and polyfluoroalkyl substances (also known as "forever chemicals"), which are not safe for humans. Accordingly, Plaintiffs and Class Members suffered economic injuries as a result of purchasing these products, says the suit. Headquartered in Santa Barbara, CA, KOS is a supplement company that manufactures, markets, and distributes plant protein powders. [BN] The Plaintiffs are represented by: Joshua D. Arisohn, Esq. Philip L. Fraietta, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 1330 Avenue of the Americas, 32nd Floor New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989-9163 E-mail: jarisohn@bursor.com pfraietta@bursor.com aleslie@bursor.com LI-CYCLE HOLDINGS: Bids for Lead Plaintiff Deadline Due Jan. 8 -------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming January 8, 2024 deadline to file a lead plaintiff motion in the class action filed on behalf of investors who purchased or otherwise acquired Li-Cycle Holdings Corp. ("Li-Cycle" or the "Company") (NYSE: LICY) securities between June 14, 2022 and October 23, 2023, inclusive (the "Class Period"). If you suffered a loss on your Li-Cycle investments or would like to inquire about potentially pursuing claims to recover your loss under the federal securities laws, you can submit your contact information at www.glancylaw.com/cases/Li-Cycle-Holdings-Corp-1/. You can also contact Charles H. Linehan, of GPM at 310-201-9150, Toll-Free at 888-773-9224, or via email at shareholders@glancylaw.com to learn more about your rights. On October 23, 2023, before the market opened, Li-Cycle announced that it would halt construction work on its Rochester Hub project pending a comprehensive review of the project including construction strategy, even though "engineering and procurement for the project are largely complete." The Company disclosed it had "recently experienced escalating construction costs" and now "expects the aggregate cost for the current scope of the project to exceed its previously disclosed guidance." On this news, Li-Cycle shares declined by $1.04, or approximately 45.81%, to close at $1.23 per share on October 23, 2023, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company's Rochester Hub was experiencing escalating construction costs; (2) that these "escalating construction costs" exceeded the expected aggregate cost of the project; (3) that, as a result, the Company would be forced to temporarily halt construction and reevaluate the construction strategy for the Rochester Hub; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired Li-Cycle securities during the Class Period, you may move the Court no later than January 8, 2024 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Charles Linehan, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. Contacts: Glancy Prongay & Murray LLP, Los Angeles Charles Linehan, 310-201-9150 or 888-773-9224 shareholders@glancylaw.com www.glancylaw.com [GN] LINCARE INC: Cowan Allowed Leave to File Reply Brief in Class Suit ------------------------------------------------------------------ In the class action lawsuit captioned as Cowan v. Lincare Inc., Case No. 8:23-cv-01690 (M.D. Fla., Filed July 28, 2023), the Hon. Judge Charlene Edwards Honeywel entered an order granting the Plaintiff's unopposed motion for leave to file reply brief. The Plaintiff may file a reply in support of her motion for conditional class certification within seven days of the date of this Order. The suit alleges violation of the Fair Labor Standards Act. Lincare provides healthcare equipment. The Company offers respiratory care, infusion therapy, and medical equipment to patients.[CC] LOANDEPOT INC: Initial OK of Settlement in Class Suit Pending ------------------------------------------------------------- LoanDepot, Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the consolidated class suits preliminary settlement approval is pending in the United States District Court for the Central District of California. Beginning in September 2021, two putative class action lawsuits were filed in the United States District Court for the Central District of California asserting claims under the U.S. securities laws against the Company, certain of its directors, and certain of its officers regarding certain disclosures made in connection with the Company's IPO. The two actions were consolidated in May 2022. A consolidated amended complaint was filed in June 2022, which, in addition to challenging disclosures made in connection with the IPO, alleges that certain disclosures made after the IPO were false and/or misleading. The Company's motion to dismiss was filed on August 24, 2022. On January 24, 2023, the Court granted, in part, and denied, in part, the Company's motion to dismiss. The Company's answer to the consolidated amended complaint was filed on March 3, 2023. On June 26, 2023, the parties reached an agreement in principle to settle the action. On July 26, 2023, plaintiffs filed a motion for preliminary approval of the settlement with the Court, which is pending approval. LoanDepot Inc. is an Irvine, California-based nonbank holding company which sells mortgage and non-mortgage lending products. LOS ANGELES, CA: Legarda Sues Over Delayed Payment of OT Wages -------------------------------------------------------------- SUSAN LEGARDA, on behalf of herself, and all others similarly situated, Plaintiff v. CITY OF LOS ANGELES; and DOES 1 through 10, inclusive, Defendants, Case No. 2:23-cv-09516 (C.D. Cal., Nov. 10, 2023) is a collective action pursuant to the Fair Labor Standards Act seeking recovery for violations of the overtime provisions as a result of Defendant's actions in not compensating Plaintiff and collective action members their banked overtime compensation on or before the next payday after their separation of employment with the Defendants. The Plaintiff retired from employment with the City of Los Angeles as a "non-sworn," "civilian" employee on or about June 4, 2022. During her employment, Plaintiff "banked" significant overtime compensation for overtime hours worked. This banked overtime constitutes back overtime wages and was due and payable in her final regular paycheck after resignation or retirement, but Plaintiff did not receive the money owed in that pay period or even in the following pay period, or the pay period after that. Indeed, the time in which Defendant delayed in paying the overtime due to her was four pay periods, or seven and a half weeks after her date of retirement, says the Plaintiff. City of Los Angeles is a political subdivision of the State of California.[BN] The Plaintiff is represented by: Matthew F. Archbold, Esq. David D. Deason, Esq. DEASON & ARCHBOLD 17011 Beach Blvd., Suite 900 Huntington Beach, CA 92647 Telephone: (949) 794-9560 E-mail: matthew@yourlaborlawyers.com david@yourlaborlawyers.com LUMINAR TECHNOLOGIES: Continues to Defend Johnson Class Suit ------------------------------------------------------------ Luminar Technologies Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 8, 2023, that the Company continues to defend itself from the Johnson class suit in the United States District Court for the Middle District of Florida. On May 26, 2023, a putative class action styled Johnson v. Luminar Technologies, Inc., et al., Case No. 6:23-cv-00982-PGB-LHP, was filed in the United States District Court for the Middle District of Florida, against the Company and an employee. The suit asserts purported claims on behalf of purchasers of the Company’s securities between February 28, 2023 and March 17, 2023 under Sections 10(b) and 20(a) of the Exchange Act for allegedly misleading statements regarding the Company’s photonic integrated circuits technology. The Company disputes the allegations in the complaint and intends to vigorously defend the litigation. Luminar Technologies, Inc. is a global automotive technology company into vehicle safety and autonomy. MASS GENERAL: Sued Over Potential Hepatitis, HIV Exposure --------------------------------------------------------- Tori Whitacre Martonicz, writing for Infection Control Today, reports that Mass General Brigham and Salem Hospital face a class action lawsuit over potential hepatitis and HIV exposure to hundreds of patients. The lawsuit alleges negligence and emotional distress, with the hospital claiming a minimal infection risk. Massachusetts General Brigham and its facility, Salem Hospital, are facing a class action lawsuit after hundreds of patients were potentially exposed to hepatitis and HIV during routine care. The lawsuit, filed on behalf of endoscopy patient Melinda Cashman, who was among the up to 450 patients that may have been exposed to the viruses between June 2021 and April 2023. While there is no evidence that any infections resulted from the exposures, Cashman's lawyers alleged the health system acted negligently, leading to her suffering "extreme anxiety and emotional distress and decreased quality of life." Salem Hospital in Massachusetts sent out warning letters to 450 endoscopy patients, informing them of possible exposure to HIV and hepatitis due to incorrectly administered IVs. Following this, a class-action lawsuit has been initiated against the hospital, as well as Mass General Brigham, headquartered in Somerville, Massachusetts, and involving 10 hospital employees, as reported by USA Today on November 20. The hospital notified possibly impacted patients earlier this month after the facility was made aware earlier this year of an "isolated practice" that could have led to viral transmission. Massachusetts General Brigham stated, "Once identified, the practice was immediately corrected, and the hospital's quality and infection control teams were notified." Patients were potentially exposed after intravenous medication was administered "in a manner not consistent with our best practice." In the lawsuit filed in Suffolk County Superior Court, Cashman's attorneys seek monetary damages for the health system's negligence, claiming that their client and patients like her sustained "severe and permanent emotional distress" as a result of the incident. They argue that she and others impacted may experience disruptions to relationships, increased medical bills, and a new need for significant mental health treatment. Massachusetts General Brigham is also working with the Massachusetts Department of Public Health, which will conduct an onsite investigation into Salem's quality control practices. Potentially impacted patients can call a clinician-staffed hotline with questions and receive free screening for the viruses. Salem Hospital said in a statement that the infection risk is "extremely small," and so far, no infections have been reported. The lawsuit is seeking a jury trial. A spokesperson from Massachusetts General Brigham informed the AP that they are conducting standard tests for Hepatitis B, Hepatitis C, and HIV in response to the potential exposure incident. [GN] MDL 3076: 8 Suits Consolidated in S.D. Fla. ------------------------------------------- In "In re: FTX Cryptocurrency Exchange Collapse Litigation," MDL No. 3076, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict Litigation transfers 8 cases cases, consisting of 5 cases from the U.S. District Court for the Northern District of California; and 3 cases from the Southern District of Florida, all to the Southern District of Florida and, with the consent of that court, assigned to Honorable K. Michael Moore for coordinated or consolidated pretrial proceedings. According to the panel, the actions undoubtedly involve several non-overlapping defendants and raise defendant-specific issues. But they all rest on the same core set of facts concerning the alleged fraud that led to FTX's collapse and, in particular, revolve around the conduct of FTX's Samuel Bankman-Fried, the relationship with another Bankman-Fried company known as Alameda Research, and Alameda's Caroline Ellison. Indeed, Bankman-Fried and Ellison are defendants in seven of the eight actions on the motion, and are central figures in all of the related actions before the Panel. Moreover, all actions on the motion allege that there was a conspiracy between Bankman-Fried and other alleged FTX insiders to make misrepresentations to consumers and investors to induce them to invest in FTX products and use the FTX exchange. This common factual core warrants centralization despite the involvement of a number of different defendants. The panel further held that informal coordination is not an adequate alternative to centralization. Although the actions in the Northern District of California are in the process of being organized into three tracks, there are still seven distinct groups of non-overlapping plaintiffs' counsel pursuing claims in this litigation, including potential tag-along actions, on behalf of putative global and nationwide classes. Additionally, dozens of defendants are involved, with little overlap in their counsel. The large number of plaintiffs' and defense counsel will pose serious obstacles to informal coordination. Inefficiencies also will arise from having to coordinate these unusually complex actions involving novel cryptocurrency issues with the related criminal case in the Southern District of New York and the bankruptcy case in the District of Delaware. Moreover, informal coordination does not address the possibility of inconsistent rulings on Daubert and class certification issues. Accordingly, the Southern District of Florida is an appropriate transferee district for this litigation, the panel ruled. A significant part of FTX's conduct allegedly emanated from this district, where it had its U.S. headquarters before filing for bankruptcy. This district also provides an easily accessible location for this nationwide litigation. A full-text copy of the court's October 4, 2023 order is available at https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3076-Transfer_Order-5-23.pdf MGM RESORTS: Fails to Secure Customers' Personal Info, Bezak Says ----------------------------------------------------------------- CHARLES BEZAK, on behalf of himself and all others similarly situated v. MGM RESORTS INTERNATIONAL, Case No. 2:23-cv-01719-RFB-BNW (D. Nev., Oct. 20, 2023) sues MGM for its failure to properly secure its customers' sensitive personally identifiable information and failure to comply with industry standards to protect information systems that contain PII. According to the complaint, despite MGM's duty to safeguard the PII of its customers, MGM suffered a large scale cyberattack on or about September 11, 2023, during which cybercriminals caused widespread disruption across Defendant's properties, shutting down ATMs and slot machines, and pulling the company's website and online booking systems offline. On October 5, 2023, MGM admitted that the cybercriminals responsible for the cyberattack had also exfiltrated customer PII from Defendant's computer systems. Based on MGM's public statements to date, a wide variety of customer PII was implicated in the breach, including names, contact information, gender, dates of birth, and driver's license numbers, and, for some customers, their Social Security numbers and passport details, the suit says. The Plaintiff and Class Members are now at increased and impending risk of fraud, identity theft, and similar forms of criminal mischief, which risk may last for the rest of their lives. Consequently, the Plaintiff and Class Members must devote substantially more time, energy, and money to protect themselves, to the extent possible, from these crimes, the suit adds. The Plaintiff, on behalf of himself and all others similarly situated, alleges claims for negligence, breach of implied contract, unjust enrichment, violations of the Nevada Consumer Fraud Act, and declaratory judgment. The Plaintiff seeks damages and injunctive relief, including the adoption of reasonably sufficient practices to safeguard PII in the Defendant's custody in order to prevent incidents like the Data Breach from reoccurring in the future and for MGM to provide identity theft protective services to the Plaintiff and Class Members for their lifetime. Mr. Bezak is a citizen and resident of the State of Nevada. He received a notification email from MGM informing him that his PII in the Defendant's possession had been compromised in the Data Breach. MGM is a global gaming and entertainment company with national and international locations featuring best-in-class hotels and casinos, state-of-the-art meetings and conference spaces, incredible live and theatrical entertainment experiences, and an extensive array of restaurant, nightlife and retail offerings.[BN] The Plaintiff is represented by: Mark J. Bourassa, Esq. Jennifer A. Fornetti, Esq. Valerie S. Gray, Esq. THE BOURASSA LAW GROUP 2350 W. Charleston Blvd., Suite 100 Las Vegas, NV 89102 Telephone: (702) 851-2180 Facsimile: (702) 851-2189 E-mail: mbourassa@blgwins.com jfornetti@blgwins.com vgray@blgwins.com - and - Gary F. Lynch, Esq. Patrick D. Donathen, Esq. LYNCH CARPENTER LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 E-mail: gary@lcllp.com patrick@lcllp.com MR. COOPER: Randall Sues Over Failure to Protect Personal Info -------------------------------------------------------------- NANCY RANDALL, individually and on behalf of all others similarly situated, Plaintiff v. MR. COOPER GROUP, INC., Defendant, Case No. 3:23-cv-02507-D (N.D. Tex., Nov. 10, 2023) is a consumer class action lawsuit brought by Plaintiff, individually and on behalf of all others similarly situated, who entrusted Defendant to safeguard their personally identifiable information which includes, without limitation, names, addresses, Social Security numbers and dates of birth. According to the complaint, the Defendant experienced a data security incident purportedly discovered by Defendant on October 31, 2023, in which cybercriminals infiltrated Defendant's inadequately protected network servers and accessed highly sensitive PII that was being kept unprotected. As a result, an unauthorized party accessed certain files and folders within the Defendant's systems and may have viewed, acquired, and/or exfiltrated data containing affected parties' PII. As a result of Defendant's failure to implement and follow basic security procedures, Plaintiff's and Class Members' PII is now in the hands of criminals. The Plaintiff and Class Members now and will forever face a substantial increased risk of identity theft, says the suit. Accordingly, Plaintiff, individually and on behalf of all others similarly situated, alleges claims for negligence and negligence per se, breach of implied contract, unjust enrichment, injunctive/declaratory relief and violation of Washington Consumer Protection Act. Plaintiff Randall, who lives in Deer Park, Washington, holds a mortgage that is serviced by Defendant. MR. Cooper Group, Inc. engages in the provision of residential loan services.[BN] The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP, PLLC 3811 Turtle Creek Blvd., Suite 825 Dallas, TX 75219 Telephone: (214) 744-3000 Facsimile: (214) 744-3015 E-mail: jkendall@kendalllawgroup.com - and - Kenneth Grunfeld, Esq. KOPELOWITZ OSTROW, P.A. 65 Overhill Road Bala Cynwyd, PA 19004 Telephone: (954) 525-4100 E-mail: grunfeld@kolawyers.com NAHON & SAHAROVICH: Faces Garbarino Class Action Suit in E.D. Mo. ----------------------------------------------------------------- A class action lawsuit has been filed against Nahon, Saharovich, & Trotz, PLC. The case is captioned as Garbarino v. Nahon, Saharovich, & Trotz, PLC, Case No. 4:23-cv-01326-JMB (E.D. Mo., Oct. 20, 2023). The nature of suit states Diversity-Tort/Non-Motor Vehicle. The case is assigned to the Hon. Judge John M. Bodenhausen. Nahon is a law firm. The Firm's practice areas include products liability, workers' compensation, and medical malpractice law.[BN] The Plaintiff is represented by: Laura Grace Van Note, Esq. COLE AND VAN NOTE 555 12th Street, Suite 2100 Oakland, CA 94607 Telephone: (510) 891-9800 E-mail: lvn@colevannote.com The Defendant is represented by: Chadwick Aaron McTighe, Esq. STITES AND HARBISON PLLC 400 W. Market Street, Suite 1800 Louisville, KY 40202 Telephone: (502) 587-5400 Facsimile: (502) 587-6391 E-mail: cmctighe@stites.com NAPCO SECURITY: Continues to Defend Zornberg Securities Class Suit ------------------------------------------------------------------ NAPCO Security Technologies Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from Zornberg securities fraud class suit in the United States District Court for the Eastern District of New York. On August 18, 2023, the Company announced that it would be restating its financial statements for the quarters ending September 30, 2022, December 31, 2022 and March 31, 2023. Following this announcement, on August 29, 2023, a purported class action, brought on behalf of a putative class who acquired publicly traded NAPCO securities between November 7, 2022 and August 18, 2023, was filed in the United States District Court for the Eastern District of New York against the Company, its Chairman and Chief Executive Officer, and its Chief Financial Officer. The action, captioned Zornberg v. Napco Security Technologies, Inc. et al., asserts securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 in connection with statements made in the Company's quarterly reports and earnings releases during the period of November 7, 2022 through May 8, 2023. On October 30, 2023, five plaintiffs filed applications to be lead plaintiff in the action. The Company intends to vigorously defend against the action. NATIONAL COLLEGIATE: Sued Over TV Revenue Earned by Networks ------------------------------------------------------------ Ben Warwick, writing for CBS News, reports that former Colorado University running back Alex Fontenot has filed a class-action federal lawsuit against the NCAA and the Power Five conferences, seeking part of the television revenue earned by networks be split among college football players. Fontenot claims that television networks enjoy "ever-increasing" revenue from college football and basketball broadcasts, but that the athletes are entitled to receive a substantial portion of the revenue, given that it is brought in by the athletes' labor. Fontenot played for the Buffs between 2017 and 2022. He has filed a class action lawsuit against the NCAA, SEC, Pac-12 Conference, Big Ten, Big 12, and ACC. The suit claims networks have signed broadcast rights contracts worth billions of dollars, and that revenues have increased by 90% in recent years, with even more growth expected in the coming years. Fontenot's claim is that for many college athletes, their four to five years on campus is their only opportunity to earn compensation for their athletic skills, since only a handful will be able to pursue a professional career. The NCAA has a rule that prevents student athletes from receiving any portion of the television revenue deals. The suit aims to change that rule. The suit claims that athletes in other leagues, such as the NFL, NBA, and European soccer leagues, players receive 50-60% revenue, but that the NCAA operates "as a cartel that fixes wages (which is) a classic antitrust violation.," and that the NCAA president made nearly $3 million last year in wages. [GN] NATIONAL VISION: Continues to Defend Southfield Class Suit ---------------------------------------------------------- National Vision Holdings Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the City of Southfield General Employees securities class suit in the Northern District of Georgia. On January 27, 2023, a purported class action complaint was filed in federal court in the Northern District of Georgia against the Company and two of the Company's officers. The complaint alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 for materially false and misleading statements made between May 2021 and May 2022. The complaint seeks unspecified damages as well as equitable relief. On March 28, 2023, the original plaintiff, City of Southfield General Employees Retirement System, and a new plaintiff, International Union of Operating Engineers, Local No. 793, Members Pension Benefit Trust of Ontario, filed a lead plaintiff motion, seeking to be appointed co-lead plaintiffs. On April 3, 2023, the Company along with its named officers filed a motion to dismiss the complaint. On May 19, 2023, the court granted the lead plaintiff motion. On June 30, 2023, the plaintiffs filed an Amended Complaint, which added a claim under Section 20A of the Exchange Act and extended the alleged class period to February 28, 2023. On August 21, 2023, the Company filed a Motion to Dismiss the Amended Complaint. The plaintiffs filed their Response in Opposition to this motion on October 5, 2023. THE Company disputes these allegations and intends to defend the litigation vigorously. National Vision Holdings, Inc. is an optical retailer, Headquartered in Duluth, Georgia. [BN] NATURE'S BOUNTY: Challenges "Fish Oil" Product Class Action ----------------------------------------------------------- Nika Schoonover, writing for Courthouse News Service, reports that the vitamin and nutritional supplement company Nature's Bounty defended its "fish oil" product in the Second Circuit on Nov. 21 after consumers claimed the company misled them by advertising the product as fish oil, when it is in fact a synthetic Omega-3 product. Mashon Baines and Nancy Froning, the named plaintiffs in the class action, said the product doesn't follow the basic process in which fish oil is made: Small, oily fish are "caught, cooked, pressed, bleached and deodorized before being encapsulated and bottled." "The process begins with raw material, fish, and ends with crude fish oil," plaintiff attorney Michael Braun of Kuzyk Law wrote in his brief. Nature Bounty's supplements, on the other hand, are made in an intense chemical process where an industrial solvent is used to transform fish oil by breaking its molecular bonds, Braun argued; the resulting product is synthetic because it is a fatty acid ethyl ester, which is produced by reacting crude fish oil in a free fatty acid form with ethanol. "I don't see how a reasonable consumer wouldn't be deceived… There's nothing more important than the statement of identity," Braun said during oral arguments on Nov. 21. "Fish oil is not an Omega-3 and it's certainly not a synthetic Omega-3." The plaintiffs appealed after a judge in the U.S. District Court for the Eastern District of New York dismissed the case, concluding that the product labeling wasn't misleading because fish oil is the common name for the Nature's Bounty products. In front of the Second Circuit panel, Nature's Bounty's lawyers argued that products have to be processed in the way that maximizes their health benefits. "The product is processed in a way that maximizes the Omega-3 fatty acids, the part of the fish oil that provides the health benefits to the consumer and eliminates impurities like mercury, which is toxic to human beings," said attorney William Delgado of DTO Law. U.S. Circuit Judge Amalya L. Kearse, a Jimmy Carter appointee, took a philosophical approach to the arguments and pondered when processing a product changes it into a new product. "At what point does something become something else?" Kearse asked. Delgado pointed to the lower court's decision in response to Kearse's question, saying a reasonable consumer wouldn't make any distinction between the various ways fish oil is processed. "The reasonable consumer simply does not know enough about the fish oil processing world to have that understanding as the district court pointed out," Delgado said. Braun disagreed. "Substantial transformation is not philosophical, with all due respect, Your Honor. It is very real," he said. "Just like we have an apple: It's not apple cider, it's not apple vinegar, it's not an apple extract and it's not an apple oil." Judge Kearse was joined by U.S. Circuit Court Judges Alison J. Nathan, a Joe Biden appointee, and Guido Calabresi, a Bill Clinton appointee. Calabresi joined the proceeding over Zoom. [GN] NAVISTAR INC: Shaw Sues Over Unfair Meal Break Policy ----------------------------------------------------- Jennifer Shaw, individually and on behalf of all others similarly situated, Plaintiff v. Navistar, Inc., Defendant, Case No. 1:23-cv-16070 (N.D. Ill., November 17, 2023) arises under the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act for Navistar's failure to pay Plaintiff and other similarly-situated employees all earned minimum and overtime wages. The Plaintiff was employed by Navistar as a material handler from on or about October, 2016 to on or about September, 2023. Throughout her employment, Plaintiff was subjected to the Navistar's meal policy that automatically deducts a 30-minute meal break for each and every shift worked by Plaintiff. Navistar made this automatic 30-minute deduction from Plaintiff's pay regardless of whether they were actually permitted to take a meal break, regardless of whether they were permitted to take a full 30-minute meal break, and regardless of whether they were completely relieved from duty for thirty-minutes, says the Plaintiff. Headquartered in Lisle, IL, Navistar, among other things, produces commercial trucks, buses, engines, and other parts. [BN] The Plaintiff is represented by: Michael L. Fradin, Esq. 8401 Crawford Ave. Ste. 104 Skokie, IL 60076 Telephone: (847) 986-5889 Facsimile: (847) 673-1228 E-mail: mike@fradinlaw.com - and - James L. Simon, Esq. SIMON LAW CO. 5000 Rockside Road Liberty Plaza - Suite 520 Independence, OH 44131 Telephone: (216) 816-8696 E-mail: james@simonsayspay.com NESTLE PURINA: Kueck and Silver Sue Over Pet Food's False Labeling ------------------------------------------------------------------ FRED KUECK and JASEN SILVER, individually and on behalf of all others similarly situated, Plaintiffs v. NESTLE PURINA PETCARE COMPANY, Defendant, Case No. 4:23-cv-05962-JST (N.D. Cal., November 17, 2023) asserts claims against the Defendant for fraud, fraudulent omission or concealment, unjust enrichment, and for violations of the California's Unfair Competition Law, the Consumers Legal Remedies Act, and the California's False Advertising Law. The case arises from the Defendant's misrepresentations concerning the Purina-branded pet food, which are labeled as healthy for consumption and do not expose pets to heightened health risks. However, the product's packaging contains per-and polyfluoroalkyl substances, which are synthetic chemicals that pose undue health risks, even at low levels, says the suit. Headquartered in Saint Louis, MO, Nestle Purina Petcare Company manufactures and markets pet foods, treats and dog litter. [BN] The Plaintiffs are represented by: L. Timothy Fisher, Esq. Emily A. Horne, Esq. 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: ltfisher@bursor.com ehorne@bursor.com NEWARK GROUP: Antitrust Suit Hearing Set for July 2025 ------------------------------------------------------ Newark Group Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the U.S. District Court for the District of Delaware set trial for antitrust violation class suit in July 2025. On March 9, 2023, a purported class action complaint was filed against Cantor, BGC Holdings, and Newmark Holdings in the U.S. District Court for the District of Delaware (Civil Action No. 1:23-cv-00265). The collective action, which was filed by seven former limited partners on their own behalf and on behalf of other similarly situated limited partners, alleges a claim for breach of contract against all defendants on the basis that the defendants failed to make payments due under the relevant partnership agreements. Specifically, the plaintiffs allege that the non-compete and economic forfeiture provisions upon which the defendants relied to deny payment are unenforceable under Delaware law. The plaintiffs allege a second claim against Cantor and BGC Holdings for antitrust violations under the Sherman Antitrust Act of 1890, as amended, on the basis that the Cantor and BGC Holdings partnership agreements constitute unreasonable restraints of trade. In that regard, the plaintiffs allege that the non-compete and economic forfeiture provisions of the Cantor and BGC Holdings partnership agreements, as well as restrictive covenants included in partner separation agreements, cause anticompetitive effects in the labor market, insulate Cantor and BGC Holdings from competition, and limit innovation. The plaintiffs seek a determination that the case may be maintained as a class action, an injunction prohibiting the allegedly anticompetitive conduct, and monetary damages of at least $5,000,000. The Company believes the lawsuit has no merit. However, as with any litigation, the outcome cannot be determined with certainty. Defendants filed their answer to the consolidated complaint on March 17, 2023. The discovery phase of the case is underway. Trial is scheduled for July 2025. NORTHWELL HEALTH: Fails to Prevent Data Breach, Belov Alleges ------------------------------------------------------------- ANATOLI BELOV; IRINA BELOVA; and ERYN KAPLAN, individually and on behalf of all others similarly situated, Plaintiffs v. NORTHWELL HEALTH, INC.; and PERRY JOHNSON & ASSOCIATES, INC., Defendants, Case No. 2:23-cv-08583 (E.D.N.Y., Nov. 17, 2023) is a class action arising out of the recent targeted cyberattack and a data breach that began as early as March 27, 2023 and lasted until May 2, 2023, where third-party criminals retrieved and exfiltrated personal data from PJ&A's network resulting in unauthorized access to highly sensitive medical and personal data of Plaintiffs and the Class. The Plaintiffs allege in the complaint that the Defendants failed to properly monitor the computer network and IT systems that housed the Private Information of the Plaintiff and the Class. The Defendants failed to timely detect and report the Data Breach, and to timely notify affected consumers, including the Plaintiffs and Class Members, which made the Plaintiffs and Class Members vulnerable to identity theft without any warnings that they needed to act to prevent unauthorized use of their Private Information. As a result of the Data Breach, the Plaintiffs and Class Members face a substantial risk of imminent and certainly impending harm. The Plaintiffs and Class Members have and will continue to suffer injuries associated with this risk, including but not limited to a loss of time, mitigation expenses and anxiety over the misuse of their Private Information, says the suit. Northwell Health, Inc. operates as a non-profit organization. The Organization offers rehabilitation and nursing facilities, ambulatory and urgent care centers, hospice care networks, and home health services. [BN] The Plaintiffs are represented by: James J. Bilsborrow, Esq. WEITZ & LUXENBERG, PC 700 Broadway New York, NY 10003 Telephone: (212) 558-5500 Email: jbilsborrow@weitzlux.com - and - David S. Almeida, Esq. Britany a. Kabakov, Esq. ALMEIDA LAW GROUP LLC 849 W. Webster Avenue Chicago, IL 60614 Telephone: (312) 576-3024 Email: david@almeidalawgroup.com britany@almeidalawgroup.com NUTANIX INC: Judge Approves Shareholder Class Action Settlement --------------------------------------------------------------- Ben Miller, writing for Bloomberg Law reports that Nutanix Inc. and a shareholder got a federal judge's approval for the settlement and dismissal of a class action alleging that the cloud computing company had incurred excessive costs by paying full price for third-party evaluation software due to deficient internal controls. Judge Yvonne Gonzalez Rogers allowed plaintiff Alexander Gorsline to drop his suit against Nutanix on Nov. 20 ending seven months of litigation the same day the parties held their settlement status conference, according to the order filed in US District Court for the Northern District of California. [GN] OPENAI INC: Faces Copyright Infringement Class Action in New York ----------------------------------------------------------------- Reed Albergotti, writing for Semafor, reports that a new class-action lawsuit accuses OpenAI and partner Microsoft of infringing on works by non-fiction authors, the latest in a string of legal actions against artificial intelligence companies. It comes amid turmoil at OpenAI, where most of the startup's nearly 800 employees have threatened to quit if ousted CEO Sam Altman doesn't return to his role. He was fired by OpenAI's board on Nov. 17 and announced on Nov. 19 that he would join Microsoft, whose CEO Satya Nadella told CNBC on Nov. 20 he is looking to partner with Altman in whatever form that takes. The lawsuit against the two companies, filed on Nov. 21 in federal court in the Southern District of New York, makes similar arguments to other allegations that AI companies used copyrighted works in massive training sets employed to build tools like ChatGPT. The lead plaintiff in the suit, Julian Sancton, is the author of , which he spent five years and tens of thousands of dollars writing, according to the lawsuit, which hasn't previously been reported. "The commercial success of the ChatGPT products for OpenAI and Microsoft comes at the expense of non-fiction authors who haven't seen a penny from either defendant," said Susman Godfrey partner Justin Nelson, the lead attorney representing Sancton. OpenAI doesn't disclose what data it used to train GPT-4, its most advanced large language model, but lawyers for Sancton say ChatGPT divulged the secret. "In the early days after its release, however, ChatGPT, in response to an inquiry, confirmed: "Yes, Julian Sancton's book 'Madhouse at the End of the Earth' is included in my training data," the lawsuit reads. One way that lawsuit is different from others is that it ropes in Microsoft, which did not decide what training data to use in OpenAI's models or even design the models itself. Rather, Microsoft provided the infrastructure for training and running them. The models are now core to Microsoft's business, which has given it a boost in stock price, the suit points out. "Microsoft would have known that OpenAI's training data was scraped indiscriminately from the internet and included a massive quantity of pirated and copyrighted material, including a trove of copyrighted nonfiction works," the suit alleges. The companies didn't immediately respond to requests for comment. Stability AI's vice president of audio, Ed Newton-Rex, resigned in protest over the company's stance on copyrighted work (It was ok with using them.) Famous fiction authors like Jonathan Franzen and John Grisham sued OpenAI earlier this year for copyright infringement. Sarah Silverman and other authors are also suing Meta on the same grounds. Several other lawsuits are making their way through the courts. AI companies have argued that using copyrighted works in training data constitutes "fair use" of the material. In essence, computers are "learning" from the copyrighted works, just like humans learn when they read. Sancton's attorneys argue it's not the same thing. "While OpenAI's anthropomorphizing of its models is up for debate, at a minimum, humans who learn from books buy them, or borrow them from libraries that buy them, providing at least some measure of compensation to authors and creators," the lawsuit said. It alleges that OpenAI deliberately conceals its training sets to hide the copyrighted works it uses. "Another reason to keep its training data and development of GPT-3, GPT-3.5, and GPT-4 secret: To keep rightsholders like Plaintiff and members of the Class in the dark about whether their works were being infringed and used to train OpenAI's models," the lawsuit argues. Reed's view AI copyright law will surely make its way to the U.S. Supreme Court. The fundamental question: If an AI model is not actually reproducing a protected work, then is the fact that it learned from it a technical violation of copyright? If AI companies pay for copyrighted works -- say, buying a book -- can they legally use it to train an AI model, or do they need to license the material from the owner of the copyright? There's also a purely moral question: Even if it turns out the AI companies are right, and training AI models with copyrighted material constitutes fair use, should they? This is a very thorny one. I am the author of a non-fiction book that is almost surely in the training sets for these models and I don't really have a problem with it. I don't think large language models will ever really pose competition for books. A book is a lot more than a bunch of words. What I find upsetting is that there are places people can pirate the book online and read it for free. Nobody seems outraged by that, though. I also think that we have all contributed to this technology in one way or another; it's trained on basically the entire internet. Even if AI companies compensated me for the use of the book, what would it be worth? A few cents? I do, however, think that if AI companies use my book in their training data, they should at least be required to buy a copy. Otherwise, that's just plain old pirating. The third point is how technology is moving beyond the copyright issue already. As we've reported, the newest small models in generative AI are trained using synthetic data created by the larger models. And companies like OpenAI are hiring other companies like Scale AI to create content from scratch, specifically to train new AI models. At some point, there may be a proliferation of generative AI models that contain no problematic material at all. Room for Disagreement Ed Newton-Rex argues in this article that what AI companies are doing is wrong: "Setting aside the fair use argument for a moment -- since 'fair use' wasn't designed with generative AI in mind -- training generative AI models in this way is, to me, wrong. Companies worth billions of dollars are, without permission, training generative AI models on creators' works, which are then being used to create new content that in many cases can compete with the original works. I don't see how this can be acceptable in a society that has set up the economics of the creative arts such that creators rely on copyright." [GN] PANAMERICAN CONSULTING: Rady Fraud Suit Removed to N.D. Ill. ------------------------------------------------------------ The class action lawsuit captioned as Rady v. Panamerican Consulting, LLC, Case No. 2023CH08174, was removed from the Circuit Court of Cook County, Illinois to United States District Court for the Northern District of Illinois on October 20, 2023. The Northern District of Illinois Court Clerk assigned Case No. 1:23-cv-15170 to the proceeding. The suit alleges fraud related violations. The case is assigned to the Hon. Judge Franklin U. Valderrama. Panamerican is an independent financial services company, specializing in verification of unsecured debts.[BN] The Plaintiff is represented by: Bryan Paul Thompson, Esq. CHICAGO CONSUMER LAW CENTER, P.C. 650 Warrenville Road, Suite 100 Lisle, IL 60532 Telephone: (312) 858-3239 E-mail: bryan.thompson@cclc-law.com - and - Seth Barrow Mccormick, Esq. GREAT LAKES CONSUMER LAW FIRM, LLC 73 W. Monroe St., Suite 100 Chicago, IL 60603 Telephone: (312) 971-6787 E-mail: seth@glclf.com The Defendant is represented by: David F Standa, Esq. GREENSPOON MARDER, PA 227 West Monroe St., Ste 3950 Chicago, IL 60606 Telephone: (312) 860-3207 E-mail: david.standa@gmlaw.com PDD HOLDINGS: Faces Class Action Over Unprotected Customer Data --------------------------------------------------------------- Abraham Jewett, writing for Top Class Actions, reports that online marketplace Temu faced a trio of complaints recently involving claims the company failed to protect and stole customer data and pilfered copyrighted photos from competitor Shein. Temu is a digital marketplace headquartered in Boston, Massachusetts, that is owned by the Irish-based Chinese company PDD Holdings. Temu fails to protect personal, financial user information, class action says A consumer filed a class action lawsuit against Temu in September over claims the online marketplace uses relaxed security policies that allegedly enable the widespread and systematic theft of its customers' personally identifiable and financial information. Temu is accused of failing to comply with "reasonable security standards" that, if put in place, would be able to adequately protect the data of its customers. The consumer behind the class action lawsuit argues Temu allegedly declines to put such policies in place to gain "short-term and fleeting benefits," such as saving on compliance costs. "Defendant's actions did not come close to meeting the standards of commercially reasonable steps that should be taken to protect customers' personal identifying information," the Temu class action lawsuit states. The plaintiff wants to represent a nationwide class and a consumer fraud multistate class of individuals who registered for a Temu account at any time since July 2022. Temu lawsuit claims app collects more user data than necessary A group of consumers filed a class action lawsuit against Temu earlier this month over claims it collects more data from its users than is necessary and in a greater amount than is disclosed. The group argues experts determined Temu built tools into the shopping app that "execute virulent and dangerous malware and spyware activities on user devices." The consumers claim experts found Temu put the tools in "purposefully and intentionally," and, in an alleged effort to continue stealing data, have "gone to great lengths" to conceal these alleged privacy violations from their users. "According to these experts, Temu collects user data beyond what is necessary for an online shopping app, including biometric information and data from users of the app," the Temu class action states. The plaintiffs want to represent a nationwide class of consumers who used the Temu platform, along with subclasses of consumers from Illinois, California and Virginia. Temu disputes rival Shein's claims it used copyrighted images as promotional photos Shein filed a lawsuit against Temu in September over claims it improperly used thousands of its copyrighted images as promotional photos on the Temu website. Temu responded to the claims last month, arguing it was unaware Shein copyrighted the images in dispute while acknowledging some website images were "identical" to Shein's. However, Temu argued it does not know the copyright for the estimated 30 million images it uses on its website that are spread across about 4 million product listings. Shein also accused Temu of altering the copyrighted images to conceal that they were allegedly improperly used and sent a letter to the company in June that included examples of more than 8,000 URLs of allegedly copyrighted photos. Temu claims any alterations were done by third-party sellers and not the company itself and that it was not given an adequate amount of time to review all of the contents of the letter. Shein secured an emergency temporary restraining order against Temu in July over its copyright claims, with the latter arguing last month the decision was only a "temporary measure" and not proof it was guilty of infringement. Temu filed its own lawsuit against Shein in July over claims the latter tried to bully it out of the online marketplace through an alleged campaign of intimidation, threats and false assertions of infringement. [GN] PROGRESS SOFTWARE: Fails to Secure Consumers' Info, Dickmeyer Says ------------------------------------------------------------------ CARIN DICKMEYER and JOEL BONNETT, individually and on behalf of all other similarly situated, v. PROGRESS SOFTWARE CORPORATION, Case No. 1:23-cv-12450-ADB (D. Mass., Oct. 20, 2023) is a class action brought by individuals, including consumers, whose personal data was accessed and exposed by an unauthorized third-party in a data breach concerning Progress's MOVEit Transfer and MOVEit Cloud software, which Progress first learned of on May 28, 2023, reported to customers on May 30, 2023, and reported to the SEC and its investors on June 5, 2023. Despite knowing of the risk that cybercriminals posed to consumers' Personal Information including Personally Identifiable Information ("PII") and Protected Health Information ("PHI"), Progress failed to deploy adequate cybersecurity measures to prevent CL0P, a Russian cybercriminal gang from gaining unauthorized access to consumers' Personal Information and exposing it during the Data Breach, the Plaintiff asserts. Progress's Data Breach has caused Plaintiff Dickmeyer to experience increased anxiety and to suffer emotional distress due to the Plaintiff's loss of privacy and due to increased risk of criminals exploiting the Plaintiff's Personal Information to commit additional crimes including fraud and identity theft against the Plaintiff, the suit claims. As a result of Progress's alleged Data Breach, Plaintiff Bonnett was harmed by having had to expend money and time obtaining credit monitoring and identity protection services when he was unable to access the services offered by Colorado Department of Health Care Policy and Financing. Plaintiff Bonnett has spent time checking whether his various personal accounts have been stolen and plans to change his bank account information. Progress is a provider of "products to develop, deploy and manage high-impact business applications."[BN] The Plaintiffs are represented by: Donna M. Evans, Esq. Douglas McNamara, Esq. Blake R. Miller, Esq. Claire Torchiana, Esq. COHEN MILSTEIN SELLERS AND TOLL, PLLC 769 Centre Street, Suite 207 Boston, MA 02130 Telephone: (617) 858-1990 E-mail: devans@cohenmilstein.com dmcnamara@cohenmilstein.com brmiller@cohenmilstein.com ctorchiana@cohenmilstein.com - and - Amy Keller, Esq. James Ulwick, Esq. Corban Rhodes, Esq. DICELLO LEVITT LLP Ten North Dearborn Street, Sixth Floor Chicago, IL 60610 Telephone: (312) 214-7900 E-mail: akeller@dicellolevitt.com julwick@dicellolevitt.com crhodes@dicellolevitt.com PROGRESSIVE GULF: Vantree Bid to Seal Docs Tossed ------------------------------------------------- In the class action lawsuit captioned as BETTY VANTREE and CYNTHIA PLAINTIFFS RAYBORN, individually and on behalf of all others similarly situated, V. PROGRESSIVE GULF INSURANCE COMPANY; and MOUNTAIN LAUREL ASSURANCE COMPANY, Ohio corporations, Case No. 4:22-cv-00070-DMB-JMV (N.D. Miss.), the Hon. Judge Debra M. Brown entered an order denying the Plaintiffs' motion to seal and the Defendants' motion to seal. On August 8, 2022, Betty Vantree and Cynthia Rayborn, individually and on behalf of all others similarly situated, filed an "Amended Class Action Complaint" in the United States District Court for the Northern District of Mississippi against Progressive Gulf Insurance Company and Mountain Laurel Assurance Company. The defendants answered the complaint on August 31, 2022. On April 3, 2023, United States Magistrate Judge Jane M. Virden, based on the defendants' unopposed motion and proposed order signed by all parties, entered a "Stipulated Confidentiality Order." A copy of the Court's order dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/3QOwRaC at no extra charge.[CC] PUBLIX SUPER: Faces Class Action Over Unpaid Overtime Wages ----------------------------------------------------------- Nick Hill, writing for WDEF, reports that a class action lawsuit has been filed against the supermarket chain Publix. Approximately 18 former managers at Publix have joined together to allege that they were not paid for overtime. The lawsuit was filed in U.S. District Court in Florida where the chain is headquartered by attorneys Gregg Shavitz and Ryan Morgan of Florida. The plaintiffs in the lawsuit are from Florida, Georgia and Tennessee. One of the plaintiffs listed in the lawsuit, Christopher Roberts, worked for Publix locations as an assistant department manager here in Chattanooga and in Cleveland. The act referenced in the lawsuit against Publix is the Fair Labor Standards Act (FLSA) of 1938. It sets forward a series of guidelines that employers must follow in their treatment of employees. Under the FLSA, the plaintiffs allege that they worked off-the-clock both inside and outside of their stories. They claimed that they helped with various tasks related to keeping the store running both before and after their shifts. One issue brought forward is that the managers testify that while they were clocked out for meal breaks, they were still burdened with work tasks. This extended according to the lawsuit when they were at home as well doing work tasks during off hours. The lawsuit charges that Publix required managers to work in this manner to control labor costs. Under FLSA guidelines, employees who work over 40 hours a week are required to be paid at least a time and a half for overtime pay. These former managers estimated that they worked three to five hours a week of unpaid overtime. The lawsuit seeks to recoup what these plaintiffs believe is lost pay and other damages. One of the lawyers in this case, Gregg Shavitz who was unavailable for an interview but did send a statement, said quote, "Every year, according to the Economic Policy Institute, American workers lose as much as $50 billion per year to wage theft. Our clients have experienced something many workers face as we all become reachable on our phones at any time of day or night -- that companies expect employees to be in constant communication but fail to track this time worked. It's unacceptable to force hourly workers to work outside of their shifts and to not pay workers for their time. We believe that the assistant department managers' allegations only scratch the surface of Publix off-the-clock conditions. We will work to uncover all the evidence about the extent of these alleged harmful practices in order to hold Publix accountable and recover every possible dollar of these workers' rightfully earned money." News 12 did reach out to Publix for comment on this story. [GN] QUICK MART FOOD: Fails to Pay Proper Wages, Goksu Alleges --------------------------------------------------------- ILHAN GOKSU, individually and on behalf of all others similarly situated, Plaintiff v. QUICK MART FOOD STORE EK INC. d/b/a "Quick Mart Food & Blimpie"; EYYUP ARGA; and KADIR KURT, Defendants, Case No. 2:23-cv-22471 (D.N.J., Nov. 17, 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 Goksu was employed by the Defendants as a manager. QUICK MART FOOD STORE EK INC. d/b/a "Quick Mart Food & Blimpie" owns and operates as a convenience store, grocery, and sandwich shop. [BN] The Plaintiff is represented by: Clifford Tucker, Esq. SACCO & FILLAS LLP 3119 Newtown Ave, Seventh Floor, Astoria, NY 11102 Telephone: (718) 269-2243 Email: CTucker@SaccoFillas.com RE/MAX HOLDINGS: Class Action Settlement Granted Preliminary OK --------------------------------------------------------------- RE/MAX(R), a real estate company, on Nov. 20 announced the Missouri court granted preliminary approval of its settlement in the class action lawsuits known as Burnett, Moehrl and Nosalek, and any similar claims on a nationwide basis. To address the pending litigation and mitigate the uncertainties and costs associated with prolonged legal proceedings, RE/MAX, LLC entered into a settlement agreement with plaintiffs on October 5, 2023. RE/MAX, LLC agreed to pay $55 million and make changes to business practices as part of the settlement. The proposed settlement would resolve on a nationwide basis all claims asserted against RE/MAX, LLC and includes releases for all U.S. RE/MAX independent regions, franchisees and agents. RE/MAX, LLC continues to deny the allegations made in the complaints and does not acknowledge any wrongdoing. Under the terms of the proposed settlement, RE/MAX, LLC has deposited 25% of the agreed-upon $55 million into a settlement fund; 25% is due within 10 business days after preliminary approval; and the remainder within 10 business days after final court approval. "We are pleased with the court's decision to grant preliminary approval of the settlement," said Nick Bailey, President and CEO of RE/MAX, LLC. "This development signifies progress in our ongoing efforts and commitment to a resolution -- it's a positive step forward in bringing these cases closer to the finish line." If the settlement is granted final approval by the Missouri court, all U.S. RE/MAX affiliates, including franchisees and agents, will be protected from claims connected to the lawsuits and any similar claims. At this time, final approval is expected sometime next year. The business practice terms of the settlement must be implemented within six months of the final effective date. Apart from the $55 million payment, RE/MAX, LLC does not expect the terms of the settlement agreement to have a material impact on its results of operations and cash flows. About the RE/MAX Network As one of the leading global real estate franchisors, RE/MAX, LLC is a subsidiary of RE/MAX Holdings (NYSE: RMAX) with more than 140,000 agents in almost 9,000 offices and a presence in more than 110 countries and territories. Nobody in the world sells more real estate than RE/MAX, as measured by residential transaction sides. RE/MAX was founded in 1973 by Dave and Gail Liniger, with an innovative, entrepreneurial culture affording its agents and franchisees the flexibility to operate their businesses with great independence. RE/MAX agents have lived, worked and served in their local communities for decades, raising millions of dollars every year for Children's Miracle Network Hospitals(R) and other charities. To learn more about RE/MAX, to search home listings or find an agent in your community, please visit www.remax.com. For the latest news about RE/MAX, please visit news.remax.com. This is not an offer of a franchise. Any franchise offer is made only after a Franchise Disclosure Document has been provided. [GN] RON'S ORGANICS: Fails to Pay Proper Wages, Salas and Saavedra Claim ------------------------------------------------------------------- GUILLERMO MEDRANO SALAS, IVAN NERI SAAVEDRA, individually and on behalf of all others similarly situated, Plaintiffs, v. RON'S ORGANICS, INC., Defendant, Case No. 3:23-cv-02563-X (N.D. Tex., November 18, 2023) seeks redress for Defendant's willful violations of the Fair Labor Standards Act by failing to pay employees wages based upon overtime and minimum wage requirements. Plaintiff Medrano worked for Defendants as a landscaping laborer from November 2008 until December 30, 2022. Many or all laborers, including Plaintiffs, were required to work more than 40 hours in a week. However, the Defendants did not pay Plaintiffs not less than one and a half times the regular rate at which they were employed during the hours worked in excess of 40 hours per week. Among other things, the Defendants also failed to to keep proper time records tracking Plaintiffs' time worked, says the suit. Ron's Organics operates a landscaping business in the state of Texas.[BN] The Plaintiffs are represented by: James M. Dore, Esq. JUSTICIA LABORAL LLC 6232 N. Pulaski Road, Suite 300 Chicago, IL 60646 Telephone: (773) 415-4898 E-mail: jdore@justicialaboral.com SALT LIFE: Faces Mackey Suit Over Illegal Telemarketing Calls ------------------------------------------------------------- HUNTER MACKEY, individually and on behalf of all others similarly situated, Plaintiff v. SALT LIFE, LLC, Defendant, Case No. CACE-23-021350 (Fla. Cir., 17th Judicial, Broward Cty., November 19, 2023) seeks for injunctive and declaratory relief and damages for violations of the Caller ID Rules of the Florida Telephone Solicitation Act. Allegedly, the Defendant made text message sales calls that promoted Salt Life and violated the Caller ID Rules when it transmitted to the recipients' caller identification services a telephone number that was not capable of receiving telephone calls and that did not connect the recipient to either the caller or the Defendant. Salt Life is a foreign limited liability company, which sells various goods to persons throughout Florida. [BN] The Plaintiff is represented by: Joshua A. Glickman, Esq. Shawn A. Heller, Esq. SOCIAL JUSTICE LAW COLLECTIVE, PL 974 Howard Ave Dunedin, FL 34 Telephone: (202) 709-5744 Facsimile: (866) 893-0416 E-mail: shawn@sjlawcollective.com josh@sjlawcollective.com SHIFT4 PAYMENTS: Baear, O'Meara Suits Consolidation Bid Pending --------------------------------------------------------------- Shift4 Payments Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the O'Meara Action and the Baer Action consolidation motion is pending in the United States District Court for the Eastern District of Pennsylvania. On August 18, 2023, a shareholder filed a putative securities class action against the Company and certain of its current and former executive officers in the United States District Court for the Eastern District of Pennsylvania, captioned O'Meara v. Shift4 Payments, Inc., et al., Case No. 5:23-cv-03206-JFL (the "O'Meara Action"). Plaintiff O'Meara seeks to represent purchasers of the Company's securities between November 10, 2021 and April 18, 2023. On October 13, 2023, another shareholder represented by the same law firm as O'Meara filed a similar complaint against the same defendants in the same court, captioned Baer v. Shift4 Payments, Inc., et al., Case No. 5:23-cv-03969-JFL (the "Baer Action"). Plaintiff Baer seeks to represent purchasers of the Company's securities between June 5, 2020, and April 18, 2023. Both complaints allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, based on allegedly false and misleading statements about the Company's business, operations, and compliance policies, and both seek unspecified damages. On October 19, 2023, Plaintiff Baer filed a motion to consolidate the O'Meara Action and the Baer Action and appoint Baer as lead plaintiff. Once a lead plaintiff is appointed, a consolidated amended complaint will be filed, which the Company expects to move to dismiss on behalf of all defendants. The Company disputes the allegations in the above-referenced matters, intends to defend the matters vigorously, and believes that the claims are without merit. SHIFT4 PAYMENTS, INC. provides payment processing solutions. The Company offers software for transaction and money transfer activities. [BN] SIMILASAN CORP: Sells Unsafe Eye Drops, Ortega Suit Says -------------------------------------------------------- MARIO ORTEGA, and KAMILLE FAYE VINLUAN-JULARBAL, each individually and on behalf of all others similarly situated, Plaintiffs v. SIMILASAN CORPORATION, Defendant, Case No. 1:23-cv-02990 (D. Colo., Nov. 10, 2023) is a class action against the Defendant for allegedly selling defective eye drops in violation of California's Unfair Competition Law, the Legal Remedies Act, and the False Advertising Law. According to the complaint, Defendant's eye drops are dangerously defective, for several reasons. First, they are unapproved drugs, and thus illegal to sell. Second, they are labeled "sterile," when in fact they are not manufactured using processes sufficiently designed to prevent contamination. Third, they contain silver sulfate, a substance that can decrease night vision and cause irreversible eye and skin discoloration. The products, however, fail to warn of any of these risks, says the suit. Plaintiffs Ortega and Vinluan-Jularbal purchased and used Defendant's eye drops that are purported to relieve symptoms for a variety of eye ailments, such as pink eye, dry eye, and allergies. Had they known the truth, they would not have purchased the eye drops. And if other consumers knew the truth, they would immediately stop using the eye drops, the suit asserts. Similasan Corporation is a manufacturer of over-the-counter health and beauty products.[BN] The Plaintiffs are represented by: Jonas Jacobson, Esq. DOVEL & LUNER, LLP 201 Santa Monica Blvd., Suite 600 Santa Monica, CA 90401 Telephone: (310) 656-7066 Facsimile: (310) 656-7069 E-mail: jonas@dovel.com SONY CORP: Must Face GBP5-Bil. Playstation Class Action in UK ------------------------------------------------------------- Rob Harkavy, writing for CDR, reports that the UK's Competition Appeal Tribunal has greenlit a GBP 5 billion claim against PlayStation. Class representative Alex Neill, who first in the Competition Appeal Tribunal (CAT) in August 2022 alleging that PlayStation has abused its market dominance by overcharging users for games and add-ons purchased via the PlayStation Store, managed to convince the CAT not to side with PlayStation parent Sony. The company had tried to stymie the claim on two grounds -- the merits of the case itself, and over the claim's funding arrangements. This is the first claim of its kind to be fully certified post-. The PACCAR ruling caused a stir when it confirmed that funding arrangements with a percentage-based fee cannot be used to fund opt-out collective proceedings. This claim is funded by Woodsford. Alex Neill, who is representing a class of almost 9 million people, commented: "This is the first step in ensuring consumers get back what they're owed as a result of Sony breaking the law. PlayStation gamers' loyalty has been taken advantage of by Sony who have been charging them excessive prices for years." Neill added: "It is significant that the competition court has recognised Sony must explain its actions by ordering them to trial. With this action we are seeking to put a stop to this unlawful conduct and ensure customers are compensated." Neill's legal representative Natasha Pearman of Milberg London said: "We are delighted to have achieved certification for our claim against Sony. Companies who break the law must be held to account and we are determined to ensure this happens and consumers get access to justice. We hope that the certification of our claim provides some clarity as to acceptable litigation funding agreements in the post-PACCAR environment for opt-out claims." Flying the flag for litigation funding, Pearman continued: "Litigation funding is integral to the collective action regime. When a company as large as Sony breaks the rules consumers often have no idea it is even happening, let alone have the resources to take them on -- litigation funding helps to level the playing field. That is why group legal claims like ours are so important, they provide a route to accessing justice that simply doesn't exist otherwise." Woodsford's Chief Investment Officer Charlie Morris added in a statement: "Woodsford is proud to be funding Alex Neill and delighted that this is the first collective action where the funding arrangements have been approved following the seminal Supreme Court decision in PACCAR. Sony sought to advance numerous unmeritorious and opportunistic arguments, all of which unsurprisingly failed. Defendants to these actions would be better advised to resolve meritorious actions in a speedy and cost-efficient way rather than spending millions on spurious and ultimately unsuccessful satellite disputes aimed solely at stymying access to justice." [GN] SPIRIT AIRLINES: Jan. 10 Settlement Claims Filing Deadline Set -------------------------------------------------------------- TheFreebieGuy on Nov. 20 disclosed that Class Member received settlement if one booked a flight on Spirit Airlines through Expedia, Kiwi, CheapOair, CheapTickets, Travelocity, or Bookit during a certain time period. Who's Eligible: People who booked a flight on Spirit Airlines through Expedia, Kiwi, CheapOair, CheapTickets, Travelocity, or Bookit between August 31, 2011 and May 3, 2017, and paid a carry-on bag fee; were a resident of the United States or a U.S. Territory at the time you booked your flight; and that flight was your first flight on Spirit after August 1, 2010, you are a member of the class and will be entitled to money. Award Amount -- You will receive up to 75% of the carry-on bag fee you paid for your first flight on Spirit during the relevant period. Proof of Purchase - Not Required. Claim Deadline - January 10th, 2024. [GN] STATE FARM: Locke Lord Attorneys Discuss GIPA Class Action ---------------------------------------------------------- Brian Hays, Esq., and Michael McMorrow, Esq., of Locke Lord LLP, in an article for JDSupra, report that a recent slate of class action lawsuits seeks to expand the scope of the Illinois Genetic Information Privacy Act's (GIPA) prohibition against considering family medical history to life insurance companies. See e.g. Reynolds v. State Farm Life Ins. Co., No. 2023 L 465 (Cir. Ct. Kane Co., Oct. 31, 2023). Although GIPA, 410 ILCS Sec. 513/1 et seq., was passed in 1998 and has been amended a number of times, the plaintiff's bar has only recently seized upon the statutory penalties provided for in the private right of action. At least 30 class action lawsuits have been filed in 2023. Plaintiffs have turned their sights on the life insurance industry in the last three weeks with class action complaints. Fortunately, plaintiffs' new theory is not supported by the plain language of the Act. GIPA restricts the use of genetic information Section 20 of GIPA addresses the use of genetic testing information for insurance purposes. Section 20(a) prohibits an insurer from seeking information derived from genetic testing for use in connection with a policy of accident and health insurance. Section 20(b) prohibits insurers from using or disclosing protected health information that is genetic information for underwriting purposes. Underwriting purposes includes: (1) rules for, or determination of, eligibility (including enrollment and continued eligibility) for, or determination of, benefits under the plan, coverage, or policy (including changes in deductibles or other cost-sharing mechanisms in return for activities such as completing a health risk assessment or participating in a wellness program); (2) the computation of premium or contribution amounts under the plan, coverage, or policy (including discounts, rebates, payments in kind, or other premium differential mechanisms in return for activities, such as completing a health risk assessment or participating in a wellness program); (3) the application of any pre-existing condition exclusion under the plan, coverage, or policy; and (4) other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits. Section 20(c) allows an insurer to consider the results of genetic testing in connection with a policy of accident and health insurance if the individual voluntarily submits the results and the results are favorable to the individual. Section 20(d) prohibits an insurer from releasing information derived from genetic testing to a third party, except as specified in the Act. Section 20(e) prohibits companies that provide direct-to-consumer commercial genetic testing from sharing any genetic test information or other personally identifiable information about a consumer with any health or life insurance company without written consent from the consumer. GIPA adopts the definition of "protected health information," and "genetic information" from HIPAA regulations. 410 ILCS § 513/10 adopting 45 C.F.R. Sec. 160.103. GIPA creates a private right of action for "any person aggrieved by a violation" of the Act. 410 ILCS Sec. 513/40(a). A prevailing party may recover for each violation up to $2,500 or actual damages for negligent violations and up to $15,000 or actual damages for intentional or reckless violations. GIPA also allows for the recovering of attorney's fees and costs, including expert witness fees. Class action litigation against life insurers based on family medical history questions The spate of recent filings follows in the wake of an August 3, 2023, decision certifying a class against Sequencing, LLC for disclosing customers' genetic information to unknown third-party developers in alleged violation of Sections 30(a)(2) and 35 of GIPA without first obtaining those customers' consent. Melvin v. Sequencing, LLC, 344 F.R.D. 231, 233 (N.D. Ill. 2023). In the recently filed class action lawsuits against the life insurance companies, however, the plaintiffs are instead challenging life insurance application questions asking consumers to disclose their family medical history (the Complaints). The Complaints argue that Section 20(b) applies to all insurers and prohibits them from using "protected health information that is genetic information." "Genetic information" is defined in the HIPAA regulations to include both information about actual genetic tests, and "the manifestation of a disease or disorder in family members of an individual." 45 C.F.R. Sec. 160.103. The definition excludes information about the age or sex of an individual. Id. The Complaints allege that the life insurers used the family medical history questions to underwrite risks, determine eligibility, and set premiums in violation of Section 20(b). The Complaints do not specify any genetic information sought in the exams. Instead, they rely exclusively on the term "manifestation of a disease or disorder in family members," construing it broadly to encompass any illness, including questions regarding family histories of high blood pressure, cancer, diabetes, and heart disease. Courts interpreting this phrase under GIPA's federal counterpart -- the Genetic Information Non-Discrimination Act of 2008, 42 U.S.C.A. Sec. 2000ff, et seq. -- have limited the scope of the term to medical conditions that have a genetic predisposition or a genetic basis, excluding such issues as Covid-19, ADHD, suicide, anxiety and depression. See, e.g., Anderson v. Honeywell Int'l, 2023 WL 6892023, at *2 (D. Minn. Sept. 11, 2023); Baum v. Dunmire Prop. Mgmt., Inc., 2022 WL 889097, at *7 (D. Colo. Mar. 25, 2022); Tedesco v. Pearson Educ., Inc., 2021 WL 2291148, at *6 (E.D. La. June 4, 2021); Milner-Koonce v. Albany City Sch. Dist., 2022 WL 7351196, at *4 (N.D.N.Y. Oct. 13, 2022) (collecting authorities). Under federal law, these courts have stated that family disease history is only considered genetic information if it is used to determine the likelihood of disease in another individual, and is not considered genetic information if it is taken into account only with respect to the individual in whom such disease or disorder occurs and not as genetic information with respect to any other individual. The Complaints' attempt to apply Section 20(b) to the insurance suffers from a tragic flaw. The analysis of the defined term "protected health information" in GIPA in the class action complaints stops two steps short in describing the type of information that is being protected. Section 20(b) only applies to accident and health insurance Although it takes a few steps tracking back the various definitions, under the plain language of the Act, Section 20(b) does not apply to life insurers. Section 20(b) is limited to health insurers and health plans. Section 20(b) provides in relevant part: (b) An insurer shall not use or disclose protected health information that is genetic information for underwriting purposes. For purposes of this Section, "underwriting purposes" means, with respect to an insurer: *** (2) the computation of premium or contribution amounts under the plan, coverage, or policy (including discounts, rebates, payments in kind, or other premium differential mechanisms in return for activities, such as completing a health risk assessment or participating in a wellness program). The definition of "underwriting purposes" specifically excludes "determinations of medical appropriateness where an individual seeks a benefit under the plan, coverage or policy." 410 ILCS § 513/20(b) (emphasis added). While the Complaints stops their analysis here, tracing the defined term "protected health information" shows that information collected by life insurers is not covered. GIPA adopts the definition of "protected health information" from the HIPAA regulations: Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. 45 C.F.R. Sec. 160.103 (emphasis added). "Individually identifiable health information" is defined as: information that is a subset of health information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse. 45 C.F.R. Sec. 160.103 (emphasis added). Life insurance simply is not covered. Limiting "protected health information" in the insurance context to information obtained by health plans is consistent with how the Illinois Department of Insurance has been treating genetic information. The only sections of the Illinois Administrative Code addressing GIPA are in the sections applicable to accident and health insurance. See 50 Ill. Admin Code § 2008.107 (medical supplement); § 2001.9 (group health plans). Life insurance companies should continue to watch changes to GIPA. The General Assembly has been expanding the scope of GIPA since its passage. In 2019, Section 20(e) was revised to prohibit direct-to-consumer commercial genetic testing companies from sharing genetic test information to include life insurance companies. The General Assembly is currently considering expanding Section 20(a) to add life insurance to accident and health insurance companies prohibited from seeking information derived from genetic testing. However, until the General Assembly changes the definition chain to add life insurance to the definition of "protected health information," class actions like the recent Complaints should be dismissed. [GN] SWOONDLE LLC: Website Inaccessible to Blind Users, Bunting Says --------------------------------------------------------------- RASHETA BUNTING, Plaintiff v. SWOONDLE LLC, Defendant, Case No. 533893/2023 (N.Y. Sup., Kings Cty., November 17, 2023) arises from the Defendant's failure to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons in violation of the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. Plaintiff Bunting brings this action on behalf of herself and all other persons similarly situated against Swoondle LLC, alleging that is denying blind and visually-impaired persons throughout the United States with equal access to the goods and services Swoondle provides to their non-disabled customers through www.swoondlesociety.com. Swoondle is a Delaware foreign limited liability company that operates an online platform where members can easily trade-in their children's clothes for the next size or season. [BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Telephone: (917) 373-9128 E-mail: ShakedLawGroup@Gmail.com SYRACUSE UNIVERSITY: Filin g of Class Cert Bid Due Dec. 11 ---------------------------------------------------------- In the class action lawsuit captioned as Poston v. Syracuse University, Case No. 5:21-cv-01386 (N.D.N.Y., Filed Dec. 30, 2021), the Hon. Judge entered Thomas J. Mcavoy entered an order granting the parties' joint letter motion regarding expert disclosure and class certification briefing deadlines: -- Class Certification Motion is due: Dec. 11, 2023 -- Defendant's response to the Class Jan. 10, 2024 Certification Motion is due: -- The Defendant's Expert Disclosure Dec. 18, 2023 is due: -- Rebuttal Expert Disclosure is due: Dec. 2, 2024 The suit alleges contract related violations. Syracuse University is a private research university in Syracuse, New York, United States.[CC] Syracuse is a private institution located on a hilltop that overlooks the town of Syracuse, New York. SYSTEM1 INC: Continues to Defend TS Software Class Suit in Calif. ----------------------------------------------------------------- System1 Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the Company continues to defend itself from the TS Software class suit in California. In October 2023, a putative California class action complaint (the "Complaint") was filed against the Company and its Total Security business regarding alleged violations of California's Auto Renewal Law requirements related to the marketing and sale of its subscription service offerings for anti-virus and ad-blocking software (the "TS Software") to consumers. The Complaint alleges claims under California's false advertising and unfair competition laws and primarily alleges that the marketing and sales checkout flows for the TS Software did not clearly and conspicuously disclose that the named plaintiffs set forth in the Complaint were purchasing the TS Software for a promotional period which would auto-renew after the applicable promotional period. The Company disputes the claims alleged, and intends to defend itself vigorously in this matter. System1, Inc. operates an omnichannel customer acquisition platform, delivering high-intent customers to advertisers and marketing antivirus software packages to end user customers. TELUS INTERNATIONAL: Settlement in Meagher Gets Initial Nod ----------------------------------------------------------- In the class action lawsuit captioned as Meagher v. Telus International (U.S.) Corp., Case No. 2:20-cv-02074 (D. Nev., Filed Nov. 12, 2020), the Hon. Judge Richard F. Boulware, II entered an order as follows: (1) The Settlement is preliminarily approved as fair, reasonable, and adequate; (2) The FLSA Collective Subclass and Rule 23 Settlement Subclass are conditionally certified for settlement purposes only; (3) The proposed Notices to be disseminated to collective and Class Members pursuant to the Settlement Agreement are approved; (4) Plaintiff Brielle Meagher is appointed as Class Representative; (5) Brown, LLC and Kemp Jones, LLP are appointed as Class Counsel; and (6) Simpluris, Inc. is appointed as the Settlement Administrator. The suit alleges violation of Fair Labor Standards Act. Telus is a Canadian technology company which provides IT services and multilingual customer service to global clients.[CC] TRACY LOGISTICS: Picou Files Class Suit in Cal. State Court ----------------------------------------------------------- A class action lawsuit has been filed against Tracy Logistics LLC. The case is captioned as DONTE PICOU, on behalf of himself and all others similarly situated, v. TRACY LOGISTICS LLC, Case No. STK-CV-UOE-2023-0012043 (Cal. Super., San Joaquin Cty., November 14, 2023). A case management conference is set for May 15, 2024, before Judge Barbara Kronlund. Tracy Logistics LLC is a wholesale grocery supplier in California.[BN] The Plaintiff is represented by: Roman Shkodnik, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Telephone: (818) 230-8380 TUSIMPLE HOLDINGS: Continues to Defend Consolidated Suits --------------------------------------------------------- TuSimple Holdings Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 8, 2023, that the Company continues to defend itself from the consolidated securities class suits in the United States District Court for the Southern District of California. On August 31, 2022, a securities class action complaint (the "August 2022 Action") was filed, in the United States District Court for the Southern District of California, against the Company and certain of its current and former directors and officers (Xiaodi Hou, Mo Chen, Cheng Lu, Patrick Dillon, and James Mullen), and the underwriters who underwrote its IPO, on behalf of a putative class of stockholders who acquired its securities from April 15, 2021 through August 1, 2022. The August 2022 Action is captioned: Dicker v. TuSimple Holdings, Inc. et al., 3:22-cv-01300-JES-MSB (S. D. Cal.). The complaint filed in the August 2022 Action alleges, among other things, that the Company and certain of its current and former directors and officers violated Sections 11 and 15 of the Securities Act and Sections 10(b) and 20(a) of the Exchange Act by making materially false or misleading statements, or failing to disclose information it was required to disclose, regarding the Company's autonomous driving technology. The complaint seeks unspecified monetary damages on behalf of the putative class and an award of costs and expenses, including reasonable attorneys' fees. On November 10, 2022, a second securities class action (the "November 2022 Action") complaint was filed in the United States District Court for the Southern District of New York against the Company and certain of its current and former directors and officers (Xiaodi Hou, Mo Chen, Cheng Lu, Eric Tapia, Patrick Dillon, and James Mullen), and the underwriters who underwrote its IPO, on behalf of a putative class of stockholders who acquired its securities from April 15, 2021 through October 31, 2022. The November 2022 Action was originally captioned: Woldanski v. TuSimple Holdings, Inc., et al., 1:22-cv-09625-AKH (S.D.N.Y.). The complaint in the November 2022 Action alleges, among other things, that the Company and certain of its current and former directors and officers violated Sections 11, 12(a), and 15 of the Securities Act and Sections 10(b) and 20(a) of the Exchange Act, by making false or misleading statements, or failing to disclose information it was required to disclose, regarding the Company's related party transaction with Hydron and its sharing of confidential information and proprietary technology with Hydron without approval from the Board. The complaint seeks unspecified monetary damages on behalf of the putative class and an award of costs and expenses, including reasonable attorneys' fees. The November 2022 Action has since been transferred to the Southern District of California: Woldanski v. TuSimple Holdings, Inc., et al., 3:23-cv-00282-JES-MSB (S. D. Cal.). On May 3, 2023, the Company made a motion to consolidate the August 2022 Action and November 2022 Action. The Court granted this motion and consolidated the August 2022 Action and November 2022 Action on July 20, 2023. On October 2, 2023, the plaintiffs filed a consolidated and amended complaint (the "Consolidated and Amended Complaint"). The Consolidated and Amended Complaint was filed against the Company and certain of its current and former directors and officers (Guowei "Charles" Chao, Xiaodi Hou, Mo Chen, Bonnie Yi Zhang, Cheng Lu, Patrick Dillon, Brad Buss, and Karen C. Francis) and the underwriters who underwrote its IPO, containing similar claims as asserted in the complaints filed in Dicker v. TuSimple Holdings, Inc. et al., 3:22-cv-01300-JES-MSB (S. D. Cal.) and Woldanski v. TuSimple Holdings, Inc., et al., 3:23-cv-00282-JES-MSB (S. D. Cal.). The Consolidated and Amended Complaint alleges, among other things, that the Company and certain of its current and former directors and officers violated Sections 11, 12, and 15 of the Securities Act, Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5, by making false or misleading statements, or failing to disclose information it was required to disclose, regarding the Company's related party transaction with Hydron, the Company's sharing of confidential information and proprietary technology with Hydron without approval from the Company's board of directors, the Company's safety profile, and certain of the Company's risk factors. The Company is unable to estimate the potential loss or range of loss, if any, associated with this, or any similar, lawsuit, which could be material. TuSimple Holdings Inc. is an autonomous technology company based in California. TYRONE OLIVER: Court Tosses Butler Bid for Class Certification --------------------------------------------------------------- In the class action lawsuit captioned as DARRYL PERNELL BUTLER, and other inmates similarly situated, v. TYRONE OLIVER, et al., Case No. 4:23-cv-00311-CLR (S.D. Ga.), the Hon. Judge Christopher L. Ray entered an order: -- Dismissing class-based claims; and -- Denying motion for class certification. Since the class-related allegations are dismissed, the Court will permit Butler an opportunity to amend his Complaint to omit the class-based allegations before it determines whether he otherwise qualifies to proceed in forma pauperis. Accordingly, Butler is directed to submit an Amended Complaint asserting only his own claims, and omitting any class-based claims, by no later than December 8, 2023. Since the prior Order and Report and Recommendation has been vacated, and the Court provides additional time for Butler to submit his Amended Complaint, his request for additional time is dismissed as moot. Butler is further advised that failure to timely submit his amended complaint may result in a recommendation that this case be dismissed for failure to obey a court order or failure to prosecute. A copy of the Court's order dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/3MVr55A at no extra charge.[CC] UNITED EGG: To Pay Damages in Antitrust Suit Over Price Fixing -------------------------------------------------------------- Katie Arcieri and Stephen Joyce, writing for Bloomberg Law, report that General Mills Inc., a Kraft Heinz Co. unit, Kellogg Co., and Nestle SA for years likely overpaid for eggs because the nation's largest producers and two trade groups conspired to restrict the supply, an Illinois federal jury decided on Nov. 21. A US District Court for the Northern District of Illinois jury of nine men and three women said the two largest US egg producers, Cal-Maine Foods Inc. and Rose Acre Farms Inc., along with two egg-industry trade groups, will have to pay damages to the food companies. The same jury will decide the amount of damages in a trial scheduled to begin Nov. 29 that is expected to last two days. By law, whatever damages the jury awards will be trebled, though the jury will not be told about that statutory requirement. The case outcome in favor of the food companies could embolden other plaintiffs who are seeking to go after food producers for anticompetitive behavior. "We are incredibly pleased by the jury's decision," said Brandon Fox, a Jenner & Block LLP partner representing the food companies. "For the first time, the defendants have been held liable for their antitrust violations. We are now going to turn our attention to the damages phase." King & Spalding LLP partners Patrick Collins and Patrick Otlewski, who helped lead the defense effort for Cal-Maine Foods, appeared stunned by the verdict. Sitting at the defense table, the two lawyers' heads dropped toward their chests and stayed there. Otlewski didn't speak after the verdict was read by US Judge Steven Seeger. When asked by the judge if he had anything to say, Collins only uttered he had to confer with his client before rushing out of courtroom at the verdict hearing's end. The lawyers didn't immediately respond to a request for comment. Plaintiff Victory In 2011, the food producers sued the egg producers and trade groups United Egg Producers Inc. and US Egg Marketers Inc., alleging they engaged in a conspiracy to reduce supply in an attempt to increase the price of eggs. The jury found the food companies were injured by the conspiracy from October 2004 to December 2008. Egg buyer plaintiffs -- grocery stores and another group of direct purchasers -- in two other cases were previously unable to convince a jury that the producers fixed the price of eggs. But on Nov. 21, the jury delivered a fulsome verdict in favor of the plaintiffs. It agreed with the food companies that the conspiracy existed and that it was effectuated through distinct actions such as reducing the nation's hen population and boosting egg exports to limit the US egg supply. The jury also concluded those practices unreasonably restrained trade in the egg market in violation of federal antitrust laws. The jury didn't conclude, however, that every egg producer aligned with the industry trade groups participated in the conspiracy. The jury also found the companies weren't injured between 2009 to 2012, as they alleged. Before he read the verdict, Seeger commended lawyers from both sides for what he said was some of the finest advocacy he's seen in his time on the bench. The day arguments ended he passed out trays of egg-containing brownies to them. "I told you at the outset of the case that I wanted to see Major League Baseball, and you all delivered an All-Star game," he told the lawyers. The food company plaintiffs are represented by Jenner & Block LLP. Rose Acre Farms is represented by Porter Wright Morris and Arthur LLP. Cal-Maine Foods is represented by King and Spalding LLP and Brown Fox PLLC. United Egg Producers Inc. and US Egg Marketers Inc. are represented by Troutman Pepper Hamilton Sanders LLP. The case is Kraft Foods Global, Inc. v. United Egg Producers, Inc., N.D. Ill., No. 1:11-cv-08808, 11/21/23. [GN] UNITED STATES: Plaintiffs Class Cert Response Due Dec 8 -------------------------------------------------------- In the class action lawsuit captioned as SHERRILL FARRELL, et. al., v. UNITED STATES DEPARTMENT OF DEFENSE, et. al., Case No. 3:23-cv-04013-JCS (N.D. Cal.), the Plaintiffs and Defendants jointly request the Court to set a briefing schedule for Defendants' forthcoming Motion to Dismiss Plaintiffs' First Amended Complaint, and to stay Defendants' deadline to respond to Plaintiffs' Motion for Class Certification: 1. The parties will adhere to the following briefing schedule for Defendants to respond to Plaintiffs' First Amended Complaint: a. Defendants' Motion to Dismiss will be due by November 17, 2023. b. The Plaintiffs' Response will be due by December 8, 2023. c. The Defendants' Reply will be due by December 22, 2023. 2. The deadline for Defendants to respond to Plaintiffs' Motion for Class Certification is stayed. United States Department of Defense is an executive branch department of the federal government of the United States charged with coordinating and supervising all agencies and functions of the U.S. government directly related to national security and the United States Armed Forces. A copy of the Parties' motion dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/3MWzhmd at no extra charge.[CC] The Plaintiffs are represented by: Jocelyn D. Larkin, Esq. Lindsay Nako, Esq. Fawn Rajbhandari-Korr, Esq. Meredith Dixon, Esq. IMPACT FUND 2080 Addison Street, Suite 5 Berkeley, CA 94704 Telephone: (510) 845-3473 Facsimile: (510) 845-3654 E-mail: jlarkin@impactfund.org - and - Elizabeth Kristen, Esq. Lynnette Miner, Esq. LEGAL AID AT WORK 180 Montgomery Street, Suite 600 San Francisco, CA 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 E-mail: ekristen@legalaidatwork.org - and - David K. Willingham, Esq. Chelsea Corey, Esq. Radha Manthe, Esq. Rachel Yeung, Esq. KING & SPALDING LLP 633 West Fifth Street, Suite 1600 Los Angeles, CA 90071 Telephone: (213) 443-4433 Facsimile: (213) 443-4310 E-mail: dwillingham@kslaw.com UNITED STATES: Plaintiffs' Claims Gets Initial Certification ------------------------------------------------------------ In the class action lawsuit captioned as ANIKA OKJE ERDMANN-BROWNING and JACQUELINE BENITEZ, individually and on behalf of all others similarly situated, v. THOMAS J. VILSACK, Secretary, United States Department of Agriculture, in his official capacity; SHALANDA YOUNG, Director of the United States Office of Management and Budget, in her official capacity, Case No. 4:23-cv-04678-JST (N.D. Cal.), the Plaintiffs ask the Court to enter an order: -- Certifying or provisionally certifying the Plaintiffs' claims as a class action; -- Appointing Plaintiffs as class representatives; and -- Appointing class counsel, under Rule 23(a), Rule 23(b)(2), and Rule 23(g) of the Federal Rules of Civil Procedure and Rule 7-2 of the Civil Local Rules of the Court. The Plaintiffs propose the following class definition: "All households who are or will be certified to receive Supplemental Nutrition Assistance Program (SNAP) benefits for January 2024 and subsequent months in the 50 states, the District of Columbia, Guam, and the Virgin Islands." The Plaintiffs Anika Okje Erdmann-Browning and Jacqueline Benitez currently receive subsistence food benefits assistance through the federally funded Supplemental Nutrition Assistance Program (SNAP). The Plaintiffs and the proposed class desperately need monthly SNAP benefits to feed themselves and their families. Any delay in receiving these benefits will jeopardize their ability to do so, leaving them to choose between eating and meeting other basic needs, such as paying for shelter, buying gas to get to work, or purchasing medication. This putative class action lawsuit challenges the apparent refusal by the United States Department of Agriculture (USDA) to fund SNAP benefits for January 2024 and subsequent months and to authorize the 53 SNAP agencies to issue benefits for those months. USDA is responsible for overseeing farming, ranching, and forestry industries. A copy of the Plaintiffs' motion dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/3MUl8Gq at no extra charge.[CC] The Plaintiffs are represented by: Jodie Berger, Esq. Richard Rothschild, Esq. Robert Newman, Esq. Antionette Dozier, Esq. WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010 Telephone: (213) 235-2617 Facsimile: (213) 487-0242 E-mail: jberger@wclp.org rrothschild@wclp.org rnewman@wclp.org adozier@wclp.org - and - Lindsay Nako, Esq. Fawn Rajbhandari-Korr, Esq. Meredith Dixon, Esq. IMPACT FUND 2080 Addison St., Suite 5 Berkeley, CA 94704 Telephone: (510) 845-3473 Facsimile: (510) 845-3654 E-mail: lnako@impactfund.org fkorr@impactfund.org mdixon@impactfund.org UNITED STATES: Seeks More Time for Filing Class Cert Replies ------------------------------------------------------------ In the class action lawsuit captioned as ANIKA OKJE ERDMANN-BROWNING and JACQUELINE BENITEZ, individually and on behalf of all others similarly situated, v. THOMAS J. VILSACK, Secretary, United States Department of Agriculture, in his official capacity; SHALANDA YOUNG, Director of the United States Office of Management and Budget, in her official capacity, Case No. 4:23-cv-04678-JST (N.D. Cal.), the Parties jointly stipulate to the following briefing schedule, subject to Court approval: -- No later than November 14, 2023: Plaintiffs file any Motions for Preliminary Injunction and Class Certification; -- November 29, 2023: Defendants file their Oppositions to both Motions; -- No later than December 5, 2023: Plaintiffs file their Replies; and -- December 11, 2023: Hearing date for both Motions. USDA is responsible for overseeing farming, ranching, and forestry industries. A copy of the Parties' motion dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/3Rb8g15 at no extra charge.[CC] The Plaintiffs are represented by: Jodie Berger, Esq. Richard Rothschild, Esq. Robert Newman, Esq. Antionette Dozier, Esq. WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010 Telephone: (213) 235-2617 Facsimile: (213) 487-0242 E-mail: jberger@wclp.org rrothschild@wclp.org rnewman@wclp.org adozier@wclp.org - and - Lindsay Nako, Esq. Fawn Rajbhandari-Korr, Esq. Meredith Dixon, Esq. IMPACT FUND 2080 Addison St., Suite 5 Berkeley, CA 94704 Telephone: (510) 845-3473 Facsimile: (510) 845-3654 E-mail: lnako@impactfund.org fkorr@impactfund.org mdixon@impactfund.org UNITY SOFTWARE: Bid to Dismiss Amended Complaint Pending -------------------------------------------------------- Unity Software Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the motion to dismiss the securities amended complaint awaits ruling of the U.S. District Court in the Northern District of California. On July 6, 2022, a putative securities class action complaint was filed in U.S. District Court in the Northern District of California against the Company and certain of its executives (the "Securities Class Action"). The complaint was amended on March 24, 2023, and captioned In re Unity Software Inc. Securities Litigation, Case No. 5:22-cv-3962 (N.D. Cal.). The operative complaint names as defendants Unity, its former Chief Executive Officer, Chief Financial Officer, and General Manager of Operate Solutions, as well as Unity shareholders, Sequoia Capital, Silver Lake Group, and OTEE 2020 ApS. The complaint asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and alleges that the Company and its executives made false or misleading statements and/or failed to disclose issues with the Company's product platform and the likely impact of those issues on the Company's fiscal 2022 guidance. The plaintiffs seek to represent a class of all persons and entities (other than the defendants) who acquired Unity securities between May 11, 2021 and May 10, 2022, and requests unspecified damages, pre- and post-judgment interest, and an award of attorneys' fees and costs. The Company believes this lawsuit is without merit and intends to vigorously defend the case. On May 25, 2023, all defendants moved to dismiss the Amended Complaint. The plaintiffs filed an opposition to the motions to dismiss on July 26, 2023. The Company filed a response to the plaintiffs' opposition on September 1, 2023 and is currently awaiting a ruling on the motion to dismiss. Unity Software Inc. is a software company based in California. UNIVERSAL MUSIC: Averts Suit Over Spotify Share Acquisition ----------------------------------------------------------- Evan Minsker, writing for Pitchfork, reports that earlier this year, the 1990s hip-hop duo Black Sheep filed a class-action lawsuit against Universal Music Group (UMG) over the label's business dealings with Spotify. The breach of contract lawsuit claimed that the label owed more than $750 million in royalties to various artists. That lawsuit was dismissed on Nov. 20, court documents viewed by Pitchfork confirm. The rappers' lawsuit argued that UMG's "undisclosed, sweetheart deal with Spotify" violated the duo's 1990 contract with Universal imprint Polygram. They claimed that the contract required for UMG to pay 50 percent of all net receipts connected to the "use or exploration" of their music. They claimed the class impacted in the lawsuit could include "at least thousands of artists." United States District Judge Jennifer Rochon decided that Black Sheep had exceeded the statute of limitations, therefore deeming their lawsuit time barred. Judge Rochon also rejected the rappers' argument that UMG was in breach of contract. Their request for leave to amend was denied, and the case was closed. UMG declined to comment. Pitchfork has reached out to Black Sheep's attorneys. [GN] UPSIDE SERVICES: Allec Sues Over Misleading Referral Program ------------------------------------------------------------ LOGAN ALLEC, individually and on behalf of all others similarly situated, Plaintiff v. UPSIDE SERVICES, INC., Defendant, Case No. 3:23-cv-05982 (N.D. Cal., Nov. 17, 2023) alleges that the Defendant is engaged in false and misleading practice regarding its referral program. According to the complaint, the Defendant offers a gas rebate service via its website upside.com and its mobile app, which is available on both Google Play and the Apple App Store. The Defendant has been offering its gas rebate service and corresponding referral payments to its customers who make the referrals to the Defendant since 2016. From the start, the Defendant offered its referring customers continued referral payments for their entire lifetime, a strategy which ensured the Defendant’s success as a business. After skyrocketing gas prices saw consumer interest in gas rebates skyrocket during the global COVID-19 pandemic in 2020, the Defendant seemingly decided that it was time to stop offering referring parties lifetime payments when those they referred to its services used the Defendant to gas up. But the Defendant was not content to stop at revamping its program going forward; on the contrary, it sought to unilaterally change the terms of payment for referrals made under the original referral program. Despite having promised to pay its users for life for users they’d referred, it now sought to renege on that promise -- depriving Plaintiff and all the other consumers who had enriched the company with their efforts to refer new customers to the Defendant of the benefits to which they were legally entitled, says the suit. Upside Services, Inc. is a privately-held company that develops a mobile platform to connect users with brick-and-mortar commerce. [BN] The Plaintiff is represented by: Karl S. Kronenberger, Esq. Leah Rosa Vulic, Esq. KRONENBERGER ROSENFELD, LLP 150 Post Street, Suite 520 San Francisco, CA 94108 Telephone: (415) 955-1155 Facsimile: (415) 955-1158 Email: karl@kr.law leah@kr.law USAA CASUALTY: Faces Consumer Class Action in Washington -------------------------------------------------------- Mason Lawlor, writing for ALM, reports that USAA Casualty Insurance Co. and USAA General Indemnity Co. were hit with a consumer class action on Nov. 16 alleging they arbitrarily and wrongfully denied personal injury protection and/or medical payment insurance benefits by delegating adjustment claims to third parties. In the complaint filed Nov. 16 in the Washington Superior Court for Clark County, plaintiffs Caryn Jennings and Tricia Harder, on behalf of themselves and others similarly situated, accused USAA of violating the Washington Consumer Protection Act, as well as breach of contract, and breach of the covenant of good faith and fair dealing. The plaintiffs claim that USAA denied their insureds' personal injury protection (PIP) and/or medical payment insurance benefits because the company allegedly delegates its insurance claim adjustment to a third party's computer program that arbitrarily reduces or denies these claims. The plaintiffs seek declaratory relief as to PIP coverage, and they also seek injunctive relief enjoining USAA from continuing to handle claims as such, the complaint said. According to plaintiffs, represented by counsel at Tousley Brain Stephens and Franklin D. Azar & Associates, USAA should be conducting an investigation into each bill for medical expenses submitted by insureds. Instead, they employ a Medical Bill Audit (MBA) system designed to reduce the amount USAA pays for health care claims. Through PPO, PR, GR, RL, DOC and RF codes, and "without human input," USAA has found a way to utilize the allowable lower billing rates under agreements between other insurers and preferred provider organizations, "even though USAA has no direct PPO or PPN agreements with its insureds' healthcare providers," plaintiffs argue. The company also reportedly determines costs for Medicare patients based off an arbitrary threshold held in a database by called the Milliman Database, which is composed of an "outdated" 5% nationwide sample of charge data from patients over 65 collected by the U.S. Department of Health and Human Services, the complaint said. "This Medicare patient sample has no bearing on the reasonableness of charges for the medical services provided to USAA's insureds, does not reflect the entire range of fees charged in the geographic area where the medical services are provided, and is comprised of data not organized by a provider's years of experience, background, or qualifications," the complaint said. "USAA denies or reduces payment of its insureds' medical bills based only on AIS's [Auto Injury Solutions] automated review process and does not conduct any independent or individualized review to assess whether the charge is a reasonable and necessary medical expense." Jennings and Harder were both injured in automobile accidents while covered under a USAA Casualty Insurance policy that included $10,000 in personal injury protection. Both claim USAA either denied or reduced reimbursement for their medical care. Counsel has not yet appeared for the defendants. Neither attorney Franklin D. Azar nor Jason T. Dennett or Cecily B. Jordan of Tousley Brain Stephens could be reached for additional comment. [GN] VERRA MOBILITY: Brantley Class Suit Trial Set for March 2025 ------------------------------------------------------------ Verra Mobility Corporation disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 9, 2023, that the 24th Judicial District Court of Jefferson Parish, Louisiana has scheduled the trial for Brantley class suit in March 2025. Brantley v. City of Gretna is a class action lawsuit filed in the 24th Judicial District Court of Jefferson Parish, Louisiana against the City of Gretna ("City") and its safety camera vendor, Redflex Traffic Systems, Inc. in April 2016. The plaintiff class, which was certified on March 30, 2021, alleges that the City's safety camera program was implemented and operated in violation of local ordinances and the state constitution, including that the City's hearing process violated the plaintiffs’ due process rights for lack of a "neutral" arbiter of liability for traffic infractions. Plaintiffs seek recovery of traffic infraction fines paid. The City and Redflex Traffic Systems, Inc. appealed the trial court's ruling granting class certification, which was denied and their petition for discretionary review of the certification ruling by the Louisiana Supreme Court was declined. Merits discovery in the trial court is underway. Trial has been scheduled for March 2025. Verra Mobility Corporation offers integrated technology solutions and services by offering toll and violation management solutions for the commercial fleet and rental car industries by partnering with the leading fleet management and rental car companies. VETNIQUE LABS: Bunting Sues Over Blind-Inaccessible Website ----------------------------------------------------------- RASHETA BUNTING, Plaintiff v. VETNIQUE LABS LLC, Defendant, Case No. 533888/2023 (New York Sup., Kings Cty., November 17, 2023) alleges violations of the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law in connection with the Defendant's failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons. Plaintiff Bunting, on behalf of herself and all other persons similarly situated, seeks a permanent injunction to cause a change in Defendant's policies, practices, and procedures so that Defendant's website will become and remain accessible to blind and visually-impaired consumers. This complaint also seeks compensatory damages to compensate Plaintiff for having been subjected to unlawful discrimination. Vetnique Labs is a Delaware Foreign limited liability company doing business in New York with its principal place of business located at 1748 W. Jefferson Avenue, Naperville, IL. [BN] The Plaintiff is represented by: Dan Shaked, Esq. SHAKED LAW GROUP, P.C. 14 Harwood Court, Suite 415 Scarsdale, NY 10583 Telephone. (917) 373-9128 E-mail: ShakedLawGroup@gmail.com VIRGIN GALACTIC: Continues to Defend Lavin Class Suit ----------------------------------------------------- Virgin Galactic Holdings Inc. disclosed in its Form 10-Q Report for the quarterly period ending September 30, 2023 filed with the Securities and Exchange Commission on November 8, 2023, that the Company continues to defend itself from the Lavin class suit in the Eastern District of New York. On May 28, 2021, a class action complaint was filed against the Company in the Eastern District of New York captioned Lavin v. Virgin Galactic Holdings, Inc., Case No. 1:21-cv-03070. In September 2021, the Court appointed Robert Scheele and Mark Kusnier as co-lead plaintiffs for the purported class. Co-lead plaintiffs amended the complaint in December 2021, asserting violations of Sections 10(b), 20(a) and 20A of the Securities Exchange Act of 1934 against the Company and certain of its current and former officers and directors on behalf of a putative class of investors who purchased the Company's common stock between July 10, 2019 and October 14, 2021. The amended complaint alleges, among other things, that the Company and certain of its current and former officers and directors made false and misleading statements and failed to disclose certain information regarding the safety of the Company's ships and success of its commercial flight program. Co-lead plaintiffs seek damages, interest, costs, expenses, attorneys' fees and other unspecified equitable relief. The defendants moved to dismiss the amended complaint and, on November 7, 2022, the court granted in part and denied in part the defendants' motion and gave the plaintiffs leave to file a further amended complaint. Plaintiffs' filed a second amended complaint on December 12, 2022. The second amended complaint contains many of the same allegations as in the first amended complaint. The defendants moved to dismiss the second amended complaint on February 24, 2023 and on August 8, 2023, the court granted in part and denied in part the defendants' motion. On August 22, 2023, the plaintiffs filed a motion asking the court to reconsider its August 8, 2023 order and to certify an interlocutory appeal, or in the alternative to enter a final judgment. The motion was fully briefed as of October 10, 2023. The Company intends to continue to vigorously defend against this matter. Virgin Galactic Holdings, Inc. is an American spaceflight company founded by Richard Branson and his British Virgin Group retains an 18% stake through Virgin Investments Limited. It is headquartered in California, USA, and operates from New Mexico. VOLKSWAGEN GROUP: Plaintiffs Lose Discovery Extension Bid --------------------------------------------------------- Virginia Lawyers Weekly reports that where plaintiffs suing two carmakers over alleged defects objected to a magistrate judge's order refusing a third extension of the discovery deadline, their objections were overruled. They failed to demonstrate how numerous foreign individuals would be deposed in the three-month timeframe they sought, or why such depositions were necessary and proportional to the needs of the case. Background Plaintiffs filed this action on behalf of themselves and others similarly situated against Volkswagen Group of America Inc., or VWGoA, and Audi Aktiengesellschaft. Plaintiffs allege damages stemming from a latent defect in the timing chain system embedded in certain Audi and Volkswagen vehicle models manufactured during model years 2011 through 2015. The original scheduling order in this case set a discovery deadline of Oct. 14, 2022. It was twice extended by the magistrate judge in response to joint motions by the parties, with the last extension to May 19, 2023. On April 13, 2023, the parties filed a third consent motion to extend the discovery deadlines, for another three months. The magistrate judge denied the third joint motion for lack of good cause. Neither party appealed that decision to this court. On May 12, 2023, plaintiffs filed a motion to compel certain further discovery. That motion was granted in part and denied in part by the magistrate judge, who also denied without prejudice plaintiffs' motion for an extension of the discovery deadline. On June 16, 2023, plaintiffs filed an opposed motion for extension of time seeking to extend the discovery to Sept. 29, 2023. Then on July 7, 2023, plaintiffs filed another motion to compel. Following a hearing, the magistrate judge: (i) extended expert discovery until Sept. 5, 2023; (ii) directed defendants to supplement their discovery by July 26, 2023, and (iii) permitted additional discovery until Aug. 9, 2023, but limited it to discovery concerning documents produced from May 19, 2023, through July 26, 2023. Plaintiffs have filed objections to that order. Analysis The magistrate judge's order is not clearly erroneous or contrary to law. Plaintiffs unduly delayed the filing of their motion to compel until at least three weeks after they filed the opposed extension motion and at least five weeks after the close of discovery. Moreover, plaintiffs failed to bring many of the issues on which they now focus to the magistrate judge's attention. Judge Davis cannot be faulted for failing to grant plaintiffs relief that they did not actually seek and, as he correctly noted, defendants cannot be compelled to produce documents that do not exist. Similarly, there is no basis on which to extend the discovery period by three months for plaintiffs to pursue depositions of unidentified German nationals, especially where plaintiffs have not explained how such individuals will be deposed within the three-month timeframe or why such depositions are necessary and proportional to the needs of the case. Plaintiffs' objections overruled. Connelly v. Volkswagen Group of America Inc., Case No. 1:19-cv-1487, Nov. 3, 2023. EDVA at Alexandria (Alston). VLW 023-3-706. 16 pp. VLW 023-3-706 Virginia Lawyers Weekly 023-3-706 – Connelly v. Volkswagen Group of America Inc. [GN] WALMART INC: Faces Lyons Fraud Class Action Lawsuit in M.D. Ala. ---------------------------------------------------------------- A class action lawsuit has been filed against Walmart, Inc. et al. The case is captioned as Lyons v. Walmart, Inc. et al, Case No. 2:23-cv-00616-ECM-KFP (M.D. Ala., Oct. 20, 2023). The suit alleges fraud related violations. The case is assigned to the Hon. Judge Emily C. Marks. Walmart is an American multinational retail corporation that operates a chain of hypermarkets, discount department stores, and grocery stores.[BN] The Plaintiff is represented by: James Matthew Stephens, Esq. METHVIN, TERRELL, YANCEY, STEPHENS & MILLER, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: mstephens@mtattorneys.com - and - John Livingston Adams, Esq. JOHNNY ADAMS LAW FIRM LLC 324 Ellis St Union Springs, AL 36089 Telephone: (334) 850-0022 Facsimile: (800) 738-6860 E-mail: johnny@johnnyadamslaw.com - and - Courtney Cooper Gipson, Esq. MCCALLUM METHVIN & TERRELL PC 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: cgipson@mtattorneys.com The Defendants are represented by: Reid Stephens Manley, Esq. BURR & FORMAN LLP 420 North Twentieth Street; Suite 3400 Birmingham, AL 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100 E-mail: rmanley@burr.com - and - Richard Eric Gottlieb, Esq. GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO 10250 Constellation Boulevard Ste 19th Floor Los Angeles, CA 90067 Telephone: (312) 622-4900 E-mail: rgottlieb@glaserweil.com WEILL CORNELL: Faces Suit Over Sexual Abuses in Medical Practice ---------------------------------------------------------------- JOHN DOE #205; and JOHN DOE #536; individually and on behalf of all similar situated, Class Plaintiffs v. DARIUS A. PADUCH; JOSEPH J. FINS, M.D.; WEILL CORNELL MEDICINE;WEILL CORNELL MEDICAL CENTER; BRADY UROLOGIC HEALTH CENTER, CORNELL INSTITUTE FOR REPRODUCTIVE MEDICINE, WEILLCORNELL MEDICAL COLLEGE; NEW YORK-PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER; NEW YORK-PRESBYTERIAN HOSPITAL; CORNELL UNIVERSITY BOARD OF TRUSTEES; COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK; COLUMBIA UNIVERSITY BOARD OF TRUSTEES; NEW YORK-PRESBYTERIAN COLUMBIA UNIVERSITY IRVING MEDICAL CENTER; NORTHWELL HEALTH; and LONG ISLAND JEWISH MEDICAL CENTER, Defendants, Case No. 952147/2023 (N.Y. Sup., New York Cty., November 15, 2023) is brought Adult Survivors Act by Plaintiffs and other Class members, who include both adults and minors and were sexually assaulted, sexually exploited and sexually abused by Darius A. Paduch, a former urologist employed, contracted, hired, managed, supervised, controlled, directed, overseen, and/or led by the other named defendants. The class action seeks to address Defendants' repeated violations of these fundamental ideals, for a period of over a decade, where their Administrators, Chairpeople, Medical Ethicists, General Counsel, and Trustees, failed, repeatedly, to protect vulnerable and unsuspecting patients from known and serial predatory sexual assaults being committed under the guise of medical care, by several of their own employees, including defendant Darius A. Paduch. Weill Cornell Medicine, is a domestic, not-for-profit corporation organized under the laws of the state of New York. It operates a medical school located at 525 East 68th Street, New York, NY. [BN] The Plaintiffs are represented by: Anthony T. DiPietro, Esq. THE DIPIETRO LAW FIRM The Woolworth Building 233 Broadway Suite 880 NewYork, NY 10279 Telephone: (212) 233-3600 WELLS FARGO: Order on Stipulated Final Judgment Entered ------------------------------------------------------- In the class action lawsuit captioned as ANNIE CHANG, et al., v. WELLS FARGO BANK, N.A., Case No. 4:19-cv-01973-HSG (N.D. Cal.), the Hon. Judge Haywood S. Gilliam, Jr. entered an order regarding plaintiffs' stipulated final judgment: On November 9, 2023, the Plaintiffs timely filed a Stipulated Final Judgment. The Court has reviewed the Judgment and is concerned about the permanent injunction term contained at paragraph six. As currently drafted, the last sentence of paragraph six reads as follows: The Releasors further are forever barred and enjoined from organizing Class Members, or soliciting the participation of Class Members, in a separate class for purposes of pursuing any action (including by seeking to amend a pending complaint or counterclaim to include class allegations, or seeking class certification in a pending action in any jurisdiction based on or relating to any of the Released Claims against any of the Releasees). Wells Fargo is a US-based global financial services company. A copy of the Court's order dated Nov. 14, 2023 is available from PacerMonitor.com at https://bit.ly/3Rb94TF at no extra charge.[CC] WEST VIRGINIA: Filing of Class Cert Prelim Approval Due Dec. 8 -------------------------------------------------------------- In the class action lawsuit captioned as MICHAEL D. ROSE, and EDWARD L. HARMON, on their own behalf and on behalf of all others similarly situated, v. MICHAEL FRANCIS, individually and as an employee of the West Virginia Division of Corrections and Rehabilitation, et al., Case No. 5:22-cv-00405 (S.D.W. Va.), the Hon. Judge Frank W. Volk entered an order as follows: 1. That Plaintiffs and the Settling Defendants shall file a Joint Motion for Preliminary Approval no later than December 8, 2023, attaching their settlement agreement and necessary exhibits including declarations; 2. That any comments on the Joint Motion and attached materials shall be filed on or before December 22, 2023; 3. That Plaintiffs and the Settling Defendants shall file a Motion for Final Approval, accompanied by a proposed order, no later than January 12, 2023; and 4. That the hearing on the Motion for Final Approval is scheduled for January 26, 2024, at 12:00 PM. The Defendants include THE RALEIGH COUNTY COMMISSION, John/Jane Doe Employees of the Raleigh County Commission, THE FAYETTE COUNTY COMMISSION, John/Jane Doe Employees of the Fayette County Commission, THE GREENBRIER COUNTY COMMISSION, John/Jane Doe Employees of the Greenbrier County Commission, THE MERCER COUNTY COMMISSION, John/Jane Doe Employees of the Mercer County Commission, THE MONROE COUNTY COMMISSION, John/Jane Doe Employees of the Monroe County Commission, THE SUMMERS COUNTY COMMISSION, John/Jane Doe Employees of the Summers County Commission, THE WYOMING COUNTY COMMISSION, John/Jane Doe Employees of the Wyoming County Commission, PRIMECARE MEDICAL OF WEST VIRGINIA, INC., John/Jane Doe PrimeCare Employees, JOHN/JANE DOE CORRECTIONAL OFFICERS, BETSY JIVIDEN, individually as an employee of the West Virginia Division of Corrections and Rehabilitation, WEXFORD HEALTH SOURCES, INC. John/Jane Doe Wexford Employees, BRAD DOUGLAS, individually and in his official capacity as the acting Commissioner of the West Virginia Division of Corrections and Rehabilitation, JEFF S. SANDY, individually and in his official capacity as the Cabinet Secretary of the West Virginia Division Department of Homeland Security, and WILLIAM K. MARSHALL, III individually and in his official capacity as the Commissioner of the West Virginia Division of Corrections and Rehabilitation. A copy of the Court's order dated Nov. 15, 2023 is available from PacerMonitor.com at https://bit.ly/3SUxxxy at no extra charge.[CC] WESTERN DIGITAL: Ackerman Sues Over Defective Marketing of SSDs --------------------------------------------------------------- Michael Ackerman, individually and on behalf of all others similarly situated, Plaintiff v. Western Digital Corporation, Western Digital Technologies, Inc., and SanDisk LLC, Defendants, Case No. 5:23-cv-05938 (N.D. Cal., November 16, 2023) asserts claims against the Defendants for breach of express warranties, breach of implied warranty of merchantability, fraud by omission, unjust enrichment, and for violations of the California Unfair Competition Law and the California False Advertising Law. The class action arises from the Defendants' alleged deceptive marketing, promotion and advertising of solid state drives (SSDs), which have manufacturing defects. Starting in early 2023, purchasers of the SSDs began reporting that the SSDs were failing, resulting in permanent loss of their data. In the months that followed, media reports confirmed this was not limited to a small group of users. Thus, the SSDs do not conform with their core functionality, as well as Defendants' basic promise that the SSDs will do what they are supposed to do -- store data safely for later access. Defendants have not disclosed the extent this defect, says the suit. Headquartered in California, Western Digital Technologies, Inc. Western Digital Technologies, and SanDisk LLC design, manufacture, market, and sell a variety of computer storage devices including portable solid-state drives. [BN] The Plaintiff is represented by: Adam J. Zapala, Esq. COTCHETT, PITRE & MCCARTHY LLP San Francisco Airport Office Center 840 Malcolm Road Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 E-mail: azapala@cpmlegal.com - and - Daniel E. Gustafson, Esq. Karla M. Gluek, Esq. Daniel J. Nordin, Esq. Mary M. Nikolai, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 E-mail: dgustafson@gustafsongluek.com kgluek@gustafsongluek.com dnordin@gustafsongluek.com mnikolai@gustafsongluek.com XITLALI DELI: Lawrence Sues Over Disability Discrimination ---------------------------------------------------------- NANA QUEENIE LAWRENCE, Plaintiff v. XITLALI DELI GROCERY CORP. and MOHAMMAD RANA, Defendants, Case No. 1:23-cv-08474 (E.D.N.Y., November 15, 2023) is a class action alleging Defendants' violations of the Americans with Disabilities Act. Plaintiff Lawrence seeks declaratory, injunctive and equitable relief, as well as monetary damages and attorney's fees, costs and expenses to redress Defendants unlawful disability discrimination against Plaintiff, in violation of Title III of the ADA and its implementing regulation, the New York State Executive Law, and the Administrative Code of the City of New York. Plaintiff Lawrence, on behalf of herself and for the benefit of all others similarly situated, also alleges a claim for negligence. On or about, April 11, 2023 Plaintiff attempted to access the business and discovered that the premises contained, architectural barriers at Defendants' place of public accommodation that prevents and/or restricts access to Plaintiff, a person with a disability. In addition, the Defendants allegedly breached their duty by negligently designing, constructing, operating, repairing and maintaining their place of public accommodation a manner that has unreasonably endangered the Plaintiff's physical safety and caused plaintiff to fear for plaintiff safety, says the suit. Xitlali Deli Grocery Corp. is a New York limited liability company licensed to and doing business in New York State. The company owns and operates the property located at 105 Graham Avenue, Brooklyn, NY 11206, County of Kings, State of New York. [BN] The Plaintiff is represented by: Jonathan Bell, Esq. BELL LAW GROUP, PLLC 116 Jackson Blvd. Syosset, NY 11791 Telephone: (516) 280-3008 E-mail: JB@BellLG.com ZAPPOS.COM LLC: Collects Data Without Consent, Casillas Alleges --------------------------------------------------------------- MILTITA CASILLAS, individually and on behalf of all others similarly situated, Plaintiff v. ZAPPOS.COM LLC d/b/a WWW.ZAPPOS.COM, Defendant, Case No. 23STCV28343 (Cal. Super., Los Angeles Cty., Nov. 17, 2023) alleges that the Defendant has secretly deployed spyware in its website www.zappos.com that accesses visitor devices, installs tracking software, and surveils their browsing habits. According to the Plaintiff in the complaint that without the Plaintiff's knowledge or consent, the Defendant secretly used "pen register" software to access Plaintiff's device and install tracking software in violation of California law. ZAPPOS.COM, INC. sells apparel and footwear online. The Company offers sneakers, boots, sandals, slippers, shirts, trousers, skirts, jackets, coats, swimsuits, bags, belts, gloves, scarves, ties, socks, and gift cards. [BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS A PROFESSIONAL CORPORATION 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Tel: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com ZOOM VIDEO: Warren Suit Sues Over Automatic Renewal Scheme ---------------------------------------------------------- FERNANDA WARREN, on behalf of herself and all others similarly situated v. ZOOM VIDEO COMMUNICATIONS, INC, Case No. 5:23-cv-05333-PCP (N.D. Cal., Oct. 19, 2023) is a class action regarding the Defendant's automatic renewal scheme with respect to Zoom subscriptions. According to the complaint, Zoom allegedly fails to cancel subscription plans of subscribers that cancel their paid monthly subscription. Instead, Zoom continues to charge consumers unwanted monthly fees even after they attempt to cancel their membership. Zoom systematically violates state automatic renewal laws, including those of California and Florida, by engaging in a pattern and practice of exploiting its members by continuing to charge them monthly fees, without consumers' consent, after they have canceled their memberships, the lawsuit claims. In May of 2022, the Plaintiff purchased a Standard Pro monthly subscription in addition to a Zoom Whiteboard subscription. The Plaintiff cancelled her two Zoom memberships via Zoom's online web portal in June 2022. Despite cancelling her subscription, the Plaintiff found that Zoom had not honored her cancellation request and was billed for another month. By falsely marketing its cancellation practices, Zoom deceived the Plaintiff and Class members into making purchases they otherwise would not make, asserts the lawsuit. As a result of its unfair, fraudulent, and unlawful conduct, Zoom has been unjustly enriched and should be required to disgorge its unjust profits and make restitution to the Plaintiff and Class members pursuant to Cal. Bus. & Prof. Code section 17203 and 17204, the lawsuit further alleges. Zoom is a supplier of video conferencing services founded in 2011 and is currently valued at over $67 billion.[BN] The Plaintiff is represented by: Jeffrey D. Kaliel, Esq. Sophia G. Gold, Esq. KALIELGOLD PLLC 1100 15th Street NW, 4th Floor Washington, D.C. 20005 Telephone: (202) 280-4783 E-mail: jkaliel@kalielpllc.com sgold@kalielgold.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, P.A. 1925 Century Park East, Suite 1700 Los Angeles, CA 90067 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com ZUFFA LLC: Plaintiffs Seek Approval of Bout Class Notice in Le Suit ------------------------------------------------------------------- In the class action lawsuit captioned as Cung Le, Nathan Quarry, Jon Fitch, Brandon Vera, Luis Javier Vazquez, and Kyle Kingsbury, on behalf of themselves and all others similarly situated, v. Zuffa, LLC, d/b/a Ultimate Fighting Championship and UFC, Case No. 2:15-cv-01045-RFB-BNW (D. Nev.), the Plaintiffs ask the Court to enter an order: -- Approving their proposal for distribution of notice to the Bout Class of the Court's Order certifying the Bout Class, dated August 9, 2023. The Plaintiffs' Notice Plan provides direct email and U.S. mail notice to all reasonably identifiable Class members, complemented by a targeted first-party social media campaign, the issuance of a press release, and posted notice in notable mixed martial arts (MMA) Gyms. The Notice Plan also includes the implementation of a dedicated website and toll-free line where Class members can learn more about their rights and options in the litigation. The Plaintiffs, who are professional MMA fighters who fought for the UFC, brought an antitrust action, on behalf of themselves and the now certified bout Class, against Zuffa. The Plaintiffs allege the UFC used an anticompetitive scheme to establish and maintain its market dominance, allowing it to pay its fighters substantially less than it would have in a more competitive market. The Plaintiffs' Consolidated Amended Class Action Complaint, filed on December 18, 2015, is the operative pleading. On August 9, 2023, the Court issued an Order certifying the Bout Class. The Order defines the Class as follows: "All persons who competed in one or more live professional UFC promoted MMA bouts taking place or broadcast in the United States from December 16, 2016, to June 30, 2017. The Bout Class excludes all persons who are not residents or citizens of the United States unless the UFC paid such persons for competing in a bout fought in the United States." Zuffa was an American sports promotion company specializing in mixed martial arts. A copy of the Plaintiffs' motion dated Nov. 15, 2023 is available from PacerMonitor.com at https://bit.ly/3sNlrfb at no extra charge.[CC] The Plaintiffs are represented by: Joseph R. Saveri, Esq. Kevin E. Rayhill, Esq. JOSEPH SAVERI LAW FIRM, LLP 601 California St., Suite 1000 San Francisco, CA 94108 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 E-mail: jsaveri@saverilawfirm.com krayhill@saverilawfirm.com - and - Eric L. Cramer, Esq. Michael Dell'Angelo, Esq. Patrick F. Madden, Esq. Najah Jacobs, Esq. Joshua P. Davis, Esq. BERGER MONTAGUE PC 1818 Market St., Suite 3600 Telephone: (215) 875-3000 E-mail: ecramer@bm.net mdellangelo@bm.net pmadden@bm.net njacobs@bm.net jdavis@bm.net - and - Richard A. Koffman, Esq. Benjamin Brown, Esq. Daniel Silverman, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave., N.W., Suite 500 East, Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: rkoffman@cohenmilstein.com bbrown@cohenmilstein.com dsilverman@cohenmilstein.com - and - Don Springmeyer, Esq. KEMP JONES, LLP 3800 Howard Hughes Parkway, 17th Floor Las Vegas, NV 89169 Telephone: (702) 385-6000 Facsimile: (702) 385-6001 E-mail: dspringmeyer@kempjones.com - and - Robert C. Maysey, Esq. Jerome K. Elwell, Esq. WARNER ANGLE HALLAM JACKSON & FORMANEK PLC 2555 E. Camelback Road, Suite 800 Phoenix, AZ 85016 Telephone: (602) 264-7101 Facsimile: (602) 234-0419 E-mail: rmaysey@warnerangle.com jelwell@warnerangle.com [*] Cooley LLP Discusses Illinois Brick Rule in Antitrust Suit -------------------------------------------------------------- Dee Bansal, Esq., Peter Brody, Esq., and Ethan Glass, Esq., and Beatriz Mejia, Esq., of Cooley LLP, in an article for Global Competition Review, disclosed that class actions play a substantial role in the US legal system, particularly in antitrust litigation. It is 'the longstanding policy' of US law to 'encourage [the] vigorous private enforcement of the antitrust laws', and the class action device creates the economic incentives that allow plaintiffs to litigate complex claims that otherwise would carry only small individual damages.[1] Even so, these litigations carry substantial financial risks for defendants; as the Supreme Court has recognised, antitrust litigation is a colossal undertaking with discovery that imposes heavy burdens on defendants.[2] What is more, the point of 'class certification'-- when a proposed class is converted into a certified class and all absent members are joined as plaintiffs to the suit -- is often the financial tipping point in litigation. If a class is certified, the sheer magnitude of the defendant's potential 'liability at trial becomes enormous, maybe even catastrophic, forcing companies to settle even if they have meritorious defenses'.[3] Accordingly, US antitrust class actions are hotly litigated, from their outset through the point of class certification. This guide provides an overview of key issues in that process, with an eye towards trends in litigation and the coming developments that may shape the future of collective antitrust litigation. Who May Sue? The Illinois Brick rule From its initiation, US antitrust litigation presents difficult legal issues that plaintiffs and defendants must carefully navigate. As a threshold matter, class antitrust litigation in the United States is constrained by the concept of 'antitrust standing' -- that is, to bring an antitrust action, plaintiffs must show not only that they have suffered concrete injuries (a requirement in all US federal litigation), but also that they are proper parties 'to bring a private antitrust action'.[4] In 1977, the Supreme Court held in Illinois Brick Co v Illinois that the proper party to bring an antitrust action, in almost all instances, is the 'direct purchaser'.[5] As the court later explained, '"the immediate buyers from the alleged antitrust violators" may maintain a suit against the antitrust violators,' but otherwise 'indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue.'[6] This limitation, the Supreme Court has stated, is justified by the policy goals of '(1) facilitating more effective enforcement of antitrust laws; (2) avoiding complicated damages calculations; and (3) eliminating duplicative damages against antitrust defendants'.[7] The direct purchaser rule might, however, allow direct purchasers to reap a windfall, recovering damages that they in fact passed down the line. But who qualifies as a direct purchaser? The Supreme Court addressed the question most recently in Apple v Pepper. There, the court considered a suit brought by users of Apple products who alleged that Apple unlawfully monopolised the market for iPhone applications by allowing those apps to be distributed only through its 'App Store', and raised the prices of those apps by taking supracompetitive commissions.[8] Apple, for its part, argued that the app users were not 'direct purchasers from Apple', because the app developers, rather than Apple, were ultimately responsible for app prices.[9] The Supreme Court held that the app users were 'direct purchasers', and therefore entitled to sue because, at the most basic level, the consumers 'bought the apps directly from Apple', which then extracted its commission and passed the remainder on to the app developers. The court rejected the contrary proposed '"who sets the price" theory', which would have held that the 'seller' in the 'purchaser-seller' relationship was the entity that sets the price of the good in suit, regardless of that entity's role in the supply chain.[10] The Supreme Court in Apple v Pepper therefore took a bright-line approach to the direct purchaser inquiry: the first buyer from the entity with monopoly power, no matter that entity's role, is the proper antitrust plaintiff. Courts following Apple v Pepper understand it the same way. For example, in one recent putative class action, the Northern District of Illinois held that a homebuyer was not the proper plaintiff to state a claim against a trade association responsible for developing real estate broker commission rules and the corporate defendants who enforce those rules because, although the commission is baked into a home's sale price paid by the buyer to the seller, the seller is the direct purchaser of agency services and the seller agent is responsible for remitting the buyer agent's commission.[11] Similarly, in In re Xyrem (Sodium Oxybate) Antitrust Litigation, a class of health insurance companies and unions that 'bought or reimbursed Xyrem', a medication for the treatment of narcolepsy, 'for their members', brought suit against the medication's manufacturer.[12] Applying Apple v Pepper, the court held that these end payors lacked antitrust standing because, as a formal matter, the prescriptions in issue were distributed through a pharmacy (Express Scripts), even though that pharmacy was the exclusive, defendant-selected distributor of Xyrem.[13] Taken together, these authorities suggest that all parties to antitrust litigation -- plaintiffs and defendants alike -- must studiously scrutinise the chain of distribution for the products at issue; any interruption in the distribution chain, however minor or functionally inconsequential, will likely be enough to defeat a class's right to proceed. Changes to Illinois Brick Because Illinois Brick is a court-made, non-constitutional doctrine, Congress has the authority to repeal it at any time. Efforts to that end have been ongoing for decades and have garnered support from voices across the political spectrum, including the Democratic Party-led Antitrust Task Force of the Committee on the Judiciary of the House of Representatives for the 110th Congress[14] and Makan Delrahim (the assistant attorney general for the Department of Justice's Antitrust Division during the Trump administration).[15] In 2021, Republican senator Mike Lee of Utah introduced legislation that would, among other things, overrule Illinois Brick; as of the date of publication, the legislation is pending before the Senate committee on the judiciary.[16] Further, because each state has its own antitrust laws (which substantially follow the federal law), state legislatures are free to permit downstream purchasers to bring antitrust claims on their own behalf. The majority of states have passed such laws - generally called Illinois Brick repealer laws.[17] By doing so, these states have expanded the set of plaintiffs who might recover for conduct that violates state antitrust laws, but have also introduced significant legal complexity to antitrust litigation and attempts to settle disputes.[18] For example, in Stromberg v Qualcomm, the plaintiffs brought a nationwide antitrust class action in California court, arguing that Qualcomm's cellular chip licensing practices led to higher consumer mobile phone prices.[19] The trial court certified a nationwide class, which the Ninth Circuit recently reversed, reasoning that because the class included citizens of both states that have repealed Illinois Brick within their borders and those that have not, and because of 'significant variations in the scope of the repealer laws [. . .] [e]ven among the repealer states', choice-of-law issues might overwhelm the common-questions analysis at the core of the US class certification framework.[20] Exceptions Illinois Brick is not an absolute rule. While, as a general matter, 'indirect purchasers who are two or more steps removed from the antitrust violator in a distribution chain may not sue,'[21] courts have recognised or suggested exceptions for: buyers who purchase from the direct purchaser under 'a pre-existing cost-plus contract';[22] 'where the direct purchaser is owned or controlled by its customer';[23] and where the 'indirect purchaser' transacts with a 'co-conspirator' in a price-fixing conspiracy.[24] Because of the prevalence of these provisions, US antitrust class actions commonly involve suits brought on behalf of both direct and indirect purchasers.[25] The application of the Illinois Brick exceptions presents a substantial legal issue at the outset of any antitrust action, including those brought by indirect purchaser classes, and it offers an early opportunity to defendants to limit the scope of any indirect purchaser action. Marion Diagnostic Center v Becton Dickinson, a Seventh Circuit decision from March 2022, is instructive. There, the Seventh Circuit considered the application of the co-conspirator exception to a suit brought by a putative class of purchasers of medical products, who alleged that the manufacturers of those products (Cardinal and McKesson) conspired with regional distributors, including defendant Becton Dickinson, to fix equipment prices.[26] The class, the 'Indirect Purchaser Plaintiffs', bought only McKesson products through Becton Dickinson, but nevertheless sued both McKesson and Cardinal, arguing that they could proceed against both under the co-conspirator exception. The Seventh Circuit, however, held that plaintiffs could only avoid Illinois Brick as to McKesson - even though McKesson and Cardinal were alleged to have engaged in the same conduct.[27] The court found that the claims against Cardinal, to the extent they were viable at all, belonged to a different class of indirect purchasers, and were therefore dismissed.[28] Accordingly, Marion Diagnostic confirms that Illinois Brick is a meaningful limitation on the scope of class action litigation, even when industry participants are alleged to have otherwise engaged in the same wrongdoing such that 'efficiency' considerations might support resolving all claims, actual and potential, in a single proceeding. The Federal Rule of Civil Procedure 23 framework Assuming a proper plaintiff brings the putative antitrust action, and that the plaintiff can meet the pleading requirements that apply to all allegations in a US litigation, an antitrust action will eventually arrive at the 'class certification' stage. Class certification is governed by Federal Rule of Civil Procedure 23 (Rule 23). To certify a class, a plaintiff must establish each of the requirements of Rule 23(a): the class must be 'so numerous that joinder of all members is impracticable'; there must be 'questions of law or fact common to the class'; the named plaintiff must have 'claims or defenses . . . [that] are typical of the claims or defenses of the class'; and the named plaintiff and class counsel must be 'adequat[e]'. Further, to seek damages, the plaintiff must establish that the action fits within Rule 23(b)(3), such that the common questions 'predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy'. The primary Rule 23(b)(3) inquiry, 'predominance', overlaps with the Rule 23(a) 'common questions' inquiry, but it 'is far more demanding'; courts often analyse the two together at class certification.[29] Expert testimony at class certification It is the plaintiff's burden to prove that each of the Rule 23 requirements are satisfied.[30] Accordingly, and as would perhaps be expected, class certification motions (and defendants' corresponding opposition papers) rely, almost as a rule, on expert opinion testimony. Defendants will often challenge that expert testimony through their own expert, at which point there is a 'battle of the experts', and a court must undertake an analysis of the methodology and reliability of the competing experts' testimonies under the standards laid out in Daubert v Merrill Dow Pharms.[31] While the Daubert inquiry might overlap with the merits, that overlap is not a proper basis for a court to defer consideration of the expert's opinion testimony.[32] Instead, the court must weigh the expert testimony to evaluate whether it might be admissible and if, considering the conflicting testimony, it is convinced that plaintiffs pass the Rule 23 test. If the proffered expert testimony does not meet the Daubert standard, courts can and do exclude it at class certification.[33] The court's analysis of expert testimony regarding class certification is a high-stakes moment for antitrust plaintiffs. If a plaintiff's expert is excluded at class certification, it will be extremely difficult for the plaintiff to win class certification. For example, in In re Foreign Exchange Benchmark Rates Antitrust Litigation, the Southern District of New York declined to certify a class because the plaintiffs' experts' methodology had an 'error rate' that was 'too great to accept the method as reliable under Daubert', and without this method the court would have had to undertake 'tens or hundreds of thousands of individual determinations'.[34] However, the inverse is not necessarily true -- a court's decision to accept a plaintiff's expert testimony is not dispositive of the class certification inquiry.[35] Class certification and predominance issues Predominance: impact and uninjured class members While a plaintiff must establish that each of the Rule 23(a) and Rule 23(b) factors are satisfied, the bulk of antitrust class certification litigation focuses on the Rule 23(b) 'predominance' inquiry. At this stage, defendants attempt to demonstrate that a number of issues will have to be adjudicated on an individualised, class member-by-class member basis, undermining any efficiency gains associated with class treatment and making common adjudication impossible.[36] Often times, defendants will focus on the individualised nature of 'antitrust impact' -- that is, the harm resulting from the alleged antitrust violation, usually in the form of a price overcharge.[37] While courts have held that the existence or non-existence of a price-fixing conspiracy may be susceptible to common proof,[38] defendants have often successfully argued that individualised questions of antitrust impact will predominate over plaintiffs' proposed common issues because individualised analysis will be required to determine whether, and to what extent, each member of the proposed class was harmed by the alleged conspiracy.[39] Like the other elements of an antitrust claim, '[w]hether or not antitrust impact can be proven on a classwide basis often hinges on (often conflicting) expert testimony.'[40] Where the products-in-suit are commodity items priced according to lists or published indices, plaintiffs have had success in defeating challenges to their common impact showings. For example, in May 2022, the Northern District of Illinois certified a class of purchasers of broiler chickens relying on expert testimony showing an artificial increase in chicken list prices and 'that "the commodity nature of broiler products" means that "market prices depend on total industry supply," which in turn means that "the prices for every customer that is based on these market prices indices . . . increases."'[41] On the other hand, where the transactions-in-suit involve individualised, context-specific negotiations, courts take a more sceptical view toward plaintiffs' supposed common showings of antitrust impact and often deny certification on predominance grounds.[42] In recent years, the federal courts have been divided over whether a plaintiff has satisfied the Rule 23(b)(3) predominance requirement when the proposed class contains members who have not suffered an antitrust injury at all. The decisions run the gamut, from those holding that a class cannot contain any uninjured plaintiffs to those suggesting that common issues might still predominate even if over a quarter of the class did not actually pay higher prices or otherwise suffer antitrust injury.[43] For example, in Olean Wholesale Grocery Cooperative v Bumble Bee Foods, the US District Court for the Southern District of California certified a class of the purchasers of tuna products, even though the expert evidence established that at least 5 per cent of the class (in the plaintiffs' model) and perhaps more than 28 per cent (in the defendants' model) could not have paid increased prices as a result of the conspiracy.[44] A Ninth Circuit panel reversed the district court,[45] but thecircuit reheard the case en banc and affirmed the certification order.[46] The Ninth Circuit held that the presence of even 'more than a de minimis number of uninjured class members' is no barrier to class certification, instead deferring the determination of the number of uninjured class members to the jury.[47] Unfortunately, clarity is not likely to come to the law any time soon. Olean petitioned for review of the Ninth Circuit's en banc order,[48] presenting an opportunity for the Court to harmonise the discord among the lower courts, but the Supreme Court denied review in an unexplained November 2022 order. As a result, plaintiffs and defendants can expect to vigorously litigate the issue of predominance and absent class members in the years to come. Comcast, damages and disaggregation In addition to the question of whether class plaintiffs can prove antitrust impact on a common basis, plaintiffs seeking class certification must present a model that measures only the damages 'attributable to [their] theory' of liability.[49] In other words, pursuant to Comcast v Behrend, plaintiffs must map their damages to each of the theories of liability in suit, setting aside the question of whether that theory is accurate or workable. In Comcast, the plaintiffs filed a suit challenging Comcast's business practices in the Philadelphia, Pennsylvania metropolitan area.[50] At class certification, plaintiffs presented four theories of how Comcast's unlawful practices increased prices (causing antitrust impact), and then offered damages evidence that identified an alleged overcharge, but 'did not isolate damages resulting from any one theory of antitrust impact'.[51] The district court threw out three of the four theories of antitrust impact, but nevertheless certified the class.[52] The Supreme Court ultimately reversed certification, reasoning that 'a model purporting to serve as evidence of damages in [a] class action' based on a specific theory of injury 'must measure only those damages attributable to that theory'.[53] Thus, because the expert's damages model failed to measure the damages under the only remaining theory of antitrust impact, the court held that class treatment was improper. Plaintiffs face a number of challenges under Comcast. They must carefully define their theory of liability and ensure that their expert's damages model matches, and does not exceed, the bounds of that theory. What's more, if circumstances change, Comcast will bite litigants who have not thought ahead. Often, plaintiffs argue that the defendants' conduct, taken together, caused an antitrust injury. While this sort of aggregated-effects theory might be permissible, it is risky.[54] Where the plaintiffs' theory of injury is based on the effects of multiple forms of conduct, and the expert does not separate the harm attributable to each form, Comcast and the related principle of disaggregation may bar the expert's testimony even if some of the underlying conduct is found lawful.[55] For example, in Viamedia v Comcast, the plaintiff's expert failed to separate the injury caused by one set of practices (refusal to deal) from alleged 'tying, exclusive dealing, and other exclusionary conduct', instead assuming that all of the defendant's practices were unlawful and calculating a single injury. The trial court excluded the expert's testimony, as a plaintiff 'must be able to segregate the damages . . . caused by lawful competition from those caused by anticompetitive acts'.[56] While the appellate court later reversed the trial court's conclusion that the alleged refusal-to-deal was necessarily lawful (after which point the plaintiffs dropped the theory),[57] the case underscores the importance and potentially certification-dispositive nature of the disaggregation inquiry. Settlement and objectors The majority of antitrust class actions settle. This is due to many reasons, including that the federal antitrust statutes allow for treble damages and that, under section 1, defendants are subject to joint and several liability. In addition, discovery and expert testimony in antitrust cases are recognised to be complex and burdensome. US law allows courts to certify classes for the sole purpose of settlement. While these settlement classes must satisfy the strictures of Rule 23 to be certified,[58] they present significant practical benefits -- as one court recently recognised, 'the class action device' was 'the only feasible method of resolving . . . claims' in a suit involving millions of class members.[59] Settlement classes also carry a finality benefit for defendants: because class settlements are binding on all class members, a class settlement buys a defendant peace not just from the claims at hand, but from potential future claims. However, defendants should be wary of class members bound by time -- that is, all members who purchased a product between 2015 to 2020, as a settlement of that class would not preclude a class action from purchasers of that product from 2014 or 2021. However, class members may choose to 'opt out' of the settlement before it is completed and to litigate on their own; these opt-out plaintiffs can substantially prolong a litigation, exposing settling defendants to additional defence costs and liability. As class action settlements will bind absent class members, court approval is required before an antitrust class settlement can be final and aggrieved members of the putative class may object to the settlement, including to the fees to be paid to class counsel. This objection-and-court review can upset even the largest settlements -- for example, in 2016, the Second Circuit overturned a settlement worth up to US$7.25 billion in antitrust litigation between payment card networks and their customers because, in the court's view, the settlement improperly favoured some class members over others.[60] Conclusion Class antitrust litigation is a difficult process, fraught with legal issues for both plaintiffs and defendants. From the outset of an antitrust litigation, both plaintiffs and defendants must litigate with Rule 23 and its attendant issues in mind, and should not lose sight of class-related issues following class certification or at the point of a negotiated resolution. Notes [1] Illinois Brick Co v Illinois, 431 US 720, 745 (1977) [2] Bell Atl Corp v Twombly, 550 US 544, 557-59 (2007). [3] Olean Wholesale Grocery Cooperative, Inc v Bumble Bee Foods LLC, 31 F4th 651, 687 (9th Cir 2022) (en banc) (Lee, J, dissenting). [4] Associated General Contractors of California, Inc v California State Council of Carpenters, 459 US 519, 535 n31 (1983). [5] Illinois Brick Co v Illinois, 431 US 720, 745-46 (1977). [6] Apple Inc v Pepper, 139 S Ct 1514, 1520 (2019) (quoting, in the first passage, Kansas v UtiliCorp United Inc, 497 US 199, 207 (1990)). [7] id at 1524. [8] 139 S Ct at 1519. [9] id. [10] id at 1520. [11] Leeder v Nat'l Ass'n of Realtors, 2022 WL 1307100, at *4 (ND Ill May 2, 2022). [12] 555 F Supp 3d 829, 846 (ND Cal August 13, 2021). [13] idat 841, 881-882. This holding is in unacknowledged practical tension with Blue Cross & Blue Shield United of Wi v Marshfield Clinic, in which the Seventh Circuit held that health insurers are the direct purchasers of medical services from clinical providers for antitrust purposes (65 F3d 1406 (7th Cir 1995)). [14] Findings and Recommendations of the Antitrust Modernization Commission. [15] https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-final-address. [16] Section 501 overturning Illinois Brick and Hanover Shoe. [17] https://www.dorsey.com/-/media/files/newsresources/publications/2017/apr17_lindsay_chart.pdf?la=en. [18] In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 2013 WL 12333442, at *13-15 (ND Cal 8 January 2013) (recounting negotiations). [19] Stromberg v Qualcomm Inc, 14 F4th 1059, 1063 (9th Cir 2021). [20] id at 1069-1074. [21] Apple Inc v Pepper, 139 S Ct 1514, 1521 (2019). [22] Illinois Brick, 431 US at 736. [23] id at 736 n16. [24] In re Nat'l Football League's Sunday Ticket Antitrust Litig, 933 F3d 1136, 1157-1158 (9th Cir 2019). [25] The existence of these actions - and the fact that they can reliably be litigated and resolved - undermines at least to some extent the rationale behind Illinois Brick. Nevertheless, it does not appear that the court is likely to overrule Illinois Brick any time soon. [26] 29 F4th 337, 341 (7th Cir 2022). [27] id at 347-348. [28] Ultimately, the court dismissed the McKesson-based claims on pleading grounds. Id at 351. [29] In re Warfarin Sodium Antitrust Litig, 391 F3d 516, 528 (3d Cir 2004). Rule 23(b)(3) also requires a plaintiff show that the class mechanism is 'superior' to other forms of adjudication; this prong is less frequently litigated. [30] In re Blood Reagents Antitrust Litig, 783 F3d 183, 187 (3d Cir 2015). [31] In re Blood Reagents Antitrust Litig, 783 F3d 183, 187 (3d Cir 2015); In re Processed Egg Prods Antitrust Litig, 81 F Supp 3d 412, 417 (ED Pa 2015). [32] In re Processed Egg Prods Antitrust Litig, 81 F Supp 3d 412, 415-416 (ED Pa 2015). [33] In re Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litig, 2020 WL 2280144, at *2 (EDNY 5 May 2020) (excluding defendants' experts at class certification). [34] 407 F Supp 3d 422, 434-435 (SDNY 2019). [35] In re Processed Egg Prods Antitrust Litig, 81 F Supp 3d 412, 417 (ED Pa 2015). [36] Blades v Monsanto Co, 400 F3d 562, 566 (8th Cir 2005): 'The requirement of Rule 23(b)(3) that common questions predominate over individual questions tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. The nature of the evidence that will suffice to resolve a question determines whether the question is common or individual.' [37] Comcast Corp v Behrend, 569 US 27, 30 (2013). [38] See, for example, In re Industrial Diamonds Antitrust Litig, 167 FRD 374, 379 (SDNY 1996). [39] In re Domestic Drywall Antitrust Litig, 322 FRD 188, 205 (ED Pa 2017): 'Antitrust impact is critically important to the Rule 23(b)(3) predominance analysis, because it is an element of an antitrust claim that may call for individual, as opposed to common proof.' In re New Motor Vehicles Canadian Export Antitrust Litig, 522 F3d 6, 20 (1st Cir 2008): 'In antitrust actions, common issues do not predominate if the fact of antitrust violation and the fact of antitrust impact cannot be established through common proof.' [40] id. [41] In re Broiler Chicken Antitrust Litig, 2022 WL 1720468, at *13 (ND Ill 27 May 2022). [42] Blades v Monsanto Co, 400 F3d 562, 570-571 (8th Cir 2005); In re Graphics Processing Units Antitrust Litigation, 253 FRD 478, 490-491 (ND Cal 2008). [43] In re Apple iPhone Antitrust Litig, 2022 WL 1284104, at *14-15 (ND Cal 29 March 2022) (collecting cases). [44] 332 FRD 308 (SD Cal 2019). [45] 993 F3d 774 (9th Cir 2021). [46] 31 F4th 651 (9th Cir 2022) (en banc). [47] id at 676. [48] https://www.supremecourt.gov/DocketPDF/22/22-131/232991/20220808152205100_2022-08-08%20Starkist%20Cert%20Petition%20with%20App.pdf. [49] Comcast Corp v Behrend, 569 US 27, 34-35 (2013), rejecting a 'model [that] failed to measure damages resulting from the particular antitrust injury on which petitioners' liability in this action is premised'. [50] id at 29-30. [51] id at 31-32. [52] id. [53] id at 35. [54] In re Suboxone (Buprenophine Hydrochoride and Nalaxone) Antitrust Litigation, 421 F Supp 3d 12, 37-38 (ED Pa 2019). [55] Sumotext Corp v Zoove, Inc, 2020 WL 533006, at *7 (ND Cal 3 February 2020) (quoting Litton Sys, Inc v Honeywell, Inc, 1996 WL 634213, at *2 (CD Cal 24 July 1996)). [56] 335 F Supp 3d 1036, 1072 (ND Ill 2018). [57] https://www.law360.com/articles/1451166/viamedia-drops-duty-to-deal-theory-against-comcast. [58] Amchem Prods, Inc v Windsor, 521 US 591, 619-620 (1997). [59] In re Blue Cross Blue Shield Antitrust Litig, 2022 WL 4587618, at *13-14 (ND Ala 9 August 2022). [60] In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig, 827 F3d 223, 233-234 (2d Cir 2016).[GN] [*] Securities Class Settlement Opt-Outs Increased, Report Says --------------------------------------------------------------- The percentage of securities class action settlements with at least one putative class member opting out has increased in recent years, according to a new report by Cornerstone Research in conjunction with Latham & Watkins LLP. Between 2019 and the first half of 2022, the percentage of securities class action settlements with at least one opt-out was 11.5%, up from 5.8% during 2006–2018 and around 2.9% from 1996 through 2005. The report, Opt-Out Cases in Securities Class Action Settlements: 2019–H1 2022 Update, also presents new empirical analysis of how certain class action case characteristics -- including certain simplified metrics associated with potential damages, indicators of complexity of the case, and indicators of greater issuer ability to pay -- relate to opt-outs. This research finds that class settlements with larger simplified metrics of potential damages, indicators of greater complexity of allegations, or indicators of higher ability to pay by the issuer are more likely to have at least one identified opt-out, often an institutional investor. "This analysis suggests that potential class members carefully consider whether or not to opt out of a securities class action based on attributes of the case," said Brendan Rudolph, a principal at Cornerstone Research and report coauthor. "Our findings are consistent with opt-outs occurring more frequently when a putative class member might see an opportunity for a greater return on an individual claim." Of the 287 securities class action settlements from 2019 to H1 2022, 33 settlements (11.5%) had at least one identified opt-out. Overall, 115 of the 2,061 settlements (5.6%) in 1996–H1 2022 had at least one opt-out. The report also identifies the subset of class settlements with opt-outs that involved direct action lawsuits, finding that 10 of the 33 class settlements in 2019–H1 2022 with at least one opt-out had one or more confirmed direct action lawsuit. In each of these 10 class settlements, at least one of the direct action lawsuits had been brought by an institutional investor. The report finds that, as class settlements increase in size, the likelihood of one or more opt-outs increases. In 2019–H1 2022, 29% of cases with class action settlements valued at over $20 million had identified opt-outs, more than 2.5 times the proportion across all class action settlements. More than half of these (nine of 15) had one or more confirmed direct action lawsuit. "We observe that putative class members are more likely to opt out of larger class action settlements, and, for the largest securities class action settlements, opt-outs often bring one or more separate direct action lawsuits," explained Matt Osborn, a Cornerstone Research principal and report coauthor. "For a given class action settlement, the size of the class settlement tends to be positively correlated with the number of putative class members that we observe pursuing separate direct action lawsuits." "The prevalence of institutional investor opt-outs bringing direct actions is consistent with these entities being focused on securing a return on their investments through a myriad of means, and many have established relationships with plaintiff law firms that help them assess the risks and benefits of opting out of a class action," added Christopher Turner, a partner at Latham & Watkins and report coauthor. "Some of these putative class members may decide that the anticipated return from bringing a direct action lawsuit in light of the size of the investor's ownership interests warrants the increased litigation costs." [GN] [*] Video Privacy Class Action Wave Slowed by High Dismissal Rate ----------------------------------------------------------------- Skye Witley, writing for Bloomberg Law, reports that a flood of video privacy class actions exposing hundreds of businesses to costly litigation has begun to abate as plaintiffs and judges dismiss claims in droves, a Bloomberg Law analysis of federal cases found. The rate of new cases seeking millions of dollars from companies for disclosing an individual's video-viewing history without consent peaked in September 2022, with occasional spurts in monthly filings amid a general decline since, court docket data reveals. Federal class actions filed under the Video Privacy Protection Act picked up at the start of 2022 as plaintiffs' attorneys around the country pushed a new interpretation of the decades-old statute, attempting to hold businesses with websites liable for tracking which videos online visitors watched. But now they may be running low on new targets after exposed companies scrambled to preemptively avoid VPPA violation allegations and courts narrowed the scope of viable claims, plaintiff and defense attorneys said. "Some of the more active firms within the plaintiffs' class action bar went all in on the VPPA theory and after some initial decisions in their favor, we really saw the number of cases skyrocket," said Marshall Baker, a consumer class action defense litigator at Akin Gump Strauss Hauer & Feld LLP. "But over the better part of the last year, we've seen the losses really pile up on the plaintiff side." At least 19 cases filed since the wave began were dismissed by a judge in response to a defendant's motion. More than a dozen others ended in individual settlements before class certification, per analysis of Bloomberg Law's federal docket data covering more than 70 dispositive actions in VPPA cases centering on web tracking from Nov. 1, 2018, through Nov. 17, 2023. Despite causes of action that require the type of fact-specific analysis that often survive early motions to dismiss, nearly half of VPPA suits that have concluded in the last three years -- 34 cases -- were voluntarily dismissed before the defendant ever filed a response or motion to dismiss the original complaint. That rate of dismissals could indicate the claims had a low chance of success or were resolved outside of court, attorneys said. "As with any putative class litigation it's quite easy to slap class action on a complaint -- it's another proposition entirely to prosecute a class action through the end on the merits, so I think a lot of what you're seeing is a result of those issues," Baker said. To be sure, many VPPA cases remain active and a number of new filings continue to crop up each month -- but 85% of voluntary dismissals since the litigation wave began were filed this year alone. Congress established the privacy protections in 1988 and allowed private litigants to recoup as much as $2,500 per violation after the Washington City Paper published the video tape rental history of then-US Supreme Court nominee Robert Bork. The latest wave of complaints have landed a handful of multi-million dollar class action settlements with companies including Sony Corp. and the Boston Globe. They typically accuse a business of associating a person's identifiable information -- often their Facebook profile -- with the videos they watched on the entity's website, and of unconsentingly sharing that data with a third party, such as Meta Platforms Inc. or Alphabet Inc.'s Google. Developing Case Law The plaintiffs' bar has been the primary driver behind developing video privacy case law to address online tracking, and as the volume of filings grew, so did the number of cases that didn't allege a clear impact to privacy, said Eli Wade-Scott, who leads Edelson PC's plaintiff class action practice. "Unfortunately, we also see that others don't necessarily think strategically about VPPA cases and instead take an approach of filing cases that are not necessarily strong or even tolerable, which I think has a negative impact," Wade-Scott said. "If you file a good case, and you can actually litigate it, you're not going to see dismissals right off," he added. Another possible explanation for the high rate of dismissals: some plaintiffs' attorneys use class action filings as leverage to secure an out-of-court settlement, said Avril Love, commercial disputes defense counsel at K&L Gates LLP. But even the number of cases filed may understate the push for such settlements. "For every one VPPA case that gets filed, there could be 10 other claims that are sent to businesses in the form of a demand letter only that are never filed," Love said. The volume of these demand letters can make businesses concerned that if they engage with one settlement, they could be "buried under a pile of demand letters and claims forever," so some have chosen to ignore the letters unless a case is filed against them in court, she added. Some companies prefer out-of-court settlements, finding them "significantly cheaper" than engaging in any defensive litigation, according to Daniel Rockey, co-leader of the data privacy class action defense team at Bryan Cave Leighton Paisner LLP. New Claims, Old Pattern The current wave of VPPA litigation, focusing on allegations of sharing users' viewing history with social media and advertising companies, differs somewhat from the most recent previous wave, which targeted streaming services for displaying users' watch histories during in the mid-2010s, Rockey said. The ebb and flow of video privacy class-action filings illustrates a strategy within a segment of the plaintiffs' bar to litigate statutes at a high frequency until most of the viable cases dry up, defense attorneys said. "One of the things I think I'm seeing is that the same plaintiffs law firms that were bringing ADA cases, accessibility cases, they are now bringing a lot of privacy cases, not just under the VPPA, but other statutes as well," Love said. A common thread between alleged violations of the federal accessibility and video privacy laws is their fact-specific nature, making them harder to kill at the motion-to-dismiss stage, she added. Those website ADA class actions were filed and dismissed at similar rates to those in the newest VPPA litigation trend, Rockey said. Wade-Scott of Edelson said filing a high-volume of litigation is "absolutely the business model" of some plaintiffs' firms, but doesn't represent the entire bar and can undermine work pursued by other firms. "The problem is that these high-volume filers often end up constituting the majority of the cases on a particular issue," Wade-Scott said. "We have been as outspoken against these firms as we are when we see corporate America engaged in illegal or unethical business practices." Limiting Exposure Those whose core business revolves around delivering video content face the greatest liability exposure from VPPA complaints, while companies that use video for secondary purposes like marketing may be more insulated from video privacy claims going forward, Rockey said. He pointed to a recent VPPA class action dismissal his team secured by arguing that Tapestry Inc., parent company of fashion brands Coach and Kate Spade, didn't qualify as a video service provider under the statute. The rate of case filings could also be falling because many businesses began removing the tracking technology -- often an embedded tracking pixel from Meta or Google -- from webpages that host video content in an effort to limit legal exposure, he said. But defense attorneys said some ambiguities in the case law still exist, including the standard for determining what's considered identifiable information and who qualifies as a video service provider under the VPPA. Appellate courts may soon have a chance to weigh in on some of those very questions, with cases pending before at least the Second, Sixth, and Ninth Circuit courts of appeals. A handful of district-level cases have been stayed until the Second Circuit addresses how to define a consumer under the video privacy statute in Salazar v. National Basketball Association, where the appellant brief was filed Oct. 31. Attorneys will be watching those cases closely for "appellate-level clarity," Baker of Akin Gump said. "In the meantime, though, district court battles are going to continue to wage on and it will be interesting, I think for me, to see how those issues gets resolved at later phases of the case, including the summary judgment stage and potentially class certification stage." [GN] ********* 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. 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