/raid1/www/Hosts/bankrupt/CAR_Public/140117.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 17, 2014, Vol. 16, No. 12
Headlines
AB&I FOUNDRY: Faces "Adkins" Indirect Purchasers Antitrust Suit
ABBOTT: Agrees to Settle Kickbacks Class Action for $5.5 Mil.
ACTIVE NETWORK: Faces Suits in Calif. Over Vista Merger Plan
AFFYMAX INC: Hearing on Motion to Junk Securities Suit Set Jan.
AFFYMAX INC: Faces Shareholder Lawsuit in N.D. Cal. Court
AFFYMAX INC: Firm, Takeda Continue to Face N.D. Cal. Stock Suit
ANGIE'S LIST: Law Firm Investigates Potential Securities Claims
ASIAINFO-LINKAGE: Enters MoU to Settle Stock Suit Over Merger
AT&T INC: Accused of Misclassifying Managers as Exempt Employees
BAGEL AND BEAN: Former Employees Sue Over Unpaid Overtime Wages
BAYER CORP: Plaintiff Seeks Rehearing of Class Action Ruling
BRIDGEPOINT EDUCATION: Paid Settlement in Calif. Labor Suit
BRIDGEPOINT EDUCATION: Securities Suit in Cal. Now in Discovery
BRIDGEPOINT EDUCATION: "Guzman" Suit in Certification Discovery
BRIDGEPOINT EDUCATION: Needs Arbitrator for Suit by Ex-workers
CAPITAL ALLIANCE: Sends Unsolicited Fax Advertisements, Suit Says
CREDITWATCH: Faces Class Action Over Cellphone Robocalls
DAYTONA BEACH, FL: "Groth" Class Suit Removed to M.D. Florida
DECO WALK: Class Seeks to Recover Damages for Unpaid Overtime
DELISSIMO DELI: Class Suit Seeks Minimum and Overtime Wages
DOCTOR'S BEST: Accused of Falsely Advertising Glucosamine Product
DUN & BRADSTREET: Reserve Set Up for "Martin" Suit Settlement
DUN & BRADSTREET: Lawsuit by CreditBuilder Buyers in Discovery
EBAY INC: June 18 Class Action Settlement Hearing Set
EDWARD JONES: Fails to Pay Home Mortgage Advisors' OT, Suit Says
EFA PROCESSING: "Nelson" Suit Removed to Minnesota District Court
EL SANTO COYOTE: Did Not Pay Wages for Hours Over 40, Suit Says
EVERGREEN INT'L: Former Employees File Class Action Over Layoffs
FIRSTENERGY GENERATION: Suit Over Bruce Mansfield Plant Continues
GDB INT'L: Failed to Pay OT Wages to Factory Workers, Suit Says
GOLD LEAF: Employees to Recover Unpaid Overtime Wages and Damages
IMPAX LABORATORIES: Moves to Consolidate Solodyn Antitrust Cases
IMPAX LABORATORIES: Amended Complaint Filed in Shareholder Suit
LOS ANGELES LAKERS: Settles Class Action Over Text Spam
MAIDENFORM BRANDS: Sued for Falsely Representing Shapewears
NOVARTIS AG: Faces Consumer Class Action in New Jersey
NQ MOBILE: Faces "Gangaramani" Securities Class Suit in New York
OCEANEERING INT'L: Sued by Hourly Offshore Workers Over Unpaid OT
OFFICEMAX INC: Faces Suits in State, Federal Courts Over Merger
PARK AMERICA: Faces "Sanogo" Suit Alleging Violations of FLSA
QEP ENERGY: $115M Settlement of Royalty Owners Suit Approved
RETAIL PROPERTIES: Still Faces Shareholder Suits in Illinois
RIGEL PHARMACEUTICALS: Securities Suit in California Dismissed
SELECT PORTFOLIO: Class Seeks Redress From Unlawful Collection
SEMPRA ENERGY: Sept. 2014 Trial Set in Wildfire Litigation
SEMPRA ENERGY: Dismissal of Suit Over Power Outage Appealed
TARGET CORP: 40 Suits Over Data Breach at End 2013
TAX MASTER XPRESS: Faces "Plasencia" Suit for FLSA Violations
TEAM ENTERPRISES: Fails to Pay Brand Ambassadors' OT, Suit Says
TELLABS INC: Faces "Lambert" Suit Over Acquisition by Marlin
TEXAS ROADHOUSE: Accused of Not Paying Prep Cooks' Overtime Wages
UNITED PARCEL: Still Faces Lawsuit by Group of Franchisees
UNITED PARCEL: Faces Remaining Suit Over Brokerage in Canada
UNITED PARCEL: Objections in N.Y. Price-Fixing Lawsuit Pending
USCB INC: Harassed Class Using Prerecorded Calls, Suit Claims
VITO'S GOURMET: Never Paid Extra Half Time OT Rate, Suit Claims
WEST CORPORATION: Accused of Allowing Reps to Work Off the Clock
WILLIAM BEAUMONT: Faces "McBride" Suit Over Unpaid Overtime Wages
Asbestos Litigation
ASBESTOS UPDATE: In Personam Part of EPA Suit v. Alsol Not Barred
ASBESTOS UPDATE: Judge Pegs Garlock PI Liability at $125MM
ASBESTOS UPDATE: Garlock Sues Prominent Law Firms for Fraud
ASBESTOS UPDATE: Enpro Names R. Magee as Fibro Claims Consultant
ASBESTOS UPDATE: Hickok Incorporated Dismissed from Fibro Suit
ASBESTOS UPDATE: Esterline's Fibro Claims Could Harm Business
ASBESTOS UPDATE: Navistar Continues to Defend Exposure Claims
ASBESTOS UPDATE: Victims Must Get Higher Payouts, Says Law Firm
ASBESTOS UPDATE: Cwmcarn High Reopens After Fibro Investigation
ASBESTOS UPDATE: Lung Cancer Blamed on Georgia-Pacific, John Crane
ASBESTOS UPDATE: Fibro Cancer Compensation Law Agreed
ASBESTOS UPDATE: Japan Workers Sick From Deadly Dust
ASBESTOS UPDATE: Yale Refuses to Revoke Honorary Degree
ASBESTOS UPDATE: Stiff Fine Imposed for Illegal Fibro Removal
ASBESTOS UPDATE: Sheffield Lawyers Urge Changes to Fibro Bill
ASBESTOS UPDATE: Judge Silver Will No Longer Take on New NYC Cases
ASBESTOS UPDATE: EPA Finds Olivet Violating Clean Air Act
ASBESTOS UPDATE: ATRA Says Litigation "More Incredible Every Year"
ASBESTOS UPDATE: Deadly Dust Removed From J.K. Northway Coliseum
ASBESTOS UPDATE: Teacher Aims to Prove Cancer by Classroom Fibro
ASBESTOS UPDATE: Woman Fined for Fly-Tipping Toxic Dust
ASBESTOS UPDATE: Cleanup Sparks Concern at Cole Harbour School
ASBESTOS UPDATE: Fibro at Derbyshire Hospital Prompts Meeting
ASBESTOS UPDATE: New York Firm Named to Best Lawyers List
ASBESTOS UPDATE: Toxic Dust Found at Booralee Park in Botany
ASBESTOS UPDATE: Ohio Company Faces Actions on Fibro, Taxes
ASBESTOS UPDATE: Bakkersland Admits Bread Recall Over Fibro
ASBESTOS UPDATE: Bakery Defends Reputation Over Contaminated Bread
ASBESTOS UPDATE: NY Court Refuses to Remand "Gordon" Suit
ASBESTOS UPDATE: Court Junks Disclosures Bid in "Davidson" Suit
ASBESTOS UPDATE: NY Court Denies Bid to Dismiss "Garbutt" Suit
ASBESTOS UPDATE: Lennox's Bid to Dismiss "McGuire" Suit Denied
ASBESTOS UPDATE: Federal Court Issues Ruling in Decades' Old Suit
ASBESTOS UPDATE: Court Denies CSX's Bid to Dismiss "Lowman" Suit
ASBESTOS UPDATE: Calif. Court Junks "Olds" PI Suit v. Eaton Corp.
ASBESTOS UPDATE: Court Denies Dana's Bid to Dismiss "Juni" Suit
ASBESTOS UPDATE: NY Court Issues Ruling in AIG Reinsurance Lawsuit
ASBESTOS UPDATE: Court Grants Writ of Mandate in "Hart" Suit
ASBESTOS UPDATE: CBS Bid to Dismiss "Feinstein" Suit Denied
*********
AB&I FOUNDRY: Faces "Adkins" Indirect Purchasers Antitrust Suit
---------------------------------------------------------------
Jerry Adkins, et al. v. AB&I Foundry; Tyler Pipe Company; McWane,
Inc.; Charlotte Pipe and Foundry Company; and Randolph Holding
Company; Case No. 3:13-cv-05152-EMC (N.D. Cal., November 5, 2013)
is a proposed class action by indirect purchasers against the
Defendants for violations of the federal antitrust laws and state
antitrust, unfair competition, and consumer protection laws in the
cast iron soil pipe and fittings market.
The case alleges a conspiracy among all Defendants to fix, raise,
maintain, and stabilize prices for CISP that they sold indirectly
to the Plaintiffs and other class members, which began at least as
early as January 1, 2006, and continues through the present.
AB&I Foundry is a division of McWane, Inc., with its principal
place of business located in Oakland, California. McWane, Inc. is
a Delaware corporation headquartered in Birmingham, Alabama.
Tyler Pipe Company is a division of McWane, Inc., headquartered in
Tyler, Texas.
Charlotte Pipe and Foundry Company is a North Carolina corporation
headquartered in Charlotte, North Carolina. Randolph Holding
Company, LLC is a wholly-owned subsidiary of Charlotte Pipe and is
a Delaware limited liability company.
The Plaintiffs are represented by:
Sandra Cuneo, Esq.
CUNEO, GILBERT & LADUCA, LLP
11620 Wilshire Boulevard, Suite 900
Los Angeles, CA 90025
Telephone: (310) 582-5939
Facsimile: (310) 582-5943
E-mail: scuneo@cuneolaw.com
- and -
Jonathan W. Cuneo, Esq.
Joel Davidow, Esq.
Katherine Van Dyck, Esq.
Victoria Romanenko, Esq.
CUNEO, GILBERT & LADUCA, LLP
507 C Street, N.E.
Washington, DC 20002
Telephone: (202) 789-3960
Facsimile: (202) 789-1813
E-mail: jonc@cuneolaw.com
joel@cuneolaw.com
kvandyck@cuneolaw.com
vicky@cuneolaw.com
- and -
Thomas P. Thrash, Esq.
Marcus N. Bozeman, Esq.
THRASH LAW FIRM, P.A.
1101 Garland Street
Little Rock, AR 72201
Telephone: (501) 374-1058
E-mail: tomthrash@sbcglobal.net
bozemanmarcus@sbcglobal.net
- and -
Christopher L. Lebsock, Esq.
Arthur Nash Bailey, Jr., Esq.
Michael Paul Lehmann, Esq.
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104
Telephone: (415) 633-1949
E-mail: clebsock@hausfeldllp.com
abailey@hausfeldllp.com
mlehmann@hausfeldllp.com
- and -
C. Andrew Dirksen, Esq.
GOLD BENNETT CERA & SIDENER LLP
595 Market Street, Suite 2300
San Francisco, CA 94105-2835
Telephone: (415) 777-2230
E-mail: cdirksen@gbcslaw.com
The Defendants are represented by:
Jon Vensel Swenson, Esq.
BAKER BOTTS L.L.P.
1001 Page Mill Road
Building One, Suite 200
Palo Alto, CA 94304
Telephone: (650) 739-7500
Facsimile: (650) 739-7699
E-mail: jon.swenson@bakerbotts.com
- and -
Daniel Murray Wall, Esq.
Kirsten Marie Ferguson, Esq.
Timothy L. O'Mara, Esq.
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 1900
San Francisco, CA 94111
Telephone: (415) 395-8240
Facsimile: (415) 395-8095
E-mail: dan.wall@lw.com
kirsten.ferguson@lw.com
tim.omara@lw.com
ABBOTT: Agrees to Settle Kickbacks Class Action for $5.5 Mil.
-------------------------------------------------------------
Brad Perriello, writing for MassDevice, reports that Abbott agreed
to pony up nearly $5.5 million to settle a class action lawsuit
alleging a kickbacks scheme to push the use of its stent products,
but admitted no wrongdoing in settling the case.
There's a wrinkle, however, as the plaintiff in another, older
lawsuit making similar allegations wants to intervene to stop the
settlement, claiming that his 2006 lawsuit against Abbott and
several of its medtech peers predates the whistleblower lawsuit
filed by YY and YY in September 2009.
Steve Peters and Douglas Gray, former sales reps for the medical
device company, sued Abbott under the qui tam provision of the
False Claims Act, alleging that the company encouraged doctors to
use its biliary stents to treat peripheral artery disease, a use
the stents were not cleared for by the FDA, and accusing Abbott of
causing damages in excess of $1 billion in allegedly fraudulent
Medicare claims.
ACTIVE NETWORK: Faces Suits in Calif. Over Vista Merger Plan
------------------------------------------------------------
The Active Network, Inc. is facing lawsuits in the Superior Court
of the State of California, County of San Diego in relation to its
plan of sale to Vista Equity Partners, according to Active
Network's Nov. 5, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
On October 4, 2013, a putative stockholder class action was filed
in the Superior Court of the State of California, County of San
Diego captioned D'Ambrosia v. The Active Network, Inc., et al.,
seeking to enjoin the transactions, including the Offer and the
Merger. The complaint names the Company and the members of the
Company Board as defendants. The complaint also names Vista Equity
Partners, Parent, and Purchaser as defendants.
The complaint generally alleges, among other things, that the
members of the Company Board breached their fiduciary duties to
the Company's stockholders by agreeing to sell the Company to
Vista for an unfair price and pursuant to an unfair process,
agreeing to certain provisions in the Merger Agreement that
purportedly deter alternative bids for the Company, and putting
their personal interests ahead of the interests the Company's
stockholders. The complaint also alleges that the Company and
Vista aided and abetted the alleged breaches of fiduciary duty by
the members of the Company Board. The complaint seeks injunctive
relief, monetary damages, an award of attorneys' fees and other
fees and costs, in addition to other relief.
On October 8, 2013, a second putative stockholder class action
complaint was filed in the Superior Court of the State of
California, County of San Diego, captioned Bushansky v. The Active
Network, Inc., et al., seeking to enjoin the transactions,
including the Offer and the Merger. The complaint names the
Company and certain members of the Company Board as defendants.
The complaint generally alleges, among other things, that the
Company's directors breached their fiduciary duties to the
Company's stockholders by, among other things, failing to take
steps to maximize the value of the Company to its public
stockholders, properly value the Company and protect against
purported conflicts of interests in connection with the proposed
sale of the Company. The complaint seeks injunctive relief,
monetary damages, an award of attorneys' fees and other costs and
expenses and, in the event the proposed sale is consummated,
rescission and compensatory damages. On October 11, 2013, the
complaint in the Bushansky action was amended to, among other
things, add allegations that the members of the Company Board
breached their fiduciary duties to stockholders of the Company
because the Schedule 14D-9 purportedly fails to provide the
Company's stockholders with all material information necessary to
make an informed decision whether to tender their shares.
On October 15, 2013, a putative stockholder class action was filed
in the Superior Court of the State of California, County of San
Diego captioned Gupta v. The Active Networks, Inc., et al, seeking
to enjoin the Transactions, including the Offer and the Merger.
The complaint names the Company and the members of the Company
Board as defendants. The complaint also names Vista Equity
Partners, Parent, and Purchaser as defendants. The complaint
generally alleges, among other things, that the members of the
Company Board breached their fiduciary duties to the Company's
stockholders by agreeing to sell the Company to Vista for an
unfair price and pursuant to an unfair process, agreeing to
certain provisions in the Merger Agreement that purportedly deter
alternative bids for the Company, putting their personal interests
ahead of the interests the Company's stockholders, and failing to
fully disclose to the Company's stockholders all material
information necessary to make an informed decision regarding
whether to tender their Shares. The complaint also alleges that
the Company, Vista Equity Partners, Parent, and Purchaser aided
and abetted the alleged breaches of fiduciary duty by the members
of the Company Board. The complaint seeks injunctive relief,
rescission, monetary damages, an award of attorneys' fees and
other fees and costs, in addition to other relief.
AFFYMAX INC: Hearing on Motion to Junk Securities Suit Set Jan.
---------------------------------------------------------------
A hearing on a motion by Affymax, Inc. to dismiss a consolidated
amended complaint filed against it by shareholders was set for
January 14, 2014.
According to the company's Nov. 5, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013, a securities class action complaint was filed on
February 27, 2013, in the United States District Court for the
Northern District of California, naming as defendants Affymax,
Inc. or the Company, certain of its officers, Takeda
Pharmaceutical Company Limited, Takeda Pharmaceuticals U.S.A.,
Inc. and Takeda Global Research & Development Center, Inc. A
second complaint naming the same defendants was filed on March 6,
2013. On May 2, 2013, the securities class action complaint that
was filed on February 27, 2013 was voluntarily dismissed by the
plaintiff. On May 21, 2013, the Court appointed a lead plaintiff
in the remaining securities class action complaint.
On July 22, 2013, an amended class action complaint was filed on
behalf of purported stockholders of the Company, naming as
defendants the Company and certain of its former officers. The
amended complaint alleges violations of Section 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, in connection with allegedly false and misleading
statements made by the defendants regarding OMONTYS and the
Company's business practices, financial projections and other
disclosures between August 8, 2012 and February 22, 2013, or the
Class Period. The plaintiff seeks to represent a class comprised
of purchasers of the Company's common stock during the Class
Period and seeks damages, costs and expenses and such other relief
as determined by the Court. On September 20, 2013, the Company
and the individual defendants filed a motion to dismiss the
consolidated amended complaint. The hearing on the motion to
dismiss is set for January 14, 2014.
AFFYMAX INC: Faces Shareholder Lawsuit in N.D. Cal. Court
---------------------------------------------------------
Affymax, Inc. faces a securities suit in the United States
District Court for the Northern District of California over in
connection with allegedly false and misleading statements made by
the defendants regarding OMONTYS among others, according to the
company's Nov. 5, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
The company and certain of the company's former officers are
defendants in a lawsuit filed in the United States District Court
for the Northern District of California, brought on behalf of
stockholders of the Company that alleges violations of the
Securities Exchange Act of 1934 in connection with allegedly false
and misleading statements made by the defendants regarding OMONTYS
and the company's business practices, financial projections and
other disclosures between August 8, 2012 and February 22, 2013, or
the Class Period. The plaintiffs seek to represent a class
comprised of purchasers of the company's common stock during the
Class Period and seek damages, costs and expenses and such other
relief as determined by the Court.
AFFYMAX INC: Firm, Takeda Continue to Face N.D. Cal. Stock Suit
---------------------------------------------------------------
Affymax Inc. faces a consolidated shareholder lawsuit in the
United States District Court for the Northern District of
California, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
On February 27, 2013, a securities class action complaint was
filed in the United States District Court for the Northern
District of California, naming as defendants the company, certain
of the company's officers, Takeda Pharmaceutical Company Limited,
Takeda Pharmaceuticals U.S.A., Inc. and Takeda Global Research &
Development Center, Inc. A second complaint naming the same
defendants was filed on March 6, 2013. On May 2, 2013, the
securities class action complaint that was filed on February 27,
2013 was voluntarily dismissed by the plaintiff. On May 21, 2013,
the Court appointed a lead plaintiff in the remaining securities
class action complaint that had been filed on March 6, 2013. On
July 22, 2013, a consolidated amended class action complaint was
filed on behalf of purported stockholders of the Company, naming
as defendants the Company and certain of its officers. The
consolidated amended complaint alleges violations of Section 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, in connection with allegedly false and
misleading statements made by the defendants regarding the
Company's business practices, financial projections and other
disclosures between August 8, 2012 and February 22, 2013, or the
Class Period. The plaintiff seeks to represent a class comprised
of purchasers of the Company's common stock during the Class
Period and seeks damages, costs and expenses and such other relief
as determined by the Court.
ANGIE'S LIST: Law Firm Investigates Potential Securities Claims
---------------------------------------------------------------
Maggie McGrath, writing for Forbes, reports that consumer review
site Angie's List may claim to provide "reviews you can trust,"
but a class action suit against the company on behalf of battered
investors is raising questions about the veracity of its own
statements and information. And with a trial firm adding its name
to the list of firms investigating Angie's List for potential
securities violations, shares of the company are falling fast,
down more than 11% in the early afternoon of the first trading day
of 2014.
Cohen, Placitella & Roth (CPR) announced on Jan. 2 that it is
investigating claims on behalf of investors who purchased shares
of Angie's List between February 14, 2013 and October 23, 2013.
The announcement comes just days after Law Offices Bernard M.
Gross filed a class action suit against the company on behalf of
investors who bought stock during that same period. The
overarching issue at hand is whether or not Angie's List and its
directors failed to disclose information that would affect the
price of the stock, which plummeted over 33% in a one-month period
following a disappointing third quarter earnings report, a lowered
fourth quarter guidance and an October 24th report that the
company was spending money at a rate that would leave it unable to
fulfill its financial commitments.
CPR is raising a number of deeper questions and said on Jan. 2
that among the issues it is investigating are: whether "the
company consistently derived more than half its revenues from the
service providers," which would be "contrary to the company's
claim that it provides its members with unbiased, online reviews,
disallowing service providers from buying ratings"; whether or not
"the legitimacy of the service provider side of Angie's List
business model was dubious, as service providers were forced to
pay the company thousands of dollars a year in order to be listed
as a highly rated service providers, and if they did not, they
would not get customer referrals from Angie's List"; and if,
because of the fees Angie's List charged service providers, these
companies were forced to either charge above-market prices for
"basic, run-of-the-mill services" or abandon Angie's List
altogether.
"As a result of these omissions, the Company and its officers and
directors lacked a reasonable basis for their positive statements
about the Company and its business, earnings and financial
prospects," CPR's statement concludes.
An Angie's List spokesperson said that the company had no
explanation for the stock fluctuation and no comment regarding the
litigation.
Shares of Angie's List, which on Jan. 2 opened at $15 per share,
were down more than 11% following CPR's announcement of its
investigation. Despite investor complaints, shares of the company
finished 2013 with a 26% year-to-date gain, a shade under the S&P
500?s total return for the year. From its 52-week high of $28.32
per share, however, the stock is down more than 45%.
ASIAINFO-LINKAGE: Enters MoU to Settle Stock Suit Over Merger
-------------------------------------------------------------
AsiaInfo-Linkage, Inc. and the parties in In re AsiaInfo-Linkage,
Inc. Stockholder Litigation, Consol. C.A. No. 8583-VCP executed a
memorandum of understanding to settle the lawsuit, according to
the company's Nov. 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2013.
Since the company's announcement of the company's Agreement and
Plan of Merger, dated as of May 12, 2013, with Skipper Limited
("Parent") and Skipper Acquisition Corporation ("Merger Sub"),
three alleged Company stockholders filed putative class action
complaints against the company, the members of the company's board
of directors and Merger Sub in the Delaware Court of Chancery (the
"Court"), which cases have been consolidated under the caption In
re AsiaInfo-Linkage, Inc. Stockholder Litigation, Consol. C.A. No.
8583-VCP (the "Consolidated Action"). The Consolidated Action of
the plaintiffs in such action have been described in detail in the
preliminary proxy statement filed by the company with the
Securities and Exchange Commission on October 30, 2013 (the
"Amendment").
On October 28, 2013, the parties to the Consolidated Action
executed a memorandum of understanding (the "MOU") setting forth
an agreement-in-principle, which, when finalized as a stipulation
of settlement, is intended to fully and finally resolve and settle
the litigation and all related claims. Pursuant to the MOU, the
Company agreed to make certain disclosures in the definitive proxy
statement. The company refers to the Amendment for greater detail
of the Consolidated Action and the MOU.
AT&T INC: Accused of Misclassifying Managers as Exempt Employees
----------------------------------------------------------------
John Mable, Individually, and on behalf of All Others Similarly
Situated Who Consent to Their Inclusion in a Collective Action v.
AT&T Inc., a Foreign Corporation & AT&T Services, Inc., a Foreign
Corporation, Case No. 1:13-cv-03658-JOF (N.D. Ga., November 5,
2013) accuses the Defendants of unlawfully misclassifying the
Plaintiff and similarly situated "managers of vendor services" as
exempt employees to avoid compensating them for time worked in
excess of 40 hours per week.
AT&T Inc. is a Delaware corporation headquartered in Dallas,
Texas. AT&T Inc. is a multinational telecommunications
corporation and one of the largest mobile telecom operators in the
world.
AT&T Services, Inc., is a Delaware corporation headquartered in
San Antonio, Texas, and is wholly owned by AT&T Inc. AT&T
Services, Inc., provides telecommunications services.
The Plaintiff is represented by:
Mitchell L. Feldman, Esq.
FELDMAN MORGADO, P.A.
1201 Peachtree Street, Suite 200
Atlanta, GA 30361
Telephone: (813) 639-9366
Facsimile: (813) 639-9376
E-mail: mfeldman@ffmlawgroup.com
BAGEL AND BEAN: Former Employees Sue Over Unpaid Overtime Wages
---------------------------------------------------------------
Dionisio Ramales, Salvador Flores, Angel Diaz, Eliezer Ramales,
Jorge Flores, Omar Ramales, Roberto Tovar, Javier Barrales, Samuel
Capulin, Balkar Singh and Rosendo Carreto, individually and on
behalf of others similarly situated v. Bagel and Bean Inc. (d/b/a
Bagel and Bean), 1 Bagel & Bean LLC (d/b/a Bagel & Bean), Golton
Patel, Patrick Patel, Seth Doe, Yvana Doe, George Doe and Michael
Doe, Case No. 1:13-cv-07872-AJN (S.D.N.Y., November 5, 2013)
alleges that the Plaintiffs worked for the Defendants in excess of
40 hours per week without appropriate compensation for the hours
over 40 per week that they worked.
The Plaintiffs further allege that the Defendants also failed to
maintain accurate recordkeeping of the hours the employees worked.
The Plaintiffs are former employees of the Defendants.
The Defendants own, operate and control a deli located in New York
under the name Bagel and Bean.
The Plaintiffs are represented by:
Michael Antonio Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2020
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: faillace@employmentcompliance.com
The Defendants are represented by:
David M. Marek, Esq.
Robert Adler, Esq.
LIDDLE & ROBINSON, LLP
800 Third Avenue, 8th Floor
New York, NY 10022
Telephone: (212) 687-8500
Facsimile: (212) 687-1505
E-mail: dmarek@liddlerobinson.com
radler@liddlerobinson.com
- and -
Jose Anibal Baez, Esq.
THE BAEZ LAW FIRM
347 Fifth Avenue, Suite 900
New York, NY 10016
Telephone: (212) 231-9343
Facsimile: (212) 686-4686
E-mail: baezlaw@msn.com
- and -
Melissa Jill Beekman, Esq.
THE LAW OFFICE OF JONATHAN BELL
1 Old Country Road, Suite 347
Mineloa, NY 11530
Telephone: (516) 280-3008
Facsimile: (516) 656-1845
E-mail: melissa@jonathanbelllaw.com
BAYER CORP: Plaintiff Seeks Rehearing of Class Action Ruling
------------------------------------------------------------
Greg Ryan, writing for Law360, reports that Bayer Corp. urged the
Third Circuit on Dec. 30 not to reconsider its decision to reverse
class certification in a false advertising action over vitamins,
arguing the ruling was not the class action doomsday scenario
envisioned by the plaintiff seeking a rehearing.
A three-judge panel ruled in August that a New Jersey federal
judge should not have certified a class of Florida consumers who
claim Bayer falsely advertised the metabolism-boosting benefits of
its One-A-Day WeightSmart vitamin. Without sales receipts or
other sales records, it was too difficult to ascertain whether a
consumer actually belongs to the class, the appeals court said.
Plaintiff Gabriel Carrera has asked the Third Circuit to rehear
the case, saying the ruling created an "unprecedented hurdle" for
class action plaintiffs. But the appeals court's holding is not
so universal, Bayer said in a brief. The ruling did not bar
consumers from using affidavits, rather than receipts or sales
records, as proof they belong to a class, but only questioned
their use in Mr. Carrera's case, the company said.
"Plaintiff Carrera bases his petition for rehearing on a faulty
leap of logic: Because the panel found that he failed to offer any
evidence that class members are ascertainable in this case, all
small-value consumer class actions will fail," Bayer said.
Mr. Carrera's failings as a class representative differentiate
this case from other class actions, according to Bayer. In his
"appallingly weak" testimony, Mr. Carrera could not identify the
vitamins at issue or their packaging, it said. In addition, he
could not remember when he purchased the vitamins or how much he
paid for them, according to the company.
"The panel did not hold that affidavits were unacceptable forms of
proof. To the contrary, the panel said affidavits were
permissible if Carrera could provide some reliable screening
method that accounted for his own testimonial shortcomings," the
brief said.
Mr. Carrera offered testimony that there are ways to ensure a
class excludes members who submit bogus affidavits, but did not
propose a case-specific model, as the Third Circuit acknowledged,
according to the company.
"Carrera's proffered evidence does not prove that the class is
ascertainable or that Carrera can correct for the unreliability of
his own testimony. That is Carrera's burden," Bayer said.
Mr. Carrera is wrong to claim that the ruling requires him to
identify every class member, as the panel required only that class
members can be identified "in a reliable and administratively
feasible way," the brief said.
In addition, the plaintiff failed to even attempt to prove that
retailers had sales records showing that consumers had purchased
WeightSmart vitamins, Bayer said. His only evidence that third-
party retailer records existed was a Federal Trade Commission
settlement with CVS regarding other false-marketing claims, which
he first offered in a reply brief in support of class
certification, according to Bayer.
"Prior to that, he had not conducted any third-party retailer
discovery. He did not subpoena the documents or testimony of any
third-party retailers," the brief said. "Actual third-party
discovery would have proven whether this evidence exists and for
what timeframe (if any)."
Bayer also refuted Mr. Carrera's contention that the decision
created a circuit split or did not follow Third Circuit precedent.
An attorney for Mr. Carrera could not be immediately reached for
comment on Bayer's brief.
Mr. Carrera's bid for a rehearing has drawn a number of amicus
briefs, including from the consumer group Public Citizen and the
industry group Product Liability Advisory Council.
Bayer is represented by Christopher Landgraff, Rebecca Weinstein
Bacon and Matthew Ford of Bartlit Beck Herman Palenchar & Scott
LLP.
Mr. Carrera is represented by Caroline Bartlett, James Cecchi and
Lindsey Taylor of Carella Byrne Cecchi Olstein Brody & Agnello PC
and Joe Whatley of Whatley Drake & Kallas LLC.
The case is Carrera v. Bayer Corp. et al., case number 12-2621, in
the U.S. Court of Appeals for the Third Circuit.
BRIDGEPOINT EDUCATION: Paid Settlement in Calif. Labor Suit
-----------------------------------------------------------
The settlement of a consolidated suit filed against Bridgepoint
Education, Inc. by employees alleging they were improperly denied
certain wage and hour protections was paid out prior to December
31, 2012, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
In February 2011, the Company received a copy of a complaint filed
as a class action lawsuit naming the Company, Ashford University,
LLC, and certain employees as defendants. The complaint was filed
in the Superior Court of the State of California in San Diego and
was captioned Stevens v. Bridgepoint Education, Inc. In April
2011, the Company received a copy of a complaint filed as a class
action lawsuit naming the Company and Ashford University, LLC, as
defendants. The complaint was filed in the Superior Court of the
State of California in San Diego, and was captioned Moore v.
Ashford University, LLC. In May 2011, the Company received a copy
of a complaint filed as a class action lawsuit naming the Company
as a defendant. The complaint was filed in the Superior Court of
the State of California in San Diego on May 6, 2011, and was
captioned Sanchez v. Bridgepoint Education, Inc. All three of
these complaints generally alleged that the plaintiffs and
similarly situated employees were improperly denied certain wage
and hour protections under California law.
In October 2011, the cases were consolidated because they involved
common questions of fact and law, with Stevens v. Bridgepoint
Education, Inc. designated as the lead case. In April 2012, the
Company entered into a settlement agreement with the plaintiffs of
those cases to settle the claims on a class-wide basis. Under the
terms of the settlement agreement, the Company agreed to pay an
amount to settle the plaintiffs' claims, plus any related payroll
taxes. The Company accrued a $10.8 million expense in connection
with the settlement agreement during the three months ended March
31, 2012. On August 24, 2012, the Court granted final approval of
the class action settlement and entered a final judgment in
accordance with the terms of the settlement agreement. This
settlement was paid out prior to December 31, 2012.
BRIDGEPOINT EDUCATION: Securities Suit in Cal. Now in Discovery
---------------------------------------------------------------
A consolidated securities case filed against Bridgepoint
Education, Inc. will now proceed to discovery after the plaintiff
did not file an amended complaint by the October 31, 2013
deadline, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
On July 13, 2012, a securities class action complaint was filed in
the U.S. District Court for the Southern District of California by
Donald K. Franke naming the Company, Andrew Clark, Daniel Devine
and Jane McAuliffe as defendants for allegedly making false and
materially misleading statements regarding the Company's business
and financial results, specifically the concealment of
accreditation problems at Ashford University. The complaint
asserts a putative class period stemming from May 3, 2011 to July
6, 2012. A substantially similar complaint was also filed in the
same court by Luke Sacharczyk on July 17, 2012 making similar
allegations against the Company, Andrew Clark and Daniel Devine.
The Sacharczyk complaint asserts a putative class period stemming
from May 3, 2011 to July 12, 2012. Finally, on July 26, 2012,
another purported securities class action complaint was filed in
the same court by David Stein against the same defendants based
upon the same general set of allegations and class period.
The complaints allege violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder and seek unspecified monetary relief, interest, and
attorneys' fees.
On October 22, 2012, the Sacharczyk and Stein actions were
consolidated with the Franke action and the Court appointed the
City of Atlanta General Employees Pension Fund and the Teamsters
Local 677 Health Services & Insurance Plan as lead plaintiffs. A
consolidated complaint was filed on December 21, 2012 and the
Company filed a motion to dismiss on February 19, 2013. On
September 13, 2013, the Court granted the motion to dismiss with
leave to amend for alleged misrepresentations relating to Ashford
University's quality of education, the WASC accreditation process,
and the Company's financial forecasts. The Court denied the motion
to dismiss for alleged misrepresentations concerning Ashford
University's persistence rates. The plaintiff did not file an
amended complaint by the October 31, 2013 deadline and therefore
the case will now proceed to discovery.
BRIDGEPOINT EDUCATION: "Guzman" Suit in Certification Discovery
---------------------------------------------------------------
The U.S. District Court for the Southern District of California
entered an order bifurcating discovery and permitting only class
certification discovery to take place in the suit Guzman v.
Bridgepoint Education, Inc. until the plaintiff's motion for class
certification is decided, according to the company's Nov. 5, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Sept. 30, 2013.
In January 2011, Betty Guzman filed a class action lawsuit against
the Company, Ashford University and University of the Rockies in
the U.S. District Court for the Southern District of California.
The complaint is entitled Guzman v. Bridgepoint Education, Inc.,
et al., and alleges that the defendants engaged in
misrepresentation and other unlawful behavior in their efforts to
recruit and retain students. The complaint asserts a putative
class period of March 1, 2005 through the present. In March 2011,
the defendants filed a motion to dismiss the complaint, which was
granted by the Court with leave to amend in October 2011.
In January 2012, the plaintiff filed a first amended complaint
asserting similar claims and the same class period, and the
defendants filed another motion to dismiss. In May 2012, the Court
granted the University of the Rockies' motion to dismiss and
granted in part and denied in part the motion to dismiss filed by
the Company and Ashford University. The Court also granted the
plaintiff leave to file a second amended complaint.
In August 2012, the plaintiff filed a second amended complaint
asserting similar claims and the same class period. The second
amended complaint seeks unspecified monetary relief, disgorgement
of all profits, various other equitable relief, and attorneys'
fees. The defendants filed a motion to strike portions of the
second amended complaint, which was granted in part and denied in
part. On March 14, 2013, the Company filed a motion to deny class
certification for students enrolled on or after May 2007 when
Ashford University adopted a binding arbitration policy. On August
23, 2013, the Court denied the motion finding that although "some"
absent class members in this case may have signed an enforceable
arbitration agreement, this does not demonstrate an overbroad or
unascertainable class that forecloses certification at this stage
of the proceedings. On September 23, 2013, the Court entered an
order bifurcating discovery and permitting only class
certification discovery to take place until the plaintiff's motion
for class certification, which is due to be filed on or before
April 30, 2014, is decided.
BRIDGEPOINT EDUCATION: Needs Arbitrator for Suit by Ex-workers
--------------------------------------------------------------
The parties in lawsuits filed by former Bridgepoint Education,
Inc. employees who were terminated are in the process of selecting
an arbitrator, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
On October 24, 2012, a class action complaint was filed in
California Superior Court by former employee Marla Montano naming
the Company and Ashford University as defendants. The case is
entitled Marla Montano v. Bridgepoint Education and Ashford
University. The complaint asserts a putative class consisting of
former employees who were terminated in January 2012 and July 2012
as a result of a mass layoff, relocation or termination and
alleges that the defendants failed to comply with the notice and
payment provisions of the California WARN Act.
A substantially similar complaint, entitled Dilts v. Bridgepoint
Education and Ashford University, was also filed in the same court
on the same day by Austin Dilts making similar allegations and
asserting the same putative class. The complaints seek back pay,
the cost of benefits, penalties and interest on behalf of the
putative class members, as well as other equitable relief and
attorneys' fees.
The Company and Ashford University intend to vigorously defend
against these actions. On January 25, 2013, the Company filed
motions to compel binding arbitration with the Court, which were
granted on May 20, 2013. The parties are in the process of
selecting an arbitrator.
CAPITAL ALLIANCE: Sends Unsolicited Fax Advertisements, Suit Says
-----------------------------------------------------------------
Bee, Denning, Inc., d/b/a Practice Performance Group, individually
and on behalf of all others similarly situated v. Capital Alliance
Group, Case No. 3:13-cv-02654-DMS-WVG (S.D. Cal., November 5,
2013) alleges violations of the Telephone Consumer Protection Act.
The Plaintiff alleges that it received faxes from the Defendant
advertising that the Defendant provided capital for small
businesses as an alternative to traditional bank financing. The
Plaintiff contends that the Defendant's faxes to the Plaintiff's
fax line were advertisements, soliciting the Plaintiff to obtain a
credit line or other services through the Defendant. The
Plaintiff asserts that it did not provide prior consent to the
receipt of faxes from the Defendant, did not voluntarily agree to
make its facsimile number available for public distribution, did
not invite or give permission to the Defendant to use its fax
number, and had no established business relationship with the
Defendant.
Bee, Denning, Inc., doing business as Practice Performance Group,
is a company that provided consultation and continuing education
for physicians based in La Jolla, California. Practice
Performance Group is owned and operated by Judy Bee and Jeffrey
Denning.
Capital Alliance Group is a California corporation that maintains
its principal place in Santa Ana, California. Capital Alliance
Group provides short term business loans and equipment financing
and leasing to small to middle-sized companies.
The Plaintiff is represented by:
Beth E. Terrell, Esq.
Michael D. Daudt, Esq.
Whitney B. Stark, Esq.
TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 358-3528
E-mail: bterrell@tmdwlaw.com
mdaudt@tmdwlaw.com
wstark@tmdwlaw.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN
201 South Biscayne Boulevard, 28th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
CREDITWATCH: Faces Class Action Over Cellphone Robocalls
--------------------------------------------------------
KRQE reports debt collection company Creditwatch is facing a
federal class action lawsuit in Albuquerque over so-called
robocalls made on behalf of red light camera operator Redflex.
Attorney Rob Treinen says those pre-recorded messages violated the
Telephone Consumer Protection Act, or TCPA, because Creditwatch
called cellphones and the victims never gave the debt collection
company consent to make the calls. "From what we do know, it
seems like that was their practice to aggressively place these
calls every opportunity they had," Mr. Treinen said.
It's unclear just how many people are affected, but the lawsuit
estimates it could be around 50,000 people in Albuquerque.
Redflex is trying to collect millions of dollars in unpaid
tickets. According to the lawsuit, Redflex is just as liable for
the illegal calls as Creditwatch because they're acting on
Redflex's behalf.
Redflex spokesperson Jody Ryan tells News 13 the company has not
been served with the lawsuit yet. "We are, however, confident
that Redflex's conduct has been in full compliance with any
applicable laws," wrote Ms. Ryan in an email.
DAYTONA BEACH, FL: "Groth" Class Suit Removed to M.D. Florida
-------------------------------------------------------------
The purported class action lawsuit captioned Groth, et al. v. City
of Daytona Beach, Case No. 2013 32203 CICI, was removed from
Volusia County Circuit Court to the U.S. District Court for the
Middle District of Florida (Orlando). The District Court Clerk
assigned Case No. 6:13-cv-01721-RBD-KRS to the proceeding.
The lawsuit alleges that the City of Daytona Beach violated the
Fair Labor Standards Act by failing to pay class members at least
one and one-half times the regular rate for all hours worked in
excess of 40 per workweek. The proposed class members are hourly
paid police officers, who worked for the Defendant within the past
three years.
The Plaintiffs are represented by:
Jason L. Harr, Esq.
THE HARR LAW FIRM
1326 S Ridgewood Ave., Suite 12
Daytona Beach, FL 32114
Telephone: (386) 226-4866
Facsimile: (386) 226-4886
E-mail: jasonharr@harrlawfirm.com
The Defendant is represented by:
Benton N. Wood, Esq.
FISHER & PHILLIPS, LLP
200 S Orange Ave., Suite 1100
Orlando, FL 32801
Telephone: (407) 541-0851
Facsimile: (407) 541-0887
E-mail: bwood@laborlawyers.com
DECO WALK: Class Seeks to Recover Damages for Unpaid Overtime
-------------------------------------------------------------
Victor Zaragoza and other similarly situated individuals v. Deco
Walk Hotel & Golf Club, Inc., Park Adult Residential Facility,
Inc. and 928 Deco Walk, LLC d/b/a Deco Walk Hostel a/k/a Deco
Walk, Case No. 1:13-cv-24025-FAM (S.D. Fla., November 5, 2013),
seeks to recover money damages for unpaid overtime and straight
wages under the laws of the United States.
The Defendants are Florida companies headquartered in Miami-Dade
County, Florida.
Deco Walk operates as an organization, which sells and markets its
services and goods to customers throughout the United States.
The Plaintiff is represented by:
R. Martin Saenz, Esq.
THE SAENZ LAW FIRM, P.A.
20900 N.E. 30th Avenue, Suite 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
Telephone: msaenz@saenzlawfirm.com
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Peter Neil Andresky, Esq.
THE ANDRESKY LAW FIRM, P.A.
9121 N. Lake Park Circle
Davie, FL 33328
Telephone: (954) 348-4546
Facsimile: (954) 342-1988
E-mail: pandresky@andreskylawfirm.com
The Defendants are represented by:
Michael Ira Bernstein, Esq.
THE BERNSTEIN LAW FIRM
1688 Meridian Avenue, Suite #418
Miami Beach, FL 33139
Telephone: (305) 672-9544
Facsimile: (305) 672-4572
E-mail: michael@bernstein-lawfirm.com
DELISSIMO DELI: Class Suit Seeks Minimum and Overtime Wages
-----------------------------------------------------------
Rogelio Velasquez, individually and on behalf of others similarly
situated v. Delissimo Deli Corp. (d/b/a Delissimo Deli & Cafe) and
Soo Bok Kim, Case No. 1:13-cv-07875-TPG (S.D.N.Y., November 5,
2013) alleges that the Plaintiff worked for the Defendants in
excess of 40 hours per week, without receiving the applicable
minimum wage or appropriate compensation for the hours over 40 per
week that he worked.
Delissimo Deli & Cafe is a deli/cafe owned by Soo Bok Kim and
located in New York.
The Plaintiff is represented by:
Michael Antonio Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2020
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: faillace@employmentcompliance.com
The Defendants are represented by:
Jonathan Yoon Sue, Esq.
LAW OFFICES OF JONATHAN Y. SUE, PLLC
1220 Broadway
New York, NY 10001
Telephone: (212) 967-1001
Facsimile: (212) 967-1112
E-mail: js@jyspllc.com
DOCTOR'S BEST: Accused of Falsely Advertising Glucosamine Product
-----------------------------------------------------------------
Thomas Flowers, an individual, Christopher L. Nelson, an
individual, on behalf of themselves and all others similarly
situated v. Doctor's Best, Inc., a corporation, Case No. 2:13-cv-
08174-DMG-JCG (C.D. Cal., November 5, 2013) is brought on behalf
of those who purchased Glucosamine/Chondroitin/MSM health
supplements manufactured and marketed by Doctor's Best, Inc.
In its uniform, nationwide marketing of its supplement products,
Doctor's Best promises that its product will help protect
cartilage, stimulate cartilage production, improve joint comfort,
and improve joint function, the Plaintiffs note. They assert that
the Defendant's appeal to science, however, is misleading at best
and, at worst, a total fiction. Most damning to Doctor's Best's
science-based appeal is a large scale study sponsored and
conducted by the National Institute of Health called the
Glucosamine/chondroitin Arthritis Intervention Trial, which
concluded that "[glucosamine and chondroitin], alone or in
combination, was not efficacious.
Defendant Doctor's Best is a Delaware corporation. Doctor's Best
is a manufacturer and marketer of supplements for humans and
animals. The Company sells its products nationally through
various online and brick-and-mortar retailers.
The Plaintiffs are represented by:
Jonathan D. Miller, Esq.
Jennifer M. Miller, Esq.
NYE PEABODY STIRLING HALE & MILLER LLP
33 West Mission Street, Suite 201
Santa Barbara, CA 93101
Telephone: (805) 963-2345
Facsimile: (805) 563-5385
E-mail: jonathan@nps-law.com
jennifer@nps-law.com
- and -
Benjamin J. Sweet
Edwin J. Kilpela, Jr., Esq.
DEL SOLE CAVANAUGH STROYD LLC
200 First Avenue, Suite 300
Pittsburgh, PA 15222
Telephone: (412) 261-2393
Facsimile: (412) 261-2110
E-mail: bsweet@dscslaw.com
ekilpela@dscslaw.com
DUN & BRADSTREET: Reserve Set Up for "Martin" Suit Settlement
-------------------------------------------------------------
As of September 30, 2013, a reserve has been accrued by the
company in the settlement of the suit Nicholas Martin v. Dun &
Bradstreet, Inc. and Convergys Customer Management Group, Inc.,
No. 12 CV 215 (USDC N.D. IL.), according to The Dun & Bradstreet
Corporation's Nov. 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2013.
On January 11, 2012, Nicholas Martin filed suit against Dun &
Bradstreet, Inc. and Convergys Customer Management Group, Inc.
("Convergys") in the United States District Court for the Northern
District of Illinois. The complaint alleges that Defendants
violated the Telephone Consumer Protection Act ("TCPA") because
Convergys placed a telephone call to Plaintiff's cell phone using
an automatic telephone dialing system ("ATDS") and because Dun &
Bradstreet, Inc. authorized the telephone call.
The TCPA generally prohibits the use of an ATDS to place a call to
a cell phone for nonemergency purposes and without the prior
express consent of the called party. The TCPA provides for
statutory damages of $500 per violation, which may be trebled to
$1,500 per violation at the discretion of the court if the
plaintiff proves the defendant willfully violated the TCPA.
Plaintiff sought to bring this action as a class action on behalf
of all persons who Defendants called on their cell phone using an
ATDS, where the Defendants obtained the cell phone number from
some source other than directly from the called party, during the
period from January 11, 2010 to the present. The parties reached
an agreement to settle this matter and they have negotiated the
terms of a settlement agreement and other related settlement
documents.
On July 16, 2013 the Court granted Plaintiff's Motion for
Preliminary Approval of Class Action Settlement and entered a
Preliminary Approval Order. Class members have been given notice
and had until October 7, 2013 to submit claims, which are subject
to Defendants' review. The settlement is subject to final approval
by the Court. The Court scheduled a Final Approval Hearing for
November 19, 2013.
In accordance with ASC 450, "Contingencies," as of September 30,
2013, a reserve has been accrued by the company in this matter,
which is reflected in the company's consolidated financial
statements. The amount of such reserve is not material to the
company's financial statements and an estimate of the additional
loss or range of loss cannot be made.
DUN & BRADSTREET: Lawsuit by CreditBuilder Buyers in Discovery
--------------------------------------------------------------
Formal discovery had begun in O&R Construction, LLC v. Dun &
Bradstreet Credibility Corporation, et al., No. 2:12 CV 02184
(USDC W.D. Wash.) but has been stayed pending review of a Second
Amended Complaint, according to The Dun & Bradstreet Corporation's
Nov. 5, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Sept. 30, 2013.
On December 13, 2012, plaintiff O&R Construction LLC filed a
putative class action in the United States District Court for the
Western District of Washington against D&B and an unaffiliated
entity. The complaint alleges, among other things, that defendants
violated the antitrust laws, used deceptive marketing practices to
sell the CreditBuilder credit monitoring products and allegedly
misrepresented the nature, need and value of the products.
The plaintiff purports to sue on behalf of a putative class of
purchasers of CreditBuilder and seeks recovery of damages and
equitable relief. On February 18, 2013, the Company filed a motion
to dismiss the complaint. On April 5, 2013, plaintiff filed an
amended complaint in lieu of responding to the motion.
The amended complaint dropped the antitrust claims and retained
the class action and deceptive practices allegations. The Company
filed a new motion to dismiss the amended complaint on May 3,
2013. On August 23, 2013, the court heard the motion and granted
it. Specifically, the court dismissed a contract claim with
prejudice, and dismissed all the remaining claims without
prejudice. On September 23, 2013, plaintiff filed a Second Amended
Complaint, which alleges new claims about the nature and quality
of the Company's data and services. The Company plans to file a
motion to dismiss the Second Amended Complaint. The parties
exchanged initial disclosures and completed the initial case
management process in March 2013. Formal discovery had begun but
has been stayed by the court pending review of the Second Amended
Complaint. This litigation is at a very preliminary stage.
In accordance with ASC 450," Contingencies," the company does not
have sufficient information upon which to determine that a loss in
connection with this matter is probable, reasonably possible or
estimable, and thus no reserve has been established nor has a
range of loss been disclosed. The Company disputes the allegations
and intends to vigorously defend the case.
EBAY INC: June 18 Class Action Settlement Hearing Set
-----------------------------------------------------
eBay Inc. has agreed to pay $4.75 million to settle a class action
lawsuit filed over fees it charged sellers for the Featured Plus!
listing upgrade from January 23, 2008 to February 4, 2013 (when
eBay discontinued Featured Plus!).
Attorneys with Figari & Davenport, LLP, a litigation boutique in
Dallas, Texas, filed the lawsuit on behalf of plaintiff Custom
LED, LLC and a class of sellers who paid Featured Plus! listing
upgrade fees. The case was filed in the United States District
Court for the Northern District of California and is entitled
"Custom LED, LLC v. eBay Inc.," Case No. 3:12-CV-00350 (JST). The
plaintiff alleges eBay incorrectly described the operation of the
Featured Plus! listing upgrade. eBay denies the allegations.
If approved by the court at a hearing set for June 18, 2014, the
settlement will provide a partial refund to class members who paid
for the Feature Plus! listing upgrade during the class period.
Sellers who are members of the class and have an Active eBay
Account will not need to do anything to receive a refund. The
amount credited to them will be calculated based on eBay's records
of fees paid by each seller and will be automatically credited to
the seller's existing eBay Account.
Sellers in the class who do not have an Active eBay Account will
automatically be sent a check. However, eBay may not have current
address information for sellers who have closed their eBay Account
or whose Inactive eBay Account information has incorrect or
inaccurate contact information. Class members who need to provide
or correct their contact information MUST do so at
http://www.eBayFeaturedPlusClassAction.comin order to receive a
check.
Any account information updates at
http://www.eBayFeaturedPlusClassAction.comMUST be completed no
later than March 20, 2014. This is also the deadline for any
objections or to opt out of the class.
Further information regarding the allegations in the lawsuit, the
terms of settlement, and class members' options, can be found at:
http://www.eBayFeaturedPlusClassAction.com
Contact: Keith Verges, Esq.
Parker D. Young, Esq.
Raymond E. Walker, Esq.
FIGARI & DAVENPORT, LLP
Telephone: (214) 939-2000
EDWARD JONES: Fails to Pay Home Mortgage Advisors' OT, Suit Says
----------------------------------------------------------------
Kathryn J. McCormick, on behalf of herself and all others
similarly situated v. Edward Jones Mortgage, LLC; Wells Fargo Home
Mortgage, a division of Wells Fargo Bank, N.A.; EJ Mortgage, LLC;
and Doherty Employment Group, Inc., d/b/a Doherty Employment
Services, Case No. 0:13-cv-03032-MJD-SER (D. Minn., November 5,
2013) is about the Defendants' alleged failure to pay their senior
home mortgage advisors and home mortgage advisors all the overtime
wages they are due.
Edward Jones Mortgage, LLC is a limited liability company
headquartered in St. Louis Park, Minnesota. EJM is a joint
venture of Defendants Wells Fargo Home Mortgage and EJ Mortgage,
LLC. EJM is in the business of selling mortgage loans.
Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A.,
was a part-owner of EJM during the timeframe relevant to this
action. Wells Fargo, headquartered in Des Moines, Iowa, is in the
business of selling home mortgage loans. Wells Fargo maintained
control, oversight and direction over the operation of EJM
offices, including their employment practices.
Headquartered in St. Louis, Missouri, EJ Mortgage, LLC, a wholly
owned subsidiary of Edward D. Jones & Co., L.P., was a part-owner
of EJM during the timeframe relevant to this action. EJ Mortgage
is in the business of providing financial services primarily to
individuals. EJ Mortgage maintained control, oversight and
direction over the operation of EJM offices, including their
employment practices.
Doherty Employment Group, Inc., doing business as Doherty Employer
Services, was a company responsible for human resource services
provided to EJM home mortgage advisors. Doherty, headquartered in
Edina, Minnesota, is in the business of providing human resources
and payroll administration services. Doherty maintained control,
oversight and direction over the operation of EJM's human
resources activities and payroll, including its compensation
practices and enforcement of its employee manual.
The Plaintiff is represented by:
Steven Andrew Smith, Esq.
Bonnie M. Smith, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 215-6870
E-mail: smith@nka.com
bsmith@nka.com
The Defendants are represented by:
Andrew J. Voss, Esq.
Jeffrey A. Timmerman, Esq.
LITTLER MENDELSON, PC
80 S 8th St., Suite 1300
Minneapolis, MN 55402-2136
Telephone: (612) 630-1000
Facsimile: (612) 630-9626
E-mail: avoss@littler.com
jtimmerman@littler.com
EFA PROCESSING: "Nelson" Suit Removed to Minnesota District Court
-----------------------------------------------------------------
The purported class action lawsuit styled Nelson v. EFA Processing
L.P., et al., Case No. 27-cv-13-17978, was removed from the
Hennepin County District Court to the U.S. District Court for the
District of Minnesota. The Minnesota District Court Clerk
assigned Case No. 0:13-cv-03037-DSD-JJG to the proceeding. The
lawsuit alleges violations of the Fair Debt Collection Practices
Act.
The Plaintiff is represented by:
James W. Anderson, Esq.
Vincent J. Esades, Esq.
HEINS MILLS & OLSON, PLC
310 Clifton Ave.
Minneapolis, MN 55403
Telephone: (612) 338-4605
E-mail: janderson@heinsmills.com
vesades@heinsmills.com
- and -
Matthew Zuchetto, Esq.
THE SCOTT LAW GROUP PS
926 W Sprague Ave., Suite 680
Spokane, WA 99201
Telephone: (509) 455-3966
E-mail: matthewzuchetto@me.com
- and -
Toby J. Marshall, Esq.
TERRELL MARSHALL DAUDT & WILLIE PLLC
936 N 34th St., Suite 300
Seattle, WA 98103
Telephone: (206) 816-6603
E-mail: tmarshall@tmdwlaw.com
The Defendants are represented by:
CJ Schoenwetter, Esq.
Dustin D. Fossey, Esq.
BOWMAN & BROOKE LLP
150 S 5th St., Suite 3000
Minneapolis, MN 55402
Telephone: (612) 656-4037
Facsimile: (612) 672-3200
E-mail: cj.schoenwetter@msp.bowmanandbrooke.com
Dustin.Fossey@bowmanandbrooke.com
- and -
Christopher N. Weiss, Esq.
J. Will Eidson, Esq.
STOEL RIVES LLP
600 University St., Suite 3600
Seattle, WA 98101-4109
Telephone: (206) 386-7624
E-mail: cnweiss@stoel.com
jweidson@stoel.com
- and -
Marc A. Al, Esq.
Margaret E. Dalton, Esq.
STOEL RIVES LLP
33 South Sixth Street, Suite 4200
Minneapolis, MN 55402
Telephone: (612) 373-8801
Facsimile: (612) 373-8881
E-mail: maal@stoel.com
medalton@stoel.com
EL SANTO COYOTE: Did Not Pay Wages for Hours Over 40, Suit Says
---------------------------------------------------------------
Jose Marcelino Orellana Canas and all others similarly situated
under 29 U.S.C. 216(B) v. El Santo Coyote Inc. f/k/a El Paradito
Inc. d/b/a Santo Coyote and Alberto Toll, Case No. 1:13-cv-24027-
JEM (S.D. Fla., November 5, 2013) arises under the Fair Labor
Standards Act.
Between the period from February 8, 2013, through September 28,
2013, the Plaintiff asserts that he worked an average of 59 hours
a week for the Defendants and was not paid any wage at all for any
hours worked over 40 hours in a week.
El Santo Coyote Inc., formerly known as El Paradito Inc., doing
business as Santo Coyote, is a corporation that regularly
transacts business within Dade County. Alberto Toll is a
corporate officer, owner or manager of the Company.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
K. David Kelly, Esq.
J.H. ZIDELL, PA
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
E-mail: ZABOGADO@AOL.COM
david.kelly38@rocketmail.com
The Defendants are represented by:
Mark Adrian Dienstag, Esq.
LAW OFFICES MARK A. DIENSTAG LLC
2 South Biscayne Blvd., Suite 1650
Miami, FL 33131
Telephone: (305) 662-1655
Facsimile: (786) 953-4442
E-mail: mdienstag@markdienstaglaw.com
EVERGREEN INT'L: Former Employees File Class Action Over Layoffs
----------------------------------------------------------------
Mike Francis, writing for The Oregonian, reports that three days
after Evergreen International, McMinnville-based aviation services
company, filed for Chapter 7 bankruptcy in Delaware, two former
employees who had sued the company last month have moved their
complaint into the court of Bankruptcy Judge Mary F. Walrath.
Christopher Tortorelli, who worked in McMinnville, and
Jens Schulz, who worked in New York, say the company failed to
give legally required notice before laying off workers. They say
the layoffs affected about 460 Evergreen employees, 160 of them in
McMinnville.
Evergreen on Nov. 27 "ordered mass layoffs and/or plant closings"
for which it was required to give 60 days' notice under the
federal WARN Act, the pair argue in their complaint filed on
Jan. 3.
Also on Jan. 3, Evergreen's lawyers told the court they had been
paid $150,000 to represent the company in the bankruptcy
proceeding. They said they already had been paid.
FIRSTENERGY GENERATION: Suit Over Bruce Mansfield Plant Continues
-----------------------------------------------------------------
FirstEnergy Generation, LLC continues to face a purported class
action in the U.S. District Court for the Western District of
Pennsylvania seeking damages based on air emissions from the coal-
fired Bruce Mansfield Plant, according to Firstenergy Corp.'s Nov.
5, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
FirstEnergy is required to meet federally-approved SO2 and NOx
emissions regulations under the CAA. FirstEnergy complies with SO2
and NOx reduction requirements under the CAA and SIP(s) by burning
lower-sulfur fuel, utilizing combustion controls and post-
combustion controls, generating more electricity from lower or
non-emitting plants and/or using emission allowances.
In July 2008, three complaints representing multiple plaintiffs
were filed against FirstEnergy Generation, LLC (FG) in the U.S.
District Court for the Western District of Pennsylvania seeking
damages based on air emissions from the coal-fired Bruce Mansfield
Plant. Two of these complaints also seek to enjoin the Bruce
Mansfield Plant from operating except in a "safe, responsible,
prudent and proper manner." One complaint was filed on behalf of
twenty-one individuals and the other is a class action complaint
seeking certification as a class with the eight named plaintiffs
as the class representatives.
GDB INT'L: Failed to Pay OT Wages to Factory Workers, Suit Says
---------------------------------------------------------------
Heladio Humberto Martinez Guzman, individually and on behalf of
all others similarly situated v. GDB International, Inc. and
Sanjeev Bagaria and Sunil Bagaria, Case No. 3:13-cv-01145-JPG-PMF
(S.D. Ill., November 5, 2013) alleges that during the relevant
time periods, GDB permitted and suffered its factory workers to
work overtime without paying them overtime premium wages in
violation of federal and Illinois law.
GDB has also failed to record and pay for work performed by the
factory workers, Mr. Guzman contends. GDB employs dozens of
hourly employees as factory workers at its Nashville, Illinois
recycling and production facility.
GDB is a New Jersey corporation, which operates a recycling and
production facility in Nashville, Illinois. The Individual
Defendants are "employers" under the broad definitions provided by
the Fair Labor Standards Act and Illinois Minimum Wage Law because
they are executive officers of GDB, and have supervisory authority
over the Plaintiff and all other similarly situated factory
workers.
The Plaintiff is represented by:
Mark A. Potashnick, Esq.
WEINHAUS & POTASHNICK
11500 Olive Blvd., Suite 133
St. Louis, MO 63141
Telephone: (314) 997-9150
Facsimile: (314) 997-9170
E-mail: markp@wp-attorneys.com
- and -
Craig S. Redler, Esq.
LAW OFFICE OF CRAIG S. REDLER & ASSOCIATES, L.L.C.
9666 Olive Blvd., Suite 690
St. Louis, MO 63132
Telephone: (314) 993-0025
Facsimile: (636) 216-0399
E-mail: credler@redlerlaw.com
- and -
Eli Karsh, Esq.
LIBERMAN, GOLDSTEIN & KARSH
230 S. Bemiston Ave., Suite 1200
St. Louis, MO 63105
Telephone: (314) 862-3333
Facsimile: (314) 862-0605
E-mail: elikarsh@aol.com
The Defendants are represented by:
Harry N. Arger, Esq.
DYKEMA GOSSETT PLLC
10 South Wacker Drive, Suite 2300
Chicago, IL 60606
Telephone: (312) 627-2127
Facsimile: (312) 627-2302
E-mail: harger@dykema.com
GOLD LEAF: Employees to Recover Unpaid Overtime Wages and Damages
-----------------------------------------------------------------
Samuel Leon (a resident of Prince George's County, Maryland), c/o
The Kaplan Law Firm, 509 N Jefferson St., Arlington, VA 22205, On
behalf of himself and all others similarly situated v. Gold Leaf
Group (a resident of Montgomery County, Maryland), 20310 Georgia
Ave., Brookeville, MD 20833; and Paul Saiz (a resident of Howard
County, Maryland), 20310 Georgia Ave., Brookeville, MD 20833, Case
No. 8:13-cv-03289-DKC (D. Md., November 5, 2013) is brought on
behalf of a proposed class of all others similarly situated
employees to recover unpaid overtime wages and damages under the
Fair Labor Standards Act and the Maryland Wage and Hour Law.
Gold Leaf Group is a business located in Brookeville, Maryland, in
Montgomery County. The Company provides a variety of services for
its clients, including landscaping, erosion control and snow
removal. Paul Saiz, a resident of Glenwood, Maryland, is the
owner, founder, President and Chief Executive Officer of Gold
Leaf.
The Plaintiff is represented by:
Matthew K. Handley, Esq.
WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS
AND URBAN AFFAIRS
11 Dupont Circle, Suite 400
Washington, DC 20036
Telephone: (202) 319-1000
E-mail: matthew_handley@washlaw.org
- and -
Matthew B. Kaplan, Esq.
THE KAPLAN LAW FIRM
509 N. Jefferson St.
Arlington, VA 22205
Telephone: (703) 665-9529
E-mail: mbkaplan@thekaplanlawfirm.com
IMPAX LABORATORIES: Moves to Consolidate Solodyn Antitrust Cases
----------------------------------------------------------------
Defendants in numerous Solodyn Antitrust Class Actions filed
against Impax Laboratories Inc. moved the United States Judicial
Panel on Multidistrict Litigation to consolidate these actions in
either the District of Arizona or the Eastern District of
Pennsylvania for coordinated pretrial proceedings, according to
the company's Nov. 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2013.
From July to October 2013, thirteen class action complaints were
filed against manufacturers of the brand drug Solodyn and its
generic equivalents, including Impax Laboratories, Inc.,
according to the company's Nov. 5, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013.
On July 22, 2013, Plaintiff United Food and Commercial Workers
Local 1776 & Participating Employers Health and Welfare Fund, an
indirect purchaser, filed a class action complaint in the United
States District Court for the Eastern District of Pennsylvania on
behalf of itself and others similarly situated.
On July 23, 2013, Plaintiff Rochester Drug Co-Operative, Inc., a
direct purchaser, filed a class action complaint in the United
States District Court for the Eastern District of Pennsylvania on
behalf of itself and others similarly situated.
On August 1, 2013, Plaintiff International Union of Operating
Engineers Local 132 Health and Welfare Fund, an indirect
purchaser, filed a class action complaint in the United States
District Court for the Northern District of California on behalf
of itself and others similarly situated. On August 29, 2013, this
Plaintiff withdrew its complaint from the United States District
Court for the Northern District of California, and on August 30,
2013, re-filed the same complaint in the United States Court for
the Eastern District of Pennsylvania, on behalf of itself and
others similarly situated.
On August 9, 2013, Plaintiff Local 274 Health & Welfare Fund, an
indirect purchaser, filed a class action complaint in the United
States District Court for the Eastern District of Pennsylvania on
behalf of itself and others similarly situated.
On August 12, 2013, Plaintiff Sheet Metal Workers Local No. 25
Health & Welfare Fund, an indirect purchaser, filed a class action
complaint in the United States District Court for the Eastern
District of Pennsylvania on behalf of itself and others similarly
situated.
On August 27, 2013, Plaintiff Fraternal Order of Police, Fort
Lauderdale Lodge 31, Insurance Trust Fund, an indirect purchaser,
filed a class action complaint in the United States District Court
for the Eastern District of Pennsylvania on behalf of itself and
others similarly situated.
On August 29, 2013, Plaintiff Heather Morgan, an indirect
purchaser, filed a class action complaint in the United States
District Court for the Eastern District of Pennsylvania on behalf
of itself and others similarly situated.
On August 30, 2013, Plaintiff Plumbers & Pipefitters Local 178
Health & Welfare Fund, an indirect purchaser, filed a class action
complaint in the United States District Court for the Eastern
District of Pennsylvania on behalf of itself and others similarly
situated.
On September 9, 2013, Plaintiff Ahold USA, Inc., a direct
purchaser, filed a class action complaint in the United States
District Court for the District of Massachusetts on behalf of
itself and others similarly situated.
On September 24, 2013, Plaintiff City of Providence, Rhode Island,
an indirect purchaser, filed a class action complaint in the
United States District Court for the District of Arizona on behalf
of itself and others similarly situated.
On October 2, 2013, Plaintiff International Union of Operating
Engineers Stationary Engineers Local 39 Health & Welfare Trust
Fund, an indirect purchaser, filed a class action complaint in the
United States District Court for the District of Massachusetts on
behalf of itself and others similarly situated.
On October 7, 2013, Painters District Council No. 30 Health and
Welfare Fund, an indirect purchaser, filed a class action
complaint in the United States District Court for the District of
Massachusetts on behalf of itself and others similarly situated.
On October 25, 2013, Plaintiff Man-U Service Contract Trust Fund,
an indirect purchaser, filed a class action complaint in the
United States District Court for the Eastern District of
Pennsylvania on behalf of itself and others similarly situated.
On October 11, 2013, defendants in these actions (including the
Company) moved the United States Judicial Panel on Multidistrict
Litigation to consolidate these actions in either the District of
Arizona or the Eastern District of Pennsylvania for coordinated
pretrial proceedings.
In each case, the complaints allege that Valeant Pharmaceuticals
International, Inc., formerly Medicis Pharmaceutical Corporation,
engaged in an overarching anticompetitive scheme by, among other
things, filing frivolous patent litigation lawsuits, submitting
frivolous Citizen Petitions, and entering into anticompetitive
settlement agreements with several generic manufacturers,
including the Company, to delay generic competition of Solodyn and
in violation of state and federal antitrust laws. Plaintiffs seek,
among other things, unspecified monetary damages and equitable
relief, including disgorgement and restitution.
IMPAX LABORATORIES: Amended Complaint Filed in Shareholder Suit
---------------------------------------------------------------
The plaintiff in a consolidated shareholder suit against Impax
Laboratories, Inc. has filed an amended complaint, according to
the company's Nov. 5, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2013.
On March 7, 2013 and April 8, 2013, two class action complaints
were filed against the Company and certain current and former
officers and directors of the Company in the United States
District Court for the Northern District of California by Denis
Mulligan, individually and on behalf of others similarly situated,
and Haverhill Retirement System, individually and on behalf of
others similarly situated, respectively ("Securities Class
Actions"), alleging that the Company and those named officers and
directors violated the federal securities law by making materially
false and misleading statements and/or failed to disclose material
adverse facts to the public in connection with manufacturing
deficiencies at the Hayward, California manufacturing facility,
including but not limited to the impact the deficiencies would
have on the Company's ability to gain approval from the FDA for
the Company's branded product candidate, RYTARY and its generic
version of Concerta.
These two Securities Class Actions have subsequently been
consolidated, assigned to the same judge, and lead plaintiff has
been chosen. The plaintiff's consolidated amended complaint was
filed on September 13, 2013.
LOS ANGELES LAKERS: Settles Class Action Over Text Spam
-------------------------------------------------------
Kat Greene, writing for Law360, reports that a Los Angeles Lakers
ticket holder told the Ninth Circuit on Dec. 31 that he and the
organization have settled a closely watched putative class action
over allegations the team breached the Telephone Consumer
Protection Act by spamming him with unwanted text messages.
Plaintiff David Emanuel told the appeals court in a short motion
that the case has been settled and promised a forthcoming joint
motion for dismissal that would resolve his claims against the
team. Details of the settlement were not immediately available on
Dec. 30.
The suit has garnered attention from heavyweights in the tech
industry like Twitter Inc. and Path Inc., both of which urged the
Ninth Circuit to uphold the suit's lower court dismissal and
voiced concerns that the litigation was emblematic of increasingly
prevalent efforts by the plaintiffs bar to use TCPA actions as "an
extortionist club."
Mr. Emanuel mounted the litigation in November 2012 after
attending a preseason game at the Staples Center in Los Angeles,
during which the Lakers displayed the following statement to fans
in the arena: "TEXT your message to 525377."
He sent a short message to the number, and the organization shot
back an unsolicited reply. After Mr. Emanuel texted "STOP" to
halt future messages, the Lakers sent him another unsolicited
confirmation text, the suit says.
Mr. Emanuel's suit seeks up to $1,500 in statutory damages for
himself and members of a proposed class.
A California federal judge tossed Mr. Emanuel's case in April,
finding that a "common sense" reading of the TCPA shows that the
plaintiff consented to receiving a confirmatory text from the
Lakers when he sent his message. Mr. Emanuel then brought the
case to the Ninth Circuit.
In a brief on Nov. 18, the Lakers argued that the two texts, sent
within moments of each other, were comparable to Emanuel making a
telephone call and receiving a prerecorded message on the other
end. This hypothetical is not a violation of the TCPA, and the
law doesn't subject text messages to "specialized, stricter
proscriptions," the team said.
The Lakers also argued that the use of an automated system is a
prerequisite for a TCPA claim, and the record in the case shows
that no such system was used to send the message to Mr. Emanuel.
Mr. Emanuel argued that he had not given his consent for a reply
message and that the text of the TCPA and the intent of Congress
in writing it clearly suggests that the act should apply to any
communication regardless of its context, except in emergencies.
He further claimed that the Lakers were wrongly attempting to
posit questions over alleged ambiguities in the act that they had
not attempted to raise at the district court level.
Twitter and Path weighed in on Nov. 22, saying in a joint amicus
brief that they have each been dragged into putative class actions
by plaintiffs seeking "windfall damages and coercive settlements"
as a result of text-related components of their services.
The companies noted that in the prior year more than 1,200 such
cases were filed against a vast array of defendants -- from banks
and debt collectors to social networking sites and retailers --
that go well beyond the abusive telemarketers originally targeted
by the law, according to the brief.
Representatives for the parties were not immediately available for
comment on Jan. 2.
Mr. Emanuel is represented by S. Abbas Kazerounian, Jason A. Ibey
and Matthew M. Loker of the Kazerouni Law Group APC and Joshua B.
Swigart of Hyde & Swigart.
The Lakers are represented Perrie M. Weiner --
perrie.weiner@dlapiper.com -- Joshua M. Briones --
joshua.briones@dlapiper.com -- and Esteban Morales --
esteban.morales@dlapiper.com -- of DLA Piper.
The case is David M. Emanuel v. The Los Angeles Lakers Inc., case
number 13-55678, in the U.S. Court of Appeals for the Ninth
Circuit.
MAIDENFORM BRANDS: Sued for Falsely Representing Shapewears
-----------------------------------------------------------
Christina Caramore and Michelle Martin, individually and on behalf
of all others similarly situated v. Maidenform Brands, Inc. and
Wacoal America, Inc., Case No. 2:13-cv-06122-LDW-GRB (E.D.N.Y.,
November 5, 2013) alleges, among other things, that:
* Wacoal misrepresents that its "anti-cellulite iPant" will
promote fat destruction; and
* Maidenform misrepresents that its "instant slimmer"
shapewear "fights against cellulite."
Maidenform Brands, Inc. is a Delaware corporation headquartered in
Iselin, New Jersey. Wacoal America, Inc. is a New Jersey
corporation headquartered in Lyndhurst, New Jersey.
Maidenform and Wacoal manufacture, market and sell "shapewear,"
which has been defined as undergarments for women who want a
flawless, bulge-free silhouette. Maidenform and Wacoal use
shapewear fabric produced by Nurel, S.A., a Spanish company
located in Zaragoza, Spain, claiming the fabric is constructed
with minerals and nutrients that are absorbed by the skin and can
permanently change women's body shape and skin tone.
The Plaintiffs are represented by:
Andres F. Alonso, Esq.
ALONSO KRANGLE LLP
445 Broad Hollow Road, Suite 205
Melville, NY 11747
Telephone: (516) 350-5555
Facsimile: (516) 350-5554
E-mail: aalonso@alonsokrangle.com
- and -
Elizabeth A. Fegan, Esq.
Thomas E. Ahlering, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1144 W. Lake Street, Suite 400
Oak Park, IL 60301
Telephone: (708) 628-4960
Facsimile: (708) 628-4950
E-mail: beth@hbsslaw.com
toma@hbsslaw.com
- and -
Steve W. Berman, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 8th Ave.
Seattle, WA 98101
Telephone: (206) 623-7292
E-mail: steve@hbsslaw.com
The Defendants are represented by:
Jessica Kaufman, Esq.
MORRISON & FOERSTER
1290 Avenue of the Americas, 41st Floor
New York, NY 10104
Telephone: (212) 336-4257
Facsimile: (212) 468-7900
E-mail: jkaufman@mofo.com
NOVARTIS AG: Faces Consumer Class Action in New Jersey
------------------------------------------------------
Jeff Sistrunk, writing for Law360, reports that Novartis AG was
hit with a proposed consumer class action in New Jersey federal
court on Dec. 31 claiming the Swiss pharmaceutical giant sells a
popular over-the-counter migraine medication at a higher price
than an identical product marketed under a different name.
Named plaintiff Kerri Yingst alleges that Novartis sells the
painkiller Excedrin Migraine at a higher price than Excedrin Extra
Strength, which has an identical formulation and dosage.
Ms. Yingst, of Cherry Hill, N.J., bought Excedrin Migraine
repeatedly during the past eight years to treat her recurrent
migraines, according to the class action complaint.
"Defendants' conduct is a proximate cause of plaintiff's and the
class members' injuries because they paid a price premium due to
defendants' unconscionable practice of selling Excedrin Migraine
at a premium over the pharmacologically identical product,
Excedrin Extra Strength," the complaint said.
The suit accuses Novartis of unjust enrichment and violations of
the New Jersey Consumer Fraud Act.
According to the complaint, former Excedrin manufacturer Bristol-
Myers Squibb Co. in 1998 obtained the U.S. Food and Drug
Administration's approval for Excedrin Migraine, which contains
the same amounts of acetaminophen, aspirin and caffeine as
Excedrin Extra Strength. Bristol-Myers said at the time that
Excedrin Migraine was given its own trademark and packaging to
provide specific information for migraine sufferers, but it sold
the migraine medication at the same wholesale price as Excedrin
Extra Strength, the complaint said.
Novartis purchased the Excedrin brand from Bristol-Myers in August
2005 and took over manufacture and sale of the products.
Ms. Yingst claims Novartis currently sells Excedrin Migraine and
Excedrin Extra Strength at different wholesale prices that reflect
a premium for the migraine version. For instance, the company
sells a 100-count package of Excedrin Migraine for $10.25
wholesale, compared to the $9.05 wholesale price for Excedrin
Extra Strength, according to the complaint.
The higher wholesale prices for Excedrin Migraine are reflected in
the prices retailers charge for the two products, Ms. Yingst
alleges.
"Plaintiff noticed that Excedrin Migraine and Excedrin Extra
Strength seemed to consist of identical ingredients in identical
quantities but believed that because Excedrin Migraine was sold at
a higher price, it was a more effective product for migraine
relief than Excedrin Extra Strength," the complaint said.
Ms. Yingst is seeking to represent a class of all people who have
purchased Excedrin Migraine at a higher price than Excedrin Extra
Strength on or after Aug. 1, 2005.
The suit seeks treble damages, an order directing Novartis to pay
restitution to the class members, attorneys' fees and court costs.
A Novartis representative was not immediately available for
comment on Jan. 2.
Ms. Yingst is represented by Todd D. Muhlstock of Baker Sanders
LLC and Eric Gibbs of Girard Gibbs LLP.
Counsel information for Novartis was not immediately available.
The case is Kerri Yingst v. Novartis AG et al., case number 2:13-
cv-07919, in the U.S. District Court for the District of New
Jersey.
NQ MOBILE: Faces "Gangaramani" Securities Class Suit in New York
----------------------------------------------------------------
Rajendra N. Gangaramani, Individually and on Behalf of All Others
Similarly Situated v. NQ Mobile Inc., Omar Khan, Henry Yu Lin and
Suhai Ji, Case No. 1:13-cv-07858-WHP (S.D.N.Y., November 5, 2013)
is brought on behalf of purchasers of NQ Mobile Inc. securities
between May 5, 2011, and October 24, 2013, inclusive, seeking to
pursue remedies under the Securities and Exchange Act of 1934.
The Defendants' statements made during the Class Period were
materially false and misleading because they failed to disclose or
indicate that, among other things, NQ's largest customer by far is
really NQ, the Plaintiff alleges.
NQ Mobile Inc. is a Beijing, China-based mobile Internet services
company. The Company is a leading global provider of mobile
Internet services, whose portfolio includes mobile security and
mobile games, as well as advertising for consumer market and
consulting. The Individual Defendants are directors and officers
of the Company.
The Plaintiff is represented by:
Brian Philip Murray, Esq.
Gregory Bradley Linkh, Esq.
GLANCY BINKOW & GOLDBERG LLP
122 East 42nd Street, Suite 2920
New York, NY 10168
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: bmurray@glancylaw.com
glinkh@glancylaw.com
- and -
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Robert Vincent Prongay, Esq.
Casey Edwards Sadler, Esq.
GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
mmgoldberg@glancylaw.com
rprongay@glancylaw.com
csadler@glancylaw.com
Movant NQ Investor Group is represented by:
Brian C. Kerr, Esq.
BROWER PIVEN, A PROFESSIONAL CORPORATION
488 Madison Avenue, Eight Floor
New York, NY
Telephone: (212) 501-9000
Facsimile: (212) 501-0300
E-mail: kerr@browerpiven.com
- and -
Stephen Douglas Bunch, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC (DC)
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
E-mail: dbunch@cohenmilstein.com
Movant NQ Mobile Investor Group is represented by:
Donald R. Hall, Jr., Esq.
KAPLAN FOX & KILSHEIMER LLP (NYC)
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
E-mail: dhall@kaplanfox.com
OCEANEERING INT'L: Sued by Hourly Offshore Workers Over Unpaid OT
-----------------------------------------------------------------
Theophalis J. Gaines, individually and on behalf of all others
similarly situated v. Oceaneering International, Inc., Case No.
3:13-cv-00408 (S.D. Tex., November 5, 2013) is a collective action
to recover unpaid overtime wages brought under the Fair Labor
Standards Act. The Putative Class Members are current and former
hourly offshore employees of Oceaneering.
The Plaintiff alleges that the Putative Class Members were
required to work "off the clock" and were not paid overtime for
all hours worked in excess of 40 hours a week in accordance with
the FLSA.
Oceaneering International, Inc. may be served with process by
serving its registered agent, CT Corporation System, in Dallas,
Texas.
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
FIBICH, HAMPTON, LEEBRON, BRIGGS &JOSEPHSON, L.L.P.
1150 Bissonnet
Houston, TX 77005
Telephone: (713) 751-0025
Facsimile: (713) 751-0030
E-mail: mjosephson@fhl-law.com
adunlap@fhl-law.com
- and -
Philip Bohrer, Esq.
BOHRER LAW FIRM, P.C.
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
E-mail: Phil@bohrerlaw.com
OFFICEMAX INC: Faces Suits in State, Federal Courts Over Merger
---------------------------------------------------------------
Officemax Incorporated faces shareholder lawsuits in the Circuit
Court of the Eighteenth Judicial Circuit of DuPage County,
Illinois and the United States District Court for the Northern
District of Illinois, Eastern Division in relation to its Merger
Transaction, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 28, 2013.
Eight putative class action lawsuits challenging the Merger
Transactions were filed on behalf of a putative class consisting
of OfficeMax stockholders.
Six lawsuits were filed in the Circuit Court of the Eighteenth
Judicial Circuit of DuPage County, Illinois (the "State Court"):
(i) Venkata S. Donepudi v. OfficeMax Incorporated, et al. (Case
Number 2013L000188), filed on February 25, 2013; (ii) Beth Koeneke
v. OfficeMax Incorporated, et al. (Case Number 2013CH000776),
filed on February 28, 2013; (iii) Marc Schmidt v. Saligram, et al.
(Case Number 2013MR000411), filed on March 13, 2013; (iv) The
Feivel & Helene Gottlieb Defined Benefit Pension Plan v. OfficeMax
Incorporated, et al. (Case Number 2013L000246), filed on March 14,
2013; (v) Norman Klumpp v. Bryant, et al. (Case Number
2013CH1107), filed on March 28, 2013; and (vi) J. David Lewis v.
OfficeMax Incorporated, et al. (Case Number 2013CH001123), filed
on March 29, 2013. The actions have been consolidated in Venkata
S. Donepudi v. OfficeMax Incorporated, et al. (Case Number
2013L000188) (the "State Action"). A consolidated amended class
action complaint was filed in the State Action on April 25, 2013.
Two lawsuits were filed in the United States District Court for
the Northern District of Illinois, Eastern Division: (i) Eric
Hollander v. OfficeMax Incorporated, et al. (Case Number 1:13-cv-
03330), filed on May 2, 2013; and (ii) Thomas and Beverly DeFabio
v. OfficeMax Incorporated, et al. (Case Number 1:13-cv-03385),
filed on May 6, 2013 (the "Federal Actions").
The State Action and the Federal Actions named OfficeMax, Office
Depot and the directors of OfficeMax, among others, as defendants.
Each of the lawsuits was brought by a purported holder or holders
of OfficeMax common stock, both individually and on behalf of a
putative class of OfficeMax stockholders. The lawsuits generally
alleged, among other things, that the directors of OfficeMax
breached their fiduciary duties to OfficeMax stockholders by
agreeing to a transaction with inadequate and unfair consideration
and pursuant to an inadequate and unfair process. The lawsuits
further allege that OfficeMax and Office Depot, among others,
aided and abetted the OfficeMax directors in the breach of their
fiduciary duties. In addition, the lawsuits alleged that the
disclosure in the definitive joint proxy statement/prospectus of
OfficeMax and Office Depot filed with the SEC on June 10, 2013 was
inadequate.
PARK AMERICA: Faces "Sanogo" Suit Alleging Violations of FLSA
-------------------------------------------------------------
Bazoumana Sanogo, on behalf of himself and all others similarly
situated, 6060 Crescentville Road, Apt. WC3, Philadelphia, PA
19120 v. Park America, Inc., One Bala Avenue, Suite 500, Bala
Cynwyd, PA 19004, Case No. 2:13-cv-06443-JD (E.D. Pa., November 5,
2013) alleges that the Defendant has improperly failed to pay the
Plaintiff overtime compensation pursuant to the requirements of
the Fair Labor Standards Act.
Park America, Inc., headquartered in Bala Cynwyd, Pennsylvania, is
a "private employer" and covered by the FLSA.
The Plaintiff is represented by:
Michael Patrick Murphy, Jr., Esq.
MURPHY LAW GROUP LLC
1760 Market St., Suite 1201
Philadelphia, PA 19103
Telephone: (215) 375-0961
E-mail: murphy@phillyemploymentlawyer.com
Park America, Inc. is represented by:
Julie Donahue, Esq.
OGLETREE DEAKINS NASH SMOAK & STEWART PC
1735 Market St., Suite 3000
Philadelphia, PA 19103
Telephone: (215) 995-2800
E-mail: julie.donahue@ogletreedeakins.com
QEP ENERGY: $115M Settlement of Royalty Owners Suit Approved
------------------------------------------------------------
The U.S. District Court for the Western District of Oklahoma has
issued its order finally approving a $115.0 million settlement of
the case Chieftain Royalty Company v. QEP Energy Company, Case No
CIV-11-0212-R, according to QEP Resources, Inc.'s Nov. 5, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Sept. 30, 2013.
This statewide class action was filed in January 2011 on behalf of
QEP's Oklahoma royalty owners asserting various claims for damages
related to royalty valuation on all of QEP's Oklahoma wells
operated by QEP or from which QEP marketed gas. These claims
include breach of contract, breach of fiduciary duty, fraud,
unjust enrichment, tortious breach of contract, conspiracy, and
conversion, based generally on asserted improper deduction of
post-production costs.
The Court certified the class as to the breach of contract, breach
of fiduciary duty and unjust enrichment claims. The parties
successfully mediated the case in January 2013. On February 13,
2013, the parties executed a Stipulation and Agreement of
Settlement (the Chieftain Settlement Agreement) providing for a
cash payment from QEP to the class in the amount of $115.0
million. In consideration for the settlement payment, QEP received
a full release of all claims regarding the calculation, reporting
and payment of royalties from the sale of natural gas and its
constituents for all periods prior to February 28, 2013, and all
class members are enjoined from asserting claims related to such
royalties. As part of the Chieftain Settlement Agreement, the
parties also agreed on the methodology for the calculation and
payment of future royalties payable by QEP, or its successors and
assigns, under all class leases for the life of such leases. On
May 31, 2013, the Court issued its order approving the settlement,
which is now final.
RETAIL PROPERTIES: Still Faces Shareholder Suits in Illinois
------------------------------------------------------------
Retail Properties of America, Inc. continues to face shareholder
suits in the U.S. District Court in the Northern District of
Illinois, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
As disclosed in the Company's Annual Report on Form 10-K for the
year ended December 31, 2012, in 2012, certain shareholders of the
Company filed putative class action lawsuits against the Company
and certain of its officers and directors, which are currently
pending in the U.S. District Court in the Northern District of
Illinois. The lawsuits allege, among other things, that the
Company's directors and officers breached their fiduciary duties
to the shareholders and, as a result, unjustly enriched the
Company and the individual defendants. The lawsuits further allege
that the breaches of fiduciary duty led certain shareholders to
acquire additional stock and caused the shareholders to suffer a
loss in share value, all measured in some manner by reference to
the Company's 2012 offering price when it listed its shares on the
NYSE. The lawsuits seek unspecified damages and other relief.
RIGEL PHARMACEUTICALS: Securities Suit in California Dismissed
--------------------------------------------------------------
Rigel Pharmaceuticals, Inc. has been subject to class action
lawsuits in the past, including a securities class action lawsuit
commenced in the United States District Court for the Northern
District of California in February 2009, that was recently
dismissed, according to the company's Nov. 5, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Sept. 30, 2013.
SELECT PORTFOLIO: Class Seeks Redress From Unlawful Collection
--------------------------------------------------------------
Harold Khan and Deborah Kahn, on behalf of plaintiffs and all
others similarly situated v. Select Portfolio Servicing, Inc.,
Case No. 1:13-cv-07862 (S.D.N.Y., November 5, 2013) is brought to
secure redress from alleged unlawful collection practices that
violates the Fair Debt Collection Practices Act.
The Kahns contend that the Company has been attempting to enforce
against them a residential mortgage loan entered into for
personal, family or household purposes, namely, housing. They
argue that at no time did the Company provide them with the
disclosures required by the FDCPA.
Select Portfolio Servicing, Inc., is a Utah corporation
headquartered in Salt Lake City, Utah. The Company is engaged in
the business of servicing residential mortgage loans.
The Plaintiffs are represented by:
Abraham Kleinman, Esq.
KLEINMAN, LLC
626 RXR Plaza
Uniondale, NY 11556-0626
Telephone: (516) 522-2621
Facsimile: (888) 522-1692
- and -
Tiffany N. Hardy, Esq.
EDELMAN, COMBS, LATTURNER & GOODWIN LLC
120 S. LaSalle, Suite 1800
Chicago, IL 60603
Telephone: (312) 739-4200
Facsimile: (312) 419-0379
SEMPRA ENERGY: Sept. 2014 Trial Set in Wildfire Litigation
----------------------------------------------------------
A September 26, 2014 trial has been set in relation to the 2007
Wildfire Litigation arising from fires allegedly caused by power
lines of San Diego Gas & Electric Company, according to the
company's Nov. 5, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2013.
In October 2007, San Diego County experienced several catastrophic
wildfires. Reports issued by the California Department of Forestry
and Fire Protection (Cal Fire) concluded that two of these fires
(the Witch and Rice fires) were SDG&E "power line caused" and that
a third fire (the Guejito fire) occurred when a wire securing a
Cox Communications' (Cox) fiber optic cable came into contact with
an SDG&E power line "causing an arc and starting the fire." Cal
Fire reported that the Rice fire burned approximately 9,500 acres
and damaged 206 homes and two commercial properties, and the Witch
and Guejito fires merged and eventually burned approximately
198,000 acres, resulting in two fatalities, approximately 40
firefighters injured and an estimated 1,141 homes destroyed.
A September 2008 staff report issued by the CPUC's CPSD reached
substantially the same conclusions as the Cal Fire reports, but
also contended that the power lines involved in the Witch and Rice
fires and the lashing wire involved in the Guejito fire were not
properly designed, constructed and maintained. In April 2010,
proceedings initiated by the CPUC to determine if any of its rules
were violated were settled with SDG&E's payment of $14.75 million.
Numerous parties have sued SDG&E and Sempra Energy in San Diego
County Superior Court seeking recovery of unspecified amounts of
damages, including punitive damages, from the three fires. These
include owners and insurers of properties that were destroyed or
damaged in the fires and government entities seeking recovery of
firefighting, emergency response, and environmental costs. They
assert various bases for recovery, including inverse condemnation
based upon a California Court of Appeal decision finding that
another California investor-owned utility was subject to strict
liability, without regard to foreseeability or negligence, for
property damages resulting from a wildfire ignited by power lines.
In October 2010, the Court of Appeal affirmed the trial court's
ruling that these claims must be pursued in individual lawsuits,
rather than as class actions on behalf of all persons who incurred
wildfire damages. In February 2011, the California Supreme Court
denied a petition for review of the affirmance. A trial has been
set for September 26, 2014.
SEMPRA ENERGY: Dismissal of Suit Over Power Outage Appealed
-----------------------------------------------------------
Customers of San Diego Gas & Electric Company appealed the
dismissal of a suit they filed over a power outage that affected
people from Mexico to southern Orange County, California,
according to the company's Nov. 5, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2013.
In September 2011, a power outage lasting approximately 12 hours
affected millions of people from Mexico to southern Orange County,
California. Within several days of the outage, several SDG&E
customers filed a class action lawsuit in Federal District Court
in San Diego against Arizona Public Service Company, Pinnacle
West, and SDG&E alleging that the companies failed to prevent the
outage. The lawsuit seeks recovery of unspecified amounts of
damages, including punitive damages. In July 2012, the court
granted SDG&E's motion to dismiss the punitive damages request and
dismissed Arizona Public Service Company and Pinnacle West from
the lawsuit. In September 2013, the court granted SDG&E's motion
for summary judgment and dismissed the lawsuit. In October 2013,
the plaintiffs appealed the court's dismissal of their action.
The FERC and North American Electric Reliability Corporation
(NERC) conducted a joint inquiry to determine the cause of the
power failure and issued a report in May 2012 regarding their
findings. The report does not make any findings of failure on
SDG&E's part that led to the power failure. However, this report
is not dispositive on any potential liability of SDG&E related to
the events of that power outage.
More than 7,000 customers' claims, primarily related to food
spoilage, have been submitted directly to SDG&E.
TARGET CORP: 40 Suits Over Data Breach at End 2013
--------------------------------------------------
Randy J. Maniloff, Esq. -- maniloffr@whiteandwilliams.com -- at
White and Williams LLP, in an article for The Wall Street Journal,
said that at the end of 2013, about 40 suits seeking class-action
status have been filed against Target in federal courts around the
country over the theft of certain customers' personal information.
The theft allegedly occurred between Nov. 27 and Dec. 15 when
customers' cards were swiped through the retailer's point-of-sale
terminals. Seven were filed on Dec. 19, the same day the company
disclosed the data breach.
Class-action plaintiffs demand that they be provided with credit-
monitoring services. Target already has stated that it will offer
free credit monitoring to everyone who was affected by the
security breach.
Some plaintiffs are seeking punitive damages from Target.
TAX MASTER XPRESS: Faces "Plasencia" Suit for FLSA Violations
-------------------------------------------------------------
Andrea Plasencia and Juan Carlos Pacheco v. Tax Master Xpress
Services Inc., a Florida corporation, and Jacqueline Nunez,
individually, Case No. 0:13-cv-62423-WPD (S.D. Fla., November 5,
2013), alleges violations of the Fair Labor Standards Act.
The Plaintiffs seek unpaid overtime wages, liquidated damages or
pre-judgment interest, post-judgment interest, reasonable
attorney's fee and costs from the Defendants. The Plaintiff also
requests the Court to authorize concurrent notice to all persons,
who were formerly employed by the Defendant or who were so
employed during the Liability Period, informing them of the
pendency of this action and their right to opt into this lawsuit
pursuant to the FLSA.
Tax Master is a Florida corporation. Jacqueline Nunez is a
resident of Florida, who owned and operated Tax Master, where the
Plaintiffs were employed.
The Plaintiffs are represented by:
Brian J. Militzok, Esq.
MILITZOK & LEVY, P.A.
The Yankee Clipper Law Center
3230 Stirling Road, Suite 1
Hollywood, FL 33021
Telephone: (954) 727-8570
Facsimile: (954) 241-6857
E-mail: bjm@mllawfl.com
TEAM ENTERPRISES: Fails to Pay Brand Ambassadors' OT, Suit Says
---------------------------------------------------------------
Emily Downs, individually and on behalf of all others similarly
situated v. Team Enterprises, LLC, a Florida limited liability
corporation; MDC Partners, Inc., a New York corporation; and Does
1-10, inclusive, Case No. 2:13-cv-08201-PA-PJW (C.D. Cal.,
November 5, 2013) alleges that the Plaintiff and other similarly
situated "brand ambassadors" were denied proper compensation as
required by state and federal wage and hour laws.
During the Collective Period and the California Class Period, the
Defendants failed to pay overtime compensation to her and each
member of the putative classes as required by federal and state
law, Ms. Downs contends.
Team Enterprises, LLC is a Florida limited liability corporation
headquartered in Ft. Lauderdale, Florida. MDC Partners, Inc. is a
New York corporation headquartered in New York. Team and MDC are
in the business of marketing and promoting specific brands of
products on behalf of clients, who own or sell those products.
The true names and capacities of the Doe Defendants are presently
unknown to the Plaintiff.
The Plaintiff is represented by:
Wayne S. Kreger, Esq.
LAW OFFICES OF WAYNE S. KREGER, PA
100 Wilshire Boulevard, Suite 950
Santa Monica, CA 90401
Telephone: (310) 917-1083
Facsimile: (310) 917-1001
E-mail: wayne@kregerlaw.com
- and -
GianDominic Vitiello, Esq.
Michael T. Karikomi, Esq.
KATCHKO, VITIELLO & KARl KOMI, PC
11500 W. Olympic Blvd., Suite 400
Los Angeles, CA 90064
Telephone: (310) 943-9587
Facsimile: (310) 444-3001
E-mail: gdvitiello@kvklawyers.com
mkarikomi@kvklawyers.com
TELLABS INC: Faces "Lambert" Suit Over Acquisition by Marlin
------------------------------------------------------------
Kerry Lambert, On Behalf of Himself and All Others Similarly
Situated v. Tellabs, Inc., Vincent H. Tobkin, Bo Hedfors, Frank
Ianna, Vincent D. Kelly, Michael E. Lavin, Stephanie Pace
Marshall, Alex Mashinsky, Gregory J. Rossmann, Dennis F. Strigl,
Jan H. Suwinski, Mikel H. Williams, Marlin Equity Partners,
Blackhawk Holding Vehicle, LLC, and Blackhawk Merger Sub Inc.,
Case No. 1:13-cv-07945 (N.D. Ill., November 5, 2013) is a
stockholder class action brought on behalf of holders of the
common stock of Tellabs, Inc. to enjoin the acquisition of the
publicly owned shares of Tellabs by Marlin Equity Partners through
its wholly-owned subsidiaries Blackhawk Holding Vehicle, LLC
("Holdco") and Blackhawk Merger Sub Inc. ("Merger Sub").
The Proposed Transaction offers substantial liquidity, and if the
transaction closes, Dialectic Capital Management, Tellabs' lead
activist stockholders; Michael J. Birck, Tellabs' second largest
stockholder and co-founder of the Company; its Board of Directors;
and senior management will receive approximately $110 million of
their investment in Tellabs without causing a run in Tellabs
stock, Mr. Lambert alleges. Thus, he asserts, the Board was not
interested in maximizing stockholder value.
Tellabs is a Delaware corporation headquartered in Naperville,
Illinois. Tellabs designs, develops, and supports
telecommunication networking products for communication service
providers domestically and internationally. The Company serves
wireline and wireless service providers, multiple system
operators, and competitive service providers, as well as
distributors, original equipment manufacturers, system
integrators, and government agencies. The Individual Defendants
are directors and officers of the Company.
Marlin Equity Partners is a global investment firm with over $2.6
billion of capital under management. Marlin primarily invests in
businesses that are in the process of undergoing varying degrees
of operational, financial, or market-driven change. Holdco is a
Delaware limited liability company and is a subsidiary of Marlin.
Merger Sub is a Delaware corporation and a wholly-owned subsidiary
of Holdco. Upon completion of the Proposed Transaction, Merger
Sub will merge with and into Tellabs and will cease to exist as a
separate corporate entity.
The Plaintiff is represented by:
Katrina Carroll, Esq.
LITE DEPALMA GREENBERG, LLC
One South Dearborn, Suite 2100
Chicago, IL 60603
Telephone: (312) 212-4383
Facsimile: (312) 212-5919
E-mail: kcarroll@litedepalma.com
- and -
Juan E. Monteverde, Esq.
FARUQI & FARUQI, LLP
369 Lexington Ave., Tenth Floor
New York, NY 10017
Telephone: (212) 983-9330
Facsimile: (212) 983-9331
E-mail: jmonteverde@faruqilaw.com
The Tellabs Defendants are represented by:
David F. Graham, Esq.
James Wallace Ducayet, Esq.
Kathleen Louise Carlson, Esq.
Melanie Elizabeth Walker, Esq.
Rachel B. Niewoehner, Esq.
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
Telephone: (312) 853-7000
E-mail: dgraham@sidley.com
jducayet@sidley.com
kathleen.carlson@sidley.com
mewalker@sidley.com
rniewoehner@sidley.com
The Marlin Defendants are represented by:
John Michael Touhy, Esq.
David Michael Friebus, Esq.
BAKER & HOSTETLER LLP
191 North Wacker Drive, #3100
Chicago, IL 60606
Telephone: (312) 416-6227
E-mail: jtouhy@bakerlaw.com
dfriebus@bakerlaw.com
- and -
Frank Joseph Lasalle, Esq.
Michael E. Swartz, Esq.
William H Gussman, Jr., Esq.
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, NY 10022
Telephone: (212) 756-2228
E-mail: frank.lasalle@srz.com
michael.swartz@srz.com
bill.gussman@srz.com
TEXAS ROADHOUSE: Accused of Not Paying Prep Cooks' Overtime Wages
-----------------------------------------------------------------
Rosa Vela, on behalf of herself and all others similarly situated
v. Texas Roadhouse of Fort Myers, FL, LLC, a Foreign Limited
Liability Company, and Texas Roadhouse Holdings LLC, a Foreign
Limited Liability, Case No. 2:13-cv-00784-JES-UAM (M.D. Fla.,
November 5, 2013) accuses the Defendants of failing to pay minimum
wages and overtime to Prep Cooks, who worked at Texas Roadhouse.
In an effort to reduce labor costs, the Defendants orchestrated a
common policy and practice of not paying Prep Cooks for all hours
worked, Ms. Vela alleges. She adds that the Defendants' illegal
practices have cost their Prep Cooks potentially thousands of
dollars of compensation and related damages.
Texas Roadhouse of Fort Myers, FL, LLC, is a Foreign Limited
Liability Company headquartered in Louisville, Kentucky. Texas
Roadhouse Holdings LLC is a Foreign Limited Liability
headquartered in Louisville, Kentucky.
The Plaintiff is represented by:
Bill B. Berke, Esq.
BERKE LAW FIRM, P.A.
1003 Del Prado Blvd., Suite 300
Cape Coral, FL 33990
Telephone: (239) 549-6689
Facsimile: (239) 549-3331
E-mail: Berkelaw@yahoo.com
The Defendants are represented by:
John F. Potanovic, Jr., Esq.
HENDERSON, FRANKLIN, STARNES & HOLT, PA
1715 Monroe St.
PO Box 280
Ft Myers, FL 33902-0280
Telephone: (239) 344-1118
Facsimile: (239) 344-1590
E-mail: john.potanovic@henlaw.com
- and -
Kevin M. Young, Esq.
Rebecca P. Bromet, Esq.
SEYFARTH SHAW LLP
131 S. Dearborn Street, Suite 2400
Chicago, IL 60603-5577
Telephone: (312) 460-5000
Facsimile: (312) 460-7000
E-mail: kyoung@seyfarth.com
rbromet@seyfarth.com
UNITED PARCEL: Still Faces Lawsuit by Group of Franchisees
----------------------------------------------------------
United Parcel Service, Inc. continues to face claims of the
certified class of franchisees who did participate in the
rebranding of The UPS Store franchises, according to the company's
Nov. 5, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Sept. 30, 2013.
UPS and the company's subsidiary Mail Boxes Etc., Inc. are
defendants in a lawsuit in California Superior Court about the
rebranding of The UPS Store franchises. In the Morgate case, the
plaintiffs are (1) 125 individual franchisees who did not rebrand
to The UPS Store and (2) a certified class of all franchisees who
did rebrand. With respect to the 125 individual franchisees
described in (1), the trial court entered judgment against a
bellwether individual plaintiff, which was affirmed in January
2012. In March 2013, the company reached a settlement in
principle with the remaining individual plaintiffs who did not
rebrand. The company believes this settlement will not have a
material adverse effect on the company's financial condition,
results of operations or liquidity. The trial court granted the
company's motion for summary judgment against the certified class,
which was reversed in January 2012. The company has not reached a
settlement with this class of franchisees, and the claims of the
class remain pending.
UNITED PARCEL: Faces Remaining Suit Over Brokerage in Canada
------------------------------------------------------------
United Parcel Service, Inc. faces one remaining claim over allege
inadequate disclosure concerning the existence and cost of its
brokerage services in Canada, according to the company's Nov. 5,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Sept. 30, 2013.
In Canada, four purported class-action cases were filed against
the company in British Columbia (2006); Ontario (2007) and Quebec
(2006 and 2013). The cases each allege inadequate disclosure
concerning the existence and cost of brokerage services provided
by the company under applicable provincial consumer protection
legislation and infringement of interest restriction provisions
under the Criminal Code of Canada. The British Columbia class
action was declared inappropriate for certification and dismissed
by the trial judge. That decision was upheld by the British
Columbia Court of Appeal in March 2010, which ended the case in
the company's favor.
The Ontario class action was certified in September 2011. Partial
summary judgment was granted to the company and the plaintiffs by
the Ontario motions court. The complaint under the Criminal Code
was dismissed. No appeal is being taken from that decision. The
allegations of inadequate disclosure were granted and the company
is appealing that decision. The motion to authorize the 2006
Quebec litigation as a class action was dismissed by the motions
judge in October 2012; there was no appeal, which ended that case
in the company's favor. The 2013 Quebec litigation also has been
dismissed. The company denies all liability and are vigorously
defending the one outstanding case in Ontario.
UNITED PARCEL: Objections in N.Y. Price-Fixing Lawsuit Pending
--------------------------------------------------------------
The objections of United Parcel Service, Inc. to the
recommendations of the Magistrate Judge to dismiss UPS's motion
with respect to claims in a price-fixing suit be denied are
pending, according to the company's Nov. 5, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Sept. 30, 2013.
In January 2008, a class action complaint was filed in the United
States District Court for the Eastern District of New York
alleging price-fixing activities relating to the provision of
freight forwarding services. UPS was not named in this case. In
July 2009, the plaintiffs filed a First Amended Complaint naming
numerous global freight forwarders as defendants. UPS and UPS
Supply Chain Solutions are among the 60 defendants named in the
amended complaint. The plaintiffs filed a Second Amended Complaint
in October 2010, which the company moved to dismiss. In August
2012, the Court granted the company's motion to dismiss all claims
relevant to UPS in the Second Amended Complaint, with leave to
amend. The plaintiffs filed a Third Amended Complaint in November
2012. The company filed another motion to dismiss.
On September 20, 2013, the Magistrate Judge recommended to the
Court that UPS be dismissed from one of the claims in the Third
Amended Complaint, with prejudice, but recommended that UPS's
motion to dismiss with respect to other claims in the Third
Amended Complaint be denied. UPS and other defendants filed
objections to the recommendations of the Magistrate Judge to the
extent they recommended denial of UPS's motion to dismiss. Those
objections are currently pending before the Court.
USCB INC: Harassed Class Using Prerecorded Calls, Suit Claims
-------------------------------------------------------------
Brenda Jonsson, individually and on behalf of all others similarly
situated v. USCB, Inc. a California corporation d/b/a USCB
America, Case No. 2:13-cv-08166-FMO-SH (C.D. Cal., November 5,
2013) is brought on behalf of against the Defendant for its
practice of using an automatic telephone dialing system to call
cell phones with an artificial and prerecorded voice, in violation
of the Telephone Consumer Protection Act, as well as for the
harassing and unfair effect of those calls on the Plaintiff and
others, in violation of the Fair Debt Collection Practices Act.
The Plaintiff contends that she has received numerous, harassing
autodialed and artificial and prerecorded voice calls from the
Defendant despite directly requesting that those calls stop.
USCB, Inc., also known as USCB America, is a California
corporation headquartered in Los Angeles. USCB is a debt
collector because it regularly uses the instrumentalities of
interstate commerce to collect or attempt to collect consumer
debts.
The Plaintiff is represented by:
Amir J. Goldstein, Esq.
LAW OFFICES OF AMIR J. GOLDSTEIN
5455 Wilshire Blvd., Suite 1812
Los Angeles, CA 90036
Telephone: (323) 937-0400
Facsimile: (866) 288-9194
E-mail: ajg@consumercounselgroup.com
- and -
Lance A. Raphael, Esq.
Stacy M. Bardo, Esq.
Michael S. Hilicki, Esq.
THE CONSUMER ADVOCACY CENTER, P.C.
180 West Washington Street, Suite 700
Chicago, IL 60602
Telephone: (312) 782-5808
Facsimile: (312) 377-9930
E-mail: lance@caclawyers.com
stacy@caclawyers.com
mike@caclawyers.com
- and -
Daniel J. Marovitch, Esq.
MAROVITCH LAW FIRM, LLC
233 South Wacker Drive, 84th Floor
Chicago, IL 60606
Telephone: (312) 533-1605
Facsimile: (312) 488-4206
E-mail: dmarovitch@marovitchlaw.com
The Defendant is represented by:
Gabe P. Wright, Esq.
KLINEDINST PC
501 West Broadway Suite 600
San Diego, CA 92101
Telephone: (619) 239-8131
Facsimile: (619) 238-8707
E-mail: gwright@klinedinstlaw.com
VITO'S GOURMET: Never Paid Extra Half Time OT Rate, Suit Claims
---------------------------------------------------------------
Silvio Miguel Pinto and all others similarly situated under 29
U.S.C. 216(B) v. Vito's Gourmet Pizza, LLC and Mark Maffei, Case
No. 0:13-cv-62429-JAL (S.D. Fla., November 5, 2013) alleges that
between the period from November 5, 2010, through December 23,
2012, the Plaintiff worked an average of 57 hours a week for the
Defendants but was never paid the extra half time rate for any
hours worked over 40 hours in a week as required by the Fair Labor
Standards Act.
Vito's Gourmet Pizza, LLC is a limited liability company that
regularly transacts business within Broward County. Mark Maffei
is a corporate officer, owner or manager of the Company.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
Daniel T. Feld, Esq.
J. H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: (305) 865-7167
E-mail: ZABOGADO@AOL.COM
DanielFeld.Esq@Gmail.com
WEST CORPORATION: Accused of Allowing Reps to Work Off the Clock
----------------------------------------------------------------
Valerie Hess and Ethel Quisler, on their own behalf and on behalf
of a class of similarly situated employees of defendant v. West
Corporation, a Delaware corporation, Case No. 3:13-cv-00777-slc
(W.D. Wis., November 5, 2013) is brought on behalf of current and
former hourly customer care representatives of West Corporation,
for purposes of obtaining relief under the Fair Labor Standards
Act A for unpaid wages, unpaid overtime compensation, liquidated
damages, costs, attorneys' fees, and declaratory and injunctive
relief.
The unlawful compensation system at issue in this Complaint
affects West's hourly customer care representatives, who
work/worked at West's call center in Wausau, Wisconsin, the
Plaintiffs assert. They contend that West uniformly suffered or
permitted those hourly customer care representatives to perform
certain work "off the clock." They note that this practice was
deliberate, and had the effect of denying those employees
compensation for all hours worked, including "off the clock" work
which was in excess of 40 hours a week.
West Corporation is a Delaware corporation headquartered in Omaha,
Nebraska, and does business in the state of Wisconsin. West is a
leading communication services provider to businesses, with over
26,000 employees worldwide.
The Plaintiffs are represented by:
Peter G. Cogan, Esq.
LAW OFFICES OF PETER G. COGAN
119 First Ave. S., Suite 500
Seattle, WA 98104
Telephone: (206) 382-9896
Facsimile: (206) 682-3002
E-mail: coganlaw@yahoo.com
- and -
Anne-Marie E. Sargent, Esq.
Stephen Patrick Connor, Esq.
CONNOR & SARGENT PLLC
1000 Second Avenue, Suite 3500
Seattle, WA 98104
Telephone: (206) 654-5050
Facsimile: (206) 292-0494
E-mail: aes@cslawfirm.net
steve@cslawfirm.net
WILLIAM BEAUMONT: Faces "McBride" Suit Over Unpaid Overtime Wages
-----------------------------------------------------------------
Bernice McBride & Alesia Lee, individually, and on behalf of those
similarly situated v. William Beaumont Hospital, Case No. 2:13-cv-
14605-BAF-MAR (E.D. Mich., November 5, 2013) alleges violations of
the overtime pay provisions of the Fair Labor Standards Act of
1938.
The Defendant's failure to pay one and one half times the
employee's regular hourly wage for each hour or part of an hour,
which the employee worked in excess of 40 in one workweek
("overtime pay") to the Plaintiffs and the Members of the Class is
a willful violation of the FLSA, the Plaintiffs argue.
William Beaumont Hospital's principal place of business is in
Royal Oak, in Oakland County, Michigan. The Defendant is engaged
in the operation of a hospital that provides health care services
throughout the metropolitan Detroit area.
The Plaintiffs are represented by:
Roy W. Harris Jr., Esq.
BIESECKER & DUTKANYCH, PLLC
100 West Big Beaver Road, Suite 200
Troy, MI 48084
Telephone: (248) 524-0336
E-mail: rharris@bdlegal.com
The Defendant is represented by:
Heather M. Kern, Esq.
MCDONALD HOPKINS
600 Superior Avenue, E., Suite 2100
Cleveland, OH 44114
Telephone: (216) 348-5400
Facsimile: (216) 348-5474
E-mail: hkern@mcdonaldhopkins.com
- and -
James J. Boutrous, II, Esq.
Miriam L. Rosen, Esq.
MCDONALD HOPKINS
39533 Woodward Avenue, Suite 318
Bloomfield Hills, MI 48304
Telephone: (248) 220-1355
Facsimile: (248) 646-5075
E-mail: jboutrous@mcdonaldhopkins.com
mrosen@mcdonaldhopkins.com
Asbestos Litigation
ASBESTOS UPDATE: In Personam Part of EPA Suit v. Alsol Not Barred
-----------------------------------------------------------------
New Jersey District Judge Katharine S. Hayden granted two
contested motions in the case, UNITED STATES OF AMERICA,
Plaintiff, v. ALSOL CORPORATION; SB BUILDING ASSOCIATES, LIMITED
PARTNERSHIP; SB BUILDING GP, L.L.C.; UNITED STATES LAND RESOURCES,
L.P.; UNITED STATES REALTY RESOURCES, INC.; LAWRENCE S. BERGER;
3.60 ACRES OF LAND Defendants, Civil No. 13-0380 (KSH)(D.N.J.).
In one motion, the United States of America requests an order
declaring that the in personam portion of its present lawsuit
against certain of the defendants is not subject to the "automatic
stay" provision of the United States Bankruptcy Code. In the
other, the defendants seek to overturn the default earlier entered
against them.
In January 2013, the government filed suit against defendants
Alsol; SB-LP; SB-GP; Land Resources; Realty Resources; Lawrence S.
Berger; and a piece of property -- "3.60 Acres of Land, more or
less" -- in Middlesex County. The gist of the suit, brought under
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), is that the defendants -- interconnected
or alter-ego corporations that share Berger as a decision-maker or
partner -- owe millions of dollars to the Environmental Protection
Agency for hazards at the Middlesex property, which required the
EPA to undertake "response" actions as defined by 42 U.S.C. Sec.
9601(25). The property, which the complaint divides into separate
"Sites," is "part of the former Michelin Tire industrial
facility." As an example of the claims alleged, the government
contends with regard to the "Powerhouse Site" that a circa-2004
"Removal Site Evaluation" uncovered hazardous materials "such as
friable asbestos, arsenic, lead, and mercury."
In an opinion dated Jan. 2, 2014, available at http://is.gd/zwYRly
from Leagle.com, Judge Hayden ruled that the automatic bankruptcy
stay does not bar the government's suit. Judge Hayden also
vacated the default against the defendants, with specific
conditions. The default is not yet cured because the defendants
have failed to attach or otherwise file a proposed answer. By
accompanying order, the defendants are required to submit their
proposed answer within 10 days of the entry of the order
accompanying the Court's opinion. In the event they fail to do so,
the government may request that default be reinstated as to the
named defendants and move for default judgment pursuant to Fed. R.
Civ. P. 55.
Morristown, New Jersey-based Alsol Corporation filed a voluntary
petition under Chapter 11 of the Bankruptcy Code (Bankr. D.N.J.
Case No. 13-12689) on Feb. 11, 2013. The case is assigned to
Judge Rosemary Gambardella. Alsol's petition disclosed $1 million
to $10 million in assets and liabilities. The Debtor is
represented by Morris S. Bauer, Esq. -- msbauer@nmmlaw.com -- at
Norris McLaughlin & Marcus, in Bridgewater, New Jersey.
ASBESTOS UPDATE: Judge Pegs Garlock PI Liability at $125MM
----------------------------------------------------------
Judge George Hodges of the United States Bankruptcy Court for the
Western District of North Carolina on Friday, Jan. 10, 2014,
entered an order estimating the liability for present and future
mesothelioma claims against EnPro Industries' Garlock Sealing
Technologies LLC subsidiary at $125 million, consistent with the
positions GST put forth at trial.
Garlock's expert witness, Dr. Charles E. Bates, set Garlock's
liability at $125 million. The expert witness for existing
asbestos claimants estimates the liability at $1.265 billion. The
expert for the future claimants representative pegs the claims at
$1.292 billion.
In his opinion, Judge Hodges notes, "The estimates of Garlock's
aggregate liability that are based on its historic settlement
values are not reliable because those values are infected with the
impropriety of some law firms and inflated by the cost of defense.
The best evidence of Garlock's aggregate responsibility is the
projection of its legal liability that takes into consideration
causation, limited exposure and the contribution of exposures to
other products. The court has determined that $125 million is
sufficient to satisfy Garlock's liability for the legitimate
present and future mesothelioma claims against it."
Judge Hodges's opinion follows the completion of an estimation
trial held in his court during July and August 2013. The judge's
estimate is for mesothelioma claims only. Additional amounts may
be necessary to resolve other disease claims and for trust
administration costs.
About 124,000 asbestos claims are pending against Garlock in state
and federal courts across the country. The Company says majority
of pending asbestos actions against it is stale and dormant --
almost 110,000 or 88% were filed more than four years ago and more
than 44,000 or 35% were filed more than 10 years ago.
Garlock has said in the Disclosure Statement explaining its
bankruptcy exit Plan that all asbestos claims must be paid in
full. Full payment enables the plan to allow continued ownership
by parent EnPro Industries Inc.
The Plan will create a trust to fund payment to present and future
asbestos claimants. For currently existing claims, the trust will
have insurance proceeds plus cash from Garlock together with a
promise from EnPro to provide up to $30 million over time. For
future claims, the trust will receive $60 million from Garlock
plus a secured promise by Garlock to supply an additional
$140 million. The promise will be secured by 51% of Garlock's
stock.
Lisa A. Rickard, president of the U.S. Chamber Institute for Legal
Reform, issued a statement on Friday's ruling: "Fraud and abuse
have plagued asbestos litigation for decades, as t[he] order by
Judge Hodges' makes clear. Plaintiffs' lawyers are manipulating
and withholding evidence, and Judge Hodges recognizes that this is
'a regular practice by many plaintiffs' firms.'
"The Garlock bankruptcy order underscores the need for federal and
state legislation to rein in asbestos litigation abuse. Because,
as Judge Hodges' states: 'It appears certain that more extensive
discovery would show more extensive abuse.'"
ILR seeks to promote civil justice reform through legislative,
political, judicial, and educational activities at the national,
state, and local levels.
The U.S. Chamber of Commerce is the world's largest business
federation representing the interests of more than 3 million
businesses of all sizes, sectors, and regions, as well as state
and local chambers and industry associations.
Daniel Fisher, writing for Forbes, reported that while Judge
Hodges declined to comment on the legality of the plaintiff
lawyers' tactics, his findings appear to support the fraud claims
EnPro made against several law firms. In those lawsuits, filed
under seal to comply with the judge's blanket confidentiality
order covering plaintiff medical records, Forbes reported, EnPro
accuses the lawyers of "double-dipping" by suing Garlock and then
making conflicting claims with trusts set up to administer claims
against bankrupt companies.
Forbes also reported that in a statement regarding the fraud
lawsuit against it, Dallas law firm Waters & Krause said Garlock
helped "cause the deaths of thousands of Navy veterans and
others."
In his decision, Judge Hodges held that Garlock's gaskets
contained relatively harmless chrysotile asbestos contained in
polymer and were unlikely to provide enough fibers to cause
mesothelioma, Forbes noted. According to the Forbes report, one
expert, Dr. David Weill of Stanford University, concluded that low
dose exposure to chrysotile from gaskets and packing would not
cause mesothelioma even over a lifetime of working with those
products. The plaintiffs' expert, Dr. William Longo, presented
results of a "work simulation" study that involved grinding and
abrading the gaskets with various methods to create dust, which he
failed to analyze for asbestos content. The judge dismissed
Longo's evidence as "pseudo-science at best."
The Forbes report also noted that Judge Hodges had allowed Garlock
to conduct discovery on 15 settled cases, and discovered plaintiff
lawyers had failed to disclose evidence in all 15. Garlock had
negotiated settlements in 99% of some 20,000 asbestos lawsuits,
the judge noted, but then as remaining defendants went bankrupt,
plaintiff lawyers escalated their demands at the same time as
evidence of other exposures "disappeared."
EnPro will hold a conference call at 9:00 a.m. Eastern Time today,
Jan. 13, to review Judge Hodges' opinion with investors and
discuss next steps in the process. Investors may join the call by
dialing (800) 851-4704 and the access code 30633099. The call will
also be webcast on the company's Web site,
http:/www.enproindustries.com/
EnPro Industries (NYSE: NPO) provides sealing products, metal
polymer and filament wound bearings, components and service for
reciprocating compressors, diesel and dual-fuel engines and other
engineered products for use in critical applications by industries
worldwide.
About Garlock Sealing
Headquartered in Palmyra, New York, Garlock Sealing Technologies
LLC is a unit of EnPro Industries, Inc. (NYSE: NPO). For more
than a century, Garlock has been helping customers efficiently
seal the toughest process fluids in the most demanding
applications.
On June 5, 2010, Garlock filed a voluntary Chapter 11 petition
(Bankr. W.D.N.C. Case No. 10-31607) in Charlotte, North Carolina,
to establish a trust to resolve all current and future asbestos
claims against Garlock under Section 524(g) of the U.S. Bankruptcy
Code. The Debtor estimated $500 million to $1 billion in assets
and up to $500 million in debts as of the Petition Date.
Affiliates The Anchor Packing Company and Garrison Litigation
Management Group, Ltd., also filed for bankruptcy.
Albert F. Durham, Esq., at Rayburn Cooper & Durham, P.A.,
represents the Debtor in their Chapter 11 effort. Garland S.
Cassada, Esq., at Robinson Bradshaw & Hinson, serves as counsel
for asbestos matters.
The Official Committee of Asbestos Personal Injury Claimants in
the Chapter 11 cases is represented by Travis W. Moon, Esq., at
Hamilton Moon Stephens Steele & Martin, PLLC, in Charlotte, NC,
Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New
York, and Trevor W. Swett III, Esq., Leslie M. Kelleher, Esq., and
Jeanna Rickards Koski, Esq., in Washington, D.C. 20005.
Joseph W. Grier, III, the Court-appointed legal representative for
future asbestos claimants, has retained A. Cotten Wright, Esq., at
Grier Furr & Crisp, PA, and Richard H. Wyron, Esq., and Jonathan
P. Guy, Esq., at Orrick, Herrington & Sutcliffe LLP, as his co-
counsel.
ASBESTOS UPDATE: Garlock Sues Prominent Law Firms for Fraud
-----------------------------------------------------------
Garlock Sealing Technologies LLC, et al., filed separate lawsuits
against four prominent asbestos law firms for fraud.
The complaints, filed in the U.S. Bankruptcy Court for the Western
District of North Carolina, Charlotte Division, were filed under
seal, but Forbes reported that Garlock alleges that the laws firms
sued the Company on behalf of clients who had already made
conflicting claims about their asbestos exposure against other
companies.
Garlock spokesman, Don Washington, said the complaints allege that
these firms concealed evidence about their clients' exposure to
asbestos products and concealed it in litigation against the
Company. "In essence they double-dipped."
Named defendants in the lawsuits are: Waters & Kraus, LLP, Simon
Greenstone Panatier Bartlett, A Professional Corporation, Belluck
& Fox, LLP, and Shein Law Center, Ltd.
Waters & Krause, in a statement, said the lawsuit "represents just
the latest in a series of actions by Garlock to avoid being held
accountable for helping to cause the deaths of thousands of Navy
veterans and others from the asbestos found in the company's
products," Forbes cited.
Forbes pointed out that by suing the asbestos lawyers who are
suing it, Garlock is following in the steps of CSX, which in 2012
won a $429,000 fraud verdict against Pittsburgh lawyers Robert
Pierce and Louis Raimond after uncovering evidence the lawyers had
used phony diagnoses from discredited Dr. Ray Harron to fabricate
asbestos cases against the railroad.
About Garlock Sealing
Headquartered in Palmyra, New York, Garlock Sealing Technologies
LLC is a unit of EnPro Industries, Inc. (NYSE: NPO). For more
than a century, Garlock has been helping customers efficiently
seal the toughest process fluids in the most demanding
applications.
On June 5, 2010, Garlock filed a voluntary Chapter 11 petition
(Bankr. W.D.N.C. Case No. 10-31607) in Charlotte, North Carolina,
to establish a trust to resolve all current and future asbestos
claims against Garlock under Section 524(g) of the U.S. Bankruptcy
Code. The Debtor estimated $500 million to $1 billion in assets
and up to $500 million in debts as of the Petition Date.
Affiliates The Anchor Packing Company and Garrison Litigation
Management Group, Ltd., also filed for bankruptcy.
Albert F. Durham, Esq., at Rayburn Cooper & Durham, P.A.,
represents the Debtor in their Chapter 11 effort. Garland S.
Cassada, Esq., at Robinson Bradshaw & Hinson, serves as counsel
for asbestos matters.
The Official Committee of Asbestos Personal Injury Claimants in
the Chapter 11 cases is represented by Travis W. Moon, Esq., at
Hamilton Moon Stephens Steele & Martin, PLLC, in Charlotte, NC,
Elihu Inselbuch, Esq., at Caplin & Drysdale, Chartered, in New
York, and Trevor W. Swett III, Esq., Leslie M. Kelleher, Esq., and
Jeanna Rickards Koski, Esq., in Washington, D.C. 20005.
Joseph W. Grier, III, the Court-appointed legal representative for
future asbestos claimants, has retained A. Cotten Wright, Esq., at
Grier Furr & Crisp, PA, and Richard H. Wyron, Esq., and Jonathan
P. Guy, Esq., at Orrick, Herrington & Sutcliffe LLP, as his co-
counsel.
ASBESTOS UPDATE: Enpro Names R. Magee as Fibro Claims Consultant
----------------------------------------------------------------
Enpro Industries, Inc., named Richard L. Magee as consultant in
connection with the asbestos claims resolution process, according
to the Company's Form 8-K dated December 20, 2013, filed with with
the U.S. Securities and Exchange Commission on October 30, 2013.
On December 20, 2013, Richard L. Magee provided EnPro Industries,
Inc., formal notice of his intention to retire as Senior Vice
President of the Company effective as of the close of business on
January 6, 2014. The following arrangement will be entered into
and become effective upon Mr. Magee's retirement:
* Mr. Magee will serve as a consultant to support the Company
and its subsidiaries, including Garlock Sealing
Technologies, LLC, and Garrison Litigation Management Group,
Ltd., in connection with the asbestos claims resolution
process that includes the Chapter 11 bankruptcy case filed
in 2010 by GST, Garrison and the Company's The Anchor
Packing Company subsidiary, in a manner consistent with past
practice, including related negotiations and proceedings, as
well as other on other mutually-agreed-upon assignments as
may be requested by the Company's Chief Executive Officer or
General Counsel.
* In connection with such consulting arrangement, Mr. Magee
will be entitled to a retainer of $30,000 per month in
exchange for being available for not less than 80 hours per
month, an hourly rate of $425 for time in excess of the
minimum monthly availability, and reimbursement of service
related out-of-pocket expenses, with the monthly retainer
and minimum monthly availability reducing to $15,000 and 40
hours beginning on July 1, 2014.
* Pursuant to the terms of the Company's plans, Mr. Magee will
receive the full amount of the annual performance plan award
for 2013 and long-term incentive plan award for the
2011-2013 performance cycle, and pro rata portions of the
long-term incentive plan award for the 2012-2014 and
2013-2015 performance cycle, as and when performance for the
relevant period is certified by the Compensation and Human
Resources Committee of the Company's Board of Directors,
and, given his continued consulting arrangement, Mr. Magee's
restricted stock unit awards will continue to vest through
February 10, 2014.
* In full satisfaction of the Company's obligations under the
Company's Supplemental Retirement and Death Benefits
Agreement, Mr. Magee will receive the final lump sum payment
thereunder, determined as of the retirement date, based on
actuarial assumptions that would apply under the Company's
tax-qualified pension plan had it continued in effect
through the retirement date, as such amount is determined by
the Company's actuary.
* The Company will pay Mr. Magee a lump sum in lieu of 18
months of Company-funded COBRA coverage.
Enpro Industries, Inc. (Enpro), is engaged in the designing,
development, manufacturing, and marketing of engineered industrial
products. As of December 31, 2012, the Company had 61 primary
manufacturing facilities located in 12 countries, including the
United States. The Company operates in three segments: Sealing
Products segment, Engineered Products segment and Engine Products
and Services segment. Sealing Products segment includes its
sealing products, heavy-duty wheel end components,
polytetrafluoroethylene (PTFE) products and rubber products.
Engineered Products Segment includes its bearings, aluminum blocks
for hydraulic applications and reciprocating compressor
components. Engine Products and Services segment manufacture,
sells and services heavy-duty, medium-speed diesel, natural gas
and dual fuel reciprocating engines. In April 2012, it acquired
Motorwheel Commercial Vehicle Systems, Inc.
ASBESTOS UPDATE: Hickok Incorporated Dismissed from Fibro Suit
--------------------------------------------------------------
Hickok Incorporated was dismissed from an asbestos-related suit,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 30, 2013.
The Company was a named defendant along with numerous other
companies in a suit in the State of Michigan regarding asbestos
harm to the plaintiff. The Company was dismissed from the suit in
August 2013.
Hickok Incorporated was founded in 1910 and organized in 1915 as
an Ohio corporation, and first offered its securities to the
public in 1959. Except as otherwise stated, the terms "Company" or
"Hickok" as used herein mean Hickok Incorporated and its two
wholly-owned subsidiaries, Supreme Electronics LLC and Waekon LLC.
Hickok develops and manufactures products used by companies in the
transportation industry. Primary markets served are automotive,
emissions testing, aircraft, and locomotive with sales both to
original equipment manufacturers (OEM's) and to the aftermarkets.
ASBESTOS UPDATE: Esterline's Fibro Claims Could Harm Business
-------------------------------------------------------------
Claims arising from asbestos-containing products manufactured by
Esterline Technologies Corporation could harm its business,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
October 25, 2013.
The Company states: "We are subject to potential liabilities
relating to certain products we manufactured containing asbestos.
As of October 25, 2013, our insurance has covered claims against
us relating to those products. Commencing November 1, 2003,
insurance coverage for asbestos claims has been unavailable.
However, we continue to have some insurance coverage for exposure
to asbestos contained in our products prior to that date.
As a result of the termination of the NASA Space Shuttle program,
manufacturing of rocket engine insulation material containing
asbestos ceased in July 2010. In December 2011, we dismantled our
facility used to manufacture the asbestos-based insulation for the
Space Shuttle program. We have an agreement with the customer for
indemnification for certain losses we may incur as a result of
asbestos claims relating to a product we previously manufactured,
but we cannot assure that this indemnification agreement will
fully protect us from losses arising from asbestos claims.
To the extent we are not insured or indemnified for losses from
asbestos claims relating to our products, asbestos claims could
adversely affect our operating results and our financial
condition."
Esterline Technologies Corporation (Esterline) is a manufacturing
company serving aerospace and defense customers. The Company
designs, manufactures and markets engineered products and systems.
It operates in three segments: Avionics & Controls, Sensors &
Systems, and Advanced Materials, including thermally engineered
components and specialized elastomers and other complex materials,
for aerospace and defense markets. Its products are mission-
critical equipment, which have been designed into particular
military and commercial platforms. It has divested non-core
businesses operating as Pressure Systems, Inc., Muirhead Aerospace
and Traxsys Input Products Limited. In July 2011, the Company
acquired Souriau Group. In December 2013, the Company announced
that it has completed acquisition of Joslyn Sunbank Company, LLC,
a unit of Meggitt PLC.
ASBESTOS UPDATE: Navistar Continues to Defend Exposure Claims
-------------------------------------------------------------
Navistar International Corporation continues to defend itself
against numerous asbestos-related claims, according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended October 31, 2013.
The Company states: "Along with other vehicle manufacturers, we
have been subject to an increased number of asbestos-related
claims in recent years. In general, these claims relate to
illnesses alleged to have resulted from asbestos exposure from
component parts found in older vehicles, although some cases
relate to the alleged presence of asbestos in our facilities. In
these claims, we are generally not the sole defendant, and the
claims name as defendants numerous manufacturers and suppliers of
a wide variety of products allegedly containing asbestos. We have
strongly disputed these claims, and it has been our policy to
defend against them vigorously. Historically, the actual damages
paid out to claimants have not been material in any year to our
financial condition, results of operations, or cash flows. It is
possible that the number of these claims will continue to grow,
and that the costs for resolving asbestos related claims could
become significant in the future."
Navistar International Corporation (NIC) is a holding company,
whose principal operating subsidiaries are Navistar, Inc. and
Navistar Financial Corporation (NFC). The Company is a
manufacturer of International brand commercial and military
trucks, IC Bus (IC) brand buses, MaxxForce brand diesel engines,
Workhorse Custom Chassis (WCC) brand chassis for motor homes and
step vans, and Monaco RV (Monaco) recreational vehicles (RV), as
well as a provider of service parts for all makes of trucks and
trailers. In addition, it is a private-label designer and
manufacturer of diesel engines for the pickup truck, van and sport
utility vehicle (SUV) markets. It also provides retail, wholesale,
and lease financing of trucks and parts. NIC operates in four
segments: Truck, Engine, Parts and Financial Services. In February
2013, Mahindra And Mahindra Ltd purchased the Navistar Group's
stake in Mahindra Navistar Automotives Ltd (MNAL) and Mahindra
Navistar Engines Pvt Ltd (MNEPL).
ASBESTOS UPDATE: Victims Must Get Higher Payouts, Says Law Firm
---------------------------------------------------------------
Danielle Wainwright, writing for Mancunian Matters, reported that
a bill to see victims of asbestos-related cancers receiving higher
compensation payouts will be debated in Parliament after an
impassioned plea from a Manchester law firm.
According to the report, specialist lawyers at Irwin Mitchell in
Manchester wrote to MPs of all parties for support to see terminal
patients suffering from the effects of deadly asbestos receiving a
'fairer' settlement.
Victims currently only receive 75% of average compensation
payments which means they could miss out on a staggering
GBP43,000. The lawyers, along with campaigners from the Forum of
Asbestos Victims Support Groups UK, are urging the government to
agree a last-minute amendment raising this payment to 80%.
Geraldine Coombs, a specialist asbestos lawyer at Irwin Mitchell
who has represented many victims, said: "It takes decades from the
initial exposure to asbestos for symptoms of a related illness to
appear, but once they do the consequences are devastating for
those families affected.
"In some situations it is impossible to find evidence of victims'
employers' insurance records where firms have ceased to exist many
years ago and many asbestos victims will be left high and dry by
the technicalities in the proposals."
The funds provided give victims and their families some financial
security as well as paying for care, aid and equipment during the
final stages of the illness.
It's understood that the 75% figure is to prevent the insurers
passing on the costs to businesses in the form of higher premiums
for employers' liability insurance.
Ms Coombs added: "Obviously, receiving 75% of the average
compensation is better than nothing but by only providing victims
and their families with a fraction of the typical amount means
mesothelioma victims will miss out on tens of thousands of pounds.
"This also doesn't take into account that no two cases are alike
and the individual circumstances of each person and their family
are completely different.
"It is particularly hard to understand when the Financial Services
Compensation Scheme provides 90% compensation.
"Mesothelioma cases by their very nature are complex, often going
back 40-50 years and involving very detailed investigations.
"Mesothelioma victims have faced many legal challenges in recent
years, this is yet another one. What they really deserve is full
and fair financial security for their families."
ASBESTOS UPDATE: Cwmcarn High Reopens After Fibro Investigation
---------------------------------------------------------------
BBC News reported that the reopening of a high school that shut
after a report suggested that its 900 pupils were at risk from
asbestos has come after "14 hard months", says its chair of
governors.
Gary Thomas said Cwmcarn High School in Caerphilly county is
"ready for business" after work to remove asbestos from the site.
Contractors began removing the asbestos in June, but the repairs
were delayed after a worker died when it is believed he was
electrocuted.
ASBESTOS UPDATE: Lung Cancer Blamed on Georgia-Pacific, John Crane
------------------------------------------------------------------
Johnnie Miller Cleaves, writing for The Madison-St. Clair Record,
reported that Robert Cowger, personal representative for the heirs
and estate of Barbara Cowger, deceased, and her husband Bill
Cowger filed an asbestos complaint against two defendants --
Georgia-Pacific and John Crane Inc. -- in St. Clair County Circuit
Court on Dec. 13.
The suit claims that Bill Cowger, husband of Barbara Cowger,
worked from 1963 to 2008 as a drywaller for various contractors.
During the course of his employment, his wife was exposed to and
inhaled, ingested or otherwise absorbed large amounts of asbestos
fibers emanating from certain products he worked with and around
which were manufactured, sold, distributed or installed by the
defendants.
According to court records filed by Robert Cowger and his
attorneys Gori, Julian & Associates P.C. and Karst & Von Oiste LLP
the defendants knew or should have known the products had a toxic,
poisonous and highly damaging effect upon persons inhaling,
ingesting or otherwise absorbing them. Barbara Cowger developed
lung cancer that ultimately led to her death as a direct and
proximate result of one or more of the acts of negligence on the
part of the defendants.
The defendants are also accused of several acts of omission
amounting to willful and wanton misconduct.
A third count states that conspirator defendants (both named and
not named) as agents of one another and as co-conspirators, agreed
and conspired among themselves and with other asbestos
manufacturers, distributors and trade organizations to injure the
deceased by willfully conspiring to publish false and misleading
reports of the health hazards of asbestos.
Judgments in excess of $50,000 for each of the charges have been
entered against the defendants.
St. Clair Circuit Court Case No. 13-L-618.
ASBESTOS UPDATE: Fibro Cancer Compensation Law Agreed
-----------------------------------------------------
Graeme Demianyk, writing for Plymouth Herald, reported that MPs
have rejected calls to increase funding into research into a fatal
lung cancer caused by asbestos despite hearing how a Plymouth
woman who died of the disease had to travel to Germany for
treatment.
Long-awaited legislation on Jan. 7 passed through Parliament to
provide a compensation package for sufferers of the fatal lung
disease mesothelioma, which is caused by inhaling asbestos.
The number of sufferers is particularly high in cities such as
Plymouth because of asbestos-related activities in the past at
Devonport Dockyard.
Between 2008 and 2012, there were around 120 mesothelioma-related
deaths in the four constituencies covering Plymouth.
A handful of Tory rebels and Labour MPs called on ministers to
support their amendment to change the Mesothelioma Bill, and
extend a levy on the insurance industry to pay for research into
the deadly disease and its causes. But the amendment was defeated
by 266 votes to 226, a reduced Government majority of 40.
Ahead of the vote, Alison Seabeck, Labour MP for Plymouth Moor
View, told MPs how a woman from Plymouth with an international
reputation for raising awareness of the cancer had to go to
Germany for treatment.
Debbie Brewer died last year, aged 53, after being diagnosed with
mesothelioma in 2006. The mother-of-three is believed to have
developed the illness through hugging her father, Philip
Northmore, when she was a child. He was an asbestos lagger at
Devonport Dockyard. He died three months before his daughter was
diagnosed.
Mrs Seabeck expressed her "concern that my constituent, Debbie
Brewer, who contracted diffuse mesothelioma from her father who
had worked in the dockyard and who died last year, was forced to
travel to Germany for treatment because not enough research had
been done in the UK to support treatment here".
"That should not be happening," the MP went on.
The Mesothelioma Bill has passed its final Parliamentary stage,
and will become law once it receives Royal Assent. It will
provide around 300 victims average payouts of about GBP100,000,
while enabling people who were negligently exposed to asbestos but
cannot trace the responsible employer or their insurer to get
compensation through a scheme funded by a levy on current
insurers.
Campaigners and some MPs had argued the scheme does not go far
enough in compensating victims.
ASBESTOS UPDATE: Japan Workers Sick From Deadly Dust
----------------------------------------------------
Bangkok Post reported that a total of 28 Japanese workers were
officially recognised as having become sick from inhaling asbestos
while laboring at US military bases in Okinawa Prefecture, with 21
of them already dead, the Health, Labour and Welfare Ministry data
showed.
The 28 represent more than half the 48 people recognised with
asbestos injuries in the entire prefecture. It is feared that
there could be more asbestos victims among those who worked at the
bases. A former worker said Japanese workers were not provided
adequate protective gear or informed of the dangers of asbestos.
Of the 28 workers, 19 were officially recognised in the period
through fiscal 2012 as having suffered work-related asbestos
hazards. Fourteen suffered lung cancer, with nine of them already
dead, two suffered mesothelioma, and three suffered asbestosis,
with all of the three already dead.
There were nine other people certified as asbestos victims in
accordance with a relief act for people ineligible for workers'
compensation because of the statute of limitation. In some cases,
asbestos-related diseases do not surface until after several
decades. Eight suffered lung cancer and one suffered asbestosis,
and all of them are already dead, according to the data.
Workers' compensation certification standards for asbestos were
established in 1978 and the relief act came into force in 2006.
Those who were officially recognized as asbestos victims were
involved in works such as demolition of buildings containing
asbestos, spraying of asbestos, waste disposal and collection, and
repair and manufacturing of machines.
Asbestos is easily dispersed and those who have inhaled the
material can develop diseases such as lung cancer, mesothelioma,
and asbestosis, a type of lung disease.
Apparent lax handling of asbestos has drawn attention in Okinawa.
Asbestos was found in former US military sites returned to Japan,
and Japanese workers renovated military bases without being
notified of the existence of asbestos.
Eizo Yonaha, a former worker who represents the Okinawa chapter of
the All Japan Garrison Forces Labour Union, said Japanese workers
were forced to work with asbestos with almost no protective
equipment such as masks until the early 1990s.
"There was also a time when supervising U.S. military personnel
never tried to enter the worksite. I believe they knew about the
danger. The recognised cases are probably the tip of the iceberg.
The central and prefectural governments need to step up efforts to
identify more victims," Mr Yonaha said.
ASBESTOS UPDATE: Yale Refuses to Revoke Honorary Degree
-------------------------------------------------------
Tim Povtak, writing for Asbestos.com, reported that prestigious
Yale University, a world leader in higher education, has come
under fire after rejecting a call to support victims of asbestos
exposure, and bypassing the opportunity to use its influence in
raising awareness to the cause.
Yale University has refused to revoke the honorary degree it
presented to Switzerland billionaire Stephan Schmidheiny . He was
convicted in 2012 of creating the asbestos environmental disaster
that caused at least 2,000 deaths in Italy and countless more
around the world.
The Ivy League school in 1996 awarded Schmidheiny, who was
sentenced to 16 years in prison, the honorary degree for his
advocacy of sustainable economic growth and development, according
to a Yale spokesperson.
Schmidheiny is also known as a philanthropist with a worldwide
reach, funding ecofriendly, sustainable developments throughout
North and South America.
Yale University officials recently informed the Italy-based
Asbestos Victims and Relatives Association that it would not
rescind the honorary degree based on his conviction in Italy,
which has been upheld by an appeals court that added two more
years to his sentence. Schmidheiny remains free pending a second
appeal in 2014 to the country's highest court.
"The revocation of an honorary degree would be unprecedented at
Yale, and we do not believe that the events subsequent to the
award of the degree call into question the essential information
upon which [Yale] acted," Kimberly Goff-Crews, Yale Student Life
vice president wrote to Christopher Meisenkothen, the Connecticut
attorney representing the victims group.
Yale Alumni Could Make a Difference
Alumni of Yale University include five U.S. presidents, 19 U.S
Supreme Court justices and many foreign heads of state. It is the
third-oldest institution of higher learning in America, and has an
endowment worth an estimated $21 billion.
"We're really very disappointed in Yale's response," Meisenkothen
told the Connecticut Law Tribune. "Yale doesn't address the
Italian legal proceedings, and the significant historical evidence
that was revealed during the trial. I think Yale is snubbing the
Italian system."
Schmidheiny was convicted of causing the asbestos environmental
disaster in Casale Monferrato, a small town in northern Italy. He
was the chief executive officer of Eternit, a huge corporation
that included an asbestos cement plant there. Prosecutors charged
that he was grossly negligent in exposing the workers and town
residents to dangerous asbestos fibers, long after the toxicity of
the product was known.
Exposure to asbestos has been proven to cause a number of
illnesses, including lung cancer, asbestosis and mesothelioma,
which is an aggressive cancer without a cure. An estimated 100,000
people in the world die annually from asbestos-related diseases.
Little Done to Cut Back on Asbestos in the 1970s
Schmidheiny had taken over the family business in 1976 and did
little initially to change the asbestos cement operation. Workers
and families in the town later developed unusually high numbers of
asbestos-related diseases, including mesothelioma.
Eternit continued its use of crocidolite asbestos well into the
80s, according to testimony at the trial. Schmidheiny's official
biography says he ended his company's use of asbestos in 1986.
His conviction cited responsibility for thousands of deaths,
including those working at the plant and others living in town.
That caused families of asbestos victims to question his honorary
degree at Yale, where even some academics are now raising the same
issues.
"This is very important, new information that I think, at the very
least, should be looked at very carefully by the authorities at
Yale," Thomas Pogge, professor of philosophy at Yale, told WNPR
News in December 2013. "We have the requisite expertise to convene
an excellent faculty committee that could look into this case in
more depth."
Yale University Could Help the Fight
Italy and more than 50 other countries have banned asbestos and
the manufacturing of asbestos products. It remains a carefully
controlled, but legal product in the U.S. Still, more than 1,000
tons of asbestos are imported annually.
Many advocacy groups continue lobbying for legislation to ban it
in America, but there has not been a group strong enough to make
it happen. That's where Yale University, with all its political
muscle, could help the fight by revoking an honorary degree for
the first time.
"The scope of the harm caused the plant is so widespread that it
really stands out as a particularly egregious example of the
tragic legacy of asbestos," Meisenkothen said.
ASBESTOS UPDATE: Stiff Fine Imposed for Illegal Fibro Removal
-------------------------------------------------------------
Marvin Hokstam, writing for NL Times, reported that a housing
corporation got slapped with a EUR108,000 fine for illegal removal
of asbestos from a building in its care.
The Social Affairs Ministry in Netherlands said in a press release
that following up on a complaint, inspectors had gone to the
housing location in Venloo, where they found that the housing
association's technical department had been carrying repairs to
units that were damaged by vandals. "The workers of the technical
department were aware that that the building dated from the
seventies and that its sheets probably contained asbestos, but
they still carried out the repairs themselves," the release said.
The Netherlands banned the use of asbestos in 1994 as its use can
cause serious health problems; companies that remove it have to be
certified and before they start they have to first alert the
Social Affairs Inspectorate. The Ministry said the housing
association thus violated several rules. "Workers did not wear
protective breathing gear and did not take other personal
protective measures. And the asbestos debris was not properly
disposed of," it said. Apparently strips of sheets from the
building were strewn all around the building and on the lawns.
Besides the stiff fine, the housing corporation was also served a
warning not to violate the asbestos regulations again. "One more
of such a violation and the decision might be taken to close the
company for a longer period of time," the Ministry said, stressing
that dealing with the asbestos problem is one of its main
attention points, for which a special team of inspectors has been
established.
ASBESTOS UPDATE: Sheffield Lawyers Urge Changes to Fibro Bill
-------------------------------------------------------------
The Star reported that lawyers in Sheffield, England, are urging
MPs to make changes to a Bill affecting payouts for sufferers of
asbestos-related cancer. Lawyers from Sheffield-based Irwin
Mitchell say amendments need to be made as, under a new scheme,
only victims themselves would be entitled to money. Adrian
Budgen, from the firm, said: "It takes decades from the initial
exposure to asbestos for symptoms of a related illness to appear,
but once they do the consequences are devastating for those
families affected."
ASBESTOS UPDATE: Judge Silver Will No Longer Take on New NYC Cases
------------------------------------------------------------------
HarrisMartin Publishing reported that Justice George Silver, who
had been involved with New York City's coordinated asbestos
docket, will no longer be handling asbestos matters, according to
a recent order. The Jan. 6 order, issued by Hon. Sherry Klein
Heitler of the New York Supreme Court, First Judicial District,
stated that Judge Silver will be taking on new assignments "which
will prevent him from handling future NYCAL trial groups."
Justice Cynthia Kern will be Judge's Silver's replacement, the
order said, and will begin handling NYCAL matters immediately.
ASBESTOS UPDATE: EPA Finds Olivet Violating Clean Air Act
---------------------------------------------------------
Sarah Bradshaw, writing for Pughkeepsie Journal, reported that the
U.S. Environmental Protection Agency has ordered Olivet Management
LLC to stop all work that could disturb asbestos at the former
Harlem Valley Psychiatric Center.
EPA Regional Administrator Judith Enck said in a written
statement, "By stopping work at The Olivet Center, EPA has taken
action to protect the health of workers at the site and nearby
residents."
Among the EPA's allegations: Olivet didn't notify the agency about
the asbestos work and did not handle the materials properly during
the renovations. Olivet officials said in November that no
official asbestos removal had begun.
Olivet spokeswoman Anna Oh said in an email statement: "We are a
little surprised of this release for several reasons: We have a
meeting with the EPA on Wednesday, Jan. 8, that was scheduled a
month ago. Secondly, we were not doing an asbestos removal project
at the site. Moreover, we have not been doing any work at the site
since the end of October. We are eager to work together so a plan
can be finalized and we can move forward with our commitment to
make the site a thriving hub of commerce, innovation and
education.
"Olivet is proceeding in full compliance with the law and is in
communication with all relevant agencies throughout this whole
process.
"Our goal continues to be to return this site to productive
economic use, put people in the Harlem Valley back to work and
build one of the region's preeminent research and development
entities and education institutions," she said in the statement.
State labor officials got a complaint and then came in to post
signs on Oct. 31. A sign said, "Warning, asbestos project
suspended," and notified the contractor, Olivet, that it must
maintain engineering controls and do daily inspections. The notice
also noted "unlicensed asbestos work," said Olivet needs a
contamination assessment and has no site survey.
The stop-work order comes after a November site inspection by
several state and federal agencies, the EPA said.
ASBESTOS UPDATE: ATRA Says Litigation "More Incredible Every Year"
------------------------------------------------------------------
Heather Isringhausen Gvillo, writing for Legal Newsline, reported
that in light of the recent Judicial Hellhole Report released in
December, it is clear that asbestos played a key role in the
rankings, given what the report's authors feel is a vast negative
impact on the court system nationally.
American Tort Reform Association Director of Communications Darren
McKinney said it is no coincidence that asbestos litigation has
influenced the Judicial Hellhole investigations, as it is "the
dominant mass tort" in America.
McKinney argues that no other tort has bankrupted hundreds of
companies nor is generating billions of dollars in litigations,
settlements and verdicts in plaintiff-friendly jurisdictions.
"If anyone wants to know why asbestos seems to get significant
attention in the Hellhole report every year," McKinney said, "it's
because it gets more incredible every year!"
In fact, asbestos can be attributed to the primary reason behind
three of ATRA's top six Judicial Hellholes of 2013: California,
New York City and Madison/St. Clair counties in Illinois.
Asbestos is a somewhat new reason to drag New York City down this
year -- previously awarded a Judicial Hellhole ranking thanks to
its roughly 2,000 lawsuits against the police department.
The New York Asbestos Litigation Docket, also known as NYCAL,
contributed to its No. 3 ranking in the report due to its
aggressive consolidation practices and heavy corruption, ATRA
says.
According to the report, since early 2011, the average NYCAL
plaintiffs' verdict in a consolidated case was $29.8 million, more
than nine times greater than the $3.2 million average verdict for
individual cases.
"Individual cases more fairly allow defendants to prove that
plaintiffs were not exposed to asbestos from their products," the
report states.
Meanwhile, Arthur Luxenberg, a partner of the Weitz & Luxenberg
law firm -- which regularly litigates NYCAL cases -- was appointed
by New York State Assembly Speaker Sheldon Silver to the Judicial
Screening Committee. This means judges with hopes of earning seats
in the high courts must be reviewed by Luxenberg for a
recommendation.
"If you're an asbestos trial judge in New York City, and you
aspire to a Supreme Court or Appellate Court seat, you don't want
to upset this Weitz & Luxenberg law firm, especially Arthur
Luxenberg, who sits on this influential judicial nominee
committee," McKinney said.
McKinney said he intends to follow the issues in New York closely,
saying ATRA will "stay on them like a cheap suit."
As asbestos exposure declines due to new government health and
safety standards, mesothelioma cases fall, which leaves asbestos
lawyers looking for new ways to bring lawsuits to the docket,
McKinney said.
"Lawyers don't want to see their golden goose die," McKinney said,
"so they've got to come up with new ideas."
As a result, lung cancer and third-party exposure cases are on the
rise, and often times are completely unrelated to asbestos,
McKinney claimed. A popular, and recent, example of this new
development is New York Congresswoman Carolyn McCarthy's lawsuit,
filed by Weitz & Luxenberg.
According to the Hellhole report, McCarthy is a "lifelong pack-a-
day smoker" and was diagnosed with cancer in 2013. Because she
could "not realistically hope to win a lawsuit against tobacco
companies," she and her lawyers filed a lawsuit against
approximately 70 defendant companies for third-person asbestos
exposure. She claims her lung cancer can be attributed to the
asbestos dust her father and brother brought home on their
clothing after work.
However, McKinney pointed out that if she was a "pack-a-day"
smoker as she claims, and there are roughly 20 cigarettes in each
pack, it is reasonable to assume she smokes more than a cigarette
per hour.
"More than a cigarette an hour is a load on anyone's lungs,"
McKinney pointed out.
While McKinney expressed deep concern and sadness for those facing
life-threatening cancer, he said there is no excuse for a member
of Congress, as well as a lawyer, to file such a lawsuit.
"Her lawsuit is patently bogus," he added.
Baltimore and Newport News, Va., were also included on the watch
list due to their asbestos dockets.
"The continuing manipulation of asbestos trust fund claims and
lawsuits demonstrate how plaintiffs' attorneys take advantage of a
playing field that remains tilted in their favor," the report
states about Baltimore.
As for Newport News, the report states, "The court has set a low
bar for scientific reliability of expert testimony, relaxed
causation standards, hidden from juries what the plaintiff's
employer knew about the health hazards of asbestos, and prevented
product makers from asserting widely-accepted defenses."
It's not all gloom and doom for ATRA where asbestos is concerned.
McKinney did offer some positive trends throughout the nation.
"Generally speaking," McKinney said, "during the course of the
last several years, there has been any number of little spots of
good news."
He speaks specifically about the nation's "epicenter for asbestos
litigation": Madison and St. Clair counties.
Madison County entered a defendant verdict in November for Georgia
Pacific, a construction manufacturing company accused of
contributing to a man's mesothelioma through its asbestos-
containing joint compound used in dry wall work.
McKinney attributes the surprise verdict to the jury, which can be
"trusted to make pretty level-headed decisions in Madison County."
"If a judge runs an even-handed courtroom, most juries will come
back and offer an even-handed verdict," he said.
The Illinois Supreme Court was even listed in the "Points of
Light" section of the Hellhole report for "striking a blow against
the filing of asbestos cases with no connection to the state in
its Judicial Hellhole."
According to the report, the St. Clair County Circuit Court
refused to dismiss a Mississippi plaintiff's asbestos case with no
connection to Illinois. The Illinois Supreme Court reversed that
decision in its efforts to eliminate forum shopping.
"The high court's action sends an important message that it will
not allow plaintiffs' lawyers to file lawsuits on behalf of people
from around the country in St. Clair or other Illinois counties
simply because those Illinois jurisdictions are more likely to
produce favorable outcomes than are jurisdictions in plaintiffs'
home states," the report states.
Despite occasional good news coming out of America's courtrooms,
McKinney said ATRA and its numerous contributors look at
systematic issues and consistent problems.
"A single case, good or bad, isn't likely to influence us,"
McKinney said.
"When small, rural Madison County is no longer the home of 25
percent of the nation's asbestos cases, then we can talk about a
clean bill of health for Madison County," McKinney continued.
"Unless there are more Georgia Pacifics willing to fight this and
say, 'No, we're going to trial. We're going to fight this,' then I
don't know how one improves the predicament in Madison County."
A common problem attributing to systematic issues is a knee-jerk
settlement, he said. McKinney said companies typically settle a
case rather than endure a risky and costly trial. But such a
passive mindset can ultimately lead to clogged dockets and more
problems in the future, he said.
If settling cases is the go-to strategy, "you don't have to be a
genius to figure out that these lawsuits are going to come a-mile-
a-minute," McKinney said.
McKinney said to prepare for a long ride, as asbestos won't soon
be leaving the spotlight.
"It has been in America for some 30 years, and some analysts and
experts believe it will continue to be a huge factor for another
40 years," he said.
ASBESTOS UPDATE: Deadly Dust Removed From J.K. Northway Coliseum
----------------------------------------------------------------
Tim Acosta, writing for Kingsville Record and Biship News,
reported that commissioners of Kleberg County, in Texas, approved
a $5,000 payment for the remediation of asbestos found last month
in a meeting room at the J.K. Northway Coliseum, though final work
on the project is still pending, county officials said.
ASBESTOS UPDATE: Teacher Aims to Prove Cancer by Classroom Fibro
----------------------------------------------------------------
Lancashire Telegraph reported that a former teacher has spoken of
her fight to prove asbestos in the classroom has caused her
terminal cancer.
Janet Gent, 65, was diagnosed with mesothelioma in 2012 and
believes it is linked to her career teaching in East Lancashire
schools. She spent eight years teaching home economics at the
former Walton High School in Nelson and then, after the birth of
her son Douglas, returned to supply teaching at high schools and
special schools in Burnley, Pendle and Rossendale. And while she
was left stunned when she first learned of her condition. and now
walking any distance and even basic chores are a struggle, she has
kept battling on.
Mrs Gent, who lived in Burnley and Reedley while teaching, said:
"I am determined to carry on.
"I just feel that someone needs doing about getting the county
council to acknowledge their responsibilities.
"We were never warned that there was any danger -- there was never
any advice or guidance given to teachers, pupils or parents."
Her struggle has been made more difficult because the old Walton
High School was pulled down in 2006 and 2007 before reopening as
Pendle Vale College. Her classes were mainly held in the ROSLA
building, constructed in the early 70s and envisaged as temporary
accommodation.
"If people remember something small, even work on the walls or the
way the ceiling tiles would bounce up and down, then it might
assist," added Mrs Gent, who also has a daughter, Dione.
Her solicitor Joanne Candlish, of Liverpool-based Thompsons, said
her firm was beginning to see more and more cases of asbestos
exposure linked to school careers.
The solicitor can be contacted by anyone able to offer assistance
on 0151 224 1644.
ASBESTOS UPDATE: Woman Fined for Fly-Tipping Toxic Dust
-------------------------------------------------------
Tom Dootson, writing for BayTV Liverpool, reported that a woman
who fly-tipped asbestos tiles near to junior football teams'
changing rooms has been fined.
Elahe Zakavi, aged 46, of Isleham Close Allerton, in the United
Kingdom, was found guilty at Liverpool Magistrates' Court of fly-
tipping asbestos. The court heard that at approximately 10pm on
30 January 2013, Zakavi was seen taking bin bags from the back of
her Honda 4x4 hatchback, with the help of an unidentified man, and
dumping them over the railings near to the changing rooms used by
the local junior football clubs on Jericho Lane.
The bags were found to contain asbestos tiles. Zakavi denied that
she had dumped asbestos but said that the bags had been full of
cardboard. She said she had mistaken the changing rooms for the
waste reception centre for which she had obtained directions from
the Council's website and had not noticed that its opening time in
January was 8am to 5pm.
District Judge Wendy Lloyd fined Zakavi GBP200 and awarded costs
of GBP500 with compensation for the specialist clean-up required
to safely dispose of the asbestos of GBP712.80
Councillor Steve Munby, cabinet member for living environment and
localism, said: "This was a particularly nasty case of fly-
tipping. Asbestos is a dangerous material and to dump it near
changing rooms used by children is appalling. Asbestos is not
accepted at the waste reception centre at Jericho Lane and there
is a cost to its disposal. This case sends a clear message that
Liverpool City Council will not tolerate fly-tipping and will take
action against anyone caught."
ASBESTOS UPDATE: Cleanup Sparks Concern at Cole Harbour School
--------------------------------------------------------------
Frances Willick, writing for Herald News, reported that two
parents whose children attend an elementary school in Cole
Harbour, Nova Scotia, say they're concerned that they weren't
notified of an asbestos removal operation at the school over the
Christmas holidays.
Laurie and Tyler Berdan learned of the asbestos cleanup at Colonel
John Stuart Elementary School while walking their dog with their
kids on the property over the holidays. Tyler noticed some trucks
doing work on the school and spotted a sign on the door indicating
that asbestos was being removed. Laurie said she contacted the
school board once classes were back in session and was told
parents weren't informed because there was no health risk.
"Well, I guess we differ in that opinion," she said. "We're
talking about asbestos. Yes, there is a health risk. It's pretty
well-documented."
Asbestos, a construction material frequently found in older
buildings, can cause cancer or scarring of the lungs when inhaled
in large quantities. The federal government's guidelines on
asbestos say it does not pose a significant health risk when it is
enclosed in a product and is not disturbed.
Laurie said she's confident that the school and school board have
taken all the appropriate steps to ensure the safety of the
students and staff. But she said parents should have been notified
of the operation.
"I'm sure they wouldn't have the kids at the school if the air
quality tests didn't come back within the realm (of safety)," she
said. "I'm absolutely positive that they've done everything
correct. But I also think that we kind of have the right to know."
After learning about the asbestos removal, the parents were left
with unanswered questions.
"When was it found? How was it found? Was it disturbed? How much
of it was there?" Laurie asked. "Parents should have the right to
assess any sort of health risk."
Tyler said there was no effort to inform anybody, "regardless of
whether the risk was higher or lower or virtually non-existent."
Doug Hadley, the spokesman for the Halifax regional school board,
said ceiling tiles were removed from most of the school over the
holidays in preparation for a lighting retrofit planned for this
month.
"It was recognized that the ceiling tiles, because of their age,
would have contained asbestos," he said. "It actually was a
proactive measure. There was not any immediate concern."
Hadley said that due to their age, about 75 per cent of schools in
the board's jurisdiction may have asbestos. But he emphasized that
as long as the material isn't disturbed, there is no risk to
health or safety.
Although the board doesn't have a policy on informing parents of
asbestos removal, Hadley said after the Berdans' complaint,
parents at Colonel John Stuart Elementary School will be notified
about the recent work.
"Typically, we would not inform parents of that type of removal
because it only takes place during times when no students or staff
are in the building," he said. "If it had occurred during a time
when the building was going to be occupied, we would have made
that notification."
But since more schools may be facing similar work in the future,
the board will consider notifying parents at those schools, too.
"It gives us some thought that maybe, just to be on the proactive
side of things, that we let parents know what the scope of the
work is before it happens."
Hadley said tests conducted at Colonel John Stuart Elementary
School showed acceptable air quality.
ASBESTOS UPDATE: Fibro at Derbyshire Hospital Prompts Meeting
-------------------------------------------------------------
Caroline Jones, writing for Derby Telegraph, reported that a
meeting will be held to discuss the future of Heanor Memorial
Hospital, in Derbyshire, United Kingdom, after asbestos was
discovered in parts of the building.
The deadly dust was first discovered in the boiler room in the
basement of the hospital during a routine inspection by staff in
September. Specialists were called in to remove the asbestos but,
in the process, further material was found in other parts of the
building. It means clinics and services have been moved
temporarily to Ilkeston Community Hospital, although physiotherapy
services continue to operate in a separate part of the Heanor
site.
The meeting -- which is open to patients and members of the public
-- will take place at Heanor Town Hall on Thursday, January 30
from 7.30pm until 9pm. It has been called by the NHS Southern
Derbyshire Clinical Commissioning Group -- the GP-led group which
officially took over buying healthcare for the area's 525,000
patients last April.
Members of the group said talks had been ongoing between
themselves and Derbyshire Community Health Services, which runs
the hospital, about "the best way forward" since the hospital's
closure.
Andy Layzell, the group's chief officer, said: "Patients and the
public can be assured we are committed to enhancing and developing
health services in Heanor.
"The finding of an extensive amount of asbestos, combined with the
age of the building, means health services cannot be provided in
the hospital building as it stands. So, we now need to look at
finding the best solution for patients.
"I would like to stress no decisions have been made at this stage,
as we are not yet at a point where we have identified the future
options.
"However, no decisions will be made in the future without full
public consultation. Patients are at the heart of everything we do
and this meeting is an opportunity for us to share information and
to listen to people's views and concerns.
"We hope that many local people will attend and give us their
views."
William Jones, director of operations for Derbyshire Community
Health Services, said: "There has never been any risk to our
patients' safety from the asbestos, which is safely contained and
not airborne.
"Nevertheless, the necessary upgrading of the hospital's
infrastructure is now much more complex and expensive. So, it's
vital that we explore all the options and we look forward to
hearing people's views at the meeting."
ASBESTOS UPDATE: New York Firm Named to Best Lawyers List
---------------------------------------------------------
Heather Isringhausen Gvillo, writing for Legal Newsline, reported
that the U.S. News & World Report and peer review rankings guide
Best Lawyers included New York asbestos law firm Weitz & Luxenberg
on the 2014 list of "Best Law Firms."
Arthur Luxenberg, in addition to five other attorneys at Weitz &
Luxenberg, was also included on the "Best Lawyers in America"
List. According to Weitz & Luxenberg's web site, the law firm
"pioneered and almost singlehandedly shaped" the asbestos
litigation to what it is today. Its powerful grip on asbestos
litigation was seen in July 2013 when the law firm won a New York
record-breaking $190 million verdict awarded to five workers,
three of which are deceased, in a mesothelioma lawsuit. The award
is the largest consolidated asbestos verdict in New York history.
The men were steamfitters, plumbers and construction workers. They
filed their lawsuit against defendant boiler companies Cleaver
Brooks and Burnham. The firm popped up in another recent
publication, the American Tort Reform Association's annual
Judicial Hellholes report, released in December.
Mentioned was Luxenberg's appointment to the Judicial Screening
Committee in New York. Luxenberg was appointed by New York State
Assembly Speaker Sheldon Silver to the committee, where he has the
power to review candidates for the higher courts and give his
recommendations to the governor.
ATRA argues any judges aspiring to sit on the bench in higher
courts must first go through an attorney that possibly passes
through their courtroom regularly.
ASBESTOS UPDATE: Toxic Dust Found at Booralee Park in Botany
------------------------------------------------------------
Laura Suckling, writing for Southern Courier, reported that traces
of asbestos and heavy metals were found during construction of
courts at Booralee Park, in Botany Bay, NSW Australia, just metres
away from a children's playground.
Botany Bay Mayor Ben Keneally said at the start of construction of
the courts in December at the Jasmine and Myrtle St end of the
park, "some asbestos and heavy metals was detected".
"Work stopped immediately to allow remediation of the site. This
was completed prior to Christmas and the area is now free of
contaminants," Mr Keneally said.
An extended exclusion zone was established and all contaminants
were removed by authorised contractors in the week prior to
Christmas.
Residents have raised concerns about the contaminated dirt blowing
on to the nearby playground set and houses during construction
before the asbestos was found. Mr Keneally said at no stage was
there a risk to the health of the community. The area remains
fenced to allow construction of the full size outdoor basketball
court and netball court which is expected to be completed by the
middle of March.
ASBESTOS UPDATE: Ohio Company Faces Actions on Fibro, Taxes
-----------------------------------------------------------
David E. Malloy, writing for The Herald-Dispath, reported that the
Portsmouth Local Air Agency has issued a notice of violation
concerning the handling of asbestos at the South Point Biomass
Generation property in the South Point, Ohio area.
Meanwhile, the office of Lawrence County Prosecuting Attorney
Brigham Anderson is preparing to file a foreclosure action against
the 88-acre Biomass property, saying the company has not paid
county taxes for the past three years. The property is not in the
village of South Point, but is surrounded by The Point, a 500-acre
industrial park which is in the village limits.
"They owe $27,000 in back taxes," Anderson said. "We'll be filing
the foreclosure action this month."
More than a dozen years ago, Biomass officials proposed building a
multimillion-dollar generating plant to produce electricity at the
site. The plant was to burn wood waste. No such plant has ever
been built, and on several occasions county officials have filed
suit seeking back taxes on the property.
The Portsmouth Local Air Agency, which handles air quality issues
for the Ohio Environmental Protection Agency, received a complaint
last fall about how Biomass employees were handling asbestos
fibers during a demolition metal scrapping work being done on the
third floor of the power house building.
Samples of suspect regulated asbestos-containing materials were
observed at several locations in the building on Oct. 22, and
analysis confirmed that friable regulated asbestos-containing
materials were found at the site, according to the notice of
violation. Two partial adjacent buildings to the power house
building also had been demolished and removed, according to the
notice.
"A notice of violation was issued," said Cindy Charles, director
of the Portsmouth Local Air Agency which covers Lawrence, Scioto,
Brown and Adams counties. "It's an ongoing investigation, and I
can't comment further."
Mark Harris, Biomass owner, couldn't be reached for comment.
"This was reported by a private citizen," said South Point Mayor
Ron West. "The property isn't located in the village, but it does
concern us. Apparently they have stopped doing it."
Biomass failed to notify the proper agency before the demolition
work in a building containing asbestos, according to the notice of
violation. State regulations require the asbestos to be removed
from a building prior to demolition, and that wasn't done at the
power plant building, according to the notice of violation.
"It was observed that the contractor was not using water to
control dust from the mechanical demolition activities," according
to the notice of violation. "The contractor was observed
demolishing/scrapping in the power house building at the South
Point Generation Biomass facility without using water spray to
control visible emissions being created by the demolition
activities."
The materials were being placed in an open and unlined roll-off
box, another violation, according to the notice.
ASBESTOS UPDATE: Bakkersland Admits Bread Recall Over Fibro
-----------------------------------------------------------
M. Nadeem, writing for NL Times, reported that Bakkersland, the
largest industrial bakery company in the Netherlands, has admitted
that asbestos had been released into its ovens, possibly
contaminating shipments of bread destined for major grocery
chains.
The Hedel, Gelderland headquartered bakery supplies bread to many
supermarkets, including Albert Heijn and Jumbo. The company's
Zwanenburg, Waalwijk and Wateringen locations have had a problem
with asbestos in the previous two years.
In one case, Bakkersland in March 2013 recalled a shipment of
bread from a distribution centre after asbestos broke through an
oven ceiling, according to current affairs TV program Zembla.
In many old industrial bread ovens, asbestos is used as
insulation. Bakkersland said it is working to remove the old
ovens, but that could take up to two years to complete.
According to Bakkersland, there is no scientific evidence that
ingesting asbestos is dangerous. But experts do not agree with the
company and they want bakeries to remove all the old ovens.
Wim van der Linden, former chairman of the Bakkersland works
council, said that could prove difficult, as many bakeries do not
have enough money to buy new ovens.
ASBESTOS UPDATE: Bakery Defends Reputation Over Contaminated Bread
------------------------------------------------------------------
Dutch News reported that the director of an industrial-scale
bakery has defended the company's reputation following claims that
at least one consignment of bread had to be recalled because of an
asbestos scare.
Eugene Scholten, chief executive of Bakkersland, told RTL news
there had never been direct contact between bread and the asbestos
used as insulation in the company's ovens. Scholten told the
broadcaster he could guarantee no Bakkersland bread containing
asbestos had ever hit the Dutch supermarket shelves. The
insulation is on the outside of the ovens and there is no direct
contact with the products, he said.
One consignment of bread was recalled from a distribution centre
but this decision was taken as a precaution after a problem with
one of the ovens, he said. Research showed the bread had not been
contaminated with asbestos.
Television current affairs show Zembla will report on the claims.
It says problems with the ovens have affected three different
Bakkersland plants.
Bakkersland was formed in 1990 as the merger of 10 family-owned
bakeries. It operates 16 factories nationwide.
ASBESTOS UPDATE: NY Court Refuses to Remand "Gordon" Suit
---------------------------------------------------------
Plaintiff Laura Gordon, individually and as personal
representative of James Gordon, on December 26, 2012, filed an
action in the Supreme Court of the State of New York, County of
Nassau. The complaint alleges that Mr. Gordon developed lung
cancer as a result of his exposure to asbestos-containing products
manufactured and supplied by several entities, including the
defendants. The Plaintiff seeks damages for defendants' defective
products and their failure to warn under state law negligence and
strict liability theories. On February 22, 2013, defendants CBS
Corp., Foster Wheeler Energy Corp., and General Electric Co. filed
their Notice of Removal, asserting that the Court has subject
matter jurisdiction, pursuant to the federal officer removal
statute, 28 U.S.C. Section 1442(a)(1), which provides, in part,
for removal of civil actions against private parties acting under
federal officers. The Defendants assert that the removal is
warranted because defendants were acting under an officer or
agency of the United States when they manufactured equipment for
the USS Cadmus and USS Detroit.
The Plaintiff moved to remand the action to the Supreme Court of
the State of New York, County of Nassau, where it was initiated.
In her remand motion, the Plaintiff argues that the Defendants are
not entitled to federal officer removal because they cannot raise
a colorable federal defense.
Based on the current record, Judge Joseph F. Bianco of the U.S.
District Court for the Eastern District of New York concluded that
the Defendants have met the requirements of the federal officer
removal statute, including the assertion of a colorable federal
defense, and thus the action was removable to federal court.
Accordingly, Judge Bianco denied the Plaintiff's motion to remand.
The case is LAURA GORDON, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JAMES GORDON, Plaintiff, v. AIR &
LIQUID SYSTEMS CORP., a/k/a BUFFALO PUMPS, INC., CBS CORP., f/k/a
Viacom, Inc., Successor by merger to CBS Corp. f/k/a Westinghouse
Electric Corp., FOSTER WHEELER ENERGY CORP., GENERAL ELECTRIC CO.,
ET AL., Defendants, NO. 13-CV-969 (JFB)(E.D.N.Y.). A full-text
copy of Judge Bianco's memorandum and order dated Jan. 6, 2014, is
available at http://is.gd/aRo04mfrom Leagle.com.
The attorney for the Plaintiff is Kardon Aaron Stolzman, Esq. --
KStolzman@NapoliBern.com -- of Napoli Bern Ripka Shkolnik, LLP, in
New York. The attorneys for defendants are Michael A. Tanenbaum,
Esq. -- michael.tanenbaum@sedgwicklaw.com -- and Matthew R.
Straus, Esq. -- matthew.straus@sedgwicklaw.com -- at Sedgwick LLP,
in Newark, New Jersey.
ASBESTOS UPDATE: Court Junks Disclosures Bid in "Davidson" Suit
---------------------------------------------------------------
Before the U.S. District Court for the Western District of
Louisiana, Shreveport Division, is a Motion for Clarification
filed by Plaintiffs Tina Davidson, Kathryn Davidson, and Kristen
Davidson Benoit, as well as a Motion to Strike filed by Defendants
Georgia-Pacific LLC, Beazer East, Inc., CertainTeed Corporation,
and Union Carbide Corporation. The Plaintiffs first ask the Court
to rule that their expert report disclosures are sufficient; in
the alternative, the Plaintiffs ask the Court for an extension of
time in which to submit full Rule 26-compliant expert reports.
The Defendants ask the Court to strike the Plaintiffs' expert
witnesses.
The matter was originally filed in Orleans Parish as a personal
injury action for Decedent William Cleve Davidson. The Decedent
alleged that he was exposed to injurious levels of asbestos from
products manufactured by the Defendants. On the eve of trial, the
matter was removed to the United States Court for the Eastern
District of Louisiana, and ultimately was transferred to the
Eastern District of Pennsylvania. There, the District Court heard
and denied the Defendants' motions for summary judgment.
Magistrate Judge Karen L. Hayes denied the Plaintiffs' first
request but granted in part and denied in part the Plaintiffs'
alternative request for an extension of time. The judge found
that the Plaintiffs' disclosures are insufficient to put the
Defendants on notice of the experts' opinions and thus do not
amount to Rule 26-compliant reports. The judge denied the
Defendants' motion to strike as to Dr. David Schwartz and Mr.
William Ewing, but granted the motion as to Dr. Arnold Brody.
The case is TINA DAVIDSON, ET AL v. GEORGIA PACIFIC, LLC, ET AL.,
CIVIL ACTION NO. 12-CV-1463 (W.D. La.). A full-text copy of the
magistrate judge's memorandum order dated Jan. 6, 2014, is
available at http://is.gd/bMQ5RNfrom Leagle.com.
ASBESTOS UPDATE: NY Court Denies Bid to Dismiss "Garbutt" Suit
--------------------------------------------------------------
In an asbestos personal injury action, defendant Lennox
Industries, Inc., moves for summary judgment dismissing the
complaint and all other claims asserted against it on the ground
that plaintiffs' decedent John Garbutt could not have been exposed
to asbestos from a Lennox boiler because it did not manufacture
boilers until 1992, well after Mr. Garbutt's alleged exposure
period. In opposition, the Plaintiffs argue that Mr. Garbutt's
testimony that he insulated Lennox heating systems with asbestos
during the late 1960's and early 1970's combined with documentary
evidence showing that Lennox manufactured furnaces throughout this
time period raises a triable issue of fact that precludes summary
judgment.
While Mr. Garbutt testified he was exposed to asbestos from Lennox
boilers, which the Defendant purports were not manufactured until
1992, the fact is that Lennox did manufacture heating equipment,
albeit furnaces, throughout his exposure period, Judge Sherry
Klein Heitler of the Supreme Court, New York County, said. In
light of Mr. Garbutt's questionable technical expertise regarding
heating systems, the issue here is one of credibility, which as a
matter of law must be determined by a jury, Judge Klein added.
Accordingly, Judge Klein ordered that Lennox's motion for summary
judgment is denied in its entirety.
The case is JOANN GARBUTT, Individually and as Administratrix for
the Estate of JOHN GARBUTT, Plaintiffs, v. A.O. SMITH WATER
PRODUCTS CO., et al., Defendants, DOCKET NO. 190358/12, MOTION
SEQ. NO. 003 (N.Y. Sup.). A full-text copy of Judge Heitler's
decision and order dated Jan. 2, 2014, is available at
http://is.gd/m0kxJZfrom Leagle.com.
ASBESTOS UPDATE: Lennox's Bid to Dismiss "McGuire" Suit Denied
--------------------------------------------------------------
In an asbestos personal injury action, defendant Lennox
Industries, Inc., moves for summary judgment dismissing the
complaint and all other claims asserted against it on the ground
that plaintiff James McGuire could not have been exposed to
asbestos from Lennox's water-based heating systems. In
opposition, the Plaintiffs argue that Mr. McGuire's testimony that
he was exposed to asbestos when he personally wired Lennox heating
units and while other trades broke down those units in his
presence is sufficient to preclude summary judgment.
In a decision and order dated Jan. 2, 2014, Judge Sherry Klein
Heitler of the Supreme Court, New York County, ruled that all
reasonable inferences should be resolved in favor of the
Plaintiffs. In this case, the fact that Mr. McGuire, a career
electrician, referred to the Lennox heating units he encountered
as water-based does not in and of itself entitle the Defendant to
summary judgment, Judge Heitler said. At most, the testimony
implicates the weight to be given to Mr. McGuire's testimony at
trial, Judge Heitler further ruled. Accordingly, Judge Heitler
denied Lennox's motion for summary judgment.
The case is JAMES E. McGUIRE and CONSTANCE McGUIRE, Plaintiffs, v.
A.O. SMITH WATER PRODUCTS CO., et al., Defendants, DOCKET NO.
190323/12, MOTION SEQ. NO. 002 (N.Y. Sup.). A full-text copy of
Judge Heitler's Decision is available at http://is.gd/gy30mMfrom
Leagle.com.
ASBESTOS UPDATE: Federal Court Issues Ruling in Decades' Old Suit
-----------------------------------------------------------------
Porter Hayden Company has filed a decades' old case alleging that
National Union Fire Insurance Company of Pittsburgh, Pa. and
American Home Assurance Company failed to indemnify Porter Hayden
for asbestos-related liability claims. Pending before the U.S.
District Court for the District of Maryland is the Insurers'
motion for partial summary judgment on horizontal exhaustion. The
Insurers seek a legal ruling that Maryland's horizontal exhaustion
rule requires all available primary insurance to be exhausted
before any excess insurer may be required to pay for the loss.
Also pending is Porter Hayden's motion for summary judgment.
In a memorandum dated Jan. 2, 2014, District Judge Catherine C.
Blake granted in part and denied in part the Insurers' motion for
partial summary judgment on horizontal exhaustion, and granted in
part and denied in part Porter Hayden's motion, as it pertains to
Maryland law governing exhaustion.
Judge Blake agreed with Porter Hayden that the horizontal
exhaustion rule must be understood in the context of Maryland's
adoption of the theory of pro rata allocation. Accordingly, the
Court rejected the Insurers' argument that, because some
operations claims were not subject to an aggregate limit, this
means that some primary insurance policies were not exhausted, and
therefore, no excess insurance may be triggered. The Insurers'
argument rests on the notion that primary policies covering
operations claims must pay more than their pro rata share. The
Insurers' argument also implies that excess insurance may never be
available, because some operations claims were not subject to an
aggregate limit under Porter Hayden's primary insurance. But this
notion defies Mayor and City Council of Baltimore v. Utica Mut.
Ins. Co., 145 Md.App. 256, 313, 802 A.2d 1070, 1104 (2002), which
recognized that "some primary policies that provide less coverage
will be exhausted sooner than others, and their excess insurers,
if any, would accordingly have to respond at an earlier point."
Therefore, the Court did not agree with the Insurers'
interpretation of the horizontal exhaustion rule and, to that
extent, their motion for summary judgment will be denied.
The Court's interpretation of the horizontal exhaustion rule
follows Utica Mutual. In the course of allocating damages
pursuant to the pro rata allocation method, certain years of
primary insurance coverage may prove to be exhausted, while other
years of primary insurance coverage may not be. But this does not
necessarily mean excess insurance is not available, Judge Blake
pointed out. If the primary insurance as to a particular year on
the risk has been exhausted, then an excess policy applicable to
that year must pay its pro rata share, Judge Blake said.
As for operations claims not subject to an aggregate limit, excess
insurance for those claims may not be available for a particular
year or years due to lack of exhaustion, Judge Blake stated.
Where primary coverage has been exhausted, however, excess
insurance may be required to pay for those losses. This
interpretation, Judge Blake pointed out, avoids the problem of
requiring an insurer to pay more than its pro rata share. It is
also consistent with the recognition of Utica Mut. that certain
primary policies may be exhausted sooner than others and, as a
result, certain excess policies respond sooner than others, Judge
Blake said. Accordingly, Porter Hayden's motion for summary
judgment is granted in part, insofar as its interpretation of the
horizontal exhaustion rule matches that of the court, and
otherwise denied.
The case is NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PA., et al. v. PORTER HAYDEN COMPANY, et al., CIVIL NO. CCB-03-
3414, NO. CCB-03-3408 (D. Md.). A full-text copy of Judge Blake's
Decision is available at http://is.gd/WL3HCdfrom Leagle.com.
ASBESTOS UPDATE: Court Denies CSX's Bid to Dismiss "Lowman" Suit
----------------------------------------------------------------
Judge Eduardo C. Robreno of the U.S. District Court for the
Eastern District of Pennsylvania approved and adopted the report
and recommendations of Magistrate Judge Angell in the case styled
IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI) relating to
LOWMAN v. VARIOUS DEFENDANTS, NO. 10-78962, CONSOLIDATED UNDER MDL
DOCKET NO. 875 (E.D. Pa.). Judge Robreno overruled Defendant CSX
Transportation's objection to Magistrate Judge Angell's Report and
Recommendation.
The case was transferred in August of 2010 from the United States
District Court for the Southern District of Georgia to the United
States District Court for the Eastern District of Pennsylvania as
part of MDL-875. Plaintiff, Horace Lowman, alleges that he was
exposed to asbestos while working for CSX Transportation as a
sheetmetal worker from 1963 to 1969 at the Defendant's Waycross,
Georgia facility. Defendant CSX moved for partial summary
judgment as to Plaintiff's claims under the Locomotive Inspection
Act.
On Feb. 22, 2013, Judge Angell issued a report and recommendation
regarding the Defendant's partial motion for summary judgment
recommending that CSX's motion be denied because it had not
established it was entitled to judgment as a matter of law.
Specifically, Judge Angell noted that CSX "had not established
that the locomotives were not 'in use' where the Plaintiff had
testified that he performed repairs on trains which were on the
road, and not in an engine house or maintenance facility."
Judge Robreno agreed with Judge Angell that CSX has not
established that the locomotive was not "in use" at the time of
the injury when it was on the road when Plaintiff was making
repairs and was exposed to the alleged asbestos-containing
products. Additionally, Judge Robreno was not persuaded that
Congress intended to exclude all injuries incurred from the repair
of defective conditions from liability under the LIA.
A full-text copy of Judge Robreno's order dated Jan. 2, 2014, is
available at http://is.gd/CPFmt1from Leagle.com.
ASBESTOS UPDATE: Calif. Court Junks "Olds" PI Suit v. Eaton Corp.
-----------------------------------------------------------------
Judge Manuel Real of the U.S. District Court for Central District
of California issued an order on Jan. 2, 2014, in favor of
defendant Eaton Corporation in the asbestos-related personal
injury action styled PAUL OLDS, Plaintiff, v. 3M COMPANY, et al.
Defendants, NO. 2:12-CV-08539-R-MWR (C.D. Calif.).
In this case, the Plaintiff's complaint for personal injury
alleges causes of action for negligence, strict liability, and
breach of warranty in connection with the Plaintiff's work as a
jet propulsion mechanic in the Air Force from 1948 to 1968 and as
a refrigeration mechanic and supervisor at Ryder Truck Rental in
Orlando, Florida from approximately 1968 to 1980.
Judge Real held that all of the Plaintiff's causes of action
against Eaton fail for lack of causation because Eaton presented
undisputed evidence, including the Plaintiff's own deposition
testimony, that the Plaintiff was not exposed to any asbestos-
containing product for which Eaton may be liable. Even if the
Plaintiff encountered asbestos-containing products manufactured,
supplied or distributed by Eaton, there is no admissible evidence
plaintiff was exposed to asbestos dust from Eaton products, Judge
Real further ruled.
A full-text copy of Judge Real's statement of facts and
conclusions of law is available at http://is.gd/5OMxYdfrom
Leagle.com.
ASBESTOS UPDATE: Court Denies Dana's Bid to Dismiss "Juni" Suit
---------------------------------------------------------------
Judge Sherry Klein Heitler of the Supreme Court, New York County,
denied defendant Dana Companies, LLC's motion for summary judgment
dismissing the complaint and all cross-claims against it on the
ground that the plaintiffs have not established that Spicer-brand
clutches and Victor-brand gaskets, two products for which Dana is
responsible, contributed to Plaintiff Arthur Juni's asbestos
exposure.
According to Judge Heitler, the assertion of Marcy Duncan, a
former Dana sales manager, that "some, but not all" gaskets
produced by Dana contained asbestos is not supported by
documentary evidence and therefore insufficient to form the basis
of a summary judgment motion. Judge Heitler added that while Ms.
Duncan states that "it is not possible to determine if a gasket
contained asbestos unless a particular part number or specific
information about the application is available," Mr. Juni made it
very clear in his testimony that the Victor gaskets he used were
automotive manifold gaskets.
The case is ARTHUR H. JUNI, JR. and MARY JUNI, Plaintiffs, v. A.O.
SMITH WATER PRODUCTS CO, et al., Defendants, NO. 190315/12, MOTION
SEQ. NO. 010 (N.Y. Sup.). A full-text copy of Judge Heitler's
decision and order dated Jan. 6, 2014, is available at
http://is.gd/LVZbosfrom Leagle.com.
ASBESTOS UPDATE: NY Court Issues Ruling in AIG Reinsurance Lawsuit
------------------------------------------------------------------
Judge O. Peter Sherwood of the Supreme Court, New York County, in
December 2013, granted a motion filed by Granite State Insurance
Company, American Home Assurance Company, and National Union Fire
Insurance Company of Pittsburgh, PA (collectively referred to as
the "AIG Insurers") seeking dismissal of certain of defendant
Transatlantic Reinsurance Company's affirmative defenses in an
action to recovery monetary damages for breach of contract, as
well as for declaratory judgment ordering the Defendant to fulfill
commitments to Plaintiffs under reinsurance agreements. The
reinsurance agreements were for losses the AIG Insurers incurred
as a result of providing insurance coverage to Transamerica
Corporation, which became the subject of many asbestos-related
personal injury claims.
Judge Sherwood granted the AIG Insurers' motion to the extent
that: (1) that part of the Defendant's fourth affirmative defense
that alleges that the Plaintiffs breached their duty to promptly
settle the action, and (2) the ninth affirmative defense --
Plaintiffs breached their obligation of uberrima fides -- are
dismissed, and is otherwise denied. Judge Sherwood further
ordered that the motion of plaintiff Granite State Insurance
Company for summary judgment in its favor against the Defendant is
denied.
The case is GRANITE STATE INSURANCE COMPANY, AMERICAN HOME
ASSURANCE COMPANY, AND NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA, Plaintiffs, v. TRANSATLANTIC REINSURANCE COMPANY,
Defendant, DOCKET NO. 652506/2012, MOTION SEQ. NOS. 001 & 002
(N.Y. Sup.). A full-text copy of Judge Sherwood's decision and
order dated Dec. 24, 2013, is available at http://is.gd/libi2A
from Leagle.com.
ASBESTOS UPDATE: Court Grants Writ of Mandate in "Hart" Suit
------------------------------------------------------------
William Hart filed a complaint in July 2013 against numerous
defendants seeking damages for personal injuries arising from
exposure to asbestos. The trial court determined that the
plaintiff, then 76 years old, was entitled to trial preference
based on a physician's declaration that there was "substantial
medical doubt of [plaintiff's] survival beyond even a few weeks'
time.'
The Plaintiff's counsel noticed the plaintiff's deposition and
conducted a direct examination lasting approximately 14 hours over
several days. The Defendants then conducted several hours of
examination before defendants Scott Company of California and
Douglass Insulation Company, Inc., filed a noticed motion, on
shortened time, for additional time to complete the deposition.
Defendant Certainteed Corporation and other defendants joined in
the motion. On November 25, 2013, the day before the hearing on
the motion, the Plaintiff's counsel suspended the deposition of
his client after the Defendants had completed 14 hours of
examination.
In ruling on the Defendants' motion, the trial court determined
that the Defendants were limited to a total of 14 hours of
examination pursuant to section 2025.290, subdivision (b)(3) of
the Code of Civil Procedure and therefore denied the motion.
Certainteed Corporation filed a petition for writ of mandate or
other appropriate relief in the Court of Appeals of California,
Second District, Division Three, challenging the denial of the
motion and seeking an immediate stay of the trial. Other
defendants joined in the petition. FDCC California, Inc., Oscar
Erickson, Inc., and Foster Wheeler LLC filed separate petitions
seeking the same relief.
In a decision dated Jan. 8, 2014, the Court of Appeals granted the
petitions for writ of mandate. The Court of Appeals concluded
that the denial of the motion for additional time to complete the
Plaintiff's deposition based on the trial court's interpretation
of the provisions of section 2025.290, subdivision (b)(3) was
clearly erroneous. Instead, the trial court must reconsider the
Defendants' motion and exercise its discretion by determining
whether and how to limit the Plaintiff's deposition in the
interests of justice in light of the Plaintiff's current medical
condition and all of the relevant circumstances, the Court of
Appeals said. The current state of the Plaintiff's health, his
right to a trial preference, and the imminent trial date
constitute exigent circumstances justifying immediate relief so as
to increase the possibility that the Plaintiff's deposition can be
completed without a lengthy postponement of the trial date, the
Court of Appeals added.
The cases are CERTAINTEED CORPORATION, Petitioner, v. THE SUPERIOR
COURT OF LOS ANGELES COUNTY, Respondent; WILLIAM HART, Real Party
in Interest, NO. B253308 (Cal App.); FDCC CALIFORNIA, INC.,
Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent, WILLIAM HART, Real Party in Interest, No. B253311
(Cal. App.); OSCAR ERICKSON, INC., Petitioner, v. THE SUPERIOR
COURT OF LOS ANGELES COUNTY, Respondent; WILLIAM HART, Real Party
in Interest, No. B253316 (Cal. App.); and FOSTER WHEELER LLC,
Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent; WILLIAM HART, Real Party in Interest, No. B253330
(Cal. App.). A full-text copy of the decision penned by Justice
H. Walter Croskey is available at http://is.gd/EDA7Spfrom
Leagle.com.
Farah S. Nicol, Esq. -- fnicol@mckennalong.com -- and Margaret I.
Johnson, Esq. -- mjohnson@mckennalong.com -- at McKenna Long &
Aldridge, for Petitioner Certainteed Corporation.
Jennifer A. Cormier, Esq. -- jcormier@wfbm.com -- at Walsworth,
Franklin, Bevins & McCall, for Petitioners FDCC California, Inc.,
and Oscar E. Erickson, Inc.
Edward R. Hugo, Esq. -- ehugo@bhplaw.com -- Shaghig D. Agopian,
Esq. -- sagopian@bhplaw.com -- and Thomas J. Moses, Esq. --
tmoses@bhplaw.com -- at Brydon Hugo & Parker, for Petitioner
Foster Wheeler LLC.
Steven M. Fishback, Esq. -- sfishback@kflegal.com -- at Keller,
Fishback & Jackson, for Real Party in Interest.
ASBESTOS UPDATE: CBS Bid to Dismiss "Feinstein" Suit Denied
-----------------------------------------------------------
In a decision and order dated Jan. 6, 2014, Judge Sherry Klein
Heitler of the Supreme Court, New York County, denied defendant
CBS Corporation's motion for summary judgment dismissing the
complaint and all cross-claims asserted against it on the ground
that there is no evidence to show that plaintiff's decedent Edward
Feinstein was exposed to asbestos fibers released from a
Westinghouse product.
Judge Heitler found that under the circumstances in the case, the
plaintiffs have raised a triable issue of fact that precludes
summary judgment. Judge Heitler pointed out that while Mr.
Feinstein did not explicitly name Westinghouse motors as a source
of his exposure, the documentary evidence shows that Westinghouse
motors which may have contained asbestos powered the turbines and
pumps that Mr. Feinstein did identify as sources of his exposure.
The case is BRIAN FEINSTEIN, INDIVIDUALLY AND AS A TRUSTEE OF THE
EDWARD FEINSTEIN LIVING TRUST, Plaintiff, v. ARMSTRONG
INTERNATIONAL, INC. et al., Defendants, DOCKET NO. 190195/12,
MOTION SEQ. 011 (N.Y. Sup.). A full-text copy of Judge Heitler's
Decision is available at http://is.gd/JHUNNLfrom Leagle.com.
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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
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