Hezi et al v. Celsius Holdings, Inc.
| Amit Hezi, Joseph Nina and Daniel Prescod |
| Celsius Holdings, Inc. |
| 1:2021cv09892 |
| November 23, 2021 |
| US District Court for the Southern District of New York |
| Victor Marrero |
| Jennifer H Rearden |
| Other Fraud |
| 28 U.S.C. § 1332 fr Diversity-Fraud |
| Both |
Docket Report
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Filing 56
ORDER GRANTING PLAINTIFFS' MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, ATTORNEYS' FEES AND COSTS, AND INCENTIVE AWARDS, AND FINAL JUDGMENT The Court finds and determines that the Settlement Class, as defined in the Settlement Agreement and above, meets all of the legal requirements for class certification for settlement purposes under Fed. R. Civ. P. 23(a), (b)(2) (with respect to the settlement's injunctive relief), and (b)(3), and it is hereby ordered that the Class is finally certified for settlement purposes. The Court approves Plaintiffs' Motion for Award of Attorneys' Fees and Costs for $2,842,294.01, which represents $2,600,000 for attorneys' fees and $242,294.01 for costs. Class Counsel have devoted 3494.6 hours with a lodestar of $2,648,727.00 to achieve the Settlement in this Action. The Court also finds that Class Counsel have incurred $242,294.01 in litigation costs which were reasonably incurred in the ordinary course of prosecuting this case and were necessary given the complex nature and scope of this case. The Court finds that Class Counsel are entitled to be reimbursed for these costs. The Settlement Agreement created a Settlement Fund of $7,800,000.00 in cash for the benefit of the Settlement Class pursuant to the terms of the Settlement Agreement. The Court finds that the proposed service awards to the Class Representatives are fair, reasonable, and adequate, and orders the following to be paid out of the Settlement Fund: $5,000 each for both Amit Hezi and Joseph Nina, and $10,000 for Daniel Prescod. The Main Action is hereby DISMISSED WITH PREJUDICE, on the merits, by Plaintiffs and all members of the Settlement Class against Celsius on the terms and conditions set forth in the Settlement Agreement without costs to any party, except as expressly provided for in the Settlement Agreement. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (And as further set forth herein.) IT IS SO ORDERED. (Signed by Judge Jennifer H. Rearden on 4/5/2023) (jca)
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Transmission to Finance Unit (Cashiers). Transmitted re: #56 Judgment,,,,,,,,, to the Finance Unit (Cashiers) for case processing..(jca)
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Minute Entry for proceedings held before Judge Jennifer H. Rearden: Fairness Hearing held on 3/31/2023. An order will follow. (Court Reporter Steven Greenblum) (kwi)
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***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. #55 Proposed Order was reviewed and approved as to form. (nd)
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Filing 55
PROPOSED ORDER. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. Related Document Number: #51 ..(Clarkson, Ryan) Proposed Order to be reviewed by Clerk's Office staff.
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Filing 54
DECLARATION of Brandon Schwartz in Support re: #51 MOTION for Settlement FINAL APPROVAL OF CLASS ACTION SETTLEMENT.. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. (Attachments: #1 Exhibit A (CAFA Notice), #2 Exhibit B (Digital Notice), #3 Exhibit C (Streaming Radio Notice), #4 Exhibit D (Sponsored Search Notice), #5 Exhibit E (Press Release), #6 Exhibit F (Exclusions), #7 Exhibit G (Objections)).(Clarkson, Ryan)
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Filing 53
DECLARATION of Ryan J. Clarkson in Support re: #51 MOTION for Settlement FINAL APPROVAL OF CLASS ACTION SETTLEMENT.. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. (Attachments: #1 Exhibit A (Settlement Agreement), #2 Exhibit B (Response to Objection), #3 Exhibit C (Class Counsel's Firm Resume)).(Clarkson, Ryan)
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Filing 52
MEMORANDUM OF LAW in Support re: #51 MOTION for Settlement FINAL APPROVAL OF CLASS ACTION SETTLEMENT. . Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 51
MOTION for Settlement FINAL APPROVAL OF CLASS ACTION SETTLEMENT. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 50
NOTICE of CLASS ADMINISTRATOR REPORT PURSUANT TO ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT re: #37 Order on Motion for Settlement,,,,,. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. (Attachments: #1 Exhibit 1 (Class Administrator's Report)).(Clarkson, Ryan)
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Filing 49
ORDER: This case has been reassigned to this Court. The Fairness Hearing previously set by Judge Victor Marrero (ECF No. 37) remains scheduled for March 31, 2023 at 11:00 A.M. The hearing will be conducted via Microsoft Teams. At least forty-eight hours before the Fairness Hearing, counsel shall email to the Court the names and telephone numbers of those who will have speaking roles at the hearing, and the Court will provide log-in credentials to those counsel. All others-i.e., counsel who will not have speaking roles and members of the public-may listen to the hearing by dialing (646) 453-4442 and entering Conference ID 293 228 75, followed by the pound (#) key. SO ORDERED. ( Fairness Hearing set for 3/31/2023 at 11:00 AM before Judge Jennifer H. Rearden.) (Signed by Judge Jennifer H. Rearden on 3/3/2023) (tg)
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Filing 47
NOTICE OF REASSIGNMENT: This case has been reassigned to this Court. All counsel must familiarize themselves with the Court's Individual Rules and Practices, which are available at https://nysd.uscourts.gov/hon-jennifer-h-rearden. Unless and until the Court orders otherwise, all prior orders, dates, and deadlines shall remain in effect notwithstanding the reassignment. Any conference or oral argument before or directed by the Magistrate Judge will proceed as ordered. However, all previously scheduled appearances or conferences before the District Judge are hereby adjourned pending further notice from the Court, with the exception of the Fairness Hearing which remains scheduled for March 31, 2023 at 11:00 AM. Within two weeks of the filing of this Order, the parties are hereby ORDERED to file on ECF a joint letter updating the Court on the status of the case. The joint letter shall not exceed five (5) double-spaced pages, and shall provide the following information, to the extent relevant, in separate paragraphs: (As further set forth herein.) SO ORDERED. ( Fairness Hearing set for 3/31/2023 at 11:00 AM before Judge Jennifer H. Rearden.) (Signed by Judge Jennifer H. Rearden on 3/3/2023) (va)
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***DELETED DOCUMENT. Deleted document number 48 Notice of Reassignment. The document was incorrectly filed in this case. (tg)
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Filing 46
JOINT LETTER addressed to Judge Jennifer H. Rearden from Jeffrey S. Jacobson dated February 21, 2023 re: class action Fairness Hearing. Document filed by Celsius Holdings, Inc...(Jacobson, Jeffrey)
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NOTICE OF CASE REASSIGNMENT to Judge Jennifer H. Rearden. Judge Victor Marrero is no longer assigned to the case. (nb)
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***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. #45 Proposed Order was reviewed and approved as to form. (nd)
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Filing 45
PROPOSED ORDER. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. Related Document Number: #39 ..(Clarkson, Ryan) Proposed Order to be reviewed by Clerk's Office staff.
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Filing 44
DECLARATION of Daniel Prescod in Support re: #39 MOTION for Attorney Fees for Award of Attorneys' Fees and Costs and Service Awards.. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 43
DECLARATION of Joseph Nina in Support re: #39 MOTION for Attorney Fees for Award of Attorneys' Fees and Costs and Service Awards.. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 42
DECLARATION of Amit Hezi in Support re: #39 MOTION for Attorney Fees for Award of Attorneys' Fees and Costs and Service Awards.. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 41
DECLARATION of Ryan J. Clarkson in Support re: #39 MOTION for Attorney Fees for Award of Attorneys' Fees and Costs and Service Awards.. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K).(Clarkson, Ryan)
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Filing 40
MEMORANDUM OF LAW in Support re: #39 MOTION for Attorney Fees for Award of Attorneys' Fees and Costs and Service Awards. . Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 39
MOTION for Attorney Fees for Award of Attorneys' Fees and Costs and Service Awards. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 38
NOTICE OF CHANGE OF ADDRESS by Ryan Clarkson on behalf of Amit Hezi, Joseph Nina, Daniel Prescod. New Address: Clarkson Law Firm, PC, 590 Madison Ave., 21st Floor, New York, New York, United States of America 10022, (213) 788-4050..(Clarkson, Ryan)
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Filing 37
ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT granting #32 MOTION for Settlement Preliminary Approval of Class Action Settlement [UNOPPOSED]. IT IS HEREBY ORDERED AS FOLLOWS: The Court, for purposes of this Order, adopts all defined terms as set forth in the Settlement. The Court has jurisdiction over the subject matter of the action and over all parties to the action, including all members of the Settlement Class. For purposes of the Settlement only, the Court conditionally certifies the Settlement Class, as described below: All persons in the United States who, between January 1, 2015 and the date of entry of this Order, purchased in the United States, for personal or household consumption and not for resale or distribution, one of the Class Products. The Court orders that Amit Hezi, Joseph Nina, and Daniel Prescod are appointed as the Representative Plaintiffs. The Court also orders that Clarkson Law Firm, P.C. is appointed Class Counsel. The Court shall conduct a Final Approval Hearing to determine final approval of the Agreement on March 31, 2023 at 11:00 am. The Court retains jurisdiction over this Action to consider all further matters arising out of or connected with the Settlement Agreement and the settlement described therein. (And as further set forth herein.) IT IS SO ORDERED. (Signed by Judge Victor Marrero on 11/23/2022) (jca)
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***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. #36 Proposed Order was reviewed and approved as to form. (km)
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Set/Reset Hearings: Status Conference set for 3/31/2023 at 11:00 AM before Judge Victor Marrero. (jca)
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Filing 36
PROPOSED ORDER. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. Related Document Number: #32 ..(Clarkson, Ryan) Proposed Order to be reviewed by Clerk's Office staff.
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Filing 35
DECLARATION of Brandon Schwartz in Support re: #32 MOTION for Settlement Preliminary Approval of Class Action Settlement [UNOPPOSED].. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. (Attachments: #1 Exhibit A (Brandon Schwartz CV), #2 Exhibit B (P&N CV), #3 Exhibit C (Proposed Banner Notice)).(Clarkson, Ryan)
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Filing 34
DECLARATION of Ryan J. Clarkson in Support re: #32 MOTION for Settlement Preliminary Approval of Class Action Settlement [UNOPPOSED].. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod. (Attachments: #1 Exhibit A (Class Action Settlement Agreement), #2 Exhibit B (Prescod Class Cert Order), #3 Exhibit C (Order Denying Defendant's MSA), #4 Exhibit D (Order Denying Plaintiff's MSA), #5 Exhibit E (Order Denying Defendant's Class Cert Writ), #6 Exhibit F (Order Denying Defendant's MSA Writ), #7 Exhibit G (Clarkson Law Firm, P.C. Resume)).(Clarkson, Ryan)
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Filing 33
MEMORANDUM OF LAW in Support re: #32 MOTION for Settlement Preliminary Approval of Class Action Settlement [UNOPPOSED]. . Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 32
MOTION for Settlement Preliminary Approval of Class Action Settlement [UNOPPOSED]. Document filed by Amit Hezi, Joseph Nina, Daniel Prescod..(Clarkson, Ryan)
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Filing 31
ORDER On consent of the parties, the Court grants Plaintiffs' request for leave to file their First Amended Complaint (see Dkt. No. 30-1) in the instant case to include Daniel Prescod ("Prescod") as a named Plaintiff and class representative, add additional Celsius products to the defined, at-issue "Products," add additional causes of action and allegations applicable to the Plaintiffs claims including that of added Plaintiff Prescod and the class he seeks to represent, and adjust the Class definitions to reflect the terms of the proposed Settlement. The First Amended Complaint is hereby deemed filed and is now the operative complaint. SO ORDERED. (Signed by Judge Victor Marrero on 11/22/2022) (jca)
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Filing 30
PROPOSED STIPULATION AND ORDER. Document filed by Amit Hezi, Joseph Nina. (Attachments: #1 Exhibit 1 (First Amended Complaint)).(Clarkson, Ryan)
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Filing 29
ORDER The parties have notified the Court that they have reached an agreement in principle to settle all claims in this matter and seek to have all pending deadlines vacated. (See Dkt. No. 28.) The Court grants the parties' request and vacates all pending deadlines, including those in the civil case management plan and scheduling order, dated March 31, 2022 (see Dkt. No. 22) so that the parties may prepare and finalize the proposed settlement agreement and class notice. SO ORDERED. (Signed by Judge Victor Marrero on 10/14/2022) (jca)
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Filing 28
PROPOSED STIPULATION AND ORDER. Document filed by Amit Hezi, Joseph Nina..(Clarkson, Ryan)
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Filing 27
NOTICE OF APPEARANCE by Timothy K. Giordano on behalf of Amit Hezi, Joseph Nina..(Giordano, Timothy)
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Filing 26
NOTICE OF APPEARANCE by Lawrence Gunnar Scarborough on behalf of Celsius Holdings, Inc...(Scarborough, Lawrence)
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Filing 25
NOTICE OF APPEARANCE by Jeffrey S. Jacobson on behalf of Celsius Holdings, Inc...(Jacobson, Jeffrey)
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Filing 24
PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Victor Marrero on 5/9/2022) (ate)
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Filing 23
PROPOSED STIPULATION AND ORDER. Document filed by Amit Hezi, Joseph Nina..(Clarkson, Ryan)
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Set/Reset Deadlines: Expert Discovery due by 9/14/2023. (jca)
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Filing 22
CIVIL CASE MANAGEMENT PLAN AND SCHEDULING ORDER: This case is to be tried to a jury. Amended Pleadings due by 4/26/2022. Joinder of Parties due by 4/26/2022. Last day to file all Motions due by 10/16/2023. Deadline to file motion for class certification and Plaintiffs' deadline for class certification expert disclosures November 15, 2022. Responses due by 1/16/2023 Replies due by 3/17/2023. Deposition due by 6/15/2023. Fact Discovery due by 7/31/2023. Case Management Conference set for 8/11/2023 at 10:00 AM before Judge Victor Marrero. (And as further set forth herein.) SO ORDERED. (Signed by Judge Victor Marrero on 3/31/2022) (jca)
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Filing 21
PROPOSED CASE MANAGEMENT PLAN. Document filed by Celsius Holdings, Inc...(Rothman, Joel)
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Filing 20
JOINT LETTER addressed to Judge Victor Marrero from Joel B. Rothman and Bahair Sodaify dated 03/30/2022 re: Joint Case Management Letter. Document filed by Celsius Holdings, Inc...(Rothman, Joel)
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Filing 19
ORDER FOR ADMISSION PRO HAC VICE granting #16 MOTION for Christina Mirzaie to Appear Pro Hac Vice. The motion of Christina Mirzaie, for admission to practice Pro Hac Vice in the above captioned action is granted. (Signed by Judge Victor Marrero on 3/28/2022) (jca)
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Filing 18
ORDER FOR ADMISSION PRO HAC VICE granting #15 MOTION for Zachary Chrzan to Appear Pro Hac Vice.The motion of Zachary Chrzan, for admission to practice Pro Hac Vice in the above captioned action is granted.. (Signed by Judge Victor Marrero on 3/28/2022) (jca)
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Filing 17
ORDER FOR ADMISSION PRO HAC VICE granting #14 MOTION for Bahar Sodaify to Appear Pro Hac Vice. The motion of Bahar Sodaify, for admission to practice Pro Hac Vice in the above captioned action is granted. (Signed by Judge Victor Marrero on 3/28/2022) (jca)
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>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. #15 MOTION for Zachary Chrzan to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-25918064. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (aea)
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>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. #14 MOTION for Bahar Sodaify to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-25917913. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (aea)
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>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. #16 MOTION for Christina Mirzaie to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-25918088. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (aea)
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Filing 16
MOTION for Christina Mirzaie to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-25918088. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Amit Hezi, Joseph Nina. (Attachments: #1 Affidavit, #2 Exhibit CA Certificate of Good Standing, #3 Text of Proposed Order).(Clarkson, Ryan)
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Filing 15
MOTION for Zachary Chrzan to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-25918064. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Amit Hezi, Joseph Nina. (Attachments: #1 Affidavit, #2 Exhibit CA Certificate of Good Standing, #3 Text of Proposed Order).(Clarkson, Ryan)
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Filing 14
MOTION for Bahar Sodaify to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-25917913. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Amit Hezi, Joseph Nina. (Attachments: #1 Affidavit, #2 Exhibit CA Certificate of Good Standing, #3 Text of Proposed Order).(Clarkson, Ryan)
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Filing 13
ORDER: A Complaint in the above captioned matter was filed on November 23, 2021. (Dkt. No. 1.) Defendants filed an Answer to the Complaint on February, 2022. (Dkt. No. 12.) It is hereby ordered that the parties submit a joint letter, within thirty (30) days of the date of this Order, addressing the following in separate paragraphs: a brief description of the case, including the factual and legal bases for the claim(s) and defense(s); any contemplated motions; the prospect for settlement; and whether the parties consent to proceed for all purposes before the Magistrate Judge designated for this action. The parties are also directed to submit a completed Case Management Plan that provides that discovery is to be completed within four months unless otherwise permitted by the Court. A model Case Management Plan is available on the Court's website: https://nysd.uscourts.gov/hon-victormarrero. Submissions must be made in accordance with the Court's Emergency Individual Rules and Practices in Light of COVID-19, available at the Court's website. So Ordered. (Signed by Judge Victor Marrero on 2/25/2022) (js)
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Filing 12
ANSWER to #1 Complaint with JURY DEMAND. Document filed by Celsius Holdings, Inc...(Rothman, Joel)
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Filing 11
RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Celsius Holdings, Inc...(Rothman, Joel)
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Filing 10
ORDER granting #9 Letter Motion for Extension of Time to Answer re #9 CONSENT LETTER MOTION for Extension of Time to File Answer re: #1 Complaint addressed to Judge Victor Marrero from Joel B. Rothman dated February 1, 2022., #1 Complaint. Request GRANTED. The Defendant's deadline to move or otherwise respond to the Complaint is extended from February 1, 2022, to February 11, 2022. Celsius Holdings, Inc. answer due 2/11/2022. (Signed by Judge Victor Marrero on 2/2/2022) (ate)
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Filing 9
CONSENT LETTER MOTION for Extension of Time to File Answer re: #1 Complaint addressed to Judge Victor Marrero from Joel B. Rothman dated February 1, 2022. Document filed by Celsius Holdings, Inc...(Rothman, Joel)
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Filing 8
NOTICE OF APPEARANCE by Eliezer Lekht on behalf of Celsius Holdings, Inc...(Lekht, Eliezer)
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Filing 7
NOTICE OF APPEARANCE by Joel Benjamin Rothman on behalf of Celsius Holdings, Inc...(Rothman, Joel)
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Filing 6
NOTICE OF APPEARANCE by Joseph Anthony Dunne on behalf of Celsius Holdings, Inc...(Dunne, Joseph)
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Filing 5
WAIVER OF SERVICE RETURNED EXECUTED. Document filed by Amit Hezi..(Clarkson, Ryan)
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Filing 4
ELECTRONIC SUMMONS ISSUED as to Celsius Holdings, Inc.. (sj)
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***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Ryan Clarkson. The party information for the following party/parties has been modified: Amit Hezi, Joseph Nina. The information for the party/parties has been modified for the following reason/reasons: party text was omitted. (sj)
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CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Victor Marrero. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(sj)
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Case Designated ECF. (sj)
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Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (sj)
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Filing 3
REQUEST FOR ISSUANCE OF SUMMONS as to Celsius Holdings, Inc., re: #1 Complaint. Document filed by Amit Hezi, Joseph Nina..(Clarkson, Ryan)
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Filing 2
CIVIL COVER SHEET filed..(Clarkson, Ryan)
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Filing 1
COMPLAINT against Celsius Holdings, Inc.. (Filing Fee $ 402.00, Receipt Number ANYSDC-25378641)Document filed by Joseph Nina, Amit Hezi..(Clarkson, Ryan)
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