/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140502.mbx C L A S S A C T I O N R E P O R T E R Friday, May 2, 2014, Vol. 16, No. 87 Headlines ACTAVIS INC: Faces Class Action Over Drug Side Effects ABAXIS INC: Settlement Gets Preliminary Court Approval ALASKA AIRLINES: Judge Tosses Unpaid Incentive Class Action AMAZON SERVICES: Sued for Breaching Duty to Prime Program Members AMWARE DISTRIBUTION: Bid for Notice of Collective Action Denied ANGIE'S LIST: Reaches Settlement in Suit Over Membership Fees ANGIE'S LIST: Indiana Court Sets Scheduling Order in Stock Suits ATLANTIC POWER: Faces Securities Suits in Canada, United States ATLANTIC POWER: Lead Counsel Yet to be Named in Mass. Stock Suit ATLANTIC POWER: Faces Securities Suits in Ontario, Quebec Courts BAXTER INT'L: Agrees to Settle Class Action for $64 Million BAYVIEW LOAN: Invaded Class Members' Privacy, Cal. Suit Claims BEN BRIDGE-JEWELER: Court Defers Summary Judgment Bid Ruling BOB'S DISCOUNT: Suit Seeks Damages Under Maryland Wage & Hour Law BUFFALO BILLS: Settles Text Message Class Action for $3 Million CHRISTOPHER DUNTSCH: Faces Medical Malpractice Suits CLARK COUNTY, IN: Faces Class Action Over Drug Treatment Program CLEANIS INC: Ordered to Fix Aspects of Responsive Pleading DENSO CORP: Faces "SLTNTRST" Antitrust Class Suit in Michigan DENSO CORP: Fixes Price of Windshield Washer Systems, Suit Says DENSO CORP: Sued for Fixing Prices of Windshield Wiper Systems EVERBANK FINANCIAL: EverBank Still Faces "Vathana" Suit in Cal. EVERBANK FINANCIAL: Seeks Judgment in Suit by Ark. Circuit Clerk EVERBANK FINANCIAL: EverBank Still Faces Litigation Over MERS EVERBANK FINANCIAL: Peterson v. CitiMortgage Now Concluded EVERBANK FINANCIAL: EverBank Still Faces TCPA Violations Suit FORD MOTOR: Must Face Suit for Aiding South African Apartheid GENERAL MILLS: Institutes Program to Restrict Legal Action GOOGLE INC: Appeals Certification of Gmail Ad Class Action HI-CRUSH PARTNERS: Misrepresentation Claims Remain in Stock Suit HITACHI AUTOMOTIVE: Sued for Fixing Valve Timing Controls' Prices JP MORGAN: Sued in Ill. for Sending Unlawful Ads to Fax Machines JUICY COUTURE: Sued for Not Having Blind-Accessible POS Devices KR DRENTH: Fails to Pay Workers According to FLSA, Suit Claims LIBERTY MEDIA: Suit Over Acquisition of SIRIUS Shares Continues MAPCO EXPRESS: Faces Class Suit Arising From Security Breaches MARICOPA COMMUNITY: Faces Class Action Over Massive Data Breach MATTLEMAN WEINROTH: Judge Approves Class Action Settlement METROPOLITAN LIFE: "Cadenasso" Suit Transferred to Florida Court MONCKS CORNER: Has Inflicted Emotional Distress, Officers Claim MONSTER BEVERAGE: Issues Statement on Class Action Settlement MONTAGE TECHNOLOGY: Sued for Not Disclosing True Financial Health NEST LABS: Sold Defective Nest Thermostat Products, Suit Claims NEW YORK, NY: Faces Suit for Exploiting People With Petty Crimes NIELSEN CO: Agrees to Pay Overtime Class Action for $1.2 Million NIKON INC: Faces "Hill" Suit Over Defective D600 Camera Shutter NISSAN MOTOR: Faces Class Action Over Debt Collection Calls NORTHWEST SAVINGS: Settles Suit Over Posting of Bank Transactions OISHII THAI: Fails to Pay Minimum and Overtime Wages, Suit Claims OTTAWA: Flood Victims Seek Court Certification for C$200MM Suit PELLA CORP: "Romig" Suit Transferred from N.Y. to South Carolina QUALITY MEDICAL: Accused of Sending TCPA-Prohibited Fax Blasts SAULT AREA HOSPITAL: Law Firm Mulls Class Action Over Data Breach SIOUX CITY, IA: Settles Suit Over Utility Bill Franchise Fee ST. MARK PLUMBING: Fails to Properly Pay Overtime, Suit Claims SUMMER INFANT: Recalls Infant Monitor Rechargeable Batteries SUNNYVALE DEL GRANDE: Court Reverses Arbitration Denial Ruling SWIFT TRANSPORTATION: Denied Arbitration in Owner-Operators' Suit SWIFT TRANSPORTATION: Fights Appeal in FLSA Violations Lawsuit SWIFT TRANSPORTATION: Still Faces Calif. Labor Lawsuit by Drivers SWIFT TRANSPORTATION: "Montalvo" Certification Order on Appeal SWIFT TRANSPORTATION: Cert. Ruling in Wash. Drivers Suit on Apeal SWIFT TRANSPORTATION: CRT Moves to Arbitrate E.D. Va. FCRA Suit SWIFT TRANSPORTATION: Utah Employees File Suit Against CRS SWIFT TRANSPORTATION: Arbitrator Trims Down Claims v. CRS SWIFT TRANSPORTATION: CRS Denies Claims in Cal. Labor Suit SYNERGETIC COMMUNICATION: Faces "Mitchell" Class Suit in New York TARGET CORP: Supreme Court Won't Revive Usury Class Action TROY CONSTRUCTION: Class Suit Seeks to Redress FLSA Violations UNION BANK: Faces "Rubel" Class Suit Alleging TCPA Violations UNIVERSAL FIDELITY: Court Allows More Discovery in "Swelnis" Case VALEO SA: Faces Antitrust Action Over Air Conditioning Systems VALEO SA: Accused of Fixing Prices of Air Conditioning Systems WASHINGTON NATIONAL: Removed "Melin" Class Suit to N.D. Illinois WASTE MANAGEMENT: Faces Suit Over MCHM-Contaminated Wastewater WEBSTER AVE: Suit Seeks to Recover Unpaid Wages and Overtime Pay WHITEWAVE FOODS: Faces Mislabeling Lawsuit in S.D. Cal. Court * Tools Needed to Authorize Class Actions v. Financial Predators Asbestos Litigation ASBESTOS UPDATE: Diamond Offshore Continues to Defend Fibro Suits ASBESTOS UPDATE: Advance Auto Continues to Defend Fibro Suits ASBESTOS UPDATE: Enpro Continues to Negotiates with GST Claimants ASBESTOS UPDATE: 3 Garlock Sealing Appeals Remain Pending ASBESTOS UPDATE: Fibro Study Costs of Ex-Hospital Site Divided ASBESTOS UPDATE: Victims Pressure Yale to Revoke Degree ASBESTOS UPDATE: Advocates Call for Fibro Bylaw in Saskatchewan ASBESTOS UPDATE: Cedar Grove Schools Spend on Fibro Monitoring ASBESTOS UPDATE: Florence Accepts Bid for Trust Demolition ASBESTOS UPDATE: Oroville Library Closes for Renovations ASBESTOS UPDATE: Hazardous Material Probes Continue Despite Fire ASBESTOS UPDATE: Post Office Counter Opening at Stiby Road Co-op ASBESTOS UPDATE: Dire Warning on Mr. Fluffy in Canberra Homes ASBESTOS UPDATE: Fire Destroys Theatre and Studio in Lewes ASBESTOS UPDATE: McGann-Mercy Closed Due to Night Fire ASBESTOS UPDATE: Deadly Dust Found at Porirua Kindergarten ASBESTOS UPDATE: FELA Suit Claims CSX Allowed Fibro Exposure ASBESTOS UPDATE: Bristol Developer Fined for Breaking Safety Code ASBESTOS UPDATE: NYCAL Consolidates 17 Fibro Trials ASBESTOS UPDATE: GBP70,000 Payout for Doncaster Rail Worker Death ASBESTOS UPDATE: Sentences Handed Down for Abatement Violations ASBESTOS UPDATE: Deadly Dust Closes Much of Fanning School ASBESTOS UPDATE: Ill. Court Awards $202K to Artra 524(g) Trust ASBESTOS UPDATE: Excess Insurer Can't Intervene in Hall's Ch. 7 ASBESTOS UPDATE: NLI's Bid to Enforce Confirmation Order Denied ASBESTOS UPDATE: CNH Prohibited From Deposing Opponent's Counsel ASBESTOS UPDATE: Order in Ex-Worker's Bias Suit Modified ASBESTOS UPDATE: Ruling in Widow's Death Benefits Suit Affirmed ASBESTOS UPDATE: NY Court Affirms Ruling in Labor Law Suit ASBESTOS UPDATE: Ruling in Ex-Bayer Corp. Worker's Suit Upheld ASBESTOS UPDATE: NY Court Affirms Jury Verdict in "Suttner" Suit ASBESTOS UPDATE: Opinion in "Scott" Suit Modified ASBESTOS UPDATE: Borden Denied Summary Judgment in "Proctor" Suit ASBESTOS UPDATE: Magistrate Judge Recommends Remand of PI Suit ********* ACTAVIS INC: Faces Class Action Over Drug Side Effects ------------------------------------------------------ HarrisMartin reports that a Pennsylvania couple has filed a class action complaint against the makers of testosterone therapy drugs AndroDerm and Depo Testosterone, accusing them of aggressively marketing their products while failing to warn users of life- threatening side effects such as cardiac events and stroke. In a complaint filed April 14 in the U.S. District Court for the Eastern District of Pennsylvania, Walter and Donna McGill accuse the drug makers, including Actavis Inc., of misrepresenting AndroDerm and Depo Testosterone as safe and effective treatment for hypogonadism or "low testosterone," when, in fact, they can cause cardiac events, strokes and thrombolytic events. ABAXIS INC: Settlement Gets Preliminary Court Approval ------------------------------------------------------ On April 15, 2014, the United States District Court for the Northern District of California, granted preliminary approval of a settlement that Abaxis, Inc. has reached with Plaintiff St. Louis Police Retirement System in a shareholder class and derivative action that Plaintiff filed on October 1, 2012 on behalf of itself and all others similarly situated, and derivatively on behalf of Abaxis, and against certain of Abaxis's officers and directors, entitled St. Louis Police Retirement System v. Severson, et al., Case No. 12-cv-05086-YGR (N.D. Cal.). The Court's order granting preliminary approval of the settlement requires Abaxis to provide notice to its stockholders of the information about the Action contained in this press release. The Action alleges, among other things, that the Abaxis proxy statement in connection with the Company's 2012 annual meeting of stockholders contained materially false and misleading statements concerning a proposed amendment to the Company's 2005 Equity Incentive Plan and that Defendants granted and/or received Abaxis restricted stock units in excess of the so-called Full Value Award limit under the Company's 2005 Equity Incentive Plan. On October 23, 2012, the Court granted, in part, a motion for preliminary injunction filed by Plaintiff and ordered Abaxis to make additional disclosures to Abaxis stockholders in connection with Abaxis's 2012 annual meeting of stockholders. Thereafter, Defendants filed motions to dismiss, in which Defendants argued that Plaintiff, inter alia, failed to state a claim for relief. The parties then engaged in settlement negotiations that resulted in the proposed settlement of the Action, the terms of which are set forth in a Stipulation of Settlement dated as of January 16, 2014. The terms of the Settlement set forth in the Stipulation include: (a) the adoption and/or implementation of a variety of corporate governance measures, including, but not limited to, measures that relate to officer and director compensation and equity award granting procedures; (b) that the Released Claims against the Released Persons shall be dismissed; and (c) that Plaintiff will apply to the Court for an award of attorneys' fees and expenses in an amount not to exceed $2,000,000. On June 17, 2014, at 2:00 p.m., a hearing (the "Settlement Hearing") will be held before the United States District Court for the Northern District of California, Oakland Division, at the Oakland Courthouse, Courtroom 1, 4th Floor, 1301 Clay Street, Oakland, CA 94612, to determine: (a) whether the Court should certify the Action as a non-opt-out class action pursuant to Fed. R. Civ. P. 23; (b) whether the Court should approve the proposed Settlement; (c) whether the Court should enter an Order and Final Judgment dismissing the claims asserted in the Action on the merits and with prejudice and effectuating the releases described below; (d) whether the Court should grant the application of Plaintiff's counsel for a fee award; and (e) such other matters as may properly come before the Court. IF YOU WERE A HOLDER OF ABAXIS COMMON STOCK, EITHER OF RECORD OR BENEFICIALLY, AS OF THE CLOSE OF BUSINESS ON AUGUST 31, 2012, YOUR RIGHTS WILL BE AFFECTED BY PROCEEDINGS IN THE ACTION. Any Abaxis shareholder who objects to the Settlement, the Order and Final Judgment to be entered in the Action, and/or Plaintiff's counsel's application for a fee award, or who otherwise wishes to be heard, may appear in person or by his attorney at the Settlement Hearing and present evidence or argument that may be proper and relevant; provided, however, that, except for good cause shown, no person shall be heard and no papers, briefs, pleadings or other documents submitted by any person shall be considered by the Court unless not later than twenty one (21) calendar days prior to the Settlement Hearing such person files with the Clerk of the Court and delivers upon the following counsel (delivered by hand or sent by first class mail) (1) a written objection to the Settlement setting forth: (a) the nature of the objection; (b) proof of current ownership of Abaxis common stock, including the number of shares of Abaxis common stock currently held and the date of purchase of Abaxis common stock; and (c) any documentation in support of such objection; and (2) if a current Abaxis shareholder intends to appear and requests to be heard at the Settlement Hearing, such shareholder must have, in addition to the requirements of (1) above, (a) a written notice of such shareholder's intention to appear; (b) a statement that indicates the basis for such appearance; and (c) the identities of any witnesses the shareholder intends to call at the Settlement Hearing and a statement as to the subjects of their testimony, signed as authorized by the objecting shareholder. Such filings shall be delivered to the following counsel: Eric L. Zagar KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Jonathan M. Stein SAXENA WHITE, P.A. 2424 N. Federal Highway, Suite 257 Boca Raton, FL 33431 Counsel for Plaintiff St. Louis Police Retirement System and Thad A. Davis GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Counsel for Individual Defendants PLEASE DO NOT CALL, WRITE OR OTHERWISE DIRECT QUESTIONS TO EITHER THE COURT OR THE CLERK'S OFFICE. Inquiries or comments about the Settlement or any other matters in this Notice should be directed by telephone or in writing to the attention of Plaintiff's Counsel, Eric L. Zagar, Kessler Topaz Meltzer & Check, LLP, 280 King of Prussia Road, Radnor, PA 19087, 1-888-299-7706. PLEASE NOTE: THERE IS NO CLAIMS PROCEDURE, AS NO INDIVIDUAL SHAREHOLDER HAS THE RIGHT TO BE COMPENSATED AS A RESULT OF THE SETTLEMENT DESCRIBED HEREIN. ALASKA AIRLINES: Judge Tosses Unpaid Incentive Class Action ----------------------------------------------------------- Daniel Siegal, writing for Law360, reports that Alaska Airlines and FIA Card Services NA urged a California federal judge on April 21 to toss a putative class action alleging the companies shortchanged Alaska employees who were promised incentive payments for recruiting credit card customers, saying the suit can't survive without alleging breach of contract. The hearing saw Alaska Airlines and FIA attempt to fend off for the fifth time plaintiff Terrence Rutherford's allegations that the companies had failed to pay the former Alaska Airlines employee what he was owed for getting customers to sign up for Alaska Airlines-brand credit cards through FIA, which runs Bank of America NA's credit card operations. During a hearing in Los Angeles, Robert Stern -- rstern@mofo.com -- of Morrison & Foerster LLP, representing FIA, told U.S. District Judge Dean Pregerson that Mr. Rutherford's second amended complaint should be dismissed because it only features an accounting claim -- not a breach of contract claim necessary to establish legally that he was underpaid. "Accounting is a remedy, it has to be attached to a cause of action," Mr. Stern said. "There's no underlying claim to attach the accounting remedy to . . . and counsel admitted that there's no underlying claim." Mr. Rutherford first filed suit against Alaska and FIA in 2011, bringing allegations that Bank of America and the airlines were failing to live up to the terms of an employee incentive program put into place in 2005. Under the program, employees earn compensation when they give a customer an application for an Alaska Airlines credit card, and the application is processed or accepted. Mr. Rutherford alleged that because the airline simply lists all incentive payments in one line on employees' pay stubs, employees don't know if they are being compensated for all of the applications they gave to customers that were submitted. That suit was dismissed in January 2013 because the statute of limitations barred its claims, and Rutherford tried again in April 2013, filing the current action on behalf of all employees who participated in the program after the dismissal of the first suit. In September 2013, Judge Pregerson granted the defendants' motions to dismiss the suit, saying in his ruling that Rutherford's allegations and background facts are "virtually identical" between the prior, dismissed, suit and the current action, but granted leave to amend. Rutherford filed his second amended complaint in March. On April 21, Stephen O'Dell of Marlin & Saltzman LLP, representing the plaintiffs, told Judge Pregerson that the second amended complaint doesn't contain a breach of contract claim because his client does not know if he was underpaid because the defendants have withheld records revealing how many applications were submitted that listed Rutherford as the referring employee. "It's possible there's no damages, and that's the very reason for an accounting claim," he added. Judge Pregerson, however, was skeptical, asking O'Dell how the suit can support a claim for damages without laying out in the suit a contract under which his client was owed payment and that was allegedly violated. "What created the obligation for [the plaintiffs] to be paid, unless there isn't one?" he said. "I'm trying to understand why your client is entitled to any money." The plaintiffs are represented by Louis M. Marlin and Stephen P. O'Dell of Marlin & Saltzman LLP and Thomas A. Cifarelli of The Cifarelli Law Firm LLP. FIA is represented by Robert S. Stern, Dale K. Larson -- dlarson@mofo.com -- and Tritia M. Murata -- tmurata@mofo.com -- of Morrison & Foerster LLP. Alaska Airlines is represented by Philip F. Atkins-Pattenson -- patkinspattenson@sheppardmullin.com -- of Sheppard Mullin Richter & Hampton LLP. The case is Terrance D. Rutherford v. FIA Card Services NA et al., case number 2:13-cv-02934, in the U.S. District Court for the Central District of California. AMAZON SERVICES: Sued for Breaching Duty to Prime Program Members ----------------------------------------------------------------- Dr. A. Cemal Ekin, individually and on behalf of similarly situated individuals v. Amazon Services LLC, a Nevada limited liability company, Case No. 2:14-cv-00244-JCC (W.D. Wash., February 19, 2014) results from Amazon's alleged breach of its contractual obligation to its Prime Program Members. The routine inclusion and encouragement of inclusion of shipping charges in the prices of Fulfillment by Amazon Prime-Eligible items constitutes a breach of Amazon's promise to Prime Program Members that shipping charges would not be included in the prices of items offered for sale as FBA Prime-Eligible, and violates Amazon's agreement that shipping would be "free," Dr. Ekin contends. Amazon Services LLC is a Nevada limited liability company headquartered in Seattle, Washington. The Company, Amazon.com and affiliates, form the world's largest online retailer. The Plaintiff is represented by: Stephen J. Sirianni, Esq. Chris R. Youtz, Esq. Richard E. Spoonemore, Esq. Eleanor Hamburger, Esq. Charles D. Sirianni, Esq. David M. Simmonds, Esq. SIRIANNI YOUTZ SPOONEMORE HAMBURGER 999 Third Avenue, Suite 3650 Seattle, WA 98104 Telephone: (206) 223-0303 Facsimile: (206) 223-0246 E-mail: ssirianni@sylaw.com cyoutz@sylaw.com rspoonemore@sylaw.com ehamburger@sylaw.com csirianni@sylaw.com davemsimmonds@gmail.com Interested Party Marcia Burke is represented by: Kim D. Stephens, Esq. TOUSLEY BRAIN STEPHENS 1700 Seventh Ave., Suite 2200 Seattle, WA 98101 Telephone: (206) 682-5600 E-mail: kstephens@tousley.com The Defendant is represented by: James C. Grant, Esq. Rebecca J. Francis, Esq. DAVIS WRIGHT TREMAINE (SEA) 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Telephone: (206) 757-8096 Facsimile: (206) 757-7096 E-mail: jamesgrant@dwt.com RebeccaFrancis@dwt.com AMWARE DISTRIBUTION: Bid for Notice of Collective Action Denied --------------------------------------------------------------- TIFFANY R. BUTZ and JANICE M. PERRY, on behalf of themselves and all those similarly situated who consent to representation, Plaintiffs, v. AMWARE DISTRIBUTION WAREHOUSES OF GEORGIA, INC., and AMWARE LOGISTICS SERVICES, INC., Defendants, NO. 1:13-CV- 3204-WSD, (N.D. Ga.), is before the Court on Plaintiffs' Motion for Court Supervised Notice to a Conditional Collective Action, and Plaintiffs' Motion for Extension of Time to Complete Discovery. In an opinion and order dated April 16, 2014, a copy of which is available at http://is.gd/G2O9TBfrom Leagle.com, District Judge William S. Duffey, Jr., found that the Plaintiffs have not provided facts sufficient to show a class of similarly situated employees, and that the Plaintiffs' claims are not representative of the class they seek to represent. For these reasons, Judge Duffey denied the Plaintiffs' Motion for Court Supervised Notice to a Conditional Collective Action. The Plaintiffs' Motion for Extension of Time to Complete Discovery was granted. The parties must, on or before April 30, 2014, submit a joint deposition schedule, he said. Tiffany R. Butz, Plaintiff, represented by Kattegummula Prabhaker Reddy, The Reddy Law Firm, PC & Andrew Yancey Coffman, Parks Chesin & Walbert. Janice M. Perry, on behalf of themselves and all those similarly situated who consent to representation, Plaintiff, represented by Kattegummula Prabhaker Reddy -- kpr@reddylaw.net -- The Reddy Law Firm, PC & Andrew Yancey Coffman -- acoffman@pcwlawfirm.com -- Parks Chesin & Walbert. Amware Distribution Warehouses of Georgia, Inc., Defendant, represented by Gary B. Andrews, Jr. -- Blake@AndrewsStembridge.com -- Andrews & Stembridge, LLC & John T. Stembridge -- John@AndrewsStembridge.com -- Andrews & Stembridge, LLC. Amware Logistics Services, Inc., Defendant, represented by Gary B. Andrews, Jr., Andrews & Stembridge, LLC & John T. Stembridge, Andrews & Stembridge, LLC. ANGIE'S LIST: Reaches Settlement in Suit Over Membership Fees ------------------------------------------------------------- Angie's List, Inc. and the plaintiff in a suit over membership fees have agreed in principle to settlement terms for the case pending in the U.S. District Court for the Southern District of Indiana, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On August 14, 2012 a lawsuit seeking class action status was filed against the Company in the U.S. District Court for the Southern District of Indiana. The lawsuit alleges claims of breach of contract and unjust enrichment, alleging that the Company automatically renews membership fees at a higher rate than customers are led to believe, breaching their membership agreements. The plaintiff seeks compensatory damages and an award of treble damages, attorneys' fees and costs. The Company and the plaintiff have agreed in principle to settlement terms, which remains subject to Court approval. As of December 31, 2013, the Company has recorded a $4,000 legal accrual related to the settlement. ANGIE'S LIST: Indiana Court Sets Scheduling Order in Stock Suits ---------------------------------------------------------------- The U.S. District Court for the Southern District of Indiana entered a scheduling order in the securities suits Baron v. Angie's List, Inc., et al. and Bartolone v. Angie's List, Inc., et al. pursuant to which, upon appointment as lead plaintiff, the plaintiff has sixty days with which to file a consolidated complaint or stand on the current complaint, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On December 23, 2013, a class action complaint was filed in the Court, naming the Company and various current and former directors and officers as defendants and alleging that the defendants violated Section 10(b) of the Securities Act of 1934 (the "Exchange Act") by making material misstatements in and omitting material information from the Company's public disclosures concerning the Company's business prospects. The complaint further alleges that the defendants violated Section 20(a) of the Exchange Act by virtue of their positions as control persons. The plaintiff has requested unspecified damages, interest, and costs, as well as ancillary relief. On January 23, 2014, the Court entered a scheduling order pursuant to which, upon appointment as lead plaintiff, the plaintiff has sixty days with which to file a consolidated complaint or stand on the current complaint. Pursuant to that order, the Company's response to that complaint is due sixty days thereafter. On January 9, 2014, a class action complaint was filed in the Court, naming the same defendants, asserting the same claims, and asking for the same relief as sought in Baron v. Angie's List, Inc., et al. On January 29, 2014, the Court entered a scheduling order identical to the order entered in Baron. Baron and Bartolone are collectively referred to as the "Stockholder Class Action." The Company believes that the Stockholder Class Action is without merit and intends to vigorously defend against it. ATLANTIC POWER: Faces Securities Suits in Canada, United States --------------------------------------------------------------- Atlantic Power Corporation is facing securities lawsuits in the Ontario Superior Court of Justice, in the Province of Ontario in the Superior Court of Quebec in the Province of Quebec and in the United States District Court for the District of Massachusetts, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On March 8, 14, 15 and 25, 2013 and April 23, 2013, five purported securities fraud class action complaints related to, among other things, claims that the company made materially false and misleading statements and omissions regarding the sustainability of the company's common share dividend that artificially inflated the price of the company's common shares were filed in the United States District Court for the District of Massachusetts against the company and certain of the company's current and former executive officers. On March 19, 2013 and April 2, 2013, two notices of action relating to purported Canadian securities class action claims were also issued by alleged investors in Atlantic Power common shares, and in one of the actions, holders of Atlantic Power convertible debentures, in the Ontario Superior Court of Justice in the Province of Ontario and on April 8, 2013, a similar claim, issued by alleged investors in Atlantic Power common shares, seeking to initiate a purported class action was filed in the Superior Court of Quebec in the Province of Quebec against the company and certain of the company's current and former executive officers. On May 2, 2013, a statement of claim relating to the April 2, 2013 notice of action was filed with the Ontario Superior Court of Justice in the Province of Ontario. The allegations of these purported class actions are essentially the same as those asserted in the United States. ATLANTIC POWER: Lead Counsel Yet to be Named in Mass. Stock Suit ---------------------------------------------------------------- The United States District Court for the District of Massachusetts is yet to decide who will serve as lead plaintiff and lead counsel in a consolidated securities lawsuit filed against Atlantic Power Corporation, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On March 8, 14, 15 and 25, 2013 and April 23, 2013, five purported securities fraud class action complaints were filed by alleged investors in Atlantic Power common shares in the United States District Court for the District of Massachusetts (the "District Court") against Atlantic Power and Barry E. Welch, the company's President and Chief Executive Officer and a Director of Atlantic Power, in each of the actions, and, in addition to Mr. Welch, some or all of Patrick J. Welch, the company's former Chief Financial Officer, Lisa Donahue, the company's former interim Chief Financial Officer, and Terrence Ronan, the company's current Chief Financial Officer, in certain of the actions (the "Individual Defendants," and together with Atlantic Power, the "Defendants") (the "U.S. Actions"). The District Court complaints differ in terms of the identities of the Individual Defendants they name, as noted, the named plaintiffs, and the purported class period they allege (July 23, 2010 to March 4, 2013 in three of the District Court actions and August 8, 2012 to February 28, 2013 in the other two District Court actions), but in general each alleges, among other things, that in Atlantic Power's press releases, quarterly and year-end filings and conference calls with analysts and investors, Atlantic Power and the Individual Defendants made materially false and misleading statements and omissions regarding the sustainability of Atlantic Power's common share dividend that artificially inflated the price of Atlantic Power's common shares. The District Court complaints assert claims under Section 10(b) and, against the Individual Defendants, under Section 20(a) of the Securities Exchange Act of 1934, as amended. The parties to each District Court action have filed joint motions requesting that the District Court set a schedule in the District Court actions, including: (i) setting a deadline for the lead plaintiff to file a consolidated amended class action complaint (the "Amended Complaint"), after the appointment of lead plaintiff and counsel; (ii) setting a deadline for Defendants to answer, file a motion to dismiss or otherwise respond to the Amended Complaint (and for subsequent briefing regarding any such motion to dismiss); and (iii) confirming that Defendants need not answer, move to dismiss or otherwise respond to any of the five District Court complaints prior to the filing of the Amended Complaint. On May 7, 2013, each of six groups of investors (the "U.S. Lead Plaintiff Applicants") filed a motion (collectively, the "U.S. Lead Plaintiff Motions") with the District Court seeking: (i) to consolidate the five U.S. Actions (the "Consolidated U.S. Action"); (ii) to be appointed lead plaintiff in the Consolidated U.S. Action; and (iii) to have its choice of lead counsel confirmed. On May 22, 2013, three of the U.S. Lead Plaintiff Applicants filed oppositions to the other U.S. Lead Plaintiff Motions, and on June 6, 2013, those three Lead Plaintiff Applicants filed replies in support of their respective motions. On August 19, 2013, the District Court held a status conference to address certain issues raised by the U.S. Lead Plaintiff Motions, entered an order consolidating the five U.S. Actions, and directed two of the six U.S. Lead Plaintiff Applicants to file supplemental submissions by September 9, 2013. Both of those U.S. Lead Plaintiff Applicants filed the requested supplemental submissions, and then sought leave to file additional briefing. The Court granted those requests for leave and additional submissions were filed on September 13 and September 18, 2013, which the Court will consider (along with the motion papers) in deciding who will serve as lead plaintiff and lead counsel. ATLANTIC POWER: Faces Securities Suits in Ontario, Quebec Courts ---------------------------------------------------------------- Atlantic Power Corporation is facing alleged statutory damages for violating securities laws in Canada that plaintiffs estimate at $197.4 million, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On March 19, 2013, April 2, 2013 and May 10, 2013, three notices of action relating to Canadian securities class action claims against the Defendants were also issued by alleged investors in Atlantic Power common shares, and in one of the actions, holders of Atlantic Power convertible debentures, with the Ontario Superior Court of Justice in the Province of Ontario. On April 8, 2013, a similar claim issued by alleged investors in Atlantic Power common shares seeking to initiate a class action against the Defendants was filed with the Superior Court of Quebec in the Province of Quebec (the "Canadian Actions"). On April 17, May 22, and June 7, 2013 statements of claim relating to the notices of action were filed with the Ontario Superior Court of Justice in the Province of Ontario. On August 30, 2013, the three Ontario actions were succeeded by one action with an amended claim being issued on behalf of Jacqeline Coffin and Sandra Lowry. This claim names the Company, Barry Welch and Terrence Ronan as defendants (the "Defendants"). The Plaintiffs seeks leave to commence an action for statutory misrepresentation under the Ontario Securities Act and asserts common law claims for misrepresentation. The Plaintiffs' allegations focus on among other things, claims the Defendants made materially false and misleading statements and omissions in Atlantic Power's press releases, quarterly and year end filings and conference calls with analysts and investors, regarding the sustainability of Atlantic Power's common share dividend that artificially inflated the price of Atlantic Power's common shares. The Plaintiffs seek to certify the statutory and common law claims under the Class Proceedings Act for security holders who purchased and held securities through a proposed class period of November 5, 2012 to February 28, 2013. On October 4, 2013, the Plaintiffs delivered materials supporting their request for leave to commence an action for statutory misrepresentations and for certification of the statutory and common claims as class proceedings. These materials estimate the damages claimed for statutory misrepresentation at $197.4 million. A schedule for the Plaintiffs' motions and the action was set on November 12, 2013. The Petitioner in the proposed class action in Quebec served and filed a motion to suspend those proceedings pending the Ontario proceedings. This motion was not granted. Nothing further has happened in the action. Pursuant to the Private Securities Litigation Reform Act of 1995, all discovery is stayed in the U.S. Actions. Plaintiffs have not yet specified an amount of alleged damages in the U.S. Actions. The plaintiffs in the Canadian Action have estimated their alleged statutory damages at $197.4 million. BAXTER INT'L: Agrees to Settle Class Action for $64 Million ----------------------------------------------------------- Andrew L. Wang, writing for Crain's Chicago Business, reports that Baxter International Inc. agreed to pay $64 million to settle a class-action lawsuit that alleged the Deerfield-based company and some of its competitors colluded to raise prices of plasma-based therapies. Hospitals and drug distributors, saying they bought the plasma products at inflated prices, sued in 2009 Baxter; Victoria, Australia-based CSL Ltd.; and the Plasma Protein Therapeutics Association, an Annapolis, Md.-based trade group. Though agreeing to the settlement, Baxter is not admitting any wrongdoing. "The company's decision to settle the litigation is not an admission of liability, but rather a reflection of the costs involved in defending this matter," Baxter spokeswoman Deborah Spak wrote in an email. "The company has previously reserved for the costs associated with the litigation and therefore this settlement does not have additional impact on the company." Indeed, the company had set aside a "litigation reserve" totaling $72 million as of the end of 2013, according to its latest annual financial statement with the Securities and Exchange Commission. Plaintiffs' lawyers secured an identical $64 million settlement with the latter two defendants in January. The settlement with Baxter was reached in December and approved April 17 by U.S. District Judge Joan Gottschall. The plaintiffs alleged that Baxter and CSL agreed in the early 2000s to limit production of therapies derived from human plasma, the liquid component of blood. Such products are used to treat ailments like hemophilia and immune deficiencies. 'Now Over' "The case is now over," said one of the lead plaintiff lawyers, Charles Tompkins -- cet@willmont.com -- a Chicago-based partner at Williams Montgomery & John Ltd. "We spent many years litigating the case, and we feel confident that the settle is a favorable result for all involved." Money from the combined $128 million settlement fund will be distributed on a pro-rata basis to the roughly 2,000-member class, none of whom has raised objections to the agreement. The settlement covers sales activity from 2005 and 2009. Baxter in 2013 booked $2.01 billion in net income on $15.26 billion in revenue. The company raked in $5.56 billion in combined sales from its hemophilia and biotherapeutics lines, both of which fall within its bioscience segment, which took in $6.56 billion. The company said in March it plans to split into two firms, with the medical products segment -- an $8.70 billion business in 2013 -- retaining the Baxter name and headed by current CEO Robert Parkinson, and the as-yet unnamed bioscience segment led by Ludwig Hantson, its current president. The spinoff likely will occur in mid-2015. Baxter earned $556 million in the first quarter, or $1.01 per share, on $3.95 billion in sales. Excluding extraordinary items, it earned $1.19 a share, beating out the consensus of eight analysts polled by Bloomberg LP. BAYVIEW LOAN: Invaded Class Members' Privacy, Cal. Suit Claims -------------------------------------------------------------- Ann Fox, individually and on behalf of all others similarly situated v. Bayview Loan Servicing LLC, Case No. 2:14-cv-01254- JAK-AS (C.D. Cal., February 19, 2014) is brought for damages resulting from the Defendant's alleged illegal actions in negligently and willfully contacting the Plaintiff and the class on their cellular telephone, in violation of the Telephone Consumer Protection Act, thereby, invading their privacy. Bayview Loan Servicing LLC is a business corporation whose principal place of business is in Florida. The Defendant conducted business in the state of California and in the County of Santa Barbara. The Plaintiff is represented by: Todd M. Friedman, Esq. Nicholas J. Bontrager, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.c. 369 S. Doheny Dr., #415 Beverly Hills, CA 90211 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com nbontrager@attorneysforconsumers.com The Defendant is represented by: Kevin S. Asfour, Esq. K AND L GATES LLP 10100 Santa Monica Boulevard, 7th Floor Los Angeles, CA 90067 Telephone: (310) 552-5000 Facsimile: (310) 552-5001 E-mail: kevin.asfour@klgates.com BEN BRIDGE-JEWELER: Court Defers Summary Judgment Bid Ruling ------------------------------------------------------------ In the lawsuit captioned STEVE JUHLINE, individually and on behalf of all others similarly situated, Plaintiff, v. BEN BRIDGE-JEWELER, INC., a Washington corporation, Defendant, CASE NO. 3:11-CV-2906-GPC-NLS, (S.D. Cal.), District Judge Gonzalo P. Curiel issued an order (i) deferring ruling on plaintiff's motion for partial summary judgment, and (ii) setting briefing schedules. In this certified class action, plaintiff Steve Juhline alleges that defendant Ben Bridge-Jeweler, Inc.'s practice of requesting and recording the contact information of its customers who pay with a credit card violates California's Song-Beverly Credit Card Act, California Civil Code section 1747.08. Before the Court was Plaintiff's Motion for Partial Summary Judgment (MSJ), Plaintiff's Motion for Approval of Class Notice Plan (Notice Motion, and Defendant's Motion to Decertify Class (Motion to Decertify). Plaintiff's Notice Motion and Defendant's Motion to Decertify are set for a hearing on May 16, 2014, and neither of these motions has been fully briefed. Judge Curiel denied without prejudice Plaintiff's MSJ. Plaintiff may re-file his MSJ after Defendant's Motion to Decertify has been decided and, if appropriate, after class notice has been provided, and the period for class members to exclude themselves has expired, he added. The Court further ordered that the parties comply with the briefing schedule as to Plaintiff's Notice Motion, and Defendant's Motion to Decertify: responses to the motions were due April 25, 2014, and any reply must be filed by May 2, 2014. A copy of the District Court's April 17, 2014 order is available at http://is.gd/yuo3a9from Leagle.com. Steve Juhline, Plaintiff, represented by Allison H. Goddard -- ali@pattersonlawgroup.com -- Patterson Law Group, APC, Daniel D. Bodell -- DBODELL@HARRISONBODELL.COM -- Harrison & Bodell LLP & Harry W. Harrison -- HHARRISON@HARRISONBODELL.COM -- Harrison & Bodell LLP. Ben Bridge-Jeweler, Inc., a Washington Corporation, Defendant, represented by Jennifer Anne Weiner, Ellis Coleman Poirier LaVoie and Steinheimer & Rosemarie T Ring -- Rose.Ring@mto.com -- Munger Tolles and Olson LLP. BOB'S DISCOUNT: Suit Seeks Damages Under Maryland Wage & Hour Law ----------------------------------------------------------------- Mark V. Powell, 12665 Crabtree Falls Drive, Bristow, Virginia 20136 and Anthony De Santos, 87 Wadsworth Avenue, 2nd Floor, Staten Island, New York 10305, individually and on behalf of all others similarly situated v. Bob's Discount Furniture, LLC, 2950 Belcrest Center Drive, Hyattsville, Maryland 20782, Case No. 8:14-cv-00491-DKC (D. Md., February 19, 2014) seeks to recover damages under the Fair Labor Standards Act and the Maryland Wage and Hour Law. Bob's Discount Furniture, LLC, is a foreign corporation organized in Massachusetts and licensed to do business in Maryland. Bob's Discount operates a number of stores in Maryland. The Plaintiffs are represented by: Philip B. Zipin, Esq. Gregg Cohen Greenberg, Esq. THE ZIPIN LAW FIRM, LLC 836 Bonifant St. Silver Spring, MD 20910 Telephone: (301) 587-9373 Facsimile: (301) 587-9397 E-mail: pzipin@zipinlaw.com ggreenberg@zipinlaw.com - and - Douglas Brian Lipsky, Esq. BRONSON LIPSKY LLP 630 Third Ave., 5th Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: dl@bronsonlipsky.com The Defendant is represented by: Ariana Wright Arnold, Esq. JACKSON LEWIS P.C. 2800 Quarry Lake Dr., Suite 200 Baltimore, MD 21209 Telephone: (410) 415-2000 Facsimile: (410) 415-2001 E-mail: ariana.arnold@jacksonlewis.com - and - Peter Matthew Torncello, Esq. Stephanie L. Goutos, Esq. William J. Anthony, Esq. JACKSON LEWIS PC 18 Corporate Woods Blvd. Albany, NY 12211 Telephone: (518) 434-1300 Facsimile: (518) 427-5956 E-mail: peter.torncello@jacksonlewis.com Stephanie.Goutos@jacksonlewis.com Anthonyw@jacksonlewis.com BUFFALO BILLS: Settles Text Message Class Action for $3 Million --------------------------------------------------------------- Stephen T. Watson, writing for The Buffalo News, reports that the Buffalo Bills have agreed to pay up to $3 million -- largely in the form of debit cards redeemable only at the team store -- to settle a class-action lawsuit that accused the team of sending too many alerts to fans who signed up for a text-messaging service. Jerry Wojcik, a Bills fan and area native now living in Florida, contended in his October 2012 suit that the team violated the terms of its text service by sending him 13 messages over two weeks when it promised to send no more than five per week. The lawsuit was panned as frivolous by some sports fans, media commentators and legal experts. But in a settlement filed in federal court in Tampa, Fla., the Bills agreed to provide up to $2.5 million in debit cards to people who had signed up for the text service, along with $562,500 to Mr. Wojcik's lawyers and $5,000 in cash to Mr. Wojcik as class representative. The estimated value of the debit cards that will be issued to class members who received more than five alerts in a given week is $2,487,745. The cards can be used at the Bills store at Ralph Wilson Stadium in Orchard Park or online at the team's website. They can't be redeemed for cash. The debit cards are worth $57.50, $65 or $75, depending on which class tier a fan is assigned to, and the Bills said in a legal filing that an estimated 39,750 phone numbers had been registered through the now-defunct text-messaging service. A motion that accompanied the settlement order argued that the offer of Bills debit cards was an appropriate form of settlement because the class consists of Bills fans. "The Buffalo Bills have reached a settlement in this matter which we believe is in the best interest of our organization and our fans. The purpose of the Bills' voluntary, opt-in text messaging program was to provide our fans with information they requested about the team. The organization maintains that our text messaging program was in compliance with the law," Bills spokesman Scott Berchtold said in a statement on April 21. Under the terms of the settlement, the Bills promise to put in place "safeguards" to ensure any new service abides by limits set by the team on the number of messages. Mr. Wojcik declined to comment when reached by The Buffalo News on April 21, citing his belief that he was unfairly criticized in local and national media after filing the suit, and referred a reporter to his attorneys. "(The) plaintiff is pleased the court granted preliminary approval of the class settlement, which was only reached after substantial negotiations with the court-appointed mediator," one of Mr. Wojcik's attorneys, Keith J. Keogh of Chicago, said in an email. Mr. Wojcik also was represented by lawyers James S. Giardina, of Tampa, and Scott D. Owens, of Hallandale, Fla. A big Bills fan, Mr. Wojcik in September 2012 signed up for mobile text alerts from the team after visiting its website, according to his original lawsuit. Language on the website promised fans who enrolled in the messaging service would receive three to five messages per week for 12 months. Mr. Wojcik, however, said he received six messages during his second week in the program and seven messages during a later, one-week period. He claimed in his suit that the extra texts violated the federal Telephone Consumer Protection Act, and he sought statutory damages of $500 per excessive message for negligent violations and up to $1,500 per message for willful violations. The settlement that received preliminary approval from U.S. District Judge Steven D. Merryday followed years of "hard-fought and often-times contentious" litigation, according to the settlement motion. A final hearing in the case is set for Aug. 20. Buffalo attorney Jeffrey F. Reina and Tampa attorney Janelle A. Weber represented the team in the suit. Once the deal receives final approval, an administrator will use a reverse-directory to send notices and claim forms by mail to the owners of the phone numbers registered for the messaging service. The administrator also will set up a website offering details on the settlement. CHRISTOPHER DUNTSCH: Faces Medical Malpractice Suits ---------------------------------------------------- Lisa Falkenberg, writing for Houston Chronicle, reports that for the surgical patients who found themselves under Dr. Christopher Duntsch's knife, harm seemed to be a recurring symptom. Anyone looking for a spine surgeon in the Dallas area around 2011 could have unwittingly stumbled into the Plano office of Duntsch, a confident, well-educated, fast-talking neurosurgeon who, as of our interview, still regards himself as "smarter than everybody in the room." Quite a statement from a man accused of medical errors so severe and gruesome that at least one colleague came to question whether he was intentionally killing and maiming people. "Duntsch is an impaired physician, a sociopath, and must be stopped from practicing medicine by the Texas Medical Board immediately," Dr. Randall Kirby wrote the state board in June of 2013 after operating with Duntsch, according to one lawsuit filed by a former patient. Duntsch was recruited to the Dallas area in 2011, in part by Baylor Regional Medical Center at Plano, which had reached an agreement with a spine institute for Duntsch to operate at the hospital, according to court records. Baylor also agreed to advance Duntsch's salary of $600,000 and pay him expenses and bonuses to which he was entitled, the records show. Patients have accused Duntsch of operating under the influence of alcohol and drugs, butchering spines and slicing through arteries in a spate of surgical misadventures marked by "horribly poor and clueless surgical technique" that turned even his childhood friend into a quadriplegic, according to lawsuits. Letter of reference During a January 2012 surgery, one lawsuit claims, another surgeon grabbed Duntsch's tools and pleaded with him to stop, but the patient, who is in his mid-40s, would be left with permanent nerve damage and a lifetime of debilitating pain. Duntsch eventually left Baylor in April of 2012 after, according to lawsuits, a female patient died as a result of massive blood loss during surgery. Nearly as horrific are the allegations made in lawsuits that Baylor let Duntsch continue in the operating room even after administrators were made aware of the danger he posed to patients. And, when Duntsch finally did resign, the hospital's director of medical staff services produced a letter for Duntsch stating that there were no pending investigations or past suspensions in his record. The letter left a false impression, one lawsuit claims, that "paved the way" for Duntsch to continue in the operating room. When he moved on to Dallas Medical Center, problems continued, according to lawsuits: A female patient died in July of 2012 after Duntsch "essentially transected her vertebral artery resulting in a stroke and her eventual death." His final stop appears to have been University General Hospital, owned by Houston-based University General Health System. President Donald Sapaugh confirmed in an email to me the hospital ended up suspending Duntsch, revoking his privileges, and then reporting him to the state board. In all, it took about a year for the Texas Medical Board, rendered intentionally weak by the Legislature, to temporarily suspend Duntsch's license. In its June order, the board cited a pattern of failings that put patients "at significant risk of harm and has resulted in at least two patient deaths." The board reached an agreement with Duntsch to revoke his license in December 2013, finding the surgeon had violated the standard of care with respect to six patients. The board also found there wasn't evidence to support a finding that he was impaired by drugs or alcohol. Duntsch didn't admit or deny the board's findings and conclusions of law. Duntsch disputes nearly all of the board's findings and says it was negligent in its investigation. He says he plans to petition the board to get his license back, although he doesn't plan to continue to practice. 'Malpractice happens . . .' "I'm not saying that I didn't do anything wrong," he told me. "Medical malpractice happens to all of us." He said he never intentionally harmed anyone or operated under the influence. He says he regrets the hospital has been dragged into litigation motivated by the greed of plaintiff's attorneys who, he says, conspired with his colleagues to trump up cases against him so they could sue Baylor and knock down Texas tort laws. Baylor, which is not affiliated with Houston's Baylor College of Medicine, has denied that it failed to protect patients. In February, the Texas Department of State Health Services, which oversees hospitals, opened an investigation into how Duntsch was handled by Baylor, Dallas Medical and University General. Meanwhile, lawsuits against Baylor have run up against a Texas tort statute intended to protect hospitals and doctors, and limit patient rights. This one narrows the definition of "malice" so drastically that proving gross negligence isn't good enough. Patients' lawyers would have to basically prove that the hospital itself was out for blood, that its officials were not only aware of the danger Duntsch posed, but that they intentionally put patients in harm's way. It's an impossible standard to meet, plaintiffs' lawyers have claimed, and so they argue it is unconstitutional. Although the Duntsch case has been front-page news in North Texas, it has gotten little notice in Houston. Recently, though, the hospital got a little boost in its legal fight from a high- profile gubernatorial candidate: Texas Attorney General Greg Abbott. Mr. Abbott's office has chosen to intervene in some lawsuits against Baylor to defend the constitutionality of the tort reform-era statute. Plaintiffs' attorneys don't understand why. Mr. Abbott isn't required to. And they say there are plenty of constitutional challenges on which his office remains silent. Attorney general spokesman Jerry Strickland stressed that Abbott is not defending the hospital, Duntsch, or their alleged conduct. Mr. Strickland argued that the plaintiffs could have sued to recover damages without challenging the constitutionality of the law, in which case Abbott wouldn't have intervened. CLARK COUNTY, IN: Faces Class Action Over Drug Treatment Program ---------------------------------------------------------------- Gary Popp, writing for News and Tribune, reports that the number of former and current Clark County Drug Treatment Court participants involved in a class action lawsuit claiming mistreatment by Clark County employees recently doubled. Louisville attorney Mike Augustus added eight new plaintiffs before submitting, on April 8, the civil complaint, which is an updated version of a complaint filed Feb. 18. Mr. Augustus' class action suit now has a cast of 16 plaintiffs, 14 of whom have or continue to be drug court participants, and he remains open to accepting even more clients. Both versions of the complaints have been filed with the Southern District of Indiana federal court in New Albany. Mr. Augustus said he has turned away more potential clients than he is currently representing because he thought their complaints would not hold up in the federal court. Drug court case manager and Clark County Probation Department employee Josh Seybold was the only addition to the list of more than 10 defendants, which include Clark County Circuit Court No. 2 Judge Jerry Jacobi, who oversaw the drug court program; former drug court director Susan Knoebel; and now-suspended Circuit Court No. 2 bailiff and former drug court field officer Jeremy Snelling. "Most of my clients had Mr. Seybold as their case manager," Mr. Augustus said, explaining why Mr. Seybold and not a second drug court case manager, Iris Rubadue, was named in the lawsuit. "From the people that I have spoken to, not necessarily my clients, did not have a complaint with the way Iris served them as their case manager." Mr. Augustus filed the civil complaint against those he claims are responsible for the mistreatment of Clark County Drug Treatment Court program participants -- which includes allegations of unlawful arrest and incarceration. He said the majority of the plaintiffs are claiming they were held without due process in the Michael L. Becher Adult Correctional Complex following drug court violations. The issues came to light earlier in the year when a Clark County deputy prosecutor discovered that Destiny Hoffman -- who is named in Mr. Augustus' complaint -- was being held in Clark County jail nearly five months after she was given a two-day sanction. His non-drug court clients include one who is claiming mistreatment from the Clark County Probation Department's work release program. Mr. Augustus said five of his clients claim they were unlawfully arrested by either Mr. Snelling, Ms. Knoebel, or both. He said the next step in the process will be the defendants filing their responses to the complaint in the federal court. "Within the next month, the defendants will file their answers," he said. "I have spoken to the counsel for all the defendants and we have agreed for them to be able to file their answers in that time frame." In addition to Mr. Seybold, Judge Jacobi, Ms. Knoebel and Mr. Snelling, the defendants named in the case are: [Clark County Chief Probation Officer] Henry Ford; Clark County Sheriff Danny Rodden; [Clark County Community Corrections Work Release Director] Danielle Grissett; [Clark County Community Corrections Executive Director] Stephen Mason . . . unknown Clark County Work Release employee[s]; unknown Clark County Circuit Court clerk; and Clark County Board of Commissioners [Rick Stephenson, John Perkins and Jack Coffman]. As the case continues, Mr. Augustus said he intends to take depositions from every defendant in the lawsuit. "Practically speaking, for the next six months or so we will be engaged in discovery and all the sides [will be] finding out as much information as possible," he said. "I would anticipate appearing before the court on a lot of different matters." Mr. Augustus said the drug court program under Jacobi's watch was a broken system. "My goal, and my clients' goal, is to have it fixed, and I think that is what is going to happen," he said. Augustus said there are several different ways the lawsuit could come to a close. He said a settlement could be provided by the defendants prior to a trial. But, if lawsuit goes to a jury trial, it would be up to jury to decide if any damages should be paid to the defendants. Mr. Augustus has said Jacobi is exempt from the civil complaint. Mr. Augustus will request, however, that a federal judge "declare that what he [Jacobi] has been doing is unconstitutional" through a declamatory judgment. Mr. Augustus said he was motivated to take the civil case because he thinks drug court officials in Clark County have abused their authority and if no one takes a stand, the abuse will continue. He has said drug court officials have made unlawful arrests and have stripped the program's participants of their constitutionally protected rights. Those who have been added to the complaint as plaintiffs are Michael Campbell, Amy Tuttle, Amanda Campbell, Bobby Upton, Shane Bratcher, Justin Lanham, Trentney Rhodes and Joanie Watson. The original plaintiffs are Destiny Hoffman, Nathan Clifford, Joshua Folley, Jessie Hash, Ashleigh Santiago, James Bennett, Amy Bennett and Lee Spaudling. CLEANIS INC: Ordered to Fix Aspects of Responsive Pleading ---------------------------------------------------------- Cleanis, Inc., one of the two remaining defendants in the action captioned AL AND PO CORPORATION, individually and on behalf of all others similarly situated, Plaintiff, v. CLEANIS, INC., et al., Defendants, CASE NO. 14 C 1225, (N.D. Ill.), brought under the Telephone Consumer Protection Act, has filed its Answer and Affirmative Defenses (ADs) to the Class Action Complaint. Senior District Judge Milton I. Shadur issued a memorandum order sua sponte to address some problematic aspects of that responsive pleading. The Court found, among other things, that Answer Paragraphs 2, 4, 7, 8, 10, 11, 14, 15, 19, 24 and 39 all inexplicably depart from the express language of Fed. R. Civ. P. 8(b)(5). "In sum," wrote Judge Shadur in his April 16, 2014 memorandum order, a copy of which is available at http://is.gd/OnHo5gfrom Leagle.com, "defense counsel must sharpen their pencils (or the equivalent in electronic terms) by crafting a total rewrite of the AD section of Cleanis' responsive pleading as well as correcting the error identified at the outset of this memorandum order. Counsel are ordered to do so by filing a self-contained Amended Answer and ADs on or before April 28, 2014. No charge may be made to Cleanis by its counsel for the added work and expense incurred in correcting counsel's errors. Defense counsel are ordered to apprise their client to that effect by letter, with a copy to be transmitted to this Court's chambers as an informational matter (not for filing)." Al and Po Corporation, individually and on behalf of all others similarly situated v. Cleanis, Inc. a New York corporation, Cleanis S.A.S., a France corporation, and Cleanis K.K., a Japan corporation, Case No. 1:14-cv-01225 (N.D. Ill., February 19, 2014) alleges that in an effort to market its products and services, the Defendants sent unsolicited junk faxes in bulk, known as fax blasts, to unwilling recipients with deficient opt- out notices, which practice is expressly prohibited by the Telephone Consumer Protection Act. Cleanis Paris offers personal hygiene products, including absorbent pads and bags as alternatives to bed-pans. Cleanis Paris has two branches: Cleanis New York in New York, United States, and Cleanis Tokyo in Tokyo, Japan. The Plaintiff is represented by: Joseph J. Siprut, Esq. Gregg M. Barbakoff, Esq. Ismael T. Salam, Esq. SIPRUT PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 470-6588 E-mail: jsiprut@siprut.com gbarbakoff@siprut.com isalam@siprut.com The Defendants are represented by: David P. Niemeier, Esq. Mary Ann L. Wymore, Esq. GREENSFELDER, HEMKER & GALE, P.C. 10 South Broadway, Suite 2000 St. Louis, MO 63102 Telephone: (314) 241-9090 E-mail: dpn@greensfelder.com mlw@greensfelder.com - and - Patrick M. Jones, Esq. Valerie Gay Lipic, Esq. GREENSFELDER HAMKER & GALE P.C. 200 West Madison St., Suite 3700 Chicago, IL 60606 Telephone: (312) 345-5018 Facsimile: (312) 419-1930 E-mail: pmj@greensfelder.com vgl@greensfelder.com DENSO CORP: Faces "SLTNTRST" Antitrust Class Suit in Michigan ------------------------------------------------------------- SLTNTRST LLC, Trustee for Fleetwood Liquidating Trust v. Denso Corp., ASMO Co., Ltd., ASMO North America, LLC, ASMO Manufacturing, Inc., Denso International America, Inc., Mitsuba Corporation, and American Mitsuba Corporation, Case No. 2:14-cv- 10762-MOB-MKM (E.D. Mich., February 19, 2014) alleges that the Defendants conspired to rig bids, and to fix, maintain, and stabilize the prices of Windshield Washers sold in the United States from at least January 1, 2000, through the present. The term "Windshield Washers" includes the pump, hoses, nozzle and tank necessary to deliver washer fluid to vehicle windows. The Defendants are manufacturers of Windshield Washers for installation in motor vehicles manufactured or sold in the United States. The Plaintiff is represented by: Melissa H. Maxman, Esq. Ronald F. Wick, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4800 E-mail: mmaxman@cozen.com rwick@cozen.com - and - Solomon B. Cera, Esq. GOLD BENNETT CERA & SIDENER LLP 595 Market Street, Suite 2300 San Francisco, CA 94105-2835 Telephone: (415) 777-2230 E-mail: scera@gbcslaw.com - and - Manuel J. Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 833-6575 E-mail: jdominguez@cohenmilstein.com - and - Matthew W. Ruan, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, 14th Floor New York, NY 10006 Telephone: (212) 220-2913 E-mail: mruan@cohenmilstein.com - and - Catherine R. Reilly, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4836 E-mail: creilly@cozen.com DENSO CORP: Fixes Price of Windshield Washer Systems, Suit Says --------------------------------------------------------------- Martens Cars of Washington, Inc., et al. v. Denso Corporation, ASMO Co., Ltd., ASMO North America, LLC, ASMO Manufacturing, Inc., Denso International America, Inc., Mitsuba Corporation, and American Mitsuba Corporation, Case No. 5:14-cv-10776-JCO-MAR (E.D. Mich., February 19, 2014) accuses the Defendants and unnamed co-conspirators, manufacturers and suppliers of Windshield Washer Systems of engaging in a long-running conspiracy to unlawfully fix, artificially raise, maintain or stabilize prices, rig bids for, and allocate the market and customers in the United States for Windshield Washer Systems. Windshield Washer Systems, whether sold together or separately, are defined to include one or more of these: the pump, hoses, nozzle and tank necessary to deliver washer fluid to vehicle windows. The Plaintiffs are Martens Cars of Washington, Inc.; Landers Auto Group No. 1, Inc., d/b/a Landers Toyota; Hammett Motor Company, Inc.; Superstore Automotive, Inc.; Lee Pontiac-Oldsmobile-GMC Truck, Inc.; V.I.P. Motor Cars Ltd.; Desert European Motorcars, Ltd.; Dale Martens Nissan Subaru, Inc.; Green Team of Clay Center Inc.; McGrath Automotive Group, Inc.; Table Rock Automotive, Inc., d/b/a Todd Archer Hyundai; Archer-Perdue, Inc., d/b/a/ Archer-Perdue Suzuki; Bonneville and Son, Inc.; Holzhauer Auto and Truck Sales, Inc.; Pitre, Inc., d/b/a/ Pitre Buick GMC; Patsy Lou Chevrolet, Inc.; John Greene Chrysler Dodge Jeep, LLC; SLT Group II, Inc., d/b/a Planet Nissan Subaru of Flagstaff; Herb Hallman Chevrolet, Inc., d/b/a/ Champion Chevrolet; Charles Daher's Commonwealth Motors, Inc., d/b/a Commonwealth Chevrolet, Commonwealth Kia, Commonwealth Honda; Commonwealth Volkswagen, Inc., d/b/a Commonwealth Volkswagen; Commonwealth Nissan, Inc., d/b/a Commonwealth Nissan; Ramey Motors, Inc.; Thornhill Superstore, Inc., d/b/a Thornhill GM Superstore; Dave Heather Corporation, d/b/a Lakeland Toyota Honda Mazda Subaru; Central Salt Lake Valley GMC Enterprises, LLC, d/b/a Salt Lake Valley Buick GMC; Capitol Chevrolet Cadillac, Inc.; Capitol Dealerships, Inc., d/b/a Capitol Toyota; Beck Motors, Inc.; Stranger Investments d/b/a Stephen Wade Toyota John O'Neil Johnson Toyota, LLC; Hartley Buick GMC Truck, Inc.; Lee Oldsmobile-Cadillac, Inc. d/b/a Lee Honda; Lee Auto Malls-Topsham, Inc. d/b/a Lee Toyota of Topsham; Landers of Hazelwood, LLC d/b/a Landers Toyota of Hazelwood; Little Rock CDJ, Inc. d/b/a Steve Landers Chrysler Dodge Jeep Cannon Chevrolet - Oldsmobile - Cadillac - Nissan, Inc.; Cannon Nissan of Jackson, LLC; Hudson Charleston Acquisition, LLC d/b/a Hudson Nissan; Shearer Automotive Enterprises III, Inc.; Apex Motor Corporation; Hudson Gastonia Acquisition, LLC and HC Acquisition, LLC d/b/a Toyota of Bristol; Hodges Imported Cars, Inc. d/b/a Hodges Subaru, and Reno Dodge Sales, Inc. d/b/a Don Weir's Reno Dodge. The Defendants manufacture, market, and sell Windshield Washer Systems throughout and into the United States. The Plaintiffs are represented by: Gerard V. Mantese, Esq. David Hansma, Esq. Brendan Frey, Esq. MANTESE HONIGMAN ROSSMAN AND WILLIAMSON, P.C. 1361 E. Big Beaver Road Troy, MI 48083 Telephone: (248) 457-9200 E-mail: gmantese@manteselaw.com dhansma@manteselaw.com bfrey@manteselaw.com - and - Don Barrett, Esq. Brian Herrington, Esq. David McMullan, Esq. BARRETT LAW GROUP, P.A. P.O. Box 927 404 Court Square Lexington, MS 39095 Telephone: (662) 834-2488 E-mail: dbarrett@barrettlawgroup.com bherrington@barrettlawgroup.com dmcmullan@barrettlawgroup.com - and - Jonathan W. Cuneo, Esq. Joel Davidow, Esq. Daniel Cohen, Esq. Victoria Romanenko, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street, N.E. Washington, DC 20002 Telephone: (202) 789-3960 E-mail: jonc@cuneolaw.com joel@cuneolaw.com danielc@cuneolaw.com vicky@cuneolaw.com - and - Shawn M. Raiter, Esq. Paul A. Sand, Esq. LARSON KING, LLP 2800 Wells Fargo Place 30 East Seventh Street St. Paul, MN 55101 Telephone: (651) 312-6500 E-mail: sraiter@larsonking.com psand@larsonking.com - and - Michael J. Flannery, Esq. CUNEO GILBERT & LADUCA, LLP 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone: (314) 226-1015 E-mail: mflannery@cuneolaw.com - and - Phillip Duncan, Esq. Richard Quintus, Esq. DUNCAN FIRM, P.A. 900 S. Shackleford, Suite 725 Little Rock, AR 72211 Telephone: (501) 228-7600 E-mail: phillip@duncanfirm.com richard@duncanfirm.com - and - Thomas P. Thrash, Esq. THRASH LAW FIRM, P.A. 1101 Garland Street Little Rock, AR 72201 Telephone: (501) 374-1058 E-mail: tomthrash@sbcglobal.net - and - Dewitt Lovelace, Esq. Valerie Nettles, Esq. LOVELACE & ASSOCIATES, P.A. 12870 US Hwy 98 West, Suite 200 Miramar Beach, FL 32550 Telephone: (850) 837-6020 E-mail: dml@lovelacelaw.com alex@lovelacelaw.com - and - Charles Barrett, Esq. CHARLES BARRETT, P.C. 6518 Highway 100, Suite 210 Nashville, TN 37205 Telephone: (615) 515-3393 E-mail: charles@cfbfirm.com - and - Gregory Johnson, Esq. G. JOHNSON LAW, PLLC 6688 145th Street West Apple Valley, MN 55124 Telephone: (952) 930-2485 E-mail: greg@gjohnsonlegal.com DENSO CORP: Sued for Fixing Prices of Windshield Wiper Systems -------------------------------------------------------------- SLTNTRST LLC, Trustee for Fleetwood Liquidating Trust v. Denso Corp., ASMO Co., Ltd., Mitsuba Corporation, and American Mitsuba Corporation, Case No. 2:14-cv-10774-MOB-MKM (E.D. Mich., February 19, 2014) alleges that the Defendants conspired to rig bids, and to fix, maintain, and stabilize the prices of Windshield Wiper Systems sold in the United States from at least January 1, 2000, through the present. The term "Windshield Wiper Systems" includes the motor, linkage, arm and blade necessary to clear water or snow from vehicle windows. The Defendants are manufacturers of Windshield Wiper Systems for installation in motor vehicles manufactured or sold in the United States. The Plaintiff is represented by: Melissa H. Maxman, Esq. Ronald F. Wick, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4800 E-mail: mmaxman@cozen.com rwick@cozen.com - and - Solomon B. Cera, Esq. GOLD BENNETT CERA & SIDENER LLP 595 Market Street, Suite 2300 San Francisco, CA 94105-2835 Telephone: (415) 777-2230 E-mail: scera@gbcslaw.com - and - Manuel J. Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 833-6575 E-mail: jdominguez@cohenmilstein.com - and - Matthew W. Ruan, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, 14th Floor New York, NY 10006 Telephone: (212) 220-2913 E-mail: mruan@cohenmilstein.com - and - Catherine R. Reilly, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4836 E-mail: creilly@cozen.com EVERBANK FINANCIAL: EverBank Still Faces "Vathana" Suit in Cal. --------------------------------------------------------------- The suit Vathana v. EverBank of which a class was certified for purchasers of a WorldCurrency Certificate of Deposit denominated in Icelandic Krona, continues, according to EverBank Financial Corp.'s Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. In April 2009, a putative class action entitled Vathana v. EverBank was filed in the Superior Court of Santa Clara County, California, against EverBank on behalf of all persons who invested in certain EverBank foreign currency certificates of deposit between April 24, 2005 and April 24, 2009, whose certificates of deposit were closed by EverBank and who were allegedly improperly paid the value of the account. In May 2009, EverBank removed the case to the United States District Court for the Northern District of California. The complaint alleges, among other things, that EverBank breached its contract with its customers by invoking the force majeure provision when closing certain foreign currency certificates of deposit, and that at the time of account closing, utilizing an improper conversion rate. On March 15, 2010, a class was certified for purchasers of a WorldCurrency Certificate of Deposit denominated in Icelandic Krona which matured between October 8 and December 31, 2008. On October 14, 2010, the plaintiff filed a motion for partial summary judgment on the issue of whether EverBank breached its contract with the plaintiff by (1) failing to deliver Icelandic Krona when EverBank closed the plaintiff's Icelandic Krona certificates of deposit and (2) using commercially unreasonable conversion rates when converting from Icelandic Krona to U.S. Dollars. EverBank filed its reply and cross-motion for summary judgment on November 22, 2010. A hearing on all pending motions occurred on January 6, 2011. The plaintiff is seeking unspecified general and special damages for himself and all class members, along with costs and interest, and such other relief as the court deems proper. EVERBANK FINANCIAL: Seeks Judgment in Suit by Ark. Circuit Clerk ---------------------------------------------------------------- The plaintiff in a suit filed by Martha Smith in her Official Capacity as Circuit Clerk and Recorder of Clark County, Arkansas against EverHome Mortgage Company filed a motion for partial summary judgment, according to EverBank Financial Corp.'s Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. In October 2012, a putative class action lawsuit, entitled Martha Smith in her Official Capacity as Circuit Clerk and Recorder of Clark County, Arkansas v. No Trustee On Deed Of Trust, Wilson and Associates, PLLC, EverHome Mortgage Company, et al., was filed in the Circuit Court of Clark County, Arkansas. The complaint seeks declaratory and injunctive relief seeking to enjoin the defendants from recording documents without paying transfer taxes and affixing documentary stamps to the recorded documents. EverBank removed the case to federal court on November 7, 2012. On November 12, 2012, Plaintiff filed a motion to remand the proceeding back to state court and on December 3, 2012 EverBank filed its response in opposition. EverBank and other defendants filed a motion to dismiss on December 17, 2012. On September 4, 2013, the court adopted the magistrate's report and remanded the case to state court. Defendants filed a motion to dismiss on October 9, 2013 and on October 21, 2013 plaintiff filed an amended complaint. Defendants filed a subsequent motion to dismiss on November 8, 2013. On November 25, plaintiff filed its opposition to the motion to dismiss and a motion for class certification. Defendants filed their response in opposition to class certification on January 3, 2014. On February 7, 2014, plaintiff filed a motion for partial summary judgment seeking a declaratory judgment that transfer taxes are owed on non-judicial foreclosure sales; a response was due February 28, 2014. A hearing on all pending motions was scheduled for April 16, 2014. EVERBANK FINANCIAL: EverBank Still Faces Litigation Over MERS ------------------------------------------------------------- EverBank continues to face lawsuits where the plaintiffs allege improper mortgage assignment, according to EverBank Financial Corp.'s Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. Mortgage Electronic Registration Services, EverHome Mortgage Company, EverBank and other lenders and servicers that have held mortgages through MERS are parties to the following material and class action lawsuits where the plaintiffs allege improper mortgage assignment and, in some instances, the failure to pay recording fees in violation of state recording statutes: (1) State of Ohio, ex. rel. David P. Joyce, Prosecuting Attorney General of Geauga County, Ohio v. MERSCORP, Inc., Mortgage Electronic Registration Services, Inc. et al. filed in October 2011 in the Court of Common Pleas for Geauga County, Ohio, and later removed to federal court and subsequently remanded to state court; (2) State of Iowa, by and through Darren J. Raymond, Plymouth County Attorney v. MERSCORP, Inc., Mortgage Electronic Registration Services, Inc., et al., filed in March 2012 in the Iowa District Court for Plymouth County and later removed to federal court; (3) Boyd County, ex. rel. Phillip Hedrick, County Attorney of Boyd County, Kentucky, et al. v. MERSCORP, Inc., Mortgage Electronic Registration Services, Inc., et al. filed in April 2012 in the United States District Court for the Eastern District of Kentucky; (4) St. Clair County, Illinois v. Mortgage Electronic Registration Systems, Inc., MERSCORP, Inc. et al., filed in May 2012 in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois; (5) County of Multnomah v. Mortgage Electronic Registration Systems, Inc., et al., filed in December 2012 in an Oregon state court and subsequently removed to the U.S. District Court for the District of Oregon; (6) Delaware County, PA, Recorder of Deeds v. MERSCORP, Inc., Mortgage Electronic Registration Systems, Inc., et al., filed in November 2013 in the Court of Common Pleas of Delaware County, Pennsylvania, and later removed to the United States District Court for the Eastern District of Pennsylvania; (7) County of Ramsey and County of Hennepin, Minnesota v. MERSCORP Holdings, Inc., et al. filed in February 2013 in the Second Judicial District Court, subsequently removed to the U.S. District Court, District of Minnesota and now on appeal to the United States Court of Appeals for the Eighth Circuit; and (8) Jackson County, Missouri v. MERSCORP, Inc., Mortgage Electronic Registrations Systems, Inc., et al., filed in April 2012 in the Circuit Court of Jackson County, Missouri and later removed to federal court where the court granted the defendants' motion to dismiss, and now stayed due to the bankruptcy filing of defendant GMAC. In these material and class action lawsuits, the plaintiffs in each case generally seek judgment from the courts compelling the defendants to record all assignments, restitution, compensatory and punitive damages, and appropriate attorneys' fees and costs. EVERBANK FINANCIAL: Peterson v. CitiMortgage Now Concluded ---------------------------------------------------------- The case Purnie Ray Peterson, et al. v. CitiMortgage, Inc., et al. concluded prior to the end of the second quarter 2013, according to EverBank Financial Corp.'s Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. In July 2011, plaintiffs filed a putative class action complaint entitled Purnie Ray Peterson, et al. v. CitiMortgage, Inc., et al., in the Fourth Judicial District, County of Hennepin, Minnesota against EverBank, EverHome Mortgage Company and other lenders and foreclosure counsel. The complaint alleges slander of title, breach of fiduciary duty, due process violation, fraud, negligent misrepresentation, conversion, civil conspiracy, unjust enrichment, and equitable estoppel. The plaintiffs assert that defendants do not have valid legal title to the original notes nor have physical possession of the same so the notes cannot be enforced and seek a determination that defendants have no lien interests in the properties and are permanently enjoined from failing to record assignments of securitized mortgage loans. The plaintiffs seek quiet title to their properties and a determination that defendants have invalid and voidable mortgages. The plaintiffs also seek a determination that defendants failed to pay appropriate filing fees, that plaintiffs' original notes are void, that all sums paid to defendants be returned, and that attorneys' fees and costs are awarded. On August 18, 2011, the lawsuit was removed to federal court and on August 29, 2011 a Joint Motion to Dismiss was filed by all defendants. A hearing on the Motion to Dismiss was heard on March 7, 2012. On May 31, 2012, the Court granted EverBank's Motion to Dismiss. Plaintiffs filed a Notice of Appeal on June 27, 2012 and their initial brief on August 16, 2012. Defendant's responsive brief was filed on October 17, 2012. On January 28, 2013 the appellate court affirmed the lower court's dismissal of the action. On February 11, 2013, plaintiffs filed a petition for rehearing en banc, which the court denied on March 14, 2013. Plaintiff failed to file a writ of certiorari within the required time frame and the case concluded prior to the end of the second quarter 2013. EVERBANK FINANCIAL: EverBank Still Faces TCPA Violations Suit ------------------------------------------------------------- The suit filed by Mohammad Sarabi over alleged violations of the Telephone Consumer Protection Act (TCPA), continues as to EverBank in the United States District Court for the Southern District of California, according to EverBank Financial Corp.'s Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On October 11, 2013, a putative class action entitled Mohammad Sarabi, Individually and on behalf of all others similarly situated v. EverBank Financial Corp was filed in the United States District Court for the Southern District of California. Plaintiff filed a putative class action lawsuit alleging negligent and knowing or willful violations of the Telephone Consumer Protection Act (TCPA). Plaintiff seeks injunctive relief prohibiting EverBank from violating the TCPA in the future as well as statutory damages. On December 17, 2013, plaintiff filed an amended complaint naming EverBank and dropping EverBank Financial Corp. Defendant filed an answer on December 20, 2013. A case management conference was scheduled for February 24, 2014. FORD MOTOR: Must Face Suit for Aiding South African Apartheid ------------------------------------------------------------- Steve Straehle, writing for AllGov, reports that a federal District Court judge has ruled that those injured by the apartheid policies of the white-ruled South African government may sue Ford and IBM for providing assistance to that government in the form of military vehicles and computers. The racist policies of apartheid were in force between 1948 and 1994. U.S. District Judge Shira Scheindlin ruled on April 17 that the Alien Tort Statute of 1789 (ATS), which has in recent years been used to hold U.S. corporations liable for human rights violations they facilitate overseas, is applicable in this case. In order to come to this conclusion, however, Judge Scheindlin had to get around a previous ruling in the case of Kiobel v. Royal Dutch Petroleum, in which the Second Circuit Court of Appeals ruled that corporations could not be sued under the ATS. Judge Scheindlin called that case "an outlier," writing "it is the only opinion by a federal court of appeals . . . to determine that there is no corporate liability under the ATS." Bruce Nagel, whose firm Nagel Rice is representing the South Africans, was pleased by Judge Scheindlin's decision. "Ford and IBM enabled the apartheid regime to function, and justice requires that they answer for their wrongdoing," Mr. Nagel said. Originally, more companies were targeted in the suit, but were dropped from the case in previous rulings by Judge Scheindlin. GENERAL MILLS: Institutes Program to Restrict Legal Action ---------------------------------------------------------- Erik Sherman, writing for CBS MoneyWatch, reports that General Mills instituted a program that restricts legal action some of its most loyal customers can take should they have a problem with the company's products. Consumers who accept any of a list of online benefits agree to binding arbitration and cannot join class action suits in disputes, including those over products purchased at a store. General Mills owns such brands as Pillsbury, Betty Crocker, Nature Valley, Yoplait, Wheaties, and Cheerios. The list of online benefits includes entering contests, joining the company's online communities, and receiving electronic newsletters. An update to its legal terms, prominently placed at the top of the website, directs consumers to the information. People who participate in such so-called loyalty programs are generally considered among a company's best customers. The actions do not affect the many consumers who casually buy General Mills products. A New York Times story proclaimed that liking a brand could void a right to sue completely. A statement that General Mills sent CBS MoneyWatch called the claim a "mischaracterization" and said that "[n]o one is precluded from suing us merely by purchasing our products at the store or liking one of our brand Facebook pages." Omri Ben-Shahar, a professor of law at the University of Chicago and expert in consumer legal issues, called the story "grossly misleading" and said that the approach is widely practiced on websites. Furthermore, under U.S. law, there can be no passive restriction on rights when it comes to product defect and liability. Consumers will have to actively accept the agreement when trying to download a coupon or join an email list. However, few bother to read the terms when they click through online, so they may not realize the implications. What is unusual is the extension to physical products purchased online or in stores. "If you're a customer of Facebook or Google, the only way you can do business with them is online," he said. "Wal-Mart.com has legal terms but they don't try to extend them to brick-and-mortar stores." Ben-Shahar said that the "practical importance of this kind of agreement is negligible." The company's biggest concern would likely be to limit class action lawsuits, but given the nature of General Mills sales, lawyers could easily find other plaintiffs. As the New York Times reported, General Mills paid $8.5 million in 2013 to settle lawsuits challenging health claims made on Yoplait Yoplus yogurt packaging. The change in legal terms this year came after a court refused to dismiss a lawsuit about claims that Nature Valley products are "natural" when the ingredients could be genetically modified or processed. The restriction to using arbitration does not prevent a lawsuit. Instead, it forces the consumer to go through a process outside of the traditional court system. The concern by many consumer advocates is that arbitration tends to favor corporations over individuals. A 2007 Public Citizen study of data from one arbitration organization, the National Arbitration Forum, is often cited as evidence because it shows 94 percent of decisions sided with the credit card companies. But virtually all of the 33,948 cases studied were brought by the credit card companies, making them large and lucrative clients of the arbitrators. GOOGLE INC: Appeals Certification of Gmail Ad Class Action ---------------------------------------------------------- Wendy Davis, writing for MediaPost News, reports that Google is asking a federal appellate court to turn away a group of consumers who say their privacy is violated by Gmail ads. The consumers recently asked the 9th Circuit Court of Appeals for permission to immediately appeal U.S. District Court Judge Lucy Koh's recent decision denying them class-action status in the case. Theoretically, that ruling still allows the consumers to move forward as individuals, but not on behalf of other people who have used Gmail to send or receive mail. As a practical matter, however, the decision could make it prohibitively expensive for the consumers to go ahead with the lawsuit. The consumers filed papers under seal, noting that their legal arguments refer to factual matters that Google had sought to keep confidential. Google, which publicly filed its response last week, argues that the consumers haven't shown any "legitimate reason" for an immediate appellate review. The lawsuit centers on Google's practice of scanning Gmail messages in order to surround them with targeted ads. The consumers argue that the scans violate the federal wiretap law, which prohibits companies from intercepting electronic communications without at least one party's consent. Google counters that Gmail account holders consent by accepting the company's terms of service, and that non-account holders implicitly consent by using the service. In September, Judge Koh rejected Google's bid to dismiss the case outright. But she ruled more recently that the consumers can't proceed as a class-action, because one of the main contested issues will be whether people consented to the email scans. Judge Koh said that questions about consent require individual determinations -- especially because people could have learned about Google's email scanning program from a multitude of press reports. Google, which says Judge Koh's decision denying class-action certification was correct, points to some of those reports in its most recent court papers. "There have been thousands of articles in various media outlets that have described Google's automated scanning of Gmail messages since Gmail's inception," the company writes. "These reports appeared in such widely viewed and varied outlets like The New York Times, The Washington Post, CBS News, National Public Radio, the Houston Chronicle, Economist and the Milwaukee Journal Sentinel, and have undoubtedly been seen by millions." The company argues that those news reports are part of the "surrounding circumstances" that should be evaluated when determining whether consumers consented to the email scans that can show whether users consented. "There is no suggestion in any authority proffered by petitioners that an analysis of the 'surrounding circumstances' must be limited to disclosures that come directly from the defendant," the company says. Meanwhile, the consumers and Google are trying to resolve the dispute in mediation. They were slated to provide a status update to Judge Koh last week. HI-CRUSH PARTNERS: Misrepresentation Claims Remain in Stock Suit ---------------------------------------------------------------- Claims relating to alleged misrepresentations continue in In re: Hi-Crush Partners L.P. Securities Litigation, No. 12-Civ-8557 (CM), according to Hi-Crush Partners LP's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. Following the Partnership's November 2012 announcement that Hi- Crush Operating LLC had formally terminated its supply agreement with Baker Hughes in response to the repudiation of the agreement by Baker Hughes, the Partnership, the company's general partner, certain of its officers and directors and its underwriters were named as defendants in purported securities class action lawsuits brought by the Partnership's unitholders in the United States District Court for the Southern District of New York. On February 11, 2013, the lawsuits were consolidated into one lawsuit, styled In re: Hi-Crush Partners L.P. Securities Litigation, No. 12-Civ- 8557 (CM). A consolidated amended complaint was filed on February 15, 2013. That complaint asserted claims under sections 11, 12(a)(2), and 15 of the Securities Act of 1933, as amended, or the Securities Act, and sections 10(b) and 20(a) of the Exchange Act in connection with the Partnership's Registration Statement and a subsequent presentation. Among other things, the consolidated amended complaint alleges that defendants failed to disclose to the market certain alleged information relating to Baker Hughes' repudiation of the supply agreement. On March 22, 2013, the Partnership filed a motion to dismiss the complaint. On December 2, 2013, the court issued an order dismissing the claims relating to the Partnership's Registration Statement, but did not dismiss the claims relating to alleged misrepresentations concerning the Partnership's relationship with Baker Hughes after the Partnership's initial public offering. The Partnership and the remaining defendants in the lawsuit have filed answers to the complaint. The Partnership believes the case is without merit and intends to vigorously defend itself. The Partnership cannot provide assurance, however, as to the outcome of this lawsuit. HITACHI AUTOMOTIVE: Sued for Fixing Valve Timing Controls' Prices ----------------------------------------------------------------- Martens Cars of Washington, Inc., et al., on Behalf of Themselves and all Others Similarly Situated v. Hitachi Automotive Systems, Ltd., Hitachi Automotive Systems Americas, Inc., Denso Corporation, and Denso International America, Inc., Case No. 2:14-cv-10777-MOB-MKM (E.D. Mich., February 19, 2014) is brought as a proposed class action against the Defendants and unnamed co- conspirators, manufacturers and suppliers of Valve Timing Control Devices for engaging in a long-running conspiracy to unlawfully fix, artificially raise, maintain and stabilize prices, rig bids for, and allocate the market and customers in the United States for Valve Timing Control Devices. "Valve Timing Control Devices" control the timing of engine valves' operation, and include the VTC actuator and solenoid valve, and are part of the engine management system of the automotive market. The Plaintiffs are Martens Cars of Washington, Inc.; Landers Auto Group No. 1, Inc., d/b/a Landers Toyota; Hammett Motor Company, Inc.; Superstore Automotive, Inc.; Lee Pontiac-Oldsmobile-GMC Truck, Inc.; V.I.P. Motor Cars Ltd.; Desert European Motorcars, Ltd.; Dale Martens Nissan Subaru, Inc.; Green Team of Clay Center Inc.; McGrath Automotive Group, Inc.; Table Rock Automotive, Inc., d/b/a Todd Archer Hyundai; Archer-Perdue, Inc., d/b/a/ Archer-Perdue Suzuki; Bonneville and Son, Inc.; Holzhauer Auto and Truck Sales, Inc.; Pitre, Inc., d/b/a/ Pitre Buick GMC; Patsy Lou Chevrolet, Inc.; John Greene Chrysler Dodge Jeep, LLC; SLT Group II, Inc., d/b/a Planet Nissan Subaru of Flagstaff; Herb Hallman Chevrolet, Inc., d/b/a/ Champion Chevrolet; Charles Daher's Commonwealth Motors, Inc., d/b/a Commonwealth Chevrolet, Commonwealth Kia, Commonwealth Honda; Commonwealth Volkswagen, Inc., d/b/a Commonwealth Volkswagen; Commonwealth Nissan, Inc., d/b/a Commonwealth Nissan; Ramey Motors, Inc.; Thornhill Superstore, Inc., d/b/a Thornhill GM Superstore; Dave Heather Corporation, d/b/a Lakeland Toyota Honda Mazda Subaru; Central Salt Lake Valley GMC Enterprises, LLC, d/b/a Salt Lake Valley Buick GMC; Capitol Chevrolet Cadillac, Inc.; Capitol Dealerships, Inc., d/b/a Capitol Toyota; Beck Motors, Inc.; Stranger Investments d/b/a Stephen Wade Toyota John O'Neil Johnson Toyota, LLC; Hartley Buick GMC Truck, Inc.; Lee Oldsmobile-Cadillac, Inc. d/b/a Lee Honda; Lee Auto Malls-Topsham, Inc. d/b/a Lee Toyota of Topsham; Landers of Hazelwood, LLC d/b/a Landers Toyota of Hazelwood; Little Rock CDJ, Inc. d/b/a Steve Landers Chrysler Dodge Jeep Cannon Chevrolet - Oldsmobile - Cadillac - Nissan, Inc.; Cannon Nissan of Jackson, LLC; Hudson Charleston Acquisition, LLC d/b/a Hudson Nissan; Shearer Automotive Enterprises III, Inc.; Apex Motor Corporation; Hudson Gastonia Acquisition, LLC and HC Acquisition, LLC d/b/a Toyota of Bristol; Hodges Imported Cars, Inc. d/b/a Hodges Subaru, and Reno Dodge Sales, Inc. d/b/a Don Weir's Reno Dodge. The Defendants manufacture, market, and sell Valve Timing Control Devices throughout and into the United States. The Plaintiffs are represented by: Gerard V. Mantese, Esq. David Hansma, Esq. Brendan Frey, Esq. MANTESE HONIGMAN ROSSMAN AND WILLIAMSON, P.C. 1361 E. Big Beaver Road Troy, MI 48083 Telephone: (248) 457-9200 E-mail: gmantese@manteselaw.com dhansma@manteselaw.com bfrey@manteselaw.com - and - Don Barrett, Esq. Brian Herrington, Esq. David McMullan, Esq. BARRETT LAW GROUP, P.A. P.O. Box 927 404 Court Square Lexington, MS 39095 Telephone: (662) 834-2488 E-mail: dbarrett@barrettlawgroup.com bherrington@barrettlawgroup.com dmcmullan@barrettlawgroup.com - and - Jonathan W. Cuneo, Esq. Joel Davidow, Esq. Daniel Cohen, Esq. Victoria Romanenko, Esq. CUNEO GILBERT & LADUCA, LLP 507 C Street, N.E. Washington, DC 20002 Telephone: (202) 789-3960 E-mail: jonc@cuneolaw.com joel@cuneolaw.com danielc@cuneolaw.com vicky@cuneolaw.com - and - Shawn M. Raiter, Esq. Paul A. Sand, Esq. LARSON KING, LLP 2800 Wells Fargo Place 30 East Seventh Street St. Paul, MN 55101 Telephone: (651) 312-6500 E-mail: sraiter@larsonking.com psand@larsonking.com - and - Michael J. Flannery, Esq. CUNEO GILBERT & LADUCA, LLP 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone: (314) 226-1015 E-mail: mflannery@cuneolaw.com - and - Phillip Duncan, Esq. Richard Quintus, Esq. DUNCAN FIRM, P.A. 900 S. Shackleford, Suite 725 Little Rock, AR 72211 Telephone: (501) 228-7600 E-mail: phillip@duncanfirm.com richard@duncanfirm.com - and - Thomas P. Thrash, Esq. THRASH LAW FIRM, P.A. 1101 Garland Street Little Rock, AR 72201 Telephone: (501) 374-1058 E-mail: tomthrash@sbcglobal.net - and - Dewitt Lovelace, Esq. Valerie Nettles, Esq. LOVELACE & ASSOCIATES, P.A. 12870 US Hwy 98 West, Suite 200 Miramar Beach, FL 32550 Telephone: (850) 837-6020 E-mail: dml@lovelacelaw.com alex@lovelacelaw.com - and - Charles Barrett, Esq. CHARLES BARRETT, P.C. 6518 Highway 100, Suite 210 Nashville, TN 37205 Telephone: (615) 515-3393 E-mail: charles@cfbfirm.com - and - Gregory Johnson, Esq. G. JOHNSON LAW, PLLC 6688 145th Street West Apple Valley, MN 55124 Telephone: (952) 930-2485 E-mail: greg@gjohnsonlegal.com JP MORGAN: Sued in Ill. for Sending Unlawful Ads to Fax Machines ---------------------------------------------------------------- Animal Medical Center of Orland Park, Inc., on behalf of plaintiff and the class members defined herein v. JPMorgan Chase & Co.; JPMorgan Chase Bank, N.A.; Chase Bank USA, N.A.; and John Does 1-10, Case No. 1:14-cv-01251 (N.D. Ill., February 19, 2014) alleges that the Defendants have sent or have caused the sending of unlawful advertisements to telephone facsimile machines in violation of the Telephone Consumer Protection Act. JP Morgan Chase & Co., is a Delaware corporation with offices in New York City. JPMorgan Chase Bank, N.A., is a federally chartered corporation with offices in Columbus, Ohio. Chase Bank USA, N.A., is a federally chartered corporation with offices in Wilmington, Delaware. The identities of the Doe Defendants are currently unknown. The Plaintiff is represented by: Daniel A. Edelman, Esq. Dulijaza Clark, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 120 S. LaSalle Street, 18th floor Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: courtecl@edcombs.com jclark@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com - and - Frank F. Owen, Esq. FRANK F. OWEN & ASSOCIATES, P.A. 1091 Ibis Avenue Miami Springs, FL 33166 Telephone: (305) 984-8915 E-mail: FFO@Castlepalms.com The Defendants are represented by: Julia B. Strickland, Esq. Arjun Patibandla Rao, Esq. STROOCK & STROOCK & LAVAN, LLP 2029 Century Park East, Suite 1600 Los Angeles, CA 90067-3086 Telephone: (310) 556-5800 Facsimile: (310) 556-5959 E-mail: jstrickland@stroock.com arao@stroock.com JUICY COUTURE: Sued for Not Having Blind-Accessible POS Devices --------------------------------------------------------------- David New, individually and on behalf of all others similarly situated v. Juicy Couture, Inc., Case No. 1:14-cv-20621-UU (S.D. Fla., February 19, 2014) is brought against the Defendant for failing to design, construct, and own or operate Point of Sale Devices that are fully accessible to, and independently usable by, blind people, including the Plaintiff. Juicy Couture, Inc., is a California corporation headquartered in Arleta, California. The Plaintiff is represented by: Andrew B. Boese, Esq. Tiffany L. Anderson, Esq. LEON COSGROVE 255 Alhambra Circle, Suite 424 Coral Gables, FL 33134 Telephone: (305) 740-1975 Facsimile: (305) 437-8158 E-mail: aboese@leoncosgrove.com tanderson@leoncosgrove.com The Defendant is represented by: John Houston Pope, Esq. EPSTEIN BECKER & GREEN 250 Park Avenue New York, NY 10177-0077 Telephone: (212) 351-4500 E-mail: jhpope@ebglaw.com KR DRENTH: Fails to Pay Workers According to FLSA, Suit Claims -------------------------------------------------------------- Shane R. McLin, individually and on behalf of others similarly situated v. K.R. Drenth Trucking Company, Inc. d/b/a KRD Trucking, Case No. 1:14-cv-00245-WTL-TAB (S.D. Ind., February 19, 2014) alleges that the Defendant has failed to pay the Plaintiff and those similarly situated to him in accordance with the Fair Labor Standards Act. K.R. Drenth Trucking Company, Inc., doing business as KRD Trucking, is an Illinois corporation doing business in Indiana. The Plaintiff is represented by: Philip J. Gibbons, Jr., Esq. Robert J. Hunt, Esq. GIBBONS LEGAL GROUP, P.C. Two Meridian Plaza 10401 North Meridian Street, Suite 130 Indianapolis, IN 46290 Telephone: (317) 706-1100 Facsimile: (317) 623-8503 E-mail: phil@gibbonslegalgroup.com rob@gibbonslegalgroup.com The Defendant is represented by: David J. Carr, Esq. Emmanuel V.R. Boulukos, Esq. Paul Conrad Sweeney, Esq. ICE MILLER LLP One American Square, Suite 2900 Indianapolis, IN 46282 Telephone: (317) 236-2100 Facsimile: (317) 592-4810 E-mail: david.carr@icemiller.com emmanuel.boulukos@icemiller.com paul.sweeney@icemiller.com LIBERTY MEDIA: Suit Over Acquisition of SIRIUS Shares Continues --------------------------------------------------------------- The cases involving the Proposal by Liberty Media Corporation to acquire the remaining shares of SIRIUS XM that it does not already own continue, according to Liberty's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On August 27, 2012, plaintiff Andrew Montero brought a shareholder class action on behalf of the shareholders of the common stock of SIRIUS XM against SIRIUS XM, the SIRIUS XM Designees, Liberty and Liberty Radio LLC (Montero v. SIRIUS XM Radio Inc., Index No. 653012/2012; N.Y. Sup. Ct. Cnty. of New York). The action was commenced in the Supreme Court for the State of New York in New York County. Mr. Montero alleges breaches of fiduciary duty, aiding and abetting breach of fiduciary duty, and seeks a declaratory judgment, with allegations and relief sought substantially similar to those in the City of Miami litigation. On February 20, 2014, Mr. Montero filed a notice of discontinuance, dismissing the case. In early to mid-January 2014, a series of stockholder class actions were filed in Delaware and New York state courts against Sirius XM Holdings Inc., Liberty, Liberty Radio LLC, and certain present and former Sirius XM Holdings Inc. board members (Joan L. Amble, Anthony J. Bates, George W. Bodenheimer, David J.A. Flowers, Eddy W. Hartenstein, James P. Holden, Gregory B. Maffei, Evan D. Malone, John C. Malone, James E. Meyer, James F. Mooney, Carl E. Vogel, Vanessa A. Wittman. David Zaslav). In Delaware, the cases are captioned: Roy v. Meyer, et al., Case No. 9248-VCN (Del. Ch.); Ebenau v. Meyer, et al., Case No. 9249- VCN (Del. Ch.); Ricciardi v. Sirius XM Holdings Inc., et al., Case No. 9253-VCN (Del. Ch.); Western Washington Laborers- Employers Pension Trust v. Sirius XM Holdings Inc., et al., Case No. 9269-VCN (Del. Ch.); and Varvolis v. Malone, et al., Case No. 9283-VCN (Del. Ch.). In New York, the cases are captioned: Freedman v. Sirius XM Holdings Inc., et al., Index No. 650038/2014 (N.Y. Sup. Ct.); Adoni v. Amble, et al., Index No. 650085/2014 (N.Y. Sup. Ct.); Goodman v. Amble, et al., Index No. 650141/2014 (N.Y. Sup. Ct.); Hartleib v. Sirius XM Holdings Inc., et al., Index No. 650158/2014 (N.Y. Sup. Ct.); Shenk v. Sirius XM Holdings Inc., et al., Index No. 650188/2014 (N.Y. Sup. Ct.); The Booth Family Trust v. Meyer, et al., Index No. 650235/2014 (N.Y. Sup. Ct.); Corso v. Sirius XM Holdings Inc., et al., Index No. 650253/2014 (N.Y. Sup. Ct.); and Sciortino v. Sirius XM Holdings Inc., et al., Index No. 650268/2014 (N.Y. Sup. Ct.). The cases involve the Proposal by Liberty to acquire the remaining shares of SIRIUS XM that it does not already own. The plaintiffs allege that in pursuing this Proposal, Liberty and the individual director defendants breached their fiduciary duties to the SIRIUS XM shareholders. Plaintiffs in certain of the actions have initiated motion practice to consolidate the cases and appoint lead counsel. MAPCO EXPRESS: Faces Class Suit Arising From Security Breaches -------------------------------------------------------------- First National Community Bank, Individually, And on Behalf of All Similarly Situated financial Institutions v. MAPCO Express, Inc., and Delek US Holdings, Inc., Case No. 4:14-cv-00031-HLM (N.D. Ga., February 19, 2014) arises from security breaches that resulted in the loss of customer credit card and debit card account information for thousands of customers. MAPCO Express, Inc. is a Tennessee corporation owned and operated by Delek US Holdings, Inc., with its headquarters in Brentwood, Tennessee. MAPCO operates convenient store or "cstore" chains in Tennessee, Mississippi, and throughout the southeastern United States. Delek US Holdings, Inc., is a Tennessee corporation and the parent company of MAPCO. The Plaintiff is represented by: C. Andrew Childers, Esq. CHILDERS, SCHLUETER & SMITH, LLC 1932 North Druid Hills Road Atlanta, GA 30319 Telephone: (404) 419-9500 Facsimile: (404) 419-9501 E-mail: achilders@cssfirm.com - and - E. Kirk Wood, Esq. WOOD LAW FIRM, LLC P. O. Box 382434 Birmingham, AL 35238-2434 Telephone: (205) 612-0243 Facsimile: (866) 747-3905 E-mail: ekirkwood1@bellsouth.net - and - Greg Davis, Esq. DAVIS & TALIAFERRO, LLC 7031 Halcyon Park Drive Montgomery, AL 36117 Telephone: (334) 832-9080 E-mail: gldavis@knology.net - and - Chris Hellums, Esq. PITTMAN, DUTTON, KIRBY & HELLUMS 2001 Park Place North, Suite 1100 Birmingham, AL 35203-2716 Telephone: (205) 322-8880 E-mail: chrish@pittmandutton.com MARICOPA COMMUNITY: Faces Class Action Over Massive Data Breach --------------------------------------------------------------- Matt Dunning, writing for Business Insurance, reports that a proposed class action lawsuit is targeting a community college district in Tempe, Ariz., that allegedly violated several state and federal data protection laws, including waiting too long to notify affected students, alumni and employees after a breach. According to the lawsuit, the Maricopa County Community College District not only failed to prevent a massive data breach in April 2013, it waited nearly seven months to notify the individuals affected. Administrators of the community college district were notified by the Federal Bureau of Investigation in January 2011 that several of its databases had been breached and were being made available for sale on the Internet, according to a civil lawsuit filed April 15 in the Maricopa County Superior Court in Phoenix. The lawsuit claims district administrators did nothing to address the breach at the time, and that their inaction resulted in a second breach in April 2013. The lawsuit also accuses the community college district of waiting until November 2013 to notify current and former students, employees and third-party vendors that their personally identifiable information -- including names, addresses, Social Security Numbers, personal financial information and benefits information had been accessed and possibly sold on the Internet. The plaintiff in the case, current MCCC student Jason Liebich, is seeking class action status on behalf of the estimated 2.5 million individuals affected by the April 2013 breach. Mr. Liebich has accused the college district of violating several state and federal data protection and notification laws, and has asked the court for compensatory damages including unlimited compensations for credit monitoring, restoration and identity protection costs. A second group of plaintiffs notified the school in March of their intent to pursue a similar lawsuit. MATTLEMAN WEINROTH: Judge Approves Class Action Settlement ---------------------------------------------------------- Patrick Lunsford, writing for insideARM.com, reports that a federal judge in New Jersey approved the settlement of a class action lawsuit against a collection agency over the validation language the firm used in a letter to a consumer. The settlement calls for the debt collection firm to pay $9,500 to the lead plaintiff and potential class of 225 consumers, with the plaintiffs' attorneys receiving $40,000. The case, Wilson v. Mattleman, Weinroth & Miller, involved a collection letter sent to the plaintiff for an outstanding debt owed to an apartment complex. The law firm Mattleman, Weinroth & Miller was acting on behalf of collection agency Executive Credit Management, Inc. -- also named in the suit -- a firm that specializes in, among other things, apartment rental debt. The suit, originally filed in January 2013, alleged that the collection letter did not include the proper disclosures in the validation language per Sec. 1692g(a)(3) of the FDCPA. The plaintiff also alleged that the firm violated Sec. 1692e(10) using deceptive collection practices. On or about October 12, 2012, Mattleman delivered a one-page collection letter to the plaintiff demanding a $4,200 payment that contained the following validation language: In the event you notify us in writing within thirty (30) days of your receipt of this letter that the debt, or any portion of the debt, is disputed, we will mail you verification of the debt, or, if applicable, obtain a copy of the judgment, and upon your written request we will provide you with the original creditor's name and address should it be different from the current creditor. Should you fail to respond within thirty (30) days, we will recommend that our client commence an action against you to protect its rights. Please understand that this communication is from a debt collector and any information we obtain will be used for the purpose of collecting this debt. In a decision issued in June, U.S. District Judge Joseph Irenas dismissed the Sec. 1692e(10) claim, finding that the plaintiff failed to assert a violation. But he did deny the defendants' request to dismiss the Sec. 1692g(a)(3) claim writing, "Although Mattleman contends that its letter contains all the information that Sec. 1692g(a), a reading of the letter as a whole from the perspective of the least-sophisticated debtor shows that this is not the case." Judge Irenas noted that "section 1692g(a)(3) requires only that Mattleman convey the gist of the provision in a non-deceptive statement, not that Mattleman specifically use the term "assume" as argued by the defendants. Yet at no point does the letter purport to notify Wilson that her debt would be assumed valid (or for that matter by whom it would be assumed) if she did not respond within thirty days. The only sentence that could possibly be interpreted to provide such notice states, 'Should you fail to respond within thirty (30) days, we will recommend that our client [Executive] commence an action against you to protect its rights.' This statement, however, does not convey effective notice to a least-sophisticated debtor that her debt would be assumed valid." After the June ruling, the parties started talking settlement. A potential class was determined comprised of former tenants of the apartment complex who had received collection letters from the firm, about 225 people. A $2,500 payment for Wilson, the representative plaintiff, was settled on, as was $7,000 for the remaining class, about $30 per person. The plaintiffs' attorneys, although billing a total of around $44,000 for the case, bravely accepted a $40,000 payment from the defendants. METROPOLITAN LIFE: "Cadenasso" Suit Transferred to Florida Court ---------------------------------------------------------------- District Judge John S. Tigar issued an order granting a motion to transfer venue in the lawsuit captioned RICHARD CADENASSO, Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, et al., Defendants, CASE NO. 13-CV-05491-JST, (N.D. Cal.). Defendant Metropolitan Life Insurance Company filed the Motion to Stay the case under the "first-to-file" rule. In the alternative, MetLife asked the Court to transfer the case to the Southern District of Florida pursuant to 28 U.S.C. Section 1404(a). Defendants Storick Group Company, The Storick Group Corporation, and Scott R. Storick filed a Motion to Dismiss for lack of personal jurisdiction under Rule 12(b)(2). In the alternative, the Storick Defendants requested that the Court transfer the case to the Southern District of Florida pursuant to 28 U.S.C. Section 1404(a). The Court granted MetLife's Motion to Transfer under 28 U.S.C. Section 1404(a) and transferred the case to the Southern District of Florida. The Storick Defendants' Motion to Dismiss for Lack of Personal Jurisdiction or to Transfer was granted as to the motion to transfer and denied as moot as to the motion to dismiss for lack of personal jurisdiction. A copy of the District Court's April 14, 2014 order is available at http://is.gd/djL49afrom Leagle.com. Richard Cadenasso, Plaintiff, represented by Brian J. Wanca -- BWanca@andersonwanca.com -- Anderson + Wanca, David M. Oppenheim -- DOppenheim@andersonwanca.com -- Anderson & Wanca, Robert C. Schubert -- rschubert@schubert-reed.com -- Schubert & Reed LLP, Ross M. Good -- rgood@andersonwanca.com -- Anderson & Wanca & Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert, Jonckheer & Kolbe, LLP. Metropolitan Life Insurance Company, Defendant, represented by Becca J. Wahlquist -- bwahlquist@manatt.com -- Manatt, Phelps & Phillips, LLP & Judd Grutman -- jgrutman@manatt.com -- Manatt, Phelps & Phillips, LLP. Scott R Storick, Defendant, represented by Howard W. Poznanski, Howard Poznanski. Storick Group Co., Defendant, represented by Howard W. Poznanski, Howard Poznanski. The Storick Group Corporation, Defendant, represented by Howard W. Poznanski, Howard Poznanski. MONCKS CORNER: Has Inflicted Emotional Distress, Officers Claim --------------------------------------------------------------- Richard Crouse and George T. Winningham v. Town of Moncks Corner, Town of Moncks Corner Police Department and James Chad Caldwell, Chief of Police, Moncks Corner Police Department, Case No. 2:14- cv-00438-CWH (D.S.C., February 19, 2014) is an employment civil rights case involving alleged deprivations of rights contained in the First and Fourteenth Amendment and of the U.S. Constitution, as well as violations of state and federal public policy laws. The Plaintiffs allege violations of state law and policy under the state Whistleblowers Statute, intentional infliction of emotional distress and retaliation in violation of public policy. The Plaintiffs were employed by the Town of Moncks Corner as law enforcement officers with the Town of Moncks Corner Police Department. The Town of Moncks Corner is a governmental agency providing police protection services through the Town of Moncks Corner Police Department. The Town of Moncks Corner Police Department is a division of the Town of Moncks Corner providing police protection services. James Chad Caldwell is the Chief of Police of Town of Moncks Corner. The Plaintiffs are represented by: Marybeth Mullaney, Esq. 321 Wingo Way Suite # 201 Mount Pleasant, SC 29464 Telephone: (800) 385-8160 E-mail: marybeth@mullaneylaw.net - and - Jennifer Munter Stark, Esq. 210 Wingo Way #300 Mount Pleasant, SC 29464 Telephone: (843) 972-0004 Facsimile: (843) 972-0006 E-mail: jmunterstarklaw@gmail.com The Defendants are represented by: Christopher W. Johnson, Esq. GIGNILLIAT SAVITZ AND BETTIS 900 Elmwood Avenue, Suite 100 Columbia, SC 29201 Telephone: (803) 799-9311 Facsimile: (803) 254-6951 E-mail: cjohnson@gsblaw.net MONSTER BEVERAGE: Issues Statement on Class Action Settlement ------------------------------------------------------------- On April 16, 2014, Monster Beverage Corporation entered into a settlement agreement that, if approved by the court, will resolve a putative securities class action lawsuit against the Company and two of its officers in federal district court in Los Angeles. The lawsuit (Cunha v. Hansen Natural Corp.) was originally filed in 2008, and Monster has spent more than five years aggressively defending against the allegations set forth therein. However, in light of the potential costs of continued litigation, as well as the potential burden and disruption to the Company and its management, Monster, together with its insurance carriers, believed it was in their best interests to settle the case for the amount set forth in the settlement agreement. Monster noted that the full settlement payment was being funded by Monster's insurance carriers, and that the settlement would not have any impact on Monster's financial position or its income statement. Monster further noted that the settlement contains no admission of any liability or wrongdoing on the part of the Company or its officers, and that all of the defendants continue to deny all of the allegations against them and to maintain that the suit has no merit. In fact, contrary to the allegations in the lawsuit, Monster's relationship with Anheuser-Busch was extremely successful during the proposed class period and thereafter. After that relationship began in 2006, Monster achieved record sales in each quarter during the proposed class period, and significantly improved its Monster Energy product line's market share. Further, despite the lawsuit's allegations of harm to investors, Monster's stock price rose by 75% during the proposed class period, generating nearly $1.7 billion in shareholder value during that time. "We are fully confident that we would have prevailed if the litigation had proceeded," said Monster's CEO Rodney C. Sacks. "Nevertheless, given the terms of the settlement, the payment of which is being funded by insurance carriers entirely, we believe it is in the Company's interests to put this matter behind us." MONTAGE TECHNOLOGY: Sued for Not Disclosing True Financial Health ----------------------------------------------------------------- Maria Cecilia Ghilardotti, Individually and On Behalf of All Others Similarly Situated v. Montage Technology Group Limited, Howard C. Yang, Stephen Tai, and Mark Voll, Case No. 1:14-cv- 01036-LLS (S.D.N.Y., February 19, 2014) arises from Montage's alleged failure to disclose its true financial condition during the Class Period. In particular, the Plaintiff contends, Montage failed to disclose that LQW Technology Company Limited, the Company's largest distributor, is a mere shell company that is owned in full by an entity that was established by Montage and a Montage employee. Montage purports to be a global leading fabless provider of analog and mixed-signal semiconductor solutions. The Company specializes in providing products for the home entertainment market and the cloud computing market. The Company is incorporated under the laws of the Cayman Islands, and maintains business offices in San Jose, California. The Company's principal executive offices are located in Shanghai, People's Republic of China. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Curtis V. Trinko, Esq. Jennifer Traystman, Esq. C. William Margrabe, Esq. LAW OFFICES OF CURTIS V. TRINKO, LLP 16 West 46th Street, 7th Floor New York, NY 10036 Telephone: (212) 490-9550 Facsimile: (212) 986-0158 E-mail: Ctrinko@trinko.com jtraystman@trinko.com wmargrabe@trinko.com - and - Joseph E. White III, Esq. Lester R. Hooker, Esq. SAXENA WHITE P.A. 2424 North Federal Highway, Suite 257 Boca Raton, FL 33431 Telephone: (561) 394-3399 Facsimile: (561) 394-3382 E-mail: jwhite@saxenawhite.com lhooker@saxenawhite.com - and - Katharine M. Ryan, Esq. Richard A. Maniskas, Esq. RYAN & MANISKAS, LLP 995 Old Eagle School Rd., Suite 311 Wayne, PA 19087 Telephone: (484) 588-5516 Facsimile: (484) 450-2582 E-mail: kryan@rmclasslaw.com rmaniskas@rmclasslaw.com NEST LABS: Sold Defective Nest Thermostat Products, Suit Claims --------------------------------------------------------------- Thomas Hagedorn, on behalf of himself and all others similarly situated v. Nest Labs, Inc., Case No. 3:14-cv-00755-JST (N.D. Cal., February 19, 2014) arises from the Defendant's alleged defective Nest thermostat product. The Defendant knew about the defect, yet continued to market and sell its product to over one-million consumers in the United States, Mr. Hagedorn contends. Nest Labs, Inc. is incorporated in Delaware with its principal place of business in Palo Alto, California. The Plaintiff is represented by: Patrick W. Emery, Esq. ABBEY, WEITZENBERG, WARREN & EMERY, P.C. 100 Stony Point Road, Suite 200 P.O. Box 1566 Santa Rosa, CA 95402-1566 Telephone: (707) 542-5050 Facsimile: (707) 542-2589 E-mail: pemery@abbeylaw.com - and - Brett Emison, Esq. Adam W. Graves, Esq. Phyllis A. Norman, Esq. LANGDON & EMISON 911 Main Street P.O. Box 220 Lexington, MO 64067 Telephone: (660) 259-6175 Facsimile: (660) 259-4571 E-mail: brett@lelaw.com adam@lelaw.com phyllis@lelaw.com - and - Eric L. Dirks, Esq. WILLIAMS DIRKS, LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 876-2600 Facsimile: (816) 221-8763 E-mail: dirks@williamsdirks.com The Defendant is represented by: Benedict Y. Hur, Esq. Simona Alessandra Agnolucci, Esq. KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111-1809 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 E-mail: bhur@kvn.com sagnolucci@kvn.com Movant Justin Darisse is represented by: Annick Marie Persinger, Esq. BURSOR AND FISHER, P.A. 1990 N. California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: apersinger@bursor.com NEW YORK, NY: Faces Suit for Exploiting People With Petty Crimes ---------------------------------------------------------------- Oren Yaniv, writing for New York Daily News, reported that a class action was slated to be filed last week in Manhattan federal court asserting that people who perform community service as part of dismissing their low-level criminal cases are unlawfully exploited by the city for free labor. The lawsuit would challenge a longstanding practice in which defendants sweep parks or clean highways as part of an arrangement known as adjournment in contemplation of dismissal. An ACD is given in misdemeanor cases and requires defendants to stay out of trouble for six months or a year before their cases are dismissed and sealed. Sometimes, a handful of days of community service are added as part of the deal. "The city saves, at the least, many thousands of dollars a year in labor costs utilizing their free labor," claims the suit by Brooklyn lawyer Andrew Stoll. Court papers note that these workers never pleaded guilty, "remain clothed with a presumption of innocence, and are in no need of punishment, deterrence, or rehabilitation." The oft-misunderstood ACD is typically offered on weak cases or to defendants with no criminal records who were caught on a minor offense. Nearly 88,000, or 28% of criminal cases citywide, resulted in that disposition in 2012. Court officials couldn't immediately say how many also included community service. Mr. Stoll estimated the number at dozens of cases each day. "He's misinterpreting the meaning and purpose of an ACD," opined criminal defense attorney Jonathan Strauss, who was told of the suit. The question is whether it meets the definition of employment under federal and state labor laws -- and it does. He explained that an ACD is not tantamount to a dismissal, but is an agreement that precludes defendants from bringing a malicious prosecution lawsuit and includes benefits like avoiding court dates and lawyer fees. "The bottom line is that it's exploitation," Mr. Stoll insisted. "The question is whether it meets the definition of employment under federal and state labor laws -- and it does." He compared the current practice to unpaid internships or to a maid who is given free lodging but no salary. He said ACD laborers should be paid minimum wage or that their community service should be abolished. Plaintiffs named in the suit are Michael Smith of Brooklyn who had to clean the Cross Bay Bridge for one day after a gravity knife was found in his car and Aidan Doyle who was busted for turnstile jumping in 2012. A spokesman for the city Law Department declined comment before reviewing the complaint. But a skeptical defense lawyer, who asked not to be named, pooh-poohed the lawsuit as "a huge shakedown" and "money grab" on the part of the attorney. Mr. Stoll brushed that criticism aside and noted he's bringing the action on behalf of mostly poor people who are often the target of low-level busts. "If I can make money by doing good, then everybody wins," he said. NIELSEN CO: Agrees to Pay Overtime Class Action for $1.2 Million ---------------------------------------------------------------- Aaron Vehling, writing for Law360, reports that media research company The Nielsen Company (US) LLC has agreed to pay up to $1.2 million to settle a putative class action in which employees claimed they were denied overtime compensation and proper meal breaks and rest periods, in violation of state and federal laws, according to a settlement agreement in California federal court announced on April 17. Under the agreement, two classes of employees with the title of "member representatives" who have made wage-and-hour allegations will receive money: a California class, which will get a third of the settlement amount after deduction of attorneys' fees and other expenses, and a nationwide class, which will get two-thirds of the settlement less similar expenses, according to the plaintiffs' preliminary approval motion. Attorneys' fees amount to about $400,000. The California class includes current and former Nielsen employees who were member representatives from May 8, 2009, onward. The nationwide class includes current and former non- California member representatives who worked for Nielsen from May 8, 2010. Individual settlement payments will be calculated based on the number of weeks worked during the class periods, according to the agreement. Tony Benado filed the class action in May. As a member representative for the media research company, Mr. Benado would visit the homes of families whose television watching and other media consumption habits were monitored by Nielsen for the benefit of clients. He alleged that he and other member representatives were regularly denied an hour's worth of compensation for drive time to the first Nielsen home of the day and from the last at the end of their shifts. All other drive time was compensated, the lawsuit said. Mr. Benado also accused Nielsen of stiffing the member representatives out of meal breaks and rest periods required by state law. In November, the parties entered mediation and for an unspecified amount of time engaged in proceedings to come to the presented terms, according to the preliminary approval motion. Among the fees to be deducted from the settlement are a $5,000 bonus to Mr. Benado for serving as the lead plaintiff in the lawsuit and a $5,000 penalty to the California Labor and Workforce Development Agency. The parties also agree to pay about 10 percent to the claims administrator. Nielsen, known for its Nielsen ratings since the 1950s, among other media consumption measurement systems, denied all the allegations and is not admitting any wrongdoing by settling, according to the agreement. The plaintiffs are represented by H. Tim Hoffman, Chad A. Saunders and Eric Barba of Hoffman Libenson Saunders & Barba. Nielsen is represented by Lindsey Connor Hulse -- lhulse@orrick.com -- and Jessica Perry -- jperry@orrick.com -- of Orrick Herrington & Sutcliffe LLP. The case is Benado v. The Nielsen Company (US) LLC et al., case number 3:13-cv-02123, in U.S. District Court for the Northern District of California. NIKON INC: Faces "Hill" Suit Over Defective D600 Camera Shutter --------------------------------------------------------------- Howard Hill, individually and on behalf of all others similarly situated v. Nikon Inc., Case No. 3:14-cv-00764-LB (N.D. Cal., February 19, 2014) concerns the Defendant's alleged deceptive marketing of and a defect in the shutter mechanism of the "pro- level" Nikon D600 camera, which ruins photographs with consistent and pervasive oil and dust spotting. Nikon Inc. is a New York corporation, with its principal place of business in Melville, New York. Nikon is one of the world's largest and best known manufacturers of digital imaging, precision optics, and photo imaging technology. The Plaintiff is represented by: Daniel L. Warshaw, Esq. PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: dwarshaw@pswlaw.com - and - Brian C. Gudmundson, Esq. Behdad C. Sadeghi, Esq. ZIMMERMAN REED, PLLP 1100 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 341-0400 Facsimile: (612) 341-0844 E-mail: brian.gudmundson@zimmreed.com behdad.sadeghi@zimmreed.com - and - James J. Pizzirusso, Esq. HAUSFELD, LLP 1700 K Street NW Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 E-mail: jpizzirusso@hausfeldllp.com NISSAN MOTOR: Faces Class Action Over Debt Collection Calls ----------------------------------------------------------- Juan Carlos Rodriguez and Kurt Orzeck, writing for Law360, reports that Nissan Motor Co. Ltd.'s financing unit was hit on April 21 with a proposed class action accusing it of illegally calling a consumer from whom it was attempting to collect a debt, despite her repeated requests not to be contacted by phone. Plaintiff Candida Wolcott says in her complaint, filed in California federal court, that Nissan Motor Acceptance Corp., which handles lease and loan financing for the carmaker, violated the Telephone Consumer Protection Act through its unwanted phone calls. She allegedly received the first call earlier this month, and during the call requested that she not be contacted by telephone again. According to the suit, the TCPA is designed to give consumers a choice as to how creditors or marketers may contact them, and Ms. Wolcott was denied her choice when the company continued to call her. "Plaintiff demanded that defendant cease telephoning plaintiff on plaintiff's cellular telephone . . . thereby expressly revoking any consent that may have been in place to receive calls via an automatic telephone dialing system and/or using an artificial or prerecorded voice," the complaint said. Shortly after the first call, NMAC allegedly called her again using an automatic telephone dialing system, and she received a prerecorded message that she should wait on the line for an agent to pick up the call and speak with her. The next day Ms. Wolcott's attorney sent a letter to NMAC demanding that it stop trying to contact her, and according to the complaint, the company has acknowledged receipt of the letter. However, a week or so later, Wolcott got another call similar to the first two, made by an automatic telephone dialing system and using a prerecorded voice message, the suit says. "Defendant, either directly or through its agents, illegally contacted plaintiff and the class members via their cellular telephones by using an ATDS and/or artificial or prerecorded voice, thereby causing plaintiff and class members to incur certain cellular telephone charges or reduce cellular telephone time for which plaintiff and the class members previously paid, and invading the privacy of said plaintiff and the class members," the complaint said. NMAC has faced other legal problems in California recently. In January, a California state appeals court revived fraud allegations accusing NMAC of promising financial support to California dealerships and then pulling the plug, finding a jury was blocked from hearing key evidence favoring the dealerships. Reversing in part a judgment by Superior Court Judge Ronald L. Bauer, the three-judge panel determined that the jury hadn't heard evidence that NMAC President Steve Lambert allegedly made false oral promises to continue financing Superior Automotive Group LLC's dealerships regardless of untimely inventory payments. Ms. Wolcott is represented by Assal Assassi of Kazerouni Law Group APC, Joshua B. Swigart of Hyde & Swigart, Jared M. Hartman of Hartman Law Office Inc. and Babak Semnar of Semnar Law Firm. The case is Candida Wolcott v. Nissan Motor Acceptance Corp., number 5:14-cv-00780, in the U.S. District Court for the Central District of California. NORTHWEST SAVINGS: Settles Suit Over Posting of Bank Transactions ----------------------------------------------------------------- Northwest Savings Bank participated in a mediation and reached an agreement in principle to settle the suit that alleged state law claims related to its order of posting ATM and debit card transactions and the assessment of overdraft fees on deposit customer accounts, according to Northwest Bancshares, Inc.'s Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On May 7, 2012, Ashley Toth ("Plaintiff") filed a putative class action complaint in the Court of Common Pleas of Allegheny County, Pennsylvania against Northwest Savings Bank ("Northwest"). Plaintiff's complaint alleged state law claims related to Northwest's order of posting ATM and debit card transactions and the assessment of overdraft fees on deposit customer accounts. Northwest filed preliminary objections to the putative class action complaint on June 29, 2012. On September 6, 2012, Plaintiff filed an amended putative class action complaint containing substantially the same allegations as the initial putative class action complaint. On November 5, 2012, Northwest filed preliminary objections to the amended putative class action complaint. Plaintiff filed her opposition to Northwest's preliminary objections on December 6, 2012, and Northwest filed its reply in support of the preliminary objections on January 3, 2013. On June 25, 2013, the court entered an order, granting in part and overruling in part, Northwest's preliminary objections. On November 18, 2013, the parties participated in a mediation and reached an agreement in principle, subject to the preparation and execution of a mutually acceptable settlement agreement and release, to fully, finally and completely settle, resolve, discharge and release all claims that have been or could have been asserted in the action on a class-wide basis. The proposed settlement contemplates that, in return for a full and complete release of claims by Plaintiff and the settlement class members, Northwest will create a settlement fund for distribution to the settlement class members after certain court-approved reductions, including for attorney's fees and expenses. The proposed settlement is subject to preliminary and final court approval. OISHII THAI: Fails to Pay Minimum and Overtime Wages, Suit Claims ----------------------------------------------------------------- Pablo Rivera Fuentes, on behalf of herself and all other similarly situated persons, known and unknown, v. Oishii Thai, Inc., Sineneena Techawatanaset, individually, Case No. 1:14-cv- 01255 (N.D. Ill., February 19, 2014) seeks redress for the Defendants' alleged willful violations of the Fair Labor Standards Act and the Illinois Minimum Wage Law in connection with the Defendants' failure to pay the Plaintiff and other similarly situated employees earned minimum wage and overtime wages for hours worked in excess of 40 hours in a week. The Plaintiff worked at the Defendants' Buffalo Grove, Illinois restaurant location. Oishii Thai, Inc. is an Illinois corporation. Sineneena Techawatanaset is the president of the Company. The Plaintiff is represented by: Valentin Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 878-1302 Facsimile: (888) 270-8983 E-mail: vnarvaez@yourclg.com The Defendants are represented by: E. Michael Ciesla, Esq. Allison R. Pawlicki, Esq. CIESLA & CIESLA, P.C. 836 Skokie Blvd. Northbrook, IL 60062 Telephone: (847) 412-1988 Facsimile: (847) 418-3217 E-mail: mciesla@cclegal.net arpawlicki@cclegal.net OTTAWA: Flood Victims Seek Court Certification for C$200MM Suit --------------------------------------------------------------- Aaron Derfel, writing for The Montreal Gazette, reports that nearly three years after massive flooding devastated much of the Richelieu River valley, victims are seeking court certification for a $200-million class-action lawsuit against the provincial and federal governments. Certification is not automatic, but must be granted by a judge before a class action can proceed. The victims claim that both Ottawa and Quebec did not provide them with adequate financial compensation for the flood damage to their homes and businesses. The 37 days of flooding -- during which water from the river surged one kilometer overland from its banks -- affected more than 3,000 properties. Quebec pledged in 2011 to compensate victims up to 80 per cent of the value of their "necessities of life," but the plaintiffs argue that the process was arbitrary and didn't cover many items like a second fridge. Ottawa reimbursed Quebec millions of dollars for some of the compensation it paid out. In a court motion filed by lead plaintiff Denis Dupuis, the victims contend that the two governments are ultimately responsible for the flood damage because they never followed through on plans in 1937 to lower the river bed in the rapids flowing through St-Jean-sur-Richelieu. Gilles Gareau, one of the lawyers representing the victims, told The Gazette that the federal government has long been aware of seasonal flooding in the Richelieu Valley and took steps in 1937 to remedy the problem. Although it did build a dam on Fryers Island, between Chambly and St-Jean, that was only one part of the foreseen solution, he said. "Everyone's aware of the problem of the flooding and almost a hundred years later, the rest of the work that's needed to avoid 90 to 95 per cent of homes being flooded still hasn't been completed," Mr. Gareau said. The plaintiffs also claim that their rights to "security of person" -- guaranteed under the Quebec Charter of Rights and Freedoms -- have been violated because of the repeated flooding in the valley over the years. "These floods on a nearly yearly basis cause tremendous stress to the people who have to live through them, and it's basically a violation of their right to the security of their being," Mr. Gareau said. "In the most extreme case, we've had people who committed suicide following the 2011 floodings." Justice Louis Lacoursiere is to hear arguments for the certification starting Tuesday in St-Jean-sur-Richelieu. The total compensation being sought also includes moral damages for suffering, Mr. Gareau said. PELLA CORP: "Romig" Suit Transferred from N.Y. to South Carolina ---------------------------------------------------------------- The class action lawsuit styled Romig v. Pella Corporation, et al., Case No. 5:13-cv-00849, was transferred from the U.S. District Court for the Northern District of New York to the U.S. District Court for the District of South Carolina (Charleston). The South Carolina District Court Clerk assigned Case No. 2:14- cv-00433-DCN to the proceeding. Plaintiff John Romig, Jr., is represented by: Christopher A. Seeger, Esq. SEEGER, WEISS LAW FIRM 77 Water Street, 26th Floor New York, NY 10005 Telephone: (212) 584-0700 Facsimile: (212) 584-0799 E-mail: cseeger@seegerweiss.com - and - Jonathan Shub, Esq. Scott A. George, Esq. SEEGER, WEISS LAW FIRM 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone: (215) 564-2300 Facsimile: (215) 851-8029 E-mail: jshub@seegerweiss.com sgeorge@seegerweiss.com - and - Daniel K. Bryson, Esq. Scott C. Harris, Esq. WHITFIELD BRYSON & MASON LLP 3700 Glenwood Ave., Suite 410 Raleigh, NC 27612 Telephone: (919) 981-0191 Facsimile: (919) 981-0199 E-mail: dan@wbmllp.com scott@wbmllp.com The Defendants are represented by: Clifford G. Tsan, Esq. Suzanne O. Galbato, Esq. Thomas Keleher, Esq. BOND, SCHOENECK LAW FIRM - SYRACUSE One Lincoln Center Syracuse, NY 13202 Telephone: (315) 218-8000 Facsimile: (315) 218-8100 E-mail: ctsan@bsk.com sgalbato@bsk.com tkeleher@bsk.com - and - G. Mark Phillips, Esq. Michael Tucker Cole, Esq. NELSON MULLINS RILEY AND SCARBOROUGH (CH) 151 Meeting Street, Sixth Floor Charleston, SC 29401 Telephone: (843) 720-4383 Facsimile: (843) 534-4392 E-mail: mark.phillips@nelsonmullins.com mike.cole@nelsonmullins.com - and - James A. O'Neal, Esq. John P. Mandler, Esq. Shane A. Anderson, Esq. FAEGRE & BENSON LLP 2200 Wells Fargo Center 90 S 7th St., Suite 2200 Minneapolis, MN 55402-3901 Telephone: (612) 766-7000 Facsimile: (612) 766-1600 E-mail: ames.oneal@faegrebd.com john.mandler@faegrebd.com shane.anderson@faegrebd.com - and - Elizabeth A. Genung, Esq. MELVIN, MELVIN LAW FIRM 217 South Salina Street, 7th Floor Syracuse, NY 13202-1686 Telephone: (315) 422-1311 Facsimile: (315) 479-7612 QUALITY MEDICAL: Accused of Sending TCPA-Prohibited Fax Blasts -------------------------------------------------------------- Al and Po Corporation, individually and on behalf of all others similarly situated v. Quality Medical Products, LLC, a Florida limited liability company, Case No. 1:14-cv-01243 (N.D. Ill., February 19, 2014) alleges that in an effort to market its products and services, the Defendant sent unsolicited junk faxes in bulk, known as fax blasts, to unwilling recipients with deficient opt-out notices, which practice is expressly prohibited by the Telephone Consumer Protection Act. Quality Medical Products, LLC, is a Florida limited liability company headquartered in Delray Beach, Florida. The Defendant is a supplier of breathing-disorder and diabetic medical equipment. The Defendant also maintains a subcontracting network for its products and services. The Plaintiff is represented by: Joseph J. Siprut, Esq. Gregg M. Barbakoff, Esq. Ismael T. Salam, Esq. SIPRUT PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 470-6588 E-mail: jsiprut@siprut.com gbarbakoff@siprut.com isalam@siprut.com The Defendant is represented by: Ari Nicholas Rothman, Esq. VENABLE LLP 575 7th Street, NW Washington, DC 20004 Telephone: (202) 344-4220 E-mail: anrothman@venable.com SAULT AREA HOSPITAL: Law Firm Mulls Class Action Over Data Breach ----------------------------------------------------------------- Elaine Della-Mattia, writing for Sault Star, reports that Sault Area Hospital employee has been terminated after hospital officials say patient records were accessed inappropriately. Mario Paluzzi, vice president of SAH public relations, said the investigation began last summer after it was first discovered during a random audit that "something went wrong here." The investigation, which began immediately and resulted in a complete audit of the individual's access into the MediTech system, went back to 2008. The results indicated that 144 "breaches" were discovered, Mr. Paluzzi said. Patients, whose information was inappropriately accessed, were notified by way of a letter and with the assistance of the Information and Privacy Commissioner once the hospital completed its due diligence, Mr. Paluzzi said. It's not believed the records were copied, downloaded or exported, he said. "I'm not sure exactly when the records were accessed but our audit shows that there were 144 inappropriate cases of accessing patient files," Mr. Paluzzi said. "We have zero tolerance and the repercussions are swift and significant" after proper checks and balances are completed. The MediTech system is a common computerized system used in the health care industry. At SAH, many staff have access to the system and patient files but employees are only supposed to access patient files if they are part of that patient's circle of care. "We have done as much as possible to educate (our staff) and they know we have zero tolerance," he said. In this particular case, the employee -- whom Mr. Paluzzi would not identify by name, position or area employed -- had accessed about 500-600 files, of which the majority were justified access, he said. That individual is appealing the termination notice. Since the notification letters have gone out, Mr. Paluzzi said a number of distraught patients have called the hospital seeking more information about the types of information that was accessed, why, and how it can be used. "We have no reason to believe the access was other than for curiosity. Someone was being nosy, a little too curious," he said. Mr. Paluzzi said he did not know whether health card numbers were accessed or what implications that would have on the patients who own those numbers. "The individual was just curious. The information was not passed along, not copied and the health card numbers were not shared," he said. The MediTech system is used by doctors, nurses, technicians, clinical services, diagnostic imaging staff and some administration. Access is required by many staff but accessing personal information must be justifiable by those only in the patient's circle of care, he said. "This is a serious breach of trust and we treat it as such," Mr. Paluzzi said. He said a handful of similar cases have occurred since 2008 and have resulted in employee terminations. "We continue to perform random audits and we educate our employees about our policies the repercussions of not following those polices." The Sault Area Hospital is not the first hospital to experience breach of privacy issues. The Peterborough Regional Health Centre is embroiled in a $5.6 million class action lawsuit concerning privacy issues. Lawyers representing the hospital had unsuccessfully attempted to toss out the lawsuit last fall but the courts ruled the claim has merit and can be tested in the courts. In that case, the Peterborough hospital fired seven employees for snooping at the records when they were not entitled to do so. Lawyer Michael Crystal, of the Ottawa-based law firm Michael Crystal and Associates, who is representing the plaintiffs in the Peterborough case, said he's already been contacted by a Sault Ste. Marie resident about the local situation. "I have been contacted and I have a representative plaintiff," Mr. Crystal said in a telephone interview. "My intention is to move forward with a class action." Mr. Crystal said his client is distraught about the disclosure of patient records. He said that at this time, he cannot identify his client or the reason for hospitalization. "I can only say that patients have had their privacy invaded and they can't understand how this happened. My job now is to speak to others in Sault Ste. Marie and do my due diligence," he said. Mr. Crystal said the statute of limitations is not an issue in the case and he will file an initial state of claim with a representative plaintiff in due course. A representative plaintiff is one person who has enough of the common elements as other potential plaintiffs in a class action lawsuit. In the meantime, he has had some brief contact with a few other individuals in Sault Ste. Marie who also received letters from the hospital explaining the breach and plans on visiting Sault Ste. Marie in the future to conduct more interviews. Mr. Crystal said that while the hospital may have limited ability to determine if the medical records were copied or downloaded, they wouldn't be able to know if the information was disseminated elsewhere. "I'm very interested in this and will make myself immediately available to anyone affected" by the breached records, he said. SIOUX CITY, IA: Settles Suit Over Utility Bill Franchise Fee ------------------------------------------------------------ Kristen Johnson, writing for ktiv.com, reports that on April 21, Sioux City leaders accepted a six-and-a-half million dollar settlement in a class action lawsuit filed against it and several other Iowa communities. The lawsuit stems from a two-percent franchise fee tacked onto gas and electric bills. At the time, there was no state law that authorized the fee, and the towns involved in the suit were ordered to pay back the money collected. Since then, the Iowa legislature has pass a law that allows a five-percent franchise fee. City leaders plan to raise the fee to five-percent, to pay for the settlement. "It allows (us) to spread the cost to the rate payers, a larger population rather than just raising property taxes, which would only be paid by those who have taxable property," said City Manager Bob Padmore. Though the city council has accepted the settlement, a judge will still have the final say. ST. MARK PLUMBING: Fails to Properly Pay Overtime, Suit Claims -------------------------------------------------------------- Hubert Brooks, in his individual capacity and on behalf of others similarly situated v. St. Marks Plumbing & Heating Co. Inc., and Michael Faust, an individual, Case No. 1:14-cv-01028-AKH (S.D.N.Y., February 19, 2014) alleges that the Plaintiff only received "straight time" pay for overtime hours worked, and did not receive the prevailing wage rate despite working on New York City Housing Authority projects. The Plaintiff worked as a plumber for the Defendants' heating and plumbing company. St. Marks Plumbing &Heating Co. Inc. is a New York corporation headquartered in New York City. Michael Faust is the owner of St. Marks Plumbing & Heating. The Plaintiff is represented by: Penn Dodson, Esq. ANDERSON DODSON, P.C. 11 Broadway, Suite 615 New York, NY 10004 Telephone: (212) 961-7639 Facsimile: (646) 998-8051 E-mail: penn@andersondodson.com SUMMER INFANT: Recalls Infant Monitor Rechargeable Batteries ------------------------------------------------------------ Kid's Doctor reports that in cooperation with the United States Consumer Product Safety Commission (CPSC), Summer Infant, Inc. announced a voluntary recall to replace certain rechargeable batteries in baby video monitors due to overheating and burn hazards. The recall involves about 800,000 rechargeable batteries in certain Summer Infant handheld color video monitors. The rechargeable batteries in the monitors are about 1 1/2" tall by 2 1/4" wide and are 1/4" thick, black, and are marked with TCL on the lower right corner of the battery. Monitors are sold with a matching camera and A/C adaptors. The rechargeable battery can only be found in the monitor. Batteries that may be affected will include a letter & number combination in the beginning of the serial number on the back of the battery. The battery in certain handheld video monitors can overheat and rupture, posing a burn hazard to consumers. Summer Infant has received 22 reports of overheated batteries and ruptured batteries, including incidents of smoke and minor property damage. Consumers should stop using this product and remove the battery. You can complete the online form to receive a replacement battery. The monitor can continue to be used on AC power with power cord. The product was sold at mass merchants, online retailers and independent juvenile specialty stores from about February 2010 through 2012 for approximately $149-$349. Consumers can go online at www.summerinfant.com/alerts/batterty-recall to fill out a replacement battery form and for instructions on how to replace the battery. There is also a link where you can view the recalled batteries, battery numbers and the monitors that are affected. SUNNYVALE DEL GRANDE: Court Reverses Arbitration Denial Ruling -------------------------------------------------------------- Brian Mahoney, writing for Law360, reports that a California appeals court on April 17 reversed a trial court's denial of an auto dealer's bid to compel arbitration in a class action dispute with a group of car buyers, saying federal law preempted a state statute prohibiting class action waivers. California's Sixth Appellate District said in an unpublished opinion that the Federal Arbitration Act preempts California's Consumers Legal Remedies Act, reversing a trial court's order removing the arbitration mandate in a contract dispute between California resident and lead plaintiff Suzanne Gillespie and a car dealership owned by Sunnyvale Del Grande Inc. The opinion based much of its analysis on the 2011 U.S. Supreme Court decision in AT&T Mobility v. Concepcion, which found that the FAA preempts the CLRA in certain circumstances. "Based on the reasoning in Concepcion, the CLRA's anti-waiver provision 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of [the FAA]' and thus we determine that the statutory provision is preempted by the FAA," the court said. The high court's 5-4 decision in Concepcion overturned a Ninth Circuit ruling striking down the class action ban in AT&T's consumer arbitration agreements as unconscionable under state law comes as a strong statement against class arbitration. In the instant case, Ms. Gillespie had accused the dealership of illegally backdating a sales contract for a used vehicle, charging fees for "new tires" even though it equipped her vehicle with old tires and charging her for optional California Department of Motor Vehicles fees without her permission, the opinion said. She alleged 11 causes of action against Sunnyvale Del Grande and co-defendant Bank of the West, which was assigned the sale contract. After the case was filed, the defendants in 2012 asked the trial court to compel arbitration, arguing that the contract Gillespie signed had an arbitration clause. They also claimed that Gillespie had waived her rights to pursue a class action against the companies, according to the opinion. Gillespie opposed the bid to arbitrate. She said that the contract's arbitration clause was unenforceable under the CLRA, adding that the contract terms were unconscionable, the opinion said. The trial court agreed, ruling that the arbitration clause was "permeated with unconscionability" and declining to enforce the remainder of the arbitration clause or the class action waiver, the opinion said. On appeal, the dealership and the bank argued that the arbitration clause had "minimal" procedural unconscionability and that the class action waiver in the arbitration clause was enforceable. The appeals court on April 17 agreed that allowing FAA preempted the CLRA in this case. "Enforcing the CLRA's provision against a class action waiver would essentially allow consumers to demand classwide arbitration and entail complex, costly, and time-consuming arbitration procedures," the court said. The plaintiff is represented by Christopher P. Barry of Rosner Barry & Babbitt LLP. Sunnyvale Del Grande Inc. is represented by Andrew V. Stearns -- astearns@boglawyers.com -- of Bustamante & Gagliasso APC. The case is Suzanne Gillespie v. Sunnyvale Del Grande Inc., et al., case number H039428, in the Sixth Appellate District of the Court of Appeal of the State of California. SWIFT TRANSPORTATION: Denied Arbitration in Owner-Operators' Suit ----------------------------------------------------------------- The Arizona Court of Appeals denied Swift Transportation Company's motion to compel arbitration and denied its request to decertify the class in a suit involving certain owner-operators, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On January 30, 2004, a class action lawsuit was filed by Leonel Garza on behalf of himself and all similarly situated persons against Swift Transportation: Garza vs. Swift Transportation Co., Inc., Case No. CV7-472, or the Garza Complaint. The putative class originally involved certain owner-operators who contracted with the Company under a 2001 Contractor Agreement that was in place for one year. The putative class is alleging that the Company should have reimbursed owner-operators for actual miles driven rather than the contracted and industry standard remuneration based upon dispatched miles. The trial court denied plaintiff's petition for class certification, the plaintiff appealed and on August 6, 2008, the Arizona Court of Appeals issued an unpublished Memorandum Decision reversing the trial court's denial of class certification and remanding the case back to the trial court. On November 14, 2008, the Company filed a petition for review to the Arizona Supreme Court regarding the issue of class certification as a consequence of the denial of the Motion for Reconsideration by the Court of Appeals. On March 17, 2009, the Arizona Supreme Court granted the Company's petition for review, and on July 31, 2009, the Arizona Supreme Court vacated the decision of the Court of Appeals opining that the Court of Appeals lacked automatic appellate jurisdiction to reverse the trial court's original denial of class certification and remanded the matter back to the trial court for further evaluation and determination. Thereafter, the plaintiff renewed the motion for class certification and expanded it to include all persons who were employed by Swift as employee drivers or who contracted with Swift as owner-operators on or after January 30, 1998, in each case who were compensated by reference to miles driven. On November 4, 2010, the Maricopa County trial court entered an order certifying a class of owner-operators and expanding the class to include employees. Upon certification, the Company filed a motion to compel arbitration as well as filing numerous motions in the trial court urging dismissal on several other grounds including, but not limited to the lack of an employee as a class representative, and because the named owner- operator class representative only contracted with the Company for a three month period under a one year contract that no longer exists. In addition to these trial court motions, the Company also filed a petition for special action with the Arizona Court of Appeals arguing that the trial court erred in certifying the class because the trial court relied upon the Court of Appeals ruling that was previously overturned by the Arizona Supreme Court. On April 7, 2011, the Arizona Court of Appeals declined jurisdiction to hear this petition for special action and the Company filed a petition for review to the Arizona Supreme Court. On August 31, 2011, the Arizona Supreme Court declined to review the decision of the Arizona Court of Appeals. In April 2012, the court issued the following rulings with respect to certain motions filed by Swift: (1) denied Swift's motion to compel arbitration; (2) denied Swift's request to decertify the class; (3) granted Swift's motion that there is no breach of contract; and (4) granted Swift's motion to limit class size based on statute of limitations. SWIFT TRANSPORTATION: Fights Appeal in FLSA Violations Lawsuit -------------------------------------------------------------- Swift Transportation Company is appealing the decision of the appellate court to allow plaintiffs to proceed with their interlocutory appeal in a suit by owner-operators alleging they were misclassified as independent contractors, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On December 22, 2009, a class action lawsuit was filed against Swift Transportation and IEL: John Doe 1 and Joseph Sheer v. Swift Transportation Co., Inc., and Interstate Equipment Leasing, Inc., Jerry Moyes, and Chad Killebrew, Case No. 9-CIV-10376 filed in the United States District Court for the Southern District of New York, or the Sheer Complaint. The putative class involves owner-operators alleging that Swift Transportation misclassified owner-operators as independent contractors in violation of the federal Fair Labor Standards Act, or FLSA, and various New York and California state laws and that such owner-operators should be considered employees. The lawsuit also raises certain related issues with respect to the lease agreements that certain owner- operators have entered into with IEL. At present, in addition to the named plaintiffs, approximately 200 other current or former owner-operators have joined this lawsuit. Upon Swift's motion, the matter has been transferred from the United States District Court for the Southern District of New York to the United States District Court in Arizona. On May 10, 2010, the plaintiffs filed a motion to conditionally certify an FLSA collective action and authorize notice to the potential class members. On September 23, 2010, plaintiffs filed a motion for a preliminary injunction seeking to enjoin Swift and IEL from collecting payments from plaintiffs who are in default under their lease agreements and related relief. On September 30, 2010, the District Court granted Swift's motion to compel arbitration and ordered that the class action be stayed pending the outcome of arbitration. The court further denied plaintiff's motion for preliminary injunction and motion for conditional class certification. The Court also denied plaintiff's request to arbitrate the matter as a class. The plaintiff filed a petition for a writ of mandamus asking that the District Court's order be vacated. On July 27, 2011, the court denied the plaintiff's petition for writ of mandamus and the plaintiff's filed another request for interlocutory appeal and remanded the matter back to the District Court for further determination. On December 9, 2011, the court permitted the plaintiffs to proceed with their interlocutory appeal. The Company intends to vigorously defend against any proceedings and is appealing the decision of the appellate court to the U.S. Supreme Court. The final disposition of this case and the impact of such final disposition cannot be determined at this time. SWIFT TRANSPORTATION: Still Faces Calif. Labor Lawsuit by Drivers ----------------------------------------------------------------- Swift Transportation Company continues to face lawsuits filed by drivers alleging it failed to pay the California minimum wage, and failed to provide proper meal and rest periods and failed to timely pay wages upon separation from employment, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On March 22, 2010, a class action lawsuit was filed by John Burnell, individually and on behalf of all other similarly situated persons against Swift Transportation: John Burnell and all others similarly situated v. Swift Transportation Co., Inc., Case No. CIVDS 1004377 filed in the Superior Court of the State of California, for the County of San Bernardino, or the Burnell Complaint. On September 3, 2010, upon motion by Swift, the matter was removed to the United States District Court for the Central District of California, Case No. EDCV10-809-VAP. The putative class includes drivers who worked for Swift during the four years preceding the date of filing alleging that Swift failed to pay the California minimum wage, failed to provide proper meal and rest periods and failed to timely pay wages upon separation from employment. The Burnell Complaint was subject to a stay of proceedings pending determination of similar issues in a case unrelated to Swift, Brinker v Hohnbaum, which was then pending before the California Supreme Court. A ruling was entered in the Brinker matter and in August 2012 the stay in the Burnell Complaint was lifted. On April 9, 2013 the Company filed a motion for judgment on the pleadings requesting dismissal of plaintiff's claims related to alleged meal and rest break violations under the California Labor Code alleging that such claims are preempted by the Federal Aviation Administration Authorization Act. On May 29, 2013, the U.S. District Court for the Central District of California granted the Company's motion for judgment on the pleadings and dismissed plaintiff's claims that are based on alleged violations of meal and rest periods set forth in the California Labor Code. On April 5, 2012, the Company was served with an additional class action complaint alleging facts similar to those as set forth in the Burnell Complaint. This new class action is James R. Rudsell, on behalf of himself and all others similarly situated v. Swift Transportation Co. of Arizona, LLC and Swift Transportation Company, Case No. CIVDS 1200255, in the Superior Court of California for the County of San Bernardino, or the Rudsell Complaint. The Rudsell matter has been stayed pending a resolution in Burnell v Swift. Any claims related to orientation pay in the Rudsell matter have been subsumed within the Montalvo v. Swift class action matter. SWIFT TRANSPORTATION: "Montalvo" Certification Order on Appeal -------------------------------------------------------------- The issue of class certification in the suit filed by Simona Montalvo against Swift Transportation -- Montalvo et al. v. Swift Transportation Corporation d/b/a ST Swift Transportation Corporation -- remains subject to appeal, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On July 12, 2011, a class action lawsuit was filed by Simona Montalvo on behalf of herself and all similarly situated persons against Swift Transportation: Montalvo et al. v. Swift Transportation Corporation d/b/a ST Swift Transportation Corporation in the Superior Court of California, County of San Diego, or the Montalvo Complaint. The Montalvo Complaint was removed to federal court on August 15, 2011, case number 3-11-CV- 1827-L. Upon petition by plaintiffs, the matter was remanded to state court and the Company filed an appeal to this remand, which appeal has been denied. The putative class includes employees alleging that candidates for employment within the four year statutory period in California were not paid the state mandated minimum wage during their orientation phase. On July 29, 2013, the court certified the class. The Company is appealing the class certification and the remand to state court. The issue of class certification in the Montalvo Complaint remains subject to appeal and must first be resolved before the court will address the merits of the case, and the company retains all of the company's defenses against liability and damages pending a determination of class certification. The Company intends to vigorously defend against certification of the class as well as the merits of this matter should the class be certified. The final disposition of this case and the impact of such final disposition of this case cannot be determined at this time. SWIFT TRANSPORTATION: Cert. Ruling in Wash. Drivers Suit on Apeal ----------------------------------------------------------------- Swift Transportation Company is appealing the limited certification of a class of Washington dedicated drivers alleging they were not paid for overtime work, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On September 9, 2011, a class action lawsuit was filed by Troy Slack on behalf of himself and all similarly situated persons against Swift Transportation: Troy Slack, et al v. Swift Transportation Co. of Arizona, LLC and Swift Transportation Corporation in the State Court of Washington, Pierce County, or the Slack Complaint. The Slack Complaint was removed to federal court on October 12, 2011, case number 11-2-114380. The putative class includes all current and former Washington State based employee drivers during the three year statutory period alleging that they were not paid overtime in accordance with Washington State law and that they were not properly paid for meals and rest periods. On November 23, 2013 the court entered an order on plaintiffs' motion to certify the class. The court only certified the class as it pertains to dedicated route drivers and did not certify any other class or claims including any class related to over the road drivers ("OTR Drivers"). The court also further limited the class of dedicated drivers to only those dedicated drivers that either begin or end their shift in the state of Washington and therefore is a Washington "based" employee. Swift is appealing the limited certification of the Washington dedicated drivers. SWIFT TRANSPORTATION: CRT Moves to Arbitrate E.D. Va. FCRA Suit --------------------------------------------------------------- Central Refrigerated Transportation, Inc. has filed a petition to compel arbitration in a suit filed by an applicant for a driver position, who is alleging that the Swift Transportation Company's disclosures regarding criminal background checks did not comply with the Fair Credit Reporting Act, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On July 23, 2013, a class action lawsuit was filed by James Ellis III on behalf of himself and all similarly situated persons against Swift Transportation of Arizona, LLC; James Ellis III v. Swift Transportation of Arizona, LLC ("Swift Arizona") in the United States District Court, Eastern District of Virginia, Civil Action No. 3:13-CV-00473-JAG, or the Ellis Complaint. Mr. Ellis, an applicant for a driver position, has alleged that the Swift's disclosures regarding criminal background checks did not comply with the Fair Credit Reporting Act ("FCRA"). The class action seeks to certify the FCRA claims as a class action, and in that regard Mr. Ellis is seeking to represent a class of applicants from North Carolina, South Carolina, Virginia, Maryland, and West Virginia over the five year period preceding the filing. Swift has answered the complaint denying the allegations including the allegations that a class should be certified. On February 5, 2014, the plaintiff's filed a motion for leave to file a first amended complaint to add plaintiff representatives and expand the class from the original five states to a nationwide class. A mediation was scheduled for February 26, 2014. This claim is covered by Swift's employment practices and liability insurance. The Company said the issue of class certification must first be resolved before the court will address the merits of the case, and the company retains all of the company's defenses against liability and damages pending a determination of class certification. Swift Arizona intends to vigorously defend certification of the class as well as the merits of these matters should the class be certified. The final disposition of this case and the impact of such final disposition of this case cannot be determined at this time. Central has filed a petition with the court to compel arbitration. Swift Transportation acquired privately held Central Refrigerated Transportation in August 2013 in a deal valued at $225 million, including assumed capital lease obligations and other financial debt. SWIFT TRANSPORTATION: Utah Employees File Suit Against CRS ---------------------------------------------------------- Central Refrigerated Service, Inc. faces a suit filed by employees alleging that candidates for employment within the three year statutory period in Utah were not paid proper compensation, according to Swift Transportation Company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On October 8, 2013, a collective action lawsuit was filed by Jacob Roberts on behalf of himself and all similarly situated persons against Central Refrigerated Service, Inc., Jon Isaacson, Bob Baer and John Does 1-10 ("CRS"): Jacob Roberts and Collective Action Plaintiffs John Does 1-10 v. Central Refrigerated Service, Inc., Jon Isaacson, Bob Baer and John Does 1-10 in the United States District Court for the District of Utah, Case No. 2;13-ev- 00911-EJF, or the Roberts Complaint. The putative nationwide class includes employees alleging that candidates for employment within the three year statutory period in Utah were not paid proper compensation pursuant to the FLSA, specifically that the putative collective action plaintiffs were not paid the state mandated minimum wage for orientation, travel, and training. SWIFT TRANSPORTATION: Arbitrator Trims Down Claims v. CRS --------------------------------------------------------- The arbitrator in a suit filed against Central Refrigerated Services, Inc. by owner-operators strikes out plaintiff's forced labor claim and state law claims of contractual misrepresentation and breach of contract from the collection action, according to Swift Transportation Company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On June 1, 2012, a collective and class action complaint was filed by Gabriel Cilluffo, Kevin Shire and Bryan Ratterree individually and on behalf of themselves and all similarly situated persons against Central Refrigerated Services, Inc., Central Leasing, Inc., Jon Isaacson, and Jerry Moyes ("Central"): Gabriel Cilluffo, Kevin Shire and Bryan Ratterree individually and on behalf themselves and all similarly situated persons v. Central Refrigerated Services, Inc., Central Leasing, Inc., Jon Isaacson, and Jerry Moyes in the United States District Court for the Central District of California, Case No. ED CV 12-00886, or the Cilluffo Complaint. The putative class involves owner- operators alleging that Central misclassified owner-operators as independent contractors in violation of the FLSA, and that such owner-operators should be considered employees. The lawsuit also raises a claim of forced labor and state law contractual claims. On September 24, 2012, the California District Court ordered that FLSA claim proceed to collective arbitration under the Utah Uniform Arbitration Act ("UUAA") and not the Federal Arbitration Act ("FAA"). The September 24, 2012 order directed the arbitrator to determine the validity of proceeding as a collective arbitration under the UAA, and then if the arbitrator determines that such collective action is permitted, then the arbitrator is to consider the plaintiff's FLSA claim. On November 8, 2012, the California District Court entered a clarification order clarifying that the plaintiff's FLSA claim was to proceed to collective arbitration under the UUAA, but the plaintiff's forced labor claim and state law contractual claims were to proceed as individual arbitrations for those plaintiffs seeking to pursue those specific claims. Central filed a motion for reconsideration and a motion for interlocutory appeal of the California District Court's orders, both of which were denied and the claims are proceeding to collective and individual arbitration as originally ordered. On December 9, 2013 the arbitrator determined that the issue of misclassification as it relates to the FLSA will proceed as a collective arbitration, however the plaintiff's forced labor claim and state law claims of contractual misrepresentation and breach of contract must proceed on an individual arbitration basis and not as a class. SWIFT TRANSPORTATION: CRS Denies Claims in Cal. Labor Suit ---------------------------------------------------------- Central Refrigerated Service, Inc. filed an answer denying the allegations contained in a suit by employees alleging that candidates for employment within the four year statutory period in California were not paid the state mandated minimum wage during their orientation phase, according to Swift Transportation Company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. On November 7, 2013, a class action lawsuit was filed by Jorge Calix on behalf of himself and all similarly situated persons against Central Refrigerated Service, Inc.: Calix et al. v. Central Refrigerated Service, Inc. ("Central") in the Superior Court of California, County of San Bernadino, or the Calix Complaint. The putative class includes employees alleging that candidates for employment within the four year statutory period in California were not paid the state mandated minimum wage during their orientation phase. On December 13, 2013, Central filed an answer denying the allegations. SYNERGETIC COMMUNICATION: Faces "Mitchell" Class Suit in New York ----------------------------------------------------------------- Julian Mitchell, on behalf of himself and all other similarly situated consumers v. Synergetic Communication, Inc., Case No. 1:14-cv-01084-RRM-JO (E.D.N.Y., February 19, 2014) alleges violations of the Telephone Consumer Protection Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com TARGET CORP: Supreme Court Won't Revive Usury Class Action ---------------------------------------------------------- Juan Carlos Rodriguez, writing for Law360, reports that the U.S. Supreme Court said on April 21 it will not review a decision that Target Corp.'s credit card unit may charge interest above a limit set in the National Bank Act, ending a proposed class action that alleged the company set usurious rates. Petitioner Marie Giannangeli had asked the court to overturn the Tenth Circuit's holding that, under the high court's 1900 ruling in Daggs v. Phoenix National Bank and the laws of South Dakota, Target's home state, the company may set a maximum permitted interest rate in excess of the 7 percent set out in the NBA. Ms. Giannangeli said she obtained a Target "REDcard" credit card from Target National Bank NA in 2009 and subsequently incurred and paid interest charges on the credit card account. She said she was routinely charged an interest rate of 25.99 percent. According to her interpretation of the NBA, national banks may not charge more than 7 percent interest unless the bank's state of residency fixes a specific numerical maximum rate of interest. Because South Dakota, Target's home state, does not set a particular numerical maximum rate of interest, she accused Target of committing usury by charging her and other members of the purported class more than 7 percent interest. In South Dakota, the "maximum permitted rate" may be fixed by written agreement of the parties, and the Tenth Circuit said that under Daggs, Target "may charge interest at the rate allowed by the laws of" South Dakota, even if that rate is 25.99 percent or more. In Daggs, the Supreme Court held that national banks may charge interest at the rate allowed by the laws of the state or territory where it is located. The high court's reading of the NBA's phrase "fixed by the laws" should be construed to mean allowed by the laws, and not a rate expressed in the laws. Ms. Giannangeli said in her petition for writ of certiorari that the Tenth Circuit misinterpreted Daggs. "The 19th-century Arizona law [at issue in Daggs] allowed the interest rate to be established by agreement of the parties, but fixed an established interest rate in the event the parties' agreement failed to establish a particular . . . rate of interest," the petition said. "Conversely, South Dakota does not provide for an interest rate limit in the event the parties fail to agree upon a rate." But Target, in its brief in opposition to Ms. Giannangeli's petition, said the high court's rulings in Daggs and other cases have "authoritatively established" that the NBA limits the rate that a national bank can charge only where the bank's home state's law does not provide for interest at all. "For well over a century, courts throughout the nation have faithfully followed those precedents," Target said. Target is represented by Brian Melendez -- bmelendez@dykema.com -- of Dykema Gossett PLLC. Ms. Giannangeli is represented by James D. Thorburn of The Law Office of James D. Thorburn LLC and by Richard A. Walker of The Law Office of Richard A. Walker PC. The case is Marie T. Giannangeli v. Target National Bank NA, number 13-966 in the U.S. Supreme Court. TROY CONSTRUCTION: Class Suit Seeks to Redress FLSA Violations -------------------------------------------------------------- Linda Stone, on behalf of herself and those similarly situated, 12109 Forest Lake Road, Montrose, PA v. Troy Construction, LLC, 8521 McHard Road, Houston, TX 77053 and John Does 1-10, Case No. 3:14-cv-00306-JMM (M.D. Pa., February 19, 2014) seeks to redress the Defendants' alleged violations of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act and Pennsylvania Wage Payment and Collection Law. Troy Construction, LLC is a pipeline construction company operating in Pennsylvania. The identities of the Doe Defendants are presently unknown. The Plaintiff is represented by: Justin L. Swidler, Esq. Richard S. Swartz, Esq. Matthew D. Miller, Esq. SWARTZ SWIDLER, LLC 1878 Marlton Pike East, Ste. 10 Cherry Hill, NJ 08003 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com rswartz@swartz-legal.com mmiller@swartz-legal.com The Defendants are represented by: Jacob E. Godard, Esq. Lawrence Bradley Hancock, Esq. Michael Burnett, Esq. GREENBERG TRAURIG, LLP 1000 Louisiana Street, Suite 1700 Houston, TX 77002 Telephone: (713) 374-3500 E-mail: godardj@gtlaw.com hancockb@gtlaw.com burnettm@gtlaw.com - and - James N. Boudreau, Esq. GREENBERG TRAURIG, LLP 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 988-7833 Facsimile: (215) 717-5209 E-mail: boudreauj@gtlaw.com UNION BANK: Faces "Rubel" Class Suit Alleging TCPA Violations ------------------------------------------------------------- Ryan Rubel, on behalf of himself and all others similarly situated v. Union Bank of California, N.A., fka Union Bank, N.A., Case No. 3:14-cv-00375-JM-WVG (S.D. Cal., February 19, 2014) accuses Union Bank of violating the Telephone Consumer Protection Act. Union Bank is a national association headquartered in San Francisco, California. Union Bank provides banking products to consumers and small businesses. The Plaintiff is represented by: Douglas J. Campion, Esq. LAW OFFICES OF DOUGLAS J CAMPION 409 Camino Del Rio South, Suite 303 San Diego, CA 92108-3507 Telephone: (619) 299-2091 Facsimile: (619) 858-0034 E-mail: doug@djcampion.com - and - Brian Trenz, Esq. LAW OFFICES OF DAVID SCHAFER, PPLC 2139 N.W. Military Highway, Suite 200 San Antonio, TX Telephone: (210) 348-0500 Facsimile: (210) 348-0520 E-mail: Brian@helpingtexas.com UNIVERSAL FIDELITY: Court Allows More Discovery in "Swelnis" Case ----------------------------------------------------------------- CHRISTINE SWELNIS, on behalf of herself and a class, Plaintiff, v. UNIVERSAL FIDELITY L.P., TERRY W. SIMONDS, and TWS INTERESTS, LLC, Defendants, CAUSE NO. 2:13-CV-104-PRC, (N.D. Ind.) is before the Court on Plaintiff's Motion to (1) Strike Exhibits to and Portions of Defendants Simonds and TWS Interests' Memorandum in Support of Motion for Partial Summary Judgment and Supporting Statement of Facts or (2) in the alternative, to Pursue Discovery Before Responding to Defendants' Motion. Specifically, this motion seeks to strike an affidavit supporting their currently stayed Motion for Summary Judgment, or for more time to do discovery to explore how the claims made in the affidavit square with other statements made by Defendants. Magistrate Judge Paul R. Cherry, in an opinion and order dated April 17, 2014, a copy of which is available at http://is.gd/cfrNqSfrom Leagle.com, concluded that he finds "the latter more appropriate here because the apparent discrepancies might resolve themselves through discovery." Hence, the Court denied in part and without prejudice the Plaintiff's Motion to (1) Strike Exhibits to and Portions of Defendants Simonds and TWS Interests' Memorandum in Support of Motion for Partial Summary Judgment and Supporting Statement of Facts or (2) In the alternative, to Pursue Discovery Before Responding to Defendants' Motion, insofar as it seeks to strike Simonds's affidavit. The Court granted the motion insofar as it seeks more time for discovery and ordered that the parties will have until June 16, 2014, to finish discovery on this issue. Finally, the Court lifted the stay as to the briefing on the pending Motion for Partial Summary Judgment and set the following deadlines: Plaintiff's Response is due June 30, 2014, and Defendant's Reply, if any, is due July 14, 2014. Christine Swelnis, on behalf of plaintiff and a class, Plaintiff, represented by Cassandra P Miller -- cmiller@edcombs.com -- Edelman Combs Latturner & Goodwin LLC, Daniel A Edelman -- dedelman@edcombs.com -- Edelman Combs Latturner & Goodwin LLC & Michelle R Teggelaar -- mteggelaar@edcombs.com -- Edelman Combs Latturner & Goodwin LLC. Universal Fidelity LP, Defendant, represented by David M Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP & Jennifer J Kalas -- jkalas@hinshawlaw.com -- Hinshaw & Culbertson LLP. Terry W Simonds, Defendant, represented by David M Schultz, Hinshaw & Culbertson LLP & Jennifer J Kalas, Hinshaw & Culbertson LLP. TWS Interests LLC, Defendant, represented by David M Schultz, Hinshaw & Culbertson LLP & Jennifer J Kalas, Hinshaw & Culbertson LLP. VALEO SA: Faces Antitrust Action Over Air Conditioning Systems -------------------------------------------------------------- SLTNTRST LLC, Trustee for Fleetwood Liquidating Trust v. Valeo S.A., Valeo Japan Co., Ltd., Valeo Inc., Valeo Electrical Systems, Inc., Valeo Climate Control Corp., Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., Mitsubishi Heavy Industries Climate Control, Inc., Denso Corporation, and Denso International America, Inc., Case No. 4:14-cv-10772-TGB-DRG (E.D. Mich., February 19, 2014) alleges that the Defendants conspired to rig bids, and to fix, maintain, and stabilize the prices of Air Conditioning Systems sold in the United States from at least as early as January 1, 2001, through the present. The Defendants are manufacturers of automotive air conditioning systems for installation in motor vehicles manufactured or sold in the United States. The Plaintiff is represented by: Melissa H. Maxman, Esq. Ronald F. Wick, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4800 E-mail: mmaxman@cozen.com rwick@cozen.com - and - Solomon B. Cera, Esq. GOLD BENNETT CERA & SIDENER LLP 595 Market Street, Suite 2300 San Francisco, CA 94105-2835 Telephone: (415) 777-2230 E-mail: scera@gbcslaw.com - and - Manuel J. Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 833-6575 E-mail: jdominguez@cohenmilstein.com - and - Matthew W. Ruan, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, 14th Floor New York, NY 10006 Telephone: (212) 220-2913 E-mail: mruan@cohenmilstein.com - and - Catherine R. Reilly, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4836 E-mail: creilly@cozen.com VALEO SA: Accused of Fixing Prices of Air Conditioning Systems -------------------------------------------------------------- SLTNTRST LLC, Trustee for Fleetwood Liquidating Trust v. Valeo S.A., Valeo Japan Co., Ltd., Valeo Inc., Valeo Electrical Systems, Inc., Valeo Climate Control Corp., Mitsubishi Heavy Industries, Ltd., Mitsubishi Heavy Industries America, Inc., Mitsubishi Heavy Industries Climate Control, Inc., Denso Corporation, and Denso International America, Inc., Case No. 2:14-cv-10772-MOB-MKM (E.D. Mich., February 19, 2014) alleges that the Defendants conspired to rig bids, and to fix, maintain, and stabilize the prices of Air Conditioning Systems sold in the United States from at least as early as January 1, 2001, through the present. The term "Air Conditioning Systems" refers to systems that cool the interior environment of a vehicle and are part of the thermal segment of the automotive market. The Defendants are manufacturers of automotive air conditioning systems for installation in motor vehicles manufactured or sold in the United States. The Plaintiff is represented by: Melissa H. Maxman, Esq. Ronald F. Wick, Esq. Catherine R. Reilly, Esq. COZEN O'CONNOR 1627 I Street, NW Washington, D.C. 20006 Telephone: (202) 912-4800 E-mail: mmaxman@cozen.com rwick@cozen.com creilly@cozen.com - and - Solomon B. Cera, Esq. GOLD BENNETT CERA & SIDENER LLP 595 Market Street, Suite 2300 San Francisco, CA 94105-2835 Telephone: (415) 777-2230 E-mail: scera@gbcslaw.com - and - Manuel J. Dominguez, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Telephone: (561) 833-6575 E-mail: jdominguez@cohenmilstein.com - and - Matthew W. Ruan, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 88 Pine Street, 14th Floor New York, NY 10006 Telephone: (212) 220-2913 E-mail: mruan@cohenmilstein.com WASHINGTON NATIONAL: Removed "Melin" Class Suit to N.D. Illinois ---------------------------------------------------------------- The class action lawsuit titled Melin v. Washington National Insurance Company, Case No. 14 L 47, was removed from the Circuit Court of Kane County to the United States District Court for the Northern District of Illinois (Chicago). The District Court Clerk assigned Case No. 1:14-cv-01238 to the proceeding. The lawsuit asserts insurance-related claims. The Plaintiff is represented by: Craig S. Mielke, Esq. Kathleen Currie Chavez, Esq. Matthew J. Herman, Esq. Robert M. Foote, Esq. FOOTE, MIELKE, CHAVEZ & O'NEIL LLC 10 W. State Street, Suite 200 Geneva, IL 60134 Telephone: (630) 232-7450 Facsimile: (630) 232-7452 E-mail: csm@fmcolaw.com kcc@fmcolaw.com mjh@fmcolaw.com rmf@fmcolaw.com - and - Michael T. Navigato, Esq. William F. Bochte, Esq. BOCHTE, KUZNIAR & NAVIGATO, LLP 2580 Foxfield Road, Suite 200 St. Charles, IL 60174 Telephone: (630) 377-7770 Facsimile: (630) 377-3479 E-mail: mnavigato@bknlaw.com wbochte@bknlaw.com The Defendant is represented by: Adam J. Kaiser, Esq. Jeffrey J. Amato, Esq. WINSTON & STRAWN LLP 200 Park Avenue New York, NY 10166 Telephone: (212) 294-4617 E-mail: AKaiser@winston.com jamato@winston.com - and - William P Ferranti, Esq. WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601-9703 Telephone: (312) 558-5600 E-mail: bferranti@winston.com WASTE MANAGEMENT: Faces Suit Over MCHM-Contaminated Wastewater -------------------------------------------------------------- Kate White, writing for wvgazette.com, reports that a lawsuit asking for class-action status was filed on April 24 against the Hurricane landfill where MCHM-contaminated wastewater was dumped. Also in Putnam County Circuit Court, the city of Hurricane asked on April 25 in another filing that a judge allow an investigator to collect samples where the chemical is being stored. The Calwell Practice filed the lawsuit on behalf of Patricia Carole Jones, who lives near Disposal Service Inc. The complaint states that more than 50 plaintiffs who live in the vicinity of the landfill would make up the class. Stuart Calwell said he expects there to be more than 50. Mr. Calwell said Jones lives on a farm on Hurricane Creek and thought it was her imagination when she walked outside and smelled licorice, an odor that lingered around the Kanawha Valley after a Jan. 9 chemical leak of the coal-cleaning chemical Crude MCHM at Freedom Industries. "We're all left to decide: How dangerous is it? How do you know if your judgment is a correct one?" Mr. Calwell said on April 25. "The human health effects are unknown." The chemical leaked into the Elk River from Freedom Industries' tank farm, which is upstream from West Virginia American Water's intake, fouling the water for about 300,000 West Virginians. Diversified Services, the company Freedom hired to clean up the chemical, was depositing the material in the landfill. Hurricane and Putnam County officials complained that neither they nor the public were told the contaminated material would be stored in Putnam County -- or that the landfill had applied for a permit modification to accept the wastewater. Freedom had been mixing sawdust with the wastewater and disposing of it at the landfill. The company stopped after Hurricane filed a lawsuit demanding a halt to the practice. Kanawha Circuit Judge Paul Zakaib issued a preliminary injunction. However, he dismissed the case four days later because the West Virginia Department of Environmental Protection allowed Waste Management of West Virginia, which owns the landfill, to change the end date of its permit from Oct. 1 to March 26, so the permit expired before the March 28 hearing took place. The permit allowed Waste Management to dump up to 700 tons of the sawdust/wastewater mix into the landfill; company spokeswoman Lisa Kardell has said it deposited about 228 tons before ceasing. Officials in Hurricane have launched an investigation into the chemical dumping, said attorney Mike Callaghan. However, Waste Management wouldn't allow the city's investigator to collect samples of the cells the MCHM-mixture is being stored in. Both cases have been assigned to Putnam Circuit Judge Phillip Stowers. "We're asking [Stowers] to issue an order to direct Waste Management to comply with our investigative order," Mr. Callaghan said. At a Putnam County Commission meeting on April 22, commissioners voted to split a $60,000 retainer with the city of Hurricane to hire Callaghan, who was DEP secretary from 2000 to 2003, and several other attorneys with national environmental experience to file a federal lawsuit against Waste Management. Mr. Callaghan said on April 21 that a request for an injunction will be filed in U.S. District Court that asks a judge to order the company to remove all of the MCHM from the landfill. "In other words, we're making the allegation this is a hazardous waste and it's illegal for it to be stored in a normal landfill. It has to be transported to a hazardous-waste landfill," Mr. Callaghan said. WEBSTER AVE: Suit Seeks to Recover Unpaid Wages and Overtime Pay ---------------------------------------------------------------- Edwin A. Thevenin, on behalf of himself, and others similarly situated v. Webster Ave Petroleum Corp., dba BP Gas Station, Manuel Pimentel, and Carlos Francica, Case No. 1:14-cv-01035-AJN (S.D.N.Y., February 19, 2014) alleges that the Plaintiff, pursuant to the Fair Labor Standards Act, is entitled to recover from the Defendants: (1) unpaid wages and overtime compensation; (2) liquidated damages; (3) prejudgment and post-judgment interest; and (4) attorneys' fees and costs. BP is a New York business entity with a principal place of business in Bronx, New York. The Individual Defendants are owners, officers, directors or managing agents of BP. The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com pcooper@jcpclaw.com WHITEWAVE FOODS: Faces Mislabeling Lawsuit in S.D. Cal. Court ------------------------------------------------------------- The WhiteWave Foods Company was named in a putative class action mislabeling complaint filed in the U.S. District Court for the Southern District of California in September 2011, which was followed by similar actions filed in five additional jurisdictions, according to the company's Feb. 28, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended Dec. 31, 2013. All of these suits allege generally that the company lacks scientific substantiation for certain product claims related to the company's Horizon Organic products supplemented with DHA Omega-3. * Tools Needed to Authorize Class Actions v. Financial Predators ---------------------------------------------------------------- The Daily Review reports that many states, including Pennsylvania, bar payday lending because they recognize that it is predatory. The state law alone demonstrates that. It outlaws payday lending by capping interest rates on short-term loans at a whopping 24 percent. Because of the way payday loans are structured, poor consumers who are the payday loan customer base sometimes end up paying 300 percent interest. They take a loan, can't cover it by their next payday, then take another loan to cover it, and another, and on and on and on. According to the Consumer Financial Protection Bureau, about 50 percent of all payday loans result in the borrower taking out 10 or more loans. "One could readily conclude that the business model of the payday industry depends on people becoming stuck in these loans for the long term," the report said. Payday lenders have been able to evade state bans, in some cases, by affiliating with out-of-state banks and doing business on the Internet. When consumers who take those loans realize they can't pay them and enter the loan-after-loan spiral, they have little recourse. The fine print of the loan deals require any disputes to be settled by arbitration, and consumers agree when they take the loans not to enter any class-action litigation against the lender. Since it was founded in 2011, the Consumer Financial Protection Bureau has filed 40 cases alleging deceptive practices in the consumer finance industry, which have resulted in $3.1 billion in awards for nearly 10 million consumers. But Congress should provide further tools by authorizing the use of class action suits against financial predators. Asbestos Litigation ASBESTOS UPDATE: Diamond Offshore Continues to Defend Fibro Suits ----------------------------------------------------------------- Diamond Offshore Drilling Inc. continues to defend itself against numerous asbestos-related lawsuits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. The Company states: "We are one of several unrelated defendants in lawsuits filed in state courts alleging that defendants manufactured, distributed or utilized drilling mud containing asbestos and, in our case, allowed such drilling mud to have been utilized aboard our offshore drilling rigs. The plaintiffs seek, among other things, an award of unspecified compensatory and punitive damages. The manufacture and use of asbestos-containing drilling mud had already ceased before we acquired any of the drilling rigs addressed in these lawsuits. We believe that we are not liable for the damages asserted and we expect to receive complete defense and indemnity with respect to a majority of the lawsuits from Murphy Exploration & Production Company pursuant to the terms of our 1992 asset purchase agreement with them. We also believe that we are not liable for the damages asserted in the remaining lawsuits pursuant to the terms of our 1989 asset purchase agreement with Diamond M Corporation, and we filed a declaratory judgment action in Texas state court against NuStar Energy LP, or NuStar, the successor to Diamond M Corporation, seeking a judicial determination that we did not assume liability for these claims. We obtained summary judgment on our claims in the declaratory judgment action, but NuStar appealed the trial court's decision, and the appellate court has remanded the case to trial. We are unable to estimate our potential exposure, if any, to these lawsuits at this time but do not believe that ultimate liability, if any, resulting from this litigation will have a material effect on our consolidated financial condition, results of operations and cash flows." Diamond Offshore Drilling, Inc. is a global offshore oil and gas drilling contractor. The Company has a fleet of 44 offshore drilling rigs, consisting of 32 semisubmersibles, seven jack-ups and five dynamically positioned drillships, four of which are under construction. The Company's jackups include Ocean King, Ocean Nugget, Ocean Scepter, Ocean Spartan, Ocean Spur, Ocean Summit and Ocean Titan. The Company's Deepwater Semisubmersibles include Ocean Alliance, Ocean America, Ocean Apex, Ocean Onyx, Ocean Valiant, and Ocean Star. Ultra-Deepwater Semisubmersibles include Ocean Valor, Ocean Courage, Ocean Monarch, Ocean Baroness, and Ocean Confidence. Ultra-Deepwater Drillships include Ocean BlackLion, Ocean BlackRhino, Ocean BlackHornet, and Ocean Clipper. Mid-Water Semisubmersibles includes Ocean Winner, Ocean Quest, Ocean Concord, Ocean Guardian, Ocean Whittington, and Ocean Yorktown. ASBESTOS UPDATE: Advance Auto Continues to Defend Fibro Suits ------------------------------------------------------------- Advance Auto Parts Inc. continues to defend itself against numerous asbestos-related lawsuits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 28, 2013. The Company states, "The Company's Western Auto subsidiary, together with other defendants including automobile manufacturers, automotive parts manufacturers and other retailers, has been named as a defendant in lawsuits alleging injury as a result of exposure to asbestos-containing products. The Company and some of its other subsidiaries also have been named as defendants in many of these lawsuits. The plaintiffs have alleged that these products were manufactured, distributed and/or sold by the various defendants. The products in the lawsuits naming us or our subsidiaries as defendants have primarily included brake parts. Many of the cases pending against the Company or its subsidiaries are in the early stages of litigation. The damages claimed against the defendants in some of these proceedings are substantial. Additionally, some of the automotive parts manufacturers named as defendants in these lawsuits have declared bankruptcy, which will limit plaintiffs' ability to recover monetary damages from those defendants. Although the Company diligently defends against these claims, the Company may enter into discussions regarding settlement of these and other lawsuits, and may enter into settlement agreements, if it believes settlement is in the best interests of the Company's shareholders. The Company believes that many of these claims are at least partially covered by insurance. Based on discovery to date, the Company does not believe the cases currently pending will have a material adverse effect on the Company's operating results, financial position or liquidity. However, if the Company were to incur an adverse verdict in one or more of these claims and was ordered to pay damages that were not covered by insurance, these claims could have a material adverse effect on its operating results, financial position and liquidity. Historically, our asbestos claims have been inconsistent in type and number and have been immaterial. As a result, we are unable to estimate a possible range of loss with respect to unasserted asbestos claims that may be filed against the Company in the future. If the number of claims filed against the Company or any of its subsidiaries alleging injury as a result of exposure to asbestos-containing products increases substantially, the costs associated with concluding these claims, including damages resulting from any adverse verdicts, could have a material adverse effect on its operating results, financial position or liquidity in future periods." Advance Auto Parts, Inc. (Advance) is a specialty retailer of automotive aftermarket parts, accessories, batteries and maintenance items primarily operating within the United States. The Company operates in two segments: Advance Auto Parts (AAP), and Autopart International (AI). The AAP segment is comprised of its store operations, which operate under the trade names Advance Auto Parts and Advance Discount Auto Parts. The AI segment consists of the operations of Autopart International, Inc. which operates under the Autopart International trade name. The Company's stores carry a product line for cars, vans, sport utility vehicles and light trucks. The Company serves both do-it- yourself (DIY), and do-it-for-me (Commercial), customers. On December 31, 2012, the Company acquired B.W.P. Distributors, Inc. In January 2014, Advance Auto Parts, Inc. acquired General Parts International, Inc. ASBESTOS UPDATE: Enpro Continues to Negotiates with GST Claimants ----------------------------------------------------------------- Enpro Industries, Inc., continues to engage in negotiations with claimant representatives regarding liabilities in asbestos personal injury claims against Garlock Sealing Technologies LLC, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. The Company states, "Three of our subsidiaries filed voluntary Chapter 11 bankruptcy petitions on the Petition Date as a result of tens of thousands of pending and estimated future asbestos personal injury claims. The filings were the initial step in a claims resolution process. The goal of the process is an efficient and permanent resolution of all pending and future asbestos claims through court approval of a plan of reorganization that will establish a trust to which all asbestos claims will be channeled for resolution and payment. In November 2011, GST filed a proposed plan of reorganization with the Bankruptcy Court. The proposed plan calls for a trust to be formed, to which GST and affiliates would contribute $200 million and which would be the exclusive remedy for future asbestos personal injury claimants -- those whose claims arise after confirmation of the plan. The proposed plan provides that each present personal injury claim (any pending claim or one that arises between the Petition Date and plan confirmation) will be assumed by reorganized GST and resolved either by settlement pursuant to a matrix contained in the proposed plan or as otherwise agreed, or by payment in full of any judgment entered after trial in federal court. Based on a preliminary estimate provided by Bates White, the estimation expert retained by counsel to GST, prior to the time that GST filed its proposed plan, GST estimates that the indemnity costs to resolve all present claims pursuant to the settlement matrix in the plan would cost reorganized GST approximately $70 million. Under the proposed plan, all non-asbestos claimants would be paid the full value of their claims. GST's proposed plan is opposed by the Official Committee of Asbestos Personal Injury Claimants (the "Claimants' Committee") and the Future Claimants' Representative (the "FCR" and together with the Claimants' Committee, "claimant representatives") and is unlikely to be approved in its current form. On April 13, 2012, the Bankruptcy Court granted a motion by GST for the Bankruptcy Court to estimate the allowed amount of present and future asbestos claims against GST for mesothelioma, a rare cancer attributed to asbestos exposure, for purposes of determining the feasibility of a proposed plan of reorganization. The estimation trial commenced on July 22, 2013 and concluded on August 22, 2013. GST and the Claimants' Committee and FCR proposed different approaches to estimating allowed asbestos personal injury claims against GST, and the Bankruptcy Court ruled that each could present its proposed approach. GST offered a merits-based approach that focused on its legal defenses to liability and took account of claimants' recoveries from other sources, including trusts established in Chapter 11 cases filed by GST's co- defendants, in estimating potential future recoveries by claimants from GST. The Claimants' Committee and FCR offered a settlement-based theory of estimation. On January 10, 2014, Bankruptcy Judge George Hodges announced his estimation decision in a 65-page order. Citing with approval the methodology put forth by GST at trial, the judge determined that $125 million is the amount sufficient to satisfy GST's liability for present and future mesothelioma claims. Judge Hodges adopted GST's "legal liability" approach to estimation, focused on the merits of claims, and rejected asbestos claimant representatives' approach, which focused solely on GST's historical settlement history. The judge's liability determination is for mesothelioma claims only. The court has not yet determined amounts for GST's liability for other asbestos claims and for administrative costs that would be required to review and process claims and payments, which will add to the amount. In his opinion, Judge Hodges writes, "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 decision validates the positions that GST has been asserting for the more than three years it has been in this process. Following are several important findings in the opinion: * Garlock's products resulted in a relatively low exposure to asbestos to a limited population, and its legal responsibility for causing mesothelioma is relatively de minimis. * Chrysotile, the asbestos fiber type used in almost all of Garlock's asbestos products, is far less toxic than other forms of asbestos. The court found reliable and persuasive Garlock's expert epidemiologist, who testified that there is no statistically significant association between low dose chrysotile exposure and mesothelioma. * The population that was exposed to Garlock's products was necessarily exposed to far greater quantities of higher potency asbestos from the products of others. * 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. GST plans to incorporate the court's ruling into a plan of reorganization that it will submit in place of the plan. GST has not yet determined the amount that it will propose be included in its revised plan, as it continues to hope that it can reach a consensual resolution with representatives of current and future claimants. GST has stated that it continues to be willing to engage in discussions with claimant representatives, recognizing that an agreed settlement would provide the best path to certainty and finality through section 524(g) of the Bankruptcy Code, provide for faster and more efficient completion of the case, save significant future costs, and allow for the attainment of complete finality. The Company states: "We caution that, in the absence of a consensual deal, the GST asbestos claims resolution process remains uncertain and could take an undetermined time to complete. During the course of the Chapter 11 proceedings, the claimant representatives have asserted that affiliates of the filed entities, including the Company and Coltec, should be held responsible for the asbestos liabilities of the filed entities under various theories of derivative corporate responsibility including veil-piercing and alter ego. Claimant representatives filed a motion with the Bankruptcy Court asking for permission to sue us based on those theories. In a decision dated June 7, 2012, the Bankruptcy Court denied the claimant representatives' motion without prejudice, thereby potentially allowing the representatives to re-file the motion after the estimation trial scheduled for 2013. We believe there is no reason for the claimant representatives to re-file the motion because the judge's estimation decision leaves no doubt that GST is capable of fully funding any plan of reorganization in the case. From time to time during the case we have engaged in settlement discussions with asbestos claimant representatives and we anticipate that we will continue to do so; however, there can be no assurance that a settlement will be reached and, if so, when that might occur. From the Petition Date through December 31, 2013, GST has recorded Chapter 11 case-related fees and expenses totaling $102.0 million. The total includes $53.1 million for fees and expenses of GST's counsel and experts; $39.1 million for fees and expenses of counsel and experts for the asbestos claimants' committee, and $9.8 million for the fees and expenses of the future claims representative and his counsel and experts. GST recorded $44.6 million of those case-related fees and expenses in 2013 compared to $31.4 million in 2012, and $17.0 million in 2011. GST attributes the large year-over-year increase to increased activity in the case, including activity related to the estimation trial." 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 March 2014, the Company's subsidiary, Stemco LP acquired the remaining interest of the Stemco Crewson LLC joint venture from Tramec, LLC. ASBESTOS UPDATE: 3 Garlock Sealing Appeals Remain Pending --------------------------------------------------------- Three appeals from adverse decisions relating to Garlock Sealing Technologies LLC remain pending, according to Enpro Industries, Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2013. The Company states, "GST LLC has a record of success in trials of asbestos cases, especially before the bankruptcies of many of the historically significant asbestos defendants that manufactured raw asbestos, asbestos insulation, refractory products or other dangerous friable asbestos products. However, it has on occasion lost jury verdicts at trial. GST has consistently appealed when it has received an adverse verdict and has had success in a majority of those appeals. We believe that GST LLC will continue to be successful in the appellate process, although there can be no assurance of success in any particular appeal. At December 31, 2013, three GST LLC appeals are pending from adverse decisions totaling $2.4 million. GST LLC won reversals of adverse verdicts in one of two recent appellate decisions. In September 2011, the United States Court of Appeals for the Sixth Circuit overturned a $500 thousand verdict against GST LLC that was handed down in 2009 by a Kentucky federal court jury. The federal appellate court found that GST LLC's motion for judgment as a matter of law should have been granted because the evidence was not sufficient to support a determination of liability. The Sixth Circuit's chief judge wrote that, "On the basis of this record, saying that exposure to Garlock gaskets was a substantial cause of [claimant's] mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean's volume." In May 2011, a three-judge panel of the Kentucky Court of Appeals upheld GST LLC's $700 thousand share of a jury verdict, which included punitive damages, in a lung cancer case against GST LLC in Kentucky state court. This verdict, which was secured by a bond pending the appeal, was paid in June 2012." 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 March 2014, the Company's subsidiary, Stemco LP acquired the remaining interest of the Stemco Crewson LLC joint venture from Tramec, LLC. ASBESTOS UPDATE: Fibro Study Costs of Ex-Hospital Site Divided -------------------------------------------------------------- Bill Engle, writing for Pal-Item.com, reported that the partnership continues as officials for the city of Richmond and Wayne County take the next step in solving the dilemma of the former Reid Hospital property. The campus has been abandoned for more than five years and is deteriorating rapidly. The owners, Spring Grove Development LLC, have walked away, no longer paying taxes or responding to local pleas for responsibility. Therefore, city and county officials are moving ahead with a process that most likely will end in the demolition of the complex of buildings. In their latest step, the city is taking the lead and both agencies are contributing money to hire a consultant to study the amount of asbestos in the buildings. The city has approved $15,000, and the county commissioners recently approved adding $20,000 toward the project. "We know there is some asbestos there, but we're not sure exactly how much," said Tony Foster, city director of metropolitan development. "Once we do this study we will have some good data and we can then continue to move forward." Denny Burns, president of the county's board of commissioners, said the county "fully supports what the city is doing" with the former hospital property. "This is the first step in a long journey, and we will travel down this road together," Burns said. "We realize that it is still owned by a private entity, but we have to face the reality that it is going to take some taxpayer money to resolve this." In December 2013, the county filed suit against Spring Grove in the faint hope of recovering almost $329,000 in back taxes owed. In January, the city's Unsafe Building Commission approved a continuous order against the property and its labyrinth of structures allowing officials to begin the process of cleaning up hazardous materials. The city has hired a consultant to do an initial study of environmental problems. Next, comes the process to hire a firm that will identify the amount of asbestos that needs to be removed. "We can't ask a contractor to estimate the cost of demolition until we know the amount and approximate cost of asbestos removal," Burns said. Foster said the asbestos study is required before the state will issue an air quality permit to demolish a commercial building. "We learned a lot from the initial study, and once we do this, we can start making some real progress on this project," Foster said. He said he hopes to have information available for potential bidders, adding the city's Board of Public Works and Safety most likely will hire a firm to do the study. Foster said he hopes the board of works can hire a firm and testing can begin in the next 45 days. "It's not a terribly fast process, but we are moving this along. And we will be partnering with the county every step of the way," Foster said. ASBESTOS UPDATE: Victims Pressure Yale to Revoke Degree ------------------------------------------------------- Jim Shelton, writing for New Haven Register, reported that pressure is mounting to persuade Yale University to revoke an honorary degree it gave to a Swiss billionaire convicted of causing thousands of asbestos-related deaths in Italy. Asbestos victims' advocates and other groups in the U.S. are urging Yale to launch a fact-finding committee to review the degree given to Stephan Schmidheiny in 1996. "If there was ever an award that needed to be rescinded, it's this one," said Linda Reinstein, president and CEO of the nonprofit Asbestos Disease Awareness Organization, of Washington, D.C. ADAO, the nation's largest independent asbestos victims' group, will devote part of its national conference April 4-6 to Yale's decision not to rescind the honorary degree. "This provokes a certain amount of anger among the victims community," said Reinstein, whose husband died of an asbestos- related illness. "Yale made a mistake, and we are holding Yale responsible for it now." A trade union, the International Association of Heat and Frost Insulators and Allied Workers, also has come out swinging. "It's just not pretty. In fact, it's horrible. It's despicable," said Terry Lynch, international vice president and health hazard administrator for the union. Lynch is based in Indiana. "Yale should be better than this. How did they get involved with this character?" Lynch, whose father and uncle both died from illnesses related to asbestos exposure, wrote to Yale President Peter Salovey, urging him to take action. Yale has never revoked an honorary degree. It has maintained that the legal proceedings in Italy don't justify reconsideration of the 1996 award. "Mr. Schmidheiny was awarded an honorary Doctor of Humane Letters degree for his advocacy of sustainable economic growth and development," the university said in its official statement on the matter. Schmidheiny, 66, is the former CEO of the Swiss company Eternit. He was convicted and sentenced to 18 years in prison by an Italian court in the asbestos-related deaths of 2,000 to 3,000 people in and around Casale Monferrato, in northern Italy. Another appeal in the case is pending. In an email to the Register, Schmidheiny spokeswoman Elisabeth Meyerhans Sarasin said Schmidheiny was never the owner of the Italian Eternit factories, and that he never was operationally active in management of the factories. "For the sake of clarity, I would also like to stress the fact that Stephan Schmidheiny is the only one who cares for the asbestos victims in Italy," Sarasin wrote. "Since 2007, the company Becon AG, which was commissioned by Stephan Schmidheiny, has offered compensation to persons affected by an asbestos- related illness, unbureaucratically and fair without admitting guilt. The humanitarian program is based on Stephan Schmidheiny's social principles and philanthropic motives." Yet for Reinstein and others, that explanation does not wash. "There is no level of philanthropy that can clean this man's hands," she said. "Yale's recognition of Schmidheiny says, in our minds, that Yale accepts (Schmidheiny's) philanthropy as just cause." Barry Castleman, an environmental consultant from Maryland who testified in the Italian court case, visited the Yale campus to encourage faculty and students to put more pressure on Yale. "Up until now, we've tried to deal with the (Yale) administration," Castleman said. "But it's increasingly troubling to me that the Yale Corporation really doesn't seem to be able to distinguish between corporate responsibility and corporate crime." William Burch, a professor emeritus at Yale's School of Forestry and Environmental Studies, met with Castleman and agreed to help generate faculty support. "The moral authority of the university is compromised by this," Burch said. "My concern is the unwillingness of the university to even consider this case. Behaviors have consequences." ASBESTOS UPDATE: Advocates Call for Fibro Bylaw in Saskatchewan --------------------------------------------------------------- Charles Hamilton, The StarPhoenix, reported that local advocates say Saskatoon, in Saskatchewan, needs tighter rules to ensure the presence of asbestos in buildings slated for demolition is reported and workers are protected. Jesse Todd of the Saskatchewan Asbestos Disease Awareness Organization says current laws governing the way building owners deal with asbestos don't go far enough to protect workers and the public. He wants city council to adopt a bylaw that would require contractors to notify building inspectors when work on buildings constructed prior to 1983 is about to begin, in order to prevent worker exposure to asbestos. "I realize that asbestos abatement is a costly task, but preventing people from being exposed and disease down the road, there is no dollar figure on that," Todd said in an interview. Todd was part of the group that successfully lobbied for an asbestos registry at the provincial level earlier this year. The legislation was named Howard's Law in honour of Howard Willems, a former building inspector who died from mesothelioma, a rare form of cancer caused by inhaling asbestos fibres. Willems was Todd's stepfather. Todd said the registry, which includes buildings in Saskatoon, is a good step, but should not be the only step taken. "I think this (bylaw) would be an added way of tracking those buildings," he said. Under provincial occupational health and safety regulations, building owners are already required to identify and label materials that can release asbestos fibres. Under the regulations they are also required to regularly check and maintain asbestos materials to prevent any fibre release and develop written control plans to prevent the release of asbestos fibres "into occupied areas when maintenance, repairs, renovations or other work may disturb the asbestos." But Todd said there is still nothing stopping building owners from demolishing structures containing asbestos and the bylaw would be an added step in ensuring public safety. Earlier this year, Calgary's city council debated a bylaw that would change its building permit process to require contractors doing demolitions to notify the city so it can dispatch inspectors to the site. Todd is expected to present his case to Saskatoon city council. ASBESTOS UPDATE: Cedar Grove Schools Spend on Fibro Monitoring -------------------------------------------------------------- Dan Rosenblum, writing for Verona-Cedar Grove Times, reported that though they may not be centerpiece projects, the Cedar Grove Board of Education, in New Jersey, voted on a set of spending items needed to keep the district humming. The projects, which were approved by the board during meetings March 18 and 25. More than a dozen public address speakers are part of security upgrades that are working their way through district schools. At Memorial Middle School, Cedar Grove-based Bingham Communications will install 17 speakers among bathrooms, a boiler room, storage room and outside of the school. The cost is $6,600. The district paid the company more than $20,000 last summer to install public-address systems at North End and South End elementary schools. A second set of doors for the Cedar Grove High School Media Center will triple the room's capacity, according to Schools Superintendent Michael Fetherman. Because the room only has one set of doors, fire officials cap the number of people there to 49. "Every day it reaches capacity," he said. The district submitted the project to the Schools Development Authority for approval. Fetherman estimated the cost as less than $10,000. The district would not seek state funding. Substitute Service LLC will provide the district an online "interactive absence tool" for the 2014-2015 school year at a cost of $8,692. Asbestos abatement will begin June 24 at South End Elementary School in preparation for a $242,000 boiler replacement project, Fetherman said. AHERA Consultants of Atlantic County will work on asbestos monitoring and project management for $13,575. ASBESTOS UPDATE: Florence Accepts Bid for Trust Demolition ---------------------------------------------------------- Gavin Jackson, writing for Morning News Online, reported that it took more than years to build the Trust building in Florence, South Carolina, and will take two months to tear it down according to the demolition proposal chosen by the city. For $470,655 Wofford Demolition and Renovation Specialist, of Florence, will use a high reach excavator to tear down the seven- story building and also demolish two other buildings on the site at the corner of West Evans Street and Irby Street. Luke Wofford, founder and owner, has run the company for 20 years and works with his son Jason Wofford. In their proposal to the city they say that during the removal of the top four stories of the building, one lane on Irby and West Evans will need to be closed from 8 a.m. to 4 p.m. for safety for about 14 to 28 days. "We're going to get a high reach excavator to reach 80 some feet high and have a concrete pulverizer on the end of it and go along the edge and let it fall and let gravity take its course," Wofford said. "We're going to block off one lane of Irby Street and West Evans street and make sure nothing falls on anybody." The city spent $578,519.28 on property acquisition for buildings and parcels on the Trust site. Paired with demolition costs the project will now cost $1,049,174.28, slightly over the $950,000 that will be designated in the city's $20 million Tax Incremental Funding bond that it plans to issue this spring. The Woffords demolished the Byerly Hospital in Hartsville, two seven story hotels in Myrtle Beach and hundreds of commercial buildings and homes independently and as a contractor for several large construction companies like FBI Construction. There was one protest lodged against the city from one of the other nine bidders for the project. That protest is based upon merits, but it does not prevent the city from awarding the contract. Florence City Manager Drew Griffin said the company's past experience and the cost were the two driving factors for awarding the proposal. "When the city is doing a bid to buy a piece of equipment we do it based upon the low bid, but when you do it upon work with means and methods to it, then we rate with price and means and methods associated with the work," Griffin said. "We look at the firm, we don't look at individuals." Of the project's cost, $176,000 is for asbestos abatement for the three buildings on the Trust site by Environmental Abatement & Solutions, LLC. It includes South Carolina Department of Health and Environmental Control permits, licensed labor, supplies and transportation to and disposal at an approved landfill for asbestos in South Carolina. It will take 10 days to receive the abatement permit from DHEC for the abatement work to begin that is estimated to take three to four weeks. Wofford then expects the demolition work to take at least six weeks. This week the city also received multiple proposals from firms for the two parking decks and amenities for downtown, including a gymnasium and streetscaping work; the high number of proposals shows a healthy construction market Griffin said. "Florence is starting to get statewide attention from firms as a place of growth and the possibility for work," Griffin said. "They see opportunities in getting into the Florence market and this is a good opportunity for that." ASBESTOS UPDATE: Oroville Library Closes for Renovations -------------------------------------------------------- Barbara Arrigoni, writing for OrovilleMR News, reported that the Oroville, California branch of the Butte County Library will be closed for 60 days to remove old carpet, mitigate asbestos in the carpet glue and replace the bookshelves, which don't meet current earthquake standards. County and library officials said there is no health risk from the asbestos at the present. "Asbestos is not a risk unless it's airborne," said General Services Director Grant Hunsicker in a phone call. The building was originally a grocery store. Hunsicker was unsure of when it was built. The county obtained it for renovation for the library in 1973 and construction was completed in 1974. Before the county does any facility work, an asbestos analysis is done. Five years ago, staff wanted to replace most of the carpet. A third of it was already removed, including asbestos in that area, he said. When the carpet and furnishings are removed during the upcoming project, the asbestos will be mitigated. Hunsicker said a certified abatement firm will prepare the facility first and another firm will certify it's OK before any other work continues. He added there could be asbestos in other parts of the building, such as the ceiling tiles, but unless work is done in that area, staff wouldn't know. "If we see materials separating or tiles falling, we would inspect it (then)," he said. Approximately 4,000 feet of shelving will also be replaced. Hunsicker explained that state codes say when shelving is removed, it can't be put back. New shelves will replace the old ones. "We're basically bringing it up to safety and security codes," he said. The project will cost approximately $340,000, which will be funded through the county's maintenance budget. At the library, Branch Librarian Sarah Vantrease appeared to be excited about the renovations. Once the work is done, there will be a "quieter" quiet area for studying and an expanded children's storytime area. "All the fun stuff will be in front," she said. "The study space will be more in the back of the library Patrons will be accommodated when staff is able to open a mini library in the community room. Vantrease said they hope to reopen the smaller room on a limited basis on April 15. "As soon as it's safe to be back in the library, we'll have limited services," Vantrease said. "We'll have most of the usual services: Wi-Fi, storytime, movies, magazines and books on CDs." Although most of the books will be stored, some new and popular books will be available during the renovation. If not, there are options. "If people want a certain book, they can request it and we'll get it from another branch," she said. There will also be free Wi-Fi and limited use of the Internet, computing and printing. New library cards will also be made, and help will be provided for reference questions and with e-readers and e-media downloads. The library will also be open online 24 hours a day. Visit www.buttecounty.net/bclibrary to download free electronic media, downloads, homework help, job assistance and other services. The mini library will be open from 11 a.m. to 6 p.m. Tuesday and Wednesday; 10 a.m. to 5 p.m. Thursday through Saturday; and 1-5 p.m. Sunday. It will be closed on Mondays. ASBESTOS UPDATE: Hazardous Material Probes Continue Despite Fire ---------------------------------------------------------------- Jason Clayworth, writing for The Des Moines Register, reported that contractors at the Younkers site, in Des Moines, Iowa, were being investigated for improper removal of hazardous materials prior to a fire. Those investigations will continue. Investigations into whether contractors had illegally disposed of hazardous waste as part of the Younkers building renovation will continue despite the structure now being a giant pile of rubbish, a state inspector said. The investigations began earlier this year after executives at RedNet Environmental Services of West Des Moines alleged in a letter to state officials that workers at the site were being told to throw away materials presumed to have asbestos without any testing. RedNet, which was involved with initial plans but later lost its contract, also alleged that lead had been improperly removed. Officials from Hansen Company, a Johnston-based construction contractor, in charge of overseeing renovations at the site, have categorically denied the accusations. They have filed a lawsuit against RedNet owners Rob and Lynn Knudsen alleging multiple counts of libel. State and city officials initially dismissed the complaints. However, asbestos and lead investigations were launched after the Des Moines Register reported that the state and the city had failed to review key documents that the Knudsens claimed showed improper cleanup. Iowa Department of Natural Resources asbestos inspector Tom Wuehr said that his review will continue despite the fire. In addition, Des Moines has had some oversight obligations with the project through various federal grant programs. Because of that responsibility, the city has been instructed by the state's economic development department to investigate the lead complaint. One question is whether contractors were given the OK to use interim strategies instead of permanently controlling the lead hazard. Interim steps can be far less comprehensive but permanent abatement is required under federal grant guidelines. Mary Neiderbach of the Des Moines Community Development Department on March 7 sent a statement to the Register indicating that the Younkers project had received a lead waiver that was requested by the State Historic Preservation Office, giving developers the OK to proceed with the less aggressive lead removal. But upon contacting the preservation office, the Register was told that no such request had been made by the state. The Register returned to the city for an explanation. Phil Delafield, the city's community development director, issued a statement last week saying Des Moines took the allegations seriously, but he declined further comment. "The city will not make further comments until staff has a chance to review reports that are being compiled by various state agencies, an investigation by a third-party neutral expert is completed, and city staff has asked questions of subcontractors," Delafield stated. The city's review is expected within the next month, Delafield said on March 24. The allegations, if confirmed, are serious. Bob Knapp, a prominent Iowa developer, was sentenced in 2011 to 41 months in prison for his involvement in a conspiracy to ignore federal asbestos regulations in redevelopment of the Equitable Building, another downtown redevelopment project. Multiple attempts by the Register to reach the Hansen Company for comment were unsuccessful. ASBESTOS UPDATE: Post Office Counter Opening at Stiby Road Co-op ---------------------------------------------------------------- Western Gazette reported that the opening of a new Post Office counter was delayed after "urgent" asbestos work was carried out in a Yeovil, United Kingdom convenience store. A new "essentials" post office counter was due to open at the Co- operative, on Stiby Road, on March 18. The Westfield Post Office was closed more than four years ago. And the service was set to open on May 6, at 1pm. A Post Office spokeswoman said the delay was regrettable and due to circumstances beyond its control as "urgent" work was carried out. A Co-operative Food spokeswoman said: "We regret there has been some delay. "This was due to an asbestos report that was required before work could begin. "This is now complete, and since no asbestos has been found in the store area, work will begin in April. "The store will remain open as usual. We look forward to providing this new service to the community." Yeovil MP David Laws said: "These delays are frustrating, but safety is clearly always a top priority." ASBESTOS UPDATE: Dire Warning on Mr. Fluffy in Canberra Homes ------------------------------------------------------------- Emma Macdonald, writing for The Canberra Times, reported that ACT home owners whose properties have Mr Fluffy loose asbestos should be forced by the government to have an asbestos management plan - - bringing them under the same laws that govern all commercial buildings, workers' advocates say. The Construction, Forestry, Mining and Energy Union is preparing a formal recommendation to the ACT government to legislate that Canberra's 1050 Mr Fluffy homes be subject to much stricter safety measures. The government has issued a "recommendation" that home owners have an asbestos inspection done and that the inspection report should be shown to any tradespeople working on the home. Residential asbestos management plans could cost about $1000. Management plans are mandatory in commercial buildings, where it is an offence not to have one or not to keep it updated. All building work must comply with the plan or owners risk fines or even jail sentences. Union secretary Dean Hall said tradespeople were playing Russian roulette every time they started work on a home as they depended on the honesty and ethics of home owners to reveal whether Mr Fluffy loose amosite asbestos had been installed in the 1970s. A spokesman for acting Workplace Safety and Industrial Relations Minister Katy Gallagher said the government was "happy to consider sensible, effective and practical proposals to enhance safety in relation to asbestos". It has already sought advice on "the development of a package of measures -- which may include legislative amendments -- to ensure that tenants and persons engaged to do work on houses built before 1980 are aware of the potential risks posed by Mr Fluffy asbestos". "Such measures are currently the subject of consideration, including with the ACT's Asbestos Regulators Forum, and advice will be provided to government shortly," the spokesman said. Even though $100 million had been spent over five years from 1987 forensically cleaning the roof cavities of 1050 homes which had the insulation, it is becoming increasingly clear that remnant asbestos poses significant public health risks across Canberra. This follows on from ACT Worksafe opening a major investigation on a Pearce home which was revealed this month to be contaminated with significant amounts of remnant loose asbestos which had been released during a renovation. Inspectors determined that the renovation was not being carried out safely, and the builder engaged for the work may have been unlicensed. No documents for development approval had been found. Both the home owners and the builder knew it was a Mr Fluffy house and children were living in the home during the renovation. Fibres were found on furniture, windowsills, the floor and in the vacuum cleaner. Amosite asbestos is a type 1 carcinogen. ACT Work Safety Commissioner Mark McCabe said it appeared to be a "flagrant" abuse of safety protocols. He said he would crack down on any home owners or builders who knowingly put themselves and others at risk with unauthorised and unsafe work, noting home owners could be in breach of the ACT's Dangerous Substances Act and could be prosecuted, with a maximum fine of $165,000. Builders could also be liable for prosecution, and in their case the fine could, in extreme cases, be more than $1 million, with the prospect of a jail sentence. Mr Hall said the ACT government could not wait any longer to introduce strong public safety protocols in the affected houses. Builders needed professional protection for health and financial reasons. The considerable costs associated with safe and licensed asbestos handling and removal meant that there was always the potential that "cowboy" operators could undercut those tradespeople wanting to follow the rules. "Until they legislate that all of these homes have to have management plans, there is the risk that the responsible tradespeople are going to be put at a commercial disadvantage to those who are going to scrape this stuff from the walls, chuck it in a plastic bag and dump it in a park, which is what we have seen happening for decades." "Why has it happened? Because people take the cheap option. Until there are commercial penalties for not having a plan in place then tradespeople will continue to carry an unacceptable risk," Mr Hall said. ASBESTOS UPDATE: Fire Destroys Theatre and Studio in Lewes ---------------------------------------------------------- BBC News reported that a massive fire has destroyed a theatre and studio complex in East Sussex, England. The blaze ripped through the Phoenix Theatre and Studio building on North Street in Lewes. The fire service received 23 calls from members of the public who spotted the blaze when it broke out at just after 18:00 GMT. Fire crews were joined by Environment Agency staff who carried out tests to ensure there was no contamination from asbestos in the roof. 'Acrid smell' Witness Adrian Sunderland said someone had hired the newly refurbished theatre for a private event. "They were setting up in there and a band was setting up their instruments and equipment and all of a sudden we smelt burning, smoke with an unusual acrid smell," he said. "We looked round and saw smoke pouring out of the corner of the theatre. "We went running over with a fire extinguisher, thought 'well maybe it's just a small fire', went in and the whole building was just well alight." Mr Sunderland said the group left the building and called the fire brigade. He went into the building when everyone was out and his jumper was burned by embers falling from the ceiling, he added. "Within a few minutes, the whole building just erupted into flames completely," he said. "The speed at which it took hold was phenomenal." 'Sobbing' Mr Sunderland said artists had lost their "entire life's work" in the studios upstairs. "It's really heartbreaking for them," he said. "People were down here sobbing their eyes out this morning. "It's a big tragedy for the whole community." The fire was brought under control at 21:15, but there has been enormous damage to the building. Nobody was injured, a fire service spokesman said. He added: "This particular the incident had the potential of being quite disastrous. "Thankfully the occupiers identified the fire early and we managed to make an intervention which, although there's significant damage to the building, we stopped the fire from spreading to adjacent areas." The theatre and studios, on the Phoenix Industrial Estate, cater for arts and media projects and events. ASBESTOS UPDATE: McGann-Mercy Closed Due to Night Fire ------------------------------------------------------ Denise Civiletti, writing for Riverhead Local, reported that McGann-Mercy Diocesan High School, in Riverhead, New York, was closed and all after-school activities have been canceled, following a fire in the basement. School officials decided to close the school in order to clean up water and debris on site. The electrical fire started in a refrigeration unit and did not do a lot of structural damage, Bay said, but further assessments will be conducted in the morning. Bay said there was no issue with asbestos on the premises. Fire chiefs concerned about that possibility ordered firefighters who'd been inside the building to be decontaminated with a fire hose, Riverhead Fire Department First Assistant Chief Kevin Brooks said tonight. "It's no fun being hosed down with cold water in 39-degree weather, but better safe than sorry," Brooks said. When the school superintendent arrived on scene, he produced records certifying that there was no asbestos in the area of the fire, Brooks said. The fire started as an electrical fire on top of a large walk-in refrigerator unit in the basement of the school, Brooks said. It burned through very thick insulation and "traveled horizontally," he said. "We are very grateful to the Riverhead Fire Department for their rapid response," said the school spokesperson. "This could have been so much worse." About 75 firefighters and seven pieces of apparatus responded to the scene, according to the assistant chief. The automatic alarm, triggered by a hard-wired smoke detector on premises, came in to the firehouse at about 7 p.m. Firefighters were releases from the scene at 9:34 p.m. Flanders Fire Department manned Riverhead's headquarters during the incident. A spokesperson for Bishop-McGann Mercy High School said in a phone interview tonight that school officials have not yet determined whether the school will be opened. ASBESTOS UPDATE: Deadly Dust Found at Porirua Kindergarten ---------------------------------------------------------- Rhiannon McConnell, writing for Stuff.co.nz, reported that a parent at a kindergarten north of Wellington, in New Zealand, was shocked to discover children playing around asbestos. Builder Kyle Mitchell was in the garden at Pukerua Bay Kindergarten, in Porirua with his daughter when he noticed pieces of asbestos protruding from the ground. "I pulled a big piece out," he said. "I was pretty shocked. That's pretty dubious stuff. The kids have actually been running on it." The father of three raised his concerns with teachers. "It's bloody terrible that the kids have been have been exposed to the hazardous substance for some time." Barriers were put up by the kindergarten and a removal specialist was called in. Pukerua Bay Kindergarten head teacher Carrie-Ann Stark would not discuss the issue. When asked for a kindergarten committee spokesperson, she said that was her too, but she still would not comment. Wellington Kindergartens Association spokeswoman Jenny Varney, who said she was also speaking on behalf of the kindergarten, said the kindergarten acted quickly after learning of the asbestos. "Forty-eight hours from whoa to go it was gone. It was identified and removed," she said. "Many years ago we disposed of things very differently than we do now. It is a historic thing and we can only carefully monitor it." The kindergarten was established in 1977. Varney said she believed rain had recently uncovered the material and she did not believe anyone had been at risk. "We are always concerned about pupils' safety, but there's no reason to believe anyone has come in contact with [the asbestos] in the past." Mitchell said the asbestos did not look as if it had been uncovered recently. "It's been there for years. Some of it's been sticking out for ages," he said. "It should have been cleaned up." He suspected the area was once used as a dumping ground. "I spoke to one of the teachers and they said that in the past they had also found big shards of glass and that it must have been some sort of dumping ground and [the kindergarten] never bothered to have the play area cleared of this rubbish." Mitchell said the clean-up was a good start, but the area needed to be fully checked and cleared for it to be safe. His wife, Rachael, said the kindergarten was focused on safety and she believed it would do what was best for the children. "My view is they weren't aware of asbestos there and as soon as they were they went into protection mode." Varney said the kindergarten did not believe there was any more danger, but it would be careful. "We would be foolish not to keep an eye on things," she said. "Now that this happened we will be extra vigilant." 'I'LL BE BANNING MY KIDS' Lower Hutt GP Stewart Reid said it would be very hard to be sure if the children at Pukerua Bay Kindergarten had been exposed to asbestos. "I don't think there's any way you can detect if any significant exposure has occurred," he said. "The issue is that nothing much happens until many years later. "If it was me, I'd be banning my kids from being near there." Reid said asbestos was only dangerous if inhaled. "If it is in a garden, there is a reasonable chance that some of it could break down and get dusty. "If there is no asbestos dust it is OK," he said. WHAT IS ASBESTOS? Asbestos is a group of minerals made up of many small fibres. It is a risk to health when breathed in as dust. Fibres can get stuck in the lungs and body, leading to breathing difficulties and even lung cancer. If asbestos is exposed or damaged it can be dangerous. Before the dangers were known, it was popular because of its fire- resistant, insulation and reinforcement properties. It became popular in the 19th century as a cheap building material. Many old buildings in New Zealand contain asbestos. Its use is banned in many places. ASBESTOS UPDATE: FELA Suit Claims CSX Allowed Fibro Exposure ------------------------------------------------------------ The Madison-St. Clair Record reported that the special administrator of a deceased woman's estate blames a railroad company for contributing to her death, saying it allowed its employees to be exposed to asbestos despite knowledge of the associated health risks. Jeanne Belman filed a lawsuit March 14 in the St. Clair County Circuit Court against CSX Transportation. In her complaint, Belman alleges the recently deceased Marcella Goedeke developed mesothelioma after being exposed to asbestos fibers that clung to her husband's clothing following his work at The Baltimore and Ohio Railroad Company. When Marcella Goedeke's husband came home, she inhaled and ingested the asbestos fibers that were on his clothes, according to the complaint. As a result of Goedeke's mesothelioma, she suffered great pain and disability, endured serious mental anguish and extreme nervousness and incurred significant medical costs, the suit states. She died on March 18, 2012, the suit states. Belman claims Goedeke's disease could have been avoided had The Baltimore and Railroad Company heeded the advice of experts in 1935 who warned the railroad to educate all its employees about asbestos fibers. The experts also advised the company to get rid of asbestos dust, to sprinkle the working area with water, to have employees wear inhalers and to have frequent analyses made of the dust content of air at different times during work hours, the complaint says. Instead, she says the railroad negligently exposed Marcella Goedeke's husband to asbestos, allowed him to carry the asbestos with him into his home, failed to warn him that it could cause disease, failed to prevent him from being exposed to the asbestos, failed to provide him with protective clothing and allowed unsafe work practices to become routine. Eventually, The Baltimore and Ohio Railroad Company was taken over by CSX, which Belman named as a defendant in her complaint that seeks damages under the Federal Employers Liability Act (FELA). Belman is seeking a judgment of more than $100,000, plus costs. She is being represented by William P. Gavin of Gavin Law Firm in Belleville. St. Clair County Circuit Court case number 14-L-225. ASBESTOS UPDATE: Bristol Developer Fined for Breaking Safety Code ----------------------------------------------------------------- The Bristol Post reported that a Bristol, United Kingdom, property company has been fined nearly GBP10,000 after it exposed employees to asbestos while working on a former Marks and Spencer shop building. At least three employees of Da Vinci Developments Limited are known to have been exposed to potentially deadly asbestos fibres while working on the former M&S building on Queen Street, Bridgwater, between 17 September and 24 October 2012. Taunton Magistrates' Court heard on March 31 that Da Vinci Developments Limited failed to plan for the potential presence of asbestos insulation board (AIB) before developing the property. The Health and Safety Executive (HSE) was alerted when they were notified by a non-licensed asbestos removal company, which had been asked to quote for the removal works. The firm was aware any such work had to be carried out by a licensed asbestos removal contractor. An investigation by HSE found Da Vinci Developments Limited did not carry out a statutory survey to check for the presence of asbestos materials prior to starting the work. Instead, for several weeks, workers were demolishing walls and ceilings in the building, breaking up the asbestos insulation board. Employees were exposed to large amounts of airborne asbestos fibres, which spread through the inside and outside of the building during the work. The AIB removal should have been undertaken by a licensed contractor taking suitable control measures to prevent exposure and spread of the asbestos fibres. Da Vinci Developments Limited of Archfield Road, Cotham, Bristol, pleaded guilty to two breaches of the Control of Asbestos Regulations 2012 and were fined GBP9,800 and ordered to pay GBP796 in costs. Speaking after the hearing, HSE inspector James Lucas said: "It is very important that employers take appropriate measures before work starts in order to identify the potential for asbestos to be present when undertaking work. "Appropriate measures can then be taken to ensure workers are not exposed and asbestos is not spread. "Workers who have been exposed to asbestos could also have posed a health risk to others in the long term, even their families and loved ones, by taking home contaminated clothing. "Asbestos is the single greatest cause of work-related deaths in the UK. Building owners and contractors have a duty to ensure they protect their workers from risk of exposure. Da Vinci Developments Limited neglected their duty by failing to plan for the dangers of this hidden killer." Information and advice about working safely with asbestos can be found on the HSE website at www.hse.gov.uk/asbestos ASBESTOS UPDATE: NYCAL Consolidates 17 Fibro Trials --------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reported that the New York City Asbestos Litigation court has granted plaintiffs law firm Weitz & Luxenberg's motion to consolidate 17 asbestos trials into six separate groups for joint trial. In a March 14 order, Judge Cynthia Kern approved the move of consolidation because the groups have common questions of law and fact. "[T]his court finds that the trials in each of the groups involve common questions of law and fact and that consolidation of these cases into the five groups [with more than one plaintiff] will not prejudice a substantial right of defendants," Kern stated. "Moreover, 'there is a preference for consolidation in the interest of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right,'" she added. In Group 1(a), all four plaintiffs worked as electricians, have been exposed to similar products and have overlapping periods of exposure. In Group 1(b), the three plaintiffs have had maintained different occupations and worked at different job sites, but have had similar exposure to asbestos-containing products. They've also had exposure in the same manner -- by working directly with asbestos-containing products and by means of bystander exposure. Plaintiffs in Group 2 were both exposed to the same products at similar job sites. They also allege they were exposed to asbestos while aboard ships in the U.S. Navy and the U.S. Navy Yard. The pair of plaintiffs in Group 3 were both exposed to press pads at commercial dry cleaning facilities as well as military ship- based exposure. They also suffered exposures while working on the railroad. Although, Kern wrote that the railroad exposure is not a sufficient basis by itself to require a separate trial in light of the overlapping issues between the plaintiffs. Groups 4 and 5 only contain a single plaintiff in each. Group 6 is the only group of plaintiffs suffering from lung cancer. All other groups involve mesothelioma victims. These claimants were exposed to the same types of products in the same manner -- by working directly with the products and by means of bystander exposure. "Although not all of the groups have all living plaintiffs, the death of some of these plaintiffs will not prejudice the jury against the 'defendants, vis-a-vis, the living plaintiffs' because they are suffering from the same terminal illness and will suffer the same fate," Kern stated. A settlement conference will be held for all parties on April 11 and jury selection for Group 1(a) will begin on April 28. Each of the subsequent trials will be held consecutively unless the court decides otherwise. ASBESTOS UPDATE: GBP70,000 Payout for Doncaster Rail Worker Death ----------------------------------------------------------------- The Star reported that the family of a dad whose life was cut short by asbestos exposure have been awarded GBP70,000 in compensation. Former rail worker Douglas Wattam's family brought the case against British Rail after a post-mortem examination showed he died from asbestosis in January 2012. Mr Wattam suffered with breathlessness for 13 years as a result of the asbestosis -- something that was picked up only after his death. The settlement with the Department of Transport, which is responsible for cases brought against British Rail, was settled out of court and the GBP70,000 awarded to Mr Wattam's family was in respect of the pain and suffering he endured. Mr Wattam had needed nursing care and incurred expenses as a result of his illness. He began work with British Rail in 1966 as a coach builder in the carriage shop. Asbestos was widely used in the Doncaster railway works, with blue asbestos sprayed on the inside of carriages and floating in the air with workers given no protective clothing or warnings. Brigitte Chandler is a leading industrial disease lawyer who has represented hundreds of railway workers over the last 30 years, including the family of Mr Wattam. Mrs Chandler, of Swindon law firm Charles Lucas and Marshall, said of the case: "A number of coach builders have died from asbestos exposure at the Doncaster railway works. "British Rail is now well aware of the extent of this problem and the fact so many people who worked there have become ill." British Rail began removing asbestos from train coaches and issuing protective clothing to workers in the 1980s. Mrs Chandler has been involved with numerous asbestos cases in the Supreme and High Courts, and recommends that anyone who has worked with asbestos in the railways, and who develops chest pain or breathlessness, should seek medical advice. ASBESTOS UPDATE: Sentences Handed Down for Abatement Violations --------------------------------------------------------------- Oscar Contreras, writing for Turnto23.com, reported that Patrick Bowman, 47, of Los Banos, Calif.; and Rudolph Buendia III, 51, of Planada, California, were sentenced for violating the asbestos work-practice standards of the National Emissions Standards for Hazardous Air Pollutants, United States Attorney Benjamin B. Wagner announced. United States District Judge Lawrence J. O'Neill sentenced Bowman to 27 months in prison, and Buendia to 24 months in prison. Sentencing for Joseph Cuellar is currently scheduled for June 16, 2014. A restitution hearing as to all three defendants is also scheduled for June 16. According to court documents, Joseph Cuellar was the administrative manager of Firm Build Inc., Patrick Bowman was its president, and Rudolph Buendia was its construction project site supervisor. From September 2005 to March 2006, Firm Build operated a demolition and renovation project in the former Castle Air Force Base in Atwater, California. They were to turn Building 325 into a mechanic training center for the Merced County Board of Education. The defendants hired local high school students from the Workplace Learning Academy in Merced to perform some of the renovation. According to court documents, the students and other employees removed and disposed of approximately 1,000 linear feet of pipe insulation and additional tank insulation which the defendants knew contained regulated asbestos-containing material without utilizing proper protective equipment (in the form of Tyvek suits, full-face respirators, bootie or footwear coverings, gloves, hair hoods or caps, and shower equipment) or taking protective measures (wetting the asbestos containing materials, sealing the asbestos debris in secure plastic bags, using negative air pressure in the building) in violation of federal law. Asbestos became airborne during this illegal asbestos abatement. In performing the asbestos abatement project in this manner, defendants knowingly exposed Firm Build employees, Workplace Learning Academy students, as well as other subcontractors and their employees to hazardous airborne asbestos. U.S. Attorney Wagner said: "Exposing student workers and subcontractors at a construction site to hazardous asbestos in order to cut corners and save money is not just reckless. The sentences imposed should remind all who may be involved in handling such materials that disregarding federal environmental laws can result in prison time. I am grateful for the support of the investigations bureau of the Merced County District Attorney's Office, and of Cal-EPA and the California Department of Justice, in the course of the investigation and prosecution of this case." "There is no safe level of exposure to asbestos," said Jay M. Green, Special Agent-in-Charge of EPA's criminal enforcement program in California. "Directing student workers to illegally remove demolition debris containing asbestos, knowing they had neither the training nor the proper personal protective equipment, threatens their health and safety. EPA and its partner agencies will continue to protect those vulnerable to these crimes by vigorously prosecuting those who place profit above the public health and the environment." This case was the product of an investigation by the U.S. Environmental Protection Agency, assisted by Cal-EPA, the investigations bureau of the Merced County District Attorney, and the California Department of Justice. Assistant United States Attorneys Samuel Wong and Melanie Alsworth prosecuted the case. ASBESTOS UPDATE: Deadly Dust Closes Much of Fanning School ---------------------------------------------------------- Chris Haire, writing for Orange County Register, reported that the main building of Fanning Elementary School in Brea, California, could be closed for six weeks, or even longer, because of asbestos found in the dust and debris caused by an earthquake, according to a report released by Superintendent Skip Roland. "At best, the entire Fanning campus will not be available until after spring break," Roland said in the report. "In an abundance of caution, we will make sure the campus is completely safe from any asbestos contamination before allowing students and staff to return to the pods and main building." The magnitude 5.1 earthquake caused more than 50 light fixtures and ceiling tiles to fall to the floor, releasing dust and debris containing the carcinogen. Fanning was built in 1971, when asbestos was a common building material. The main building houses 350 students in grades two through five. Those children and their teachers will move to Laurel Elementary School, the district's least-populated school. Children younger than second-graders, housed in separate pods from the main building, are scheduled to return to Fanning. The entire campus was closed for a day. Elsewhere in Brea, the Civic Center re-opened to the public, following a weekend-long clean-up effort. City employees cleaned up fallen lights, debris and dust, and fixed a water pipe that burst. On Carbon Canyon Road, east of Valencia Avenue, workers spent all weekend trying to shore up a hillside. The road was scheduled to re-open at 4 a.m. today, which should ease congestion on the 60 and 91 freeways during the morning and afternoon commutes. Carbon Canyon will close again though, so crews can put in a more durable mesh to prevent future slides. The two-lane highway should re-open for good. In La Habra, the quake's epicenter, no city or residential buildings sustained any significant damage. "We weathered the storm much better than some other cities," said city spokesman Robert Ferrier. "Just some dust, dirt and tiles. Nothing a good cleaning can't handle." In Fullerton, on the other hand, residents continued to deal with some of the worst effects in the county -- with several houses on Avendia del Norte, in the northwest section of Fullerton, suffering damage. A 5-foot-by-5-foot section of a brick wall in the front yard of one home became a pile of rubble. At another residence, about 10 bricks fell off of the top of a chimney. And even though all of the city's roads are open, the pavement on several streets will need to be repaired, said police Sgt. Jeff Stuart. The worst area is around Rosecrans Avenue and Gilbert Street, where it flooded after a water main broke. Thirteen water mains broke throughout Fullerton. Fullerton City Manger Joe Felz estimated that, in his city, the private sector suffered $400,000 in damage, while the city took a $500,000 hit. ASBESTOS UPDATE: Ill. Court Awards $202K to Artra 524(g) Trust -------------------------------------------------------------- Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois, Eastern Division, in a memorandum opinion and order dated April 22, 2014, granted the Motion for Summary Judgment filed by the Artra 524(g) Asbestos Trust in the case styled ARTRA 524 (g) ASBESTOS TRUST, Plaintiff, v. ARTRA GROUP, INCORPORATED, ENTRADE, INC., ARCADIA SECURITIES LLC, PETER R. HARVEY, and JOHN P. CONROY, Defendants, CASE NO. 11 C 8028 (N.D. Ill.). In 2002, Artra filed a voluntary Chapter 11 petition precipitated by a multitude of asbestos-related personal injury claims that greatly exceeded Artra's insurance coverage and assets. In 2007, the Bankruptcy Court entered an order confirming a reorganization plan, which order was affirmed by the District Court. The plan became effective as of April 2, 2007. Among its provisions the plan established, for purposes of resolving personal injury claims, a trust into which certain of Artra's assets, including its shares of stock in a company named Comforce Corporation, were transferred. Pursuant to the Plan, Artra was permitted to retain bare legal title to the Comforce stock for a two-year period so that Artra could obtain any tax benefits which might be available in connection with the sale of the stock. After the two-year period expired, the stock would become the sole property of the Trust. Under the terms of the reorganization plan, Astra was required to establish an escrow account to hold the Comforce stock for sale for the benefit of the Trust. However, Artra did not execute the Escrow Agreement and retained physical possession of the share certificates which bore its name rather than the Trust's. In a series of transactions selling the Comforce stock, the Trust received $156,325 for its 143,000 shares in the December 2009 sale instead of $358,000, which it would have been received had the shares not been sold until the merger. The Trust has demanded the difference, $202,174 from Arcadia Securities LLC, based on its contention that both Artra and its agent, Arcadia, converted the shares. The Trust has moved for summary judgment against Arcadia. Judge Leinenweber entered judgment in favor of the Trust in the amount of $202,264. The Trust asks for prejudgment interest in its Reply Brief, but insofar as Arcadia has not had an opportunity to argue the point, Judge Leinenweber said it will not grant it at this time. Insofar as the Trust has benefited from the failure of Arcadia to have a proper 30(b)(6) witness, the Court does not believe that any additional penalty is warranted. The Motions for Discovery Sanctions are therefore denied. A full-text copy of Judge Leinenweber's Decision is available at http://is.gd/oXJF1Dfrom Leagle.com. ARTRA 524(g) Asbestos Trust, Plaintiff, represented by Joseph Daniel Frank, Esq. -- jfrank@fgllp.com -- Micah R. Krohn, Esq. -- mkrohn@fgllp.com -- and Reed Heiligman, Esq. -- rheiligman@fgllp.com -- at FrankGecker LLP. Arcadia Securities, LLC, Defendant, is represented by: Peter Ordower, Esq. THE LAW OFFICES OF PETER ORDOWER 10 S La Salle St., Suite 3500 Chicago, IL 60603 Phone: 312-263-8060 Fax: 312-263-8083 ASBESTOS UPDATE: Excess Insurer Can't Intervene in Hall's Ch. 7 --------------------------------------------------------------- C.P. Hall Company is a former distributor of asbestos and asbestos products. It quit that imperiled business in the mid- 1980s but continued in corporate existence as a litigation shell. Tens of thousands of separate asbestos claims were filed against it. It sought to shift as much of the cost as possible to its liability insurers; and not until 2011 was it forced to declare bankruptcy, initially under Chapter 11 but the bankruptcy proceeding was later converted to Chapter 7 and a trustee was appointed. Hall had $10 million remaining in insurance coverage from one of its insurers, itself bankrupt, called Integrity. But there was a question whether Integrity's policy actually covered the loss for which Hall was seeking indemnity under the policy. The parties agreed to settle for $4.125 million, and the bankruptcy judge, whose approval was necessary for the settlement to be valid, approved it. Columbia Casualty Company is not a creditor of Hall, but rather an excess insurer of Hall's asbestos liabilities, with maximum coverage of $6 million. Columbia worries that Hall, by virtue of having settled its insurance claim against Integrity rather than persisting in the litigation in the hope of obtaining indemnity of the full $10 million, has increased the likelihood of Columbia's having to honor its secondary-coverage obligation. It therefore filed an objection to the settlement. The bankruptcy judge refused to consider the objection, on the ground that Columbia had no right to object. Columbia appealed and the district judge affirmed, precipitating Columbia's further appeal. The question presented by the appeal to the U.S. Court of Appeals for the Seventh Circuit is whether a nonparty to a bankruptcy proceeding should be entitled to intervene in the proceeding. A three-judge panel of the Seventh Circuit affirmed the District Court's ruling, holding that the list of persons having a right to appear and be heard in a bankruptcy case can't include Columbia as it is neither a creditor of Hall's estate in bankruptcy, a debtor, and, unlike the U.S. Trustee, a guardian of conduct in bankruptcy proceedings. The Seventh Circuit also pointed out that Columbia is just a firm that may suffer collateral damage from a ruling in a bankruptcy proceeding. The appeals case is IN RE: C.P. HALL COMPANY, Debtor, APPEAL OF: COLUMBIA CASUALTY COMPANY, Objector-Appellant, NO. 13-1306 (7th Cir.). A full-text copy of the opinion dated April 24, 2014, penned by Judge Richard Posner, is available at http://is.gd/8qF23Afrom Leagle.com. C.P. Hall Co. filed a Chapter 11 petition (Bankr. N.D. Ill. Case No. 11-26443) on June 24, 2011, listing under $1 million in both assets and debts. A copy of the petition is available at http://bankrupt.com/misc/ilnb11-26443.pdf ASBESTOS UPDATE: NLI's Bid to Enforce Confirmation Order Denied --------------------------------------------------------------- N.L. Industries, Inc., filed an expedited motion to enforce a confirmation order and asked the U.S. Bankruptcy Court for the Western District of Pennsylvania to require Marilyn Judson to dismiss the Company as defendant from the case styled Judson v. American Optical Corp., et. al., Case No. 1222-CC10608 filed in the Twenty-Second Judicial Circuit Court in the State of Missouri. The State Court Action was filed when Kenneth Judson sued a large number of defendants, including NLI, after he was diagnosed with mesothelioma. NLI also seeks an award of sanctions against Judson for violation of the Permanent Asbestos Channeling Injunction entered on July 16, 2004, by Hon. Judith K. Fitzgerald, as part of the Confirmation Order that approved NLI's Fourth Amended and Restated Joint Prepackaged Plan. Bankruptcy Judge Thomas P. Agresti, in a memorandum opinion dated April 24, 2014, concluded that no evidentiary hearing is required at this time, and that the Motion must be denied, without prejudice to being refiled at a later time. Judge Agresti ruled that the court in the State Court Action will be charged with carrying out the proceeding in accordance with general principles but beyond that is free to act in accordance with applicable laws as it may determine. If at any time NLI believes the state court has failed to do so in a manner that implicates a breach of the Channeling Injunction, it may seek further relief from the Bankruptcy Court, Judge Agresti further ruled. The case is NL, INDUSTRIES, INC., Chapter 11, Movant v. MARILYN J. JUDSON, Individually and as Executrix of the Estate of KENNETH JUDSON, deceased, Respondent (IN RE: MID-VALLEY, INC., et. al., Reorganized Debtors, Case No. 03-35592-TPA)(Bankr. W.D. Pa.). A full-text copy of Judge Agresti's Decision is available at http://is.gd/wYQJTDfrom Leagle.com. Michael G. Zanic, Esq., and David Asigo, Esq. for the Movant. Carla Guttilla, Esq., and Robert W. Phillips for the Respondent. NL Industries, Inc. (NL) is a holding company. The Company operates in the component products industry through its majority- owned subsidiary, CompX International Inc. The Company operates in the chemicals industry through its non-controlling interest in Kronos Worldwide, Inc. As of December 31, 2011, it owned 87% interest in CompX International Inc and 30% interest in Kronos Worldwide, Inc. The Company also owns 100% of EWI RE, Inc., an insurance brokerage and risk management services company. CompX is a manufacturer of engineered components utilized in a variety of applications and industries. Kronos is a global producer and marketer of value-added titanium dioxide pigments. In July of 2011, CompX completed the acquisition of an ergonomic component products business. ASBESTOS UPDATE: CNH Prohibited From Deposing Opponent's Counsel ---------------------------------------------------------------- In 2008, CNH America, LLC, began being sued in numerous lawsuits alleging damages caused by asbestos exposure. CNH submitted the lawsuits to American Casualty Company of Reading, Pennsylvania, and other companies for coverage under various insurance policies. The CNA Defendants retained Clinton E. Cameron, Esq. - - clinton.cameron@troutmansanders.com -- at Troutman Sanders LLP, as lead counsel in connection with coverage issues. CNH now asks the Superior Court of Delaware, New Castle County, to issue a commission so that CNH may depose Mr. Cameron in Illinois on, among other subjects, any communications the CNA Defendants sent to or received from Mr. Cameron between July 18, 2011 and July 11, 2012 regarding the asbestos claims. The CNA Defendants contend that the commission should not be issued because it is disruptive, harassing, and unnecessary; that CNH has not met the Shelton standard -- a standard that the Court adopted in Cole v. Mousavi; that CNH seeks privileged attorney- client communications and attorney work product; and that the topics on which CNH seeks discovery from Cameron do not warrant breaching these protections. In an order dated March 24, 2014, the Superior Court denied CNH's motion after determining that CNH has failed to establish the first factor in Cole v. Mousavi, which is to show that no other means exists to obtain the information than to depose opposing counsel. The cases are CNH AMERICA, LLC, a Delaware limited liability company f/k/a Case Corporation, Plaintiff, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a Pennsylvania corporation, et al, Defendants, and AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a Pennsylvania corporation; and The CONTINENTAL INSURANCE COMPANY, a Pennsylvania corporation, Third-Party Plaintiffs, v. EPEC EQUIPMENT CORPORATION, a Delaware corporation, Third-Party Defendant, C.A. NO. N12C-07-108 JTV (Del. Super.). A full-text copy of the Superior Court's order penned by President Judge James T. Vaughn Jr. is available at http://is.gd/hPGj4Bfrom Leagle.com. Brain R. Rostocki, Esq. -- brostocki@reedsmith.com -- and John C. Cordrey, Esq. -- jcordrey@reedsmith.com -- at Reed Smith, LLP, Wilmington, Delaware. Attorneys for Plaintiff. Carmella P. Keener, Esq. -- ckeener@rmgglaw.com -- at Rosenthal, Monhait & Goddess, Wilmington, Delaware. Attorney for American Casualty. ASBESTOS UPDATE: Order in Ex-Worker's Bias Suit Modified -------------------------------------------------------- Before the Court of Appeals of New York is an issue on whether, on a motion for summary judgment disposing of an employee's disability discrimination claims under the New York City Human Rights Law and the New York State Human Rights Law, an employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good faith interactive process precludes the employer from obtaining summary judgment. In 1979, plaintiff William Jacobsen began his employment with New York City Health Hospitals Corporation. In 2005, HHC reassigned the plaintiff to its Queens hospital network, and he primarily oversaw projects at the Queens Hospital Center, where HHC was conducting extensive renovations and asbestos abatement. In September 2005, the plaintiff received diagnosis of pneumoconiosis, an occupational lung disease caused by repeated and prolonged inhalation of asbestos or other dust particles. In 2006, the plaintiff filed a disability discrimination complaint against HHC. Two days after, HHC placed the plaintiff on unpaid medical leave for six months. At the end of his involuntary medical leave in March 2007, HHC terminated the plaintiff. The plaintiff, in March 2008, commenced an action for damages by filing a complaint in which he alleged that HHC unlawfully discriminated on the basis of disability in violation of the State Human Rights Law and City Human Rights Law. In a decision dated March 27, 2014, the Court of Appeals of New York modified a lower court's order and decided only that the trial court erroneously granted summary judgment to HHC based on the plaintiff's having become totally disabled after his accommodation request was denied, and that HHC did not demonstrate its entitlement to judgment as a matter of law regarding the other aspects of the plaintiff's disability discrimination claims. Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the first and second causes of action of the complaint, and as so modified, affirmed, and the certified question should not be answered as unnecessary. In resolving the issue, the Court of Appeals reiterated that the State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated. Despite those differing standards, the Court of Appeals concluded that both statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation. The case is WILLIAM JACOBSEN, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent, NO. 34 (N.Y.). A full- text copy of the Decision penned by Judge Sheila Abdus-Salaam is available at http://is.gd/7TzAMqfrom Leagle.com. ASBESTOS UPDATE: Ruling in Widow's Death Benefits Suit Affirmed --------------------------------------------------------------- A three-judge panel of the Appellate Division of the Supreme Court of New York, Third Department, in a memorandum and order dated March 27, 2014, affirmed the decision of the Workers' Compensation Board, which, among other things, ruled that the employer and its third-party administrator were not entitled to reimbursement from the Special Disability Fund. The decision comes from a lawsuit under which Catherine T. Gillard, wife of Peter Gillard, filed for workers' compensation death benefits for the death of his husband, who was repeatedly exposed to asbestos in the course of his work for the employer. The employer and its third-party administrator thereafter sought reimbursement for the death benefits from the Special Disability Fund. The case is In the Matter of the Claim of CATHERINE T. GILLARD, as Widow of PETER GILLARD, Deceased, Respondent, v. CONSOLIDATED EDISON OF NEW YORK, INC., ET AL., Appellants, and SPECIAL DISABILITY FUND, Respondent, WORKERS' COMPENSATION BOARD, Respondent, 515230 (N.Y. App. Div.). A full-text copy of the Decision penned by Justice William E. McCarthy is available at http://is.gd/tP53g1from Leagle.com. Consolidated Edison of New York, Inc., appellants, is represented by: David W. Faber, Esq. Steven M. Scotti, Esq. CHERRY, EDSON & KELLY, LLP One Old Country Road Carle Place, NY 11514 Phone: (516) 486-4640 Fax: (516) 486-7732 Steven M. Licht, Esq., and Jill B. Singer, Esq., Special Funds Conservation Committee, in Albany, for Special Disability Fund, respondent. ASBESTOS UPDATE: NY Court Affirms Ruling in Labor Law Suit ---------------------------------------------------------- Plaintiff Carletta Sims commenced a Labor Law and common-law negligence action seeking damages for injuries she allegedly sustained while performing asbestos abatement work during a construction project at Midtown Plaza, which is owned by defendant the City of Rochester. According to the plaintiff, she was scraping asbestos from the ceiling while standing on a free- standing scaffold when the scaffold shifted and she fell to the ground, thereby sustaining injuries. A five-judge panel of the Appellate Division of the Supreme Court of New York, Fourth Department, concluded that the Supreme Court properly denied the plaintiff's motion for partial summary judgment on the issue of liability with respect to the Labor Law Sec. 240 (1) claim. Accordingly, the order so appealed is unanimously affirmed. The case is CARLETTA SIMS, Plaintiff-Appellant, v. CITY OF ROCHESTER, Defendant-Respondent, 350 CA 13-01663 (N.Y. App. Div.). A full-text copy of the decision released March 28, 2014, is available at http://is.gd/9SHX97from Leagle.com. Plaintiff-Appellant is represented by: Timothy C. Bellavia, Esq. PARISI & BELLAVIA, LLP 16W. Main Street Suite 141 Rochester, New York 14610 Tel: (585) 232-8000 Scott P. Rogoff, Esq. -- srogoff@hblaw.com -- at Hiscock & Barclay, LLP, for Defendant-Respondent. ASBESTOS UPDATE: Ruling in Ex-Bayer Corp. Worker's Suit Upheld -------------------------------------------------------------- Frank Fullerton worked as a plant worker and a maintenance worker for Bayer Corporation for over forty years. His job duties often required him to be in contact with a variety of chemicals including toluene diisocyanate (TDI). While Mr. Fullerton worked for Bayer he began to develop lung problems. Initially his lung problems were attributed to occupational pneumoconiosis from exposure to asbestos. But a later biopsy showed no evidence of occupational pneumoconiosis. James Allen, M.D., suggested that Mr. Fullerton could be suffering from inherited idiopathic pulmonary fibrosis. Dr. Allen also noted that Mr. Fullerton had recently stopped smoking and there was significant improvement in his lung condition. Samuel Yousem, M.D., then suggested that Mr. Fullerton may have developed chronic hypersensitivity pneumonitis from TDI exposure. This suggestion was repeated by Kevin Gibson, M.D., and Mr. Fullerton applied for workers' compensation benefits for chronic hypersensitivity pneumonitis. In April 2010, the claims administrator rejected the claim stating that it was untimely filed and also that there was no causal connection between Mr. Fullerton's condition and his occupation. David Rosenberg, M.D., then examined Mr. Fullerton and found that his symptoms included manifestations of rales, decreased diffusion capacity, and clubbing of the fingers which were more consistent with a diagnosis of idiopathic pulmonary fibrosis. Dr. Rosenberg found that the symptoms associated with hypersensitivity pneumonitis usually occur within four to eight hours after chemical exposure but that Mr. Fullerton had never had any immediate symptoms in response to exposure to TDI. Dr. Rosenberg found that Mr. Fullerton did not have hypersensitivity pneumonitis due to his occupation. Joseph J. Renn, M.D., then evaluated Mr. Fullerton and found that he had a significant history of cigarette smoking which supported a diagnosis of pulmonary fibrosis. On December 7, 2011, the Office of Judges affirmed the claims administrator's decision. The Board of Review affirmed the Order of the Office of Judges on July 27, 2012, leading Mr. Fullerton to appeal. The Supreme Court of Appeals of West Virginia, in a memorandum decision dated March 20, 2014, agreed with the conclusions of the Board of Review and the findings of the Office of Judges. The Supreme Court of Appeals found that Mr. Fullerton has not demonstrated that he developed a disease in the course of and resulting from his employment and the evidence in the record consistently shows that Mr. Fullerton suffers from idiopathic pulmonary fibrosis and not from chronic hypersensitivity pneumonitis resulting from TDI exposure at work. The Supreme Court of Appeals acknowledged that Mr. Fullerton demonstrated that he worked in an area where TDI was present but he did not establish that he was exposed to the chemicals and that he developed a disease because of his exposure. For the reasons stated, the Supreme Court of Appeals found that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed. The case is FRANK D. FULLERTON, Claimant Below, Petitioner, v. BAYER CORPORATION, Employer Below, Respondent, NO. 12-0980 (W. Va. Sup. App.). A full-text copy of the Decision is available at http://is.gd/ub3hfNfrom Leagle.com. ASBESTOS UPDATE: NY Court Affirms Jury Verdict in "Suttner" Suit ---------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, Fourth Department, unanimously affirmed the judgment of the Supreme Court, Erie County, entered on April 15, 2013, which judgment awarded the plaintiff money damages against defendant Crane Co. upon a jury verdict. The case is IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION relating to JOANN H. SUTTNER, EXECUTRIX OF THE ESTATE OF GERALD W. SUTTNER, DECEASED, PLAINTIFF-RESPONDENT, v. A.W. CHESTERTON COMPANY, ET AL., DEFENDANTS, AND CRANE CO., DEFENDANT-APPELLANT, 206 CA 13-01373 (N.Y. App. Div.). A full-text copy of the Order dated March 21, 2014, is available at http://is.gd/GKaVfOfrom Leagle.com. Michael J. Ross, Esq. -- michael.ross@klgates.com -- K & L GATES LLP, in Pittsburgh, Pennsylvania, for Defendant-Appellant. John N. Lipsitz, Esq. -- JNL@lipsitzponterio.com -- at Lipsitz & Ponterio, LLC, in Buffalo, New York, for Plaintiff-Respondent. ASBESTOS UPDATE: Opinion in "Scott" Suit Modified ------------------------------------------------- The Court of Appeals of California, First District, Division One, modified its opinion dated March 26, 2014, in the asbestos- related personal injury lawsuit captioned PATRICK SCOTT et al., Plaintiffs and Appellants, v. FORD MOTOR COMPANY, Defendant and Appellant, NO. A137975 (Cal. App.), to add certain language. There is no change in judgment in the modified opinion. A full- text copy of the modified opinion dated April 23, 2014, is available at http://is.gd/Cyutvffrom Leagle.com. Joseph D. Satterley, Esq., Dianna Lyons, Esq., Justin A. Bosl, Esq., Ted W. Pelletier, Esq., and Michael T. Stewart, Esq., at Kazan, McClain, Satterley, Lyons, Greenwood & Oberman, in Oakland, California, for Plaintiffs and Appellants Patrick Scott and Sharon Scott. Ronald Frank Lopez, Esq. -- rflopez@nixonpeabody.com -- Ross M. Petty, Esq. -- rpetty@nixonpeabody.com -- at Nixon Peabody; Daniel P. Collins, Esq. -- Daniel.Collins@mto.com -- and Nicholas C. Soltman, Esq. -- Nicholas.Soltman@mto.com -- at Munger, Tolles & Olson; and Eric C. Tew, Esq. -- etew@dykema.com -- at Dykema Gossett, for Defendant and Appellant Ford Motor Company. The Product Liability Advisory Council, Inc., Hugh F. Young, Jr.; Snell & Wilmer and Mary-Christine Sungaila as Amici Curiae on behalf of Defendant and Appellant Ford Motor Company. ASBESTOS UPDATE: Borden Denied Summary Judgment in "Proctor" Suit ----------------------------------------------------------------- Judge Sherry Klein Heitler of the Supreme Court, New York County, in a decision and order dated March 31, 2014, denied Borden Chemical, Inc.'s motion for summary judgment in the asbestos personal injury action styled JAMES AUGUSTUS PROCTOR and JOY C. PROCTOR, Plaintiffs, v. ALCOA, INC., et al, Defendants, NO. 190040/13, MOTION SEQ. 006 (N.Y. Sup.), after finding that Mr. Proctor's testimony regarding exposure to a Borden product is sufficient to raise an issue of fact with respect to the defendant's liability. A full-text copy of Judge Heitler's Decision is available at http://is.gd/ifjWn5from Leagle.com. ASBESTOS UPDATE: Magistrate Judge Recommends Remand of PI Suit -------------------------------------------------------------- Magistrate Judge Sherry R. Fallon of the United States District Court for the District of Delaware recommended that the Motion to Remand in the diversity asbestos-related personal injury action styled ORALIA STONE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF THOMAS O. STONE, Plaintiff, v. ASBESTOS CORPORATION LTD., et al., Defendants, CIVIL ACTION NO. 13-470- SLR-SRF (D.Del.), be granted, after finding that Foster Wheeler Energy Corporation, which removed the lawsuit, fails to explain how the identification of a specific vessel goes further than the pleadings to convey that Mr. Stone performed work on Foster Wheeler naval marine boilers at the direction of a federal officer. A full-text copy of the magistrate judge's report and recommendation dated March 18, 2014, is available at http://is.gd/uiji2Bfrom Leagle.com. Oralia Stone, Plaintiff, represented by Diane M. Coffey, Esq. -- DCoffey@NapoliBern.com -- at Napoli Bern Ripka Shkolnik & Associates LLP. Asbestos Corporation Ltd., Defendant, Cross Claimant, and Cross Defendant, represented by Bernadette M. Plaza, Esq. -- bplaza@goldfeinlaw.com -- and Willard F. Preston, III, Esq. -- wpreston@goldfeinlaw.com -- at Goldfein & Joseph. Certain-Teed Corporation, Defendant and Cross Defendant, represented by Beth E. Valocchi, Esq., at Swartz Campbell LLC. Crane Co., Defendant and Cross Defendant, represented by Nicholas E. Skiles, Esq., at Swartz Campbell LLC. Crown Cork & Seal Company Inc., Defendant and Cross Defendant, represented by Andrew G. Ahern, III, Esq., and Joseph W. Benson, Esq. Dana Companies LLC, Defendant and Cross Defendant, represented by Beth E. Valocchi, Esq., at Swartz Campbell LLC. Ford Motor Company, Defendant, Cross Claimant and Cross Defendant, represented by Christian J. Singewald, Esq. -- singewaldc@whiteandwilliams.com -- at White & Williams. Foster Wheeler Energy Corporation, Defendant and Cross Defendant, represented by Beth E. Valocchi, Esq., at Swartz Campbell LLC. General Electric Company, Defendant and General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Esq., at Swartz Campbell LLC. Goulds Pumps Inc., Defendant, represented by Robert S. Goldman, Phillips, Esq., at Goldman & Spence, P.A.. IMO Industries Inc., Defendant and Cross Defendant, represented by Eileen M. Ford, Esq. -- eford@moodklaw.com -- and Megan Trocki Mantzavinos, Esq. -- mmantzavinos@moodklaw.com -- at Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. Ingersoll-Rand Company, Defendant and Cross Defendant, represented by Jessica Lee Tyler, Esq. -- JLTyler@mdwcg.com -- at Marshall, Dennehey, Warner, Coleman & Goggin. John Crane Inc., Defendant and Cross Defendant, represented by Jonathan L. Parshall, Esq., at Murphy, Spadaro & Landon. Union Carbide Corporation, Defendant and Cross Defendant, represented by Beth E. Valocchi, Esq., at Swartz Campbell LLC. Warren Pumps LLC, Defendant and Cross Defendant, represented by Ana Marina McCann, Esq. -- ammccann@mdwcg.com -- at Marshall, Dennehey, Warner, Coleman & Goggin. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *