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250925.mbx C L A S S A C T I O N R E P O R T E R Thursday, September 25, 2025, Vol. 27, No. 192 Headlines A & G.V. STUCCO: Faces Vijay Wage-and-Hour Suit in E.D.N.Y. AMERI-FORCE CRAFT: "Carroll" Wage Suit Remains in Federal Court BITCOIN DEPOT: Faces Shamy Suit Over Alleged Cryptocurrency Scams BLINK CHARGING: Settlement Hearing Scheduled for October 27 BOROFF & ASSOCIATES: Court OKs Bar Order in "Prince" CONNEX CREDIT UNION: Maio Files Suit in D. Connecticut COURTNEY JONES: Hall's Bid for Class Certification Tossed as Moot DA SPOT: Wins Dismissal of Visually Impaired Plaintiff's Suit DENCO CONSTRUCTION: "Perez" Class Granted Conditional Certification DISCOVER: Settlement Claim Submission Deadline Set for May 18 ELIGO ENERGY: Court OKs Filing of 2nd Amended Complaint in "Brous" EVERUS CONSTRUCTION: Scofield Suit Voluntarily Dismissed FRESH HARVEST: Wins Motion to Force H-2A Workers to Arbitration GO NEW YORK: Court Orders Conference Over Wage Claim Settlement HEALTH CARE SERVICE: "Zieba" Class Certification Reversed HEAP INC: I.J. Files Suit in S.D. New York HEARST MAGAZINE: Discloses Personal Info to 3rd Parties, Stowe Says HOLLY RIDGE, NC: Paull Suit Seeks to Certify Resident Class HUT 8: Court OK's Partial Dismissal of "Maheshwari" ILLINOIS DEPARTMENT: Response to Class Cert Bid Extended to Oct. 3 ILLINOIS: Walker Balks at Unreturned Court Filing Fees JETAX INC: Court Denies Trico Tarek's Default Judgment Bid KERR-MCGEE OIL: Court Rules on Statute of Limitations in "Boulter" KROGER CO: Class Cert Bid Filing Amended to Nov. 12 MAIN CLINTON: Smith Alleges Property Not Disabled-Friendly MISSION CEVICHE: Wins Partial Victory in "Flores" Wage Class Action NANCY JOHNSTON: Loses Summary Judgment Bid in Prison Transfer Case NAVY FEDERAL: "Stephenson" Settlement Has Preliminary Approval NEVADA GOLD: Wieben Seek Rule 23 Conditional Certification NIKE INC: Installs Tracking Software on Website, Tasker Says OTTER.AI INC: Winston Alleges Unauthorized Private Info Recording OUT-LOOK SAFETY: Construction Workers Class Certification Affirmed PEKIN INSURANCE: Court OKs $12.45MM Settlement in "Doyle" PHARMACARE US: Wins Partial Dismissal of "Sunderland" Suit POSH GROUP INC: Doctor Suit Removed to C.D. California PSL ASSOCIATES: "Sumo" Remanded to State Court RTX CORP: Wins Dismissal of "Peneycad" Securities Suit SANDRIDGE TRUST: Oklahoma Court Denies Bid to Junk Securities Suit SIMPLICITY CREDIT: Dismissal of "Birge" Affirmed SUNRISE HOSPITAL: Deadlines in "Kabota" Further Extended TRA MEDICAL: Wilson Files Suit Over Unsolicited Voice Messages TRANS UNION: Fails to Protect Private Info, Zauszmer Says TRIDENT TRANSPORT: Dennis Sues Over Failure to Pay Overtime UNDER ARMOUR: Defeats Consumer Fraud Claims Over Fake Discounts UNITED HEALTHCARE: Must Face "Blanton" OT Pay Class Action Suit VILLAGES AT NOAH'S: Murphy Seeks to Certify Tenant Class WILINE NETWORKS: Court Tosses FCA Claim in Consumer Suit ZENARA COMMERCE: Rodriguez Balks at Automatic Subscription Renewal ********* A & G.V. STUCCO: Faces Vijay Wage-and-Hour Suit in E.D.N.Y. ----------------------------------------------------------- LUIS OLMEDO LATA VIJAY, individually and on behalf of all others similarly situated, Plaintiff v. A & G.V. STUCCO CONSTRUCTION CORP. and VG CONSTRUCTION SERVICES INC., and ANGEL VIZHNAY and MILTON VISNAY, as individuals, Defendants, Case No. 1:25-cv-05072 (E.D.N.Y., September 10, 2025) seeks to recover damages for Defendants' egregious violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff alleges the Defendants' failure to pay overtime wages, failure to pay wages for all hours worked, failure to pay wages on the statutorily prescribed schedule, failure to provide with a written wage notice, and failure to furnish with wage statements upon each payment of wages. Plaintiff Vijay, residing in East Elmhurst, New York, was employed by the Defendants from May 2019 until August 2025 as a construction worker and laborer while performing other miscellaneous duties at the instructions of the individual defendants. A & G.V. Stucco Construction Corp. is a construction company based in New York.[BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 80-02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Telephone: (718) 263-9591 Facsimile: (718) 263-9598 AMERI-FORCE CRAFT: "Carroll" Wage Suit Remains in Federal Court --------------------------------------------------------------- In the case captioned as Marion J. Carroll, an individual and on behalf of all others similarly situated, Plaintiff, v. Ameri-Force Craft Services, Inc., et al., Defendants, Case No. 24-cv-1443-RSH-DTF (S.D. Cal.), Judge Robert S. Huie of the United States District Court for the Southern District of California denied Plaintiff's motion to remand the action to state court. The federal court will retain jurisdiction over this wage and hour class action against Ameri-Force Craft Services, Inc. and the other defendants Background and Claims On June 6, 2024, Plaintiff Marion J. Carroll filed this wage and hour putative class action in the California Superior Court for the County of San Diego against defendants Ameri-Force Craft Services, Inc., National Steel and Shipbuilding Co., and Misael Vidama. The Complaint alleges that Plaintiff worked for Defendants as a non-exempt employee from August 2023 through May 2024. Plaintiff seeks to represent a class of all current and former non-exempt employees of Defendants within the State of California at any time commencing four years preceding the filing of Plaintiff's complaint up until the time that notice of the class action is provided to the class. The Complaint brings claims for: (1) failure to pay overtime; (2) failure to pay minimum wages; (3) failure to provide meal periods; (4) failure to provide rest periods; (5) failure to pay wages due upon separation; (6) failure to provide accurate wage statements; (7) failure to timely pay wages during employment; (8) violation of California Labor Code Section 2802, requiring reimbursement for certain employee expenses; (9) violation of California Labor Code Section 227.3, requirement payment of vested vacation time upon termination; and (10) failure to provide paid sick leave, in violation of California Business & Professions Code Section 17200 and the Healthy Workplace Healthy Families Act of 2014. On August 14, 2024, Ameri-Force removed the action to federal court pursuant to the removal provision in the Class Action Fairness Act, 28 U.S.C. Section 1332(d). On July 10, 2025, Ameri-Force filed its motion to remand, which NASSCO joined. Amount in Controversy Analysis The Court first addressed whether Defendants satisfied the amount-in-controversy requirement under CAFA. The Class Action Fairness Act provides federal district courts with original jurisdiction to hear a class action if the class has more than 100 members, the parties are minimally diverse, and the matter in controversy exceeds the sum or value of $5,000,000. The burden of establishing removal jurisdiction, even in CAFA cases, lies with the defendant seeking removal. To satisfy the requirement, a removing party must initially file a notice of removal that includes a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. The defendant seeking removal bears the burden of proof to establish by a preponderance of the evidence that the amount-in-controversy requirement is satisfied. Defendant's Calculation Methodology Defendants calculated the amount in controversy based on various violation assumptions. For overtime claims, they assumed one violation per week for each of the total weeks worked, based on an hourly rate of $23.74, totaling $1,245,007.59. For minimum wage claims, they assumed one violation per week with liquidated damages, totaling $999,998.92. For meal and rest period claims, they assumed failure to provide one meal and rest period per week, for each of the total weeks worked, based on the same hourly rate, totaling $909,289.48. For waiting time penalties, Defendants assumed failure to pay wages earned prior to separation for 708 employees who separated, based on 30 days at 7.5 hours per day, with certain reductions, totaling $2,127,252.38. For wage statement violations, they assumed a 50% violation rate for all pay periods for one year, totaling $211,375.00. For timely wage violations, they assumed a 50% violation rate with specific penalties, totaling $528,437.50. The subtotal reached $5,296,666.88, with attorneys' fees calculated at 25% of the subtotal ($1,324,166.72), bringing the total amount in controversy to $6,620,833.60. The Court relied heavily on the Ninth Circuit's recent decision in Perez v. Rose Hill Co., which addressed the reasonableness of assumptions in determining CAFA amount in controversy. The Ninth Circuit explained that what makes an assumption reasonable may depend on which element of the amount-in-controversy calculation is at issue. For violation rates, a CAFA defendant can most readily ascertain the violation rate by looking at the plaintiff's complaint, since the defendant likely believes the real rate is zero. The Court concluded that numerous district courts have found that an assumption of at least one violation per week for various wage and hour claims was reasonable when complaints alleged violations at times or using similar language. The Court noted that Defendants' CFO declared that nearly all of the 767 Ameri-Force employees in California during the relevant time period worked 7.5 hours or more per day, and worked on average five days per week. Plaintiff argued that the case should be remanded under the local controversy exception to CAFA's removal provisions. This exception requires, among other things, that during the three-year period preceding the filing of the class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants. The Court found that within the three years prior to filing this lawsuit, there had been two class actions asserting similar claims against NASSCO's non-exempt employees in California: Timothy Reed v. NASSCO Inc. et al., filed October 8, 2021, and Eyong v. National Steel and Shipbuilding Co., et al., filed April 12, 2024. Although Plaintiff contended that these cases settled individually and the class claims were dismissed, the Court determined there was no statutory basis to discount them as other similar class actions filed within the three years preceding this lawsuit. Therefore, the no similar class action requirement barred the application of the local controversy exception. Finally, Plaintiff argued that remand was warranted because the Court lacked equitable jurisdiction over Plaintiff's unfair competition claim for restitution of unpaid wages. However, the Court noted that the presence of at least some claims over which the district court has original jurisdiction is sufficient to allow removal of an entire case, even if other claims are beyond the district court's power to decide. For the foregoing reasons, the Court denied Plaintiff's motion to remand. . A copy of the Court's decision is available at https://urlcurt.com/u?l=wm1SsY from PacerMonitor.com BITCOIN DEPOT: Faces Shamy Suit Over Alleged Cryptocurrency Scams ----------------------------------------------------------------- KEVIN SHAMY, individually and on behalf of all others similarly situated, Plaintiff v. BITCOIN DEPOT, INC. and BITCOIN DEPOT OPERATING, LLC (D/B/A BITCOIN DEPOT), Defendants, Case No. 8:25-cv-02425-TPB-AEP (M.D. Fla., September 10, 2025) seeks to hold Bitcoin Depot accountable for systematically facilitating cryptocurrency scams through its Bitcoin ATM network, particularly targeting Plaintiff and other vulnerable consumers who, when manipulated into states of panic and urgency by fraudsters claiming identity theft or other emergencies, lose thousands of dollars through Bitcoin Depot's machines. According to the complaint, Plaintiff Shamy, a 59-year-old, lost $18,100 when a scammer impersonating a PayPal representative coerced him into depositing cash at a Bitcoin Depot ATM, claiming his identity had been stolen and was being used in various places. Despite obvious red flags -- a first-time user making two large transactions totaling $18,100 within two hours -- Bitcoin Depot's ATM processed each transaction without intervention, taking its substantial cut before transferring the remainder to the scammer's wallet. The lawsuit alleges Bitcoin Depot's conduct violates Florida Deceptive and Unfair Trade Practices Act through misrepresenting the security of its services and failing to implement adequate safeguards. The complaint also brings claims for, civil theft for the possession of stolen property, negligence, voluntary assumption of duty for Bitcoin Depot's breach of its self-proclaimed commitment to customer protection, and unjust enrichment. Bitcoin Depot, Inc. is a Delaware corporation with its principal place of business in Georgia that operates the largest cryptocurrency kiosk network in North America, claiming to operate more than 8,400 Bitcoin ATMs across the United States, Canada, and Puerto Rico.[BN] The Plaintiff is represented by: Michael A. Smith, Jr., Esq. Brian D. Flick, Esq. Marita I. Ramirez, Esq. DANNLAW 15000 Madison Avenue Lakewood, OH 44107 Telephone: (216) 373-0539 Facsimile: (216) 373-0536 E-mail: msmith@dannlaw.com BLINK CHARGING: Settlement Hearing Scheduled for October 27 ----------------------------------------------------------- EIGHTH JUDICIAL DISTRICT COURT CLARK COUNTY, NEVADA CAILYN McCAULEY, derivatively on behalf of BLINK CHARGING CO., Plaintiff, v. MICHAEL D. FARKAS, MICHAEL P. RAMA, BRENDAN S. JONES, LOUIS R. BUFFALINO, JACK LEVINE, KENNETH R. MARKS, and RITSAART J.M. VAN MONTFRANS, Defendants, and BLINK CHARGING CO., Nominal Defendant. EXHIBIT C NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF DERIVATIVE ACTIONS Case No.: A-22-847894-C Dept. No.: 26 TO: ALL PERSONS OR ENTITIES WHO HOLD OR BENEFICIALLY OWN, DIRECTLY OR INDIRECTLY, BLINK CHARGING CO. ("BLINK" OR THE "COMPANY") COMMON STOCK AS OF JUNE 26, 2025 ("CURRENT BLINK STOCKHOLDERS") PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. THIS NOTICE RELATES TO A PROPOSED SETTLEMENT AND DISMISSAL OF THE ABOVE-CAPTIONED STOCKHOLDER DERIVATIVE ACTION (THE "NEVADA ACTION") AND A RELATED STOCKHOLDER DERIVATIVE ACTION PENDING IN FLORIDA (THE "FLORIDA ACTION") BY ENTRY OF THE JUDGMENT BY THE COURT AND CONTAINS IMPORTANT INFORMATION REGARDING 8 YOUR RIGHTS. YOUR RIGHTS MAY BE AFFECTED BY THESE LEGAL PROCEEDINGS. IF THE COURT APPROVES THE SETTLEMENT, YOU WILL BE FOREVER BARRED FROM CONTESTING THE APPROVAL OF THE PROPOSED SETTLEMENT AND FROM PURSUING THE RELEASED CLAIMS. IF YOU HOLD BLINK COMMON STOCK FOR THE BENEFIT OF ANOTHER, PLEASE PROMPTLY TRANSMIT THIS DOCUMENT TO SUCH BENEFICIAL OWNER. THE RECITATION OF THE BACKGROUND AND CIRCUMSTANCES OF THE SETTLEMENT CONTAINED HEREIN DOES NOT CONSTITUTE THE FINDINGS OF THE COURT. IT IS BASED ON REPRESENTATIONS MADE TO THE COURT BY COUNSEL FOR THE PARTIES. THIS ACTION IS NOT A "CLASS ACTION." THUS, THERE IS NO COMMON FUND UPON WHICH YOU CAN MAKE A CLAIM FOR A MONETARY PAYMENT. Notice is hereby provided to you of the proposed settlement (the "Settlement") of the above- referenced stockholder derivative lawsuit, as well as a related derivative suit in Florida. This Notice is provided by Order of the District Court for Clark County, Nevada (the "Court"). It is not an expression of any opinion by the Court. It is to notify you of the terms of the proposed Settlement, and your rights related thereto. I. WHY THE COMPANY HAS ISSUED THIS NOTICE Your rights may be affected by the Settlement of the following actions: * McCauley v. Farkas, et al., Case No. A-22-847894-C (Clark Cty., Nev.); and * In re Blink Charging Co. S'holder Deriv. Litig., Case No. 2020-019815-CA-01 (Fla. 11th Cir. Ct.). Plaintiffs in these actions (the "Derivative Actions"), Cailyn McCauley, Cindey Maloney, and Vipin Bhatia (collectively "Plaintiffs"); individual defendants Michael D. Farkas, Michael P. Rama, Brendan S. Jones, Louis R. Buffalino, Jack Levine, Kenneth R. Marks, Ritsaart J.M. van Montfrans, and Donald Engel (the "Individual Defendants"); and nominal defendant Blink (together with the Individual Defendants, the "Defendants") (Plaintiffs and Defendants are collectively referred to as the "Parties") have agreed upon terms to settle the Derivative Actions and, through counsel, have signed a written Stipulation and Agreement of Settlement ("Stipulation") memorializing those settlement terms. On October 27, 2025, at 9:00 a.m., at Regional Justice Center, 200 Lewis Ave, Las Vegas, NV, 89155 Courtroom 10D or via Zoom or some other video platform or telephonically, the Honorable Gloria Sturman will hold a hearing (the "Settlement Hearing") in the Nevada Action. For more details on the Settlement Hearing, including how to attend and object to the Settlement, see Sections VI and VII below. II. SUMMARY OF THE DERIVATIVE ACTIONS A. Description of the Derivative Actions and Settlement Blink, a Nevada corporation headquartered in Maryland, owns, operates, and provides electric vehicle charging equipment and networked electric vehicle charging services to drivers of electric vehicles, primarily in the U.S., through its wholly-owned subsidiaries. In September 2020, a shareholder derivative lawsuit, captioned Klein (derivatively on behalf of Blink Charging Co.) v. Farkas et al., Case No. 20- 19815CA01, was filed in Miami-Dade County Circuit Court seeking to pursue claims belonging to the Company against Blink's Board of Directors (the "Board") and its former Chief Financial Officer ("CFO") Michael Rama (the "Klein Lawsuit"). The Klein Lawsuit alleged that between March 6, 2020 and August 17, 2020, the Individual Defendants breached their fiduciary duties by personally making and/or causing the Company to make to the investing public a series of materially false and misleading statements that failed to disclose material information regarding the Company's business, operations, and prospects, including in the Company's public filings with the U.S. Securities and Exchange Commission ("SEC") and elsewhere that it, among other things, had a robust network of electric vehicle charging stations throughout the U.S. and asserted that its network enables electric vehicle drivers to "easily charge" at any of Blink's supposed 15,000 charging stations. In December 2020, another shareholder derivative action, captioned Bhatia (derivatively on behalf of Blink Charging Co.) v. Farkas et al., Case No. 20-27632CA01, was filed in Miami-Dade County Circuit Court against the same defendants in the Klein Lawsuit and asserted similar claims, as well as additional claims relating to the Company's nomination, appointment and hiring of minorities and women and the Company's decision to retain its outside auditor (the "Bhatia Lawsuit"). In June 2022, the court consolidated the Klein and Bhatia actions under the caption In re Blink Charging Co. Stockholder Derivative Litigation, Lead Case No. 2020-019815-CA-01. In February 2022, a third shareholder derivative lawsuit, captioned McCauley (derivatively on behalf of Blink Charging Co.) v. Farkas et al., Case No. A-22-847894-C, was filed in Clark County, Nevada seeking to pursue claims belonging to the Company against Blink's Board and Mr. Rama (the "McCauley Lawsuit"). The McCauley Lawsuit asserted similar claims and sought similar damages as the Klein Lawsuit. As a result of the foregoing, the Derivative Actions alleged that the Company suffered damage from, among other things, (i) legal fees associated with defending against a factually-related securities class action, captioned Bush v. Blink Charging Company, Case No. 1:20-cv-23527-KMW (S.D. Fla.) (the "Securities Class Action"); (ii) costs of defending against potential related investigations and any fines arising therefrom; and/or (iii) other damages. The Derivative Actions are currently stayed. Defendants have vigorously denied, and continue to deny vigorously, any and all allegations of wrongdoing or liability with respect to the claims asserted in the Derivative Actions. B. The Settlement Negotiations Settlement negotiations began in or around March 2024 when Plaintiffs sent a settlement demand to Defendants which set forth, inter alia, demands to settle the Derivative Actions in consideration of certain corporate governance reforms. The settlement negotiations between the Parties continued for several months as the Parties, by and through their attorneys, engaged in good faith, arm's-length discussions regarding the possible settlement of the Derivative Actions. In connection with the settlement negotiations, the Parties agreed to engage in mediation with Jed D. Melnick of JAMS (the "Mediator"). On April 3, 2024, the Parties attended a full-day mediation with the Mediator. During this mediation session, with the assistance of the Mediator, the Parties engaged in frank discussions regarding the strengths and weaknesses of the claims and defenses at issue in the Derivative Actions. Although no resolution was reached at the conclusion of this mediation, the Parties made significant progress and continued their arm's-length negotiations and exchanges of settlement proposals and counterproposals over the ensuing months. In early November 2024, following the exchange of numerous settlement proposals and counterproposals, the Parties reached an agreement in principle on the material substantive terms of a global settlement of the Derivative Actions and the terms of the corporate governance reforms, as reflected in Exhibit A to the Stipulation (the "Corporate Governance Reforms"). On November 14, 2024, the Parties executed a term sheet (the "Term Sheet") memorializing those material substantive terms and the terms of the Corporate Governance Reforms, subject only to the good faith negotiation and execution of the Stipulation. On June 26, 2025, the Parties completed their negotiations and executed the Stipulation. III. TERMS OF THE PROPOSED DERIVATIVE SETTLEMENT The proposed Settlement, as set forth more fully in the Stipulation, requires the Company to adopt and implement the Corporate Governance Reforms that are outlined in Exhibit A to the Stipulation. The Corporate Governance Reforms shall be maintained for a minimum period of four (4) years from the date of adoption as outlined in the Stipulation. The members of Blink's Board, including the independent, non-defendant directors, acting by unanimous resolution and in exercise of their business judgment, have determined that the Plaintiffs' efforts in connection with their respective Derivative Actions were a substantial factor in the adoption, implementation, and maintenance of the Corporate Governance Reforms provided by the Settlement; that because of the substantial corporate benefits conferred on Blink and its stockholders, the Settlement is fair and reasonable in all respects; and approval of the Settlement is in the best interests of the Company and its stockholders. This summary should be read in conjunction with, and is qualified in its entirety by reference to, the text of the Stipulation, which has been filed with the Court. IV. PLAINTIFFS' COUNSEL'S ATTORNEYS' FEES AND EXPENSES After the Parties reached an agreement in principle on the material substantive terms to resolve the Derivative Actions and executed the Term Sheet, the Parties commenced negotiations regarding an appropriate amount of attorneys' fees and expenses for Plaintiffs' Counsel. On April 29, 2025, the Parties participated in a half-day mediation overseen by the Mediator, concerning the amount of attorneys' fees and expenses to be paid to Plaintiffs' Counsel in consideration of the substantial benefits achieved for the Company and its current stockholders through the Derivative Actions. No agreement was reached by the conclusion of this mediation session, and after the Parties had arrived at an impasse, the Mediator issued a Mediator's Proposal to the Parties, pursuant to which Plaintiffs' Counsel would be paid attorneys' fees and expenses in the amount of $553,750 (five hundred fifty-three thousand, seven hundred and fifty dollars), subject to approval of the Court. On May 2, 2025, the Mediator reported to the Parties that all Parties had accepted the Mediator's Proposal. V. REASONS FOR THE SETTLEMENT The Parties believe that the Settlement and each of its terms are fair, reasonable, and in the best interests of the Company and its stockholders, and that the Settlement, including the Corporate Governance Reforms, confers substantial and material benefits upon the Company and its stockholders. A. Why Did Plaintiffs Agree to Settle? Plaintiffs and Plaintiffs' Counsel believe that the claims asserted in the Derivative Actions have merit and that their investigations support the claims asserted. However, and without conceding the merit of any of Defendants' defenses or the lack of merit of any of their own allegations, based upon their thorough investigation and evaluation of the relevant evidence, substantive law, procedural rules, and their assessment of the interests of Blink and Current Blink Stockholders, Plaintiffs and Plaintiffs' Counsel have determined that the Settlement's guarantee of substantial benefits conferred upon Blink and Current Blink Stockholders in the form of the Corporate Governance Reforms is fair, reasonable and adequate consideration for foregoing the pursuit of a potentially superior recovery through further litigation, and serves the best interests of Blink and Current Blink Stockholders. Plaintiffs and Plaintiffs' Counsel also have taken into account the uncertain outcome and the risk of any litigation, especially complex litigation such as the Derivative Actions, as well as the difficulties and delays inherent in such litigation. Based upon their thorough investigation and evaluation of the relevant evidence, substantive law, procedural rules, and their assessment of the interests of Blink and its stockholders, Plaintiffs and Plaintiffs' Counsel have determined that the Settlement's guarantee of substantial benefits conferred upon Blink and its stockholders in the form of the Corporate Governance Reforms is fair, reasonable and adequate consideration for foregoing the pursuit of a potentially superior recovery through further litigation, and serves the best interests of Blink and its stockholders. Plaintiffs' Counsel attest that they conducted an investigation relating to the claims and the underlying events alleged in the Derivative Actions, including, but not limited to: (i) reviewing and analyzing Blink's public filings with the SEC, press releases, announcements, transcripts of investor conference calls, and news articles; (ii) reviewing and analyzing the investigations in publicly- available pleadings against Blink related to the allegations in the Derivative Actions; (iii) reviewing and analyzing the allegations contained in the related Securities Class Action; (iv) researching, drafting, and filing shareholder derivative complaints; (v) reviewing internal documents produced by the Company pursuant to certain letter agreements; (vi) researching the applicable law with respect to the claims asserted (or which could be asserted) in the Derivative Actions and the potential defenses thereto; (vii) researching corporate governance issues; (viii) preparing detailed settlement demands on behalf of Plaintiffs; (ix) participating in a full-day mediation on April 3, 2024; (x) engaging in extensive pre- and post-mediation settlement discussions and exchanging extensive corporate governance reforms and counteroffers, with the Mediator and counsel for the Defendants; and (xi) negotiating and drafting the settlement documentation for presentment to the Court. Plaintiffs' Counsel's views are further informed by their experience and thorough analysis of the facts and law governing the applicable derivative standing and pleading requirements, substantive claims and defenses, and damages and disgorgement remedies. Plaintiffs' Counsel's assessment of the facts and legal issues material to their recommendation in favor of the Settlement was honed and refined in the course of drafting pleadings, and during the lengthy substantive written and verbal exchanges with Defendants' Counsel and the Mediator. B. Why Did the Defendants Agree to Settle? Defendants have vigorously denied, and continue to deny vigorously, any and all allegations of wrongdoing or liability with respect to the claims and contentions asserted in the Derivative Actions. Defendants expressly have denied and continue to deny all allegations of wrongdoing by or liability against them or any of them arising out of, based upon, or related to, any of the conduct, statements, acts or omissions alleged, or that could have been alleged in the Derivative Actions. Without limiting the foregoing, Defendants have denied and continue to deny, among other things, that they breached their fiduciary duties or any other duty owed to the Company or its stockholders, or that the Company or its stockholders suffered any damage or were harmed as a result of any conduct alleged in the Derivative Actions or otherwise. Defendants have further asserted and continue to assert that at all relevant times, they acted in good faith and in a manner they reasonably believed to be in the best interests of the Company and its stockholders. Nonetheless, Defendants also have taken into account the expense, uncertainty, and risks inherent in any litigation, especially in complex cases like the Derivative Actions, and that the Settlement would, among other things: (a) bring to an end the expenses, burdens, and uncertainties associated with the continued litigation of the claims asserted in the Derivative Actions; (b) put to rest those claims and the underlying Derivative Actions; and (c) confer benefits upon them, including further avoidance of disruption of their duties due to the pendency and defense of the Derivative Actions. Therefore, Defendants have determined that it is desirable and beneficial that the Derivative Actions, and all of the Parties' disputes related thereto, be fully and finally settled in the manner and upon the terms and conditions set forth in the Stipulation and Settlement. VI. SETTLEMENT HEARING On October 27, 2025, at 9:00 a.m., at Regional Justice Center, 200 Lewis Ave, Las Vegas, NV, 89155 Courtroom 10D or via Zoom or some other video platform or telephonically, the Honorable Gloria Sturman will hold the Settlement Hearing in the Action. At the Settlement Hearing, the Court will consider, pursuant to Nevada Rule of Civil Procedure 23.1, whether (i) the terms of the Stipulation should be approved as fair, reasonable, and adequate; (ii) this Notice fully satisfies the requirements of Nevada Rule of Civil Procedure 23.1 and due process; (iii) to enter the proposed Order and Final Judgment in its entirety, as set forth in Exhibit D to the Stipulation; (iv) the Fee and Expense Amount for Plaintiffs' Counsel, as well as service awards for each of the Plaintiffs of up to $2,000, to be paid from the Fee and Expense Amount, should be approved; and (v) to determine such other matters as the Court may deem appropriate. The Court may: (i) approve the Settlement, with such modifications as may be agreed to by counsel for the Parties consistent with such Settlement, without further notice to Current Blink Stockholders; (ii) continue or adjourn the Settlement Hearing from time to time, by oral announcement at the hearing or at any adjournment thereof, without further notice to Current Blink Stockholders; and (iii) conduct the Settlement Hearing remotely without further notice to Current Blink Stockholders. VII. RIGHT TO ATTEND SETTLEMENT HEARING Any Current Blink Stockholder may, but is not required to, appear in person at the Settlement Hearing. If you want to be heard at the Settlement Hearing, then you must first comply with the procedures for objecting, which are set forth below. The Court has the right to change the hearing dates or times without further notice. Thus, if you are planning to attend the Settlement Hearing, you should confirm the date and time before going to the Court. CURRENT BLINK STOCKHOLDERS WHO HAVE NO OBJECTION TO THE SETTLEMENT DO NOT NEED TO APPEAR AT THE SETTLEMENT HEARING OR TAKE ANY OTHER ACTION. VIII. RIGHT TO OBJECT TO THE SETTLEMENT AND THE PROCEDURES FOR DOING SO You have the right to object to any aspect of the Settlement. You must object in writing, and you may request to be heard at the Settlement Hearing. If you choose to object, then you must follow these procedures. A. You Must Make Detailed Objections in Writing Any objections must be presented in writing and must contain the following information: 1. Your name, legal address, telephone number, and e-mail address; 2. The number of shares of Blink stock you currently hold, together with third-party documentary evidence, such as the most recent account statement, showing such share ownership, and proof of being a Blink Stockholder as of June 26, 2025 through the present; 3. If the objection is made by the Current Blink Stockholder's counsel, the counsel's name, address, telephone number and e-mail address (if available); 4. A statement of specific objections to the Settlement, the grounds therefore, or the reasons for such person desiring to appear and be heard, as well as all documents or writings such person desires the Court to consider; 5. The identities of any witnesses such Person plans on calling at the Settlement Hearing, along with a summary description of their likely testimony; and 6. A list -- including dates, courts, case names and numbers, and disposition -- of any other Settlements to which the individual or entity has been a party to or objected during the previous three (3) years. B. You Must Timely File Written Objections with the Court and Deliver to Counsel for Plaintiffs and Defendants ANY WRITTEN OBJECTIONS MUST BE ON FILE WITH THE CLERK OF THE COURT NO LATER THAN OCTOBER 6, 2025. The Court Clerk's address is: Clerk of Court Eighth Judicial District Court Clark County Regional Justice Center 200 Lewis Ave. Las Vegas, NV 89155 YOU ALSO MUST DELIVER COPIES OF THE MATERIALS TO COUNSEL FOR PLAINTIFFS AND COUNSEL FOR DEFENDANTS SO THEY ARE RECEIVED NO LATER THAN OCTOBER 6, 2025. Counsel's addresses are: Counsel for Plaintiffs: SHUMAN, GLENN & STECKER Rusty E. Glenn 600 17th Street, Suite 2800 South Denver, CO 80202 (303) 861-3003 rusty@shumanlawfirm.com GAINEY McKENNA & EGLESTON Thomas J. McKenna Gregory M. Egleston 260 Madison Avenue, 22nd Floor New York, NY 10016 (212) 983-1300 tjmckenna@gme-law.com gegleston@gme-law.com Counsel for Defendants: HOLLAND & KNIGHT, LLP Stephen Warren Allison Kernisky 701 Brickell Avenue, Suite 3300 Miami, FL 33131 (305) 374-8500 stephen.warren@hklaw.com allison.kernisky@hklaw.com Unless the Court orders otherwise, your objection will not be considered unless it is timely filed with the Court and delivered to the above-referenced counsel for the Parties. Any attorney retained by a person intending to appear, and requesting to be heard, at the Settlement Hearing must, in addition to the requirements set forth above, file with the Clerk of the Court and deliver to counsel listed above for the Parties a notice of appearance, which must be received by no later than October 6, 2025. Any person or entity who fails to object or otherwise request to be heard in the manner prescribed above will be deemed to have waived the right to object to any aspect of the Settlement or otherwise request to be heard (including the right to appeal) and will be forever barred from raising such objection or request to be heard in this or any other action or proceeding. IX. HOW TO OBTAIN ADDITIONAL INFORMATION This Notice summarizes the Stipulation. It is not a complete statement of the events of the Nevada Action, Derivative Actions or the Stipulation. For additional information about the claims asserted in the Derivative Actions and the terms of the proposed Settlement, please refer to the documents filed with the Court in the Nevada Action, the Stipulation and its exhibits (they are filed as an exhibit to the Company's Current Report on Form 8-K filed with the SEC and available at www.sec.gov), and this Notice of Pendency and Proposed Settlement of Derivative Actions. The "Investor Relations" section of Blink's website (https://ir.blinkcharging.com) provides hyperlinks to the Notice and to the Stipulation and its exhibits. You may obtain further information by contacting any of Plaintiffs' counsel at the above contact information. PLEASE DO NOT CALL, WRITE, OR OTHERWISE DIRECT QUESTIONS TO EITHER THE COURT, THE CLERK'S OFFICE, DEFENDANTS OR DEFENDANTS' COUNSEL. DATED: August 15, 2025 BY ORDER OF THE COURT CLARK COUNTRY, NV DISTRICT COURT BOROFF & ASSOCIATES: Court OKs Bar Order in "Prince" ---------------------------------------------------- In the case captioned as Maritza Prince, individually and on behalf of all persons similarly situated, Plaintiff, v. Jason D. Boroff & Associates, PLLC; Process Server Plus, Inc.; Enrique Diaz; and Emmanuel Lanzot, Defendants, Civil Action No. 24 Civ. 2706 (GS) (S.D.N.Y.), Judge Gary Stein of the United States District Court for the Southern District of New York granted the Defendant's motion for entry of a bar order. The court's September 11, 2025 ruling permanently bars contribution and indemnity claims between the settling law firm and the remaining process server defendants. The court noted that Plaintiff Maritza Prince and Defendant Jason D. Boroff & Associates, PLLC reached a settlement in this litigation, the terms and conditions of which are memorialized in the Stipulation of Settlement and Release filed with this Court on April 7, 2025. In connection with the settlement reached between Plaintiff and the Boroff Firm, the Boroff Firm filed a Motion for the Entry of a Bar Order, to which Plaintiff consented. The Process Server Defendants, as defined in the Stipulation of Settlement, informed the Court that they do not oppose the Boroff Firm's Motion. The court considered all papers, evidence and arguments filed and presented in support of and in opposition to the Motion. By its motion and on consent of Plaintiff, the Boroff Firm requested that the Court approve the entry of a bar order as to contribution, indemnity and other similar claims against the Boroff Firm. The court determined that the entry of such bar order is a material term of Stipulation of Settlement and that the judgment reduction provisions set forth below adequately protect the rights of the remaining, non-settling defendants. Mutual Bar Provisions The court ordered that as of the Final Settlement Date, the Process Server Defendants, and their successors and assigns who are or may be liable to Plaintiff or the Settlement Class, are barred and permanently enjoined from making any claim against the Boroff Firm for contribution or indemnity or any other claim measured by the Process Server Defendants' or such successor's and/or assign's liability to Plaintiff or the Settlement Class, however denominated or styled, whether based on federal, state or foreign law, whether by claim, cross-claim, counterclaim or third-party claim, arising out of or relating in any way to the above-captioned matter. Similarly, the court ruled that as of the Final Settlement Date, the Boroff Firm, and its successors and assigns who are or may be liable to Plaintiff or the Settlement Class, is barred and permanently enjoined from making any claim against the Process Server Defendants for contribution or indemnity or any other claim measured by the Boroff Firm's or such successor's and/or assign's liability to Plaintiff or the Settlement Class, however denominated or styled, whether based on federal, state or foreign law, whether by claim, cross-claim, counterclaim or third-party claim, arising out of or relating in any way to the above-captioned matter. Judgment Reduction Formula The court established that in the event Plaintiff and/or the settlement class certified in connection with final approval of the class action settlement between Plaintiff and the Boroff Firm secure a litigated judgment or default judgment against any of the Process Server Defendants after the Final Settlement Date, the damages recoverable from the Process Server Defendant(s) in favor of Plaintiff and/or the Class shall be reduced by the greater of: i. The amount of funds paid by the Boroff Firm and actually received by Plaintiff and/or the Class in the form of Settlement Class Member Awards and a Service Award (exclusive of Administration Expenses and Approved Attorneys' Fees); or ii. An amount that corresponds to the percentage of responsibility attributable to the Boroff Firm as determined by the Court or trier of fact. A copy of the Court's decision is available at https://urlcurt.com/u?l=LXIezb from PacerMonitor.com CONNEX CREDIT UNION: Maio Files Suit in D. Connecticut ------------------------------------------------------ A class action lawsuit has been filed against Connex Credit Union, Inc. The case is styled as Alfred Maio, individually, and on behalf of all others similarly situated v. Connex Credit Union, Inc., Case No. 3:25-cv-01334-SVN (D. Conn., Aug. 20, 2025). The nature of suit is stated as Other P.I. for Tort/Non-Motor Vehicle. Connex Credit Union -- https://www.connexcu.org/home/home -- is a non-profit organization that offers online banking and credit card services.[BN] The Plaintiff is represented by: Michael John Reilly, Esq. CICCHIELLO & CICCHIELLO, LLP 364 Franklin Avenue Hartford, CT 06114 Phone: (860) 296-3457 Fax: (860) 296-0676 Email: mreilly@cicchielloesq.com COURTNEY JONES: Hall's Bid for Class Certification Tossed as Moot ----------------------------------------------------------------- In the class action lawsuit captioned as Hall v. Courtney Jones, et al., Case No. 2:25-cv-00207 (M.D.N.C., Filed March 13, 2025), the Hon. Judge Sheri Polster Chappell entered an order denying as moot the Plaintiff Wendall Hall's motion for class certification and motion for appointment of counsel and motion for ruling on pending motion or to issue service of process upon defendants. Hall's amended complaint moots the first motion. The second is moot because the Defendants have been served. The nature of suit states Prisoner Petitions -- Habeas Corpus -- Prison Condition.[CC] DA SPOT: Wins Dismissal of Visually Impaired Plaintiff's Suit ------------------------------------------------------------- In the case captioned as Timothy Hernandez, Plaintiff, v. Da Spot NYC, LLC, Defendant, Civil Action No. 25-CV-03701 (HG) (E.D.N.Y.), Judge Hector Gonzalez of the United States District Court for the Eastern District of New York dismissed with prejudice the Plaintiff's putative class action for failure to comply with court orders. Judge Gonzalez dismissed the case after the Plaintiff and his counsel repeatedly failed to comply with mandatory court scheduling requirements. The Plaintiff commenced this putative class action against Da Spot NYC, LLC on July 3, 2025, alleging that he was visually impaired and legally blind and unable to purchase products from the Defendant's website because it was incompatible with screen access programs he needed to use the website. The Plaintiff claimed that the Defendant violated the Americans with Disabilities Act. After the Plaintiff filed proof of service, the Court ordered the parties to submit a joint letter describing the case and a civil case management plan by August 28, 2025, in accordance with certain attached mandatory requirements. The Court specifically ordered the Plaintiff's counsel, Rami Salim of Stein Saks PLLC, to notify the Defendant's counsel of this scheduling order, in writing, as soon as reasonably possible. However, the deadline passed with no joint letter or case management plan filed. The Court extended the deadline to September 5, 2025, and warned that if the parties failed to meet this deadline, the Court would enter a discovery schedule without seeking further input from the parties. The Court also warned that future failures to comply with court orders may result in sanctions. Despite these warnings, the second deadline passed six days before the Court's ruling with no required filings submitted and no request for extension of time. The Defendant's owner, Michelle Cadore, filed a letter requesting an extension of time to respond to the Complaint. Her letter indicated that she only became aware of the August 28, 2025, deadline on August 27, 2025, which the Court deemed unacceptable given that the Plaintiff's counsel had been ordered to notify the Defendant's counsel of the scheduling order as soon as reasonably possible. The Court found the Plaintiff and his counsel primarily culpable for the parties' failure to comply. The Court noted that the Plaintiff brought this case and therefore had the responsibility to move the case forward. At no point did the Plaintiff request an extension of time to file the mandatory documents or notify the Court that his counsel had not conferred with the Defendant or counsel for the Defendant. Judge Gonzalez applied the five-factor test established by the Second Circuit in Baptiste v. Sommers for Rule 41(b) dismissals: (1) the duration of the plaintiff's failure to comply with the court order, (2) whether the plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal. The Court found that over six weeks had passed since the initial scheduling order, supporting dismissal under the first factor. The Court determined that the Plaintiff had adequate notice that failure to comply could result in sanctions, satisfying the second factor. Regarding prejudice to the Defendant, the Court noted that a defendant should not be forced to bear the expense of defending a lawsuit when the plaintiff has shown little or no interest in pursuing that lawsuit. The Court expressed concern about the Plaintiff's counsel's apparent business model of mass-generating website ADA lawsuits without meaningfully litigating the issues, which would likely result in additional delay and cause the Defendant to incur unnecessary expenses. The Court cited multiple cases where Stein Saks PLLC had been sanctioned for similar conduct involving boilerplate ADA website complaints. On judicial economy, the Court emphasized that it was the Court's responsibility to move cases forward, not keep cases in a holding pattern while the Plaintiff attempted to pressure defendants to settle. The Court stated that chasing the Plaintiff to comply with basic procedural obligations had been a waste of judicial resources. Finally, the Court considered whether lesser sanctions would be appropriate but concluded that given the number of prior warnings and sanctions imposed on the Plaintiff's counsel over several years for willfully defying court orders, there was no reason to believe that a lesser sanction would be effective. Therefore, the Court dismissed the Plaintiff's claims with prejudice for failure to comply with court orders pursuant to Rule 41(b). The Court ordered the Clerk of Court to enter judgment and close the case. The Court also ordered the Plaintiff's counsel to certify by September 18, 2025, that he had made his client aware of this Order, with failure to comply resulting in monetary sanctions and/or contempt of court. A copy of the Court's Memorandum and Opinion is available at https://urlcurt.com/u?l=V9KfYP from PacerMonitor.com DENCO CONSTRUCTION: "Perez" Class Granted Conditional Certification ------------------------------------------------------------------- In the case captioned as Wilmar Perez, Ruby Orantes, Edgar Suarez Aceros, Alexis Calderon, and Gojhan Sierra, Plaintiffs, v. Denco Construction LLC d/b/a Denco, Roa Construction LLC, ABC Companies 1-10, Bruce Rahmani, Yessica Roa, and John Does 1-10, Defendants, Civil Action No. 24-cv-02766-RMR-NRN (D. Colo.), United States Magistrate Judge N. Reid Neureiter granted Plaintiffs' motion for conditional certification and to facilitate notice of collective action pursuant to Section 216(b) of the Fair Labor Standards Act. The court ordered conditional certification of a collective action involving construction workers who allegedly were denied proper overtime pay through a dual timecard scheme. Judge Neureiter found that Plaintiffs met the lenient standard required for conditional certification by alleging they were together the victims of a single decision, policy, or plan. Background and Allegations Plaintiffs and putative collective members are construction workers employed by Defendants Denco Construction LLC and Bruce Rahmani (the "Denco Defendants"). The workers alleged violations of the Fair Labor Standards Act, the Colorado Wage Act, and the Colorado Overtime and Minimum Pay Standards Order. According to the Third Amended Complaint, The Denco Defendants required workers to use two separate timecards. The Denco Defendants would pay employees for the first 40 hours worked. Then, rather than being paid overtime for additional hours worked, employees would be paid straight time by Roa Construction LLC, a shell company controlled and funded by the Denco Defendants. The court noted that after the lawsuit was filed, the Denco Defendants began requiring Spanish-speaking employees to sign English-language settlement agreements. The court learned that at least 66 current or former Denco employees signed settlement agreements with Denco between October 2024 through February 2025. In 61 instances, the signings occurred in December 2024, the agreement was provided only in English, and the employee received a check for exactly $500. Defendants' Opposition Arguments The Denco Defendants raised several objections to conditional certification: a. Standing of Plaintiffs Perez, Orantes, and Suarez: Defendants claimed these plaintiffs lacked standing because they signed settlement agreements and received checks. b. Joint Employer Status: Defendants argued that Plaintiffs Calderon and Sierra were not employed by the Denco Defendants and could not represent a collective against them. c. Conditional Certification Standards: Defendants contended that Plaintiffs failed to plead substantial allegations showing they were similarly situated to the proposed collective. d. Notice Objections: Defendants objected to various aspects of the proposed notice and distribution methods. Court's Analysis and Rulings Standing Issues: The court rejected Defendants' standing arguments, noting there are disputed facts as to whether Suarez knowingly waived any rights when he signed a document in a language he could not read and, like most of the other putative class members, received only $500 for what he was told was an error in tax calculations." The court found that Suarez has a facially viable FLSA claim and saw no reason to delay conditional certification. Joint Employer Claims: Regarding Calderon and Sierra, the court found their declarations sufficient, noting both state, based on personal knowledge, that Bruce Rahmani, the owner of Denco, established Roa Construction together with his employee Yessica Roa to pay workers like me at straight time for all hours worked and avoid paying workers the correct overtime rate." The court concluded that "Plaintiffs claim that Roa Construction LLC was a sham company that was created as a means to violate wage and hour laws. Conditional Certification Standard: The court emphasized that the standard for certification at this stage is a lenient one and requires nothing more than substantial allegations that the putative collective action members were together the victims of a single decision, policy, or plan. Judge Neureiter found that Plaintiffs describe in detail in the Third Amended Complaint and their declarations the scheme the Denco Defendants allegedly concocted with the Roa Defendants and others to avoid paying overtime. Similarly Situated Analysis: The court rejected Defendants' argument about individual variances, explaining that the predominance of individual questions is only relevant at the post-discovery stage of the collective action certification. The court noted that at this stage it is sufficient to provide nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan. Equitable Tolling The court granted limited equitable tolling, finding that "the interests of justice are best served by permitting limited equitable tolling from November 20, 2024, the date the original motion for conditional certification, through the end of the opt-in period. Notice Provisions The court largely accepted Plaintiffs' proposed notice with specific modifications: 1. The notice must include language correcting the misimpression that any waivers signed by the employees are necessarily valid 2. The notice must include the Denco Defendants' denial of Plaintiffs' allegations and mention their primary defenses 3. The notice must inform recipients of their responsibilities in joining the lawsuit, such as paying court costs and fees if Defendants prevail, participating in discovery, and/or appearing at a deposition or trial in Denver Final Orders The court ordered conditional certification of the following collective: All construction workers who worked on or after October 7, 2021, who worked for Defendants who were not paid overtime at time and one half their hourly rate for work performed after 40 hours in a given week." The court further ordered that: -- Plaintiffs shall deliver notice to potential collective members via first-class U.S. Mail -- Defendants shall post the notice in English and Spanish in conspicuous places in their place of business for a period of 60 days -- Defendants shall include notice copies in two consecutive pay envelopes of all putative collective action members currently employed by Defendants -- Defendants must produce contact information for potential class members within 14 days of the Court's order -- Putative class members have 60 days from the date Plaintiffs disseminate the Notice in which to opt-in to the action The court also permitted Plaintiffs' counsel to send notice via e-mail, text message and mail. A copy of the Court's order is available at https://urlcurt.com/u?l=fmgUb3 from PacerMonitor.com DISCOVER: Settlement Claim Submission Deadline Set for May 18 ------------------------------------------------------------- WHAT IS THIS ABOUT? A proposed class action settlement has been reached in three related lawsuits. The lawsuits allege that, beginning in 2007, Discover misclassified certain Discover-issued consumer credit cards as commercial credit cards, which in turn caused merchants and others to incur excessive interchange fees. The misclassification did not impact cardholders. Discover denies the claims in the lawsuits, and the Court has not decided who is right or wrong. Instead, the proposed settlement, if approved, will resolve the lawsuits and provide benefits to Settlement Class Members. WHO IS INCLUDED? The Settlement Class includes all End Merchants, Merchant Acquirers, and Payment Intermediaries involved in processing or accepting a Misclassified Card Transaction during the period from January 1, 2007 through December 31, 2023. To view the full Settlement Class definition, including defined terms and excluded entities, go to www.DiscoverMerchantSettlement.com. WHAT CAN I GET? To receive a settlement payment, with very limited exceptions, you will need to file a claim by May 18, 2026 and/or provide additional information to the Settlement Administrator. Under the proposed settlement, Discover will make payments to eligible Settlement Class Members who submit valid claims. Discover has agreed to pay between $540 million and $1.225 billion plus interest in connection with this settlement. Your settlement payment amount will be calculated based on a variety of factors. YOUR OTHER OPTIONS. You can file a claim for a payment by May 18, 2026 and/or provide additional information. Alternatively, you can exclude yourself from the settlement by opting out, in which case you will receive no payment under this settlement and retain any right you may have to sue Discover about the claims in these lawsuits or related to the Misclassified Card Transactions. If you do not exclude yourself, and the Court approves the settlement, you will be bound by the Court's orders and judgments and will release any claims against Discover in these lawsuits or related to the Misclassified Card Transactions. If you do not exclude yourself, you can object to or comment on any part of the settlement. The deadline to either exclude yourself or object to the settlement is March 25, 2026. Visit www.DiscoverMerchantSettlement.com information on how to exercise these options. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS ELIGO ENERGY: Court OKs Filing of 2nd Amended Complaint in "Brous" ------------------------------------------------------------------ In the case captioned as Anne Brous and Michelle Schuster, on behalf of themselves and all others similarly situated, Plaintiffs, v. Eligo Energy, LLC and Eligo Energy NY, LLC, Defendants, Civil Action No. 24-cv-01260 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the United States District Court for the Southern District of New York granted Plaintiffs' motion for leave to file a second amended complaint and denied as moot Defendant's motion to dismiss all out-of-state claims. Eligo is a company that sells natural gas and electricity across the United States. Plaintiffs are New York residents who separately contracted with Eligo for their residential electricity supply. Eligo thereafter supplied electricity to Plaintiffs until they cancelled their contracts in November 2023. Plaintiffs allege that Defendant's deceptive and bad faith pricing practices have caused tens of thousands of commercial and residential customers" across the United States "to pay considerably more for their electricity and natural gas than they should otherwise have paid. Plaintiffs initiated this putative class action on February 20, 2024, on behalf of all Eligo customers in the United States (the "Class"), and all Eligo customers in New York (the "Subclass"). They asserted breach of contract and violations of various consumer protection statutes including Connecticut Unfair Trade Practices Act Section 42-110b; Illinois Consumer Fraud Act Section 505/2; Maryland Consumer Protection Act Section 13-303, et seq.; Michigan Consumer Protection Act Section 445.903; New Jersey Consumer Fraud Act Section 56:8-2; New York General Business Law Section 349; Pennsylvania Unfair Trade Practices and Consumer Protection Law Section 201-2(4); and District of Columbia Consumer Protection Procedures Section 28-3904, et seq. On May 9, 2024, at a pre-motion conference, the Court granted Defendant's request for leave to file a motion to dismiss and limited discovery to New York claims until the motion was decided. On January 6, 2025, Defendant moved to dismiss Plaintiffs' out-of-state claims in the amended complaint, arguing that (1) Plaintiffs' contracts are materially different from the out-of-state customers' contracts; (2) Plaintiffs lack statutory standing to pursue claims under out-of-state consumer protection statutes; (3) the out-of-state customers agreed to resolve disputes in their home states; and (4) this Court lacks personal jurisdiction over the out-of-state claims. On March 21, 2025, Plaintiffs filed a letter seeking to expand discovery to four additional jurisdictions: Washington, D.C., Illinois, Massachusetts, and Maryland. At a discovery conference on April 16, 2025, the Court rejected Plaintiffs' request to expand discovery to the four additional states. On May 7, 2025, Plaintiffs requested leave to file a second amended complaint to strike all the out-of-state claims and narrow the scope of the proposed class to New York customers only. In the proposed amended complaint, Plaintiffs propose a class limited to New York customers (the "Amended Class") and strikes all the other claims regarding violations of consumer protection statutes of all other states. The proposed amended complaint also clarifies that excluded from the [Amended] Class are any residential or commercial customers included in the proposed classes that are preliminarily defined in Bodkin or Orzolek. Any customer included in any class that is eventually certified in Bodkin or Orzolek is also excluded from the [Amended] Class." The proposed amended complaint also adds that any further modification to the Amended Class will not include non-New York customers. The Court found that Plaintiffs established good cause for amendment under Rule 16 because they sought to amend three weeks after the Court denied their request to expand discovery to other jurisdictions, and the amendment does not require additional discovery or adjustment of any case deadlines. Whether good cause exists depends primarily on the diligence of the party seeking amendment. Here, Plaintiffs have met the "good cause" standard. They sought leave to amend three weeks after the Court denied their request to expand discovery to non-New York claims, which satisfies the diligence requirement under Rule 16. In addition, the amendment does not prejudice Defendant because it will not require additional discovery, does not affect any other deadlines, and will not delay resolution of the case. Regarding undue delay, the Court found that there was no undue delay because Plaintiffs' proposed amendment was filed only three weeks after the April 16, 2025 Order. Concerning bad faith, Defendant argued there is bad faith because after failing to expand discovery in this action, Plaintiffs now seek to abandon their multi-state claims to relitigate them" in other cases. The Court found that Defendant has not satisfied their burden of showing bad faith. The proposed amendment seeks to limit this action only to New York claims, and the parties agree that the action should be limited to New York claims. A change in litigation strategy is a legitimate reason for seeking to amend a pleading under the liberal standard of Rule 15(a). Regarding futility, Defendant argued that the proposed amendment would be futile because it does not add new allegations or causes of action; it only removes non-New York consumer protection claims. Defendant has not met their burden of establishing the futility of the proposed amendment. The claims that Defendant moves to dismiss are the same claims that Plaintiffs propose to strike in their proposed amended complaint. Defendant argued that the proposed amendment is prejudicial because they have already expended over $1 million in legal fees defending this case, including briefing two motions to dismiss the non-New York claims and opposing over a dozen discovery motions. The Court did not find that amendment would unduly prejudice Defendant. The amendment will not require additional discovery, does not affect any other deadlines, and will not delay resolution of this action. Accordingly, Plaintiffs' proposed amendment meets the Rule 15 standard. Because the Court granted leave to amend, it denied the motion to dismiss as moot. Plaintiffs' motion for leave to file a second amended complaint is granted, and Defendant's motion to dismiss is denied as moot. A copy of the Court's decision is available at https://urlcurt.com/u?l=3GHmo7 from PacerMonitor.com EVERUS CONSTRUCTION: Scofield Suit Voluntarily Dismissed -------------------------------------------------------- Everus Construction Group, Inc. disclosed in its Form 10-Q report the quarterly period ended June 30, 2025, filed with the Securities and Exchange Commission in August 13, 2025, that on May 29, 2025, the company announced that "Scofield v. Everus Construction Group, Inc., et al.," (Case No. 1:25-cv-02835) had been voluntarily dismissed. On April 4, 2025, said putative class action lawsuit was filed against the company and certain officers in the United States District Court for the Southern District of New York. The complaint was filed on behalf of a purported class consisting of all purchasers or acquirors of its common stock between October 31, 2024, and February 11, 2025, including investors who held MDU Resources Group, Inc. (a tax-free spinoff of Everus Construction Resources) common stock as of October 21, 2024, and acquired the company's common stock in connection with the separation. The complaint alleged violations of Sections 10(b) and 20(a) of the Exchange Act, based on allegedly false and misleading statements related to the company's backlog conversion cycle and its impact on the company's business, operations, and prospects. The complaint sought unspecified damages, an award of costs and expenses, and other unspecified relief. Everus Construction Group, Inc. is a construction solutions provider headquartered in Bismarck, North Dakota, offering specialty contracting services. FRESH HARVEST: Wins Motion to Force H-2A Workers to Arbitration --------------------------------------------------------------- In the case captioned as Antonio Rubio-Leon, Angel De Jesus Rocha-Rivera, Diego Martinez-Jimenez, and Gerardo Ledesma-Delgado, Plaintiffs, v. Fresh Harvest, Inc., Farm Labor Association for Growers, Inc., and SMD Logistics, Inc., Defendants, Civil Action No. 24-cv-03375-EKL (N.D. Cal.), Judge Eumi K. Lee of the United States District Court for the Northern District of California granted the motion to compel arbitration as to non-PAGA claims, dismissed Plaintiffs' claims without prejudice to the extent they are brought as a class or collective action, and stayed the action while arbitration is pending. The Plaintiffs are four seasonal workers who were hired by one or more of the Defendants. Defendants are Fresh Harvest, Inc., Farm Labor Association for Growers, Inc., and SMD Logistics, Inc. Plaintiffs alleged that Fresh Harvest is a farm labor contractor, that FLAG engages in farm labor contracting activities as an alter ego of Fresh Harvest, and that SMD is the trucking arm of Fresh Harvest. Plaintiffs alleged that they worked for Defendants as seasonal workers pursuant to H-2A visas. The H-2A visa program allows certain agricultural employers to bring foreign nationals into the United States if there are not enough U.S. workers to perform the job, and if such employment will not adversely affect the wages and working conditions of similarly-employed U.S. workers. Plaintiffs alleged that they were H-2A workers brought into the United States by Defendants as truck drivers. They alleged that they worked in Heavy and Tractor-Trailer Truck Driver positions operating tractor-trailers on roads and highways hauling harvested vegetables to Defendants' clients' cooler and produce-packing locations. Each Plaintiff signed an arbitration agreement, which provides that any and all disputes, controversies or claims arising out of or relating to this employment handbook, your employment or the termination of your employment may be settled by binding arbitration before an impartial arbitrator, unless otherwise prohibited by applicable law. The arbitration provision provides the exclusive remedy and, by reading and signing this Agreement, each Plaintiff expressly waived any right they might have to seek redress in any other forum, including a trial by jury. The arbitration agreement also provides that signatories are expressly precluded from filing or participating in any joint, class, representative or collective claims addressing their wages, hours or other terms or conditions of their employment against the employer in any forum, whether arbitral or judicial. Plaintiffs asserted ten claims relating to wage-and-hour violations under state and federal law. Specifically, Plaintiffs asserted claims for: (1) Violation of the Fair Labor Standards Act (29 U.S.C. Section 206 et seq.); (2) Failure to Pay California Minimum Wage (Cal. Lab. Code Section 1194); (3) Failure to Pay Overtime Wages (Cal. Lab. Code Section 1194); (4) Failure to Reimburse Business Expenses (Cal. Lab. Code Section 2802); (5) Breach of Employment Contract; (6) Failure to Furnish Accurate Itemized Wage Statements (Cal. Lab. Code Section 226); (7) Violation of California's Unfair Competition Law (Cal. Bus. & Prof. Code Section 17200 et seq.); (8) Waiting Time Penalties for Failure to Pay All Wages Due (Cal. Lab. Code Section 203); (9) Civil Penalties under the Private Attorneys General Act (Cal. Lab. Code Section 2698); and (10) Retaliation (Cal. Lab. Code Section 98.6). Defendants moved to compel Plaintiffs to arbitrate all claims alleged in this action on an individual basis, to dismiss the putative class claims alleged pursuant to an express class action waiver, and to dismiss the representative PAGA claims or to stay them pending arbitration. Plaintiffs opposed arbitration, but did not address the other relief Defendants requested. Court's Analysis on Transportation Worker Exemption The Federal Arbitration Act governs the enforcement of written arbitration agreements implicating interstate commerce. In deciding whether to compel arbitration, a court must determine: (1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute. Plaintiffs did not dispute that these two threshold requirements are satisfied. Plaintiffs opposed arbitration on the basis that the arbitration provision is exempt from the FAA because Plaintiffs are transportation workers engaged in foreign or interstate commerce. The Court applied a two-step analysis to determine whether the transportation worker exemption applies. At step one, the Court defined the relevant class of workers to which Plaintiffs belong. At step two, the Court determined whether that class of workers is engaged in foreign or interstate commerce. The Court found that there is no genuine dispute of fact that Plaintiffs belong to a class of workers that haul and truck a variety of agricultural products directly from a farmer's fields to a cooling facility at the farm's processing plant. This class definition is supported by Plaintiffs' signed declarations and documentary evidence, including Plaintiffs' pay stubs and records reflecting their H-2A visa employment status. Defendants offered a declaration from Matt Scaroni stating that Plaintiffs were hired as farm workers, but this declaration did not address the work that Plaintiffs actually performed. At step two, the Court analyzed whether the class of workers plays a direct and necessary role in the free flow of goods across borders. The Court found that Plaintiffs had not met their burden to produce evidence showing that the class of workers plays a tangible and meaningful role in the progress of goods through the channels of interstate commerce. The evidence reflected that the workers move fresh agricultural products directly from the fields in which they are harvested to a cooling facility at the farm's processing plant. However, there was no evidence reflecting what happens to the goods after they reach the cooling facility. There was no evidence that the agricultural products ever moved in interstate commerce, let alone that the class of workers played a meaningful role in that journey. The Court distinguished cases involving last leg delivery drivers, noting that those cases involved a nexus between the class of workers and the progress of goods through the channels of interstate commerce. Here, unlike in those cases, there was no evidence that the agricultural products ever moved in interstate commerce. There was only evidence that the products moved from fields to a processing plant. The Court concluded that Plaintiffs had not met their burden at step two to produce evidence regarding the workers' relationship to the movement of goods in interstate commerce. Plaintiffs performed purely intrastate work, transporting agricultural products from fields to a cooling facility at the farm's processing plant. There was no evidence in the record regarding the relationship between this work and the potential movement of the goods in interstate commerce. Accordingly, because the transportation worker exemption did not apply, the Court granted Defendants' motion to compel arbitration. The Court also granted Defendants' motion to dismiss Plaintiffs' putative class claims pursuant to the express class and collective action waiver in the arbitration agreements. The arbitration agreements precluded Plaintiffs from filing or participating in any joint, class, representative or collective claims. Plaintiffs did not contest the validity of this waiver under federal law. Accordingly, the Court gave effect to the waiver provision in the arbitration agreements and dismissed Plaintiffs' putative class and collective claims without prejudice to the rights of putative absent class members. Stay of Proceedings The Court granted Defendants' motion to stay this action pending resolution of Plaintiffs' individual arbitrations. The Court concluded that a discretionary stay would conserve judicial and party resources given the substantial overlap between the arbitrable claims and the non-arbitrable PAGA claim. Staying the entire action is more judicially efficient because of the possibility of substantially simplifying the issues and the risk of wasting judicial resources if the entire action is not stayed. The Court ordered as follows: (1) granted Defendants' motion to compel arbitration as to all claims, except for Plaintiffs' representative PAGA claim; (2) granted Defendants' motion to dismiss Plaintiffs' claims to the extent they are brought as a class or collective action, pursuant to the valid waiver of such claims included in the arbitration agreement, with dismissal being without prejudice to the rights of putative class members; (3) granted Defendants' motion to stay this action in its entirety until arbitration concludes; and (4) vacated all other case deadlines in light of the stay. A Copy of the Court's decision is available at https://urlcurt.com/u?l=qEnUX7 from PacerMonitor.com GO NEW YORK: Court Orders Conference Over Wage Claim Settlement --------------------------------------------------------------- In the case captioned as Victor H. Alvarado Balderramo, individually and on behalf of all other persons similarly situated, et al., Plaintiffs, v. Go New York Tours Inc., and Asen Kostadinov, jointly and severally, Defendants, Civil Action No. 15 Civ. 2326 (ER) (S.D.N.Y.), Judge Edgardo Ramos of the United States District Court for the Southern District of New York ordered the parties to appear for a conference regarding the prolonged class action settlement negotiations. Victor H. Alvarado Balderramo brought this putative class action pursuant to the Fair Labor Standards Act, New York Labor Law, the Minimum Wage Act, and the Wage Theft Protection Act against Go New York Tours, Inc., and its president and owner, Asen Kostadinov on March 27, 2015. The lengthy procedural history in this case was summarized in the Court's last opinion in this action, Balderramo v. Go New York Tours Inc., 668 F. Supp. 3d 207 (S.D.N.Y. 2023), which granted in part and denied in part the parties' cross-motions for summary judgment. On April 10, 2023, the parties informed the Court they were engaging in private mediation. On December 5, 2023, the parties informed the Court that they were preparing a settlement agreement and once executed, anticipated moving to preliminarily approve a class action settlement. On July 16, 2024, the Court directed the parties to submit a status letter by July 23, 2024 advising the Court on how they wished to proceed, including whether they intended to submit a settlement agreement for Cheeks review. On July 24, 2024, the parties informed the Court that they were working on finalizing a class action settlement and preparing to move, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to preliminarily approve that class action settlement. On April 17, 2025, the parties filed a status letter informing the Court that they are finalizing a class action settlement and that Balderramo expected to share proposed motion papers with Defendants in the next few weeks. On July 18, 2025, the parties filed a status letter informing the Court again that they are still finalizing a class action settlement. Since then, there has been no activity in this case. The parties are directed to appear for a conference on October 8, 2025 at 11:30 a.m. in Courtroom 619 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007. A copy of the Court's settlement is available at https://urlcurt.com/u?l=2th6Uk from PacerMonitor.com HEALTH CARE SERVICE: "Zieba" Class Certification Reversed --------------------------------------------------------- In the case captioned as Aleksandra Zieba, Plaintiff-Appellee, v. Health Care Service Corporation d/b/a Blue Cross Blue Shield of Illinois, Defendant-Appellant, Appeal No. 1-24-2423 (Ill. App. 1st Dist.), Justice Gamrath of the Illinois Appellate Court First Judicial District reversed the trial court's grant of class certification. The Court of Appeals reversed the class certification order, holding that class certification was improper where the trial court acknowledged plaintiff did not demonstrate that common questions would predominate over individual ones, since calculation of damages and other issues would involve highly individualized inquiries for each class member. Plaintiff Aleksandra Zieba held a health insurance policy with defendant Health Care Service Corporation, also known as Blue Cross and Blue Shield of Illinois. Zieba's policy required that when the insured submits a complete post-service claim, Blue Cross and Blue Shield must notify you of the claim determination (whether adverse or not) within 30 days. The policy also provided specific requirements for explanation of benefits statements including the identification of the Claim, date of service, health care provider, Claim amount (if applicable), and a statement describing denial codes with their meanings and the standards used. For treatment of her Lyme disease, Zieba underwent a 19-week course of treatment from March 12 to July 16, 2018, at the Sponaugle Wellness Institute in Florida, an out-of-network provider. After completion of treatment,she submitted two claims to Blue Cross. Her first claim for infusion therapy, submitted on August 8, 2018, totaled "$15,702.53" and "her second claim for infusion therapy, submitted on October 22, 2018" totaled "$67,186.00." The combined total of both claims was $82,888.53. Months passed with no response from Blue Cross. Eventually, Blue Cross sent three EOBs, with processing dates of December 26, 2018, January 7, 2019, and July 10, 2019. However, none of the line items include corresponding dates of treatment or procedure codes, which Zieba alleged makes it impossible to determine which procedures are being referenced in each EOB. Zieba filed multiple motions for class certification. On March 14, 2024, the court denied Zieba's amended motion for class certification after questioning whether putative class members incurred damages. The trial court expressed skepticism, noting there may be people in the proposed class who were satisfied despite minor delays or who contributed to delays themselves. On June 17, 2024, Zieba filed a fourth motion for class certification, seeking certification of two proposed classes": one for individuals who did not receive coverage determinations within 45 days, and another for individuals who received EOBs lacking line-item dates of service. On November 7, 2024, following full briefing and argument, the trial court granted Zieba's motion in part, certifying two classes for liability purposes only. The court found plaintiff had demonstrated numerosity, noting that between October 26, 2017, and October 26, 2020, Blue Cross failed to issue a claim determination within 45 days of receipt for 4,956 claims. However, regarding commonality and predominance, the trial court stated it is not clear whether common questions regarding liability will predominate over any individual questions regarding each individual class member. Despite this finding, the court certified the classes for liability purposes only. Appellate Court's Analysis The Court of Appeals found that Zieba's effort to obtain class certification has forced a square peg into a round hole by ignoring her burden of proof and evading the predominance requirement of class certification. The court noted that "Section 2-801 provides four prerequisites for class certification: (1) the class is so numerous that joinder is impractical; (2) common questions of fact or law predominate over questions affecting individual class members; (3) the representative party will fairly and adequately protect class interests; and (4) a class action is an appropriate method for the fair and efficient adjudication of the controversy. The appellate court emphasized that the predominance requirement is not perfunctory and its purpose is to ensure that the proposed class is sufficiently cohesive to warrant adjudication by representation. The court found that plaintiff failed to meet this requirement because a multitude of individual inquiries would have to be performed, ranging from damages, to an assessment of when each individualized claim was completed, to whether the prompt payment interest penalty was paid and if any amount is owed. Most glaring is Zieba's complete failure to show a class-wide damages model or even attempt to explain one with any veracity. At the hearing, "Zieba's counsel conceded that they had not yet decided what damages they would seek and when pressed to describe a damages model, counsel responded, we don't have the defined formula at this time. The court noted this approach was fundamentally flawed, explaining this is not how class certification works. It is a demanding process in which the named plaintiff must prove all the elements of class certification and present a damages model that measures damages attributable to the theory of liability and is capable of class-wide application. The court found that in connection with claims for breach of contract, proof of damages resulting from a breach will be highly individualized. Additionally, regarding plaintiff's section 155 claims under the Illinois Insurance Code, the court determined these claims are even more fact intensive and tailored to each circumstance and individual plaintiff. The court explained that section 155 claims require a two-prong test that is highly individualized and depends on the totality of the circumstances of each claim, including whether a bona fide coverage dispute exists, whether the insured was forced to sue to recover, and the insurer's communication and attitude toward each individual insured. According the Court "Because Zieba failed to meet her burden of establishing predominance," the Court of Appeals reversed the order of class certification. The court concluded that separate evidentiary hearings will be required for each class member's claims for breach of contract and bad faith under section 155, which threaten to overwhelm the litigation. The Court of Appeals reversed the trial court's order granting class certification and remanded for further proceedings. The court noted that while the court retains discretion on remand to allow Zieba another opportunity to seek class certification, the present record provides no basis to support certification as to liability or damages or both. The judgment was delivered by Justice Gamrath, with Presiding Justice C.A. Walker and Justice Hyman concurring in the judgment. The case was reversed and remanded to the Circuit Court of Cook County for further proceedings consistent with the appellate court's ruling. A copy of the Court's decision is available at https://urlcurt.com/u?l=Qhwvjy from PacerMonitor.com HEAP INC: I.J. Files Suit in S.D. New York ------------------------------------------ A class action lawsuit has been filed against Heap Inc. The case is styled as I.J., a minor, through his parent and legal guardian, J.J., individually and on behalf of all other persons similarly situated v. Heap Inc., now known as Content Square, Inc., Case No. 1:25-cv-07583-JLR (S.D.N.Y., Sept. 11, 2025). The nature of suit is stated as Other P.I. for Wiretapping - Injunctive Relief or Civil Fine. Heap -- https://www.heap.io/ -- is a platform that provides analytics infrastructure to reduce the annoying parts of user analytics.[BN] The Plaintiff is represented by: Joshua D. Arisohn, Esq. ARISOHN LLC 94 Blakeslee Rd. Litchfield, CT 06759 Phone: (917) 656-0569 Email: josh@arisohnllc.com HEARST MAGAZINE: Discloses Personal Info to 3rd Parties, Stowe Says ------------------------------------------------------------------- CHRISTOPHER STOWE, HERB MEYEROWITZ, JIM FALLOW, JAY LITTLE, MAVERICK WATSON and HEIDI FENTON, individually and on behalf of all others similarly situated, Plaintiffs v. HEARST MAGAZINE MEDIA, INC., d/b/a BICYCLING, Defendant, Case No. 1:25-cv-01128-UNA (D. Del., September 10, 2025) alleges that Defendant utilized tracking tools to intercept and disclose Plaintiffs and other consumers' search terms, video watching information and identifiable information without seeking or obtaining consumers' consent in violation of the Video Privacy Protection Act. According to the complaint, the transmission of sensitive information to third parties like Facebook is achieved through Defendant's adoption of the Tracking Tools, such as the Facebook Pixel, which Facebook designed in such a way to allow third parties to determine what data it will collect from its users and transmit back to Facebook. Facebook and Defendant both benefit from receiving and analyzing the personal viewing information by using such data to target Subscribers with more personalized advertising across its own marketing platforms, asserts the complaint. The Defendant does not seek and has not obtained VPPA-compliant consent from Subscribers to utilize the Pixel to track, share, and exchange their Personal Viewing Information, with Facebook, it adds. In addition to monetary damages, the Plaintiffs seek injunctive relief requiring Defendant to immediately (i) remove the Pixel from the Website, or (ii) add adequate notices and obtain the appropriate consent from Subscribers. Hearst Magazine Media, Inc. is in the business of delivering pre-recorded audio visual materials on its website https://www.bicycling.com/ to subscribers.[BN] The Plaintiffs are represented by: P. Bradford deLeeuw, Esq. DELEEUW LAW LLC 1301 Walnut Green Road Wilmington, DE 19807 Telephone: (302) 274-2180 E-mail: brad@deleeuwlaw.com - and - Mark S. Reich, Esq. Michael N. Pollack, Esq. LEVI & KORSINSKY, LLP 33 Whitehall Street, Floor 27 New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: mreich@zlk.com mpollack@zlk.com HOLLY RIDGE, NC: Paull Suit Seeks to Certify Resident Class ----------------------------------------------------------- In the class action lawsuit captioned as BRIANA PAULL, INDIVIDUALLY; BRIANA PAULL, AS GUARDIAN OF A.P, A.P., R.K. JR., AND A.F., HER MINOR CHILDREN; AND BRIANA PAULL, AS CLASS REPRESENTATIVE ON BEHALF OF THE CLASS DEFINED HEREIN, v. THE TOWN OF HOLLY RIDGE; THE PENDERGRAPH COMPANIES, LLC; PENDERGRAPH DEVELOPMENT, LLC; PENDERGRAPH MANAGEMENT, LLC; FRANKIE W. PENDERGRAPH; AND JOHN DOE CONTRACTORS 1 THROUGH 10, Case No. 7:23-cv-01625-M-RJ (E.D.N.C.), the Plaintiffs ask the Court to enter an order granting class certification and certifying the following class: "All former residents of Holly Plaza apartment complex, located in Holly Ridge, North Carolina, as of Oct. 27, 2023, and who were subject to permanent evacuation of the apartment complex." Residents include any individual named on the lease agreements and any dependents of such persons. Excluded and severed from the class claims sought to be certified are any claims for personal injury and claims for medical expenses or other economic loss for treating any personal injury. Holly Ridge is a town in Onslow County, North Carolina. A copy of the Plaintiffs' motion dated Sept 4, 2025, is available from PacerMonitor.com at https://urlcurt.com/u?l=h4PcEa at no extra charge.[CC] The Plaintiffs are represented by: Benjamin S. Chesson, Esq. Anna C. Majestro, Esq. BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, LLP 505 N. Church Street Charlotte, NC 28202 Telephone: (704) 755-6010 E-mail: bchesson@brookspierce.com amajestro@brookspierce.com - and - David S. Miller Jr., Esq. MILLER LAW, LLC 81 Columbus Street, Unit A Charleston, SC 29403 Telephone: (843) 822-131 E-mail: david@attorneymiller.com - and - Anthony J. Majestro, Esq. POWELL &MAJESTRO PLLC 405 Capitol Street, Suite P-1200 Charleston, WV 25301 Telephone: (304) 346-2889 Facsimile: (304) 346-2895 E-mail: amajestro@powellmajestro.com HUT 8: Court OK's Partial Dismissal of "Maheshwari" --------------------------------------------------- In the case captioned as Abhishek Maheshwari, individually and on behalf of all others similarly situated, Plaintiff, v. Hut 8 Corp., Asher Genoot, Michael Ho, Jaime Leverton, and Shenif Visram, Defendants, Civil Action No. 24 Civ. 904 (VM) (S.D.N.Y.), Judge Victor Marrero of the United States District Court for the Southern District of New York granted in part and denied in part Defendant's motion to dismiss a Consolidated Amended Complaint in this securities class action litigation. Lead Plaintiff Abhishek Maheshwari brings this securities class action on behalf of all persons and entities that purchased or otherwise acquired Hut 8 securities between February 13, 2023, and January 18, 2024, inclusive. The case arises from alleged materially false and misleading statements in connection with the November 2023 merger of two data mining companies that formed Hut 8 Corp. Hut 8 is a large-scale energy infrastructure company and one of North America's largest Bitcoin miners. The Individual Defendants were officers of Hut 8 and previously were former officers of either USBTC or Legacy Hut. t all relevant times, Genoot was Hut 8's President, Ho was Hut 8's Chief Strategy Officer, Leverton was Hut 8's Chief Executive Officer, and Visram was Hut 8's Chief Financial Officer. On February 7, 2023, Legacy Hut and USBTC announced that the companies would combine in an all-stock merger of equals and become wholly owned subsidiaries of Hut 8 pursuant to a business combination agreement. The Court noted that Hut 8 filed seven amendments to the Initial Registration Statement on Forms S-4/A between April and November 2023."On November 30, 2023, the Merger closed. Lead Plaintiff alleged that Defendants made materially false and misleading statements in two main categories: (1) statements regarding USBTC's financial condition suggesting it was financially strong enough to sustain operations for another year when the Merger actually saved USBTC from bankruptcy, and (2) statements regarding the King Mountain Joint Venture that failed to disclose energy and internet issues that had already materialized at the King Mountain JV. The Court addressed whether Lead Plaintiff had statutory standing to bring claims under Section 10(b) of the Exchange Act. To sue under Section 10(b) of the Exchange Act, plaintiffs must have at least dealt in the security to which the prospectus, representation, or omission relates." The Court applied the principle that purchasers of a security of an acquiring company do not have standing under Section 10(b) to sue the target company for alleged misstatements the target company made about itself prior to the merger. The Court found that Lead Plaintiff does not have Section 10(b) statutory standing to challenge Financial Statements Nos. 1-2 and 4 or King Mountain Statements Nos. 2-4, as those pre-Merger Statements are about USBTC. However, the Court determined that Lead Plaintiff has Section 10(b) statutory standing to challenge King Mountain Statement No. 1 because it was about Hut 8 and Lead Plaintiff has Section 10(b) statutory standing to challenge Financial Statement No. 3 because it was made after the Merger." Defendants argued that the Securities Act Claims must comply with Rule 9(b)'s heightened pleading standard because all claims sound in fraud. The Court rejected this argument, finding that Lead Plaintiff's Securities Act Claims do not sound in fraud. The Court noted that Counts I and II are framed in the classic language of negligence and strict liability and that Lead Plaintiff expressly disclaims fraud, scienter, and the intent of Defendants to defraud investors and painstakingly segregates the fraud and negligence claims." Therefore, the Court concluded it will analyze Counts I and II under Rule 8's pleading standard. The Court examined four Financial Statements that allegedly misled investors about USBTC's financial condition. The Court found these statements inactionable on multiple grounds. First, regarding falsity, the Court determined that the CAC asserts that the Financial Statements were misleading considering USBTC's disclosed historic financial statements and overly optimistic financial projections. However, the Court noted that in reaching this conclusion, the CAC relies on disclosed financial information, which the CAC does not allege was false. The Court emphasized that a violation of federal securities law cannot be premised upon a company's disclosure of accurate historical data. Second, the Court found that each Financial Statement comprises an inactionable forward-looking statement accompanied by cautionary language. The Court explained that Financial Statements Nos. 1-3 state that USBTC believes that current cash on hand, subsequent debt and equity financings, and/or proceeds from the sales of cryptocurrency and ongoing operations will be sufficient to meet operating and capital requirements for the next 12 months from the date these consolidated financial statements are issued. Third, the Court determined that the Financial Statements are also inactionable statements of opinion. The Court noted that the Financial Statements are opinions regarding USBTC's belief that it would have sufficient funds to maintain operations for 12 months and anticipation that it would not continue to incur net losses for the foreseeable future. The Court also rejected Lead Plaintiff's Item 303 violation claim, finding that the CAC fails to allege a violation of Item 303 because it fails to identify any adverse economic event or trend that occurred prior to the Merger that was not disclosed in the Offering Documents. King Mountain Statements Analysis The Court analyzed four King Mountain Statements regarding energy and internet issues at the King Mountain Joint Venture. King Mountain Statement No. 1: The Court found this statement to be "inactionable puffery." The statement asserted that "the USBTC team will bring significant leadership in energy orientation, development, demand response, hedging, grid stabilization analytics to Hut 8, which will enhance Hut 8's ability to better plan around stable and predictable energy usage and mitigate fluctuating prices across markets. The Court explained that this assertion is too open-ended and subjective to constitute a guarantee upon which a reasonable investor would rely. King Mountain Statement No. 2: The Court found that Lead Plaintiff failed to allege facts showing that King Mountain Statement No. 2 is materially false or misleading. The Court determined that allegations regarding energy issues were not relevant to the statement about renewable energy sources, finding that there is not a sufficiently close nexus between King Mountain Statement No. 2 and the allegedly omitted information regarding power grid failures. **King Mountain Statements Nos. 3-4:** The Court found these statements presented viable claims. The Court noted that "Lead Plaintiff sufficiently pleaded that King Mountain Statements Nos. 3-4 were material omissions because the CAC sufficiently alleges that the King Mountain JV experienced energy and internet problems that were knowable before the Merger and that King Mountain Statements Nos. 3-4 did not disclose." The Court relied heavily on allegations from a confidential witness (CW 1), finding that "the CAC describes CW 1 and pleads the CW 1's allegations with sufficient particularity for the Court to credit them at this stage of the litigation." The Court noted that CW 1 worked as a data analyst at Hut 8 in the months before the Merger and thereafter" and had daily discussions with the Director of Infrastructure before the Merger about the ongoing energy issues at the King Mountain JV. The Court emphasized that cautionary words about future risk cannot insulate from liability an issuer's failure to disclose that the risk has, in fact, materialized in the past and is virtually certain to materialize again. Item 105 Violation Analysis Regarding King Mountain Statement No. 4's alleged violation of Item 105, the Court found that while the statement was misleading, Lead Plaintiff failed to plead actual knowledge. The Court noted that a claim for a violation of Item 105 under Section 11 requires that plaintiffs demonstrate actual knowledge of a risk at the time the registration was issued." The Court found that the CAC fails to plead that Hut 8, Ho, Genoot, and Leverton had actual knowledge of the internet problems, rather than that the problems were merely knowable. The Court was not persuaded by allegations about unidentified senior management without further explanation of their positions or involvement in the challenged disclosures. Remaining Elements of Section 11 Claims For the surviving King Mountain Statements Nos. 3-4, the Court found that the CAC has pleaded the remaining elements of a Section 11 violation. The Court determined that Lead Plaintiff adequately alleged purchasing registered securities and that the defendants participated in the offering sufficiently to give rise to Section 11 liability. Section 15 Control Person Liability The Court addressed Section 15 claims for control person liability. The Court noted that to state a claim for control person liability under Section 15, a plaintiff must allege (1) a primary violation by a controlled person, and (2) control by the defendant of the primary violator. Since the Court found viable Section 11 claims regarding King Mountain Statements Nos. 3-4, the Court analyzed whether Individual Defendants controlled Hut 8. The Court found that the CAC alleges that Genoot and Ho signed each SEC filing in which King Mountain Statements Nos. 3-4 appeared and that all Individual Defendants were involved in the daily activities of Legacy Hut or USBTC prior to the Merger and Hut 8 following the Merger, including the due diligence related to the Merger, and preparing and reviewing the Registration Statement. Leave to Amend Lead Plaintiff requested leave to amend if the Court found deficiencies. The Court noted that when a cause of action is dismissed because of pleading deficiencies, the usual remedy is to permit repleading but when a claim is dismissed as a matter of law because it fails to state a claim, repleading would be futile." The Court denied leave to replead claims dismissed for lack of standing or those found inactionable as a matter of law. However, the Court granted "leave to replead Counts I-II as to King Mountain Statement No. 2, as Lead Plaintiff could plead facts showing that this Statement omits material information with sufficiently close nexus to the content of the Statement." The Court also granted leave to replead Counts I-II as to an Item 105 violation via King Mountain Statement No. 4, as Lead Plaintiff could plead additional facts showing that Defendants had actual knowledge of the alleged undisclosed risk. The Court issued a comprehensive order addressing all claims: The Court granted the Motion to Dismiss Count III and Count IV in their entirety due to standing issues and failure to state viable Exchange Act claims. The Court granted the Motion as to Count I and Count II as to Financial Statements Nos. 1-4, King Mountain Statements Nos. 1-2, and King Mountain Statement No. 4 insofar as King Mountain Statement No. 4 is alleged to violate Item 105. Significantly, the Court denied the Motion as to Count I and Count II as to King Mountain Statements Nos. 3-4, allowing these Securities Act claims to proceed. The Court granted leave to amend as to Count I and Count II as to King Mountain Statement No. 2 and King Mountain Statement No. 4, to the extent King Mountain Statement No. 4 is alleged to violate Item 105 but denied leave to amend as to all remaining dismissed claims. Finally, the Court granted Maheshwari leave to file an amended consolidated complaint no later than 14 days from the date of this Decision and Order. A copy of the Court's order is available at https://urlcurt.com/u?l=lBAnsL from PacerMonitor.com ILLINOIS DEPARTMENT: Response to Class Cert Bid Extended to Oct. 3 ------------------------------------------------------------------ In the class action lawsuit captioned as Kainz et al v. Illinois Department of Corrections (IDOC), et al., Case No. 1:21-cv-01250 (C.D. Ill., Filed Sept. 8, 2021), the Hon. Judge Jonathan E. Hawley entered an order granting the Defendants' joint unopposed motion for extension of time to respond to the Plaintiffs' Motion to Certify Class. -- All of the Defendants' responses to the Motion to Certify Class are now due by Oct. 3, 2025. The nature of suit states Civil Rights -- Employment Discrimination. Illinois is the code department of the Illinois state government that operates the adult state prison system.[CC] ILLINOIS: Walker Balks at Unreturned Court Filing Fees ------------------------------------------------------ Reuben D. Walker, individually and on behalf of a class of all others similarly situated, Plaintiff v. Branden Martin, Treasurer of Peoria County, Illinois, in his official capacity, and as representative of a class of all County Treasurers of the State of Illinois in their official capacity, Michael W. Frerichs, Treasurer of the State of Illinois in his official capacity, and Tim Brophy, Treasurer of Will County, Illinois and Maria Pappas, Treasurer of Cook County Illinois, in their official capacity, Defendants, Case No. 1:25-cv-01378-JEH-RLH (C.D. Ill., September 11, 2025) seeks redress for the unconstitutional taking by the State of Illinois as well as its unprecedented and patently improper rejection of the rights of the citizens of Illinois as protected under the Constitution of the United States of America. After more than a decade, and while these Plaintiffs litigated the constitutionality of certain legislation under which the State of Illinois continued to charge Plaintiffs a total of $102 million in court filing fees under legislation that the Illinois Supreme Court ultimately found was facially unconstitutional and void for all purposes, the State of Illinois finally conceded the correctness of the ruling by the Illinois Supreme Court that the legislation was facially unconstitutional as a derogation of the Free Access Clause. The State, however, refused to return the fees to the Plaintiffs and continues to retain them as of the date of the filing of the instant complaint. In place of the judiciary ensuring that Plaintiffs' constitutional rights were protected, the Illinois Supreme Court held that the immunity statute left Plaintiffs with no means to recover the fees unlawfully taken from in the courts and their only recourse to obtain the refund was to petition the Illinois Court of Claims, says the suit. The Plaintiffs are now asking the Court to declare that the State of Illinois' unlawful possession of Plaintiffs' property constitutes an on-going federally unconstitutional taking without just compensation in violation of the Takings Clause of the Fifth and Fourteenth Amendments of the United States Constitution. The Plaintiffs thereafter ask the Court for prospective relief by issuing an order directing Michael Frerichs, in his official capacity as the Treasurer of the State of Illinois, to stop the on-going violation of federal law by the unconstitutional retention of their property, and, on a date selected by the Court, to return to Plaintiffs their unlawfully held property along with all interest earned upon said property from the date of the initial collection through and including a date to be determined by the Court for this violation of the Fifth and Fourteenth Amendments of the United States Constitution. Defendant Branden Martin is the Treasurer of Peoria County, Illinois and at all times relevant to this cause and in his official capacity under the law of the State of Illinois the custodian of certain private property of Plaintiffs and the public official vested with the control of the disposition of such property.[BN] The Plaintiff is represented by: George S. Bellas, Esq. BELLAS & WACHOWSKI 15 N. Northwest Highway Park Ridge, IL 60068 Telephone: (847) 823-9032 E-mail: george@bellas-wachowski.com - and - Daniel K. Cray, Esq. Michael D. Huber, Esq. CRAY HUBER HORSTMAN HEIL & VANAUSDAL 303 W. Madison Street, Suite 2200 Chicago, IL 60606 Telephone: (312) 332-8450 E-mail: dkc@crayhuber.com mdh@crayhuber.com JETAX INC: Court Denies Trico Tarek's Default Judgment Bid ---------------------------------------------------------- In the case captioned as Trico Tarek Factory, Plaintiff, v. Jetax Inc. and Jeffery Taxier, Defendants, Civil Action No. 24-CV-3731 (JMA) (ST) (E.D.N.Y.), United States Magistrate Judge Steven L. Tiscione of the United States District Court for the Eastern District of New York denied without prejudice the Plaintiff's motion for default judgment against the corporate defendant and denied the parties' motion to consolidate three related cases. Judge Tiscione ruled that the motion for default judgment must be denied on multiple independent grounds, finding that the Plaintiff failed to comply with procedural requirements and that granting the motion would risk inconsistent judgments under the Frow principle. The Court also addressed a pending motion to consolidate three separate clothing manufacturer lawsuits against the same defendants. Background and Procedural History The case involves Trico Tarek Factory, an Egyptian clothing manufacturing company, which sued Jetax Inc., a New York corporation, and its principal Jeffery Taxier for breach of contract and unjust enrichment. The Plaintiff alleged that the defendants placed five orders for clothes which were shipped in April, May, and June of 2021, but failed to pay the resulting invoices either in whole or in part." While Taxier appeared and filed an Answer, Jetax failed to appear, and the time to do so has elapsed. The Plaintiff thus requested a certificate of default, which was entered by the Clerk of Court on September 20, 2024. The instant motion for default judgment followed. The Court noted that this case was part of a series of related actions: The motion to consolidate seeks to merge this matter with two cases filed by two other clothing manufacturers, who also engaged in a series of transactions with Defendants whereby Defendants are alleged to have placed orders for items, were shipped the items, but failed to pay for them. Subject Matter Jurisdiction Analysis The Court addressed a pending Order to Show Cause from District Judge Joan M. Azrack regarding subject matter jurisdiction. Judge Azrack had found that the Plaintiff failed to sufficiently allege the citizenship of Taxier for diversity jurisdiction purposes. However, Judge Tiscione determined that federal question jurisdiction existed because the contracts were governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG). The Court explained: The CISG governs sales contracts between parties from different signatory countries unless the parties clearly indicate an intent to be bound by an alternative source of law. Both Egypt and the United States are signatory countries. The Court noted that for jurisdictional purposes, the CISG is a federal treaty, and claims brought under the CISG fall within the Court's federal question jurisdiction. Motion to Consolidate Analysis The Court examined the parties' joint motion to consolidate three separate actions involving different Egyptian clothing manufacturers against the same defendants. The Court acknowledged that joint discovery is prudent here because the necessary discovery in all three cases primarily consists of contractual documents, including order forms, bank records, and packing slips. However, the Court found that full consolidation for trial purposes was not appropriate. Judge Tiscione explained: While some pre-trial dispositive motion practice will involve the same legal doctrines, any gains in efficiency brought about by jointly considering these doctrines would likely be lost at summary judgment and at trial, which would both become more confusing and complex. The Court noted specific concerns about juror confusion: If the five, seven, and fourteen contracts are tried separately for each plaintiff, then the jurors will easily know which contracts apply to whom—there will only be one possible plaintiff. But if the 26 contracts are tried together, it may become more difficult for jurors to match the specific contracts to the applicable plaintiffs. Therefore, the Court respectfully recommended that the motion to consolidate be denied or, in the alternative, granted in part for purposes of reassignment to one District Court, while maintaining their severance. Default Judgment Motion Analysis The Court identified multiple grounds for denying the default judgment motion. First, the Court found procedural deficiencies under Local Civil Rules 55.2 and 7.1. **Procedural Failures** Judge Tiscione determined that the Plaintiff failed to submit a required memorandum of law: "Under Local Civil Rules 55.2 and 7.1, however, a party may not simply forgo a memorandum of law and rely on an affirmation." The Court emphasized that "failure to submit a memorandum of law is not a mere technicality" and that "without a memorandum of law, courts would need to expend substantial resources scouring the submissions and conducting research to attempt to guess what doctrines and facts plaintiffs believe establish the elements of their claims." The Court also found deficiencies in the statement of damages: "Plaintiff's counsel has submitted an affirmation, counsel's only asserted basis for his knowledge is that he represents Plaintiff. Thus, Plaintiff's counsel has secondhand knowledge, not personal knowledge, of the damages in this action, and cannot personally affirm them." **Frow Principle Application** The Court's primary holding centered on the application of the Frow principle, which prohibits inconsistent judgments in multi-defendant cases. Judge Tiscione explained: "In cases where one or more, but not all, defendants are in default, courts are faced with the question of whether an entry of default judgment against the one defendant is appropriate, despite the continued, active litigation of the case against the appearing defendants." The Court extensively analyzed recent Second Circuit precedent, particularly Henry v. Oluwole, which "largely resolved" the confusion regarding Frow's application. The Court noted: "The Second Circuit held that, prior to the trial, the district court should have set aside the default judgment under the three Enron Oil factors, and that, after trial, the district court should have vacated the default judgment in full as impermissibly inconsistent with the verdict under Frow." Applying this precedent to the instant case, Judge Tiscione found: "Adjudicating the motion for default judgment against Jetax runs the risk of inconsistent judgments: if Taxier prevails at trial by contesting the predicate liability on its merits (such as by arguing that there were no contracts, or that the contracts were paid in full), an entry of default judgment against Jetax would become inconsistent." The Court explained the derivative nature of the liability: "In order for the derivative liability against Taxier to stand, the predicate liability against Jetax must be established. Taxier is entitled to contest at trial not only whether the veil can be pierced to hold him liable, but whether the predicate contractual liability of Jetax has been adequately established." Damages Analysis The Court identified additional problems with the damages calculation: "Plaintiff's submissions are mathematically erroneous, thus belying any effort to characterize the damages as reasonably certain." Judge Tiscione noted specific discrepancies: "Plaintiff, for example, alleges and seeks $90,466.20, $78,420.60, and $84,637.80 for invoice numbers 23//2021, 36//2021, and 34//2021, respectively. Yet, the invoices themselves reflect totals of $85,982.40, $81,778.50, and $84,470.40 for these orders." The Court also noted evidentiary problems: "The evidence submitted with a Rule 55(b) motion must be admissible in order to establish damages with reasonable certainty. These documents were submitted through Plaintiff's counsel as a witness, who cannot authenticate them." Court's Recommendations Judge Tiscione issued comprehensive recommendations addressing all pending motions: Regarding subject matter jurisdiction, the Court recommended that "the District Court hold that federal question jurisdiction is proper on the ground that Plaintiff's complaint facially alleges breach of contract actions under the CISG." For the consolidation motion, the Court recommended denial "because the parties have failed to present any argument to support their motion, no basis for consolidation clearly appears on the face of the record, and consolidation for purposes of trial would increase complexity and risk juror confusion." Concerning the default judgment motion, the Court recommended denial "on all, or any, of the following four independent bases": 1. "Plaintiff failed to comply with Local Civil Rules 7.1(a)(2) and 55.2(a)(2) by failing to file a memorandum of law" 2. "Plaintiff failed to comply with Local Civil Rule 55.2(c) by failing to submit a statement of damages sworn to by someone with personal knowledge" 3. "A judgment against the defaulted defendant, even as to liability, would be premature and risk inconsistent judgments under the Frow principle" 4. "Plaintiff failed to establish damages with reasonable certainty, and a judgment as to liability alone would be both inefficient and unenforceable until such defect is cured" Final Determination The Court granted Plaintiff leave to renew the motion "only after litigation has concluded against the appearing defendant to avoid inconsistent judgments as to liability or damages, pursuant to the Frow principle." Judge Tiscione concluded that all doubts should be resolved in favor of the defaulting party, consistent with established Second Circuit precedent. The Court emphasized that "there was at least doubt as to whether the default should be granted or vacated, and that doubt should have been resolved in favor of the defaulting party." The ruling effectively requires the Plaintiff to wait until the resolution of litigation against the appearing defendant before seeking default judgment against the non-appearing corporate defendant, ensuring consistency in judicial determinations across the related proceedings. KERR-MCGEE OIL: Court Rules on Statute of Limitations in "Boulter" ------------------------------------------------------------------ In the case captioned as MIKE BOULTER, et al., Plaintiffs, v. KERR-MCGEE OIL & GAS ONSHORE, LP, Defendant, Civil Action No. 1:24-cv-01459-SKC-KAS (D. Colo.), Judge S. Kato Crews of the United States District Court for the District of Colorado granted in part and denied in part the parties' competing Motions for Determination of Law regarding Colorado's remedial revival statute. The Court ruled that the statute of limitations on Plaintiffs' breach of contract claim began six years before March 14, 2024. This oil lease dispute spans over six federal lawsuits presided over by four different district court judges and three appeals to the Tenth Circuit. The genesis began on April 10, 2020, when Plaintiffs filed Boulter I against Defendant and Noble Energy Inc. In that case, Plaintiffs alleged Defendant inappropriately deducted certain transportation costs related to moving oil through pipelines and breached the terms of applicable oil leases by underpaying royalties. On February 17, 2021, Judge William J. Martinez dismissed Boulter I without prejudice because Plaintiffs had failed to exhaust their administrative remedies, thus depriving the federal court of subject matter jurisdiction. The judge determined Colorado law required Plaintiffs to first file an application with the Colorado Oil and Gas Conservation Commission to determine if a bona fide contract dispute existed that divested the Commission of jurisdiction. Instead of exhausting administrative remedies, Plaintiffs filed a series of successive lawsuits. On May 17, 2021, within 90 days of the Boulter I dismissal, they filed Boulter II alleging substantially identical claims. On October 4, 2021, Judge Raymond P. Moore dismissed Boulter II without prejudice because Boulter I had already determined that Plaintiffs had not exhausted their administrative remedies. On December 30, 2021, Plaintiffs filed Boulter III within 90 days of the Boulter II dismissal, again alleging substantially similar claims. Judge Moore dismissed Boulter III without prejudice on April 27, 2022, again finding Boulter I controlled. The day after this dismissal, Plaintiffs finally applied to the Commission to start the administrative process. Plaintiffs subsequently filed Boulter IV on July 26, 2022, once again alleging substantially the same claims. On April 6, 2023, Judge Daniel D. Domenico dismissed Boulter IV. While initially dismissed with prejudice, after appeal, the Tenth Circuit affirmed the dismissal but remanded with instructions to amend the dismissal to be without prejudice. On November 7, 2023, the Commission issued a final order stating it did not have jurisdiction over the dispute, thus finally exhausting Plaintiffs' administrative remedies. Plaintiffs then filed Boulter V on March 14, 2024, which led to the current case, Boulter VI, after the Court severed Plaintiffs' claims against Defendant into a separate action. The parties' disagreement centered on how to apply Colorado Revised Statutes Section 13-80-111, known as the remedial revival statute. Plaintiffs argued that each time the district court dismissed their action without prejudice, they diligently filed a new case within 90 days of those dismissals, thus tolling the statute of limitations under Section 13-80-111. Defendant contended the statute of limitations had not been tolled because: (1) the Colorado remedial revival statute does not allow a plaintiff to stack successive 90-day periods by filing successive complaints, (2) Plaintiffs failed to diligently cure their jurisdictional defect by exhausting their administrative remedies, (3) Section 13-80-111 does not apply when a plaintiff files its new action before the earlier action is finally terminated, and (4) three of Plaintiffs' earlier actions were not terminated for lack of subject matter jurisdiction, but rather, on issue preclusion grounds. The Court explained that Section 13-80-111 tolls the applicable statute of limitations for 90 days when a case is dismissed for lack of jurisdiction or improper venue, allowing a plaintiff to refile their case in the appropriate court. The purpose is to prevent minor or technical mistakes from precluding a plaintiff from obtaining their day in court and having their claim decided on the merits. However, the Court found that under the circumstances of this case, Plaintiffs' acts of repeatedly filing a new case asserting the same claims within 90 days of a prior dismissal, without doing anything to remedy the obvious jurisdictional defect, does not fall within Section 13-80-111. The Court further found Plaintiffs failed to diligently pursue their claims with their inexplicable stalling on exhausting their administrative remedies. The Court noted that while Colorado courts have stated a plaintiff is not limited to filing a single new case within the 90-day period, the effort to file a new case must occur within the 90-day period and must be prosecuted in good faith. The mere act of refiling is not itself a fix for jurisdictional defects. The Court explained that Plaintiffs' proposal would toll the applicable statute of limitations for an additional over 1,000 days from the dismissal of Boulter I, which would swallow the statute of limitations and lead to illogical and absurd results. The Court found a plaintiff cannot keep filing successive lawsuits of the same action in the same jurisdictionally deficient court and thereby extend the statute of limitations indefinitely. The Court also criticized the filing of successive claims as an absolute waste of judicial resources and disrespectful to the judicial process. The Court noted that Plaintiffs burned through four versions of the same case, three different district judges, four different magistrate judges, and three Tenth Circuit appeals, all before attempting to exhaust their administrative remedies to finally afford this Court appropriate jurisdiction. Additionally, the Court found Plaintiffs failed to pursue their claims diligently, rejecting their assertion that they demonstrated diligence merely by filing new lawsuits within ninety days after dismissals. The Court explained that the policies underpinning Colorado's statutes of limitation demand more than simply refiling within 90 days. The Court granted in part and denied in part both Plaintiffs' Motion for Determination of Law and Defendant's Motion for Determination of Law. The Court ordered that the six-year statute of limitations began to run March 14, 2018, six years prior to the filing of Plaintiffs' complaint in Boulter V on March 14, 2024. However, the Court disagreed with Defendant that the statute of limitations in Boulter VI must be calculated from the filing date of its complaint. The Court found that when it severed Defendant's case under Rule 21, the suit simply continued against the severed party in another guise, with the statute of limitations held in abeyance. A copy of the Court's decision is available at https://urlcurt.com/u?l=NrsxcR from PacerMonitor.com KROGER CO: Class Cert Bid Filing Amended to Nov. 12 --------------------------------------------------- In the class action lawsuit captioned as Womick v. The Kroger Co., Case No. 3:21-cv-00574 (S.D. Ill., Filed June 11, 2021), the Hon. Judge Nancy J. Rosenstengel entered an order granting the parties' joint motion to amend class certification briefing and expert disclosure deadlines. The Plaintiff's Motion for Class Certification (not to exceed 40 pages) and Class Certification Expert Report(s) are due on or before Nov. 12, 2025. The Defendant's Response to the Motion for Class Certification (not to exceed 40 pages) and Class Certification Expert Report(s) are due on or before Jan. 12, 2026. The Plaintiff's Reply in support of the Motion for Class Certification (not to exceed 25 pages) and Rebuttal Expert Report(s) are due on or before Feb. 26, 2026. Presumptive Jury Trial month is set for June 2026. The Court will schedule a Final Pretrial Conference by separate order. The nature of suit states Torts -- Personal Property -- Other Fraud. Kroger is an American retail company that operates supermarkets and multi-department stores.[CC] MAIN CLINTON: Smith Alleges Property Not Disabled-Friendly ---------------------------------------------------------- MELISSA SMITH, Plaintiff v. MAIN CLINTON LLC, Defendant, Case No. 2:25-CV-01383 (E.D. Wis., September 10, 2025) is a class action brought by the Plaintiff, on behalf of herself similarly situated disabled persons, arising from the Defendant's failure to remove physical barriers to access in violation of the Title III of the Americans with Disabilities Act. The Plaintiff intends to visit Defendant's People's Park, a restaurant located in Waukesha, Wisconsin, as a customer and as an independent advocate for the disabled, in order to utilize all of the goods, services, facilities, privileges, advantages and/or accommodations commonly offered at the Property, but will be unable to fully do so because of her disability and the physical barriers to access, dangerous conditions and ADA violations that exist at the Property. A list of unlawful physical barriers, dangerous conditions and ADA violations which Plaintiff experienced and/or observed that precluded and/or limited Plaintiff's access to the Property includes accessible elements at the main entrance and the lack of accessible restrooms, says the suit. Main Clinton LLC is the owner or co-owner of the real property and improvements that People's Park is situated.[BN] The Plaintiff is represented by: Douglas S. Schapiro, Esq. THE SCHAPIRO LAW GROUP, P.L. 7301-A W. Palmetto Park Rd., #100A Boca Raton, FL 33433 Telephone: (561) 807-7388 E-mail: schapiro@schapirolawgroup.com MISSION CEVICHE: Wins Partial Victory in "Flores" Wage Class Action ------------------------------------------------------------------- In the case captioned as Daniela Flores, on behalf of herself, FLSA Collective Plaintiffs, and the Class, Plaintiff, v. Mission Ceviche, LLC, d/b/a Mission Ceviche, Mission Ceviche UES Inc. d/b/a Mission Ceviche, Mission Ceviche Canal LLC, d/b/a Mission Civiche, Jose Luis Chavez, Brice Mastroluca, and Miguel Yarrow, Defendants, Civil Action No. 24-cv-3626 (KHP) (S.D.N.Y.), United States Magistrate Judge Katharine H. Parker of the United States District Court for the Southern District of New York granted in part and denied in part Plaintiff's motion for class certification under Federal Rule of Civil Procedure 23. Judge Parker certified a limited class of front-of-house employees of Mission Ceviche UES regarding their claim for additional wages due to deficiencies with the tip credit notice and computation of pay rates. The Court denied certification for all other proposed claims including meal deduction violations, off-the-clock work, spread-of-hours pay, and wage notice violations. Plaintiff Daniela Flores worked as a server for Mission Ceviche restaurant on Second Avenue in the Upper East Side of Manhattan from on or about August 2022 through April 2023. She filed this suit in May 2024 for herself and on behalf of similarly situated employees of three Mission Ceviche entities and three of their individual owners/managers for violations of the Fair Labor Standards Act and the New York Labor Law. The violations alleged include failure to pay all earned wages, including overtime wages, due to an alleged policy of time shaving and use of an invalid tip credit, failing to pay spread of hours premium, improperly deducting meal credits, and failing to provide appropriate new hire wage notices and wage statements. She also alleges she was terminated in retaliation for complaining about how Mission Ceviche handled tips in violation of federal and state law. On November 26, 2024, the Court granted Plaintiff's motion for conditional certification under 29 U.S.C. Section 216(b), certifying a collective of all non-exempt employees employed by defendants at any location on or after October 19, 2017. Thereafter, notice of this action was sent to individuals who worked at Mission Ceviche. Only two individuals decided to opt-in to the collective - Johnny Rivas and Carlos Torres. Mission Ceviche used to operate two ceviche stands in New York City and one in Connecticut. Those locations all closed as a result of the COVID-19 Pandemic and never reopened. The Second Avenue restaurant, Mission Ceviche UES, opened in or about 2019 and has continued operating, although it was shut down between March and July 2020 pursuant to mandatory shutdown orders applicable to New York City Restaurants. Employment Conditions and Allegations Mission Ceviche UES operates 12:00 p.m. to 10:00 p.m. Monday through Thursday, 12:00 p.m. to 10:30 p.m. on Friday, 11:00 a.m. to 10:30 p.m. on Saturday, and 11:00 a.m. to 10:00 p.m. on Sunday. Mission Ceviche UES schedules employees to work specific shifts. Shifts include coming in before the restaurant opens to prepare for the day or staying after the restaurant closes to clean, break down tables and count tips. Plaintiff Flores corroborated that employees were scheduled to work in shifts. She says that tipped workers started their shift one hour before the restaurant opened. For example, she came in at 10:00 a.m. when the restaurant opened at 11:00 a.m. She states that dinner service ended at 11:30 p.m. and that she and other tipped workers had to stay about one hour after closing. During her employment, Plaintiff was compensated at the tip credit minimum wage of $10 per hour and the overtime rate of $15 per hour for a portion of her employment period. According to Plaintiff, Defendant Yarrow demanded that all tipped employees work for half an hour to count tips twice per month - resulting in 1 hour of off-the-clock time per month. Tip Credit and Overtime Rate Issues Plaintiff alleges that Mission Ceviche UES improperly computed the overtime rate for tipped employees to be 1.5 times $10 per hour rather than 1.5 times the minimum wage rate of $15 per hour. Defendants do not dispute that they applied the wrong overtime rate and that it should have been $17.50 per hour. Plaintiff also alleges that Mission Ceviche was not entitled to pay the tip credit rate of $10 per hour because, among other reasons, it did not provide a tip credit notice that complied with New York law, did not compute the overtime rate correctly, did not maintain a daily log of tips, and included non-tipped employees in the tip pool. Defendant disputes that it included non-tipped employees in the tip pool. According to Mastroluca's declaration, tips of tipped staff have never been given to non-tipped staff and the restaurant itself has never retained the tips of tipped staff. This conflicts with Plaintiff's declaration in which she states that she recalls that non-tipped employees who were silver polishers and floaters participated in the tip pool. Meal Credit and Off-the-Clock Work Claims Plaintiff states that meal credit deductions were improperly made to her pay because there was not enough food for her when it was her time for a break, because Defendants did not provide a fruit or vegetable as part of the meal, and because she was only offered soda. Plaintiff's paystubs reflect that a meal credit was deducted from her paycheck. Defendants contend that Mission Ceviche UES provided family meals to its employees that included a salad, a protein, and some form of grain. Employees were free to help themselves to tea, coffee, milk, or juice as well. Employees were advised that if they did not want a meal credit deduction applied to their paycheck, they could request that it be removed. Evidence submitted shows some employees did request that the meal credit deduction be removed. Payroll records submitted by Plaintiff reflect some servers had deductions for meals and others did not, corroborating Defendants' evidence about meal credit deductions. With regard to off-the-clock time, Plaintiff's declaration states that employees were made to work off-the-clock for about one hour a month. She also asserts generally that five other co-workers told her that their pay did not reflect all hours worked but provides no details whatsoever about this. Court's Legal Analysis Under Rule 23 The Court applied the requirements of Federal Rule of Civil Procedure 23, which requires satisfaction of four elements under Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Additionally, one of the requirements of Rule 23(b) must be met. In this case, Plaintiff argued the requirements of Rule 23(b)(3) are met, which requires that questions of law or fact common to class members predominate over individual questions and that a class action is superior to other available methods. Numerosity In the Second Circuit, there is a general presumption that if a class has more than forty members it will satisfy Rule 23(a)'s numerosity requirement because joinder of more than that number of parties would be impracticable. Here, there is no dispute that the proposed class and subclass consist of more than forty individuals. Numerosity is therefore satisfied. Commonality Analysis To satisfy commonality, Plaintiff must show that there are questions of law or fact common to the class. The class claims must depend upon a common contention capable of classwide resolution. Here, there are several common issues whose resolution will affect all or a significant number of the proposed subclass of front-of-house tipped employees. That common issue is whether Mission Ceviche provided proper tip credit notice and whether Mission Ceviche properly computed the overtime rate for tipped employees. Plaintiff's declaration and the payroll records are sufficient to demonstrate that these are common issues that can be shown through common evidence at least with respect to front-of-house tipped employees. Mission Ceviche does not meaningfully dispute that it improperly computed the overtime rate for tipped employees, although it points out that only a handful of employees worked overtime such that a large portion of the proposed class was not damaged. The Court found insufficient evidence showing a common policy of requiring off-the-clock work for all employees of the proposed class. Plaintiff's proof consists of her declaration, which is cursory at best and limited to her own experience, together with uncorroborated and unspecific hearsay from a handful of front-of-house employees that their pay did not reflect all hours worked. Similarly, there is insufficient evidence showing there was a common policy of failing to pay spread-of-hours pay to the proposed class. The handbook submitted shows that Mission Ceviche's policy was to pay spread-of-hours pay as required under New York law, and it informed employees to tell management if they believed their pay was incorrect. Typicality and Adequacy For largely the same reasons discussed above, the only claim for which Plaintiff has demonstrated typicality is with respect to the improper tip credit claim for the proposed front-of-house tipped subclass. Defendants contest the adequacy of Plaintiff serving as class representative because they argue she has a conflict with the back-of-house employees she seeks to represent insofar as they allegedly improperly received tips. Plaintiff is adequate to represent the proposed subclass of front-of-house tipped workers allegedly subjected to an improper tip credit and who were consequently paid the incorrect rates, as she herself says she has these claims and defendants offer no compelling reason to find otherwise. Rule 23(b)(3) Analysis The Court addressed Rule 23(b)(3) only with regard to the proposed front-of-house tip credit class. To obtain certification under Rule 23(b)(3), common issues must predominate, and class treatment must be superior to individual actions. Predominance is satisfied if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. Here, Plaintiff has proposed a common method of determining liability and computing damages for those members of the front-of-house tipped employees. By reviewing payroll records, the parties can easily ascertain who in this class was short-changed on pay given that it is undisputed Defendants did not apply the proper tip credit rate to overtime. Court's Final Ruling The motion for class certification is granted insofar as the Court certifies a class of front-of-house employees of Mission Ceviche UES with respect to their claim that they are due additional straight time and/or overtime pay because of defects in the tip credit notice, failure to maintain a daily log of tips, and miscalculation of the tip credit overtime rate. Because Mission Ceviche UES did not open until sometime in 2019, the class period runs from the date Mission Ceviche UES opened in 2019 to the date of this Opinion and Order. The motion for class certification was otherwise denied. The parties were ordered to meet and confer regarding proposed class notice and submit such notice to the Court by no later than September 26, 2025. Any motion for summary judgment on Plaintiff's or the opt-in Plaintiffs' individual claims is due October 31, 2025. Opposition to any summary judgment motion is due November 28, 2025. Reply due December 12, 2025. A Copy of the court's decision is available at https://urlcurt.com/u?l=GKmFtZ from PacerMonitor.com NANCY JOHNSTON: Loses Summary Judgment Bid in Prison Transfer Case ------------------------------------------------------------------ In the case captioned as James John Rud, Brian Keith Hausfeld, Joshua Adam Gardner, Andrew Gary Mallan, Dwane David Peterson, and Lynell Dupree Alexander, on behalf of themselves and all others similarly situated; Thomas Webber, Kenneth Donald Hand, and Ricky Durbin, Plaintiffs, v. Nancy Johnston, Executive Director, Minnesota Sex Offender Program, and Shireen Gandhi, Department of Human Services Commissioner, in their individual and official capacities, Defendants, Civil No. 23-486 (JRT/LIB), Judge John R. Tunheim of the United States District Court for the District of Minnesota denied cross motions for summary judgment in a procedural due process case involving transfer delays at the Minnesota Sex Offender Program. The Court denied Plaintiff's motion for summary judgment because there remains a genuine issue of fact over what constitutes a reasonable amount of time to transfer an MSOP patient to CPS. The Court denied Defendant's motion for summary judgment because this case is not moot, and Defendant's lack of any procedure for patients to challenge their placement on the waitlist to be transferred to CPS does not comply with procedural due process. Plaintiff have been civilly committed to the MSOP to receive sex offender treatment under Minnesota Statute Section 246B.02. Defendant Shireen Gandhi, the temporary Commissioner of the Department of Human Services, is entrusted with establishing and maintaining the MSOP. Defendant Nancy Johnston, MSOP's Executive Director, oversees the program. MSOP patients are civilly committed for an indeterminate period of time. The goal of the MSOP is to safely reintegrate patients back into the community by providing them with treatment best adapted to rendering further supervision unnecessary. There are three MSOP facilities: two secure treatment facilities in Moose Lake and St. Peter, and one unlocked, less-restrictive facility in St. Peter, referred to as Community Preparation Services (CPS). The MSOP has three phases. Phase I is a psychological assessment to determine a patient's treatment needs; Phase II explores the underlying causes of a patient's offending behavior and strategizes methods to combat it; Phase III focuses on ensuring successful community reintegration. Patients are housed at one of the three facilities depending on their progress and treatment needs. Patients in Phase III typically reside either in the secure facility at St. Peter or at the less-restrictive CPS facility. Transfer to CPS is statutorily designated as a reduction in custody and is only possible following an order from the Commitment Appeal Panel (CAP). It typically only takes two days to transfer a patient from the secure perimeter of the St. Peter facility to CPS once an opening at CPS becomes available. CPS has 145 beds, but it currently only has enough staff to support and house 130 patients. Thus, not all of the patients with active transfer orders have been transferred to CPS. When there are not enough empty, staffed beds available to transfer MSOP patients to CPS, patients with active transfer orders are placed on a waitlist to be moved to CPS when a bed becomes available. Because all Plaintiff have now been transferred to CPS, Defendant argued that this action is now moot. However, the Court found that the capable-of-repetition-yet-evading-review exception to mootness applies. The Court determined that the first element - that Plaintiff had too little time to litigate their claim before being transferred to CPS - is clearly met. Plaintiff Rud was transferred after 10 months of being on the waitlist, and the other Plaintiff were transferred after being on the waitlist for six to nine months. Thus, the duration of Plaintiff's delay in transfer to CPS was too short to be fully litigated before Plaintiff were transferred to CPS. The second element - whether there is a reasonable expectation that Plaintiff will be subjected to the same action again - is also satisfied. Plaintiff's CPS status can be revoked at any time by the MSOP Executive Director. The evidence suggests that CPS will continue to suffer from empty bed and staff shortages for some time, thus demonstrating a pattern of MSOP patients with valid, effective transfer orders being delayed in their transfer to CPS. The Court found that Plaintiff have a protected liberty and property interest in being transferred to CPS within a reasonable amount of time. The remaining issues are whether Plaintiff were deprived of that protected interest, and whether Defendant provided sufficient process. Regarding deprivation, the Court found the record inconclusive. Defendant argued that a temporary inability to comply with a transfer order does not amount to a constitutional deprivation. However, the Court found it clear that Plaintiff are entitled to be transferred to CPS within a reasonable amount of time, and that an unreasonable delay deprives them of that interest. The Court noted that it is apparent that, absent extraordinary circumstances, seven days is a reasonable amount of time to transfer an MSOP patient to CPS. But it is unclear whether the MSOP's lack of empty beds and staff shortage problems are extraordinary circumstances that blur the line between what is and is not a reasonable amount of time to transfer an MSOP patient to CPS. The Court found that Defendant did not comply with procedural due process. The Court applied the Mathews balancing test, considering the specific interest that was affected, the likelihood that the MSOP procedures would result in an erroneous deprivation, and the MSOP's interest in providing the process that it did. First, the Court found that Plaintiff's protected interest in being transferred to CPS within a reasonable amount of time following a valid, effective transfer order carries heavy weight. Any delay in transfer to CPS necessarily means that an MSOP patient is forced to endure more time in a more restrictive treatment facility. Second, the MSOP's interest in restricting the movement of MSOP patients at CPS based on available bed space and staffing numbers is also significant. The record clearly demonstrates that the MSOP is struggling to keep up with the number of MSOP patients who have received valid, effective orders to be transferred to CPS. Finally, the Court evaluated the likelihood that the MSOP procedures would result in an erroneous deprivation. Defendant did not provide Plaintiff with any procedure to challenge their delay in transfer to CPS following a valid, effective transfer order. This lack of process or procedure increases the likelihood of an erroneous deprivation. Balancing the above interests, the Court concluded that the MSOP's lack of procedure for patients to challenge their placement on the waitlist to be transferred to CPS does not comply with procedural due process. Plaintiff must have some minimal opportunity to be heard. Defendant have failed to provide any check against mistaken decisions. Defendant must provide at least some minimal process after giving Plaintiff notice that they are being placed on the waitlist to be transferred to CPS, through which Plaintiff can challenge their placement on the waitlist. Because there remains a genuine dispute of fact over what constitutes a reasonable amount of time, and thus whether Plaintiff were deprived of their protected interest, the Court denied Plaintiff's motion for summary judgment. Because the MSOP's lack of procedure for patients to challenge their placement on the waitlist to be transferred to CPS does not comply with procedural due process, the Court denied Defendant's motion for summary judgment. The issue for trial is whether Plaintiff have been deprived of their protected interest in being transferred to CPS within a reasonable amount of time, which depends on what constitutes a reasonable amount of time. Based on the foregoing analysis, the Court ordered that Plaintiff's Motion for Summary Judgment is denied and Defendant's Motion for Summary Judgment is denied. NAVY FEDERAL: "Stephenson" Settlement Has Preliminary Approval -------------------------------------------------------------- In the case captioned as Jeffrey Stephenson and Billy Smith II, individually, on behalf of themselves and all others similarly situated, Plaintiffs, v. Navy Federal Credit Union, Defendant, Case No. 3:23-CV-01851-WQH-KSC (S.D. Cal.), Judge William Hayes of the United States District Court for the Southern District of California granted preliminary approval of the class action settlement and provisional class certification. On July 22, 2025, Plaintiffs filed the unopposed Motion for Preliminary Approval of Class Action Settlement and Provisional Class Certification. The Motion requested that the Court grant preliminary approval of a proposed class action settlement and direct class notice in this action, the terms of which are set forth in a Class Action Settlement Agreement with accompanying exhibits. The docket reflects that no opposition to the Motion has been filed. The Court ordered that the Motion is granted. The original Order granting the Motion is vacated and replaced with this Amended Order. The Court has jurisdiction over this action's subject matter and has personal jurisdiction over the Parties and the Settlement Class members defined and described below. Subject to the Final Approval Hearing and any objections lodged by Settlement Class Members, the Court will likely be able to approve the Settlement as set forth in the Agreement as fair, reasonable, and adequate under Rule 23(e), including the releases contained therein, the Claims process, and the proposed Plan of Allocation described therein. The Court found that the Settlement substantially fulfills the purposes and objectives of the class action and provides beneficial relief to the Settlement Classes, considering the risks and delay of continued litigation and all other relevant factors. According to the Court the settlement: (a) is the result of arm's-length negotiations involving experienced counsel, with the assistance of a neutral mediator; (b) is sufficient to warrant notice of the Settlement and the Final Approval Hearing to the Settlement Classes; and (c) preliminarily meets all applicable requirements of law, including Federal Rule of Civil Procedure 23 and the Class Action Fairness Act, Section 1715, for settlement purposes only. Under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure, and in accord with the Settlement Agreement and solely for purposes of Settlement, the Court preliminarily approves the following Settlement Classes: Written Explanation Settlement Class: All Accountholders whose claims of unauthorized electronic fund transfers were denied by Navy Federal Credit Union between October 10, 2022, and the date the Court grants preliminary approval of the Settlement. Document Request Settlement Subclass: All Accountholders in the Written Explanation Settlement Class who requested documents Navy Federal relied on in making its determination and who did not receive them. Excluded from the Settlement Classes are (1) any judge presiding over this Action and members of their families; and (2) Defendant, its subsidiaries, parent companies, successors, predecessors, and any entity in which Defendant or its parents have a controlling interest and their current or former officers, directors, agents, attorneys, and employees. For purposes of the settlement only, the Court preliminarily finds that the Settlement Classes satisfy the requirements of Rule 23(a) and (b)(3) in that: (1) the number of Settlement Class Members is so numerous that joinder is impracticable; (2) there are questions of law and fact common to the Settlement Class members; (3) the claims of the Class Representatives are typical of the claims of the Settlement Class members; (4) the Class Representatives are adequate representatives for the Settlement Class, and have retained experienced counsel to represent them; (5) the questions of law and fact common to the Settlement Class members predominate over any questions affecting any individual Settlement Class member; and (6) a class action is superior to the other available methods for the fair and efficient adjudication of the controversy. The Court appoints Plaintiffs Jeffrey Stephenson and Billy Smith II as Class Representatives for the Settlement Classes and the following counsel are hereby appointed as Class Counsel for the Settlement Classes: Scott Edelsberg and Adam Schwartzbaum of Edelsberg Law, P.A.; Edwin E. Elliott of Shamis & Gentile, P.A.; and Sophia Gold and Jeffrey D. Kaliel of Kaliel Gold PLLC. The Court approved Kroll Settlement Administration LLC as the Settlement Administrator and directed Kroll to perform the functions and duties of the Settlement Administrator set forth in the Settlement including providing notice to the Settlement Classes and effectuating the Notice Program and to provide such other administration services as are reasonably necessary to facilitate the completion of the Settlement. The Court found the Notice Program satisfies the requirements of due process and complies with Rule 23 of the Federal Rules of Civil Procedure. The Notice Program described in Section Four of the Settlement Agreement is reasonably calculated to apprise Settlement Class members of the nature of this Action, the scope of the Settlement Classes, the terms of the Settlement Agreement, the rights of Settlement Class members to submit a claim, object to or opt out of the Settlement and the process for doing so, and the date, time, and location of the Final Approval Hearing. The Settlement Administrator shall send the agreed-upon Notices to the Settlement Class within 60 calendar days following the entry of the original Order. Any Settlement Class member who wishes to request to be excluded from the Settlement must send a written request for exclusion to the Settlement Administrator. To be valid, the Request for Exclusion must be postmarked on or before 45 days after the Notice Date. According to the Court "Settlement Class Members have a right to object to approval of the proposed Settlement, to the award of attorneys' fees and litigation expenses, or to the Service Awards to the Class Representatives. Any Settlement Class Member who wishes to do so must file with the Court a written statement, postmarked or filed on or before 45 days after the Notice Date." The Court will hold a Final Approval Hearing on February 4, 2026, at 10:30 a.m. at the United States District Court for the Southern District of California, James M. Carter and Judith N. Keep United States Courthouse, 333 West Broadway, San Diego, CA 92101, for the following purposes: (a) to finally determine whether the applicable prerequisites for settlement class action treatment under Federal Rules of Civil Procedure 23(a) and (b)(3) are met; (b) to determine whether the Settlement is fair, reasonable, and adequate, and should be granted final approval by the Court; (c) to determine whether the Judgment as provided under the Settlement Agreement should be entered dismissing the claims of the Settlement Class Members with prejudice; (d) to consider the application for an award of attorneys' fees and litigation expenses of Class Counsel; (e) to consider the application for service awards to the Settlement Class Representatives; and (f) to rule upon such other matters as the Court deems appropriate. The Court enjoined all members of the Settlement Classes, and anyone who acts or purports to act on their behalf, from pursuing or continuing to pursue all other proceedings in any state or federal court or any other proceeding that seeks to address Releasing Parties' or any Settlement Class Member's rights or claims relating to, or arising out of, any of the Released Claims. The Settlement does not constitute an admission, concession, or indication by the Parties of the validity of any claims or defenses in the Action or of any liability, fault, or wrongdoing of any kind by Defendant, which vigorously denies all the claims and allegations raised in the Action. The Court retains jurisdiction to consider all further matters arising out of or connected with the Settlement. A copy of the Court's preliminary settlement order is available at https://urlcurt.com/u?l=xmVng4 from PacerMonitor.com NEVADA GOLD: Wieben Seek Rule 23 Conditional Certification ---------------------------------------------------------- In the class action lawsuit captioned as KYLE WIEBEN and AUSTIN STOCKSTILL, Individually and for Others Similarly Situated, v. NEVADA GOLD MINES LLC, Case No. 3:24-cv-00575-MMD-CSD (D. Nev.), the Plaintiffs ask the Court to enter an order granting their motion for conditional certification pursuant to 29 U.S.C. section 216(b) and issuance of court-authorized notice, with supporting memorandum. To facilitate Court-approved notice, the Plaintiffs request the Court to: (1) conditionally certify the FLSA collective for the purposes of distributing Notice to Putative Collective Members; (2) approve the proposed Notice and Consent forms attached as Exhibit 1, as well as the proposed email and text message scripts attached as Exhibit 2; (3) authorize the Plaintiffs' proposed notice methods; (4) order Nevada Gold Mines, LLC to produce the FLSA Collective Members' contact information to Plaintiffs’ Counsel within 10 days of an Order granting this Motion; (5) authorize a 60-day notice period; and (6) authorize one reminder notice to be sent via mail, email, and text. The Plaintiffs ask the Court authorize notice be sent to the following workers: "All hourly miners, electricians, and similar employees who received a non discretionary bonus and worked for NGM during the past 3 years through the final resolution of this Action (the "Operation Hourly Employees")." The Plaintiffs filed this lawsuit on Oct. 22, 2024, alleging NGM's pay policies violate the FLSA by failing to pay employees overtime at the proper rate of pay. The Plaintiff Wieben worked as a Miner 4 in NGM's Goldstrike Mine from January 2018 through October 2022. NGM is comprised of multiple mines across the state of Nevada, resulting in "the single largest gold-producing complex in the world." A copy of the Plaintiffs' motion dated Sept 4, 2025, is available from PacerMonitor.com at https://urlcurt.com/u?l=6bhGnj at no extra charge.[CC] The Plaintiffs are represented by: Esther C. Rodriguez, Esq. RODRIGUEZ LAW OFFICES P.C. 10161 Park Run Drive, Suite 150 Las Vegas, NV 89145 Telephone: (702) 320-8400 Facsimile: (702) 320-8401 E-mail: esther@rodriguezlaw.com - and - Michael A. Josephson, Esq. Richard M. Schreiber, Esq. Travis J. Grefenstette, Esq. JOSEPHSON DUNLAP LLP 11 Greenway Plaza, Suite 3050 Houston, Texas 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com rchreiber@mybackwages.com tgrefenstette@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 11 Greenway Plaza, Suite 3025 Houston, TX 77046 Telephone: (713) 877-8788 E-mail: rburch@brucknerburch.com NIKE INC: Installs Tracking Software on Website, Tasker Says ------------------------------------------------------------ JOHN TASKER, on behalf of himself and all similarly situated persons, Plaintiff v. NIKE, INC., an Oregon corporation, Defendants, Case No. 5:25-cv-02377 (C.D. Cal., September 10, 2025) alleges that Defendant surreptitiously installs and operates tracking software on its website, www.nike.com, without providing Plaintiff and other users with adequate notice or obtaining their informed consent in violation of the California Invasion of Privacy Act. According to the complaint, the software is intentionally deployed to accomplish Defendant's commercial objectives, including identity resolution, targeted advertising, and the monetization of consumer data. To achieve these goals, the Defendant enables third-party technologies, that function as unlawful pen registers and/or trap and trace devices, to capture detailed information about users' electronic communications such as Internet Protocol addresses, session data, clickstream activity, and form inputs in real time. When Plaintiff and other users visit the website, the Defendant causes tracking technologies to be embedded in visitors' browsers. These tools operate covertly and without judicial authorization, violating the CIPA where, as here, Plaintiff and Class Members did not consent to the interception, nor did Defendant secure a court order permitting such surveillance, says the suit. Nike, Inc. is one of the world's largest athletic footwear and apparel companies with global headquarters in Beaverton, Oregon.[BN] The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 W. Coast Hwy., Suite 200 Newport Beach, CA 92663 Telephone: (949) 270-2798 E-mail: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq. LAW OFFICES OF ROSS CORNELL, APC 40729 Village Dr., Suite 8 - 1989 Big Bear Lake, CA 92315 Telephone: (562) 612-1708 E-mail: rc@rosscornelllaw.com OTTER.AI INC: Winston Alleges Unauthorized Private Info Recording ----------------------------------------------------------------- NADINE WINSTON, individually and on behalf of all others similarly situated, Plaintiff v. OTTER.AI, INC., Defendant, Case No. 3:25-cv-07712 (N.D. Cal., September 10, 2025) is a class action on behalf of the Plaintiff and other affected individuals across the United States to hold Defendant accountable for privacy violations under statutory and common law, seeking remedies for the unauthorized recording, storage, and commercial exploitation of their private conversations and personal information. According to the complaint, the Defendant is a major transcription and productivity platform with over 25 million users worldwide that has recorded over a billion meetings and integrates with popular communication services like Zoom, Google Meet, and Microsoft Teams. The Defendant publicly promises to protect user privacy and to maintain transparency as it states that it recognizes conversations contain sensitive information and is committed to keeping information private and secure. But, in actuality, OtterAI engages in covert surveillance practices that violate the privacy rights of millions of non-consenting meeting participants. When users connect their calendars, the Defendant automatically joins all scheduled meetings as a bot that appears like a regular participant, typically showing up as "Anna's Notetaker (Otter.ai)" or another similar marker, says the suit. The Defendant collects personal information including names, emails, and contact details from various platforms, linking this data to specific speakers and their words in recordings, and uses this harvested data to send promotional emails to non-users, attempting to convert them into customers. This practice affects all types of sensitive meetings including confidential business discussions, job interviews, legal consultations, medical appointments, support groups, and religious gatherings, capturing private information without informed consent, the suit alleges. Otter.ai, Inc. is an American transcription software company based in Mountain View, California.[BN] The Plaintiff is represented by: John R. Parker, Jr. ALMEIDA LAW GROUP LLC 3550 Watt Avenue, Suite 140 Sacramento, CA 95821 Telephone: (916) 616-2936 E-mail: jrparker@almeidalawgroup.com - and - David S. Almeida, Esq. ALMEIDA LAW GROUP LLC 849 W. Webster Avenue Chicago, IL 60614 Telephone: (708) 437-6476 E-mail: david@almeidalawgroup.com OUT-LOOK SAFETY: Construction Workers Class Certification Affirmed ------------------------------------------------------------------ In the case captioned as Craig McMillian et al., Plaintiffs-Respondents, v. Out-Look Safety LLC, Defendant-Respondent, Restani Construction Corp. et al., Defendants-Appellants, Safeway Construction Enterprises, LLC, Defendant, Index No. 657577/19, Appeal No. 4289, Case No. 2024-01013, Judge Manuel Mendez of the Supreme Court, Appellate Division, First Department affirmed the Supreme Court, New York County's order granting plaintiffs' motion for class certification. The Appellate Division affirmed the Supreme Court's order entered on January 30, 2024, which granted plaintiffs' motion for class certification in this prevailing wage dispute. The court determined that defendants failed to establish grounds for reversing the class certification decision. This putative class action asserted that members of the class provided services as non-union construction site flaggers, as defined by the New York City Comptroller, and were entitled to be paid at the prevailing wage for public works projects in New York City from April 16, 2018 through January 28, 2024. The amended class action complaint asserted causes of action for breach of contract as third-party beneficiaries, and unjust enrichment. The complaint alleged that the members of the class worked as flaggers for Out-Look Safety LLC, which subcontracted with defendants, the general contractors, to provide services for defendants' construction projects, and that defendants had a uniform practice of paying members of the class at a considerably lower rate by classifying them as crossing guards or traffic control. CPLR 901(a) sets forth five factors required to obtain class certification, which are commonly referred to as numerosity, commonality, typicality, adequacy of representation and superiority. A class action can be maintained pursuant to CPLR 902 only if the five prerequisite factors stated in CPLR 901(a) are met. Supreme Court's determination under CPLR 902 as to the adequate representation of the class was not challenged on appeal. Although defendants referred to CPLR 902, they specifically addressed only the four factors stated in CPLR 901. Numerosity: Plaintiffs met their minimal evidentiary burden of showing that their claim to have worked as flaggers rather than traffic controllers at various job sites was not a sham. Plaintiffs' testimony about their work and that of others they observed at the various job sites, as well as payroll and other records, sufficiently supported a finding of numerosity. Commonality: Commonality was established by plaintiffs' showing that common issues predominated in the action. Commonality is to be construed liberally, and should not be confused with identity or unanimity; rather, it is determined by predominance of the asserted legal issues. The central legal issue in this case was whether defendants utilized the class members in roles that would have entitled them to prevailing wages as non-union construction flaggers during the class period. The court found that predominance was satisfied by the central issue, which addresses harm effectuated through a variety of approaches but within a common systematic plan. The fact that each class member may possess their own unique factual circumstances does not mean that the commonality factor fails or that it is fatal to the class action. A class action is a superior vehicle for resolution of prevailing wage disputes. The only questions that are peculiar to each individual class member concern damages, and the issue of damages can be severed after resolution of the predominant issues. Typicality: Typicality was established by plaintiffs' assertions that their claims are typical of those of the class, because they are derived from the same course of conduct namely that defendants failed to pay prevailing wages to non-union workers who performed flagger duties. The named plaintiffs' claims are also based upon the same legal theories as members of the class. Defendant Elecnor Hawkeye, LLC's assertions that the representative plaintiffs did not work at its jobsite were unavailing. The representative plaintiffs provided evidence, including their deposition testimony, that work was performed for three days at that site. Furthermore, typicality does not require that the named plaintiffs' claims be identical to those of the class. Superiority: Plaintiffs established the superiority of this class action to other methods of litigating the claims at issue. Contrary to defendants' contention, plaintiffs were not required to exhaust administrative remedies prior to filing this common-law breach of contract action. Fail Safe Class Defense Defendants asserted that the class definition constituted an impermissible fail safe class under the Federal Rules of Civil Procedure Rule 23(b). A fail safe class exists when the class itself is defined in a way that precludes membership unless the liability of the defendant is established. A fail safe class is impermissible because it prevents an adverse judgment being entered against plaintiffs. Defendants argued that the sole issue in the case is whether or not a particular member was in fact acting as a flagger and thus that class membership and liability are inextricably intertwined. Supreme Court was not required to apply the standards utilized by the federal courts in FRCP Rule 23(b), given the recognition that CPLR 901(a) should be more broadly construed. Additionally, a finding of a fail-safe class does not necessarily result in a bar to certification of the class, as courts have discretion to construe the complaint or redefine the class to bring it within the scope of Rule 23. The Supreme Court's decision amended the definition of the class to avoid an impermissible fail safe class under FRCP 23(b), by excluding reference to whether public works contracts required the payment of prevailing wages on subject projects as applying to the ultimate issue of liability. Supreme Court amended the definition of the class to state: All persons employed by Out-Look Safety LLC at any time since April 16, 2018 through January 28, 2024, who worked as non-union construction flaggers on Restani, Safeway, Triumph, and/or Hawkeye projects requiring the payment of prevailing wages in New York City. Defendants' remaining arguments were considered and found to be unavailing. Accordingly, the order of the Supreme Court, New York County entered on January 30, 2024, which granted plaintiffs' motion for class certification, was affirmed, with costs. The opinion was delivered by Judge Mendez, with all justices concurring. The panel included Webber, J.P., Scarpulla, Mendez, Rodriguez, and Pitt-Burke, JJ. The following Counsels represented the parties Peckar & Abramson, P.C., New York (Mark A. Rosen of counsel), for Restani Construction Corp., appellant. Cole Schotz P.C., New York (Brian L. Gardner, Jason R. Finkelstein and Courtney G. Hindin of counsel), for Triumph Construction Corp., appellant. Cohen Seglias Pallas Greenhall & Furman, PC, New York (Jonathan Landesman of counsel), for Elecnor Hawkeye, LLC, appellant. Pelton Graham, LLC, New York (Brent E. Pelton and Taylor B. Graham of counsel), for Craig McMillian, Eian McMillian and Victor Ballast, respondents. A copy of the Court's decision is available at https://urlcurt.com/u?l=rjmvOI from PacerMonitor.com PEKIN INSURANCE: Court OKs $12.45MM Settlement in "Doyle" --------------------------------------------------------- In the case captioned as Taylor Doyle, Plaintiff, v. Pekin Insurance Company, Defendant, Civil Action No. CV-22-00638-PHX-JJT (D. Ariz.), Judge John J. Tuchi of the United States District Court for the District of Arizona granted final approval of a class action settlement and certified the settlement class on September 11, 2025. The Court ordered granting Plaintiff's Motion for Final Approval of Class Action Settlement and Certification of the Settlement Class and Motion for Attorneys' Fees, Expenses and Service Award. The Court found that the settlement, including the Settlement Fund in the amount of $12,450,000, is fair, reasonable, and adequate to the under Rule 23 of the Federal Rules of Civil Procedure. The Court certified the following class pursuant to Rule 23 of the Federal Rules of Civil Procedure: All persons identified in Exhibit A to the Settlement Agreement and who do not timely elect to be excluded from the Settlement Class, which roughly includes all persons (a) insured under a policy issued by Defendant in Arizona that contained the UM Endorsement or UIM Endorsement and provided UM Coverage or UIM Coverage for more than one motor vehicle; (b) who made a claim for UM Coverage or UIM Coverage during the Class Period; and (c) who (i) received a claim payment equal to the limit of liability for UM or UIM benefits for one vehicle; or (ii) who were one of multiple claimants in a claim related to a single incidence, where the aggregate total paid on the claim was equal to the per incident limit of liability for the UM Coverage or UIM Coverage for one vehicle. Class Period and Notice The Court established the Class period cutoff date as November 4, 2024. The Court found that Plaintiff's notice of the Class Settlement to the Certified Class was the best notice practicable under the circumstances. The notice satisfied due process and provided adequate information to the Certified Class of all matters relating to the Class Settlement and fully satisfied the requirements of Federal Rules of Civil Procedure 23(c)(2) and (e)(1). As of August 27, 2025, no member of the Certified Class requested exclusion from the Certified Class. No objections were filed regarding the Class Settlement. The Court found that Plaintiff's proposed Plan of Allocation, proposing to pay Settlement Class members as set forth in Plaintiff's Preliminary Approval Motion, is fair, reasonable, and adequate. The Plan of Allocation does not unfairly favor any Class member, or group of Class members, to the detriment of others. The Court ordered awarding to Class Counsel, attorneys' fees in the amount of $3,735,000 and expenses in the amount of $18,886.74. The Court approved the payment of all the settlement administrator's reasonable and necessary administrative costs. The Court awarded to Class Representative an incentive award to Taylor Doyle in the amount of $7,500. Pursuant to Federal Rule of Civil Procedure 23(g), the Court previously appointed Hagens Berman Sobol Shapiro, LLP as Class Counsel, and the named Plaintiff, Taylor Doyle, as the Class Representative on behalf of the Certified Class. The Court ordered Plaintiff, through the Settlement Administrator, to make all final disbursements to the Class no later than 30 days after the resolution of all Medicare liens. The Court retained continuing jurisdiction over: a. Implementation of this settlement and any distribution to members of the Class pursuant to further orders of this Court; b. Disposition of the Settlement Fund; c. Determining attorneys' fees, costs, expenses, and interest; d. The Action until Final Judgment contemplated hereby has become effective and each and every act agreed to be performed by the parties all have been performed pursuant to the Settlement Agreement; e. Hearing and ruling on any matters relating to the plan of allocation of settlement proceeds; f. All parties to the Action and Releasing Parties, for the purpose of enforcing and administering the Settlement Agreement and the mutual releases and other documents contemplated by or executed in connection with the Agreement. The Court ordered directing the Clerk of Court to enter final judgment stating that, pursuant to this Order, Judgment is hereby entered in accordance with the Court's Order dated September 11, 2025. This action is dismissed with prejudice. The Court found, pursuant to Rules 54(a) of the Federal Rules of Civil Procedure, that Final Judgment of Dismissal with prejudice as to the Defendant should be entered forthwith and further found that there is no just reason for delay in the entry of the Judgment, as Final Judgment, in accordance with the Settlement Agreement. The Judge dismissed the case with prejudice A copy of the Settlement is available at https://urlcurt.com/u?l=Rk8tuL from PacerMonitor.com PHARMACARE US: Wins Partial Dismissal of "Sunderland" Suit ---------------------------------------------------------- In the case captioned as Linda Sunderland and Benjamin Binder, individually and on behalf of all those similarly situated, Plaintiffs, v. PharmaCare U.S., Inc., Defendant, Civil Action No. 3:23-cv-01318-JES-AHG (S.D. Cal.), Judge James E Simmons jr of the United States District Court for the Southern District of California granted in part and denied in part the motion for class certification, denied defendant's motion to exclude expert testimony, and granted plaintiff's motion to file documents under seal. The Court certified a New York class action while dismissing California claims as barred by res judicata. The decision addresses consumer protection claims involving defendant's Sambucol elderberry products allegedly containing false and misleading labeling statements. On July 18, 2023, plaintiffs filed this putative class action against PharmaCare U.S., Inc., asserting consumer protection and breach of warranty claims based on its Sambucol product, a dietary supplement that is alleged to contain a proprietary extract of black elderberry. The claims include: (1) California's Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200 et seq. (2) California's False Advertising Law, Cal. Bus. & Prof. Code Section 17500 et seq. (3) California's Consumer Legal Remedies Act, Cal. Civ. Code Section 1750 et seq. (4) New York's General Business Law, N.Y. Gen. Bus. Law Sections 349, 350; and (5) Breach of Express Warranties. The case involves eight specific products: Elderberry Original Syrup, Sambucol Black Elderberry Sugar Free, Sambucol Black Elderberry Syrup for Kids, Sambucol Black Elderberry Effervescent Tablets, Sambucol Black Elderberry Chewable Tablets, Sambucol Black Elderberry Pastilles, Sambucol Black Elderberry Daily Immune Drink Powder, and Sambucol Black Elderberry Advance Immune Syrup. Plaintiffs' claims arise from allegations regarding statements made on the labels of the products, which they allege to be false and misleading. The labels on the products include statements such as "Virologist Developed," "Developed by Dr Madeleine Mumcuoglu," and claims about unique manufacturing processes and immune support properties. Plaintiff Binder is a resident and citizen of California who claims to have purchased the Original Syrup over a four-year stretch, with his last purchase in June 2023. Plaintiff Sunderland is a resident and citizen of New York who claims to have purchased the Chewable Tablets over a two-year stretch, with her last purchase in March 2023. Both plaintiffs allege they saw and relied on the challenged misrepresentations that the elderberry ingredient was unique, proprietary, and developed by a virologist. Plaintiffs sought to certify two classes: (1) a California class of all persons in California who, before March 31, 2023, purchased the products for personal or household use and not for resale; and (2) a New York class of all persons in New York who, before March 31, 2023, purchased the products for personal or household use and not for resale. The Court addressed defendant's motion to exclude plaintiffs' experts Dr. J. Michael Dennis and Mr. Colin Weir. Dr. Dennis performed a consumer perception survey, a materiality survey, and opined on damages. Mr. Weir helped to design and support Dr. Dennis' methodology on damages. Defendant argued that Dr. Dennis' consumer perception survey is unreliable, biased, and misleading because the statements used in the survey did not match the products' labels. Defendant also argued that Dr. Dennis' materiality survey is similarly unreliable because the design shown to survey participants was manufactured for the survey and not an image of the actual product or packaging. The Court followed the approach of many district courts in the circuit that the more appropriate place to consider these arguments is on how much weight to give to the competing expert testimony, rather than their admissibility. The Court stated that challenges to survey methodology go to the weight given the survey, not its admissibility. Accordingly, the Court denied defendant's motion to exclude expert testimony under Daubert. The Court denied certification of the proposed California class because their claims are barred under res judicata. The Court found that res judicata applies when there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. Plaintiffs conceded that identity of claims exists because this suit arises from the same nucleus of facts as the Corbett case, which the Court had already certified as a parallel class action involving the same product labels, similar legal claims, and theories of recovery. Final judgment on the merits occurred in Corbett when the Court granted summary judgment in favor of PharmaCare. Privity between parties exists because in Corbett, the Court certified two California classes that included individuals who purchased defendant's Sambucol products, and PharmaCare was the defendant in Corbett while plaintiff Binder and the proposed California class are members of the certified Corbett classes. Therefore, all three elements of res judicata are satisfied and the California claims are barred. Accordingly, the Court denied certification of the proposed California class. New York Class Certification Granted The Court analyzed the New York class certification under Federal Rule of Civil Procedure 23, examining both Rule 23(a) requirements (numerosity, commonality, typicality, and adequacy) and Rule 23(b)(3) requirements (predominance and superiority). Numerosity Plaintiffs stated that more than 49 million packages of the products were sold nationally. The Court found that this suffices to establish numerosity, noting that sales of several million products in California and sales of more than 100,000 products satisfy numerosity requirements in other cases. Defendant argued the proposed class is not sufficiently numerous because plaintiffs fail to offer affirmative evidence of numerosity, relying on a case involving oral misrepresentations inapplicable to the proposed class. The Court distinguished that case because here, plaintiffs allege the products' labeling created the misrepresentations, and the proposed class was uniformly exposed to those misrepresentations. The Court found that plaintiffs satisfied their burden to establish numerosity. Typicality and Adequacy The Court found that plaintiffs' claims and defenses are typical of the class because members of the class suffer the same injury, resulting from a substantially similar theory of liability. Defendant argued plaintiff Sunderland is not a typical representative because she is making an implied disease claim, whereas the proposed class claims revolve around deceptive labeling. The Court rejected this argument, finding that defendant's arguments raised as to Sunderland are not necessarily atypical of arguments they may raise against any other member of the class. For adequacy of representation, the Court found that the named class representatives share common interests with the other class members and there is no conflict that would cause them to not adequately represent their interests. The Court found that plaintiffs satisfied their burden to establish adequate representation of both the class representatives and class counsel. Predominance and Superiority The Court analyzed the elements of the underlying causes of action under New York General Business Law. The GBL prohibits deceptive acts or practices, as well as false advertising. There are three elements to a Section 349 claim: (1) the defendant's challenged acts or practices must have been directed at consumers, (2) the acts or practices must have been misleading in a material way, and (3) the plaintiff must have sustained injury as a result. Plaintiffs also assert a claim for breach of express warranty with four elements: (1) the existence of a material statement amounting to a warranty, (2) the buyer's reliance on this warranty as a basis for the contract with the immediate seller, (3) breach of the warranty, and (4) injury to the buyer caused by the breach. Defendant made several arguments against predominance, including that the proposed class is overbroad and individual fact-specific inquiries will be required, and that damages cannot be calculated on a class-wide basis. The Court rejected these arguments, concluding that criticisms of plaintiffs' damages models are more appropriate when considering their weight, not admissibility. The Court agreed with plaintiffs that their GBL and express warranty claims use an objective standard that require no individualized inquiries. The Court also agreed that plaintiffs' damages models are appropriate at the class certification stage. Therefore, the Court found that predominance is met for both the GBL and express warranty claims. For superiority, plaintiffs argued that the factors weigh for finding the class action vehicle to be superior because the amounts to be recovered are modest for individuals and so they are individually unlikely to bring suit. Defendant challenged superiority because the class is not manageable and individual factual questions predominate. The Court found these arguments meritless and concluded that plaintiffs have met their burden to show that a class action is the superior method to adjudicate the class members' claims. After due consideration, the Court granted in part and denied in part the motion for class certification and denied the respective Daubert motion. Only the New York class is certified. Certification of the proposed California class is denied because those claims are barred. Plaintiffs' motion to file documents under seal is granted. A copy of the Court's decision is available at https://urlcurt.com/u?l=dID6WXfrom PacerMonitor.com POSH GROUP INC: Doctor Suit Removed to C.D. California ------------------------------------------------------ The case captioned as Rahil Doctor, as an individual and on behalf of all others similarly situated v. Posh Group, Inc., Does 1 through 20 inclusive, Case No. 25STCV21463 was removed from the Los Angeles County Superior Court, to the U.S. District Court for the Central District of California on Aug. 21, 2025. The District Court Clerk assigned Case No. 2:25-cv-07895-WLH-KS to the proceeding. The nature of suit is stated as Other Fraud. POSH Group, Inc. -- https://posh.vip/ -- is a privately-held ticketing platform built around an arsenal of event marketing tools.[BN] The Plaintiff is represented by: Jack Day, Esq. Calvin Bryne, Esq. DAY BRYNE AND MCINTOSH 129 W. Wilson Street, Suite 105 Costa Mesa, CA 92627 Phone: (949) 650-2827 Fax: (949) 722-1137 Email: jack@dbm.law Email: calvin@dbm.law - and - Paul Keith Haines HAINES LAW GROUP APC 2155 Campus Drive Suite 180 El Segundo, CA 90245 Phone: (424) 292-2350 Fax: (424) 292-2355 Email: phaines@haineslawgroup.com The Defendant is represented by: Beatriz Mejia, Esq. Eva Spitzen, Esq. Maurice Werter Trevor, Esq. COOLEY LLP 3 Embarcadero Center Suite 20th Floor San Francisco, CA 94111-4004 Phone: (415) 693-2000 Fax: (415) 693-2222 Email: mejiab@cooley.com espitzen@cooley.com rtrevor@cooley.com PSL ASSOCIATES: "Sumo" Remanded to State Court ---------------------------------------------- In the case captioned as Garlina Sumo, Plaintiff, v. PSL Associates, LLC, Defendant, Case No. 25-5436-BHS (W.D. Wash.), Judge Benjamin H. Settle of the United States District Court for the Western District of Washington at Tacoma granted Plaintiff's motion to remand this putative class action to state court. On April 15, 2025, Sumo filed a class action in Pierce County Superior Court alleging Defendant had "at times" committed wage and hour violations against its hourly employees in Washington. Plaintiff served the Defendant on April 17, 2025. On May 19, 2025, the Defendant removed the case to federal court asserting the case met Class Action Fairness Act (CAFA) removal requirements because there are at least 1,500 putative class members, the parties are diverse, and the amount in controversy exceeds $5 million. The Defendant assumed a 30% violation rate for missed meal periods and 33% for missed rest periods, arriving at approximately $4.1 million before attorneys' fees. It added $1 million (25%) in attorneys' fees to this figure. In a supporting declaration, Senior Vice President of People & Culture, Katheryn Pigott, asserted the Defendant's records reflect the putative class of at least 1,500 non-exempt individuals worked approximately 55,403 workweeks between" April 2022 and May 2025. Plaintiff moved to remand, arguing the amount in controversy does not meet CAFA's $5 million threshold. She argued the Defendant's notice of removal is speculative, relying on unsupported assumptions regarding the $19.46 hourly wage rate and the number of missed meal and rest breaks. Plaintiff cited various cases in this Circuit to support her assertion that assuming a 20% violation rate is appropriate when a defendant's calculation of the amount in controversy is unsupported by evidence, based on the "at times" language in her complaint. She also challenged estimating attorneys' fees at 25%. The Defendant responded that Plaintiff does not provide any evidence or reasoned argument of her own. It filed a supplemental declaration by Pigott, who asserted the Defendant's work week spans all seven days. Under CAFA, putative class actions are removable when the aggregate amount in controversy exceeds $5,000,000 for the entire class, exclusive of interest and costs. The removing defendant retains the obligation to demonstrate by a preponderance of the evidence that the jurisdictional amount in controversy is met in order to sustain its removal in the face of a motion to remand. The defendant need only plausibly allege the jurisdictional amount exceeds $5 million. The defendant may rely on a chain of reasoning that includes assumptions to calculate the amount in controversy. While the assumptions cannot be pulled from thin air, they may be based on the language of the complaint and do not necessarily need to be supported by evidence. Evidence is required only when the plaintiff or the Court questions the defendant's jurisdictional allegations. The plaintiff can challenge the amount in controversy by way of a "facial" or "factual" attack on the defendant's jurisdictional allegations. When the plaintiff mounts a factual attack, the burden is on the defendant to show, by a preponderance of the evidence, that the amount in controversy exceeds the $5 million jurisdictional threshold. Courts have varied approaches to estimating a defendant's violation rate when determining the amount in controversy. In the context of wage violations, phrases like 'at times' generally imply the illegal practices in question did not happen consistently. In this Circuit, courts have frequently found a 20% violation rate broadly consistent with "at times" language in a complaint, particularly where Defendants have not submitted evidence that would justify a higher rate. Plaintiff factually attacked the Defendant's assumptions and argued a 20% violation rate is a more reasonable assumption. The Court agreed. Pigott's declarations do not explain why the Defendant assumed a 30-33% violation rate in calculating the amount in controversy. The Defendant's assumed violation rates appear to be pulled from thin air, without reasonable ground underlying them. Based on the at times language in the complaint, the Court concluded 20% is a more reasonable violation rate. Accordingly, the Defendant's exposure for Plaintiff's claims is $3,271,229.80, before attorneys' fees. When the statute at issue provides for the recovery of attorneys' fees, prospective attorneys' fees must be included in the assessment of the amount in controversy." The defendant must prove by a preponderance of the evidence the amount of attorneys' fees at stake. Plaintiff argued attorneys' fees should not be added to the amount in controversy calculation because the Defendant did not provide a lodestar-based estimate or evidence from the pleadings. While Plaintiff is correct that the Ninth Circuit has declined to adopt a per se rule regarding 25% attorneys' fees in class actions, she offered no alternative. District courts in the Circuit have concluded that a 25% fee award is reasonable in similar wage and hour CAFA cases. Including 25% attorneys' fees to $3,271,229.80, the Defendant's total exposure is $4,089,037.25. The Court concluded the Defendant has not, by a preponderance of the evidence, demonstrated that the amount in controversy exceeds $5 million based on reasonable assumptions. Therefore, Plaintiff's motion to remand was granted. The Defendant's motion to compel arbitration was dismissed without prejudice for refiling in state court. Plaintiff's cross motion to stay the Defendant's motion to compel arbitration pending resolution of her motion to remand was denied as moot. A copy of the Court's decision is available at https://urlcurt.com/u?l=2yWi1E from PacerMonitor.com RTX CORP: Wins Dismissal of "Peneycad" Securities Suit ------------------------------------------------------ In the case captioned as Joshua Peneycad, Individually and on behalf of all others similarly situated, Plaintiffs, v. RTX Corporation f/k/a Raytheon Technologies Corporation, Gregory Hayes, Neil Mitchill, Anthony F. O'Brien, Christopher T. Calio, Shane Eddy, Defendants, No. 3:23-cv-1035 (VAB) (D. Conn.), Judge Victor A. Bolden of the United States District Court for the District of Connecticut granted the motion to dismiss and dismissed all claims with prejudice. RTX is an American multinational aerospace and defense corporation formed through a merger between United Technologies Corporation and Raytheon Corporation. Pratt & Whitney, a subsidiary of RTX, is an industry-leading airplane engine manufacturer whose commercial engine sales allegedly accounted for 30 per cent of RTX's net sales in 2022. Pratt's most significant product is the Geared Turbofan engine family, which launched in 2016. RTX initially sold the GTF engines at an alleged $1 million loss, planning to recoup losses through Aftermarket maintenance, repair, and overhaul services after warranties expired. According to Lead Plaintiffs, this case presents a classic example of a Company concealing from the market a known defect in its flagship product line in order to maintain its stock price and profitability. Defendants allegedly knew that virtually every single Geared Turbofan engine Pratt & Whitney sold from 2015 to 2021 contained defective parts manufactured from contaminated powdered metal that could cause catastrophic engine failure mid-flight. The powdered metal defect allegedly originated during a scale-up process at Pratt's Clayville, New York facility in 2015, where contaminants were introduced. On March 18, 2020, Vietnam Airlines Flight VN-920 allegedly experienced an HPT disk fracture, leading its V2500 series Pratt & Whitney engine to rip apart, which forced the crew to abort a high-speed takeoff. On July 25, 2023, Defendants issued an 8-K Press Release disclosing a "rare condition" in its powdered metal that would require Pratt to remove some GTF engines from service for inspection earlier than expected. RTX's share price fell $9.91 per share, or 10.2%, to close at $87.10. The Claims Lead Plaintiffs alleged numerous violations of Section 10(b) of the Exchange Act and Rule 10b-5 against all Defendants and numerous violations of Section 20(a) of the Exchange Act against the Individual Defendants. Alleged False Statements Plaintiffs alleged that Defendants made ten false, material statements during the class period, including: (a) February 8, 2021 Annual 10-K Report stating that technical issues with the GTF engine had been addressed and were usual for new engines (b) February 17, 2021 statement by Hayes that GTF issues seemed to be behind them (c) June 8, 2021 statement by Mitchill claiming 99% completion of retrofitting issues (d) October 26, 2021 earnings call where Hayes called the engine "great" (e) November 9, 2021 statement by Mitchill that the engine was performing "very, very well" (f) January 25, 2022 earnings call discussing dispatch reliability of 99.96% (g) February 11, 2022 Annual 10-K Report discussing technical failures (h) January 24, 2023 earnings call about aftermarket profitability (i) April 25, 2023 earnings call claiming estimates contemplated everything known about the engine (j) June 19, 2023 Paris Air Show statement by Eddy that there was no surprise coming Court's Analysis on False Statements The Court found that Defendants included express warnings about potential financial and reputational damage in their 10-K filings, which included cautionary language that "additional technical issues, either related to this program or other programs, may also arise in the normal course, which may result in financial impacts that could be material to the Company's financial position, results of operations and cash flows." The Court determined that these statements are replete with warnings and qualifications that signify actual results could differ materially from forward-looking statements, making them not actionable under the PSLRA's safe harbor provisions. Regarding specific statements, the Court held that expressions like "the engine's performing really well" and "all of the GTF issues that we've been talking about seem to be behind us" constitute corporate optimism that amounts to puffery, not fraud, as expressions of puffery and corporate optimism do not give rise to securities violations. The Court noted that a securities fraud plaintiff must plausibly allege that a statement would be misleading to a reasonable investor given the "total mix" of available information, and within that mix, expressions of puffery and corporate optimism do not give rise to securities violations. Court's Finding on Contemporaneous Falsity The Court emphasized that a violation of Section 10(b) and Rule 10b-5 premised on misstatements cannot occur unless an alleged material misstatement was false at the time it was made. A statement believed to be true when made, but later shown to be false, is insufficient without contemporaneous falsity. The Court found that Plaintiffs failed to allege with sufficient particularity that the makers of these allegedly false statements knew the statements were false at the time they were made. The Court specifically noted that Plaintiffs offer no specific allegations that Defendants knew of the magnitude of the powdered metal defect at the time the statements were made. Regarding former employee testimony, the Court found that FE-1's allegations only indicated that certain individuals within Pratt were aware that there was some type of issue with powdered metal but did not demonstrate awareness of the magnitude of the defect. No Individual Defendants were alleged to have taken part in any of FE-1's conversations, and Plaintiffs did not allege any connection between the people FE-1 identified and the Individual Defendants. Court's Analysis on Scienter The Court found that Plaintiffs failed to adequately plead scienter under the heightened requirements of the PSLRA. To plead scienter to survive a motion to dismiss, a plaintiff must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. The Court noted that Plaintiffs' allegations of motive do not extend beyond motives common to most corporate officers, such as the desire for the corporation to appear profitable and the desire to keep stock prices high. These common motives do not constitute motive for purposes of the scienter inquiry. Regarding circumstantial evidence of misbehavior or recklessness, the Court found that Plaintiffs failed to plead that Defendants' conduct represented an extreme departure from the standards of care. The Court noted that the extent to which Defendants were cooperating with the FAA and complying with FAA directives suggests they were acting within ordinary standards of care for their industry. The Court emphasized that the Second Circuit has refused to allow plaintiffs to allege fraud by hindsight, explaining that corporate officials need not be clairvoyant and are only responsible for revealing those material facts reasonably available to them. Allegations that defendants should have anticipated future events and made certain disclosures earlier than they actually did do not suffice to make out a claim of securities fraud. The Court found that the inference that Defendants grew to realize the magnitude of the problem over time and disclosed information at the appropriate time to regulators and investors was more plausible than any inference of scienter. Section 20(a) Claims The Court dismissed Plaintiffs' derivative claims under Section 20(a) because Section 20(a) liability requires an independent Securities Exchange Act violation. Since the Court dismissed the primary violations of Section 10(b) and Rule 10b-5, the derivative claims under Section 20(a) must also be dismissed. Final Ruling The Court granted Defendants' motion to dismiss in its entirety. All claims under Section 10(b) of the Exchange Act, SEC Rule 10b-5, and Section 20(a) of the Exchange Act were dismissed with prejudice. The Clerk of the Court was directed to close the case. The Court concluded that Plaintiffs failed to adequately plead falsity or scienter under Section 10(b) of the Exchange Act, finding this to be a prototypical fraud by hindsight lawsuit where forward-looking statements, puffery, and opinion statements were protected from securities fraud liability. A copy of the Court's statement is available at https://urlcurt.com/u?l=VdPu4n from PacerMonitor.com SANDRIDGE TRUST: Oklahoma Court Denies Bid to Junk Securities Suit ------------------------------------------------------------------ In the case captioned as Duane & Virginia Lanier Trust, individually and on behalf of all others similarly situated, Plaintiffs, v. SandRidge Mississippian Trust I et al., Defendants, Case No. CIV-15-634-G (W.D. Okla.), Judge Charles B. Goodwin of the United States District Court for the Western District of Oklahoma denied Defendant SandRidge Mississippian Trust I and nominal defendant SandRidge Energy, Inc.'s Motion for Reconsideration. The Court vacated its previous stay on the Motion for Reconsideration and ruled decisively against the defendants' attempt to overturn an earlier dismissal denial. This securities fraud class action centres on allegations that SandRidge Mississippian Trust I misrepresented oil production forecasts to investors, with Lead Plaintiffs seeking relief under sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. Background and Procedural History The remaining Lead Plaintiffs are the Duane & Virginia Lanier Trust, Ivan Nibur, and Reed Romine, representing themselves individually and on behalf of all others similarly situated. Lead Plaintiffs originally filed this action seeking relief under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act, 15 U.S.C. Sections 78j(b), 78t(a), and Rule 10b-5, promulgated thereunder. Lead Plaintiffs also brought claims under various provisions of the Securities Act of 1933, 15 U.S.C. Sections 77k, 77l(a)(2), 77o. On August 30, 2017, the Court dismissed all claims for relief under the Securities Act. The Court entered judgment in the relevant defendants' favor on those claims pursuant to Federal Rule of Civil Procedure 54(b) on December 5, 2017. In the determination challenged here, the Court on September 11, 2017, denied Trust I's and SandRidge's motions to dismiss Lead Plaintiffs' Exchange Act claims. In that same Order, the Court denied in part and granted in part the motions to dismiss filed by the three Officer Defendants—Tom L. Ward, James D. Bennett, and Matthew K. Grubb. On December 30, 2022, the Court approved a class action settlement and entered judgment dismissing all claims against the Officer Defendants with prejudice. Following these rulings, what remain for disposition are the section 10(b) and Rule 10b-5 claims of Lead Plaintiffs Lanier Trust, Nibur, and Romine, asserted individually and on behalf of putative class members against Defendants Trust I and SandRidge. Legal Standards Applied To state a claim under Section 10(b) of the Exchange Act and Rule 10b-5, a plaintiff generally must allege: (1) a misleading statement or omission of a material fact; (2) made in connection with the purchase or sale of securities; (3) with intent to defraud or recklessness; (4) reliance; and (5) damages. To curb abuse in private securities lawsuits, Congress enacted the PSLRA, which mandates a more stringent pleading standard for securities fraud actions in general, and for scienter allegations in particular. The PSLRA heightens the standard for pleading scienter with the following requirement: In any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. The Supreme Court has defined scienter in this context as a mental state embracing intent to deceive, manipulate, or defraud. The Supreme Court has also explained that the statutory language strongly suggests that Section 10(b) was intended to proscribe knowing or intentional misconduct. Recklessness, defined as conduct that is an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it, can also satisfy the scienter requirement for Section 10(b). Rule 12(b)(6) Analysis Framework The Supreme Court has summarized the general analysis to be applied in deciding a Rule 12(b)(6) motion seeking dismissal of a Section 10(b) claim: First, faced with a Rule 12(b)(6) motion to dismiss a Section 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. The inquiry is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. Third, in determining whether the pleaded facts give rise to a strong inference of scienter, the court must take into account plausible opposing inferences. To determine whether the plaintiff has alleged facts that give rise to the requisite strong inference of scienter, a court must consider plausible, nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the smoking-gun genre, or even the most plausible of competing inferences. Yet the inference of scienter must be more than merely reasonable or permissible—it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged. Federal Rule of Civil Procedure 54(b) Standards Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, any order or other decision that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities. When considering a party's motion to invoke the Court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment under Rule 54(b), the Court is not bound by the strict standards for altering or amending a judgment encompassed in Federal Rules of Civil Procedure 59(e) and 60(b). It has been held by district courts that reconsideration of a nonfinal order should be granted as justice requires. Defendants sought dismissal of Lead Plaintiffs' Section 10(b) Claim for failure to state a claim upon which relief can be granted. The Court denied dismissal in relevant part, finding that the Consolidated Amended Complaint adequately pleaded both scienter and material misrepresentations or omissions for purposes of Federal Rule of Civil Procedure 12(b)(6) and the standards recited above. Factual Allegations Supporting the Claims The Court summarized the factual allegations supporting the Exchange Act claims as follows: Plaintiffs allege that the Trust I registration statement projected that the Trust I Development Wells would produce approximately 18% more oil than the Trust I Producing Wells. Plaintiffs further allege that by the end of Trust I's second reporting period in August 2011, it had become clear to the Moving Defendants that Trust I would not meet its projections because through August 2011, the oil production of the Trust I Development Wells was only matching that of the Trust I Producing Wells (negative Trust I oil production trends). Given the premium price of oil, the shortfall in oil production from the Trust I Development Wells threatened to cause cash distributions to Trust I investors to miss the targets in the Trust I registration statement. Plaintiffs allege that since Moving Defendants were planning the Trust II IPO to finance their business plan, they specifically needed to showcase the success of the Trust I IPO. Thus, the failure of Trust I to meet targeted cash distributions would have derailed the Trust II IPO. Plaintiffs allege that to avoid this result, Moving Defendants sought to offset the weaker than projected oil production of the Trust I Development Wells by accelerating the drilling of those Wells and successfully masked the weaker oil production of individual Trust I Development Wells with higher aggregate oil production from a greater number of wells drilled than planned. Additionally, plaintiffs allege that in reporting Trust I's production and cash distribution beats on conference calls with analysts, Moving Defendants falsely stated, among other things, that oil production was on trend and on target even though the oil production of the Trust I Development Wells (accounting for two-thirds of the Trust I reserves) was not meeting forecasts. Original Scienter Finding Plaintiffs further allege that Moving Defendants made these false and misleading statements with scienter. First, plaintiffs allege Moving Defendants were plainly in a position to know about and appreciate the significance of the Trust I Development Wells' poor oil production and stayed regularly informed of the Trust I well production. Second, plaintiffs allege that Moving Defendants had a motive to make false statements—by concealing the Trust I Development Wells' poor oil production, SandRidge was able to liquidate most of its Trust I units and complete the Trust II IPO. The Court then rejected Defendants' argument that the pleading failed to adequately state facts giving rise to a strong inference of scienter, at least as to two of the Officer Defendants. In so doing, the Court relied in part on factual allegations, set forth in paragraphs 63-75 and 299 of the pleading, derived from interviews by counsel for Lead Plaintiffs with several confidential witnesses who were former employees of SandRidge. The Court found: Having carefully reviewed the parties' submissions, and having carefully and thoroughly reviewed plaintiffs' Consolidated Amended Complaint for Violations of the Federal Securities Laws, and taking all facts alleged collectively and accepting them as true, the Court finds that plaintiffs have sufficiently alleged scienter as to defendants Ward and Grubb. Particularly, the Court finds that plaintiffs have set forth sufficient facts that give rise to a strong inference that defendants Ward and Grubb acted with the required state of mind. The complaint specifically alleges that both defendants Ward and Grubb attended senior management meetings concerning the oil and gas production performance of individual SandRidge wells, including the Trust Wells, after the Trust offerings, that the meetings were often led by defendant Grubb, and that the declining oil production of the Trust I Wells after the Trust I IPO, and the unpredictability of the performance of individual Trust I Wells after the Trust I IPO, was discussed at these weekly meetings. Further, the Court finds plaintiffs' allegations regarding Moving Defendants' motive further support a finding that plaintiffs have sufficiently alleged scienter as to defendants Ward and Grubb. Under the circumstances alleged, the Court finds the inference of scienter as to these defendants is more than merely reasonable or permissible and is cogent and at least as compelling as any opposing inference one could draw from the facts alleged. Defendants' Motion for Reconsideration Arguments Defendants requested that the Court revisit this determination and instead grant dismissal of the Section 10(b) Claim. In support, Defendants argue that discovery in this matter has shown certain of the pleading's Former Employee allegations to be inconsistent with or not supported by those individuals' later deposition testimony. Defendants also criticize Lead Plaintiffs' counsel's conduct with regard to disclosure of the identities of these former employees and facilitating their availability in this lawsuit. Rule 12(b)(6) Dismissal Arguments Defendants' Motion does not directly attack the reasoning of the Dismissal Order or the Order's conclusion that, based upon the operative pleading allegations before the Court, Lead Plaintiffs adequately stated an Exchange Act claim upon which relief can be granted. Nor do Defendants offer support for the proposition that the Court could now grant dismissal of the Section 10(b) Claim under Rule 12(b)(6) based not upon the plausibility of those pleading allegations, but upon consideration of evidence outside of the Consolidated Amended Complaint. No error having been shown in the Court's Dismissal Order, the Court declines to exercise its discretion to revise that ruling as to the disposition of the motions to dismiss. Sanction-Based Dismissal Arguments Defendants' primary argument is that the new evidence presented regarding the Former Employees justifies dismissal of this lawsuit—not for failure to plead scienter, but based upon the deceptive conduct of Lead Plaintiffs and their counsel. Discovery Conduct Allegations First, Defendants argue that dismissal should be granted because Lead Plaintiffs improperly stonewalled Defendants' efforts to identify and question the Former Employees. Specifically, Defendants contend that Lead Plaintiffs: delayed in disclosing the Former Employees' identities and ultimately designated them confidential, required Defendants to subpoena the Former Employees for deposition, objected to related discovery requests on the basis of attorney work product, and proposed producing some redacted documents only if Defendants would agree that the production would not be a work product waiver. Lead Plaintiffs answer that the relevant individuals are not plaintiffs in this lawsuit, but SandRidge's own former employees, and therefore not within Lead Plaintiffs' control to produce upon request. More significantly, they say, if Defendants had an objection as to disclosures, privilege, compelling attendance at a nonparty deposition, or any other aspects of the discovery related to the Former Employees, it was incumbent upon Defendants to seek relief from the Court. The Court agrees that Defendants' unpressed criticisms of Lead Plaintiffs' discovery responses do not serve as a basis for dismissal now. Even assuming without deciding that the Court may properly impose the requested de facto discovery sanction when requested via a Rule 54(b) motion, the Court declines to do so. Alleged Discrepancies in Former Employee Testimony Next, Defendants point to alleged discrepancies between certain pleading allegations and the evidence gleaned during discovery as undermining the Court's prior finding of scienter and offering a basis for dismissal. For example: (a) Defendants emphasize that it appears from the record that hired investigators, rather than Lead Plaintiffs' attorneys themselves, conducted the interviews of the Former Employees. (b) Defendants assert that the deposition testimony of Former Employee No. 1 does not support information alleged in the Consolidated Amended Complaint to have been obtained from that source. Defendants point to paragraph 73 of the Consolidated Amended Complaint, which alleges that FE 1 confirms that the declining oil production of the Trust I Wells after the Trust I Offering, and the unpredictability of the performance of individual Trust I Wells after the Trust I Offering, was discussed at the weekly senior management meetings. When deposed, Former Employee No. 1 did not recall telling Lead Plaintiffs' counsel about these topics of discussion. (c) Defendants assert that the deposition testimony of Former Employee No. 3 differs from information alleged in the Consolidated Amended Complaint to have been obtained from that source. Defendants point to the following pleading allegations: Former Employee No. 3 worked at SandRidge as a geologist from 2009 through 2010. FE 3's work focused on Woods County in Oklahoma, and involved, among other tasks, mapping acreage. FE 3 reported his findings to Mike Brown and FE 1. The Former Employees report that Defendants closely monitored the production of all of SandRidge's Mississippian wells via weekly senior management meetings at which the performance of individual wells was discussed. FE 1, FE 2, and FE 3 all attended these senior management meetings during the time that they were employed by SandRidge. FE 3 also reports that the weekly senior management meetings were attended by Defendant Ward and other senior executives, and that engineers gave presentations to those senior executives at the meetings. At his deposition, Former Employee No. 3 stated that he did not recall being interviewed by Lead Plaintiffs' counsel and had not been interviewed by anyone regarding allegations of fraud, production forecasts, or the topics of this case. He also testified that his job description and dates of tenure were incorrect and that he had not told the plaintiffs' lawyers that he attended management meetings for the Mississippi. Lead Plaintiffs' Response Lead Plaintiffs respond that, regardless of the errors regarding Former Employee No. 3 and otherwise, the pertinent fact—that there were periodic management meetings at which individual wells were discussed—is undisputedly accurate. Lead Plaintiffs also suggest that the investigator identified the wrong person as Former Employee No. 3 on an interview memorandum, representing that Lead Plaintiffs have attempted to determine whether the investigator's error is the cause of the mistake but have not been able to reach any conclusion. In addition, Lead Plaintiffs argue that dismissal on this basis would be improper, as the allegedly material discrepancies in the Former Employees' accounts should have been brought to the Court's attention shortly after Defendants took the relevant depositions, rather than through the filing of the Motion for Reconsideration over a year later. Court's Final Analysis and Ruling Having carefully considered the Consolidated Amended Complaint and the relevant record, including examples of allegedly inconsistent pleading allegations not specifically discussed herein, the Court declines to dismiss this action. While problematic, the relevant alleged fact that the Court found to be material in evaluating scienter—i.e., the discussion of well performance at management meetings—is not disputed. The cited discrepancies do not establish bad faith or intentional misrepresentation on the part of counsel; nor do they reflect the type of general unreliability that would foreclose the Court's continued consideration of Lead Plaintiffs' claims. The Court rejected Lead Plaintiffs' baseless accusation that perhaps Former Employee No. 3 falsely denied being the source of the allegations at his deposition. Conclusion and Final Order For the foregoing reasons, Defendants' Motion for Reconsideration is denied. The Court ordered this ruling on the 11th day of September, 2025. The Court's decision preserves the viability of the class action securities fraud claims against SandRidge Mississippian Trust I and SandRidge Energy, Inc., allowing the case to proceed toward trial on the merits. The ruling demonstrates that while discovery may reveal inconsistencies in witness testimony, such discrepancies alone are insufficient grounds for dismissal when the core allegations supporting scienter remain undisputed. This securities class action continues to move forward with Lead Plaintiffs representing investors who allegedly suffered losses due to misrepresentations about oil production forecasts and well performance. The case centers on allegations that defendants knowingly made false statements about Trust I Development Wells' oil production capabilities to maintain investor confidence and facilitate subsequent offerings. A copy of the Court's Order is available at https://urlcurt.com/u?l=oCO2KT from PacerMonitor.com SIMPLICITY CREDIT: Dismissal of "Birge" Affirmed ------------------------------------------------ In the case captioned as Daniel Birge and Melissa Birge, Plaintiffs-Appellants, v. Simplicity Credit Union, Defendant-Respondent Appeal No. 2024AP567 (Wis. Ct. App.), Circuit Judge Nashold of the Wisconsin Court of Appeals affirmed the circuit court's summary judgment in favor of the defendant credit union in a class action challenging repossession notices. The Court of Appeals affirmed the lower court's dismissal of the class action complaint, finding that Simplicity Credit Union's pre-sale and post-sale notices complied with Wisconsin's Uniform Commercial Code requirements. The Birges entered into a loan and security agreement with Simplicity in order to pay for repairs to their vehicle. The loan was for $4,222.42 and was secured by the Birges' vehicle. At the time, Simplicity valued the vehicle at $5,025. The Birges defaulted shortly after entering the agreement, and Simplicity repossessed the vehicle. Simplicity sent the Birges a notice that informed them that Simplicity intended to sell the vehicle at a private sale and when and where the sale would take place. This pre-sale notice used the "safe harbor" language set forth in Section 409.614(3) of the UCC. Using this language, the notification stated: "The money that we get from the sale (after paying our costs) will reduce the amount you owe. If we get less money than you owe, you will still owe us the difference. If we get more money than you owe, you will get the extra money, unless we must pay it to someone else." Simplicity sold the vehicle, which had over 243,000 miles on the odometer and was in rough condition, at a private auction for $500. After subtracting auction fees of $130 and vehicle preparation costs of $175, Simplicity applied the remaining $195 to the loan balance, which left a deficiency of $4,233.48. The Birges have not paid any portion of the deficiency, nor has Simplicity sought to collect on the deficiency. The Birges brought a class action against Simplicity. The plaintiffs alleged that the pre-sale notice violated Section 409.614(1)(b) because it did not accurately describe how the deficiency would be calculated, and that the post-sale notice violated Section 409.616 because it did not accurately describe the deficiency. Specifically, the Birges alleged that, consistent with Section 425.210 of the Wisconsin Consumer Act, the notices were required to describe the deficiency as the difference between the loan balance and the fair market value of the vehicle, rather than as the difference between the loan balance and the vehicle's sale price. Simplicity moved for summary judgment, arguing that Section 425.210 did not apply to the notices, that the pre-sale notice was sufficient because Simplicity used the safe-harbor language set forth in Section 409.614(3), and that the post-sale notice was sufficient under Section 409.616 because it accurately described the Birges' deficiency liability. The circuit court granted Simplicity's motion and dismissed the Birges' complaint. The court found that Simplicity's pre-sale notice followed the safe-harbor language of Section 409.614(3), which, as that subsection explicitly states, provides sufficient information to satisfy the requirements of Section 409.614(1). The court concluded: "The Birges' argument that we must alter Section 409.614(3)'s safe-harbor language because of Section 425.210 would nullify the language in Section 409.614(3) stating that the safe-harbor form 'provides sufficient information,' which would be contrary to the statute's plain meaning and well-established tenets of statutory construction." The court rejected the plaintiffs' reliance on Section 409.614(5), finding that the provision addresses errors in information not required by Section 409.614(1), while the information at issue was required by that section. The court rejected the Birges' argument that the canon of in pari materia required harmonizing Section 409.614 of the UCC with Section 425.210 of the Wisconsin Consumer Act. The court explained: Section 409.614 specifically governs pre-sale notices that secured parties must send debtors before disposing of the collateral securing a transaction. In contrast, Section 425.210 does not mention notice requirements in any way. Instead, it addresses how to calculate a deficiency judgment in certain court proceedings under the WCA after the collateral securing a transaction has been disposed of. The court noted that Section 425.210 applies only if the creditor is entitled to a deficiency judgment pursuant to Section 425.209(1), and emphasized: When, as here, no action for a deficiency judgment was filed, Section 425.210 simply does not apply." The court observed that the Wisconsin Consumer Act expressly provides that the UCC governs transactions unless superseded by a particular provision of the WCA. Section 421.103(3) states: Unless superseded by the particular provisions of chapters 421 to 427, parties to a consumer transaction have all of the obligations, duties, rights and remedies provided in chapters 401 to 411 which apply to the transaction. The court noted the legislative history, explaining that Section 425.210 was enacted in 1971 and has not been amended since, while provisions allowing nonjudicial enforcement were added in 2006. The court stated: "When the legislature amended the WCA over thirty years later in 2006 to allow for nonjudicial enforcement of a creditor's right to recover and dispose of collateral, the legislature left Section 425.210 unchanged." Regarding the post-sale notice challenge, the court found that the Birges raised this argument for the first time in their reply brief with largely undeveloped reasoning. The court applied the same analysis, concluding that Section 425.210 governs judicial actions brought to recover deficiency judgments after collateral has been disposed of, but does not alter the UCC's requirements. The court noted that Section 409.616 requires a post-sale notice to include the amount of the surplus or deficiency and observed: At the time the post-sale notice is sent in a nonjudicial repossession such as the one here, the sale price may be the only indication of the collateral's fair market value. The Court of Appeals concluded that the undisputed facts establish that Simplicity's pre- and post-sale notices were legally sufficient, the circuit court properly granted summary judgment in favor of Simplicity and dismissed the Birges' complaint. Accordingly, we affirm. The court rejected the plaintiffs' interpretation, stating: "We reject the Birges' argument that, unless the requirements of Section 425.210 are imported into the notice requirements of Section 409.614(3), there would be a conflict between Sections 409.614 and 425.210." A copy of the Court's decision is available at https://urlcurt.com/u?l=C84CGbfrom PacerMonitor.com SUNRISE HOSPITAL: Deadlines in "Kabota" Further Extended -------------------------------------------------------- In the case captioned as Aynur Kabota, on behalf of herself and all other similarly situated individuals, Plaintiff, v. Sunrise Hospital and Medical Center, LLC and HCA Healthcare, Inc., Defendants, Civil Action No. 2:25-cv-00684-MMD-DJA (D. Nev.), United States Magistrate Judge Daniel J. Albregts of the United States District Court for the District of Nevada granted the parties' third request for extension of deadlines. Plaintiff filed her complaint and jury demand on April 16, 2025. On April 22, 2025, Plaintiff served a Notice of Lawsuit and Request for Waiver of Service on Defendants. On May 1, 2025, Defendants executed the Waiver of the Service of Summons, making the deadline to answer or otherwise respond to the complaint June 23, 2025. On June 20, 2025, Defendants filed an Unopposed Motion for a 21-day Extension of Time to answer or otherwise respond to the complaint. On June 24, 2025, the court granted the motion, extending the deadline to July 14, 2025. On July 14, 2025, the parties stipulated to further extend the deadline to September 12, 2025, to continue good faith efforts to explore potential early resolution. The court granted the stipulation on July 15, 2025. The parties continued discussions in good faith, and Plaintiff determined she will amend her complaint as it relates to certain claims. The parties agreed that Plaintiff will amend her complaint on or before September 26, 2025, and Defendants may have 45 days from that date, until November 10, 2025, to continue exploring potential resolution or to answer or otherwise respond to Plaintiff's amended complaint. The court ordered that Plaintiff may amend her complaint on or before September 26, 2025, and Defendants may answer or otherwise respond to Plaintiff's amended complaint on or before November 10, 2025. Leah L. Jones: Counsel for Plaintiff and all Similarly Situated Individuals Jason Hicks: Counsel for Defendants Sunrise Hospital and Medical Center, LL, and HCA Healthcare, Inc. NAOMI BEER, ESQ: Counsel for Defendants, Sunrise Hospital and Medical Center LL, and HCA Healthcare, Inc. A copy of the Court's decision is available at https://urlcurt.com/u?l=9RxfIh from PacerMonitor.com TRA MEDICAL: Wilson Files Suit Over Unsolicited Voice Messages -------------------------------------------------------------- CHET MICHAEL WILSON, individually and on behalf of all others similarly situated, Plaintiff v. TRA MEDICAL IMAGING FOUNDATION, a Washington nonprofit corporation, Defendant, Case No. 3:25-cv-05808 (W.D. Wash., September 10, 2025) is a class action against TRA Medical under the Telephone Consumer Protection Act. According to the complaint, the Defendant routinely violates the law by using an artificial or prerecorded voice in connection with non-emergency calls it places to telephone numbers assigned to a cellular telephone service, without prior express consent. The Defendant's voice messages were generic and identical besides the name of the individual they were seeking, neither of which were related to the Plaintiff, says the suit. The Plaintiff asserts that he suffered actual harm as a result Defendant's subject calls, in connection with which it used an artificial or prerecorded voice, in that he suffered an invasion of privacy, an intrusion into his life, and a private nuisance. TRA Medical Imaging Foundation is a non-profit organization with its principal place of business in Washington.[BN] The Plaintiff is represented by: Eric Draluck, Esq. 271 Winslow Way E., #11647 Bainbridge Island, WA 98110 Telephone: (206) 605-1424 E-mail: eric@dralucklaw.com TRANS UNION: Fails to Protect Private Info, Zauszmer Says --------------------------------------------------------- ALAN ZAUSZMER, individually, and on behalf of all others similarly situated, Plaintiff v. TRANS UNION LLC, Defendant, Case No. 1:25-cv-10941 (N.D. Ill., September 10, 2025) arises from the Defendant's involvement in a data breach affecting approximately 4.5 million customers resulting to exfiltration of TransUnion's highly sensitive information. According to the complaint, Plaintiff's and Class members' sensitive personal information was compromised due to Defendant's negligent and/or careless acts and omissions and the failure to protect the SPI of Plaintiff and Class members. The Plaintiff brings this action on behalf of all persons whose SPI was compromised as a result of Defendant's failure to: (i) adequately protect consumers' SPI, (ii) adequately warn its current and former customers and potential customers of its inadequate information security practices, and (iii) effectively monitor its platforms for security vulnerabilities and incidents. The Defendant's conduct amounts to negligence and violates state statutes, says the suit. Trans Union, LLC, a for-profit Delaware corporation, is a major credit reporting agency with its principal place of business in Chicago, Illinois.[BN] The Plaintiff is represented by: Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 111 W. Jackson Blvd., Suite 1700 Chicago, IL 60604 Telephone: (312) 984-0000 Facsimile: (212) 686-0114 E-mail: malmstrom@whafh.com - and - Rachele R. Byrd, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 750 B Street, Suite 1820 San Diego, CA 92101 Telephone: (619) 239-4599 Facsimile: (619) 234-4599 E-mail: byrd@whafh.com TRIDENT TRANSPORT: Dennis Sues Over Failure to Pay Overtime ----------------------------------------------------------- Phillip Dennis, individually and on behalf of all others similarly situated v. Trident Transport, LLC, Case No. 1:25-cv-00297 (E.D. Tenn., Sept. 12, 2025), is brought against Defendant for its failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"). The Defendant did not pay Plaintiff overtime premium pay when he worked over 40 hours in a workweek. The Defendant did not pay the putative FLSA Collective members overtime premium pay when they worked over 40 hours in a workweek. The Plaintiff and the putative FLSA Collective members' job is selling Defendant's freight brokerage services and/or providing the freight brokerage services that Defendant sells. The Plaintiff and the putative FLSA Collective members' job is performed primarily from inside the office and/or from home. Plaintiff and the putative FLSA Collective Members research prospective customers (shippers), cold-call to try to obtain business, locate carriers to provide transportation, and/or assist with day-to-day shipping tasks for customers. The Defendant suffered and permitted Plaintiff and the putative FLSA Collective members to work more than 40 hours per week without overtime pay, says the complaint. The Plaintiff was employed by the Defendant as an Account Manager and a Sales Manager in Chattanooga, Tennessee from September 2021 to October 2023. The Defendant is a full-service logistics provider specializing in brokering and handling freight 24 hours a day, 7 days a week, all year around with offices in the following locations: Chattanooga, Tennessee; St. Petersburg, Florida; Maple Grove, Minnesota; and Charleston, South Carolina.[BN] The Plaintiff is represented by: Michele R. Fisher, Esq. Alexandra M. Robinson, Esq. NICHOLS KASTER, PLLP 4700 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Phone: (612) 256-3200 Email: fisher@nka.com arobinson@nka.com UNDER ARMOUR: Defeats Consumer Fraud Claims Over Fake Discounts --------------------------------------------------------------- In the case captioned as Linda R. Rappaport, on behalf of herself and all others similarly situated, Plaintiff, v. Under Armour, Inc., a Maryland corporation, and Does 1-50, inclusive, Defendants, Civil Action No. 24-cv-7558 (HG) (E.D.N.Y.), Judge Hector Gonzalez of the United States District Court for the Eastern District of New York granted Defendant's motion to dismiss the Complaint with prejudice. Plaintiff brought this putative class action under New York General Business Law Sections 349 and 350, challenging Under Armour's alleged practice of pricing merchandise in a way that misleads consumers. The case centers around Plaintiff's purchase of a Women's Mid Crossback Printed Sports Bra from an Under Armour Factory outlet store in April 2024. Plaintiff alleged that the item was displayed with materials indicating it was marked for an additional 50% off an original price of $34.97, for a price of $17.48, leading her to believe she was receiving a significant discount on the item. According to Plaintiff, this discount was part of a fake discount scheme that deceived her into purchasing the sports bra that was worth less than the amount she paid for it, and also artificially inflated consumer demand. Plaintiff's counsel conducted a large-scale, comprehensive investigation into Defendant's pricing practices at its outlet stores and website, collaborating with qualified expert economists and consultants to determine the objective measure by which Plaintiff and other consumers overpaid for products. Defendant moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). First, Defendant argued that pursuant to Rule 12(b)(6), the case should be dismissed because Plaintiff fails to plead an adequate injury to bring claims under General Business Law Sections 349 and 350. Second, Defendant argued pursuant to Rule 12(b)(1) that Plaintiff lacks standing to assert her claim because she did not adequately allege an injury under General Business Law Sections 349 and 350, and she lacks standing to bring claims on behalf of unnamed class members because she did not purchase Defendant's product online and did not interact with Defendant's online pricing practices. Standing Analysis The Court addressed Defendant's standing arguments in two parts. Regarding Article III standing, the Court found that Plaintiff's allegation that she purchased the sports bra in reliance on the allegedly deceptive difference between the reference price and the discount price comfortably satisfies the injury-in-fact prong of Article III standing. Such an allegation that a plaintiff would not have purchased a product or would not have paid the same amount satisfies the injury requirement. For the web-based claims standing issue, the Court applied the Second Circuit's NECA-IBEW standard, which requires that in a putative class action, a plaintiff has class standing if he plausibly alleges (1) that he personally suffered some actual injury as a result of the putatively illegal conduct of the defendant, and (2) that such conduct implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class. The Court found that the web-based claims implicate the same set of concerns as the allegations concerning Defendant's in-store conduct, noting that in the context of claims alleging injury based on misrepresentations, the misconduct alleged will almost always be the same: the making of a false or misleading statement. New York Consumer Protection Claims Analysis The Court then analyzed whether Plaintiff properly alleged an injury for her General Business Law Sections 349 and 350 claims. To support a claim under these consumer protection laws, a plaintiff must show: (1) the challenged transaction was consumer-oriented; (2) defendant engaged in deceptive or materially misleading acts or practices; and (3) plaintiff was injured by reason of defendant's deceptive or misleading conduct. Defendant's challenge focused on the third element. To adequately plead an injury under the applicable New York laws, a plaintiff must allege that, on account of a materially misleading practice, she purchased a product and did not receive the full value of her purchase. In the consumer goods context, an allegation of a defendant's deception alone does not suffice to plead injury, because a plaintiff may have received the benefit of the bargain despite the alleged misrepresentation. Plaintiff alleged injury under two theories. First, the purchase-price theory, claiming she sustained an ascertainable loss in the form of the total purchase price because she would not have purchased the product without Defendant's allegedly false advertising. However, Plaintiff appeared to abandon this theory in her opposition, which the Court noted was wise because New York law rejects the purchase-price theory as it impermissibly combines the deception with injury. Second, Plaintiff claimed injury under the price-premium theory, alleging that Defendant's allegedly false reference prices caused her to pay an inflated price or price premium for the merchandise. To adequately allege injury under this theory, plaintiff must allege not only that defendants charged a price premium, but also that there is a connection between the misrepresentation and any harm from the product. This requires showing either that the plaintiff received a good worth less than what he paid for (inferior quality) or that the plaintiff paid an inflated price. Regarding the inferior goods basis, Plaintiff contended that she sufficiently demonstrated purchasing an inferior good because the product was made specifically for Defendant's outlet stores, not for mainline stores. The Court found that Plaintiff does not adequately allege a unique quality for which she paid a premium, nor does she allege that the product was otherwise defective. The relevant concern is not the location where a product may be sold, but the quality of the product. Disappointed bargain-hunters do not suffer any actual injuries or damages simply because they did not get as good a deal as they expected. To adequately allege a price-premium injury based on allegations that a plaintiff paid an inflated price, a plaintiff must allege that he overpaid by some objective measure, and not just that he felt, subjectively, that he overpaid. Plaintiff offered a regression analysis that purported to demonstrate that the actual value of her sports bra is approximately $8.75, compared to the reference price of $34.97 and discounted price of $17.48. The Court found Plaintiff's reliance on her regression analysis misplaced, comparing it to a similar analysis rejected in Premium Brands v. Premium Brands Opco LLC. The Court explained that Plaintiff's analysis simply does not measure the difference between Defendant's prices and market sale prices. The analysis only examines the relationship between Defendant's reference and sale prices, and while it may establish a correlation between these prices, it cannot establish that sale prices were increased because of an increase in the reference prices. The analysis says nothing about the real market value of Defendant's products or the price those products would have sold for absent the allegedly false reference price. The Court noted that Plaintiff's so-called sophisticated regression analysis is nothing more than a rudimentary extrapolation that measures price points that are inapposite to the relevant inquiry. Plaintiff merely takes the sum of the discount prices of 86 of Defendant's own outlet products, divides that by the sum of the reference prices for those same products, and then applies that ratio to the discount price of the sports bra to arrive at the item's actual value. Plaintiff requested leave to amend her complaint if the Court granted any part of Defendant's motion. The Court denied this request because amendment would be futile. Plaintiff has not identified how she might amend her complaint to address the defects, and nothing in the record suggests that Plaintiff could adequately amend her complaint to allege a cognizable injury. According to the Court:Plaintiff was represented by counsel who routinely file outlet store cases consisting of claims under General Business Law Sections 349 and 350, including cases in this Circuit that have been dismissed for similar reasons. Despite unambiguous precedent explaining how such claims were deficient, Plaintiff recycled them and brought the same speculative and conclusory allegations. For the foregoing reasons, the Court found that Plaintiff failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The Court granted Defendant's motion to dismiss Plaintiff's complaint with prejudice. A copy of the case is available at https://urlcurt.com/u?l=pbwTY9 from PacerMonitor.com UNITED HEALTHCARE: Must Face "Blanton" OT Pay Class Action Suit --------------------------------------------------------------- In the case captioned as Jessica Blanton, on behalf of herself and all others similarly situated, Plaintiff, v. United Healthcare Services, Inc., Defendant, No. 24-cv-484-SMD-JMR (D.N.M.), Judge Sarah M. Davenport of the United States District Court for the District of New Mexico denied Defendant's motion to dismiss Plaintiff's Fair Labor Standards Act claims and granted Plaintiff's motion for equitable tolling. The Court denied Defendant's motion to dismiss and in the alternative to strike Plaintiff's FLSA claims, and granted Plaintiff's motion for equitable tolling of those claims. The Court denied Defendant's motion to dismiss and in the alternative to strike Plaintiff's New Mexico Minimum Wage Act individual and class action claims, and denied Plaintiff's motion to strike Defendant's reply to Defendant's motion to dismiss. Jessica Blanton filed a class action complaint against United Healthcare Services alleging violations of the Fair Labor Standards Act and the New Mexico Minimum Wage Act. Blanton alleged that she worked for United Healthcare as a Case Manager RN from approximately November 2013 to September 2018. She alleged that United Healthcare violated the FLSA and NMMWA by not properly paying Case Manager RNs overtime. The procedural history of this matter was intertwined with that of Fedor v. United HealthCare, Inc., et al., No. 17-cv-13-MV-SCY. On January 7, 2017, Dana Fedor filed a collective and class action complaint against United HealthCare, Inc., alleging FLSA and NMMWA violations, on behalf of herself and all others similarly situated. Fedor alleged, on behalf of herself and all other Care Coordinators, that United HealthCare had violated the FLSA and NMMWA primarily by not paying Care Coordinators overtime for working in excess of 40 hours per week. The Fedor defendants moved to dismiss the amended complaint, primarily arguing that plaintiffs should be compelled to arbitrate their claims. Nearly 22 months after filing, the district court granted the Fedor defendants' motion to dismiss. Over a year later, the Tenth Circuit vacated that decision and remanded to the district court. On May 7, 2021, the district court denied the Fedor defendants' motion to dismiss in nearly all respects, except as to one opt-in plaintiff. The Fedor defendants appealed. On April 11, 2022, the Tenth Circuit affirmed the district court's order and remanded. The parties executed a settlement agreement, set up a mechanism for defendants to fund a settlement fund, and the settlement administrator mailed out class notice. The parties did not provide the settlement agreement to the district court and its terms were not publicly accessible. In fall 2023, plaintiffs' counsel and the settlement administrator began receiving calls from individuals who believed they should have been included in the settlement, but did not receive a notice. Defendants' counsel told plaintiffs' counsel that some of these individuals excluded from defendants' list were hired after January 1, 2016, and had signed an arbitration agreement. Defendants also elected to exclude individuals employed as registered nurses or licensed practical nurses. On February 28, 2024, plaintiffs moved for sanctions. Approximately one week later, defendants moved to enforce the parties' settlement agreement. The district court granted the plaintiffs' motion and denied the defendants' motion. The court found that Defendants' failure to identify class members, disclose information about class members, and respond to Plaintiffs' concerns about those failures was sanctionable. The court found that Defendants' failure to provide payroll data for all members of the proposed settlement class, and their failure to inform Plaintiffs of the exclusion they applied, violated the court's order staying the case, and constituted bad faith. Based on defendants' sanctionable behavior, the Fedor Court refrained from enforcing the settlement agreement, which would result in closure of the case and denied defendants' motion without prejudice. United Healthcare's motion to dismiss Plaintiff's FLSA claims and Plaintiff's motion to equitably toll those claims were properly considered together. Plaintiff did not substantively dispute that, absent equitable tolling, Defendant's motion to dismiss would be granted because the FLSA statute of limitations had run. The Court found that Blanton was a putative opt-in plaintiff in Fedor. The Fedor court's sanctions findings supported that those parties understood care coordinators who were registered nurses like Blanton to be putative Fedor class members regardless of their specific job title. The Court found undue delay, not attributable to the Fedor Plaintiffs, in deciding United Healthcare's motion to dismiss those Plaintiffs' lawsuit. Here, United Healthcare's motion to dismiss was pending nearly 22 months before the District Court and ultimately, was remanded to the District Court nearly three years and five months after United Healthcare filed. The Court applied equitable tolling to Plaintiff Blanton's FLSA claims. The Court ordered equitable tolling sounding in all three of the Circuit's factors - active deception, a plaintiff lulled into inaction, and extraordinary circumstances. When the parties settled, the Court further stayed the case, and on United Healthcare's consent, further tolled the FLSA statute of limitations while staying Plaintiffs' motion to certify step-one notice. United Healthcare then violated that order by engaging in bad faith sanctionable behavior delaying the settlement. The Court granted Blanton's request to apply equitable tolling from May 26, 2017, when United Healthcare moved to dismiss in the Fedor litigation, through February 28, 2024, the date the Fedor court was first informed that a settlement had been finalized and effectuated. Regarding the start of tolling, the Court began at United Healthcare's motion to dismiss in the Fedor litigation. While more commonly, courts toll back to filing for step-one certification, in this case, United Healthcare's motion engendered an unusually lengthy initial delay that would have negated the putative class members' claims while the case was stayed at United Healthcare's request, dismissed, appealed and remanded. For Plaintiff's New Mexico Minimum Wage Act claims, under the applicable NMMWA statutes of limitations, Blanton's NMMWA claims were time-barred, absent application of a tolling doctrine. The Court found that New Mexico courts would find that the plain meaning of the statutory language requires a NMMWA plaintiff to commence a lawsuit within three years after the last violation, unless the New Mexico Department of Workforce Solutions' Labor Relations Division is conducting an investigation of an employer, which tolls that three-year statute of limitations against that employer. The Court found that American Pipe tolling doctrine applied to Plaintiff's NMMWA claims. For American Pipe purposes, Plaintiff was a part of the class of NMMWA claims asserted in Fedor. The Court found that New Mexico courts would find that American Pipe tolling would apply to NMMWA claims, specifically to Plaintiff's class claims, notwithstanding China Agritech, Inc. v. Resh. The Court found that New Mexico courts would find China Agritech distinguishable for multiple reasons. First, class certification was not denied in Fedor. Rather, the parties settled but the case had not been dismissed. Further, Plaintiff's asserted class was excised from the Fedor settlement agreement without any chance to obtain relief. Once the Fedor settlement was finalized, Blanton promptly sued on behalf herself and other Case Manager RNs. The Court found that Blanton reasonably anticipated her interests would be protected by a class action but later learned that a class suit could not be maintained for reasons outside her control. For the reasons discussed above, the Court denied Defendant’s motion to dismiss and in the alternative to strike Plaintiff’s FLSA individual and collective claims, and grants Plaintiff’s motion for equitable tolling of those claims. Tolling began on May 26, 2017, and terminated on February 28, 2024. The Court denied Defendant’s motion to dismiss and in the alternative to strike Plaintiff’s NMMWA individual and class action claims and denied Plaintiff’s motion to strike Defendant’s reply to Defendant’s motion to dismiss. A copy of the Court's decision is available at https://urlcurt.com/u?l=ZPdJwE from PacerMonitor.com VILLAGES AT NOAH'S: Murphy Seeks to Certify Tenant Class -------------------------------------------------------- In the class action lawsuit captioned as MARK MURPHY AND MARIA MURPHY, as guardians of OLIVIA MURPHY; et.al., and all other persons similarly situated; v. VILLAGES AT NOAH'S LANDING LTD., a Florida limited partnership; et.al., Case No. 8:25-cv-00022-TPB-TGW (M.D. Fla.), the Plaintiffs ask the Court to enter an order granting class certification, designating the Plaintiffs as class representatives, appointing Jack Scarola, Victoria Mesa-Estrada and Matthew Dietz as class counsel, and authorizing notice to the class. The suit is brought pursuant to 42, U.S.C. section 1331, and 28 U.S.C. section 1343, for the Plaintiffs' claims arising under The Fair Housing Amendments Act ("FHA"), and for state law claims under 28 U.S.C. section 1367, for Fraud, Breach of Contract as Third-Party Beneficiaries, Unfair and Deceptive Trade Practices, and Unjust Enrichment. The Plaintiffs seek certification of a class defined as follows: "Any and all tenants of the Villages of Noah's Landing from June 10, 2016, to the present, who were denied Supportive Housing activities, programs and services, without charge or who received limited services only on condition of additional payments." Villages is a dynamic residential community for adults with intellectual and developmental disabilities. A copy of the Plaintiffs' motion dated Sept 4, 2025, is available from PacerMonitor.com at https://urlcurt.com/u?l=ib8w8j at no extra charge.[CC] The Plaintiffs are represented by: Matthew W. Dietz, Esq. DISABILITY INCLUSION & ADVOCACY LAW CLINIC NOVA SOUTHEASTERN UNIVERSITY SHEPARD BROAD COLLEGE OF LAW 3305 College Avenue Fort Lauderdale, FL 33314 Telephone: (954) 262-6138 E-mail: mdietz@nova.edu - and - Jack Scarola, Esq. Victoria Mesa-Estrada, Esq. SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Telephone: (561) 686-6300 Facsimile: (561) 383-9451 E-mail: jsx@searcylaw.com ScarolaTeam@searcylaw.com vmestrada@searcylaw.com; MesaTeam@searcylaw.com The Defendants are represented by: James C. Valenti, Esq. Samuel J. Hensel, Esq. JAMES C. VALENTI, P.A. 114 N. Tennessee Ave, Suite 200 Lakeland, FL 33801 Telephone: (863) 937-6056 E-mail: j.valenti@valenti-law.com s.hensel@valenti-law.com s.reger@valenti-law.com - and - Allan J. Rotlewicz, Esq. CALLAHAN & FUSCO, LLC 200 SW 1st Avenue, Suite 940 Fort Lauderdale, FL 33301 Telephone: (877) 618-9770 Facsimile: (954) 252-2308 E-mail: arotlewicz@callahanfusco.com eserve@callahanfusco.com - and - Noel F. Johnson, Esq. DINSMORE & SHOHL LLP 200 South Biscayne Blvd., Suite 2401 Miami, FL 33131 Telephone: (786) 957-1157 Facsimile: (786) 957-1158 E-mail: Noel.Johnson@Dinsmore.com Jessica.SanMartin@Dinsmore.com - and - Jeffrey M. Partlow, Esq. Allaa M. Tayeb, Esq. COLE, SCOTT & KISSANE, P.A. Tower Place, Suite 400 1900 Summit Tower Boulevard Orlando, FL 32810 Telephone: (321) 972-0079 Facsimile: (321) 972-0099 E-mail: jeffrey.partlow@csklegal.com geraldine.asher@csklegal.com allaa.tayeb@csklegal.com deeana.bryant@csklegal.com kirbie.andrews@csklegal.com WILINE NETWORKS: Court Tosses FCA Claim in Consumer Suit -------------------------------------------------------- In the case captioned as W.A. Call Mfg. Co., Inc., et al., Plaintiffs, v. WiLine Networks Inc., Defendant, Case No. 24-cv-07141-LB (N.D. Cal.), United States Magistrate Judge Laurel Beeler of the United States District Court for the Northern District of California granted in part and denied in part Defendant's motion to strike and dismiss in this putative class action consumer lawsuit. Case Overview and Claims The plaintiffs brought this putative class action on behalf of themselves and a class of California consumers against their internet and phone service provider, WiLine Networks. The plaintiffs alleged that WiLine violated their service agreements by increasing rates more than once per year, without 30 days notice, and in amounts exceeding the Consumer Price Index. They also alleged that WiLine obscured automatic renewal terms and used early termination fees to extract additional funds or deter cancellations. The plaintiffs asserted four claims: breach of contract; a violation of the Federal Communications Act under 47 U.S.C. Section 201(b); unfair competition under California's Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200; and false promise as to the named plaintiffs only. Court's Rulings The Court granted the motion in part and denied it in part. The FCA claim was dismissed because the plaintiffs did not identify an FCC determination that the challenged conduct violates Section 201(b). The UCL claim was dismissed because the plaintiffs did not allege that they lack an adequate remedy at law. The motion to strike paragraph 193 was granted because it was irrelevant to any claim without prejudice. The false-promise claim survived because it was adequately pled. The motion to strike the class allegations, now confined only to the contract claim, was denied because the issue is better resolved at the class-certification stage after discovery. Federal Communications Act Claim Dismissed WiLine moved to dismiss the Section 201(b) claim, arguing that no private right exists without an FCC determination that the specific conduct is unjust or unreasonable. The Court found that common carriers cannot engage in any charge, practice, classification, or regulation that is unjust or unreasonable under 47 U.S.C. Section 201(b). However, a private right of action exists only after the FCC determines that the conduct violates Section 201(b). The Court determined that the plaintiffs cited FCC determinations that do not match the issues in this case. The Court concluded there was no FCC determination that gives rise to a private right of action. Accordingly, the claim was dismissed with prejudice. UCL Claim Dismissed for Lack of Adequate Legal Remedy WiLine moved to dismiss the UCL claim for the plaintiffs' failure to allege that they have an inadequate remedy at law that would entitle them to pursue equitable relief. The Court noted that the UCL provides equitable relief only if no adequate legal remedy exists and plaintiffs must plead inadequacy of damages to address the harm, as discussed at the hearing. The claim is dismissed with leave to amend. The Court found that the plaintiffs did not plead the inadequacy of damages to address the harm, as discussed at the hearing. Therefore, the claim was dismissed with leave to amend. As a result, paragraph 193 of the complaint was stricken for lack of relevance given the dismissal of the UCL claim, without prejudice. False Promise Claim Survives WiLine moved to dismiss the false promise claim, arguing no promises were made or they were not false, and contended that the plaintiffs did not allege that the promises were false when made, in violation of Rule 9(b)'s requirement that fraud must be pleaded specifically. The Court determined that a claim for fraud based on a false promise requires: (1) a material misrepresentation, (2) knowledge of falsity, (3) an intent to defraud or induce reliance; (4) justifiable reliance, and (5) damage. The Court found that the complaint adequately pleads false promise by alleging that WiLine promised annual CPI-tethered increases with 30 days notice and that at the time, WiLine did not intend to perform. Accordingly, the motion to dismiss the false-promise claim was denied. Class Allegations Survive WiLine moved to strike the class allegations under Rule 12(f), arguing that individualized inquiries into each class member's contract, rate increases, notice, and reliance will predominate over common questions. The Court noted that motions to strike class allegations are generally disfavored at the pleading stage unless it is clear that class treatment is not viable. The Court found that the issues whether WiLine raised rates more than annually, without notice, and untethered to the CPI present common questions available for classwide resolution. The Court determined that challenges to predominance are best resolved on a class-certification motion. Therefore, the motion to strike the class allegations was denied. The Court ordered that the motion to strike the class allegations is denied, with the analysis extending only to the contract claim, the surviving class claim. The Section 201(b) claim was dismissed with prejudice. The UCL claim was dismissed without prejudice, and with leave to amend. The motion to dismiss the false-promise claim was denied. The Court ordered that the plaintiffs must file an amended complaint within twenty-one days and attach a blackline compare of the new complaint against the existing complaint. The case will proceed on the breach of contract claim as a class action and the false promise claim for individual plaintiffs. A copy of the Court's decision is available at https://urlcurt.com/u?l=XNlDjVn from PacerMonitor ZENARA COMMERCE: Rodriguez Balks at Automatic Subscription Renewal ------------------------------------------------------------------ REBEKA RODRIGUEZ, individually and on behalf of all others similarly situated, Plaintiff v. ZENARA COMMERCE LLC, a Wyoming entity, d/b/a WWW.MYTANTHEORY.COM, Defendants, Case No. 3:25-cv-02354-WQH-DDL (S.D. Cal., September 10, 2025) alleges that Defendant made unlawful automatic renewal and/or continuous service offers to consumers in California in violation of California's Automatic Renewal Law. The suit is brought on behalf of the Plaintiff for her purchase of an automatically renewing paid subscription from Zenara Commerce via its website at https://mytantheory.com, which caused her to incur unlawful charges from Defendant related to an automatic renewal or continuous service. The Defendant violated the state law by: (1) failing to provide "clear and conspicuous" disclosures mandated by California law; and (2) failing to provide an acknowledgment to consumers that includes the automatic renewal or continuous service offer terms, the cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer, says the suit. The Plaintiff seeks to enjoin Defendant from the ongoing violations of California law, as well as seek damages, punitive damages, restitution, and reasonable attorneys' fees and costs. Zenara Commerce LLC is an online retailer that sells products in the U.S.[BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. Victoria C. Knowles, Esq. PACIFIC TRIAL ATTORNEYS A Professional Corporation 4100 Newport Place Drive, Ste. 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com vknowles@pacifictrialattorneys.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2025. 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