/raid1/www/Hosts/bankrupt/CAR_Public/150102.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 2, 2015, Vol. 17, No. 2
Headlines
3 STEP COLLECTIONS: "Elias" Suit Seeks to Recover Unpaid OT Wages
ACTION CONTRACTORS: Sued Over Failure to Pay Overtime Wages
APPLE INC: Obtains Favorable Ruling in iPod Antitrust Litigation
ARUBA NETWORKS: Files Bid to Dismiss "Mazzafero" Case in Calif.
ASSURED GUARANTY: Municipal Derivatives Antitrust MDL Continues
AYMAN FOOD: Faces "Cervantes" Suit Over Failure to Pay Overtime
BATH & BODY: Dist. Court Should Hear CAFA Suit, 9th Cir. Says
BP PRODUCTS: N.D. Ill. Judge Narrows Claims in Petcoke Suit
CAREER EDUCATION: Has Made Unsolicited Calls, Action Claims
CHIQUITA FYE: Prisoner's Suit Can't Proceed as Class Action
COLORADO MENTAL HEALTH: Court Rules on Prisoner's Bid for Release
COMCAST CORP: Settles Subscribers' Monopoly Action for $50 Mil.
CRESCENT CONSULTING: "Koviach" Suit Seeks to Recover Unpaid OT
DIVERSIFIED CONSULTANTS: Illegally Collects Debt, Action Claims
DOLLAR GENERAL: "Richter" Settled for $8.5MM; Case Dismissed
DOLLAR GENERAL: Scheduling Conference in "Carpenter" Case Held
DOLLAR GENERAL: Answer to "Hood" Labor Lawsuit Due January 16
DOLLAR GENERAL: Hearing for Settlement of "Marcum" on Feb. 26
DOLLAR GENERAL: Status Conference on Jan. 8 in EEOC's Suit
DOLLAR GENERAL: Seeks to Coordinate "Varela" & "Main" Lawsuits
DOLLAR GENERAL: "Varela" Plaintiffs to File Amended Complaint
DOLLAR GENERAL: "Avila" Labor Suit Pending in Calif. Court
DOLLAR GENERAL: Resolves "Wass" Suit Over FLSA Violation in Mo.
DOLLAR GENERAL: "Buttry" Labor Lawsuit Set for Trial Feb. 17
DOLLAR GENERAL: Trial Dates Set in "Danielle Harsey" Labor Suit
DOLLAR GENERAL: Conditional Cert. Motion in "Vincino" Due Feb. 23
DOLLAR GENERAL: Scheduling Conference in "Riley" Case Held
DOW CHEMICAL: Polyether Polyol Class Action Litigation Ongoing
DRAEGER SAFETY: Plaintiffs Lose Alcotest Class Action Bid
DYNEGY INC: July 2015 Trial in Antitrust Suit Related to RST
EL LILLY: 11th Cir. Affirms Remand Order in "Dudley" Case
ENVIVIO: Reaches Agreement to Settle Stock Suit for $1 Million
EXXON MOBIL: Court Reverses Exemplary Damages in Chemical Suit
F & H VENTURES: "Ennis" Suit Seeks to Recover Unpaid OT Wages
FINISAR CORP: Appeal v. Dismissal of Securities Suit Pending
FLY & FORM: Faces "Bello" Suit Over Failure to Pay Overtime Wages
FMML VENTURES: "Tapia" Suit Seeks to Recover Unpaid Overtime
FRASER CONSTRUCTION: Faces "Santos" Suit Over Failure to Pay OT
GENERAL MILLS: Settles Four Class Actions Over Granola Bars
GENERAL MOTORS: Judge Allows Consumer Class Action to Proceed
GILEAD SCIENCES: Sued Over "Exorbitant" Hep C Treatment Regiment
GOODWILL INDUSTRIES: "Caceres" Suit Seeks to Recover Unpaid OT
GOOGLE INC: 3rd Circuit Hears Arguments in Privacy Suit
GOOGLE INC: Conference in "Feitelson" Case Moved to Jan. 22
GREYSTONE ALLIANCE: 7th Cir. Judge Reinstates "Smith" Case
HYDERABAD ASBESTOS: Faces Suit in India Over Asbestos Mine Waste
INFOBLOX INC: Lead Plaintiffs in Securities Suit Dismiss Claim
J. CREW GROUP: Settlement of Suit Over ZIP Code Collection Okayed
JAMES C BENDER: Plaintiffs' Attorney Fee Request Too Greedy
JP 538 THIRD: Faces "Palma" Suit Over Failure to Pay Overtime
JUMEI INTERNATIONAL: Sued Over Misleading Financial Reports
JUMEI INTERNATIONAL: Faces "Brock" Suit Over False Fin'l Reports
JVA INDUSTRIES: Suit Seeks to Recover Unpaid Wages & Penalties
KEYUAN PETROCHEMICALS: Calif. Securities Lawsuit in Discovery
LAUTREC CORPORATION: Suit Seeks to Recover Unpaid Wages & Damages
LEIDOS HOLDINGS: Last Plaintiffs in Data Privacy Suit Junk Claims
LEIDOS HOLDINGS: Faces New Data Privacy Claims in Calif. Court
LEIDOS HOLDINGS: SAIC Shareholder Plaintiffs Appeal to 2nd Cir.
LEPRECHAUN LINES: Faces "Perry" Suit Over Failure to Pay OT Wages
MARVELL TECHNOLOGY: Jan. 22 Hearing on Bid to Junk Patent Suit
MAZOR'S BAKERY: Suit Seeks to Recover Unpaid Overtime Wages
MERCEDES BENZ: Sued in C.D. Cal. Over Defective Seat Heaters
MIDWEST HEALTH: Faces "French" Suit Over Failure to Pay Overtime
MONAVIE LLC: Faces "Jessop" Suit in Utah Over ERISA Violation
NEW YORK: Faces "Jorge" Suit Over Discriminatory Practices
NEW YORK: January 7 Class Action Settlement Fairness Hearing Set
ONESOURCE BUILDING: Sued Over Failure to Pay Overtime Wages
PACIFIC SUNWEAR: Feb. 2 Hearing on Bid to Certify Labor Suit
PETCO ANIMAL: Faces "Kucker" Suit Over Failure to Pay Overtime
P.F. CHANG: Plaintiffs Appeal Data Breach Class Action Dismissal
PANZNER DEMOLITION: Fairness Hearing Held in "Gomez-Cruz" Suit
PELLA CORP: Depositions of Class Reps Must Be Done by Feb. 1
PFIZER INC: Mass. Judge Cuts Attorneys' Fees in Neurontin Case
PHILIP MORRIS: Boston Judge Narrows Tobacco Class Actions
PROGRESSIVE AD: Has Made Unsolicited Calls, "Rayz" Suit Claims
RADIOSHACK CORP: Faces "Gerhart" Suit Over ERISA Violation
RMB INC: Sued Over Breach of Fair Debt Collection Practices Act
SAFEWAY INC: Customers Obtain Favorable Ruling in Class Action
SAWGRASS FORD: "High" Suit Seeks to Recover Unpaid Overtime Wages
SEARS HOLDINGS: Sued for Violating Wage Laws & Payroll Practices
SHERWIN ALUMINA: "Ortiz" Suit Seeks to Recover Unpaid OT Wages
SHOE TIME: Faces "Griffin" Suit Over Failure to Pay Overtime
SITO MOBILE: Plaintiff in "Ibey" Case Dismisses Lawsuit
SONY PICTURES: Faces "Forster" Suit Over Alleged Data Breach
SONY PICTURES: Faces "Levine" Suit Over Alleged Data Breach
SONY PICTURES: Keller Rohrback Files Data Breach Class Action
SONY PICTURES: Taps Boies to Clamp Down on Media Amid Hack Issues
SOURCE REFRIGERATION: Bid for Initial Okay of Accord Due Jan. 9
SWATCH GROUP: N.J. Judge Dismisses "Reed" Case Over FACTA
TARGET CORP: Judge to Decide on Data Breach Suit Dismissal Motion
ULTA SALON: Faces Employment Lawsuit in Calif. Federal Court
UNITED STATES: Vaccine Victim Compensation System Not Working
VERINT SYSTEMS: Labor Lawsuit Plaintiffs File Cert. Summations
WAL-MART STORES: $154-Mil. Damages Award in "Braun" Case Upheld
WAL-MART STORES: Still Faces Securities Litigation in Arkansas
WAL-MART STORES: Still Faces Lawsuit by City of Pontiac Retirees
* Courts Scrutinize Class Certification "Ascertainability"
Asbestos Litigation
ASBESTOS UPDATE: Ashland Unit Has $438MM Total Fibro Reserves
ASBESTOS UPDATE: Ashland Unit Has $402MM Fibro Cost Receivables
ASBESTOS UPDATE: Ashland's Hercules Has $329MM Fibro Reserves
ASBESTOS UPDATE: Ashland's Hercules Has $77MM Fibro Receivables
ASBESTOS UPDATE: Mallinckrodt plc Had 11,900 PI Cases at Sept. 26
ASBESTOS UPDATE: Scotts Miracle Continues to Defend PI Lawsuits
ASBESTOS UPDATE: Cabot Corp. Has 41,000 AO Fibro Claimants
ASBESTOS UPDATE: Abandoned Fibro Mines Still a Hazard in India
ASBESTOS UPDATE: Developer Faces Jail Time Over Fibro Mishandling
ASBESTOS UPDATE: Pa. Justices Deny Multiple-Trigger Theory
ASBESTOS UPDATE: Firms Fined for Risking Workers to Fibro
ASBESTOS UPDATE: Fibro Contamination Probed at NC Auditorium
ASBESTOS UPDATE: 9th Cir. to Examine Order Granting New Trial
ASBESTOS UPDATE: Jail Workers May Have Been Exposed to Fibro
ASBESTOS UPDATE: Goodyear Not Barred from Aggregating PI Claims
ASBESTOS UPDATE: Pa. En Banc Panel Boots $14.5MM Fibro Verdict
ASBESTOS UPDATE: Nepal Government Bans Import, Use of Fibro
ASBESTOS UPDATE: Fibro Cleared From 120 Rottnest Island Sites
ASBESTOS UPDATE: NY Attys Make History With $7.7M Fibro Verdict
ASBESTOS UPDATE: Tyco's Yarway Paying $325 Million in Ch. 11 Plan
ASBESTOS UPDATE: Feds, Mich. Crack Down on Shoddy Fibro Removal
ASBESTOS UPDATE: Probe Launched After Fibro-Ridden Factory Fire
ASBESTOS UPDATE: HSE Probes After Fibro Found at Ashford Building
ASBESTOS UPDATE: P2S Obtains Summary Judgment in PI Suit
ASBESTOS UPDATE: Ill. App. Affirms Ruling in Reinsurance Suit
ASBESTOS UPDATE: Buffalo Pumps' Claim in "Spear" Suit Stricken
ASBESTOS UPDATE: Pa. High Court Affirms Ruling in "St. John" Suit
*********
3 STEP COLLECTIONS: "Elias" Suit Seeks to Recover Unpaid OT Wages
-----------------------------------------------------------------
Eduardo Walter Elias v. 3 Step Collections, LLC., Casey Jamieson,
Jennifer Jamieson, and Miguel Quintana, Case No. 1:14-cv-24749
(S.D. Fla., December 17, 2014), seeks to recover overtime
compensation and other relief under the Fair Labor Standards Act.
The Defendants own and operate a collection agency in Miami-Dade,
Hialeah, Florida.
The Plaintiff is represented by:
Jodi J. Jaffe, Esq.
Andrew Ira Glenn, Esq.
JAFFE GLENN LAW GROUP PA
Lawrence Office Park
168 Franklin Corner Road
Building 2, Suite 220
Larenceville, NJ 08648
Telephone: (305) 726-0060
Facsimile: (305) 726-0046
E-mail: Jaffe.glenn@me.com
aglenn@jaffeglenn.com
ACTION CONTRACTORS: Sued Over Failure to Pay Overtime Wages
-----------------------------------------------------------
Michael Bradshaw, Cody Hodgkinson, and Dylan Bradshaw, on behalf
of themselves and all other similarly situated v. Action
Contractors, LLC, Salvatore J. Vecchio, James Vecchio, S. J.
Vecchio, Case No. 1:14-cv-02779 (N.D. Ohio, December 18, 2014), is
brought against the Defendants for failure to pay overtime
compensation for hours worked in excess of 40 per workweek.
The Defendants own and operate a company that provides, among
other services, concrete construction and building work to clients
throughout Northeast Ohio and the entire United States.
The Plaintiff is represented by:
Melanie V. Miguel-Courtad, Esq.
THE LAW OFFICE OF MELANIE V. MIGUEL-COURTAD
15th Floor, 614 Superior Avenue
Cleveland, OH 44113
Telephone: (216) 621-2030
Facsimile: (216) 523-5987
E-mail: mvm@melanie-miguel.com
- and -
John F. Burke III, Esq.
BURKESLAW, LLC
1500 Rockefeller Bldg.
614 Superior Avenue
Cleveland, OH 44113
Telephone: (216) 621-2030
Facsimile: (216) 523-5987
E-mail: burkeslaw@cox.net
APPLE INC: Obtains Favorable Ruling in iPod Antitrust Litigation
----------------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that ten years
of antitrust litigation against Apple Inc. ended in a complete
bust for plaintiffs lawyers at Robbins Geller Rudman & Geller on
Dec. 16, when jurors returned a verdict siding with the company
after just three hours of deliberation.
A jury in Oakland federal court unanimously determined a 2006
iTunes update was a product improvement, not just a way for Apple
to maintain control over the MP3 music player market. The update
blocked iPods from playing music bought from music stores that
competed with iTunes, but it also added features Apple argued were
obvious improvements -- including a higher resolution screen, the
ability to watch movies, and an auto-syncing feature. Apple's
lawyers, led by William Isaacson and Karen Dunn of Boies, Schiller
& Flexner, also argued the update fixed security holes.
Plaintiffs lawyers Patrick Coughlin and Bonny Sweeney of Robbins
Geller had sought $350 million in damages on behalf of more than 8
million iPod consumers and 500 retailers. Had they prevailed, any
amount awarded by the jury would have been tripled under antitrust
law.
At the close of a headline-grabbing, two-week trial, which
included a video appearance by Apple's late co-founder and former
CEO, Steve Jobs, U.S. District Judge Yvonne Gonzalez Rogers of the
Northern District of California asked jurors to consider the
narrow question of whether the iTunes update benefited consumers.
The case fizzled with the jury's answer, which made further
proceedings unnecessary.
In an interview after the verdict, Mr. Coughlin conceded it would
have been hard for jurors not to find any consumer benefit in the
iTunes update, especially when Apple's lawyers touted the features
it offered as the most significant improvement to hit the music
store since its launch in 2001.
"It makes it a very difficult case, and we knew that,"
Mr. Coughlin said. "At least we had a chance to get it in front
of a jury, and that's all you can ask for."
Mr. Coughlin hinted things might have been different if his team
had won a pretrial battle over how to frame the case. He wanted
the jury to weigh the code that caused the update to exclude
non-iTunes songs separately from the shiny new features the update
offered. Judge Gonzalez Rogers refused.
Robert Bunzel -- rbunzel@bzbm.com -- of Bartko, Zankel, Bunzel &
Miller said the plaintiffs' case also was hurt by its lack of
witness testimony. Aside from one class member, who was later
struck as a class representative because she didn't buy an iPod
with her own money during the relevant years, no one expressed to
the jury how they were injured by the iTunes update.
"I think in an attempted monopolization case, for the plaintiff to
win, the jury needs to hear real people suffered real injury
caused by the anticompetitive conduct," Mr. Bunzel said. "And
without that, the evidence from the company which explains why
these products were improved . . . was compelling."
For Mr. Coughlin of Robbins Geller, the fight isn't over. "Oh,
we're going to appeal," he said.
In an emailed statement, Apple spokeswoman Rachel Wolf said the
company applauded the jury's verdict.
"We created iPod and iTunes to give our customers the world's best
way to listen to music," she wrote. "Every time we've updated
those products -- and every Apple product over the years -- we've
done it to make the user experience even better."
The jurors declined to comment after delivering their verdict on
Dec. 16.
Since filing the litigation nearly a decade ago, plaintiffs
lawyers at times seemed to struggle to keep the case afloat. U.S.
District Judge James Ware, who previously presided over the case,
dismissed their original claim, followed by a chunk of their
amended complaint, before he retired in 2012.
Plaintiffs lawyers also lost all three of their class
representatives, as one by one they were either withdrawn or
removed over concerns they had not purchased iPods during the
class period. Judge Gonzalez Rogers struck the last remaining
representative while trial was underway, forcing plaintiffs
lawyers to fly in a last-minute replacement from Massachusetts.
The Robbins Geller lawyers spent 10 years pouring resources into
the case. Making that investment, knowing there's a risk of
ending up with nothing, is part of the business model for a
plaintiffs firm, said Francis Scarpulla of Zelle Hofmann Voelbel &
Mason.
"You win some and you lose some," he said. "That's of course why
when you win some, the court's got to pay you a lot of money in
fees so you can afford to take the other cases that you lose."
ARUBA NETWORKS: Files Bid to Dismiss "Mazzafero" Case in Calif.
---------------------------------------------------------------
Aruba Networks, Inc. filed a motion to dismiss an amended
complaint in Mazzafero v. Aruba Networks, Inc., et al., pending in
the United States District Court for the Northern District of
California, according to the company's Dec. 4, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Oct. 31, 2014.
On May 23, 2013, a purported stockholder class action lawsuit
captioned Mazzafero v. Aruba Networks, Inc., et al., was filed in
the United States District Court for the Northern District of
California against the Company and certain of its officers. The
purported class action alleges claims for violations of the
federal securities laws, and seeks unspecified compensatory
damages and other relief. On August 1, 2014, the Court dismissed
the case but granted leave to amend. On September 26, 2014, the
purported class filed an amended complaint which made allegations
similar in nature to those in the original complaint. On October
27, 2014, the Company filed a motion to dismiss the amended
complaint.
ASSURED GUARANTY: Municipal Derivatives Antitrust MDL Continues
---------------------------------------------------------------
In re Municipal Derivatives Antitrust Litigation, Case No. 1:08-
cv-2516 ("MDL 1950") remains pending in the U.S. District Court
for the Southern District of New York, according to Assured
Guaranty Municipal Corp.'s September 30, 2014 Consolidated
Financial Statements filed Dec. 2, 2014 with the U.S. Securities
and Exchange Commission.
During 2008, nine putative class action lawsuits were filed in
federal court alleging federal antitrust violations in the
municipal derivatives industry, seeking damages and alleging,
among other things, a conspiracy to fix the pricing of, and
manipulate bids for, municipal derivatives, including GICs. These
cases have been coordinated and consolidated for pretrial
proceedings in the U.S. District Court for the Southern District
of New York as MDL 1950, In re Municipal Derivatives Antitrust
Litigation, Case No. 1:08-cv-2516 ("MDL 1950").
Five of these cases named both AGMH and AGM: (a) Hinds County,
Mississippi v. Wachovia Bank, N.A.; (b) Fairfax County, Virginia
v. Wachovia Bank, N.A.; (c) Central Bucks School District,
Pennsylvania v. Wachovia Bank, N.A.; (d) Mayor and City Council of
Baltimore, Maryland v. Wachovia Bank, N.A.; and (e) Washington
County, Tennessee v. Wachovia Bank, N.A. In April 2009, the MDL
1950 court granted the defendants' motion to dismiss on the
federal claims, but granted leave for the plaintiffs to file an
amended complaint. The Corrected Third Consolidated Amended Class
Action Complaint, filed on October 9, 2013, lists neither AGM nor
AGMH as a named defendant or a co-conspirator. The complaint
generally seeks unspecified monetary damages, interest, attorneys'
fees and other costs.
The other four cases named AGMH (but not AGM) and also alleged
that the defendants violated California state antitrust law and
common law by engaging in illegal bid-rigging and market
allocation, thereby depriving the cities or municipalities of
competition in the awarding of GICs and ultimately resulting in
the cities paying higher fees for these products: (f) City of
Oakland, California v. AIG Financial Products Corp.; (g) County of
Alameda, California v. AIG Financial Products Corp.; (h) City of
Fresno, California v. AIG Financial Products Corp.; and (i) Fresno
County Financing Authority v. AIG Financial Products Corp. When
the four plaintiffs filed a consolidated complaint in September
2009, the plaintiffs did not name AGMH as a defendant. However,
the complaint does describe some of AGMH's and AGM's activities.
The consolidated complaint generally seeks unspecified monetary
damages, interest, attorneys' fees and other costs. In April 2010,
the MDL 1950 court granted in part and denied in part the named
defendants' motions to dismiss this consolidated complaint. The
Company cannot reasonably estimate the possible loss, if any, or
range of loss that may arise from these lawsuits.
In 2008, AGMH and AGM also were named in five non-class action
lawsuits originally filed in the California Superior Courts
alleging violations of California law related to the municipal
derivatives industry: (a) City of Los Angeles, California v. Bank
of America, N.A.; (b) City of Stockton, California v. Bank of
America, N.A.; (c) County of San Diego, California v. Bank of
America, N.A.; (d) County of San Mateo, California v. Bank of
America, N.A.; and (e) County of Contra Costa, California v. Bank
of America, N.A. Amended complaints in these actions were filed in
September 2009, adding a federal antitrust claim and naming AGM
(but not AGMH) and AGUS, among other defendants. These cases have
been transferred to the Southern District of New York and
consolidated with MDL 1950 for pretrial proceedings.
In late 2009, AGM and AGUS, among other defendants, were named in
six additional non-class action cases filed in federal court,
which also have been coordinated and consolidated for pretrial
proceedings with MDL 1950: (f) City of Riverside, California v.
Bank of America, N.A.; (g) Sacramento Municipal Utility District
v. Bank of America, N.A.; (h) Los Angeles World Airports v. Bank
of America, N.A.; (i) Redevelopment Agency of the City of Stockton
v. Bank of America, N.A.; (j) Sacramento Suburban Water District
v. Bank of America, N.A.; and (k) County of Tulare, California v.
Bank of America, N.A.
The MDL 1950 court denied AGM and AGUS's motions to dismiss these
11 complaints in April 2010. Amended complaints were filed in May
2010. On October 29, 2010, AGM and AGUS were voluntarily dismissed
with prejudice from the Sacramento Municipal Utility District case
only. The complaints in these lawsuits generally seek or sought
unspecified monetary damages, interest, attorneys' fees, costs and
other expenses. The Company cannot reasonably estimate the
possible loss, if any, or range of loss that may arise from the
remaining lawsuits.
In May 2010, AGM and AGUS, among other defendants, were named in
five additional non-class action cases filed in federal court in
California: (a) City of Richmond, California v. Bank of America,
N.A. (filed on May 18, 2010, N.D. California); (b) City of Redwood
City, California v. Bank of America, N.A. (filed on May 18, 2010,
N.D. California); (c) Redevelopment Agency of the City and County
of San Francisco, California v. Bank of America, N.A. (filed on
May 21, 2010, N.D. California); (d) East Bay Municipal Utility
District, California v. Bank of America, N.A. (filed on May 18,
2010, N.D. California); and (e) City of San Jose and the San Jose
Redevelopment Agency, California v. Bank of America, N.A (filed on
May 18, 2010, N.D. California). These cases have also been
transferred to the Southern District of New York and consolidated
with MDL 1950 for pretrial proceedings. In September 2010, AGM and
AGUS, among other defendants, were named in a sixth additional
non-class action filed in federal court in New York, but which
alleges violation of New York's Donnelly Act in addition to
federal antitrust law: Active Retirement Community, Inc. d/b/a
Jefferson's Ferry v. Bank of America, N.A. (filed on September 21,
2010, E.D. New York), which has also been transferred to the
Southern District of New York and consolidated with MDL 1950 for
pretrial proceedings. In December 2010, AGM and AGUS, among other
defendants, were named in a seventh additional non-class action
filed in federal court in the Central District of California, Los
Angeles Unified School District v. Bank of America, N.A., and in
an eighth additional non-class action filed in federal court in
the Southern District of New York, Kendal on Hudson, Inc. v. Bank
of America, N.A. These cases also have been consolidated with MDL
1950 for pretrial proceedings. The complaints in these lawsuits
generally seek unspecified monetary damages, interest, attorneys'
fees, costs and other expenses.
AYMAN FOOD: Faces "Cervantes" Suit Over Failure to Pay Overtime
---------------------------------------------------------------
Maximino Cervantes, individually and on behalf of other employees
similarly situated v. Ayman Food & Liquor, Inc. and Awad Odeh,
Case No. 1:14-cv-10156 (N.D. Ill., December 18, 2014), is brought
against the Defendants for failure to pay overtime compensation
for hours worked in excess of 40 per workweek.
The Defendants own and operate convenience stores in Chicago,
Illinois.
The Plaintiff is represented by:
David Erik Stevens, Esq.
CONSUMER LAW GROUP, LLC
6232 N. Pulaski, Suite 200
Chicago, IL 60646
Telephone: (312) 624-8958
E-mail: Dave@StevensLawLLC.com
BATH & BODY: Dist. Court Should Hear CAFA Suit, 9th Cir. Says
-------------------------------------------------------------
The United States Court of Appeals, Ninth District, reversed a
district court's remand order in the case ADAM JONES, individually
as an aggrieved employee and on behalf of other aggrieved
employees, Plaintiff-Appellee, v. BATH & BODY WORKS, LLC,
Defendant-Appellant, No. 14-56778 (9th Cir.)
The district court remanded the putative class action to state
court, in which defendant-appellant Bath & Body Works, LLC
appealed the order. The sole dispute on appeal was whether
defendant has met its burden of proof under the Class Action
Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1332(d), to
establish that the amount in controversy exceeds $5 million
The appellate court reversed the district court's remand order and
concluded that the district court has jurisdiction pursuant to the
CAFA. The appellate court said defendant has submitted sufficient
evidence to show by a preponderance of the evidence that the
amount in controversy exceeds $5 million.
A copy of the Ninth Circuit's Memorandum dated December 29, 2014,
is available at http://is.gd/wNzN0Cfrom Leagle.com
The Ninth Circuit panel consists of Circuit Judges Susan Graber,
Ronald M. Gould and Consuelo Maria Callahan.
BP PRODUCTS: N.D. Ill. Judge Narrows Claims in Petcoke Suit
-----------------------------------------------------------
District Judge Manish S. Shah of the Northern District of
Illinois, Eastern Division, granted in part and denied in part
defendants' motion to dismiss the case ROSALIO CAMPOS, RAYMOND
FIGUEROA, PATRICIA A. FISHER, SUSAN SADLOWSKI GARZA, JANE GOULD,
LILLY MARTIN, ALFREDO MENDOZA, KEVIN P. MURPHY, JOANN PODKUL, and
JEAN TOURVILLE, individually and on behalf of all other persons
and entities similarly situated, Plaintiffs, v. BP PRODUCTS NORTH
AMERICA, INC., CALUMET TRANSLOAD RAILROAD LLC, DTE CHICAGO FUELS
TERMINAL, LLC, GEORGE J. BEEMSTERBOER, INC., BEEMSTERBOER SLAG AND
BALLAST CORPORATION, KCBX TERMINALS COMPANY, KM RAILWAYS, LLC, and
KOCH CARBON, LLC, Defendants., Nos. 13 CV 8376, 13 CV 8499, 13 CV
9038 (N.D. Ill.)
Defendant BP Products North America, Inc., produces and sells oil
and natural gas, of which petcoke is the byproduct of BP's oil-
refinery process. BP has a refinery at Whiting, Indiana.
Defendant Koch Carbon LLC, owns or control a substantial amount of
petcoke and coal dust that is stored at all of its 3 facilities.
Defendants George J. Beemsterboer, Inc. and Beemsterboer Slag and
Ballast Corporation own or operate the Beemsterboer Terminal,
which stores large quantities of petcoke and coal dust. Defendant
KCBX Terminals Company owns or operates two storage and transfer
terminals and like the Beemsterboer, it also stores large
quantities of petcoke and coil dust. Defendant KM Railways, LLC or
KMR owns the property on which the Burley Terminal is located.
Defendant DTE Chicago Fuels Terminal LLC owned and operated the
Burley Terminal and the land on which it is located, and stored
uncovered petcoke and coal dust until December 2012 and Defendant
Calumet Transload Railroad LLC operates a facility at the Burley
Terminal, where large quantities of petcoke and coal dust are
stored.
Plaintiffs own properties near the storage facilities. Plaintiffs
allege that as a direct and foreseeable result of defendants'
conduct, petcoke and coal dust have been blown throughout
surrounding communities, contaminating the air and coating the
property within affected areas, reducing the value and interfering
with reasonable use and enjoyment of such property. Plaintiffs
allege that they have been exposed to polluted air and have been
forced to spend time, money, and effort cleaning the petcoke and
coal dust from their properties. They allege decreased values, and
reduced use and enjoyment, of their properties. Plaintiffs
allegedly live in fear, apprehension, and great distress.
Plaintiffs raised these allegations: Count I - Private Nuisance,
which is directed against storage/distribution defendants; Count
II - Private Nuisance against BP; Count III - Abnormally Dangerous
Activity, against all defendants; Count IV - Willful and Wanton
Conduct, against all defendants; Count V - Trespass, against
storage/distribution defendants; Count VI - Negligence, against
the storage/distribution defendants; Count VII - Willful and
Wanton Conduct, against all defendants; Count VIII - Civil
Conspiracy, against all defendants and; Count IX - Declaratory
Relief, against all defendants.
Defendants moved to dismiss the complaint in its entirety.
Judge Shah in her memorandum opinion and order dated November 12,
2014 is available at http://is.gd/kikdoQfrom Leagle.com, held
that:
-- Beemsterboer Slag and Ballast, George J. Beemsterboer, and
Calumet Transload's motion to dismiss is granted in part, Counts
III, IV, VII, VIII, and IX are dismissed and denied in part Counts
I, V, and VI are not dismissed.
-- KCBX, Koch Carbon, and KMR's motion to dismiss is granted
in part and denied in part. All claims against KMR are dismissed,
and KMR is dismissed from the case and terminated as a party. As
to KCBX and Koch Carbon: Counts III, IV, VII, VIII, and IX are
dismissed, but Counts I, V, and VI are not dismissed.
-- DTE's motion to dismiss is granted in part Counts III, IV,
VII, VIII, and IX are dismissed and denied in part Counts I, V,
and VI are not dismissed.
-- BP's motion to dismiss is granted. BP is dismissed from
the case and terminated as a party.
Lilly Martin, Jean Tourville, Jane Gould and Alfredo Mendoza,
Plaintiffs, represented by:
Thomas A. Zimmerman, Jr., Esq.
Adam M. Tamburelli, Esq.
Frank James Stretz, Esq.
ZIMMERMAN LAW OFFICES, P.C.
77 W Washington St #1220
Chicago, IL 60602
Telephone: +1 312-440-0020
- and -
James D. Brusslan, Esq.
LEVENFIELD PEARLSTEIN, LLC
2 North LaSalle Street Suite 1300
Chicago, IL 60602
Telephone: 312-476-7570
Facsimile: 312-346-8434
Email: jbrusslan@plegal.com
- and -
Ben Barnow, Esq.
BARNOW AND ASSOCIATES, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Telephone: 312-621-2000
Raymond Figueroa, Kevin P. Murphy, Joann Podkul, Susan Sadlowski
Garza, Patricia A. Fisher and Campos Rosalio, Plaintiffs,
represented by:
Ben Barnow, Esq.
BARNOW AND ASSOCIATES, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Telephone: 312-621-2000
George J. Beemsterboer, Inc., an Indiana corporation and Calumet
Transload Railroad LLC, an Illinois limited liability company,
Defendants, represented by Christopher T. Sheean --
csheean@smbtrials.com - Michael John Maher -- mmaher@smbtrials.com
- and -Steven Lawrence Vanderporten -- svanderporten@smbtrials.com
-- at Swanson, Martin & Bell LLP
DTE Chicago Fuels Terminal, LLC, a Michigan limited liability
company, Defendant, represented by Donald Alexander Cole --
donald.cole@bryancave.com -- Lauren Jennifer Caisman --
lauren.caisman@bryancave.com -- Steven Patrick McKey --
patrick.mckey@bryancave.com -- at Bryan Cave LLP; and Thor W.
Ketzback at McGuireWoods LLP
Koch Carbon, LLC, a Delaware limited liability company and KCBX
Terminals Company, a North Dakota corporation, Defendants,
represented by Eric C. Lyttle -- ericlyttle@quinnemanuel.com --
Michael John Lyle -- mikelyle@quinnemanuel.com -- Michelle R
Schmit -- michelleschmit@quinnemanuel.com -- Stephen A. Swedlow
-- stephenswedlow@quinnemanuel.com -- and -- Sylvia E. Simson --
sylviasimson@quinnemanuel.com -- at Quinn Emanuel Urquhart &
Sullivan LLP -- and Paige Adams at Koch Companies Public Sector,
LLC
Service List, represented by:
John J. Pavich, Esq.
Ian H. Levin, Esq.
Robert James Pavich, Esq.
PAVICH LAW GROUP, P.C.
20 South Clark Street, Suite 700
Chicago, IL 60603
Telephone: 888-687-7020
Email: jpavich@pavichlawgroup.com
rpavich@pavichlawgroup.com
- and -
Adam M. Tamburelli, Esq.
Frank James Stretz, Esq.
Thomas A. Zimmerman, Jr., Esq.
ZIMMERMAN LAW OFFICES PC
77 W Washington St #1220
Chicago, IL 60602
Telephone: +1 312-440-0020
- and -
Aron David Robinson, Esq.
LAW OFFICE OF ARON D. ROBINSON
180 W Washington St # 700
Chicago, IL 60602-2301
Telephone: (312) 857-9050
- and -
Ben Barnow, Esq.
Erich Paul Schork, Esq.
BARNOW AND ASSOCIATES, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Telephone: 312-621-2000
- and -
Caitlin Alejandrina Kovacs, Esq.
Patrick M Crook, Esq.
Raymond Christopher Heck, Esq.
Scott William Fowkes, Esq.
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, IL 60654
Telephone: +1 312-862-2000
Facsimile: +1 312-862-2200
Email: caitlin.kovacs@kirkland.com
patrick.crook@kirkland.com
r.chris.heck@kirkland.com
scott.fowkes@kirkland.com
- and -
Christopher T. Sheean, Esq.
Michael John Maher, Esq.
Steven Lawrence Vanderporten, Esq.
SWANSON, MARTIN & BELL LLP
330 N Wabash Ave #3300
Chicago, IL 60611
Telephone: +1 312-321-9100
Email: csheean@smbtrials.com
mmaher@smbtrials.com
svanderporten@smbtrials.com
- and -
Donald Alexander Cole, Esq.
Lauren Jennifer Caisman, Esq.
BRYAN CAVE LLP
161 North Clark Street, Suite 4300
Chicago, IL 60601-3315
Telephone: 1 312 602 5000
Facsimile: 1 312 602 5050
Email: donald.cole@bryancave.com
lauren.caisman@bryancave.com
patrick.mckey@bryancave.com
- and -
James D. Brusslan, Esq.
LEVENFIELD PEARLSTEIN, LLC
2 North LaSalle Street Suite 1300
Chicago, IL 60602
Telephone: 312.476.7570
Facsimile: 312.346.8434
Email: jbrusslan@plegal.com
- and -
Jamie Elisabeth Weiss, Esq.
Jeffrey A. Leon, Esq.
QUANTUM LEGAL LLC
513 Central Avenue, Suite 300
Highland Park, IL 60035
Telephone: 847-779-9610
Facsimile: 847-433-2500
- and -
Kevin Barry Rogers, Esq.
LAW OFFICES OF KEVIN ROGERS
307 North Michigan Avenue - Suite 305
Chicago, Il 60601-5301
Telephone: 312.332.1188
Facsimile: 312.332.0192
Email: kevin@kevinrogerslaw.com
- and -
Stephen A. Swedlow, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
500 West Madison St., Suite 2450
Chicago, IL 60661
Telephone: +1 312-705-7400
Facsimile: +1 312-705-7401
Email: stephenswedlow@quinnemanuel.com
- and -
Thor W. Ketzback, Esq.
MCGUIREWOODS LLP
77 West Wacker Drive, Suite 4100
Chicago, IL 60601-1818
Telephone: +1 312 849 8100
Facsimile: +1 312 849 3690
CAREER EDUCATION: Has Made Unsolicited Calls, Action Claims
-----------------------------------------------------------
Mark Fitzhenry, individually and on behalf of all others similarly
situated v. Career Education Corporation, Case No. 1:14-cv-10172
(N.D. Ill., December 18, 2014), alleges that the Defendant used of
an automatic telephone dialing system and an automated or
prerecorded messages to solicit business.
Career Education Corporation owns and operates various private
educational institutions.
The Plaintiff is represented by:
Alexander H. Burke, Esq.
BURKE LAW OFFICES, LLC
155 North Michigan Avenue, Suite 9020
Chicago, IL 60601
Telephone: (312) 729-5288
Facsimile: (312) 729-5289
E-mail: aburke@burkelawllc.com
- and -
Beth E. Terrell, Esq.
Mary B. Reiten, Esq.
TERRELL MARSHALL DAUDT & WILLIE PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 350-3528
Email: bterrell@tmdwlaw.com
mreiten@tmdwlaw.com
- and -
Edward A. Broderick, Esq.
Anthony Paronich, Esq.
BRODERICK LAW, P.C.
125 Summer St., Suite 1030
Boston, MA 02110
Telephone: (617) 738-7080
Email: ted@broderick-law.com
anthony@broderick-law.com
- and -
Matthew P. McCue, Esq.
THE LAW OFFICE OF MATTHEW P. MCCUE
1 South Avenue, Suite 3
Natick, MA 01760
Telephone: (508) 655-1415
Facsimile: (508) 319-3077
Email: mmccue@massattorneys.net
CHIQUITA FYE: Prisoner's Suit Can't Proceed as Class Action
-----------------------------------------------------------
Mack Henry Lott, a prisoner, filed a motion to proceed in forma
pauperis ("IFP") on appeal, and a motion for class certification
in the case entitled MACK HENRY LOTT, et al., Plaintiffs v. DR.
CHIQUITA FYE, et al., Defendants, No. 514-CV-271 (MTT) (M.D. Ga.)
District Judge Marc T. Treadwell of the Middle District of Georgia
held that Lott, with "three strikes" under 28 U.S.C. Sec. 1915(g),
may not proceed IFP on appeal unless he qualifies for the imminent
danger of serious physical injury exception.
In an order dated November 12, 2014, which is available at
http://is.gd/JPj88ifrom Leagle.com, Judge Treadwell said Lott
does not qualify for the imminent danger exception.
On the motion for class certification, Judge Treadwell said
multiple prisoners proceeding IFP cannot join together in a single
class action lawsuit. Each prisoner wishing to sue Dr. Chiquita
Fye must file his own separate section 1983 lawsuit and, in
Plaintiff's case, must either pay the $400.00 filing fee or allege
facts demonstrating that he is in imminent danger of serious
physical injury.
COLORADO MENTAL HEALTH: Court Rules on Prisoner's Bid for Release
-----------------------------------------------------------------
Magistrate Judge Gordon P. Gallagher of the District of Colorado
made an order to the applicant in the case entitled VINCENT E.
LOGGINS, Plaintiff/Applicant, v. NO NAMED PARTY, Defendant/
Respondent, Civil Action No. 14-CV-02652-BNB (D. Colo.)
Vincent Loggins was housed at the Colorado Mental Health Institute
in Pueblo, Colorado. He initiated an action by filing a pleading
titled Class Action, pursuant to 28 U.S.C.A 1652. Magistrate Judge
Boyd N. Boland reviewed the pleading, found deficiencies, and
directed Mr. Loggins to cure the deficiencies. In response to
Magistrate Judge Boland's Order to Cure Deficiencies, Mr. Loggins
submitted 17 filings. Two of the filings are requests to proceed
in forma pauperis; and three of the seventeen filings are a Title
VII Complaint, a Prisoner Complaint, and an Application for Writ
of Habeas Corpus Pursuant to 28 U.S.C. Section 2254. In each of
the three pleadings, Mr. Loggins challenges his placement at the
Colorado Mental Health Institute and seeks release from the
Institute.
In his order dated November 11, 2014, which is available at
http://is.gd/qEvRBQfrom Leagle.com, Magistrate Judge Gallagher
said Mr. Loggins failed to provide a short and plain statement of
his claims in compliance with the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure. The Court, however, gave
Mr. Loggins an opportunity to cure the deficiencies by submitting
a pleading that meets the requirements of Fed. R. Civ. P. 8.
Mr. Loggins may not file a 28 U.S.C. Sec. 2254 application and a
civil complaint in the same action.
If Mr. Loggins intends to file a prisoner complaint regarding the
conditions of his confinement he must do so on a Court-approved
Prisoner Complaint form.
Vincent E. Loggins, Plaintiff, appeared Pro Se.
COMCAST CORP: Settles Subscribers' Monopoly Action for $50 Mil.
---------------------------------------------------------------
Saranac Hale Spencer, writing for The Legal Intelligencer, reports
that the $50 million agreement proposed in October to settle a
decade-old case brought by Comcast subscribers who alleged the
company had monopolized the local cable market has gotten
preliminary approval from the federal judge handling the case.
U.S. District Judge John R. Padova of the Eastern District of
Pennsylvania also certified the settlement class, which includes
at least 800,000 current and former subscribers.
The suit was filed in late 2003 on behalf of roughly 2 million
Philadelphia-area Comcast customers and got class certification in
the Eastern District of Pennsylvania, a decision that was appealed
by Comcast and upheld by the U.S. Court of Appeals for the Third
Circuit.
When Comcast sought review from the U.S. Supreme Court, however,
the high court reversed the certification and the case became part
of the high court's shift toward stricter standards for class
certification.
In its 2013 opinion in Comcast v. Behrend, the Supreme Court cited
to its 2011 decision in Wal-Mart Stores v. Dukes, which had
rejected a class certification for more than a million women who
alleged that Wal-Mart maintained a system of gender discrimination
in its pay and promotion policies.
In the Comcast decision, the majority of the divided Supreme Court
had ruled the model the plaintiffs had offered to the trial court
in order to show their common injury, that Comcast's practice of
excluding competitors had resulted in higher costs for cable
subscribers, didn't actually satisfy the federal rule requiring
predominance of an issue in order to get class certification.
When the Third Circuit upheld the district court's opinion, it had
ruled that at the certification stage, plaintiffs need not "tie
each theory of antitrust impact to an exact calculation of
damages."
However, the Supreme Court disagreed. Class determination, the
majority said, quoting from an earlier case, "generally involves
considerations that are enmeshed in the factual and legal issues
comprising the plaintiff's cause of action. It is clear that,
under the proper standard for evaluating certification,
respondents' model falls far short of establishing that damages
are capable of measurement on a classwide basis."
Following that decision, Judge Padova decided the plaintiffs could
still seek certification of a narrower class.
The settlement proposed in October came before the narrowed class
was approved.
The agreement includes $16.7 million in cash and what is valued at
$33.3 million in services.
Settling Comcast subscribers are offered a choice between taking
$15 off of his or her next bill or taking one of several options
for services, like two free months of The Movie Channel. Former
subscribers can make a claim for $15 in cash.
CRESCENT CONSULTING: "Koviach" Suit Seeks to Recover Unpaid OT
--------------------------------------------------------------
Charles Koviach and Henry Mccathen, Jr., individually and on
behalf of all others similarly situated v. Crescent City
Consulting, LLC and Marlon Defillo, Case No. 2:14-cv-02874 (E.D.
La., December 18, 2014), seeks to recover unpaid overtime wages,
an additional equal amount as liquidated damages, and reasonable
attorney's fees and costs pursuant to the Fair Labor Standard Act.
The Defendants own and operate a professional security agency in
Orleans Parish, Louisiana.
The Plaintiff is represented by:
Mary Bubbett Jackson, Esq.
JACKSON & JACKSON
201 St. Charles Ave., Suite 2500
New Orleans, LA 70170
Telephone: (504) 599-5953
E-mail: mjackson@jackson-law.net
DIVERSIFIED CONSULTANTS: Illegally Collects Debt, Action Claims
---------------------------------------------------------------
Ramon Mejia, on behalf of himself individually and all others
similarly situated v. Diversified Consultants, Inc., Case No.
1:14-cv-09984 (S.D.N.Y., December 18, 2014), arises out of the
Defendant's deceptive and unfair acts and practices of collecting
debt.
Diversified Consultants, Inc. is engaged in the business of
collecting defaulted consumer debts owed or due or alleged to be
owed or due to others.
The Plaintiff is represented by:
Concetta Puglisi, Esq.
Novlette Rosemarie Kidd, Esq.
FAGENSON & PUGLISI
450 Seventh Avenue, Suite 704
New York, NY 10123
Telephone: (917) 348-4317
Facsimile: (212) 268-2127
E-mail: cpuglisi@fagensonpuglisi.com
nkidd@fagensonpuglisi.com
DOLLAR GENERAL: "Richter" Settled for $8.5MM; Case Dismissed
------------------------------------------------------------
The United States District Court for the Northern District of
Alabama entered an order approving a settlement of up to $8.5
million and dismissing the action Cynthia Richter, et al. v.
Dolgencorp, Inc., et al., according to Dollar General
Corporation's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014.
On August 7, 2006, a lawsuit entitled Cynthia Richter, et al. v.
Dolgencorp, Inc., et al. was filed in the United States District
Court for the Northern District of Alabama (Case No. 7:06-cv-
01537-LSC) ("Richter") in which the plaintiff alleges that she and
other current and former Dollar General store managers were
improperly classified as exempt executive employees under the Fair
Labor Standards Act ("FLSA") and seeks to recover overtime pay,
liquidated damages, and attorneys' fees and costs. On August 15,
2006, the Richter plaintiff filed a motion in which she asked the
court to certify a nationwide class of current and former store
managers. The Company opposed the plaintiff's motion. On March 23,
2007, the court conditionally certified a nationwide class. On
December 2, 2009, notice was mailed to over 28,000 current or
former Dollar General store managers. Approximately 3,950
individuals opted into the lawsuit, approximately 1,000 of whom
have been dismissed for various reasons, including failure to
cooperate in discovery.
On April 2, 2012, the Company moved to decertify the class. The
plaintiff's response to that motion was filed on May 9, 2012.
On October 22, 2012, the court entered a memorandum opinion
granting the Company's decertification motion. On December 19,
2012, the court entered an order decertifying the matter and
stating that a separate order would be entered regarding the opt-
in plaintiffs' rights and plaintiff Cynthia Richter's individual
claims. To date, the court has not entered such an order.
The parties agreed to mediate the matter, and the court informally
stayed the action pending the results of the mediation.
Mediations were conducted in January, April and August 2013. On
August 10, 2013, the parties reached a preliminary agreement,
which was formalized and submitted to the court for approval, to
resolve the matter for up to $8.5 million. On November 24, 2014,
the court entered an order approving the settlement and dismissing
the action. The Company has deemed the settlement probable and
recorded such amount as the estimated expense in the second
quarter of 2013.
DOLLAR GENERAL: Scheduling Conference in "Carpenter" Case Held
--------------------------------------------------------------
A scheduling conference was scheduled for December 22, 2014 in the
labor suit Sally Ann Carpenter v. Dolgencorp, Inc. pending in the
United States District Court for the Southern District of West
Virginia, according to Dollar General Corporation's Dec. 4, 2014,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Oct. 31, 2014.
On September 8, 2014, a lawsuit entitled Sally Ann Carpenter v.
Dolgencorp, Inc. was filed in the United States District Court for
the Southern District of West Virginia (Case No. 2:14-cv-25500)
("Carpenter"). The Carpenter plaintiff seeks to proceed on a
collective basis under the FLSA on behalf of herself and other
former and current store managers in the state of West Virginia
who were allegedly improperly classified as exempt executive
employees under the FLSA. The Carpenter plaintiff seeks to
recover overtime pay, liquidated damages, and attorneys' fees and
costs.
The Company filed its answer to the complaint on September 30,
2014. A scheduling conference was scheduled for December 22,
2014.
DOLLAR GENERAL: Answer to "Hood" Labor Lawsuit Due January 16
-------------------------------------------------------------
Dollar General Corporation's answer to a lawsuit entitled Ronda
Hood v. Dollar General Corporation, filed in the United States
District Court for the Eastern District of Louisiana, is due to be
filed on or before January 16, 2015, according to Dollar General
Corporation's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014.
On October 31, 2014, a lawsuit entitled Ronda Hood v. Dollar
General Corporation was filed in the United States District Court
for the Eastern District of Louisiana (Case No. 2:14-cv-02512-JTM-
DEK) ("Hood"). The Hood plaintiff seeks to proceed on a
nationwide collective basis under the FLSA on behalf of herself
and other similarly situated store managers who were allegedly
improperly classified as exempt executive employees under the
FLSA. The Hood plaintiff seeks to recover overtime pay,
liquidated damages, and attorneys' fees and costs.
The Company's answer is due to be filed on or before January 16,
2015.
The Company believes that its store managers are and have been
properly classified as exempt employees under the FLSA and that
the Carpenter and Hood actions are not appropriate for collective
action treatment. The Company has obtained summary judgment in
some, although not all, of its pending individual or single-
plaintiff store manager exemption cases in which it has filed such
a motion.
DOLLAR GENERAL: Hearing for Settlement of "Marcum" on Feb. 26
-------------------------------------------------------------
The final fairness hearing for a $4.08 million settlement of the
suit Jonathan Marcum, et al. v. Dolgencorp. Inc. (Civil Action No.
3:12-cv-00108-JRS) is scheduled for February 26, 2015, according
to Dollar General Corporation's Dec. 4, 2014, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Oct. 31, 2014.
On April 9, 2012, the Company was served with a lawsuit filed in
the United States District Court for the Eastern District of
Virginia entitled Jonathan Marcum, et al. v. Dolgencorp. Inc.
(Civil Action No. 3:12-cv-00108-JRS) ("Marcum") in which the
plaintiffs, one of whose conditional offer of employment was
rescinded, allege that certain of the Company's background check
procedures violate the Fair Credit Reporting Act ("FCRA").
Plaintiff Marcum also alleges defamation. According to the
complaint and subsequently filed first and second amended
complaints, the plaintiffs seek to represent a putative class of
applicants in connection with their FCRA claims. The Company
responded to the complaint and each of the amended complaints.
The plaintiffs' certification motion was due to be filed on or
before April 5, 2013; however, plaintiffs asked the court to stay
all deadlines in light of the parties' ongoing settlement
discussions. On November 12, 2013, the court entered an order
lifting the stay but has not issued a new scheduling order in
light of the parties' preliminary agreement to resolve the matter.
The parties have engaged in formal settlement discussions on three
occasions, once in January 2013 with a private mediator, and again
in March 2013 and July 2013 with a federal magistrate. On February
18, 2014, the parties reached a preliminary agreement to resolve
the matter for up to $4.08 million.
On October 16, 2014, the court entered an order preliminarily
approving the parties' proposed settlement. The final fairness
hearing is scheduled for February 26, 2015.
The Company's Employment Practices Liability Insurance ("EPLI")
carrier has been placed on notice of this matter and participated
in both the formal and informal settlement discussions. The EPLI
policy covering this matter has a $2 million self-insured
retention. Because the Company believes that it is likely to
expend the balance of its self-insured retention in settlement of
this litigation or otherwise, it accrued $1.8 million in the
fourth quarter of 2012, an amount that is immaterial to the
Company's consolidated financial statements as a whole.
DOLLAR GENERAL: Status Conference on Jan. 8 in EEOC's Suit
----------------------------------------------------------
A status conference is scheduled for January 8, 2015 in the suit
Equal Employment Opportunity Commission v. Dolgencorp, LLC d/b/a
Dollar General (Case No. 1:13-cv-04307) in which the Commission
alleges that the Company's criminal background check policy has a
disparate impact on "Black Applicants," according to Dollar
General Corporation's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014.
In September 2011, the Chicago Regional Office of the United
States Equal Employment Opportunity Commission ("EEOC" or
"Commission") notified the Company of a cause finding related to
the Company's criminal background check policy. The cause finding
alleges that the Company's criminal background check policy, which
excludes from employment individuals with certain criminal
convictions for specified periods, has a disparate impact on
African-American candidates and employees in violation of Title
VII of the Civil Rights Act of 1964, as amended ("Title VII").
The Company and the EEOC engaged in the statutorily required
conciliation process, and despite the Company's good faith efforts
to resolve the matter, the Commission notified the Company on July
26, 2012 of its view that conciliation had failed.
On June 11, 2013, the EEOC filed a lawsuit in the United States
District Court for the Northern District of Illinois entitled
Equal Opportunity Commission v. Dolgencorp, LLC d/b/a Dollar
General (Case No. 1:13-cv-04307) in which the Commission alleges
that the Company's criminal background check policy has a
disparate impact on "Black Applicants" in violation of Title VII
and seeks to recover monetary damages and injunctive relief on
behalf of a class of "Black Applicants." The Company filed its
answer to the complaint on August 9, 2013.
On January 29, 2014, the court entered an order, which, among
other things, bifurcates the issues of liability and damages
during discovery and at trial. On September 3, 2014, the court
modified the scheduling order and ordered the parties to complete
fact discovery related to liability by May 15, 2015. A status
conference is scheduled for January 8, 2015.
On July 29, 2014, the court entered an order compelling the
Company to produce certain documents, information, and electronic
data for the period 2004 to present.
The Company believes that its criminal background check process is
both lawful and necessary to a safe environment for its employees
and customers and the protection of its assets and shareholders'
investments. The Company also does not believe that this matter
is amenable to class or similar treatment. However, at this time,
it is not possible to predict whether the action will ultimately
be permitted to proceed as a class or in a similar fashion or the
size of any putative class. Likewise, at this time, it is not
possible to estimate the value of the claims asserted, and,
therefore, the Company cannot estimate the potential exposure or
range of potential loss. If the matter were to proceed
successfully as a class or similar action or the Company is
unsuccessful in its defense efforts as to the merits of the
action, it could have a material adverse effect on the Company's
consolidated financial statements as a whole.
DOLLAR GENERAL: Seeks to Coordinate "Varela" & "Main" Lawsuits
--------------------------------------------------------------
Dollar General Corporation filed a petition for coordination of
the matters: Juan Varela v. Dolgen California and Does 1 through
50 (Case No. RIC 1306158), filed in the Superior Court of the
State of California; and Lee Dinger Main v. Dolgen California, LLC
and Does 1 through 100 (Case No. 34-2013-00146129), filed in the
Superior Court of the State of California for the County of
Sacramento, according to Dollar General Corporation's Dec. 4,
2014, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Oct. 31, 2014.
On May 23, 2013, a lawsuit entitled Juan Varela v. Dolgen
California and Does 1 through 50 (Case No. RIC 1306158) ("Varela")
was filed in the Superior Court of the State of California for the
County of Riverside in which the plaintiff alleges that he and
other "key carriers" were not provided with meal and rest periods
in violation of California law and seeks to recover alleged unpaid
wages, injunctive relief, consequential damages, pre-judgment
interest, statutory penalties and attorneys' fees and costs. The
Varela plaintiff seeks to represent a putative class of California
"key carriers" as to these claims. The Varela plaintiff also
asserts a claim for unfair business practices and seeks to proceed
under California's Private Attorney General Act ("PAGA").
The Company removed the action to the United States District Court
for the Central District of California (Case No. 5:13-cv-01172VAP-
SP) on July 1, 2013, and filed its answer to the complaint on July
1, 2013. On July 30, 2013, the plaintiff moved to remand the
action to state court.
On September 13, 2013, notwithstanding the Company's opposition,
the court granted plaintiff's motion and remanded the case. The
Company filed a petition for permission to appeal to the United
States Court of Appeals for the Ninth Circuit on September 23,
2013. Although the petition for permission to appeal remains
pending, based on the Ninth Circuit's denial of a similar petition
filed by the Company in the Main matter, the Company filed a
petition for coordination of the Main and Varela matters on April
28, 2014.
DOLLAR GENERAL: "Varela" Plaintiffs to File Amended Complaint
-------------------------------------------------------------
The plaintiff in Juan Varela v. Dolgen California and Does 1
through 50 (Case No. RIC 1306158) filed a stipulation to file an
amended complaint that will include allegations asserted in
Victoria Lee Dinger Main v. Dolgen California, LLC and Does 1
through 100 (Case No. 34-2013-00146129), according to Dollar
General Corporation's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014.
On June 6, 2013, a lawsuit entitled Victoria Lee Dinger Main v.
Dolgen California, LLC and Does 1 through 100 (Case No. 34-2013-
00146129) ("Main") was filed in the Superior Court of the State of
California for the County of Sacramento. The Main plaintiff
alleges that she and other "key holders" were not provided with
meal and rest periods, accurate wage statements and appropriate
pay upon termination in violation of California wage and hour laws
and seeks to recover alleged unpaid wages, declaratory relief,
restitution, statutory penalties and attorneys' fees and costs.
The Main plaintiff seeks to represent a putative class of
California "key holders" as to these claims. The Main plaintiff
also asserts a claim for unfair business practices and seeks to
proceed under the PAGA.
The Company removed this action to the United States District
Court for the Eastern District of California (Case No. 2:13-cv-
01637-MCE-KJN) on August 7, 2013, and filed its answer to the
complaint on August 6, 2013. On August 29, 2013, the plaintiff
moved to remand the action to state court. The Company opposed
the motion. On October 28, 2013, the court granted plaintiff's
motion and remanded the case. The Company filed a petition for
permission to appeal to the United States Court of Appeals for the
Ninth Circuit on November 7, 2013. The plaintiff filed its
opposition brief on November 15, 2013. The Ninth Circuit denied
the petition for permission to appeal on April 10, 2014.
On April 28, 2014, the Company petitioned to consolidate the Main
and Varela matters. Following the Company's consolidation
petition, the Main plaintiff agreed to dismiss her complaint, and
the parties agreed that the Varela plaintiff would file an amended
complaint to include the allegations asserted in the Main
complaint. On November 4, 2014, the Varela plaintiff filed a
stipulation with the court seeking an order to file an amended
complaint. The court has not entered an order granting the filing
of the amended complaint. The Company's answer is due to be filed
35 days after the court enters the order granting the Varela
plaintiff leave to file an amended complaint.
DOLLAR GENERAL: "Avila" Labor Suit Pending in Calif. Court
----------------------------------------------------------
The suit Oscar Avila v. Dolgen California, LLC and Does 1 through
50 (Case No. S-1500-CV-282549) ("Avila") is pending in the
Superior Court of the State of California for the County of Kern,
according to Dollar General Corporation's Dec. 4, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Oct. 31, 2014.
On July 22, 2014, a lawsuit entitled Oscar Avila v. Dolgen
California, LLC and Does 1 through 50 (Case No. S-1500-CV-282549)
("Avila") was filed in the Superior Court of the State of
California for the County of Kern. The Avila plaintiff alleges
that he and other "key holders" were not provided with meal and
rest periods, accurate wage statements and appropriate pay upon
termination in violation of California wage and hour laws and
seeks to recover alleged unpaid wages, declaratory relief,
restitution, pre- and post- judgment interest, statutory penalties
and attorneys' fees and costs. The Avila plaintiff seeks to
represent a putative class of California "key holders" as to these
claims. The Avila plaintiff also asserts a claim for unfair
business practices. The Company has not yet been served with this
complaint, and there are no deadlines in this matter.
DOLLAR GENERAL: Resolves "Wass" Suit Over FLSA Violation in Mo.
---------------------------------------------------------------
The parties in Judith Wass v. Dolgen Corp, LLC (Case No. 13PO-
CC00039) agreed to resolve this matter, according to Dollar
General Corporation's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014.
On May 31, 2013, a lawsuit entitled Judith Wass v. Dolgen Corp,
LLC (Case No. 13PO-CC00039) ("Wass") was filed in the Circuit
Court of Polk County, Missouri. The Wass plaintiff seeks to
proceed collectively on behalf of a nationwide class of similarly
situated non-exempt store employees who allegedly were not
properly paid for certain breaks in violation of the FLSA. The
Wass plaintiff seeks back wages, injunctive and declaratory
relief, liquidated damages, pre- and post-judgment interest, and
attorneys' fees and costs.
On July 11, 2013, the Company removed this action to the United
States District Court for the Western District of Missouri (Case
No. 6:113-cv-03267-JFM). The Company filed its answer on July 18,
2013.
On March 28, 2014, the Wass plaintiff moved for conditional
certification of her FLSA claims and filed a supplemental brief on
June 20, 2014. On July 25, 2014, the Company filed its response
to plaintiff's motion for conditional certification as well as a
motion for summary judgment as to plaintiff's individual claims.
On October 16, 2014, the court granted the Company's motion for
summary judgment and denied as moot the plaintiff's motion for
conditional class certification of her FLSA claims. The parties
subsequently agreed to resolve this matter for an amount not
material to the Company's consolidated financial statements as a
whole.
DOLLAR GENERAL: "Buttry" Labor Lawsuit Set for Trial Feb. 17
------------------------------------------------------------
The suit Rachel Buttry and Jennifer Peters v. Dollar General Corp.
(Case No. 3:13-cv-00652) remains set for trial on February 17,
2015, according to Dollar General Corporation's Dec. 4, 2014, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Oct. 31, 2014.
On July 2, 2013, a lawsuit entitled Rachel Buttry and Jennifer
Peters v. Dollar General Corp. (Case No. 3:13-cv-00652) ("Buttry")
was filed in the United States District Court for the Middle
District of Tennessee. The Buttry plaintiffs seek to proceed on a
nationwide collective basis under the FLSA and as a statewide
class under Tennessee law on behalf of non-exempt store employees
who allegedly were not properly paid for certain breaks. The
Buttry plaintiffs seek back wages (including overtime), injunctive
and declaratory relief, liquidated damages, compensatory and
economic damages, "consequential" and "incidental" damages, pre-
judgment and post-judgment interest, and attorneys' fees and
costs.
The Company filed its answer on August 7, 2013. The plaintiffs
filed their motion for conditional certification of their FLSA
claims on December 5, 2013, to which the Company responded on
February 3, 2014. On April 4, 2014, the court denied plaintiffs'
certification motion. Plaintiffs filed a motion for
reconsideration or in the alternative for permission to seek
interlocutory appeal in the United States Court of Appeals for the
Sixth Circuit on April 18, 2014. The court denied the plaintiffs'
motion on April 24, 2014.
The plaintiffs subsequently petitioned the Sixth Circuit for a
writ of mandamus and asked the district court to stay all
deadlines in the underlying proceeding pending the Sixth Circuit's
ruling on the writ. On October 23, 2014, the United States Court
of Appeals for the Sixth Circuit denied plaintiff's petition for
writ of mandamus. To date, the order entered by the district
court to stay proceedings pending a decision by the appellate
court regarding plaintiffs' writ of mandamus has not been lifted.
Because of the stay, the Buttry plaintiffs were not required to
file their motion for certification of their statewide claims by
September 22, 2014, the original deadline for such motion. At
this time, the court has not set a new deadline for this motion,
and this matter remains set for trial on February 17, 2015.
DOLLAR GENERAL: Trial Dates Set in "Danielle Harsey" Labor Suit
---------------------------------------------------------------
The United States District Court for the Middle District of
Florida issued an order setting Danielle Harsey v. Dolgencorp, LLC
(Case No. 5:14-cv-00168-WTH-PRL) for trial during the weeks of
November 2, 9, or 16, 2015, according to Dollar General
Corporation's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014.
On March 19, 2014, a lawsuit entitled Danielle Harsey v.
Dolgencorp, LLC (Case No. 5:14-cv-00168-WTH-PRL) ("Harsey") was
filed in the United States District Court for the Middle District
of Florida. The Harsey plaintiff seeks to proceed on a nationwide
collective basis under the FLSA and as a statewide class under the
Florida Minimum Wage Act on behalf of all similarly situated non-
exempt store employees who allegedly were not paid for all hours
worked. The Harsey plaintiff seeks back wages (including
overtime), liquidated damages, pre- and post-judgment interest,
injunctive relief, and attorneys' fees and costs. The Company
filed its answer on May 7, 2014.
On August 19, 2014, the court entered a scheduling order, which
among other things, requires plaintiff to file motions for class
certification of her statewide claims and conditional
certification of her claims under the FLSA on or before January 7,
2015. The Company's response is due to be filed on or before
February 23, 2015. The order further sets the matter for trial
during the weeks of November 2, 9, or 16, 2015.
DOLLAR GENERAL: Conditional Cert. Motion in "Vincino" Due Feb. 23
-----------------------------------------------------------------
The Circuit Court, Eighth Judicial Circuit, for Levy County,
Florida entered a scheduling order which requires plaintiff in
Leslie Vincino v. Dolgencorp, LLC (Case No. 2014-CA-517) to file
motion for conditional class certification of her claims under the
Fair Labor Standards Act on or before February 23, 2015, according
to Dollar General Corporation's Dec. 4, 2014, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Oct. 31, 2014.
On July 14, 2014, a lawsuit entitled Leslie Vincino v. Dolgencorp,
LLC (Case No. 2014-CA-517) ("Vincino") was filed in the Circuit
Court, Eighth Judicial Circuit, for Levy County, Florida. The
Vincino plaintiff seeks to proceed on a nationwide collective
basis under the FLSA on behalf of all similarly situated non-
exempt store employees who allegedly were not paid for all hours
worked. The Vincino plaintiff seeks back wages (including
overtime), liquidated damages, pre-judgment interest, and
attorneys' fees and costs. The Vincino plaintiff also asserts
individual claims for violation of the Florida Civil Rights Act
for alleged discrimination based on alleged unidentified
disabilities. For the claims asserted under the Florida Civil
Rights Act, the Vincino plaintiff seeks compensatory damages, back
wages, front pay, punitive damages, attorneys' fees and costs. On
August 11, 2014, the Company removed this matter to the United
States District Court for the Northern District of Florida (Case
No. 1:14-cv-142-RS-GRJ). The Company filed its answer on August
18, 2014.
On September 25, 2014, the court entered a scheduling order which
requires plaintiff to file her motion for conditional class
certification of her claims under the FLSA on or before February
23, 2015. The Company's response is due to be filed on or before
April 9, 2015.
DOLLAR GENERAL: Scheduling Conference in "Riley" Case Held
----------------------------------------------------------
A scheduling conference was scheduled for December 22, 2014 for
the suit Joyce Riley v. Dolgencorp, LLC (Case No. 2:14-cv-25505),
according to Dollar General Corporation's Dec. 4, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Oct. 31, 2014.
September 8, 2014, a lawsuit entitled Joyce Riley v. Dolgencorp,
LLC (Case No. 2:14-cv-25505) ("Riley") was filed in the United
States District Court for the Southern District of West Virginia.
The Riley plaintiff seeks to proceed on a collective basis under
the FLSA on behalf of all similarly situated non-exempt store
employees in the state of West Virginia who allegedly were not
paid for certain breaks. The Riley plaintiff seeks back wages
(including overtime), liquidated damages, and attorneys' fees and
costs.
The Company filed its answer to the complaint on September 30,
2014. A scheduling conference was scheduled for December 22,
2014.
The Company believes that its wage and hour policies and practices
comply with both the FLSA and state law, including Tennessee and
Florida law, and that the Buttry, Harsey, Vincino, and Riley
actions are not appropriate for collective or class treatment.
DOW CHEMICAL: Polyether Polyol Class Action Litigation Ongoing
--------------------------------------------------------------
IF YOU PURCHASED POLYETHER POLYOL PRODUCTS, YOU COULD BE AFFECTED
BY A CLASS ACTION.
Polyether Polyol Products means polyether polyols, together with
polyether polyol systems, monomeric or polymeric diphenylmethane
diisocyanate ("MDI") and toluene Diisocyanate ("TDI").
WHAT THE CLASS ACTION IS ABOUT
The representative plaintiff, on behalf of itself and the Class,
are claiming damages from the defendants for unlawfully conspiring
to fix, maintain, and/or increase the price of Polyether Polyol
Products. Polyether Polyol Products means polyether polyols,
together with polyether polyol systems, monomeric or polymeric
diphenylmethane diisocyanate ("MDI") and toluene diisocyanate
("TDI").
The defendants are: BASF Canada, BASF Corporation, BASF A.G.,
Bayer Inc., Bayer A.G., Bayer Material Science LLC, Bayer
Corporation, Dow Chemical Company, Dow Chemical
Canada Inc., Huntsman International LLC, Lyondell Chemical
Company, Rhodia, Rhodia Inc., and Rhodia Canada Inc.
Settlements were reached in the litigation with the BASF, Bayer,
Huntsman and Lyondell defendants. The settlements represent
resolution of disputed claims against each of the settled
defendants. The settled defendants do not admit any wrongdoing or
liability. The related settlement funds (less court approved fees
and expenses) are being held in trust for the benefit of
the Class.
The action was discontinued against the Rhodia defendants.
The action is continuing against the Dow defendants.
The court has not taken any position as to the likelihood of
recovery on the part of the representative plaintiff or other
members of the Class, or as to the truth or merits of the claims
or defenses asserted by either side. The allegations made by the
representative plaintiff have not been proven in court.
Certification of Class Action: A class action related to the
alleged conspiracy to fix prices of Polyether Polyol Products was
certified as a class proceeding. This means that the common
issues relating to the existence, nature, scope and impact of the
alleged conspiracy will be determined in a single proceeding on
behalf of the Class.
The Class includes persons in Canada who purchased Polyether
Polyol Products in Canada between 1999 and 2004. If you are a
member of the Class, you should review the full legal notice,
available online at www.classaction.ca
Financial Consequences: If the common issues are determined in
favor of the Class, Class members may be entitled to receive
financial compensation from the defendants. No Class member,
other than the representative plaintiff, will be liable for costs
with respect to the determination of the common issues.
Class Counsel: Siskinds LLP is counsel for the Class. Siskinds
LLP is a full-service law firm based in London and with an office
in Toronto and affiliate offices in Montreal and Quebec City.
Class Counsel will be paid on a contingency basis -- meaning that
they will only be paid in the event of settlement or court award.
Class Counsel's fees must be approved by the court.
Questions? Visit www.classaction.ca
email: polyetherclassaction@siskinds.com or call 1-800-461-6166
ext. 2446.
DRAEGER SAFETY: Plaintiffs Lose Alcotest Class Action Bid
---------------------------------------------------------
Lalita Clozel, writing for The National Law Journal, reports that
two New Jersey residents who had been charged with drunk driving
have lost their putative class action suit against the maker of
device that measures alcohol levels in drivers.
Judge Maryanne Trump Barry of the U.S. Court of Appeals for the
Third Circuit on Dec. 9 affirmed the New Jersey District Court's
October 2013 order to dismiss the case, Bobby Johnson, et al v.
Draeger Safety Diagnostics Inc.
The two named plaintiffs, Bobby Johnson and Edwin Aguaiza, had
been fined and had their license suspended after being arrested
for suspected drunk driving. They had both been found with a
blood alcohol concentration higher than 0.08 percent, according to
the results of the Alcotest 7110 MKIII-C, a device produced by
defendant Draeger Safety Diagnostics Inc. They claimed they had
suffered personal injury because the test could not be properly
calibrated, which resulted in erroneous results. The
admissibility of the test results already had been the subject of
a consolidated lawsuit from 20 individuals charged with drunken
driving in Middlesex County.
The case was brought to the New Jersey Supreme Court, which ruled
in March 2008 that the test was scientifically reliable and could
be used to prove a violation of laws against drunk driving.
Johnson and Aguaiza alleged that Draeger vice president Hansueli
Ryser had testified falsely during a fact-finding hearing in the
original case, State v. Chun.
Judge Barry found that the plaintiffs' personal injury claims
could not be litigated in federal court. She also dismissed the
fraud claim, finding that Mr. Ryser's statements on the
reliability of the Alcotest had been presented as opinions rather
than facts.
Plaintiffs are represented by Ashton E. Thomas, and the defendant
is represented by Blank Rome.
DYNEGY INC: July 2015 Trial in Antitrust Suit Related to RST
------------------------------------------------------------
Trial in a suit related to Duke Energy Ohio's Rate Stabilization
Plan has been set to begin on July 27, 2015, according to Dynegy
Inc.'s Dec. 3, 2014 filing with the U.S. Securities and Exchange
Commission, which reported financial statements of Midwest
Generation Business of Duke Energy Corporation and Subsidiaries as
of September 30, 2014 and December 31, 2013 and for the three and
nine months Ended September 30, 2014 and 2013.
In January 2008, four plaintiffs, including individual, industrial
and nonprofit customers, filed a lawsuit against Duke Energy Ohio
in federal court in the Southern District of Ohio. Plaintiffs
alleged Duke Energy Ohio conspired to provide inequitable and
unfair price advantages for certain large business consumers by
entering into non-public option agreements in exchange for their
withdrawal of challenges to Duke Energy Ohio's Rate Stabilization
Plan (RSP) implemented in early 2005. In March 2014, a federal
judge certified this matter as a class action. Trial has been set
to begin on July 27, 2015. It is not possible to predict whether
Duke Energy Ohio will incur any liability or to estimate the
damages which may be incurred in connection with this lawsuit.
EL LILLY: 11th Cir. Affirms Remand Order in "Dudley" Case
---------------------------------------------------------
Circuit Judge Stanley Marcus of the United States Court of
Appeals, Eleventh Circuit, affirmed a decision of the district
court in the case LESLIE PINCIARO DUDLEY, on behalf of herself and
all others similarly situated, Plaintiff-Appellee, v. ELI LILLY
AND COMPANY, a Foreign For-Profit Corporation, LILLY USA, LLC, a
foreign for-profit Limited Liability company, Defendants-
Appellants, No. 14-13048 (11th Cir.)
Leslie Dudley was an employee of Eli Lilly and Company. Dudley
filed a complaint alleging that Lilly did not make certain
incentive payments due to her and other similarly situated
individuals who had been employed at the company.
Dudley raises four separate causes of action against Lilly,
including a breach of employment contract, quantum merit, unjust
enrichment and promissory estoppel.
Lilly removed the case to the United States District Court for the
Middle District of Florida pursuant to the Class Action Fairness
Act (CAFA), 28 U.S.C. Section 1332(d), in which Dudley filed a
motion to remand.
After considering the complaint, the removal petition, and the
evidence that had been presented, the district court granted
Dudley's motion to remand the case to state court, finding that
Lilly had not met its burden of establishing by a preponderance of
the evidence that the amount in controversy exceeded $5,000,000,
as required for federal subject matter jurisdiction under CAFA.
Lilly appealed.
The appellate court affirmed the decision of the district court,
expressing that the district court did not clearly err in
determining that Lilly has not established, by a preponderance of
evidence, that the amount in controversy exceeded $5,000,000.
A copy of Judge Marcus's decision dated December 29, 2014, is
available at http://is.gd/qw24V6from Leagle.com
The Eleventh Circuit panel consists of Circuit Judges Stanley
Marcus, Gerald Bard Tjoflat and Charles R. Wilson.
ENVIVIO: Reaches Agreement to Settle Stock Suit for $1 Million
--------------------------------------------------------------
Envivio recently reached an agreement in principle to settle the
stockholder class action lawsuit originally filed in October 2012,
according to the company's Nov. 3, 2014 Form 8-K filing with the
U.S. Securities and Exchange Commission, announcing results for
the third quarter ended Oct. 31, 2014.
The settlement remains subject to negotiation and execution of a
definitive settlement agreement and court approval.
The agreement, in principle, calls for Envivio to contribute
approximately $1.0 million toward the settlement; the rest will be
covered by Envivio's D&O insurance. The $1.0 million contribution
amount is included in GAAP operating expenses as a one-time charge
for the third quarter.
EXXON MOBIL: Court Reverses Exemplary Damages in Chemical Suit
--------------------------------------------------------------
Lalita Clozel, writing for The National Law Journal, reports that
the Louisiana Supreme Court reversed a grant of exemplary damages
to a man who had revisited a chemical exposure suit against Exxon
Mobil Corp. after learning he had contracted prostate cancer.
In 2010, John Oleszkowicz won $115,000 in damages for his exposure
to naturally occurring radioactive materials during seven years of
cleaning drilling pipes for the company.
In Lester v. Exxon Mobil Corp, the jury had awarded him and 15
other plaintiffs compensatory damages for their "increased risk of
cancer." The case was an offshoot of litigation that began in
2002 and involved hundreds of plaintiffs.
The jury, however, found that Exxon had not acted recklessly or
wantonly, and did not award exemplary damages.
Three months after the February 2010 verdict, Mr. Oleszkowicz was
diagnosed with prostate cancer and filed another suit against
Exxon, its subsidiary Humble Inc. and the company running the
pipeyards, Intracoastal Tubular Services Inc.
In this case, Oleszkowicz v. Exxon Mobil Corp., he was awarded
$850,000 in compensatory damages and $10 million in exemplary
damages. The jury found Exxon had exhibited wanton and reckless
conduct -- although it also found that Mr. Oleszkowicz was 20
percent liable for his cancer because of his smoking habit.
The Louisiana Fifth Circuit Court of Appeal affirmed the lower
court's decision in part, invoking "exceptional circumstances" to
bypass res judicata. Still, it reduced the exemplary damages to
$2.4 million.
On Dec. 9, Justice Greg Gerard Guidry wrote an opinion overturning
the decision to award any exemplary damages, saying the
"exceptional circumstances" provision had been erroneously
applied.
"[W]e find res judicata bars any relitigation of the exemplary
damages claim," he wrote.
F & H VENTURES: "Ennis" Suit Seeks to Recover Unpaid OT Wages
-------------------------------------------------------------
Priscilla Ennis, individually and on behalf of similarly situated
employees v. F & H Ventures, LLC, d/b/a Huddle House, Case No.
1:14-cv-01342 (W.D. Tenn., December 17, 2014), seeks to recover
overtime compensation, liquidated damages, post-judgment interest,
attorneys' fees, and costs pursuant to the Fair Labor Standard
Act.
F & H Ventures, LLC is a foreign limited liability company engaged
in a food service business.
The Plaintiff is represented by:
Jesse Daniel Nelson, Esq.
LAW OFFICE OF JESSE D. NELSON
P.O. Box 22685
Knoxville, TN 37933
Telephone: (865) 383-1053
Facsimile: (865) 383-1054
E-mail: jesse@jessenelsonlaw.com
FINISAR CORP: Appeal v. Dismissal of Securities Suit Pending
------------------------------------------------------------
An appeal against the dismissal of a consolidated securities suit
against Finisar Corporation in the United States District Court
for the Northern District of California is pending, according to
the company's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 26,
2014.
Several securities class action lawsuits related to the Company's
March 8, 2011 earnings announcement alleging claims under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as
amended, have been filed in the United States District Court for
the Northern District of California on behalf of a purported class
of persons who purchased stock between December 1 or 2, 2010
through March 8, 2011. The named defendants are the Company and
its Chairman of the Board, Chief Executive Officer and Chief
Financial Officer. To date, no specific amount of damages has been
alleged. The cases were consolidated, lead plaintiffs were
appointed and a consolidated complaint was filed. The Company
filed a motion to dismiss the case. On January 16, 2013, the
District Court granted the Company's motion to dismiss and granted
the lead plaintiffs leave to amend the consolidated complaint. An
amended consolidated complaint was filed on February 6, 2013.
Thereafter, the Company filed a renewed motion to dismiss the
case. On September 30, 2013, the District Court granted the
Company's motion and dismissed the case with prejudice. On October
25, 2013, the lead plaintiffs filed a notice of appeal of the
District Court's dismissal ruling, and the appeal is pending.
FLY & FORM: Faces "Bello" Suit Over Failure to Pay Overtime Wages
-----------------------------------------------------------------
Miguel Antonio Jarquin Bello and all others similarly situated
under 29 U.S.C. 216(b) v. Fly & Form, Inc., Case No. 1:14-cv-24767
(S.D. Fla., December 17, 2014), is brought against the Defendants
for failure to pay overtime wages in violation of the Fair Labor
Standard Act.
Fly & Form, Inc. is a concrete contractor doing business within
the State of Florida.
The Plaintiff is represented by:
Jamie H. Zidell, Esq.
J.H. ZIDELL, PA
Suite 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
Facsimile: 865-7167
E-mail: ZABOGADO@AOL.COM
FMML VENTURES: "Tapia" Suit Seeks to Recover Unpaid Overtime
------------------------------------------------------------
Mettanie Tapia, Shauna Kern, individually and on behalf of all
other similarly situated v. F.M.M.L. Ventures, Inc. d/b/a
Sugardaddy's Gentleman's Club, Frank Malatesta, and Maria Lantin,
Case No. 1:14-cv-07338 (E.D.N.Y., December 17, 2014), seeks to
recover unpaid overtime wages and damages pursuant to the Fair
Labor Standard Act.
The Defendants own and operate a gentlemen's club in New York.
The Plaintiff is represented by:
Raymond Nardo, Esq.
RAYMUND NARDO, PC
129 Third Street
Mineola, NY 11501
Telephone: (516) 248-2121
Facsimile: (516) 742-7675
E-mail: raymondnardo@gmail.com
FRASER CONSTRUCTION: Faces "Santos" Suit Over Failure to Pay OT
---------------------------------------------------------------
Jose D. Santos, on behalf of himself and all others similarly
situated, Pedro Gonzalez-Cruz, Francisco Gonzalez, and Juan
Hernandez, individually v. Fraser Construction, Inc., d/b/a Fraser
Construction, Unbuildit Construction Corp., d/b/a Fraser
Construction, Unbuildit Services Ltd., d/b/a Fraser Construction,
Unbuildit Inc., d/b/a Fraser Construction, and Robert Fraser and
Charles Fraser, individually, Case No. 2:14-cv-07386 (E.D.N.Y.,
December 18, 2014), is brought against the Defendants for failure
to pay overtime wages in violation of the Fair Labor Standard Act.
The Defendants are engaged in the masonry, landscaping, and
construction business.
The Plaintiff is represented by:
Troy L. Kessler, Esq.
SHULMAN KESSLER LLP
510 Broadhollow Road, Suite 110
Melville, NY 11747
Telephone: (631) 499-9100
Facsimile: (631) 499-9120
E-mail: tk@shulmankessler.com
GENERAL MILLS: Settles Four Class Actions Over Granola Bars
-----------------------------------------------------------
Laura Castro, writing for The National Law Journal, reports that
General Mills Inc. has settled four proposed class actions
alleging the company use of the term "100% Natural" on its Nature
Valley products was deceptive and misleading because they contain
genetically modified organisms and other synthetic ingredients.
The agreement prevents Minneapolis-based General Mills from
claiming that its Nature Valley granola bars, crispy squares, and
trail mix bars are "100% Natural" if those products contain corn
syrup, soy lecithin, glycerin, maltodextrin, or several other
artificially produced ingredients. Those products must also not
contain more than a trace of any ingredients derived from
bioengineered crops or plant material.
The settlement, announced in November and went into immediate
effect, applies to the labeling and marketing for 30 Nature Valley
products including Crunch Granola Bars, Chewy Trail Mix Granola
Bars and Yogurt Granola Bars.
Damages payments made by General Mills to the plaintiffs were not
specified in the settlement, which states "plaintiff's counsel for
the four cases have agreed that the monies paid . . . constitutes
reasonable and sufficient consideration."
The settlement ends four class action lawsuits brought on behalf
of consumers by the nonprofit Center for Science in the Public
Interest (CSPI) and two law firms. The lead plaintiffs in those
suits, all filed in 2012, are Judith Janney, Gabriel Rojas and
Sean Bohac of California and Nicole Van Atta of Colorado.
In a press release, the CSPI said, "The agreement helps nudge the
marketplace, otherwise awash in varyingly flimsy 'natural' claims,
in the right direction." The nonprofit said: "FDA has a limited
definition of natural -- foods that do "not contain added color,
artificial flavors, or synthetic substances" -- but it rarely
enforces it."
"No acceptable official definition of 'natural' should allow the
claim on highly processed ingredients like high-fructose corn
syrup or maltodextrin, substances that literally do not occur in
nature," said CSPI litigation director Steve Gardner in the
release. "But as long as there is no definition, companies will
still recklessly make the claim, and consumers will continue to be
deceived."
In the agreement, General Mills denied it committed any violations
of law or wrongful conduct, saying it settled the cases "solely
because it will eliminate the uncertainty, distraction, burden and
expense of further litigation."
GENERAL MOTORS: Judge Allows Consumer Class Action to Proceed
-------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal judge in New York has allowed a consolidated
consumer class action to go forward against General Motors Co.
over its ignition switch recalls -- although on a limited basis.
U.S. District Judge Jesse Furman of the Southern District of
New York ruled on Dec. 12 that briefing should be deferred for the
claims of most of the 68 named plaintiffs in the class action
until U.S. Bankruptcy Judge Robert Gerber decides whether the
terms of GM's 2009 bankruptcy barred them entirely. But he
allowed claims to proceed for nine plaintiffs who bought cars made
after 2009.
During a hearing on Dec. 15, lawyers came up with a briefing
schedule for those claims.
"It means that there are millions of people whose claims are still
held up in bankruptcy court," said lead counsel Steve Berman,
managing partner of Seattle's Hagens Berman Sobol Shapiro.
"That's a delay, but part of the case is going forward."
GM spokesman James Cain declined to comment.
GM has been targeted with more than 160 lawsuits over an ignition
switch defect that prompted recalls of 2.6 million cars and trucks
worldwide earlier this year. Some involve deaths and injuries but
most have been class actions filed by consumers.
On Oct. 14, plaintiffs attorneys filed two consolidated class
actions on behalf of 30 million consumers nationwide.
Both allege that GM's record recalls, including those for the
ignition switch defect, have caused all its cars and trucks to
diminish in value. One complaint aims to represent consumers who
bought or leased their GM vehicles before July 11, 2009 -- when
today's reorganized GM acquired old GM's bankruptcy assets. GM
has filed a brief in U.S. Bankruptcy Court to bar those claims;
plaintiffs attorneys were expected to file their response on
Dec. 16.
The second class complaint seeks to represent consumers who bought
or leased between July 11, 2009, and July 3, 2014.
GM moved on Nov. 25 to halt all briefing in the latter case, which
was "packed with plaintiffs who acquired used old GM vehicles,"
according to attorney Andrew Bloomer, a partner at Chicago's
Kirkland & Ellis.
In its brief, GM argued that 39 named plaintiffs had bought cars
made before 2009 and another 20 involved those whose manufacturing
date was uncertain. GM also sought to halt briefing on the claims
of nine plaintiffs who bought cars made after its bankruptcy.
Lead plaintiffs attorneys acquiesced as to the 39 but sought to
move forward on many of the others based on the dates on which
those individuals purchased their cars after 2009.
Judge Furman agreed with GM that the critical date was when the
vehicles were made, not when customers bought them -- making them
potentially subject to the bankruptcy court's ruling.
Plaintiffs who can pursue claims have cited the laws of Arkansas,
California, Florida, Maryland, Oklahoma, Virginia and Washington,
D.C. Berman said GM has agreed to provide information by the end
of the year to determine whether additional plaintiffs who bought
2010 cars should be included. He said plaintiffs attorneys also
have alleged claims under the laws of Michigan, where GM is
headquartered. They have until Jan. 5 to submit a list of states
that could govern the claims going forward.
Meanwhile, about 200 additional claims have been filed with GM's
victim compensation fund since administrator Kenneth Feinberg
extended the deadline to Jan. 31. The fund is designed to
compensate people who were injured or killed because of the
defect. A month ago, 2,105 claims had been filed with the fund --
although only 72 were deemed eligible for payment, including 33
involving deaths.
On Dec. 15, the fund reported that 100 of the 2,326 claims filed
were eligible, of which 42 involved deaths. The figures also
showed that claims lacking documentation fell by about 200 during
the past month.
GILEAD SCIENCES: Sued Over "Exorbitant" Hep C Treatment Regiment
----------------------------------------------------------------
Lisa Hoffman, writing for The National Law Journal, reports that a
drug company allegedly is gouging patients and insurers by
charging $84,000 for a course of treatment with its new Hepatitis
C drug, which successfully treats as much as 90 percent of those
infected, according to a proposed class action filed by a
Pennsylvania state agency.
The Southeastern Pennsylvania Transportation Authority (SEPTA)
filed the complaint on Dec. 9 against Gilead Sciences, Inc.,
alleging the "exorbitant" cost of a 12-week treatment regimen is
an attempt by the company to exploit patent laws and to unjustly
enrich itself in advance of the arrival of other Hepatitis C
medications.
"Gilead is not authorized by the patent laws (or otherwise) to
abuse its purported monopoly on Sovaldi by charging discriminatory
prices that apparently have no rational basis other than to
inflate the company's bottom line," argues the complaint in SEPTA
v. Gilead, in U.S. District Court for the Eastern District of
Pennsylvania.
The complaint alleges Sovaldi brought Gilead $5.7 billion in sales
in the first half of 2014. SEPTA says it has spent $2.4 million
on Sovaldi claims from employees this year.
A year ago, the U.S. Food and Drug Administration approved the
pill, which must be taken with an additional medication, and the
treatment has been hailed for its success in killing the virus
responsible for the most common type of Hepatitis C, with far
fewer side effects than previous treatments. As many as 5.2
million Americans are estimated to have the disease.
The complaint warns that the cost of the treatment has the
capacity to "literally bankrupt segments of the U.S. healthcare
system," and leave the drug out of reach of lower-income patients.
Medicaid and private insurers already are limiting access to the
$1,000-a-dose pill. But Gilead counters that Solvadi stands to
save the system from astronomical costs in the future by curing
patients before they develop chronic and costly liver conditions.
The complaint also challenges whether Gilead's patent protection,
and the monopoly that can accompany it, justifies the cost of the
medication. It raises the question, too, of whether the patent,
currently being challenged in infringement actions, will hold up.
Some who are prescribed Solvadi are getting it at a discount, the
complaint alleges. In Egypt, which has the highest rate of
Hepatitis C infection in the world, Gilead is pricing the drug
regiment at just $900, the complaint alleges. The company also
intends to sell generic sofosbuvir, the active ingredient in
Sovaldi, at deeply discounted prices in 91 developing countries.
It has also provided the medication at "significant discounts" to
the U.S. Bureau of Prisons. The U.S. Senate Finance Committee is
investigating the "pricing" paradox, the plaintiffs allege.
The plaintiffs allege Gilead has engaged in unjust enrichment and
has violated federal antitrust laws and the federal Patient
Protection and Affordable Care Act. They ask for restitution and
damages.
Plaintiffs' counsel are attorneys with the firm Chimicles &
Tikellis.
GOODWILL INDUSTRIES: "Caceres" Suit Seeks to Recover Unpaid OT
--------------------------------------------------------------
Digna Caceres, Daisy Martinez and other similarly-situated
individuals v. Goodwill Industries of South Florida, Inc., Case
No. 1:14-cv-24778 (S.D. Fla., December 18, 2014), seeks to recover
unpaid overtime wages and damages pursuant to the Fair Labor
Standard Act.
Goodwill Industries of South Florida, Inc. owns and operates
household goods and clothing stores and a rehabilitation center.
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
3100 South Dixie Highway, Suite 202
Miami, FL 33133
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
GOOGLE INC: 3rd Circuit Hears Arguments in Privacy Suit
-------------------------------------------------------
Saranac Hale Spencer, writing for The Legal Intelligencer, reports
that cookies -- the digital crumbs that mark the trail Internet
users make as they wander through the Web -- are either a benign
method for furnishing Internet users with relevant advertising or
they are the foundation of a pernicious invasion of privacy,
lawyers argued in front of the Third Circuit on Dec. 11.
Either way, the U.S. Court of Appeals for the Third Circuit
appears likely to be wading into precedent-setting territory.
Google and a couple of other Internet companies that use third-
party cookies to track the online behavior of people who use
browsers that are specifically designed and advertised as barring
that kind of tracking are the only defendants in the case, "but
this is how systems across the entire Internet work and whatever
ruling this court issues is going to affect broad swaths of
companies and how they interact," said Michael Rubin --
mrubin@wsgr.com -- the Wilson Sonsini Goodrich & Rosati lawyer who
represented Google in front of the Third Circuit.
Google won in the district court, which dismissed the case last
year after two-dozen similar suits were consolidated in a
multidistrict litigation and sent to the District of Delaware.
The plaintiffs in the case are people who used one of two Internet
browsers -- Apple's Safari or Microsoft's Internet Explorer --
each of which was designed and advertised as protecting users'
privacy by blocking the third-party cookies.
"Unable to compile detailed profiles for millions of Safari and IE
users, the defendants designed and deployed secret computer code,
triggering an invisible iframe, generating a hidden form leading
to a clandestine cookie, and intentionally deceptive computer
language to hack past Safari's and IE's default privacy settings
to place hidden tracking cookies into browser-managed files on
plaintiffs' hard drives," according to the plaintiffs' brief,
which argues that this system allowed Google and the other
defendants to collect information about the Internet users.
Jason Barnes of Barnes & Associates in Jefferson City, Mo., argued
on behalf of the plaintiffs Dec. 11.
Judge D. Michael Fisher noted during arguments that the federal
Wiretap Act requires one party consent, indicating that
requirement would be satisfied since the advertising websites
ostensibly knew about the cookies. Mr. Barnes, however, argued
the websites didn't actually know that Google and the other
companies had been using cookies and, beyond that, it's a factual
issue.
The three types of content had been intercepted, Mr. Barnes said
detailed URLs, forms and search queries. So, he framed the
question as being whether those things relate to the substance or
meaning of an electronic communication, as is required by the
federal Wiretap Act.
Later, addressing Mr. Rubin, Judge Cheryl Krause asked, "Thinking
about this as combined communication, are URLs content?"
Barnes had argued that URLs -- the addresses for websites -- can
convey information about the user. He used the example of a
website with advice on controlling herpes outbreaks.
Answering Judge Krause's question, Mr. Rubin said, "We don't think
the court gets to that."
"But, if we did," Judge Julio Fuentes pressed.
"It's a fact-intensive question," Mr. Rubin said.
"So, if we get to that question, then you think that we would need
to reverse and remand for fact-finding?" Judge Krause said.
"Absolutely not," Mr. Rubin said. The complaint doesn't detail
any specific examples of particular URLs that were intercepted,
which would allow the court to determine whether the Web address
would constitute content.
There are "multiple allegations of URLs being transmitted," Judge
Krause said.
The district court recognized that URLs are location identifiers,
Mr. Rubin said, explaining that additional information is
necessary to determine the meaning of the content.
Some URLs could constitute content, Mr. Rubin conceded when asked
by Judge Krause, but none have been alleged in this case, he said.
Asked about online forms and search queries, Mr. Rubin said the
method for tracking forms is different than the one at issue in
this case.
"So, if we get to the point of looking at content under the
Wiretap Act . . . wouldn't we need to remand for fact-finding on
those issues?" Judge Krause asked.
"No. First of all there's no device at issue here. They have to
allege a device was used to do the interception . . . the only
device they allege under the Wiretap Act is the code that set the
cookies and they vaguely point to the cookies themselves. So at
best, at best, the cookie is the device they allege," Mr. Rubin
said.
Judge Krause counted the devices that could qualify here -- the
user's computer, the first-party server, and the defendants'
servers.
But the plaintiffs didn't identify those; they just identified
cookies, Mr. Rubin said. Also, all of those things are used to
deliver ads regardless of whether cookies are attached, so they
can't be conceived of as the infrastructure for a wiretap
interception, he said.
"The only thing that's plausibly a device for the Wiretap Act
claim is the cookie; otherwise, all of that other infrastructure
exists and would be subject to an interception claim absent the
cookie, and that would, again, bring us back to a place where
people could be bringing wiretap claims in all sorts of contexts,"
Mr. Rubin said.
GOOGLE INC: Conference in "Feitelson" Case Moved to Jan. 22
-----------------------------------------------------------
The Case Management Conference scheduled on December 11, 2014, has
been continued until January 22, 2015, in the case entitled GARY
FEITELSON, a Kentucky resident, and DANIEL MCKEE, an Iowa
resident, on behalf of themselves and all others similarly
situated, Plaintiffs, v. GOOGLE INC., a Delaware corporation,
Defendant, No. 5:14-CV-02007 BLF (N.D. Cal.)
Plaintiffs Gary Feitelson and Daniel McKee on behalf of themselves
and all others similarly situated and Defendant Google Inc.
jointly submitted a Stipulation and Proposed Order to continue the
hearing on Google's Motion to Dismiss Plaintiffs' First Amended
Class Action Complaint and the subsequent Case Management
Conference, scheduled for November 19, 2014 and December 11, 2014,
respectively.
The Parties, through their respective counsel, stipulated to, and
asked the Court to approve that the hearing on Google's motion to
dismiss shall be continued to December 18, 2014 at 9:00 a.m., and
the Case Management Conference scheduled on December 11, 2014 at
1:30 p.m. shall be continued until January 22, 2015 at 1:30 p.m.
District Judge Beth Labson Freeman of the Northern District of
California, San Jose Division, granted the parties' request.
A copy of Judge Freman's order dated November 12, 2014, is
available at http://is.gd/zyEhVXfrom Leagle.com.
Defendant Google Inc. is represented by Brian C. Rocca --
brian.rocca@bingham.com -- Sujal J. Shah -- sujal.shah@bingham.com
-- Susan J. Welch -- susan.welch@bingham.com -- Hill B. Wellford
-- hill.wellford@bingham.com -- Jon R. Roellke --
jon.roellke@bingham.com -- Gregory F. Wells --
gregory.wells@bingham.com -- at BINGHAM McCUTCHEN LLP
Plaintiffs Gary Feitelson et al. are represented by John E.
Schmidtlein -- jschmidtlein@wc.com -- Jonathan B. Pitt --
jpitt@wc.com -- James H. Weingarten -- jweingarten@wc.com --
Benjamin M. Stoll -- bstoll@wc.com -- at WILLIAMS & CONNOLLY LLP;
and Steve W. Berman -- steve@hbsslaw.com -- Robert F. Lopez --
robl@hbsslaw.com -- at HAGENS BERMAN SOBOL SHAPIRO LLP
GREYSTONE ALLIANCE: 7th Cir. Judge Reinstates "Smith" Case
----------------------------------------------------------
Circuit Judge Frank H. Easterbrook of the United States Court of
Appeals for the Seventh Circuit vacated a judgment of dismissal
and remanded the case of TARA SMITH, Plaintiff-Appellant, v.
GREYSTONE ALLIANCE, LLC, Defendant-Appellee, Case No. 14-1758 (7th
Cir.)
Plaintiff-Appellant Tara Smith filed a federal suit against
Greystone Alliance, a debt collector, for violation of the Fair
Debt Collection Practices Act, 15 U.S.C. Sections 1692-92.
Judge William Hibbler, to whom the suit was initially assigned,
certified it as a class action, but after ruling in Smith's favor,
changed his mind and decertified the class. Judge Hibbler died and
the suit was transferred to Judge Milton Shadur, who recertified
the class in order to toll the statute of limitations for its
members, but later agreed with Judge Hibbler that class treatment
is unwarranted and decertified the class once again. In 2013 the
suit was transferred to Judge Thomas Durkin, who dismissed it,
ruling that it had been moot since November 2009, when Greystone
offered Smith $1,500 plus costs and attorneys' fees. Smith
Appealed.
Judge Easterbrook, who penned the Seventh Circuit's decision, said
a court must resolve the merits unless the defendant satisfies the
plaintiff's demand. An offer that the defendant or the judge
believes sufficient, but which does not satisfy the plaintiff's
demand, does not justify dismissal. The judgment is vacated, and
the case is remanded for a decision on the merits.
A copy of Judge Easterbrook's order dated November 13, 2014, is
available at http://is.gd/qUK3ERfrom Leagle.com.
The Seventh Circuit panel consists of Chief Judge Diane Wood and
Judges Frank H. Easterbrook and David Hamilton.
HYDERABAD ASBESTOS: Faces Suit in India Over Asbestos Mine Waste
----------------------------------------------------------------
Katy Daigle, writing for The Associated Press, reports that
asbestos waste spills in a gray gash down the flank of a lush
green hill above tribal villages that are home to thousands in
eastern India. Three decades after the mines were abandoned,
nothing has been done to remove the enormous, hazardous piles of
broken rocks and powdery dust left behind.
In Roro Village and nearby settlements, people who never worked in
the mines are dying of lung disease. Yet in a country that treats
asbestos as a savior that provides cheap building materials for
the poor, no one knows the true number and few care to ask.
"I feel weak, drained all the time," Baleman Sundi gasped, pushing
the words out before she lost her breath. "But I must work." The
65-year-old paused, inhaled. "I don't have a choice." Another
gasp. "I have to eat."
Ms. Sundi and 17 others from a clutch of impoverished villages
near the abandoned hilltop mines were diagnosed in 2012 with
asbestosis, a fatal lung disease. One has since died. Tens of
thousands more, some of them former mine workers, remain untested
and at risk. Asbestos makes up as much as 14.3 percent of the
soil around Roro Village, analysis of samples gathered by The
Associated Press showed.
Few have done anything to help people such as Ms. Sundi. The
villagers have no money for doctors or medical treatment, and
cannot afford to move.
Neither the government nor the Indian company that ran the mines
from 1963 to 1983 has made any move to clean up the estimated
700,000 tons of asbestos tailings left scattered across several
kilometers (miles) of hilly mining area.
The mine's operator, Hyderabad Asbestos Cement Products Ltd.,
nowadays known as HIL Ltd., says it has done nothing illegal.
"The company had followed all rules and procedures for closure of
a mine and had complied with the provisions of the law, as in
force in 1983," it said in a statement released to the AP.
Ms. Sundi and the others are suing in the country's environmental
court for cleanup, compensation and a fund for future victims of
asbestos-related disease. If they win, the case would set
precedents for workplace safety and corporate liability, subjects
often ignored or dismissed in developing India.
"There will be justice only if we win," Ms. Sundi rasped.
"Whoever did this must pay."
India placed a moratorium on asbestos mining in 1986,
acknowledging that the fibrous mineral was hazardous to the
miners.
But that was the government's last decision curtailing the spread
of asbestos. It has since embraced the mineral as a cheap
building material. Today India is the world's fastest-growing
market for asbestos.
In the last five years, India's asbestos imports shot up 300
percent. The government helps the $2 billion asbestos
manufacturing industry with low tariffs on imports. It has also
blocked asbestos from being listed as a hazardous substance under
the international Rotterdam Convention governing how dangerous
chemicals are handled.
The country keeps no statistics on how many people have been
sickened or died from exposure to the mineral, which industry and
many government officials insist is safe when mixed with cement.
Western scientists strongly disagree.
The World Health Organization and more than 50 countries,
including the United States and all of Europe, say it should be
banned in all forms. Asbestos fibers lodge in the lungs and cause
many diseases. The International Labor Organization estimates
100,000 people die every year from workplace exposure, and experts
believe thousands more die from exposure elsewhere.
"My greatest concern is what will happen in India. It's a slow-
moving disaster, and this is only the beginning," said Philip
Landrigan, a New York epidemiologist who heads the Rome-based
Collegium Ramazzini, which pioneered the field of occupational
health worldwide.
"The epidemic will go largely unrecognized," he said. Eventually,
"it's going to end up costing India billions of dollars."
From the top of Roro Hill, a small boy leaped out to slide down
the cascade of fluffy grey dust. A few villagers followed,
nudging a herd of cows and goats. Huge clouds billowed in their
wake.
The villagers often ignore the warnings from visiting doctors and
activists to stay away from the waste. Many don't believe the
asbestos, which looks like regular rocks and dirt, could be
dangerous. Others are more fatalistic, noting they hardly have a
choice.
"What can we do? This is our land," said 56-year-old Jema Sundi,
diagnosed with asbestosis though she never went into the mines.
"We tell the children, don't go there. But they are children, you
cannot control them."
She then noticed her 4-year-old nephew Vijay, his tiny body
covered with chalky white streaks, shrinking into himself as if
trying to disappear. "You went up there today again?" she
exclaimed.
Vijay, lowering his head, attempted a half-smile.
When Hyderabad Asbestos first began mining in Jharkhand in 1963,
India was in its second decade of independence and attempting to
industrialize. Most services and industries were nationalized,
but some heavy industries and mining were opened to private
companies, many of which operated opaquely.
Hydrabad Asbestos employed about 1,500 people in the asbestos
mines. Most were tribal villagers eager to participate in the
country's development. But for them that development never
arrived.
Kalyan Bansingh, lead plaintiff in the court case, worked more
than a decade building scaffolding inside newly blasted mining
caverns. Like many laborers across India, he took to chewing an
unrefined sugar product called jaggery in the misguided belief
that airborne fibers would adhere to the sticky bolus and stay out
of his lungs.
Sometimes the company provided the jaggery along with his $2
weekly salary, but it never offered him protective masks or
clothing, he said.
Mr. Bansingh regrets the job, even if it was the only paid work he
ever had. "I can't run or walk long distances. I am breathless
with just a few steps," the muscular 70-year-old said.
HIL said it followed strict health and safety policies, and that
"no health or environmental damage was reported during the mine
operations." The company did not address whether it had ever sent
anyone to check on the villagers' health since the mines closed.
Villagers told AP they were never been invited for a company-
sponsored checkup after 1983.
The fact that Bansingh and the other plaintiffs ever had the
opportunity for a diagnosis was extremely rare. Like most people
in villages at the foot of Roro Hill, they cannot read or write.
They live in makeshift homes of hard-packed mud, thatched roofs
and tidily swept dirt floors.
"The idea that the environment, something that has always provided
and been taken for granted, could be causing them harm is a notion
that just doesn't occur to them," said T.K. Joshi, a doctor who
heads India's only university department specializing in
occupational health. "And unfortunately, most Indian doctors are
not trained to ask the right questions."
Because X-rays and detailed patient interviews are rare in rural
India, experts say most Indians who suffer or have died from an
asbestos-related disease were likely misdiagnosed with
tuberculosis, food poisoning or other illnesses common across
India.
Now India's largest asbestos-manufacturing company, HIL had
revenue of about $160 million for 2013-14, while spending about
$72 million on imports of asbestos from countries such as Russia,
Kazakhstan and Brazil. It plans to scale back manufacturing
asbestos-cement products, but the decision was not made for
environmental or health concerns.
According to its annual report, the company is diversifying
because the "closure of certain mines across the world has
resulted in increased dependency on limited sources."
Shutting down asbestos mines is a dirty and costly business.
There is also the danger of releasing more fibers into the air
just by disturbing waste or breaking down old materials. Hundreds
of millions have been spent in the United States alone cleaning
old asbestos mines in states including California and Montana.
The samples collected by AP and tested by California-based
laboratory EMSL Analytical Inc. showed the soil around Roro
Village was between 4.1 and 14.3 percent asbestos.
"It's heartbreaking. Kids are playing on it. People are stirring
it up. You don't have to inhale much to put a cap on your life,"
said Richard Fuller, CEO of the Blacksmith Institute, a New York-
based watchdog that estimates 50,000 people could be at risk.
Other, smaller asbestos mines in states including Orissa, Andhra
Pradesh, Rajasthan and Chhattisgarh have also been left in a state
of neglect similar to Roro's, mining activists say.
Activists, medical workers and lawyers have described an almost
Kafkaesque effort to hold the government and company accountable
over the past decade, with both declaring the mine closed and
subject settled long ago.
At the time the mines were open, Jharkhand state didn't even
exist. The land was part of a wider Bihar state, with its capital
and official paperwork held in a different city. Neither state
has been able to produce the 30-year-old documents pertaining to
the mine's closure.
"As far as environmental issues are concerned, we have already
dealt with it," Jharkhand state's Mining Secretary Arun, who uses
only one name, told AP.
In 2012, an activist group selected 150 Roro-area villagers for
chest X-rays. The X-ray plates were examined by Dr. V. Murlidhar,
an occupational health specialist, who confirmed 18 had the tell-
tale honeycomb pattern of opaqueness that denotes asbestosis.
The results were neither surprising nor unique, he said. "More
cases are likely" because asbestosis usually develops over decades
of exposure, he said.
Across all of India, only 30 people have ever received marginal
compensation -- through out-of-court settlements -- for asbestos-
related disease out of hundreds of thousands of workers who have
handled asbestos since the 1960s or lived near mines or
manufacturing plants.
Lawyer Krishnendu Mukherjee, who is spearheading the case, has
high hopes for a judgment that awards the plaintiffs and future
claimants with generous compensation.
A strong verdict, he said, "sends a very strong message out to
companies like HIL Ltd. that it's not permissible to simply leave
a mine, a factory, whatever it is, in a state of abandonment
without looking at the repercussions on the local population or on
the workers."
INFOBLOX INC: Lead Plaintiffs in Securities Suit Dismiss Claim
--------------------------------------------------------------
The lead plaintiffs in the consolidated securities suit against
Infoblox Inc. voluntarily dismissed their claims, according to the
company's Dec. 4, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Oct. 31, 2014.
Ansfield v. Infoblox Inc., et al., Case No. 3:14-cv-02500-VC (N.D.
Cal.); Beqaj v. Infoblox Inc., et al., Case No. 3:14-cv-02564-VC
(N.D. Cal.); and Achey, et al. v. Infoblox Inc., et al., Case No.
3:14-cv-02644-VC (N.D. Cal.).
Beginning on May 30, 2014, the first of three putative securities
class action suits was filed in the United States District Court
for the Northern District of California against the Company and
two of its officers. These suits, which have been deemed to be
related cases, allege that defendants made materially false and
misleading statements, or failed to disclose material facts,
regarding the Company's financial results, business, operations
and prospects. The suits assert claims covering the period from
September 5, 2013 through May 29, 2014, are purportedly brought on
behalf of purchasers of the Company's securities during that
period, and seek compensatory damages, interest, costs and
expenses, as well as equitable or other relief. On September 25,
2014, the lead plaintiffs were appointed and the suits
consolidated. On November 25, 2014, the lead plaintiffs
voluntarily dismissed their claims without prejudice.
J. CREW GROUP: Settlement of Suit Over ZIP Code Collection Okayed
-----------------------------------------------------------------
The United States District Court for the District of Massachusetts
approved a settlement reached in the suit Miller v. J.Crew Group,
Inc., 13-cv-11487, claiming unlawful collection of ZIP code during
a retail purchase, according to the company's Dec. 4, 2014, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Nov. 1, 2014.
On June 20, 2013, a purported class action complaint was filed in
the United States District Court for the District of Massachusetts
by an individual claiming that the Company collected her ZIP code
unlawfully in connection with a retail purchase she made at a
Massachusetts store. That action, captioned Miller v. J.Crew
Group, Inc., 13-cv-11487 (the "Miller Action"), purports to be
brought on behalf of a class of customers whose ZIP codes were
collected and recorded at Company stores in Massachusetts in
connection with credit card purchases, and claims that the Company
used the collected ZIP code data to obtain customers' addresses
for purposes of mailing them unwanted advertising material. The
Miller Action seeks money damages pursuant to a claim under
Chapter 93A of the General Laws of Massachusetts and a claim for
unjust enrichment. The Company filed a motion to dismiss the
unjust enrichment claim, and on April 22, 2014, the Court denied
that motion without prejudice to the Company's ability to re-file
it later in the litigation. On May 15, 2014, the Company answered
the plaintiff's complaint. On June 1, 2014, the parties to the
Miller Action entered into a settlement agreement and release (the
"Settlement Agreement"). The Court granted preliminary approval of
the Settlement Agreement on June 27, 2014. Notice of the
settlement was sent to class members on July 25, 2014. The
Settlement Agreement was approved by the Court on October 15,
2014. The resolution of the Miller Action did not have a
significant impact on the Company's consolidated financial
statements.
JAMES C BENDER: Plaintiffs' Attorney Fee Request Too Greedy
-----------------------------------------------------------
Christine Simmons, writing for New York Law Journal, reports that
a Southern District magistrate judge slashed the fees requested by
two small law firms that sued debt collectors and settled, saying
the fee application was "simply too greedy" and their "chutzpah"
shouldn't be rewarded.
The Law Offices of Robert J. Nahoum in Nyack and the Law Offices
of David I. Pankin represented Irma Warren in a suit against James
C. Bender & Associates and Action Collection Co., claiming they
violated the Fair Debt Collection Practices Act by making false
representations to collect a debt.
In an October settlement in Warren v. James C. Bender &
Associates, 14-cv-5976, defendants agreed to pay $2,000 in
statutory damages to Warren but no more than $3,000 in legal fees.
If the parties couldn't agree on fees, Warren was to submit
billing records and a brief up to three pages. Warren's attorneys
submitted 24 pages seeking about $8,880 for three attorneys from
two firms, including money for time spent preparing the fee
motion.
Magistrate Judge Andrew Peck (See Profile) on Dec. 3 said,
"Plaintiff's fee application simply is too greedy -- even if
plaintiff could get fees on fees, plaintiff agreed not to seek
fees over $3,000 for work through the settlement agreement, but
plaintiff's motion papers sought twice that amount for that time
period. Such 'chutzpah' should not be rewarded." Peck awarded the
firms $3,000.
Mr. Nahoum, a solo practitioner, said in a statement that the
court did not address events leading to the fee application and
"entirely disregarded the obstinacy of defense counsel."
"We disagree with the court's decision and vehemently disagree
with the court's pejorative characterizations of the application,"
he said. "The unfortunate reality is that if consumer lawyers are
not paid commensurately for their work, fewer and fewer lawyers
will take on consumer cases."
JP 538 THIRD: Faces "Palma" Suit Over Failure to Pay Overtime
-------------------------------------------------------------
Victor Palma, individually and on behalf of others similarly
situated v. J.P. 538 Third Corp. (d/b/a Hudson Place), Jackson
Peng, and Stuart Liu, Case No. 1:14-cv-09955 (S.D.N.Y., December
17, 2014), is brought against the Defendants for failure to pay
overtime wages in violation of the Fair Labor Standard Act.
The Defendants own and operate a restaurant located at 538 Third
Avenue, New York, New York 10016.
The Plaintiff is represented by:
Michael Antonio Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2020
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: faillace@employmentcompliance.com
JUMEI INTERNATIONAL: Sued Over Misleading Financial Reports
-----------------------------------------------------------
Xiangbo Yin, individually and on Behalf of All Others Similarly
Situated v. Jumei International Holding Limited, et al., Case No.
1:14-cv-09957 (S.D.N.Y., December 17, 2014), alleges that the
Defendants made false and misleading statements, as well as failed
to disclose material adverse facts about the Company's business,
operations, and prospects.
Jumei International Holding Limited is an online retailer of
beauty products.
The Plaintiff is represented by:
Casey Edwards Sadler, Esq.
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Robert Vincent Prongay, Esq.
GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: csadler@glancylaw.com
lglancy@glancylaw.com
mgoldberg@glancylaw.com
rprongay@glancylaw.com
- and -
Lesley Frank Portnoy, Esq.
POMERANTZ LLP
600 Third Ave, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: LPortnoy@glancylaw.com
JUMEI INTERNATIONAL: Faces "Brock" Suit Over False Fin'l Reports
----------------------------------------------------------------
Terry Brock, individually and on behalf of all others similarly
situated v. Jumei International Holding Limited, et al., Case No.
1:14-cv-09993 (S.D.N.Y., December 18, 2014), alleges that the
Defendants made false and misleading statements, as well as failed
to disclose material adverse facts about the Company's business,
operations, and prospects.
Jumei International Holding Limited is an online retailer of
beauty products.
The Plaintiff is represented by:
Francis Paul McConville, Esq.
Jeremy Alan Lieberman, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: fmcconville@pomlaw.com
jalieberman@pomlaw.com
JVA INDUSTRIES: Suit Seeks to Recover Unpaid Wages & Penalties
--------------------------------------------------------------
Jose A. Torres Lopez on behalf of himself and all others similarly
situated v. JVA Industries, Inc., Case No. 1:14-cv-09988
(S.D.N.Y., December 18, 2014), seeks to recover unpaid overtime
compensation, liquidated damages, statutory damages, attorney
fees, costs, and related penalties under the Fair Labor Standard
Act.
JVA Industries, Inc. is engaged in the construction business.
The Plaintiff is represented by:
Michael Joseph Redenburg, Esq.
MALOOF, LEBOWITZ, CONNAHAN & OLESKE
299 Broadway
New York, NY 10007
Telephone: (631) 748-0601
Facsimile: (212) 233-3984
E-mail: mredenburg@hotmail.com
KEYUAN PETROCHEMICALS: Calif. Securities Lawsuit in Discovery
-------------------------------------------------------------
The securities case against Keyuan Petrochemicals, Inc. is
currently at the discovery stage before in the United States
District Court for the Central District of California, according
to the company's Dec. 4, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2014.
On November 15, 2011, the Rosen Law Firm filed a class action
suit, alleging the company had violated federal securities laws by
issuing materially false and misleading statements and omitting
material facts with regard to disclosure of related party
transactions and effectiveness of internal controls in past public
filings. The case is currently at the discovery stage, located in
the United States District Court for the Central District of
California, and the company believes there is no basis to the suit
filed by the Rosen Law Firm and intend to contest the case
vigorously.
LAUTREC CORPORATION: Suit Seeks to Recover Unpaid Wages & Damages
-----------------------------------------------------------------
Stephanie Slawinski, Melissa Bernas, Nicole Chandler, Kara
Widtmann, Sarah Teuber, and Mike Banks, individually and on behalf
of all others similarly-situated v. Lautrec Corporation d/b/a/
McFadden's Restaurant and Saloon Chicago, John Sullivan, Doe
Corporations I through X, inclusive, and Doe Limited Liability
Companies I through X, inclusive, Case No. 1:14-cv-10128 (N.D.
Ill., December 17, 2014), seeks to recover unpaid minimum wages,
overtime wages, misappropriated gratuities and other wages under
the Fair Labor Standard Act.
The Defendants own and operate a restaurant located at 1206 N.
State Parkway, Chicago, Illinois 60610.
The Plaintiff is represented by:
Jeanne Christensen, Esq.
THE LAW OFFICE OF IMBESI CHRISTENSEN
450 Seventh Avenue, Suite 1408
New York, New York 10123
Telephone: (212) 736-5588
Facsimile: (212) 658-9177
E-mail: jchristensen@lawicm.com
- and -
Douglas H. Wigdor, Esq.
David E. Gottlieb, Esq.
WIGDOR LLP
85 Fifth Avenue
New York, NY 10003
Telephone: (212) 257-6800
Facsimile: (212) 257-6845
E-mail: dwigdor@wigdorlaw.com
dgottlieb@wigdorlaw.com
LEIDOS HOLDINGS: Last Plaintiffs in Data Privacy Suit Junk Claims
-----------------------------------------------------------------
The remaining two plaintiffs in In Re: Science Applications
International Corporation ("SAIC") Backup Tape Data Theft
Litigation, subsequently dismissed their claims with prejudice,
according to Leidos Holdings, Inc.'s Dec. 3, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Oct. 31, 2014.
The Company was previously a defendant in a putative class action,
In Re: Science Applications International Corporation ("SAIC")
Backup Tape Data Theft Litigation, which was an Multidistrict
Litigation ("MDL") action in U.S. District Court for the District
of Columbia relating to the theft of computer back-up tapes from a
vehicle of a company employee. In May 2014, the District Court
dismissed all but two plaintiffs from the MDL action. In June
2014, Leidos and its co-defendant, TRICARE, entered into
settlement agreements with the remaining two plaintiffs who
subsequently dismissed their claims with prejudice.
LEIDOS HOLDINGS: Faces New Data Privacy Claims in Calif. Court
--------------------------------------------------------------
Leidos Holdings, Inc. faces new claims in the Eastern District
Court of California relating to the theft of computer back-up
tapes from a vehicle of a company employee, according to the
company's Dec. 3, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Oct. 31, 2014.
On September 20, 2014, the Company was named as a defendant in a
putative class action, Martin Fernandez, on Behalf Of Himself And
All Other Similarly Situated v. Leidos, Inc. in the Eastern
District Court of California, related to the same theft of
computer backup tapes. The recent complaint includes allegations
of violations of the California Confidentiality of Medical
Information Act, the California Unfair Competition Law, and other
claims.
LEIDOS HOLDINGS: SAIC Shareholder Plaintiffs Appeal to 2nd Cir.
---------------------------------------------------------------
Plaintiffs in In re SAIC, Inc. Securities Litigation is taking
their appeal against the dismissal of the case to the United
States Court of Appeals for the Second Circuit, according to
Leidos Holdings, Inc.'s Dec. 3, 2014, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended Oct.
31, 2014.
Between February and April 2012, alleged stockholders filed three
putative securities class actions. One case was withdrawn and two
cases were consolidated in the U.S. District Court for the
Southern District of New York in In re SAIC, Inc. Securities
Litigation. The consolidated securities complaint names as
defendants the Company, its chief financial officer, two former
chief executive officers, a former group president and the former
program manager on the CityTime program, and was filed purportedly
on behalf of all purchasers of the Company's common stock from
April 11, 2007 through September 1, 2011. The consolidated
securities complaint asserted claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 based on allegations
that the Company and individual defendants made misleading
statements or omissions about the Company's revenues, operating
income and internal controls in connection with disclosures
relating to the CityTime project. The plaintiffs sought to recover
from the Company and the individual defendants an unspecified
amount of damages class members allegedly incurred by buying
Leidos' stock at an inflated price. On October 1, 2013, the
District Court dismissed many claims in the complaint with
prejudice and on January 30, 2014, the District Court entered an
order dismissing all remaining claims with prejudice and without
leave to replead. The plaintiffs moved to vacate the District
Court's judgment or obtain relief from the judgment and for leave
to file an amended complaint. On September 30, 2014, the District
Court denied plaintiffs' motions. The plaintiffs filed a notice of
appeal on October 30, 2014 to the United States Court of Appeals
for the Second Circuit.
LEPRECHAUN LINES: Faces "Perry" Suit Over Failure to Pay OT Wages
-----------------------------------------------------------------
Lawrence Perry v. Leprechaun Lines, Inc. and Newburgh-Beacon Bus
Corp., Case No. 1:14-cv-09977 (S.D.N.Y., December 18, 2014), is
brought against the Defendants for failure to pay overtime wages
in violation of the Fair Labor Standard Act.
Leprechaun Lines, Inc. and Newburgh-Beacon Bus Corp. operate
several bus lines in Newburgh and surrounding areas of
Orange County, and New York.
The Plaintiff is represented by:
Mark C. Gardy, Esq.
Orin Kurtz, Esq.
GARDY & NOTIS, LLP
Tower 56
126 East 56th Street, 8th Floor
New York, NY 10022
Telephone: (212) 905-0509
Facsimile: (212) 905-0508
E-mail: mgardy@gardylaw.com
okurtz@gardylaw.com
MARVELL TECHNOLOGY: Jan. 22 Hearing on Bid to Junk Patent Suit
--------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division scheduled a hearing for January 22,
2015 on a motion to dismiss a suit filed against Marvell
Technology Group Ltd., alleging it engaged in the purported
willful infringement of certain patents, according to the
company's Dec. 4, 2014, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Nov. 1, 2014.
On April 7, 2014, Lee Voss ("Voss") filed an action asserting
putative class action claims on behalf of the Company's
shareholders and derivative claims ostensibly on behalf of the
Company in the United States District Court for the Northern
District of California, San Jose Division. The complaint alleges
that certain officers and directors of the Company breached their
fiduciary duties by causing or allowing the Company to engage in
the purported willful infringement of certain patents asserted
against it in litigation by CMU and by failing to institute
adequate internal controls, resulting in an adverse verdict.
Additionally, the complaint alleges unjust enrichment and a breach
of the duty of honest services by three of the officers. The
Company is named as a nominal defendant. Voss requests damages and
restitution in unspecified amounts, equitable and/or injunctive
relief, and the costs and fees of bringing the action. On June 2,
2014, Sebastiano D'Arrigo filed a second, nearly identical
complaint in the same court, which was consolidated with the Voss
action. On June 13, 2014, James and Marie DiBiase filed a third,
nearly identical complaint in the Superior Court for the County of
Santa Clara Superior Court, which was removed to the United States
District Court for the Northern District of California, San Jose
Division and consolidated with the Voss action. The plaintiffs
filed an amended consolidated complaint on August 15, 2014. The
Company and the defendant officers and directors filed a motion to
dismiss the amended consolidated complaint on September 4, 2014,
which the plaintiffs opposed on October 30, 2014. The defendants'
filed their reply brief on November 25, 2014. The Court has
scheduled a hearing on the defendants' motion to dismiss for
January 22, 2015. The action is in the preliminary stages and the
Court has permitted only limited discovery.
MAZOR'S BAKERY: Suit Seeks to Recover Unpaid Overtime Wages
-----------------------------------------------------------
Arturo De La Luz, Veronica Macuitl, Ofelia Perez, Ana Guardado,
and Janeth Huapaya, Individually and on Behalf of All Others
Similarly Situated v. Mazor's Bakery LLC, Isaac Mazor, Raymond
Mazor, and Saul Mazor, Jointly and Severally, Case No. 1:14-cv-
07327 (E.D.N.Y., December 17, 2014), seeks to recover unpaid
overtime wages and damages pursuant to the Fair Labor Standard
Act.
The Defendants own and operate a bakery located at 1785 McDonald
Avenue, Brooklyn, New York 11230.
The Plaintiff is represented by:
Alison Gayle Lobban, Esq.
Taylor Bell Graham, Esq.
Brent E. Pelton, Esq.
PETTON & ASSOCIATES PC
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
Facsimile: (212) 385-0800
E-mail: lobban@peltonlaw.com
graham@peltonlaw.com
pelton@peltonlaw.com
MERCEDES BENZ: Sued in C.D. Cal. Over Defective Seat Heaters
------------------------------------------------------------
Elizabeth Callaway, William S. Callaway, on behalf of themselves
and all other similarly situated v. Mercedes Benz USA LLC,
a Delaware limited liability company, Mission Imports d/b/a
Mercedes Benz of Laguna Niguel, a California corporation, Case
No. 8:14-cv-02011 (C.D. Cal., December 18, 2014), arise out of the
seat heaters defects of 2000 through 2014 Mercedes Benz models.
The Defendants are engage in the business of designing,
manufacturing, and marketing Mercedes Benz vehicles.
The Plaintiff is represented by:
Eric F. Yuhl, Esq.
Colin Yuhl, Esq.
YUHL CARR LLP
4676 Admiralty Way Suite 550
Marina Del Rey, CA 90292
Telephone: (310) 827-2800
Facsimile: (310) 827-4200
E-mail: eyuhl@yuhlcarr.com
cayuhl@yuhlcarr.com
- and -
Jason M. Frank, Esq.
Scott Howard Sims, Esq.
EAGAN AVENATTI LLP
450 Newport Center Drive Second Floor
Newport Beach, CA 92660-7617
Telephone: (949) 706-7000
Facsimile: (949) 706-7050
E-mail: jfrank@eaganavenatti.com
ssims@eaganavenatti.com
- and -
Patrick McNicholas, Esq.
Philip Shakhnis, Esq.
MCNICHOLAS AND MCNICHOLAS LLP
10866 Wilshire Boulevard Suite 1400
Los Angeles, CA 90024-4338
Telephone: (310) 474-1582
Facsimile: (310) 475-7871
E-mail: pmc@mcnicholaslaw.com
ps@mcnicholaslaw.com
MIDWEST HEALTH: Faces "French" Suit Over Failure to Pay Overtime
----------------------------------------------------------------
Melissa French, on behalf of herself and all others similarly
situated, v. Midwest Health Management, Inc., Case No. 2:14-cv-
02625 (D. Kan., December 18, 2014), is brought against the
Defendant for failure to pay overtime compensation for hours
worked in excess of 40 per workweek.
Midwest Health Management, Inc. offers quality long-term care in
communities throughout Kansas, Iowa, Nebraska and Oklahoma.
The Plaintiff is represented by:
Rowdy B. Meeks, Esq.
ROWDY MEEKS LEGAL GROUP, LLC
10601 Mission Road, Suite 100
Leawood, KS 66206
Telephone: (913) 766-5587
Facsimile: (816) 875-5069
E-mail: Rowdy.Meeks@rmlegalgroup.com
- and -
Tracey F. George, Esq.
DAVIS GEORGE MOOK, LLC
1600 Genesee, Suite 328
Kansas City, MO 64102
Telephone: (816) 569-2629
Facsimile: (816) 447-3939
E-mail: tracey@davisgeorge.com
MONAVIE LLC: Faces "Jessop" Suit in Utah Over ERISA Violation
-------------------------------------------------------------
Kelly Jessop, an individual, on behalf of himself and all others
similarly situated v. Dallin Larsen, Henry Marsh, Randy Larsen,
Machiel Kennedy, Ralph Carson, Amy Cowley, Mark Rawlins, Porter
Hall, Stephen J. Hall, an individual, Does 1-10, and Bankers Trust
Company, a Delaware corporation, Case No. 2:14-cv-00916 (D. Utah,
December 18, 2014), is brought against the Defendants for
violation of Employee Retirement Income Security.
MonaVie LLC is a privately held company that manufactures and
distributes products made from blended fruit and vegetable juice
concentrates, powders, and purees through a multilevel marketing
business model.
Bankers Trust Company is a banking organization headquartered in
Iowa.
The Individual Defendants are officers and directors of MonaVie.
The Plaintiff is represented by:
Gregory Y. Porter, Esq.
James L. Kauffman, Esq.
BAILEY & GLASSER LLP
910 17th Street NW, Suite 800
Washington, DC 20006
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: gporter@baileyglasser.com
jkauffman@baileyglasser.com
- and -
James E. Magleby, Esq.
Jennifer Fraser Parrish, Esq.
MAGLEBY & GREENWOOD, P.C.
170 South Main Street, Suite 850
Salt Lake City, UT 84101
Telephone: (801) 359-9000
Facsimile: (801) 359-9011
E-mail: magleby@mgpclaw.com
parrish@mgpclaw.com
NEW YORK: Faces "Jorge" Suit Over Discriminatory Practices
----------------------------------------------------------
Josefa Jorge, Nyuk Siem Yap, on behalf herself and her minor sons,
C.L. and D.L., Annette Padro, Doris Rodriguez, and Rosa Valdes, on
behalf of themselves and all others similarly situated v. New York
City Transit Authority, Thomas F. Prendergast, in his official
capacity as Chairman and Chief Executive Officer of
New York City Transit Authority, and Carmen Bianco, in his
official capacity as President of New York City Transit Authority,
Case No. 1:14-cv-09946 (S.D.N.Y., December 17, 2014), seeks to
redress the Defendants discriminatory policy and practice of
denying equal access to limited English proficient New Yorkers who
seek to apply for and use New York City's transportation system
for people with disabilities, Access-A-Ride.
New York City Transit Authority is a public transit provider that
operates the subway, bus, and paratransit systems in New York
City.
Thomas Prendergast is the Chairman and Chief Executive Officer of
NYC Transit.
Carmen Bianco is the President of NYC Transit.
The Plaintiff is represented by:
Aditi Kothekar Shah, Esq.
Kelly Jane McAnnany, Esq.
NEW YORK LAWYERS FOR THE PUBLIC INTEREST
151 West 30th Street, 11th floor
New York City, NY 10001
Telephone: (212) 244-4664
Facsimile: (212) 244-4570
E-mail: ashah@nylpi.org
kmcannany@nylpi.org
- and -
Katherine R. Rosenfeld, Esq.
EMERY CELLI BRINCKERHOFF & ABADY, LLP
600 Fifth Avenue 10th Floor
New York, NY 10020
Telephone: (212) 763-5000
Facsimile: (212) 763-5001
E-mail: krosenfeld@ecbalaw.com
NEW YORK: January 7 Class Action Settlement Fairness Hearing Set
----------------------------------------------------------------
Legal Notice # 21041501 INDIGENT CRIMINAL DEFENSE CLASS ACTION
SETTLEMENT
Hurrell-Harring v. State of New York, Index No. 8866/07
Please Read this Notice Carefully. This Notice Contains Important
Information. This is a Notice of a Class Action and Proposed
Settlement Regarding the Provision of Publicly Funded Criminal
Defense Representation in Onondaga County, Suffolk County, and
Washington County. A New York State Court approved and authorized
this Notice. This is not a solicitation from a lawyer. You will
not be asked to pay any money under any circumstances.
What is this lawsuit about? Plaintiffs claim that New York State
has failed to provide constitutionally required criminal
representation to poor people in five counties, including
Onondaga, Suffolk, and Washington Counties. Plaintiffs claim that
lawyers are not available to poor defendants at critical stages of
the criminal process, including that defendants face first
appearances without counsel and that defendants effectively have
no one advocating for them during plea negotiations. Plaintiffs
do not seek to overturn any criminal conviction. Instead,
Plaintiffs seek to reform the public defense system by getting a
court order declaring that the State is not providing
constitutionally sufficient representation to poor people and
requiring the State to fix the constitutional problems.
Who brought this lawsuit? Kimberly Hurrell-Harring, James Adams,
Joseph Briggs, Ricky Lee Glover, Richard Love, Jacqueline
Winbrone, Lane Loyzelle, Tosha Steele, Bruce Washington, Shawn
Chase, Jemar Johnson, Robert Tomberelli, Christopher Yaw, Luther
Woodrow of Booker, Jr., Edward Kaminski, Joy Metzler, Victor
Turner, Candace Brookins, Randy Habshi, and Ronald McIntyre
brought this lawsuit, on behalf of themselves and all other people
similarly situated in five counties in New York who are or will be
entitled to receive constitutionally required, publicly funded
criminal defense representation. A New York State appellate court
certified the case as a class action in January 2011.
Where is this lawsuit pending? The lawsuit is pending in Supreme
Court in Albany County.
Who is this lawsuit against? The lawsuit is against the State of
New York, as well as the Counties of Onondaga, Suffolk, and
Washington.
Who is settling? The Plaintiff class is settling its claims
involving Onondaga County, Suffolk County, Washington County, and
the State of New York that exist as of October 21, 2014. The
Plaintiff class separately agreed to settle its claims involving
Ontario County and Schuyler County, and the State agreed to
include these two counties in this settlement.
Who are the lawyers for the class? The class is represented by
lawyers at the New York Civil Liberties Union Foundation, 125
Broad Street, New York, New York 10004, and the law firm of
Schulte Roth & Zabel LLP, 919 Third Avenue, New York, New York
10022.
Can I get any money from this lawsuit? No. The lawsuit does not
and has never included a claim for money damages. It seeks
declaratory and injunctive relief, which means a court order
setting out a party's obligations and requiring a party to do
something.
Can I overturn my criminal conviction or withdraw my guilty plea?
This lawsuit is not a way to attack your individual criminal
conviction or plea. The lawyers for the Plaintiff class cannot
advise you on these matters. Nothing in the settlement agreement
bars you from bringing an ineffective assistance of counsel claim
to challenge your conviction.
Do I have to pay any lawyers? No. The State has agreed, as part
of the settlement, to pay attorneys' fees and costs of $5.5
million to Plaintiffs' attorneys.
What are the terms of the settlement? The State of New York will
ensure that defense attorneys are present at all arraignments or
first appearances in each of Onondaga, Ontario, Schuyler, Suffolk,
and Washington Counties. The State will, through the New York
State Office of Indigent Legal Services ("ILS"), establish and
implement caseload/workload standards, including hiring attorneys
and support staff as needed in each county to meet those
standards. The State of New York, through ILS, will create plans
to improve the quality of public defense representation in
Onondaga, Ontario, Schuyler, Suffolk, and Washington Counties.
ILS will establish statewide defendant eligibility criteria to
ensure uniform and fair eligibility determinations. The State of
New York will also monitor and report on its obligations under the
agreement to Plaintiffs' counsel. In exchange, the Plaintiff
class has agreed to dismiss the systemic claims concerning the
constitutionality of criminal representation for poor people in
Onondaga County, Suffolk County, and Washington County that were
made or could have been made in this lawsuit against the State of
New York, Onondaga County, Suffolk County, and Washington County
up to the date of the settlement agreement.
What if I want to object to the settlement? Any person seeking to
be heard in opposition to the settlement may object in writing or
appear at one of the Fairness Hearings that will be held on:
January 7, 2015, at 10:00 a.m., at Supreme Court, Onondaga County,
Syracuse January 8, 2015, at 10:00 a.m., at Supreme Court,
Washington County, Fort Edward January 12, 2015, at 10:00 a.m., at
Suffolk County District Court, Central Islip January 15, 2015, at
10:00 a.m., at Supreme Court, Albany County, Albany To submit a
written objection, you must send a written Notice of Objection
entitled, "Objection to the Suffolk County Settlement in Hurrell-
Harring v. State of New York, (No. 8866-07)" to: (i) Kristie M.
Blase, Esq., Schulte Roth & Zabel LLP, 919 Third Avenue, New York,
New York 10022; and (ii) Adrienne Kerwin, Esq., Office of the
Attorney General, The Capitol, Albany, New York 12224. Any
written objection must be postmarked by December 19, 2014. Your
objections will be provided to the Court, which will consider them
in deciding whether to approve the settlement. If you make a
written objection, it must include: (i) your name and address;
(ii) a statement as to whether you plan to appear at the Fairness
Hearing; (iii) a description of your objection; and (iv) any
documents that you want the court to consider. What happens next?
Albany County Acting Supreme Court Justice Gerald Connolly will
hold fairness hearings, as described above. After these hearings,
Judge Connolly will determine whether the settlement should be
approved as fair and reasonable. You are not required to attend
any hearing, but you may if you wish.
How do I get more information? Do not call or write the court, the
judge, any county, or the State of New York for additional
information. You may review the pleadings, the full settlement
agreement, and certain other court documents at
www.nyclu.org/PublicDefenseLawsuit or at the office of the Clerk
of the Court of Albany County, who will make the file available to
you for inspection and copying at your expense during regular
office hours. You may also review the full settlement agreement
at the offices of Legal Aid in Suffolk County; the offices of the
Washington County Public Defender; the offices of the Onondaga
County Assigned Counsel Program; the offices of the Hiscock Legal
Aid Society; the offices of the Ontario County Public Defender;
and the offices of the Schuyler County Public Defender. If you
have any questions concerning the matters in this notice please
contact Noah Breslau, New York Civil Liberties Union, at 212-607-
3381 or nbreslau@nyclu.org and one of the attorneys for the
Plaintiff class will respond to your inquiry.
ONESOURCE BUILDING: Sued Over Failure to Pay Overtime Wages
-----------------------------------------------------------
Blair Salley, individually and on behalf of others similarly
situated v. OneSource Building Technologies, Inc., Case No. 4:14-
cv-03605 (S.D. Tex., December 17, 2014), is brought against the
Defendant for failure to pay overtime wages in violation of the
Fair Labor Standard Act.
OneSource Building Technologies, Inc. provides information
technology support services to various companies around the world
on a contract basis.
The Plaintiff is represented by:
Timothy C. Selander, Esq.
NICHOLS KASTER, PLLP
80 South 8th St, Ste 4600 IDS Center
Minneapolis, MN 55402
Telephone: (612) 256-3200
E-mail: selander@nka.com
- and -
Brian David Gonzales, Esq.
THE LAW OFFICES OF BRIAN D. GONZALES, PLLC
123 North College Avenue, Suite 200
Fort Collins, CO 80524
Telephone: (970) 212-4665
Facsimile: (303) 539-9812
E-mail: BGonzalez@ColoradoWageLaw.com
PACIFIC SUNWEAR: Feb. 2 Hearing on Bid to Certify Labor Suit
------------------------------------------------------------
The hearing on the plaintiff's motion to certify a class of
individuals who allege violations of California's wage and hour,
overtime, meal break and rest break rules and regulations against
Pacific Sunwear of California, Inc. will now be held on February
2, 2015, according to the company's Dec. 4, 2014, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Oct. 31, 2014.
Tamara Beeney, individually and on behalf of other members of the
general public similarly situated vs. Pacific Sunwear of
California, Inc. and Pacific Sunwear Stores Corporation, Superior
Court of California, County of Orange, Case No. 30-2011-00459346-
CU-OE-CXC. On March 18, 2011, the plaintiff in this matter filed a
putative class action lawsuit against the Company alleging
violations of California's wage and hour, overtime, meal break and
rest break rules and regulations, among other things. The
complaint seeks class certification, the appointment of the
plaintiff as class representative, and an unspecified amount of
damages and penalties. The Company has filed an answer denying all
allegations regarding the plaintiff's claims and asserting various
defenses. On February 21, 2014, the plaintiff filed her motion to
certify a class with respect to several claims. The Company's
opposition to such motion was filed on June 30, 2014 and the
plaintiff's reply to such opposition was filed on November 4,
2014. The hearing on the plaintiff's motion will now be held on
February 2, 2015.
PETCO ANIMAL: Faces "Kucker" Suit Over Failure to Pay Overtime
--------------------------------------------------------------
Kristina Kucker, Hillary Anderson, Magda Alexandra Sereno, Amy
Doidge, and Jill Filippone, on behalf of themselves and all others
similarly situated v. Petco Animal Supplies Stores, Inc., Case No.
1:14-cv-09983 (S.D.N.Y., December 18, 2014), is brought against
the Defendant for failure to pay overtime wages in violation of
the Fair Labor Standard Act.
Petco Animal Supplies Stores, Inc. is a privately held nationwide
pet supply and pet services store with more than 1,300 locations
in the United States, Mexico, and Puerto Rico.
The Plaintiff is represented by:
Brian Scott Schaffer, Esq.
Frank Joseph Mazzaferro, Esq.
FITAPELLI & SCHAFFER, LLP
475 Park Avenue South, 12th Floor
New York, NY 10016
Telephone: (212) 300-0375
Facsimile: (212) 481-1333
E-mail: bschaffer@fslawfirm.com
fmazzaferro@fslawfirm.com
- and -
Justin Mitchell Swartz, Esq.
Molly Anne Brooks, Esq.
Sally Jasmine Abrahamson, Esq.
OUTTEN & GOLDEN, LLP
3 Park Avenue, 29th Floor
New York, NY 10016
Telephone: (212) 245-1000
Facsimile: (212) 977-4005
E-mail: jms@outtengolden.com
mbrooks@outtengolden.com
sabrahamson@outtengolden.com
P.F. CHANG: Plaintiffs Appeal Data Breach Class Action Dismissal
----------------------------------------------------------------
Lisa Hoffman, writing for The National Law Journal, reports that
plaintiffs in a proposed class action over a data security breach
at P.F. Chang's China Bistro Inc. swiftly appealed an Illinois
federal judge's dismissal of their suit on the ground they had not
shown they had suffered actual harm.
Plaintiffs John Lewert and Lucas Kosner, who allege they were
among the estimated 7 million customers whose credit or debit card
information may have been exposed in a hack of the restaurant
chain's point-of-sale system, filed a notice of appeal to the U.S.
Court of Appeals for the Seventh Circuit on Dec. 12, two days
after U.S. District Judge John Darrah threw out their consolidated
complaint.
Judge Darrah, of the Northern District of Illinois, ruled on Dec.
10 that the plaintiffs had no standing to sue because they showed
no financial loss nor imminent manifestation of identity theft.
The judge concluded they also failed to show any injury from going
without debit or credit cards for a few days until receipt of new
ones, or from missing out on reward points during the hiatus, as
they had claimed.
P.F. Chang's reported the breach on June 12 and said it had been
notified by the U.S. Secret Service of the security attack two
days earlier. Mr. Kosner's complaint alleges the break-in
actually occurred in September 2013, and accused the restaurant of
failing to alert customers earlier. It also alleged the company
"grossly failed to comply with security standards."
The restaurant has posted a list of the 33 U.S. restaurants
affected by the breach, as well as the dates the thefts may have
occurred. P.F. Chang's says it is providing free "identity
protection services" to people whose card numbers might have been
accessed, but has "not determined that any specific cardholder's
credit or debit card data was stolen by the intruder," according
to the restaurant's website.
Mr. Kosner alleged in his complaint that his bank had notified him
of four apparently fraudulent payments attempted on his debit
card, but the judge noted that those transactions were either
declined or simply attempted, and that Mr. Kosner did not allege
that any money had been taken from his account or that he paid any
fees as a result of the activity on his card.
Judge Darrah also found little merit in the plaintiffs' concerns
about identity theft in the future, and said that was not an
appropriate claim at this point. "[W]hile plaintiffs allege that
security breaches can lead to identity theft, they do not allege
that it has occurred in this case. Rather, they allege that
identity theft may not happen for years, which is not imminent
harm," the judge wrote.
The plaintiffs alleged the restaurant had engaged in breach of
implied contract, along with violations of state consumer fraud
laws, and sought monetary damages and three years of free credit
card monitoring services.
P.F. Chang's is represented by attorneys with the firm Lewis
Brisbois Bisgaard & Smith. Mr. Kosner's counsel are attorneys
with Lite Depalma Greenberg; and Gordon Law Offices. Mr. Lewert's
counsel are with Siprut P.C.
PANZNER DEMOLITION: Fairness Hearing Held in "Gomez-Cruz" Suit
--------------------------------------------------------------
Parties in the case, MARIE GOMEZ-CRUZ, JORGE VASQUES and ANGEL
FLORES, on behalf of themselves and on behalf of all similarly
situated persons, Plaintiffs, v. PANZNER DEMOLITION AND
CONTRACTING CORP., PANZNER DEMO & ABATEMENT CORP., TODD PANZNER,
in his official and individual capacities, and KEITH PANZNER, in
his official and individual capacities, Defendants, No. CV 13-0766
(GRB) (E.D.N.Y.), filed a joint motion for approval of settlement
and dismissal with prejudice of claims under the Fair Labor
Standards Act.
Magistrate Judge Gary R. Brown of the Eastern District of New York
held a fairness hearing November 20, 2014.
A copy of Magistrate Judge Brown's order dated November 12, 2014,
is available at http://is.gd/6WkddEfrom Leagle.com.
Mario Gomez-Cruz, Jorge Vasquez and Angel Flores, Plaintiffs,
represented by David Evan Gottlieb -- dgottlieb@wigdorlaw.com --
Douglas Holden Wigdor -- dwigdor@wigdorlaw.com -- and Christopher
Rocco Lepore at Wigdor LLP
Defendants are represented by:
Brian Jeffrey Gershengorn, Esq.
OGLETREE DEAKINS
1745 Broadway 22nd Floor
New York, NY 10019
Telephone: 212-492-2500
Facsimile: 212-492-2501
Email: brian.gershengorn@ogletreedeakins.com
- and -
Edward Cerasia, II, Esq.
CERASIA & DEL REY-CONE LLP
150 Broadway, Suite 1517
New York, NY 10038
Telephone: 646-525-4235
Facsimile: 646-525-4237
- and -
Eric Su, Esq.
FORD & HARRISON LLP
100 Park Avenue, Suite 2500
New York, NY 10017
Telephone: 212-453-5900
Facsimile: 212-453-5959
PELLA CORP: Depositions of Class Reps Must Be Done by Feb. 1
------------------------------------------------------------
District Judge David C. Norton of the District of South Carolina
issued an amended order in the case IN RE: PELLA CORPORATION
ARCHITECT AND DESIGNER SERIES WINDOWS MARKETING, SALES PRACTICES
AND PRODUCTS LIABILITY LITIGATION, MDL DOCKET NO. 2514
District Judge Norton of the District of South Carolina set a
schedule to govern the actions transferred to his court by the
Judicial Panel on Multidistrict Litigation:
(1) All parties shall name any additional defendants or additional
third party defendants within 30 days of the Court's final ruling
on pending Rule 12 motions to dismiss. If Plaintiffs are granted
leave to amend a Complaint, the 30-day deadline shall not apply
until 30 days after Defendant(s) file an Answer or the Court rules
on any Rule 12 motion for such Amended Complaint.
(2) All initial written discovery to be served in advance of class
certification, including interrogatories and requests for
production to or from any party to the litigation as of the date
of this Order, shall be served by June 6, 2014. For any party,
including any third party defendant, added to the litigation after
the date of this Order, written discovery to or from that party
shall be served within 45 days of the party being added to the
litigation.
(3) The Parties shall come to an agreement on proposed custodians
and search terms as required by Case Management Order No. 2,
Sections III.As. VI.A.2 and Exhibit A, by December 1, 2014.
(4) Inspections of homes of all class representatives shall be
completed by January 1, 2015. Homes the subject of cases
transferred following entry of this order shall be inspected
within 60 days of receipt of transfer by the District Court of
South Carolina. Inspections of Pella's manufacturing plant(s), and
windows to be determined by a mutually agreed upon scope and
schedule shall be completed by January 1, 2015.
(5) All document production in response to requests for production
of documents served as set for in paragraph 2, above, shall be in
rolling productions, agreed to by the parties following
Defendant's receipt of Plaintiffs' Master Set of Discovery, but
shall be completed by January 15, 2015.
(6) Depositions of all class representatives shall be completed by
February 1, 2015.
(7) By April 1, 2015, the parties shall select three (3) cases for
motions and briefing on class certification. The cases shall be
selected in the following manner: Plaintiffs shall jointly select
one case; Defendant shall jointly select one case and one case
shall be selected at random from the remaining cases by whatever
method agreed to by the Court and Parties. If Defendant's selected
case is dismissed by Plaintiffs after April 1, 2015, the case will
be dismissed with prejudice unless good cause can be shown that it
should not be, the non-dismissing party shall be entitled to
select a substitute case within Ten (10) days from when the case
is dismissed, and briefing as to that case will be re-set at that
time.
(8) All depositions of Pella fact witnesses; third party
defendants; and third party witnesses shall be completed by March
1, 2015.
(9) Plaintiffs shall disclose any expert who will provide
testimony or affidavits in support of class certification and
provide expert reports for such experts as required by Rule 26 by
April 1, 2015.
(10) Pella shall disclose any expert who will provide testimony or
affidavits in opposition to class certification and provide expert
reports for such experts as required by Rule 26 by May 1, 2015.
(11) All depositions of the parties' experts regarding class
certification issues and any other inspections performed shall be
completed by June 15, 2015.
(12) Plaintiffs' motion for class certification for the selected
cases and all briefing and materials in support of motion(s) for
class certification shall be filed on or before July 15, 2015.
(13) Pella's opposition to plaintiffs' motion for class
certification and all briefing and materials in support of its
opposition shall be filed on or before September 1, 2015.
(14) Plaintiffs' reply memoranda in support of their motion(s) for
class certification shall be filed on or before by September 15,
2015.
(15) The Court may hear oral argument on the class certification
motions on a date to be determined.
(16) After the Court's decision on class certification for the 3
cases, the Court and the Parties will confer and discuss the
impact of the Court's ruling(s) on all remaining class action
complaints. The Court may ask for briefing on that issue and, if
so, will establish a schedule for that briefing.
A copy of Judge Norton's order dated November 12, 2014, is
available at http://is.gd/oDhVFFfrom Leagle.com.
In re Pella Corporation Architect and Designer Series Windows
Marketing, Sales Practices and Products Liability Litigation,
represented by John P. Mandler -- john.mandler@FaegreBD.com --
Shane A Anderson -- shane.anderson@FaegreBD.com -- at Faegre Baker
Daniels Law Firm
Plaintiff's Lead Counsel, Plaintiff, represented by Daniel K
Bryson -- dan@wbmllp.com -- Whitfield Bryson & Mason LLP and
Jonathan Shub -- jshub@seegerweiss.com -- at Seeger, Weiss Law
Firm
Plaintiff's Liaison Counsel, Plaintiff, represented by Justin
O'Toole Lucey -- office@lucey-law.com -- Justin O'Toole Lucey Law
Firm
Pella Corporation, Defendant, represented by Amy R Fiterman --
amy.fitermanAFaegreBD.com -- John P. Mandler --
john.mandler@FaegreBD.com -- Shane A Anderson --
shane.anderson@FaegreBD.com -- Kevin L. Morrow --
kevin.morrow@FaegreBD.com -- Mark J Winebrenner --
joe.winebrenner@FaegreBD.com -- at Faegre Baker Daniels Law Firm
-- G Mark Phillips -- mark.phillips@nelsonmullins.com -- Michael
Tucker Cole -- mike.cole@nelsonmullins.com -- at Nelson Mullins
Riley and Scarborough
PFIZER INC: Mass. Judge Cuts Attorneys' Fees in Neurontin Case
--------------------------------------------------------------
District Judge Patti B. Sarris granted class plaintiffs' motion in
the case In re NEURONTIN MARKETING AND SALES PRACTICES LITIGATION.
THIS DOCUMENT RELATES TO: HARDEN MANUFACTURING CORP., et al.,
Plaintiffs, v. PFIZER INC., et al., Defendants. Civil Action No:
04-10981-PBS (D. Mass.)
A nationwide, decade-long, multi-district litigation against
Pfizer, Inc. and Warner-Lambert Company for fraudulent scheme to
promote and sell the drug Neurontin for off-label conditions
resulted into a settlement.
Harden Manufacturing Corp., Louisiana Health Service Indemnity
Company, and ASEA/AFSCME Local 52 Health Benefits Trust are the
representatives of a nationwide class of third-party payors who
covered the cost of Neurontin. There is also a subclass of
indirect purchasers ("Subclass A"), represented by Blue Cross Blue
Shield of Massachusetts, who alleged that Pfizer violated
antitrust laws.
The settlement has resulted in a common fund of $325 million.
Class Plaintiffs have requested the Court to award Class Counsel
fees and expenses amounting to 33-1/3% of the settlement fund or
$108.33 million dollars. There is no separate request for
reimbursement of litigation-related expenses, which amount to
$4.38 million.
Judge Saris reduces the proposed percentage and awards class
counsel 28% of the common fund for attorneys' fees and expenses.
The awarded fees and expenses shall be paid to class counsel from
the settlement fund in accordance with the terms of the Settlement
Agreement. The Plaintiffs Steering Committee shall allocate the
fees and expenses among class counsel. Class and Subclass
representatives are also compensated for their reasonable time
spent on tasks related to their representation. Harden
Manufacturing Corporation, $25,000; Louisiana Health Service
Indemnity Company, d/b/a/BlueCross/BlueShield of Louisiana,
$25,000; ASEA/AFSCME Local 52 Health Benefits Trust, $25,000; and
Blue Cross Blue Shield of Massachusetts, $25,000.
A copy of Judge Saris's memorandum and order dated November 10,
2014 is available at http://is.gd/3JIAlAfrom Leagle.com.
Brenda Straddeck, Consolidated Plaintiff, represented by Thomas P.
Rosenfeld, Goldenberg Heller Antognoli & Rowland, P.C..
Laura Allen, administratrix of the Estate of the Late Daniel
Allen, Timothy Bridges, and Alfred Morabito, individually and on
behalf of themselves and all others similarly situated,
Consolidated Plaintiff, represented by Daniel D'Angelo,
Computershare & Robert J. Bonsignore, Bonsignore & Brewer
Sylvia G. Hyman, Consolidated Plaintiff, represented by Dewitt M.
Lovelace, Lovelace Law Firm PA - Destin FL
Clifford Eckenrode, Consolidated Plaintiff, represented by Dewitt
M. Lovelace, Lovelace Law Firm PA - Destin FL
James Hope, Consolidated Plaintiff, represented by Dewitt M.
Lovelace, Lovelace Law Firm PA - Destin FL
Midwest Health Plan, Inc., Consolidated Plaintiff, represented by
Jason J. Thompson, Sommers Schwartz, P.C. & Ronald S. Goldser,
Zimmerman Reed
Gulf Distributing Holdings, LLC, Consolidated Plaintiff,
represented by Charles H. Dodson, Jr., Sims, Graddick & Dodson,
P.C., Joseph D. Steadman, Sims, Graddick & Dodson, P.C., Steven A.
Martino, Taylor, Martino & Hedge, P.C. & W. Lloyd Copeland,
Taylor, Martino & Hedge, P.C.
Claudia Lang, on behalf of himself and all others, Consolidated
Plaintiff, represented by Thomas P. Thrash
Emma B. Christina, Consolidated Plaintiff, represented by Bradley
Douglas Becnel, Law offices of Daniel E. Becnel, Jr. & Daniel E.
Becnel, Jr., Becnel Law Firm
Debra Mull, individually and on behalf of her minor son, Brandon
Laiche, and on behalf of other similarly situated, Consolidated
Plaintiff, represented by David Scott Scalia, Bruno & Bruno,
Joseph M. Bruno, Bruno & Bruno LLP & Stephanie M. Bruno, Bruno &
Bruno
Maggie Dorty, Consolidated Plaintiff, represented by Gano D.
Lemoine, III, Murray Law Firm & Stephen Barnett Murray, Murray Law
Firm
Jo Helen Boler, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Gano D. Lemoine,
III, Murray Law Firm & Stephen Barnett Murray, Murray Law Firm
Dianne Irene Hood, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Robert M. Becnel,
Law Offices of Robert M. Becnel
Joyce B. Duhe, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Dane S. Ciolino,
Dane S. Ciolino, Attorney at Law
Patricia Ann White, Consolidated Plaintiff, represented by Daniel
E. Becnel, Jr., Becnel Law Firm
Peggy Ann Colton, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP & Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Amy Wendorf, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP &Eleanor Louise Polimeni,
Finkelstein & Partners, LLP
Linda Richey, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Sandra Leiendecker, individually and as Guardian ad Litem for J.L.
a minor child; C. L. a minor child, and T. L. a minor child,
Consolidated Plaintiff, represented by Michael David Liberty, Law
Office of Michael D. Liberty
Harold J. McPherson, Individually and on behalf of other Tamera L.
McPherson, Consolidated Plaintiff, represented by Daniel E.
Becnel, Jr., Becnel law Firm & John R. Climaco, Climaco Lefkowitz
Peca Wilcox & Garofoli
Gerald Demers, on behalf of himself and all others similarly
situated, Consolidated Plaintiff, represented by D. Michael
Noonan, Shaheen & Gordon, P.A.
Teresa E. Teater, Consolidated Plaintiff, Pro Se
Gary Gurvey, on behalf of himself and all others similarly
situated, Consolidated Plaintiff, represented by Melinda J.
Morales, Much, Shelist, Freed, Denenberg, Ament & Michael B.
Hyman, Much, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein
Judy White, Consolidated Plaintiff, represented by Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Lisa Christ, Consolidated Plaintiff, represented by Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Annie D. Blevins, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Daniel E. Becnel,
Jr., Becnel law Firm & Matthew B. Moreland, Law Offices of Daniel
E Becnel, Jr.
John Lerch, individually and on behalf of all others similarly
situated, Consolidated Plaintiff, represented by Charles S.
Zimmerman, Zimmerman Reed, Robert Randall Hopper, Zimmerman Reed &
Ronald S. Goldser, Zimmerman Reed
Julie K. Bakle, on behalf of herself, and all others similarly
situated, Consolidated Plaintiff, represented by Harris L. Pogust,
Cuneo, Pogust & Mason LLP
James Doyle, on behalf of himself and all others similarly
situated, Consolidated Plaintiff, represented by Andrew S.
Johnston, Minor & Johnston, P.C. & John S. Wilder, Sr., Wilder &
Sanders
Tammylee Willoz, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Patrick James
Mulligan, Law Office of Patrick J. Mulligan
Alabama Forest Products Industry Workmen's Compensation Self-
Insurer's Fund, on behalf of itself and a class of similarly
situated persons, firms, corporations, individuals, or entities,
Consolidated Plaintiff, represented by Andrew P. Campbell,
Campbell Waller & Poer LLC, J. Doyle Fuller, Law Office of J.
Doyle Fuller & Susan G. Copeland, Law Office of J. Doyle Fuller
Nancy Coleman, Consolidated Plaintiff, represented by Charles H.
Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
Angel Blount, Consolidated Plaintiff, represented by Charles H.
Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
Susan Mathey, Consolidated Plaintiff, represented by Charles H.
Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
Cliff Champagne, Consolidated Plaintiff, represented by Charles H.
Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
Paul Verzone, Consolidated Plaintiff, represented by Charles H.
Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
Herman Ward, Consolidated Plaintiff, represented by Charles H.
Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
James M. Harpring, Consolidated Plaintiff, represented by Charles
H. Dodson, Jr., Sims, Graddick & Dodson, P.C., Joseph D. Steadman,
Sims, Graddick & Dodson, P.C., Michael DeWitt Hickman, Taylor
Martino & Hedge, Steven A. Martino, Taylor, Martino & Hedge, P.C.
& W. Lloyd Copeland, Taylor, Martino & Hedge, P.C.
Allied Services Division Welfare Fund, on behalf of itself and all
others similarly situated, Consolidated Plaintiff, represented by
Art Sadin, Provost Umphrey Law Firm, LLP, Christopher Seeger,
Seeger, Weiss, LLP, George S. Bellas, Bellas & Wachowski, James R.
Dugan, II, The Dugan Law Firm & Robert A. Clifford, Clifford Law
Offices, P.C.
Linda Rizzo, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Rebecca Cunard,
Cunard Law Firm
Tracey Lynn Robichaux, individually and on behalf of all others
similarly situated, Consolidated Plaintiff, represented by Calvin
Clifford Fayard, Jr., Fayard & Honeycutt & Wanda Jean Edwards,
Fayard & Honeycutt
Susan Roby, Consolidated Plaintiff, represented by Calvin Clifford
Fayard, Jr., Fayard & Honeycutt &Wanda Jean Edwards, Fayard &
Honeycutt
Elaine Lucille Edwards, Consolidated Plaintiff, represented by
Calvin Clifford Fayard, Jr., Fayard & Honeycutt & Wanda Jean
Edwards, Fayard & Honeycutt
Barbara M. Strawitz, Consolidated Plaintiff, represented by Calvin
Clifford Fayard, Jr., Fayard & Honeycutt & Wanda Jean Edwards,
Fayard & Honeycutt
Steven Kail, Consolidated Plaintiff, represented by Aaron R.
Walner, Lawrence Walner & Associates, Ltd.,Felicia S. Ennis,
Robinson Brog Leinwand Greene Genovese & Gluck & Lawrence Walner,
Lawrence Walner & Associates, Ltd.
Nancy Todd, on behalf of themselves and all persons similarly
situated, Consolidated Plaintiff, represented by Felicia S. Ennis,
Robinson Brog Leinwand Greene Genovese & Gluck
Alaska Electrical Pension Fund, on behalf of itself and others
similarly situated, Consolidated Plaintiff, represented by Barry
A. Knopf, Cohn, Lifland, Pearlman, Herrmann & Knopf, Esqs.
Jerry Hollaway, on behalf of himself and all others similarly
situated, Consolidated Plaintiff, represented by Mark L. Edwards,
Stipe Law Firm & Tony W. Edwards
Leonard Olsen, individually and on behalf of others similarly
situated, Consolidated Plaintiff, represented by
Kathleen C. Chavez & Robert M. Foote, Foote, Meyers et al.
Randall J. Veys, individually and on behalf of all others
similarly situated, Consolidated Plaintiff, represented by Richard
D. Keys, Nelson, Keys & Keys, PC & Ronald S. Goldser, Zimmerman
Reed.
Betty Carter, Individually and on behalf of her mother and next
friend Maurine Featherstone, and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Mark K. Gray,
Gray, Weiss & White &Matthew L. White, Gray, Weiss & White.
Martha McGee, individually and on behalf of her mother and next
friend Maurine Feathermore, and on behalf of others similarly
situated, Consolidated Plaintiff, represented by Mark K. Gray,
Gray, Weiss & White & Matthew L. White, Gray, Weiss & White
Fred Reiss, Consolidated Plaintiff, represented by M. Scott
Montgomery, Law Office of M. Scott Montgomery, LLC
Rebecca Groves, on behalf of herself and all other simlarly in the
State of Ohio, Consolidated Plaintiff, represented by Charles
Horne Cooper, Jr., Cooper & Elliott, Mark Mathew Kitrick, Kitrick
& Lewis Co LPA,Mark D. Lewis, Kitrick & Lewis Co LPA & Rex H.
Elliott, Cooper & Elliott
Sean McMinn, on behalf of himself and all others simlarly
situated, Consolidated Plaintiff, represented by Chad Patrick
Hemmat, Anderson, Hemmat & Levine, LLC.
Assurant Health, Inc., a Wisconsin Corporation, Consolidated
Plaintiff, represented by David J. Novack, Budd Larner, PC, Ronald
J. Campione, Budd Larner, PC, W. Scott Simmer, Simmer Law Group
PLLC &Mary Ann Mullaney, The Axelrod Firm, PC.
Blue Cross and Blue Shield of Florida, Inc., a Florida Corporation
and its wholly owned subsidary, Health Options Inc. a Florida
Corporation, Consolidated Plaintiff, represented by David J.
Novack, Budd Larner, PC & Mary Ann Mullaney, The Axelrod Firm, PC
Blue Cross Blue Shield of Massachusetts, Inc., a Massachusetts
Corporation, Consolidated Plaintiff, represented by David J.
Novack, Budd Larner, PC & Mary Ann Mullaney, The Axelrod Firm, PC.
Blue Cross and Blue Shield of Michigan, and its wholly-owned
subsidiary, Blue Care Network, Inc. a Michigan Corporation,
Consolidated Plaintiff, represented by David J. Novack, Budd
Larner, PC & Mary Ann Mullaney, The Axelrod Firm, PC.
Blue Cross and Blue Shield of Minnesota, a Minnesota Corp. and a
subsidiary of Aware Integrated Inc. and it wholly-owned sub.
Comprehensive Care Services Inc. a Minnesota Corp., First Plan of
Minnesota, a Minnesota Corp., Atrium Health Plan, Inc. et. al.,
Consolidated Plaintiff, represented by David J. Novack, Budd
Larner, PC & Mary Ann Mullaney, The Axelrod Firm, PC.
Group Health Services of Oklahoma, Inc., an Oklahoma Corp. and its
wholly-owned subsidiary Group Health Maintenance Organization,
Inc. doing business as BlueClinics HMO, an Oklahoma Corp. d/b/a/
Blue Cross Blue Shield of Oklahoma, Consolidated Plaintiff,
represented by David J. Novack, Budd Larner, PC &Mary Ann
Mullaney, The Axelrod Firm, PC.
Carefirst, Inc., a Maryland Corp. and its wholly-owned
subsidiaries Carefirst of Maryland Inc., a Maryland Corp. Willse &
Assoc. Inc. a Maryland Corp., CFS Health Group Inc., a Maryland
Corp., Delmarva Health Plan, Inc., et. al., Consolidated
Plaintiff, represented by David J. Novack, Budd Larner, PC & Mary
Ann Mullaney, The Axelrod Firm, PC.
Excellus Health Plan, Inc., a New York Corp. and its wholly-owned
subsidiary Excellus Benefit Services Inc. a New York Corp.,
Federated Mutual Insurance Company, a Minnesota Mutual Company,
Health Care Service Corp. an Illnois Mutual Legal Reserve Co., et.
al., Consolidated Plaintiff, represented by David J. Novack, Budd
Larner, PC & Mary Ann Mullaney, The Axelrod Firm, PC.
Trustmark Insurance Company, a Delaware Corporation, Consolidated
Plaintiff, represented by David J. Novack, Budd Larner, PC & Mary
Ann Mullaney, The Axelrod Firm, PC.
Wellchoice, Inc., a Delaware Corp. and it wholly-owned subsidiary
Empire Healthchoice Assurance, Inc. a New York Corp., d/b/a Empire
Blue Cross Blue Shield and Empire Blue Cross, and its wholly-owned
subsidiaries et. al., Consolidated Plaintiff, represented by David
J. Novack, Budd Larner, PC & Mary Ann Mullaney, The Axelrod Firm,
PC.
Wellchoice Insurance of New Jersey, Inc., a new Jersey Corp. and a
wholly-owned subsidiary of Empire Healthchoice Assurance, Inc. a
New York Corp., Consolidated Plaintiff, represented by David J.
Novack, Budd Larner, PC & Mary Ann Mullaney, The Axelrod Firm, PC.
Rosalia Sumait, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Eva Potts, Consolidated Plaintiff, represented by Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Adam Sumait, Consolidated Plaintiff, represented by Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Matthew Sumait, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Manuel Sumait, Jr., Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Mercelino Sumait, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Eliza Sumait, individually and as successors in interest to the
estate of Manuel Sumait, Consolidated Plaintiff, represented by
Eleanor Louise Polimeni, Finkelstein & Partners, LLP
Charles Haynes, Jr., Consolidated Plaintiff, represented by Levi
Boone, III, Boone Law Firm PA
Rodger T. Pearson, Consolidated Plaintiff, represented by Levi
Boone, III, Boone Law Firm PA
Lestine Rogers, Consolidated Plaintiff, represented by Levi Boone,
III, Boone Law Firm PA
James H. Whitehouse, Sr., as Co-Administrator Ad Prosequendum of
the Estate of James H. Whitehouse, Jr., deceased, Consolidated
Plaintiff, represented by David E. Gross, Finkelstein & Partners,
LLP & Nancy Y. Morgan, Finkelstein & Partners, LLP
Linda A. Whitehouse, as Co-Administrator and Co-Administrator Ad
Prosequendum of the Estate of James H. Whitehouse Jr., deceased,
Consolidated Plaintiff, represented by David E. Gross, Finkelstein
& Partners, LLP & Nancy Y. Morgan, Finkelstein & Partners, LLP
Ramona Sumait, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Avrill C. Aronson, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Joy Dodson, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP
Tammy Dodson, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP
Dorothy Kern, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP &Eleanor Louise Polimeni,
Finkelstein & Partners, LLP
Betty Dees, Consolidated Plaintiff, represented by Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Theodore Populis, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP & Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Shirley Populis, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP &Eleanor Louise Polimeni,
Finkelstein & Partners, LLP
Kathleen Wilson, Individually and as Widow for the use and benefit
of herself and next of kin of Robert Wilson, deceased,
Consolidated Plaintiff, represented by Andrew G. Finkelstein,
Finkelstein & Partners, LLP & Eleanor Louise Polimeni, Finkelstein
& Partners, LLP
William Montgomery, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP & Mary Ellen Wright,
Finkelstein & Partners LLP
Michael Mendoza, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Sidney Brown, as proposed administrator of the estate of Judith A
Brown, deceased, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Steven Belbruno, Consolidated Plaintiff, represented by Nancy Y.
Morgan, Finkelstein & Partners, LLP
Frieda Burroughs, as Executor of the Estate of Emory M. Burroughs,
deceased, Consolidated Plaintiff, represented by Silas G. Cross,
Jr., Cross, Poole & Smith, LLC
Christine Gambardello, Consolidated Plaintiff, represented by
Harris L. Pogust, Cuneo, Pogust & Mason LLP
Angelo Gambardello, H/W, Consolidated Plaintiff, represented by
Harris L. Pogust, Cuneo, Pogust & Mason LLP
Monica Almeida, Consolidated Plaintiff, represented by Marc A.
Saggese, Saggese & Associates
Irene Barlow, Consolidated Plaintiff, represented by Archie Carl
Pierce, Wright & Greenhill & Jack W. London, Jack W. London &
Associates P.C.
Brenda Cunningham, Administrator of the Estate of Charles
Cunningham and individually and on behalf of the heirs at law of
Charles Cunningham, deceased estate of Charles Cunningham,
Consolidated Plaintiff, represented by Gene E. Schroer, Gene E.
Schroer, Attorney at Law & Neil A. Dean, Rice, Dean & Kelsey LLC.
Steven Alexander, Consolidated Plaintiff, represented by James E.
Girards, Girards Law Firm, Mike Ramey, Girards Law Firm & Samuel
J. DeMaio, Girards Law Firm
Edward Reott, Consolidated Plaintiff, represented by Alexander
Jamiolkowski, Egan & Jamiolkowski
Carol Reott, Consolidated Plaintiff, represented by Alexander
Jamiolkowski, Egan & Jamiolkowski
Ruth Smith, Individually and as Widow for the use and benefit of
herself and the next of kin of Richard Smith, deceased,
Consolidated Plaintiff, represented by Charles F. Barrett, Charles
Barrett PC
Krystie Dane, individually and as personal representative of the
Estate of Decedant, Consolidated Plaintiff, represented by Seth S.
Webb, Brown and Crouppen PC
Judith J. Browne, as surviving spouse and as successor in interest
of plaintiff's decedent, Gerald William Browne, Consolidated
Plaintiff, represented by Andrew G. Finkelstein, Finkelstein &
Partners, LLP &Eleanor Louise Polimeni, Finkelstein & Partners,
LLP
Paul Marzolo, as proposed administrator of the Estate of Christine
Marzolo, deceased, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP.
Ronald Russell, Consolidated Plaintiff, represented by David
Hughes Harris, Goldstein Buckley Cechman Rice & Purtz P.A. &
Kenneth G. Gilman, Gilman and Pastor, LLP
April Davis, Consolidated Plaintiff, represented by Russell A.
Wood, Wood Law Office PA
Jose Magdaleno Fonseca, Individually and as Representative of the
Estate of Maria del Socorro Fonseca, Deceased, Consolidated
Plaintiff, represented by Aizar J Karam, Jr. & Ricardo Antonio
Garcia, Garcia & Karam LLP
Jose Artemio Fonseca, Consolidated Plaintiff, represented by Aizar
J Karam, Jr. & Ricardo Antonio Garcia, Garcia & Karam LLP
Maria Guadalupe Fonseca, Consolidated Plaintiff, represented by
Aizar J Karam, Jr., Lino Humberto Ochoa, Garcia & Karam LLP &
Ricardo Antonio Garcia, Garcia & Karam LLP
Martin Fonseca, Consolidated Plaintiff, represented by Aizar J
Karam, Jr. & Ricardo Antonio Garcia, Garcia & Karam LLP
Carlos Fonseca, Consolidated Plaintiff, represented by Aizar J
Karam, Jr. & Ricardo Antonio Garcia, Garcia & Karam LLP
Donna Sims, Consolidated Plaintiff, represented by Rainey Cawthon
Booth, Littlepage & Booth
John Owens, Consolidated Plaintiff, represented by Rainey Cawthon
Booth, Littlepage & Booth
Rosemary Smith, Consolidated Plaintiff, represented by Donald S.
Edgar, Law Office of Donald S. Edgar
Ricky E. Smith, Consolidated Plaintiff, represented by Donald S.
Edgar, Law Office of Donald S. Edgar
Charles K. Smith, Consolidated Plaintiff, represented by Donald S.
Edgar, Law Office of Donald S. Edgar
Donna Joyce Adkins, Consolidated Plaintiff, represented by Thomas
F. Basile, The Calwell Practice & W. Stuart Calwell, The Calwell
Practice
Donald Walker, Deceased, Consolidated Plaintiff, represented by
Thomas F. Basile, The Calwell Practice &W. Stuart Calwell, The
Calwell Practice
Judy Morris, Consolidated Plaintiff, represented by Daniel M.
Cohen, Cuneo Gilbert & LaDuca
Earl Richard Cook, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Sharon Burke, Consolidated Plaintiff, represented by Paul F.
Macri, Berman & Simmons
Jennifer Flanders, Consolidated Plaintiff, represented by Andrew
G. Finkelstein, Finkelstein & Partners, LLP, Derek T. Braslow,
Pogust & Braslow LLC, Gale D. Pearson, Pearson, Randall &
Schumacher, PA &Harris L. Pogust, Cuneo, Pogust & Mason LL
Elroy L. Johnson, Consolidated Plaintiff, represented by Peter A.
Miller, Law Office of Peter Miller
Barbara McAnnally, Individually and as Administratrix of the
estate of Van McAnally, deceased other Van McAnally, Consolidated
Plaintiff, represented by Peter A. Miller, Law Office of Peter
Miller
Betty L. Stiltman, Consolidated Plaintiff, represented by Peter A.
Miller, Law Office of Peter Miller
Jeffrey Taggart, Consolidated Plaintiff, represented by Peter A.
Miller, Law Office of Peter Miller
Betty Thurmond, Consolidated Plaintiff, Pro Se
Betty Thurmond, Consolidated Plaintiff, represented by Peter A.
Miller, Law Office of Peter Miller
Howard Ellis, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP,Derek T. Braslow, Pogust
& Braslow LLC, Gale D. Pearson, Pearson, Randall & Schumacher, PA
& Harris L. Pogust, Cuneo, Pogust & Mason LLP
Anne Ellis, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP, Derek T. Braslow, Pogust
& Braslow LLC, Gale D. Pearson, Pearson, Randall & Schumacher, PA
& Harris L. Pogust, Cuneo, Pogust & Mason LLP
Sandra M. Logan, Consolidated Plaintiff, Pro Se
Sandra M. Logan, Consolidated Plaintiff, represented by Glen J.
Lerner, Law Offices of Glen J. Lerner & Associates
Monica L. Saenz, Consolidated Plaintiff, Pro Se
Monica L. Saenz, Consolidated Plaintiff, represented by Glen J.
Lerner, Law Offices of Glen J. Lerner & Associates
John W. Wilhelm, Consolidated Plaintiff, Pro Se
John W. Wilhelm, Consolidated Plaintiff, represented by Glen J.
Lerner, Law Offices of Glen J. Lerner & Associates
Christine M. Dozier, Consolidated Plaintiff, represented by Julie
Christine Parker, Sacks & Weston
Mary A. Lueker, Consolidated Plaintiff, represented by Julie
Christine Parker, Sacks & Weston
Freddie B. Lytle, Consolidated Plaintiff, Pro Se
Freddie B. Lytle, Consolidated Plaintiff, represented by Julie
Christine Parker, Sacks & Weston
Sherry Pastine, Consolidated Plaintiff, represented by Julie
Christine Parker, Sacks & Weston
Caryl A. Taylor, Consolidated Plaintiff, Pro Se
Caryl A. Taylor, Consolidated Plaintiff, represented by Julie
Christine Parker, Sacks & Weston
Helen Wine, Consolidated Plaintiff, represented by Julie Christine
Parker, Sacks & Weston
Lester C. Carr, Consolidated Plaintiff, Pro Se
Lester C. Carr, Consolidated Plaintiff, represented by William
Arthur Green, William Arthur Green Law Office
George B. Lemacks, Consolidated Plaintiff, Pro Se
George B. Lemacks, Consolidated Plaintiff, represented by William
Arthur Green, William Arthur Green Law Office
Earnestine Parker, Consolidated Plaintiff, Pro Se
Earnestine Parker, Consolidated Plaintiff, represented by William
Arthur Green, William Arthur Green Law Office
Mary Pittman, Consolidated Plaintiff, represented by William
Arthur Green, William Arthur Green Law Office
Robert N. St Hilaire, Consolidated Plaintiff, represented by
William Arthur Green, William Arthur Green Law Office
Teamsters Health & Welfare Fund of Philadelphia and Vicinity,
Consolidated Plaintiff, represented byJeffrey L. Kodroff, Spector
& Roseman, Max D. Stern, Stern, Shapiro, Weissberg & Garin &
Theodore M. Lieverman, Spector Roseman & Kodroff, P.C.
The Guardian Life Insurance Company of America, Consolidated
Plaintiff, represented by Joel Z. Eigerman, Joel Z. Eigerman,
Attorney-at-Law, Justine J. Kaiser, Cohen, Milstein, Hausfeld &
Toll, P.L.L.C., Linda P. Nussbaum, Grant & Eisenhofer PA, Mark D.
Fisher, Rawlings & Associates, P.L.L.C., Mark S. Sandmann,
Rawlings & Associates, Pavel Bespalko & Thomas G. Shapiro, Shapiro
Haber & Urmy LLP
Troy Chappell, as Adminitrator of the Estate of Glen Sue Chappell,
Consolidated Plaintiff, represented byTimothy C Davis, Heninger,
Garrison & Davis, LLC, W. Lewis Garrison, Jr., Heninger, Garrison
& Davis, LLC & William L. Bross, Heninger, Garrison & Davis, LLC
Melissa Amato, Consolidated Plaintiff, represented by Harris L.
Pogust, Cuneo, Pogust & Mason LLP
Fazila Mustafa, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP &Eleanor Louise Polimeni,
Finkelstein & Partners, LLP
Mohammad Mustafa, Consolidated Plaintiff, represented by Eleanor
Louise Polimeni, Finkelstein & Partners, LLP
Deanna Lisa Putnam, Consolidated Plaintiff, represented by Peter
J. Stubbs, Law Offices of Peter J. Stubbs
Brent D. Young, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP,Hal Jon Kleinman,
Schiffrin & Barroway, LLP & Tobias Millrood, Pogust Braslow &
Millrood, LLC
Jodie Young, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP, Hal Jon Kleinman,
Schiffrin & Barroway, LLP & Tobias Millrood, Pogust Braslow &
Millrood, LLC
Jamie Fenelon, as proposed Administratrix of the Estate of Beth
Moore, Deceased, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP & Eleanor Louise
Polimeni, Finkelstein & Partners, LLP
Christine Manfredi, Consolidated Plaintiff, represented by Corrie
Johnson Yackulic, Schroeter, Goldmark & Bender & Kristin M.
Houser, Schroeter, Goldmark & Bender
Anthony Charles Manfredi, Consolidated Plaintiff, represented by
Corrie Johnson Yackulic, Schroeter, Goldmark & Bender & Kristin M.
Houser, Schroeter, Goldmark & Bender
Daniel Johnson, Consolidated Plaintiff, Pro Se
Daniel Johnson, Consolidated Plaintiff, represented by Daniel M.
Cohen, Cuneo Gilbert & LaDuca
Susan Johnson, Consolidated Plaintiff, represented by Daniel M.
Cohen, Cuneo Gilbert & LaDuca
Early Cox, Consolidated Plaintiff, represented by Daniel M. Cohen,
Cuneo Gilbert & LaDuca, Derek T. Braslow, Pogust & Braslow LLC,
Harris L. Pogust, Cuneo, Pogust & Mason LLP, Robert N Wilkey,
Pogust, Braslow Law Firm & T. Matthew Leckman, Pogust, Braslow Law
Firm
Sean Hogge, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP &Gale D. Pearson,
Pearson, Randall & Schumacher, PA
Dorothy Beckworth, Consolidated Plaintiff, represented by Daniel
M. Cohen, Cuneo Gilbert & LaDuca
Robert Beckworth, Consolidated Plaintiff, represented by Daniel M.
Cohen, Cuneo Gilbert & LaDuca
Hilda Bonner, Individually and as Personal Administrator of the
estate of Edwin L. Bonner, Jr. deceased, Consolidated Plaintiff,
represented by James T. Dulin, Dulin & Dulin
Steven Michielsen, Consolidated Plaintiff, represented by Andrew
G. Finkelstein, Finkelstein & Partners, LLP & Charles F. Barrett,
Charles Barrett PC
Jennifer De La Garza, Consolidated Plaintiff, represented by
Gregory W. Turman, Snapka Turman & Waterhouse LLP, Kathryn Snapka,
The Snapka Law Firm & Richard Waterhouse, Snapka, Turman &
Waterhouse
Glenn Armbruster, Consolidated Plaintiff, represented by Seth S.
Webb, Brown and Crouppen PC
Debora L. Isaacs, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP, Gale D. Pearson,
Pearson, Randall & Schumacher, PA & Stephen J. Randall, Pearson,
Randall & Schumacher
Gloria Telles, Consolidated Plaintiff, represented by Walter L.
Boyaki, Miranda & Boyaki
Donald E. Milligan, Jr., Consolidated Plaintiff, represented by
Andrew G. Finkelstein, Finkelstein & Partners, LLP, Gale D.
Pearson, Pearson, Randall & Schumacher, PA & Stephen J. Randall,
Pearson, Randall & Schumacher
Theresa Milligan, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP,Gale D. Pearson, Pearson,
Randall & Schumacher, PA & Stephen J. Randall, Pearson, Randall &
Schumacher
Cynthia Ulett Lynch, Consolidated Plaintiff, Pro Se
Arthur Reilly, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP,Gale D. Pearson, Pearson,
Randall & Schumacher, PA & Stephen J. Randall, Pearson, Randall &
Schumacher
Janice Vinyard, Consolidated Plaintiff, represented by Neil D.
Overholtz, Aylstock, Witkin & Sasser, PLC.
Keith Edwards, Consolidated Plaintiff, Pro Se
Grace Sanutti, Consolidated Plaintiff, represented by Christopher
Brooks Dellmuth
Jason Stadler, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP &Gale D. Pearson,
Pearson, Randall & Schumacher, PA
Ronald Bulger, Sr., as Administratrix of the Estates of Susan
Bulger, Deceased, Consolidated Plaintiff, represented by Andrew G.
Finkelstein, Finkelstein & Partners, LLP, Kenneth G. Gilman,
Gilman and Pastor, LLP & Eleanor Louise Polimeni, Finkelstein &
Partners, LLP
Timothy Bridges, individually and on behalf of himself and all
others similarly situated, Consolidated Plaintiff, represented by
Daniel D'Angelo, Computershare & Robert J. Bonsignore, Bonsignore
& Brewer
Alfred Morabito, Individually and on behalf of all others
similarly situated, Consolidated Plaintiff, represented by Daniel
D'Angelo, Computershare & Robert J. Bonsignore, Bonsignore &
Brewer
James Morrow, Jr., Consolidated Plaintiff, represented by A. E.
Harlow, Jr., Harlow & Harlow
Teresa Drinkwine, Individually and as Trustee for the Next of Kin
of Michael Drinkwine, decendent, Consolidated Plaintiff,
represented by Andrew G. Finkelstein, Finkelstein & Partners, LLP,
Gale D. Pearson, Pearson, Randall & Schumacher, PA & Stephen J.
Randall, Pearson, Randall & Schumacher
Ann Santos, 10-11205, Consolidated Plaintiff, represented by Patty
Ann Trantham, Robert L. Salim, APLC & Christopher R. LoPalo,
Napoli Bern Ripka Shkolnik & Associates, LLP
American Home Assurance Company, Intervenor Plaintiff, represented
by Paul S. Rainville, Hassett & Donnelly, P.C. & Tara E. Lynch,
Hassett & Donnelly, P.C.
Bauda VL Sutton, Plaintiff, represented by Gordon Ball, Ball &
Scott
Assurant Plaintiffs, Plaintiff, represented by Thomas M. Greene,
Greene LLP, W. Scott Simmer, Simmer Law Group PLLC & Mary Ann
Mullaney, The Axelrod Firm, PC
Third Party Payors, Plaintiff, represented by Craig L. Hymowitz,
Blank Rome LLP, Thomas J. Poulin, Simmer Law Group, PLLC & W.
Scott Simmer, Simmer Law Group PLLC
Members of the Class Plaintiffs Steering Committee, Pure Sales and
Marketing, Plaintiff, represented byBarry Himmelstein, Lieff
Cabraser Heimann & Bernstein, Daniel E. Becnel, Jr., Becnel law
Firm, Don Barrett, Barrett Law Office, James R. Dugan, II, The
Dugan Law Firm, Thomas M. Greene, Greene LLP,Thomas M. Sobol,
Hagens Berman Sobol Shapiro LLP, Eleanor Louise Polimeni,
Finkelstein & Partners, LLP, Harris L. Pogust, Cuneo, Pogust &
Mason LLP & Richard E. Shevitz, Cohen & Malad LLP
Members of the Plaintiffs Non-Class Steering Committee, Plaintiff,
represented by Linda P. Nussbaum, Grant & Eisenhofer PA, Richard
Bemporad, Lowey Dannenberg Bemborad & Selinger, P.C., Barry
Himmelstein, Lieff Cabraser Heimann & Bernstein & Richard E.
Shevitz, Cohen & Malad LLP
Members of the Plaintiffs Product Liability Steering Committee,
Personal Injury and Product Liability, Plaintiff, represented by
Eleanor Louise Polimeni, Finkelstein & Partners, LLP, Keith L.
Altman, Finkelstein & Partners, LLP, Kenneth L. Oliver,
Finkelstein & Partners, LLP, Harris L. Pogust, Cuneo, Pogust &
Mason LLP & Jack W. London, Jack W. London & Associates P.C..
Shirley Levin, Plaintiff, represented by Jonathan S. Coleman,
Johnson, Pope, Okor, Ruppel & Burns LLP
Ana Medero, Plaintiff, represented by Jonathan S. Coleman,
Johnson, Pope, Okor, Ruppel & Burns LLP.
Product Liability Plaintiffs Liason Counsel, Plaintiff,
represented by Eleanor Louise Polimeni, Finkelstein & Partners,
LLP, Marshall P. Richer, Finkelstein & Partners & Jack W. London,
Jack W. London & Associates P.C.
Leslie Neilson, Plaintiff, represented by Andrew G. Finkelstein,
Finkelstein & Partners, LLP, Anne MacArthur, Habush, Habush &
Rottier, S.C. & Harris L. Pogust, Cuneo, Pogust & Mason LLP
Sales and Marketing Plaintiffs, Plaintiff, represented by Linda P.
Nussbaum, Grant & Eisenhofer PA &Thomas M. Sobol, Hagens Berman
Sobol Shapiro LLP
Coordinated Plaintiffs, Plaintiff, represented by Linda P.
Nussbaum, Grant & Eisenhofer PA
Nicolette Crone, (09-11694), Plaintiff, represented by Donald S.
Edgar, Law Office of Donald S. Edgar &Jeremy R. Fietz, Edgar Law
Firm
Benjamin Jonathan Crone, Individually and as successors in
interest to the Estate of Rick Arthur Crone (09-11694), Plaintiff,
represented by Donald S. Edgar, Law Office of Donald S. Edgar &
Jeremy R. Fietz, Edgar Law Firm
Harden Manufacturing Corporation, Plaintiff, represented by Thomas
M. Greene, Greene LLP & Thomas M. Sobol, Hagens Berman Sobol
Shapiro LLP
Cline, Davis & Mann, Inc., Consolidated Defendant, represented by
John A. Boyle, Marino & Associates,Neal H. Klausner, Paul, Weiss,
Rifkind, Wharton & Garrison & Paul F. Corcoran, Davis & GIlbert
LLP
Mary Lou Lienerth, on behalf of herself and all others similarly
situated, Consolidated Defendant, represented by Charles F.
Barrett, Charles Barrett PC, David C. Landever, Weisman, Kennedy &
Berris,Don Barrett, Barrett Law Office & R. Eric Kennedy, Weisman,
Kennedy & Berris
Eckerd Corporation, Consolidated Defendant, represented by Asa
Groves, III, Groves and Verona PA
Andrew W. Wallace, Consolidated Defendant, represented by Kenneth
Joseph Ferguson, Clark Thomas & Winters
Marcos A. Tovar, Consolidated Defendant, represented by Kenneth
Joseph Ferguson, Clark Thomas & Winters, Susan E. Burnett, Clark
Thomas & Winters & Leslie Anne Benitez, Clark Thomas & Winters
Pfizer, Inc., Consolidated Defendant, represented by ANDREW
MUSCATO, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Andrew C.S.
Efaw, Wheeler Trigg & Kennedy, Andrew H. Myers, Wheeler Trigg
O'Donnell LLP, Brigette L. Mitchell, Shook, Hardy & Bacon LLP,
Catherine B. Stevens, Skadden, Arps, Slate, Meagher & Flom, LLP,
Cedric E. Evans, Clark, Thomas & Winters, Christopher J. Roche,
Davis Polk & Wardwell, Daniel F. Schubert, Davis Polk & Wardwell,
David Weinraub, Quinn Emanuel Urquhart & Sullivan, LLP, Douglas B
Maddock, JR, Shook Hardy and Bacon, Ericka L. Kleiman, Shook,
Hardy and Bacon, LLP, Evan W. Davis, Dechert LLP, J. Andrew
Hutton, Clark Thomas, James E. Hooper, Wheeler Trigg O'Donnell,
LLP, Jeffrey M. Wakefield, Flaherty Sensabaugh & Bonasso, Joseph
M. Price, Faegre Baker Daniels LLP, Katherine A. Lyon, Skadden,
Arps, Slate, Meagher & Flom, LLP, Mark S. Cheffo, Quinn Emanuel
Urquhart & Sullivan, LLP, Raoul D. Kennedy, Skadden, Arps, Slate,
Meagher, & Flom LLP,Richard M. Barnes, Goodell DeVries Leech &
Dann, LLP, Scott William Anderson, Shook Hardy & Bacon, L.L.P,
Steven J Ellison, Faegre & Benson LLP, Steven F. Napolitano,
Skadden, Arps, Slate, Meagher & Flom, LLP, Thomas E. Fox, Skadden
Arps Slate Meagher & Flom LLP, William A. Alford, III, SHOOK HARDY
& BACON, William S. Ohlemeyer, Boies, Schiller & Flexner LLP,
Charles P. Goodell, Jr., Goodell, DeVries, Leech & Dann, LLP,
Bonnie J. Beaven, Goodell, Devries, Leech & Dann, LLP, Cheryl Zak
Lardieri, Goodell, DeVries, Leech & Dann, LLP, Daniel E. Holloway,
Boies Schiller & Flexner, LLP, Edwin J. Kilpela, Jr., Wheeler
Trigg O'Donnell, LLP, Geoffrey M. Wyatt, Skadden, Arps, Slate,
Meagher & Flom LLP,Jack Wilson, Boies Schiller & Flexner, LLP,
James A. Frederick, Goodell, DeVries, Leech & Dann, LLP,Jessica D.
Miller, Skadden, Arps, Slate, Meagher & Flom LLP, John H. Beisner,
Skadden Arps Slate Meagher & Flom, Lark A. Campbell, Gordon &
Rees, Lisa Nousek, Boies, Schiller & Flexner LLP, Mary Lou
Strange, Skadden Arps et al, Matthew E. Johnson, Wheeler Trigg O'
Donnell LLP, Mauricio A. Gonzalez, Boies Schiller & Flexner, LLP,
Michael A. Pichini, Goodell, DeVries, Leech and Dann, LLP, Michael
J. Wasicko, Goodell, DeVries, Leech & Dann, LLC, Michele R.
Kendus, Goodell, DeVries, Leech and Dann, LLP, Sean G. Saxon,
Wheeler Trigg Kennedy LLP, Sheila L. Birnbaum, Skadden Arps Slate
Meagher & Flom LLP, Stephanie A. Reedy, Wheeler Trigg O'Donnell
LLP, Stephen E. Oertle, Wheeler Trigg O'Donnell LLP & Thomas G
Wolfe, Phillips Murrah PC
John Barrett, Consolidated Defendant, represented by Gareth W.
Notis, Morrison, Mahoney, & Miller LLP
Hertz Corporation, Consolidated Defendant, represented by Gareth
W. Notis, Morrison, Mahoney, & Miller LLP
Teva Pharmaceuticals USA, Inc., Consolidated Defendant,
represented by Adam S. Tolin, Dechert LLp,Alice S. Johnston,
Obermayer, Rebmann, Maxwell & Hippel, LLC & Chad W. Higgins,
Goodwin Procter LLP
David Reynolds Longmire, Consolidated Defendant, represented by
Bruce F. Rogers, Bainbridge, Mims, Rogers & Smith, Charles Keith
Hamilton, Bainbridge, Mims, Rogers & Smith & Paul W. Shaw, Verrill
Dana, LLP
Actavis Inc., Consolidated Defendant, represented by Lisa M
Norrett, McKenna, Long & Aldridge, LLP,Meghan Kinsey-Smith,
McKenna Long & Aldridge LLP, Ray M. Aragon, McKenna Long &
Aldridge LLP &Steven A. Stadtmauer, Harris Beach, PLLC.
Actavis Elizabeth LLC, Consolidated Defendant, represented by Lisa
M Norrett, McKenna, Long & Aldridge, LLP, Meghan Kinsey-Smith,
McKenna Long & Aldridge LLP, Ray M. Aragon, McKenna Long &
Aldridge LLP & Steven A. Stadtmauer, Harris Beach, PLLC
Purepac Pharmaceutical Co., Consolidated Defendant, represented by
Lisa M Norrett, McKenna, Long & Aldridge, LLP, Meghan Kinsey-
Smith, McKenna Long & Aldridge LLP, Ray M. Aragon, McKenna Long &
Aldridge LLP & Steven A. Stadtmauer, Harris Beach, PLLC
G.D. Searle, LLC, Consolidated Defendant, represented by J. Andrew
Hutton, Clark Thomas, Kelly R. Kimbrough, Clark Thomas & Winters,
Kenneth Joseph Ferguson, Clark Thomas & Winters & Leslie Anne
Benitez, Clark Thomas & Winters
Ivax Pharmaceuticals, Inc., Consolidated Defendant, represented by
Chad W. Higgins, Goodwin Procter LLP
Sandoz, Inc., Consolidated Defendant, represented by Charles E.
Dorkey, III, McKenna, Long & Aldridge &Timothy James Plunkett,
McKenna, Long & Aldridge
Novartis Pharmaceuticals Coporation, Consolidated Defendant,
represented by Charles E. Dorkey, III, McKenna, Long & Aldridge &
Timothy James Plunkett, McKenna, Long & Aldridge
Finkelstein & Partners, LLP, Consolidated Defendant, represented
by Eleanor Louise Polimeni, Finkelstein & Partners, LLP & Ricardo
Antonio Garcia, Garcia & Karam LLP
Glenmark Generics Inc., USA, Consolidated Defendant, represented
by Amy L. Nilsen, Connelly Baker Baker LLP & Earnest W. Wotring,
Connelly Baker Wotring LLP
Oklahoma Department of Corrections, in their individual capacities
(10-11310), Consolidated Defendant, represented by M Daniel
Weitman, Attorney General's Ofc-OKC
Pfizer, Inc., Defendant, represented by Aaron D. Van Oort, Faegre
& Benson LLP, Adam S. Tolin, Dechert LLp, Andrew C.S. Efaw,
Wheeler Trigg & Kennedy, Andrew Burns Johnson, Bradley, Arant,
Rose & White,Andrew H. Myers, Wheeler Trigg O'Donnell LLP, Brian
A. Wahl, Bradley Arant Boult Cummings LLP,Brigette L. Mitchell,
Shook, Hardy & Bacon LLP, Catherine Marie Valerio Barrad, Sidley
Austin, LLP,Catherine B. Stevens, Skadden, Arps, Slate, Meagher &
Flom, LLP, Christopher J. Roche, Davis Polk & Wardwell, Craig
Ruvel May, Wheeler Trigg Kennedy LLP, Daniel F. Schubert, Davis
Polk & Wardwell,Darolyn Yoshie Hamada, Shook, Hardy & Bacon, David
Weinraub, Quinn Emanuel Urquhart & Sullivan, LLP, Deborah L.
MacGregor, Davis Polk & Wardwell, Ezra D. Rosenberg, Dechert LLP,
Fred M. (Tripp) Haston, III, Bradley, Arant, Rose & White LLP,
James W. Gewin, Bradley, Arant, Rose & White, James E. Hooper,
Wheeler Trigg O'Donnell, LLP, James P. Muehlberger, Shook, Hardy &
Bacon LLP, James B. Murphy, Jr., Shook Hardy & Bacon, L.L.P.,
James P. Rouhandeh, Davis Polk & Wardwell, Jeffrey R. Lilly, Clark
Thomas & Winters, John E. Goodman, Bradley, Arant, Rose & White,
John P. Mandler, Faegre & Benson, LLP, Katherine Armstrong, Quinn
Emanuel Urquhart & Sullivan, LLP, Katherine A. Lyon, Skadden,
Arps, Slate, Meagher & Flom, LLP, Kenneth Joseph Ferguson, Clark
Thomas & Winters, Kimberly H. Clancy, Sidley Austin Brown & Wood
LLP, Leslie Anne Benitez, Clark Thomas & Winters, Lindsay R.
Skibell, Davis Polk & Wardwell, Lori C. McGroder, Lori R. Schultz,
Shook, Hardy & Bacon, L.L.P., Mark S. Cheffo, Quinn Emanuel
Urquhart & Sullivan, LLP, Nahal Kazemi, Davis Polk & Wardwell,
Nicholas Patrick Mizell, Shook, Hardy, & Bacon LLP, Paul S.
Mishkin, Davis Polk & Wardwell, Philip Henry Butler, Bradley,
Arant, Rose & White LLP, Raoul D. Kennedy, Skadden, Arps, Slate,
Meagher, & Flom LLP, Richard M. Barnes, Goodell DeVries Leech &
Dann, LLP, Scott W. Sayler, Shook Hardy & Bacon LLP, Steven F.
Napolitano, Skadden, Arps, Slate, Meagher & Flom, LLP, Susan E.
Burnett, Clark Thomas & Winters,Thomas E. Fox, Skadden Arps Slate
Meagher & Flom LLP, Thomas P. Hanrahan, Sidley & Austin, Thomas
Kane, Dechert LLP, William S. Ohlemeyer, Boies, Schiller & Flexner
LLP, Carter H. Burwell, Davis Polk & Wardwell, Edmund Polubinski,
III, Davis, Polk & Wardwell, Neal A. Potischman, Davis Polk &
Wardwell,Bonnie J. Beaven, Goodell, Devries, Leech & Dann, LLP,
Cheryl Zak Lardieri, Goodell, DeVries, Leech & Dann, LLP, Daniel
E. Holloway, Boies Schiller & Flexner, LLP, Edwin J. Kilpela, Jr.,
Wheeler Trigg O'Donnell, LLP, Geoffrey M. Wyatt, Skadden, Arps,
Slate, Meagher & Flom LLP, Jack Wilson, Boies Schiller & Flexner,
LLP, James A. Frederick, Goodell, DeVries, Leech & Dann, LLP,
Jessica D. Miller, Skadden, Arps, Slate, Meagher & Flom LLP, John
H. Beisner, Skadden Arps Slate Meagher & Flom, Lark A. Campbell,
Gordon & Rees, Lisa Nousek, Boies, Schiller & Flexner LLP, Mary
Lou Strange, Skadden Arps et al, Matthew E. Johnson, Wheeler Trigg
O' Donnell LLP, Mauricio A. Gonzalez, Boies Schiller & Flexner,
LLP, Michael A. Pichini, Goodell, DeVries, Leech and Dann, LLP,
Michael J. Wasicko, Goodell, DeVries, Leech & Dann, LLC, Michele
R. Kendus, Goodell, DeVries, Leech and Dann, LLP, Sean G. Saxon,
Wheeler Trigg Kennedy LLP, Sheila L. Birnbaum, Skadden Arps Slate
Meagher & Flom LLP,Stephanie A. Reedy, Wheeler Trigg O'Donnell LLP
& Stephen E. Oertle, Wheeler Trigg O'Donnell LLP
Parke-Davis, a division of Warner-Lambert Company, Defendant,
represented by Adam S. Tolin, Dechert LLp, Andrew H. Myers,
Wheeler Trigg O'Donnell LLP, Brigette L. Mitchell, Shook, Hardy &
Bacon LLP,Catherine Marie Valerio Barrad, Sidley Austin, LLP,
Christopher J. Roche, Davis Polk & Wardwell, Daniel F. Schubert,
Davis Polk & Wardwell, David Weinraub, Quinn Emanuel Urquhart &
Sullivan, LLP, Deborah L. MacGregor, Davis Polk Wardwell, Douglas
B Maddock, JR, Shook Hardy and Bacon, Ericka L. Kleiman, Shook,
Hardy and Bacon, LLP, Erik March Zissu, Davis, Polk & Wardwell,
Evan W. Davis, Dechert LLP,Ezra D. Rosenberg, Dechert LLP, James
E. Hooper, Wheeler Trigg O'Donnell, LLP, James P. Muehlberger,
Shook, Hardy & Bacon LLP, James P. Rouhandeh, Davis Polk &
Wardwell, Jeffrey R. Lilly, Clark Thomas & Winters, Jeffrey M.
Wakefield, Flaherty Sensabaugh & Bonasso, John E. Goodman,
Bradley, Arant, Rose & White, John P. Mandler, Faegre & Benson,
LLP, Kenneth Joseph Ferguson, Clark Thomas & Winters,Kimberly H.
Clancy, Sidley Austin Brown & Wood LLP, Leslie Anne Benitez, Clark
Thomas & Winters,Lindsay R. Skibell, Davis Polk & Wardwell, Lori
C. McGroder, Lori R. Schultz, Shook, Hardy & Bacon, L.L.P., Mark
S. Cheffo, Quinn Emanuel Urquhart & Sullivan, LLP, Nahal Kazemi,
Davis Polk & Wardwell,Nicholas Patrick Mizell, Shook, Hardy, &
Bacon LLP, Paul S. Mishkin, Davis Polk & Wardwell, Raoul D.
Kennedy, Skadden, Arps, Slate, Meagher, & Flom LLP, Richard M.
Barnes, Goodell DeVries Leech & Dann, LLP, Scott William Anderson,
Shook Hardy & Bacon, L.L.P, Scott W. Sayler, Shook Hardy & Bacon
LLP, Steven J Ellison, Faegre & Benson LLP, Susan E. Burnett,
Clark Thomas & Winters, Thomas P. Hanrahan, Sidley & Austin,
Thomas Kane, Dechert LLP, William A. Alford, III, SHOOK HARDY &
BACON,William S. Ohlemeyer, Boies, Schiller & Flexner LLP, Charles
P. Goodell, Jr., Goodell, DeVries, Leech & Dann, LLP, Lisa M.
Ropple, Ropes & Gray LLP, Cheryl Zak Lardieri, Goodell, DeVries,
Leech & Dann, LLP,Daniel E. Holloway, Boies Schiller & Flexner,
LLP, Edwin J. Kilpela, Jr., Wheeler Trigg O'Donnell, LLP, Jack
Wilson, Boies Schiller & Flexner, LLP, James A. Frederick,
Goodell, DeVries, Leech & Dann, LLP, Lark A. Campbell, Gordon &
Rees, Lisa Nousek, Boies, Schiller & Flexner LLP, Mary Lou
Strange, Skadden Arps et al, Matthew E. Johnson, Wheeler Trigg O'
Donnell LLP, Mauricio A. Gonzalez, Boies Schiller & Flexner, LLP,
Michael J. Wasicko, Goodell, DeVries, Leech & Dann, LLC, Michele
R. Kendus, Goodell, DeVries, Leech and Dann, LLP, Sean G. Saxon,
Wheeler Trigg Kennedy LLP, Sheila L. Birnbaum, Skadden Arps Slate
Meagher & Flom LLP, Stephanie A. Reedy, Wheeler Trigg O'Donnell
LLP & Stephen E. Oertle, Wheeler Trigg O'Donnell LLP
Lodewijk J.R. DeVink, Defendant, represented by Carolyn C. Wu,
Milbank, Tweed, Hadley & McCloy LLP,Scott A. Edelman, Milbank,
Tweed, Hadley & McCloy LLP, Daniel J. Dwyer, Murphy & King, PC &
Daniel J. Lyne, Murphy & King, PC
Anthony Wild, Defendant, represented by Carolyn C. Wu, Milbank,
Tweed, Hadley & McCloy LLP, Scott A. Edelman, Milbank, Tweed,
Hadley & McCloy LLP, Daniel J. Dwyer, Murphy & King, PC & Daniel
J. Lyne, Murphy & King, PC
Brian Krah, on behalf of himself and all others similarly
situated, Defendant, represented by Lisa J. Rodriguez, Rodriguez &
Richards, LLC
Warner-Lambert Company, Defendant, represented by ANDREW MUSCATO,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Adam S. Tolin, Dechert
LLp, Andrew H. Myers, Wheeler Trigg O'Donnell LLP,Brigette L.
Mitchell, Shook, Hardy & Bacon LLP, Catherine Marie Valerio
Barrad, Sidley Austin, LLP,Christopher J. Roche, Davis Polk &
Wardwell, Daniel F. Schubert, Davis Polk & Wardwell, David
Weinraub, Quinn Emanuel Urquhart & Sullivan, LLP, Douglas B
Maddock, JR, Shook Hardy and Bacon, Ericka L. Kleiman, Shook,
Hardy and Bacon, LLP, Erik March Zissu, Davis, Polk & Wardwell,
Evan W. Davis, Dechert LLP, Ezra D. Rosenberg, Dechert LLP, James
E. Hooper, Wheeler Trigg O'Donnell, LLP, James P. Muehlberger,
Shook, Hardy & Bacon LLP, Jeffrey M. Wakefield, Flaherty
Sensabaugh & Bonasso, John P. Mandler, Faegre & Benson, LLP,
Joseph M. Price, Faegre Baker Daniels LLP, Lindsay R. Skibell,
Davis Polk & Wardwell, Lori C. McGroder, Lori R. Schultz, Shook,
Hardy & Bacon, L.L.P., Mark S. Cheffo, Quinn Emanuel Urquhart &
Sullivan, LLP, Nicholas Patrick Mizell, Shook, Hardy, & Bacon LLP,
Paul S. Mishkin, Davis Polk & Wardwell, Raoul D. Kennedy, Skadden,
Arps, Slate, Meagher, & Flom LLP, Richard M. Barnes, Goodell
DeVries Leech & Dann, LLP, Scott William Anderson, Shook Hardy &
Bacon, L.L.P, Scott W. Sayler, Shook Hardy & Bacon LLP, Steven J
Ellison, Faegre & Benson LLP, Thomas Kane, Dechert LLP, William A.
Alford, III, SHOOK HARDY & BACON, William S. Ohlemeyer, Boies,
Schiller & Flexner LLP, Charles P. Goodell, Jr., Goodell, DeVries,
Leech & Dann, LLP, Cheryl Zak Lardieri, Goodell, DeVries, Leech &
Dann, LLP, Daniel E. Holloway, Boies Schiller & Flexner, LLP,
Edwin J. Kilpela, Jr., Wheeler Trigg O'Donnell, LLP, Geoffrey M.
Wyatt, Skadden, Arps, Slate, Meagher & Flom LLP, Jack Wilson,
Boies Schiller & Flexner, LLP, James A. Frederick, Goodell,
DeVries, Leech & Dann, LLP, Jessica D. Miller, Skadden, Arps,
Slate, Meagher & Flom LLP, John H. Beisner, Skadden Arps Slate
Meagher & Flom, Lark A. Campbell, Gordon & Rees, Lisa Nousek,
Boies, Schiller & Flexner LLP, Mary Lou Strange, Skadden Arps et
al, Matthew E. Johnson, Wheeler Trigg O' Donnell LLP, Mauricio A.
Gonzalez, Boies Schiller & Flexner, LLP, Michael J. Wasicko,
Goodell, DeVries, Leech & Dann, LLC, Michele R. Kendus, Goodell,
DeVries, Leech and Dann, LLP, Sean G. Saxon, Wheeler Trigg Kennedy
LLP, Sheila L. Birnbaum, Skadden Arps Slate Meagher & Flom LLP,
Stephanie A. Reedy, Wheeler Trigg O'Donnell LLP & Stephen E.
Oertle, Wheeler Trigg O'Donnell LLP
Ivax Pharmaceuticals, Inc., Defendant, represented by Chad W.
Higgins, Goodwin Procter LLP
Denise Seastrunk, Personal Representative of the Estate of Dr. Jay
Seastrunk, M.D., Defendant, represented by Jack W. London, Jack W.
London & Associates P.C.
Travelers Indemnity Company, Interested Party, represented by
Gerald T. Giaimo, Halloran & Sage LLP
IMS Health Inc., Intervenor, represented by George J.
Tzanetopoulos, Mayer, Brown, Rowe & Maw LLP.
PHILIP MORRIS: Boston Judge Narrows Tobacco Class Actions
---------------------------------------------------------
Sheri Qualters, writing for The National Law Journal, reports that
a Boston federal judge has narrowed an eight-year-old class action
filed by smokers who want cigarette maker Philip Morris USA Inc.
to pay for early-stage lung cancer detection.
U.S. District Judge Denise Casper has "cleared the decks for the
trial we've been anxious to have for some time now," said lead
plaintiffs' lawyer Steven Phillips of New York-based Phillips &
Paolicelli. Last year, the parties jointly proposed a spring 2015
trial in Donovan v. Philip Morris USA.
The class includes Massachusetts residents who are at least 50
years old who and smoked Marlboro cigarettes for at least 20 so-
called pack years (the number of packs per day multiplied by the
number of years the plaintiff smoked). They also either still
smoke or quit after Dec. 14, 2005, and have not been diagnosed
with lung cancer.
Judge Casper on Dec. 12 granted the plaintiffs' summary judgment
on the issue of injury and risk. She said she would assume that
20 pack-years of smoking Marlboro cigarettes causes subcellular
harm to the lungs that increases the risk of lung cancer.
"The question, then, is whether there is a material issue as to
whether the proposed alternative design would have reduced -- at
all -- plaintiffs' risk of the subcellular changes that increased
their risk of lung cancer," Judge Casper wrote.
She partially denied plaintiffs' summary-judgment argument that
Philip Morris breached an implied warranty of merchantability by
marketing cigarettes with an allegedly defectively design that was
unreasonably dangerous. Although Massachusetts law does not
require plaintiffs to prove that Philip Morris' cigarettes were
more dangerous than consumer expectations, Judge Casper said, the
jury could still consider evidence of consumer expectations.
"If the jury believes that rational, informed consumers would have
expected Marlboro cigarettes to be dangerous, then the jury may
(but is not required) to conclude that the product's design,
though dangerous, is not defective," Judge Casper wrote.
Judge Casper struck a Philip Morris defense claim that the
plaintiffs' requested injunction wasn't necessary because they
could get an adequate legal remedy in the form of reimbursement
for medical costs. She ruled that, during the liability part of
the trial, Philip Morris could not present evidence that medical
monitoring wouldn't be an appropriate remedy because participation
rates are too speculative.
Judge Casper also made several rulings that favor Philip Morris.
She said the company could raise a statute-of-limitations argument
about when precancerous monitoring became the standard of medical
care and what that means for the timing of the lawsuit.
She held that the company could make arguments concerning consumer
expectations of the product and whether the plaintiffs'
alternative safer design was feasible. And she held that the
reasonable cost of the remedy in light of insurance coverage is an
issue for trial.
The other plaintiffs' firms are Arrowood Peters; Thornton &
Naumes; and Todd & Weld, each based in Boston.
Brian May, a spokesman with Philip Morris parent company Altria
Group Inc., said the company declined to comment. The company's
lawyers on the case are from Arnold & Porter; Latham & Watkins;
Mayer Brown; Shook, Hardy & Bacon; and Weil, Gotshal & Manges.
A copy of Judge Casper's ruling is available at
http://is.gd/jQBzJJfrom Leagle.com.
PROGRESSIVE AD: Has Made Unsolicited Calls, "Rayz" Suit Claims
--------------------------------------------------------------
Arkady Rayz, on behalf of himself and all others similarly
situated v. Progressive Ad Solutions, LLC, Phoenix Legal Group
LLC, and DOES 1 through 10, inclusive, Case No. 2:14-cv-07147
(E.D. Pa., December 18, 2014), alleges that the Defendants placed
numerous unwanted phone calls, using an automatic dialing system,
to the Plaintiffs cellular phone.
Progressive Ad Solutions, LLC is engaged in the business of debt
collection within the Commonwealth of Pennsylvania.
Phoenix Legal Group LLC is engaged in the business of debt
collection within the Commonwealth of Pennsylvania.
The Plaintiff is represented by:
Gerald D. Wells III, Esq.
Robert J. Gray, Esq.
CONNOLLY WELLS & GRAY, LLP
2200 Renaissance Blvd., Suite 308
King of Prussia, PA 19406
Telephone: (610) 822-3700
Facsimile: (610) 822-3800
Email: gwells@cwg-law.com
rgray@cwg-law.com
RADIOSHACK CORP: Faces "Gerhart" Suit Over ERISA Violation
----------------------------------------------------------
William A. Gerhart, on behalf of himself and the RadioShack 401(k)
Plan and the RadioShack Puerto Rico 1165(e) Plan, and/or
alternatively on behalf of a class consisting of similarly
situated participants and beneficiaries of the Plans v. Radioshack
Corp., et al., Case No. 3:14-cv-04419 (N.D. Tex., December 17,
2014), is brought against the Defendants for violation of the
Employee Retirement Income Security Act.
Radioshack Corp. is engaged in the retail sale of consumer
electronics goods and services through the Company's RadioShack
store chain.
The Plaintiff is represented by:
William B. Federman, Esq.
Gregg J. Lytle, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
gjl@federmanlaw.com
RMB INC: Sued Over Breach of Fair Debt Collection Practices Act
---------------------------------------------------------------
Kevin Jackson, on behalf of himself and all others similarly
situated v. RMB, Inc., and John Does 1-25, Case No. 2:14-cv-07850
(D.N.J., December 17, 2014), is brought against the Defendants for
violation of the Fair Debt Collection Practices Act.
RMB, Inc. owns and operates a debt collection agency located at
409 Bearden Park Circle, Knoxville, Tennessee.
The Plaintiff is represented by:
Joseph K. Jones, Esq.
LAW OFFICES OF JOSEPH K. JONES, LLC
375 Passaic Avenue, Suite 100
Fairfield, New Jersey 07004
Telephone: (973) 227-5900
Facsimile: (973) 244-0019
E-mail: jkj@legaljones.com
- and -
Benjamin J. Wolf, Esq.
LAW OFFICES OF JOSEPH K. JONES, LLC
375 Passaic Avenue, Suite 100
Fairfield, New Jersey 07004
Telephone: (973) 227-5900
Facsimile: (973) 244-0019
E-mail: bwolf@legaljones.com
SAFEWAY INC: Customers Obtain Favorable Ruling in Class Action
--------------------------------------------------------------
Lisa Hoffman, writing for The National Law Journal, reports that a
California federal judge has sided with online customers of
Safeway Inc., who alleged in a class action that the store
breached its contract by charging them more for groceries they
ordered on the Internet than had they made the purchases in a
store.
U.S. District Judge Jon Tigar of the Northern District of
California granted partial summary judgment to Pennsylvania
plaintiff Michael Rodman, who alleged that Safeway "secretly"
applied markups to items sold for delivery without clearly
disclosing the practice. The judge ordered the grocery chain to
repay delivery customers the extra money they were charged.
Mr. Rodman, who sued in 2011, said the online price for 10 out of
14 items he purchased for delivery had been marked up by about 10
percent from store prices. He alleged the "terms and conditions"
and supplemental "special terms" that customers must agree to when
they sign up, along with the "frequently asked questions" section
of Safeway's site, represented that the price of items would be
the same regardless of the shopping method.
His 2011 complaint, Rodman v. Safeway, claimed the company engaged
in breach of contract and violations of California's Unfair
Competition Law, Consumer Legal Remedies Act and False Advertising
Law. On March 9, Judge Tigart certified for class status only the
contract breach claim.
In its defense, Safeway contended that it has clearly disclosed
that online prices regularly differ from those in brick-and-mortar
stores. In a revision to the terms in 2011, company included more
specific language in the "special terms" section of its website.
But Judge Tigart noted Safeway did not directly notify all of its
safeway.com members of the change.
Specifically at issue was Safeway's contention that, by
registering on the store's site, customers authorized Safeway to
change the terms of the contract without notice. Safeway argued
that, because class members read the initial registration
contract, every time they opted to make an online purchase
thereafter they were on notice that they were agreeing to a new
contractual agreement.
Judge Tigart rejected that argument. "The safeway.com agreement
did not give Safeway the power to bind its customers to unknown
future contract terms, because consumers cannot assent to terms
that do not yet exist," he wrote, noting the U.S. Court of Appeals
for the Ninth Circuit has been skeptical that assent can be
inferred by a customer's continued use of a service in the absence
of notice of specific changes in the terms.
Safeway's counsel are attorneys with Sheppard, Mullin, Richter &
Hampton. Plaintiffs' attorneys are with the firms Green & Noblin;
Shepherd, Finkelman, Miller & Shah; and Chimicles & Tikellis.
SAWGRASS FORD: "High" Suit Seeks to Recover Unpaid Overtime Wages
-----------------------------------------------------------------
Micheal High, on behalf himself and all others similarly situated
v. Sawgrass Ford, Inc., David Menten, Peter Menten, Erick Nunez,
and John Troia, individually, Case No. 0:14-cv-62883 (S.D. Fla.,
December 18, 2014), seeks to recover unpaid minimum wage
compensation, liquidated damages, and other relief under the Fair
Labor Standards Act.
The Defendants own and operate a new and used car dealership in
South Florida.
The Plaintiff is represented by:
Ruben Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 N.E. 30th Avenue, Suite 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: msaenz@saenzanderson.com
- and -
David C. LaValle, Esq.
ZIPRIS LAVALLE, P.A.
12000 Biscayne Blvd., Suite 401
North Miami, FL 33181
Telephone: (305) 899-2023
Facsimile: (305) 899-2747
E-mail: dlavalle@ziprislaw.com
SEARS HOLDINGS: Sued for Violating Wage Laws & Payroll Practices
----------------------------------------------------------------
Sears Holdings Corporation faces labor lawsuits and lawsuits
relating to alleged failure to comply with California laws
pertaining to certain operational, marketing and payroll
practices, according to the company's Dec. 4, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Nov. 1, 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 is also 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.
SHERWIN ALUMINA: "Ortiz" Suit Seeks to Recover Unpaid OT Wages
--------------------------------------------------------------
Andy Ortiz and Richard Gutierrez, individually and on behalf of
all others similarly situated v. Sherwin Alumina Company, LLC,
Case No. 2:14-cv-00490 (S.D. Tex., December 17, 2014), seeks to
recover unpaid overtime compensation, liquidated damages,
attorneys' fees, and costs, pursuant to the Fair Labor Standard
Act.
Sherwin Alumina Company, LLC is an aluminum oxide (alumina) plant
located in Gregory, Texas.
The Plaintiff is represented by:
William Clifton Alexander, Esq.
SICO WHITE HOELSCHER & BRAUGH LLP
900 Frost Bank Plaza
802 N Carancahua Ste 900
Corpus Christi, TX 78401
Telephone: (361) 653-3300
Facsimile: (361) 653-3333
E-mail: calexander@swhhb.com
SHOE TIME: Faces "Griffin" Suit Over Failure to Pay Overtime
------------------------------------------------------------
Eunice Griffin and Sonora Stroud, individually and on behalf of
other employees similarly situated v. Shoe Time Cicero Inc., and
Waqas Malik, Case No. 1:14-cv-10126 (N.D. Ill., December 17,
2014), is brought against the Defendants for failure to pay
overtime wages for work in excess of 40 hours in a week.
Shoe Time Cicero Inc. owns and operates a shoe store in Chicago,
Illinois.
The Plaintiff is represented by:
Raisa Alicea, Esq.
CONSUMER LAW GROUP, LLC
6232 N Pulaski Rd, Ste. 200
Chicago, IL 60646
Telephone: (312) 800-1017
E-mail: ralicea@yourclg.com
SITO MOBILE: Plaintiff in "Ibey" Case Dismisses Lawsuit
-------------------------------------------------------
The Plaintiff in Elizabeth Ibey v. Wal-Mart Stores Inc. and Single
Touch Interactive Inc. n/k/a SITO Mobile Solutions, Inc. dismissed
the case with prejudice, according to Sito Mobile Ltd.'s Dec. 3,
2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Sept. 30, 2014.
On July 29, 2013, the company was served a first amended complaint
for Elizabeth Ibey v. Wal-Mart Stores Inc. and Single Touch
Interactive Inc. n/k/a SITO Mobile Solutions, Inc. The complaint
was a class action pending in the United States District Court,
Southern District of California and alleged violations of the
Telephone Consumer Protection Act. The Plaintiff was seeking
damages and injunctive relief. The company filed a Motion to
Dismiss the case on September 19, 2013. In December 2013,
Plaintiff requested and the parties agreed to a continuation of
the scheduled hearing on the Motion to Dismiss. An Early Neutral
Evaluation was held on January 14, 2014 resulting in the Plaintiff
dismissing the case with prejudice which occurred on January 31,
2014.
SONY PICTURES: Faces "Forster" Suit Over Alleged Data Breach
------------------------------------------------------------
Joshua Forster and Ella Carline Archibeque, on behalf of
themselves and all others similarly situated v. Sony Pictures
Entertainment Inc., Case No. 2:14-cv-09646 (C.D. Cal., December
17, 2014), is brought against the Defendant for failure to
adequately safeguard its current and former employees' personal
information including, names, home and email addresses, Social
Security numbers, visa and passport numbers, account routing
information, salary and retirement plan data, and health insurance
and medical information.
Sony Pictures Entertainment Inc. is a multi-billion dollar movie
and television production and distribution company.
The Plaintiff is represented by:
Daniel C. Girard, Esq.
Matthew B. George, Esq.
GIRARD GIBBS LLP
601 California Street, 14th Floor
San Francisco, CA 94104
Telephone: (415) 981-4800
Facsimile: (415) 981-4846
E-mail: dcg@girardgibbs.com
mbg@girardgibbs.com
SONY PICTURES: Faces "Levine" Suit Over Alleged Data Breach
-----------------------------------------------------------
Michael Levine and Felix Lionel, on behalf of themselves and all
others similarly situated v. Sony Pictures Entertainment, Inc.,
Case No. 2:14-cv-09687 (C.D. Cal., December 18, 2014), is brought
against the Defendant for failure to adequately safeguard its
current and former employees' personal information including,
names, home and email addresses, Social Security numbers, visa and
passport numbers, account routing information, salary and
retirement plan data, and health insurance and medical
information.
Sony Pictures Entertainment Inc. is a multi-billion dollar movie
and television production and distribution company.
The Plaintiff is represented by:
Michael W. Sobol, Esq.
Rose Marie Maliekel, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956.1008
E-mail: msobol@lchb.com
rmaliekel@lchb.com
- and -
Nicholas Diamand, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: ndiamand@lchb.com
- and -
Hank Bates, Esq.
Allen Carney, Esq.
David Slade, Esq.
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: hbates@cbplaw.com
acarney@cbplaw.com
dslade@cbplaw.com
SONY PICTURES: Keller Rohrback Files Data Breach Class Action
-------------------------------------------------------------
Ross Todd, writing for The Recorder, reports that the hacking
scandal at Sony Pictures Entertainment Inc. yielded its first
lawsuit on Dec. 15, as plaintiffs lawyers at Keller Rohrback filed
a proposed class action on behalf of current and former Sony
employees.
The complaint filed in U.S. District Court for the Central
District of California claims that Sony executives were well aware
of their computer system's security vulnerabilities but made a
business decision to accept the risk of a possible breach.
The cyberattack by a group calling itself Guardians of the Peace
has made headlines by unearthing racist email exchanges between
film producers, juicy details of actors' compensation and copious
amounts of Hollywood gossip. But aside from the tawdry details of
who hates whom in the film industry, the leaks have made public
"over 47,000 Social Security numbers, employment files including
salaries, medical information, and anything else" on Sony's
networks, according to the complaint.
The complaint claims that Sony executives knew of their network's
security problems but failed to address them. "Leaked emails and
internal assessments reveal that Sony's own information technology
department and, separately, its general counsel believed that its
technological security and email retention policies ran the risk
of making too much data vulnerable to attack," wrote Keller
Rohrback's Khesraw Karmand -- kkarmand@kellerrohrback.com
"If only Sony had heeded its own advice in time."
Mr. Karmand represents former Sony employees Michael Corona of
Virginia and Christina Mathis of California. Though it's been
years since either worked for the studio, the two named plaintiffs
say their personal information was exposed by the hackers, placing
them at increased risk of identity theft.
This data-breach lawsuit is not the company's first. In July,
Sony settled an earlier class action brought on behalf of
customers whose data was breached when its PlayStation Network was
hacked in 2011. Sony agreed to offer customers free video games
and services valued at $15 million as part of that settlement.
The lawsuit filed on Dec. 15 brings claims of negligence against
Sony, as well as California and Virginia state law claims.
SONY PICTURES: Taps Boies to Clamp Down on Media Amid Hack Issues
-----------------------------------------------------------------
Nathalie Pierrepont, writing for The Am Law Daily, reports that
Sony Pictures Entertainment has hired Boies, Schiller & Flexner to
clamp down on media companies that have republished confidential
-- and at times embarrassing -- information leaked about the
company through a hacker. But its efforts may be in vain.
The cyberattack on the Japanese entertainment company by a group
that calls itself the Guardians of Peace has uncovered information
about Sony's employee salaries, health records, movie stars' fees
and internal email exchanges.
Since the news of the breach broke on Nov. 24, Boies Schiller's
founder David Boies has struck back, sending a letter on Dec. 14
to the legal departments of various media outlets demanding that
they refrain from publishing any information obtained from the
hackers and to destroy existing copies.
The letter said Sony "does not consent to your possession, review,
copying, dissemination, publication, uploading, downloading or
making any use of the stolen information, and . . . [requests]
your cooperation in destroying the stolen information." Failure
to comply means Sony "will have no choice but to hold you
responsible for any damage or loss," it reads.
Press coverage of the internal documents and data -- including
racially charged email banter between Sony executive Amy Pascal
and producer Scott Rudin -- has crippled the entertainment company
in recent weeks. However, reining in news outlets doesn't seem to
be a promising way to lessen the blow.
Cahill Gordon & Reindel litigation partner Floyd Abrams, who has
authored two books on the First Amendment, says the letter from
Boies is an "across-the-bow sort of threat."
"I think they're making the best legal case that they can, but
it's not a strong one," he says.
He continued: "I think that the legal risks to continue to publish
articles based on the newly released materials are minimal,"
adding that things would be different if the publishers were
somehow connected to the hacking.
Boies Schiller did not respond to request for comment, nor did
Sony general counsel Nicole Seligman.
In an email to The Am Law Daily, Kurt Opsahl, deputy general
counsel for the Electronic Frontier Foundation, pointed to
Bartnicki v. Vopper, a 2001 case involving a radio commentator who
received a tape recording of an illegally intercepted
conversation, played parts of the conversation on his program and
was sued based on a claim that the interception and use of the
conversation was illegal.
The U.S. Supreme Court decided that the radio station was not
liable because the broadcaster wasn't involved in the illegal
interception and the communication was a matter of public concern.
"While a newspaper may choose not publish some information based
on the privacy interests and its own standards, it's hard to see
how a paper may be required to destroy the information consistent
with the First Amendment," Mr. Opsahl says, adding: "It is
unfortunate that Sony got hacked, and lost control over its
internal information. But the solution is not to muzzle the
press."
By notifying various media outlets that the material is not
intended to be public, Sony may be able to argue a legal theory
that's based on the use of private information. However, as
David Schulz, name partner at Levine Sullivan Koch & Schulz who
has spent his career defending journalists and news organizations
on issues of libel, privacy and access, says the theory is rarely
applied to news gathering.
"To the extent that organizations are publishing true newsworthy
information that they have legally obtained, they have a legal
defense," he says. "The potential for liability for accessing the
information under an intrusion theory or some other type of news-
gathering claim is perhaps more of an open question."
Heather Dietrick, president and general counsel of Gawker Media,
which received the letter from Boies Schiller, said in an email to
The Am Law Daily that Gawker has published "very newsworthy
documents, including documents that expose how such a widespread
security breach could have happened" -- an issue she noted
"deserves much further public scrutiny."
Ms. Dietrick added that Gawker Media has "carefully selected and
reported on a handful of other documents that have been revelatory
with respect to certain major figures in the entertainment
industry, and we'll continue to report on what's so squarely in
the ambit of public concern."
Bloomberg, The New York Times, Re/code and The Hollywood Reporter
also received the letter from Boies Schiller. Bloomberg's general
counsel, Richard DeScherer, who left Willkie Farr & Gallagher with
a handful of attorneys in 2012, and The New York Times' in-house
attorney Kenneth Richieri did not respond to The Am Law Daily for
requests for comment.
Though sibling publication Corporate Counsel on Friday reported on
email leaks involving Leah Weil, the general counsel of Sony
Pictures Entertainment, the company's film division, parent
company ALM Media did not receive the letter from Boies Schiller
on Dec. 14.
SOURCE REFRIGERATION: Bid for Initial Okay of Accord Due Jan. 9
---------------------------------------------------------------
District Judge Vince Chhabria of the Northern District of
California, San Francisco Division granted the parties' request to
stay proceedings in the case LYLE E. GALEENER, individually and on
behalf of all others similarly situated, Plaintiff, v. SOURCE
REFRIGERATION & HVAC, INC., Defendant, Case No. 13-CV-04960-VC
(N.D. Cal.)
Plaintiffs and Source attended a private mediation before mediator
Susan Haldeman. During the mediation, the parties reached a global
settlement in principle to resolve Galeener, Hamer, and Vargas
(the "Galeener settlement").
The Galeener settlement proposes to resolve claims asserted on
behalf of Source service technicians nationwide on a class and
collective action basis. As part of the Galeener settlement, the
Parties have agreed that Hamer and Vargas shall be dismissed
without prejudice. Mr. Hamer, Mr. Vargas, and possibly other
individuals will become plaintiffs in the action by stipulated
amendment to the complaint.
For each settlement, the parties have executed a binding
Memorandum of Understanding/Agreement to reflect the agreement in
principle, and negotiations of specific terms of the settlements
are now beginning. Both settlements were to be filed in court, in
a preliminary approval submission, by December 16, 2014. The
Galeener settlement will be presented to this Court; the Meza
settlement will be presented to Judge Moss in the Orange County
Superior Court.
The Parties request that the Court: (1) Take all motion deadlines
(including briefing for the Motion to Certify Collective Action)
and hearing dates (including the December 11, 2014 hearing) off
calendar;(2) Stay the matter in its entirety; and (3) Set a
deadline for the filing of the class and collective action
settlement preliminary approval motion of December 16, 2014.
Accordingly, Judge Chhabria took all motions, deadlines and
hearing dates off calendar. The matter, including discovery, is
stayed in its entirety and the parties shall file a motion for
class and collective action settlement preliminary approval by
January 9, 2015.
A copy of the Stipulation and Order dated November 12, 2014, and
signed by Judge Chhabria, is available at http://is.gd/rZ4hNCfrom
Leagle.com.
Attorneys for Plaintiffs and proposed Class Members:
John M. Padilla,
PADILLA & RODRIGUEZ, L.L.P.
601 South Figueroa Street, Suite 4050
Los Angeles, CA
Telephone: (213) 244-1401
Facsimile: (213) 244-1402
- and -
Galvin B. Kennedy, Esq.
Gabriel Assaad, Esq.
KENNEDY HODGES, L.L.P.
711 West Alabama Street
Houston, TX 77006
Local: 713-489-9493
Toll Free: 800-391-9935
Facsimile: 713-523-1116
- and -
Jahan C. Sagafi, Esq.
OUTTEN & GOLDEN LLP
One Embarcadero Center, 38th Floor
San Francisco, CA 94111
Telephone: (415) 638-8800
Email: jsagafi@outtengolden.com
- and -
Christopher McNerney, Esq.
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, NY 10016
Telephone: (212) 245-1000
Email: cmcnerney@outtengolden.com
Defendant Source Refrigeration & HVAC, Inc. is represented by
Margaret A. Keane -- margaret.keane@dlapiper.com -- Katherine J.
Liao -- katharine.liao@dlapiper.com -- at DLA PIPER LLP (US)
SWATCH GROUP: N.J. Judge Dismisses "Reed" Case Over FACTA
---------------------------------------------------------
District Judge Esther Salas of the District of New Jersey granted
defendant's motion to dismiss the case ELLIOT REED, MICHALE ASTA,
individually and on behalf of others similarly situated,
Plaintiffs, v. THE SWATCH GROUP (US), INC., Defendants, CIVIL
ACTION NO. 14-896-(ES)(MAH) (D.N.J.)
Plaintiffs Elliot Reed and Michael Asta purchased some items at
defendant's store at Swatch Garden State Plaza in New Jersey and
at Swatch Times Square in New York respectively. Both used their
credit cards in paying their purchased items and received from
defendant an electronically printed receipt that displayed the
expiration date of their American Express credit cards.
On November 23, 2013, the plaintiffs brought a consumer class
action on behalf of themselves and others who, on or after June 3,
2008, made purchases at retail locations operated by the defendant
and were provided with a printed receipt that displayed the
expiration date of the their credit or debit card. Plaintiffs
assert that by not truncating the expiration date from the
receipt, defendant violated the Fair and Accurate Credit
Transactions Act (FACTA) amendment to the Fair Credit Reporting
Act, 15 U.S.C. Section 1681, et seq., as amended (FCRA).
Plaintiffs also allege that defendant's actions violated N.J.
Stat. Ann. Section 56:11-42 (West 2014), a New Jersey statute with
provisions similar to FACTA's.
Defendant filed a motion to dismiss plaintiffs' complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6).
Judge Salas granted defendant's motion to dismiss and plaintiffs'
FACTA claim is dismissed without prejudice. Plaintiffs' claim
under N.J. Stat. Ann. Section 56:11-42 is dismissed without
prejudice and plaintiff shall have 30 days to file an amended
complaint to cure the deficiencies.
A copy of Judge Salas's opinion and order dated December 29, 2014,
is available at http://is.gd/zYsHPhfrom Leagle.com.
ELLIOT REED, Plaintiff, represented by JEFFREY W. HERRMANN --
jwh@njlawfirm.com -- COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF,
LLC
MICHAEL ASTA, individually and on behalf of others similarly
situated, Plaintiff, represented by JEFFREY W. HERRMANN --
jwh@njlawfirm.com -- COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF,
LLC
THE SWATCH GROUP (US) INC., a Delaware corporation, Defendant,
represented by ANDREW LOWE O'CONNOR -- aoconnor@nagelrice.com --
ROBERT H. SOLOMON -- rsolomon@nagelrice.com -- at NAGEL RICE, LLP
TARGET CORP: Judge to Decide on Data Breach Suit Dismissal Motion
-----------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal judge in Minnesota is set to decide whether to
dismiss lawsuits filed by Target Corp.'s customers over its
massive data breach in 2013.
U.S. District Judge Paul Magnuson is overseeing about 140 lawsuits
filed over the breach, which compromised personal information and
credit card numbers of 110 million customers during last year's
Christmas shopping season. Most of those lawsuits have been
coordinated into a single class action on behalf of consumers
nationwide.
That consolidated complaint, brought by 112 named plaintiffs,
alleges that consumers were injured by Target's failure to detect
and promptly respond to the breach.
On Oct. 1, Target moved to dismiss the case on standing ground,
alleging that none of named plaintiffs in the consolidated class
complaint lives in the states of Delaware, Maine, Rhode Island,
South Carolina or Wyoming or Washington, D.C. Target also
disputed that any of the plaintiffs had suffered economic damages
and that many of the data breach statutes cited in the complaint
provide no private right of action. Judge Magnuson heard oral
arguments on Dec. 11.
Molly Snyder, a spokeswoman for Target, represented by Wendy
Wildung, a partner in the Minneapolis office of Faegre Baker
Daniels, declined to comment. Lead plaintiffs attorney Vincent
Esades -- vesades@heinsmills.com -- equity member at Heins Mills &
Olson in Minneapolis, declined to comment.
Class actions over data breaches have been so far unsuccessful in
convincing judges that consumers suffered monetary damages. In an
Oct. 31 opposition brief, Mr. Esades sought to distinguish the
Target breach from others that fared poorly.
"Rarely does a case in an evolving area of law create the
opportunity to apply well-reasoned precedent, established
principles and common sense to compelling facts showing widespread
consumer harm and on issues of significant public importance," he
wrote. "This is that case."
The plaintiffs have asserted damages in the form of unreimbursed
unauthorized charges and the imminent harm of identity theft.
Consumers also missed payments and incurred fees after their bank
accounts were frozen following the breach.
On Dec. 2, Judge Magnuson refused to dismiss a separate
consolidated class complaint filed against Target on behalf of
financial institutions that alleged losses of as much as $18
billion when they were forced to reissue cards and reimburse
customers affected by the breach. He found that Target owed a
duty to the banks and credit unions to protect them against
hackers. "Although the third-party hackers' activities caused
them, Target played a key role in allowing the harm to occur," he
wrote. "Plaintiffs have plausibly alleged that Target's actions
and inactions -- disabling certain security features and failing
to heed the warning signs as the hackers' attack began -- caused
foreseeable harm to plaintiffs." He also upheld claims under a
Minnesota statute that prohibits businesses from retaining "the
card security code data, the PIN verification code, or the full
contents of any track of magnetic stripe data" of its customers
past a certain period.
ULTA SALON: Faces Employment Lawsuit in Calif. Federal Court
------------------------------------------------------------
Ulta Salon, Cosmetics & Fragrance, Inc. is facing a labor lawsuit
in the United States District Court for the Central District of
California, according to the company's Dec. 4, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Nov. 1, 2014.
On March 2, 2012, a putative employment class action lawsuit was
filed against the company and certain unnamed defendants in state
court in Los Angeles County, California. On April 12, 2012, the
Company removed the case to the United States District Court for
the Central District of California. On August 8, 2013, the
plaintiff asked the court to certify the proposed class and the
Company opposed the plaintiff's request and is waiting for the
court to issue a decision. The plaintiff and members of the
proposed class are alleged to be (or to have been) non-exempt
hourly employees. The suit alleges that Ulta violated various
provisions of the California labor laws and failed to provide
plaintiff and members of the proposed class with full meal
periods, paid rest breaks, certain wages, overtime compensation
and premium pay. The suit seeks to recover damages and penalties
as a result of these alleged practices. The Company denies
plaintiff's allegations and is vigorously defending the matter.
UNITED STATES: Vaccine Victim Compensation System Not Working
-------------------------------------------------------------
Mitch Weiss, Justin Pritchard, Troy Thibodeaux and Serdar
Tumgoren, writing for The Associated Press, report that a system
Congress established to speed help to Americans harmed by vaccines
has instead heaped additional suffering on thousands of families,
The Associated Press has found.
The premise was simple: quickly and generously pay for medical
care in the rare cases when a shot to prevent a sickness such as
flu or measles instead is the likely cause of serious health
complications. But the system is not working as intended.
The AP read hundreds of decisions, conducted more than 100
interviews, and analyzed a database of more than 14,500 cases
filed in a special vaccine court. That database was current as of
January 2013; the government has refused to release an updated
version since.
Among the findings:
-- Private attorneys have been paid tens of millions of taxpayer
dollars even as they clog the court with more cases than they can
handle, some of which the court rejected as totally inadequate.
The court offers a financial incentive to over-file -- unlike
typical civil court cases, attorneys are paid whether or not they
win, as was the case with more than 5,000 losing claims that
vaccines caused the developmental disability autism. Those who
double-bill for their time or consistently submit questionable
expenses are not disciplined.
-- Prominent attorneys have enlisted expert witnesses whose own
work has been widely discredited, including one who treated autism
with a potent drug used to chemically castrate serial rapists.
Another doctor cribbed his material from an anti-vaccine website.
Some of the most prominent experts set up nonprofits questioning
vaccine safety, further fueling public skepticism. Meanwhile,
many doctors hired by the government to defend vaccine safety in
court have ties to the pharmaceutical industry.
-- Lawmakers designed vaccine court to favor payouts, but the
government fights legitimate claims and fails its obligation to
publicize the court, worried that if they concede a vaccine caused
harm, the public will react by skipping shots. The court was
created with relaxed standards of evidence and a burden of proof
more easily met than civil lawsuits. Lawmakers expected some
children would get help even though their injuries weren't truly
caused by a vaccine. If government doctors had their way, though,
1,600 families would not have gotten more than $1.1 billion in
cash and future medical care between the court's opening in 1988
and the end of 2012. The government said that while perception of
vaccine safety is important, individual claims are evaluated on
scientific evidence and legal standards.
-- Cases are supposed to be resolved within 240 days, with
options for another 150 days of extensions. Less than 7 percent
of 7,876 claims not involving autism met the 240-day target. Add
in autism claims, which were postponed so the court could hear all
of them at once, and just 4.5 percent took fewer than 240 days.
Most non-autism cases take at least two and a half years, with the
average case length more than three years, not including cases
unresolved at the end of 2012. Hundreds have surpassed the decade
mark. Several people died before getting any money.
The program's profile has been low, too. After The AP published
this story in November, officials vowed to publicize the program
better. They told investigators with the Government
Accountability Office they would use "plain language" literature,
improve its website and target promotions to "health care
providers, parents and expectant parents, adults aged 50 years and
older (including Spanish-speaking older adults), and civil
litigation and health attorneys."
The vanquishing of polio, measles and other preventable diseases
was the transcendent public health accomplishment of the 20th
century. And yet, by the mid-1980s, those gains seemed fragile.
Pharmaceutical companies were facing a barrage of lawsuits from
parents who believed the diphtheria-tetanus-pertussis shot had
disabled their kids. Their profits imperiled vaccine makers
signaled they would leave the U.S. market.
In response, Congress gave a break both to pharmaceutical
companies and to those who received a vaccine to prevent one
illness, yet suffered another.
To protect the nation's supply, lawmakers shielded companies from
jury verdicts, shifting liability for injuries to the U.S.
government. That part worked: Vaccines are widely available, and
profitable.
To help people harmed by shots, Congress created the National
Vaccine Injury Compensation Program. Government doctors and
lawyers review claims. If they believe it is more likely than not
that a vaccine -- and not something else -- caused the injury,
they tap a $3.5 billion fund to pay for future care and lost
wages. That fund is replenished by a 75-cent tax on each vaccine.
If the government concludes the vaccination was not likely the
cause, it contests the claim in vaccine court, based several
blocks from the White House.
Serious injuries are extremely uncommon. Though much is in
dispute regarding vaccines and their side effects, the court
remains obscure. But largely due to an influx of adult flu
claims, the volume of new cases has increased, averaging more than
400 annually in recent years.
To be sure, many of those who received the $2.8 billion that the
government says it has distributed would not have won a civil
trial.
The Division of Vaccine Injury Compensation, whose doctors within
the Department of Health and Human Services assess claims,
defended its program. So did the Department of Justice, whose
attorneys defend the government against vaccine injury claims.
DOJ spokeswoman Nicole Navas said the program "succeeded in
providing a less adversarial, less expensive, and less time-
consuming system of recovery than the traditional tort system that
governs medical malpractice, personal injury and product liability
cases."
But the system has not worked as Congress envisioned.
Many claims fall into a vast gray area: The science is clear on
only nine of 144 vaccine-injury combinations that a shot could --
or could not -- cause the illness. Amid this fundamental
uncertainty, the kind of litigation the court was created to avoid
is routine.
Caught in the middle are families that need help.
"The system is not working," said Richard Topping, a former DOJ
attorney who resigned after concluding his bosses had no desire to
fix the major flaws he saw. "People who need help aren't getting
it."
VERINT SYSTEMS: Labor Lawsuit Plaintiffs File Cert. Summations
--------------------------------------------------------------
The parties in the consolidated "Deutsch Labor Action" and
"Katriel Labor Action" recently filed summations on the
plaintiffs' motion to certify the suit as a class action after a
failed mediation, according to Verint Systems Inc.'s Dec. 3, 2014,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Oct. 31, 2014.
On March 26, 2009, legal actions were commenced by Ms. Orit
Deutsch, a former employee of the company's subsidiary, Verint
Systems Limited ("VSL"), against VSL in the Tel Aviv Regional
Labor Court (Case Number 4186/09) (the "Deutsch Labor Action") and
against CTI in the Tel Aviv District Court (Case Number 1335/09)
(the "Deutsch District Action"). In the Deutsch Labor Action, Ms.
Deutsch filed a motion to approve a class action lawsuit on the
grounds that she purports to represent a class of the company's
employees and former employees who were granted Verint and CTI
stock options and were allegedly damaged as a result of the
suspension of option exercises during the company's previous
extended filing delay period. In the Deutsch District Action, in
addition to a small amount of individual damages, Ms. Deutsch is
seeking to certify a class of plaintiffs who were allegedly
damaged due to their inability to exercise Verint and CTI stock
options as a result of alleged negligence by CTI in its financial
reporting. The class certification motions do not specify an
amount of damages. On February 8, 2010, the Deutsch Labor Action
was dismissed for lack of material jurisdiction and was
transferred to the Tel Aviv District Court and consolidated with
the Deutsch District Action. On March 16, 2009 and March 26, 2009,
respectively, legal actions were commenced by Ms. Roni Katriel, a
former employee of CTI's former subsidiary, Comverse Limited,
against Comverse Limited in the Tel Aviv Regional Labor Court
(Case Number 3444/09) (the "Katriel Labor Action") and against CTI
in the Tel Aviv District Court (Case Number 1334/09) (the "Katriel
District Action"). In the Katriel Labor Action, Ms. Katriel is
seeking to certify a class of plaintiffs who were granted CTI
stock options and were allegedly damaged as a result of the
suspension of option exercises during CTI's previous extended
filing delay period. In the Katriel District Action, in addition
to a small amount of individual damages, Ms. Katriel is seeking to
certify a class of plaintiffs who were allegedly damaged due to
their inability to exercise CTI stock options as a result of
alleged negligence by CTI in its financial reporting. The class
certification motions do not specify an amount of damages. On
March 2, 2010, the Katriel Labor Action was transferred to the Tel
Aviv District Court, based on an agreed motion filed by the
parties requesting such transfer.
On April 4, 2012, Ms. Deutsch and Ms. Katriel filed an uncontested
motion to consolidate and amend their claims and on June 7, 2012,
the District Court allowed Ms. Deutsch and Ms. Katriel to file the
consolidated class certification motion and an amended
consolidated complaint against VSL, CTI, and Comverse Limited.
Following CTI's announcement of its intention to effect the
Comverse share distribution, on July 12, 2012, the plaintiffs
filed a motion requesting that the District Court order CTI to set
aside up to $150 million in assets to secure any future judgment.
The District Court ruled that it would not decide this motion
until the Deutsch and Katriel class certification motion was
heard. Plaintiffs initially filed a motion to appeal this ruling
in August 2012, but subsequently withdrew it in July 2014.
Prior to the consummation of the Comverse share distribution, CTI
either sold or transferred substantially all of its business
operations and assets (other than its equity ownership interests
in the company and Comverse) to Comverse or unaffiliated third
parties. On October 31, 2012, CTI completed the Comverse share
distribution, in which it distributed all of the outstanding
shares of common stock of Comverse to CTI's shareholders. As a
result of the Comverse share distribution, Comverse became an
independent public company and ceased to be a wholly owned
subsidiary of CTI, and CTI ceased to have any material assets
other than its equity interest in us.
On February 4, 2013, we completed the CTI Merger. As a result of
the CTI Merger, we have assumed certain rights and liabilities of
CTI, including any liability of CTI arising out of the Deutsch
District Action and the Katriel District Action. However, under
the terms of the Distribution Agreement between CTI and Comverse
relating to the Comverse share distribution, the company, as
successor to CTI, are entitled to indemnification from Comverse
for any losses we suffer in the company's capacity as successor-
in-interest to CTI in connection with the Deutsch District Action
and the Katriel District Action.
Following an attempt to mediate the dispute, on July 1, 2014, the
plaintiffs filed a notice with the District Court informing it
that the mediation process had been unsuccessful. As a result, the
parties recently filed summations on the plaintiffs' motion to
certify the suit as a class action, which will be considered by
the District Court.
WAL-MART STORES: $154-Mil. Damages Award in "Braun" Case Upheld
---------------------------------------------------------------
Max Mitchell, writing for The Legal Intelligencer, reports that
the Supreme Court of Pennsylvania will not overturn an
approximately $154 million class-action damages award against Wal-
Mart, under a per curiam decision issued on Dec. 15.
The justices ruled on a 4-1 vote in Braun v. Wal-Mart Stores and
Hummel v. Wal-Mart Stores that despite the size of the 188,000-
member class, the methods used to extrapolate liability and
damages to each member did not constitute an improper "trial by
formula" that deprived the retail giant of its due process rights.
"In this case, where systemic wage-and-hour violations were
asserted, evidence was presented by appellees that, if believed,
supported an inference that Wal-Mart managers company-wide were
pressured to increase profits and decrease payroll by
understaffing stores through the preferred scheduling system, and
that these factors, including the managers' annual bonus
compensation program, impeded the ability of employees, across the
board, to take scheduled, promised, paid rest breaks," the opinion
said. "The lack of proof of class commonality present in [Wal-
Mart Stores v.] Dukes is not present here."
Justice Thomas G. Saylor issued a dissenting opinion. Former
Justice Seamus P. McCaffery did not participate in the opinion,
and Justice Correale F. Stevens was not on the bench when the
court heard arguments in the case in May 2013.
A jury in 2006 had awarded the plaintiffs $187.6 million in
damages for claims that Pennsylvania employees were not properly
compensated for off-the-clock work and missed rest breaks.
Although the state Superior Court in 2011 upheld the award, it
determined that a $33.8 million award for attorney fees needed to
be recalculated.
While Wal-Mart argued in the Superior Court that the proof offered
by the class only showed individual proof, not classwide proof,
the intermediate appellate court said the commonality of the class
was demonstrated through Wal-Mart's own business records to show
that class members missed breaks, had too few breaks or had their
breaks truncated. Wal-Mart had additionally argued that
individual employees would have to be questioned to determine if
they were forced by managers to work through or truncate their
breaks.
In his dissent, Mr. Saylor said he felt the majority's decision
relaxed the approach to class action law.
"Here, the appellee class was permitted to effectively project the
anecdotal experience of each of six testifying class members upon
30,000 other members of the class at large, to extrapolate
abstract data concerning missed and mistimed 'swipes' from 16
Pennsylvania stores to 139 others, to overlay discrete data taken
from several years' experience across a distinct four-year period,
and to attribute a single cause to missed and mistimed swipes, all
despite indisputable variations across store locations, management
personnel, time, and other circumstances," Mr. Saylor said.
Mr. Saylor added he felt the subject should be "of overt
consideration in the political branch."
The majority focused its decision on the proof at trial, and
whether the proceedings relieved the plaintiffs of their burden to
produce common evidence on the key elements of the claims.
Although Wal-Mart argued the trial process had been disapproved of
by the U.S. Supreme Court in its 2011 decision in Dukes and 2013
decision in Comcast v. Behrend, the plaintiffs argued Wal-Mart had
not faced a "trial by formula," but rather a "replicated proof"-
style class action, in which underlying evidence proves each class
member's claim as if each class member had proceeded alone.
According to the opinion, the "trial by formula" outlined in Dukes
consisted of a master determining whether backpay was warranted,
and how much should be due to a sample set of class members. The
master would then multiply the average backpay amount by the
number of claims the master determined to be valid.
The majority opinion, however, said that, because the liability in
Braun and Hummel was not determined by a formula, Dukes did not
apply.
"Instead, the extrapolation evidence Wal-Mart challenges in this
appeal involves the amount of damages to the class as a whole,"
the opinion said. "By contrast, the evidence of Wal-Mart's
liability to the entire class for breach of contract and
[Pennsylvania Wage Payment and Collection Law] violations was
established at trial by presentation of Wal-Mart's own universal
employment and wage policies, as well as its own business records
and internal audits."
The justices likewise found the Behrend decision to be dissimilar,
as the Braun and Hummel plaintiffs had offered data and analysis
to support that their damages were related to "systematic wage-
and-hour violations."
The Behrend decision further recognized, according to the opinion,
that, "where a theory of liability is capable of classwide proof,
calculations of damages need not be exact."
"The essence of Wal-Mart's appeal is its assertion that the class
action device, in this instance, had 'run amok,'" the opinion
said. "In our view, this was not a case of 'trial by formula' or
of a class action 'run amok.'"
According to the plaintiffs' attorney, Michael D. Donovan of
Donovan Axler, interest on the award continued to accrue since the
2006 verdict, and will bring the total award to approximately $244
million. He said he was gratified by the decision, but that it was
unfortunate that the court took more than 18 months to issue an
opinion.
"The unfortunate thing is that all these people who are just
hourly wage workers haven't been paid all these years," he said.
Donovan added that he felt an appeal by Wal-Mart to the U.S.
Supreme Court would be a "complete waste of time, and just another
affront to the Wal-Mart workers who earned this money and should
be paid the wages they're due."
In a statement emailed to the press, Wal-Mart spokesman Randy
Hargrove said the company disagreed with the decision, and that
the claims should not be bundled together.
"We are reviewing the opinion closely and considering our options,
including a petition for review by the U.S. Supreme Court,"
Mr. Hargrove said in the statement. "Wal-Mart has had strong
policies in place to make sure all associates receive their
appropriate pay and break periods. We have taken additional steps
over the last decade, including enhancing our timekeeping systems
and additional training, to make sure all our associates
understand the importance of those policies and comply with them."
* * *
Wal-Mart, in its Dec. 1, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Oct. 31,
2014, discussed the case. According to the SEC filing, the
Company is a defendant in Braun/Hummel v. Wal-Mart Stores, Inc., a
class-action lawsuit commenced in March 2002 in the Court of
Common Pleas in Philadelphia, Pennsylvania. The plaintiffs allege
that the Company failed to pay class members for all hours worked
and prevented class members from taking their full meal and rest
breaks. On October 13, 2006, a jury awarded back-pay damages to
the plaintiffs of approximately $78 million on their claims for
off-the-clock work and missed rest breaks. The jury found in favor
of the Company on the plaintiffs' meal-period claims. On November
14, 2007, the trial judge entered a final judgment in the
approximate amount of $188 million, which included the jury's
back-pay award plus statutory penalties, prejudgment interest and
attorneys' fees. By operation of law, post-judgment interest
accrues on the judgment amount at the rate of six percent per
annum from the date of entry of the judgment, which was November
14, 2007, until the judgment is paid, unless the judgment is set
aside on appeal.
On December 7, 2007, the Company filed its Notice of Appeal. The
Company filed its opening appellate brief on February 17, 2009,
plaintiffs filed their response brief on April 20, 2009, and the
Company filed its reply brief on June 5, 2009. Oral argument was
held before the Pennsylvania Superior Court of Appeals on August
19, 2009. On June 10, 2011, the court issued an opinion upholding
the trial court's certification of the class, the jury's back pay
award, and the awards of statutory penalties and prejudgment
interest, but reversing the award of attorneys' fees.
On September 9, 2011, the Company filed a Petition for Allowance
of Appeal with the Pennsylvania Supreme Court. On July 2, 2012,
the Pennsylvania Supreme Court granted the Company's Petition. The
Company served its opening brief in the Pennsylvania Supreme Court
on October 22, 2012, plaintiffs served their response brief on
January 22, 2013, and the Company served its reply on February 28,
2013. Oral argument was held in the Pennsylvania Supreme Court on
May 8, 2013. No decision has been issued [at the time of the SEC
filing]. The Company believes it has substantial factual and legal
defenses to the claims at issue, and plans to continue pursuing
appellate review.
WAL-MART STORES: Still Faces Securities Litigation in Arkansas
--------------------------------------------------------------
Wal-Mart Stores Inc. continues to be a defendant in a securities
suit pending in the United States District Court for the Western
District of Arkansas, according to the company's Dec. 1, 2014,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Oct. 31, 2014.
The Company is a defendant in several lawsuits in which the
complaints closely track the allegations set forth in a news story
that appeared in The New York Times (the "Times") on April 21,
2012. One of these is a securities lawsuit that was filed on May
7, 2012, in the United States District Court for the Middle
District of Tennessee, and subsequently transferred to the Western
District of Arkansas, in which the plaintiff alleges various
violations of the U.S. Foreign Corrupt Practices Act (the "FCPA")
beginning in 2005, and asserts violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as amended, relating
to certain prior disclosures of the Company. The plaintiff seeks
to represent a class of shareholders who purchased or acquired
stock of the Company between December 8, 2011, and April 20, 2012,
and seeks damages and other relief based on allegations that the
defendants' conduct affected the value of such stock. In addition,
a number of derivative complaints have been filed in Delaware and
Arkansas, also tracking the allegations of the Times story, and
naming various current and former officers and directors as
additional defendants. The plaintiffs in the derivative suits (in
which the Company is a nominal defendant) allege, among other
things, that the defendants who are or were directors or officers
of the Company breached their fiduciary duties in connection with
oversight of FCPA compliance. Most, but not all, of the derivative
suits have been combined into two consolidated proceedings, one of
which is currently pending in the Western District of Arkansas and
the other in the Delaware Court of Chancery.
WAL-MART STORES: Still Faces Lawsuit by City of Pontiac Retirees
----------------------------------------------------------------
Wal-Mart Stores, Inc. continues to defend against the action,
"Securities Class Action: City of Pontiac General Employees
Retirement System v. Wal-Mart Stores, Inc., USDC, Western Dist. of
AR, 5/7/12," according to its Dec. 1, 2014, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Oct. 31, 2014.
* Courts Scrutinize Class Certification "Ascertainability"
----------------------------------------------------------
Sharyl A. Reisman, Tracy Schaffer and Amy M. Palumbo, writing for
New York Law Journal, report that courts across the country are
increasingly scrutinizing "ascertainability" at the class
certification stage, raising the bar for "proof of purchase" and
barring class certification, especially in cases involving
low-cost consumer products. New York courts are grappling with
this issue, as well. While class actions give consumers a cost-
effective mechanism to bring actions for low-cost products, courts
are not permitting the low cost of products to relax the
requirements demanded by FRCP 23, including ascertainability.
Plainly stated, a class action is not viable if members of the
class cannot be identified by some objective criteria (and
trustworthy methods) such that the court and the parties can
determine who will be bound by its resolution. Although the
Second Circuit has yet to weigh in, district courts in the Second
Circuit have expressed diverging views on the applicability of the
ascertainability requirement at the class certification stage in
class actions involving low-cost consumer products.
A class action is a procedural device that permits one or more so-
called "representative" plaintiffs to prosecute a lawsuit on
behalf of a "class" of numerous individuals who allege to have
suffered the same wrong as a result of a defendant's actions or
omissions. Claims are not adjudicated on a case-by-case basis,
but rather are litigated and decided on a class-wide basis. That
is, liability and damages determinations with respect to class
representatives are deemed applicable to the class (if one is
certified). Among other things, the class action mechanism allows
individuals to enforce their rights in circumstances where
traditional case-by-case litigation would be impractical, such as
when low cost consumer products are at issue and thus the value of
the potential recovery for each plaintiff is low, especially when
weighed against the cost of litigation.
Given the sweeping nature and the massive potential impacts of
allowing actions to be aggregated and adjudicated in this manner,
the U.S. Supreme Court and federal courts of appeals have in
recent years demanded rigorous scrutiny before authorizing
certification of class actions. FRCP 23 sets out strict
requirements that plaintiffs must meet to avail themselves of the
benefits of class action adjudication. As a threshold matter, and
among other requirements, FRCP requires that plaintiffs seeking
class certification satisfy each of the four requirements of FRCP
23(a) numerosity, commonality, typicality, and adequacy. In line
with courts across the country, the Second Circuit has added a
fifth "implied requirement" for certification: ascertainability.
Ascertainability requires that the class be "readily identifiable,
such that the court can determine who is in the class and, thus,
bound by the ruling." The class must be "defined by objective
criteria that are administratively feasible, and when identifying
its members would not require a mini-hearing on the merits of each
case." Although some courts have suggested that the
ascertainability inquiry is appropriate at the class certification
stage, the Second Circuit's application of this requirement has
been a bit more liberal, requiring that class members only need to
be ascertainable "at some point in the case" -- at least in
securities cases.
The Third Circuit made waves in 2013 when it became the first
federal court of appeals that barred class certification due to
lack of ascertainability. The Third Circuit overturned the
district court's certification of a class of "all persons who
purchased WeightSmart in Florida" who were claiming defendant
deceptively advertised its "One-A-Day WeightSmart" supplement.
Although the district court had accepted plaintiffs' proposed
methods for ascertaining class membership, which included self-
reporting through customer affidavits, the Third Circuit found
that these methods of proving membership "would amount to no more
than ascertaining by potential class members' say so." The Third
Circuit recognized that such methods raise a "core [due process]
concern" for defendants. The Third Circuit further emphasized
that the ascertainability inquiry "provides due process by
requiring that a defendant be able to test the reliability of the
evidence submitted to prove class membership."
While the Second Circuit has not addressed the scope of
ascertainability at the class certification stage for low-cost
consumer products, district courts in the Second Circuit have
expressed conflicting views on the issue. In Weiner v. Snapple
Bev., plaintiffs sought certification of a class consisting of
"[a]ll persons and entities who, within the State of New York,
purchased for personal consumption and not for resale or
assignment, a Snapple beverage marketed, advertised and promoted
as 'All Natural,' but that contained [HFCS], from October 10, 2001
to January 1, 2009." Finding that plaintiffs failed to meet the
predominance requirement "because individualized inquiries as to
causation, injury, and damages for each of the millions of
putative class members would predominate," Judge Denise L. Cote
denied class certification. Cote noted that even if the
plaintiffs in Snapple could overcome the "predominance hurdle,"
plaintiffs still faced "potentially serious impediments to class
certification" due to ascertainability issues13 because plaintiffs
"failed to show how the potentially millions of putative class
members could be ascertained using objective criteria that are
administratively feasible." Plaintiffs' counsel in Snapple
proposed the "traditional" mechanisms that have been used to prove
class membership in consumer products cases, namely through
documentation including receipts, labels, or affidavits. Labeling
plaintiffs' suggestion as "unrealistic," Cote noted the obvious --
consumers do not save receipts or labels for such small purchases,
and permitting consumer affidavits as proof invites speculation or
falsification. Cote, like the Third Circuit, confronted and held
tightly to the traditional issue of ascertainability -- demanding
that purported class members have the ability to prove membership
in the objectively-defined class other than by their own say-so.
Judge Jed S. Rakoff, on the other hand, recently decided a case
with a fact pattern similar to Snapple and flatly rejected the
ascertainability standard and reasoning expressed by Cote at the
class certification stage, stating it "would render class actions
against producers almost impossible to bring." In Ebin v.
Kangadis Food, Rakoff certified plaintiffs' proposed class of
"[a]ll persons in the United States who purchased Capatriti 100%
Pure Olive Oil packed before March 1, 2013." Defendants objected
to the class on ascertainability grounds, citing to Snapple. In
dismissing defendant's objection, Rakoff stated "ascertainability
difficulties, while formidable, should not be made into a device
for defeating the action." Rakoff noted his continued
disagreement with "those aspects of Snapple discussing
ascertainability that were seemingly at odds with the Second
Circuit's prior indication that denial of certification on the
grounds of manageability alone is disfavored." Interestingly,
Rakoff rejected any notion of a split within the Second Circuit
because the holding in Snapple was based on predominance, not
ascertainability.
Likely driven by differing views on the policies and purposes of
class actions -- and specifically how those should be applied to
low-cost consumer product cases, Ebin and Snapple provide starkly
different views on appropriate methods for proving
ascertainability at the class certification stage. While Cote
criticized plaintiffs' proposal in Snapple to ascertain the class
via self-reporting, Rakoff approved "very similar," if not nearly
identical methods. Prospective members of the Ebin class could
(1) provide a claim form and receipt; (2) submit the
identification number stamped on each [product]; or (3) provide an
affidavit supplying the details of the [] purchase.24 In approving
these "traditional" methods of ascertaining the class (rejected by
Cote), Rakoff noted that these consumer fraud cases relating to
low-cost products are precisely the type that the class action
mechanism was designed to encompass. Maybe so, but as the Third
Circuit announced in Carrera v. Bayer, and Cote confirmed, courts
have not been quick to dispense with or even ease the high bar set
for class certification including satisfying the ascertainability
requirement on some basis other than a plaintiffs' say-so.
This "debate" is uniquely applicable to the low-cost consumer
product cases, given that higher ticket items typically present
fewer challenges with respect to "proof of purchase." By way of
example, purchasers of electronic media are not only more likely
to retain purchase records but they also leave a "digital trail"
that can be followed. Cote found that to be the case in In re:
Electronic Books Antitrust Litig., in which she certified a class
of e-book customers who alleged they paid inflated prices for
e-books after defendants engaged in a price-fixing conspiracy.
Cote held the class "readily ascertainable" "[d]ue to the
existence of digital transaction records." Due to the nature of
these digital goods, not only will defendants likely have
maintained records that show membership to the class, but
potential class members will likely have an electronic record as
well.
Electronic products are quite different from low-cost consumable
(and usually consumed) products like a can of soda, tube of
toothpaste, or a tin of olive oil, and courts are legitimately
concerned with the validity of claims from putative class members
where self-reporting is the only proof of membership in the class.
Not only are false claims of membership against potential
defendants fundamentally unjust, but potentially false claims also
raise a valid concern regarding dilution of legitimate claims --
as the number of invalid class members will likely decrease the
value of claims of true class members.
Despite suggestions to the contrary, requiring that
ascertainability be demonstrated at the certification stage does
not preclude or prevent low-cost consumer product claims; it
merely demands that the proposed class definition be objective and
that "proof of purchase" have some indicia of reliability to
ferret out illegitimate cases and claims earlier rather than
later. Addressing ascertainability early on at the class
certification stage not only preserves defendants' due process
rights, it spares defendants the enormous expense and courts the
enormous resources associated with consumer class actions.
Further, determining ascertainability issues at the class
certification state is appropriate given the reality that
certification of a class often leads to settlement before the
merits of the claims are ever addressed because the financial
risks to defendants of proceeding with the cases are too great.
Courts will continue to confront the difficult balancing of the
efficiency goals of class action adjudication protecting the
interests of aggrieved low-cost product consumer plaintiffs who in
certain cases effectively regulate industries as private attorney
generals with the legitimate interests and rights of defendants
who face higher litigation risks and potential hefty settlements
or potentially business-breaking judgments if a class is
certified. Although the Second Circuit has not yet taken on the
ascertainability issue in the low-cost consumer product context,
additional inconsistencies between the district courts may ripen
the issue for Second Circuit consideration.
Asbestos Litigation
ASBESTOS UPDATE: Ashland Unit Has $438MM Total Fibro Reserves
-------------------------------------------------------------
Ashland Inc.'s subsidiary had $438 million total reserves for
asbestos claims, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2014.
Ashland and Hercules, a wholly-owned subsidiary of Ashland that
was acquired in 2009, have liabilities from claims alleging
personal injury caused by exposure to asbestos. To assist in
developing and annually updating independent reserve estimates for
future asbestos claims and related costs given various
assumptions, Ashland retained Hamilton, Rabinovitz & Associates,
Inc. (HR&A). The methodology used by HR&A to project future
asbestos costs is based largely on recent experience, including
claim-filing and settlement rates, disease mix, enacted
legislation, open claims and litigation defense. The claim
experience of Ashland and Hercules are separately compared to the
results of previously conducted third party epidemiological
studies estimating the number of people likely to develop
asbestos-related diseases. Those studies were undertaken in
connection with national analyses of the population expected to
have been exposed to asbestos. Using that information, HR&A
estimates a range of the number of future claims that may be
filed, as well as the related costs that may be incurred in
resolving those claims. Changes in asbestos-related liabilities
and receivables are recorded on an after-tax basis within the
discontinued operations caption in the Statements of Consolidated
Comprehensive Income. See Note N of Notes to Consolidated
Financial Statements for additional information.
The claims alleging personal injury caused by exposure to asbestos
asserted against Ashland result primarily from indemnification
obligations undertaken in 1990 in connection with the sale of
Riley Stoker Corporation (Riley), a former subsidiary. The amount
and timing of settlements and number of open claims can fluctuate
significantly from period to period.
From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated, non-
discounted approximate 50-year model developed with the assistance
of HR&A.
During the most recent update, completed during 2014, it was
determined that the liability for Ashland asbestos claims should
be increased by $4 million. Total reserves for asbestos claims
were $438 million at September 30, 2014, compared to $463 million
at September 30, 2013.
Founded in 1918 and headquartered in Covington, Kentucky,
Ashland Inc. operates as a specialty chemicals company in the
United States and internationally. It operates through four
segments: Specialty Ingredients, Water Technologies, Performance
Materials, and Consumer Markets.
ASBESTOS UPDATE: Ashland Unit Has $402MM Fibro Cost Receivables
---------------------------------------------------------------
Ashland Inc.'s subsidiary has $402 million receivable for
recoveries of asbestos-related litigation defense and claim
settlement costs from insurers, according to the Company's Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended September 30, 2014.
At September 30, 2014, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to $402 million (excluding the Hercules receivable for
asbestos claims), of which $85 million relates to costs previously
paid.
Ashland has insurance coverage for most of the litigation defense
and claim settlement costs incurred in connection with its
asbestos claims, and coverage-in-place agreements exist with the
insurance companies that provide most of the coverage currently
being accessed. As a result, any increases in the asbestos reserve
have been largely offset by probable insurance recoveries. The
amounts not recoverable generally are due from insurers that are
insolvent, rather than as a result of uninsured claims or the
exhaustion of Ashland's insurance coverage.
For the Ashland asbestos-related obligations, Ashland has
estimated the value of probable insurance recoveries associated
with its asbestos reserve based on management's interpretations
and estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. Approximately 68% of the estimated
receivables from insurance companies are expected to be due from
domestic insurers, all of which have a credit rating of B+ or
higher by A. M. Best, as of September 30, 2014. The remainder of
the insurance receivable is due from London insurance companies,
which generally have lower credit quality ratings, and from
Underwriters at Lloyd's, whose insurance policy obligations have
been transferred to a subsidiary of Berkshire Hathaway. Ashland
discounts this portion of the receivable based upon the projected
timing of the receipt of cash from those insurers unless likely
settlement amounts can be determined.
During 2012, Ashland received $7 million in cash after reaching a
settlement with certain insolvent London market insurance
companies. The cash received from this settlement was recognized
as an after-tax gain of $6 million within discontinued operations
of the Statement of Consolidated Comprehensive Income since
Ashland's policy is to not record asbestos receivables for any
carriers that are insolvent until cash is received.
In October 2012, Ashland initiated arbitration proceedings against
Underwriters at Lloyd's and certain Chartis (AIG member) companies
seeking to enforce these insurers' contractual obligations to
provide indemnity for asbestos liabilities and defense costs under
existing coverage-in-place agreements. In addition, Ashland has
initiated a lawsuit in Kentucky state court against certain
Berkshire Hathaway entities (National Indemnity Company and
Resolute Management Inc.) on grounds that these Berkshire entities
have wrongfully interfered with Underwriters' and Chartis'
performance of their respective contractual obligations to provide
asbestos coverage by directing the insurers to reduce and delay
certain claim payments. While Ashland anticipates its position
will be supported by the proceedings, an adverse resolution of
these proceedings could have a significant effect on the timing of
loss reimbursement and the amount of Ashland's recorded insurance
receivables from these insurers.
At September 30, 2014, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to $402 million (excluding the Hercules receivable for
asbestos claims), of which $85 million relates to costs previously
paid. Receivables from insurers amounted to $408 million at
September 30, 2013. During 2014, the model used for purposes of
valuing the asbestos reserve described above, and its impact on
valuation of future recoveries from insurers, was updated. This
model update resulted in a $7 million increase in the receivable
for probable insurance recoveries. In September 2014 a $20 million
payment from an insurer related to costs previously paid was
received. As a result, certain model assumptions related to the
timing of receipt payments were updated to incorporate this
payment resulting in a $15 million increase to the receivable as
of September 30, 2014.
Founded in 1918 and headquartered in Covington, Kentucky,
Ashland Inc. operates as a specialty chemicals company in the
United States and internationally. It operates through four
segments: Specialty Ingredients, Water Technologies, Performance
Materials, and Consumer Markets.
ASBESTOS UPDATE: Ashland's Hercules Has $329MM Fibro Reserves
-------------------------------------------------------------
Ashland Inc.'s Hercules had $329 million total reserves for
asbestos claims, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2014.
Hercules, a wholly-owned subsidiary of Ashland acquired during
2009, has liabilities from claims alleging personal injury caused
by exposure to asbestos. Such claims typically arise from alleged
exposure to asbestos fibers from resin encapsulated pipe and tank
products which were sold by one of Hercules' former subsidiaries
to a limited industrial market. The amount and timing of
settlements and number of open claims can fluctuate significantly
from period to period.
From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated, non-
discounted approximate 50-year model developed with the assistance
of HR&A. During the most recent annual update of this estimate,
completed during 2014, it was determined that the liability for
Hercules asbestos-related claims should be increased by $10
million. Total reserves for asbestos claims were $329 million at
September 30, 2014 compared to $342 million at September 30, 2013.
Founded in 1918 and headquartered in Covington, Kentucky,
Ashland Inc. operates as a specialty chemicals company in the
United States and internationally. It operates through four
segments: Specialty Ingredients, Water Technologies, Performance
Materials, and Consumer Markets.
ASBESTOS UPDATE: Ashland's Hercules Has $77MM Fibro Receivables
---------------------------------------------------------------
Ashland Inc.'s Hercules had $77 million insurance receivables for
asbestos costs, according to the Company's Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2014.
For the Hercules asbestos-related obligations, certain coverage-
in-place agreements with insurance carriers exist. As a result,
any increases in the asbestos reserve have been partially offset
by probable insurance recoveries. Ashland has estimated the value
of probable insurance recoveries associated with its asbestos
reserve based on management's interpretations and estimates
surrounding the available or applicable insurance coverage,
including an assumption that all solvent insurance carriers remain
solvent. As of September 30, 2014, this estimated receivable
consists exclusively of domestic insurers, all of which have a
credit rating of B+ or higher by A. M. Best.
As of September 30, 2014 and 2013, the receivables from insurers
amounted to $77 million and $75 million, respectively. During
2014, the model used for purposes of valuing the asbestos reserve
and its impact on valuation of future recoveries from insurers was
updated. This model update caused a $3 million increase in the
receivable for probable insurance recoveries.
Projecting future asbestos costs is subject to numerous variables
that are extremely difficult to predict. In addition to the
significant uncertainties surrounding the number of claims that
might be received, other variables include the type and severity
of the disease alleged by each claimant, the long latency period
associated with asbestos exposure, dismissal rates, costs of
medical treatment, the impact of bankruptcies of other companies
that are co-defendants in claims, uncertainties surrounding the
litigation process from jurisdiction to jurisdiction and from case
to case, and the impact of potential changes in legislative or
judicial standards. Furthermore, any predictions with respect to
these variables are subject to even greater uncertainty as the
projection period lengthens. In light of these inherent
uncertainties, Ashland believes that the asbestos reserves for
Ashland and Hercules represent the best estimate within a range of
possible outcomes. As a part of the process to develop these
estimates of future asbestos costs, a range of long-term cost
models was developed. These models are based on national studies
that predict the number of people likely to develop asbestos-
related diseases and are heavily influenced by assumptions
regarding long-term inflation rates for indemnity payments and
legal defense costs, as well as other variables mentioned
previously. Ashland has currently estimated in various models
ranging from approximately 40 to 50 year periods that it is
reasonably possible that total future litigation defense and claim
settlement costs on an inflated and undiscounted basis could range
as high as approximately $870 million for the Ashland asbestos-
related litigation and approximately $670 million for the Hercules
asbestos-related litigation (or approximately $1.5 billion in the
aggregate), depending on the combination of assumptions selected
in the various models. If actual experience is worse than
projected relative to the number of claims filed, the severity of
alleged disease associated with those claims or costs incurred to
resolve those claims, Ashland may need to increase further the
estimates of the costs associated with asbestos claims and these
increases could potentially be material over time.
Founded in 1918 and headquartered in Covington, Kentucky,
Ashland Inc. operates as a specialty chemicals company in the
United States and internationally. It operates through four
segments: Specialty Ingredients, Water Technologies, Performance
Materials, and Consumer Markets.
ASBESTOS UPDATE: Mallinckrodt plc Had 11,900 PI Cases at Sept. 26
-----------------------------------------------------------------
Mallinckrodt plc had 11,900 pending asbestos-related cases,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 26, 2014.
Beginning with lawsuits brought in July 1976, the Company is 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 September 26, 2014, there were approximately
11,900 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 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 plc, and its subsidiaries is a global company that
develops, manufactures, markets and distributes both branded and
specialty generic pharmaceuticals, active pharmaceutical
ingredients ("API") and diagnostic imaging agents.
ASBESTOS UPDATE: Scotts Miracle Continues to Defend PI Lawsuits
---------------------------------------------------------------
The Scotts Miracle-Gro Company continues to defend itself against
a number of cases alleging asbestos-related injuries, according to
the Company's Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended September 30, 2014.
The Company states: "We have been named as a defendant in a number
of cases alleging injuries that the lawsuits claim resulted from
exposure to asbestos-containing products, apparently based on our
historic use of vermiculite in certain of our products. In many of
these cases, the complaints are not specific about the plaintiffs'
contacts with us or our products. The cases vary, but complaints
in these cases generally seek unspecified monetary damages
(actual, compensatory, consequential and punitive) from multiple
defendants. We believe that the claims against us are without
merit and are vigorously defending against them. It is not
currently possible to reasonably estimate a probable loss, if any,
associated with the cases and, accordingly, no reserves have been
recorded in our consolidated financial statements. We are
reviewing agreements and policies that may provide insurance
coverage or indemnity as to these claims and are pursuing coverage
under some of these agreements and policies, although there can be
no assurance of the results of these efforts. There can be no
assurance that these cases, whether as a result of adverse
outcomes or as a result of significant defense costs, will not
have a material adverse effect on our financial condition, results
of operations or cash flows."
The Scotts Miracle-Gro Company and its subsidiaries are engaged in
the manufacturing, marketing and sale of consumer branded products
for lawn and garden care.
ASBESTOS UPDATE: Cabot Corp. Has 41,000 AO Fibro Claimants
----------------------------------------------------------
There were 41,000 claimants who filed asbestos-related claims
arising from Crane Co.'s American Optical Corporation respiratory
products, according to the Company's Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
September 30, 2014.
The Company states: "We have exposure in connection with a safety
respiratory products business that a subsidiary acquired from
American Optical Corporation ("AO") in an April 1990 asset
purchase transaction. The subsidiary manufactured respirators
under the AO brand and disposed of that business in July 1995. In
connection with its acquisition of the business, the subsidiary
agreed, in certain circumstances, to assume a portion of AO's
liabilities, including costs of legal fees together with amounts
paid in settlements and judgments, allocable to AO respiratory
products used prior to the 1990 purchase by the Cabot subsidiary.
In exchange for the subsidiary's assumption of certain of AO's
respirator liabilities, AO agreed to provide to the subsidiary the
benefits of: (i) AO's insurance coverage for the period prior to
the 1990 acquisition and (ii) a former owner's indemnity of AO
holding it harmless from any liability allocable to AO respiratory
products used prior to May 1982.
"Generally, these respirator liabilities involve claims for
personal injury, including asbestosis, silicosis and coal worker's
pneumoconiosis, allegedly resulting from the use of respirators
that are alleged to have been negligently designed and/or labeled.
Neither Cabot, nor its past or present subsidiaries, at any time
manufactured asbestos or asbestos-containing products. At no time
did this respiratory product line represent a significant portion
of the respirator market.
"The subsidiary transferred the business to Aearo Corporation
("Aearo") in July 1995. Cabot agreed to have the subsidiary retain
certain liabilities associated with exposure to asbestos and
silica while using respirators prior to the 1995 transaction so
long as Aearo paid, and continues to pay, Cabot an annual fee of
$400,000. Aearo can discontinue payment of the fee at any time, in
which case it will assume the responsibility for and indemnify
Cabot against those liabilities which Cabot's subsidiary had
agreed to retain. We anticipate that we will continue to receive
payment of the $400,000 fee from Aearo and thereby retain these
liabilities for the foreseeable future. We have no liability in
connection with any products manufactured by Aearo after 1995.
"In addition to Cabot's subsidiary, other parties are responsible
for significant portions of the costs of respirator liabilities,
leaving Cabot's subsidiary with a portion of the liability in only
some of the pending cases. These parties include Aearo, AO, AO's
insurers, another former owner and its insurers, and a third-party
manufacturer of respirators formerly sold under the AO brand
(collectively, with Cabot's subsidiary, the "Payor Group").
"As of September 30, 2014 and 2013, there were approximately
41,000 and 42,000 claimants, respectively, in pending cases
asserting claims against AO in connection with respiratory
products. Cabot has contributed to the Payor Group's defense and
settlement costs with respect to a percentage of pending claims
depending on several factors, including the period of alleged
product use. In order to quantify our estimated share of liability
for pending and future respirator liability claims, we have
engaged, through counsel, the assistance of Hamilton, Rabinovitz &
Alschuler, Inc. ("HR&A"), a leading consulting firm in the field
of tort liability valuation. The methodology used by HR&A
addresses the complexities surrounding our potential liability by
making assumptions about future claimants with respect to periods
of asbestos, silica and coal mine dust exposure and respirator
use. Using those and other assumptions, HR&A estimates the number
of future asbestos, silica and coal mine dust claims that will be
filed and the related costs that would be incurred in resolving
both currently pending and future claims. On this basis, HR&A then
estimates the value of the share of these liabilities that reflect
our period of direct manufacture and our contractual obligations.
Based on the HR&A estimates, we have recorded a $13 million
reserve for our estimated share of liability for pending and
future respirator claims. We made payments related to our
respirator liability of $2 million in each of fiscal 2014, 2013
and 2012.
"Our current estimate of the cost of our share of existing and
future respirator liability claims is based on facts and
circumstances existing at this time. Developments that could
affect our estimate include, but are not limited to, (i)
significant changes in the number of future claims, (ii) changes
in the rate of dismissals without payment of pending silica and
non-malignant asbestos claims, (iii) significant changes in the
average cost of resolving claims, (iv) significant changes in the
legal costs of defending these claims, (v) changes in the nature
of claims received, (vi) changes in the law and procedure
applicable to these claims, (vii) the financial viability of
members of the Payor Group, (viii) a change in the availability of
AO's insurance coverage or the indemnity provided by AO's former
owner, (ix) changes in the allocation of costs among the Payor
Group, and (x) a determination that the assumptions that were used
to estimate our share of liability are no longer reasonable. We
cannot determine the impact of these potential developments on our
current estimate of our share of liability for these existing and
future claims. Accordingly, the actual amount of these liabilities
for existing and future claims could be different than the
reserved amount."
Cabot Corporation manufactures several industrial materials
including specialty chemicals commonly found both inside household
and in industrial applications. Some of the major product
offerings are fumed metal oxide which is often found in cosmetics,
pharmaceuticals, and composites.
ASBESTOS UPDATE: Abandoned Fibro Mines Still a Hazard in India
--------------------------------------------------------------
Katy Daigle, writing for the Associated Press, reported that
asbestos waste spills in a gray gash down the flank of a lush
green hill above tribal villages in eastern India. Three decades
after the mines were abandoned, nothing has been done to remove
the enormous, hazardous piles of broken rocks and powdery dust
left behind.
In Roro Village and other settlements, people who never worked in
the mines are dying of lung disease. Yet in a country that treats
asbestos as a savior that provides cheap building materials for
the poor, no one knows the true number and few care to ask.
"I feel weak, drained all the time," Baleman Sundi gasped, pushing
the words out before she lost her breath. "But I must work." The
65-year-old paused, inhaled. "I don't have a choice." Another
gasp. "I have to eat."
Sundi and 17 others from a clutch of impoverished villages near
the abandoned hilltop mines were diagnosed in 2012 with
asbestosis, a fatal lung disease. One has since died. Tens of
thousands more remain untested and at risk. Asbestos makes up as
much as 14.3 percent of the soil around Roro Village, analysis of
samples gathered by The Associated Press showed.
The 17 surviving patients are suing in the country's environmental
court for cleanup, compensation and a fund for future victims. If
they win, the case would set precedents for workplace safety and
corporate liability, both often ignored in India.
Neither the government nor the Indian company that ran the mines
from 1963 to 1983 has made any move to clean up the estimated
700,000 tons of asbestos tailings and debris left scattered across
several kilometers (miles) of hilly mining area.
"The company had followed all rules and procedures for closure of
a mine and had complied with the provisions of the law, as in
force in 1983," a spokesman for Hyderabad Asbestos Cement Products
Ltd., now known as HIL Ltd., told AP.
India placed a moratorium on asbestos mining in 1986,
acknowledging it was hazardous to miners. But that was the
government's last decision curtailing the spread of asbestos. It
has since embraced the mineral as a cheap building material.
Today, India is the world's fastest-growing market for asbestos.
India keeps no statistics on how many people have been sickened or
died from exposure to asbestos, which industry and many government
officials insist is safe when mixed with cement.
Western medical experts strongly disagree.
The World Health Organization and more than 50 countries,
including the U.S. and all of Europe, say it should be banned in
all forms. Asbestos fibers lodge in the lungs and cause many
diseases. The International Labor Organization estimates 100,000
people die every year from workplace exposure.
"My greatest concern is what will happen in India. It's a slow-
moving disaster, and this is only the beginning," said Philip
Landrigan, a prominent New York epidemiologist.
From the top of Roro Hill, a small boy leaped out to slide down
the cascade of fluffy grey dust. A few villagers followed, nudging
a herd of cows and goats. Huge clouds billowed in their wake.
The villagers often ignore the warnings from visiting doctors or
activists to stay away from the waste. Many just don't believe
dust and rocks could be dangerous. Others are more fatalistic.
"We tell the children, don't go there. But they are children, you
cannot control them," said 56-year-old Jema Sundi, diagnosed with
asbestosis though she never went into the mines.
She then noticed her 4-year-old nephew Vijay, his tiny body
covered with chalky white streaks, shrinking into himself as if
trying to disappear. "You went up there today again?" she
exclaimed.
Vijay, lowering his head, attempted a half-smile.
"It's heartbreaking. Kids are playing on it. People are stirring
it up. You don't have to inhale much to put a cap on your life,"
said Richard Fuller of the Blacksmith Institute, a New York-based
watchdog that estimates 50,000 people could be at risk.
Hydrabad Asbestos employed about 1,500 people in the Roro asbestos
mines in Jharkhand state.
The company said it followed strict health and safety policies,
and "no health or environmental damage was reported during the
mine operations." It did not say if it sent anyone to check on the
villagers' health after the mines closed. Villagers told the AP
they were never invited for a company-sponsored checkup after
1983.
The fact that Sundi and the other plaintiffs had the opportunity
for a diagnosis was rare. Like most living near Roro Hill, they
cannot read or write.
"The idea that the environment, something that has always provided
and been taken for granted, could be causing them harm is a notion
that just doesn't occur to them," said T.K. Joshi, a doctor who
heads India's only university department specializing in
occupational health. "And unfortunately, most Indian doctors are
not trained to ask the right questions."
Activists, doctors and lawyers have described an almost Kafkaesque
effort to hold the government and company accountable over the
past decade. At the time the mines were open, Jharkhand state
didn't even exist. The land was part of a wider Bihar state, with
its capital and paperwork held in a different city. Neither state
has been able to produce the 30-year-old documents about the
mine's closure.
"As far as environmental issues are concerned, we have already
dealt with it," said Jharkhand's Mining Secretary Arun, who uses
only one name.
In 2012, an activist group selected 150 Roro-area villagers for
chest X-rays. The plates were examined by Dr. V. Murlidhar, an
occupational health specialist, who confirmed 18 had the tell-tale
honeycomb pattern that denotes asbestosis. The results were not
surprising, he said, and "more cases are likely" because
asbestosis develops over decades of exposure.
Lawyer Krishnendu Mukherjee, who is spearheading the case, has
high hopes for a judgment that awards the plaintiffs and future
claimants with generous compensation. A strong verdict, he said,
will tell companies such as HIL that "it's not permissible to
simply leave a mine, a factory, whatever it is, in a state of
abandonment."
ASBESTOS UPDATE: Developer Faces Jail Time Over Fibro Mishandling
-----------------------------------------------------------------
Sioux Falls Business Journal reported that a developer who bought
the old YMCA building in Sioux City, Iowa, pleaded guilty to
knowingly mishandling asbestos during demolition and renovation.
Larry Wolf of Dakota City, Neb., bought the building in 2009. He
was convicted of one count of violating the work practice
standards of the Clean Air Act by failing to thoroughly inspect
the old YMCA to determine the amount of asbestos it contained and
whether that amount was sufficient to subject the demolition
project to regulation.
At a plea hearing, Wolf said he learned the building contained
asbestos and regulated asbestos-containing material when he,
within six months of his purchase of the building, was told so by
the building's former custodian.
Representatives of an environmental remediation and demolition
firm provided Wolf with an asbestos abatement estimate of
$171,792.00 in 2010.
Wolf also admitted that despite knowing the old YMCA contained
asbestos, from July of 2009 until the end of March in 2011, he and
others at his direction violated Clean Air Act Work-Practice
Standards by demolishing, renovating, removing, disposing of
and/or disturbing asbestos and regulated asbestos-containing
material from the building.
Wolf also sold copper, brass, aluminum, and other metals from the
old YMCA after he had removed regulated asbestos-containing
material wrappings from the metals and said he made $80,000.00 or
more from the project this way.
In addition Wolf admitted that in the summer of 2010, when asked
by one of his employees if the building was safe for working, he
said the building had been abated for asbestos, which he knew was
incorrect.
Wolf faces a possible maximum sentence of five years'
imprisonment, a $250,000 fine, $100 in special assessments, and up
to three years of supervised release following any imprisonment.
ASBESTOS UPDATE: Pa. Justices Deny Multiple-Trigger Theory
----------------------------------------------------------
Lizzy McLellan, writing for The Legal Intelligencer, reported that
the Pennsylvania Supreme Court has placed a limit on the multiple-
trigger theory of liability insurance coverage through a recent
decision on the liability of a plumbing company's insurer.
In Pennsylvania National v. St. John, the justices decided that
this theory, adopted by the state Supreme Court for asbestos
bodily injury claims, does not apply to property damages incurred
by John and Kathy St. John's dairy farm due to a plumbing
company's negligence.
"The issue is more the overarching impact that it has on
policyholders' efforts to apply the continuous trigger to all
sorts of cases that are not asbestos-related," said Randy Maniloff
of White and Williams, who was not involved in the case. "The
court has really put the kibosh on that argument."
The multiple-trigger theory was applied in J.H. France v. Allstate
Insurance, an asbestos bodily injury case, but that was an
exception to the general rule for the trigger of commercial
general liability coverage, Justice Max Baer wrote for the
majority, joined by Chief Justice Ronald D. Castille and Justice
J. Michael Eakin. This theory, if applied, allows coverage under
each of the multiple policies in effect during a continuous,
progressive injury.
"Here, the damage sustained by the appellants' dairy herd,
occasioned by LPH Plumbing's negligent installation of the
plumbing system, did not lay dormant for an extended period," Baer
said. "Accordingly, this case does not present the problematic
scenario where a risk-averse insurer takes steps to limit or
terminate coverage, in anticipation of future claims that have not
yet materialized but can be predicted with near certainty."
The majority also decided the claim should be covered through the
plumbing company's 2004 commercial general liability policy with
Penn National, the policy in effect when the first damages began
to manifest, rather than the 2006 policy, which was in effect when
the St. Johns noticed strange behavior in the cows and determined
the cause of the damages. In so doing, they affirmed a ruling from
the Superior Court and trial court.
Justice Thomas G. Saylor filed a dissenting opinion, writing that
the appellants' argument does not fit the language of the Penn
National policy. Justice Debra M. Todd dissented as well. Both
Saylor and Todd said the appeal was improvidently granted.
"Since Penn National stipulated that property damage took place
during each of the three policy periods . . . I am unable to
discern an explicit reason deriving from unambiguous policy
language brought into issue in this appeal why coverage should not
obtain under each such period," Justice Saylor said.
Justice Saylor said he is not as certain as the majority that the
multiple-trigger theory is inapplicable in the case. He also wrote
that the arguments of the parties do not align with the language
of the Penn National policy, making it difficult for the court to
provide meaningful guidance through this specific case.
"[Saylor] echoed some of my own views with regard to the viability
of certain arguments . . . with regard to [the court] saying you
can't have application of the multiple-trigger theory," said
Douglas R. Widin of Reed Smith, who represented the St. Johns,
along with Donna M. Doblick and Jay M. Levin of the same firm.
Insurers are likely to latch onto the majority's decisions about
the multiple-trigger theory in this case, said Widin.
"To say it's disappointing would be an understatement," Widin
said. "I think that it's opening the door to some greater
retraction in application of the multiple-trigger theory, but
we'll have to see what happens in the future."
Michael P. McKenna of Margolis Edelstein, attorney for Penn
National, said the decision clarifies case law, lining up with the
decision in D'Auria v. Zurich, which said coverage is triggered
the first time a negligent act manifests itself in a way that
would reasonably indicate property damages.
"With regard to first-manifestation trigger of coverage, it brings
predictability to how insurance coverage is triggered," said
McKenna. "It reaffirms that longstanding D'Auria court opinion."
The St. Johns are the owners of a dairy farm in Chester County,
and hired LPH Plumbing in 2002 to install a new plumbing system,
the Supreme Court opinion said. The system was defective, causing
contamination of the dairy herd's drinking water, it said.
The contamination began to cause health problems in the cows in
2004, the court said, but the appellants began to suspect a
problem with the drinking water in 2006, when they noticed that
the cows were refusing to drink the water.
The trial court in 2010 declared that Penn National was liable for
paying the judgment against LPH Plumbing under the commercial
general liability policy for the period of July 2003 to July 2004,
Baer wrote.
The St. Johns, in their motion for post-trial relief and
subsequent appeal to the Superior Court, said the injury
manifested no earlier than 2006, or alternatively that the cows
were affected by multiple or continuous occurrences, thus
triggering multiple policies. They made the same arguments in
their appeal to the Supreme Court.
The court has previously decided, in J.H. France, an asbestos
bodily injury case, that the multiple-trigger theory could apply
to continuous, progressive property damage.
"Our decision to apply the multiple-trigger theory of liability in
J.H. France was predicated on the language of the policies at
issue and the nature of the injuries giving rise to the insured's
liability," Baer said.
However, Baer said, the first-manifestation rule has served as the
test for determining coverage under commercial general liability
policies since 1986, with the exception of asbestos claims.
"Our holding in J.H. France remains an exception to the general
rule under Pennsylvania jurisprudence that the first-manifestation
rule governs a trigger of coverage analysis for policies
containing standard CGL language," Baer said.
Not the End
The Pennsylvania Defense Institute and the Insurance Federation of
Pennsylvania filed as amici in the case.
William T. Salzer of Swartz Campbell, attorney for the Insurance
Federation, said the court's decision aligned with the
federation's position that the multiple trigger was limited to
asbestos cases.
"It's good to have a clear-line rule that it's not applicable to
other kinds of litigation," said Salzer.
But the decision does leave some questions unanswered, he said.
For instance, it does not clarify what types of latent diseases
other than asbestos-related conditions would fit into the
multiple-trigger context.
"I think you could have a latent bodily injury toxic tort case
that if the medical evidence shows that it's late and progressive,
even if it's not asbestos-related, it could be applied to that
claim," said Salzer. "It's just going to be for another day. I
don't know that this case really has any bearing on that."
Maniloff agreed that this case is likely not the end of the
continuous-trigger debate.
"I would not have been surprised to see the court adopt a
continuous trigger here," he said. "It had the earmarks of a
continuous trigger."
Maniloff said that while the court's decision severely limits the
multiple-trigger theory outside of asbestos bodily injury, he
expects that policyholders will dissect the facts of this case for
comparison in their own claims in pursuit of continuous coverage.
"Continuous-trigger or continuous-coverage cases are very
factually intensive," said Maniloff. "I think that people will
scrutinize this decision."
Alan S. Miller of Picadio Sneath Miller & Norton, the attorney for
the Defense Institute, did not return a call seeking comment.
ASBESTOS UPDATE: Firms Fined for Risking Workers to Fibro
---------------------------------------------------------
Northampton Chronicle reported that more than GBP25,000 of fines
has been handed to two Northampton firms after 'serious asbestos
related failings' were discovered during a renovation project in
Far Cotton.
Northampton Magistrates' Court heard on December 22 how Lifting
Systems Ltd, had contracted Durasteel Services Ltd to refurbish an
asbestos cement roof at its Crown Works at Main Road in Far
Cotton.
When inspectors from the Health and Safety Executive (HSE) visited
the site on October 22, 2013, to check the work they found
asbestos insulation board had been removed and stored on the
premises, and that debris had been placed in waste skips around
the site.
A 'Prohibition Notice' was served to immediately stop any further
work and a subsequent investigation found that although Lifting
Systems Ltd was the client, the company had undertaken a lot of
the refurbishment work itself, including the removal of the
majority of old asbestos cement roofing panels. It did not have
an up-to-date asbestos register and did not carry out a demolition
and refurbishment survey, magistrates heard, which would have
highlighted areas of asbestos to be considered during the
refurbishment.
Durasteel Services Ltd, of Kingsheath Industrial Estate, failed to
carry out an assessment to identify the potential for asbestos to
be disturbed and put effective control measures in place.
The court was also told that neither company had a licence to
remove the potentially lethal material, linked to delayed lung
conditions such as mesothelioma.
Lifting Systems Ltd, was fined GBP14,000 and ordered to pay GBP523
in costs after pleading guilty to three breaches of the Control of
Asbestos Regulations 2012.
Durasteel Services Ltd, of Kingsfield Way, Kingsfield Heath
Industrial Estate, Northampton, was fined GBP10,000 and ordered to
pay costs of GBP523 after admitting one breach of the same
regulations.
Speaking after the hearing, HSE inspector Sam Russell said: "This
case highlights the importance of businesses having strong
policies to enable identification of asbestos as part of their
normal working practices.
"The refurbishment work started three months before HSE visited
the site, so the risks from asbestos had not been controlled for
some time.
"Lifting Systems Ltd made little effort to survey or identify
asbestos in the premises before starting work, so failed to
identify the presence of asbestos insulation board lining panels
underneath the asbestos roofing sheets.
"The panels were broken up and placed in skips, putting
construction workers and other employees at risk of exposure to
carcinogenic asbestos fibres.
"An asbestos survey had been carried out by the previous owners of
the premises and highlighted the asbestos which was removed.
"However, the premises had been derelict for a period of time and
the infrastructure had been damaged and vandalised meaning the old
survey was not current and fit for purpose and a new one was
required.
"Durasteel Services Ltd was complicit in the removal of asbestos
insulation board during the refurbishment. The company should have
conducted an assessment to see if any work it undertook would have
the potential to disturb asbestos materials and taken appropriate
action to introduce control measures."
On average, 20 tradespeople die each week from asbestos-related
diseases.
ASBESTOS UPDATE: Fibro Contamination Probed at NC Auditorium
------------------------------------------------------------
Joe Killian, writing for News & Record, reported that employees
and contractors in Greensboro, North Carolina, may have been
exposed to asbestos while working toward the demolition of War
Memorial Auditorium.
The exposure, which may have begun as early as August and was
reported online by YES Weekly, is the focus of an investigation by
the federal Occupational Safety and Health Administration (OSHA).
The administration is expected to finish its investigation next
week, according to city officials.
"One of our staff members went through in August and identified
that there may be some asbestos," said city spokesman Donnie
Turlington in an interview.
The building, constructed in 1959, was closed in September and
readied for demolition.
"At the same time, right after the building closed, they also went
through the auction process -- seats, getting seats and furniture
out of there," Turlington said. "A scrap company agreed to take
out a lot of things. In the process of the scrappers going in to
pull out the stuff, they disturbed some of the asbestos."
Turlington said there seems to have been a "miscommunication" that
allowed the scrappers to continue their work despite the knowledge
of asbestos, which can cause cancer and lung disease if workers
are exposed to it.
Brandon Hill, a construction project manager with the city,
described the problem in an e-mail on October 13, after which work
was halted and the building shut down.
"What we found was the worst case scenario of what we tried to
warn staff about in August," Hill wrote. "By allowing the
scrappers and everyone else to come into the building before it
was abated has caused a rather large issue."
"No one should be allowed in the building from this point on,"
Hill wrote. "Anyone working in the building should be removed. The
doors are to be covered with plywood and taped. No one should
enter the building."
It is not clear how many contract workers or city employees may
have been exposed, Turlington said. The best estimate is currently
fewer than 6, Turlington said.
Greensboro City Council members were not made aware of the
problems until this week, Turlington said.
"We've actually got some information that's going out to the
council now," Turlington said. "The city manager's office is
getting their hands down into it now. It's just one of those
things where we were trying to get the facts and details
together."
ASBESTOS UPDATE: 9th Cir. to Examine Order Granting New Trial
-------------------------------------------------------------
David Yates, writing for The Southeast Texas Record, reported that
a few weeks from now, the Texas Ninth Court of Appeals will once
again examine a Beaumont judge's decision to throw out a jury
verdict in favor of of DuPont De Nemours following a billion-
dollar asbestos trial.
Since 2007, the Southeast Texas Record has reported on the
asbestos litigation filed by plaintiff Caryl Richardson on behalf
of her deceased father and refinery worker, Willis Whisnant Jr.
DuPont won a jury verdict in early 2008, defeating a group of
plaintiffs that sought as much as $4.1 billion in damages, court
records show.
Following the no negligence verdict, plaintiff's attorney Glen
Morgan, of the Beaumont law firm Reaud, Morgan & Quinn, filed a
motion for a new trial, arguing the evidence did not support the
jury's verdict. He also accused the Southeast Texas Record of
jury tampering and of being agents of DuPont, court papers say.
Judge Donald Floyd, 172nd District Court, granted the motion in a
May 28, 2008, order, but offered no explanation for his decision.
DuPont appealed and the case circulated through the appellate
courts before the Texas Supreme Court in 2009 ordered Judge Floyd
to disclose his reasons for granting the new trial, court records
show.
After a long series of continuances, on Sept. 10 Floyd once again
issued an order granting Morgan's motion for a new trial, finding
that the jury's answer of "no" as to the question of DuPont's
alleged negligence is against the "great weight and preponderance
of the evidence."
Unlike his previous one-page order, Floyd's most recent order goes
on for six-pages and cites the testimony of the plaintiffs'
experts and Whisnant's co-workers as the reasons behind his
decision.
A month later, DuPont appealed, asserting Floyd's order does not
"pass muster," court papers say.
"The trial court granted a new trial on grounds that the jury's
verdict against Plaintiffs was contrary to the great weight and
preponderance of the evidence, adopting verbatim an order prepared
by Plaintiffs' counsel that ignored the evidence supporting the
verdict and, further, wrongly stated that DuPont produced no such
evidence," states DuPont's petition for writ of mandamus.
"As this petition will demonstrate, the trial court misapplied
Texas law which: (one) limits the discretion of trial courts to
reasons that are legally valid when nullifying jury verdicts and
granting new trials, (two) prohibits courts from granting new
trials on great-weight grounds based solely on evidence supporting
one side, and (three) prohibits courts from nullifying jury
verdicts on greatweight grounds when the record shows that the
jury resolved conflicting evidence and credibility issues."
Ninth Court justices will hear oral arguments on Jan. 22.
Court records show that Whisnant, a former subcontractor for
DuPont from 1966 to 1975, was in his late 70s when he died from
cancer that plaintiffs allege was caused by asbestos exposure.
Whisnant's treating physician had diagnosed him with lung cancer
and his official death certificate attributed his death to lung
cancer probably caused by smoking, court papers say.
Floyd's relationship with Reaud Morgan & Quinn extends past the
courtroom.
Morgan and his firm (RMQ) were one of Floyd's top financial
supporters in his 2013-2014 campaign for re-election, which the
judge narrowly won on Nov. 4.
Campaign finance records show RMQ donated $15,000 to Floyd on Nov.
26, 2013. Reaud & Associates donated $15,000 on Nov. 4, 2013.
Furthermore, Floyd's unspecific orders granting new trials to
plaintiffs have been a matter for review for the Supreme Court in
the past.
On Aug. 31, 2012, the high court granted, in part, United
Scaffolding's petition for writ of mandamus, which argued Floyd's
amended order for granting a new trial was still too vague.
In December 2008, a Jefferson County jury found that plaintiff
James Levine was 49 percent responsible for stepping through a
hole in a scaffold and falling several feet, but still awarded the
man $178,000 in future medical expenses for his injuries.
Levine was awarded no damages for his alleged past and future
mental anguish, impairment or pain. Nor did the jury award any
damages to his wife, Lisa, who sought money for loss of
consortium, court records show.
At the plaintiffs' request, Floyd granted the Levines a new trial,
simply stating that it was "in the interests of justice and
fairness."
DuPont is represented in part by MehaffyWeber attorney Sandra
Clark and M.C. Carrington.
Trial case No. E159-183Q
Appeals case No. 09-14-00465-CV
ASBESTOS UPDATE: Jail Workers May Have Been Exposed to Fibro
------------------------------------------------------------
CBC News reported that the union that represents workers at the
jail in Sudbury, Ontario, says some employees have likely been
exposed to asbestos.
The Ministry of Correctional Services confirms the substance was
found during renovations to the ventilation system.
The president of the OPSEU local that represents correctional
workers and support staff at the Sudbury jail said asbestos was
disturbed during the renovations, and it's believed some people
were exposed to airborne fibres over a two-day period.
"While the contractor work was going on, it wasn't realized until
sometime [later] that there was asbestos-containing material in
that area," Nathan Aubin said
There are 129 unionized workers at the Sudbury jail, he added.
It's not clear exactly how many workers or inmates may have been
exposed.
The Ministry said it was dealing with the concerns of asbestos by
closing off the admitting and discharge area, as well as the
tunnel between the Sudbury jail and the court house.
It also said that alternative arrangements for the admitting,
discharging and transferring of inmates to and from courts have
been established.
Workers are filling out Workplace Safety and Insurance Board forms
to document the exposure in case of health issues later, Aubin
said.
Asbestos exposure can cause forms of lung cancer.
While sections of the jail remain closed, alternate arrangements
have been made for admitting, discharging and transferring inmates
to and from courts.
Sudbury's John Howard society is calling on the ministry to
provide more information on the potential asbestos exposure at the
jail.
Executive director John Rimore said former inmates should be
informed about what happened.
"It may be difficult to call them up because they may not have
phones, or to send them a letter because they may not have an
address," he said.
"And that is why advising other organizations that do visit
inmates at the Sudbury jail would be very productive because the
inmates may indeed be coming to see us for service of one sort or
another. I think that they should be trying to contact these
inmates and advising them that they should see a health
professional just for a baseline test."
Rimore said it's unlikely inmates were exposed to asbestos fibres
for any length of time, because of where the asbestos was found.
ASBESTOS UPDATE: Goodyear Not Barred from Aggregating PI Claims
---------------------------------------------------------------
Jeff Sistrunk, writing for Law360, reported that a Pennsylvania
federal judge ruled that endorsements in several Travelers
Indemnity Co. umbrella policies don't prevent Goodyear Tire &
Rubber Co. from aggregating multiple asbestos bodily injury claims
into a single claim for purposes of seeking coverage under the
policies.
U.S. District Judge Joy Flowers Conti granted Goodyear's motion
for partial summary judgment, rejecting Travelers' argument that
so-called no-drop-down endorsements in three catastrophe umbrella
policies it issued to Goodyear in the 1970s should be interpreted
to mean that the policies are only triggered when a single
plaintiff's claim against Goodyear exceeds a retained limit of $1
million to $1.5 million.
"Here, even considering the no drop down endorsements, the T-CUPs
clearly and unambiguously provide coverage for amounts in excess
of the specified 'each occurrence' limit of claims by Goodyear,
which encompass multiple individuals whose damages arise out of
continuous or repeated exposure to substantially the same general
conditions," Judge Conti wrote.
Goodyear filed the instant suit in February 2013, asserting eight
claims that were left unresolved by an earlier settlement
agreement with Travelers over coverage for asbestos injury claims.
Goodyear contends that Travelers breached the umbrella policies
and seeks a declaratory judgment regarding the insurer's duties
under the policies.
Travelers issued three catastrophe umbrella policies to Goodyear
that provided coverage for certain liabilities in excess of the
limitations specified in the underlying primary insurance policies
for the period July 1, 1973, to July 1, 1980, according to court
documents.
The applicable limits for claims related to bodily injury in the
underlying policies were $300,000 for "each person" and $1 million
for "each occurrence" in the 1973 umbrella policy and $750,000 for
each person and $1.5 million for each occurrence in the 1976 and
1979 policies, court papers said.
In response to concerns from reinsurers, Travelers added a no-
drop-down endorsement to the 1973 and 1976 policies and included
the endorsement in the 1979 policy, according to court documents.
The purpose of the endorsement was to prevent the umbrella
policies from being required to "drop down" and pay claims as if
they were primary policies if the underlying insurance was reduced
or exhausted, court papers said.
Goodyear and Travelers in April 2014 filed cross-motions for
partial summary judgment on two "threshold" issues: whether the
umbrella policies were validly amended to include the no-drop-down
endorsement and the meaning and effect of the endorsement.
Travelers asserted that the no-drop-down endorsement, read
together with the language of the umbrella policies, requires that
Goodyear submit separate claims for each person with asbestos-
related damages.
Judge Conti noted that if Travelers prevailed on its argument,
Goodyear couldn't recover anything under the umbrella policies
because no asbestos-related claim has been resolved against the
company for more than $1 million.
The judge concluded that the no-drop-down endorsements didn't
modify or change any provision of the umbrella policies and "had
no effect on Goodyear's right under the umbrella policies to file
individual claims which each encompass the covered damages of
multiple individuals that arise out of a single occurrence."
"If Goodyear can show that the covered damages of multiple
individuals arise out of one occurrence, all such damages may be
included in one claim, and the T-CUPs must provide coverage to the
extent that those aggregated damages exceed the applicable 'each
occurrence' limit," Judge Conti wrote.
An attorney for Goodyear declined to comment. An attorney for
Travelers did not immediately respond to a request for comment.
Goodyear is represented by Anna Engh and Matthew Berns of
Covington & Burling LLP and Andrew Roman and Barbara Scheib of
Cohen & Grigsby PC.
Travelers is represented by Mary Beth Forshaw, Elisa Alcabes and
Peri Zelig of Simpson Thacher & Bartlett LLP and Mark A. Mantini
of Robb Leonard Mulvihill LLP.
The case is Goodyear Tire & Rubber Co. v. Travelers Casualty &
Surety Co. et al., case number 2:13-cv-00256, in the U.S. District
Court for the Western District of Pennsylvania.
ASBESTOS UPDATE: Pa. En Banc Panel Boots $14.5MM Fibro Verdict
--------------------------------------------------------------
Dan Packel, writing for Law360, reported that an en banc panel of
the Pennsylvania Superior Court threw out a $14.5 million jury
verdict against three welding products manufacturers, mirroring an
earlier decision on the case by a three-judge panel that the trial
court improperly admitted expert witness testimony stating that
every exposure to asbestos must be considered a cause of
mesothelioma.
The expanded panel, like the earlier set of judges, based its
decision to grant a new trial to Lincoln Electric Co., Crane Co.
and Hobart Brothers Co. on the Pennsylvania Supreme Court's
landmark May 2012 decision in Betz v. Pneumo Abex LLC, which
rejected the "any breath" theory of asbestos exposure. Six judges
ultimately ruled to vacate the earlier ruling, while three were in
dissent.
In both cases, experts for plaintiffs allegedly exposed to
asbestos testified that there was a lengthy latency period for
mesothelioma, and that each and every breath of exposure was a
cause of the disease.
"As this expert testimony was necessary to establish legal, or
substantial-factor, causation, its improper admission controlled
the outcome of the case. Accordingly, we vacate the judgment
entered and remand for a new trial on liability," Judge John
Bender said in an opinion.
A Philadelphia jury awarded the $14.5 million verdict to Darlene
Nelson, the executrix of the estate of her husband, James Nelson,
in 2010. Nelson died in 2009 at the age of 54 as a result of
mesothelioma.
Philadelphia Court of Common Pleas Senior Judge Esther R.
Sylvester presided over a reverse bifurcated trial, in which an
eight-member jury first established damages and then found the
companies liable.
Lincoln and Hobart, filing jointly, along with Crane, then
appealed the verdict, contending the plaintiffs failed to meet a
standard of causation established by the Pennsylvania Supreme
Court in the 2007 Gregg v. V-J Auto Parts Co. case.
Then, after the appeals court heard the case, the Supreme Court
issued its ruling in Betz, which further sharpened the court's
guidelines on what sort of expert testimony can be used to
establish causation.
The en banc majority, like the earlier majority, concluded that
the expert testimony in the instant case paralleled that of the
Betz case and was consequently inadmissible. The court thus
ordered a new trial on the question of liability.
The majority on the en banc panel also agreed with the earlier
majority that the trial court also erred in not granting a
mistrial during the damages phase of the trial. Here, it found
that Nelson's counsel improperly suggested specific sums for
noneconomic damages to the jury in the closing arguments of the
trial.
Just like the first time the Superior Court ruled on the case,
Judge David Wecht was in dissent. He argued that the Betz case
and the instant cases were considerably different, for in the
latter, it was possible for Nelson to establish exposure without
the "any exposure" theory. He warned about the potential impact of
the ruling on cases where there is ongoing, regular exposure to
asbestos.
"In my view, even a modest extension of the Betz holding beyond
cases involving only de minimis exposure threatens to eclipse a
considerable proportion of asbestos litigation, given the
challenges confronting plaintiffs in establishing substantial
causation decades after the allegedly causative exposure," he
said.
"While it is difficult to balance Pennsylvania's well-settled law
regarding the establishment of substantial causation with the need
to ensure the existence of a meaningful remedy for grave injury,
the majority's application of Betz to this case tips that balance
heavily in favor of defendants," Judge Wecht continued.
Steven Cooperstein, who represents Nelson, said he would likely
challenge the ruling.
"It'll take some time to review the case more thoroughly, but on
initial review, we are extremely likely to seek allowance of
appeal in the Supreme Court."
Hobart and Lincoln are represented by John Hare, Christopher
Santoro and Joan Depfer of Marshall Dennehey Warner Coleman &
Goggin PC.
Crane is represented by Nicholas Vari, James Insco II and Michael
Ross of K&L Gates LLP and George Bruch of Swartz Campbell LLC.
Nelson is represented by Steven Cooperstein, John DiDonato and
Laurence Brown of Brookman Rosenberg Brown & Sandler.
The case is Nelson v. Airco Welders Supply et al., case numbers
865, 866, 867 and 889 EDA 2011, in the Superior Court of
Pennsylvania.
ASBESTOS UPDATE: Nepal Government Bans Import, Use of Fibro
-----------------------------------------------------------
eKantipur.com reported that the Nepalese government has banned the
import, purchase and use of carcinogenic mineral fibre asbestos,
which is used as construction material, saying that it is causing
serious public health complications.
The Ministry of Science, Technology and Environment (MoSTE), as
per the provision of Environment Protection Act 1997, published a
notice in Nepal Gazette to ban the hazardous asbestos sheets and
related products to protect human health as well as environment
from harmful consequences due to its increasing use in the
construction sector. This decision will automatically come into
effect within 181 days after the date of notification.
A study conducted by the World Health Organization (WHO) has
already identified that all forms of asbestos are carcinogenic to
humans and cause various other health implications. Over 40
countries have banned the import, export and use of the material
within their territories.
Human health and environment were under high risk of getting
impacted from these carcinogenic asbestos sheets used massively in
many places in the country, especially in the Tarai region,
according to the Centre for Public Health and Environmental
Development (CEPHED).
"Since last year, civil society and experts have been advocating
to address the related public health and environmental problems
possibly resulted from unscientific burying of asbestos wastes in
Maitighar Mandala in Kathmandu and its massive import and use in
the Tarai region," said Ram Charitra Sah, executive director at
CEPHED. "Now we need effective implementation of this decision,"
he said.
ASBESTOS UPDATE: Fibro Cleared From 120 Rottnest Island Sites
-------------------------------------------------------------
Nicolas Perpitch, writing for ABC News, reported that asbestos
removal teams have cleared about 120 sites on Rottnest Island, in
Australia, of potentially hazardous material after public concerns
prompted a full sweep of the popular WA holiday destination.
As a result, the Rottnest Island Authority said there were no
longer any sites in the two highest-risk categories listed on the
island's asbestos register released.
In September, Perth man Donovan Pryor found fibrous material
outside bungalows in the Bathurst area, north of Thomson Bay.
The authority fenced off the area and sent samples to the mainland
for testing. It was later advised the substance was white
asbestos. It said the material was intact and non-friable, and in
this condition, was of very low risk to anyone staying in the
units or passing by.
However, the Australian Medical Association said at the time "low
risk" was not good enough and urged the authority to remove any
asbestos in the island's accommodation.
Around 500,000 people visit Rottnest, 19km off the coast of
Fremantle, each year, with about 15,000 at one time during peak
holiday periods like Christmas.
Settlements checked in ground survey
The authority said it decided to organise the sweep on top of the
October survey of sites by Coffey Environments. It organized a
ground-based survey by external asbestos consultants who checked
the whole settlement area and the rest of the island.
Asbestos removal teams then took away material from sites
identified as potential sources of asbestos fragments. The
authority said the material was removed from about 120 sites,
mainly old buildings, regardless of whether it was asbestos or
not.
The RIA has taken the advice of external consultants and has
identified and remediated asbestos used in buildings.
Paolo Amaranti
The island's 2012 asbestos register contained nine sites
categorised as A1, the highest category of risk, where access must
be restricted and the material removed under "fully controlled
conditions". That usually means workers in head-to-toe jump suits
and breathing masks.
The current register has no A1 sites and no A2 sites, where access
is also restricted and the material must be removed using
"appropriate control measures". There are still 41 sites listed
as A3, where there must be a planned removal of any asbestos and
it must be sealed and screened off.
The asbestos is typically in external wall cladding and fibre
cement fences in the staff cottages and other buildings. The vast
majority of sites on the island are in the much lower risk A4 and
A5 categories.
The Governor's Circle heritage huts, for example, are listed as A4
with fibre cement ceilings and asbestos wall lining.
Rottnest Island Authority chief executive Paolo Amaranti said it
was committed to cleaning up any asbestos, which was used
extensively throughout the state before the 1980s, in the best way
possible.
"Since 2002 the RIA has taken the advice of external consultants
and has identified and remediated asbestos used in buildings, and
removed all asbestos roofing in holiday units," Mr Amaranti said.
"Following the discovery earlier this year of a fragment later
identified as chyrostile at Bathurst, checks have been carried out
throughout the settlement for any previously undiscovered material
on or close to surface that may have been exposed by weather
and/or ongoing erosion."
ASBESTOS UPDATE: NY Attys Make History With $7.7M Fibro Verdict
---------------------------------------------------------------
Levy Konigsberg LLP ("LK") attorneys Amber R. Long and Keith W.
Binder made history after obtaining a jury's verdict against
Navistar, Inc. ("Navistar"), for $7.7 Million on behalf of
mesothelioma victim Lewis Nash. The verdict is recognized as the
largest amount awarded in Syracuse's history for a case of its
type.
According to the evidence presented in court, Mr. Nash was exposed
to asbestos on a regular basis for more than thirty years through
his work as a bus driver for the Fayetteville-Manlius School
District, a burden that ultimately took his life in September 2012
at the age of 81. It was his exposure to asbestos in the school
district's bus garage, where mechanics performed routine
maintenance on Navistar school buses, which led to the fatal
cancer.
Court documents reveal that Navistar, formerly known as
International Harvester, sold school buses to Fayetteville-Manlius
that consisted of asbestos-containing brakes, gaskets, and
clutches. From his commencement as a bus driver in the late 1950s,
Manlius-native Lewis Nash could regularly be found in the garage
clocking in for his routes, submitting work orders, or holding
conversations with the mechanics. Through his presence in the
garage, Mr. Nash was exposed to asbestos that had been released
into the air by work performed on the asbestos-containing bus
parts.
The trial against Navistar began on December 4, 2014, and included
testimony by the plaintiff's family and expert witnesses. After
deliberating upon the evidence, the jury found Navistar to be
responsible for Mr. Nash's death. Damages awarded to Mr. Nash's
wife, Mary, were in recognition of both the physical and emotional
hardships experienced by Mr. Nash during his battle with
mesothelioma, as well as lost services incurred by Mrs. Nash.
Levy Konigsberg LLP is a nationally-recognized asbestos litigation
firm specializing in the representation of mesothelioma and lung
cancer victims for close to 30 years. With offices in New York
City, Albany, and White Plains, NY, the firm has an extensive
history of securing record-setting awards and landmark court
victories on behalf of families affected by asbestos diseases
throughout the State, including Upstate New York. For example, in
2008, LK obtained a verdict ($5 Million) in a mesothelioma lawsuit
(2) in Upstate NY on behalf of a man exposed to asbestos while
serving in the U.S. Navy.
For more information about this verdict, please contact New York
mesothelioma attorneys Amber Long or Keith Binder at 1-800-MESO-
LAW (1-800-637-6529) or by submitting an email inquiry at
http://www.levylaw.com.
ASBESTOS UPDATE: Tyco's Yarway Paying $325 Million in Ch. 11 Plan
-----------------------------------------------------------------
Bill Rochelle and Sherri Toub, bankruptcy columnists for Bloomberg
News, reported that Yarway Corp. and its indirect parent Tyco
International Plc will have absolution from more than 10,000
asbestos personal-injury claims by contributing $325 million to a
trust to be created as part Yarway's exit from Chapter 11.
Yarway, which filed for bankruptcy reorganization in April 2013 in
Delaware, announced a settlement in principle in October that was
negotiated with the asbestos claimants' committee and the official
representative of future claimants. Yarway together with Tyco
filed a Chapter 11 plan on Dec. 23 to implement the settlement.
The bankruptcy court is scheduled to hold a hearing on Jan. 26 to
approve disclosure materials explaining the plan to asbestos
claimants. Unsecured claims, amounting to about $100,000, will be
paid in full.
The trust created by the plan will be funded with the contribution
from Yarway and Princeton, New Jersey-based Tyco. In addition, the
trust will take ownership of Yarway.
The disclosure statement doesn't include an estimated percentage
recovery for asbestos claimants. If the plan is approved by the
bankruptcy court, Yarway and Tyco will both be relieved of further
asbestos liability.
Yarway had been in the business of making pipe clamps and valves.
It ceased making products with asbestos in 1988. Tyco purchased
the business in 1997. The plants were sold in 2003 for $6.24
million. Since then, Yarway's only business, other than management
of asbestos litigation, has been partial ownership of a commercial
building.
The case is In re Yarway Corp., 13-11025, U.S. Bankruptcy Court,
District of Delaware (Wilmington).
ASBESTOS UPDATE: Feds, Mich. Crack Down on Shoddy Fibro Removal
---------------------------------------------------------------
Jennifer Dixon, writing for Detroit Free Press, reported that it
was dark and bitterly cold inside the former Utica Trim Automotive
Plant in Shelby Township when the crew showed up to remove
asbestos from the abandoned factory. There was no running water,
no heat, no light. Workers wore disposable suits so thin you could
see through them.
Using 25-foot lifts to cut away asbestos insulation covering pipes
along the ceiling, they tossed the debris to the floor as their
bosses yelled "let it fly" or "let 'er rip." By day's end, they
were covered with the cancer-causing dust.
Four years after that botched job, the property owner, Indiana
Metal LLC of suburban Chicago, agreed this fall to pay the state
penalties of $67,500. A second company, Northern Boiler and
Mechanical Contractors of Muskegon, has paid the state $30,000.
Federal prosecutors, who launched their own investigation, charged
four men criminally and one got prison time.
The case is part of a stepped-up effort by the Michigan Department
of Environmental Quality and federal prosecutors against
contractors and property owners who violate the federal Clean Air
Act by improperly removing asbestos from buildings scheduled for
demolition. It comes as demolition activity around the state is
picking up.
In 2008, contractors filed 3,400 asbestos-abatement notifications
with the DEQ. That number doubled to 7,844 last year, and nearly
doubled again to 14,572 this year. About half come from Wayne
County, mostly Detroit.
Violations also are up. The DEQ sent 53 letters of violation to
contractors and property owners in 2008, 78 in 2014.
Since 2011, the DEQ has also obtained fines from contractors and
property owners totaling about $424,000. DEQ said it does not have
figures for earlier years but the number is up significantly.
Both the DEQ and the U.S. Environmental Protection Agency
investigate violations of the Clean Air Act. Federal prosecutors
typically handle the criminal cases. Since 2011, 11 men have been
convicted or pleaded guilty to criminal charges and five received
prison sentences.
"We want to make sure that people understand there are criminal
consequences for failing to comply with environmental laws," said
Barbara McQuade, U.S. attorney for the Eastern District of
Michigan. "The harm from improperly abating asbestos is very
serious."
Asbestos was widely used in buildings for fireproofing, thermal
and acoustical insulation and condensation control until 1971,
when the EPA declared it a hazardous pollutant. Exposure to
asbestos causes lung disease and there is no known safe exposure
level.
The aerodynamic shape of asbestos fibers helps transport them far
beyond the point of original release, putting not only those who
removed the asbestos, but others, at risk.
The feds and the DEQ both got involved when things went terribly
wrong at the old Utica Trim plant in Shelby Township beginning in
late 2010.
To get the asbestos removed as quickly as possible, the project
manager, Brian Waite, gave workers a quota and threatened to fire
them and oppose claims for unemployment benefits if they didn't
comply.
Daniel Clements, an on-site supervisor, described the brutal
conditions, telling a federal judge he was given "little more than
a small generator from a local building store, a few halogen
lights, an empty jug for water, disposable suits so thin you could
see through them."
Jeffrey Walworth, whose company, Bonus Environmental, was hired as
the industrial hygienist by the demolition contractor to monitor
the air for asbestos fibers, documented his observations in
handwritten notes. But when a DEQ inspector asked him for the
field notes, he claimed he didn't have them, court records say.
Walworth, Waite, Clements and a fourth worker, Jose (Joey) Ramos,
pleaded guilty to federal charges. Waite got a year in prison, the
others got probation.
Clements told a federal judge before his sentencing that he was
"completely unaware of the penalties for something like this. ...
I have learned that corners must never be cut. Health and safety
will always be jeopardized."
It's too soon to tell whether the workers at the old Utica Trim
plant will suffer any long-term health effects. Generally, lung
diseases from asbestos exposure will not be apparent for anywhere
from 10 to 40 years following exposure. The Michigan Occupational
Safety and Health Administration does not track or medically
monitor employees or former employees who were exposed to asbestos
in the workplace. Employers are required to provide medical
examinations for workers exposed to asbestos, and keep their
medical and exposure records for the duration of the workers'
employment plus 30 years.
Federal and state officials say greed is a recurring theme as
contractors cut corners to save money.
"What we try to do is level the playing field," said Tom Hess, the
DEQ's enforcement chief for air quality. "It's a fairness issue."
Among the federal criminal cases:
* Terry Williams was sentenced in October to 27 months in prison
after pleading guilty to two criminal counts. Prosecutors say
Williams removed asbestos-containing materials from a former
Chrysler plant in Detroit without wetting it. They said he knew
that he was exposing workers to asbestos fibers but did so "to
avoid the more costly cleanup and demolition required under
federal law." Water is key to asbestos abatement because it keeps
the dusty, friable asbestos fibers from getting onto workers'
clothing and into the environment.
* Anthony Michael Davis was sentenced in 2013 to a year in prison
and ordered to pay $168,030 in restitution after pleading guilty
to one federal count. Prosecutors said Davis scrapped metal from a
former paper mill in Allegan County in west Michigan but didn't
wet the asbestos.
Davis "exposed his employees and the public to a significant
cancer and lung disease hazard and stuck taxpayers with the cost
of cleaning up the mess," prosecutors told a federal judge. "The
defendant's salvage activities violated every major asbestos
safety regulation. . . . In an effort to maximize profits, the
defendant caused his employees to throw substantial quantities of
dry, disturbed asbestos insulation onto the floor of the open-air
structure." Prosecutors said Davis paid $70,000 for the property,
but he and his companies collected more than $1 million selling
salvaged materials in 2006-08.
* Contractor Roy Bradley was convicted Dec. 2 by a federal jury in
Bay City on four counts following an eight-day trial. Bradley was
accused of failing to wet asbestos during demolition work at a
former church. He will be sentenced in March. A carpenter on the
job, Rodolfo Rodriguez, was charged with lying about the asbestos
removal to a federal grand jury. He pleaded guilty and was
sentenced in June to 21 months.
The Michigan DEQ has had its share of cases as well, and snared
some high-profile property owners. Among them:
* Michigan State University paid $5,000 in fines and its
contractor, Qualified Abatement Services, paid $8,500 for
violations involving an underground steam tunnel insulated with
asbestos. MSU spokesman Jason Cody said that when the university
learned its contractor was not doing the work properly, "we
immediately brought in a new company to perform the work
properly." He said MSU has a qualification process for contractors
"and in this situation, the contractor was prequalified. However,
they did not perform the job properly."
* The Ingham County Land Bank paid $12,000 in fines and its
contractor paid $10,500 for improper asbestos removal at the
former Michigan School for the Blind in Lansing. Preservation Non-
Profit Housing, which also was involved, paid $12,000. Jeff
Burdick, the land bank's executive director, said the contractor
ended up being "in over his head. ... We'll take the full blame."
* The Genesee County Land Bank and its contractor were fined a
total of $30,000. The contractor paid all fines in the case, said
land bank executive director Douglas Weiland. "We are seeing
problems with other abatement contractors that we've used."
DEQ officials said property owners must vet and monitor their
contractors. It's not enough to leave everything to them.
"That's not the right answer" said Karen Kajiya-Mills, who manages
DEQ's asbestos program. "You are responsible for your
contractors."
ASBESTOS UPDATE: Probe Launched After Fibro-Ridden Factory Fire
---------------------------------------------------------------
Jennifer McShane, writing for Irish Independent, reported that the
massive fire that broke out at a derelict factory in Carlow,
Ireland, is now out, and the roads surrounding the the scene of
the fire have re-opened.
Residents in the area were warned to stay indoors because it was
feared the building contained aspestos, which is highly toxic.
The roof of the building -- which collapsed -- was made up of
asbestos cement sheeting. The fire was put out with the assistance
of ten fire engines.
Sergeant John Foley from Carlow Garda Station told Independent.ie
that two fire trucks remained on the scene to keep any eye on
things. He said the scene is currently being prepared for
examination.
The cause of the fire is not yet known.
The EPA and the local authority Carlow County Council will have a
significant role in the clean-up of the immediate area.
Asbestos is a natural mineral which is both heat and chemically
resistant. Asbestos can be harmful if dust containing the fibre is
inhaled.
ASBESTOS UPDATE: HSE Probes After Fibro Found at Ashford Building
-----------------------------------------------------------------
Samantha Williams, writing for Kent Online, reported that an
investigation by the Health and Safety Executive is being carried
out at The Panorama in Ashford, England, after potentially-deadly
asbestos was found.
The investigation is into "alleged breaches of health and safety
legislation", and concerns the discovery of the substance at the
Park Street building.
In June, work on the nine-storey former office block ground to a
halt when the harmful material was found behind a wall.
The site was closed for a month while the HSE ran checks. David
O'Neil, development director of Dukelease Properties, which owns
the building, says the current investigation relates to the same
notice.
He said: "Contractors at The Panorama, Barroerock, remain in
dialogue with the Health and Safety Executive (HSE) regarding the
original prohibition notice relating to asbestos found on site
earlier this year.
"We can confirm this is the only outstanding inquiry with the HSE
and that there are no other matters under investigation.
Barroerock has been co-operating fully with the HSE for all site
visits to date and construction at The Panorama continues."
The HSE have issued four notices to Barroerock in total, dating
back to April 2013.
ASBESTOS UPDATE: P2S Obtains Summary Judgment in PI Suit
--------------------------------------------------------
In the asbestos-related case styled MICHAEL COMARDELLE, v.
PENNSYLVANIA GENERAL INSURANCE COMPANY ET AL., Section I, CIVIL
ACTION NO. 13-6555 (E.D. La.), Judge Lance M. Africk of the U.S.
District Court for the Eastern District of Louisiana:
(a) granted defendant P2S, LLC's motions for summary judgment
seeking the dismissal of Mr. Comardelle's asbestos-related
personal injjry claims and the crossclaims filed by defendants
Huntington Ingalls Incorporated, Albert L. Bossier, Jr., and J.
Melton Garrett (the "Avondale Interests"); and
(b) denied defendant Union Carbide Corporation's motion seeking
to exclude the testimony of the plaintiff's expert, Dr. Samuel
Hammar, and summary judgment on the issue of causation, as the
plaintiffs have allegedly have no evidence of exposure of asbestos
at Union Carbide's facility.
With respect to P2S's motions, Judge Africk agreed with P2S that
it is not the successor to SECO Industries, Inc.'s asbestos-
related liabilities to the plaintiffs and the Avondale Interests
under either Texas or Louisiana law. A full-text copy of Judge
Africk's Dec. 15, 2014, order and reasons with respect to P2S is
available at http://is.gd/XkAvFMfrom Leagle.com.
With respect to Union Carbide's motion, Judge Africk held that
Union Carbide has not provided any evidence that Dr. Hammar's
methodology is unreliable or that he cannot reliably draw
conclusions from the material that he reviewed. In sum, Judge
Africk found that Union Carbide's arguments are more properly
addressed to the weight of Dr. Hammar's testimony rather than its
adminissibility. A full-text copy of Judge Africk's Dec. 15,
2014, order and reasons with respect to Union Carbide is available
at http://is.gd/dof5Yofrom Leagle.com.
Brenda Perez Comardelle, Melissa Comardelle, children of Michael
Comardelle, and Pamela Comardelle, children of Michael Comardelle,
Plaintiffs, represented by Gerolyn Petit Roussel, Roussel &
Clement, Jonathan Brett Clement, Roussel & Clement, Lauren Roussel
Clement, Roussel & Clement & Perry Joseph Roussel, Jr., Roussel &
Clement.
Albert L Bossier, Jr, Defendant, Cross Claimant, and Third Party
Plaintiff, represented by Gary Allen Lee, Lee, Futrell & Perles,
LLP, Anita Ann Cates, Lee, Futrell & Perles, LLP, Darren M.
Guillot, Lee, Futrell & Perles, LLP, Michael Scott Minyard,
Barfield & Associates, Michael Kevin Powell, Lee, Futrell &
Perles, LLP & Richard Marshall Perles, Lee, Futrell & Perles, LLP.
Bayer CropScience, Inc., Defendant and Cross Defendant,
represented by Deborah DeRoche Kuchler, Kuchler Polk Schell Weiner
& Richeson, LLC, Ernest G. Foundas, Kuchler Polk Schell Weiner &
Richeson, LLC, Francis Xavier deBlanc, III, Kuchler Polk Schell
Weiner & Richeson, LLC, McGready Lewis Richeson, Kuchler Polk
Schell Weiner & Richeson, LLC, Melissa M. Desormeaux, Kuchler Polk
Schell Weiner & Richeson, LLC, Michael H. Abraham, Kuchler Polk
Schell Weiner & Richeson, LLC, Milele N. St. Julien, Kuchler Polk
Schell Weiner & Richeson, LLC & Perrey S. Lee, Kuchler Polk Schell
Weiner & Richeson, LLC.
Cajun Company Inc., Defendant, represented by James L. Pate,
NeunerPate & Jason T. Reed, NeunerPate.
CBS Corporation, Defendant and Cross Defendant, represented
by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin,
Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Meredith K.
Keenan, Frilot L.L.C., Peter R. Tafaro, Frilot L.L.C., Rebecca
Abbott Zotti, Frilot L.L.C., Rose Marie Wade, Evert Weathersby
Houff & William Davis Harvard, Evert Weathersby Houff.
Chevron Oronite Company LLC, Defendant and Cross Defendant,
represented by Tim Gray, Forman, Perry, Watkins, Krutz & Tardy,
LLP, Forrest Ren Wilkes, Forman, Perry, Watkins, Krutz & Tardy,
LLP, Jason K. Elam, Forman, Perry, Watkins, Krutz & Tardy, LLP
& Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.
Eagle, Inc., Defendant and Cross Defendant, represented by Susan
Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP,Douglas Kinler,
Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, Simon,
Peragine, Smith & Redfearn, LLP & Louis Oliver Oubre, Simon,
Peragine, Smith & Redfearn, LLP.
Foster-Wheeler LLC, Defendant and Cross Defendant, represented
by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin,
Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Meredith K.
Keenan, Frilot L.L.C., Peter R. Tafaro, Frilot L.L.C. & Rebecca
Abbott Zotti, Frilot L.L.C..
General Electric Company, Defendant and Cross Defendant,
represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M.
Bowlin, Frilot L.L.C., Erik Nadolink, Wheeler Trigg O'Donnell,
LLP, James H. Brown, Jr., Frilot L.L.C., John M. Fitzpatrick,
Wheeler Trigg O'Donnell, LLP, Meredith K. Keenan, Frilot
L.L.C., Peter R. Tafaro, Frilot L.L.C. & Rebecca Abbott Zotti,
Frilot L.L.C..
Hopeman Brothers, Inc., Defendant, Cross Defendant and Cross
Claimant, represented by Kaye N. Courington, Courington, Kiefer &
Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers,
LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers,
LLC, Jennifer H. McLaughlin, Courington, Kiefer & Sommers, LLC
& Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.
Huntington Ingalls Incorporated, Defendant and Cross Claimant,
represented by Brian C. Bossier, Blue Williams, LLP,Christopher
Thomas Grace, III, Blue Williams, LLP, Edwin A. Ellinghausen, III,
Blue Williams, LLP, Erin Helen Boyd, Blue Williams, LLP, Laura M.
Gillen, Blue Williams, LLP & Tracy C. Rotharmel, Liskow & Lewis.
J Melton Garrett, Defendant, Cross Claimant, and Third Party
Plaintiff, represented by Gary Allen Lee, Lee, Futrell & Perles,
LLP, Anita Ann Cates, Lee, Futrell & Perles, LLP, Darren M.
Guillot, Lee, Futrell & Perles, LLP, Michael Scott Minyard,
Barfield & Associates, Michael Kevin Powell, Lee, Futrell &
Perles, LLP & Richard Marshall Perles, Lee, Futrell & Perles, LLP.
Liberty Mutual Insurance Company, Cross Claimant, Cross Defendant,
and Third Party Defendant, represented by Kaye N. Courington,
Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore,
Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg,
Courington, Kiefer & Sommers, LLC, Jennifer H. McLaughlin,
Courington, Kiefer & Sommers, LLC &Troy Nathan Bell, Courington,
Kiefer & Sommers, LLC.
McCarty Corporation, Defendant and Cross Defendant, represented
by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn,
LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, James
R. Guidry, Simon, Peragine, Smith & Redfearn, LLP & Louis Oliver
Oubre, Simon, Peragine, Smith & Redfearn, LLP.
McCarty Corporation, successor to McCarty Branton Inc. and
predecessor and successor to McCarty Insulation Sales Inc, Cross
Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith
& Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith &
Redfearn, LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn,
LLP & Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP.
OneBeacon America Insurance Company, Defendant, represented
by Samuel Milton Rosamond, III, Taylor, Wellons, Politz & Duhe,
APLC, Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC
&Angela J. O'Brien, Taylor, Wellons, Politz & Duhe, APLC.
Pennsylvania General Insurance Company, Defendant, represented
by Samuel Milton Rosamond, III, Taylor, Wellons, Politz & Duhe,
APLC, Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC
&Angela J. O'Brien, Taylor, Wellons, Politz & Duhe, APLC.
Pharmacia LLC, Defendant and Cross Defendant, represented
by Darryl J. Foster, Bradley, Murchison, Kelly & Shea, LLC,David
Edmund Redmann, Jr., Bradley, Murchison, Kelly & Shea, LLC
& Kimberly C. Delk, Bradley, Murchison, Kelly & Shea, LLC.
Reilly-Benton Company, Inc., Defendant and Cross Defendant,
represented by Thomas L. Cougill, Willingham Fultz &
Cougill,Brandy Gonzales Scurria, Brandy Gonzales Legal Services,
LLC, Diane Sweezer Davis, Funderburk Finderburk Courtois,
LLP, Jamie M Zanovec, Willingham, Fultz & Cougill, Jeanette
Seraile-Riggins, Willingham Fultz & Cougill & Jennifer D. Zajac,
Willingham Fultz & Cougill.
Taylor-Seidenbach, Inc., Defendant and Cross Defendant,
represented by Christopher Kelly Lightfoot, Hailey, McNamara,
Hall, Larmann & Papale, Anne Elizabeth Medo, Hailey, McNamara,
Hall, Larmann & Papale, David C Bach, Hailey, McNamara, Hall,
Larmann & Papale LLP, Edward J. Lassus, Jr., Hailey, McNamara,
Hall, Larmann & Papale & Richard J. Garvey, Jr., Hailey, McNamara,
Hall, Larmann & Papale.
Union Carbide Corporation, Defendant and Cross Defendant,
represented by David Mark Bienvenu, Jr., Bienvenu, Bonnecaze,
Foco, Viator & Holinga, APLLC, Anthony Joseph Lascaro, Bienvenu,
Bonnecaze, Foco, Viator & Holinga, APLLC, John Allain Viator,
Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Katie Dampier
Chabert, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Lexi
T. Holinga, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC
& Tam Catherine Bourgeois, Bienvenu, Bonnecaze, Foco, Viator &
Holinga, APLLC.
Uniroyal, Inc., Defendant and Cross Defendant, represented
by Forrest Ren Wilkes, Forman, Perry, Watkins, Krutz & Tardy, LLP.
ASBESTOS UPDATE: Ill. App. Affirms Ruling in Reinsurance Suit
-------------------------------------------------------------
Continental Casualty Company filed a complaint for declaratory
judgment and other relief on November 30, 2012, seeking a
declaration of the rights and obligations arising under multiple
facultative reinsurance contracts issued to Continental by
defendant MidStates Reinsurance Corporation. The defendant
reinsured the plaintiff for shares of policies between 1981 and
1984, under which the plaintiff sought coverage in 2003-05 as a
result of numerous claims resulting from environmental
liabilities, including asbestos claims, covered under the
policies. The Defendant made payments on the claims for what it
claims were the total amount of reinsurance limits provided by
each certificate. The Plaintiff sought declaratory relief,
alleging that the defendant had breached its contracts by failing
to pay the amounts due, and damages.
The Defendant sought judgment on the pleadings, asserting that the
certificates were not ambiguous and clearly provided limits on the
amount reinsured. The trial court granted the defendant's motion
for judgment on the pleadings, finding the reinsurance
certificates were not ambiguous and limited both losses and
expenses assumed by the defendant. The Plaintiff appeals, arguing
that the certificates are not facially clear, complete, and
unambiguous contracts and do not provide a limit of coverage as
found by the circuit court.
In an opinion dated Dec. 16, 2014, the Appellate Court of
Illinois, First District, Second Division, affirmed the judgment
of the circuit court.
The appeals case is CONTINENTAL CASUALTY COMPANY, Plaintiff-
Appellant, v. MIDSTATES REINSURANCE CORPORATION, Defendant-
Appellee, NO. 1133090 (Ill. App.). A full-text copy of the
Decision is available at http://is.gd/q9vwVHfrom Leagle.com.
ASBESTOS UPDATE: Buffalo Pumps' Claim in "Spear" Suit Stricken
--------------------------------------------------------------
Judge Paul R. Wallace of the Superior Court of Delaware, New
Castle County, issued an order dated Dec. 5, 2014, striking, sua
sponte, the statute of limitations claims raised by defendant Air
& Liquid Systems Corporation ("Buffalo Pumps") in the action
styled IN RE: ASBESTOS LITIGATION relating to LINDA SPEAR,
Individually and as Personal Representative of the Estate of PAUL
SPEAR, Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, A/K/A
BUFFALO PUMPS, INC., et al., Defendants, C.A. NO. N13C06169 ASB
(Del. Super.), holding that the defendant's exercise of
"sandbagging" during a summary judgment proceeding is condemned
under well-settled and established Delaware law. A full-text copy
of Judge Wallace's Decision is available at http://is.gd/qHongG
from Leagle.com.
ASBESTOS UPDATE: Pa. High Court Affirms Ruling in "St. John" Suit
-----------------------------------------------------------------
John D. St. John and Kathy M. St. John challenge the Pennsylvania
Superior Court's decision affirming the declaratory judgment order
issued by the Court of Common Pleas of Chester County, finding
Pennsylvania National Mutual Casualty Insurance Company liable for
a judgment against its insured LPH Plumbing and Heating under a
policy of commercial general liability insurance in effect from
July 1, 2003 to July 1, 2004. The Supreme Court of Pennsylvania,
Middle District, granted review to determine whether, pursuant to
the facts of the case and the policy language at issue, Penn
National is instead liable for the judgment against its insured
under a separate policy of CGL insurance as well as a companion
umbrella policy in effect from July 1, 2005 to July 1, 2006. The
Supreme Court also considered whether the multiple trigger theory
of liability insurance coverage adopted by the Court in J.H.
France Refractories Co. v. Allstate Ins. Co., 626 A.2d 502 (Pa.
1993), within the context of asbestos bodily injury claims applies
in the case, where property damage was continuous and progressive,
to trigger coverage under all policies in effect from exposure to
the harmful condition to manifestation of the injury.
The Supreme Court, in an opinion dated Dec. 15, 2014, affirmed all
aspects of the lower court's decision finding that coverage was
triggered under the policy in effect from July 1, 2003, to July 1,
2004, when property damage became reasonably apparent, and
declining to apply the multiple trigger theory of liability
insurance coverage.
The case is PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE
COMPANY, v. JOHN D. ST. JOHN AND KATHY M. ST. JOHN, INDIVIDUALLY
AND D/B/A THUNDER VALLEY FARM AND LPH PLUMBING AND HEATING, LLC
AND STOLTZFUS WELDING AND REPAIR APPEAL OF: JOHN D. ST. JOHN AND
KATHY M. ST. JOHN, NO. 86 MAP 2012 (Pa.). A full-text copy of the
Decision is available at http://is.gd/kLkbU0from 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
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