/raid1/www/Hosts/bankrupt/CAR_Public/140926.mbx
C L A S S A C T I O N R E P O R T E R
Friday, September 26, 2014, Vol. 16, No. 192
Headlines
AEG LIVE: Court Dismisses "Pollard" Case With Leave to Amend
ALLSTATE INSURANCE: Bid to Decertify "Perez" Case Denied
ALP LIQUIDATING: Defense of "Rothal v. Arvida/JMB" Suit Continues
ALP LIQUIDATING: Scottsdale Insurance Refiles Case in Fla. Court
ALP LIQUIDATING: Rothal Court to Handle Scottsdale Insurance Case
AMERICAN EAPPRAISEIT: "Spears" Case May Proceed as Class Action
AMERICAN HOME: Arbitrator Did Not Err in Kukla's Matrix Benefits
BEST BUY: MindSHIFT Employees' Suit Returns to State Court
CHICAGO, IL: "Bartlett" Suit Seeks to Recover Unpaid OT Wages
DIAGEO PLC: Court Approves Settlement of Thalidomide Litigation
FERRELLGAS PARTNERS: Bid to Submit Expert Report Gets Court Okay
FLOW INTERNATIONAL: Stull Stull & Brody Files Class Action
G.M. HOLDINGS: Suit Seeks to Recover Unpaid Wages & Damages
GENERAL MOTORS: New GM Not Liable for "Castillo" Settlement
GENVEC INC: "Satish Shah" Plaintiffs Not Appealing Case Dismissal
GENVEC INC: Motions to Junk New "Garnitschnig" Suit Still Pending
GOODYEAR TIRE: Judge Allows Class Action Notice Online Ad
HEWLETT-PACKARD: Court Dismisses "Ferranti" Class Action
HOME DEPOT: Sued Over Failure to Secure Customer's Personal Info
HOME DEPOT: Judge Certifies Class in Suit Over Vinyl Guardrails
IAC/INTERACTIVE CORP: Suppresses Employee Wages, Suit Claims
ING LIFE: Seeks Approval for $15 Million ERISA Suit Settlement
INSYS THERAPEUTICS: Consolidation Sought in Ariz. Securities Suit
INTERFAITH NUTRITION: Faces "Walker" Suit Over Failure to Pay OT
JANSSEN PHARMA: Fights Chicago's Painkiller Info Disclosure Bid
JOHNS HOPKINS: Judge Approves $190-Mil. Class Action Settlement
MAGNUM HUNTER: Defends Appeal From Dismissal of Securities Suit
MARSHALL ETC: "Stewart" Suit Seeks to Recover Unpaid Overtime
METROPOLITAN PROPERTY: Balks at Homeowner Labor Cost Class Action
METROPOLITAN TRANSPORTATION: Wins Favorable Ruling in Angus Case
MORGAN STANLEY: Settles Suit Over Mortgage Pass-Through Cert.
MORGAN STANLEY: MS&Co. Settles "Ge Dandong" Lawsuit in N.Y.
MORTON GROVE: State High Court Nixes Appeal in Drug Labeling Suit
MOY TOY: Tenn. Court Remands Eagles Nest Case to Chancery Court
NEW YORK: Prelim. Injunction Bid in Suit vs. Health Dept. Denied
NEW YORK HEALTH: Class Cert. Bid in Home Attendants' Suit Okayed
NEWFOUNDLAND & LABRADOR: Judge Tosses Moose Collision Class Suit
OCWEN FINANCIAL: Sued in D.V.I Over Misleading Financial Reports
OCWEN LOAN: Wins Dismissal of Amended "Heald" Class Action
PHILIP MORRIS: $8,901 to be Taxed Against Caronia Suit Plaintiffs
PDC ENERGY: Settles Class Action Over Inadequate Disclosure
R.A.B. FOOD: Falsely Marketed Food Products, "Pekarsky" Suit Says
RADIOSHACK CORP: 7th Cir. Issues Ruling on Two FACTA Cases
RELAXATION SPA: Faces "Zhong" Suit Over Failure to Pay OT Wages
ROSCIOLI YACHTING: Fails to Pay Overtime Hours, "Rand" Suit Says
SEARS HOLDINGS: Continues to Defend Wage and Hour Class Suits
SEARS HOLDINGS: Still Defends Environmental and Asbestos Claims
SHERWOOD LANDSCAPING: Court Tosses Bid to Dismiss FLSA Suit
SWEETWATER UNION: Court Upholds Title IX Class Action Ruling
SYNGENTA AG: Faces Class Action Over Genetically Modified Corn
TARGET CORPORATION: Wins Final Approval of "Bernardino" Suit Deal
TD BANK: Sued Over Failure to Disclose Foreign Currency Fee
TEDDY'S TRANSPORTATION: Suit Seeks to Recover Unpaid Overtime
THAI BASIL: Faces "Felix" Suit Over Failure to Pay Overtime Wages
TORONTO-DOMINION: Canada Supreme Court Upholds Punitive Damages
TOSHIBA AMERICA: Pierce-Nunes Case Transferred to CDCA Court
TRAVELCENTERS OF AMERICA: Defends Remaining Motor Fuel Temp. Suit
TRAVELCENTERS OF AMERICA: Has Final OK of Truck Stop Owners' Deal
TUESDAY MORNING: Awaits October 9 Hearing on "Randell" Suit Deal
UNITED AIR: Dist. Judge Denies Motion to Dismiss DPWN Case
US FOODS: Pricing Suit Settlement for Final Hearing in 2014/2015
WHIRLPOOL CORP: Trial in Washer Class Action to Begin Oct. 7
WONDERFUL PARADISE: Faces "Villardi" Suit Over Failure to Pay OT
YELP INC: Case Management Conference in Curry Suit Moved to April
Asbestos Litigation
ASBESTOS UPDATE: Enpro's GST Accrues $280.5MM Fibro Liability
ASBESTOS UPDATE: U.S. Auto Parts Units Continue to Defend Suit
ASBESTOS UPDATE: Rexnord Continues to Defend Stearns PI Suits
ASBESTOS UPDATE: Rexnord's Prager Unit Continues to Defend Suits
ASBESTOS UPDATE: Rexnord's Zurn Has 7,000 Pending PI Suits
ASBESTOS UPDATE: Rexnord Continues to Defend Falk PI Suits
ASBESTOS UPDATE: Transocean Unit Facing 851 PI Suits at June 30
ASBESTOS UPDATE: Transocean Units Have 15 Suits in Mississippi
ASBESTOS UPDATE: Transocean Units Have 4 Suits in Louisiana
ASBESTOS UPDATE: Watts Water Obtains Dismissal of 47 PI Suits
ASBESTOS UPDATE: ConEdison Records $8MM Liability for Fibro Suits
ASBESTOS UPDATE: CECONY Has $7MM Liability for Fibro Suits
ASBESTOS UPDATE: ConEdison Has $50MM Liability for 2007 Rupture
ASBESTOS ALERT: NRG May Be Subject to EME Fibro Liabilities
ASBESTOS UPDATE: Foster Wheeler Has 124,380 Open U.S. Claims
ASBESTOS UPDATE: Foster Wheeler Has 279 Open U.K. Claims
ASBESTOS UPDATE: Duke Energy Unit Has $600-Mil. Fibro Reserves
ASBESTOS UPDATE: MeadWestvaco Corp. Has 550 Fibro Suits
ASBESTOS UPDATE: Manitex Int'l. Continues to Defend Fibro Suits
ASBESTOS UPDATE: Houston Wire Continues to Defend PI Suits
ASBESTOS UPDATE: Steel Partners Unit Has 1,286 Fibro Claims
ASBESTOS UPDATE: HII Continues to Defend Fibro-related Suits
ASBESTOS UPDATE: Mallinckrodt Had 11,800 Pending Fibro Cases
ASBESTOS UPDATE: CECO Has 186 Fibro-related Suits at June 30
ASBESTOS UPDATE: Harsco Corp. Had 17,458 Pending PI Claims
ASBESTOS UPDATE: NL Industries Continues to Defend Coverage Suits
ASBESTOS UPDATE: NL Industries Has 1,130 Personal Injury Cases
ASBESTOS UPDATE: Ariz. Court Allows "Folsom" Suit to Proceed
ASBESTOS UPDATE: Pa. Court Summarily Dismisses Inmate's Suit
ASBESTOS UPDATE: 288 Defendants Dropped from MARDOC Docket
ASBESTOS UPDATE: NY Court Denies Bid to Dismiss "Rau" Suit
ASBESTOS UPDATE: Insurers Can Still Appeal Plant Insulation Plan
ASBESTOS UPDATE: Ariz. Court Allows Inmate to Proceed with Suit
ASBESTOS UPDATE: Court Consolidates NYCAL Cases for Trial
ASBESTOS UPDATE: Appeal in "Logan" Suit Withdrawn
ASBESTOS UPDATE: Ariz. Court Allows "Perez" Suit to Proceed
ASBESTOS UPDATE: Kaiser's Bid to Dismiss PI Suit Partially OK'd
ASBESTOS UPDATE: Ind. App. Affirms Ruling in "Ragon" Suit
ASBESTOS UPDATE: Ariz. Court Allows "Sanchez" Suit to Proceed
ASBESTOS UPDATE: Utah Court Grants Limine Motions in PI Suit
ASBESTOS UPDATE: La. Court Partially Affirms "Luna" Ruling
*********
AEG LIVE: Court Dismisses "Pollard" Case With Leave to Amend
------------------------------------------------------------
District Judge Stanley R. Chesler granted a motion to dismiss the
case captioned JESSICA POLLARD, on behalf of herself and the
putative class, Plaintiff, v. AEG LIVE, LLC, AEG LIVE NJ, LLC,
CONCERTS WEST, Defendants, CIVIL ACTION NO. 14-1155 (SRC), (D.
N.J.) but granted the Plaintiff leave to file a further amended
complaint.
The lawsuit arose out of the marketing and sale of tickets to a
Bon Jovi concert held at MetLife Stadium in East Rutherford, New
Jersey and to a Justin Bieber concert held at the Prudential
Center in Newark, New Jersey. It implicates a provision of the New
Jersey Consumer Fraud Act (NJCFA) that limits how many tickets to
concerts may be withheld from sale to the general public.
The Defendants filed a motion to dismiss the Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court
granted the Defendants' motion to dismiss the NJCFA claims without
prejudice and the unjust enrichment claim with prejudice. Leave to
replead the NJCFA claims was granted.
A copy of Judge Chesler's September 16, 2014 opinion is available
at http://is.gd/4273zzfrom Leagle.com.
JESSICA POLLARD, Plaintiff, represented by BRUCE HELLER NAGEL --
bnagel@nagelrice.com -- NAGEL RICE, LLP & GREG MICHAEL KOHN --
gkohn@nagelrice.com -- Nagel Rice, LLP.
AEG LIVE, LLC, Defendant, represented by JAMES S. RICHTER --
jrichter@winston.com -- WINSTON & STRAWN, LLP & JEFFREY P.
CATENACCI -- jcatenacci@winston.com -- WINSTON & STRAWN LLP.
AEG LIVE NJ, LLC, Defendant, represented by JAMES S. RICHTER,
WINSTON & STRAWN, LLP & JEFFREY P. CATENACCI, WINSTON & STRAWN
LLP.
CONCERTS WEST, Defendant, represented by JAMES S. RICHTER, WINSTON
& STRAWN, LLP & JEFFREY P. CATENACCI, WINSTON & STRAWN LLP.
ALLSTATE INSURANCE: Bid to Decertify "Perez" Case Denied
--------------------------------------------------------
In MARIA VICTORIA PEREZ AND KAELA R.M. BROWN, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. ALLSTATE
INSURANCE COMPANY, Defendant, CASE 2:11-CV-01812-JFB-AKT, (
E.D. N.Y.), the Court conditionally certified on June 26, 2012, a
Fair Labor Standards Act (FLSA) collective of similarly situated
plaintiffs by granting plaintiffs' motion for court-authorized
notice. Since then, 93 additional individuals have consented to
become members of a FLSA collective in this action.
Presently before the Court are two motions: (1) the defendant's
motion to decertify the FLSA collective; and (2) the plaintiffs'
motion for class certification of their NYLL claims pursuant to
Federal Rule of Civil Procedure 23.
District Judge Joseph F. Bianco, in a memorandum and order dated
September 16, 2014, a copy of which is available at
http://is.gd/LFaPm1from Leagle.com, denied the defendant's motion
to decertify the FLSA collective and granted the plaintiffs'
motion for class certification.
The Court also granted the plaintiffs' motion to appoint Outten &
Golden LLP as class counsel.
Plaintiffs are represented by Juno Turner --
jturner@outtengolden.com -- Justin Mitchell Swartz --
jms@outtengolden.com -- Michael Joseph Scimone --
mscimone@outtengolden.com -- Ossai Miazad --
omiazad@outtengolden.com -- and Sally J. Abrahamson --
sabrahamson@outtengolden.com -- of Outten & Golden LLP, New York,
NY.
Defendant is represented by Hema Chatlani --
hema.chatlani@ogletreedeakins.com -- John T. Anthony --
janthony@seyfarth.com -- and Robert Steven Whitman --
rwhitman@seyfarth.com -- of Seyfarth Shaw LLP, New York, NY.
ALP LIQUIDATING: Defense of "Rothal v. Arvida/JMB" Suit Continues
-----------------------------------------------------------------
The defense is proceeding in the case Rothal v. Arvida/JMB
Partners Ltd. et al., Case No. 03-10709 CACE 12, which arises out
of alleged construction defects occurring during the development
of Camellia Island in Weston, according to ALP Liquidating Trust's
Aug. 12, 2014, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2014.
The Partnership, the General Partner and certain related parties
as well as other unrelated parties have been named defendants in
an action entitled Rothal v. Arvida/JMB Partners Ltd. et al., Case
No. 03-10709 CACE 12, filed in the Circuit Court of the 17th
Judicial Circuit in and for Broward County, Florida. In this suit
that was originally filed on or about June 20, 2003, plaintiffs
purport to bring a class action allegedly arising out of
construction defects occurring during the development of Camellia
Island in Weston, which has approximately 150 homes.
On May 9, 2005, plaintiffs filed a nine count second amended
complaint seeking unspecified general damages, special damages,
statutory damages, prejudgment and post-judgment interest, costs,
attorneys' fees, and such other relief as the court may deem just
and proper. Plaintiffs complain, among other things, that the
homes were not adequately built, that the homes were not built in
conformity with the South Florida Building Code and plans on file
with Broward County, Florida, that the roofs were not properly
attached or were inadequate, that the truss systems and
installation thereof were improper, and that the homes suffer from
improper shutter storm protection systems. Plaintiffs have filed a
motion to expand the class to include other homes in Weston. The
motion to expand the class was withdrawn. The case went to
mediation on March 11, 2010. The case did not settle.
The Arvida defendants have filed their answer to the amended
complaint. The Arvida defendants believe that they have
meritorious defenses and intend to vigorously defend themselves.
The court concluded its hearings on the motion to certify the
class covering the homes in Camellia Island and certified the
class by order dated September 16, 2010. On October 15, 2010, the
Partnership filed its notice of appeal challenging the
certification order. On June 1, 2011, the appellate court affirmed
the trial court's order certifying the class. The case has been
returned to the trial court for further proceedings including
trial. A further mediation was held on August 13, 2013 and no
settlement was reached. The court struck the May 2014 trial date
with no new trial date set. The defense of the case is proceeding.
The Partnership intends to vigorously defend itself. The
Partnership is not able to determine what, if any, loss exposure
that it may have for this matter. This case has been tendered to
one of the Partnership's insurance carriers, Zurich American
Insurance Company (together with its affiliates collectively,
"Zurich"), for defense and indemnity. Zurich is providing a
defense of this matter under a purported reservation of rights.
The Partnership has also engaged other counsel in connection with
this lawsuit. The ultimate legal and financial liability of the
Partnership, if any, in this matter cannot be estimated with
certainty at this time. The Partnership is unable to determine the
ultimate portion of the expenses, fees and damages, if any, which
will be covered by its insurance.
ALP LIQUIDATING: Scottsdale Insurance Refiles Case in Fla. Court
----------------------------------------------------------------
The case Scottsdale Insurance Company v. Richard Rothal et al,
Case No. 11-61732-civ-dimitrouleas has been closed and Scottsdale
re-filed its case in Florida state court, according to ALP
Liquidating Trust's Aug. 12, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2014.
On August 4, 2011, the Partnership was sued in a case entitled,
Scottsdale Insurance Company v. Richard Rothal et al, Case No. 11-
61732-civ-dimitrouleas, in the United States District Court,
Southern District of Florida, Fort Lauderdale Division. In the
complaint, Scottsdale Insurance Company ("Scottsdale"), an alleged
insurer of Waterproofing Systems of Miami, Inc. ("Waterproofing"),
brings an action for declaratory relief against, among others,
Waterproofing, the class certified in the Rothal action and the
Partnership, seeking a declaration of its rights and obligations
to, among others, Waterproofing, the class certified in Rothal and
Arvida in connection with two policies it allegedly issued. The
Partnership filed a motion to dismiss Arvida from this case and it
was granted. This federal case has been closed and Scottsdale re-
filed its case in Florida state court.
ALP LIQUIDATING: Rothal Court to Handle Scottsdale Insurance Case
-----------------------------------------------------------------
The case Scottsdale Insurance Company v. Richard Rothal, et al.,
Case No. 2012-CA-03451 has been transferred to the trial court
handling the Rothal action case Rothal v. Arvida/JMB Partners Ltd.
et al., Case No. 03-10709 CACE 12, according to ALP Liquidating
Trust's Aug. 12, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2014.
On January 19, 2012, the Partnership was sued in a case entitled,
Scottsdale Insurance Company v. Richard Rothal, et al., Case No.
2012-CA-03451, in the Circuit Court of the Seventeenth Circuit in
and for Broward County, Florida, Complex Litigation Unit. In this
case, Scottsdale Insurance Company ("Scottsdale"), an alleged
insurer of Waterproofing Systems of Miami, Inc. ("Waterproofing"),
seeks a declaratory judgment against, among others, Waterproofing,
the class certified in the Rothal action and the Partnership,
seeking a declaration of Scottsdale's rights and obligations under
two commercial general liability policies it allegedly issued over
the years May 29, 2000 to May 29, 2002. The case has been
transferred from the complex litigation unit to the trial court
handling the Rothal action. The declaration in this case seeks to
affect the rights that Waterproofing, Rothal, and the Partnership
may have in these policies. On or about August 29, 2012, the
Partnership filed an answer, affirmative defenses and a
counterclaim seeking, among other things, defense and indemnity in
connection with the Rothal action.
AMERICAN EAPPRAISEIT: "Spears" Case May Proceed as Class Action
---------------------------------------------------------------
In the certified class action captioned FELTON A. SPEARS, JR. and
SIDNEY SCHOLL, on behalf of themselves and all others similarly
situated, Plaintiffs, v. FIRST AMERICAN EAPPRAISEIT (a/k/a
eAppraiseIT, LLC), a Delaware limited liability company,
Defendant, CASE NO. 5-08-CV-00868-RMW, (N.D. Cal.), the
plaintiffs seek to show that defendant First American eAppraiseIT
(EA) violated Section 8(a) of the Real Estate Settlement
Procedures Act (RESPA), 12 U.S.C. Section 2607(a), by agreeing
with Washington Mutual Bank (WMB) to provide inflated home
appraisals in exchange for business referrals.
The parties have brought these motions before the court:
* Defendant's Motion for Summary Judgment;
* Plaintiffs' Motion for Summary Judgment on Defendant's
Affirmative Defenses;
* Plaintiffs' Motion for Bifurcation;
* Defendant's Motion to Decertify; and
* Defendant's Motion to Strike Supplemental Expert Reports.
District Judge Ronald M. Whyte, in an order dated September 16,
2014, a copy is available at http://is.gd/2eG2onfrom Leagle.com,
allowed the case to proceed as a class action, and bifurcated the
question of whether EA appraisals were inflated in the aggregate
as a result of an agreement between WMB and EA from the question,
if it is reached, of what damages were suffered by plaintiffs.
Judge White said, "At present, the court tentatively envisions the
case proceeding as follows: the issue of whether there was
inflation of appraisals on an aggregate basis as a result of an
agreement between WMB and EA will be bifurcated and tried in
accordance with the current trial schedule. The amount of class
damages, either in total or on an individual basis, will not be
determined as part of the bifurcated issue. If plaintiffs prevail
on the bifurcated issue, potential class members will submit
verified claims confirming that they paid the appraisal fee, the
amount of the appraisal fee, and the RESPA status of their loan.
Concurrently, plaintiffs may obtain the HUD-1 forms from Chase.
Then, the parties will review the claim forms and any newly
submitted HUD-1 forms, and determine which, if any, claims of the
putative class members require further investigation to determine
their eligibility for recovery. Although the defendant believes
that this process will swallow the entire litigation, the court is
not convinced that an overwhelming number of putative class
members' claims will require further investigation beyond the
claim form. For those class members submitting claims that
defendant wishes to challenge or further investigate, the court
will hold proceedings, if requested, to determine their
eligibility. Thus, questions of individual damages and eligibility
will be reviewed on a claim-by-claim basis, preserving EA's
rights."
Felton A Spears, Jr., Plaintiff, represented by Janet Lindner
Spielberg, Law Offices of Janet Lindner Spielberg, Joseph N.
Kravec, Jr., Feinstein Doyle Payne & Kravec, LLC, Michael D.
Braun, Braun Law Group, P.C., Ellen Mary M. Doyle, Feinstein Doyle
Payne & Kravec, LLC, Gretchen Freeman Cappio, Keller Rohrback,
LLP, Harry Williams, IV, Keller Rohrback L.L.P., Joel R. Hurt,
Feinstein Doyle Payne and Kravec, LLC, Khesraw Karmand, Keller
Rohrback LLP, Lynn Lincoln Sarko, Keller Rohrback L.L.P., McKean
James Evans, Feinstein Doyle Payne & Kravec, LLC, Tana Lin, Keller
Rohrback LLP & Wyatt A. Lison, Feinstein Doyle Payne & Kravec,
LLC.
Sidney Scholl, Plaintiff, represented by Michael D. Braun, Braun
Law Group, P.C., Ellen Mary M. Doyle, Feinstein Doyle Payne &
Kravec, LLC, Gretchen Freeman Cappio, Keller Rohrback, LLP & Harry
Williams, IV, Keller Rohrback L.L.P..
Sidney Scholl, Plaintiff, represented by Janet Lindner Spielberg,
Law Offices of Janet Lindner Spielberg, Joel R. Hurt, Feinstein
Doyle Payne and Kravec, LLC, Joseph N. Kravec, Jr., Feinstein
Doyle Payne & Kravec, LLC, Khesraw Karmand, Keller Rohrback LLP,
Lynn Lincoln Sarko, Keller Rohrback L.L.P., McKean James Evans,
Feinstein Doyle Payne & Kravec, LLC, Tana Lin, Keller Rohrback LLP
& Wyatt A. Lison, Feinstein Doyle Payne & Kravec, LLC.
Mr. Juan Bencosme, Plaintiff, represented by Michael D. Braun,
Braun Law Group, P.C., Janet Lindner Spielberg, Law Offices of
Janet Lindner Spielberg & Joseph N. Kravec, Jr., Feinstein Doyle
Payne & Kravec, LLC.
Mrs. Carmen Bencosme, Plaintiff, represented by Michael D. Braun,
Braun Law Group, P.C., Janet Lindner Spielberg, Law Offices of
Janet Lindner Spielberg & Joseph N. Kravec, Jr., Feinstein Doyle
Payne & Kravec, LLC.
First American Eappraiseit, Defendant, represented by Alvin
Matthew Ashley, Irell and Manella, LLP, John C. Hueston, IRELL &
MANELLA LLP, Justin Nathanael Owens, Irell and Manella LLP,
Allison Lauren Libeu, Irell and Manella LLP, Brian Clifton
Berggren, Irell and Manella LLP, Jeffrey Scott Wilkerson, Irell
and Manella LLP & John Charles Hueston, Irell and Manella LLP.
AMERICAN HOME: Arbitrator Did Not Err in Kukla's Matrix Benefits
----------------------------------------------------------------
In IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION, MDL DOCKET NO. 1203, NO. 99-20593,
(E.D. Penn.), Catherine M. Kukla, a class member under the Diet
Drug Nationwide Class Action Settlement Agreement with Wyeth, Inc.
seeks additional benefits from the AHP Settlement Trust. Under the
Settlement Agreement, Matrix Compensation Benefits are awarded to
compensate claimants for medical conditions caused by Pondimin((R)
or ReduxTM (Diet Drugs).
In April 2003, Ms. Kukla submitted a Green Form seeking severity
level II Matrix Benefits. She had not opted out of the Seventh
Amendment to the Settlement Agreement and was designated a
Category One class member. Her claim was subject to medical review
and was subsequently paid by the Seventh Amendment Fund
Administrator. In December 2010, when she was 81 years old, Ms.
Kukla experienced an alleged high-level matrix event. As a result,
in October 2011, she filed a Supplemental Green Form, signed by
Dr. Prakash Shah, in which she sought Level IV Matrix Benefits.
On October 26, 2011, the Trust denied Ms. Kukla's supplemental
claim. It found that the medical conditions described in the
Supplemental Green Form would entitle her to payment for Level IV
Matrix Benefits except for her age. The Trust determined that all
of the asserted high-level matrix events occurred when Ms. Kukla
was 81 years old. The matrices contained in the Settlement
Agreement set forth applicable benefits awards based upon the
severity of a claimant's injury and the claimant's age. While
these matrices contain age categories for claimants who were 79
years of age or younger at the time of their diagnosis or
qualifying event, they contain no age category for claimants 80 or
above. Based upon the lack of a provision in the matrices for
claimants over the age of 79, the Trust concluded that Ms. Kukla
was ineligible for Matrix Benefits stemming from the asserted
high-level event and issued a notice of administrative closure of
her claim.
On November 9, 2011, Ms. Kukla appealed the Trust's administrative
determination, and the court referred the matter to arbitration
pursuant to Section VI.C.4.h and VI.C.4.i of the Settlement
Agreement. In a report dated April 25, 2013, the Arbitrator
concurred with the Trust's determination on the basis that the
Settlement Agreement "states that a Claimant must be diagnosed
with the relevant Matrix Qualifying Events prior to the age of
80." Because she was 81 years old when she experienced the
qualifying events, the Arbitrator reasoned, Ms. Kukla was
ineligible for Matrix Benefits.
Ms. Kukla has appealed to the MDL court as permitted under the
Settlement Agreement.
District Judge Harvey Bartle ruled that the Arbitrator's
determination was not clearly erroneous as to his findings of
fact, and he did not err as to his conclusions of law. The Report
and Award of the Arbitrator is, therefore, affirmed.
A copy of Judge Bartle's September 16, 2014 memorandum is
available at http://is.gd/zLlq7Lfrom Leagle.com. The document
relates to Sheila Brown, et al. v. American Home Products
Corporation.
IN RE: DIET DRUGS (PHENTERMINE, FENFLURAMINE, DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION, IN RE:, represented by ANDREW A.
CHIRLS -- achirls@finemanlawfirm.com -- FINEMAN KREKSTEIN & HARRIS
PC, ARNOLD LEVIN -- alevin@lfsblaw.com -- LEVIN FISHBEIN SEDRAN &
BERMAN, GERALD COOPER KELL, U.S. DEPARTMENT OF JUSTICE, JOHN
FITZPATRICK -- jfitzpatrick@hdp.com -- HARNES DICKET PIERCE PLC,
JULES S. HENSHELL -- JHenshell@sogtlaw.com -- SEMANOFF ORMSKY
GREENBERG & TORCHIA LLC, ROBB W. PATRYK --
patryk@hugheshubbard.com -- HUGHES HUBBARD AND REED, ROBERT A.
LIMBACHER -- rlimbacher@gdldlaw.com -- Goodell, DeVries, Leech &
Dann LLP, ROBERT N. SPINELLI -- rspinelli@kjmsh.com -- KELLEY
JASONS MCGOWAN SPINELLI & HANNA, LLP, THEODORE V. MAYER --
ted.mayer@hugheshubbard.com -- HUGHES HUBBARD AND REED & RAND
NOLEN, FLEMING, NOLEN & JEZ LLP.
GREGORY P. MILLER, Special Master, represented by GREGORY P.
MILLER -- Gregory.Miller@dbr.com -- DRINKER BIDDLE & REATH LLP.
BEST BUY: MindSHIFT Employees' Suit Returns to State Court
----------------------------------------------------------
The class action lawsuit captioned Jorge Restrepo and Nicholas
Mattera, Individually and on behalf of other similarly situated
class members, Plaintiffs, v. Best Buy Co., Inc., Defendant, CIVIL
NO. 14-CV-2603 (JNE/JSM), (D. Minn.) was originally filed in
Minnesota state court against Best Buy on behalf of a class of
similarly situated MindSHIFT employees. The Plaintiffs claim an
anticipatory breach of contract and seek declaratory relief. Best
Buy removed to federal court and filed a motion to dismiss.
Plaintiffs filed a motion to remand to state court.
District Judge Joan N. Ericksen entered an order on September 16,
2014, a copy of which is available at http://is.gd/BB57G8from
Leagle.com, granting the Plaintiffs' Motion to Remand, and the
action is remanded to the District Court of Minnesota, Fourth
Judicial District, Hennepin County.
The Defendant's Motion to Dismiss was denied as moot.
Jorge Restrepo, Plaintiff, represented by George W Soule, Soule &
Stull LLC, Joel W Reese -- joel.reese@rgmfirm.com -- Reese Gordon
Marketos LLP, Joseph J Mastrogiovanni, Jr. -- jmastro@msandm.com -
- Mastrogiovanni Mersky & Flynn, P.C., Joshua M Russ --
josh.russ@rgmfirm.com -- Reese Gordon Marketos LLP & Kevin P
Curry, Soule & Stull LLC.
Nicholas Mattera, Plaintiff, represented by George W Soule, Soule
& Stull LLC, Joel W Reese, Reese Gordon Marketos LLP, Joseph J
Mastrogiovanni, Jr., Mastrogiovanni Mersky & Flynn, P.C., Joshua M
Russ, Reese Gordon Marketos LLP & Kevin P Curry, Soule & Stull
LLC.
Best Buy Co., Inc., Defendant, represented by Anne M Lockner --
amlockner@rkmc.com -- Robins Kaplan Miller & Ciresi LLP, Natalie
I. DeBoer -- nideboer@rkmc.com -- Robins Kaplan Miller & Ciresi
LLP, Jeffrey Sullivan Gleason -- jsgleason@rkmc.com -- Robins
Kaplan Miller & Ciresi LLP & Mitha V Rao -- mvrao@rkmc.com --
Robins Kaplan Miller & Ciresi LLP.
CHICAGO, IL: "Bartlett" Suit Seeks to Recover Unpaid OT Wages
-------------------------------------------------------------
Robert Bartlett, Individually and on behalf of other similarly
situated SWAT team members on the Chicago Police Department v.
City of Chicago, Case No. 1:14-cv-07225 (N.D. Ill., September 16,
2014), seeks to recover unpaid overtime compensation, liquidated
damages, costs, attorneys' fees, declaratory and injunctive
relief, and any such other relief pursuant to the Fair Labor
Standards Act.
The City of Chicago is a municipal corporation organized and
existing under the laws of the State of Illinois.
The Plaintiff is represented by:
Paul D. Geiger, Esq
LAW OFFICES OF PAUL D. GEIGER
540 W. Frontage Road, Suite 3020
Northfield, IL 60093
Telephone: (773) 410-0841
E-mail: pauldgeiger@gmail.com
DIAGEO PLC: Court Approves Settlement of Thalidomide Litigation
---------------------------------------------------------------
The Supreme Court of Victoria in Australia approved a settlement
reached in a suit against Diageo Scotland Limited, alleging
product liability and negligence for injuries arising from the
consumption of the drug thalidomide, according to DIAGEO plc's
Aug. 12, 2014, Form 20-F filing with the U.S. Securities and
Exchange Commission for the year ended June 30, 2014.
In Australia, class action claims alleging product liability and
negligence for injuries arising from the consumption of the drug
thalidomide were filed in the Supreme Court of Victoria against
Distillers Company (Biochemicals) Limited, its parent Diageo
Scotland Limited (formerly Distillers Company Limited), as well as
against Grunenthal GmbH, the developer of the drug (not a member
of the group).
On 18 July 2012 Diageo settled the claim of the lead claimant
Lynette Rowe and agreed a process to consider the remaining
claimants. As a result of that process, agreement was reached
between Diageo and the claimants, without admission of liability
by Diageo, to settle the class action claims for the sum of AU$89
million (GBP49 million) and AU$6.5 million (GBP4 million) in costs
which was charged to discontinued operations in the income
statement. The settlement was subsequently approved by the Supreme
Court of Victoria on 7 February 2014 and the class action claims
were dismissed. Grunenthal GmbH is not a party to the settlement.
FERRELLGAS PARTNERS: Bid to Submit Expert Report Gets Court Okay
----------------------------------------------------------------
Randy Howard, on behalf of himself and all others similarly
situated, seeks damages against Ferrellgas Partners, L.P.,
Ferrellgas, L.P., and Ferrellgas, Inc. for allegedly engaging in
unfair, unconscionable, deceptive, misleading, and unlawful
conduct in connection with the marketing and sale of propane and
related equipment and services. The case is before the court on
the Plaintiff's motion for leave to submit an expert report.
Chief District Judge J. Thomas Marten granted the request in a
memorandum and order dated September 16, 2014, a copy of which is
available at http://is.gd/gU0xvTfrom Leagle.com.
The case is RANDY HOWARD, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, v. FERRELLGAS PARTNERS, L.P.;
FERRELLGAS, L.P.; FERRELLGAS, INC.; and DOES 1 through 25,
Defendants, CASE NO. 2:10-CV-2555-JTM, (D. Kansas).
Randy Howard, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Helen I. Zeldes --
helenz@zhlaw.com -- Zeldes Haeggquist & Eck, LLP, Peggy J.
Wedgworth -- pwedgworth@milberg.com -- Milberg LLP, Aaron M. Olsen
-- aarono@zhlaw.com -- Zeldes & Haeggquist, LLP, Andrei V. Rado --
arado@milberg.com -- Milberg LLP, Charles Slidders --
cslidders@milberg.com -- Milberg LLP, Elizabeth S. Metcalf --
emetcalf@milberg.com -- Milberg LLP & R. Frederick Walters --
fwalters@wbsvlaw.com -- Walters Bender Strohbehn & Vaughan, P.C..
Ferrellgas Partners, LP, Defendant, represented by Rick E.
Frawley, Ferrellgas, LP, Robert M. Thompson --
rmthompson@bryancave.com -- Bryan Cave LLP, Craig S. O'Dear --
csodear@bryancave.com -- Bryan Cave LLP & Peter W. Herzog, III --
pwherzog@bryancave.com -- Bryan Cave LLP.
Ferrellgas, Inc., Defendant, represented by Rick E. Frawley,
Ferrellgas, LP, Robert M. Thompson, Bryan Cave LLP, Craig S.
O'Dear, Bryan Cave LLP & Peter W. Herzog, III, Bryan Cave LLP.
Ferrellgas LP, Defendant, represented by Rick E. Frawley,
Ferrellgas, LP, Robert M. Thompson, Bryan Cave LLP, Craig S.
O'Dear, Bryan Cave LLP & Peter W. Herzog, III, Bryan Cave LLP.
Does 1 through 25, Defendant, represented by Craig S. O'Dear,
Bryan Cave LLP & Peter W. Herzog, III, Bryan Cave LLP.
FLOW INTERNATIONAL: Stull Stull & Brody Files Class Action
----------------------------------------------------------
Stull, Stull & Brody on Sept. 19 filed a class action lawsuit on
behalf of all shareholders who owned stock of Flow International
Corporation on November 14, 2013 against Flow and its Board of
Directors in the United States District Court for Western District
of Washington.
The complaint charges that defendants violated Sections 14(a) and
20(a) of the Securities Exchange Act of 1934, and SEC Regulation
14a-9, by soliciting shareholder approval for a going private
transaction by way of a false and misleading proxy and
supplemental proxy, causing injury to Plaintiff and the Class.
Plaintiff seeks to recover damages on behalf of class members and
is represented by the law firm of Stull, Stull & Brody, which has
significant experience and expertise in prosecuting class actions
on behalf of investors and shareholders.
If you are a member of the class described above, you may, no
later than November 18, 2014, move the Court to serve as lead
plaintiff, if you so choose. In order to serve as lead plaintiff,
however, you must meet certain legal requirements.
A lead plaintiff is a representative party that acts on behalf of
other class members in directing the litigation. In order to be
appointed lead plaintiff, the Court must determine that the class
member's claim is typical of the claims of other class members,
and that the class member will adequately represent the class.
Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain Stull, Stull &
Brody, or other counsel of your choice, to serve as your counsel
in this action. Stull, Stull & Brody has litigated many class
actions for violations of securities laws in federal courts over
the past 30 years and has obtained court approval of substantial
settlements on numerous occasions. Stull, Stull & Brody maintains
offices in New York and Los Angeles.
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests with respect to
these matters, please contact Patrice L. Bishop at 888-388-4605 or
via e-mail at info@ssbla.com
You can also visit our website at www.ssbny.com
G.M. HOLDINGS: Suit Seeks to Recover Unpaid Wages & Damages
-----------------------------------------------------------
Jane Doe, On Behalf of Herself and All Others Similarly Situated
v. G.M. Holdings, Inc., 408, LLC, Brian M Hollywood, Sierra
Dennison, and Vincent Griffen, Case No. 1:14-cv-02933 (D. Md.,
September 16, 2014), seeks to recover unpaid wages and statutory
damages under the Fair Labor Standards Act.
The Defendants own and operate an exotic dance club known to the
public as Lust Gentlemen's Club in Baltimore, Maryland.
The Plaintiff is represented by:
Francis Christopher Lanasa, Esq.
Joseph Murtha, Esq.
MURTHA PSORAS & LANASA, LLC
Heaver Plaza Ste 200, 1301 York Rd Ste 200
Lutherville, MD 21093
Telephone: (410) 583-6969
Facsimile: (410) 583-4706
E-mail: lanasa@mmplegal.com
jmurtha@mpllawyers.com
GENERAL MOTORS: New GM Not Liable for "Castillo" Settlement
-----------------------------------------------------------
A three-judge panel of the U.S. Court of Appeals for the Second
Circuit -- comprised of Circuit Judges Dennis Jacobs and
Christopher F. Droney, and District Judge Lewis A. Kaplan, sitting
by designation -- upheld the lower courts' decision that New GM
did not assume liability for a settlement reached by Old GM
relating to a class action lawsuit.
The appeal arises out of an adversary proceeding related to the
Chapter 11 bankruptcy of Motors Liquidation Company, formerly
known as General Motors ("Old GM"). After Old GM filed for
bankruptcy, General Motors LLC ("New GM") purchased the majority
of Old GM's assets pursuant to Section 363 of the Bankruptcy Code.
Kelly Castillo et al. appeal from the judgment of the U.S.
District Court for the Southern District of New York (Furman, J.),
affirming the order of the U.S. Bankruptcy Court for the Southern
District of New York (Gerber, J.) holding that New GM did not
assume liability for a settlement reached between Castillo and Old
GM relating to a class action lawsuit filed in the Eastern
District of California.
Castillo's class action against Old GM alleged that the
transmissions of some 2002-2005 Saturn Vues and 2003-2004 Saturn
Ions were defectively designed and had high failure rates, and
sought compensation for transmissions that failed after the
warranty period. The class pleaded claims for relief based on
alleged violations of state consumer protection laws, breach of
express warranty, breach of implied warranty, and unjust
enrichment. In settlement, Old GM agreed to pay for repair of
transmissions that malfunctioned after the standard repair
warranty and to pay attorneys' fees.
The Second Circuit noted that the Sale Agreement between Old GM
and New GM specified the "Assumed Liabilities" that would be taken
on by New GM as follows: "all Liabilities arising under express
written warranties of Sellers that are specifically identified as
warranties and delivered in connection with the sale of new,
certified used, or pre-owned vehicles or new or remanufactured
motor vehicle parts and equipment."
A copy of the Second Circuit's Sept. 19 decision is available at
http://is.gd/haXjqhfrom Leagle.com.
ROBERT W. SCHMIEDER II (with Mark L. Brown on the brief), SL
Chapman LLC, St. Louis, MO., for Appellants.
ARTHUR JAY STEINBERG (with Gregory R. Oxford, Isaacs Clouse Crose
& Oxford LLP, Torrance, CA on the brief), King & Spalding LLP, New
York, NY, for Appellee.
GENVEC INC: "Satish Shah" Plaintiffs Not Appealing Case Dismissal
-----------------------------------------------------------------
Lead Plaintiffs in a suit originally filed as Satish Shah v.
GenVec, Inc., et al. Civil Action. No. 8:12 CV-00341-DKC, did not
file an appeal against the dismissal of the case, according to the
company's Aug. 12, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2014.
On February 3, 2012, a putative class action lawsuit captioned
Satish Shah v. GenVec, Inc., et al. Civil Action. No. 8:12 CV-
00341-DKC was commenced in the United States District Court for
the District of Maryland against the Company, Paul H. Fischer,
Douglas J. Swirsky and Mark O. Thornton. Following appointment of
a Lead Plaintiff group in April 2012, Lead Plaintiffs filed a
pleading titled Amended Class Action Complaint for Violations of
the Federal Securities Laws on July 6, 2012 (the Amended
Complaint). In the Amended Complaint, Lead Plaintiffs asserted
claims, purportedly on behalf of a class of persons who had
purchased or acquired Company common stock between March 12, 2009
and March 30, 2010 (the Class Period), that the Company and the
individual defendants had violated Section 10(b) of the Securities
Exchange Act of 1934 (the Exchange Act), Rule 10b-5 promulgated
thereunder, and Section 20(a) of the Exchange Act. Lead Plaintiffs
alleged generally that defendants had made materially false or
misleading statements or omissions concerning the prospects for
the Company's leading product candidate at the time, TNFerade, and
the outcome of the then-ongoing clinical trial for TNFerade. Lead
Plaintiffs alleged that these misrepresentations resulted in the
Company's common stock trading at artificially inflated prices
throughout the Class Period. Lead Plaintiffs sought unspecified
damages.
On September 4, 2012, the Company and the individual defendants
moved to dismiss the Amended Complaint in its entirety for failure
to state a claim upon which relief can be granted. On September
20, 2013, the Court granted this motion and dismissed the case in
its entirety and with prejudice. Lead Plaintiffs did not file an
appeal.
GENVEC INC: Motions to Junk New "Garnitschnig" Suit Still Pending
-----------------------------------------------------------------
Motions to dismiss an Amended Complaint in a suit filed by the
plaintiff in Garnitschnig v. Horovitz, et al. against GenVec, Inc.
have been fully briefed and remain pending, according to GenVec's
Aug. 12, 2014, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2014.
On March 12, 2012, a putative shareholder derivative action was
commenced in the United States District Court for the District of
Maryland against certain current and former members of the
company's Board of Directors and the Company as a nominal
defendant. The case is styled Garnitschnig v. Horovitz, et al. and
generally arose out of the matters alleged to underlie the
securities action. The plaintiff, who purported to bring the
action derivatively on behalf of the Company, alleged that the
defendants violated their fiduciary duties, wasted corporate
assets and were unjustly enriched by the receipt of compensation
while serving as the company's directors. More particularly, the
plaintiff's Complaint alleged that as a result of the defendants'
failure of oversight, the company disseminated misleading public
statements and improperly continued with a clinical trial. While
the Garnitschnig action did not seek a monetary recovery against
the Company, plaintiff sought, among other things, an unspecified
award of damages against the defendants, an order directing the
company to make certain changes to the company's corporate
governance and oversight procedures, disgorgement by the
defendants of compensation and an award of attorneys' fees.
Pursuant to the Court's order dated April 5, 2013, the
Garnitschnig case was stayed pending a decision on the motions to
dismiss filed in the Shah action. On October 2, 2013, the parties
entered into a stipulation confirming that the stay of the
Garnitschnig action was lifted and providing that, if the
plaintiff elected to continue with the action, he would file an
Amended Complaint on or before November 26, 2013.
On November 1, 2013, the plaintiff in the Garnitschnig action
filed an Amended Verified Shareholder Derivative and Class Action
Complaint (the "Amended Complaint") that supersedes the previous
Complaint and now asserts claims for breach of fiduciary duty,
unjust enrichment, waste of corporate assets and alleged
violations of the duty of candor. The plaintiff, who now purports
to bring the Amended Complaint both derivatively and as a
shareholder class action, alleges that certain current and former
members of the Board of Directors exceeded their authority under
the Company's 2011 Omnibus Incentive Plan (the "2011 Plan") by
exceeding certain limits applicable to both stock options and
restricted stock. The Amended Complaint further alleges that
Company's Proxy Statement is materially false and misleading for
failing to disclose the alleged violations of the 2011 Plan. The
Amended Complaint seeks, among other things, an unspecified amount
of damages.
On November 1, 2013, the plaintiff in the Garnitschnig action also
filed a motion for preliminary injunction seeking to postpone the
Company's 2013 annual meeting unless and until certain disclosures
were made to the Company's shareholders regarding the 2011 Plan.
On November 20, 2013, the Court denied that motion in its
entirety. Defendants then filed motions to dismiss the Amended
Complaint on January 27, 2014. Those motions have been fully
briefed and remain pending.
GOODYEAR TIRE: Judge Allows Class Action Notice Online Ad
---------------------------------------------------------
Lisa Hoffman, writing for The National Law Journal, reports that a
Colorado federal judge has granted permission for notice of a
proposed class action against Goodyear Tire & Rubber Co. to be
displayed in an online banner advertisement that may be seen by 41
million viewers.
U.S. District Judge Brooke Jackson found on Sept. 9 that such an
ad would be proper to spread the word to potential class members
about Helmer v. Goodyear, a lawsuit alleging the company's Entran
3 radiant heating system is defective.
Goodyear had objected to such a sweeping notice, arguing that it
would give the unfounded impression that the Entran3 system is
causing widespread damage.
The judge disagreed, noting that even if Goodyear's fears were
well-founded, "I fail to see how that would affect the accuracy of
the notice or the due-process interests of alerting all potential
class members." The opinions of consumers who are not potential
class members are irrelevant, Jackson wrote, as long as they are
not potential jurors.
Even so, Judge Jackson continued, Goodyear may have cause to be
concerned that its image could take a hit in the mass-blast. To
avoid that, the judge directed that the ad not identify Goodyear.
"After all, it appears that Goodyear's name appears nowhere on the
Entran 3 tubing and that potential class members need not be
informed of Goodyear's connection to the product in order to
determine their membership in the class," Judge Jackson wrote.
The system consists of a special-purpose hose installed below
floors and outdoor pavement and in roofs to provide radiant
heating inside and to melt snow outside. The plaintiffs contend
the hose's design and materials are defective, causing them to
become hard and cracked. Leaks developed and damaged the rest of
the heating system, as well as floors, walls, ceilings and other
structures, the complaint alleges.
Goodyear has blamed any problems on improper installation or
maintenance, and has not recalled the hoses.
HEWLETT-PACKARD: Court Dismisses "Ferranti" Class Action
--------------------------------------------------------
District Judge Edward J. Davila dismissed the case captioned
VINCENT FERRANTI, individually and on behalf of all others
similarly situated, Plaintiff, v. HEWLETT-PACKARD COMPANY,
Defendant, CASE NO. 5:13-CV-03847-EJD, (N.D. Cal.).
Hewlett-Packard filed the motion to dismiss the plaintiffs' first
amended class action complaint.
"Plaintiffs have leave to amend and can file their second amended
complaint addressing the deficiencies stated herein no later than
15 days from the date of this order," wrote Judge Davila in his
order dated September 16, 2014, a copy of which is available at
http://is.gd/SeUg0pfrom Leagle.com.
"Because the complaint is presently dismissed in its entirety, the
court declines to set a case management schedule at this time.
However, the court will address scheduling issues as raised by the
parties should it become necessary," Judge Davila added.
Vincent Ferranti, Plaintiff, represented by Cynthia B. Chapman --
CBC@caddellchapman.com -- Caddell & Chapman, Michael A. Caddell--
mac@caddellchapman.com -- Caddell & Chapman & Cory Steven Fein.
Carlos Martinho, Plaintiff, represented by Cory Steven Fein --
csf@caddellchapman.com -- & Michael A. Caddell --
mac@caddellchapman.com -- Caddell & Chapman.
Hewlett-Packard Company, Defendant, represented by Aaron H Bloom
-- abloom@gibsondunn.com -- Gibson Dunn & Timothy William Loose --
tloose@gibsondunn.com -- Gibson, Dunn & Crutcher LLP.
HOME DEPOT: Sued Over Failure to Secure Customer's Personal Info
----------------------------------------------------------------
First Choice Federal Credit Union, individually and on behalf of a
class of similarly situated financial institution v. The Home
Depot, Inc., Case No. 1:14-cv-02975 (N.D. Ga., September 16,
2014), arises from the massive security breach beginning in
approximately April, 2014 and compromising the Defendant's store
customers' names, credit and debit card numbers, card expiration
dates, and card verification values, as well as the states and ZIP
codes of the stores associated with individual card transactions.
The Home Depot, Inc. owns and operates a chain of retail stores
that sell a wide variety of merchandise, including tools, home
goods, and construction supplies throughput the United States.
The Plaintiff is represented by:
Thomas A. Withers, Esq.
GILLEN WITHERS & LAKE, LLC
8 East Liberty Street
Savannah, GA 31412
Telephone: (912) 447-8400
Facsimile: (912) 233-6584
E-mail: twithers@gwllawfirm.com
- and -
Gary F. Lynch, Esq.
Edwin J. Kilpela, Esq.
Jamisen Etzel, Esq.
CARLSON LYNCH SWEET & KILPELA, LLP
PNC Park, 115 Federal Street, Suite 210
Pittsburgh, PA 15212
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
ekilpela@carlsonlynch.com
jetzel@carlsonlynch.com
- and -
Richard A. Lockridge, Esq.
Robert K. Shelquist, Esq.
Karen Hanson Riebel, Esq.
Heidi M. Silton, Esq.
Eric N. Linsk, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. S., Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: ralockridge@locklaw.com
rkshelquist@locklaw.com
khriebel@locklaw.com
hmsilton@locklaw.com
rnlinsk@locklaw.com
HOME DEPOT: Judge Certifies Class in Suit Over Vinyl Guardrails
---------------------------------------------------------------
Lisa Hoffman, writing for The National Law Journal, reports that
Home Depot USA Inc. cannot sink a class action aimed at the
company over allegations of defective outdoor railings simply by
arguing it does not keep records of individual customers, a Kansas
federal judge decided in certifying the class.
U.S. District Judge Daniel Crabtree of the District of Kansas
found no merit in Home Depot's argument that, because no list
exists of customers who purchased vinyl guardrails manufactured by
co-defendant Barrette Outdoor Living, Inc., there is no way to
ascertain who is a putative class member, which is a key building
block of a class action.
Otherwise, the lack of a list could serve as a get-out-of-court-
free card, Crabtree implied.
"Defendants argue that a retailer who sells defective products
could immunize itself from class certification by merely choosing
not to keep records of the people who bought the defective
product," the judge wrote in his Sept. 8 order in Nieberding v.
Barrette.
Crabtree suggested the plaintiffs could employ a common method for
cobbling together the class: Have consumers fill out a claim form
and supply a receipt. But while that may be a popular approach,
the issue of ascertaining class members is one that is percolating
within and between federal districts, where splits are developing
over the question.
In this case, Frederick Nieberding alleges that the Barrette
prefabricated vinyl guardrails he had purchased at Home Depot and
installed on a deck at his house were constructed with small
brackets made of PVC that were used to connect horizontal rails at
the top and bottom with the structure on which the railing is
attached. On June 9, 2011, Mr. Nieberding's son, Jonathan, fell
into the railing, which broke, and Jonathan fell two stories to
the ground, and suffered an unspecified injury.
Mr. Nieberding blamed faulty top brackets for the failure, calling
the PVC used to make the bracket defectively brittle, the
dimensions and shape of the bracket inadequate to withstand
anticipated forces, and the use of inadequate screws. Plaintiffs
allege the defendants engaged in unjust enrichment, unfair trade
practices, breach of warranty, negligence and failure to warn.
They seek actual and punitive damages.
Home Depot and Barrette have filed motions for partial summary
judgment, and contend the brackets and railings were suitable for
normal use, and the impact from Jonathan Nieberding's crash into
the railing was not normal use. They also question the skill of
Frederick Nieberding in installing the railing, which he told Home
Depot workers was intended for more of a decorative purpose than
for safety.
Plaintiffs are represented by The Popham Law Firm, PC; Ralston,
Pope & Diehl, LLC; and The Klamann Law Firm. Home Depot is
represented by King & Spalding LLP, and Barrette Outdoor Living,
Inc., is represented by Cremer Spina Shaughnessy Jansen & Siegert,
LLC; and Morrow, Willnauer, Klosterman & Church LLC.
IAC/INTERACTIVE CORP: Suppresses Employee Wages, Suit Claims
------------------------------------------------------------
Brad Greenspan, on behalf of himself and all others similarly
situated, v. IAC/InterActive Corp, a Delaware corporation, Google,
Inc., a Delaware corporation, News Corp, a Delaware corporation,
Geoff Yang, individually, and David Carlick, individually, Case
No. 5:14-cv-04187 (N.D. Cal., September 16, 2014), alleges that
the Defendants conspired not to actively solicit each other's
employees and to fix their employees' wage and salary ranges as
part of one overarching conspiracy to suppress the compensation
and rig the competitive process.
The Defendants own and operate several different websites.
The Plaintiff is represented by:
Tyler Jay Belong, Esq.
HOGUE AND BELONG
430 Nutmeg Street, Second Floor
San Diego, CA 92103
Telephone: (619) 238-4720
E-mail: tbelong@hoguebelonglaw.com
ING LIFE: Seeks Approval for $15 Million ERISA Suit Settlement
--------------------------------------------------------------
ING Life Insurance and Annuity Company and its subsidiaries are
seeking approval for a $15.0 million settlement of the suit filed
by Healthcare Strategies, Inc., Plan Administrator of the
Healthcare Strategies Inc. 401(k) Plan, according to ING's Aug.
12, 2014, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2014.
Litigation against the Company includes a case styled Healthcare
Strategies, Inc., Plan Administrator of the Healthcare Strategies
Inc. 401(k) Plan v. ING Life Insurance and Annuity Company
(U.S.D.C. D. CT, filed February 22, 2011), in which two sponsors
of 401(k) Plans governed by the Employee Retirement Income
Security Act ("ERISA") claim that ILIAC has entered into revenue
sharing agreements with mutual funds and others in violation of
the prohibited transaction rules of ERISA. Among other things, the
plaintiffs seek disgorgement of all revenue sharing payments and
profits earned in connection with such payments, an injunction
barring the practice of revenue sharing and attorney fees. On
September 26, 2012, the district court certified the case as a
class action in which the named plaintiffs represent approximately
15,000 similarly situated plan sponsors. On April 11, 2014, the
parties submitted to the court a motion for preliminary approval
of a settlement agreement under which ILIAC (ING Life Insurance
and Annuity Company), without admitting liability, would make a
payment to the class of approximately $15.0 million and adopt
certain changes in its disclosure practices. Final court approval
will be required before the settlement becomes effective.
INSYS THERAPEUTICS: Consolidation Sought in Ariz. Securities Suit
-----------------------------------------------------------------
The U.S. District Court for the District of Arizona has not yet
ruled on motions to consolidate two securities lawsuits filed
against Insys Therapeutics, Inc., according to the company's Aug.
12, 2014, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2014.
Between May 15 and May 19, 2014, two complaints (captioned Larson
v. Insys Therapeutics, Inc., Case No. 14-cv-01043-GMS) and (Li vs.
Insys Therapeutics, Inc., Case No 14-cv-01077-DGC) were filed in
the U.S. District Court for the District of Arizona ("Court")
against the company and certain of the company's current officers.
The complaints were brought as purported class actions, on behalf
of purchasers of the company's common stock. In general, they
allege that the defendants violated federal securities laws by
making intentionally false and misleading statements regarding the
company's business and operations, therefore artificially
inflating the price of the company's common stock. The plaintiffs
seek unspecified monetary damages and other relief. On July 14,
2014, several purported shareholders filed motions to consolidate
the two cases, appoint a lead plaintiff, and appoint lead counsel.
The Court has not yet ruled on these motions. In both cases, the
parties stipulated to extending defendants' deadline to respond to
the complaint until after the Court consolidates the actions and
appoints lead plaintiff and lead counsel. In the Li case, the
Court instructed defendants to respond to the initial complaint by
August 29th, 2014 or to propose a specific schedule for responding
to the complaint.
INTERFAITH NUTRITION: Faces "Walker" Suit Over Failure to Pay OT
----------------------------------------------------------------
Michael Walker and Nathaniel Walker, on behalf of themselves and
all others similarly situated v. The Interfaith Nutrition Network,
Inc. and Christian Aguilera, in his individual and professional
capacities, Case No. 2:14-cv-05419 (E.D.N.Y., September 16, 2014),
is brought against the Defendant for failure to pay overtime
compensation.
The Interfaith Nutrition Network, Inc. is an organization that
fights hunger and homelessness. Its principal place of business
is located at 211 Fulton Avenue, Hempstead, New York 11550.
The Plaintiff is represented by:
Todd Dickerson, Esq.
BORRELLI & ASSOCIATES
1010 Northern Boulevard, Suite 328
Great Neck, NY 11021
Telephone: (516) 248-5550
Facsimile: (516) 248-6027
E-mail: td@employmentlawyernewyork.com
JANSSEN PHARMA: Fights Chicago's Painkiller Info Disclosure Bid
---------------------------------------------------------------
Amaris Elliott-Engel, writing for The National Law Journal,
reports that two drugmakers say that the city of Chicago wants to
release materials it gathered from its investigation of opioid
painkillers in order to try its case in the media, not to comply
with Illinois' Freedom of Information Act.
Janssen Pharmaceuticals Inc. and Cephalon Inc. are two of the
defendants in the lawsuit Chicago is prosecuting against opioid
drugmakers. USA Today has requested some of the materials
Chicago's lawyers gathered in its pre-complaint investigation and
referenced in the city's complaint.
Janssen said the city's position that it needs to disclose its
investigative files in response to the FOIA request reflects a
"strategy of litigating this case in the media rather than in
court."
Releasing the document also will make the press a participant in
the discovery process, Janssen said. The drugmaker cited
persuasive authority from the U.S. Court of Appeals for the Second
Circuit in which that court has found that discovery rules take
precedent over FOIA rules for documents without a presumption of
public access.
Cephalon says it does not want its 2007 marketing plan for Fentora
to be disclosed because it reflects current business practices,
and it contains trade secrets and commercial and financial
information.
"The city's position appears to be motivated by an attempt to play
this case out in the press rather than litigate it in this court,"
Cephalon's counsel, Tinos Diamantatos --
tdiamantatos@morganlewis.com -- of Morgan, Lewis & Bockius LLP in
Chicago said in court papers. "Nowhere is that strategy more
evident than in the city's position with respect to Cephalon's
confidential marketing plan."
Janssen's counsel, Michael P. Doss -- mdoss@sidley.com -- and
Scott D. Stein -- sstein@sidley.com -- of Sidley Austin LLP in
Chicago and Carolyn J. Kubota -- ckubota@omm.com -- and Charles C.
Lifland -- clifland@omm.com -- of O'Melveny & Myers LLP, argued
that its materials are exempt from the IFOIA, which exempts from
disclosure information that other laws also shield from
disclosure. For example, the city's False Claims Act has an
exemption from disclosing any documentary material provided under
subpoena.
The city wants to abrogate its promise that the materials would be
provided as part of a confidential, civil investigation, Janssen
said.
"The city agreed to the protective order to induce Janssen to
comply voluntarily with its investigative subpoena," the drugmaker
argued in court papers. "As part of the bargain, the city agreed
to accept Janssen's good faith designation of documents as
confidential."
According to Janssen, the materials also are exempt under the
IFOIA's exceptions for law enforcement records and for trade
secrets and for commercial or financial information.
Janssen also raised the fact that the city has withheld the hourly
rates of its counsel, Cohen Milstein Sellers & Toll PLLC, as
exempt as a trade secret.
Janssen also opposes USA Today's petition to intervene.
JOHNS HOPKINS: Judge Approves $190-Mil. Class Action Settlement
---------------------------------------------------------------
Pamela Wood, writing for The Baltimore Sun, reports that a
Baltimore judge on Sept. 19 approved a $190 million settlement
between Johns Hopkins Medicine and patients of a gynecologist who
secretly photographed and filmed women during exams -- a ruling
that victims' attorneys praised as a step in their clients'
healing from a traumatic betrayal.
Circuit Court Judge Sylvester Cox called the settlement fair and
reasonable.
Dr. Nikita Levy, an obstetrician and gynecologist with Johns
Hopkins Community Health Systems who practiced in an East
Baltimore clinic for 25 years, was accused last year of secret
filming of female clients.
More than 1,300 videos and photographs were found during searches
of Levy's office and his Towson home. Dr. Levy killed himself
while authorities were investigating.
The secret filming, first discovered by a suspicious coworker,
shocked patients who had trusted the doctor. Several sat in the
courtroom on Sept. 19.
It will never be known exactly which of Dr. Levy's thousands of
patients were actually recorded. The images are of genitals
during pelvic examinations, and attorneys for both Hopkins and the
patients agreed to forego the difficult and potentially invasive
process of identifying the victims.
Attorneys Jonathan Schochor and Howard Janet said more than 4,000
women have been interviewed. As many as 9,500 former patients
might be eligible for an award under the settlement.
Maria Lennon, 47, said she was a patient of Dr. Levy from 1982
until the late 1990s. Looking back, the Baltimore woman said
after the hearing, she realizes some of his behavior was rude and
inappropriate. She said she was too young at the time to
understand.
"To know his touch was not a friendly touch -- it was a nasty,
perverted touch -- is creepy," she said.
Ms. Lennon said the settlement is a victory, but does little to
calm the fear she now experiences about seeing a doctor. With
Dr. Levy dead, she said, she'll never have answers to many
questions.
"He chose his out," she said. "We'll never know why he did this
to us."
Mr. Schochor said interviews with patients have revealed patterns
of behavior that included Dr. Levy asking women to undress when it
was not necessary, asking assistants to leave the room during
exams, not wearing gloves and conducting exams that were "sexual
in nature, not clinical." He said patients have told him Dr. Levy
had a folksy demeanor but was possessive, and discouraged them
from seeking a second opinion or visiting an emergency room.
Mr. Schochor praised clients who fought for the settlement, and
who shared their stories.
"We proved that these damages will not be trivialized," he said.
The patients "were exploited and they were betrayed."
Now, he said, "our clients can begin to get closure."
Donald L. DeVries, an attorney who represents Hopkins, urged Judge
Cox to approve the settlement, which he described as the result of
"protracted negotiations" with patients' attorneys.
Mr. DeVries said it was his "sincere hope" that the settlement,
combined with the belief that Levy did not distribute the
pictures, would help former patients achieve closure.
Judge Cox noted Hopkins could have fought lawsuits in court in an
attempt to whittle down the number of women seeking damages. He
said Hopkins could have argued it wasn't responsible for Dr.
Levy's actions, or could have forced women to prove that they were
the ones photographed or videotaped.
"If they had vigorously filed motions to dismiss the claims for
various reasons . . . by the time all that litigation concluded
there would be no money left," Judge Cox said.
Judge Cox didn't settle the objections of the more than two dozen
patients who say attorneys in the case shouldn't get a third of
the settlement in legal fees. A separate hearing on that matter
will be held Oct. 2.
Hopkins has 30 days to appeal Judge Cox's ruling. Fourteen days
after that date, it must deposit $190 million in an account.
Then the process of dividing the money can begin. Eligible
patients are to be placed into four categories related to the
level of harm they incurred, and award amounts will then be
proposed.
Judge Cox must approve an allocation plan before any money is
awarded. Mr. Schochor wouldn't estimate what the payments might
be, and said it could be a year before women receive any money.
Dr. Levy's former patients have until Nov. 14 to apply to be part
of the settlement.
MAGNUM HUNTER: Defends Appeal From Dismissal of Securities Suit
---------------------------------------------------------------
Magnum Hunter Resources Corporation says it intends to defend a
securities class action lawsuit that is currently at the appellate
level, according to the Company's August 21, 2014 Form 8-K filing
with the U.S. Securities and Exchange Commission.
Certain class action complaints had been previously filed against
Magnum Hunter and certain of its officers. In late 2013, the
class action cases that remained outstanding were consolidated in
the United States District Court for the Southern District of New
York (Securities Case). On June 23, 2014, the United States
District Court for the Southern District of New York issued an
Opinion and Order granting Magnum Hunter's and the individual
defendants' motion to dismiss the Securities Case and,
accordingly, the Securities Case has now been dismissed. Magnum
Hunter has received notice that the plaintiffs have appealed the
dismissal decision to the U.S. Court of Appeals for the Second
Circuit.
Magnum Hunter says it intends to continue to vigorously defend the
Securities Case at the appellate level.
Magnum Hunter Resources is a Houston, Texas, based independent
exploration and production company engaged in the United States in
the acquisition and development of producing properties and
undeveloped acreage and the production of oil and natural gas,
along with certain midstream and oilfield services activities.
MARSHALL ETC: "Stewart" Suit Seeks to Recover Unpaid Overtime
-------------------------------------------------------------
Brandon Stewart, individually and on behalf of all others
similarly situated v. Marshall ETC Inc., Daniel Marshall, and
Sherri Marshall, Case No. 3:14-cv-01002 (S.D. Ill., September 16,
2014), seeks to recover overtime compensation under the Fair Labor
Standards Act.
Marshall ETC Inc. is a Missouri corporation which operates as a
third party distributor of Sprint devices providing services,
maintenance, and sale of Sprint devices.
The Plaintiff is represented by:
Christopher J. Petri, Esq.
BYRON CARLSON PETRI & KALB, LLC
411 St. Louis Street
Edwardsville, IL 62025
Telephone: (618) 655-0600
Facsimile: (618) 655-4004
E-mail: cjp@bcpklaw.com
METROPOLITAN PROPERTY: Balks at Homeowner Labor Cost Class Action
-----------------------------------------------------------------
Linda Chiem and Lance Duroni, writing for Law360, report that
Metropolitan Property and Casualty Insurance Co. on Sept. 18
blasted a proposed class action in Arkansas federal court alleging
it skimped on labor costs when paying out homeowners' property
damage claims, saying one named plaintiff doesn't even qualify as
a member of the proposed class.
The insurer, which does business as MetLife Auto & Home, told an
Arkansas federal judge that the suit launched by Gary Vinson and
William Morrison doesn't pass muster for class certification,
saying the plaintiffs' motion for class certification doesn't
establish commonality, seeks to represent an overbroad class, and
"is predicated on false assumptions which ignore the actual legal
and factual issues in this case," according to its brief opposing
the bid for class certification.
"Plaintiffs have utterly failed to meet their burden," MetLife
said in the brief. "This is best exemplified by the fact that one
of the two named plaintiffs, Morrison, is not even a member of the
class sought to be certified. Plaintiffs' superficial
presentation flagrantly ignores the 'plain text of Rule 23
requir[ing] the court to 'find,' not merely assume, the facts
favoring class certification.'"
The proposed class action, which was launched earlier this year
and amended last month, alleged MetLife routinely used a flawed
methodology that deducts depreciation on labor when calculating
the actual cash value of claims brought under certain homeowners
policies.
MetLife argues that the plaintiffs have failed to tackle the
actual insurance policy language at issue and the individualized
issues raised or the claim-by-claim factual issues entailed in
applying the Arkansas penalty statute that they seek to invoke,
among other things.
According to Mr. Vinson's initial complaint, he submitted a claim
to MetLife after he suffered nearly $5,000 in damages to his
Batesville, Arkansas, home in February 2013 and MetLife agreed
that the claim was covered under his homeowners policy. However,
after a $1,000 deductible and over $2,500 for depreciation,
Mr. Vinson received only $1,473 on his claim, according to the
complaint.
The estimate laying out Mr. Vinson's payment shows that MetLife
improperly depreciated both material and labor costs in connection
with the repairs, the suit maintained.
MetLife has balked at the allegations and maintains that they
don't rise to the level of achieving class action status, saying
the plaintiffs have failed to demonstrate how the court would
determine for each putative class member the amount of deducted
labor depreciation that must allegedly be paid to claimants, if
any, according to MetLife's brief.
MetLife also filed a separate motion for partial summary judgment
on all of the claims raised by Morrison, arguing that Morrison was
paid the full replacement cost upfront, with no deduction for
labor depreciation.
The plaintiffs are represented by Tom Thompson and Casey
Castleberry of Murphy Thompson Arnold Skinner & Castleberry;
Sean M. Handler -- shandler@ktmc.com -- Matthew L. Mustokoff --
mmustokoff@ktmc.com -- and Richard A. Russo Jr. -- rrusso@ktmc.com
-- of Kessler Topaz Meltzer & Check LLP; Stephen Engstrom of
Stephen Engstrom Law Office; Jason E. Roselius of Mattingly &
Roselius PLLC; and Richard E. Norman and R. Martin Weber of
Crowley Norman LLP.
MetLife is represented by Mark L. Hanover, Leah R. Bruno and
Melissa A. Economy of Dentons US LLP and Stuart P. Miller --
smiller@mwlaw.com -- of Mitchell Williams Selig Gates & Woodyard
PLLC.
The case is Vinson v. Metropolitan Property and Casualty Insurance
Co., case number 4:14-cv-00029, in the U.S. District Court for the
Eastern District of Arkansas.
METROPOLITAN TRANSPORTATION: Wins Favorable Ruling in Angus Case
----------------------------------------------------------------
Angus Partners LLC d/b/a Angus Energy and White Crane Martial
Arts, Inc. brought an action under 42 U.S.C. Section 1983 against
the Metropolitan Transportation Authority (the MTA), the
Triborough Bridge and Tunnel Authority (the TBTA), Jay Walder, the
Chairman and CEO of the MTA, and James Ferrara, the Acting
President of the TBTA, alleging that their bridge and tunnel tolls
violate the constitutionally-protected right to travel and the
dormant Commerce Clause. Plaintiffs also assert common law claims
under New York law for unjust enrichment and for money had and
received. Defendants moved and Plaintiffs cross-moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
District Judge Analisa Torres, in an opinion and order dated
September 16, 2014, a copy of which is available at
http://is.gd/6BYF00from Leagle.com, granted the Defendants'
motion, and denied the Plaintiffs' cross-motion.
The case is ANGUS PARTNERS LLC d/b/a Angus Energy and WHITE CRANE
MARTIAL ARTS, INC., individually and on behalf of all others
similarly situated, Plaintiffs, v. JAY WALDER, individually and in
his official capacity, JAMES FERRARA, individually and in his
official capacity, METROPOLITAN TRANSPORTATION AUTHORITY and
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY d/b/a METROPOLITAN
TRANSPORTATION AUTHORITY BRIDGES & TUNNELS, Defendants, NO. 11
CIV. 0039 (AT), (S.D. N.Y.).
Angus Partners LLC, Plaintiff, represented by Brian Lewis Bromberg
-- brian@brianbromberg.net -- Bromberg Law Office, P.C. & Harley
Jay Schnall, Law Office of Harley J. Schnall.
White Crane Martial Arts, Inc., Plaintiff, represented by Brian
Lewis Bromberg, Bromberg Law Office, P.C. & Harley Jay Schnall,
Law Office of Harley J. Schnall.
Jay Walder, individually, Defendant, represented by Leslie Gordon
Fagen -- lfagen@paulweiss.com -- Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Steven Craig Herzog -- sherzog@paulweiss.com --
Paul, Weiss, Rifkind, Wharton & Garrison LLP, Walter Rieman --
wrieman@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison
LLP & Joshua David Kaye -- jkaye@paulweiss.com -- Paul, Weiss,
Rifkind, Wharton & Garrison LLP.
Jay Walder, in his official capacity, Defendant, represented by
Leslie Gordon Fagen, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Steven Craig Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Walter Rieman, Paul, Weiss, Rifkind, Wharton & Garrison LLP &
Joshua David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
James Ferrara, individually, Defendant, represented by Leslie
Gordon Fagen, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Steven
Craig Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Walter
Rieman, Paul, Weiss, Rifkind, Wharton & Garrison LLP & Joshua
David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
James Ferrara, in his official capacity, Defendant, represented by
Leslie Gordon Fagen, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Steven Craig Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Walter Rieman, Paul, Weiss, Rifkind, Wharton & Garrison LLP &
Joshua David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
Metropolitan Transportation Authority, Defendant, represented by
Leslie Gordon Fagen, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Steven Craig Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Walter Rieman, Paul, Weiss, Rifkind, Wharton & Garrison LLP &
Joshua David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
Triborough Bridge and Tunnel Authority, Defendant, represented by
Leslie Gordon Fagen, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Steven Craig Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Walter Rieman, Paul, Weiss, Rifkind, Wharton & Garrison LLP &
Joshua David Kaye, Paul, Weiss, Rifkind, Wharton & Garrison LLP.
MORGAN STANLEY: Settles Suit Over Mortgage Pass-Through Cert.
-------------------------------------------------------------
An agreement in principle was reached to settle In re Morgan
Stanley Mortgage Pass-Through Certificates Litigation pending in
the United States District Court for the Southern District of New
York, according to Morgan Stanley Smith Barney Charter Aspect
L.P.'s Aug. 12, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2014.
On May 7, 2009, MS&Co. was named as a defendant in a purported
class action lawsuit brought under Sections 11, 12 and 15 of the
Securities Act of 1933, as amended, which is now styled In re
Morgan Stanley Mortgage Pass-Through Certificates Litigation and
is pending in the United States District Court for the Southern
District of New York ("SDNY"). The third amended complaint, filed
on September 30, 2011, alleges, among other things, that the
registration statements and offering documents related to the
offerings of certain mortgage pass-through certificates in 2006
contained false and misleading information concerning the pools of
residential loans that backed these securitizations. The
plaintiffs seek, among other relief, class certification,
unspecified compensatory and rescissionary damages, costs,
interest and fees. On July 22, 2014, the parties reached an
agreement in principle to settle the litigation. The settlement is
subject to court approval.
MORGAN STANLEY: MS&Co. Settles "Ge Dandong" Lawsuit in N.Y.
-----------------------------------------------------------
Parties in the suit Ge Dandong, et al. v. Pinnacle Performance
Ltd., et al. pending in the United States District Court for the
Southern District of New York reached an agreement to settle the
case, according to Morgan Stanley Smith Barney Charter Aspect
L.P.'s Aug. 12, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2014.
On October 25, 2010, MS&Co., certain affiliates and Pinnacle
Performance Limited, a special purpose vehicle, were named as
defendants in a purported class action related to securities
issued by the special purpose vehicle in Singapore, commonly
referred to as Pinnacle Notes. The case is styled Ge Dandong, et
al. v. Pinnacle Performance Ltd., et al. and is pending in the
SDNY. An amended complaint was filed on October 22, 2012. The
court denied defendants' motion to dismiss the amended complaint
on August 22, 2013 and granted class certification on October 17,
2013. On October 30, 2013, defendants filed a petition for
permission to appeal the court's decision granting class
certification. On January 31, 2014, plaintiffs filed a second
amended complaint. The second amended complaint alleges that the
defendants engaged in a fraudulent scheme to defraud investors by
structuring the Pinnacle Notes to fail and benefited subsequently
from the securities' failure. In addition, the second amended
complaint alleges that the securities' offering materials
contained material misstatements or omissions regarding the
securities' underlying assets and the alleged conflicts of
interest between the defendants and the investors. The second
amended complaint asserts common law claims of fraud, aiding and
abetting fraud, fraudulent inducement, aiding and abetting
fraudulent inducement, and breach of the implied covenant of good
faith and fair dealing. On July 17, 2014, the parties reached an
agreement in principle to settle the litigation. The settlement is
subject to court approval.
MORTON GROVE: State High Court Nixes Appeal in Drug Labeling Suit
-----------------------------------------------------------------
P.J. D'Annunzio, writing for The Legal Intelligencer, reports that
the state Supreme Court has denied allocatur to defendants
appealing a ruling that federal preemption only applies to
negligent failure-to-warn claims that predate the Food and Drug
Administration Amendments Act of 2007 and are based solely on a
generic drug's label that was in conformity with the brand-name
equivalent's label.
In separate orders on Sept. 17, the justices denied four appeals
-- requested by drugmakers Morton Grove Pharmaceuticals Inc.,
Wockhardt USA, Teva Pharmaceuticals and Wyeth Inc. -- of the state
Superior Court's preemption-related holding. Justice Correale F.
Stevens did not participate in the decisions.
That ruling allows more than 2,000 plaintiffs to proceed with some
of their claims against the makers of metoclopramide, which is the
generic version of Reglan, alleging the drug caused them to have
an incurable neurological disorder called tardive dyskinesia.
Counsel for the plaintiffs, Howard Bashman of Willow Grove, Pa.,
said, "The plaintiffs are very pleased, but not at all surprised
with the Pennsylvania Supreme Court's denial of review in these
four cases."
Robert C. Heim of Dechert in Philadelphia represented Wyeth and
declined to comment. Counsel for Teva, Carl Solano of Schnader
Harrison Segal & Lewis in Philadelphia; and counsel for Morton
Grove and Wockhardt, Robert L. Byer of Duane Morris in Pittsburgh,
did not immediately return calls seeking comment late on Sept. 17.
The U.S. Supreme Court ruled in the June 2011 case Pliva v.
Mensing that claims against generic drugmakers on the basis that
they failed to warn plaintiffs adequately are preempted because
generic manufacturers are required to use the same warning labels
as their brand-name counterparts.
On July 29, 2013, the Superior Court ruled 2-1 in four companion
cases that a blanket dismissal of all state claims in light of
Mensing was improper.
In Hassett v. Dafoe and In re Reglan/Metoclopramide Litigation,
the court affirmed in part and reversed in part Philadelphia Court
of Common Pleas Judge Sandra Mazer Moss' decisions denying the
preliminary objections of defendant drugmakers Pliva Inc. and
Teva.
Judge Mary Jane Bowes, writing for the majority in those two
cases, said because all of the claims in Mensing predated the
FDAAA, post-FDAAA claims are not preempted by federal law.
In addition, Judge Bowes said, while the design-defect claims may
be preempted under the U.S. Supreme Court's ruling from 2013 in
Mutual Pharmaceutical v. Bartlett, it's too soon to tell.
In Bartlett, the Supreme Court ruled that a New Hampshire law
requiring drugmakers to design their products reasonably safely
for the uses they can foresee also impermissibly required
drugmakers to change the warning label on the generic version of
the drug sulindac.
"In conclusion, we find that the master complaint contains some
pre-2007 negligent failure-to-warn claims that predate the FDAAA
of 2007 and that are premised upon the generic manufacturers'
failure to strengthen the warnings on their labels," Judge Bowes
said.
"Where those pre-2007 generic labels conformed to the RLD labels,
those claims are preempted by Mensing. The design-defect claims
may be of the type held to be preempted in Bartlett. However,
without a careful analysis of the applicable state law, preemption
of all design-defect claims is premature. The remaining claims
either do not sound in failure to warn, arose after the passage of
the 2007 act, or involve a generic manufacturer's failure to
conform its label to that of the name brand, none of which is
preempted under our reading of Mensing." Judge Bowes was joined
by then-President Judge Stevens.
Senior Judge William H. Platt, however, filed a concurring and
dissenting opinion, arguing that the defendants' preliminary
objections should be sustained in light of Mensing and Bartlett.
In a separate decision, also captioned In re Reglan/Metoclopramide
Litigation, the court ruled 2-1 to affirm Judge Moss' order
denying the preliminary objections of defendant drugmakers Morton
Grove and Wockhardt, finding that Morton failed to meet its burden
of proof for Mensing preemption by showing that modifying its
warning label would have been impossible.
Judge Platt concurred and dissented in that case as well.
In a fourth case, In re Reglan Litigation, the court ruled 2-1 to
grant the plaintiffs' motion to quash defendant drugmaker Wyeth
Inc.'s appeal from Judge Moss' order overruling its preliminary
objections, saying the company did not meet the separability or
irreparable harm prongs of the collateral order test and was
therefore precluded from filing an interlocutory appeal.
Judge Platt dissented in that case, saying that while he found the
order was appealable as a collateral order, he would have affirmed
Judge Moss' original order overruling Wyeth's preliminary
objections.
MOY TOY: Tenn. Court Remands Eagles Nest Case to Chancery Court
---------------------------------------------------------------
The case EAGLES NEST, LLC; BEVERLY BAUER; AND CORTEZ INVESTMENTS
GROUP, INC., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED Plaintiffs, v. MOY TOY, LLC, and STANDING ROCK, LLC,
Defendants, NO. 2:14-00010, (M.D. Tenn.) was filed in the Chancery
Court for Cumberland County seeking declaratory and injunctive
relief. The plaintiffs make no specific claim for money damages.
In this action that was removed from state court pursuant to the
Class Action Fairness Act, 28 U.S.C. Sections 1332(d)(2) & 1453,
the Plaintiffs have filed a Motion to Remand. The Plaintiffs
argued that, even if Defendants have sufficiently established the
Tennessee Court's jurisdiction, the action should be remanded
pursuant to the discretionary exception identified in the CAFA.
The Court agreed with the Plaintiffs and remanded the case to the
Chancery Court on that basis.
The Plaintiffs' request for attorney's fees was denied.
A copy of District Judge Kevin H. Sharp's September 16, 2014
memorandum is available at http://is.gd/E461ykfrom Leagle.com.
Eagles Nest, LLC, Plaintiff, represented by David T. Black --
attorney@usit.net -- Kizer & Black, PLLC & Melanie E. Davis --
mdavis@kizer-black.com -- Kizer & Black, PLLC.
Beverly Bauer, Plaintiff, represented by David T. Black, Kizer &
Black, PLLC & Melanie E. Davis, Kizer & Black, PLLC.
Cortez Investments Group, Inc., Individually and on behalf of all
others similarly situated, Plaintiff, represented by David T.
Black, Kizer & Black, PLLC & Melanie E. Davis, Kizer & Black,
PLLC.
Moy Toy, LLC, Defendant, represented by Gregory C. Logue, Sr. --
glogue@wmbac.com -- Woolf, McClane, Bright, Allen & Carpenter,
PLLC & Lindy Degnan Harris -- lharris@wmbac.com -- Woolf, McClane,
Bright, Allen & Carpenter, PLLC.
Standing Rock, LLC, Defendant, represented by Gregory C. Logue,
Sr., Woolf, McClane, Bright, Allen & Carpenter, PLLC & Lindy
Degnan Harris, Woolf, McClane, Bright, Allen & Carpenter, PLLC.
NEW YORK: Prelim. Injunction Bid in Suit vs. Health Dept. Denied
----------------------------------------------------------------
In NEIL FISHMAN, BY HIS LEGAL GUARDIAN, SELMA FISHMAN, AND SURUJ
SIRIKESHUN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, Plaintiffs, v. RICHARD F. DAINES, M.D., AS COMMISSIONER
OF THE NEW YORK STATE DEPARTMENT OF HEALTH, AND JOHN PAOLUCCI, AS
DEPUTY COMMISSIONER OF THE OFFICE OF TEMPORARY AND DISABILITY
ASSISTANCE OF THE NEW YORK STATE DEPARTMENT OF FAMILY ASSISTANCE,
Defendants, CASE NO. 2:19-CV-05248-JFB-ARL, (E.D. N.Y.), pending
before the court is a motion which seeks preliminary injunction
requiring defendants to mail a "default notice" to members of the
plaintiff class before their Medicaid appeals are abandoned
because they missed a scheduled hearing. By its terms, the
requested injunction would prohibit "defendants from dismissing
the administrative appeals of defaulting Medicaid appellants who
are not given at least 10 days to respond to a written notice from
defendants inquiring if they want their administrative appeals
rescheduled."
In a memorandum and order entered on September 16, 2014, a copy of
which is available at http://is.gd/LpeC8tfrom Leagle.com,
District Judge Joseph F. Bianco denied the plaintiffs' motion
saying the "plaintiffs have not made a clear showing that they are
likely to succeed on the merits because, based upon the current
record, the Court concludes that the existing notice provided by
defendants -- which includes three letters mailed separately to
plaintiffs -- is reasonably calculated to comply with due process,
especially in light of a recent regulatory change which extends a
Medicaid claimant's time to reschedule a defaulted fair hearing.
"The letter would entail additional financial and administrative
costs which, while not prohibitive, must be considered in light of
defendants' other expenses in issuing the first three letters and
staffing the telephone system," he added. "Moreover,
notwithstanding any ongoing issues with the automated telephone
system, the Court concludes that plaintiffs have failed to
demonstrate, at this juncture, any likelihood of showing that any
such issues rise to a due process violation in light of (1) the
recent amendments to N.Y.C.R.R. 358-5.5, and (2) the availability
of numerous other methods of obtaining an adjournment, including
in-person, by letter, by fax and by the internet."
The Plaintiffs, however, are free to renew their motion if they
uncover any new evidence that the current procedures are
insufficient to protect claimants' due process rights, ruled the
Court.
Plaintiffs are represented by Peter Vollmer, Law Office of Peter
Vollmer, P.C., Sea Cliff, NY.
Defendants are represented by Susan M. Connolly, New York State
Office of the Attorney General, Hauppauge, NY.
NEW YORK HEALTH: Class Cert. Bid in Home Attendants' Suit Okayed
----------------------------------------------------------------
Justice Carolyn E. Demarest of the Supreme Court, Kings County,
granted plaintiffs' motion for class certification in the case
captioned LILYA ANDRYEYEVA and MARINA ODRUS, INDIVIDUALLY and ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. NEW YORK
HEALTH CARE, INC. D/B/A NEW YORK HOME ATTENDANT AGENCY and MURRAY
ENGLARD, Defendants, 14309/2011. 2014 NY Slip Op 24269.
The Court previously denied the plaintiffs' class certification
motion without prejudice and ruled that limited discovery must be
conducted in order to determine whether the requirements of CPLR
Section 901 have been met and to assess the considerations listed
in CPLR Section 902. Plaintiffs have since obtained payroll
records covering the proposed class for the proposed period and
plaintiffs' analysis has identified 1,063 home attendants who
worked 24-hour shifts who plaintiffs contend would be part of the
putative class.
In her order dated September 16, 2014, a copy of which is
available at http://is.gd/05OqTzfrom Leagle.com, Justice Demarest
certified the class defined as: Home attendants who worked 24-hour
shifts for defendants New York Health Care, New York Home
Attendant Agency, and Murray Englard and were not paid minimum,
overtime, and spread of hours wages between June 22, 2008 and the
date defendants cease, or are enjoined from not paying those
individuals the minimum, overtime, and spread of hours wages
required by New York Labor Law and regulations.
The Court also authorized Plaintiffs to give notice of the action
to the individual class members by certified mail. Plaintiffs are
directed to submit a proposed notice, providing for an option to
opt out of the class, to the Court on notice within 15 days.
Jason Rozger, Esq. -- jrozger@NYemployeelaw.com -- Jennifer Smith,
Esq. -- jsmith@NYemployeelaw.com -- Beranbaum Menken LLP, 80 Pine
Street, 33rd Floor, New York, NY 10005, Attorney for Plaintiff.
Sari Kolatch, Esq. -- skolatch@ctswlaw.com -- Cohen Tauber
Spievack & Wagner P.C., 420 Lexington Ave., Suite 2400, New York,
NY 10170, Attorney for Defendants.
NEWFOUNDLAND & LABRADOR: Judge Tosses Moose Collision Class Suit
----------------------------------------------------------------
CBC News reports that the class-action lawsuit for people injured
in moose-vehicle collisions that was filed against the provincial
government has been dismissed by a judge with the Supreme Court of
Newfoundland and Labrador.
Judge Robert Stack rendered the decision on Sept. 19. The
provincial government was found not liable for moose-vehicle
collisions. According to Judge Stack's decision, the people who
put the class action lawsuit together argued there is evidence of
serious negligence in the research by officials, leading to an
"irrational" policy or one that was made in bad faith.
However, Judge Stack said there is no evidence to prove that moose
population management or moose-vehicle collision risk mitigation
were irrational or done in bad faith. As a result, government is
immune from a negligence lawsuit.
"The province, of course, is glad to hear that [Stack's
decision]," said Transportation and Works Minister Nick McGrath.
"We felt that we put up a strong case in the courts and obviously
the judge felt the same, so we were pleased to hear that the case
has been dismissed and taken out of the courts."
'Moral victory'
St. John's lawyer Ches Crosbie launched the class-action lawsuit
in January 2011, claiming the provincial government is to blame
for failing to control the moose population.
Mr. Crosbie said Sept. 18 while the case was dismissed, it was an
"enormous moral victory" for the plaintiffs.
"The government won in a court of law, but lost in the court of
public opinion," said Mr. Crosbie.
"Most of the public thinks government must take action on the
moose collision issue, and government is finally about to do so.
It would not be taking action without the lawsuit."
Mr. Crosbie added he intends to appeal the court's decision.
Other measures being researched
Mr. McGrath added the province is "committed to mitigating," as
many moose-vehicle collisions as possible. The decision comes on
the same day the provincial government admitted the Trans-Canada
Highway moose sensor pilot project didn't work as planned.
The sensors were installed in July 2011, but Mr. McGrath said they
were working only about 40 per cent of the time. Mr. McGrath said
the sensors cost the province roughly C$1.5-million, and despite
the track record, he said they weren't a waste of money.
"They were more expensive than originally thought, but again it
was a part of a pilot project. And in order to see if it is going
to work in our province, you have to make investments. We feel it
was a wise investment for the pilot project, and now you go
forward," he said.
He added installing moose fencing along the highways would cost
government about C$125,000 per kilometer, and the province has
approximately 10,000 kilometers of roadway -- which would mean
about 20,000 kilometers of fencing.
Mr. McGrath said his department is in the process of putting
together a presentation on the pilot project for government to
decide how to move forward.
OCWEN FINANCIAL: Sued in D.V.I Over Misleading Financial Reports
----------------------------------------------------------------
Elm Tree Investment L.P., Individually and on Behalf of All Others
Similarly Situated v. Ocwen Financial Corporation, William C.
Erbey, Ronald M. Faris, John V. Britti and Barry N. Wish, Case No.
1:14-cv-00061 (D.V.I., September 16, 2014), alleges that the
Defendants disseminates materially false and misleading statement
regarding the Company's business, operations and management and
the intrinsic value of common stock.
Ocwen Financial Corporation is the largest non-bank mortgage
servicer of subprime loans in the United States.
The Plaintiff is represented by:
Douglas L. Capdeville, Esq.
LAW OFFICES OF DOUGLAS L. CAPDEVILLE
2107 Company Street, P.O. Box 22491
Christiansted, VI 00822
Telephone: (340) 773-7275
Facsimile: (340) 773-7996
E-mail: videfense@capdevillelaw.com
OCWEN LOAN: Wins Dismissal of Amended "Heald" Class Action
----------------------------------------------------------
KALA L. HEALD, on behalf of herself and others similarly situated,
Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant, CASE NO. 3:13-
CV-993-J-34JRK, (M.D. Fla.) alleges breach of contract in Count I,
violation of the Fair Debt Collection Practices Act, 15 U.S.C.
Section 1692 et seq. (FDCPA) in Count II, and violation of the
Florida Consumer Collection Practices Act, Florida Statutes
sections 559.55-559.785 (FCCPA) in Count III.
The case is before the Court on Plaintiff Kala L. Heald's first
amended class action complaint; Ocwen's motion to dismiss the
first amended class action complaint; and Plaintiff's response in
opposition to the Defendant's motion to dismiss.
In an order dated September 16, 2014, a copy of which is available
at http://is.gd/MSyf0gfrom Leagle.com, District Judge Marcia
Morales Howard determined that Heald's FDCPA claim, Count II, must
be dismissed for failure to state a claim upon which relief can be
granted. Having determined this, the Court declined to exercise
supplemental jurisdiction over the state law claims set forth in
Counts I and III of the Amended Complaint.
Accordingly, Ocwen's motion to dismiss the first amended class
action complaint was granted. Count II of the amended complaint
was dismissed. Counts I and IIII of the Amended Complaint were
dismissed without prejudice to the Plaintiff refiling them in the
appropriate state court.
The Clerk of the Court was directed to terminate all pending
motions and deadlines as moot and to close the file.
Kala L. Heald, Plaintiff, represented by Austin Tyler Brown --
abrown@jaxlawcenter.com -- Parker & DuFresne, PA, Brian W. Warwick
-- BWarwick@VarnellandWarwick.com -- Varnell & Warwick, PA, Janet
R. Varnell -- JVarnell@VarnellandWarwick.com -- Varnell & Warwick,
PA & Steven Thomas Simmons, Jr. -- ssimmons@varnellandwarwick.com
-- Varnell & Warwick, PA.
Ocwen Loan Servicing, LLC., Defendant, represented by Laura E.
Vendzules -- LVendzules@BlankRome.com -- Blank Rome, LLP, Michael
A. Rodriguez -- MRodriguez@BlankRome.com -- Blank Rome, LLP &
Russell O'Brien -- RROBrien@BlankRome.com -- Blank Rome, LLP.
PHILIP MORRIS: $8,901 to be Taxed Against Caronia Suit Plaintiffs
-----------------------------------------------------------------
In MARCIA L. CARONIA, LINDA McAULEY, and ARLENE FELDMAN,
Plaintiffs, v. PHILIP MORRIS USA, INC., Defendant, NO. 06-CV-224
(ERK) (SMG), (E.D. N.Y.), the Plaintiffs' motion to review the
Clerk's Bill of Costs is currently pending before the Court. The
parties have consented to disposition of the motion by Magistrate
Judge Steven M. Gold.
The Defendant, as the prevailing party, seeks costs pursuant to
Federal Rule of Civil Procedure 54(d)(1). The Clerk of the Court
originally taxed costs in the amount of $15,218.91. After
plaintiffs objected to certain items defendant sought to tax,
Philip Morris agreed that only a portion of that amount,
$12,103.25, was properly taxable.
In proceedings that took place September 2, 2013, Magistrate Judge
Gold held that certain additional costs should not be taxed for
reasons explained on the record. The parties subsequently filed a
stipulation agreeing that, as a result of Magistrate Judge Gold's
rulings, the amount in dispute was reduced to $8,901.09, or just
less than $3,000 per plaintiff. The Plaintiffs' sole remaining
argument is that the Court should exercise its discretion to deny
Philip Morris any award of costs at all because plaintiffs have
limited financial resources and because this is a case of public
importance.
Magistrate Judge Gold, in an order dated September 16, 2014, a
copy of which is available at http://is.gd/kBYkLgfrom Leagle.com,
concluded that plaintiffs have failed to meet their burden to show
that no costs at all should be imposed. Thus, except to the extent
that the amount of costs has already been reduced, the plaintiffs'
motion is denied, and the Clerk of Court is directed to tax costs
against plaintiffs in the total amount of $8,901.09.
Marcia L. Caronia, Plaintiff, represented by Steven J. Phillips,
Levy Phillips & Konigsberg, LLP, Amber R. Long, Levy Phillips &
Konigsberg LLP & Victoria Elizabeth Phillips, Levy, Phillips &
Konigsberg.
Rochelle H. Schweiger, Plaintiff, represented by Steven J.
Phillips, Levy Phillips & Konigsberg, LLP.
Dominick J. Cappelletti, Plaintiff, represented by Steven J.
Phillips, Levy Phillips & Konigsberg, LLP.
Linda McAuley, Plaintiff, represented by Steven J. Phillips, Levy
Phillips & Konigsberg, LLP & Victoria Elizabeth Phillips, Levy,
Phillips & Konigsberg.
Robert Doyle, Plaintiff, represented by Steven J. Phillips, Levy
Phillips & Konigsberg, LLP.
Arlene Feldman, Plaintiff, represented by Steven J. Phillips, Levy
Phillips & Konigsberg, LLP & Victoria Elizabeth Phillips, Levy,
Phillips & Konigsberg.
Philip Morris USA, Inc., Defendant, represented by John K. Sherk -
- jsherk@shb.com -- Shook Hardy & Bacon LLP, Thomas J. Quigley --
tquigley@winston.com -- Winston & Strawn & Jennifer Laurie Malin--
jmalin@winston.com -- Winston & Strawn, LLP.
Mount Sinai School of Medicine, Material Witness, represented by
William A. Ruskin -- sruskin@ebglaw.com -- Epstein Becker & Green
P.C..
David Yankelevitz, Material Witness, represented by William A.
Ruskin, Epstein Becker & Green P.C..
Claudia Henschke, Material Witness, represented by William A.
Ruskin, Epstein Becker & Green P.C..
Early Diagnosis and Treatment Research Foundation, Material
Witness, represented by Jon D Lichtenstein --
jlichtenstein@gordon-silber.com -- Gordon & Silber, P.C..
PDC ENERGY: Settles Class Action Over Inadequate Disclosure
-----------------------------------------------------------
Cathy Proctor, writing for Denver Business Journal, reports that
PDC Energy Inc. said on Sept. 19 it reached a settlement agreement
for a class-action lawsuit alleging that the company didn't
adequately disclose information about its purchase of partnerships
in 2010 and 2011.
The case, titled Schulein v. Petroleum Development Corp., was
filed in December 2011 in the U.S. District Court for the Central
District of California.
Under the proposed settlement agreement, which must be approved by
the judge, the case would be dismissed with prejudice, meaning
plaintiffs could not bring another action on the same claims. The
agreement has two parts, with the first being an up-front cash
payment by PDC of about $11.5 million, the company said.
The second part of the agreement calls for a transfer of interest
to the plaintiffs in a number of wells PDC plans to drill in 2015
and 2015 in Colorado's Wattenberg Field, which is north of Denver
and part of the larger Denver-Julesburg Basin. The plaintiffs
would have the right to require PDC repurchase the interest in the
wells starting in 2027.
PDC said the entire settlement, including the future repurchase
option, is in the range of $30 million to $35 million. PDC also
said it has "steadfastly maintained that the claims raised by the
class action are without merit" and didn't do anything wrong.
R.A.B. FOOD: Falsely Marketed Food Products, "Pekarsky" Suit Says
-----------------------------------------------------------------
Donna Ann Pekarsky and Howard Shieber v. R.A.B. Food Group, LLC,
Case No. 3:14-cv-04173 (N.D. Cal., September 16, 2014), alleges
that the Defendants falsely labels its products as All
Natural, because these products were made with genetically
engineered ingredients containing genetically modified organisms,
which are not all natural.
R.A.B. Food Group, LLC is the nation's largest specialty
manufacturer of premium kosher foods.
The Plaintiff is represented by:
Ryan L. Thompson, Esq.
WATTS GUERRA LLP
525 South Douglas Street., Suite 260
El Segundo, CA 90245
Telephone: (424) 220-8141
Facsimile: (424) 732-8190
E-mail: rlt-bulk@wattsguerra.com
- and -
Ashlea Gayle Schwarz, Esq.
Richard M. Paul, III, Esq.
PAUL MCINNES LLP
2000 Baltimore Avenue, Suite 100
Kansas City, MO 64108
Telephone: (816) 984-8100
Facsimile: (816) 984-8101
E-mail: ashlea@stuevesiegel.com
paul@paulmcinnes.com
RADIOSHACK CORP: 7th Cir. Issues Ruling on Two FACTA Cases
----------------------------------------------------------
The United States Court of Appeals for the Seventh Circuit have
consolidated for decision appeals in two class actions filed under
the Fair and Accurate Credit Transactions Act (FACTA), 15 U.S.C.
Section 1681c(g). The Act provides, so far as it relates to these
cases, that "no person that accepts credit cards or debit cards
for the transaction of business shall print [electronically, as
distinct from by handwriting or by an imprint or copy of the card]
more than the last 5 digits of the card number or the expiration
date upon any receipt provided to the cardholder at the point of
the sale or transaction." The present cases concern the
expiration date. The idea behind requiring its deletion is that,
should the cardholder happen to lose the receipt of a transaction,
the less information the receipt contains the less likely is an
identity thief who happens to come upon the receipt to be able to
figure out the cardholder's full account information and thus be
able to make purchases that the seller will think were made by the
legitimate cardholder.
The RadioShack case and the Shoe Carnival case are both class
action suits. The district court in Shoe Carnival dismissed the
suit with prejudice before certifying a class; there are no issues
in that case concerning class action procedure. RadioShack, in
contrast, is centrally about class action procedure. The parties
settled and the district court approved the settlement, and the
appeal is by class members who objected to the approval.
In an opinion dated September 19, 2014, a copy of which is
available at http://is.gd/NWJM43 from Leagle.com, the Seventh
Circuit concluded that the judgment approving the settlement in
RadioShack (Nos. 14-1470, -1471, and -1658) is reversed and the
case remanded to the district court for further proceedings
consistent with the Court's opinion. The judgment in favor of the
defendant in Shoe Carnival (No. 14-1320) was affirmed.
The cases are SCOTT D.H. REDMAN, individually and on behalf of all
others similarly situated, et al., Plaintiffs-Appellees, v.
RADIOSHACK CORPORATION, Defendant-Appellee. APPEAL OF: MICHAEL
ROSMAN, et al., Objectors, NOS. 14-1470, -1471, -1658, -1320.
RELAXATION SPA: Faces "Zhong" Suit Over Failure to Pay OT Wages
---------------------------------------------------------------
Lan Zhong, individually and on behalf of all other employees
similarly situated v. Relaxation Spa Inc., d/b/a "Relaxation Spa",
Zhang Zheng, Qiu Lin Wang, and John Does and Jane Does #
1-10, Case No. 2:14-cv-05413 (E.D.N.Y., September 16, 2014), seeks
to recover unpaid overtime wages, liquidated damages, declaratory
relief, costs, interest and attorneys' fees pursuant to the Fair
Labor Standards Act.
The Defendants own and operate a therapeutic spa and beauty salon
located at 2790 & 2790A Sunrise Highway, Bellmore, New York,
11710.
The Plaintiff is represented by:
Jian Hang, Esq.
HANG & ASSOCIATES, PLLC
136-18 39th Ave, Suite 1003
Flushing, NY 11354
Telephone: (718) 353-8588
Facsimile: (918) 353-6288
E-mail: jhang@hanglaw.com
ROSCIOLI YACHTING: Fails to Pay Overtime Hours, "Rand" Suit Says
----------------------------------------------------------------
Lauren Rand v. Roscioli Yachting Center, Inc., Robert Roscioli,
and Sharon Roscioli, Case No. 0:14-cv-62123 (S.D. Fla., September
16, 2014), is brought against the Defendant for failure to pay
overtime wages for hours worked in excess of 40 hours within a
work week.
Roscioli Yachting Center, Inc. is a Florida corporation that owns
and operates a ship yard.
The Plaintiff is represented by:
Brian Jay Militzok, Esq.
MILITZOK & LEVY, P.A.
3230 Stirling Road, Suite 1
Hollywood, FL 33021
Telephone: (954) 727-8570
Facsimile: (954) 241-6857
E-mail: bjm@mllawfl.com
SEARS HOLDINGS: Continues to Defend Wage and Hour Class Suits
-------------------------------------------------------------
Sears Holdings Corporation continues to defend itself against
class action lawsuits alleging violations of various wage and hour
laws, according to the Company's August 21, 2014 Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended August 2, 2014.
The Company is a defendant in several lawsuits containing class or
collective action allegations in which the plaintiffs are current
and former hourly and salaried associates who allege violations of
various wage and hour laws, rules and regulations pertaining to
alleged misclassification of certain of the Company's employees
and the failure to pay overtime and/or the failure to pay for
missed meal and rest periods. The complaints generally seek
unspecified monetary damages, injunctive relief, or both.
Further, certain of these proceedings are in jurisdictions with
reputations for aggressive application of laws and procedures
against corporate defendants.
The Company also is a defendant in several putative or certified
class action lawsuits in California relating to alleged failure to
comply with California laws pertaining to certain operational,
marketing and payroll practices. The California laws alleged to
have been violated in each of these lawsuits provide the potential
for significant statutory penalties.
At this time, the Company says it is not able to either predict
the outcome of these lawsuits or reasonably estimate a potential
range of loss with respect to the lawsuits.
SEARS HOLDINGS: Still Defends Environmental and Asbestos Claims
---------------------------------------------------------------
Sears Holdings Corporation continues to defend itself against
proceedings and investigations relating to environmental and
asbestos exposure claims, according to the Company's August 21,
2014 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended August 2, 2014.
The Company is subject to various other legal and governmental
proceedings and investigations, including some involving the
practices and procedures in the Company's more highly regulated
businesses and many involving litigation incidental to those and
other businesses. Some matters contain class action allegations,
environmental and asbestos exposure allegations and other
consumer-based, regulatory or qui tam claims, each of which may
seek compensatory, punitive or treble damage claims (potentially
in large amounts), as well as other types of relief.
Additionally, some of these claims or actions, such as the qui-tam
claims, have the potential for significant statutory penalties.
SHERWOOD LANDSCAPING: Court Tosses Bid to Dismiss FLSA Suit
-----------------------------------------------------------
Cesar Moreira, Martin Cisneros, Fredis Gomez, Luis M. Ramirez, and
Roberto Contreras commenced an action on May 1, 2013 against
Sherwood Landscaping Inc., Main Street Nursery, and Robert McKean,
seeking unpaid overtime wages under the Fair Labor Standards Act
(FLSA), 29 U.S.C. Section 201 et seq., and the New York Labor Law
(NYLL) Section 190 et seq. Pending before the Court are: (1)
Defendants' motion to dismiss the Amended Complaint for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1); and (2) Plaintiffs' motion for leave to file a
second amended complaint.
In a memorandum & order entered September 16, 2014, a copy of
which is available at http://is.gd/MtaS6Cfrom Leagle.com,
District Judge Joanna Seybert denied the Defendants' motion to
dismiss, and granted the Plaintiffs' motion to amend.
The case is CESAR MOREIRA, MARTIN CISNEROS, FREDIS GOMEZ, LUIS M.
RAMIREZ, and ROBERTO CONTRERAS, on behalf of themselves and all
others similarly situated, Plaintiffs, v. SHERWOOD LANDSCAPING
INC., MAIN STREET NURSERY, and ROBERT MCKEAN, in his individual
capacity, Defendants, NO. 13-CV-2640(JS)(AKT), (E.D. N.Y.).
Delvis Melendez, Esq., Brentwood, NY, for Plaintiffs.
Elizabeth R. Gorman, Esq. -- egorman@milbermakris.com -- Kerri
Monyak Hoffman, Esq., Milber Makris Plousadis --
hjmakris@milbermakris.com -- & Seiden, LLP, Woodbury, NY,
Defendants.
SWEETWATER UNION: Court Upholds Title IX Class Action Ruling
------------------------------------------------------------
Judy Greenwald, writing for Business Insurance, reports that a
federal appellate court on Sept. 19 upheld a lower court ruling in
favor of a class action lawsuit filed on behalf of female high
school athletes in a Chula Vista, California-based school district
charging violation of Title IX of the Education Amendments of
1972, the federal civil rights law that prohibits gender
discrimination in education.
In a ruling in Veronica Ollier et al. v. Sweetwater Union High
School District et al., a three-judge panel of the 9th U.S.
Circuit Court of Appeals in San Francisco also upheld the lower
court ruling that the school district had engaged in unlawful
retaliation under Title IX when it fired its girls' softball
coach. It upheld the district court's granting of injunctive
relief on both issues.
In litigation first filed in April 2007, the U.S. District Court
in Pasadena, California, concluded Sweetwater violated Title IX by
failing to provide equal treatment and benefits to female athletes
at Castle Park High School in Chula Vista in nine different areas,
including recruiting, training, equipment, scheduling and
fundraising, according to the ruling.
In its March 2009 ruling, the District Court also found that
female students "were supervised by overworked coaches, provided
with inferior competition and practice facilities, and received
less publicity than male athletes."
"We conclude that Sweetwater has not fully and effectively
accommodated the interests and abilities of its female athletes,"
said the appellate panel, in affirming the lower court ruling.
The appellate court also agreed with the District Court that the
school district had engaged in retaliation in firing the girls'
softball coach, Chris Martinez, after the father of two of the
named plaintiffs complained to school administrators about
inequalities for girls in the school's athletic programs.
The school district found that Mr. Martinez was fired six weeks
after the school's athletic director told him "he could be fired
at any time for any reason -- a comment the coach understood to be
a threat he would be fired" if more complaints were made about the
girls' softball facilities, said the ruling.
"Coach Martinez gave softball players extra practice time and
individualized attention, persuaded volunteer coaches to help with
specialized skills, and arranged for the team to play in
tournaments attended by college recruiters. The softball team was
stronger with Coach Martinez than without him," said the ruling.
"Plaintiffs have alleged judicially cognizable injuries flowing
from Sweetwater's retaliatory responses to Title IX complaints
made by their parents and Coach Martinez," said the panel, in
affirming the lower court's ruling.
SYNGENTA AG: Faces Class Action Over Genetically Modified Corn
--------------------------------------------------------------
David McAfee and Khadijah M. Britton, writing for Law360, report
that for the third time in a week, Syngenta faces suit over its
genetically modified corn, this time in a class action led by
Stracener Farming Co. that claims its shipments to China were
rejected because Syngenta had released genetically modified seed
into the U.S. corn supply.
Stracener's complaint said its farm and others had suffered
substantial damages as a result of Syngenta's premature release of
its genetically engineered corn trait, called MIR 162, into the
U.S. market, putting the company's ability to profitably grow,
cultivate, harvest and market corn at risk for years to come.
The MIR 162 trait is found in Syngenta products Viptera and
Duracade and is used in more than 70 varieties of corn. The
genetically modified organism trait compels the corn to produce a
protein that makes it resistant to insects. This year, the
Chinese government reports it has turned away 1.25 million tons of
U.S. corn over the presence of MIR 162.
According to Stracener's complaint, "the widespread nature of MIR
162 contamination has, for all intents and purposes, shut down the
2014 U.S. corn export market to China, causing billions of dollars
of damages to U.S. exporters, including farmers, farm landowners
and farming entities."
The company blames Syngenta's release of MIR 162 for China's
refusal to import U.S. corn and says other markets are now
refusing its products for the same reason.
Stracener says it relied on Syngenta's claims that it had Chinese
approval for MIR 162, based on a number of documents the company
gave Stracener and its other customers.
Stracener says the company distributed a deceptive document that
falsely claimed the Chinese government issued it a biosafety
certificate approving MIR 162. The complaint says that as far
back as Syngenta's first quarter earnings call for 2012, the
company's CEO said they expected China's approval "within the
matter of a couple of days." Yet, China has still not approved
the trait.
According to the complaint, the National Grain and Feed
Association estimates Syngenta's premature release of Viptera cost
the U.S. corn market between $1 billion and $3 billion, causing
corn prices to decline by $0.11 per bushel.
The complaint says the NGFA wrote a joint statement with the North
American Export Grain Association asking Syngenta to stop release
of Duracade, its second-generation MIR 162 corn, in an effort to
"stop the cycle of rejection and damage." Yet, Syngenta proceeded
with the release of Duracade, despite continued lack of Chinese
approval.
Stracener said Syngenta further exacerbated the harm caused by MIR
162 corn by promoting a "side-by-side program," in which it
encouraged farmers to grow Viptera corn alongside other corn seed
without precautions, a practice that leads to greater cross-
contamination. The farm claims Syngenta knew or should have known
this would cause China to reject even more U.S. corn.
"Syngenta made the conscious decision in reckless disregard of the
consequences from which malice may be inferred that it was more
profitable to speed Viptera up to market, maximize and extract a
huge profit and recoup its research costs," Stracener said, "even
though it knew the premature release of Viptera corn would prevent
U.S. corn from being sold to markets such as China."
Syngenta dismissed the claims.
"We believe the suit is without merit and we strongly uphold the
right of growers to have access to approved new technologies that
can increase both their productivity and profitability," Paul
Minehart, Syngenta's director of corporate communications for
North America, told Law360.
On Sept. 12, Cargill and Trans Coastal Supply Co. Inc. each filed
suit based on similar accusations.
Stracener Farming Co. and co-plaintiffs David Stracener and Larry
Petit are represented by Clark W. Mason of Clark Mason Attorneys
LLP, Paul Byrd -- wwinfo@paulbyrdlawfirm.com -- of Paul Byrd Law
Firm PLLC, Jerry Kelly of Kelly Law Firm PC, James J. Thompson
Jr., and Nolan Awbrey -- nolan@rileyjacksonlaw.com -- of Riley
Jackson Attorneys PC.
Corporate counsel for Syngenta is Alan Nadel.
The case is Stracener Farming Co., David Stracener & Larry Petit
v. Syngenta AG et al., case number 04:14-cv-558 in the U.S.
District Court for the Eastern District of Arkansas, Western
Division.
TARGET CORPORATION: Wins Final Approval of "Bernardino" Suit Deal
-----------------------------------------------------------------
District Judge Yvonne Gonzalez Rogers granted final approval of a
settlement, and entered final judgment, in the case captioned
AILEEN BERNARDINO, an individual, and all others similarly
situated, Plaintiffs, v. TARGET CORPORATION, Defendant, NO. C 12-
4639 YGR, (N.D. Cal.).
Judge Rogers' September 16, 2014 order a copy of which is
available at http://is.gd/eCWK1Lfrom Leagle.com, held that
that payment to the California Labor and Workforce Development
Agency of $10,000.00 as its share of the settlement of civil
penalties in this case is fair, reasonable, and appropriate. The
Court gave final approval to and ordered that amount to be paid
out of the Maximum Settlement Amount in accordance with the
Settlement.
The fees and expenses in administrating the Settlement, in the
amount of $39,500.00, are fair and reasonable, ruled Judge Rogers.
The Court hence, entered final judgment in accordance with the
terms of the Settlement Agreement, the Order Granting Preliminary
Approval of Class Action Settlement filed on February 14, 2014,
and its order granting final approval of the settlement.
SHAUN SETAREH LAW OFFICE OF SHAUN SETAREH, Beverly Hills,
California
DAVID SPIVAK -- David@FightWrongfulTermination.com -- THE SPIVAK
LAW FIRM, Beverly Hills, California LOUIS BENOWITZ --
louis@benowitzlaw.com -- LAW OFFICES OF LOUIS BENOWITZ, Beverly
Hills, California Attorneys for Plaintiff Aileen Bernardino
JEFFREY D. WOHL -- jeffwohl@paulhastings.com -- RISHI N. SHARMA --
rishisharma@paulhastings.com -- PETER A. COOPER --
petercooper@paulhastings.com -- PAUL HASTINGS LLP, San Francisco,
California Attorneys for Defendant Target Corporation
TD BANK: Sued Over Failure to Disclose Foreign Currency Fee
-----------------------------------------------------------
MZL Capital Holdings, Inc, on behalf of themselves and all others
similarly situated v. TD Bank, N.A. and Unidentified Entities (A-
Z), Case No. 1:14-cv-05772 (D.N.J., September 16, 2014), alleges
that the Defendant misleads its customers specifically by failing
to disclose the foreign currency transaction fee it is charging to
online consumers.
TD Bank, N.A. describes itself as America's most convenient bank,
promotes its business banking as simple, where it does the work
for you, offering services that support your day to day needs, to
help one achieve your business financial goals.
The Plaintiff is represented by:
Bruce Heller Nagel, Esq.
NAGEL RICE, LLP
103 Eisenhower Parkway, Suite 201
Roseland, NJ 07068
Telephone: (973) 618-0400
Facsimile: (973) 618-9194
E-mail: bnagel@nagelrice.com
TEDDY'S TRANSPORTATION: Suit Seeks to Recover Unpaid Overtime
-------------------------------------------------------------
Stanley Saint-Victor, individually and on behalf of all other
similarly situated individuals v. Teddy's Transportation System,
Inc., Case No. 3:14-cv-01342 (D. Conn., September 16, 2014), seeks
to recover unpaid overtime wages, compensatory damages, liquidated
damages, penalty damages and attorneys' fees pursuant to the Fair
Labor Standards Act.
Teddy's Transportation System is a Connecticut corporation that is
engaged in providing limousine and executive car services.
The Plaintiff is represented by:
Richard Eugene Hayber, Esq.
Erick Ignacio Diaz-Vazquez, Esq.
HAYBER LAW FIRM LLC
221 Main Street, Suite 502
Hartford, CT 06106
Telephone: (860) 522-8888
Facsimile: (860) 218-9555
E-mail: rhayber@hayberlawfirm.com
ediaz@hayberlawfirm.com
THAI BASIL: Faces "Felix" Suit Over Failure to Pay Overtime Wages
-----------------------------------------------------------------
Lynwood Felix, individually, and on behalf of all others similarly
situated v. Thai Basil at Thornton, Inc., Case No. 1:14-cv-02567
(D. Colo., September 16, 2014), seeks to recover unpaid overtime
wages, liquidated damages, prejudgment interest and costs,
including reasonable attorney's fees in violation of the Fair
Labor Standards Act.
Thai Basil at Thornton, Inc. is a privately held establishment,
operating restaurants and providing food service.
The Plaintiff is represented by:
Jason Travis Brown, Esq.
JTB LAW GROUP, LLC
155 2nd Street, Suite 4
Jersey City, NJ 07302
Telephone: (201) 630-0000
Facsimile: (855) 582-5297
E-mail: jtb@jtblawgroup.com
TORONTO-DOMINION: Canada Supreme Court Upholds Punitive Damages
---------------------------------------------------------------
David Paddon, writing for The Canadian Press, reports that
Canada's top court has restored a Quebec trial judge's decision
that penalizes five banks for failing to meet provincial
disclosure requirements when they charged currency-conversion fees
to their credit card customers.
The banks had argued that Quebec's Consumer Protection Act didn't
apply to them because of the constitutional division between
provincial and federal powers -- a position rejected by the
Supreme Court of Canada and the lower courts.
The Supreme Court's decision found that both Ottawa and Quebec
have detailed rules about the way in which credit card charges
must be computed and disclosed but the two sets of rules are not
inconsistent with each other. The court said the banks were
seeking "a sweeping immunity" from provincial laws but decided
"there are many provincial laws providing for a variety of civil
causes of action that can be potentially raised against banks."
The Canadian Bankers Association, which was chosen to speak on
behalf of the industry, said the decision would require "further
study to determine what the implications will be for consumers."
"Banks take the protection of their customers very seriously," the
CBA said. "The federal consumer protection requirements of the
Bank Act ensure that credit cardholders across Canada benefit from
a clear, comprehensive and consistent set of rules that guarantee
clear and simple disclosure of credit card terms and costs, and
strong consumer protection monitored by the federal consumer
protection regulator, the Financial Consumer Agency of Canada
(FCAC)."
The class action suit that sparked the court battle with the banks
was launched in April 2003 with Real Marcotte as the
representative plaintiff. Marcotte had Bank of Montreal and
Desjardins credit cards, but the class action was filed on behalf
of similar customers at nine banks and Quebec's largest credit
union, Desjardins.
Marcotte later filed a separate class action against the
provincially regulated Desjardins after the federally regulated
banks indicated they'd make a constitutional challenge. Another
class action against Amex was filed on similar grounds to include
non-consumer card holders who weren't covered by Quebec's Consumer
Protection Act.
The trial judge found that five of the nine banks and Desjardins
had violated the provincial rules for disclosing how foreign
exchange fees were calculated, but that four of the nine banks had
disclosed the information in accordance with the Quebec Consumer
Protection Act and federal rules -- a position upheld on appeal.
However, Quebec's appeal court overturned the judge's punitive
damages against Amex Bank of Canada, Bank of Montreal, Citibank
and National Bank. It upheld punitive damages against Toronto-
Dominion.
The Supreme Court of Canada partially disagreed with the appeal
court and restored the trial judge's decision that held all five
banks should pay punitive damages -- about $25 per affected
cardholder -- for failing to disclose the currency conversion
charges to their cardholders.
The Supreme Court also upheld the appeal court's decision that
four other banks that were named in the original class action --
Royal, CIBC, Scotiabank and Laurentian -- weren't subject to
penalties or repayments because of the nature of their cardholder
agreements.
A separate Supreme Court ruling involving the Desjardins credit
union found that it should return the foreign exchange fees
collected from its cardholders but that punitive damages weren't
warranted.
The appeal court's decisions were appealed to the Supreme Court.
"The banks submit that the applicability of the relevant
provisions of the CPA to banks would impair the core federal
banking power. We disagree," the Supreme Court said in its
decision on Bank of Montreal vs Marcotte.
"While interjurisdictional immunity remains an extant
constitutional doctrine, the court has cautioned against excessive
reliance on it. . . . We note that there is no precedent for the
doctrine's application to the credit card activities of banks."
It says the Quebec's Consumer Protection Act does affect how banks
carry out certain activities but that the rules don't amount to
impairing federal powers and it is hard to imagine how these
provisions would force Parliament to pass legislation to
countermand them.
"For these reasons, we conclude that the Court of Appeal was
correct in holding that interjurisdictional immunity is not
engaged," the unanimous decision says.
TOSHIBA AMERICA: Pierce-Nunes Case Transferred to CDCA Court
------------------------------------------------------------
In the putative class action captioned STACEY PIERCE-NUNES,
Plaintiff, v. TOSHIBA AMERICA INFORMATION SYSTEMS, INC.,
Defendant, CASE NO. 14-CV-00796-JST, (N.D. Cal.), which assert
claims arising out of the false advertising and unfair competition
laws of various states, Defendant Toshiba America Information
Systems, Inc. (TAIS) moved under 28 U.S.C. Section 1404(a) to
transfer the action to the Southern District of New York (SDNY)
or, alternatively, to the Central District of California (CDCA).
District Judge Jon S. Tigar wrote in his order dated September 14,
2014, a copy of which is available at http://is.gd/744gOyfrom
Leagle.com, that TAIS has shown it is headquartered in the CDCA;
that the vast majority of relevant documents and material
witnesses are located in the CDCA; and because there are no facts
in the record showing that this action has any meaningful
connection to the North District of California or that Plaintiffs
would be inconvenienced by litigating in the CDCA, TAIS' motion to
transfer the action to the Central District of California is
granted.
Stacey Pierce-Nunes, Plaintiff, represented by Francis Onofrei
Scarpulla -- fscarpulla@zelle.com -- Zelle Hofmann Voelbel & Mason
LLP, Judith A. Zahid -- jzahid@zelle.com -- Zelle Hofmann Voelbel
Mason and Gette LLP, Daniel R Shulman -- daniel.shulman@gpmlaw.com
-- Shulman Law Offices, Dean C. Eyler -- dean.eyler@gpmlaw.com --
Gray Plant & Mooty, Gregory R. Merz -- gregory.merz@gpmlaw.com --
Gray Plant & Mooty, Hayward John Kaiser -- hjk@msk.com -- Mitchell
Silberberg & Knupp LLP, Jonathan Shub -- jshub@seegerweiss.com --
Seeger Weiss LLP, Kathryn J Bergstrom -- bergstrom@gpmlaw.com --
Patrick Bradford Clayton -- pclayton@zelle.com -- Zelle Hofmann
Voelbel & Mason LLP & Scott Alan George -- sgeorge@seegerweiss.com
-- Seeger Weiss LLP.
Toshiba America Information Systems Inc, Defendant, represented by
Sean Ashley Commons -- scommons@sidley.com -- Sidley Austin LLP,
Alex Doherty -- adoherty@allenmatkins.com -- Allen Matkins,
Theodore Robert Scarborough, Jr. -- tscarborough@sidley.com --
Sidley Austin LLP & Thomas Owen Powell -- topowell@sidley.com --
Sidley Austin LLP.
TRAVELCENTERS OF AMERICA: Defends Remaining Motor Fuel Temp. Suit
-----------------------------------------------------------------
TravelCenters of America LLC continues to defend itself against
the only case over motor fuel temperature in which TA remains a
defendant, according to the Company's August 21, 2014 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2014.
Beginning in December 2006, a series of class action lawsuits was
filed against numerous companies in the petroleum industry,
including the Company's predecessor and the Company's
subsidiaries, in U.S. district courts in over 20 states. Major
petroleum refiners and retailers were named as defendants in one
or more of these lawsuits. The plaintiffs in the lawsuits
generally alleged that they are retail purchasers who purchased
motor fuel at temperatures greater than 60 degrees Fahrenheit at
the time of sale. One theory alleged that the plaintiffs
purchased smaller amounts of motor fuel than the amount for which
defendants charged them because the defendants measured the amount
of motor fuel they delivered by volumes which, at higher
temperatures, contain less energy. A second theory alleged that
fuel taxes are calculated in temperature adjusted 60 degree
gallons and are collected by governmental agencies from suppliers
and wholesalers, who are reimbursed in the amount of the tax by
the defendant retailers before the fuel is sold to consumers.
These "tax" cases allege that, when the fuel is subsequently sold
to consumers at temperatures above 60 degrees, the retailers sell
a greater volume of fuel than the amount on which they paid tax,
and therefore reap unjust benefit because the customers pay more
tax than the retailer pays. A third theory alleged that all
purchasers of fuel at any temperature are harmed because the
defendants do not use equipment that adjusts for temperature or
disclose the temperature of fuel being sold, and thereby deprive
customers of information they allegedly require to make an
informed purchasing decision. All of these cases were
consolidated in the U.S. District Court for the District of Kansas
pursuant to multi-district litigation procedures.
On May 28, 2010, that Court ruled that, with respect to two cases
originally filed in the U.S. District Court for the District of
Kansas, it would grant plaintiffs' motion to certify a class of
plaintiffs seeking injunctive relief (implementation of fuel
temperature equipment and/or posting of notices regarding the
effect of temperature on fuel). On January 19, 2012, the Court
amended its prior ruling, and certified a class with respect to
plaintiffs' claims for damages as well. A TA entity was named in
one of those two Kansas cases, but the Court ruled that the named
plaintiffs were not sufficient to represent a class as to TA. TA
was thereafter dismissed from the Kansas case. Several defendants
in the Kansas cases, including major petroleum refiners, have
entered into multi-state settlements. Following a September 2012
trial against the remaining defendants in the Kansas cases, the
jury returned a unanimous verdict in favor of those Kansas
defendants, and the judge likewise ruled in the Kansas defendants'
favor on the sole non-jury claim. In early 2013, the Court
announced its intention to remand three cases originally filed in
federal district courts in California back to their original
courts. On April 9, 2013, the Court granted plaintiffs' motion
for class certification in connection with the California claims
in the California cases. On August 14, 2013, the Court granted
summary judgment for the defendants with respect to all California
claims in the California cases, and in February 2014, the U.S.
District Court for the Northern District of California entered
judgment in favor of the defendants with respect to those claims.
The plaintiffs in the California cases all dismissed their non-
California claims against TA, except for one individual plaintiff,
who continues to assert claims based on purchases of fuel in
states other than California.
In January 2014, TA was dismissed with prejudice in all the non-
California cases in all states in which it remained a defendant at
that time. Therefore, the only case in which TA remains a
defendant is the case in which one remaining plaintiff is pursuing
non-California claims.
The Company believes there are substantial factual and legal
defenses to the allegations made in this remaining case. While
the Company does not expect that it will incur a material loss in
this case, the Company cannot estimate its ultimate exposure to
loss or liability, if any, related to the lawsuit.
TRAVELCENTERS OF AMERICA: Has Final OK of Truck Stop Owners' Deal
-----------------------------------------------------------------
TravelCenters of America LLC has received final approval of its
and Comdata Network, Inc.'s $130,000,000 settlement to resolve
claims by independent truck stop owners, according to the
Company's August 21, 2014 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2014.
On April 6, 2009, five independent truck stop owners, who are
plaintiffs in a purported class action suit against Comdata
Network, Inc., or Comdata, in the U.S. District Court for the
Eastern District of Pennsylvania, filed a motion to amend their
complaint to add the Company as a defendant, which was allowed on
March 25, 2010. The amended complaint also added as defendants
Ceridian Corporation, Pilot Travel Centers LLC and Love's Travel
Stops & Country Stores, Inc. Comdata markets fuel cards which are
used for payments by trucking companies at truck stops. The
amended complaint alleged antitrust violations arising out of
Comdata's contractual relationships with truck stops in connection
with its fuel cards. The plaintiffs sought unspecified damages
and injunctive relief. On March 24, 2011, the Court dismissed the
claims against TA in the amended complaint, but granted plaintiffs
leave to file a new amended complaint. Four independent truck
stop owners, as plaintiffs, filed a new amended complaint against
the Company on April 21, 2011, repleading their claims. On May 6,
2011, the Company renewed its motion to dismiss the complaint with
prejudice while discovery otherwise proceeded. The Court denied
the Company's renewed motion to dismiss on March 29, 2012, and the
Company filed an answer to the complaint on April 30, 2012.
During December 2013, the Company entered into settlement
discussions among the co-defendants and the plaintiffs that
continued into 2014. On February 28, 2014, the Company entered
into a Definitive Master Class Settlement Agreement with the
plaintiffs, or the settlement agreement. The settlement agreement
provides for the Company and the co-defendants to pay an aggregate
of $130,000,000 to a settlement fund for class members, including
$10,000,000 from the Company, in exchange for the dismissal with
prejudice of the litigation and the unconditional release of all
claims that class members brought or could have brought against
the Company and the co-defendants with respect to the litigation
and related actions. The settlement agreement is subject to the
approval of the Court. On March 17, 2014, the Court preliminarily
approved the settlement agreement, authorized notice to the class
and scheduled a hearing for
July 14, 2014, at which hearing the Court granted its final
approval of the settlement. The Company recognized a $10,000,000
loss in connection with this matter in December 2013 and made the
cash payment in March 2014.
TUESDAY MORNING: Awaits October 9 Hearing on "Randell" Suit Deal
----------------------------------------------------------------
Tuesday Morning Corporation awaits the October 9 hearing on the
final approval of the settlement reached in Julia Randell, et al.
v. Tuesday Morning, Inc., No. BC403298, according to the Company's
August 21, 2014 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended June 30, 2014.
The Company is defending against a class action lawsuit filed in
California Superior Court, Los Angeles County, on December 5, 2008
-- Julia Randell, et. al., v. Tuesday Morning, Inc., No. BC403298
(Cal. Super. Ct.) -- in which the original complaint alleged
violations of California's meal and rest period laws. The two
named plaintiffs, who are former employees of the Company,
subsequently amended the complaint three times. Narrowing their
class allegations, the plaintiffs moved on March 14, 2012 to
certify a class on the issue of whether the Company's alleged
practice of providing "on-duty" meal periods to Senior Sales
Associates violates the California Labor Code. The Court granted
that motion on June 20, 2012, certifying a class comprised of
current and former Senior Sales Associates who worked for the
Company in California, and who were required to take meal breaks
"on duty" at any point from April 1, 2005 to the present. The
Company filed motions to decertify the class and for summary
judgment on January 4, 2013, which the Court denied on March 29,
2013. On March 20, 2014, the parties executed a settlement
agreement and release which, subject to Court approval, resolves
the matter on a class basis. On April 16, 2014, the Court granted
preliminary approval of the settlement and authorized the parties
to provide notice of the settlement and its terms to class
members. The hearing on the motion for final approval of the
settlement is scheduled for October 9, 2014. The terms of the
settlement are not expected to have a material adverse effect on
the Company's financial condition or results of operations.
UNITED AIR: Dist. Judge Denies Motion to Dismiss DPWN Case
----------------------------------------------------------
The case DPWN HOLDINGS (USA), INC., Plaintiff, v. UNITED AIR
LINES, INC. d/b/a UNITED AIRLINES; UNITED CONTINENTAL HOLDINGS,
INC., f/k/a UAL CORP., Defendants, NO. 11-CV-564 (JG), (E.D.N.Y.)
is part of the In re Air Cargo Shipping Services Antitrust
Litigation, 06-md-1775 (E.D.N.Y.), an MDL based on an alleged
price-fixing conspiracy among airlines providing freight shipping
services.
District Judge John Gleeson denied a motion to dismiss in this
case in 2012. He granted the defendants permission to take an
interlocutory appeal from that denial under 28 U.S.C. Section
1292(b), and the Second Circuit remanded the matter for additional
proceedings. Following remand, the plaintiff amended its
complaint, and the defendants renewed their motion to dismiss.
Judge Gleeson heard argument on the motion on July 25, 2013;
afterward, he requested additional briefing on whether DHL should
have filed this claim in United's bankruptcy case, rather than as
a separate civil action.
The Second Circuit's remand order held that:
"We are skeptical of DHL's contention that it was not aware of,
or with reasonable diligence could not have become aware of, its
antitrust claim in time to assert it in the bankruptcy
proceeding. But whether that contention is supportable and the
related issue of whether due process required United to give DHL
explicit notice of an antitrust claim should not be decided at
the appellate level before the District Court has considered
these matters under proper standards. Because the District Court
erred in accepting as true DHL's allegation of lack of sufficient
knowledge to file an antitrust claim in bankruptcy, the matter
must be remanded for reconsideration.
"On such reconsideration the District Court must determine what
aspects of United's alleged price-fixing conduct were known by
DHL, or reasonably ascertainable, prior to plan confirmation,
whether the allegations of the class action complaint were
sufficient to alert DHL to its antitrust claim, and whether a
post-confirmation claim would have been entertained. If DHL
lacked such knowledge, the inquiry will then shift to whether
United knew or should have known of its potential antitrust
liability such that due process required it to notify DHL of the
potential claim. At least these matters must be considered before
a determination can be made whether DHL would be denied due
process if its potential antitrust claim was discharged.
"Accordingly, we remand for further consideration, either on the
face of the pleadings, or after discovery, of United's contention
that DHL's antitrust claim was discharged."
In an order dated September 16, 2014, a copy of which is available
at http://is.gd/C4PZ2Pfrom Leagle.com, Judge Gleeson pointed out
that the remand order makes clear that the ability of DHL to
maintain its claims depends critically on whether, as DHL
contends, "it was not aware of, or with reasonable diligence could
not have become aware of, its antitrust claim in time to assert it
in the bankruptcy proceeding."
"The remand order makes equally clear, however, that I may
consider that question of knowledge (and any other matters bearing
on whether DHL's claim should be considered discharged by United's
bankruptcy) "either on the face of the pleadings, or after
discovery," he added.
Judge Gleeson concluded that the better course at this time is to
resolve the question of DHL's knowledge of its potential claim
only after discovery has been conducted. "Therefore, I deny
United's motion to dismiss. Briefly, the reason for the denial is
that I find the case cannot be resolved as a matter of law on the
face of the pleadings," Judge Gleeson concluded.
ORRICK, HERRINGTON & SUTCLIFFE LLP, Garret G. Rasmussen --
grasmussen@orrick.com -- Antony P. Kim -- akim@orrick.com -- and
J. Peter Coll, Jr -- pcoll@orrick.com -- on the brief Washington,
D.C., Attorneys for Plaintiff.
MAYER BROWN LLP, Charles A. Rothfeld -- crothfeld@mayerbrown.com
-- Richard J. Favretto -- rfavretto@mayerbrown.com -- and Michael
B. Kimberly -- mkimberly@mayerbrown.com -- on the brief
Washington, D.C., Attorneys for Defendants.
US FOODS: Pricing Suit Settlement for Final Hearing in 2014/2015
----------------------------------------------------------------
The settlement reached in the Pricing Litigation against US Foods,
Inc. was preliminarily approved by the United States District
Court of Connecticut and is subject to final approval in late 2014
or early 2015, according to the company's Aug. 12, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 28, 2014.
In October 2006, two customers filed a putative class action
against the Company and Ahold. In December 2006, an amended
complaint was filed naming a third plaintiff. The complaint
focuses on certain pricing practices of the Company in contracts
with some of its customers. In February 2007, the Company filed a
motion to dismiss the complaint. In August 2007, two additional
customers filed putative class action complaints. These two
additional lawsuits are based upon the pricing practices at issue
in the October 2006 case. In November 2007, the Judicial Panel on
Multidistrict Litigation ordered the transfer of the two
additional lawsuits to the jurisdiction in which the first lawsuit
was filed -- the U.S. District Court for the District of
Connecticut -- for consolidated or coordinated proceedings. In
June 2008, the Plaintiffs filed their consolidated and amended
class action complaint. The Company moved to dismiss this
complaint. In August 2009, the Plaintiffs filed a motion for class
certification. In December 2009, the court issued a ruling on the
Company's motion to dismiss. It dismissed Ahold from the case and
also dismissed certain of the plaintiffs' claims. On November 30,
2011, the court issued its ruling granting the plaintiffs' motion
to certify the class. On April 4, 2012, the U.S. Court of Appeals
for the Second Circuit granted the Company's request to appeal the
district court's decision which granted class certification. Oral
argument was held and the court upheld the grant of class
certification. The Company filed a writ of certiorari to the U.S.
Supreme Court which was denied on April 29, 2014.
On May 20, 2014, an agreement in principle was reached to settle
the matter for $297 million which would release the Company from
all claims from all participating class members in relation to
these pricing practices. Ahold has indemnified the Company in
regards to this matter and, as a consequence, payment of the
settlement will be made by Ahold and will not impact the Company's
results of operations or cash flows. The settlement was
preliminarily approved by the United States District Court of
Connecticut on July 14, 2014 and is subject to final approval in
late 2014 or early 2015. The settlement is also subject to
potential reduction and/or termination based on the compensable
sales volume attributable to class members that elect to opt out
of the settlement. The Company has recorded a $297 million current
liability and a corresponding $297 million indemnification
receivable from Ahold in its June 28, 2014 Consolidated Balance
Sheet to reflect the probable settlement of this matter. Based on
the language in the proposed settlement agreement, public written
statements of Ahold and the financial condition of Ahold,
management believes that Ahold will satisfy its obligation under
the indemnification agreement.
WHIRLPOOL CORP: Trial in Washer Class Action to Begin Oct. 7
------------------------------------------------------------
Sindhu Sundar, writing for Law360, reports that an Ohio federal
judge on Sept. 19 rejected Whirlpool Corp.'s efforts to dismiss a
class action over allegedly defective washers that gather mold,
allowing the case to proceed to trial after the appliance maker's
tortuous and ultimately futile attempts to disband the class.
U.S. District Judge Christopher Boyko granted in part Whirlpool's
summary judgment motion, lopping of the consumers' failure-to-warn
claim and allegations based on the Ohio Consumer Sales Practices
Act, but preserved their design defect and breach of implied
warranty claims.
Whirlpool had fought the plaintiffs' negligent design claims,
arguing that the plaintiffs had to show proof of "an unreasonable
safety hazard," whereas in this case they had only alleged that
the defect caused the washer to gather smelly mold. But Judge
Boyko disagreed, finding that other cases show that "Ohio law does
not restrict a negligent design claim to only safety flaws."
The trial is set to begin Oct. 7.
"We are thrilled with it," the plaintiffs' attorney Jonathan
Selbin of Lieff Cabraser Heimann & Bernstein LLP said. For years
Whirlpool has told anyone who would listen that we had no viable
legal claims and that our class representatives' facts did not fit
our claims. This thorough and well reasoned opinion squarely
rejects those arguments. We eagerly await commencement of trial
next month."
The class was certified in 2010, a ruling that the Sixth Circuit
affirmed. The U.S. Supreme Court had initially asked the Sixth
Circuit to reconsider its decision, in light of the high court's
landmark ruling in Comcast v. Behrend in which the justices had
ruled that the plaintiffs had to show a classwide damages model at
the certification stage.
Whirlpool had argued that the plaintiffs in this case could not
show such damages, arguing that a vast majority of them had not
even experienced the mold problem that the alleged defect causes.
The Sixth Circuit nonetheless upheld its opinion, and the Supreme
Court in February declined Whirlpool's motion for certiorari.
Earlier this month Judge Boyko rejected Whirlpool's latest motion
to decertify the class, finding that the Sixth Circuit had already
addressed many of the concerns raised by the appliance maker when
it issued its decision affirming class certification in 2013.
The plaintiffs are represented by Jonathan D. Selbin, Jason L.
Lichtman and Mark P. Chalos of Lieff Cabraser Heimann & Bernstein
LLP, Robert T. Glickman -- rtg@mccarthylebit.com -- of McCarthy
Lebit Crystal & Liffman Co. LPA, Steven A. Schwartz and Alison G.
Gushue -- AlisonGushue@chimicles.com -- of Chimicles & Tikellis
LLP, James C. Shah and Nathan Zipperian of Shepherd Finkelman
Miller & Shah LLP, Jonathan Shub of Seeger Weiss LLP, Richard J.
Burke of the Complex Litigation Group LLC and the Law Office of
Mark Schlachet.
Whirlpool is represented by Stephen M. Shapiro, Timothy S. Bishop,
Jeffrey W. Sarles and Joshua D. Yount of Mayer Brown LLP, Malcolm
Wheeler -- wheeler@wtotrial.com -- Galen Bellamy --
bellamy@wtotrial.com -- and Joel S. Neckers --
neckers@wtotrial.com -- of Wheeler Trigg O'Donnell LLP, and F.
Daniel Balmert -- fdbalmert@vorys.com -- and Anthony O'Malley --
ajomalley@vorys.com -- of Vorys Sater Seymour & Pease LLP.
The case is In re: Whirlpool Corp. Front-Loading Washer Products
Liability Litigation, case number 1:08-wp-65000, in the U.S.
District Court for the Northern District of Ohio.
WONDERFUL PARADISE: Faces "Villardi" Suit Over Failure to Pay OT
----------------------------------------------------------------
Ersy Villardi and all others similarly situated under 29 U.S.C.
216(b) v. Wonderful Paradise Learning, Center, Corp., Mach 87
Academy Inc., Eliux Velazquez, and Ramos Aymee Hernandez, Case No.
1:14-cv-23412 (S.D. Fla., September 16, 2014), is brought against
the Defendant for failure to pay overtime wages for work performed
in excess of 40 hours weekly.
The Defendants own and operate a child day care center in Miami,
Florida.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
J.H. ZIDELL, P.A.
300 71st Street, Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: 865-7167
E-mail: ZABOGADO@AOL.COM
YELP INC: Case Management Conference in Curry Suit Moved to April
-----------------------------------------------------------------
District Judge Jon S. Tigar signed a stipulation and order on
September 2, 2014, continuing the initial case management
conference, resetting related deadlines, and extending the
defendants' time to respond to the complaint in the case captioned
JOSEPH CURRY, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. YELP INC., JEREMY STOPPELMAN, ROBERT J.
KROLIK and GEOFFREY DONAKER Defendants, CASE NO. 3:14-CV-03547-
JST, (N.D. Cal.).
The court-approved stipulation, a copy of which is available at
http://is.gd/1AV0Y8from Leagle.com, provides that:
1. Defendants will not be required to move or otherwise respond to
the Complaint until a date set after the appointment of a Lead
Plaintiff pursuant to 15 U.S.C. Section78u-4(a)(3)(B) and after
the filing by the Lead Plaintiff of a consolidated complaint.
2. Following the appointment of Lead Plaintiff, the Defendants and
counsel for the Lead Plaintiff will meet and confer in good faith
to establish a schedule for the filing of a consolidated complaint
and for the Defendants' response.
3. The case management conference currently scheduled for November
12, 2014, is continued to April 29, 2015, at 2:00 p.m., Courtroom
9, 19th Floor, 450 Golden Gate Avenue, San Francisco, California.
All deadlines which are normally calculated from the date of the
initial case management conference under the Federal Rules of
Civil Procedure or Civil Local Rules (including ADR deadlines) are
vacated. A joint case management statement is due April 17, 2015.
In that statement, the parties will include in their proposed
schedule the reinstatement of those vacated dates. The parties may
move to further continue, or advance, the case management
conference, as appropriate, based on the pendency of any motions
to consolidate, designate a lead plaintiff, or dismiss a
consolidated complaint
YELP INC. AARON SCHUR San Francisco, CA Attorneys for Defendants
Yelp Inc., Jeremy Stoppelman, Robert J. Krolik and Geoffrey
Donaker
ROBBINS GELLER RUDMAN & DOWD LLP SHAWN A. WILLIAMS --
shawnw@rgrdlaw.com -- San Francisco, CA, and ROBBINS GELLER RUDMAN
& DOWD LLP DARREN J. ROBBINS -- darrenr@rgrdlaw.com -- DAVID C.
WALTON -- davew@rgrdlaw.com -- San Diego, CA, Attorneys for
Plaintiff.
Asbestos Litigation
ASBESTOS UPDATE: Enpro's GST Accrues $280.5MM Fibro Liability
-------------------------------------------------------------
Enpro Industries, Inc.'s Garlock Sealing Technologies LLC accrued
$280.5 million liability for present and future asbestos claims,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
The Company states: "The historical business operations of GST LLC
and Anchor resulted in a substantial volume of asbestos litigation
in which plaintiffs alleged personal injury or death as a result
of exposure to asbestos fibers in products produced or sold by GST
LLC or Anchor, together with products produced and sold by
numerous other companies. GST LLC and Anchor manufactured and/or
sold industrial sealing products that contained encapsulated
asbestos fibers. Other of our subsidiaries that manufactured or
sold equipment that may have at various times in the past
contained asbestos-containing components have also been named in a
number of asbestos lawsuits, but neither we nor any of our
subsidiaries other than GST LLC and Anchor have ever paid an
asbestos claim.
"Since the first asbestos-related lawsuits were filed against GST
LLC in 1975, GST LLC and Anchor have processed more than 900,000
claims to conclusion, and, together with insurers, have paid over
$1.4 billion in settlements and judgments and over $400 million in
fees and expenses. Our subsidiaries' exposure to asbestos
litigation and their relationships with insurance carriers have
been managed through Garrison.
"On June 5, 2010, GST LLC, Garrison and Anchor filed voluntary
petitions for reorganization under Chapter 11 of the United States
Bankruptcy Code in the Bankruptcy Court. The filings were the
initial step in a claims resolution process, which is ongoing.
"During the pendency of the Chapter 11 proceedings, certain
actions proposed to be taken by GST not in the ordinary course of
business are subject to approval by the Bankruptcy Court. As a
result, during the pendency of these proceedings, we do not have
exclusive control over these companies. Accordingly, as required
by GAAP, GST was deconsolidated beginning on the Petition Date.
"As a result of the initiation of the Chapter 11 proceedings, the
resolution of asbestos claims is subject to the jurisdiction of
the Bankruptcy Court. The filing of the Chapter 11 cases
automatically stayed the prosecution of pending asbestos bodily
injury and wrongful death lawsuits, and initiation of new such
lawsuits, against GST. Further, the Bankruptcy Court issued an
order enjoining plaintiffs from bringing or further prosecuting
asbestos products liability actions against affiliates of GST,
including EnPro, Coltec and all their subsidiaries, during the
pendency of the Chapter 11 proceedings, subject to further order.
As a result, except as a result of the resolution of appeals from
verdicts rendered prior to the Petition Date and the elimination
of claims as a result of information obtained in the Chapter 11
proceedings, the numbers of asbestos claims pending against our
subsidiaries have not changed since the Petition Date, and those
numbers continue to be as reported in our 2009 Form 10-K and our
quarterly reports for the first and second quarters of 2010.
"On June 5, 2010, according to Garrison's claim records, there
were more than 90,000 total claims pending against GST LLC, of
which approximately 5,800 were claims alleging the disease
mesothelioma. Mesothelioma is a rare cancer of the protective
lining of many of the body's internal organs, principally the
lungs. The primary cause of mesothelioma is believed to be
exposure to asbestos. As a result of asbestos tort reform during
the 2000s, most active asbestos-related lawsuits, and a large
majority of the amount of payments made by our subsidiaries in the
years immediately preceding the Petition Date, have been of claims
alleging mesothelioma. In total, GST LLC has paid $563.2 million
to resolve a total of 15,300 mesothelioma claims, and another
5,700 mesothelioma claims have been dismissed without payment.
"In order to estimate the allowed amount for mesothelioma claims
against GST, the Bankruptcy Court approved a process whereby all
current GST LLC mesothelioma claimants were required to respond to
a questionnaire about their claims. Questionnaires were
distributed to the mesothelioma claimants identified in Garrison's
claims database. Many of the 5,800 claimants (over 500) did not
respond to the questionnaire at all; many others (more than 1,900)
clarified that: claimants do not have mesothelioma, claimants
cannot establish exposure to GST products, claims were dismissed,
settled or withdrawn, claims were duplicates of other filed
claims, or claims were closed or inactive. Still others responded
to the questionnaire but their responses were deficient in some
material respect. As a result of this process, less than 3,300
claimants presented questionnaires asserting mesothelioma claims
against GST LLC as of the Petition Date and many of them did not
establish exposure to GST products or have claims that are
otherwise deficient.
"Since June 5, 2010, many asbestos-related lawsuits have been
filed by claimants against other companies in state and federal
courts, and many of those claimants might also have included GST
LLC as a defendant but for the bankruptcy injunction. Many of
those claimants likely will make claims against GST in the
bankruptcy proceeding.
"We believe that the asbestos-containing products manufactured or
sold by GST could not have been a substantial contributing cause
of any asbestos-related disease. The asbestos in the products was
encapsulated, which means the asbestos fibers incorporated into
the products during the manufacturing process were sealed in
binders. The products were also nonfriable, which means they could
not be crumbled by hand pressure. The U.S. Occupational Safety and
Health Administration, which began generally requiring warnings on
asbestos-containing products in 1972, has never required that a
warning be placed on products such as GST LLC's gaskets. Even
though no warning label was required, GST LLC included one on all
of its asbestos-containing products beginning in 1978. Further,
gaskets such as those previously manufactured and sold by GST LLC
are one of the few asbestos-containing products still permitted to
be manufactured under regulations of the U.S. Environmental
Protection Agency. Nevertheless, GST LLC discontinued all
manufacture and distribution of asbestos-containing products in
the U.S. during 2000 and worldwide in mid-2001.
"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 June 30, 2014,
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 $500,000 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 $700,000 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.
"At June 30, 2014 we had $100.7 million of insurance coverage we
believe is available to cover current and future asbestos claims
payments and certain expense payments. GST has collected insurance
payments totaling $95.4 million since June 5, 2010. Of the $100.7
million of available insurance coverage remaining, we consider
$100.0 million (99%) to be of high quality because the insurance
policies are written or guaranteed by U.S.-based carriers whose
credit rating by S&P is investment grade (BBB-) or better, and
whose AM Best rating is excellent (A-) or better. Of the $100.7
million, $64.6 million is allocated to claims that were paid by
GST LLC prior to the initiation of the Chapter 11 proceedings and
submitted to insurance companies for reimbursement, and the
remainder is allocated to pending and estimated future claims.
There are specific agreements in place with carriers covering
$66.2 million of the remaining available coverage. Based on those
agreements and the terms of the policies in place and prior
decisions concerning coverage, we believe that substantially all
of the $100.7 million of insurance proceeds will ultimately be
collected, although there can be no assurance that the insurance
companies will make the payments as and when due. The $100.7
million is in addition to the $21.3 million collected in the first
six months of 2014. Based on those agreements and policies, some
of which define specific annual amounts to be paid and others of
which limit the amount that can be recovered in any one year, we
anticipate that $38.7 million will become collectible at the
conclusion of GST's Chapter 11 proceeding and, assuming the
insurers pay according to the agreements and policies, that the
following amounts should be collected in the years regardless of
when the case concludes:
2015 -- $20 million
2016 -- $18 million
2017 -- $13 million
2018 -- $11 million
"GST LLC has received $8.1 million of insurance recoveries from
insolvent carriers since 2007 and may receive additional payments
from insolvent carriers in the future, including a $900,000
payment received in the quarter. No anticipated insolvent carrier
collections are included in the $100.7 million of anticipated
collections. The insurance available to cover current and future
asbestos claims is from comprehensive general liability policies
that cover Coltec and certain of its other subsidiaries in
addition to GST LLC for periods prior to 1985 and therefore could
be subject to potential competing claims of other covered
subsidiaries and their assignees.
"Our recorded asbestos liability as of June 5, 2010, was $472.1
million. We based that recorded liability on an estimate of
probable and estimable expenditures to resolve asbestos personal
injury claims under generally accepted accounting principles, made
with the assistance of Garrison and an estimation expert, Bates
White, retained by GST LLC's counsel. The estimate developed was
an estimate of the most likely point in a broad range of potential
amounts that GST LLC might pay to resolve asbestos claims (by
settlement in the majority of the cases except those dismissed or
tried) over the ten-year period following the date of the estimate
in the state court system, plus accrued but unpaid legal fees. The
estimate, which was not discounted to present value, did not
reflect GST LLC's views of its actual legal liability; GST LLC has
continuously maintained that its products could not have been a
substantial contributing cause of any asbestos disease. Instead,
the liability estimate reflected GST LLC's recognition that most
claims would be resolved more efficiently and at a significantly
lower total cost through settlements without any actual liability
determination.
"From June 5, 2010, through the first quarter of 2014, neither we
nor GST endeavored to update the accrual since the Petition Date
except as necessary to reflect payments of accrued fees and the
disposition of cases on appeal. In each asbestos-driven Chapter 11
case that has been resolved previously, the amount of the debtor's
liability has been determined as part of a consensual plan of
reorganization agreed to by the debtor, its asbestos claimants and
a legal representative for its potential future claimants. GST did
not believe that there was a reliable process by which an estimate
of such a consensual resolution could be made and therefore
believed that there was no basis upon which it could revise the
estimate last updated prior to the Petition Date.
"Given the Bankruptcy Court's January 2014 decision estimating
GST's liability for present and future mesothelioma claims at $125
million and GST's filing of its first amended proposed plan of
reorganization setting out its intention to fund a plan with total
consideration of $275 million, GST believes that its ultimate
payment to resolve all present and future asbestos claims against
it will be no less than the amounts required under its amended
proposed plan. Similarly, while GST believes it to be an unlikely
worst case scenario, GST believes its ultimate costs to resolve
all asbestos claims against it could be no more than the total
value of GST. As a result, GST believes that its ultimate asbestos
liability will be somewhere in that range between those two values
and therefore believes it is appropriate to revise its estimate to
the low end of the range. Accordingly, GST revised its estimate of
its ultimate payment to resolve all present and future asbestos
claims. The amended plan provides $275 million in total funding
for (a) present and future asbestos claims against GST that have
not been resolved by settlement or verdict prior to the Petition
Date, and (b) administrative and litigation costs. The amended
plan also provides that GST will pay in full claims that had been
resolved by settlement or verdict prior to the Petition Date and
were not paid prior to the Petition Date. GST estimates the range
of its aggregate liability for unpaid settled asbestos claims to
be from $3.1 million to $16.4 million. Therefore, in accordance
with applicable accounting rules, GST recorded a liability for
claims settled but not paid prior to the Petition Date at the low
end of the range, which is $3.1 million. GST also accrued $2.4
million for claims resolved by verdict prior to the Petition Date
that were not paid prior to the Petition Date. Therefore, the
liability accrual at June 30, 2014 for present and future asbestos
claims, including claims resolved by settlement or verdict prior
to June 5, 2010, and were not paid prior to June 5, 2010, was
$280.5 million.
"On May 29, 2014, GST filed an amended proposed plan of
reorganization and a proposed disclosure statement for such
amended plan. The plan provides $275 million in total funding for
(a) present and future asbestos claims against GST that have not
been resolved by settlement or verdict prior to the Petition Date,
and (b) administrative and litigation costs. The $275 million is
to be funded by GST ($245 million) and the Company's subsidiary,
Coltec Industries Inc ($30 million), through two facilities -- a
settlement facility (which would receive $245 million) and a
litigation facility (which would receive $30 million). Funds
contained in the settlement facility and the litigation facility
would provide the exclusive remedies for current and future GST
asbestos claimants, other than claimants whose claims had been
resolved by settlement or verdict prior to the Petition Date and
were not paid prior to the Petition Date. The $275 million amount
is more than double the $125 million that the Bankruptcy Court
found to be a reasonable and reliable measure of the amount
sufficient to satisfy present and future mesothelioma claims
against GST, and was determined based on an economic analysis of
the feasibility of the proposed plan.
"The amended plan also provides that GST will pay in full claims
that had been resolved by settlement or verdict prior to the
Petition Date and were not paid prior to the Petition Date (with
respect to claims resolved by verdict, such payments will be made
only to the extent the verdict becomes final). The amount of such
claims resolved by final verdict is $2.4 million. The Bankruptcy
Court has set September 30, 2014 as the bar date for filing proofs
of claim for settled asbestos claims. GST estimates the range of
its aggregate liability for unpaid settled asbestos claims to be
from $3.1 million to $16.4 million.
"The plan includes provisions referred to as the "Parent
Settlement" for the resolution and extinguishment of any and all
alleged derivative claims against us based on GST asbestos
products and entry of an injunction permanently protecting us from
the assertion of such claims. As consideration for the Parent
Settlement, Coltec would contribute $30 million of the amount
proposed to be paid into the settlement facility to pay future
claimants and $500,000 to fund certain plan implementation
expenses and would consent to subordinate our rights to any
insurance coverage in favor of a first priority lien securing $25
million of funding for the litigation facility. Those provisions
are incorporated into the terms of the proposed plan only in the
context of the specifics of that plan, which would result in the
equity interests of GST being retained by the reconsolidation of
GST into the Company with substantial equity above the amount of
equity currently included in our consolidated financial
statements, and an injunction protecting us from future GST
claims.
"Confirmation and consummation of the plan are subject to a number
of risks and uncertainties, including the actions and decisions of
creditors and other third parties that have an interest in the
bankruptcy proceedings, delays in the confirmation or effective
date of a plan of reorganization due to factors beyond GST's or
our control, which would result in greater costs and the
impairment of value of GST, appeals and other challenges to the
plan and risks and uncertainties affecting GST and Coltec's
ability to fund anticipated contributions under the plan as a
result of adverse changes in their results of operations,
financial condition and capital resources, including as a result
of economic factors beyond their control. Accordingly, we cannot
assure you that GST will be able to obtain Bankruptcy Court
approval of its amended plan of reorganization and the settlement
and resolution of claims and related releases of liability
embodied therein, and the time period for the resolution of the
bankruptcy proceedings is not presently determinable."
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: U.S. Auto Parts Units Continue to Defend Suit
--------------------------------------------------------------
Subsidiaries of U.S. Auto Parts Network, Inc., continue to defend
themselves against lawsuits involving claims for damages caused by
installation of brakes that contained asbestos, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 28, 2014.
A wholly-owned subsidiary of the Company, Automotive Specialty
Accessories and Parts, Inc. and its wholly-owned subsidiary WAG,
are named defendants in several lawsuits involving claims for
damages caused by installation of brakes during the late 1960's
and early 1970's that contained asbestos. WAG marketed certain
brakes, but did not manufacture any brakes. WAG maintains
liability insurance coverage to protect its and the Company's
assets from losses arising from the litigation and coverage is
provided on an occurrence rather than a claims made basis, and the
Company is not expected to incur significant out-of-pocket costs
in connection with this matter that would be material to its
consolidated financial statements."
U.S. Auto Parts Network, Inc. (U.S. Auto Parts) offers online
sources for automotive aftermarket parts and repairs information.
The Company principally sells its products, identified as stock
keeping units (SKUs), to individual consumers through its network
of Websites and online marketplaces. The Company's Websites
provide customers with a selection of approximately two million
SKUs with product descriptions and photographs. The Company has
developed a product database that maps its SKUs to product
applications based on vehicle makes, models and years. It offers a
selection of aftermarket auto parts. U.S. Auto Parts classifies
its products into three categories: body parts, engine parts, and
performance parts and accessories. The Company sources its
products from foreign manufacturers and importers located in
Taiwan and China, and from the United States manufacturers and
distributors.
ASBESTOS UPDATE: Rexnord Continues to Defend Stearns PI Suits
-------------------------------------------------------------
Rexnord Corporation continues to defend itself against numerous
lawsuits relating to personal injuries due to alleged presence of
asbestos in products manufactured by the Company's Stearns
division, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2014.
Multiple lawsuits (with approximately 1,000 claimants) are pending
in state or federal court in numerous jurisdictions relating to
alleged personal injuries due to the alleged presence of asbestos
in certain brakes and clutches previously manufactured by the
Company's Stearns division and/or its predecessor owners.
Invensys and FMC, prior owners of the Stearns business, have paid
100% of the costs to date related to the Stearns lawsuits.
Rexnord Corporation (Rexnord) is a multi-platform industrial
company. The Company comprises of two platforms, Process & Motion
Control and Water Management. Rexnord's Process & Motion Control
product portfolio includes gears, couplings, industrial bearings,
aerospace bearings and seals, FlatTop chain, engineered chain and
conveying equipment, and are marketed and sold globally under
brands, including Rexnord, Rex, Falk and Link-Belt. Its Water
Management platform operates in the commercial construction market
for water management products and the municipal water and
wastewater treatment markets. Its Water Management product
portfolio includes drainage products, flush valves and faucet
products, backflow prevention pressure release valves, PEX piping
and engineered valves and gates for the water and wastewater
treatment markets. In April 2014, the Company acquired Green
Turtle Technologies Ltd., Green Turtle Americas Ltd. and Filamat
Composites Inc.
ASBESTOS UPDATE: Rexnord's Prager Unit Continues to Defend Suits
----------------------------------------------------------------
Rexnord Corporation's Prager subsidiary continues to defend itself
against numerous lawsuits relating to personal injuries due to
alleged presence of asbestos in products it manufactured,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
The Company's Prager subsidiary is a defendant in two pending
multi-defendant lawsuits relating to alleged personal injuries due
to the alleged presence of asbestos in a product allegedly
manufactured by Prager. Additionally, there are numerous
individuals who have filed asbestos related claims against Prager;
however, these claims are currently on the Texas Multi-district
Litigation inactive docket. The ultimate outcome of these
asbestos matters cannot presently be determined. To date, the
Company's insurance providers have paid 100% of the costs related
to the Prager asbestos matters. The Company believes that the
combination of its insurance coverage and the Invensys indemnity
obligations will cover any future costs of these matters.
Rexnord Corporation (Rexnord) is a multi-platform industrial
company. The Company comprises of two platforms, Process & Motion
Control and Water Management. Rexnord's Process & Motion Control
product portfolio includes gears, couplings, industrial bearings,
aerospace bearings and seals, FlatTop chain, engineered chain and
conveying equipment, and are marketed and sold globally under
brands, including Rexnord, Rex, Falk and Link-Belt. Its Water
Management platform operates in the commercial construction market
for water management products and the municipal water and
wastewater treatment markets. Its Water Management product
portfolio includes drainage products, flush valves and faucet
products, backflow prevention pressure release valves, PEX piping
and engineered valves and gates for the water and wastewater
treatment markets. In April 2014, the Company acquired Green
Turtle Technologies Ltd., Green Turtle Americas Ltd. and Filamat
Composites Inc.
ASBESTOS UPDATE: Rexnord's Zurn Has 7,000 Pending PI Suits
----------------------------------------------------------
There were approximately 7,000 asbestos-related lawsuits against
Rexnord Corporation's Zurn subsidiary, according to the Company's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2014.
As of June 30, 2014, Zurn and numerous other unrelated companies
were defendants in approximately 7,000 asbestos related lawsuits
representing approximately 26,000 claims. Plaintiffs' claims
allege personal injuries caused by exposure to asbestos used
primarily in industrial boilers formerly manufactured by a segment
of Zurn. Zurn did not manufacture asbestos or asbestos components.
Instead, Zurn purchased them from suppliers. These claims are
being handled pursuant to a defense strategy funded by insurers.
As of June 30, 2014, the Company estimates the potential liability
for asbestos-related claims, as well as the claims expected to be
filed in the next ten years to be approximately $36.0 million, of
which Zurn expects its insurance carriers to pay approximately
$29.0 million in the next ten years on such claims, with the
balance of the estimated liability being paid in subsequent years.
The $36.0 million was developed based on an actuarial study and
represents the projected indemnity payout for claims filed in the
next 10 years. However, there are inherent uncertainties involved
in estimating the number of future asbestos claims, future
settlement costs, and the effectiveness of defense strategies and
settlement initiatives. As a result, actual liability could differ
from the estimate described herein. Further, while this current
asbestos liability is based on an estimate of claims through the
next ten years, such liability may continue beyond that time
frame, and such liability could be substantial.
Management estimates that its available insurance to cover this
potential asbestos liability as of June 30, 2014, is approximately
$250.5 million, and believes that all current claims are covered
by insurance. However, principally as a result of the past
insolvency of certain of the Company's insurance carriers, certain
coverage gaps will exist if and after the Company's other carriers
have paid the first $174.5 million of aggregate liabilities.
As of June 30, 2014, the Company had a recorded receivable from
its insurance carriers of $36.0 million, which corresponds to the
amount of this potential asbestos liability that is covered by
available insurance and is currently determined to be probable of
recovery. However, there is no assurance that $250.5 million of
insurance coverage will ultimately be available or that this
asbestos liability will not ultimately exceed $250.5 million.
Factors that could cause a decrease in the amount of available
coverage include: changes in law governing the policies, potential
disputes with the carriers regarding the scope of coverage, and
insolvencies of one or more of the Company's carriers.
Rexnord Corporation (Rexnord) is a multi-platform industrial
company. The Company comprises of two platforms, Process & Motion
Control and Water Management. Rexnord's Process & Motion Control
product portfolio includes gears, couplings, industrial bearings,
aerospace bearings and seals, FlatTop chain, engineered chain and
conveying equipment, and are marketed and sold globally under
brands, including Rexnord, Rex, Falk and Link-Belt. Its Water
Management platform operates in the commercial construction market
for water management products and the municipal water and
wastewater treatment markets. Its Water Management product
portfolio includes drainage products, flush valves and faucet
products, backflow prevention pressure release valves, PEX piping
and engineered valves and gates for the water and wastewater
treatment markets. In April 2014, the Company acquired Green
Turtle Technologies Ltd., Green Turtle Americas Ltd. and Filamat
Composites Inc.
ASBESTOS UPDATE: Rexnord Continues to Defend Falk PI Suits
----------------------------------------------------------
Rexnord Corporation continues to defend itself against numberous
lawsuits alleging personal injuries due to alleged presence of
asbestos in certain products manufactured by its former
subsidiary, The Falk Corporation, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2014.
The Falk Corporation, through its successor entity, is a defendant
in multiple lawsuits pending in state or federal court in numerous
jurisdictions relating to alleged personal injuries due to the
alleged presence of asbestos in certain clutches and drives
previously manufactured by Falk. There are approximately 100
claimants in these suits. The ultimate outcome of these lawsuits
cannot presently be determined. Hamilton Sundstrand is defending
the Company in these lawsuits pursuant to its indemnity
obligations and has paid 100% of the costs to date.
Rexnord Corporation (Rexnord) is a multi-platform industrial
company. The Company comprises of two platforms, Process & Motion
Control and Water Management. Rexnord's Process & Motion Control
product portfolio includes gears, couplings, industrial bearings,
aerospace bearings and seals, FlatTop chain, engineered chain and
conveying equipment, and are marketed and sold globally under
brands, including Rexnord, Rex, Falk and Link-Belt. Its Water
Management platform operates in the commercial construction market
for water management products and the municipal water and
wastewater treatment markets. Its Water Management product
portfolio includes drainage products, flush valves and faucet
products, backflow prevention pressure release valves, PEX piping
and engineered valves and gates for the water and wastewater
treatment markets. In April 2014, the Company acquired Green
Turtle Technologies Ltd., Green Turtle Americas Ltd. and Filamat
Composites Inc.
ASBESTOS UPDATE: Transocean Unit Facing 851 PI Suits at June 30
---------------------------------------------------------------
Transocean Ltd., disclosed that one of its subsidiaries was a
defendant in approximately 851 lawsuits alleging bodily injury or
personal injury as a result of exposure to asbestos, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2014.
The Company states: "One of our subsidiaries was involved in
lawsuits arising out of the subsidiary's involvement in the
design, construction and refurbishment of major industrial
complexes. The operating assets of the subsidiary were sold and
its operations discontinued in 1989, and the subsidiary has no
remaining assets other than the insurance policies involved in its
litigation, with its insurers and, either directly or indirectly
through a qualified settlement fund. The subsidiary has been named
as a defendant, along with numerous other companies, in lawsuits
alleging bodily injury or personal injury as a result of exposure
to asbestos. As of June 30, 2014, the subsidiary was a defendant
in approximately 851 lawsuits, some of which include multiple
plaintiffs, and we estimate that there are approximately 1,672
plaintiffs in these lawsuits. For many of these lawsuits, we have
not been provided with sufficient information from the plaintiffs
to determine whether all or some of the plaintiffs have claims
against the subsidiary, the basis of any such claims, or the
nature of their alleged injuries. The first of the asbestos-
related lawsuits was filed against the subsidiary in 1990. Through
June 30, 2014, the costs incurred to resolve claims, including
both defense fees and expenses and settlement costs, have not been
material, all known deductibles have been satisfied or are
inapplicable, and the subsidiary's defense fees and expenses and
settlement costs have been met by insurance made available to the
subsidiary. The subsidiary continues to be named as a defendant in
additional lawsuits, and we cannot predict the number of
additional cases in which it may be named a defendant nor can we
predict the potential costs to resolve such additional cases or to
resolve the pending cases. However, the subsidiary has in excess
of $1.0 billion in insurance limits potentially available to the
subsidiary. Although not all of the policies may be fully
available due to the insolvency of certain insurers, we believe
that the subsidiary will have sufficient funding directly or
indirectly from settlements and claims payments from insurers,
assigned rights from insurers and coverage-in-place settlement
agreements with insurers to respond to these claims. While we
cannot predict or provide assurance as to the outcome of these
matters, we do not believe that the ultimate liability, if any,
arising from these claims will have a material impact on our
consolidated statement of financial position, results of
operations or cash flows."
Transocean Ltd. (Transocean) is an international provider of
offshore contract drilling services for oil and gas wells. The
Company operates in two segments: contract drilling services and
drilling management services. Contract drilling services, the
Company's primary business, involves contracting its mobile
offshore drilling fleet, related equipment and work crews
primarily on a dayrate basis to drill oil and gas wells. Its
drilling management services segment provides oil and gas drilling
management services on either a dayrate basis or a completed-
project, fixed-price (or turnkey) basis, as well as drilling
engineering and drilling project management services. As of
February 14, 2012, it owned or had partial ownership interests in
and operated 134 mobile offshore drilling units. On October 4,
2011, the Company acquired Aker Drilling ASA (Aker Drilling). In
February 2011, it sold the subsidiary that owns the High-
Specification Jackup Trident 20.
ASBESTOS UPDATE: Transocean Units Have 15 Suits in Mississippi
--------------------------------------------------------------
There are approximately 15 asbestos-related lawsuits pending in
Mississippi against Transocean Ltd.'s subsidiaries, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2014.
The Company states: "In 2004, several of our subsidiaries were
named, along with numerous other unaffiliated defendants, in 21
complaints filed on behalf of 769 plaintiffs in the Circuit Courts
of the State of Mississippi and which claimed injuries arising out
of exposure to asbestos allegedly contained in drilling mud during
these plaintiffs' employment in drilling activities between 1965
and 1986. The Circuit Courts subsequently dismissed the original
21 multi-plaintiff complaints and required each plaintiff to file
a separate lawsuit. After certain individual claims were
dismissed, 593 separate lawsuits remained, each with a single
plaintiff. We have or may have direct or indirect interest in a
total of 20 cases in Mississippi. The complaints generally allege
that the defendants used or manufactured asbestos-containing
drilling mud additives for use in connection with drilling
operations and have included allegations of negligence, products
liability, strict liability and claims allowed under the Jones Act
and general maritime law. The plaintiffs generally seek awards of
unspecified compensatory and punitive damages. In each of these
cases, the complaints have named other unaffiliated defendant
companies, including companies that allegedly manufactured the
drilling-related products that contained asbestos. With the
exception of cases pending in Jones and Jefferson counties, these
cases are being governed for discovery and trial setting by a
single Case Management Order entered by a Special Master appointed
by the court to preside over the cases. Of the 20 cases in which
we have or may have an interest, two have been scheduled for
trial. During the year ended December 31, 2013, one of these two
cases was resolved through a negotiated settlement for a nominal
sum. In the other case, we were not named as a direct defendant,
but the Special Master granted a Motion for Summary Judgment based
on the absence of medical evidence in favor of all defendants. We
have obtained a similar ruling on summary judgment dismissing
three additional cases where we were a direct defendant. The
resolution of these five cases leaves 15 remaining lawsuits in
Mississippi in which we have or may have an interest.
"In 2011, the Special Master issued a ruling that a Jones Act
employer defendant, such as us, cannot be sued for punitive
damages, and this ruling has now been obtained in three of our
cases. To date, seven of the 593 cases have gone to trial against
defendants who allegedly manufactured or distributed drilling mud
additives. None of these cases has involved an individual Jones
Act employer, and we have not been a defendant in any of these
cases."
Transocean Ltd. (Transocean) is an international provider of
offshore contract drilling services for oil and gas wells. The
Company operates in two segments: contract drilling services and
drilling management services. Contract drilling services, the
Company's primary business, involves contracting its mobile
offshore drilling fleet, related equipment and work crews
primarily on a dayrate basis to drill oil and gas wells. Its
drilling management services segment provides oil and gas drilling
management services on either a dayrate basis or a completed-
project, fixed-price (or turnkey) basis, as well as drilling
engineering and drilling project management services. As of
February 14, 2012, it owned or had partial ownership interests in
and operated 134 mobile offshore drilling units. On October 4,
2011, the Company acquired Aker Drilling ASA (Aker Drilling). In
February 2011, it sold the subsidiary that owns the High-
Specification Jackup Trident 20.
ASBESTOS UPDATE: Transocean Units Have 4 Suits in Louisiana
-----------------------------------------------------------
There are approximately four asbestos-related lawsuits pending in
Louisiana against Transocean Ltd.'s subsidiaries, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2014.
The Company states: "During the year ended December 31, 2013, a
group of lawsuits premised on the same allegations as those in
Mississippi were filed in Louisiana. Four of the original cases
were dismissed through early motions. As of June 30, 2014, 20
plaintiffs have claims pending against one or more of our
subsidiaries in four different lawsuits in Louisiana. We intend to
defend these lawsuits vigorously, although we can provide no
assurance as to the outcome. We historically have maintained broad
liability insurance, although we are not certain whether insurance
will cover the liabilities, if any, arising out of these claims.
Based on our evaluation of the exposure to date, we do not expect
the liability, if any, resulting from these claims to have a
material adverse effect on our consolidated statement of financial
position, results of operations or cash flows."
Transocean Ltd. (Transocean) is an international provider of
offshore contract drilling services for oil and gas wells. The
Company operates in two segments: contract drilling services and
drilling management services. Contract drilling services, the
Company's primary business, involves contracting its mobile
offshore drilling fleet, related equipment and work crews
primarily on a dayrate basis to drill oil and gas wells. Its
drilling management services segment provides oil and gas drilling
management services on either a dayrate basis or a completed-
project, fixed-price (or turnkey) basis, as well as drilling
engineering and drilling project management services. As of
February 14, 2012, it owned or had partial ownership interests in
and operated 134 mobile offshore drilling units. On October 4,
2011, the Company acquired Aker Drilling ASA (Aker Drilling). In
February 2011, it sold the subsidiary that owns the High-
Specification Jackup Trident 20.
ASBESTOS UPDATE: Watts Water Obtains Dismissal of 47 PI Suits
-------------------------------------------------------------
Watts Water Technologies, Inc., has obtained a dismissal of the 47
asbestos-related lawsuits pending against it, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 29, 2014.
The Company is defending 47 lawsuits in different jurisdictions,
alleging injury or death as a result of exposure to asbestos. The
complaints in these cases typically name a large number of
defendants and do not identify any particular Company products as
a source of asbestos exposure. As of June 29, 2014, the Company
has obtained a dismissal in every case before it has reached trial
because discovery has failed to yield evidence of substantial
exposure to any Company products.
Watts Water Technologies, Inc. (Watts)is a supplier of products
for use in the water quality, water safety, water flow control and
water conservation markets in both North America and Europe with a
presence in Asia. It operates in three geographic segments: North
America, Europe and Asia. Watts has manufacturing facilities, such
as Mexico, China, Bulgaria and Tunisia. Its products are sold to
wholesale distributors and dealers, do-it-yourself (DIY) chains
and original equipment manufacturers (OEMs). During the year ended
December 31, 2012, it began classifying its many products into
four universal product lines. These product lines are residential
and commercial flow control products, heating, ventilation and air
conditioning (HVAC) and gas products, drains and water re-use
products and water quality products. On January 31, 2012, it
completed the acquisition of tekmar Control Systems (tekmar). In
December 2012, it sold its subsidiary Flomatic Corporation, to
Boshart Industries Inc.
ASBESTOS UPDATE: ConEdison Records $8MM Liability for Fibro Suits
-----------------------------------------------------------------
Consolidated Edison, Inc., accrued liability for asbestos suits
was $8 million, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2014.
Suits have been brought in New York State and federal courts
against the Utilities and many other defendants, wherein a large
number of plaintiffs sought large amounts of compensatory and
punitive damages for deaths and injuries allegedly caused by
exposure to asbestos at various premises of the Utilities. The
suits that have been resolved, which are many, have been resolved
without any payment by the Utilities, or for amounts that were
not, in the aggregate, material to them. The amounts specified in
all the remaining thousands of suits total billions of dollars;
however, the Utilities believe that these amounts are greatly
exaggerated, based on the disposition of previous claims. In 2013,
Con Edison and Consolidated Edison Company of New York, Inc.
(CECONY) estimated that their aggregate undiscounted potential
liabilities for these suits and additional suits that may be
brought over the next 15 years were $8 million and $7 million,
respectively. The estimates were based upon a combination of
modeling, historical data analysis and risk factor assessment.
Actual experience may be materially different. In addition,
certain current and former employees have claimed or are claiming
workers' compensation benefits based on alleged disability from
exposure to asbestos. Under its current rate plans, CECONY is
permitted to defer as regulatory assets (for subsequent recovery
through rates) costs incurred for its asbestos lawsuits and
workers' compensation claims.
For Con Edison, at June 30, 2014, the accrued liability for
asbestos suits was $8 million, workers' compensation proceedings
(including those related to asbestos exposure) was $88 million,
and the amounts deferred as regulatory assets for asbestos suits
and workers' compensation were $8 million and $12 million,
respectively.
Consolidated Edison, Inc. (Con Edison) is a holding company, which
owns Consolidated Edison Company of New York, Inc. (CECONY), which
delivers electricity, natural gas and steam to customers in New
York City and Westchester County; Orange and Rockland Utilities,
Inc. (O&R) (together with CECONY referred to as the Utilities),
which delivers electricity and natural gas to customers primarily
located in southeastern New York, and northern New Jersey and
northeastern Pennsylvania, and competitive energy businesses,
which provide retail and wholesale electricity supply and energy
services. CECONY's business operations are its regulated electric,
gas and steam delivery businesses. O&R's business operations are
its regulated electric and gas delivery businesses. In July 2012,
Consolidated Edison Development, a wholly owned subsidiary of Con
Edison, and GCL Solar Energy Inc., a wholly owned subsidiary of
GCL-Poly Energy Holdings Limited, acquired two solar photovoltaic
projects.
ASBESTOS UPDATE: CECONY Has $7MM Liability for Fibro Suits
----------------------------------------------------------
Consolidated Edison, Inc.'s subsidiary, Consolidated Edison
Company of New York, Inc., had $7 million accrued liability for
asbestos suits, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2014.
Suits have been brought in New York State and federal courts
against the Utilities and many other defendants, wherein a large
number of plaintiffs sought large amounts of compensatory and
punitive damages for deaths and injuries allegedly caused by
exposure to asbestos at various premises of the Utilities. The
suits that have been resolved, which are many, have been resolved
without any payment by the Utilities, or for amounts that were
not, in the aggregate, material to them. The amounts specified in
all the remaining thousands of suits total billions of dollars;
however, the Utilities believe that these amounts are greatly
exaggerated, based on the disposition of previous claims. In 2013,
Con Edison and Consolidated Edison Company of New York, Inc.
(CECONY) estimated that their aggregate undiscounted potential
liabilities for these suits and additional suits that may be
brought over the next 15 years were $8 million and $7 million,
respectively. The estimates were based upon a combination of
modeling, historical data analysis and risk factor assessment.
Actual experience may be materially different. In addition,
certain current and former employees have claimed or are claiming
workers' compensation benefits based on alleged disability from
exposure to asbestos. Under its current rate plans, CECONY is
permitted to defer as regulatory assets (for subsequent recovery
through rates) costs incurred for its asbestos lawsuits and
workers' compensation claims.
For CECONY, at June 30, 2014, the accrued liability for asbestos
suits was $7 million, workers' compensation proceedings (including
those related to asbestos exposure) was $82 million, and the
amounts deferred as regulatory assets for asbestos suits and
workers' compensation were $7 million and $12 million,
respectively.
Consolidated Edison, Inc. (Con Edison) is a holding company, which
owns Consolidated Edison Company of New York, Inc. (CECONY), which
delivers electricity, natural gas and steam to customers in New
York City and Westchester County; Orange and Rockland Utilities,
Inc. (O&R) (together with CECONY referred to as the Utilities),
which delivers electricity and natural gas to customers primarily
located in southeastern New York, and northern New Jersey and
northeastern Pennsylvania, and competitive energy businesses,
which provide retail and wholesale electricity supply and energy
services. CECONY's business operations are its regulated electric,
gas and steam delivery businesses. O&R's business operations are
its regulated electric and gas delivery businesses. In July 2012,
Consolidated Edison Development, a wholly owned subsidiary of Con
Edison, and GCL Solar Energy Inc., a wholly owned subsidiary of
GCL-Poly Energy Holdings Limited, acquired two solar photovoltaic
projects.
ASBESTOS UPDATE: ConEdison Has $50MM Liability for 2007 Rupture
---------------------------------------------------------------
Consolidated Edison, Inc., had accrued its estimated liability of
$50 million for the 2007 rupture of its affiliate's steam main,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
In July 2007, a Consolidated Edison Company of New York, Inc.
(CECONY) steam main located in midtown Manhattan ruptured. It has
been reported that one person died and others were injured as a
result of the incident. Several buildings in the area were
damaged. Debris from the incident included dirt and mud containing
asbestos. The response to the incident required the closing of
several buildings and streets for various periods. Approximately
90 suits are pending against the company seeking generally
unspecified compensatory and, in some cases, punitive damages, for
personal injury, property damage and business interruption. The
company has notified its insurers of the incident and believes
that the policies in force at the time of the incident will cover
the company's costs to satisfy its liability to others in
connection with the suits. At June 30, 2014, the company had
accrued its estimated liability for the suits of $50 million and
an insurance receivable in the same amount.
Consolidated Edison, Inc. (Con Edison) is a holding company, which
owns Consolidated Edison Company of New York, Inc. (CECONY), which
delivers electricity, natural gas and steam to customers in New
York City and Westchester County; Orange and Rockland Utilities,
Inc. (O&R) (together with CECONY referred to as the Utilities),
which delivers electricity and natural gas to customers primarily
located in southeastern New York, and northern New Jersey and
northeastern Pennsylvania, and competitive energy businesses,
which provide retail and wholesale electricity supply and energy
services. CECONY's business operations are its regulated electric,
gas and steam delivery businesses. O&R's business operations are
its regulated electric and gas delivery businesses. In July 2012,
Consolidated Edison Development, a wholly owned subsidiary of Con
Edison, and GCL Solar Energy Inc., a wholly owned subsidiary of
GCL-Poly Energy Holdings Limited, acquired two solar photovoltaic
projects.
ASBESTOS ALERT: NRG May Be Subject to EME Fibro Liabilities
-----------------------------------------------------------
NRG Energy, Inc., may be subject to potential asbestos liabilities
as a result of its acquisition of Edison Mission Energy, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2014.
The Company, through its subsidiary, Midwest Generation, LLC, may
be subject to potential asbestos liabilities as a result of its
acquisition of EME. The Company is currently analyzing the scope
of potential liability as it may relate to Midwest Generation,
LLC.
NRG Energy, Inc. (NRG) is an integrated wholesale power generation
and retail electricity company in the United States. NRG is a
wholesale power generator engaged in the ownership and operation
of power generation facilities; the trading of energy, capacity
and related products; and the transacting in and trading of fuel
and transportation services. NRG is a retail energy company
engaged in the supply of energy, services, and sustainable
products to retail customers in competitive markets through
multiple channels and brands like Reliant Energy, Green Mountain
Energy, and Energy Plus (collectively, the Retail Business). In
April 2014, the Company acquired all assets of Edison Mission
Energy (EME) and competitive retail electricity business of
Dominion Resources, Inc. In July 2014, NRG Energy, Inc. acquired
four megawatt Spanish Town Estate Solar project on the Island of
St. Croix in the United States Virgin Islands (USVI) from Toshiba
International Corporation (Toshiba).
ASBESTOS UPDATE: Foster Wheeler Has 124,380 Open U.S. Claims
------------------------------------------------------------
Foster Wheeler AG had 124,380 open U.S. asbestos claims, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2014.
The Company states: "Some of our U.S. and U.K. subsidiaries are
defendants in numerous asbestos-related lawsuits and out-of-court
informal claims pending in the U.S. and the U.K. Plaintiffs claim
damages for personal injury alleged to have arisen from exposure
to or use of asbestos in connection with work allegedly performed
by our subsidiaries during the 1970s and earlier.
"For the three-months ended June 30, 2014, the Company had 124,380
open U.S. claims.
"As of June 30, 2014, the Company's total U.S. asbestos-related
liabilities was $253,132,000.
"We have worked with Analysis, Research & Planning Corporation, or
ARPC, nationally recognized consultants in the U.S. with respect
to projecting asbestos liabilities, to estimate the amount of
asbestos-related indemnity and defense costs at each year-end
based on a forecast for the next 15 years. Each year we have
recorded our estimated asbestos liability at a level consistent
with ARPC's reasonable best estimate. Our estimated asbestos
liability decreased during the first six months of 2014 as a
result of indemnity and defense cost payments totaling
approximately $29,100, partially offset by the impact of an
increase in the liability related to our rolling 15-year asbestos-
related liability estimate of approximately $4,000. The total
asbestos-related liabilities are comprised of our estimates for
our liability relating to open (outstanding) claims being valued
and our liability for future unasserted claims through the second
quarter of 2029.
"Our liability estimate is based upon the following information
and/or assumptions: number of open claims, forecasted number of
future claims, estimated average cost per claim by disease type --
mesothelioma, lung cancer and non-malignancies -- and the
breakdown of known and future claims into disease type --
mesothelioma, lung cancer and non-malignancies, as well as other
factors. The total estimated liability, which has not been
discounted for the time value of money, includes both the estimate
of forecasted indemnity amounts and forecasted defense costs.
Total defense costs and indemnity liability payments are estimated
to be incurred through the second quarter of 2029, during which
period the incidence of new claims is forecasted to decrease each
year. We believe that it is likely that there will be new claims
filed after the second quarter of 2029, but in light of
uncertainties inherent in long-term forecasts, we do not believe
that we can reasonably estimate the indemnity and defense costs
that might be incurred after the second quarter of 2029.
"Through June 30, 2014, total cumulative indemnity costs paid,
prior to insurance recoveries, were approximately $845,100 and
total cumulative defense costs paid were approximately $419,600,
or approximately 33% of total defense and indemnity costs. The
overall historic average combined indemnity and defense cost per
resolved claim through June 30, 2014 has been approximately $3.3.
The average cost per resolved claim is increasing and we believe
it will continue to increase in the future.
"Over the last several years, certain of our subsidiaries have
entered into settlement agreements calling for insurers to make
lump-sum payments, as well as payments over time, for use by our
subsidiaries to fund asbestos-related indemnity and defense costs
and, in certain cases, for reimbursement for portions of out-of-
pocket costs previously incurred. As our subsidiaries reach
agreements with their insurers to settle their disputed asbestos-
related insurance coverage, we increase our asbestos-related
insurance asset and record settlement gains.
"Asbestos-related assets under executed settlement agreements with
insurers due in the next 12 months are recorded within accounts
and notes receivable-other and amounts due beyond 12 months are
recorded within asbestos-related insurance recovery receivable.
Asbestos-related insurance recovery receivable also includes our
best estimate of actual and probable insurance recoveries relating
to our liability for pending and estimated future asbestos claims
through the second quarter of 2029. Our asbestos-related assets
have not been discounted for the time value of money.
"Our insurance recoveries may be limited by future insolvencies
among our insurers. We have not assumed recovery in the estimate
of our asbestos-related insurance asset from any of our currently
insolvent insurers. We have considered the financial viability and
legal obligations of our subsidiaries' insurance carriers and
believe that the insurers or their guarantors will continue to
reimburse a significant portion of claims and defense costs
relating to asbestos litigation. As of June 30, 2014 and December
31, 2013, we have not recorded an allowance for uncollectible
balances against our asbestos-related insurance assets. We write
off receivables from insurers that have become insolvent; there
were no such write-offs during the six months ended June 30, 2014
or 2013. Insurers may become insolvent in the future and our
insurers may fail to reimburse amounts owed to us on a timely
basis. If we fail to realize the expected insurance recoveries, or
experience delays in receiving material amounts from our insurers,
our business, financial condition, results of operations and cash
flows could be materially adversely affected.
"As of June 30, 2014, the Company's approximate U.S. net asbestos-
related provision was $1,209,000. The provision for revaluation
was the result of the accrual of our rolling 15-year asbestos
liability estimate.
"As of June 30, 2014, the Company's net asbestos-related payments
was $10,700,000.
"We expect to have net cash outflows of $31,500 during the full
year 2014 as a result of asbestos liability indemnity and defense
payments in excess of insurance proceeds. This estimate assumes no
settlements with insurance companies and no elections by us to
fund additional payments. As we continue to collect cash from
insurance settlements and assuming no increase in our asbestos-
related insurance liability, the asbestos-related insurance
receivable recorded on our consolidated balance sheet will
continue to decrease.
"The estimate of the liabilities and assets related to asbestos
claims and recoveries is subject to a number of uncertainties that
may result in significant changes in the current estimates. Among
these are uncertainties as to the ultimate number and type of
claims filed, the amounts of claim costs, the impact of
bankruptcies of other companies with asbestos claims,
uncertainties surrounding the litigation process from jurisdiction
to jurisdiction and from case to case, as well as potential
legislative changes. Increases in the number of claims filed or
costs to resolve those claims could cause us to increase further
the estimates of the costs associated with asbestos claims and
could have a material adverse effect on our financial condition,
results of operations and cash flows.
"Based on our December 31, 2013 liability estimate, an increase of
25% in the average per claim indemnity settlement amount would
increase the liability by $40,300 and the impact on expense would
be dependent upon available additional insurance recoveries.
Assuming no change to the assumptions currently used to estimate
our insurance asset, this increase would result in a charge on our
consolidated statement of operations of approximately 85% of the
increase in the liability. Long-term cash flows would ultimately
change by the same amount. Should there be an increase in the
estimated liability in excess of 25%, the percentage of that
increase that would be expected to be funded by additional
insurance recoveries will decline."
Foster Wheeler AG (Foster Wheeler) is a supplier of engineering,
construction and project management contractor and power
equipment. It operates through two business groups: Global
Engineering and Construction Group (Global E&C Group), and Global
Power Group. Its Global E&C Group, which operates worldwide,
designs, engineers and constructs onshore and offshore upstream
oil and gas processing facilities, natural gas liquefaction
facilities and receiving terminals, gas-to-liquids facilities, oil
refining, chemical and petrochemical, pharmaceutical and
biotechnology facilities and related infrastructure. Its Global
Power Group designs, manufactures and erects steam generators and
auxiliary equipment for electric power generating stations,
district heating and power plants and industrial facilities
worldwide.In May 2014, the Company announced that a subsidiary of
its Global Power Group acquired Siemens Environmental Systems and
Services business.
ASBESTOS UPDATE: Foster Wheeler Has 279 Open U.K. Claims
--------------------------------------------------------
Foster Wheeler AG's U.K. subsidiaries had 279 open asbestos
claims, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
The Company states: "Some of our subsidiaries in the U.K. have
also received claims alleging personal injury arising from
exposure to asbestos. To date, 1,067 claims have been brought
against our U.K. subsidiaries, of which 279 remained open as of
June 30, 2014. None of the settled claims have resulted in
material costs to us.
"Our total asbestos-related liabilities for our U.K. subsidiaries
as of June 30, 2014, was $32,120,000.
"The liability estimates are based on a U.K. House of Lords
judgment that pleural plaque claims do not amount to a compensable
injury. If this ruling is reversed by legislation, the total
asbestos liability recorded in the U.K. would increase to
approximately $52,100,000, with a corresponding increase in the
asbestos-related asset."
Foster Wheeler AG (Foster Wheeler) is a supplier of engineering,
construction and project management contractor and power
equipment. It operates through two business groups: Global
Engineering and Construction Group (Global E&C Group), and Global
Power Group. Its Global E&C Group, which operates worldwide,
designs, engineers and constructs onshore and offshore upstream
oil and gas processing facilities, natural gas liquefaction
facilities and receiving terminals, gas-to-liquids facilities, oil
refining, chemical and petrochemical, pharmaceutical and
biotechnology facilities and related infrastructure. Its Global
Power Group designs, manufactures and erects steam generators and
auxiliary equipment for electric power generating stations,
district heating and power plants and industrial facilities
worldwide.In May 2014, the Company announced that a subsidiary of
its Global Power Group acquired Siemens Environmental Systems and
Services business.
ASBESTOS UPDATE: Duke Energy Unit Has $600-Mil. Fibro Reserves
--------------------------------------------------------------
Duke Energy Corporation reported that its subsidiary, Duke Energy
Carolinas, has recognized asbestos-related reserves of $600
million, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
Duke Energy Carolinas has experienced numerous claims for
indemnification and medical cost reimbursement related to asbestos
exposure. These claims relate to damages for bodily injuries
alleged to have arisen from exposure to or use of asbestos in
connection with construction and maintenance activities conducted
on its electric generation plants prior to 1985. As of June 30,
2014, there were 90 asserted claims for non-malignant cases with
the cumulative relief sought of up to $19 million, and 35 asserted
claims for malignant cases with the cumulative relief sought of up
to $12 million. Based on Duke Energy Carolinas' experience, it is
expected that the ultimate resolution of most of these claims
likely will be less than the amount claimed.
Duke Energy Carolinas has recognized asbestos-related reserves of
$600 million at June 30, 2014 and $616 million at December 31,
2013. These reserves are classified in Other within Deferred
Credits and Other Liabilities and Other within Current Liabilities
on the Condensed Consolidated Balance Sheets. These reserves are
based upon the minimum amount of the range of loss for current and
future asbestos claims through 2033, are recorded on an
undiscounted basis and incorporate anticipated inflation. In light
of the uncertainties inherent in a longer-term forecast,
management does not believe they can reasonably estimate the
indemnity and medical costs that might be incurred after 2033
related to such potential claims. It is possible Duke Energy
Carolinas may incur asbestos liabilities in excess of the recorded
reserves.
Duke Energy Carolinas has third-party insurance to cover certain
losses related to asbestos-related injuries and damages above an
aggregate self-insured retention of $476 million. Duke Energy
Carolinas' cumulative payments began to exceed the self-insurance
retention in 2008. Future payments up to the policy limit will be
reimbursed by the third-party insurance carrier. The insurance
policy limit for potential future insurance recoveries
indemnification and medical cost claim payments is $897 million in
excess of the self-insured retention. Receivables for insurance
recoveries were $649 million at both June 30, 2014 and December
31, 2013. These amounts are classified in Other within Investments
and Other Assets and Receivables on the Condensed Consolidated
Balance Sheets. Duke Energy Carolinas is not aware of any
uncertainties regarding the legal sufficiency of insurance claims.
Duke Energy Carolinas believes the insurance recovery asset is
probable of recovery as the insurance carrier continues to have a
strong financial strength rating.
Duke Energy Corporation (Duke Energy) is an energy company. Duke
Energy operates in the United States primarily through its direct
and indirect wholly owned subsidiaries, Duke Energy Carolinas, LLC
(Duke Energy Carolinas), Carolina Power & Light Company d/b/a
Progress Energy Carolinas, Inc. (Progress Energy Carolinas),
Florida Power Corporation d/b/a Progress Energy Florida, Inc.
(Progress Energy Florida), Duke Energy Ohio, Inc. (Duke Energy
Ohio), and Duke Energy Indiana, Inc. (Duke Energy Indiana), as
well as in Latin America through Duke Energy International, LLC
(DEI). Duke Energy's segment includes U.S. Franchised Electric and
Gas (USFE&G), Commercial Power and International Energy. In
December 2012, the Company's subsidiary acquired CGE Group's
Iberoamericana de Energia Ibener S.A. (Ibener) subsidiary in
Chile. In June 2013, Duke Energy Corp acquired an undisclosed
minority stake in Clean Power Finance Inc.
ASBESTOS UPDATE: MeadWestvaco Corp. Has 550 Fibro Suits
-------------------------------------------------------
There were about 550 asbestos-related lawsuits against
MeadWestvaco Corporation, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2014.
As with numerous other large industrial companies, the company has
been named a defendant in asbestos-related personal injury
litigation. Typically, these suits also name many other corporate
defendants. To date, the costs resulting from the litigation,
including settlement costs, have not been significant. As of
June 30, 2014, there were about 550 lawsuits. Management believes
that the company has substantial indemnification protection and
insurance coverage, subject to applicable deductibles and policy
limits, with respect to asbestos claims. Management believes that
the company has valid defenses to these claims and intends to
continue to defend them vigorously. Additionally, based on its
historical experience in asbestos cases and an analysis of the
current cases, the company believes that it has adequate amounts
accrued for potential settlements and judgments in asbestos-
related litigation. At June 30, 2014, the company had recorded
litigation liabilities of approximately $25 million, a significant
portion of which relates to asbestos. Should the volume of
litigation grow substantially, it is possible that the company
could incur significant costs resolving these cases. After
consulting with legal counsel and after considering established
liabilities, it is our judgment that the resolution of pending
litigation and proceedings is not expected to have a material
adverse effect on the company's consolidated financial condition
or liquidity. In any given period or periods, however, it is
possible such proceedings or matters could have a material effect
on the results of operations.
MeadWestvaco Corporation (MWV) is a global packaging company
providing solutions to the healthcare, beauty and personal care,
food, beverage, home and garden, tobacco, and agricultural
industries. The Company also produces specialty chemicals for the
automotive, energy, and infrastructure industries and maximizes
the value of its land holdings through forestry operations,
property development and land sales. MWV's reporting segments are
Food & Beverage; Industrial; Specialty Chemicals, and Community
Development and Land Management. On December 11, 2012, MWV
acquired the remaining 50% interest in Resitec Industria Quimica,
Ltda. In December 2013, Meadwestvaco Corp completed the sale of
U.S. forestlands to Plum Creek Timber Company. In June, 2014, ASG
acquired the Bydgoszcz, Poland-based beauty and personal care
folding carton business of MeadWestvaco Corporation.
ASBESTOS UPDATE: Manitex Int'l. Continues to Defend Fibro Suits
---------------------------------------------------------------
Manitex International, Inc., continues to defend itself against
several asbestos-related product liability lawsuits, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2014.
The Company has been named as a defendant in several multi-
defendant asbestos related product liability lawsuits. In certain
instances, the Company is indemnified by a former owner of the
product line in question. In the remaining cases the plaintiff
has, to date, not been able to establish any exposure by the
plaintiff to the Company's products. The Company is uninsured with
respect to these claims but believes that it will not incur any
material liability with respect to these to claims.
Manitex International, Inc. is engaged in providing engineered
lifting solutions. The Company operates in two segments: Lifting
Equipment segment and Equipment Distribution segment. The Company,
in its Lifting Equipment segment, designs, manufactures and
distributes a group of products that serve different functions and
are used in a variety of industries. Through its subsidiary,
Manitex, Inc., the Company markets a line of boom trucks and sign
cranes. Manitex's boom trucks and crane products are primarily
used for industrial projects, energy exploration and
infrastructure development, including roads, bridges and
commercial construction. The Company, in its Equipment
Distribution segment, operates a crane dealership located in
Bridgeview, Illinois that distributes Terex rough terrain and
truck cranes, Fuchs material handlers, and Manitex boom trucks and
sky cranes. In December 2013, the Company announced that it has
completed the acquisition of Valla, SpA, of Piacenza, Italy.
ASBESTOS UPDATE: Houston Wire Continues to Defend PI Suits
----------------------------------------------------------
Houston Wire & Cable Company continues to defend itself against
lawsuits alleging asbestos-related personal injury suits,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
The Company, along with many other defendants, has been named in a
number of lawsuits in the state courts of Illinois, Minnesota,
North Dakota, and South Dakota alleging that certain wire and
cable which may have contained asbestos caused injury to the
plaintiffs who were exposed to this wire and cable. These lawsuits
are individual personal injury suits that seek unspecified amounts
of money damages as the sole remedy. It is not clear whether the
alleged injuries occurred as a result of the wire and cable in
question or whether the Company, in fact, distributed the wire and
cable alleged to have caused any injuries. The Company maintains
general liability insurance that, to date, has covered the defense
of and all costs associated with these claims. In addition, the
Company did not manufacture any of the wire and cable at issue,
and the Company would rely on any warranties from the
manufacturers of such cable if it were determined that any of the
wire or cable that the Company distributed contained asbestos
which caused injury to any of these plaintiffs. In connection with
ALLTEL's sale of the Company in 1997, ALLTEL provided indemnities
with respect to costs and damages associated with these claims
that the Company believes it could enforce if its insurance
coverage proves inadequate.
Houston Wire & Cable Company provides wire and cable and related
services to the United States market. The Company offers its
customers with a single-source solution for wire and cable,
hardware and related services. The Company offers products in
categories of wire and cable, including continuous and interlocked
armor cable, control and power cable, electronic wire and cable,
flexible and portable cords, instrumentation and thermocouple
cable, lead and high temperature cable, medium voltage cable,
premise and category wire and cable, wire rope and wire rope
slings, as well as nylon slings, chain, shackles and other related
hardware. It also offers private branded products, including its
brand LifeGuard, a low-smoke, zero-halogen cable. On January 1,
2011, the acquired companies were merged into HWC Wire & Cable
Company.
ASBESTOS UPDATE: Steel Partners Unit Has 1,286 Fibro Claims
-----------------------------------------------------------
A subsidiary of Steel Partners Holdings L.P. has 1,286 asbestos-
related toxic-tort claims, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2014.
BNS Sub has been named as a defendant in 1,286 and 1,234 alleged
asbestos-related toxic-tort claims as of June 30, 2014 and
December 31, 2013, respectively. The claims were filed over a
period beginning 1994 through September 30, 2013. In many cases
these claims involved more than 100 defendants. Of the claims
filed, 1,067 and 1,053 were dismissed, settled or granted summary
judgment and closed as of June 30, 2014 and December 31, 2013,
respectively. Of the claims settled, the average settlement was
less than $3. There remained 191 and 211 pending asbestos claims
as of June 30, 2014 and December 31, 2013, respectively. There can
be no assurance that the number of future claims and the related
costs of defense, settlements or judgments will be consistent with
the experience to date of existing claims.
BNS Sub has insurance policies covering asbestos-related claims
for years beginning 1974 through 1988 with estimated aggregate
coverage limits of $183,000, with $2,082 at June 30, 2014 and
December 31, 2013 in estimated remaining self-insurance retention
(deductible). There is secondary evidence of coverage from 1970 to
1973 although there is no assurance that the insurers will
recognize that the coverage was in place. Policies issued for BNS
Sub beginning in 1989 contained exclusions related to asbestos.
Under certain circumstances, some of the settled claims may be
reopened. Also, there may be a significant delay in receipt of
notification by BNS Sub of the entry of a dismissal or settlement
of a claim or the filing of a new claim. BNS Sub believes it has
significant defenses to any liability for toxic-tort claims on the
merits. None of these toxic-tort claims has gone to trial and,
therefore, there can be no assurance that these defenses will
prevail. In addition, there can be no assurance that the number of
future claims and the related costs of defense, settlements or
judgments will be consistent with the experience to date of
existing claims, and that BNS Sub will not need to increase
significantly its estimated liability for the costs to settle
these claims to an amount that could have a material effect on the
consolidated financial statements.
BNS Sub annually receives retroactive billings or credits from its
insurance carriers for any increase or decrease in claims accruals
as claims are filed, settled or dismissed, or as estimates of the
ultimate settlement and defense costs for the then-existing claims
are revised. As of June 30, 2014 and December 31, 2013 BNS Sub has
accrued $1,403 relating to the open and active claims against BNS
Sub. This accrual represents the Company's best estimate of the
likely costs to defend against or settle these claims by BNS Sub
beyond the amounts accrued by the insurance carriers and
previously funded, through the retroactive billings by BNS Sub.
However, there can be no assurance that BNS Sub will not need to
take additional charges in connection with the defense, settlement
or judgment of these existing claims or that the costs of future
claims and the related costs of defense, settlements or judgments
will be consistent with the experience to date relating to
existing claims. These claims are now being managed by the
Liquidating Trust formed by BNS.
Steel Partners Holdings L.P. (SPH) is a global diversified holding
company. The Company is engaged in multiple businesses through
consolidated subsidiaries, associated companies and other
interests. The Company owns and operates businesses and has
interests in companies in various industries, including
diversified industrial products, energy, defense, banking,
insurance, food products and services, oilfield services, sports,
training, education, and the entertainment and lifestyle
industries. The Company operates in three segments: Diversified
Industrial, Financial Services and Other. The Company's
subsidiary, SPH Services, Inc., through its subsidiary, SP
Corporate Services LLC (SP Corporate), provides certain executive
and corporate management services to it and some of its companies.
On July 5, 2011, its ownership interest in DGT Holdings Corp.
increased to 51.1%.
ASBESTOS UPDATE: HII Continues to Defend Fibro-related Suits
------------------------------------------------------------
Huntington Ingalls Industries, Inc., continues to defend itself
against cases alleging asbestos exposure, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2014.
HII and its predecessors-in-interest are defendants in a
longstanding series of cases that have been and continue to be
filed in various jurisdictions around the country, wherein former
and current employees and various third parties allege exposure to
asbestos containing materials while on or associated with HII
premises or while working on vessels constructed or repaired by
HII. The cases allege various injuries, including those associated
with pleural plaque disease, asbestosis, cancer, mesothelioma and
other alleged asbestos related conditions. In some cases, several
of HII's former executive officers are also named as defendants.
In some instances, partial or full insurance coverage is available
to the Company for its liability and that of its former executive
officers. Although the Company believes the ultimate resolution of
these cases will not have a material effect on its consolidated
financial position, results of operations or cash flows, it cannot
predict what new or revised claims or litigation might be asserted
or what information might come to light and can, therefore, give
no assurances regarding the ultimate outcome of asbestos related
litigation.
Huntington Ingalls Industries, Inc. (HII) owns and operates two
segments: Ingalls Shipbuilding and Newport News Shipbuilding.
Through the Company's Ingalls segment, it is a supplier and
builder of amphibious assault and expeditionary ships to the
United States Navy, the builder of National Security Cutters for
the United States Coast Guard, and one of the two companies that
builds the United States Navy's fleet of DDG-51 Arleigh Burke-
class destroyers. Through the Company's Newport News segment, it
is an industrial designer, builder, and refueler of nuclear-
powered aircraft carriers, and one of the two companies designing
and building nuclear-powered submarines for the United States
Navy. It conducts all of its business with the United States
Government, principally the Department of Defense (DoD). In
January 2014, HII acquired The S.M. Stoller Corporation. Effective
June 2, 2014, HII acquired UniversalPegasus International Inc.
ASBESTOS UPDATE: Mallinckrodt Had 11,800 Pending Fibro Cases
------------------------------------------------------------
Mallinckrodt Public Limited Company had 11,800 asbestos-related
pending cases, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 27, 2014.
Beginning with lawsuits brought in July 1976, the Company is also
named as a defendant in personal injury lawsuits based on alleged
exposure to asbestos-containing materials. A majority of the cases
involve product liability claims based principally on allegations
of past distribution of products containing asbestos. A limited
number of the cases allege premises liability based on claims that
individuals were exposed to asbestos while on the Company's
property. Each case typically names dozens of corporate defendants
in addition to the Company. The complaints generally seek monetary
damages for personal injury or bodily injury resulting from
alleged exposure to products containing asbestos. The Company's
involvement in asbestos cases has been limited because it did not
mine or produce asbestos. Furthermore, in the Company's
experience, a large percentage of these claims have never been
substantiated and have been dismissed by the courts. The Company
has not suffered an adverse verdict in a trial court proceeding
related to asbestos claims and intends to continue to defend these
lawsuits. When appropriate, the Company settles claims; however,
amounts paid to settle and defend all asbestos claims have been
immaterial. As of June 27, 2014, there were approximately 11,800
asbestos-related cases pending against the Company.
The Company estimates pending asbestos claims and claims that were
incurred but not reported and related insurance recoveries, which
are recorded on a gross basis in the unaudited condensed
consolidated balance sheets. The Company's estimate of its
liability for pending and future claims is based on claims
experience over the past five years and covers claims either
currently filed or expected to be filed over the next seven years.
The Company believes that it has adequate amounts recorded related
to these matters. While it is not possible at this time to
determine with certainty the ultimate outcome of these asbestos-
related proceedings, the Company believes, given the information
currently available, that the ultimate resolution of all known and
anticipated future claims, after taking into account amounts
already accrued, along with recoveries from insurance, will not
have a material adverse effect on its financial condition, results
of operations and cash flows.
Mallinckrodt public limited company (Mallinckrodt) is a global
specialty pharmaceuticals company. The Company develops,
manufactures, markets and distributes both branded and generic
specialty pharmaceuticals, active pharmaceutical ingredients (API)
and diagnostic imaging agents. The Company uses its API products
in the manufacture of its generic pharmaceuticals and also sells
them to other pharmaceutical companies. The Company operates
through two segments: Specialty Pharmaceuticals and Global Medical
Imaging. On June 28, 2013, Covidien plc completed the separation
of its Pharmaceuticals business and transferred the
Pharmaceuticals business to Mallinckrodt. In March 2014, the
Company acquired Cadence Pharmaceuticals, Inc.
ASBESTOS UPDATE: CECO Has 186 Fibro-related Suits at June 30
------------------------------------------------------------
CECO Environmental Corp. had 186 pending asbestos-related suits,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
The Company states: "Our subsidiary, Met-Pro, beginning in 2002,
began to be named in asbestos-related lawsuits filed against a
large number of industrial companies including, in particular,
those in the pump and fluid handling industries. In management's
opinion, the complaints typically have been vague, general and
speculative, alleging that Met-Pro, along with the numerous other
defendants, sold unidentified asbestos-containing products and
engaged in other related actions which caused injuries (including
death) and loss to the plaintiffs. Counsel has advised that more
recent cases typically allege more serious claims of mesothelioma.
The Company's insurers have hired attorneys who, together with the
Company, are vigorously defending these cases. Many cases have
been dismissed after the plaintiff fails to produce evidence of
exposure to Met-Pro's products. In those cases where evidence has
been produced, the Company's experience has been that the exposure
levels are low and the Company's position has been that its
products were not a cause of death, injury or loss. The Company
has been dismissed from or settled a large number of these cases.
Cumulative settlement payments from 2002 through June 30, 2014 for
cases involving asbestos-related claims were $0.7 million, which,
together with all legal fees other than corporate counsel
expenses, have been paid by the Company's insurers. The average
cost per settled claim, excluding legal fees, was approximately
$25,000.
"Based upon the most recent information available to the Company
regarding such claims, there were a total of 186 cases pending
against the Company as of June 30, 2014 (with Connecticut, New
York, Pennsylvania and West Virginia having the largest number of
cases), as compared with 173 cases that were pending as of
December 31, 2013. During the six months ended June 30, 2014, 27
new cases were filed against the Company, and the Company was
dismissed from 14 cases and settled zero cases. Most of the
pending cases have not advanced beyond the early stages of
discovery, although a number of cases are on schedules leading to,
or are scheduled for trial. The Company believes that its
insurance coverage is adequate for the cases currently pending
against the Company and for the foreseeable future, assuming a
continuation of the current volume, nature of cases and settlement
amounts. However, the Company has no control over the number and
nature of cases that are filed against it, nor as to the financial
health of its insurers or their position as to coverage. The
Company also presently believes that none of the pending cases
will have a material adverse impact upon the Company's results of
operations, liquidity or financial condition."
CECO Environmental Corp. (CECO) is a provider of global, air
pollution control technology. The Company operates as a provider
of air pollution control technology, products and services through
three principal product groups, including Engineered Equipment
Technology and Parts Group, Contracting/Services Group and
Component Parts Group. Its Engineered Equipment Technology and
Parts Group produces various types of air pollution control
technology and equipment. Its Contracting/Services Group, which
produces air pollution control and engineered industrial
ventilation systems and its Component Parts Group, which
manufactures products used by the Company and other air pollution
control companies and air system contractors. In March 2013, it
announced the acquisition of Aarding Thermal Acoustics B.V. In
August 2013, the Company announced that it has completed the
acquisition of Met-Pro Corporation.
ASBESTOS UPDATE: Harsco Corp. Had 17,458 Pending PI Claims
----------------------------------------------------------
Harsco Corporation had 17,458 pending asbestos personal injury
claims, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2014.
In the United States, the Company has been named as one of many
defendants (approximately 90 or more in most cases) in legal
actions alleging personal injury from exposure to airborne
asbestos over the past several decades. In their suits, the
plaintiffs have named as defendants, among others, many
manufacturers, distributors and installers of numerous types of
equipment or products that allegedly contained asbestos.
The Company believes that the claims against it are without merit.
The Company has never been a producer, manufacturer or processor
of asbestos fibers. Any component within a Company product that
may have contained asbestos would have been purchased from a
supplier. Based on scientific and medical evidence, the Company
believes that any asbestos exposure arising from normal use of any
Company product never presented any harmful levels of airborne
asbestos exposure, and, moreover, the type of asbestos contained
in any component that was used in those products was protectively
encapsulated in other materials and is not associated with the
types of injuries alleged in the pending suits. Finally, in most
of the depositions taken of plaintiffs to date in the litigation
against the Company, plaintiffs have failed to specifically
identify any Company products as the source of their asbestos
exposure.
The majority of the asbestos complaints pending against the
Company have been filed in New York. Almost all of the New York
complaints contain a standard claim for damages of $20 million or
$25 million against the approximately 90 defendants, regardless of
the individual plaintiff's alleged medical condition, and without
specifically identifying any Company product as the source of
plaintiff's asbestos exposure.
As of June 30, 2014, there are 17,458 pending asbestos personal
injury claims filed against the Company. Of these cases, 17,108
are pending in the New York Supreme Court for New York County in
New York State. The other claims, totaling 350, are filed in
various counties in a number of state courts, and in certain
Federal District Courts (including New York), and those complaints
generally assert lesser amounts of damages than the New York State
court cases or do not state any amount claimed.
As of June 30, 2014, the Company has obtained dismissal by
stipulation, or summary judgment prior to trial, in 27,386 cases.
In view of the persistence of asbestos litigation nationwide, the
Company expects to continue to receive additional claims. However,
there have been developments during the past several years, both
by certain state legislatures and by certain state courts, which
could favorably affect the Company's ability to defend these
asbestos claims in those jurisdictions. These developments include
procedural changes, docketing changes, proof of damage
requirements and other changes that require plaintiffs to follow
specific procedures in bringing their claims and to show proof of
damages before they can proceed with their claim. An example is
the action taken by the New York Supreme Court (a trial court),
which is responsible for managing all asbestos cases pending
within New York County in the State of New York. This Court issued
an order in December 2002 that created a Deferred or Inactive
Docket for all pending and future asbestos claims filed by
plaintiffs who cannot demonstrate that they have a malignant
condition or discernible physical impairment, and an Active or In
Extremis Docket for plaintiffs who are able to show such medical
condition. As a result of this order, the majority of the asbestos
cases filed against the Company in New York County have been moved
to the Inactive Docket until such time as the plaintiffs can show
that they have incurred a physical impairment. As of June 30,
2014, the Company has been listed as a defendant in 214 Active or
In Extremis asbestos cases in New York County. The Court's Order
has been challenged by some plaintiffs.
Except with regard to the legal costs in a few limited,
exceptional cases, the Company's insurance carrier has paid all
legal and settlement costs and expenses to date related to the
Company's U.S. asbestos cases. The Company has liability insurance
coverage under various primary and excess policies that the
Company believes will be available, if necessary, to substantially
cover any liability that might ultimately be incurred on these
claims.
The Company intends to continue its practice of vigorously
defending these claims and cases. It is not possible to predict
the ultimate outcome of asbestos-related lawsuits, claims and
proceedings due to the unpredictable nature of personal injury
litigation, and no loss provision has been recorded in the
Company's consolidated financial statements because a loss
contingency is not deemed probable or estimable. Despite this
uncertainty, and although results of operations and cash flows for
a given period could be adversely affected by asbestos-related
lawsuits, claims and proceedings, the Company does not expect that
any costs that are reasonably possible to be incurred by the
Company in connection with asbestos litigation would have a
material adverse effect on the Company's financial condition,
results of operations or cash flows.
Harsco Corporation is a diversified, multinational provider of
industrial services and engineered products serving global
industries. The Company operates in four segments: Harsco Metals &
Minerals, Harsco Infrastructure, Harsco Rail and Harsco
Industrial. The Company's principal lines of business include
outsourced, on-site services to steel mills and other metals
producers; resource recovery technologies for the re-use of
industrial waste stream by-products; industrial abrasives and
roofing granules; engineered scaffolding, concrete forming and
shoring, and other access-related services, rentals and sales;
railway track maintenance services and equipment; industrial
grating products; air-cooled heat exchangers, and heat transfer
products. In January 2014, the Company acquired Hammco Corp.
ASBESTOS UPDATE: NL Industries Continues to Defend Coverage Suits
-----------------------------------------------------------------
NL Industries, Inc., continues to defend itself against a number
of lawsuits relating to insurance coverage for asbestos
litigation, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2014.
The Company states: "We are involved in certain legal proceedings
with a number of our former insurance carriers regarding the
nature and extent of the carriers' obligations to us under
insurance policies with respect to certain lead pigment and
asbestos lawsuits. The issue of whether insurance coverage for
defense costs or indemnity or both will be found to exist for our
lead pigment and asbestos litigation depends upon a variety of
factors and we cannot assure you that such insurance coverage will
be available.
"We have agreements with certain of our former insurance carriers
pursuant to which the carriers reimburse us for a portion of our
future lead pigment litigation defense costs, and one such carrier
reimburses us for a portion of our future asbestos litigation
defense costs. We are not able to determine how much we will
ultimately recover from these carriers for defense costs incurred
by us because of certain issues that arise regarding which defense
costs qualify for reimbursement. While we continue to seek
additional insurance recoveries, we do not know if we will be
successful in obtaining reimbursement for either defense costs or
indemnity. Accordingly, we recognize insurance recoveries in
income only when receipt of the recovery is probable and we are
able to reasonably estimate the amount of the recovery."
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: NL Industries Has 1,130 Personal Injury Cases
--------------------------------------------------------------
NL Industries, Inc., had 1,130 pending asbestos-related personal
injury cases, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2014.
The Company states: "We have been named as a defendant in various
lawsuits in several jurisdictions, alleging personal injuries as a
result of occupational exposure primarily to products manufactured
by our former operations containing asbestos, silica and/or mixed
dust. In addition, some plaintiffs allege exposure to asbestos
from working in various facilities previously owned and/or
operated by us. There are 1,130 of these types of cases pending,
involving a total of approximately 1,643 plaintiffs. In addition,
the claims of approximately 8,298 plaintiffs have been
administratively dismissed or placed on the inactive docket in
Ohio, Indiana and Texas state courts. We do not expect these
claims will be re-opened unless the plaintiffs meet the courts'
medical criteria for asbestos-related claims. We have not accrued
any amounts for this litigation because of the uncertainty of
liability and inability to reasonably estimate the liability, if
any. To date, we have not been adjudicated liable in any of these
matters. Based on information available to us, including:
* facts concerning historical operations,
* the rate of new claims,
* the number of claims from which we have been dismissed, and
* our prior experience in the defense of these matters.
"We believe that the range of reasonably possible outcomes of
these matters will be consistent with our historical costs (which
are not material). Furthermore, we do not expect any reasonably
possible outcome would involve amounts material to our
consolidated financial position, results of operations or
liquidity. We have sought and will continue to vigorously seek,
dismissal and/or a finding of no liability from each claim. In
addition, from time to time, we have received notices regarding
asbestos or silica claims purporting to be brought against former
subsidiaries, including notices provided to insurers with which we
have entered into settlements extinguishing certain insurance
policies. These insurers may seek indemnification from us. For a
discussion of other legal proceedings to which we are a party,
refer to our 2013 Annual Report."
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: Ariz. Court Allows "Folsom" Suit to Proceed
------------------------------------------------------------
Plaintiff Anthony Fletcher Folsom, who is confined in the Maricopa
County Durango Jail, filed a pro se civil rights Complaint
pursuant to 42 U.S.C. Section 1983 and an Application to Proceed
In Forma Pauperis. In Count Two, the Plaintiff alleges as
follows: "air conditioning is on at all times"; "air temp is
always 65 degrees or lower"; "will not turn heat on"; "will not
give extra blankets or thermals"; "improper air ventilation";
"sta[ph] infections"; "dirty air ducts"; "asbestos in buildings";
"multiples inmates always sick"; and "officers wear jackets."
Plaintiff alleges that he was injured as follows: "sick, can't
sleep, P.T.S.S., cold virus, headaches, body aches, always getting
sick, long term effect unknown." The U.S. District Court for the
District of Arizona granted the Application to Proceed and
dismissed the Complaint with leave to amend.
The case is Anthony Fletcher Folsom, Plaintiff, v. Joseph M.
Arpaio, et al., Defendants, NO. CV 14-0778-PHX-DGC (BSB) WO (D.
Ariz.). A full-text copy of the Sept. 8, 2014 Order penned by
Judge David G. Campbell is available at http://is.gd/ZHuHRzfrom
Leagle.com.
ASBESTOS UPDATE: Pa. Court Summarily Dismisses Inmate's Suit
------------------------------------------------------------
James Freeman, an inmate presently confined at the State
Correctional Institution, Frackville, Pennsylvania filed a pro se
civil rights action pursuant to 42 U.S.C. Section 1983 centered on
his prior temporary confinements in the Northumberland County,
Pennsylvania Prison. According to the Complaint, while confined
for two weeks in the Northumberland County prison during December,
2009, Freeman was housed in a dirty, insect infested, "extremely
cold" cell, the walls of which had holes, orange mold, and
asbestos with no window or hot water.
Judge James M. Munley of the United States District Court for the
Middle District of Pennsylvania, on Sept. 10, 2014, granted
summary judgment in favor of Defendants Northumberland County, and
the following members of the County Prison Board: County
Commissioners Frank Sawicki, Vinny Clausi, and Kurt Massner;
District Attorney Anthony Rosini; Controller Charles Erdman; Judge
Robert Sacavage; and Sheriff Chad Reiner.
The case is JAMES FREEMAN, Plaintiff. v. NORTHUMBERLAND COUNTY, et
al., Defendants, CIVIL NO. 3:10-CV-2502 (M.D. Pa.). A full-text
copy of Judge Munley's memorandum is available at
http://is.gd/ucPADgfrom Leagle.com.
James Freeman, Plaintiff, Pro Se. Warden Roy Johnson; Wheary;
Officer Heater; Officer Bordner; Lt. Keith D Smink; and Lt. J
Smink, Defendants, represented by Sean P. McDonough, Dougherty,
Leventhal & Price, L.L.P..
ASBESTOS UPDATE: 288 Defendants Dropped from MARDOC Docket
----------------------------------------------------------
Judge Eduardo C. Robreno of the U.S. District Court for the
Eastern District of Pennsylvania issued two orders in IN RE:
ASBESTOS PRODUCTS LIABILITY LITIGATION (NO.VI), CIVIL ACTION NO.
2:02-MD-875 (E.D. Pa.), dismissing 288 defendants in various cases
in the asbestos litigation. The dismissal follows motions filed
by certain plaintiffs in the MARDOC Docket to dismiss certain of
their claims without prejudice as to the defendants.
Judge Robreno's Sept. 8, 2014 Decision dismisses 251 defendants
from the docket. A full-text copy of Judge Robreno's Decision
dated Sept. 8, 2014 is available at http://is.gd/7oQeT1from
Leagle.com.
Judge Robreno's Sept. 9, 2014 Decision dismisses 37 defendants
from the docket. A full-text copy of Judge Robreno's Decision
dated Sept. 9, 2014, is available at http://is.gd/OzBNT1from
Leagle.com.
ASBESTOS UPDATE: NY Court Denies Bid to Dismiss "Rau" Suit
----------------------------------------------------------
In an asbestos personal injury action, defendant Conwed
Corporation moves for summary judgment dismissing plaintiff
Kenneth Rau's complaint and all other claims asserted against it
on the ground that there is no evidence to show that he was
exposed to asbestos from a Conwed tile. The Plaintiff responds
that he was exposed to asbestos-containing Conwed tiles throughout
his career and that his deposition testimony raises triable
questions of fact in such regard sufficient to preclude summary
judgment.
In a decision and order dated Sept. 4, 2014, Judge Sherry Klein
Heitler of the Supreme Court, New York County, denied Conwed's
motion, holding that the mere fact that Conwed may have
manufactured both asbestos-free and asbestos-containing ceiling
tiles does not entitle it to summary judgment under the
circumstances of the case. In fact, Judge Heitler found that, the
only evidence Conwed submitted, namely interrogatory responses
filed in connection with an unrelated 2010 NYCAL action, are
overly broad, only loosely probative of the issues presented in
the case, and raise more questions than they answer.
The case is IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to
KENNETH P. RAU, Plaintiff, v. AERCO INTERNATIONAL, INC., et al.,
Defendants, DOCKET NO. 190414/12, MOT. SEQ. NO. 001 (N.Y. Sup.).
A full-text copy of Judge Heitler's Decision is available at
http://is.gd/ABAHRYfrom Leagle.com.
ASBESTOS UPDATE: Insurers Can Still Appeal Plant Insulation Plan
----------------------------------------------------------------
Judge Richard Seeborg of the U.S. District Court for the Northern
District of California, San Francisco Division, approved a
stipulation extending until Oct. 17, 2014, the date for OneBeacon
Insurance Co., et al., to file a notice of appeal from the
District Court's Aug. 18, 2014, Order affirming a bankruptcy
court's order confirming the Plan of Reorganization filed in the
Chapter 11 case of Plant Insulation Company. The Plan provides
two avenues for compensating existing and future asbestos injury
claimants: (1) from a trust established under Sec. 524(g) of the
Bankruptcy Code, and (2) by preserving claimants' right to file
tort actions against Plant and insurers that refuse to settle such
claims by making cash contributions to the Trust.
The case is ONEBEACON INSURANCE CO., et al., Appellants, v. PLANT
INSULATION CO., et al., Appellees (In re PLANT INSULATION
COMPANY), CASE NO. 3:14-CV-01200-RS, BK. CASE NO. 3:09-BK-31347
TEC (N.D. Calif.). A full-text copy of Judge Seeborg's Sept. 11,
2014, order is available at http://is.gd/2DvpFRfrom Leagle.com.
San Francisco, California-based Plant Insulation Company
manufactured insulation products and services. It is formerly
involved in the sale, installation, repair, and distribution of
products containing asbestos. The Company filed for Chapter 11
protection (Bankr. N.D. Calif. Case No. 09-31347) on May 20, 2009.
Michaeline H. Correa, Esq., Peter J. Benvenutti, Esq., and Tobias
S. Keller, Esq., at Jones Day, represent the Debtor in its
restructuring effort. The Debtor estimated assets and debts
ranging from $500 million to $1 billion.
ASBESTOS UPDATE: Ariz. Court Allows Inmate to Proceed with Suit
---------------------------------------------------------------
Plaintiff Juan Leon-Lara, who is confined in the Maricopa County
Durango Jail, filed a pro se civil rights Complaint pursuant to 42
U.S.C. Section 1983 alleging, among other things, that he was
exposed to asbestos while incarcerated. Judge David G. Campbell
of the United States District Court for the District of Arizona
issued an order dated Sept. 11, 2014, granting the Plaintiff's
application to proceed in forma pauperis and dismissed the
Complaint with leave to amend.
The case is Juan Leon-Lara, Plaintiff, v. Joseph M. Arpaio, et
al., Defendants, NO. CV 14-1008-PHX-DGC (DKD)(D. Ariz.). A full-
text copy of Judge Campbell's Decision is available at
http://is.gd/YdPhVUfrom Leagle.com.
ASBESTOS UPDATE: Court Consolidates NYCAL Cases for Trial
---------------------------------------------------------
Judge George J. Silver of the Supreme Court, New York County,
issued an order dated Sept. 4, 2014, consolidating for trial
purposes certain cases in the NYCAL docket, after concluding that
where the plaintiffs have a very similar overlapping exposure
period to the above cited case, it is sufficiently common to
warrant a joint trial. Judge Silver, however, refused to
consolidate a so-called "take home" case where a wife was exposed
to asbestos by virtue of her husband's exposure to asbestos at
work.
The case is IN RE: NEW YORK CITY ASBESTOS LITIGATION relating to
ANTHONY M. BOVA, as Executrix of the Estate of DOROTHY T. BOVA,
and ANTHONY BOVA, Individually, et al., Plaintiffs, v. A.O. SMITH
WATER PRODUCTS CO., et al., Defendant(s), DOCKET NO. 116852-2006
(N.Y. Sup.). A full-text copy of Judge Silver's Decision is
available at http://is.gd/8BJAKUfrom Leagle.com.
ASBESTOS UPDATE: Appeal in "Logan" Suit Withdrawn
-------------------------------------------------
An appeal in the case styled IN RE: NEW YORK CITY ASBESTOS
LITIGATION relating to LOGAN, v. A. P. MOLLER-MAERSK -- CEMEX,
INC. -- SOUTHDOWN, INC. -- MOORE-McCORMACK RESOURCES, INC., MOTION
NO. M-3706 (N.Y. App. Div.), previously perfected for the
September 2014 term, was withdrawn. A full-text copy of the
Decision is available is available at http://is.gd/npS1Ltfrom
Leagle.com.
ASBESTOS UPDATE: Ariz. Court Allows "Perez" Suit to Proceed
-----------------------------------------------------------
Judge David G. Campbell of the United States District Court for
the District of Arizona dismissed with leave to amend a pro se
civil rights complaint filed by Louis Vincent Perez, who is
confined in the Maricopa County Durango Jail. The complaint
alleges, among other things, that the Plaintiff was exposed to
asbestos while incarcerated.
The case is Louis Vincent Perez, Plaintiff, v. Joseph M. Arpaio,
et al., Defendants, NO. CV 14-1007-PHX-DGC (BSB)(D. Ariz.). A
full-text copy of Judge Campbell's Decision dated Sept. 11, 2014,
is available at http://is.gd/zmQjEnfrom Leagle.com.
ASBESTOS UPDATE: Kaiser's Bid to Dismiss PI Suit Partially OK'd
---------------------------------------------------------------
Defendant Kaiser Gypsum Company, Inc., moves to dismiss a
complaint and all cross-claims asserted against it on the ground
that it was named as a defendant following the expiration of the
statute of limitations for asbestos personal injury actions. The
Plaintiffs oppose and cross-move to amend the complaint to plead a
cause of action for wrongful death.
Judge Sherry Klein Heitler of the Supreme Court, New York County,
granted in part and denied in part Kaiser's motion to dismiss.
Judge Heitler severed and dismissed in its entirety the
Plaintiffs' cause of action for loss of consortium and to the
extent the Plaintiffs seek to recover for their decedent's
personal injuries. Judge Heitler, however, found the Plaintiffs'
addition of a wrongful death cause of action as proper because it
relates back to the initial Complaint which gives notice of the
transactions and occurrences from which the cause of action
arises.
The case is MARGARET M. PISANI, Individually and as Personal
Representative of the Estate of SALVATORE PISANI, deceased,
Plaintiffs, v. ACE HARDWARE CORPORATION, et al., Defendants,
DOCKET NO. 190062/14, MOTION SEQ. NO. 002 (N.Y. Sup.). A full-
text copy of Judge Heitler's decision and order dated Sept. 4,
2014, is available at http://is.gd/QUDdQCfrom Leagle.com.
ASBESTOS UPDATE: Ind. App. Affirms Ruling in "Ragon" Suit
---------------------------------------------------------
Mary Ragon, as personal representative of the Estate of Larry
Ragon, appeals the decision of the Indiana Worker's Compensation
Board finding that Larry had failed to meet his burden of proving,
by a preponderance of the evidence, that he suffers from
occupational disease asbestosis. Mary argues that the board
committed reversible error by failing to find that Larry was
exposed to the hazards of asbestos. She also contends that the
Board erred when it found that Larry's testimony was not credible
when appellee-defendant Eli Lilly presented no evidence to rebut
that testimony.
Finding that the evidence in the case is disputed and that Mary's
arguments constitute an impermissible request to reweigh the
evidence, the Court of Appeals of Indiana, in a decision dated
Sept. 10, 2014, affirmed.
The appeals case is MARY RAGON AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF LARRY RAGON, Appellant-Plaintiff, v. ELI LILLY &
COMPANY, Appellee-Defendant, NO. 93A02-1402-EX-80 (Ind. App.). A
full-text copy of the Decision is available at http://is.gd/5rZhBz
from Leagle.com.
LINDA GEORGE, KATHLEEN A. FARINAS, TODD BARNES, ASHLEIGH M.
RESETARITS, George & Farinas, LLP, Indianapolis, Indiana,
Attorneys for Appellant.
BRIAN J. PAUL, Esq. -- brian.paul@icemiller.com -- and ANN H.
STEWART, Esq. -- ann.stewart@icemiller.com -- at Ice Miller LLP,
Indianapolis, Indiana, Attorneys for Appellee.
ASBESTOS UPDATE: Ariz. Court Allows "Sanchez" Suit to Proceed
-------------------------------------------------------------
Plaintiff Mario Ansaldo Sanchez, who is confined in the Maricopa
County Durango Jail, filed a pro se civil rights Complaint and an
Application to Proceed In Forma Pauperis. The Plaintiff alleges,
among other things, that there is asbestos in the walls and
ceilings and lead paint in the walls and that he suffers from poor
breathing and has problems with his overall health as a result of
these hazardous substances. Judge David G. Campbell of the U.S.
District Court for the District of Arizona granted the Application
to Proceed and dismissed the Complaint with leave to amend.
The case is Mario Ansaldo Sanchez, Plaintiff, v. Durango Jail, et
al., Defendants, NO. CV 14-1239-PHX-DGC (MHB)(D. Ariz.). A full-
text copy of Judge Campbell's Order dated Sept. 11, 2014, is
available at http://is.gd/CHWXFJfrom Leagle.com.
ASBESTOS UPDATE: Utah Court Grants Limine Motions in PI Suit
------------------------------------------------------------
In the asbestos-related lawsuit styled ARVA ANDERSON, Plaintiff,
v. FORD MOTOR COMPANY, et al., Defendants, CASE NO. 2:06-CV-741 TS
(D. Utah), Judge Ted Stewart of the U.S. District Court for the
District of Utah issued two orders dated Sept. 16, 2014.
In one order, Judge Stewart granted in part certain defendants'
motions Limine to preclude use of the terms "Asbestos Industry,"
"Asbestos Company," or "Member of the Asbestos Industry" before
the jury, holding that there is a risk of confusion and prejudice
by the Plaintiff's describing the Defendants using terms like
"asbestos industry," "asbestos company," or "member of the
asbestos industry." Therefore, Judge Stewart prohibited the
Plaintiff from describing the Defendants using these terms. Judge
Stewart, however, will allow the Plaintiff to describe the
Defendants as members of an industry that produced products that
incorporated components that contained asbestos. Describing the
Defendants this way is more accurate and will not significantly
limit the Plaintiff at trial, Judge Stewart said. A full-text
copy of Judge Stewart's Decision with respect to this matter is
available at http://is.gd/kUDQgpfrom Leagle.com.
In another order, Judge Stewart granted Defendant Flowserve
Corporation's Motion in Limine seeking judicial notice of federal
register documents, including "summaries of the information
submitted by [the Environmental Protection Agency] by
manufacturers and processors of certain asbestos products in
accordance with the Asbestos Information Act of 1988." A full-
text copy of Judge Stewart's Decision with respect to Flowserve's
motion is available at http://is.gd/etykU7from Leagle.com.
Joseph Alexander Anderson, Jr, and Arva Anderson, Plaintiffs,
represented by G. Patterson Keahey, LAW OFFICES OF G PATTERSON
KEAHEY & Kenneth D. Lougee, SIEGFRIED & JENSEN.
Ford Motor Company, Defendant, represented by Dan R. Larsen,
DORSEY & WHITNEY & Karthik Nadesan, Esq. --
karthik@nadesanbeck.com -- at NADESAN BECK PC.
General Motors Corporation, Defendant, represented by Dan R.
Larsen, DORSEY & WHITNEY & Karthik Nadesan, NADESAN BECK PC.
American Standard, Inc., Defendant, represented by Kamie F. Brown,
RAY QUINNEY & NEBEKER,Stewart O. Peay, SNELL & WILMER, Tracy H.
Fowler, SNELL & WILMER & Scott A. DuBois, Esq. --
dubois@wgdlawfirm.com -- at WRONA GORDON & DUBOIS.
Bondex International, Defendant, represented by Dennis H.
Markusson, Esq. -- markusson@mgjlaw.com -- MARKUSSON GREEN &
JARVIS & Timothy C. Houpt, Esq. -- thoupt@joneswaldo.com -- at
JONES WALDO HOLBROOK & MCDONOUGH.
Borg Warner Corporation, Defendant, represented by Melinda A.
Morgan, Esq. -- mamorgan@michaelbest.com -- at MICHAEL BEST &
FRIEDRICH LLP.
Buffalo Pumps, Defendant, represented by Mary Price Birk, Esq. --
mbirk@bakerlaw.com -- at BAKER & HOSTETLER LLP & Patricia W.
Christensen, Esq. -- pchristensen@parrbrown.com -- at PARR BROWN
GEE & LOVELESS.
Carrier Corporation, Defendant, represented by Katherine E. Venti,
Esq. -- kventi@parsonsbehle.com -- at PARSONS BEHLE & LATIMER
& John P. Ball, Jr, Esq. -- jball@parsonsbehle.com -- at PARSONS
BEHLE & LATIMER.
Certainteed Corporation, Defendant, represented by Mary Price
Birk, BAKER & HOSTETLER LLP, Patricia W. Christensen, PARR BROWN
GEE & LOVELESS & Ronald L. Hellbusch, BAKER & HOSTETLER LLP.
Cleaver Brooks, Defendant, represented by Melinda A. Morgan,
MICHAEL BEST & FRIEDRICH LLP.
Crane Co, Defendant, represented by Katherine E. Venti, PARSONS
BEHLE & LATIMER & John P. Ball, Jr, PARSONS BEHLE & LATIMER.
Durabala Manufacturing, Defendant, represented by Jonathan L.
Hawkins, Esq. -- jhawkins@mmrj.com -- MORGAN MINNOCK RICE & JAMES.
Flowserve Corp, Defendant, represented by Barbara K. Berrett,
BERRETT & HANNA LC, Casey K. McGarvey, EdiZONE LLC, Rebecca L.
Hill, Esq. -- rebecca.hill@chrisjen.com -- at CHRISTENSEN & JENSEN
PC, Scot A. Boyd, CHRISTENSEN & JENSEN PC, Stewart O. Peay, SNELL
& WILMER, Tracy H. Fowler, SNELL & WILMER, Kamie F. Brown, RAY
QUINNEY & NEBEKER & Melinda A. Morgan, MICHAEL BEST & FRIEDRICH
LLP.
Fluor Corporation, Defendant, represented by Patricia W.
Christensen, PARR BROWN GEE & LOVELESS.
Foster Wheeler North America Corporation, Defendant, represented
by Mark J. Williams, PRICE PARKINSON & KERR PLLC.
Garlock Sealing Technologies, Defendant, represented by Clinton A.
McAdams, J JOYCE & ASSOCIATES,Joseph J. Joyce, J JOYCE &
ASSOCIATES & Ryan J. Schriever, MYLER INJURY.
Georgia Pacific Corporation, Defendant, represented by Katherine
E. Venti, PARSONS BEHLE & LATIMER & John P. Ball, Jr, PARSONS
BEHLE & LATIMER.
Goodyear Tire & Rubber Company, Defendant, represented by Scot A.
Boyd, CHRISTENSEN & JENSEN PC & Rebecca L. Hill, CHRISTENSEN &
JENSEN PC.
Hamilton Materials, Defendant, represented by Melinda A. Morgan,
MICHAEL BEST & FRIEDRICH LLP.
Henry Vogt Machine, Defendant, represented by Barbara K. Berrett,
BERRETT & HANNA LC & Mark D. Taylor, Esq. --
mtaylor@lewishansen.com -- at LEWIS HANSEN WALDO PLESHE FLANDERS
LLC.
Hill Brothers Chemical, Defendant, represented by Scot A. Boyd,
CHRISTENSEN & JENSEN PC &Rebecca L. Hill, CHRISTENSEN & JENSEN PC.
Honeywell, Inc., Defendant, represented by Sara E. Bouley, ACTION
LAW LLC & Tonn K. Petersen, PERKINS COIE LLP.
Industrial Supply, Defendant, represented by Jonathan L. Hawkins,
MORGAN MINNOCK RICE & JAMES.
Oakfabco, Defendant, represented by Gregory S. Roberts, RAY
QUINNEY & NEBEKER.
Philips Electronics North America Corporation, Defendant,
represented by Mary Price Birk, BAKER & HOSTETLER LLP & Patricia
W. Christensen, PARR BROWN GEE & LOVELESS.
Sepco, Defendant, represented by Alan Scott Goldberg, SELMAN
BREITMAN LLP, Mary Price Birk, BAKER & HOSTETLER LLP, Ollie M.
Harton, HAWKINS PARNELL THACKSON & YOUNG LLP, Ronald L. Hellbusch,
BAKER & HOSTETLER LLP & Patricia W. Christensen, PARR BROWN GEE &
LOVELESS.
SPX Cooling Technologies, Defendant, represented by Melinda A.
Morgan, MICHAEL BEST & FRIEDRICH LLP.
TH Agriculture & Nutrition, Defendant, represented by Gregory S.
Roberts, RAY QUINNEY & NEBEKER.
Union Carbide Corporation, Defendant, represented by Mary Price
Birk, BAKER & HOSTETLER LLP, Patricia W. Christensen, PARR BROWN
GEE & LOVELESS & Ronald L. Hellbusch, BAKER & HOSTETLER LLP.
Warren Pumps, Defendant, represented by Scot A. Boyd, CHRISTENSEN
& JENSEN PC.
Westinghouse Electric Corporation, Defendant, represented
by Stewart O. Peay, SNELL & WILMER, Tracy H. Fowler, SNELL &
WILMER & Kamie F. Brown, RAY QUINNEY & NEBEKER.
York International Corporation, Defendant, represented by Dennis
C. Ferguson, WILLIAMS & HUNT,Timothy J. Bywater, WILLIAMS & HUNT
& Mark R. Anderson, BERRETT & HANNA LC.
Zurn Industries, Inc., Defendant, represented by Scot A. Boyd,
CHRISTENSEN & JENSEN PC & Rebecca L. Hill, CHRISTENSEN & JENSEN
PC.
Hercules Inc, Defendant, represented by Katherine E. Venti,
PARSONS BEHLE & LATIMER & John P. Ball, Jr, PARSONS BEHLE &
LATIMER.
Utah Power & Light Company, Defendant, represented by Gregory S.
Roberts, RAY QUINNEY & NEBEKER & Rick L. Rose, RAY QUINNEY &
NEBEKER.
DaimlerChrysler, Defendant, represented by Scot A. Boyd,
CHRISTENSEN & JENSEN PC & Rebecca L. Hill, CHRISTENSEN & JENSEN
PC.
Goulds Pumps, a subsidiary of ITT Industries, Defendant,
represented by H. Scott Jacobson, Jr., Esq. --
sjacobson@strongandhanni.com -- at STRONG & HANNI.
Copeland Corp, Interested Party, represented by Richard K.
Glauser, Esq. -- rkg@smithglauser.com -- at SMITH & GLAUSER PC.
Kaiser Gypsum Company, Interested Party, represented by Kamie F.
Brown, RAY QUINNEY & NEBEKER,Stewart O. Peay, SNELL & WILMER
& Tracy H. Fowler, SNELL & WILMER.
ASBESTOS UPDATE: La. Court Partially Affirms "Luna" Ruling
----------------------------------------------------------
Defendant-appellant, Louisiana State University Board of
Supervisors appeals the trial court's judgment awarding survival
action damages to plaintiffs-appellees, Maria Elena Luna, Carmel
L. Bass, Justin M. Luna, and Maria Theresa Gabriella Alphonse, the
siblings and surviving heirs of decedent, Rafael Medardo Luna.
Charity Hospital subsequently filed with a peremptory exception
raising the objection of prescription. The Luna siblings filed a
survival action on August 17, 2011, shortly after their brother,
Rafael, died from mesothelioma as a result of asbestos exposure
over a period of more than thirty years while working as a plumber
at Charity Hospital.
In an opinion dated Sept. 19, 2014, the Court of Appeals of
Louisiana, First Circuit, overruled the exception and affirmed in
part and reversed in part the judgment.
The case is MARIA ELENA LUNA, CARMEL L. BASS, JUSTIN M. LUNA, AND
MARIA THERESA GABRIELLA ALPHONSE, INDIVIDUALLY AND ON BEHALF OF
THE LATE RAFAEL MEDARDO LUNA, v. A.W. CHESTERTON COMPANY, ET AL.,
NO. 2013 CA 2177 (La. App.). A full-text copy of the Decision is
available at http://is.gd/oZhXBUfrom Leagle.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. 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 * * *