/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150206.mbx C L A S S A C T I O N R E P O R T E R Friday, February 6, 2015, Vol. 17, No. 27 Headlines ADOBE SYSTEMS: Offers $415MM to Settle Suit Over High-Tech Wages ADT CORP: Geltzeiler Dismissed From Securities Litigation ADVANCED REHABILITATION: Sued Over Failure to Pay Overtime Wages ADVANCED TATTOO: "Brown" Suit Seeks to Recover Unpaid OT Wages ALL STAR LIGHTING: Faces "Jackson" Suit Over Failure to Pay OT ALMAR PARTY: "Smith" Suit Seeks to Recover Unpaid OT Wages AMERICAN REALTY: Faces NYCERS Class Suit in S.D. New York AMERICAN REALTY: Faces "Boitifoll" Suit Over Misleading Reports AMTRUST: Responds to Shareholder Class Action APPLE INC: Court Drops Claims in iPod iTunes Antitrust Litigation APPLE INC: Appealed Decision in eBooks Antitrust Litigation BANK OF AMERICA: Must Face Forex Antitrust Class Action BANK OF AMERICA: Investor Groups Want to Join Libor Appeal BARRY UNIVERSITY: Removes "Martells" Class Suit to S.D. Florida CANADA: Plaintiffs Still Have Options in Tar Ponds Lawsuit CHINA COMMERCIAL: "Dennison" Suit Moved From N.J. to New York CHOICE ENERGY: Has Made Unsolicited Calls, "Murray" Suit Claims COLUMBIA UNIVERSITY: Settles Class Action Over Tips for $875,000 COOK GROUP: Faces "Keltner" Suit Over Defective Celect IVC Filter DIAMOND STAFFING: Faces "Sosa Munoz" Suit Over Failure to Pay OT DIRECT WINES: Faces Suit in Illinois Alleging Violations of TCPA EMERY FEDERAL: Accused of Violating Fair Labor Standards Act EXXON MOBILE: Proposes Changes to Lab Report, Documents Reveal FURNITURE BRANDS: "Carter" Shareholder Class Suit Dismissed G&E FLORIDA: Faces "Lara" Suit Over Failure to Pay Overtime Wages GELFAND RENNERT: Faces "Dacosta" Suit Over Failure to Pay OT GOLD CUP: Exotic Dancers File FLSA Class Action GOOGLE INC: $19-Million App Refunds Did Not Appease Parents GUAM, USA: Accused of Not Returning Ancestral Land to Owners HALL RENDER: Faces "Gartman" Suit in Wis. Over Violation of FDCPA HARTFORD FINANCIAL: 9th Cir. Affirms Dismissal of "Cantrall" Suit HONDA MOTOR: Faces Class Suit in Kentucky Over Defective Airbags JOHNSON HEALTH: Recalls Matrix Fitness Strength Training Machines IQ DATA: Sued by Insurer Over Pending Class Suit in New Mexico KINSLEY CONSTRUCTION: Doesn't Properly Pay Workers, Suit Claims LEXICON INC: Fails to Pay Proper Overtime Wages, Suit Claims MEDBOX INC: Faces "Gutierrez" Suit Over Misleading Fin'l Reports MI BOHIO: Faces "Apolinario" Suit Over Failure to Pay Overtime MICOR COMMUNICATIONS: Suit Seeks to Recover Unpaid Overtime Wages MIDDLE EAST BAKERY: Recalls Joseph's & Trader Joe's Bread Items MIRKA ABRASIVES: Recalls Orbital Sanders Due to Burn Hazard NESCO SERVICE: Sued in S.D. Texas Over Failure to Pay Overtime NEW YORK: Education Dep't Sued for Discriminating v. Older Staff NINE MILE MINING: Feb. 23 Final Settlement Hearing NPS PHARMACEUTICALS: Being Sold for Too Little, Suit Claims PHH CORP: Awaits Ruling on 2008 Class Action PRIMAL VANTAGE: Recalls Ameristep Tree Stands Due to Fall Hazard RC BIGELOW: "Victor" Class Certification Hearing Set for June 17 REED ELSEVIER: Sued by Yudkin & Brebner Over Court Access Denial SEVEN FIFTY-FOUR: Cal. App. Reverses Ruling in "Avelar" Suit SIOUX CITY, IA: Residents to Share Franchise Fee Settlement SKY CHEFS: Stipulation Staying "Teruel" Suit Approved STRATEGIC HOTELS: Sued Over Violation of Fair Labor Standard Act STURON INC: "Molina" Suit Seeks to Recover Unpaid Overtime Wages SUNBEAM PRODUCTS: Recalls Oil-Filled Heaters Due to Scald Hazard SYNGENTA CORP: "Runsick" Suit Consolidated in MIR162 Corn MDL TAKATA CORPORATION: Faces "Corticeiro" Suit Over Defective Airbag TALISMAN ENERGY: Being Sold for Too Little to Repsol, Suit Says TITLEMAX: Appeals Court Rejects Argument in Wage-and-Hour Suit TOWERS PERRIN: Sued by Meriter Health Over Illegal Pension Plan TRACFONE WIRELESS: Settles FTC Data Throttling Claims for $40MM TRIM RESTAURANT: Sued in N.Y. Over Failure to Pay Overtime Wages TRUMP INT'L: Accused of Harassment and Retaliation in New York UNITIL CORPORATION: To Defend Against "Bellerman" Case US INVESTIGATION: Removes "DeLorenzo" Suit to S.D. California VITESSE WORLDWIDE: "Farrow" Suit Seeks to Recover Unpaid OT Wages VOSGES HAUT-CHOCOLAT: Recalls Festival of Lights Gift Sets WAL-MART STORES: Class Suit Over Return Policies May Proceed WILLOW LAKES: Tenants File Class Action Over Mold YS BEVERAGE: Doesn't Properly Pay Employees, "Merino" Suit Says * Class Action v. Banks Over Swiss Franc Loans Likely * NERA Releases Annual Securities Class Action Trends Report Asbestos Litigation ASBESTOS UPDATE: Waltham Forest Council Admits Fibro Failings ASBESTOS UPDATE: Law Firms Accused of Fraud in Fibro Litigation ASBESTOS UPDATE: Controversy Surrounds Respirator Used v. Fibro ASBESTOS UPDATE: Families Seek Damages Over Fibro at Cal. Schools ASBESTOS UPDATE: More Fibro Raises Cost of Port Angeles Landfill ASBESTOS UPDATE: New Jersey Jury Renders $7.5MM Fibro Verdict ASBESTOS UPDATE: Ford Fights Fibro Row as Mechanic Seeks Recusal ASBESTOS UPDATE: Salvage Principals Face Prison in Fibro Case ASBESTOS UPDATE: James Hardie to Pay Victims in Installments ASBESTOS UPDATE: Girl Exposed to Fibro After Entering Hotel ASBESTOS UPDATE: Widow Files Exposure Suit v. Atlantic Richfield ASBESTOS UPDATE: Toxic Dust Found in Evergreen Village Home ASBESTOS UPDATE: Harrowsmith Firm Fined for Workers' Exposure ASBESTOS UPDATE: Toxic Dust Found in George Washington Univ. Hall ASBESTOS UPDATE: Council to Fork Out GBP1.2MM for Fibro Removal ASBESTOS UPDATE: Possible Fibro Exposure at Sudbury Hospital ASBESTOS UPDATE: Levy Konigsberg Wins Case for Ohio Fibro Victim ASBESTOS UPDATE: Deadly Dust Found Dumped in Lane Near Newquay ASBESTOS UPDATE: Fake Fibro Report Nets Businessman Probation ********* ADOBE SYSTEMS: Offers $415MM to Settle Suit Over High-Tech Wages ---------------------------------------------------------------- William Dotinga at Courthouse News Service reports that Adobe, Apple, Google and Intel upped their offer to $415 million to settle a sprawling case over high-tech wages, according to papers filed by the plaintiffs in the case on January 15. Software engineers, on behalf of an estimated class of 64,000, suedvthe tech giants -- plus Intuit and Walt Disney subsidiaries LucasFilm and Pixar -- in 2010, over illegal "no cold-call agreements" that restricted or eliminated competition for high- tech employees, which "disrupted the normal price-setting mechanism that apply in the labor setting." The poaching ban, workers claimed, maintained internal salary structures at the companies from 2005 to 2009, and involved "gentleman's agreements" via CEO-to-CEO emails between the late Steve Jobs and other leading Silicon Valley CEOs. Several lawsuits ensued, which were eventually consolidated into a single federal class action in San Jose, Calif. In August 2014, U.S. District Judge Lucy Koh rejected workers' request for preliminary approval of a $325 million settlement. Koh found the offer too low, outside "the range of reasonableness." Koh also ruled that although "ample evidence" showed an overarching conspiracy between the defendants, the proposed settlement was "proportionally lower" per class member than that of a separate $20 million settlement with Lucasfilm, Pixar and Intuit, in 2013. The tech companies appealed Koh's rejection to the 9th Circuit, calling it "clear legal error." But late January 13, word of a new settlement surfaced. That settlement, officially filed by the lead plaintiffs on Jan. 15, includes an all-cash, $415 million payout that is $90.5 million more than the first offer -- and $35 million higher than Koh suggested when she rejected the first go-round. If approved, the agreement would end three years of litigation that saw 80,000 different files change hands during discovery, according to the motion. After attorney fees and service awards of $80,000 for each of the named plaintiffs, the remaining class members will receive about $6,400 each. The class is represented by: Richard M. Heimann, Esq. Kelly M. Dermody, Esq. Brendan Glackin, Esq. Dean Harvey, Esq. Anne B. Shaver, 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: rheimann@lchb.com kdermody@lchb.com bglackin@lchb.com dharvey@lchb.com ashaver@lchb.com - and - Joseph R. Saveri, Esq. James Dallal, Esq. JOSEPH SAVERI LAW FIRM, INC. 505 Montgomery, Suite 625 San Francisco, CA 94111 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 E-mail: jsaveri@saverilawfirm.com jdallal@saverilawfirm.com The case is captioned In re: High-Tech Employee Antitrust Litigation, Case No. 5:11-cv-02509-LHK, in the U.S. District Court for the Northern District of California, San Jose Division. ADT CORP: Geltzeiler Dismissed From Securities Litigation --------------------------------------------------------- The ADT Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 28, 2015, for the quarterly period ended December 26, 2014, that Michael S. Geltzeiler was dismissed as a defendant without prejudice from the securities litigation. On April 28, 2014, the Company and certain of its current and former officers and directors were named as defendants in a lawsuit filed in the United States District Court for the Southern District of Florida. The plaintiff alleges violations of the Securities Exchange Act of 1934 and SEC Rule 10b-5, and seeks monetary damages, including interest, and class action status on behalf of all plaintiffs who purchased the Company's common stock during the period between November 27, 2012 and January 29, 2014, inclusive. The claims focus primarily on the Company's statements concerning its financial condition and future business prospects for fiscal 2013 and the first quarter of fiscal 2014, its stock repurchase program in 2012 and 2013 and the buyback of stock from Corvex Management LP ("Corvex") in November 2013. On June 27, 2014, another plaintiff filed a similar action in the same court. On July 14, 2014, the Court entered an order consolidating the two actions under the caption Henningsen v. The ADT Corporation, Case No. 14-80566-CIV-DIMITROULEAS, and appointing IBEW Local 595 Pension and Money Purchase Pension Plans, Macomb County Employees' Retirement System and KBC Asset Management NV as Lead Plaintiffs in the consolidated action. In addition to the Company, the defendants named in the action are Naren Gursahaney, Kathryn A. Mikells, Michael S. Geltzeiler, Keith A. Meister and Corvex. On September 25, 2014, defendants moved to dismiss this action and the parties await the court's decision on that motion. On November 13, 2014, Mr. Geltzeiler was dismissed as a defendant without prejudice from this action. The Company intends to vigorously defend itself against the allegations in this action and is currently unable to predict the outcome or if legal damages will be awarded. ADVANCED REHABILITATION: Sued Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Tracey Bisaga, on behalf of herself and those similarly situated v. Advanced Rehabilitation Management, Inc. and John Does 1-10, Case No. 2:15-cv-00411 (E.D. Pa., January 28, 2015), is brought against the Defendants for failure to pay overtime compensation in violation of the Fair Labor Standard Act. Advanced Rehabilitation Management, Inc. owns and operates a rehabilitation center at 900 West Valley Road, Suite 300, Wayne, PA 19087. The Plaintiff is represented by: Richard S. Swartz, Esq. SWARTZ SWIDLER LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 E-mail: rswartz@swartz-legal.com ADVANCED TATTOO: "Brown" Suit Seeks to Recover Unpaid OT Wages -------------------------------------------------------------- Alyssa Brown, on behalf of herself and all others similarly- situated v. Advanced Tattoo Management Consulting, Corp. d/b/a Tattoo Lou's, and Lou Rubino in his individual and professional capacities, Case No. 2:15-cv-00436 (E.D.N.Y., January 28, 2015), seeks to recover unpaid overtime compensation, minimum wage compensation, and liquidated damages pursuant to the Fair Labor Standard Act. The Defendants own and operate a tattoo and body piercing shop located at 579 West Sunrise Highway, West Babylon, New York. The Plaintiff is represented by: Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES PLLC 1010 Northern Blvd, Suite 328 Great Neck, NY 11201 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com ALL STAR LIGHTING: Faces "Jackson" Suit Over Failure to Pay OT -------------------------------------------------------------- Edrey Jackson v. All Star Lighting Supplies, Inc. and George Pscherhofer, Case No. 2:15-cv-00609 (D.N.J., January 28, 2015), is brought against the Defendants for failure to overtime for work performed in excess of 40 hours weekly. The Defendants are engaged in lightning supply business with headquarter located in Avanel, Middlesex County, New Jersey. The Plaintiff is represented by: Andrew I. Glenn, Esq. JAFFE GLENN LAW GROUP PA Lawrence Office Park Building 2, Suite 220 168 Franklin Corner Road Lawrenceville, NJ 08648 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: aglenn@jaffeglenn.com ALMAR PARTY: "Smith" Suit Seeks to Recover Unpaid OT Wages ---------------------------------------------------------- Damon Smith, on behalf of himself and all others similarly situated v. Almar Party Rental Corp., and Martin Fox, in his individual and professional capacities, Case No. 2:15-cv-00585 (D.N.J., January 28, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. The Defendants own and operate a tent and party supply rental company located in Irvington, New Jersey. The Plaintiff is represented by: Alexander Gastman, Esq. BORRELLI & ASSOCIATES, PLLC 655 Third Avenue, Suite 1821 New York, NY 10017 Telephone: (212) 679-5000 Facsimile: (212) 679-5005 E-mail: alg@employmentlawyernewyork.com AMERICAN REALTY: Faces NYCERS Class Suit in S.D. New York --------------------------------------------------------- Courthouse News Service reports that exposure of the misleading statements by directors of American Realty Capital Properties sent securities plummeting, a class alleges, joining a chorus of similar actions. The case is New York City Employees' Retirement System v. American Realty Capital Properties, in the U.S. District Court for the Southern District of New York. AMERICAN REALTY: Faces "Boitifoll" Suit Over Misleading Reports --------------------------------------------------------------- Courthouse News Service reports that exposure of the misleading statements by directors of American Realty Capital Properties sent securities plummeting, a class alleges, echoing claims from earlier lawsuits. The case is Adria Boitifoll; Stuart Jay v. American Realty Capital Properties; Nicholas Schorsch; et al., in the Baltimore City Circuit Court. AMTRUST: Responds to Shareholder Class Action --------------------------------------------- The Insurance Insider reports that AmTrust has launched a strongly worded response to a class action suit brought by a number of shareholders after its stock plummeted in response to a critical note from a short seller. The class action suit accused AmTrust of overstating its underwriting income by $289.9 million between 2010 and 2012. "AmTrust accomplished this fraud by making knowingly unrealistic actuarial assumptions as to the amount of expected future losses from insurance policies it wrote," the second amended complaint said. APPLE INC: Court Drops Claims in iPod iTunes Antitrust Litigation ----------------------------------------------------------------- Apple Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 28, 2015, for the quarterly period ended December 26, 2014, that a district court entered judgment in favor of the Company, dismissing all claims against it with prejudice, in the Apple iPod iTunes Antitrust Litigation (formerly Charoensak v. Apple Computer, Inc. and Tucker v. Apple Computer, Inc.). These related cases were filed on January 3, 2005 and July 21, 2006 in the United States District Court for the Northern District of California on behalf of a purported class of direct purchasers of iPods and iTunes Store content, alleging various claims including alleged unlawful tying of music and video purchased on the iTunes Store with the purchase of iPods and unlawful acquisition or maintenance of monopoly market power under Sections 1 and 2 of the Sherman Act, the Cartwright Act, California Business & Professions Code Section 17200 (unfair competition), the California Consumer Legal Remedies Act and California monopolization law. After a three week trial in December 2014, the jury returned a verdict in favor of the Company and, on January 5, 2015, the District Court entered judgment in favor of the Company, dismissing all claims against it with prejudice. APPLE INC: Appealed Decision in eBooks Antitrust Litigation ----------------------------------------------------------- Apple Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on January 28, 2015, for the quarterly period ended December 26, 2014, that the Company appealed a district court decision in the Apple eBooks Antitrust Litigation. On April 11, 2012, the U.S. Department of Justice filed a civil antitrust action against the Company and five major book publishers in the U.S. District Court for the Southern District of New York, alleging an unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act and seeking, among other things, injunctive relief, the District Court's declaration that the Company's agency agreements with the publishers are null and void and/or the District Court's reformation of such agreements. On July 10, 2013, the District Court found, following a bench trial, that the Company conspired to restrain trade in violation of Section 1 of the Sherman Act and relevant state statutes to the extent those laws are congruent with Section 1 of the Sherman Act. The District Court entered a permanent injunction, which took effect on October 6, 2013 and will be in effect for five years unless the judgment is overturned on appeal. The Company has taken the necessary steps to comply with the terms of the District Court's order, including renegotiating agreements with the five major eBook publishers, updating its antitrust training program and hiring an antitrust compliance monitor. The Company appealed the District Court's decision. Pursuant to a settlement agreement reached by the parties in June 2014, any damages the Company may be obligated to pay will be determined by the outcome of the appellate decision. BANK OF AMERICA: Must Face Forex Antitrust Class Action ------------------------------------------------------- Scott Flaherty, writing for The Litigation Daily, reports that a Manhattan federal judge on Jan. 28 delivered an early-inning win to plaintiffs lawyers at Hausfeld LLP and Scott & Scott in a suit accusing a dozen major banks of widespread manipulation of the $5 trillion-a-day foreign exchange market. Less than a month after JPMorgan Chase & Co. reached a settlement in the case, U.S. District Judge Lorna Schofield refused to dismiss consolidated class action claims against a group of financial industry giants including Bank of America Corp., Barclays PLC and Citigroup Inc. Schofield held that the plaintiffs plausibly alleged an antitrust conspiracy in which the banks' top forex traders agreed to rig the market for more than a decade. The plaintiffs, represented by Hausfeld name partner Michael Hausfeld, Scott & Scott's Christopher Burke and others, include Philadelphia's city pension board, along with several public pension funds, investment funds and hedge funds. They claim that traders at the banks used instant messages, emails and online chat rooms to rig foreign exchange rates, including the benchmark World Markets/Reuters Closing Spot Rates, also referred to as "the fix." "The U.S. complaint contains specific allegations of chat room participants congratulating each other about the manipulation of the fix," Schofield wrote in the Jan. 28 order. "Even the names the FX traders gave their chat rooms -- such as 'The Cartel,' 'The Bandits' Club' and 'The Mafia' -- support the inference that the chat rooms were used for anticompetitive purposes." The suit dates back to November 2013 and involves allegations similar to those investigated by government regulators, who have secured more than $1 billion in penalties from some of the banks. The banks moved to dismiss the private action in May 2014. They asserted at the time that the investors' antitrust claims were threadbare, and that they'd failed to connect the alleged rate rigging to the banks' efforts to secure more business in the forex market. Judge Schofield rejected those arguments on Jan. 28, allowing the proposed class action to move forward. However, she agreed to dismiss a pair of similar lawsuits brought by plaintiffs in South Korea and Norway who traded foreign currency outside of the U.S. The judge ruled that the foreign plaintiffs' Sherman Act claims were barred by the Foreign Trade Antitrust Improvements Act, and found their New York state claims had "an insufficient nexus to New York." The Jan. 28 ruling keeps the U.S. plaintiffs' case intact against all 12 banks named as defendants. The number is likely to shrink to 11, however: JPMorgan Chase & Co. and its lawyers at Skadden, Arps, Slate, Meagher & Flom wrote to Schofield on Jan. 5, indicating that they had reached a settlement. Litigation Daily contacted Scott & Scott's Christopher Burke and lawyers for multiple defendants on Jan. 28 but didn't immediately hear back. The defense lineup for the banks includes Shearman & Sterling (for Bank of America); Sullivan & Cromwell (for Barclays); Allen & Overy (for BNP Paribas); Covington & Burling (for Citigroup); Cahill Gordon & Reindel (for Credit Suisse Group AG); Kirkland & Ellis (for Deutsche Bank AG); Cleary Gottlieb Steen & Hamilton (for Goldman Sachs & Co.); Locke Lorde (for HSBC Holdings PLC); Skadden, Arps, Slate, Meagher & Flom (for JPMorgan); Wachtell, Lipton, Rosen & Katz (for Morgan Stanley); Davis Polk & Wardwell (for The Royal Bank of Scotland Group PLC); and Gibson, Dunn & Crutcher (for UBS AG). BANK OF AMERICA: Investor Groups Want to Join Libor Appeal ---------------------------------------------------------- Scott Flaherty, writing for The Litigation Daily, reports that now that the U.S. Supreme Court has ruled that bond purchasers can try to revive antitrust claims over alleged manipulation of the Libor interest rate, other key Libor plaintiffs are urging a judge not to leave them on the sidelines. Susman Godfrey's William Carmody -- bcarmody@susmangodfrey.com -- made the plea on Jan. 23 to U.S. District Judge Naomi Reice Buchwald, who's presiding over consolidated Libor litigation. In a letter, Mr. Carmody asked Buchwald to allow his clients pursue an immediate appeal of her 2013 decision to toss the antitrust claims at the heart of the case. The letter came just days after Justice Ruth Bader Ginsburg, writing for a unanimous Supreme Court on Jan. 21, ruled that a different group of investors couldn't be forced to wait to appeal Judge Buchwald's decision. Plaintiffs in the consolidated case allege that a slew of major banks conspired to artificially suppress Libor, a benchmark for interest rates on trillions of dollars' worth of financial products. Mr. Carmody and his firm represent "over-the-counter" investors -- pension funds and others that directly purchased Libor-linked financial products from the defendant banks -- and "exchange-based" investors that traded certain futures on the Chicago Mercantile Exchange. In March 2013, Judge Buchwald threw out the central antitrust claims in the litigation, though she kept some other claims alive. The ruling prompted several groups to seek immediate review by the U.S. Court of Appeals for the Second Circuit, and Judge Buchwald initially agreed to let those challenges go forward. The appeals initially hit a dead end, however. Considering an appeal from a group of bond purchasers led by Ellen Gelboim and Linda Zacher, who solely alleged a federal antitrust violation, the Second Circuit found it lacked jurisdiction to hear the challenge because there were still other claims left in the consolidated case. That decision, in turn, led Buchwald to withdraw her certification allowing Susman Godfrey to pursue an appeal for the OTC and exchange-based investors. The Supreme Court reversed the Second Circuit's decision, finding that the Gelboim plaintiffs could immediately appeal the antitrust decision despite continuing district court litigation involving other Libor investors. The banks, Ginsburg's opinion noted, had warned the Supreme Court that allowing the Gelboim appeal to proceed now would create a burden on the defendants and prolong the litigation, since "plaintiffs with the stronger cases will be unable to appeal simultaneously because they have other claims still pending." That argument, which Ginsburg flatly rejected, may come to haunt the banks now that Susman Godfrey has asked Buchwald to again certify his client's immediate appeal. If the district judge agrees, lawyers for the OTC and exchange plaintiffs could bolster the strength of the appellate challenge. "Now that the Gelboim appeal is pending anew, the equities again weigh strongly in favor of certification," Susman Godfrey's Carmody wrote in the Jan. 23 letter. "Plaintiffs should be permitted to brief and argue the appeal that will determine the major issue respecting their Sherman Act claims at the same time that the Gelboim plaintiffs are appealing that same issue." Davis Polk & Wardwell's Robert Wise, who represents Bank of America Corp. in the Libor suit and serves as liaison counsel for the defendants, declined to comment. Mr. Carmody's letter said plaintiffs lawyers had asked the defendants whether they'd oppose the request for an immediate appeal, and that the banks were still considering their options. BARRY UNIVERSITY: Removes "Martells" Class Suit to S.D. Florida --------------------------------------------------------------- The class action lawsuit entitled Martells v. Barry University, Inc., Case No. 14-20926-CA-01, was removed from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, to the United States District Court for the Southern District of Florida. The District Court Clerk assigned Case No. 1:15-cv-20285-JLK to the proceeding. Plaintiff Damion A. Martells alleges in his Complaint violations of the Fair Labor Standards Act. The Plaintiff is represented by: Jason S. Remer, Esq. Brody M. Shulman, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: jremer@rgpattorneys.com bshulman@rgpattorneys.com The Defendant is represented by: David E. Block, Esq. Allison M. Gluvna, Esq. JACKSON LEWIS P.C. One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 577-7600 Facsimile: (305) 373-4466 E-mail: david.block@jacksonlewis.com allison.gluvna@jacksonlewis.com CANADA: Plaintiffs Still Have Options in Tar Ponds Lawsuit ---------------------------------------------------------- Nancy King, writing for Cape Breton Post, reports that there are still some options remaining for plaintiffs in a failed class- action lawsuit related to steelmaking in Sydney, their lawyer says. The Supreme Court of Canada refused to hear an appeal of the decision to quash a class-action lawsuit. The Nova Scotia Court of Appeal overturned the certification of the lawsuit in December 2013 and lawyers representing the representative plaintiffs had sought leave to appeal that decision to the Supreme Court of Canada. "It makes it difficult to achieve a safe and healthy environment for the citizens in the core of the city of Sydney," Halifax-based lawyer Ray Wagner said. The availability of class proceedings to address the issue of industrial contamination, whether by a government or private entity, varies by province. Mr. Wagner said he believes it would have been an ideal opportunity for the Supreme Court to lay the ground rules. The appeal court decision came after lawyers for the provincial and federal governments argued that the provincial Supreme Court justice erred in certifying the case because there are too many differences in the individual cases for the matter to be heard as a class-action. It was the first environmental class-action certified in Nova Scotia. Now, the case could be abandoned, Mr. Wagner said, or plaintiffs can file as individuals, which Mr. Wagner said would clog up the judicial system. Finally, they could pursue what is called a mass tort. "In other words list hundreds of people in a single proceeding that won't be subject to the rules of certification, and where we would be able to proceed as a group," he said. Mr. Wagner said the clients will determine how to move forward. Members of the group will be contacted and there will be a discussion with representative plaintiffs about how to proceed. Last year, the provincial Court of Appeal ordered that the representative plaintiffs pay more than $736,000 in costs to the provincial and federal governments. The law firms involved -- not the plaintiffs themselves -- would pay that amount. To date, the law firms involved are out of pocket another $700,000 in costs to date related to the case and Wager estimated that once the time of the lawyers involved are factored in, that would be $6-8 million. "It really does shut the door to the courthouse, and that's troubling," Mr. Wagner said of the costs involved to date. CHINA COMMERCIAL: "Dennison" Suit Moved From N.J. to New York ------------------------------------------------------------- The class action lawsuit styled Dennison v. China Commercial Credit, Inc., et al., Case No. 2:14-cv-04956, was transferred from the U.S. District Court for the District of New Jersey to the U.S. District Court for the Southern District of New York (Foley Square). The New York District Court Clerk assigned Case No. 1:15-cv-00557-ALC to the proceeding. The case is brought on behalf of persons or entities that purchased or otherwise acquired China Commercial Credit, Inc. securities between November 14, 2013, and July 25, 2014, inclusive, including the Company's public offering on May 7, 2014. The Plaintiff seeks to pursue remedies under the Securities Exchange Act of 1934 and Securities Act of 1933. The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, PA 609 W. South Orange Avenue, Suite 2P SOUTH ORANGE, NJ 07079 Telephone: (973) 313-1887 E-mail: lrosen@rosenlegal.com The Consolidated Plaintiff is represented by: Eduard Korsinsky, Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 363-7171 E-mail: ek@zlk.com Movant Jason Stark is represented by: Barry J. Gainey, Esq. GAINEY McKENNA & EGLESTON 95 Route 17 South, Suite 310 Paramus, NJ 07652 Telephone: (201) 225-9001 Facsimile: (201) 225-9002 E-mail: bgainey@gme-law.com The Defendants are represented by: Holly Froum, Esq. ELLENOFF GROSSMAN SCHOLE 1345 Avenue of Americas New York, NY 10105 Telephone: (212) 370-1300 E-mail: hfroum@egsllp.com CHOICE ENERGY: Has Made Unsolicited Calls, "Murray" Suit Claims --------------------------------------------------------------- Terry Murray, individually and on behalf of all others similarly situated v. Choice Energy, LLC d/b/a 4 Choice Energy, an Iowa limited liability company, and Premiere Business Solutions, LLC, an Iowa limited liability company, Case No. 1:15-cv-00060 (S.D. Ohio, January 28, 2015), seeks to stop Defendants' practice of making unsolicited phone calls to the telephones of consumers nationwide and to obtain redress for all persons injured by their conduct. Choice Energy, LLC is an electric supplier providing electric generation services for primarily residential customers and businesses. Premiere Business Solutions, LLC a telemarketing company that actively sells Choice Energy's services. The Plaintiff is represented by: William Harrelson, Esq. FAUST, HARRELSON, FULKNER, MCCARTHY & SCHLEMMER LLP 12 S. Cherry St., Troy, Ohio, 45373 Telephone: (937) 335-8324 E-mail: Will.Harrelson@fhfmslaw.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, LLC 201 South Biscayne Boulevard, 28th Floor Miami, Florida 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com COLUMBIA UNIVERSITY: Settles Class Action Over Tips for $875,000 ---------------------------------------------------------------- Garrett Donnelly, writing for Daily Columbia Spectator, reports that Columbia will pay $875,000 after settling a class action lawsuit, filed in March 2013, that alleged the University failed to pay Faculty House workers earned tips. Failure to do so constitutes a violation of Section 196-d of the New York State Labor Law. The majority the settlement funds -- $605,000 -- will be distributed among 55 class members who held "non-managerial and non-administrative positions" between March 2007 and March 2014, according to court documents. Osmond Cousins, Ricardo Gomez, and Eric Villa split the $15,000 service award as the named plaintiffs for "invaluable contributions in initiating, investigating, and resolving this action," the motion for settlement said. In addition to the class funds and service award, $255,000, 29 percent of the total settlement amount, went to attorney fees for plaintiff class counsel Pelton & Associates, PC and Edward Tuddenham. Approximately 30 Faculty House employees were interviewed about their work and salaries and hundreds of event invoices and contracts were reviewed to determine whether the University added service charges to event costs. A court document filed Jan. 5, 2015, reveals that the University argued that the contract with the union for Faculty House employees, UNITE HERE Local 100, pre-empted the labor law, which justified not giving Faculty House employees tips. However, the same document stated that a trial would likely lead to a lengthy appeals process, which made settlement more desirable. "The settlement thus avoids significant risk, expense and delay and ensures recovery for the class," the document states. "The efficiency of the settlement for the parties, the Court and the Class Members favors final approval." Villa did not return requests for comment by press time, and another member of the class declined to comment, citing potential legal scrutiny and concerns about job security. A Columbia press person decline to comment, and Brent Pelton, founder of Pelton & Associates, also declined to comment. COOK GROUP: Faces "Keltner" Suit Over Defective Celect IVC Filter ----------------------------------------------------------------- Douglas Keltner v. Cook Group, Inc., Cook Medical Inc., Cook Medical, LLC, Cook, Inc., Medical Engineering and Development Institute, Inc., Cook Medical Technologies, Cook Denmark International APS, Cook Denmark Holding APS, Cook Group Europe APS, Cook Nederland BV, and William Cook Europe APS, Case No. 1:15-cv-00102-SEB-DKL (S.D. Ind., January 26, 2015) arises from alleged injuries caused by a defective product -- Cook Celect Inferior Vena Cava. Mr. Keltner, a citizen of New York, underwent placement of a Cook IVC Filter at the UNC Hospital, located in Chapel Hill, North Carolina. On January 26, 2012, he learned that his IVC Filter had failed. After series of medical procedures, he was finally discharged on March 11, 2012. He contends that he has incurred significant medical expenses and has endured extreme pain and suffering, loss of enjoyment of life, disability, and other losses. Cook Group, Incorporated is an Indiana Corporation with a principal place of business located in Bloomington, Indiana. Cook Group, Incorporated is the parent company of Cook Medical Incorporated and is an Indiana Corporation with a principal place of business also located in Bloomington. Cook develops, manufactures, sells and distributes medical devices for use in various medical applications, including endovascular cardiology, and surgical products throughout the United States and around the world. Cooks' products include the Cook Celect Vena Cava Filter, which is used for the prevention of recurrent pulmonary embolism via placement in the vena cava. The Plaintiff is represented by: Teresa C. Toriseva, Esq. TORISEVA LAW 1446 National Road Wheeling, WV 26003 Telephone: (304) 238-0066 Facsimile: (304) 238-0149 E-mail: ceo@torisevalaw.com John A. Dalimonte, Esq. KARON & DALIMONTE LLP 85 Devonshire Street, Suite 1000 Boston, MA 02109 Telephone: (617) 367-3311 Facsimile: (617) 742-9130 DIAMOND STAFFING: Faces "Sosa Munoz" Suit Over Failure to Pay OT ---------------------------------------------------------------- Christian J. Sosa Munoz, Individually and on behalf of all others similarly situated v. Diamond Staffing Services, Inc. f/k/a Tri- Diamond Staffing Inc., John Does 1-300, Case No. 2:15-cv-00598 (D.N.J., January 28, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. Diamond Staffing Services, Inc. owns and operates an employment agency in New York. The Plaintiff is represented by: Andrew P. Bell, Esq. Michael A. Galpern, Esq. LOCKS LAW FIRM LLC 801 N. Kings Highway Cherry Hill, NJ 08034 Telephone: (856) 663-8200 Facsimile: (856) 823-1551 E-mail: abell@lockslaw.com mgalpern@lockslaw.com DIRECT WINES: Faces Suit in Illinois Alleging Violations of TCPA ---------------------------------------------------------------- Nicholas Martin on behalf of himself and others similarly situated v. Direct Wines, Inc., Case No. 1:15-cv-00757 (N.D. Ill., January 26, 2015) alleges violations of the Telephone Consumer Protection Act. Direct Wines, Inc. is based in Norwalk, Connecticut. The Company is an operating subsidiary of a set of companies located in Reading, Berkshire, England, including Direct Wines Limited and Direct Wines International. The Company operates WSJ Wine. Mr. Martin is a resident of Illinois. He discloses that his cellular telephone is on the Federal Trade Commission Do Not Call Registry. He is a member of WSJ Wine, pursuant to which he signed up to receive periodic shipments of wine on the Internet. He contends that he has never expressed an interest in receiving telemarketing calls in connection with his WSJ Wines subscription, and has never provided prior express written consent to receive those calls. The Plaintiff is represented by: Alexander H. Burke, Esq. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 Facsimile: (312) 729-5289 E-mail: ABurke@BurkeLawLLC.com EMERY FEDERAL: Accused of Violating Fair Labor Standards Act ------------------------------------------------------------ Lovie Johnson, Ruth Vigna and Irina Abidin, on behalf of themselves and other similarly situated employees v. Emery Federal Credit Union and Emery Financial Services, Inc., Case No. 1:15-cv- 00051-SJD (S.D. Ohio, January 26, 2015) accuses the Defendants of violating the Fair Labor Standards Act. The Plaintiffs are represented by: Deborah R. Grayson, Esq. MEIZLISH & GRAYSON 830 Main Street, Suite 999 Cincinnati, OH 45202 Telephone: (513) 345-4700 Facsimile: (513) 345-4703 E-mail: drgrayson@fuse.net EXXON MOBILE: Proposes Changes to Lab Report, Documents Reveal -------------------------------------------------------------- Debra Hale-Shelton, writing for Northwest Arkansas, reports that Exxon Mobil successfully proposed numerous changes to a Texas laboratory's report on the cause of the Pegasus pipeline's 2013 rupture in Mayflower, even though the oil giant described the company as "independent," according to newly unsealed documents in a class-action lawsuit. FURNITURE BRANDS: "Carter" Shareholder Class Suit Dismissed ----------------------------------------------------------- District Judge Henry Edward Autrey granted the Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Complaint in the case captioned, KEITH CARTER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. FURNITURE BRANDS INTERNATIONAL, INC., RALPH P. SCOZZAFAVA and VANCE C. JOHNSTON, Defendants. United States District Court, E.D. Missouri, Eastern Division, No. 4:13CV1600 HEA (E.D. Mo.). A copy of the Court's January 27, 2015 Opinion, Memorandum and Order is available at http://bit.ly/1uSQThHfrom Leagle.com. Plaintiffs, who purchased shares of the common stock of Furniture Brands, Inc. during the alleged class period, filed this Consolidated Amended Complaint against Ralph Scozzafava, the former Chief Executive Officer and Chairman of the Board of Directors of Furniture Brands, and Vance Johnston, the former Chief Financial Officer of Furniture Brands, for violations of sections 10(b) and 20(a) of the Exchange Act, and U.S. Securities and Exchange Commission Rule 10b-5. G&E FLORIDA: Faces "Lara" Suit Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Osman Lara, Holman Gutierrez-Valles, Milton Lopez, Pedro Candelario, Waldo Fonseca, Celso Uriel Lara, and Luis Alvarez, on behalf of themselves and all others similarly situated v. G&E Florida Contractors, LLC, a Florida limited liability company and Enrique Hersman, Case No. 1:15-cv-20306 (S.D. Fla., January 28, 2015), is brought against the Defendants for failure to pay overtime compensation as required by the Fair Labor Standard Act. The Defendants own and operate a construction company employing laborers in various disciplines, in connection with US government- funded affordable housing projects. The Plaintiff is represented by: Pelayo M. Duran, Esq. LAW OFFICE OF PELAYO DURAN, PA 4640 NW 7th Street Miami, FL 33126 Telephone: (305) 266-9780 Facsimile: 269-8311 E-mail: Assistant@pelayoduran.com - and - Roderick Victor Hannah, Esq. RODERICK V. HANNAH, ESQ., P.A. 1250 South Pine Island Road, Suite 375 Plantation, FL 33324-4454 Telephone: (954) 362-3800 Facsimile: (954) 362-3779 E-mail: rhannah@rhannahlaw.com GELFAND RENNERT: Faces "Dacosta" Suit Over Failure to Pay OT ------------------------------------------------------------ Simonette Dacosta v. Mariah Carey, Nicholas Cannon, Gelfand, Rennert, Feldman LLP, Antelo Road, LLC, Case No. 1:15-cv-00596 (S.D.N.Y., January 28, 2015), is brought against the Defendants failure to pay overtime wages in violation of the Fair Labor Standards Act. Gelfand, Rennert, Feldman LLP is a full-service business management firm for entertainers, executives and select high net worth individuals. The Plaintiff is represented by: Eli Zev Freedberg, Esq. LAW OFFICE OF ELI FREEDBERG P.C. 11 Broadway, Suite 615 New York, NY 10007 Telephone: (347) 651-0044 Facsimile: (212) 214-0799 E-mail: efreedberg@ezf-law.com GOLD CUP: Exotic Dancers File FLSA Class Action ----------------------------------------------- FOX 26 reports that some exotic dancers can make hundreds even thousands of dollars in a night. "That is not a payment of wage that comes from the club itself," says attorney Galvin Kennedy. And in some cases Mr. Kennedy says the dancers must pay the club a fee and share their tips with club employees like managers and disc jockeys. By not paying the dancers one single cent the owners of Gold Cup, Treasures, Cover Girls and Centerfolds are violating the Fair Labor Standards Act, according to a lawsuit filed against the clubs. That lawsuit claims these clubs should be paying dancers at least minimum wage in addition to the tips they receive and overtime for working more than 40 hours a week. "The fact that they work in an establishment as an exotic dancer doesn't change the law for them," Mr. Kennedy says. Club owners maintain they don't have to pay the dancers because they are not employees but rather independent contractors. That's hogwash says Mr. Kennedy. He says the clubs have detailed rules the dancers must follow making them employees. "They tell them the type of clothes to wear what days they have to work the hours they have to work," says Mr. Kennedy. "If they try to go home early there's a fine they have to pay and all of these rules are implemented through a very detailed penalty or fine structure." Not so says Casey Wallace the attorney representing the four clubs being sued. In a statement he tells us the dancers work when and where they want with no restrictions or requirements. But Kennedy says the Supreme Court in Nevada, a state known for topless clubs sees it his way. "The Supreme Court of that state declared that the dancers are employees not independent contractors that decision alone is sending ripples across the country," Mr. Kennedy said. If the class action suit here is successful some area dancers could reap thousands of dollars without touching a pole. "In a recent case that we settled on behalf of about 182 exotic dancers up in Dallas the club paid two point three million dollars and the ladies ended up on average with close to 10 thousand dollars," said Mr. Kennedy. The attorney for the clubs says to suggest dancers would prefer to be classified as an employee make 7.25 an hour and be put on a schedule is incredibly na‹ve. The clubs attorney says there are a host of dancers who would openly tell you this lawsuit is nuts. GOOGLE INC: $19-Million App Refunds Did Not Appease Parents ----------------------------------------------------------- William Dotinga at Courthouse News Service reports that Google has told a federal judge that a brewing class action brought by a mother whose children spent $70 on in-app purchases from the Google Play store without her permission should not be certified, since the tech giant agreed to refund customers to settle a Federal Trade Commission investigation. Google agreed to cough up no less than $19 million in refunds to customers whose children made in-app purchases without permission. The FTC had found that Google had been billing customers for inadvertent purchases made without passwords or any other form of authorization since 2011. Even after implementing a password requirement, the FTC said that Google never told parents that entering a password would open a 30-minute window during which children could make unlimited purchases -- often without parents' permission. Google has begun notifying its customers of the settlement, which requires the company to give refunds for all unauthorized in-app purchases made by children and to modify its billing practices to get express consent from customers before charging them for future purchases. But before the FTC intervened, New York resident Ilana Imber-Gluck slapped Google with a putative class action after discovering that one of her sons spent $70 to buy in-app currency for the 99-cent game "Run Jump Smash." Other parents have since joined the federal case, which was filed this past March in San Jose. In a joint status report filed on Jan. 16, Google told U.S. District Judge Ronald Whyte that it plans to file a request to deny class certification since Imber-Gluck won't drop her case. The company said the FTC settlement "affords plaintiffs all of the relief to which they would be entitled if they succeeded in the litigation." Other courts have found that plaintiffs cannot proceed with a class action when they've already been offered refunds, the company added. But Imber-Gluck and the other parents countered that the FTC settlement did not resolve their case, and said that six months' of stonewalling discovery by Google make any request to deny certification premature. The Plaintiffs are represented by: Todd D. Carpenter, Esq. CARPENTER LAW GROUP 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 347-3517 Facsimile: (619) 756-6990 E-mail: Todd@carpenterlawyers.com - and - James R. Patterson, Esq. PATTERSON LAW GROUP, APC 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 398-4760 Facsimile: (619) 756-6991 E-mail: Jim@pattersonlawgroup.com - and - Edwin J. Kilpela, Jr., Esq. Benjamin J. Sweet, Esq. CARLSON LYNCH SWEET & KILPELA, LLP PNC Park 115 Federal St., Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: ekilpela@carlsonlynch.com bsweet@carlsonlynch.com - and - Shanon J. Carson, Esq. BERGER & MONTAGUE, P.C. 1622 Locust St. Philadelphia, PA 19103 Telephone: (215) 875-4656 Facsimile: (215) 875-4604 E-mail: scarson@bm.net The Defendant is represented by: Corey W. Roush, Esq. John R. Robertson, Esq. Logan Michael Breed, Esq. HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20005 Telephone: (202) 637-5600 Facsimile: (202) 637-5910 E-mail: corey.roush@hoganlovells.com robby.robertson@hoganlovells.com logan.breed@hoganlovells.com - and - John E. Schmidtlein, Esq. James H. Weingarten, Esq. WILLIAMS & CONNOLLY LLP 725 Twelfth Street NW Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 E-mail: jschmidtlein@wc.com jweingarten@wc.com The case is A.B., a Minor, by and through his Guardian Ilana Imber-Gluck, et al. v. Google, Inc., Case No. 5:14-cv-01070-RMW, in the U.S. District Court for the Northern District of California, San Jose Division. GUAM, USA: Accused of Not Returning Ancestral Land to Owners ------------------------------------------------------------ Writing for Courthouse News Service, Philip A. Janquart reports that Guam has not returned land that belongs to ancestral landowners, or provided compensation for it, a landowner claims in a federal class action. Guam is an unincorporated U.S. territory in the Western Pacific Ocean, and is the largest of the Marianas Islands. The Japanese occupied the area before the United States regained control of the islands during World War II. The U.S. Navy condemned and converted large sections of the island into military bases where the Antonio Won Pat International Airport now sits. The airport authority and Guam itself are the lead defendants in the federal complaint in Hagatna. Also sued are the territory's governor, the chairman of the airport board, and the chairwoman of the Guam Ancestral Lands Commission. The land the airport occupies was appraised at $51.2 million in 2000, making it some of the most valuable property in Guam, according to lead plaintiff Vicente Palacios Crawford. He claims the Guam International Airport Authority received $66.5 million in revenue in 2012, including $4 million in income through airport property rentals, and reported $52.5 million in operating income that year. Crawford says that instead of making money on renting the properties, they should be returned to the rightful owners, or the ancestral landowners should be properly compensated. Crawford owns lot 5204, in Tiyan, Barriga. He says he filed an Ancestral Title and Compensation Application with the Guam Ancestral Lands Commission and a Claim of Interest with the Department of Land Management, which was verified by both agencies, but has not been compensated for the airport's use of his family's land. Lands taken by the U.S. government during World War II were handed back to the Guam government in 1945 under the Guam Land Transfer Act. Crawford concedes that some of the land has since been returned to landowners, but not all. "Since the passage of the Guam Land Transfer Act, the U.S. has transferred excess lands to the government of Guam as its military operations in Guam decreased," the complaint states. "Although Guam has returned many of those properties to its ancestral landowners, it retains possession of large amounts of ancestral land. The ancestral landowners whose lands have not been returned to them are referred to 'dispossessed ancestral landowners.'" Crawford says the families who have not had their land returned, or have not been compensated, face an unfair system to determine compensation rights. "The procedures Guam has established to compensate dispossessed ancestral landowners . . . (i) place the burden of obtaining compensation on the landowners, (ii) arbitrarily limit the sources and amount of compensation, and (iii) provide no mechanism for determining the value of ancestral land claims and the compensation owed," according to the complaint. "Ancestral landowners whose property the government of Guam retains have not had their lands returned and have not received full compensation." Crawford seeks class certification, wants the court to order the government to treat the class the same as the other ancestral landowners who have received "complete relief," by properly valuing their claims and providing "full" compensation. He also seeks disgorgement of the money the government made by its use of the class's lands, and damages for breach of contract and unjust enrichment. The Plaintiff is represented by: Ignacio Aguigui, Esq. THE LAW OFFICES OF IGNACIO CRUZ AGUIGUI, APC RK Plaza, Suite 310 341 S. Marine Corps Drive Tamuning, GU 96913 Telephone: (671) 989-9253 Facsimile: (671) 989-9255 E-mail: ica@aguigui.com - and - Daniel Girard, Esq. Scott Grzenczyk, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dcg@GirardGibbs.com smg@GirardGibbs.com * * * Jerick Sablan, writing for Pacific Daily News, reports that Vicente "Benny" Crawford, through his attorneys, filed the class- action complaint on Jan. 16 against the government of Guam, including the governor and the A.B. Won Pat Guam International Airport Authority. The complaint seeks a jury trial and asks that the ancestral landowners be compensated for lands used by the government-run airport. The Ancestral Lands Commission currently is working on rules and regulations to compensate owners whose land cannot be returned, as required by Guam law. The commission postponed its vote on the rules and regulations, saying it needed more time to review and amend them. More than $3 million is available to compensate the ancestral landowners, from lease payments collected by the Ancestral Lands Commission. Mr. Crawford on Jan. 19 said he's thankful that the San Francisco law firm Girard Gibbs LLP and the Guam Law Offices of Ignacio, Cruz, Aguigui have picked up the case. Mr. Crawford said he's hopeful some form of payment can finally be approved for the landowners. "We don't know what the end result will be, but at least something is happening," he said. HALL RENDER: Faces "Gartman" Suit in Wis. Over Violation of FDCPA ----------------------------------------------------------------- Mina Gartmann, Individually and on Behalf of All Others Similarly Situated v. Hall, Render, Killian, Heath & Lyman, P.C., and Clement Manor, Inc., Case No. 2:15-cv-00113 (E.D. Wis., January 28, 2015), seeks to redress the Defendant's unlawful debt collection practices in violation the Fair Debt Collection Practices Act. Hall, Render, Killian, Heath & Lyman, P.C. is a law firm with offices in Milwaukee, Wisconsin. Clement Manor, Inc. a Wisconsin corporation provides health care and residential services. The Plaintiff is represented by: John D. Blythin, Esq. ADEMI & O'REILLY LLP 3620 E Layton Ave Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com HARTFORD FINANCIAL: 9th Cir. Affirms Dismissal of "Cantrall" Suit ----------------------------------------------------------------- In a diversity putative class action, Jessica Cantrall files suit against Defendants Hartford Financial Services Group and several affiliated Hartford entities. Cantrall purports to represent a class of California consumers who allege that they were charged more for cell phone insurance from 2001 to July 2005 than the rates that the Hartford defendants filed by statute with the California Department of Insurance. The district court dismissed Cantrall's Complaint on California statute of limitations grounds. In a memorandum dated Jan. 28, 2015, the United States Court of Appeals for the Ninth Circuit affirmed the district court's decision, after determining that the district court did not err in denying Cantrall's equitable estoppel claim because Cantrall admits that she was not aware of her claim until March 2012, well after the statute of limitations period had run. Cantrall, the Ninth Circuit pointed out, does not show that the Hartford defendants undertook any action to delay her filing of the cause of action. The appeals case is JESSICA CANTRALL, Plaintiff-Appellant, v. HARTFORD FINANCIAL SERVICES GROUP, HARTFORD FIRE INSURANCE COMPANY, TWIN CITY FIRE INSURANCE COMPANY, HARTFORD UNDERWRITERS INSURANCE COMPANY, HARTFORD INSURANCE COMPANY OF THE MIDWEST, HARTFORD CASUALTY INSURANCE COMPANY, HARTFORD ACCIDENT AND INDEMNITY COMPANY, HARTFORD SPECIALITY COMPANY, Defendants- Appellees, NO. 12-17319 (9th Cir.). A full-text copy of the Decision is available at http://is.gd/geKer5from Leagle.com. HONDA MOTOR: Faces Class Suit in Kentucky Over Defective Airbags ---------------------------------------------------------------- Mr. David Cambron, Jr., a Louisville resident and owner of a 2005 Honda Pilot, has filed a class-action lawsuit alleging that both Honda Motor Co., Ltd. (Honda) and Takata Corporation knew of the dangers relating to Takata airbags for at least a decade, yet the two manufacturing companies failed to inform the public because full disclosure would have negatively impacted the market value of Honda vehicles. "Airbags are a critical safety component in automobiles," said Strauss Troy Attorney Ron Parry. "Purchasers and lessees of vehicles have an expectation that airbags will operate properly to prevent injury. Honda's recent disclosure that the Takata airbags installed in its automobiles are capable of causing injury or death has significantly diminished the value of Honda automobiles." The legal complaint, filed January 9, 2015, in U.S. District Court, Western District of Kentucky, seeks recovery of losses and damages for the diminished value of the Class Members' Honda vehicles. Filed on behalf of citizens in the Commonwealth of Kentucky who own Honda automobiles, the complaint asserts claims under the Kentucky Consumer Protection Act and for breach of implied warranties under Kentucky law. The current Takata airbag recall includes more than 10 million vehicles and approximately half of those are Hondas. In October 2014, the National Highway Traffic Safety Administration (NHTSA) issued a Consumer Advisory instructing automobile owners to "act immediately on recall notices to replace defective Takata airbags." Honda develops, produces and manufactures a variety of motor products, ranging from small general-purpose engines and scooters to specialty sports cars. Takata Corporation manufactures and sells motor vehicle seat belts, airbags, steering wheels, interior trims and child restraint systems. Mr. Cambron is represented by Attorney Ron Parry of Strauss Troy Co., LPA (with offices in Cincinnati and Northern Kentucky) and Attorney Tad Thomas of the Thomas Law Offices, PLLC located in Louisville, Kentucky. Contact: Ron Parry, Attorney Strauss Troy Co., LPA Email: rrparry@strausstroy.com Tad Thomas, Attorney Thomas Law Offices, PLLC Email: tad@tadthomas.com JOHNSON HEALTH: Recalls Matrix Fitness Strength Training Machines ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with JHTNA Manufacturing LLC, of Milwaukee, Wis., announced a voluntary recall of about 140 Matrix Fitness Varsity series strength training machines. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The handle attachment on the strength training machines can detach during use and hit the user with force and/or cause the user to lose balance and fall. This poses a risk of impact injury, laceration and fall hazards. This recall involves five models of the Matrix Fitness series strength training machines with chrome frames, stacked weights, overhead pulleys, and some with black or blue vinyl seats and thigh supports. Models include VY-6021 Lat Pulldown, VY-6042 Bicep/Triceps Press, VY-6046 Lat Pulldown/Low Row, VY-6099 Total Body Trainer, and the J7021 Special Order Lat Pull. "Matrix" and the model number are printed on a white sticker at the base of the machines. They are used in commercial fitness facilities such as health clubs, hotels, apartment complexes and rehabilitation centers, schools and municipal facilities. Johnson Health Tech is aware of two injuries, including a man who was hit and cut on the head when the handle detached and another man who fell when the handle detached on his machine. Pictures of the Recalled Products available at: http://is.gd/qROOFT The recalled products were manufactured in United States and sold at Johnson Health Tech North America and its fitness equipment dealers nationwide from July 2013 through October 2014 for between $3,300 and $4,000. Owners should immediately prevent people from using the strength training machines and contact Johnson Health Tech North America to schedule a free repair. IQ DATA: Sued by Insurer Over Pending Class Suit in New Mexico -------------------------------------------------------------- Houston Specialty Insurance Company v. I.Q. Data International, Inc., Case No. 1:15-cv-00574-JPO (S.D.N.Y., January 26, 2015) seeks a judicial declaration that the Plaintiff is entitled to reimbursement from the Defendant, a debt collection service, of the $1 million that Houston Specialty has agreed to pay -- subject to full reservation of its reimbursement rights against the Defendant -- in settlement of the putative class action lawsuit titled Jacquelyn Jones v. I.Q. Data International, Inc., Case No. 1:14-CV-00130-PJK-RHS, pending in the U.S. District Court for the District of New Mexico. The Complaint in the Jones Lawsuit seeks an award of statutory penalty damages and treble damages against the Defendant for alleged repeated violations of the Fair Debt Collection Practice Act and the Telephone Consumer Protection Act, by virtue of the Defendant's alleged use of an automatic telephone dialing system. Houston Specialty issued a $2 million Miscellaneous Professional Liability Insurance policy to the Defendant with a policy period of February 1, 2014, to February 1, 2015. The Policy excludes from the definition of Damages, amounts that constitute "penalties". Statutory damages under both the FDCPA and the TCPA constitute a penalty and are not covered as Damages under the Policy, according to the complaint. The Policy provides that New York law governs all matters related to the validity, interpretation, performance and enforcement of the Policy. Punitive, exemplary and treble damages are uninsurable as a matter of public policy under New York law. The treble damages sought in the Jones Lawsuit are, therefore, not covered as Damages under the Policy, the Plaintiff contends. If judicial approval of the settlement of the Jones Lawsuit is forthcoming, Houston Specialty's $1 million settlement payment will constitute an advance for non-covered liabilities for which Houston Specialty is entitled to reimbursement from the Defendant under the Policy, the complaint explains. The Plaintiff is an insurance company domiciled in the state of Texas. The Defendant is a Washington State corporation authorized to and does conduct business in the state of New York. The Plaintiffs is represented by: David Alfred Boyar, Esq. D'AMATO & LYNCH 2 World Financial Center New York, NY 10281 Telephone: (212) 269-0927 Facsimile: (212) 269-3559 E-mail: dboyar@damato-lynch.com KINSLEY CONSTRUCTION: Doesn't Properly Pay Workers, Suit Claims --------------------------------------------------------------- James Kolba, on behalf of himself and those similarly situated v. Kinsley Construction Inc. and John Does 1-10, Case No. 1:15-cv- 00206 (M.D. Pa., January 28, 2015), is brought against the Defendants for failure to proper overtime compensation in violation of the Fair Labor Standard Act. Kinsley Construction Inc. is a Pennsylvania construction company operating at 2700 Water Street York, PA 17405. The Plaintiff is represented by: Justin L. Swidler, Esq. SWARTZ SWIDLER LLC 1878 Marlton Pike East, Suite 10 Cherry Hill, NJ 08003 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com - and - Matthew D. Miller, Esq. Richard S. Swartz, Esq. SWARTZ SWIDLER LLC 1101 Kings Highway North, Suite 420 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: mmiller@swartz-legal.com rswartz@swartz-legal.com LEXICON INC: Fails to Pay Proper Overtime Wages, Suit Claims ------------------------------------------------------------ Billy Wilhite v. Lexicon, Inc., Case No. 4:15-cv-00061-BSM (E.D. Ark., January 26, 2015) arises from the Defendant's alleged failure to pay the Plaintiff overtime and minimum wage compensation for all hours that the Plaintiff and all others similarly situated worked in excess of 40 per workweek, and for those hours the Plaintiff worked off the clock. The was an employee at the Defendant's metal shop in Little Rock, Arkansas. Lexicon, Inc., is an Arkansas corporation headquartered in Little Rock with locations throughout Arkansas. The Company operates metal shops. The Plaintiff is represented by: Chris Burks, Esq. Joshua Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: chris@sanfordlawfirm.com josh@sanfordlawfirm.com MEDBOX INC: Faces "Gutierrez" Suit Over Misleading Fin'l Reports ---------------------------------------------------------------- Ervin Gutierrez, individually and on behalf of all others similarly situated v. Medbox, Inc., Bruce Bedrick, Guy Marsala, Thomas Iwanski, and Vincent Mehdizadeh, Case No. 2:15-cv-00636 (C.D. Cal., January 28, 2015), 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. Medbox, Inc. is a Nevada corporation headquartered in West Hollywood, California. It describes itself as a leading dispensary infrastructure and licensing specialist, patented technology provider, and partner to the cannabis industry. The Individual Defendants are officers and directors of Medbox, Inc. The Plaintiff is represented by: Laurence M. Rosen, Esq. THE ROSEN LAW FIRM, P.A. 355 South Grand Avenue, Suite 2450 Los Angeles, CA 90071 Telephone: (213) 785-2610 Facsimile: (213) 226-4684 E-mail: lrosen@rosenlegal.com MI BOHIO: Faces "Apolinario" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Otilio Apolinario, and all others similarly situated under 29 U.S.C. Section 216(b) v. Mi Bohio Restaurant & Lounge Corp. d/b/a Purita's Restaurant and Lounge, Pura D. Abreu, Mariano A. Abreu, Case No. 0:15-cv-60166 (S.D. Fla., January 28, 2015), is brought against the Defendants for failure to overtime for work performed in excess of 40 hours weekly. The Defendants own and operate Purita's Restaurant and Lounge in Broward County, Florida. The Plaintiff is represented by: Jamie H. Zidell, Esq. J.H. Zidell, PA 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: 865-7167 E-mail: ZABOGADO@AOL.COM MICOR COMMUNICATIONS: Suit Seeks to Recover Unpaid Overtime Wages ----------------------------------------------------------------- Gregory Harris, Justin Williams, Harry Brigman, James Douglas and Steven Hooper, individually and on behalf of all others similarly situated v. Micor Communications FLA, LLC, a Florida Limited Liability company, Case No. 3:15-cv-00030 (N.D. Fla., January 28, 2015), seeks to recover overtime compensation and other relief under the Fair Labor Standards Act. Micor Communications FLA, LLC is a limited liability company that provides cable installation services with a principal place of business in Pensacola, Escambia County, Florida. The Plaintiff is represented by: Chris Richard Miltenberger, Esq. LAW OFFICE OF CHRIS R MILTENBERGER PLLC 1340 N White Chapel, Ste 100 Southlake, TX 76092 Telephone: (817) 416-5060 Facsimile: (817) 416-5062 E-mail: chris@crmlawpractice.com MIDDLE EAST BAKERY: Recalls Joseph's & Trader Joe's Bread Items --------------------------------------------------------------- Middle East Bakery, Inc. of Lawrence, Massachusetts is recalling select lots of bread products bearing the Joseph's and Trader Joe's brand names because they may contain undeclared soy. People who have an allergy or severe sensitivity to soy run the risk of serious or life-threatening allergic reaction if they consume these products. The Joseph's brand name products were distributed in markets in Vermont, New Hampshire, Maine, Massachusetts and Connecticut, and in the following stores: Market Basket, Stop & Shop, Shaw's, Hannaford and Big Y. The Joseph's products are as follows: Joseph's Mini Whole Wheat Pita, UPC 074117000413, with a sell by date of February 5, 2015 printed on the plastic closure tab. Product is packaged in a plastic bag. Joseph's Mini White Pita, UPC 074117000420, with a sell by date of February 5, 2015 printed on the plastic closure tab. Product is packaged in a plastic bag. Joseph's White Lavash, UPC 074117000697, with a sell by date of February 17, 2015 printed on the front panel of the package. Product is packaged in a plastic zip top bag. The Trader Joe's products were distributed only in Trader Joe's stores in Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington D.C. The Trader Joe's products are as follows: --- Trader Joe's 8 oz. Apocryphal 100% Whole Wheat Pita, UPC 00146326, with a sell by date of "FEB 05" printed on the plastic closure tab. --- Trader Joe's 10 oz. Apocryphal 100% Whole Wheat Pita, UPC 00146333, with a sell by date of "FEB 05" printed on the plastic closure tab. Trader Joe's Pita Bread, UPC 00146340, with a sell by date of "FEB 05" printed on the plastic closure tab. Trader Joe's Organic Pita Pocket Bread 100% Whole Wheat, UPC 00721196, with a sell by date of "FEB 03" Trader Joe's Pocketful of Fiber Pita Bread, UPC 00945097 with a sell by date of ''FEB 05'' printed on the plastic closure tab. There have been no illnesses reported to date. The recall was initiated after a temporary breakdown in the company's production and packaging processes. This announcement is intended to warn consumers who may have unconsumed product in their home. Consumers who have an allergy to soy and purchased these Pita and Lavash breads should discard the product immediately or return it to their point of purchase for a full refund. Customers with questions may contact Middle East bakery at (978) 688-2221, Monday through Friday 9:00 to 5:00 EST. MIRKA ABRASIVES: Recalls Orbital Sanders Due to Burn Hazard ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Mirka Abrasives, Inc. of Twinsburg, Ohio, announced a voluntary recall of about 574 in the U.S. and 21 in Canada Random orbital sanders (About 440 in the U.S. and 85 in Canada were previously recalled in June 2014.). Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The sander can short circuit, posing a fire hazard. This recall involves 5-inch and 6-inch Mirka CEROS compact electric random orbital sanders. The sanders are yellow and black with Mirka logo on the front. A speed control lever is on the top of the sanders and a vacuum hose connector on the rear. The recalled sanders came with either a cardboard box or a plastic carrying case, a 12-foot power cord, a wrench, a multi-hole backup pad and assorted abrasives. Some also came with a DC transformer. The 5-inch sander is model CEROS550. The 6-inch sander is model CEROS650. Model information is on a white sticker on the back of the sander housing beneath the hand grip. Serial numbers are engraved on the side of the sander housing just above the dust shroud. Sanders with serial numbers in the following ranges are being recalled: Model Serial Number Range ----- ------------------- CEROS550 345231326001 to 345231326023 345331326001 to 345331326025 401528672001 to 401528672080 402228672001 to 402228672016 CEROS650 401428673001 to 401428673070 401528673001 to 401528673026 Also being recalled in the U.S. only: Sander models CEROS550, CEROS650, and 6-inch sander model CEROS680 that were sent to the Mirka Authorized Repair Center between February 24, 2014 and December 16, 2014 to receive a new speed controller. Mirka is directly contacting U.S. consumers with sanders that were sent to the repair center and have serial numbers in the following ranges: Model Serial Number Range ----- ------------------- CEROS550 241328672025 to 417528672091 CNM25465 to VUU35621 CEROS650 334328673009 to 401428673070 CNM25731 to VVU66448 CEROS680 CLA47198 to VLA38835 The serial numbers are engraved on the side of the sander housing just above the dust shroud or on a white label on the back of the sander housing beneath the grip. Mirka Abrasives has received five reports of electrical shorting incidents which included the sanders sparking and smoking. No injuries or property damage have been reported. Pictures of the Recalled Products available at: http://is.gd/si8MMk The recalled products were manufactured in Finland and sold at Various distributors and independent retailers nationwide and at Amazon.com, Beavertools.com and other online retailers from March 2014 to November 2014 for about $500. Customers should immediately stop using the recalled sanders, unplug them and contact Mirka Abrasives for a free replacement. NESCO SERVICE: Sued in S.D. Texas Over Failure to Pay Overtime -------------------------------------------------------------- Robert St. John, Individually and for Others Similarly Situated v. Nesco Service Co., Nesco Resource, and Nesco, Inc., Case No. 4:15- cv-00253 (S.D. Tex., January 28, 2015), is brought against the Defendants for failure to pay overtime wages for hours worked excess of forty 40 in a workweek. The Defendants own and operate a staffing company providing engineering, IT, Light Industrial, Administrative and Accounting & Finance personnel to customers throughout the United States. The Plaintiff is represented by: James A. Jones, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Ste 1500 Houston, TX 77046 Telephone: (713) 877-8788 E-mail: jjones@brucknerburch.com NEW YORK: Education Dep't Sued for Discriminating v. Older Staff ---------------------------------------------------------------- Lisa B. Deleo, individually and on behalf of all others similarly situated v. New York City Department of Education, Rashaunda Shaw, Dayne McLean and Sharon Spann, Case No. 1:15-cv-00591-AT (S.D.N.Y., January 26, 2015) alleges job discrimination due to age. The Plaintiff is represented by: Cyrus E. Dugger, Esq. OUTTEN GOLDEN 3 Park Ave. New York, NY 10016 Telephone: (212) 245-2109 Facsimile: (646) 509-2094 E-mail: cd@theduggerlawfirm.com - and - Daniela Elisabeth Nanau, Esq. LAW OFFICE OF BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Blvd., Suite 328 Great Neck, NY 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: den@employmentlawyernewyork.com NINE MILE MINING: Feb. 23 Final Settlement Hearing -------------------------------------------------- Nola Sizemore, writing for Harland Daily, reports that alleging the WARN Act was violated, coal miners once employed at Nine Mile Mining Inc., a Jim Justice-owned coal mines located in Wise County, Va., have now been granted a preliminary settlement in U.S. District Court for the Western District of Virginia. U.S. District Judge James P. Jones entered an order dated Jan. 13 approving a proposed settlement in the class action lawsuit filed approximately one year ago. Under the proposed settlement, Nine Mile Mining Inc. has agreed to pay a total of $745,000. The amount of each class member's settlement was derived by calculating an estimate of the amount of wages each class member would receive in a 60-day period. Each class member then receives a pro-rata percentage of his total potential wage damages. Each class member will receive 76.11 percent of his total potential wage damages, after attorneys' fees. Nine Mile Mining Inc. will provide the settlement payments (less normal employee payroll withholdings), the service payment and payment for medical bills to class counsel, who will then distribute the settlement payments to the class members. Nine Mile Mining Inc. will also distribute W-2 forms to each class member. The six named plaintiffs in the lawsuit will receive an additional payment of $5,000 each, less attorneys' fees, in payment for the service they provided to the class action lawsuit in connection with the prosecution of this action. Three class members will receive additional net payments for medical payments they incurred within 60 days of May 17, 2013. In particular, Claude McConnell will receive $298.75, Matthew Balthis will receive $185.94 and Charles Goodwin Jr. will receive $800.57. No other medical expenses were submitted by class members. "We are pleased with this development and it means we're closer to bringing this to a final resolution," said attorney Hugh O'Donnell, of Client Centered Legal Services of Southwest Virginia. "A final hearing on the proposed settlement will take place on Feb. 23 at 10:30 a.m. in U.S. District Court for the Western District of Virginia at the U.S. Courthouse and Federal Building, 180 West Main, Abingdon, Va." NPS PHARMACEUTICALS: Being Sold for Too Little, Suit Claims ----------------------------------------------------------- Courthouse News Service reports that directors are selling NPS Pharmaceuticals too cheaply through an unfair process to Shire, for $46 a share or $5.2 billion, shareholders claim in a class action in Delaware Chancery Court. PHH CORP: Awaits Ruling on 2008 Class Action -------------------------------------------- Respa News reports that nearly a year since the CFPB filed a notice of charges against New Jersey mortgage lender PHH Corp., and its subsidiaries for alleged illegal captive reinsurance activities, a final decision soon will be made on an administrative law judge's recommendation that the companies be deemed guilty of violating RESPA and pay almost $6.5 million in disgorgement. At the same time, a class-action lawsuit filed against PHH -- which is believed to have created the first captive reinsurance entity in the mortgage industry in the 1990s -- has been winding its way through a California federal court since 2008 and finally could be decided. PRIMAL VANTAGE: Recalls Ameristep Tree Stands Due to Fall Hazard ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Primal Vantage Co., of Bernardsville, N.J, announced a voluntary recall of about 1,000 Ameristep Hyde Cliff Hanger and Sky Walker Tree Stands. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The cast aluminum platform can break, causing the user to fall to the ground and suffer serious injuries. This recall involves two 2014 models of hang-on tree stands used by hunters. They include the Ameristep Hyde Cliff Hanger with model number 2RX1H008C and date code JH-2014-3-6 and the Ameristep Hyde Sky Walker with model number 2RX1H009C and date code JH-2014- 3-6. The date code is stamped on the back of the tree stand's aluminum seat frame. The model number is printed on the packaging and in the instruction manual. "Hyde" is printed in red on the vertical aluminum bar between the seat and the foot platform. Pictures of the Recalled Products available at: http://is.gd/fsNEPi The recalled products were manufactured in China and sold at Bass Pro Shops and other sporting goods stores nationwide from July 2014 through November 2014 for between $220 and $250. Consumers should immediately stop using the recalled product and contact Primal Vantage for a full refund. RC BIGELOW: "Victor" Class Certification Hearing Set for June 17 ---------------------------------------------------------------- Judge William H. Orrick of the United States District Court for the Northern District of California, San Francisco Division, approved a stipulation scheduling the class certification hearing for June 17, 2015, in the putative class action lawsuit captioned ADAM VICTOR, individually and on behalf of all other similarly situated, Plaintiff, v. R.C. BIGELOW, INC., Defendant, CASE NO. 3:13-CV-02976-WHO (N.D. Calif.). A full-text copy of Judge Orrick's Order dated Jan. 9, 2015, is available at http://is.gd/EKydugfrom Leagle.com. MILES D. SCULLY, Esq. -- mscully@gordonrees.com -- TIMOTHY K. BRANSON, Esq. -- tbranson@gordonrees.com -- JONI M. BORZCIK, Esq. -- jborzcik@gordonrees.com -- at GORDON & REES LLP, San Diego, CA, Attorneys for Defendant R.C. BIGELOW, INC. Ben F. Pierce Gore, PRATT & ASSOCIATES, San Jose, CA, J. Price Coleman (Pro Hac Vice) Coleman Law Firm, Oxford, MS, Attorneys for Plaintiff ADAM VICTOR. REED ELSEVIER: Sued by Yudkin & Brebner Over Court Access Denial ---------------------------------------------------------------- Dan McCue, writing for Courthouse News Service, reports that LexisNexis failed to take reasonable steps to ensure Kentucky law firms have unfettered access to their court's new electronic filing system, a class action claims. In its lawsuit, plaintiff Yudkin & Brebner law firm says it attempted to e-file a complaint with the Fayette County Circuit Court when it was notified that its check was declined by LexisNexis, which is owned by defendant Reed Elsevier Inc. The reason given was insufficient funds to cover the check in the plaintiff's bank account. At the time, attorney Franklin Yudkin had just completed e-filing training in Frankfort, Ky., and this was the first case the firm had attempted to E-file, the complaint says. The law firm checked with its bank, and was told there was sufficient money in its account to cover the transaction. It says a subsequent investigation revealed the decision to decline its payment was based on erroneous information contained in a consumer credit report provided by defendant Global Payment Check Services Inc., which is owned by defendant Global Payments. Yudkin & Brebner says that after talking to its bank, it is certain defendant Global had records indicating there was sufficient money in the firm's court cost account to pay any electronic check on the day it was presented. But the law firm's frustration didn't end there. It says it attempted t contact Global Payment Check Services to rectify the situation, but could not reach anything but voice mail when it attempted to call the number and extension provided for customer care. "When Yudkin attempted to press any other extensions, humans who answer[ed] would not speak to him about the situation and said the only solution was to leave a voice message on extension 407," the complaint says. The law firm says the problem has not been rectified and that to date it, "has been denied the ability to E-file any actions in the Commonwealth of Kentucky, when it has funds available in its bank account to cover the E-filing presentations." It asserts that "LexisNexis/Reed Elsevier Inc., uses its divisions of LexisNexis Vitalchek Network Inc., and/or LexisNexis Risk Solutions Inc. to deny Plaintiff the right to E-file in the Fayette Circuit Court or any other courts in Kentucky that allow E-filing." Yudkin & Brebner seeks class action status for all Kentucky lawyers, unspecified damages and injunctive relief on claims of violations of the Fair Credit Reporting Act and the Kentucky Consumer Protection Act. The complaint was filed by: Franklin S. Yudkin, Esq. YUDKIN & BREBNER PLLC 600 W. Main Street, Floor 5 Louisville, KY 40202 Telephone: (502) 272-2020 Facsimile: (502) 272-2019 E-mail: fyudkin@bellsouth.net SEVEN FIFTY-FOUR: Cal. App. Reverses Ruling in "Avelar" Suit ------------------------------------------------------------ Carlos Avelar used to work as a waiter at an International House of Pancakes restaurant owned and operated by defendant Seven Fifty-Four, Inc. In an action, Avelar alleges that IHOP 754 violated state labor laws and asserted various causes of action individually, on behalf of a class, and as the representative of other employees pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, Section 2698 et seq.). IHOP 754 moved to compel arbitration, based on a one-page arbitration agreement signed by Avelar. In opposition, Avelar testified, among other things, that IHOP 754 never gave him an opportunity to read the arbitration agreement, and that he understood that he had to sign it to keep his job. The trial court refused to enforce the arbitration agreement, ruling that it was both procedurally and substantively unconscionable. IHOP 754 appeals, and the Court of Appeals of California, Fourth District, Division Two, in a Jan. 26, 2015, opinion, reversed, explaining that while it agrees that the arbitration agreement was procedurally unconscionable, it says it cannot agree that it was substantively unconscionable. Accordingly, Avelar can be required to arbitrate all of his claims, with the sole exception of his PAGA claim, the Court of Appeals ruled. The case is CARLOS AVELAR, Plaintiff and Respondent, v. SEVEN FIFTY-FOUR, INC. et al., Defendants and Appellants, NO. E059862 (Cal. App.). A full-text copy of the Decision is available at http://is.gd/5LZ7Lgfrom Leagle.com. Garrett & Tully, Efren A. Compean, and Trang T. Tran for Defendants and Appellants. Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez and Alejandro P. Gutierrez, Esq. -- agutierrez@hathawaylawfirm.com; Law Office of Robert W. Skripko, Jr. and Robert W. Skripko, Jr., for Plaintiff and Respondent. SIOUX CITY, IA: Residents to Share Franchise Fee Settlement ----------------------------------------------------------- Beverly Perry, writing for KTIV, reports that Sioux City residents will share millions of dollars following the settlement of a class action lawsuit over franchise fees the city collected from 2001 to 2009. At the time, the city charged a two-percent fee for gas and electricity customers of MidAmerican Energy Company, and Woodbury County Rural Electric Cooperative. But, there was no state law that authorized such a fee. The city was ordered to pay the money back to customers. Ross Consulting is mailing out claim forms, which need to be returned by February 26. "MidAmerican and Woodbury County Electric compiled a list of account holders for the time period in question. They were able to provide the addresses and contact information that they would have had to the individuals, forwarding addresses and so forth to the claims administrator," said Nicole Jensen, City Attorney. The legislature has since passed a law that allows cities to charge a franchise fee of up to five percent. And that's exactly what Sioux City plans to do to pay for the settlement. The settlement amounts to $6.4 million. But, after legal fees, the amount owed is about $4 million. Follow this link to get to the settlement page: https://siouxcityfranchisefeesettlement.com/ SKY CHEFS: Stipulation Staying "Teruel" Suit Approved ----------------------------------------------------- Magistrate Judge Paul S. Grewal of the United States District Court for the Northern District of California, San Jose Division, approved on Jan. 27, 2015, the stipulation staying the action styled PATRICIA TERUEL, Plaintiff, v. SKY CHEFS, INC. and DOES 1 through 10, Defendants, CASE NO. 5:14-CV-04705 PSG (N.D. Calif.), for 90 days in order to facilitate settlement negotiations and the efficient resolution of the case and another case currently pending in the Superior Court of California (County of Santa Clara). A full-text copy of Magistrate Grewal's Decision is available at http://is.gd/L9UVXkfrom Leagle.com. Thomas M. McInerney, Esq. -- tmm@ogletreedeakins.com -- and Christopher M. Ahearn, Esq. -- christopher.ahearn@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., San Francisco, CA, Attorneys for Defendant SKY CHEFS, INC. POLARIS LAW GROUP, LLP, William L. Marder, Esq. -- bill@polarislawgroup.com -- Attorneys for Plaintiff PATRICIA TERUEL. STRATEGIC HOTELS: Sued Over Violation of Fair Labor Standard Act ---------------------------------------------------------------- Access 4 All, Inc., a Florida Non Profit Corporation, and Nelson M. Stern v. Strategic Hotels & Resorts, Inc., a Maryland Corporation, Case No. 1:15-cv-00637 (S.D.N.Y., January 28, 2015), is brought against the Defendant for violation of the Americans with Disabilities Act. Strategic Hotels & Resorts, Inc. owns and operate JW Marriott Essex House Hotel, located at 160 Central Park South, New York, NY 10010. The Plaintiff is represented by: Lawrence A. Fuller, Esq. FULLER, FULLER & ASSOCIATES, P.A. 12000 Biscayne Blvd., Suite 502 North Miami, FL 33181 Telephone: (305) 891-5199 Facsimile: (305) 893-9505 E-mail: Lfuller@fullerfuller.com - and - Nelson M. Stern, Esq. NELSON M. STERN ATTORNEY AT LAW 115 East 87th St., Suite 7C New York, NY 10128 Telephone: (917) 774-1330 Facsimile: (212) 717-4061 E-mail: scooterlawyer@aol.com STURON INC: "Molina" Suit Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- Rosalinda Molina and all other similarly situated employees v. Sturon, Inc., a Florida Corporation, Case No. 1:15-cv-20321 (S.D. Fla., January 28, 2015), seeks to recover unpaid overtime compensation, declaratory relief and other relief under the Fair Labor Standards Act. Sturon, Inc. owns and operates a wholesale nursery in Miami-Dade County, Florida. The Plaintiff is represented by: Sean P. O'Connor, Esq. SEAN P. O'CONNOR, PA 211 N Krome Avenue Homestead, FL 33030 Telephone: (305) 245-3230 Facsimile: 245-3282 E-mail: oconnorlaw@bellsouth.net SUNBEAM PRODUCTS: Recalls Oil-Filled Heaters Due to Scald Hazard ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Sunbeam Products, Inc., Boca Raton, Fla., announced a voluntary recall of about 34,000 Oil-Filled Heater in United States. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The oil-filled heaters can spray heated oil, posing a scald hazard. This recall involves Holmes brand oil-filled heaters that are black or white in color. The heaters included in the recall are about 23 inches tall, 6 inches deep and 12 inches wide and have model number HOH3000 or HOH3000B printed on a label on the bottom of the product. The "Holmes" logo is near the power switch and temperature control. Products affected have a code on the heater plug blade within the following range: G192 through G298. No other codes are affected. The firm has received approximately 40 reports of units that unexpectedly sprayed heated oil, resulting in reports of property damage involving damaged carpet and fabrics. No injuries reported. The recalled products were manufactured in China and sold at Target and small department stores nationwide from August 2014 through November 2014 for about $50. Consumers should immediately stop using the recalled heater, unplug it and contact Sunbeam for instructions on how to obtain a full refund. SYNGENTA CORP: "Runsick" Suit Consolidated in MIR162 Corn MDL ------------------------------------------------------------- The class action lawsuit titled Runsick v. Syngenta Corporation, et al., Case No. 3:15-cv-00006, was transferred from the U.S. District Court for the Eastern District of Arkansas to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02282-JWL- JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: Corey D. McGaha, Esq. Scott E. Poynter, Esq. William T. Crowder, Esq. EMERSON POYNTER LLP The Rozelle-Murphy House 1301 Scott Street Little Rock, AR 72202 Telephone: (501) 907-2555 Facsimile: (501) 907-2556 E-mail: cmcgaha@emersonpoynter.com scott@emersonpoynter.com wcrowder@emersonpoynter.com - and - John G. Emerson, Jr., Esq. EMERSON POYNTER LLP 830 Apollo Lane Houston, TX 77058 Telephone: (501) 907-2555 Facsimile: (501) 907-2555 E-mail: jemerson@emersonpoynter.com - and - Daniel E. Bacine, Esq. BARRACK, RODOS & BACINE Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 Facsimile: (215) 963-0838 E-mail: dbacine@barrack.com - and - Stephen R. Basser, Esq. BARRACK, RODOS & BACINE 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 230-0800 Facsimile: (619) 230-1874 E-mail: sbasser@barrack.com TAKATA CORPORATION: Faces "Corticeiro" Suit Over Defective Airbag ----------------------------------------------------------------- Joana Corticeiro, individually and on behalf of those similarly situated v. Takata Corporation, et al., Case No. 3:15-cv-00616 (D.N.J., January 28, 2015), alleges that the Defective Vehicles contain airbags manufactured by the Defendant that, instead of protecting vehicle occupants from bodily injury during accidents, violently explode and expel vehicle occupants with lethal amounts of metal debris and shrapnel. Takata Corporation is a specialized supplier of automotive safety systems that designs, manufactures, tests, markets, distributes, and sells airbags. The Plaintiff is represented by: Gerald H. Clark, Esq. William S. Peck, Esq. CLARK LAW FIRM, PC 811 Sixteenth Avenue Belmar, NJ 07719 Telephone: (732) 443-0333 Facsimile: (732) 894-9647 E-mail: gclark@clarklawnj.com wpeck@clarklawnj.com TALISMAN ENERGY: Being Sold for Too Little to Repsol, Suit Says --------------------------------------------------------------- Courthouse News Service reports that directors are selling Talisman Energy too cheaply through an unfair process to Repsol, for $8.3 billion or $8 a share, shareholders claim in New York County Supreme Court. TITLEMAX: Appeals Court Rejects Argument in Wage-and-Hour Suit -------------------------------------------------------------- Alyson Palmer, writing for Daily Report, reports that a panel of the Atlanta-based federal appeals court has rejected a defense that employers have been raising in the face of wage-and-hour lawsuits. The defense argument, which has been used around the country, contends that if an employee is complicit in inaccurately reporting how many hours he has worked, he should not be allowed to sue the employer later over wage-and-hour issues. In the case before the U.S. Court of Appeals for the Eleventh Circuit, the plaintiff said he was told by a supervisor to clock out before he actually went home because his employer, TitleMax of Georgia, didn't pay overtime. The Jan. 15 ruling appears to be the first federal appellate ruling to address the defense tactic directly. V. Severin Roberts of Barrett & Farahany in Atlanta, who made the winning argument for the plaintiff, said defense attorneys essentially have tried to shift to employees the responsibility of complying with the Fair Labor Standards Act (FLSA). The decision, he said, "does away, at least for summary judgment purposes, with that argument," said Mr. Roberts. "It's just not going to cut it after this decision." TitleMax's lawyers at Morris, Manning & Martin didn't give an interview for this story. But Atlanta lawyer Lisa "Lee" Schreter -- lschreter@littler.com -- of Littler Mendelson, who has written extensively in advocating for the adoption of the sort of defense used by the company, said she thought TitleMax's case may be different from other cases in which the defense is raised, in part because the TitleMax supervisor allegedly engaged in misconduct by altering the plaintiff's time records. "I certainly do not view [this] decision as precluding me from raising the defense in the Eleventh Circuit," said Ms. Schreter. "We'll keep duking it out." Mr. Roberts' client is Santonias Bailey, who was an assistant manager, then store manager, at a TitleMax store in Jonesboro. Mr. Bailey, who worked at the store for about a year, claims that his supervisor told him that TitleMax does not pay for overtime and there would be days he would be working off the clock. Mr. Bailey claims he would clock in and out when his supervisor told him to, even though those times would not match up with the hours he actually worked. Mr. Bailey also says his supervisor would edit his time records -- for example, saying he clocked out an hour earlier later than he actually had. After Mr. Bailey quit his job, he sued TitleMax under the FLSA, claiming he worked overtime hours for which he was not paid. The FLSA requires employers to pay their employees at least one and a half times their regular wage for every hour worked in excess of 40 hours per week. A successful lawsuit can result in back overtime pay -- sometimes double that as a penalty -- plus attorney fees. A brief filed by TitleMax cited testimony that Mr. Bailey had a close friendship with his supervisor -- something Mr. Bailey's lawyer disputed -- and also communicated directly with her boss, the district manager, about various matters. While Mr. Bailey's lawyer points out that Mr. Bailey's supervisor had an incentive to limit overtime pay because her bonus was tied to store profits, TitleMax notes that Mr. Bailey also received bonuses tied to store profits. Mr. Bailey's lawyer said that Bailey's bonuses were dwarfed by the overtime pay that he didn't receive. TitleMax said Mr. Bailey complained about not being paid overtime only after he wouldn't be receiving another bonus since he had left the company. (Bailey's lawyer said it makes sense that an employee would try to leave on good terms, particularly when he thought a bonus was forthcoming.) TitleMax also noted that when Bailey's replacement complained about the supervisor changing her time cards, TitleMax terminated the supervisor and paid Mr. Bailey's replacement back overtime pay. TitleMax moved for summary judgment, contending that Mr. Bailey couldn't recover any overtime pay because he had violated company policies requiring accurate reporting of hours, regular verification of time worked and reporting problems with a supervisor to a higher-level manager or an anonymous hotline. TitleMax invoked two closely-related affirmative defenses -- unclean hands and in pari delicto. Senior U.S. District Judge Martin Shoob granted the motion, and the plaintiff appealed to the Eleventh Circuit, where Judge Shoob was reversed by a panel of Judge Beverly Martin, Senior Judge R. Lanier Anderson and visiting Senior U.S. District Judge Denise Cote of New York. Writing for the panel, Judge Martin said that the purpose of the FLSA -- to counteract the unequal bargaining power between employees and employers -- compelled a ruling for the plaintiff. "If an employer knew or had reason to know that its employee under-reported his hours, it cannot escape FLSA liability by asserting equitable defenses based on that underreporting," wrote Judge Martin. "To hold otherwise would allow an employer to wield its superior bargaining power to pressure or even compel its employees to underreport their work hours, thus neutering the FLSA's purposeful reallocation of that power." Judge Martin noted the Eleventh Circuit had ruled for plaintiffs on similar facts. In those cases, the employers had argued they could not be held responsible because they didn't know about the unpaid overtime, and the court ruled that supervisors' knowledge could be attributed to the employer. Judge Martin said that TitleMax was presenting its argument "in different terms" than the employers did in those cases, but she said TitleMax was simply "making the same argument under a different name." Judge Martin said TitleMax had pointed to no U.S. Supreme Court or federal appeals court decision that approved the use of equitable defenses as a total bar to an employee's FLSA claim when the employer knew the employee underreported his hours. She said a Fifth Circuit decision cited by TitleMax was different because in that case the employee who underreported her hours admitted that no supervisor told her to do that. The tactic employed by TitleMax is drawn from a defense recognized by the U.S. Supreme Court for race and gender discrimination cases, in which an employer sometimes can fight against the case by pointing out that it had a complaint process that the employee failed to use. Mr. Roberts, who represents the employee suing TitleMax, said he's seeing a similar defense raised in every case about alleged off-the-clock work, although it rarely is raised as a basis for summary judgment. He said that hostile work environment cases are different in that, for example, harassment is never within a supervisor's job description, whereas overseeing an employee's timekeeping is. Leslie Nordin -- lnordin@mmmlaw.com -- special counsel at Morris Manning, argued the appeal for TitleMax. A Morris Manning partner working with her on the case, R. Jason D'Cruz -- jdcruz@mmmlaw.com -- relayed through a staff member that TitleMax soon will file something else in the case. Ms. Schreter, the Littler Mendelson lawyer, said she would have liked the TitleMax case to have come out differently, but, based on the Eleventh Circuit opinion alone, it was not clear that TitleMax had employed all of the proactive measures she recommends for her clients. Besides training for supervisors and employees and a complaint process that gives multiple avenues for employees to raise their concerns, Ms. Schreter said she recommends having employees verify that they have reported all of the time that they've worked and that no one has instructed them to work off the clock. "I don't know anybody that really wants to litigate a wage-and-hour case," she said. The case is Bailey v. TitleMax of Georgia, No. 14-11747. TOWERS PERRIN: Sued by Meriter Health Over Illegal Pension Plan --------------------------------------------------------------- Molly Willms at Courthouse News Service reports that a hospital system is looking to recoup its losses after an $82 million settlement by going after the designers of its pension plan. Meriter Health Services sued more than a dozen attorneys, pension consultants and insurers it blames for an illegal pension plan that necessitated a class action settlement. According to the Jan. 6 lawsuit in Dane County Court, Towers Perrin Forster & Crosby, a Pennsylvania actuarial firm that has since undergone a merger, designed the faulty plan; Thomas Hoffner, an attorney whose firm eventually became Godfrey & Kahn, reviewed the plan as Meriter's benefits counsel from 1986 to 2011; and consultant Gordon Enderle reviewed the plan and designed its reconstruction in 2003. "The primary cause of the class action being filed against Meriter was the faulty plan design and substandard representations by Towers Perrin, Enderle and Hoffner," the complaint states. Meriter was formed in 1986 by a merger of two hospitals with several employee pension plans, according to the complaint. In the mid-1980s, defined benefit pension plans were being dropped in favor of cash balance and defined contribution plans, leaving Towers Perrin in "adverse financial conditions," according to the complaint. When the firm designed Meriter's plan, its own bottom line took precedence over customer benefit, according to the lawsuit. "Towers Perrin developed a cash balance design that looked like a popular [defined contribution] plan but operated as a [defined balance] plan to secure the continued need for pension and actuarial services," the complaint states. At the time, there were fewer than 30 cash balance plans in existence, none of which had been approved by the IRS, in contrast to the thousands of defined benefit and defined contribution plans, according to the complaint. "Towers Perrin did not think through the many risks of its novel plan design, many of which came to fruition when such plans were interpreted by the IRS and the courts," Meriter claims. Meriter says that Hoffner and his supervisor failed to tell it about his lack of experience reviewing pension plans of this size and type, an omission that Meriter says led it to improperly trust Hoffner. "Hoffner failed to meet the standard of practice, not only in his advice or lack of advice to Meriter, but also in failing to serve as a check on Towers Perrin's recommendations and advice regarding plan issues," the complaint states. "Hoffner relied on Towers Perrin when he should have been an independent advisor checking on their work product." As a result, Meriter says, it was left with one plan option from Towers Perrin with no competent legal counsel advising it of risks and benefits or that the plan was an "untested, novel design." By the time Enderle was hired in 2001, the plan costs were much higher than anticipated, necessitating a reconstruction. "Enderle realized that the plan was a mess when he came aboard and that one reason was Hoffner," the complaint states. Meriter claims that Enderle kept his opinions to himself, which it calls a breach of fiduciary duty. Once Enderle and Hoffner created an amended plan, they exchanged drafts over the years but failed to officially implement it, the company says. "Meriter was assured by Hoffner that not having a written, executed plan document that memorialized the January 1, 2003 design changes was not a big deal and not a pressing issue," the complaint states. In reality, Meriter says, this failure cost it $40 million to $60 million in damages. When the amended plan was completed in 2009, Hoffner asked the IRS to give it a favorable determination, to which it responded with several necessary plan changes, the complaint states. It adds: "Hoffner advised Meriter that it was impossible to comply with the IRS's request and that Meriter should withdraw its request for a determination from the IRS hoping to get a better reviewer next time; someone that better understood the law like [sic] he did." The class action lawsuit followed. Meriter also sued MMIC Insurance Co. of Minnesota and Federal Insurance Co. of New Jersey, claiming their refusal to pay defense costs and indemnify cost it at least $3 million. It seeks damages for professional negligence by the attorneys and actuaries and their firms, breach of fiduciary duty, negligent supervision and breach of insurance contract. The Plaintiff is represented by: J. Ric Gass, Esq. GASS WEBER MULLINS LLC 309 North Water Street Milwaukee, WI 53202 Telephone: (414) 223-3300 Facsimile: (414) 224-6116 TRACFONE WIRELESS: Settles FTC Data Throttling Claims for $40MM --------------------------------------------------------------- Ross Todd, writing for The Recorder, reports that TracFone Wireless Inc., the nation's largest provider of prepaid cellphone service, has agreed to pay $40 million to the Federal Trade Commission to settle charges that it reduced speeds for some customers with unlimited data plans. The FTC's complaint against TracFone, filed on Jan. 28 in U.S. District Court for the Northern District of California, comes about a year and a half after plaintiffs lawyers led by Lieff Cabraser Heimann & Bernstein filed a proposed class action against TracFone. Lieff Cabraser's Michael Sobol said the FTC settlement was reached in coordination with lawyers for the class and funds will be distributed through the class action claims process. "Here's an instance where the consumers spoke first about an important violation of law and I'm glad they were listened to," Sobol said. "This is a good example of citizens and government working together." TracFone, which does business under the brands Straight Talk, Net10, Simple Mobile and Telcel America, has offered unlimited talk, text and data plans since 2009 for about $45 per month. Despite advertising its data service as unlimited, TracFone suspended or slowed the speeds of customers who exceeded certain data limits, the FTC said. The use of so-called throttling, or curbing the speed of big data users, is common among mobile service providers. But according to the FTC, TracFone failed to disclose its limits until September 2013, and even then the company tucked away the information in fine print that was nowhere near its claims of offering unlimited data. "Because TracFone failed to disclose or adequately disclose that it would throttle or suspend its customers' mobile data service once they used a fixed amount of mobile data in a 30-day service period, its advertising of 'unlimited' mobile data service has been deceptive," the FTC's lawyers wrote. In addition to the $40 million, the FTC settlement prohibits TracFone from making deceptive claims in advertisements about its mobile data plans, and requires the company to clearly disclose any limits on data speed or quantity. A TracFone spokesman provided the following emailed statement: "We have worked with the FTC to reach an amicable settlement and we have no further comment at this time." The company has been represented in the FTC matter by counsel at Carlton Fields Jorden Burt and Wiley Rein. It's also represented by Carlton Fields and Sidley Austin in the class actions. The FTC has made similar claims against AT&T Mobility LLC in a lawsuit filed in October in the Northern District of California. Unlike TracFone, AT&T has so far fought the FTC's charges, insisting its status as a common carrier shields it from FTC enforcement. On Jan. 28, Sidley Austin's David Anderson -- dlanderson@sidley.com -- replaced Crowell & Moring's Douglas Sullivan -- dsullivan@crowell.com -- as AT&T's outside counsel alongside Washington, D.C.'s Kellogg, Huber, Hansen, Todd, Evans & Figel. TRIM RESTAURANT: Sued in N.Y. Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Anthony Fernandez, Ryan Diaz and Travis King, individually and on behalf of all others similarly situated v. Trim Restaurant LLC d/b/a Otto's Of New York, A Wine & Burger Bar, Nicolo Ottomanelli and Joseph Ottomanelli, Case No. 1:15-cv-00598 (S.D.N.Y., January 28, 2015), is brought against the Defendants for failure to pay overtime compensation in violation of the Fair Labor Standard Act. The Defendants own and operate a restaurant located at 1325 5n Avenue, New York, NY 10029. The Plaintiff is represented by: Brent Edward Pelton, Esq. Taylor Bell Graham, Esq. PELTON & ASSOCIATES, P.C. 111 Broadway, Suite 1503 New York, NY 10000 Telephone: (212) 385-9700 Facsimile: (212) 385-0800 E-mail: pelton@peltonlaw.com graham@peltonlaw.com TRUMP INT'L: Accused of Harassment and Retaliation in New York -------------------------------------------------------------- Bryan Lambert v. Trump International Hotel and Tower, Francis Calderon and Thomas Ahearn, Case No. 1:15-cv-00582-VSB (S.D.N.Y., January 26, 2015) is brought to remedy the Defendants' alleged intentional, unlawful discrimination (due to race, national origin, and disability), harassment, and retaliation against the Plaintiff, creating and allowing a hostile work environment, and retaliation, in violation the Civil Rights Act of 1964. Mr. Lambert is a 27-year-old African-American (black, male, and a native of the country of Jamaica). He is a resident of the county, city and state of New York. Trump International is a New York corporation. Trump International is a luxury hotel and apartment building located in the borough of Manhattan, City of New York, state of New York. Thomas Ahearn (a Caucasian) is a resident of New York. He was a security guard at Trump International with the title of House Officer, similar to that of Plaintiff. Francis Calderon (a Hispanic male) is a resident of New York, and was the Assistant Front Desk Manager/Night Manager at Trump International. The Plaintiff is represented by: Evan Edward Richards, Esq. Marshall Benjamin Bellovin, Esq. BALLON STOLL BADER & NADLER, P.C. 729 Seventh Avenue, 17th Floor New York, NY 10019 Telephone: (212) 575-7900 Facsimile: (212) 764-5060 E-mail: evanrichardsesq@gmail.com mbellovin@ballonstoll.com UNITIL CORPORATION: To Defend Against "Bellerman" Case ------------------------------------------------------ Unitil Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on January 28, 2015, for the fiscal year December 31, 2014, that the Company will continue to defend itself in the case, Bellerman et al v. Fitchburg Gas and Electric Light Company. In early 2009, a putative class action complaint was filed against Unitil's Massachusetts based utility, Fitchburg, in Massachusetts' Worcester Superior Court (the "Court"), (captioned Bellerman et al v. Fitchburg Gas and Electric Light Company). The Complaint seeks an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December 2008. The Complaint, as amended, includes M.G.L. ch. 93A claims for purported unfair and deceptive trade practices related to the December 2008 ice storm. Following several years of discovery, the plaintiffs in the complaint filed a motion with the Court to certify the case as a class action. On January 7, 2013, the Court issued its decision denying plaintiffs' motion to certify the case as a class action. The plaintiffs appealed this decision to the Massachusetts Supreme Judicial Court (the "SJC"), and the SJC has now upheld the lower Court's order. The Company does not have any information at this time as to whether the plaintiffs will proceed with their lawsuit on an individual basis in light of the decision by the SJC. The Town of Lunenburg has also filed a separate action in the Court arising out of the December 2008 ice storm. The Company continues to believe these suits are without merit and will continue to defend itself vigorously. US INVESTIGATION: Removes "DeLorenzo" Suit to S.D. California ------------------------------------------------------------- The class action lawsuit captioned DeLorenzo, et al. v. US Investigation Services, LLC, et al., Case No. 37-2014-00042453-CU- OE-NC, was removed from the Superior Court of the State of California for the County of San Diego to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:15-cv-00171-AJB-JMA to the proceeding. The lawsuit arose from alleged employment discrimination. The Plaintiffs are represented by: Kevin T. Barnes, Esq. LAW OFFICES OF KEVIN BARNES 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5618 Telephone: (213) 549-9100 Facsimile: (213) 549-0101 E-mail: barnes@kbarnes.com The Defendants are represented by: Rod M. Fliegel, Esq. LITTLER MENDELSON 650 California Street, 20th Floor San Francisco, CA 94108 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 E-mail: rfliegel@littler.com VITESSE WORLDWIDE: "Farrow" Suit Seeks to Recover Unpaid OT Wages ----------------------------------------------------------------- Keith Farrow, individually and on behalf of all other similarly situated individuals v. Vitesse Worldwide Concierge & Executive Protection, LLC and Shahin Abaspour, Case No. 3:15-cv-00117 (D. Conn., January 28, 2015), seeks to recover unpaid overtime wages, liquidated damages, penalty damages and attorney's fees brought pursuant to the Fair Labor Standards Act. Vitesse Worldwide Concierge & Executive Protection, LLC is a Connecticut Limited Liability Corporation that limousine services in Stamford, Connecticut, Phoenix, Arizona, Syracuse, New York, Virginia Beach, Virginia, Ft. Lauderdale, Florida, Miami, Florida, Tempe, Arizona, Scottsdale, Arizona, Mesa, Arizona, Chandler, Arizona and Sedona, Arizona. The Plaintiff is represented by: Anthony J. Pantuso III, Esq. HAYBER LAW FIRM LLC 221 Main Street, Suite 502 Hartford, CT 06106 Telephone: (860) 522-8888 E-mail: apantuso@hayberlawfirm.com VOSGES HAUT-CHOCOLAT: Recalls Festival of Lights Gift Sets ---------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Vosges Haut-Chocolat, of Chicago, announced a voluntary recall of about 250 Festival of Lights gift sets. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The plastic menorah can catch fire if candles are allowed to burn to the base of the menorah. This recall involves the Festival of Lights Chanukkah Gift Box set. The set includes a clear plastic menorah, 45 kosher candles and eight chocolates. The set comes in a white and purple box with two flaps on one side that open to reveal three rows of drawers: eight small drawers across the top for chocolates and two long drawers beneath for the menorah and candles. Vosges has received three reports of menorahs catching on fire. No injuries have been reported. Pictures of the Recalled Products available at: http://is.gd/IHLlIP The recalled products were manufactured in United States and sold at Vosges Haut-Chocolat boutiques in Chicago, Beverly Hills, Calif.; New York and Las Vegas and online at vosgeschocolate.com from November to December 2014 for about $160. Consumers should immediately stop using candles in the menorah and contact Vosges for a full refund. Vosges is contacting consumers directly. WAL-MART STORES: Class Suit Over Return Policies May Proceed ------------------------------------------------------------ Eric Heisig, writing for Cleveland Plain Dealer, reports that a federal judge in Cleveland has allowed a class-action suit to move forward in a case that calls Walmart's return policies into question. The federal lawsuit filed in May names Ohio residents Shaun Brandewie and John Newbrough as plaintiffs. It accuses the mega- retailer of not issuing full refunds for products purchased in one county and returned in another. Mr. Brandewie bought products at Walmarts and Sam's Club stores in Cuyahoga County but returned them in Summit County. Newbrough purchased items at the Walmart on Steelyard Drive in Cleveland and returned them in Portage County. Both plaintiffs did not receive the full refunds because the sales tax was higher in Cuyahoga County, and the stores in Summit and Portage counties used the local sales tax rates to calculate the refund, according to the lawsuit. Mr. Brandewie lost $0.84 after returning three products, while Mr. Newbrough lost $0.99. Through this practice, Messrs. Brandewie and Newbrough allege that Walmart owes more than $5 million in claims to people who have similar experiences -- a hurdle for a class-action lawsuit to be filed. Walmart denied the claims and asked U.S. District Judge James Gwin to dismiss the suit, saying the matter should be decided by the Ohio Tax Commissioner. On Jan. 16, Judge Gwin ruled that the commissioner should not hear the case, since the commissioner would only resolve claims where the taxes were sent to the state. In this case, the plaintiffs allege that Walmart kept the taxes and did not pay them to the state. "At this stage, it is not clear whether Wal-Mart paid Ohio the sales tax that it did not refund to Plaintiffs when they returned the merchandise," Judge Gwin wrote. "If Ohio has the not-refunded tax, Wal-Mart likely has a winning argument that Plaintiff must make a claim to the Ohio Tax Commissioner. In contrast, if Wal-Mart did not remit to Ohio the sales tax that was not returned to the Plaintiff, then . . . [case law] allows a direct breach of contract action." Judge Gwin noted in his opinion that "the amount lost was minimal for named plaintiffs." He added that "across the large number of returns that Walmart processes each day, the cumulative amount may be large." Spangenberg Shibley & Liber LLP, a Cleveland-based firm known for class-action litigation, is representing the plaintiffs. Dennis Lansdowne, a partner at the firm who is working on the case, said in an email that he is pleased the case is continuing. "We don't understand why Walmart can't do what other retailers do and give consumers what they are owed," Lansdowne said. Betsy Harden, a Walmart spokeswoman, said on Jan. 19 that the company respectfully disagrees with Judge Gwin's decision on what it said was a "procedural issue." "Walmart has properly remitted the sales tax we have collected to the state of Ohio, and we look forward to providing further information to the court," Ms. Harden said. WILLOW LAKES: Tenants File Class Action Over Mold ------------------------------------------------- Action News has learned of a federal lawsuit in the works, following the news agency's series of investigations into poor conditions at an Arlington apartment complex. According to Action News, "We first told you about sewage backups, holes in the roofs and other complaints from tenants at the Willow Lakes Apartments in December. Since them, some units were condemned by the City of Jacksonville. Neighbors say they're still not satisfied. "Living in these conditions is just unhealthy for me and my girlfriend," said John, a neighbor who didn't want us to show him on camera. But John did show us pictures of his bathroom at Willow Lakes, which is a HUD Housing Complex. He says it's infested with mold. "I've had asthma for years, but the symptoms seem to be worsening," said John. Down the street, the Oakwood Villa Apartments are teeming with children. Neighbors are also complaining about mold in their units. Action News tried to talk with management of both complexes, but our questions have not been answered. Tenants at the two complexes say they will join neighbors from four other Jacksonville apartments in a class action suit against management, The U.S. Department of Housing and Urban Development and the Department of Veterans Affairs. John, says he's already on board. "It's not talk, it's happening." Action News spoke to a lawyer with the Bernard Daley law firm out of Tallahassee who will represent about 50 Jacksonville tenants in the suit. Action News told the lawsuit will be filed in about a month. YS BEVERAGE: Doesn't Properly Pay Employees, "Merino" Suit Says --------------------------------------------------------------- Richard Merino, Dany Cux Baten, Elias Antonio Hernandez, Jorge Orea Paez, Bernardo Vasquez, Primitivo Aguilar, Jesus Mantilla and Paolo Morales, individually and on behalf of all others similarly situated v. YS Beverage Corp., Beverage Plus America Corp., and Grand Beverage Corp., Case No. 1:15-cv-00603 (S.D.N.Y., January 28, 2015), is brought against the Defendants for failure to pay minimum wage, overtime, and spread of hours pay in violation of the Fair Labor Standard Act. The Defendants own and operate a trucking company that delivers beverages to retail clients in New York. The Plaintiff is represented by: Anne L. Clark, Esq. VLADECK, WALDMAN, ELIAS & ENGELHARD, P.C. 1501 Broadway-Suite 800 New York, NY 10036 Telephone: (212) 403-7300 Facsimile: (212) 221-3172 E-mail: aclark@vladeck.com * Class Action v. Banks Over Swiss Franc Loans Likely ----------------------------------------------------- Paulina Pacula reports that new Polish Facebook group for class action against banks giving mortgages in Swiss francs got more than 2,500 likes. "People are feeling cheated by huge financial institutions which were the first to earn profits from credits in Swiss francs. If somebody is giving loans which are so vulnerable to accidental and external factors, it is speculation which is forbidden by law," said Witold Modzelewski, an economist, in an interview. "That leads us to class actions against banks which we will see coming soon," he added. * NERA Releases Annual Securities Class Action Trends Report ------------------------------------------------------------ Securities class action settlement amounts plummeted in 2014, according to NERA Economic Consulting's annual report, Recent Trends in Securities Class Action Litigation: 2014 Full-Year Review, released on Jan. 20. Settlement amounts declined 38 to 61 percent in 2014, based on analysis of the cases included in NERA's calculations. The median settlement amount in 2014 was $6.5 million, the lowest in 10 years. The decrease in settlement amounts was more marked after the much- anticipated Supreme Court decision in Halliburton v Erica P. John Fund, compared to the first part of 2014. On the other hand, filings of new securities class actions of the type addressed by the Court increased 14 percent after the decision was issued, compared to the time in which the decision was pending. More generally, 168 securities class actions involving alleged violations of Rule 10b-5, Section 11, or Section 12 were filed in 2014, an 11 percent increase over 2013 and a 30 percent increase over 2010. Now, a Section 11 case is pending before the Supreme Court: Omnicare v Laborers District Council. (Section 11 cases are frequently used by the plaintiff bar to target IPOs.) The Supreme Court's decision, expected in the first half of 2015, could tighten or loosen the pleading standards for these types of cases. NERA's report shows that in recent years 73 percent of Section 11 cases have been brought in Circuits that currently require the tighter standard. "In 2014, securities class actions settled for less compared to recent experience," said Dr. Renzo Comolli, NERA Senior Consultant and co-author of the report. "But now the Supreme Court in Omnicare is pondering whether to tighten or loosen pleading standards for cases that often center on IPOs. The Supreme Court decision, expected to come on the heels of the largest IPO wave since the dot-com era, could make for an interesting 2015." NERA Securities Class Action Trends Report Series NERA has been analyzing trends in securities class actions for more than 20 years. This year-end study, Recent Trends in Securities Class Action Litigation: 2014 Full-Year Review, is co-authored by NERA Senior Consultants Dr. Renzo Comolli and Svetlana Starykh. In addition to the trends discussed above, the 2014 edition offers an in-depth review of: number of filings by circuit, and by sector; new measures of "time to resolve;" analysis of motions for class certification and post-Halliburton II district court decisions on such motions; dismissal rates; attorneys' fees; and other characteristics of securities class actions. For more details and to read the report, visit: http://is.gd/pQqCaY About NERA NERA Economic Consulting -- http://www.nera.com-- is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. Asbestos Litigation ASBESTOS UPDATE: Waltham Forest Council Admits Fibro Failings ------------------------------------------------------------- BBC News reported that an east London council has admitted contravening health and safety guidelines by failing to control employees' exposure to asbestos in their town hall basement. Waltham Forest council pleaded guilty to charges under the Health and Safety at Work Act and the Control of Asbestos regulations. The council said it "should have done more in the past" to manage safety. Unison has called on the council's chief executive to resign. The case was brought by the Health and Safety Executive and related to two incidents in November 2006 and two more in January 2009. The hearing at Westminster Magistrates' Court took place and was transferred to Southwark Crown Court for sentencing on February 2. 'Scant regard' The union said the issue was discovered when a local resident was refused access to requested files because of the risk of exposure to asbestos dust. Unison branch Secretary Dave Knight said the council failed to protect people from potential exposure to "deadly asbestos." He said: "We are appalled that our employer should show such scant regard for the health and safety of people who work in and use the Town Hall." "The case demonstrates a lack of concern for employees and contractors and anyone else who had cause to visit the Town Hall basement, and it is for this reason that we call upon the chief executive of Waltham Forest Council to tender his resignation." A spokesperson for Waltham Forest council said: "This issue dates back to 2002, and we completely accept that the council should have done more in the past to manage the health and safety of our buildings. We accepted responsibility at court. "In 2012 a fresh asbestos survey indicated the problem, and we have been working with the Health and Safety Executive to make sure that nothing like this happens in the future." Asbestos remedial works were carried out at the town hall basement in 2012 and other buildings have been monitored, the council said. ASBESTOS UPDATE: Law Firms Accused of Fraud in Fibro Litigation --------------------------------------------------------------- Tom Hals, writing for The Associated Press, reported that U.S. personal injury lawyers allegedly concealed evidence and induced clients to commit perjury to drive up asbestos-related settlements and garner bigger fees, according to lawsuits unsealed in the bankruptcy of a gasket maker. The unsealed racketeering complaints alleged that four law firms sued Garlock Sealing Technologies, which made asbestos-lined gaskets, while hiding evidence that their clients were exposed to asbestos products made by other companies. The evidence was allegedly hidden because the other companies were bankrupt, making Garlock a much more attractive target for an asbestos lawsuit, according to the complaints. Garlock, a unit of EnPro Industries, filed for bankruptcy in 2010 in Charlotte, North Carolina, in the face of the mounting cost of asbestos lawsuits. The unsealed complaints cite many examples of alleged fraud, including the Shein Law Center's handling of a lawsuit by Vincent Golini, who was diagnosed with deadly mesothelioma in 2009. Golini allegedly told Philadelphia-based Shein he was exposed to 14 asbestos products made by bankrupt companies including Owens Corning and Armstrong World Industries. But when Golini sued Garlock he denied exposure to any products made by a bankrupt manufacturer, according to the complaint. After Garlock settled with Golini, Shein had Golini file claims with the asbestos trusts that were set up by Owens Corning and other bankrupt makers of asbestos products. Those trusts often pay only a small fraction of a claim. Shein's lawyer, Daniel Brier of Myers Brier & Kelly, said the racketeering lawsuit is completely without merit and Shein represented its clients "ethically and properly." Counsel may be reached at: Brier Daniel, Esq. MYERS BRIER & KELLY 425 Spruce Street Scranton, PA 18503 Tel: (570) 309-6024 E-mail: dbrier@mbklaw.com Garlock's Chapter 11 case has drawn national attention due to the company's allegations that personal injury lawyers fraudulently inflated judgments and settlements. The racketeering lawsuits were originally filed in early 2014. They were ordered unsealed last summer but only became available to the public. The allegations in the unsealed documents appeared to have already been discussed publicly in an opinion in 2014 by Judge George Hodges. That opinion set Garlock's liability for asbestos at $125 million and said the company's past settlements were tainted by fraud. The others were Belluck & Fox of New York; and Waters Kraus & Paul and Simon Greenstone Panatier Bartlett of Dallas. Mark Iola, a partner at Iola Galerston, also in Dallas, was also sued. Attorneys for the law firms said Garlock was trying to relitigate settled cases and blame others for the consequences of its own conduct. ASBESTOS UPDATE: Controversy Surrounds Respirator Used v. Fibro --------------------------------------------------------------- Gil Shochat and Francesca Fionda, writing for Global News, reported that Michael Leslie worked in a moulded fibreglass factory in the late 1960s and 70s. The 8710, a disposable respirator made by 3M, was approved for use against deadly dusts, including silica, coal and asbestos. 3M advertised it would help protect workers from occupational hazards like Black Lung and Asbestosis. The mask would go on to be a big seller in the disposable respirator market and eventually sell millions. Leslie says the 8710 was given out by his employer at his Portland Oregon factory. "We thought that was going to be better than anything," Leslie says. Leslie says he wore the mask in 1972 for about a year around dusts that included asbestos. He says it leaked. "If you wore a mask very long it was on inside and outside. You could see it, just little teeny particles . . . The outside a lot." But, over a thousand miles south of Leslie's factory, respirator experts had concerns. "We would discuss how badly they leaked . . . we did not want to allow the 8710 or any other single use respirator for that matter to be available at the Laboratory," says Darell Bevis, a respirator expert who worked at the Los Alamos Scientific Laboratory in New Mexico under his boss Ed Hyatt. The lab tested masks used for protection against dangerous and sometimes radioactive material. In 1970, Hyatt told 3M their respirators "should have at least two sizes, our present one and a smaller one, if we hope to fit the majority of workers." Hyatt wanted to make sure all workers had respirators that safely fit them. For him the benefits of more mask sizes were obvious. In 1976, Hyatt also wrote a report to the government saying more testing would need to be done, "before it is demonstrated that only one size of respirator is satisfactory." But the 8710 passed all the tests and would be approved by the U.S. government's National Institute for Occupational Safety and Health (NIOSH) in 1972. Darell Bevis and other observers have criticized the testing requirements in place at the time. Darell Bevis has also worked as an expert witness on behalf of plaintiffs suing 3M. "Our approval standards are very bad and all regulations are absolute minimum requirements." 16x9 asked 3M for an on camera interview but the company declined, and instead provided a written statement. It pointed to "extensive" government data that says masks, like the 8710, fit and work well. Since its approval, studies have shown the "respirator effectively protects workers from many airborne contaminants, including asbestos." One U.S. government agency that reviewed the data "rejected assertions that 3M 8710 respirators, and similarly designed respirators made by others, do not filter effectively or cannot be made to fit workers." 3M has also said its tests went well beyond what the government required and that research shows the 8710 provided a good fit if users followed instructions. In fact, U.S. government regulators have long said the 8710 provides better protection than experts, like Bevis, argue. But asbestos is very dangerous -- and just a small amount of exposure can be deadly. By 1980, NIOSH did know how deadly asbestos really was and was "deeply concerned" about the use of some respirators against carcinogenic substances including asbestos. "Asbestos irritates the cells in some way we don't know exactly how . . . [it] gets into the DNA . . . the nucleus which controls cell growth and they lose control over the growth of the cells . . . that is the definition of cancer," says Dr. David Egilman, an expert in asbestos-related disease. NIOSH changed its earlier position now telling 3M, "It is not our position that single-use dust respirators will provide adequate protection against the cancer causing potential of asbestos." But NIOSH said it couldn't void the approval of the respirator against asbestos without "following appropriate administrative procedures" so, instead, called for more study and data from the manufacturers. "What 3M was told was, this is dangerous to use this mask with people who are exposed to asbestos," Egilman, who has testified on behalf of plaintiffs against 3M and reviewed some of 3M's internal documents, says. Egilman has been criticized in the past for being a public health crusader and courts have not accepted his testimony in every case he has testified in. But in 1986, the U.S. government did issue more stringent regulations that effectively put an end to the use of disposable respirators, like the 8710, for use against asbestos. "Ultimately, the single use respirator was going to leak far greater than they wanted any respirator used for protection against carcinogens," says Darell Bevis. But, while in the U.S laws were getting stricter and 3M was no longer selling the mask for asbestos, one 3M official admitted that in 1999 the company was still selling the 8710 in Canada as effective against asbestos -- almost fifteen years after it stopped doing so in the U.S. The 8710 is no longer sold in the U.S. and Canada. But, despite that, the 8710 is still sold for use against asbestos in India "for use against mechanically generated particulates including silica and asbestos." "From a health and safety perspective they shouldn't be doing that. From a moral perspective they shouldn't be doing that. From an ethical perspective they shouldn't be doing that," Dr. David Egilman says. 3M told 16x9 each country establishes its "own safety and health regulations" and the respirators provide effective protection for asbestos and meet "the highest regulatory requirements of each nation where they are sold." 3M also said that the respirators sold today are "not necessarily identical to the 8710 respirators that were sold previously in the United States." For Michael Leslie, all the back and forth that happened in the 1980s doesn't matter much. "When I think back on it I think, 'geez I wish I. . . I wish I had had something else'," Leslie says about the 8710 respirators he says he wore. He has been diagnosed with mesothelioma, one of the deadliest forms of cancer. A cancer he thinks could have been prevented with a better mask. Leslie sued several companies, including 3M, saying the mask didn't protect him. In court documents, 3M said that Leslie's employer "did not comply with state or federal rules for protecting employees." 3M also argued that Leslie's employer was responsible for workplace training and safety, and making sure masks fit workers and that there was no evidence that his employer measured the level of asbestos in the air, important for choosing the right respirator. In court documents, 3M also denied that its mask could be blamed saying that Mr. Leslie was exposed to asbestos for over a decade without any respirator and he may not have worn the 8710 at all while working with asbestos in the plant. Nothing was proven in court because the case was settled. 3M told us that it has prevailed at trial in every case. Courts, 3M says, have rejected arguments that the 8710 did not fit or filter effectively. Workers "wearing a respirator and later becoming ill does not necessarily prove the cause of illness." Instead, 3M says, workers may "become ill because they did not consistently wear respiratory protection when needed. Employers can also contribute to worker illness to the extent they fail to monitor the air and select the appropriate respiratory protection for the contaminant in the air." 3M also says that employers may not have tested regularly to ensure that respirators fit on people's faces or "train [employees] in proper respirator usage." One 3M official has also testified that the 8710 itself came in one size but the company did sell "other sizes -- they just weren't called 8710." 3M has never lost a case at trial or admitted wrongdoing. But according to 3M financial reports, the company has paid out over $150 million in the last four years mostly on "respirator mask" litigation "fees and settlements". "They settle cases where they think they're going to lose," says Dr. Egilman. "I've been an expert in cases, where in my view their respirators failed to protect people and people got sick." ASBESTOS UPDATE: Families Seek Damages Over Fibro at Cal. Schools ----------------------------------------------------------------- Nicole Knight Shine, writing for Huntington Beach Independent, reported that damages are being sought by the families of some students who attended three elementary schools in the Ocean View School District, in California, that are temporarily shut because of asbestos concerns that arose late last year. A claim filed with Ocean View on Dec. 19 alleges that the district, its elected leaders, various officials and contractors failed to protect students from "hazardous and unsafe" conditions at Hope View, Lake View and Oak View elementary schools between July and October. A claim is the first step in a process that could lead to a lawsuit. The three Huntington Beach schools were closed indefinitely in October after asbestos was discovered during a modernization project at 11 campuses that began in July. The resulting asbestos cleanup process displaced more than 1,600 students, who are being bused to eight other campuses in four school districts. It also caused the district to spend unplanned millions for cleanup and related costs. The claim alleges that students at the three schools inhaled "dangerous quantities of toxic asbestos fibers" due to negligent actions of the district and its contractors. Exposure to asbestos, the claim says, caused emotional distress for students, whose names the school district redacted from the filing. It was unclear how many students the claim represents. The filing seeks an unspecified amount for past and future medical costs. Attorneys for the school district and the families could not immediately be reached for comment. Asbestos that hasn't been disturbed isn't harmful to people, but it can become a hazard when the dust becomes airborne. Inhaling high levels of asbestos over a long period can cause cancer and other lung disease, experts say. In October, asbestos was not detected in independent surface tests in classrooms at Lake View Elementary, according to Mohsen Nazemi, deputy executive officer for engineering and compliance for the South Coast Air Quality Management District. According to district documents, previous test results at Lake View showed airborne asbestos in two classrooms higher than levels set in the federal Asbestos Hazard Emergency Response Act, which regulates how much asbestos can be present in public buildings like schools. At Hope View, a sample taken in one classroom contained a single asbestos fiber. No air samples taken at Oak View were above the legal threshold, according to district documents. When the schools were built decades ago, asbestos was used as fireproofing on metal beams above the ceilings. Over time, asbestos dust began to fall from the beams and settle on classroom ceiling tiles, district records show. Tests at eight other schools showed no significant level of asbestos in the air, the district said. In August, the AQMD cited a contractor working at Mesa View Middle School in Huntington Beach, saying the contractor removed roofing tiles that contained asbestos without using proper safeguards. ASBESTOS UPDATE: More Fibro Raises Cost of Port Angeles Landfill ---------------------------------------------------------------- James Casey, writing for Peninsula Daily News, reported that the city of Port Angeles, Washington, will ante up an additional $1 million to dispose of asbestos it didn't expect to find as it stabilized its closed landfill. The change order in the amount of $1,034,524 will bring the project's cost to at least $14.4 million. The asbestos was part of the 400,000 cubic yards of trash the city is moving away from a bluff above the Strait of Juan de Fuca in the wake of the discovery that the material was threatening to tumble into the Strait. The landfill at the end of West 18th Street was closed in 2007, and the area became the city's transfer station. Four years later, it was found that the erosion in the bluff above the Strait had exposed garbage that could eventually fall into the water. Work began last summer to move the refuse about a quarter-mile south. The whole project is expected to be finished next fall. Most of the asbestos work already has been performed by contractor Magnus Pacific Corp. of Everett, which trucked away more than three times the asbestos it anticipated -- some 49 tons -- under a contract that called for it to dispose of about 15 tons. Asbestos that engineers thought could be dug up with hand tools and put into bags wound up being handled with excavators that filled dump trucks, according to Craig Fulton, city public works and utilities director. "The contractor has completed the work, so they have expended a considerable amount of money to remove the asbestos," Fulton said. The work, performed with the help of the state Department of Labor and Industries, required workers to wear protective clothing and hose down vehicles with water cannons. "There was a clear impact to their productivity when they uncovered the asbestos," Fulton told City Council members at their meeting. The contractor and the city remain "very far apart" -- to the tune of $2,075,508 -- he added, over the added cost of the asbestos removal. Magnus Pacific wants an adjustment of $3,110,032. "The negotiations are still ongoing. We may have to go into mediation," Fulton said. The $1 million-plus the council approved, however, will allow Magnus Pacific to pay its workers. Meanwhile, the city may bill the state for the work, he said. The initial payment, at least, will come from $1.7 million that remains in contingency funds for the project, Fulton said, and the city may be able to get more money from a state trust fund. "It's ironic that we can't see what's underground," said Councilman Lee Whetham. "But that's part of construction, and that has to be anticipated. We haven't even hit bottom yet." Councilman Dan Gase asked if all the asbestos had been removed from the landfill site. Fulton said a 3-D image of the area shows only about 2,000 cubic yards remain, compared with the 7,283 cubic yards Magnus Pacific already has removed. The remainder should be removed in May. "It's in a smaller area," Fulton said. "We can isolate that and continue with the waste removal in the rest of the area." The entire landfill stabilization will relocate approximately 400,000 cubic yards of garbage. The Labor and Industries Department, Fulton said, was innovative in its bulk-handling approach to the asbestos problem. "That saved millions of dollars," he said. Still, he added, the total bill for moving the refuse and stabilizing the area could top $21 million. ASBESTOS UPDATE: New Jersey Jury Renders $7.5MM Fibro Verdict ------------------------------------------------------------- Mary Pat Gallagher, writing for New Jersey Law Journal, reported that in the first asbestos case tried to verdict by New Jersey Judge Ana Viscomi, who took over the nearly 400-case asbestos docket last year, a jury has awarded $6.5 million plus $1 million in punitive damages to a man who claimed exposure to asbestos while installing boilers and furnaces caused his mesothelioma. The Middlesex County jury in Condon v. Advanced Thermal Hydronics awarded the punitive damages Jan. 14, two days after handing down their initial verdict that found 11 defendants liable for $6.5 million in compensatory damages. Those defendants included Pecora Corp., a maker of furnace cement and other sealants. The company was the sole defendant hit with the punitive damages. Plaintiff William Condon of Lake Hopatcong, N.J., alleged he was exposed to asbestos over an 11-year period stretching from 1973 to 1984, while he was employed by Fritz Heating and Cooling of Whippany, N.J., according to court documents and a press release about the verdict from Levy Konigsberg, the New York law firm that represents Condon and his wife. Condon claimed asbestos exposure not just from the cement but also from other boiler-related products, such as pipes, rope and gaskets. His lawsuit, filed in 2013, named about 90 defendants, including Pecora and several companies that allegedly manufactured the boilers he installed, such as American Standard, Burnham LLC, Peerless, Utica and Weil-McLain. Condon claimed that before installing a boiler he would read the manual and each one said to use furnace cement during the process. Also named as defendants were another sealant company, DAP Products, supply houses United Supply and Wallwork Brothers, and pipe maker CertainTeed Corp. In addition to his on-the-job asbestos exposure, Condon claimed in his suit that he encountered the toxic mineral while working on his personal automobiles. As a result, Condon also named companies that made asbestos-containing automobile parts, including BorgWarner Corp., a manufacturer of clutches used with manual transmissions, and Honeywell Corp., as successor to Bendix Corp., which produced brakes with asbestos in the brake pads. Jury selection began in November 2014, with opening statements starting Dec. 1. Most of the defendants settled before or during trial on confidential terms. By the time the jurors reached their $6.5 million compensatory damages verdict on Jan. 12, only three defendants remained in the case: Pecora, CertainTeed and Wallwork. Condon was awarded $500,000 for past pain and suffering and another $4.5 million for future pain and suffering. In addition, Condon's wife was awarded a total of $1.5 million for loss of services: $500,000 for past loss and $1 million for future loss. The jury found no liability for CertainTeed or Wallwork and only 2 percent against Pecora. The jury attributed the other 98 percent of liability to eight defendants no longer in the case, with the largest portion, 26 percent -- or $1.69 million -- against United Supply. Three other defendants -- Honeywell, Thermco and Weil-McLain -- were each assessed 15 percent liability, or $975,00, and five others -- American Standard, BorgWarner, Burnham, DAP and Peerless -- each had 5 percent, or $325,000, while one other defendant had the same 2 percent share -- $130,000 -- as Pecora. Two days later, the jury found $1 million in punitive damages against Pecora. Condon's suit sought the exemplary damages against Pecora on the ground that the Harleysville, Pa.-based company sold cement containing asbestos until 1986, knowing of the hazards but not warning about them, according to court documents. The suit alleged Pecora was aware of the danger before Condon ever used its cement because it had been warned by its own supplier, Carey Canadian, which supplied raw asbestos fibers to Pecora from at least 1964 to 1981. Carey Canadian provided the asbestos in bags that, as early as 1971, bore a printed warning advising that "'adequate protective devices'" should be used "'because it has been alleged that inhalation of this material over long periods may be harmful,'" according to court documents. Nevertheless, Condon's suit alleged Pecora took no action to make the product safer or let users know so they could take precautions. In proving the punitive damages claim, Condon presented evidence that during the time when Condon was working with Pecora's asbestos furnace cement, the company's president, Anthony Tysenn, was diagnosed with mesothelioma and filed his own asbestos suit, according to court documents. Despite that, Condon alleged, Pecora continued to make asbestos- containing products for another five years and stopped only when its insurers would no longer cover the risk, according to the Levy Konigsberg press release. Pecora will not be on the hook for the entire $1 million in punitives, however. Instead, it will only be responsible to pay $650,000, because of a state law that limits punitive damages to five times the amount of compensatory damages. Thus, the company must only pay a total of $780,000. Pecora's lawyer, Robert Baum of McGivney & Kluger in Florham Park, N.J., said, "We are evaluating our options" and "no determination has been made one way or another" regarding an appeal or other possible effort to set aside the verdict, but otherwise declined to comment. The Condons were represented by Moshe Maimon and Joseph Mandia of Levy Konigsberg. Wallwork's lawyer, Alan Dunst of Hoagland Longo Moran Dunst & Doukas in New Brunswick, N.J., did not return a call and CertainTeed's, Richard Picini of Caruso Smith & Picini in Fairfield, N.J., declined to comment. Lawyers for other defendants either declined to comment or did not return a call about the case. The highest reported asbestos award in New Jersey was $30.3 million in 2008 to the family of advertising executive Mark Buttitta, who died of mesothelioma in 2002. It was upheld on appeal in 2010. ASBESTOS UPDATE: Ford Fights Fibro Row as Mechanic Seeks Recusal ---------------------------------------------------------------- Lisa Ryan, writing for Law360, reported that Ford Motor Co. urged the Pennsylvania Supreme Court to stop its longstanding practice of consolidating unrelated asbestos suits for trial in Philadelphia courts, just days after plaintiffs in the underlying asbestos row asked the justices to recuse themselves because Ford's attorney previously served as special counsel to the court. The automaker said in its brief that the court has long maintained a "unique-in-the-Commonwealth" practice of automatically consolidating unrelated asbestos cases for trial as long as all of the plaintiffs suffered from the same disease. Ford said that the practice "unjustly infringes" on the state's high court's constitutional power to craft new procedures to address docket- management challenges in the unrelated suits. In the underlying row, which resulted in a $1 million jury award for a dealership worker who claimed he developed mesothelioma after being exposed to asbestos fibers in brake pads, Ford said it was improperly consolidated with two other suits that lacked common claims, common defenses and common facts. The company also said it was prejudiced in the suit because of expert testimony from the other, unrelated suits. "The Philadelphia Court of Common Pleas changed some details of its consolidation practice after this case went to trial, but even that new practice remains unfair and contrary to law," Ford said. "If this court does not grant judgment as a matter of law, it should grant a new trial and remind the trial courts that consolidation -- even in asbestos cases -- can come only after a reasoned exercise of discretion on a case-by-case basis." Ford's brief was filed just one week after plaintiffs Richard and Joyce Rost asked all of the justices on the state's high court to recuse themselves from the suit. The plaintiffs said that Ford's attorney Rob Byer of Duane Morris LLP, whose name appears on Ford's June petition for allowance of appeal, was actually appointed as "special counsel to the court" on Oct. 20 in a matter involving Justice Seamus P. McCaffery. The news of Byer's involvement was reported by The Philadelphia Inquirer, according to the plaintiffs. The newspaper said that Byer served as liaison to the conduct board as Justice McCaffery pursued retirement, the plaintiffs said. "Given the publicity for both the McCaffery matter and this case, and that Mr. Byer's petition, on behalf of Ford, was pending and decided by this court at the time he was employed by the court as its special counsel, it is regrettable, yet possible, that this court's impartiality might be perceived to be in doubt," the plaintiffs said in their application for recusal. In November, the state's high court agreed to consider the fairness of Philadelphia County's practice of consolidating unrelated asbestos cases for discovery and trial as part of Ford's appeal over causation in the Rost asbestos suit. The Pennsylvania Superior Court in May upheld the $1 million jury award handed to Rost after a jury found that Ford and three other companies should be held liable for former Ford mechanic's mesothelioma that he developed while working at a dealership for several months in the 1950s. The Superior Court found that the record in Betz v. Pneumo Abex LLC, the Supreme Court that banned "any exposure" causation in the state, differed from the factual and procedural record they'd been presented with by Rost's attorneys and upheld the $1 million verdict awarded to Rost and his wife. The panel found that a subsequent Supreme Court decision, Gregg v. V-J Auto Parts Co., was more dispositive to the Rost case than Betz. In Gregg, the justices held that a plaintiff could survive summary judgment by presenting evidence of frequent and regular exposure to asbestos at a close proximity. Representatives for the parties didn't respond to requests for comment. The plaintiffs are represented by Robert Paul of Paul Reich & Myers PC, Christian Hartley of Hartley Law LLC and Clayton Thompson of Maune Raichle Hartley French & Mudd. Ford is represented by: Robert Byer, Esq. Sharon Caffrey, Esq. DUANE MORRIS LLP 600 Grant Street, Suite 5010 Pittsburgh, PA 15219-2802 Tel: 412 497 1083 Fax: 412 202 2787 E-mail: rlbyer@duanemorris.com SLCaffrey@duanemorris.com The case is Richard Rost et al. v. Ford Motor Co., case number 56 EAP 2014, before the Pennsylvania Supreme Court. ASBESTOS UPDATE: Salvage Principals Face Prison in Fibro Case ------------------------------------------------------------- WBIR.com reported that five people who managed or owned a salvage firm that removed salvageable metals from a defunct plant in Hamblen County, Tennessee, face prison terms and $10 million in restitution for environmental crimes and negligence that likely exposed unwitting workers to asbestos, according to the Environmental Protection Agency. The five had earlier pleaded guilty in U.S. District Court to a felony count each of conspiring to violate federal laws that regulate disposal of asbestos, which can cause lung disease and increase susceptibility to some kinds of cancer. According to the EPA, the defendants over a series of years were liable for the improper bagging and disposal of asbestos from the old Liberty Fibers plant, and they failed to provide workers the proper protection equipment. The government also alleged plant operators tried to hide the fact that improper disposal of asbestos was occurring. U.S. District Judge Ronnie Greer imposed sentence in Greeneville after a lengthy hearing. The government presented testimony that asbestos exposure likely posed a serious if not fatal health threat to salvage workers on site. Assistant Attorney General John C. Cruden of the Justice Department's Environment and Natural Resources Division alleged that the five "took unacceptable and illegal risks with workers' lives and the community's health." The five defendants were identified as Mark Sawyer, 55, of Morristown, a former A&E Salvage manager sentenced to a maximum five-year term; Newell L. Smith, 59, of Miami, Fla., a former A&E Salvage manager who was sentenced to a little more than three years in prison; A&E Salvage Manager Eric Gruenberg, 50, of Lebanon, Tenn., who got a 28-month sentence; and Armida DiSanti, 56, and Milto DiSanti, 54, also of Miami, who received six-month prison sentences to be followed by six-month sentences of home confinement. Greer ordered the defendants to pay the restitution to reimburse the government's Superfund program, which has been used to clean up the site. A&E bought the bankrupt plant for its salvageable metal. A&E Salvage began work at the old Liberty Fibers site in 2006. In March 2009, the EPA ordered Sawyer and other A&E Salvage principals to immediately stop any site removal that impacted asbestos and to clean up and properly dispose of asbestos at the plant. The government alleged at the time that the firm had violated federal asbestos disposal laws as well as a consent agreement that allowed them to work on site. The government warned then that the company was imperiling on-site workers. A&E was supposed to inspect the property and "develop and carry out plans for removal and proper disposal of asbestos waste materials that had been improperly disposed around the facility," according to the EPA. EPA agents and the Tennessee Department of Environmental Conservation investigated the case, which was prosecuted by Assistant U.S. Attorney Matthew Morris and Todd W. Gleason of the environmental crimes section of the Department of Justice. ASBESTOS UPDATE: James Hardie to Pay Victims in Installments ------------------------------------------------------------ Lorraine Kember, Asbestos.com, reported that asbestos victims who filed claims against James Hardie Industries, an Australian building materials company, may never live to see their legal compensation if a court approves the manufacturer's plan to pay claimants in installments, and not the traditional lump-sum payments. The reason for the installment plan: Hardie's Asbestos Injuries Compensation Fund is headed toward a $184 million cash shortfall in 2017 because of a spike in mesothelioma claims. If the Supreme Court of New South Wales (NSW) grants approval, the installment plan will take effect July 1. Advocates for those affected by mesothelioma are outraged by the company's proposal because the average life expectancy for people diagnosed with the asbestos-related disease is less than two years. Those patients need the lump sum of their compensation as quickly as possible to pay for expensive treatments, lost wages, expenses not covered by insurance and other costs. "Asbestos victims don't die in installments," Asbestos Diseases Foundation of Australia President Barry Robson wrote in a press release. "They don't lose the ability to work or care for themselves in installments, yet James Hardie wants to see them compensated in that way." Robson voiced his ire about the company's negligence, stating the manufacturer "spent decades knowingly selling these deadly [asbestos] products" still found in millions of homes and businesses across Australia. History of James Hardie in Australia Australia's history with the manufacturer began in 1888, when Scottish-born James Hardie immigrated to Melbourne, establishing a leather tanning business. While visiting London in 1903, Hardie learned of a new type of French roofing and lining slate called "fibro-ciment" that contained cement and asbestos. Hardie started importing the product to Australia and renamed it Fibrolite. It became a publicly-owned company in 1951 under the name James Hardie Industries Ltd. In the following years, the company built a diverse portfolio of building and industrial products including a wide range of products containing asbestos. The company rose to become Australia's largest manufacturer of the deadly mineral. During the 20th century, the company owned asbestos mines in Australia, Canada and Zimbabwe. It distributed and manufactured a wide range of products containing asbestos to construction companies, textile mills and many other production and repair facilities around the country. However, Hardie executives knew the health risks linked to asbestos mines and exposure to the airborne particles, but neglected to warn their workers. Asbestos from the company's products and mines contaminated food, playgrounds and parks. The company is partially responsible for Australia's mesothelioma crisis. Australia has the second-highest rate of mesothelioma deaths in the world. Cancer experts report that since the early 1980s, more than 10,000 people have died from the disease, and an additional 25,000 people are expected to die from it over the next four decades. In 2006, the company formed the Asbestos Injuries Compensation Fund (AICF) to compensate asbestos victims damaged by the company's products. As part of the legal agreement with NSW, Hardie pays a set amount -- 35 percent of its operating cash flow -- to the AICF annually. Problems with Hardie's Asbestos Compensation Fund Hardie records show the AICF has settled almost 4,000 claims and compensated asbestos victims with more than $800 million. AICF officials said they face $1.87 billion in payouts over the next 30 years because mesothelioma claims grew by 20 percent in 2013. Company officials blamed the $184 million shortfall on the increase of lawsuits. But some are wondering why there's a shortfall when Hardie paid its investors $556 million in dividends in 2013 and 2014. According to Hardie's 2014 annual report, the company paid CEO Louis Gries a total compensation of $11.6 million -- a nearly 47 percent increase from the $7.9 million total compensation he received in 2013. "The bottom line is if James Hardie can afford $500 million to give to shareholders, it can find the money to give to dying victims of their product," independent senator for South Australia Nicholas Xenophon told The Sydney Morning Herald. "If James Hardie doesn't come to the table, they deserve the scorn of the Australian public." ASBESTOS UPDATE: Girl Exposed to Fibro After Entering Hotel ----------------------------------------------------------- Plymouth Herald reported that a 16-year-old girl has exposed herself to hazardous asbestos dust after entering part of an abandoned hotel in Plymouth, England, and getting stuck. Firefighters have issued a warning to avoid disused buildings after being sent to rescue the young Plymouth woman. The teenager has been advised to dispose of all the clothes she was wearing at the time with the assistance of a licensed hazardous waste handler, as well as being given advice about decontamination showers and medical symptoms. Police and firecrews from Greenbank were sent to the abandoned Quality Hotel on Plymouth Hoe. The teenager was stuck on the first floor roof canopy which covers the entrance lobby to the disused hotel. Crews say she had gained entrance to teh buidling through a broken window. Firefighters used a ladder to assist her to safety. Group Manager Paul Bray, of Devon & Somerset Fire & Rescue Service, said: "Although this might seem like a minor mishap on the part of the young person, the inside of the hotel has been vandalised, breaking plaster walls and ceilings containing asbestos. "Whilst inside the premises the young lady was exposed to asbestos particles which have been released into the atmosphere. Asbestos has a very serious health risks to anyone coming into contact with the substance." Once a person becomes contaminated by asbestos, unless the asbestos is removed and contained in a controlled manner, the asbestos is carried from the contact area to wherever the contaminated person travels afterwards -- cars, public transport and homes. The fire service said it strongly discourages others from entering these premises without permission. Devon and Cornwall Police are liaising with the owner and local authority to ensure the security of the premises is enhanced to prevent further incidents. ASBESTOS UPDATE: Widow Files Exposure Suit v. Atlantic Richfield ---------------------------------------------------------------- Annie Cosby, writing for The Southeast Texas Record, reported that a woman from Beaumont, Texas, is suing over claims her husband died of lung cancer allegedly caused by asbestos exposure. Wilma Powell, surviving spouse of Donaldson Powell, deceased, et al, filed a lawsuit Oct. 17 in Jefferson County District Court against Atlantic Richfield Company, et al. According to the complaint, Wilma Powell's husband, Donaldson Powell, worked for Atlantic Richfield Company, formerly known as Sinclair-Koppers, where he used and was exposed to toxic materials such as asbestos dust and fibers. The complaint states Donaldson died from an asbestos-related disease, lung cancer, on May 15, 2014, and the defendant company is accused of gross neglect for allowing their employees to work with asbestos when the dangers were known. Wilma Powell seeks exemplary and punitive damages. She is represented by: J. Keith Hyde, Esq. D'Juana Parks, Esq. Provost Umphrey LLP 490 Park Street #100 Beaumont, TX 77701 Tel: (409) 835-6000 Jefferson County District Court case number: E-196279 ASBESTOS UPDATE: Toxic Dust Found in Evergreen Village Home ----------------------------------------------------------- Adam Poulisse, writing for Daily Chronicle, reported that 19 homes at Evergreen Village Mobile Home Park, in Illinois, tested positive for asbestos, but that hasn't affected plans to demolish the area by the end of May. Paul Miller, DeKalb County's Planning Zoning and Building director, said the Illinois Environmental Protection Agency has confirmed the presence of asbestos in 17 mobile homes and two permanent residences at the former community at 955 E. State St. east of Sycamore. Asbestos testing began in November. Another nine properties still are being tested, and results are expected any day, Miller said. Discussions already are taking place about what to do with the property after the structures are cleared away. One of the conditions of the grant the county received to demolish the trailer park was no new buildings be constructed on the land, County Board Chairman Mark Pietrowski Jr. said. One possibility is transferring the property to the DeKalb County Forest Preserve District for use as a forest preserve site, but that decision hasn't been finalized, according to Terry Hannan, superintendent of the district. "The future use of the land has not been progressed beyond the ideas stage, and has not yet been discussed in detail yet with the Forest Preserve District Committee and Commissioners," Hannan said in an email. The property, which also includes 33 acres of farmland and about six acres of railroad right-of-way, would be a unique location for a forest preserve, and an attractive spot to beautify with bike paths and a fishing pond, Pietrowski said. "A lot of the forest preserves are in rural areas, and this would be in a more urban area," he said. County officials closed on the property in May. The county secured $7.1 million in state and federal emergency management grants to buy the property, which is notorious for flooding, relocate residents and return the area to open space by the end of June. Different contractors have been hired for different aspects of the project, including mobile-home demolition, permanent-home demolition, and asbestos abatement, Miller said. "It's the nature of coordinating a complicated demolition project," he said. "We would hope to have the demolition largely completed by the end of May. That's always been the goal. It hasn't moved back." The mobile home park now sits deserted, dilapidated and vandalized. Residents of the 121 occupied trailers were relocated by the first of the year, well ahead of the April 30 deadline. ASBESTOS UPDATE: Harrowsmith Firm Fined for Workers' Exposure ------------------------------------------------------------- CKWS Newswatch reported that a company in Harrowsmith, Ontario, that does asbestos abatement work has been fined $25,000 after three of its workers were exposed to the substance. A supervisor with the same firm has been fined $4,000. In May 2014, three employees of Recovery Abatement and Insulation were removing asbestos from an Amherstview home. A Ministry of Labour inspector turned up to carry out an inspection and found the three workers did not have proper protective clothing on, despite being in the sealed room where the asbestos was. In a Napanee courtroom, the company pleaded guilty to allowing the workers to be in the room without protective gear. The supervisor -- Gregory Simpson -- pleaded guilty to not ensuring the workers had the necessary protective clothing. In addition to the fines the court imposed a 25 percent victim surcharge. ASBESTOS UPDATE: Toxic Dust Found in George Washington Univ. Hall ----------------------------------------------------------------- Eva Palmer, writing for The GW Hatchet, reported that staff members at The George Washington University, in Washington, D.C., who came to Strong Hall to fix a broken toilet and leaking pipe found asbestos. A maintenance team had to remove asbestos from the ceiling of the lobby in the residence hall, where members of Chi Omega and Pi Beta Phi live, after responding to a call that a toilet had overflowed and a pipe was leaking in second-floor bathrooms of the building. University spokesman Kurtis Hiatt said the damage also affected a community room in the building. Staff removed asbestos from the lobby's ceiling, and planned to replace insulation and parts of the ceiling over the weekend, Hiatt said. Air samples were taken and "there were no hazards to the GW community," he said. Plastic tarps and red tape marked "danger" covered parts of the Strong Hall lobby as staff worked to repair the area. Over the weekend, the plastic tent was removed from the area. "Staff members have remained in close communication with Strong Hall residents to provide updates and minimize disruptions as much as possible during this process. The residence hall remains safe for residents," he said. "We apologize for any inconvenience and appreciate Strong Hall residents' patience as we resolve any remaining issues." Asbestos, a naturally occurring mineral, can be found in insulation and ceiling panels, and is not fully banned in the United States, said Ana Ducoing, who teaches about asbestos at the Ecologic Training Institute in California. It is known to cause lung cancers like mesothelioma. She added that it can take from 10 to 40 years after being exposed to asbestos for people to develop symptoms of mesothelioma, but that it would be extremely rare for any student to develop a disease. "It would be extremely rare for anyone to have anything," she said. Ari Massefski, the president of the Residence Hall Association, said he met with the Division of Operations and was told the repairs are being finished "as quickly as possible." He said his organization still plans to push for Strong Hall to be renovated this summer -- an important backing for the historic building as officials designate different halls for upgrades. "We're still fully committed to advocating for renovations to Strong Hall over the summer," he said. In August 2011, health and safety officials found asbestos in Rice Hall, where many administrators work, and in 2012, staff members worked to remove asbestos from the basement of Gelman Library. Mollie Bowman, the president of the Panhellenic Association, said the safety of the students living in Strong Hall is her "No. 1 priority." "I think [it] would be the No. 1 priority of the University as well," she said. Chi Omega's chapter president, Kate Mellinger, said in an email that she was working closely with GW to fix the problem "as soon as possible." The chapter president of Pi Beta Phi did not return requests for comment. ASBESTOS UPDATE: Council to Fork Out GBP1.2MM for Fibro Removal --------------------------------------------------------------- James Rothwell, writing for Wales Online, reported that Cardiff council, in England, had expected to pay just GBP150,000 to remove asbestos from the old Llanedeyrn High School as part of the St Teilo's schools project The cost of asbestos removal as part of a Cardiff council schools project has rocketed to GBP1.2 million after a "significant" amount was found at Llanedeyrn High School. Cardiff council had expected to pay just GBP150,000 to remove asbestos from the old Llanedeyrn High School as part of the St Teilo's school project. But it was revealed the cost had risen to GBP1.2 million after surveyors discovered a "significant" amount in the flooring. Coun Julia Magill, cabinet member for Education and Skills, said the "unforeseeable" discovery of asbestos at the school would make the cost of removing it jump to more than a million pounds. "A survey found a significant problem with asbestos. It was not foreseeable that this particular problem would be found in a building of this age," she told a cabinet meeting. "It wouldn't have emerged until you were actually demolishing the flooring," she added. The cabinet voted in agreement on proposals to hike the project's funding to GBP1.26 million. The total cost of demolishing Llanedeyrn High School and replacing it with new pitches is more than GBP2 million, according to a cabinet report. Llanedeyrn High School was closed last year to make way for the new St Teilo's Church In Wales High School. Cardiff council's education director Nick Batchelar said in the report: "The amount of asbestos found within the old Llanedeyrn High School is a highly exceptional occurrence. "The appropriate industry standard risk allowances were undertaken during the procurement and contract stages, however to find such extensive amounts of asbestos in the property, especially in the underground ducting, is highly unusual. "Therefore, in this respect the amount of asbestos found and the subsequent increases in contract amounts could not have been avoided." He added: "A number of significant lessons have been learnt from the experience of this project. It is important that this learning is taken forward to ensure that these issues are not repeated within future projects within the 21st Century Schools Programme." "Early and 'intrusive' asbestos surveys should be taken as soon as possible and risk allowances should be built in to similar projects." Another option -- not approved by the council -- was to ignore the asbestos, but this would prevent the new St Teilo's school from becoming fully functional, Mr Batchelar said. "Should the vacant school remain on the site, it would not be possible to develop all the necessary playing fields and pitches for the new St Teilo's High School. "This could cause challenges to delivering the full range of sports curriculum at this new school. Off site facilities would then be sought at an additional annual cost to the school." Lib Dem leader Coun Judith Woodman, called for tighter checks on asbestos in buildings. ASBESTOS UPDATE: Possible Fibro Exposure at Sudbury Hospital ------------------------------------------------------------ Jonathan Migneault, writing for Sudbury Northern Life, reported that the Canadian Ministry of Labour confirmed it is investigating possible exposure to asbestos at Sudbury Hospital Services, a facility that provides laundry and dishwashing services for Health Sciences North. The ministry received a complaint about possible exposure to asbestos fibres -- a serious health hazard and known carcinogen -- on Jan. 12, and ordered the employer to erect a barrier around the contaminated area, after dispatching an inspector and hygienist to investigate the situation, said Ministry of Labour spokesperson William Lin. Terry Watters, the general manager at Sudbury Hospital Services, said the possible exposure to asbestos happened in November and December, when contractors were removing old steam valves in the facility's boiler room. The building, located at 363 York Street, was built in 1969, when asbestos was still commonly used for insulation. In 2000, Sudbury Health Services started an asbestos program to identify parts of the building that still contained the material for insulation. The pipes in the boiler room were identified to be encapsulated with asbestos, Watters said. A protective shell surrounded the pipes, and was filled with asbestos to insulate them. "We believed we could remove it safely by not disturbing the (pipe) elbows," Watters said. But the Ministry of Labour later informed Sudbury Health Services they had not followed the correct procedures while handling the pipes. "Prior to lowering these (pipe) elbows they should have been re- wrapped," Watters said. Watters said there was no way to determine whether or not employees were exposed to airborne asbestos fibres while handling the pipes. The Workplace Safety and Insurance Board provided Sudbury Health Services with workers exposure incident forms, which it has handed to all of its employees, contractors and suppliers. Anyone who suspected being in the affected area when asbestos exposure was possible was encouraged to identify themselves. Sudbury Health Services employs 60 full-time and part-time staff. Only trained workers, with proper personal protective equipment, are allowed to enter the affected area, and Sudbury Health Services is required to provide the Ministry of Labour with an updated asbestos management plan to clean the area. Asbestos does not pose a significant health risk when it is enclosed or tightly bound in a product. But when asbestos fibres are inhaled in significant quantities they can cause asbestosis -- a scarring of the lungs which makes breathing difficult -- lung cancer, and mesothelioma, a rare form of cancer that affects the lining of the chest or the abdominal cavity. ASBESTOS UPDATE: Levy Konigsberg Wins Case for Ohio Fibro Victim ---------------------------------------------------------------- On December 15, 2014, after a 2-week trial before the Honorable Harry A. Hanna, a Cleveland jury rendered a personal injury verdict for an Autozone store manager against Honeywell International Inc. as a successor to The Bendix Corporation in the Court of Common Pleas, Cuyahoga County, Ohio. The plaintiff, represented by mesothelioma attorney Donald P. Blydenburgh of Levy Konigsberg LLP and Ohio mesothelioma attorney Christopher J. Hickey of McDermott & Hickey LLC, filed a lawsuit -- Watkins et al. v. Affinia Group, et al., Case No. 12-780871, Cuyahoga County Court of Common Pleas (Dec. 15, 2014) -- against Bendix alleging that the asbestos-containing Bendix brakes that the defendants sold to aftermarket shops through the late 1980s proximately caused plaintiff's mesothelioma, a lethal cancer caused by asbestos exposure. According to the plaintiff's mesothelioma attorneys, they investigated possible sources of their client's asbestos exposure and found that he was exposed to asbestos fibers from his work with Bendix brakes throughout his employment at AutoZone from 1985 to at least 1989, during such time that he would sand the new brakes for customers so that they would not squeak when the customer would install them at home. During the trial, the plaintiff's mesothelioma attorneys were able to prove that not only was plaintiff unknowingly exposed to asbestos from sanding Bendix brakes, but Bendix had needlessly included asbestos in those brakes as it had designed, manufactured and sold non- asbestos brakes for vehicles decades earlier. The trial against Bendix started on December 1, 2014. Testimony of the plaintiff, his wife, and expert witnesses concluded on December 12, 2014. After deliberating upon the evidence, the jury held Bendix liable for the plaintiff's medical care and treatment, past pain and suffering prior to his death, and his wrongful death. When asked what should be taken away from this case and the verdict, attorney Donald P. Blydenburgh said, "This jury concluded rightfully so that it does not matter your occupation or degree, whether you are an auto store manager or a garage mechanic, if you are exposed to asbestos dust from a Bendix brake, it can cause you to suffer a lethal cancer. For the first time in years, a Cleveland jury was allowed to consider whether punitive damages should be awarded. This verdict was not only a win for our client, but all Ohioans who currently suffer from an asbestos-related disease and want their day in court in Cleveland." As per the evidence presented in court, Brake manufacturer Bendix began selling asbestos-containing brakes in the late 1930s. Bendix continued to sell replacement asbestos brakes in the aftermarket through 2002 despite its ability to design brakes without asbestos in brakes since the mid-1960s. Additionally, during the 1960s, 1970s and 1980s Bendix was aware that the asbestos in its brakes could cause asbestos-related disease, including mesothelioma, but chose not remove it from its products. LK is a national recognized asbestos litigation firm specializing in the representation of mesothelioma and lung cancer victims for close to 30 years. For more information about this Ohio mesothelioma lawsuit, please contact attorney Don Blydenburgh at 1-800-637-6529 or submit an online inquiry at the firm's website. ASBESTOS UPDATE: Deadly Dust Found Dumped in Lane Near Newquay -------------------------------------------------------------- Cornish Guardian reported that furious residents have slammed health and safety chiefs after a potentially lethal pile of asbestos was dumped on a country lane in Kestle Mill, in England. Anxious locals phoned the council as soon as the heap of building materials and other rubbish containing the harmful substance was discovered. Iris Richards, who found gas canisters, metal and rubbish sacks near her home, wrote on social media site Facebook: "It's really dangerous -- metal, wood, rubble -- and the local tip is less than six miles away, but now charges people to take items similar to this at the dump." Cornwall Council said it has had to get a specialist in to remove the material which is why it had taken a few days to clear up. In a statement a spokeswoman for the council said: "We have recently experienced an increase in fly-tipping in some locations but this includes various waste types. In the main, the type of waste that is fly-tipped is waste that can be taken and disposed of free of charge at the household waste recycling centres. "In this case, the waste appears to be commercial and therefore this would not have been permitted to be disposed of at a household waste recycling centre. It was logged by the council and fly-tipping is usually cleared from council owned land within 48 hours. However, as asbestos was identified as part of this waste, a specialist contractor has been brought in to remove it and it should be cleared." ASBESTOS UPDATE: Fake Fibro Report Nets Businessman Probation ------------------------------------------------------------- Jamie Satterfield, writing for Knoxville News Sentinel, reported that a man who lied about testing samples from an Alcoa car dealership for asbestos will spend the next three years on probation. Chief U.S. District Judge Tom Varlan in Knoxville, Tennessee, sentenced David W. Weekley to probation and ordered him to pay a $500 fine for wire fraud. The charge stems from his use of email to submit a false asbestos report. According to a plea agreement drafted by Assistant U.S. Attorney Matthew Morris, Weekley owned the firm Environmental Consulting and Testing LLC, which he held out as providing testing on samples of "suspected asbestos-containing materials" for demolition contractors and other businesses involved in tearing down or renovating buildings that might contain the hazardous material. In January 2011, Total Demolition Inc., was readying to demolish the building that once housed a Delmar Haynes automobile dealership in Alcoa. The firm hired Weekley to test samples for asbestos. Weekley sent a report in February 2011 to Total Demolition in which he claimed to have sent 57 samples of material from the old Delmar Haynes building to FiberCom Laboratory "for bulk asbestos analysis," Morris wrote. The report declared the materials free of asbestos, the plea agreement stated. "In truth and in fact, (Weekley) had neither submitted samples to nor received results from FiberCom Laboratory for the former Delmar Haynes automobile facility in Alcoa," Morris wrote. Weekley billed Total Demolition $1,950. Morris urged Varlan to give Weekley a little shock incarceration. His penalty range under federal sentencing guidelines only called for a maximum six-month sentence and allowed the possibility of probation. But Assistant Federal Defender Jonathan Moffatt convinced Varlan the three-year probationary term would keep Weekley on the straight and narrow. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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