/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/151218.mbx C L A S S A C T I O N R E P O R T E R Friday, December 18, 2015, Vol. 17, No. 252 Headlines AMAZON: Can Use Rejected Settlement Offer to Avert Class Action ANIMAL AIR: "Diaz" Action Seeks to Recover Overtime Wages BANK OF NOVA SCOTIA: Manipulates Treasuries, CNB Suit Claims BECK ENERGY: Supreme Court Hears Case Over Oil/Gas Leases BOJANGLES' FAMOUS: Employees File Class Action Following Shutdown BOSTIK INC: "Clark" Action Seeks Damages from Defective Product BRIAN SELF: Faces Class Action Over Unsolicited Fax Ads BRICE, OH: Faces Class Action Over Traffic Tickets CABLEVISION: Settles Class Action Over Set-Top Rental Fees CANADA: Aboriginal Woman Mulls Class Action v. SHR Over Ligation CODE 42 SOFTWARE: "Doe" Action Hits Subscription Renewal DFS GROUP: "Concepcion" Suit Seeks Damages and Overtime Pay DOLE FOOD: February 8 Class Action Lead Plaintiff Deadline Set DRAFTKINGS INC: "Facenda" Suit Alleges Rigging in Online Game DUKE ENERGY: April 18 Approval Hearing on $80.87-Mil. Settlement DUPONT: Second Trial in C8 Litigation to Start March 21 EMERGENCY MEDICAL: Judge Denies Customers' Class Certification Bid ENDO PHARMA: Judge Refuses to Remand Birth Control Class Action EOG RESOURCES: "Chaumont" Action Seeks to Recover Overtime Pay EROS INTERNATIONAL: Faces "Abram" Suit Over Misleading Reports EXPEDIA: Westchester County Sues Over Underpaid Hotel Taxes EXPERIAN INFORMATION: "Crump" Suit Alleges Data Breach EXPERIAN INFORMATION: "Brazzle" Suit Hits Data Breach FLOTEK INDUSTRIES: "Dong" Action Sues Over Share Price Drop FORD MOTOR: Plaintiffs Use "Catalyst" Theory in Class Action GEORGIA: Fired IT Employee Takes Brunt of Blame for Data Breach GILLETTE CO: CCAF Seeks Review of Duracell Class Suit Settlement GLOBE SPECIALTY: Feb. 10 Fairness Hearing of $32.5MM Settlement GOOGLE INC: Seeks Review of Pay-Per-Click Class Action Ruling GVT: Brazil Commences False Advertising Class Action JP MORGAN: Hotel Files Class Action Over Mobile Banking App KYB GROUP: "Adams" Action Hits Price-Fixing of Shock Absorbers LAMI PRODUCTS: "Cikra" Action Seeks Overtime Pay LOBLAW COMPANIES: Recalls Ginger Cookie Chips Due to Peanuts LOBLAW COMPANIES: Recalls Life at Home(R) Multicolour LED Lights MAHINDRA USA: Recalls Diesel Tractors Due to Fire Hazard MANNARICH FOOD: Recalls Fish and Seafood Products Due to Egg MASERATI: Recalls 2016 Models Due to Injury Risk MEDIVANCE INC: Recalls Temperature Management Systems MEYER'S UNION: Faces Class Action Over No Tipping Policy MILLER BREWING: Faces Class Action Over Misleading Beer Label NEINSTEIN & ASSOCIATES: Ontario Court Certifies Class Action NESTLE INDIA: Supreme Court Stays Maggi Class Action Proceedings NEWMAR: Recalls Multiple Vehicle Models Due to Injury Risk NEWMAR: Recalls Canyon Star Class A Motorhome 2014 Models NEWMAR: Recalls King Aire Class A Motorhome 2016 Models OKLAHOMA CITY, OK: Cop's Sexual Assault Victims File Class Action POSTURE PRO: Faces "Carradine" Suit Over Unsolicited Faxes RENO, NV: Awaits Ruling on Class Action v. Housing Authority RUTH'S HOSPITALITY: "Ware" Action Seeks Overtime Pay SHORB GROUP: "Castro" Action Seeks to Recover Wages and OT SOUTHERN RESPONSE: Policyholders Attend Class Action Hearing SPECTRUM PHARMACEUTICALS: TheGrantLawFirm Withdraws Class Action SUPERIOR PERFORMANCE: "Allen" Action Seeks to Recover OT SWAGWAY LLC: Faces Class Action Over Defective Scooter SYNGENTA GROUP: "Fleisher" Suit Alleges Crop Loss Over GMO Corn TINDER: Faces Consumer Fraud Class Action in California TAISHAN GYPSUM: Judge Hears Closing Arguments in Drywall Suit TERRFORM GLOBAL: Hid IPO Sponsor's Losses, "Beltran" Suit Alleges U.S. MEDICAL MGT: "Chudzik" Suit Claims Back Pay UBER: Wants Drivers to Sign Agreement Not to Join Class Action UBER: City of Seattle Allows Drivers to Form Union UNITED SERVICES: Little Rock Attorney Challenges Settlement VALEANT PHARMA: Faces "Fein" Securities Action in N.J. VAN HEUSEN: Settles Background Check Class Action VOLKSWAGEN GROUP: "Barber" Suit Alleges Emission Test Cheating VOLKSWAGEN GROUP: Recall to Commence in January 2016 in Australia WEN: More Than 200 Women Sue Over Hair Care Product YACHTING PROMOTIONS: "De Jesus" Action Seeks OT Pay ZEEKREWARDS.COM: E-Wallet Agrees to Pay $3.5MM to Receivership * NJ's High Court Justices Mull Insurance Class Action Standard Asbestos Litigation ASBESTOS UPDATE: JPL Construction May Have Exposed Workers ASBESTOS UPDATE: NYC Fibro Plaintiffs Oppose Bid to Quash ASBESTOS UPDATE: Leeds School's Health, Safety Failings Exposed ASBESTOS UPDATE: Fibro Cancer Leaves Baby Dreams in Tatters ASBESTOS UPDATE: Fibro Removal Project to Begin at Courthouse ASBESTOS UPDATE: Order Denying Summary Judgment Reversed ASBESTOS UPDATE: Payment Call for Neighbors of Fibro Waste Plant ASBESTOS UPDATE: Calif. Jury Awards Nearly $7MM in FELA Suit ASBESTOS UPDATE: Ill. High Ct. Says State Law Blocks Fibro Suits ASBESTOS UPDATE: Missoula Food Bank Site Has Fibro in Soil ASBESTOS UPDATE: Fibro Halts School Board Renewal Strategy ASBESTOS UPDATE: Union Calls for Licensing of Fibro Removal Cos. ASBESTOS UPDATE: Man Claims Fibro Exposure Caused Mesothelioma ASBESTOS UPDATE: City Hall Closed Due to Fibro Contamination ASBESTOS UPDATE: DNR Fibro Report Has Errors, School Dist. Says ASBESTOS UPDATE: Andrea Electronics Continues to Defend RI Suit ASBESTOS UPDATE: Rockwell Had $17.8MM Reserve at September 30 ASBESTOS UPDATE: Rockwell Automation Continues to Defend PI Suits ASBESTOS UPDATE: Meritor Had 5,600 Maremont Claims at Sept. 27 ASBESTOS UPDATE: Meritor Unit Has $41-Mil. Fibro Recoveries ASBESTOS UPDATE: Haynes Int'l Continues to Defend PI Suits ASBESTOS UPDATE: Mallinckrodt plc Had 12,750 PI Cases at Sept. 25 ASBESTOS UPDATE: Scotts Miracle Continues to Defend Fibro Cases ASBESTOS UPDATE: Cabot Corp. Has 38,000 AO Respiratory Claimants ASBESTOS UPDATE: Esterline Still Subject to Potential Liabilities ASBESTOS UPDATE: Court Partially Dismisses "Rhoton" ASBESTOS UPDATE: Court Grants Summary Judgment Bid in "Feaster" ********* AMAZON: Can Use Rejected Settlement Offer to Avert Class Action --------------------------------------------------------------- Dan Churney, writing for Cook County Record, reports that a Chicago federal judge has ruled a plaintiff, who is leading a putative class action suit against Amazon for allegedly rejecting his job application after a background check turned up what the plaintiff said is a bogus report of a drug conviction, can't stop the online retailer from using the plaintiff's decision to reject a settlement offer as a defense to ward off the class action suit. The reasoning behind this ruling, which concerns Federal Rule of Civil Procedure 68, was delivered in a memorandum opinion Dec. 7 by U.S. District Judge Gary Feinerman. In November 2013, Gregory Williams, of Irmo, S.C., applied for a full-time seasonal job with the global retailer Amazon. After an interview, Williams was offered the position, but then the Chicago-based employment agency SMX, under contract with Amazon, allegedly provided a background check to Amazon that reported Mr. Williams had a felony conviction for possession of cocaine. Allegedly as a result, Amazon rescinded its job offer to Mr. Williams. Mr. Williams said he had no such conviction, but alleged neither Amazon nor SMX gave him a chance to review and respond to the information, as required by the U.S. Fair Credit Reporting Act. The Act governs the use of background checks for employment purposes. In April 2015, Mr. Williams filed suit in U.S. District Court for Northern Illinois against Amazon and SMX, claiming the companies violated the Fair Credit Reporting Act. Mr. Williams eventually made a motion to make his case a class-action suit, but before that happened, defendants put forward two settlement offers to Mr. Williams, the second one the more generous -- $13,000 plus legal costs. However, Williams purportedly rejected both. The settlement offers were tendered under Federal Rule of Civil Procedure 68, which dictates, should plaintiffs win a judgment that is no better than an offer they rejected, plaintiffs must reimburse defendants for costs defendant incurred after the offer was made. After the first rejection, defendants sought to dismiss the case, arguing they offered to give Mr. Williams everything he wanted, but Mr. Williams continued to sue even though he had for all purposes won his court action. Judge Feinerman disagreed, ruling the relief offered Mr. Williams was incomplete. After the second rejection, defendants moved for leave to file an amended motion to again dismiss, but Judge Feinerman denied the motion for leave. In the meantime, Mr. Williams had lodged a motion to have the judge declare the second settlement offer invalid, so he would not be stuck with defendants' legal costs if he won a judgment no more favorable than the relief presented in that offer. On Nov. 17, Judge Feinerman rejected Williams' motion, delivering a fuller explanation of his thinking in a paper filed Dec. 7. Mr. Williams had contended Rule 68 doesn't apply in putative class actions. However, Judge Feinerman said the defense has to be allowed to bring up rejected offers, because Rule 68 says defendants can present an affirmative defense of estoppel or waiver by showing their offer gave the plaintiff what he wanted. If such a defense is to be advanced, defendants must be able to bring forth the offer that was rejected. Judge Feinerman said he could find no support for Mr. Williams' position in "rule or statute," but he did track down support in several federal district court rulings from around the country, in which judges refused to apply Rule 68 in putative class actions. Judge Feinerman acknowledged those district rulings seek to prevent a defendant from using a paltry offer to "kneecap budding class actions and escape liability" in such suits. Nonetheless, Jduge Feinerman said he is obligated to follow precedent laid down by the Seventh Circuit Court of Appeals -- which encompasses Chicago's federal district court -- holding, under Rule 68, putative class actions can be dismissed if plaintiffs turn down settlement offers. The Seventh Circuit also has no problem imposing costs on the losing parties in putative class actions, according to Judge Feinerman. The judge cited the 2001 Seventh Circuit decision in White v. Sundstrand Corp., which asserted nothing "suggests that cost-shifting is inapplicable to class actions." Judge Feinerman noted the incentive to undertake class action suits is still in place, as lawyers handling class actions tend to profit much more than any of their clients. This arrangement encourages such lawyers to pursue class actions despite the danger of having to pay defendants' costs in the event of loss, because the lawyers stand to gain significantly. Besides, class action lawyers usually handle a number of such cases, losing some and winning some. As a result, such lawyers spread their risk among a number of cases, establishing a form of insurance, the judge said. All of this serves to reduce the deterrent posed by the possibility of having to pay defendants' legal costs, he said. Mr. Williams is represented by the firms of Francis & Mailman, of Philadelphia; SmithMarco, of Chicago; and Christopher E. Green, of Seattle. Amazon and SMX are defended by Ongarao PC, of San Francisco, and Baker & Hostetler, of Chicago. A status hearing is set for Feb. 17. ANIMAL AIR: "Diaz" Action Seeks to Recover Overtime Wages --------------------------------------------------------- Amin Diaz and other similarly-situated individuals, v. Animal Air Service, Inc. and Luis Enrique Valdivieso, individually, Defendants, Case No. 1:15-cv-24314-PAS (S.D. Fla. Miami Division, October 20, 2015), seeks to recover monetary damages for unpaid overtime wages pursuant to 29 U.S.C. 201-219 of the Fair Labor Standards Act. Animal Air Service, Inc. is a Florida Corporation with its place of business in Dade County. It is an animal transport and handling company providing services at Miami International Airport with Luis Enrique Valdivieso as owner. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 3100 South Dixie Highway Suite 202 Miami, FL 33133 Tel: (305) 446-1500 Fax: (305) 446-1502 Email: zep@thepalmalawgroup.com BANK OF NOVA SCOTIA: Manipulates Treasuries, CNB Suit Claims ------------------------------------------------------------ CNB Bancorp, Inc., individually and on behalf of all others similarly situated, Plaintiff, v. Bank of Nova Scotia, New York Agency; Bmo Capital Markets Corp., BNP Paribas Securities Corp., Barclays Capital Inc., Cantorfitzgerald & Co., Citigroup Global Markets Inc., Countrywide Securities Corporation, Credit Suisse Securities (USA) LLC; Daiwa Capital Markets America Inc., Deutsche Bank Securities Inc., Goldman, Sachs & Co., HSBC Securities (USA) Inc., Jefferies LLC, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Mizuho Securities USA Inc., Morgan Stanley & Co. LLC, Nomura Securities International, Inc.; RBC Capital Markets, LLC; RBS Securities Inc.; SO Americas Securities, LLC; TD Securities (USA) LLC and UBS Securities LLC, Defendants, Case No. 1:15-cv-00595 (S.D. Ala., November 20, 2015), seeks to recover damages against Defendants for their violations of federal antitrust laws. Defendants allegedly colluded and manipulated the market for U.S. Treasury securities, including Treasury bills, notes, bonds, Treasury Inflation-Protected Securities and floating rate notes as well as derivative instruments based on such securities, including U.S. Treasury futures and options resulting in reduced competition in bond auctions and raises costs for taxpayers and investors. The Plaintiff is represented by: Patrick C. Cooper, Esq. James S. Ward, Esq. WARD & WILSON, L.L.C. 2100A Southbridge Parkway Suite 580 Birmingham, AL 35209 Tel: (205) 871-5404 Fax: (205) 871-5758 Email: patrickcharles003@yahoo.com jward@wardwilsonlaw.com - and - Peter H. Burke, Esq. Allen Schreiber, Esq. BURKE HARVEY, LLC 3535 Grandview Parkway Suite 100 Birmingham, AL 35243 Tel: (205) 930-9091 Fax: (205) 930-6054 Email: pburke@burkeharvey.com aschreiber@burkeharvey.com - and - Alfred G. Yates, Esq. LAW OFFICES OF ALFRED G. YATES, JR., P.C. 519 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219 Tel: (412) 391-5164 Fax: (412) 471-1033 Email: yateslaw@aol.com - and - Nicoleta Spilca, Esq. LAW OFFICE OF NICOLETA SPILCA 500 Marquette NW Suite 1200 Albuquerque, NM 87102 Tel: 505-255-0459 Email: spilca.esq@gmail.com BECK ENERGY: Supreme Court Hears Case Over Oil/Gas Leases --------------------------------------------------------- Jamison Cocklin, writing for NGI's Shale Daily, reports that after years of protracted lawsuits, the Ohio Supreme Court heard oral arguments on Dec. 14 in a case that could release hundreds of landowners from undeveloped oil and natural gas lease agreements and cast doubt on similarly worded leases that have been used for decades in the state. Legacy driller Beck Energy Corp. has been fighting two groups of landowners over leases signed to explore for oil and gas in southern and eastern Ohio. The parties, including Beck's partner, XTO Energy Inc., have claimed the dispute has prevented millions in bonus payments, royalties and profits. The high court would decide if the leases signed with Beck are void because they include language to allow the company to perpetually control mineral rights without drilling. If the landowners are successful, a certified class of 700 of them could end their leases and negotiate new ones. In September 2011, five landowners filed a lawsuit in Monroe County Common Pleas Court against Beck claiming they signed lease forms, labeled G&T (83), that allowed Beck to control their land indefinitely without drilling and paying royalties if the company paid a few hundred dollars per year in rentals for the property. Beck argued those leases followed decades of precedent under Ohio law that allowed it to drill within 10 years of the lease and remain on the land as long as the company continued operations. The following year, the lower court ruled for the landowners and declared the leases void as a violation of public policy against leases that have no end date. The landowners also filed for class-action certification, alleging an estimated 700 people throughout the state had signed with Beck. During that time, Beck signed an agreement with XTO Energy Inc., turning over the deep rights on some of the land in question to the ExxonMobil Corp. subsidiary. The trial court granted class action and Beck appealed to the Seventh District Court of Appeals (see Shale Daily, Feb. 28, 2013). But because the landowners were not seeking monetary damages with the class action suit, the group was designated under Ohio law as one that did not require notification or a right to opt-out as is typical in class action cases. The Seventh District reversed the lower court's ruling in 2013, declaring the leases valid again and granted an order freezing the leases until the case could be resolved by the Ohio Supreme Court on appeal by the landowners. In 2014, a family farm filed a request with the Supreme Court to prevent its lease from being frozen. The farm said it should have been notified of the class action and should not have been involuntarily included in it. The high court consolidated the farm's complaint with the case against Beck and will decide on both after oral arguments. At issue is whether the Beck leases contain proper primary and secondary clauses that require it to drill for oil and gas within the first 10 years of the lease and control land only after production has occurred. The court would also decide if class members that weren't notified have a right to end their leases and renegotiate them. The Ohio Oil and Gas Association (OOGA) has filed an amicus brief supporting Beck and the appeals court's decision. Six other oil and gas companies operating in the state have done the same. In its brief, OOGA argues that many companies use the G&T (83) leases or similar ones, saying "countlessly similar worded Ohio leases will be thrown into doubt," if the landowners are successful. There were 19 oil and natural gas rigs running in Ohio at the start of December, according to Baker Hughes data, including eight rigs in Belmont County and five in Monroe County. BOJANGLES' FAMOUS: Employees File Class Action Following Shutdown ----------------------------------------------------------------- Theresa Campbell, writing for Daily Commercial, reports that a class-action lawsuit and demand for jury trial has been filed on behalf of an estimated 300 employees, including those in Leesburg, affected by the abrupt closing of Bojangles' Famous Chicken 'n Biscuits throughout Central Florida. Most employees were given two days' notice before eight Bojangles' restaurants were shuttered on Dec. 6, yet some workers didn't know of the closing until they showed up for work and found doors locked, according to attorney Richard Celler. As managing partner of Celler Legal P.A., of Davie, Mr. Celler provided the Daily Commercial with a copy of the lawsuit filed in the U.S. District Court for the Middle District of Florida, Orlando Division, on behalf of plaintiff Stephen McCowan and other class employees of the closed Bojangles' against defendant, Hill Gray Seven LLC. Drew Hill is listed as owner/manager of Hill Gray Seven LLC. Mr. Hill could not be reached for comment. According to the lawsuit, the defendant is liable under the Worker Adjustment and Retraining Notification (WARN) Act of 1988 for failing to provide employees with at least 60 days' advance notice of their termination as required by the WARN Act. "This is a law that is commonly violated," Mr. Celler said on Dec. 15. "Often times, in these kinds of situations, what we get is an employer who completely shuts his doors and is no longer in business or has assets. But, we believe in this instance, the defendant owns the restaurants or the franchise rights, so we believe there are appropriate assets to go after to make sure that these employees are paid properly." Mr. Celler said if the court grants the class-action grant certification, all affected employees who lost their jobs will be included in the lawsuit if they wish. The attorney said that according to the WARN Act, the employees should be entitled to the wages they would have earned during the 60-day period of notice they before their jobs ended. "What has been incredibly troubling about this situation has been the timing of it," Mr. Celler said. "We're going right into the holidays, and it is just awful that these employees weren't at least given the opportunity to plan for what was coming." "These are not Fortune 500 employees," he added. "These are individuals making a fairly low, blue-collar, hourly wage, and most of these folks live paycheck to paycheck. And when you take that away, it's not just the wages they lost, but it's the ripple effect of not being able to pay their bills and not being able to provide their kids with Christmas presents. If I had to use an expression, this is like the Grinch who stole Christmas this year." According to Mr. Celler's website, floridaovertimelawyer.com, in the last 10 years of his 14-year career, he has recovered, either by settlement or verdict, over $100 million in damages for workers around the U.S. regarding labor and employment cases. BOSTIK INC: "Clark" Action Seeks Damages from Defective Product --------------------------------------------------------------- Annette Clark, individually and on behalf of all those similarly situated, Plaintiffs, v. Bostik, Inc., David C. Greenbaum Co., Inc., Leonard's Carpet Services, Inc. and Does 1-100, inclusive, Defendants, Case No. 8:15-cv-01941 (C.D. Cal., November 20, 2015), seeks to recover economic loss from the sale of defective products, cost to repair damage to their homes, necessary relocation expense, restitution, costs of suit and attorneys' fees in violation of Civ. Code 1770(a) subsection (5), (7) and (9), Breach of Express Warranties under Common Law, Cal. Civ. Code 1790 et seq. and Cal. Comm. Code 2313. Plaintiffs allegedly purchased defective DURABOND D-70 Premium Flexible Polymer Modified Thin-Set Proven Adhesion and Crack Suppression Mortar manufactured by defendant Bostik, Inc. supplied by defendant David C. Greenbaum Co., Inc. and installed by Leonard's Carpet Services, Inc. Bostik, Inc., a Delaware corporation, was and is doing business throughout the State of California. It is a global adhesive specialist in industrial manufacturing, construction and consumer markets. Bostik is a wholly-owned company of Arkema, a French chemical company and maintains a manufacturing facility in Temecula, California located at 27460 Bostik Court, Temecula, CA 92590. David C. Greenbaum Co., Inc., a California Corporation, does business throughout the State of California and is a material supplier of D-70. Its principal place of business is at 290 E. Verdugo Ave., Suite 101, Burbank, CA 91502. The Plaintiff is represented by: Stuart M. Eppsteiner, Esq. Andrew J. Kubik, Esq. EPPSTEINER & FIORICA ATTORNEYS, LLP 12555 High Bluff Dr., Ste. 155 San Diego, Ca 92130 Tel: (858) 350-1500 Fax: (858) 350-1501 Email: sme@eppsteiner.com ajk@eppsteiner.com BRIAN SELF: Faces Class Action Over Unsolicited Fax Ads ------------------------------------------------------- Vimbai Chikomo, writing for Legal Newsline, reports that the owner of an Arizona company that sells spinal decompression equipment says he made a "one-time mistake" sending a group fax and now faces bankruptcy because of the ensuing class action lawsuit. A class was recently certified in a Missouri lawsuit against Brian Self's company Double Your Decompression, which is accused of sending hundreds of unsolicited advertisements through fax. According to the lawsuit, Thomas C. Duke v. Double Your Decompression, the defendants sent hundreds of unsolicited fax ads in violation of the Telephone Consumer Protection Act (TCPA). The TCPA was passed into law in 1991, and went into effect in 1992. Since then, the Federal Communications Commission (FCC) and Congress have made amendments to the statute that permitted some unsolicited fax transmissions that were previously prohibited under the statute. Double Your Decompression's website states that it's a company that provides "all of your spinal decompression needs under one roof." Self, the owner of Double Your Compression stated that he founded his company in 2011 and claims that he made a one-time mistake of sending out a fax to a group of people in 2011. He has filed for bankruptcy. "Ninety percent of the population has no idea that that's a law. I have two friends that are lawyers -- they went to law school, passed the bar and are actual practicing lawyers, and they had no idea that was actually a law," Self told Legal Newsline. "Nobody knows that they need to have physical written permission from people for every single thing that they fax." Self said that once he understood the law he didn't send out any more faxes. "This is my only source of income, and there's no way we could pay for what might turn out to be a $300,000 to $500,000 lawsuit," Self said. The TCPA allows individuals who have received telemarketing calls, unsolicited faxes, prerecorded calls, or autodialed calls to cellphones, may file a lawsuit against any company that violates the TCPA. Potential judgment for damages under the statute typically ranges from $500 to $1500 for each violation, which are paid to the consumer and the plaintiffs attorneys. A website set up for those wanting to be included in the class states that "persons who are members of this class must decide whether to remain in the class or ask to be excluded." The class in the case against Double Your Decompression is composed of "all persons and entities whose fax number appears in the List of Class Members, and to whom defendants or defendants' agents sent one or more faxes advertising Defendants' products or services between Nov. 25, 2010 and Nov. 25, 2014." Ari Rodopoulos, the attorney representing the class, declined to comment. BRICE, OH: Faces Class Action Over Traffic Tickets -------------------------------------------------- Tom Sussi, writing for ABC 6 Investigates, reports that nearly two years ago to the day, its own lawyers warned the Village of Brice to stop writing traffic tickets as civil citations. They feared the Village exposed itself to serious legal implications. Now it's happened. Investigator Tom Sussi reports that a class action lawsuit has been filed against the Village. Attorneys David Goldstein and Gina Piacentino say the Village's system is illegal and unconstitutional. The suit demands the Village refund the thousands of motorists ticketed under this controversial system. "The purpose of our lawsuit and class action is to get a large group or people who can't afford a lawyer, and try to get back the money that we believe they are due owed," Mr. Goldstein said. Neither Village of Brice Mayor Amy Evans or its solicitor responded to ABC 6/FOX 28's calls and e-mails. The Village has 28 days to respond to the lawsuit. If you're interested in the class action lawsuit, please contact the law office of Gina Piacentino at 221-0800. CABLEVISION: Settles Class Action Over Set-Top Rental Fees ---------------------------------------------------------- Daniel Frankel, writing for FireceCable, reports that Cablevision has settled a class-action suit filed against it for tying various services to set-top rental fees. According to documents related to the settlement, which were obtained by Broadcasting & Cable, the settlement obligates Cablevision to open its systems to certain third-party set-top box providers. The MSO has also agreed to provide all of its subscribers four months free of AMC Networks' streaming channels, whether or not they were part of the class action. CANADA: Aboriginal Woman Mulls Class Action v. SHR Over Ligation ---------------------------------------------------------------- Betty Ann Adam, writing for Saskatoon StarPhoenix, reports that an aboriginal woman who had a tubal ligation at Royal University Hospital hopes to launch a class-action lawsuit against the Saskatoon Health Region (SHR) and possibly the provincial and federal governments. Melika Popp had the procedure in 2008 when she gave birth by emergency Cesarean section to her second child. She said she was misled into believing the procedure would be reversible. Ms. Popp called a lawyer after learning in November of at least two other indigenous women who said they had been pressured into being sterilized against their wishes. Lawyer Roch Dupont said he is still analyzing issues in the case. Popp and other women who have complained publicly were told their files had been flagged by Social Services for one reason or another. The purpose of flagging their files is not clear, he said. "Why were they flagged? There had to have been a policy somewhere that said here is the criteria. I'm sure the flagging wasn't done because one doctor or one nurse decided this needs to be done," Dupont said. "Was it a provincial government policy? Was it widespread? Was it from Social Services or was it a Ministry of Health policy?" Dupont said it seems unlikely front line workers were acting on their own, without any government authority. In response to complaints in October, SHR implemented a new process so that only women who have decided with their physicians before coming to hospital will undergo tubal ligation following vaginal delivery. Jackie Mann, vice-president of integrated services for the health region, said in October that the health region would bring in an outside investigator to look into the complaints and examine current practices. No one has been contracted to do the job, a spokesperson confirmed. The number of tubal ligations after vaginal births fell gradually to 24 in 2014-15, from 95 in 2010-11, according to Mann. Popp was a single mother and was considering giving her baby up for adoption, but she changed her mind after the birth. She'd arrived at the RUH emergency department six weeks before her baby's due date and was quickly scheduled for the emergency procedure. Ms. Popp said the doctor who was to perform it came to her room in the maternity ward before the birth and suggested she have a tubal ligation, so she "wouldn't land in this situation again." Ms. Popp said she was told the procedure was reversible and there would be no other lasting effects on her body. "I trusted them. I believed them," she said. "I just feel violated as a human being, as a mother." Ms. Popp said she feels her lost ability to have children, who would have become part of future First Nations, magnifies the disconnection from her people that she suffered as a result of being taken from her mother in the '60s Scoop and placed with a family that taught her to feel ashamed of her indigenous identity. She is among more than 2,300 people in Saskatchewan and Manitoba who have signed onto a proposed '60s Scoop class action lawsuit. She wants the courts to confirm that both the '60s Scoop and uninformed consent for sterilizations were acts of systemic racism. She wants Canadian history to recognize the wrongs, she said. "It's another form of cultural genocide." The sterilization lawsuit is not about getting cash, but about getting governments to take responsibility for helping to heal people by providing counselling and other services comparable to the services available to victims of sexual assault, she said, adding she also wants greater education for the public, police and health care and child protection workers. "This healing journey has not been a victory march . . . I've had my life hijacked by the government," she said. CODE 42 SOFTWARE: "Doe" Action Hits Subscription Renewal -------------------------------------------------------- JANE DOE, individually and on behalf of all others similarly situated, Plaintiff, v. Code 42 Software, Inc. and Does 1 - 10, inclusive, Defendants, Case No. 8:15-cv-01936 (C.D. Cal., November 19, 2015), seeks damages and full restitution in the amount of the subscription payments in violation of the California Business & Professional Code 17602. Defendant operates a website which markets subscriptions for its "CrashPlan" computer backup services and related computer services. It allegedly failed to inform the Plaintiff that it was continuing its subscription. The Plaintiff is represented by: Scott J. Ferrell, Esq. Richard H. Hikida, Esq. David W. Reid, Esq. Victoria C. Knowles, Esq. NEWPORT TRIAL GROUP 4100 Newport Place, Ste. 800 Newport Beach, CA 92660 Tel: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@trialnewport.com rhikida@trialnewport.com dreid@trialnewport.com vknowles@trialnewport.com DFS GROUP: "Concepcion" Suit Seeks Damages and Overtime Pay ----------------------------------------------------------- Jeffrey Concepcion, on behalf of himself and on behalf of others similarly situated, and the general public, v. DFS Group L.P. and DOES 1-25, Case No. CGC-15-548698 (Cal. Super., San Francisco County, October 29, 2015), seeks compensatory and statutory damages and to recover overtime pay according to the Labor Code 226.7 and Wage Order #9 as well as waiting time and statutory penalties pursuant to Labor Code 201-203 and 558. DFS Group L.P. is a luxury retailer operating out of duty free shops in airports worldwide and a California registered corporation. The Plaintiff is represented by: Arlo Garcia Uriarte, Esq. Un Kei Wu, Esq. Ernesto Sanchez, Esq. Brent A. Robinson, Esq. Liberation Law Group, P.C. 2760 Mission St. San Francisco, CA 94110 Tel: (415) 695-1000 Fax: (415) 695-1006 DOLE FOOD: February 8 Class Action Lead Plaintiff Deadline Set -------------------------------------------------------------- Bernstein Liebhard LLP on Dec. 15 disclosed that a securities class action has been filed in the United States District Court for the District of Delaware on behalf of a class consisting of all persons or entities who sold the common stock of Dole Food Company, Inc. between January 2, 2013 and October 31, 2013, inclusive. The complaint charges Dole and certain of its officers and directors with violations of the Securities Exchange Act of 1934. The complaint alleges that throughout the Class Period, Defendants implemented a fraudulent scheme to acquire the publicly held shares of Dole in order to convert the Company into a privately- held enterprise owned by Dole Chairman and CEO, David H. Murdock. Specifically, the complaint alleges that Defendants made false and/or misleading negative statements about Dole's operations and finances, and omitted material information, in order to artificially lower the price of Dole's stock so that Murdock could buy the Company at an artificially depressed price. On June 12, 2013, Murdock made his initial proposal to take Dole private at $12.00 per share. On August 12, 2013, the Board announced that Dole and Murdock had entered into and signed a definitive merger agreement by which Murdock would acquire all of the outstanding shares of Dole common stock not currently held by him for $13.50 per share. The merger closed on November 1, 2013. Plaintiffs seek to recover damages on behalf of all Class members who sold Dole securities during the Class Period. If you sold Dole securities you may wish to join in this action to serve as lead plaintiff. In order to do so, you must meet certain requirements set forth in the applicable law and file appropriate papers no later than February 8, 2016. A "lead plaintiff" is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as lead plaintiff. Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Bernstein Liebhard LLP, or other counsel of your choice, to serve as your counsel in this action. If you are interested in discussing your rights as a Dole investor and/or have information relating to the matter, please contact Joseph R. Seidman, Jr. at (877) 779-1414 or seidman@bernlieb.com. Bernstein Liebhard LLP has pursued hundreds of securities, consumer and shareholder rights cases and recovered over $3.5 billion for its clients. The National Law Journal has recognized Bernstein Liebhard for twelve consecutive years as one of the top plaintiffs' firms in the country. You can obtain a copy of the complaint from the clerk of the court for the United States District Court for the District of Delaware. Bernstein Liebhard LLP 10 East 40th Street New York, New York 10016 (877) 779-1414 www.bernlieb.com DRAFTKINGS INC: "Facenda" Suit Alleges Rigging in Online Game ------------------------------------------------------------- Jamie Facenda, on behalf of himself and all others similarly situated, Plaintiff, v. Draftkings, Inc., Defendants., Case No. 2:15-cv-08922-GW-GJS (C.D. Cal., November 17, 2015), seeks injunction enjoining Defendant from continuing to engage in business, statutory and punitive damages, equitable relief including restitution and/or disgorgement in violation of Cal. Civ. Code 1770(a)(5), 1770(a)(7), 1770(a)(9) and 1770(a)(16). The class action complaint arises out of an alleged internal rigging of online gaming website, Daily Fantasy Sports, an online game that allows paying participants to engage in virtual athletic drafting with data tied to actual player statistics that allows game simulations. Draftkings, Inc. and Fanduel, Inc. entice participants to play by offering cash winnings. DraftKings is a Delaware corporation with its principal place of business located at 225 Franklin St., 26th Floor, Boston, Massachusetts. FanDuel is a Delaware corporation with its principal place of business located at 41 East 11th Street, 10th Floor, New York, NY. The Plaintiff is represented by: Matthew J. Preusch, Esq. KELLER ROHRBACK L.L.P. 1129 State Street, Suite 8 Santa Barbara, CA 93101 Tel: (805) 456-1496 Fax (805) 456-1497 Email: mpreusch@kellerrohrback.com - and - Mark A. Griffin, Esq. Mike Woerner, Esq. Amy Williams-Derry, Esq. David Ko, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Tel: (206) 623-1900 Fax: (206) 623-3384 Email: mgriffin@kellerrohrback.com mwoerner@kellerrohrback.com awilliams-derry@kellerrohrback.com dko@kellerrohrback.com - and - Jeffrey D. Kaliel, Esq. Andrea Gold, Esq. TYCKO & ZAVAREEI LLP 2000 L Street, N.W., Suite 808 Washington, DC 20036 Tel: (202) 973-0900 Fax: (202) 973-0950 Email: jkaliele@tzlegal.com agold@tzlegal.com - and - Darren Kaplan, Esq. STUEVE SIEGEL HANSON LLP 1359 Broadway, Suite 2001 New York, NY 10018 Tel: (212) 999-7370 Email: kaplan@stuevesiegel.com DUKE ENERGY: April 18 Approval Hearing on $80.87-Mil. Settlement ---------------------------------------------------------------- The following statement is being issued by Markovits, Stock & DeMarco, LLC and Freking Myers & Reul, LLC. To: All ratepayers who received retail electric generation service from Duke Energy Corp. and/or Cinergy Corp. or their subsidiaries or affiliates at any time between January 1, 2005, and December 31, 2008, in the CG&E/Duke Energy Ohio electric service territory and who did not receive rebates under the side agreements. DESCRIPTION OF THE LAWSUIT This notice is being provided by order of the United States District Court for the Southern District of Ohio, Eastern Division ("the Court") in Anthony Williams, et al. v. Duke Energy International, Inc., et al., Case No. 1:08-cv-00046. You may be a member of the class described herein. Plaintiffs allege that from 2005 to 2008 defendants unlawfully paid rebates through an affiliate to 24 large industrial or commercial customers under separate side agreements. Plaintiffs allege violation of federal racketeering and antitrust laws, as well as state racketeering and common law claims. Defendants deny these allegations, and maintain that they did not engage in any wrongdoing. A settlement has been reached in this case with a total value of $80,875,000. Residential ratepayers will receive fixed payment amounts for each qualifying day they paid a tariffed rate during the class period, from a settlement fund not to exceed $25,000,000. The minimum payout for an eligible residential ratepayer who qualifies for the entire Class Period will be a total of approximately $40; that amount may go up to a maximum of approximately $400. Non-residential ratepayers will receive fixed, and possibly variable based upon usage, amounts for each qualifying day they paid a tariffed rate during the class period, from a settlement fund not to exceed $25,000,000. The minimum payout for an eligible non-residential ratepayer that qualifies for the entire Class Period will be a total of approximately $200; that amount may go up to a maximum of approximately $4,000. Ratepayers who qualify for lesser time periods will receive lesser total payouts so long as they are $10.00 and above. Also, class members may receive direct benefits from programs developed using a minimum of $8,000,000 of settlement monies. The Court will hold a hearing, where you may appear and object after submitting adequate documentation to do so, to consider approving the settlement at 10:00 a.m. on April 18, 2016, at the Potter Stewart U.S. Courthouse, 100 East Fifth Street, Cincinnati, Ohio 45202. If you do nothing, all the Court's orders in this Action will apply to you. Plaintiffs' attorneys will request approval of fees, expenses and class representative incentive awards at the hearing. A copy of the case documents can be obtained by visiting the office of the Clerk of the Court for the Southern District of Ohio, Joseph P. Kinneary, U.S. Courthouse, Room 121, 85 Marconi Boulevard, Columbus, Ohio 43215. For information you may also go to www.dukeclassaction.com HOW CAN I PARTICIPATE? 1. I was a Residential Ratepayer. To receive the fixed amount payment you must, by April 13, 2016, (i) complete a claim form online at www.dukeclassaction.com, or (ii) return the completed and signed paper claim form, if one has been mailed to you. If you wish to request a paper claim form be mailed to you, please visit www.dukeclassaction.com 2. I was a Non-Residential Ratepayer. To receive the fixed amount payment, and an additional payment if the applicable usage threshold is exceeded, you must, by April 13, 2016, (i) complete a claim form online at www.dukeclassaction.com, or (ii) return the completed and signed paper claim form, if one has been mailed to you. If you wish to request a paper claim form be mailed to you, please visit www.dukeclassaction.com If you do not timely submit a complete and accurate claim form, you will receive no benefits under the settlement but will still be bound by the settlement and release of claims. HOW DO I GET MORE INFORMATION? For more information about the settlement, including the full notice describing your rights, to request that a postcard notice, with attached claim form, be mailed to you, or to update your current mailing address, you may visit www.dukeclassaction.com, call 1-(844) 322-8220, or you may write to the Settlement Administrator at: Williams v. Duke Energy, P.O. Box 10092, Dublin, OH, 43017-6692. DUPONT: Second Trial in C8 Litigation to Start March 21 ------------------------------------------------------- Kyla Asbury, writing for West Virginia Record, reports that the next four trials in C8 litigation have been pushed back, so the second trial would not interfere with the holiday season. The second trial was supposed to begin on Nov. 30, but, as the first trial lasted longer than planned, if the second also lasted as long, it would interfere with the Christmas season. Kathy Brown of Kathy Brown Law said the second trial will now start on March 21. The third trial is scheduled for May, and the fourth and fifth trials will be Aug. 29 and Nov. 14. The second trial is a West Virginia case, and although it will be tried in Columbus under Chief Judge Edmund A. Sargus Jr., it will be tried under West Virginia law and not Ohio law. "It's the same place with the same judge, but because there is a West Virginia plaintiff, it is my understanding it will be tried under West Virginia law," Ms. Brown said. The May trial involves a plaintiff with testicular cancer and the August and November trial involve plaintiffs with kidney cancer. In October, a seven-member federal jury awarded $1.6 million to an Ohio woman who developed kidney cancer and claimed it was after drinking water contaminated with C8. The jury found that Carla Marie Bartlett's kidney cancer was contracted after being exposed to C8 discharged by DuPont's Washington Works facility in Parkersburg into the Ohio River and her drinking water. The jury awarded Bartlett $1.1 million in damages due to DuPont's negligence, and $500,000 for emotional distress due to DuPont's conduct. DuPont plans to appeal the verdict. The litigation between DuPont and the plaintiffs began in 2001 in a class action lawsuit in Wood Circuit Court and that class action lawsuit ended in November 2004 when the parties entered into a class-wide settlement. The litigation involved C8 that was discharged from DuPont's Parkersburg plant and the settlement agreement provided that if a science panel delivered a no probable link finding, the class members would be forever barred from bringing personal injury or wrongful death claims against DuPoint. However, if the science panel found that it was "more likely than not that there is a link between C8 and a particular human disease among class members," the panel issued a probable link finding for that specific disease and DuPont waived its right to challenge whether it is probable that exposure to C-8 is capable of causing the linked disease. The science panel did a six-year study of C8 and found a probable link between C8 exposure and a variety of illnesses, including high cholesterol, kidney cancer, testicular cancer, thyroid disease, inflammatory bowel disease, as well as dangerously high blood pressure in pregnant women. In the study, the science panel members also took a variety of other factors, such as family history and lifestyle choices, into account when determining if C8 is linked to disease. Michael K. Rozen of Rozen Law Firm LLP was appointed as Director of Medical Monitoring in the C8 lawsuits in 2012 and he sends weekly summary reports and monthly status reports to the judge and all parties involved in the C8 medical monitoring program. Mr. Rozen also provides monthly invoices for his services. "During the month of October 2015, the Director continued to administer the Medical Monitoring Program on a daily basis, including communication with and supervision of vendors HealthSmart and Garden City Group regarding all issues associated with the program . . . " the October invoice states. Mr. Rozen's October invoice was for $250,024.58, which included $250,000 in professional services and $24.58 in additional charges. His November invoice was for$250,050.02, which included $250,000 in professional services and $50.02 in additional charges. The C8 Health Project was previously administered by Brookmar Inc., which included blood testing and medical history submissions of almost 70,000 of the affected class members, said Harry Deitzler of Hill, Peterson, Carper, Bee & Deitzler. "The Brookmar budget approved by the court February 28, 2005 included only $2,220,698.20 for administrative staff costs and provided for more than $30 million worth of laboratory blood testing to the participants," Mr. Deitzler said. "By contrast, in return for his administrative charges of more than $11 million dollars, lawyer Rozen can only claim physician appointments for less than 2,000 individuals and a present value (to participants) of less than $700,000." Both projects, the Rozen medical monitoring and the Brookmar C8 Health Project, necessitated separate payment for actual services, such as fees for blood testing and medical interviews or services, which benefitted the participants. "Rozen's administrative fees are presently more than 17 times the cost and value of the benefits provided to the participants," Mr. Deitzler said. "Brookmar Inc. registered and assisted more than ten times as many of the affected residents as Rozen, but charged only a fraction of the benefit cost to cover its administrative fees." Mr. Rozen is paid by DuPont to administer the medical monitoring program after the C8 class action lawsuit came to an end in Parkersburg. U.S. District Court for the Southern District of Ohio case number: 2:13-md-02433 EMERGENCY MEDICAL: Judge Denies Customers' Class Certification Bid ------------------------------------------------------------------ Rianna Pickard, writing for Tulsa World, reports that a judge has denied a request for class certification in a lawsuit claiming EMSA wrongly billed some customers who were participants in its utility fee program. A Tulsa County judge has ruled in favor of the Emergency Medical Services Authority by denying plaintiffs' request to apply the lawsuit's outcome to other individuals who may have been wrongly billed for ambulance transports. District Judge Mary Fitzgerald's ruling came about three months after a three-day court proceeding at which she heard arguments on the class certification motion filed Feb. 26. To obtain class-action status, the plaintiffs needed to prove that their complaints are common or typical to all members of their defined class. At the hearing, plaintiffs defined class members as EMSA customers who were wrongfully billed for emergency services used while they were participants of the agency's utility fee program. The program promised to cover out-of-pocket expenses for ambulance transports in exchange for an added fee on utility bills. EMSA President Steve Williamson testified at the hearing that a 2007 advertisement falsely represented the program when it stated that participants would "never pay a bill for emergency ambulance care." University of Tulsa math professor William Coberly testified at the hearing that between 5,000 and 28,000 people may have been wrongfully billed as participants in the program, based on his analysis of data from EMSA and a collection agency it uses to bill customers. In a written order filed Dec. 10, Judge Fitzgerald ruled that the plaintiffs did not prove that their complaints were common or typical to individuals not named in the lawsuit and that their class definition was not objective enough to apply the lawsuit's outcome to members without examining their individual circumstances. Kristopher Koepsel, an attorney for EMSA, told the Tulsa World on Dec. 15 that he views Fitzgerald's decision as "a very positive ruling for EMSA." Bob Pezold, an attorney who filed the suit, said the plaintiffs "regret the judge's order" but expect to file another request for class certification at a later date. "The important thing to remember is that there can be renewed motions for class certification, and we expect that's going to happen in this case," Mr. Pezold said. The parties in the case are now awaiting Fitzgerald's ruling on motions for summary judgment submitted by both sides. Mr. Pezold said the plaintiffs' motion for partial summary judgment alleges that EMSA's utility fee program didn't require participants to provide insurance information to the agency as a prerequisite for the program's benefits. Mr. Koepsel said the defense motions for summary judgment challenge each of the plaintiffs' complaints against EMSA. Mr. Pezold has represented another lawsuit related to EMSA's utility fee program, in which Bluestone Property Management LLC was found to have been keeping the monthly program fees paid by tenants at two Tulsa apartment complexes. The lawsuit, in which EMSA was not named, claimed that the management company opted out of the program and kept the portion of their tenants' utility bills that was supposed to pay for the agency's emergency transportation services. The tenants resided at Westminster Apartments, 4858 S. 78th East Ave., and Wood Creek Apartments, 11107 E. Brady St. District Judge Dana Kuehn ruled in the plaintiff's favor and on Dec. 7 granted a class-action settlement, which Mr. Pezold said Bluestone has paid and will be distributed. The tenants who were identified as class members in the lawsuit have been notified and sent instructions for claiming reimbursement, Mr. Pezold said. EMSA operates in Bixby, Jenks, Sand Springs and Tulsa, as well as in Oklahoma City and several surrounding cities and towns. ENDO PHARMA: Judge Refuses to Remand Birth Control Class Action --------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a federal judge declined to remand a lawsuit filed over allegedly defective birth control pills to a Georgia state court. The decision by Judge Steve C. Jones of the U.S. District Court for the Northern District of Georgia, Atlanta Division, came a month after he denied class certification of the lawsuit. The proposed class action was originally filed by plaintiff Lauren Betancourt in Cobb County State Court in September 2011. The case was then removed to the federal court in Atlanta as a putative class action. Ms. Betancourt and fellow plaintiff Angela Shepherd filed a third amended complaint against defendants Endo Pharmaceuticals Inc., Endo Pharmaceuticals Holdings Inc., Vintage Pharmaceuticals LLC and Patheon Inc. in May 2012. Ms. Betancourt and Ms. Shepherd alleged the defendants "designed, manufactured, packaged, sold, and distributed birth control pills" that were "defectively and dangerously designed, manufactured, packaged, sold, and distributed." In particular, the plaintiffs alleged the pills they purchased -- recalled in 2011 -- were packaged "such that select blisters found inside the pill box were rotated 180 degrees within the card, reversing the weekly tablet orientation." As a result of the packaging error, the daily regimen for the pills left women "without adequate contraception and at risk for unwanted pregnancy," the plaintiffs alleged. The parties engaged in mediation to try to settle the case, but were unsuccessful. Eventually, they engaged in discovery on the class issues, and the plaintiffs filed a motion for class certification. At the same time, the plaintiffs also moved before the U.S. Judicial Panel on Multidistrict Litigation for centralization of the case. However, the panel declined to centralize the cases because it found that "individualized facts -- particularly relating to whether each plaintiff received an improperly packaged Qualitest birth control product and whether she became pregnant as a result of taking the pills in the wrong order -- will predominate over the common factual issues alleged by plaintiffs." The defendants in September 2011 issued a nationwide recall of eight different oral contraceptive products packaged by Patheon for Qualitest, a company that distributes pills to distributors and pharmacies. The recall was initiated when a pharmacist in Iowa returned three blister packs of Cyclafem 7/7/7 because one of the packs had been packaged upside down, obscuring the lot number and expiration date. The Iowa package is the only known defective package received by a consumer. And of the 507,966 blister packs that were returned in the recall, only 53 were improperly packaged in the reverse order, according to the federal court. "Plaintiffs have not proffered evidence to show that the blister packs they bought and consumed were improperly manufactured -- or offered a plan for how potential class members could demonstrate that their products were defectively packaged," Judge Jones wrote in his Nov. 4 order denying certification. "Neither named Plaintiff here retained the packaging from their pills and they offer no information as to whether consumers generally retain this material." In addition to the two named plaintiffs, class counsel claimed to represent 117 women, 113 of whom became pregnant, 94 of whom carried the babies to term, 17 women who did not carry the babies to term and four who did not become pregnant. The plaintiffs proposed a nationwide class with four subclasses. The class would have included "all persons within the United States of America, who, within the applicable limitations period, purchased and/or ingested the defectively designed, manufactured, packaged, sold, and distributed birth control pills with the trademark names Cyclafem 1/35, Cyclafem 7/7/7, Emoquette, Gildess FE 1.5/30, Gildess FE 1/20, Orsythia, Previfem, and Tri-Previfem." Subclass A would have included "class members as defined above, those persons who ingested none of the birth control pills and/or ingested the birth control pills and experienced no significant physical symptoms." Subclass B would have included "class members as defined above, those persons who experienced significant physical symptoms. Subclass C would have included "class members as defined above, those persons who became pregnant, and the pregnancy was not carried to term." Subclass D would have included "class members as defined above, those persons who became pregnant; and, the pregnancy resulted in the live birth of a baby." The defendants argued the members of the proposed class and subclasses are not "ascertainable" because there is no way of knowing which consumers purchased or digested birth control pills that had been improperly packaged. Judge Jones agreed, noting that the court has "numerous concerns" with the manner in which the plaintiffs pled their class certification issues. "As an initial matter, Plaintiffs have not proffered any means of identifying class members. Defendants' records show only products sold to distributors and retailers, but not to individuals," the judge wrote. "Potential plaintiffs are unlikely to have retained sales receipts because of the small amount of money involved in the purchase. Thus, the only means of identifying purchasers would be through self-identification affidavits." But some courts have held that self-identification is improper. Some even have gone so far as to describe it as a potential due process issue, Judge Jones noted. "Even if self-identification were an acceptable means of determining the class, Plaintiffs have not proffered any plan for how to address issues of ascertainability beyond contending that Plaintiffs could submit affidavits that they purchased these birth control pills," he wrote. Moreover, the judge explained, reimbursement was handled on a pharmacist-by-pharmacist basis, depending on what state law required. Thus, membership for Subclass A would require inquiry to the pharmacist who provided the pills to the consumer to see whether that pharmacist allowed reimbursement requests and whether the individual consumer followed through on the process. "Even if this information could be obtained, it still would only identify consumers who had been sold 'recalled' products," Judge Jones wrote. "Significantly, the class definition, proposed by Plaintiffs' themselves, requires the consumer to be have been provided 'defective' pills. "Plaintiffs miss this important element of the proposed class when they assert that it only requires pharmacy records to identify potential members of the class." Six days after Judge Jones issued his order, Ms. Betancourt and Ms. Shepherd filed a motion to remand their lawsuit to Cobb County State Court. They argued in their Nov. 10 motion that since the federal court denied their motion for class certification, federal jurisdiction no longer exists. But Judge Jones, in his Dec. 7 order, pointed out that the case was originally filed in state court and removed to federal court on the basis of diversity jurisdiction under the Class Action Fairness Act. "Thus, this case falls into the 'species' of subject matter jurisdiction known as 'removal jurisdiction,'" the judge wrote. "In 'removal jurisdiction' cases, subsequent events do not divest the court of jurisdiction." Judge Jones pointed to the U.S. Supreme Court, which has noted that "removal cases raise forum-manipulation concerns that simply do not exist when it is the plaintiff who chooses the federal forum and then pleads away jurisdiction through amendment." Also, Judge Jones noted, the U.S. Court of Appeals for the Eleventh Circuit has held that in such removal jurisdiction cases an order denying class certification is a "post-removal event" that does not alter jurisdiction. "Thus, the Court finds that it retains jurisdiction over this matter despite the fact that the Court denied Plaintiffs' motion for class certification," the judge concluded. Judge Jones also denied as moot a motion for leave to file sur- reply. James Beck -- jmbeck@reedsmith.com -- an attorney at the Philadelphia office of Reed Smith who handles complex personal injury and product liability litigation, wrote in a recent blog post that the pleaded facts were "overreaching." Mr. Beck, in pointing to reports that a number of the plaintiffs have jumped ship after the federal court's denial of class certification and have become litigation "tourists" in Philadelphia, argued that the plaintiffs and their counsel were "blatantly abusing" Rule 23 of the Federal Rules of Civil Procedure, which governs the procedure and conduct of class action lawsuits brought in federal courts. EOG RESOURCES: "Chaumont" Action Seeks to Recover Overtime Pay -------------------------------------------------------------- Brandon Chaumont, on behalf of himself and all others similarly situated, Plaintiff, v. EOG Resources, Inc. (f/k/a Enron Oil And Gas Company), Oaks Personnel Services, Inc. (a/k/a Oaks Group) and Cielo Energy Consulting, LLC, Defendants, Case 5:15-cv-01003 (W.D. Tex., San Antonio Division), seeks to recover unpaid overtime wages and liquidated damages in violation of the Fair Labor Standards Act 29 U.S.C. 225(a). EOG Resources, Inc. is incorporated under the laws of the State of Delaware and has business in the State of Texas with principal office at 1111 Bagby Street, Sky Lobby 2, Houston, Texas 77002. Oaks Personnel Services, Inc. is incorporated under the laws of the State of Texas with principal office at 1511 Katy Freeway, Suite 605, Houston, Texas 77079. Cielo Energy Consulting, LLC is a limited liability company incorporated under the laws of the State of Texas with principal place of business is located at 1115 17th Street, Hondo, Texas 78861. The Plaintiff is represented by: Allen R. Vaught BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 Tel: (214) 521-3605 Fax: (214) 520-1181 Email: avaught@baronbudd.com EROS INTERNATIONAL: Faces "Abram" Suit Over Misleading Reports -------------------------------------------------------------- Mathew Abram, Individually and on behalf of all others similarly situated, Plaintiff, v. Eros International PLC, Rishika Lulla, David Maisel, Dilip Thakkar, Naresh Chandra, Sunil Lulla, Vijay Ahuja, Andrew Heffernan, Prem Parameswaran, Jyoti Deshpande, And Kishore Lulla, Defendants., Case No. 2:15-cv-08122-WHW-CLW (D.N.J., November 17, 2015), seeks compensatory damages and extraordinary equitable and/or injunctive relief in violation of Section 10(b) and 20(a) of the Securities Exchange Act and SEC Rule 10b-5. Eros allegedly feigned its reported finances that resulted in the drop in share prices upon disclosure. Eros produces, acquires, and distributes Indian language films in various formats worldwide. The Company is incorporated in Isle of Man and maintains its U.S. executive offices in Secaucus, New Jersey. Kishore Lulla is the Company's Executive Chairman. He served as director since 2005 and was the Company's Chief Executive Officer from June 2011 to May 2012. Jyoti Deshpande is the Company's CEO since June 2012. Prem Parameswaran is the Company's Chief Financial Officer and has served in that role since June, 2015. Andrew Heffernan is the former CFO of Eros, having served in that role from 2006 to June of 2015. Vijay Ahuja is the Company's Vice Chairman and has been a director since April 2006. Sunil Lulla, Naresh Chandra, Dilip Thakkar, David Maisel, Rishika Lulla, Rajeev Misra and Michael Kirkwood are directors of Eros. The Plaintiff is represented by: Mark C. Gardy, Esq. Jennifer Sarnelli, Esq. GARDY & NOTIS LLP 560 Sylvan Avenue, Suite 3085 Englewood Cliffs, NJ 07632 Tel: (201) 567-7377 Fax: (201) 567-7337 Email: mgardy@gardylaw.com jsarnelli@gardylaw.com - and - Jeffrey C. Block, Esq. Steven P. Harte, Esq. Bradley J. Vettraino, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Tel: (617) 398-5600 Fax: (617) 507-6020 Email: Jeff@blockesq.com Steven@blockesq.com Brad@blockesq.com EXPEDIA: Westchester County Sues Over Underpaid Hotel Taxes ----------------------------------------------------------- Mark Lungariello, writing for lohud, reports that travel-booking websites will be checking in for their day in court to answer claims they underpaid hotel taxes to Westchester County. The county Board of Legislators voted on Dec. 14 to hire an attorney to go after websites such as Expedia and Hotels.com that officials say purchased blocks of rooms at a discounted rate, sold them to consumers at a marked-up price but then paid taxes based on the lower rate. In 2013, Westchester joined a class-action suit filed by Nassau County against various travel-booking sites but an appeals court ruled in October that the language of Nassau's hotel-tax law blocked the class-action status. That left Westchester to pursue its own legal action as an intervening party or in a new lawsuit. The board voted to hire New York City law firm Zwerling, Schachter & Zwerling, the same firm that is handling the Nassau litigation. The county will pay 28.5 percent of any money recovered by the firm. "If for some reason we don't win, there's no cost to the county," Legislator Gordon Burrows, R-Yonkers, said at the legislative meeting on Dec. 14. The county's hotel tax, also called an occupancy tax or bed tax, tacks 3 percent onto all room bookings. Westchester took in $5.7 million from the tax in 2014. Rockland County, which made $1.2 million from the tax last year, had opted out of the class action. Putnam County doesn't have a hotel tax. Westchester has no estimated figure as to how much it thinks it has been underpaid. The companies have said the retail rate includes a surcharge and that taxing the difference would constitute a new tax on hotels. Several local governments in Westchester charge their own tax on hotel bookings in addition to the county tax. Rye Brook, Rye city, New Rochelle and White Plains have had their own taxes for several years. This year, the state Legislature approved 14 more communities to issue the tax in the region, including Yonkers, Greenburgh, Harrison and Port Chester. EXPERIAN INFORMATION: "Crump" Suit Alleges Data Breach ------------------------------------------------------ GWENDOLYN CRUMP, individually and on behalf of all others similarly situated, Plaintiff, vs. EXPERIAN INFORMATION SOLUTIONS, INC., an Ohio corporation; EXPERIAN HOLDINGS, INC.; EXPERIAN NORTH AMERICA, INC.; and DOES 1-50, inclusive, Defendants., Case No. 2:15-cv-08463 (C.D. Cal., October 29, 2015), seeks damages resulting from negligence in breach Of third-party beneficiary contract, implied contract, fiduciary duty and violations of the Fair Credit Reporting Act, California Unfair Competition law and California Consumer Records Act. Experian allegedly did not have adequate data security and lacked sufficient privacy practices to safeguard the personal information collected by T-Mobile regarding consumers who applied for telephone services and/or purchase financing with T-Mobile. Experian Holdings, Inc., Experian North America, Inc. and Experian Information Solutions, Inc. are based in 475 Anton Blvd., Costa Mesa, California 92626. The Plaintiff is represented by: Graham B. LippSmith, Esq. Jaclyn L. Anderson, Esq. KASDAN LIPPSMITH WEBER TURNER LLP 500 S. Grand Ave., Suite 1310 Los Angeles, CA 90071 Tel: (213) 254-4800 Fax: (213) 254-4801 Email: glippsmith@klwtlaw.com janderson@klwtlaw.com EXPERIAN INFORMATION: "Brazzle" Suit Hits Data Breach ----------------------------------------------------- ELLEEN BRAZZLE, APRIL LANEY and LAURA DELLO, individuals on behalf of themselves and all similarly situated persons and the general public, Plaintiffs, v. EXPERIAN HOLDINGS, INC., EXPERIAN INFORMATION SOLUTIONS, INC. and Does 1-25, inclusive, Defendants, Case No. 8:15-cv-1779 (C.D. Cal., October 31, 2015), seeks actual and statutory damages, restitution, and attorney's fees and costs resulting from the defendants' violation of California's Online Privacy Protection Act, Cal. Bus. & Prof. Code 22576. Experian allegedly did not have adequate data security and lacked sufficient privacy practices to safeguard the personal information collected by T-Mobile regarding consumers who applied for telephone services and/or purchase financing with T-Mobile. Experian Holdings, Inc. and Experian Information Solutions, Inc. are based in 475 Anton Blvd., Costa Mesa, California 92626. The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 W. Coast Hwy., Suite 350 Newport Beach, CA 92663 Tel: (949) 263-5992 Fax: (949) 209-1948 Email: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq., APC 111 W. Ocean Blvd., Suite 400 Long Beach, CA 90802 Tel: (562) 612-1708 Fax: (562) 394-9556 Email: ross.law@me.com FLOTEK INDUSTRIES: "Dong" Action Sues Over Share Price Drop ----------------------------------------------------------- Qingfeng Dong, individually and on behalf of all others similarly situated, Plaintiff, v. Flotek Industries, Inc., John W. Chisholm, H. Richard Walton and Robert M. Schmitz, Defendants, Case No. 4:15-cv-03417 (S.D. Tex., November 19, 2015), seeks damages in violation of the Section 20(a) of the Exchange Act. Plaintiff acquired Flotek securities at allegedly artificially inflated prices and lost substantially upon the revelation of alleged corrective disclosures. Flotek is a Delaware corporation with its principal place of business located at 10603 W. Sam Houston Parkway N., Suite 300, Houston, Texas. It is a global diversified, technology-driven company that develops and supplies oilfield products, services and equipment to the oil, gas and mining industries and high value compounds to companies that make cleaning products, cosmetics, food and beverages and other products that are sold in consumer and industrial markets. John W. Chisholm served as the Company's President, Chief Executive Officer and Chairman of the Board. H. Richard Walton has served as the Company's Executive Vice President and Chief Financial Officer. Robert M. Schmitz has served as the Company's Executive Vice President and Chief Financial Officer since May 29, 2015. The Plaintiff is represented by: Sammy Ford IV, Esq. ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & FRIEND 800 Commerce Street Houston, TX 77002 Tel: (713) 222-7211 Fax: (713) 225-0827 - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Tel: (212) 661-1100 Fax: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Tel: (312) 377-1181 Fax: (312) 377-1184 Email: pdahlstrom@pomlaw.com FORD MOTOR: Plaintiffs Use "Catalyst" Theory in Class Action ------------------------------------------------------------ Melanie S. Joo, Esq. -- mjoo@thompsoncoburn.com -- and Natalie Ikhlassi, Esq. -- nikhlassi@thompsoncoburn.com -- of Thompson Coburn LLP, in an article for Lexology, wrote that on November 2, 2015, a group of plaintiffs won a motion for attorneys' fees against Ford Motor Company, even though Ford's voluntary recall of vehicles mooted the plaintiffs' lawsuit. In MacDonald v. Ford Motor Company, the U.S. District Court for the Northern District of California detailed how such fees could be granted by applying a "catalyst" theory to California Civil Code Sec. 1021.5. Section 1021.5 and the Catalyst Theory Section 1021.5 provides an exception to the general rule that each party to a lawsuit must bear its own attorneys' fees. Under section 1021.5, a court can award attorneys' fees to a "successful party" when a lawsuit results in the enforcement of an important right affecting the public interest if (a) the enforcement creates a significant benefit for the general public or a large group of people; (b) the necessity and financial burden of enforcement make the award appropriate; and (c) the fees should not in the interest of justice be paid out of the plaintiff's recovery. A plaintiff does not have to win in the lawsuit to be a "successful party" under the catalyst theory. A party is "successful" if (a) the lawsuit was a substantial factor in motivating the defendants to provide the relief sought; (b) the lawsuit had merit and achieved its catalytic effect by threat of victory and not because it would be a nuisance or expensive, and (c) the plaintiffs attempted to settle before filing the lawsuit. Notably, the Court did not require direct evidence that the lawsuit prompted Ford to act. Rather, as the Court explained, "the chronology of events may raise an inference that the litigation was the catalyst for relief." Facts and the Court's Analysis On June 28, 2013, plaintiffs filed a lawsuit against Ford alleging violations of the California Legal Remedies Act (CLRA), Unfair Competition Law (UCL), Song-Beverly Act, and the Magnuson-Moss Warranty Act. Plaintiffs claimed certain Ford cars had defective cooling pumps that could cause an abrupt loss of power to the car. Ford moved to dismiss plaintiffs' complaint. On March 31, 2014, the Court granted in part and denied in part Ford's motion. The CLRA and UCL claims survived. On September 2, 2014, Ford informed the National Highway Traffic Safety Administration (NHTSA) of its intent to perform a voluntary safety recall. Ford presented evidence that its decision to issue the recall was independent of the lawsuit. In 2009, Ford's Early Warning Data Trend Specialist, Kenneth Lilly, determined that certain Ford cars had an above average stall rate. Then, in February 2014, Transport Canada (Canada's counterpart to the NHTSA) emailed Ford's Canadian subsidiary to report incidents of stalling Fords. Consequently, in April 2014, Lilly (again) reviewed the data. Unaware of the lawsuit, he then reported the issue to others at Ford. After further analysis, Ford's Technical Review Group recommended a safety recall; and Ford's Field Review Committee approved the recall on August 25, 2014. Nevertheless, the Court found that the "chronology of events . . . raise[d] an inference that the litigation was the catalyst for relief." The Court was not convinced that an email inquiry from Transport Canada inspired Lilly to report the issue when several complaints to NHTSA and a class action lawsuit did not. It also found Ford's actions were "just too much of a coincidence to be a coincidence," noting Lilly's report came only after Ford lost its motion to dismiss the CLRA and UCL claims. Additionally, the Court was troubled by the lack of evidence relating to the identity of the person who made the final decision to issue the recall and whether this person was aware of the plaintiffs' lawsuit. The Court is scheduled to hear the parties' arguments over the amount of the attorneys' fee award on January 14, 2016. Plaintiffs' papers, filed on December 2, 2015, indicate plaintiffs seek at least $800,000 in attorneys' fees. Key Issue for Automakers The Court's attention to the timing of events reinforces the need for automakers to have constant internal coordination on safety issues, recalls and product/defect litigation. With the automotive industry facing an unprecedented number of recalls, the implementation of such internal processes will help satisfy the organizational communication, transparency and accountability expected of automakers by federal regulators. The bright spot is that an effective internal process will also help automakers get ahead of a plaintiff who tries to claim he or she was a catalyst for a recall. GEORGIA: Fired IT Employee Takes Brunt of Blame for Data Breach --------------------------------------------------------------- Kristina Torres, writing for The Atlanta Journal-Constitution, reports that The IT employee fired over a massive data breach in the Georgia Secretary of State's Office took the brunt of the blame in a state report released on Dec. 14. That employee, longtime state programmer Gary Cooley, flouted office protocol and policy, according to the report, which was done jointly by the office and the state Department of Human Resources. "The data release issue internally was due to Mr. Cooley working outside of and circumventing established policies and procedures," the report concluded. It called for more training and clearer policies and management. In an exclusive interview with The Atlanta Journal-Constitution, Cooley acknowledged that he should have been more cautious in the chain of events leading up to the breach. But Cooley also outlined a more complicated series of missteps and miscommunication, both within the office and with PCC Technology Group, an outside vendor tasked with managing voter data for the state. The report's release came as a member of Georgia's congressional delegation called for federal authorities to investigate a breach of sensitive data affecting more than 6 million Peach State voters. GILLETTE CO: CCAF Seeks Review of Duracell Class Suit Settlement ---------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a Washington, D.C.-based public interest law firm is asking the U.S. Supreme Court to review a consumer fraud class action settlement, claiming plaintiffs lawyers "plainly received by far" the largest share of the benefits the settlement produced. The Center for Class Action Fairness, now a subunit of the Competitive Enterprise Institute, on Dec. 11 filed a petition for a writ of certiorari with the nation's highest court. Ted Frank, considered a leading critic of abusive class action settlements, is the objector in the challenge to the settlement in Poertner v. Gillette Co. Frank, in CCAF's petition to the Supreme Court, is asking justices to review an abusive part of this and other settlements -- the use of cy pres awards, or money that trial lawyers are given to hand out to nonprofits and universities of their choosing. CCAF argues the practice may make the lawyers look good to the groups receiving the money, but it has nothing to do with helping those who were allegedly harmed. "This case is an object lesson in how the class action mechanism can go wrong, and how doctrines adopted in other circuits would have set it right," Mr. Frank wrote. "Here, counsel settled a case about how Duracell deceptively marketed certain batteries by creating a huge class releasing the claims of 7.26 million plaintiffs nationwide in exchange for a relief package with (let's say) questionable value to that massive class. "The parties' counsel structured the settlement to provide class counsel more than $5.6 million -- a multiple of the 'lodestar' value of their hourly bills -- while all their clients together realized less than $345,000 in total and 99 percent of them got nothing at all." Mr. Frank argues that when class counsel requested requested their $5 million-plus fee, they estimated the settlement value at nearly $50 million based on the assumption that every class member would file a claim, even though they knew for certain that only a tiny fraction would. The parties also agreed that Duracell would give $6 million worth of batteries, retail value, to third-party charities of its own choosing over five years, and to an injunction governing only a line of batteries Duracell had already discontinued, Mr. Frank notes. "Class counsel plainly received by far the largest share of whatever benefits this settlement produced. And yet the Eleventh Circuit approved it because its precedent allows vague notions of the settlement's overall value to be included in assessing the share of pecuniary benefit that flows to the class as compared to its attorneys," he wrote. In 2014, the U.S. District Court for the Middle District of Florida entered an order and final judgment approving the settlement, resolving class action lawsuits that alleged Gillette and P&G engaged in deceptive and misleading advertising and marketing of Duracell Ultra Batteries. The plaintiffs claimed that the use of statements such as "Up to 30 Percent Longer in Toys* *vs. Ultra Digital" and "Our Longest Lasting" deceived consumers into purchasing Duracell Ultra Batteries. Gillette and P&G have denied all wrongdoing and continue to stand by their Duracell products and advertising, but agreed to provide refunds to consumers under the settlement. Under the deal, class counsel was awarded $5,680,000 in attorneys' fees, costs and expenses. The class, itself, received only $344,850 -- amounting to $3-12 per person. CCAF objected to the settlement; however, the U.S. Court of Appeals for the Eleventh Circuit went on to uphold the deal, on the grounds that its cy pres and injunctive relief provisions made it fair. CCAF notes, in filing its petition with the Supreme Court, that its previous objection led class counsel to admit that the vast majority of consumer fraud settlements leave more than 99 percent of class members uncompensated. "The basic problem is this: While class counsel and defendants have an incentive to bargain effectively over the size of a settlement, similar incentives do not govern their critical decisions about how to divvy it up -- including the portion allocated to counsel's own fees," Mr. Frank wrote in CCAF's petition. "The defendant cares only about the bottom line, and will take any deal that drives it down. Meanwhile, class counsel have an obvious incentive to seek the largest possible portion for themselves, and will accept bargains that are worse for the class if their share is sufficiently increased." He continued, "That is hugely problematic because our adversary system -- and the valuable role class actions play within it -- both depend upon unconflicted counsel's zealous advocacy for their clients, especially where (as here) those clients do not even get to choose their counsel for themselves." CCAF presented the Supreme Court with two questions: 1. Whether, or in what circumstances, a settlement that provides a disproportionate allocation of its pecuniary benefit to class counsel is "fair, reasonable, and adequate," under Federal Rule of Civil Procedure 23(e)(2); and 2. Whether, or in what circumstances, the use of a cy pres remedy in lieu of attempting further distributions to actual class members is "fair, reasonable, and adequate," under Federal Rule of Civil Procedure 23(e)(2). GLOBE SPECIALTY: Feb. 10 Fairness Hearing of $32.5MM Settlement --------------------------------------------------------------- The following statement is being issued by Prickett, Jones & Elliott, P.A.; Bernstein Litowitz Berger & Grossmann LLP; Kessler Topaz Meltzer & Check, LLP; and Robbins Geller Rudman & Dowd LLP regarding the In re Globe Specialty Metals, Inc., Stockholders Litigation, Consol. C.A. No. 10865-VCG (Del. Ch.). IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN RE GLOBE SPECIALTY METALS, INC. STOCKHOLDERS LITIGATION, Consol. C.A. No. 10865-VCG SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED SETTLEMENT, SETTLEMENT HEARING AND RIGHT TO APPEAR TO: All record and beneficial holders of common stock of Globe Specialty Metals, Inc. ("Globe") who hold such stock at any time during the period from February 22, 2015 through and including the date of the consummation of the Proposed Transaction and who were allegedly damaged as a result of Defendants' conduct alleged in the Consolidated Complaint filed in the consolidated stockholder class action lawsuit (the "Litigation") on June 15, 2015 (the "Settlement Class"). PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Delaware Court of Chancery Rules 23(a), 23(b)(1) and 23(b)(2) and an Order of the Delaware Court of Chancery (the "Court"), that the Litigation has been preliminarily certified as a non-opt out class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full printed Notice of Pendency of Class Action, Proposed Settlement, Settlement Hearing and Right to Appear (the "Notice"). YOU ARE ALSO HEREBY NOTIFIED that Plaintiffs have reached a proposed settlement of the Litigation (the "Settlement") on the terms and conditions set forth in the Stipulation and Agreement of Settlement entered into by and among Plaintiffs and Defendants on October 30, 2015 (the "Stipulation"). The proposed Settlement provides for a cash payment of $32.5 million (the "Cash Payment") and various corporate benefits for the benefit of the Settlement Class, in addition to certain supplemental information provided to the Globe board of directors and stockholders prior to the Settlement as a consequence of the Litigation. If approved, the Settlement will resolve all claims in the Litigation. A settlement hearing will be held on February 10, 2016 at 1:00 p.m. at the Court of Chancery of the State of Delaware, 34 The Circle, Georgetown, DE 19947, to determine, among other things, (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Litigation should be dismissed with prejudice and the Releases specified and described in the Stipulation (and in the Notice) should be granted; and (iii) whether Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE PENDING LITIGATION AND THE SETTLEMENT. If you have not yet received the Notice, you may obtain a copy of the Notice by contacting the Settlement Administrator at (855) 907- 3147. Copies of the Notice can also be downloaded from the settlement website, www.GlobeSpecialtyMetalsStockholdersLitigation.com If you hold shares of Globe common stock that are exchanged for shares of Ferroglobe PLC ("Ferroglobe") common stock in the proposed merger between Globe and Grupo FerroAtlantica, S.A.U. (the "Proposed Transaction"),1 which as of the date this notice was approved for publication, Defendants anticipated will close in the fourth quarter of 2015, you are eligible to receive a distribution from the Cash Payment. If you are eligible to receive a distribution, you do not have to submit a claim form in order to receive your share of the Settlement proceeds. If the Settlement is approved, the Proposed Transaction closes, and certain other conditions of the Settlement specified and described in the Stipulation (and in the Notice) are satisfied, your distribution from the Cash Payment will be paid to you directly in the same manner in which you receive your shares of Ferroglobe common stock in the Proposed Transaction. Any objections to the proposed Settlement and/or Lead Counsel's application for an award of attorneys' fees and reimbursement of litigation expenses, must be filed with the Register in Chancery and delivered to Representative Lead Counsel and Representative Defendants' Counsel such that they are received no later than January 29, 2016, in accordance with the instructions set forth in the Notice. PLEASE DO NOT CALL OR WRITE THE COURT OR THE OFFICE OF THE REGISTER IN CHANCERY REGARDING THIS NOTICE. Inquiries, other than requests for the Notice, may be made to the following Lead Counsel: Corinne Elise Amato, Esq. Prickett, Jones & Elliott, P.A. 1310 North King Street Wilmington, DE 19801 (302) 888-6500 Requests for the Notice should be made to: In Re Globe Specialty Metals, Inc. Stockholders Litigation c/o GCG PO Box 9349 Dublin, OH 43017-4249 (855) 907-3147 www.GlobeSpecialtyMetalsStockholdersLitigation.com DATED: December 15, 2015 BY ORDER OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE 1 Pursuant to the Proposed Transaction, Globe and FerroAtlantica will combine in an all-stock transaction under a new holding company named VeloNewco Limited, which will be renamed Ferroglobe PLC. Upon the closing of the Proposed Transaction, shares of Globe common stock will be exchanged for shares of Ferroglobe common stock. GOOGLE INC: Seeks Review of Pay-Per-Click Class Action Ruling ------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that Google will ask the U.S. Supreme Court to review a decision granting class-action status to pay-per-click marketers who are suing the company for placing their ads on "low quality" sites. The search company revealed its plans on Dec. 14, when it filed papers asking the 9th Circuit Court of Appeals to stay its recent decision allowing the marketers to proceed as a class. Google argues that it's entitled to a stay on the grounds that the Supreme Court is "reasonably likely" to side with the company. Google's battle with the marketers centers on the company's "parked domains" and "errors" programs, which often serve ads on sites that aren't fully developed, and on typo sites that people visit accidentally. Several pay-per-click marketers -- including law firm Pulaski & Middleman and retailer RK West -- alleged in a 2009 lawsuit that ads on Google's AdSense for Domains and AdSense for Errors programs result in fewer purchases than ads on Google's search results pages. The marketers, who are seeking restitution, also claimed that ads on parked domains could damage their reputations. In 2012, U.S. District Court Judge Edward Davila in the Northern District of California rejected the marketers' bid for class- action status. Judge Davila ruled that a class-action would be inappropriate on the grounds that calculating restitution would require individualized determinations. A three-judge panel of the 9th Circuit reversed that decision in September, ruling that the marketers had presented legitimate proposals for determining restitution on a class-wide basis. The appellate judges appeared to endorse at least one methodology -- the "Smart Pricing" approach, which sets the amount of restitution as "the difference between the amount the advertiser actually paid and the amount paid reduced by the Smart Pricing discount ratio." Google then unsuccessfully asked the appellate court to re-hear the case, reiterating the argument that restitution can't be determined on a class-wide basis. The company says that many advertisers -- including RK West -- "achieve higher conversion rates on parked domains and error pages than on the Smart Pricing benchmarks." The U.S. Chamber of Commerce backed Google's request. The business organization argued in a friend-of-the-court brief that the panel's decision "will only perpetuate abuses of class action litigation, unjustifiably raise the cost of doing business in a wide variety of industries, and burden the American economy." The 9th Circuit denied Google's request to reconsider the ruling. The court said in a one-page order that none of the judges on the 9th Circuit wanted to vote on Google's application. GVT: Brazil Commences False Advertising Class Action ---------------------------------------------------- Telecompaper reports that Brazil's State Prosecutor's Office has proposed a class action against telephony, internet and cable TV provider GVT following dozens of complaints made by consumers in the period from January 1, 2014 to September of this year, reports Correio do Estado. Prosecutor Eteocles Brito Mendonca Dias Junio has asked the court to grant a preliminary injunction requiring the company to fulfill the promises of packages sold, or get charged a daily fine of not less than BRL15.000. Any amounts paid would be allocated to the State Consumer Fund. According to a statement from the State Prosecutor's Office, GVT did not report in the pre-contractual stage the details of the packages and the main complaints are related to the number of channels actually offered, the internet speed below the one contracted, promotional discounts and their duration at odds with what had been previously established. JP MORGAN: Hotel Files Class Action Over Mobile Banking App ----------------------------------------------------------- Scott Holland, writing for Cook County Record.com, reports that potential loopholes in a mobile banking application which could allow depositors to cash the bank notes more than once have prompted a Lakeview hotel business to bring a class action against JP Morgan Chase. Plaintiff 1409 West Diversey Corp., which does business as the Bellwood Hotel, filed its putative class action against JP Morgan Chase in Cook County Circuit Court Dec. 9, claiming its mobile check capture service allows bank customers to deposit checks more than once, exposing the check guarantor to financial liability. The plaintiff stated "some current estimates of total duplicate or multiple check fraud exceed $864 million in the United States per year." The hotel, for example, related an account of an employee who in February 2014 was issued payroll checks totaling $473.98. The woman purportedly used the smartphone app to deposit the amounts into her personal account; her bank presented the checks to the hotel's bank, MB Financial, which deducted the total from 1409 West Diversey. However, the employee soon thereafter attempted to cash the paper checks at a local currency exchange, which "honored the checks, paid the presenter . . . and in turn presented them to MB Financial for payment." MB Financial marked the checks "refer to maker" and returned them to the currency exchange. When the corporation refused to honor the checks -- since the amount had already been deducted from its account -- the currency exchange filed a complaint against the hotel under the Illinois Commercial Code. "Because (the currency exchange) was a holder in due course and because 1409 West Diversey refused to pay two checks that were valid on their face," the suit stated, "1409 West Diversey was presumptively guilty of fraud and was legally at risk to honor the checks and pay treble damages, costs and attorneys' fees to (the currency exchange.)" In settling that case, the hotel "incurred more than $2,200 in costs, attorney's fees and damages," the complaint said. The hotel said it contacted JP Morgan Chase to complain about an absence of security procedures that would have prevented the double dip. "JP Morgan Chase, however, refused to accept responsibility for causing 1409 West Diversey to have to pay the check twice, in addition to the treble damages and costs and attorneys' fees associated with the suit brought by Clark-Diversey," the complaint said. In seeking class action, 1409 West Diversey said the class would be open to any person or entity that suffered a loss on a doubly- deposited check through JP Morgan Chase. The complaint asserted "JP Morgan Chase Bank had a duty, in connecting with its Mobile Check Capture service, to provide security sufficient to prevent its customers from cashing checks after those same checks had been deposited via Mobile Check Capture. JP Morgan Chase breached this duty." Further, the hotel said the trouble it experienced is "simply illustrative of the larger problem of inadequate security by banks that accept deposits by Mobile Deposit Capture. Duplicate or multiple check presentment is becoming epidemic. For example, in 2006, banks expected to receive five to seven duplicate items per million payments. Today, a few years later, that number has swollen to 40 to 100 duplicate items per million payments processed, an increase of more than 1,100 percent." In addition to class certification, 1409 West Diversey has demanded actual and punitive damages, as well as legal fees. The Bellwood Hotel operators are represented in the action by attorneys Edward A. Berman and Terrence Buehler, both of Chicago. KYB GROUP: "Adams" Action Hits Price-Fixing of Shock Absorbers -------------------------------------------------------------- Ifeoma Adams, Halley Ascher, Gregory Asken, Melissa Barron, Kimberly Bennett, David Bernstein, Ron Blau, Tenisha Burgos, Kent Busek, Jennifer Chase, Rita Cornish, Nathan Croom, Lori Curtis, Jessica Decastro, Alena Farrell, Jane Fitzgerald, Carroll Gibbs, Dori Gilels, Jason Grala, Ian Groves, Curtis Gunnerson, Paul Gustafson, Tom Halverson, Curtis Harr, Andrew Hedlund, Gary Arthur Herr, John Hollingsworth, Leonard Julian, Carol Ann Kashishian, Elizabeth Kaufman, Robert Klingler, Kelly Klosterman, James Marean, Michelle Mcginn, Rebecca Lynn Morrow, Edward T. Muscara, Stacey Nickell, Sophie O'keefe-Zelman, Roger Olson, William Picotte, Whitney Porter, Cindy Prince, Janne Rice, Robert Rice, Jr., Frances Gammell-Roach, Darrel Senior, Meetesh Shah, Darcy Sherman, Erica Shoaf, Arthur Stukey, Kathleen Tawney, Jane Taylor, Keith Uehara, Michael Wick and Phillip Young on behalf of themselves and all others similarly situated, Plaintiffs, v. Kayaba Industry Co., LTD D/B/A KYB Corporation And KYB Americas Corporation, Defendants, Case No. 2:15-cv-14080-RHC-RSW (E.D. Mich., November 20, 2015), seeks damages and injunctive relief pursuant to the Sherman Act, 15 U.S.C. 1, federal and state antitrust laws, unfair competition, consumer protection laws and the common law of unjust enrichment. Plaintiffs purchased or leased vehicles that included one or more shock absorbers as a component part and allegedly paid artificially inflated prices for shock absorbers manufactured, marketed and sold by the Defendants. Kayaba Industry Co. Ltd., d/b/a KYB Corporation is a Japanese corporation with its primary place of business in Tokyo, Japan. KYB is the world's largest manufacturer of shock absorbers. KYB Americas Corporation is an Indiana corporation with its principal place of business in Greenwood, Indiana. It is a wholly- owned subsidiary of Kayaba Industry Co. Ltd. It manufactures, markets and/or sells shock absorbers throughout the United States. The Plaintiff is represented by: E. Powell Miller, Esq. Devon P. Allard, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, MI 48307 Tel: (248) 841-2200 Fax: (248) 652-2852 Email: epm@millerlawpc.com dpa@millerlawpc.com - and - Hollis Salzman, Esq. Bernard Persky, Esq. William V. Reiss, Esq. ROBINS KAPLAN LLP 601 Lexington Avenue, Suite 3400 New York, NY 10022 Tel: (212) 980-7400 Fax: (212) 980-7499 Email: HSalzman@RobinsKaplan.com BPersky@RobinsKaplan.com WReiss@RobinsKaplan.com - and - Marc M. Seltzer, Esq. Steven G. Sklaver, Esq. SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Tel: (310) 789-3100 Fax: (310) 789-3150 Email: mseltzer@susmangodfrey.com ssklaver@susmangodfrey.com - and - Terrell W. Oxford, Esq. Omar Ochoa, Esq. SUSMAN GODFREY L.L.P. 901 Main Street, Suite 5100 Dallas, TX 75202 Tel: (214) 754-1900 Fax: (214)754-1933 Email: toxford@susmangodfrey.com oochoa@susmangodfrey.com - and - E. Lindsay Calkins, Esq. SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98104 Tel: (206) 516-3800 Fax: (206) 516-3883 Email: lcalkins@susmangodfrey.com - and - Steven N. Williams, Esq. Adam J. Zapala, Esq. Elizabeth Tran, Esq. COTCHETT, PITRE & McCARTHY, LLP San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Tel: (650) 697-6000 Fax: (650) 697-0577 Email: swilliams@cpmlegal.com azapala@cpmlegal.com etran@cpmlegal.com LAMI PRODUCTS: "Cikra" Action Seeks Overtime Pay ------------------------------------------------ Donald Cikra, Maryann Sonnett, Colleen Carlock, Gail Richmond, Caralee Brush, and Mary Hurtado, on behalf of themselves and all others similarly situated, Plaintiffs, v. LaMi Products LLC, seeking all available relief under the Fair Labor Standards Act., Case No. 2:15-cv-06166-WB (E.D.Pa., October 17 20, 2015), seeks all available relief under the Fair Labor Standards Act, 29 U.S.C. 201, et seq. Plaintiffs work as merchandisers for the Defendant and were allegedly not paid overtime. LaMi Products LLC is a duly registered company in Pennsylvania with headquarters in Huntington Valley. They employ over 600 merchandisers who maintain product displays throughout the country. The Plaintiff is represented by: Andrew Santillo, Esq. R. Peter Winebrake, Esq. Mark Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Rd #211 Dresher, PA 19025 Tel: (215) 884-2491 Email: mgottesfeld@winebrakelaw.com - and - Harold L. Lichten, Esq. Peter M. Delano, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St #2000 Boston, MA 02114 Tel: (617) 994-5800 Email: hlichten@llrlaw.com pdelano@llrlaw.com LOBLAW COMPANIES: Recalls Ginger Cookie Chips Due to Peanuts ------------------------------------------------------------ Starting date: November 5, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Peanut Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Loblaw Companies Limited Distribution: National Extent of the product distribution: Retail CFIA reference number: 10158 Loblaw Companies Limited (Loblaw) is recalling President's Choice brand Ginger Cookie Chips from the marketplace because it may contain peanut which is not declared on the label. People with an allergy to peanut should not consume the recalled product described below. The following product has been sold in the following Loblaw banner stores: Ontario: Fortinos(R), Loblaws(R), Real Canadian Superstore(R), Valu-Mart(R), Your Independent Grocer(R), Zehrs(R) and affiliated independent stores Atlantic: Atlantic Superstore(R), Dominion(R), Your Independent Grocer(R) and affiliated independent stores Quebec: Loblaws(R), Maxi(R), Maxi & Cie(R), Provigo(R) and affiliated independent stores West: Extra Foods(R), Real Canadian Superstore(R), Your Independent Grocer(R), Wholesale Club(R) and affiliated independent stores Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. If you have an allergy to peanut, do not consume the recalled product as it may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of this product. This recall was triggered by the company. The Canadian Food Inspection Agency (CFIA) is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand name Common name Size Code(s) on UPC ---------- ----------- ---- product --- ---------- President's Ginger Cookie 170 g 2016 AU 02 0 60383- Choice Chips 16176 7 Pictures of the Recalled Products available at: http://is.gd/WLclcR LOBLAW COMPANIES: Recalls Life at Home(R) Multicolour LED Lights ---------------------------------------------------------------- Starting date: November 12, 2015 Posting date: November 12, 2015 Type of communication: Consumer Product Recall Subcategory: Household Items, Tools and Electrical Products Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-55802 This recall involves Life at Home(R) Indoor M5 Multicolour LED Set of 70 seasonal lights. The affected product has a length of approximately 7.21 meters (23.7 feet), has multi-coloured bulbs and a green wire. The recalled product has model number HPCAL70CX/2S, manufacturing date 06/2015, CSA file number 241989 and UPC 058703379152. Consumers are able to locate the model number, manufacturing date and CSA file number on the white tag affixed to the wire and the UPC on the back of the product's packaging. Health Canada's sampling and evaluation program has determined that the recalled seasonal lights may pose an overheating and fire hazard. Neither Health Canada nor Loblaw Companies Ltd. has received any reports of consumer incidents or injuries related to the use of these products. Approximately 61 units of the seasonal lights were sold at Loblaw Companies Ltd banner stores across Canada. The recalled products were sold from September 2015 to October 2015. Manufactured in China. Importer: Loblaw Companies Ltd. Brampton CANADA Manufacturer: Taizhou Hongpeng Colour Lanterns Co. Ltd. Zhejiang CHINA Consumers should immediately stop using the recalled seasonal lights and return it to any Loblaw Companies Ltd. banner store for a full refund. Pictures of the Recalled Products available at: http://is.gd/0OF5zG MAHINDRA USA: Recalls Diesel Tractors Due to Fire Hazard -------------------------------------------------------- Starting date: November 12, 2015 Posting date: November 12, 2015 Type of communication: Consumer Product Recall Subcategory: Outdoor Living Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-55810 This recall involves Mahindra eMax compact diesel tractors designed for residential use. They are red with a black seat. The model number and "Mahindra" are in white lettering on the each side of the hood. Serial numbers for the recalled models are located on the right side of the frame above the front axle. The model and Serial numbers are as follows: Recalled Model Serial Numbers -------------- -------------- eMax 22G 22GRH00001-22GRH00596 eMax 22H 22HRH00001-22HRH00710 eMax 25H 25HRH00001-25HRH00816 The affected unit's fuel lines can break or leak, posing a fire hazard. The firm received 61 reports of cracks in the fuel tank pipe. Neither Health Canada or the US CPSC has received any reports of injuries related to the use of these compact diesel tractors. Approximately 95 of the recalled tractors were sold in Canada. Approximately 2,000 were distributed in the United States. The recalled products were sold from March 2014 through September 2015 in Canada and the United States. Manufactured in Korea. Manufacturer: Tong Yang Mulsan Co., Ltd TYM KOREA, DEMOCRATIC PEOPLE'S REPUBLIC OF' Distributor: Mahindra USA, Inc., Houston Texas UNITED STATES Pictures of the Recalled Products available at: http://is.gd/8mA20g MANNARICH FOOD: Recalls Fish and Seafood Products Due to Egg ------------------------------------------------------------ Starting date: November 6, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Egg Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Mannarich Food Inc. Distribution: Alberta, British Columbia, Newfoundland and Labrador, Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 10150 Mannarich Food Inc. is recalling Mannarich Food, Ocean Chinese Food Products and Parker Lee brand fish and seafood products from the marketplace because they contain egg which is not declared on the label. People with an allergy to eggs should not consume the recalled products described below. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. If you have an allergy to eggs, do not consume the recalled products as they may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of these products. This recall was triggered by the Canadian Food Inspection Agency's (CFIA) inspection activities. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand name Common Size Code(s) on UPC ---------- name --- product --- ------ ---------- Mannarich Shrimp 180 g All codes where 0 68636- Food Inc. Flavoured egg is not 02010 6 Fish Balls declared on the label Mannarich Fried 160 g All codes where 0 68636- Food Inc. Shrimp egg is not 02020 5 Flavoured declared on the Fish Balls label Mannarich Fish Balls 180 g All codes where 0 68636- Food Inc. with Dace egg is not 03010 5 declared on the label Mannarich Taste of 400 g All codes where 0 68636- Food Inc. China Hot egg is not 31101 3 Pot declared on the Assortment label Mannarich Fish Balls 180 g All codes where 6 77825- Food Inc. egg is not 40015 7 declared on the label Ocean Fish Balls 270 g All codes where 6 77825- Chinese egg is not 40115 4 Food declared on the Products label Ocean Cuttlefish 180 g All codes where 6 77825- Chinese Ball egg is not 40022 5 Food declared on the Products label Ocean Cuttlefish 270 g All codes where 6 77825- Chinese Ball egg is not 40122 2 Food declared on the Products label Ocean Fat Choy 270 g All codes where 6 77825- Chinese Fish Ball egg is not 40019 5 Food declared on the Products label Ocean Fried 240 g All codes where 6 77825- Chinese Shrimp egg is not 40121 5 Food Flavoured declared on the Products Fish Balls label Ocean Shrimp Ball 180 g All codes where 6 77825- Chinese egg is not 40020 1 Food declared on the Products label Ocean Fried 160 g All codes where 6 77825- Chinese Shrimp egg is not 40021 8 Food Balls declared on the Products label Parker Lee Sole Filet 500 g All codes where 0 68636- in Black egg is not 20021 8 Bean Sauce declared on the with Rice label Parker Lee Shrimp 375 g All codes where 0 68636- Wonton egg is not 01196 8 Soup Bowl declared on the label Parker Lee Teriyaki 375 g All codes where 0 68636- Fish Filet egg is not 02014 4 Rice Bowl declared on the label Pictures of the Recalled Products available at: http://is.gd/NR443O MASERATI: Recalls 2016 Models Due to Injury Risk ------------------------------------------------ Starting date: November 6, 2015 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Structure Units affected: 3 Source of recall: Transport Canada Identification number: 2015530TC ID number: 2015530 Manufacturer recall number: 292 On certain vehicles, passenger side door latch components may not have been heat treated at time of manufacture. This could decrease the door latch strength and potentially allow the door to open when subjected to crash forces. This could increase the risk of injury and/or damage to property. Correction: dealers will replace the passenger door latch assembly. Make Model Model year(s) affected ---- ----- ---------------------- MASERATI GRANTURISMO 2016 MASERATI GRANTURISMO 2016 CONVERTIBLE MEDIVANCE INC: Recalls Temperature Management Systems ----------------------------------------------------- Starting date: November 9, 2015 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type III Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-55986 Bard has identified Arctic Sun 5000 Temperature Management Systems with specific serial numbers that may contain electronic components that lead to a premature drainage of the internal control panel coin cell battery responsible for maintaining the system clock and static random access memory (SRAM). This premature coin cell battery drainage could render your device unresponsive upon system startup. Affected products: ARCTIC SUN 5000 TEMP MANAGEMENT SYSTEM Lot or serial number: More than 10 numbers, contact manufacturer. Model or catalog number: 5000-00-00 Manufacturer: Medivance, Inc. 321 South Taylor avenue, Suite 200 Louisville 80027 Colorado UNITED STATES MEYER'S UNION: Faces Class Action Over No Tipping Policy -------------------------------------------------------- Harriet Alexander, writing for The Telegraph, reports that one of New York's most prominent restaurateurs, who shocked the culinary world when he banned tipping at his flagship restaurant, is being sued by two former employees over his tip policy. Danny Meyer, whose 13 restaurants across the city range from Michelin-starred fine dining establishments to casual cafes, ignited a storm of controversy with his ban on tips. He argued that tipping was unfair because it meant waiters were receiving a disproportionate sum, and kitchen staff missing out. At the end of November he ended tipping at The Modern, his restaurant inside the MoMA art gallery by Central Park, and raised his prices instead to give all staff a fairer wage. By the end of 2016 all of his restaurants will have a "no tipping" policy. Eyebrows were raised, but the policy is spreading. Eleven Madison Avenue, described as offering one of New York's finest tasting menus, followed suit shortly after. On Dec. 14, a celebrated Basque restaurant in the East Village, Huertas, became the latest to announce that they too were banning tipping. But on Dec. 11 two former employees of Gramercy Tavern begun legal action against Mr. Meyer's Union Square Hospitality Group over his current policy on tipping -- which will be replaced next year under the new scheme. Uzzol Siddiky was employed as a "busser" -- clearing plates from the tables -- for five months this year, from July to November. Kawsar Maruf did the same job, from June 2010 to the end of December 2012. Both men are demanding that they be paid damages for a failure to pay them the correct wage. They argue that they were paid a lower minimum wage of $5 an hour, the amount given to staff who receive tips, when they should have been paid $8.75 -- the amount for those who do not benefit from gratuities. They say that the fact they had to share their tips with other staff, including glass polishers and wine servers, meant that the higher minimum wage should have applied. "New York restaurant mogul Danny Meyer, the celebrity chef who owns and operates the Michelin star-rated Gramercy Tavern, is the so-called 'poster child of all that is good about American food today,'" said Jeanne Christensen, lawyer for the pair, in court documents. "Unfortunately for service employees, all that is good about American food today appears to include the practice of nickel and diming employees out of wages and tips they are lawfully entitled to receive." Ms. Christensen accused Mr. Meyer's group of "an attempt at 'robbing Peter to pay Paul'; that is, to unlawfully augment the wages Defendants pay to tip-ineligible employees with the tips earned by Plaintiffs and other service staff through their hard work and dedicated service to customers." Messrs. Siddiky and Maruf said they were taking the case as a class-action suit, on behalf of over 100 other employees in a similar position. But Mr. Meyer's group insist that they always treat their employees fairly. "Union Square Hospitality Group has systems in place to comply with all employment regulations," said Kate Lindquist, spokesman for the restaurant company. "We have always cared deeply about cultivating a strong employee- first culture, and we will review this matter thoroughly." MILLER BREWING: Faces Class Action Over Misleading Beer Label ------------------------------------------------------------- Sarah Begley, writing for Daily News, reports that a New York man has sued Miller Brewing Co. over Foster's beer not being brewed in Australia. The lawsuit, a proposed class action filed in Brooklyn Federal Court, contends that advertising misled Leif Nelson into purchasing the beer because it was portrayed as being brewed in Australia, when in fact he contends the brewing operation moved to Texas in 2011, the New York Daily News reports. Mr. Nelson's suit reportedly says he would continue to purchase the beer if it were accurately labeled. Mr. Nelson declined to comment and calls from the Daily News to Miller were not immediately returned. NEINSTEIN & ASSOCIATES: Ontario Court Certifies Class Action ------------------------------------------------------------ Julius Melnitzer, writing for Financial Post, reports that the Divisional Court has certified a class action authorizing up to 6,000 clients of Toronto personal injury lawyer Gary Neinstein and his law firm, Neinstein & Associates, to participate in a lawsuit alleging that the firm entered into improper fee agreements, took unauthorized fees, failed to obtain required court approval and charged illegal interest rates on disbursements. None of the allegations have been proven in court. But Kirk Baert of Koskie Minsky, a veteran of the plaintiffs' class action bar, calls the decision a "stunning reversal" of the original ruling by Justice Paul Perell of the Ontario Superior Court of Justice, who refused to certify the case. Contingency fees are legal in Ontario. But contingency agreements may not give lawyers both a percentage of the client's award and a portion of the costs awarded to the client, unless judicial approval is obtained. If the firm does not obtain the required approval, the Solicitors Act, which governs Ontario lawyers' conduct, states that the agreement is "unenforceable." The Neinstein firm worked almost exclusively on contingency fees. According to the Divisional Court, the "norm" for Neinstein was to include the recovery of costs plus a percentage of the damages as fees for payment for its services. It was "not the practice" of the firm to obtain court approval for such agreements, nor did the agreement include a required provision that the clients was entitled to any costs recovered unless a judge ordered otherwise. In 2010, Cassie Hodge, the representative plaintiff in the class action, signed such a contingency agreement. She eventually recovered an "all-in" settlement of $150,000 for damages sustained in a car accident. Mr. Neinstein advised her that the $150,000 consisted of $100,000 for damages and $50,000 for costs. "Gary Neinstein admitted under cross-examination that he arbitrarily made this division himself," the Divisional Court noted. Ms. Hodge sought certification of a class action declaring that the firm's contingency agreements were unenforceable. Justice Perell dismissed the motion on the basis that the remedies available to clients under Ontario's Solicitors Act did not include the bringing of a class actions seeking a declaration of unenforceability. He also concluded that the "common issues" criteria was not met and that the class action was not the "preferable" way of proceeding. The Divisional Court disagreed. "The motion judge erred in principle in failing to find a triable cause of action with respect to the clients' right to apply for a declaration that the contingency fee arrangements at issue are unenforceable," a unanimous Divisional Court concluded. "Flowing from the error, the motion judge failed to recognize viable common issues and reached a wrong conclusion with respect to preferable procedure. In [the court's opinion], all of the criteria for certification have been met." NESTLE INDIA: Supreme Court Stays Maggi Class Action Proceedings ---------------------------------------------------------------- Meenakshi Verma Ambwani, writing for Hindu Business Line, reports that the Supreme Court on Dec. 16 put a stay on the ongoing proceedings before the National Consumer Dispute Redressal Commission (NCDRC) in the class action against Nestle India concerning Maggi Noodles. NCDRC was hearing the class action suit filed by the Centre against Nestle India seeking damages worth Rs. 640 crore. It also directed that the fresh tests that NCDRC had asked to be done at a Chennai lab, will now be conducted at Mysuru-based Central Food Technological Research Institute. "Reports of the 13 samples already sent to CFTRI Mysore and the additional 16 samples, which are being sent to CFTRI now, are to be forwarded to the Supreme Court instead of NCDRC," Nestle said, adding that it is awaiting the formal order. The company said that in recent months it had done over 3,500 tests on 200 million packs at national and international accredited labs for testing and that all reports are clear. "100% of the samples tested show Maggi Noodles is safe for consumption and indicate lead to be much below the limit stipulated by the regulatory authorities. This was also validated by the reports from three accredited laboratories mandated by the Hon'ble Bombay High Court to test the samples," the company's statement added. NEWMAR: Recalls Multiple Vehicle Models Due to Injury Risk ---------------------------------------------------------- Starting date: November 10, 2015 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Accessories Units affected: 24 Source of recall: Transport Canada Identification number: 2015534TC ID number: 2015534 On certain vehicles, the engine cooling fan may separate from the drive without warning. If the engine area is open and the cooling fan is operating and detaches, it could potentially cause personal injury. Correction: Dealers will replace the engine fan drive. Make Model Model year(s) affected ---- ----- ---------------------- NEWMAR MOUNTAIN AIRE 2007 CLASS A MOTORHOME NEWMAR ESSEX CLASS A 2006, 2007 MOTORHOME NEWMAR: Recalls Canyon Star Class A Motorhome 2014 Models --------------------------------------------------------- Starting date: November 12, 2015 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Accessories Units affected: 1 Source of recall: Transport Canada Identification number: 2015537TC ID number: 2015537 On certain motorhomes, a defect in the on-demand hot water heater, manufactured by Atwood Mobile Products, could result in a risk of scalding injury due to excessive hot water temperature. Correction: Owners will be provided with instructions from Atwood Mobile Products on how and where to have repairs completed. Make Model Model year(s) affected ---- ----- ---------------------- NEWMAR CANYON STAR 2014 CLASS A MOTORHOME NEWMAR: Recalls King Aire Class A Motorhome 2016 Models ------------------------------------------------------- Starting date: November 12, 2015 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Accessories Units affected: 2 Source of recall: Transport Canada Identification number: 2015536TC ID number: 2015536 Certain motorhomes may not have been manufactured with an egress window on the opposite side of the entry door. A lack of emergency exits could increase the risk of injury under certain circumstances. Correction: Dealers will install an egress window at the driver side dinette table. Make Model Model year(s) affected ---- ----- ---------------------- NEWMAR KING AIRE CLASS 2016 A MOTORHOME OKLAHOMA CITY, OK: Cop's Sexual Assault Victims File Class Action ----------------------------------------------------------------- Sean Murphy, writing for the Associated Press, reports that attorneys for several women who accused a former Oklahoma City police officer of sexual assault asked a federal judge on Dec. 14 to allow a civil case to move forward now that a jury found him guilty of rape and other charges. Attorneys for the women filed an application to lift the stay after the recent verdict finding Daniel Holtzclaw guilty of 18 of 36 charges alleging he raped and sexually victimized women he encountered while patrolling low-income neighborhoods on the city's northeast side. The jury recommended a total of 263 years in prison. Formal sentencing is scheduled for January. Seven of the 13 women who accused Mr. Holtzclaw in the criminal case are plaintiffs in the lawsuit that has been transferred from Oklahoma County to U.S. District Court in Oklahoma City. The defendants are Holtzclaw and the city of Oklahoma City. The women, who are seeking class-action status, allege the city was negligent in its hiring and supervision of Mr. Holtzclaw and should have known about Mr. Holtzclaw's dangerous conduct. The suit claims Mr. Holtzclaw's actions violated the women's civil rights and seeks damages of more than $75,000. A telephone message left with the women's lead attorney, Mark Hammons, was not immediately returned. The city opposes a class-action suit and denies it failed to properly supervise or investigate Mr. Holtzclaw. Attorneys for the city also note several of the women failed to properly file a tort claim against the city. Oklahoma City attorney Richard Smith in the city's litigation unit said police detectives aggressively pursued the case against Mr. Holtzclaw as soon as he was identified as the suspect in the assaults. Most of the victims in Mr. Holtzclaw's case never came forward until police identified him as the assailant and arrested him. POSTURE PRO: Faces "Carradine" Suit Over Unsolicited Faxes ---------------------------------------------------------- Carradine Chiropractic Center, Inc., individually, and as the representatives of a class of similarly-situated persons, Plaintiffs, v. Posture Pro, Inc., and John Does 1-10, Defendants, Case No. 4:15-cv-02378-BYP (N.D. Ohio, Eastern Division, November 20, 2015), seeks statutory damages under the Telephone Consumer Protection Act, modified and renamed the Junk Fax Prevention Act codified at 47 U.S.C. 227; and seeks to enjoin Posture Pro from continuing to send unsolicited faxes. Carradine Chiropractic is an Ohio corporation, and it operates a chiropractic clinic located at 8286 South Ave, Building B in Boardman, OH 44512. Posture Pro, Inc. is a California corporation with its principal place of business is located at 18584 Main Street in Huntington Beach, CA 92647. Posture Pro sells medical equipment such as back and neck pain relieving products. The Plaintiff is represented by: George D. Jonson, Esq. Matthew E. Stubbs, Esq. MONTGOMERY, RENNIE & JONSON 36 E. Seventh Street, Suite 2100 Cincinnati, OH 45202 Tel: (513) 241-4722 Fax: (513) 241-8775 Email: gjonson@mrjlaw.com mstubbs@mrjlaw.com RENO, NV: Awaits Ruling on Class Action v. Housing Authority ------------------------------------------------------------ The Associated Press reports that a federal judge who once was legal counsel for a public housing authority in Las Vegas is sending mixed signals about whether he'll grant class-action status for a lawsuit accusing the Reno Housing Authority of breaking U.S. labor laws. The suit claims the Reno authority illegally hires assistant apartment managers at public housing units for less than minimum wage with no overtime, in exchange for free rent. The authority's lawyer denied the allegations during a hearing on Dec. 10 before U.S. District Judge Robert C. Jones. Judge Jones says he represented the Clark County authority for a decade. He began the hearing by warning that plaintiffs face an "uphill battle" to secure class-action status, but later appeared to soften his stance. He said he planned to rule on that question within 10 days. RUTH'S HOSPITALITY: "Ware" Action Seeks Overtime Pay ---------------------------------------------------- Alice Ware, and on behalf of all those similarly situated, Plaintiff, v. Ruth's Hospitality Group, Inc. d/b/a Ruth's Chris Steakhouse, Defendant. Case No. 9:15-cv-81510-KAM (S.D. Fla. Palm Beach Division, October 30, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act, 29 U.S.C. 207 and 216. The Plaintiff allegedly did not receive proper overtime compensation for work performed over 40 hours in a workweek. Ruth's Hospitality Group, Inc., is based in 1030 West Canton Ave., Suite 100, Winter Park, FL 32789 and does business as Ruth's Chris Steakhouse. The Plaintiff is represented by: R. Edward Rosenberg, Esq MORGADO, P.A. 382 NE 191st Street #84164 Miami, Florida 33179 Tel: (855) 8999121 Ext. 102 Fax: (855) 4999191 Email: rer@morgado.us SHORB GROUP: "Castro" Action Seeks to Recover Wages and OT ---------------------------------------------------------- Rene Castro, Justiniano G. Mendez and Angel Miner, Plaintiffs, on behalf of themselves and all similarly situated individuals, v. JOHN SHORB LANDSCAPING, INC., JOHN SHORB LANDSCAPING II, LLC, SHORB TRUCKING, LLC, SHORB PROPERTIES II, LLC, JOHN W. SHORB, Case No. 1:15-cv-02011-APM (D.D.C., October 17, 2015), seeks to recover damages over the Defendants' alleged failure to pay all wages due, including overtime, in violation of the Fair Labor Standards Act, 29 U.S.C. 201 et seq., District of Columbia Minimum Wage Act, D.C. Code, 32-1001 et seq., District of Columbia Wage Payment and Collection Law, D.C. Code 32-1301 et seq., Maryland Wage and Hour Law, Md. Code, Lab. & Empl. Art. 3-401 et seq. and the Maryland Wage Payment and Collection Law, Md. Code, Lab. & Empl. Art., 3-501 et seq. Plaintiffs allegedly were not paid one and one-half times their regular hourly rate for hours worked in excess of 40 in any one workweek. John Shorb Landscaping, Inc. is a Maryland corporation with principal office located at 10518 Warfield Street, Kensington, MD 20895. John Shorb, Inc. is registered as a foreign corporation within the District of Columbia. John Shorb, Inc. has four active licenses to operate and apply pesticides within the District of Columbia. John Shorb Landscaping II, Limited Liability Company is a District of Columbia limited liability company. Its principal office is located at 1122 Bladensburg Road NE, Washington, DC 20002. Shorb Trucking, LLC is a Maryland limited liability company located at 10518 Warfield Street, Kensington, MD 20895. Shorb Trucking owns and maintains the work vehicles used by Defendants. Shorb Properties II, LLC is a Maryland limited liability company with principal office located at 10518 Warfield Street Kensington, MD 20895. The Plaintiff is represented by: Justin Zelikovitz, Esq. LAW OFFICE OF JUSTIN ZELIKOVITZ, PLLC 519 H Street NW Washington, DC 20001 Tel: (202) 803-6081 Fax: (202) 683-6102 Email: justin@dcwagelaw.com SOUTHERN RESPONSE: Policyholders Attend Class Action Hearing ------------------------------------------------------------ Grant Cameron, the lawyer acting for the Southern Response policyholders bringing a class action, confirmed on Dec. 16 that the group would be appearing before the High Court in Christchurch at 9:00 a.m. on December 16. "Our group of policyholders are seeking redress from the court for alleged breaches of contract by the insurer" he said. "The hearing tomorrow is a preliminary one designed to settle the question of whether the case can proceed through the courts as a representative action. Southern Response has maintained that the policyholders cannot bring this sort of proceeding because the damage in each case is different, as is the repair strategy. However, we believe that is to miss the point," said Mr. Cameron. "There is no difficulty in the parties agreeing what the damage is and how it might be fixed in particular cases, but had this been properly progressed by the insurer to date, most policyholders would have had their claims settled a long time ago. The issue is not about 'different damage' but instead, is all about how the insurer chooses to interpret the policy or discharge its obligations" said Mr. Cameron. "Like the 46 policyholders presently in the action and nearly 3000 other unsettled claimants, effective progress will require the court to decide how the policy is to be interpreted in important respects. Therefore, although the case is a little different to other class actions, the group is very optimistic that the court will agreed that the case should proceed as a representative action" "Class action members believe the insurer is happy to take such technical points in the hope that a court decision that the case not proceed as a representative action would mean policyholders could not bring any form of litigation before the courts. Put simply, this issue is all about access to the courts and the ability of the man in the street to obtain remedies from the court. In the present circumstances, virtually no policyholders can afford to 'go it alone' and so the only way forward is for policyholders to join together and proceed with the support of a litigation funder", he said. Francis Cooke QC will advance the policyholder's case before Justice Mander, with Mike O'Brien QC appearing for the insurer. SPECTRUM PHARMACEUTICALS: TheGrantLawFirm Withdraws Class Action ---------------------------------------------------------------- On November 17, 2015, TheGrantLawFirm, PLLC, disseminated a notice to shareholders under the PSLRA, announcing that it filed a class action complaint on behalf of all securities holders who purchased securities of Spectrum Pharmaceuticals, Inc. during the period between May 7, 2015 until October 23, 2015, inclusive. Since the publication of the PSLRA notice, TheGrantLawFirm, PPLC has withdrawn the complaint. SUPERIOR PERFORMANCE: "Allen" Action Seeks to Recover OT -------------------------------------------------------- Gary Allen, individually and on behalf of all others similarly situated, v. Superior Performance, Inc., Defendant., Case No. 2:15-cv-00469 (S.D. Tex., Corpus Christi Division, October 17, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act, 29 U.S.C. 216(b). Plaintiff allegedly never received overtime pay for work performed in excess of 40 hours in a week. Superior Performance, Inc. is based in 660 W. FM 2410, Harker Heights, Texas 76548 and is into inspection and operation of drilling related equipment for oil and gas service companies. The Plaintiff is represented by: Michael A. Josephson, Esq. Lindsay R. Itkin, Esq. Andrew W. Dunlap, Esq. Jessica M. Bresler, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 Bissonnet Houston, TX 77005 Tel: (713) 751-0025 Fax: (713) 751-0030 Email: mjosephson@fibichlaw.com litkin@fibichlaw.com adunlap@fibichlaw.com jbresler@fibichlaw.com - and - Richard J. Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com SWAGWAY LLC: Faces Class Action Over Defective Scooter ------------------------------------------------------ Daniel Bates, writing for for Dailymail.Com, reports that leading hoverboard-maker -- Swagway -- has been slapped with a class action lawsuit, Daily Mail online can exclusively reveal. Michael Brown is suing because the device that he bought as a Hanukkah present for his children burst into flames inside his home. In court documents obtained by Daily Mail Online -- Mr. Brown is asking for "punitive" damages that could run to millions of dollars and accuses Swagway hoverboards of being defective and "not fit for purpose". The lawsuit also claims the company was "misleading and deceptive" when it fraudulently claimed that the product was safe. The lawsuit was filed after Amazon, Target and major airlines banned Swagway and other brands of hoverboards over safety concerns. Hoverboards, or self-guiding Segway-like machines, are currently the most in demand present but at least eleven devices in ten states have caught fire. Firemen across the country are warning consumers not to overcharge them as their batteries may turn into a fireball. The Consumer Product Safety Commission (CPSC) and US Customs and Borders are also carrying out separate investigations into hoverboards and their supply chains. The lawsuit names Swagway LLC, which is based in South Bend Indiana, and Modell's Sporting Goods, a New York-based chain store where Brown bought his hoverboard. It says: "The Swagway Hoverboard is unsafe for its intended use inasmuch as it is defective and presents a material likelihood that it will self-combust or short-circuit while charging, leading to fire and/other damage. "In marketing and selling Swagway Hoverboards on its website, Swagway did not disclose the defects in the product that could cause it to be self-combusting and otherwise dangerous, and, rather, impliedly or expressly represented that the product would be safe for its intended purposes". Mr. Brown bought his Swagway hoverboard on November 24 for $443.49 from the Modell's website as a Hanukkah present for his kids. He says that they used it for 30 minutes at their home in Chappaqua, New York on December 6 and then plugged it in to charge when it said the battery was dead. Some 45 minutes later it burst into a fireball, the lawsuit states, also igniting packaging material that was nearby. The fire was so bad Brown dialed 911 and the fire department had to put it out. The lawsuit alleges that one of the issues in the case will be when Swagway "learned that there was a substantial risk that the Swagway Hoverboard was defective and posed a danger of a fire hazard". The lawsuit, filed in the Northern District of Indiana, claims that Swagway has breached the Consumer Protection from Deceptive Acts and Practices Act. It also alleges that Swagway has also breached its implied warranty and was guilty of unjust enrichment, conduct which was "unconscionable or fraudulent". Swagway became arguably the best known brand of hoverboard after a string of glowing online reviews. It was also featured on Good Morning America, the Ellen Degeneres show, CBS This Morning, USA Today and Wired. Daily Mail Online has reached out to Swagway's spokeswoman for comment but have yet to hear back. The company has in the past claimed that it has been unfairly singled out and that is uses quality Samsung and LG batteries that meet industry safety standards. CPSC spokeswoman Patty Davis said it was working to determine the manufacturers and importers of the hoverboards that burst into flames, She said: "Our investigation involves multiple products sold through multiple retail sources. "Consumers deserve answers, especially since this is such a popular toy this holiday." SYNGENTA GROUP: "Fleisher" Suit Alleges Crop Loss Over GMO Corn --------------------------------------------------------------- Daniel E. Fleisher, Gail W. Adams and James E. Adams Plaintiffs, v. Syngenta Corporation, Syngenta Crop Protection, LLC and Syngenta Seeds, Inc. Defendants., Case No. 1:15-cv-05657 (S.D. Ohio, Western Division - Cincinnati, October 30, 2015), seeks to recover compensatory damages together with appropriate equitable relief as a result of manufacturing, marketing and sale of genetically modified corn seed by the Defendants. The actions by the Defendants allegedly caused the depression of U.S. corn prices resulting in over $1.4 billion in damages to U.S. corn market and over $145,635,600 of damages to Ohio corn farmers. Syngenta Corporation is a Delaware corporation with a principal place of business at 3411 Silverside Road #100, Wilmington, Delaware 19810. Syngenta Crop Protection, LLC, is a limited liability company organized and operating under the laws of the State of Delaware with its principal place of business at 410 South Swing Road, Greensboro, North Carolina 27409. Syngenta Seeds, Inc. is a Delaware corporation with its principal place of business at 11055 Wayzata Boulevard, Minnetonka, Minnesota 55305. The Plaintiff is represented by: Bryce A. Lenox, Esq. Brian T. Giles, Esq. GILES LENOX 1018 Delta Avenue, Suite 202 Cincinnati, OH 45208 Tel: (513) 520-9829 Fax: (513) 824-8160 Email: Bryce@GilesLenox.com Brian@GilesLenox.com TINDER: Faces Consumer Fraud Class Action in California ------------------------------------------------------- Brenda Craig, writing for Lawyers and Settlements, reports that Tinder, a global dating app's website, is the focus of a consumer rights class-action lawsuit launched in California. The "find-a-match-anywhere-anytime" with a simple "swipe" on your smartphone has become a favorite with 20-somethings around the world. But now comes a class-action suit in which the dating app is alleged to have run afoul of a state consumer law known as the Dating Service Act. A somewhat unique piece of legislation, it covers dating services and gym memberships and requires that these kinds of service businesses afford consumers a "cooling-off period" after they sign up and put their money down. "California has some unique consumer laws," says attorney Matthew Loker, from the Kazerouni Law Group. "Many nationwide companies complain about California's extensive consumer laws but if they are going to do business nationwide, they should be familiar with these statutes," he adds. According to Mr. Loker's research, Tinder earns as much as $9 million a month from subscriptions. Mr. Loker's client, the lead plaintiff in the suit, signed up for Tinder's Premium Package at a cost of $9.99 a month on May 13, 2015. Then on May 15, 2015, two days later, he changed his mind and decided to cancel his subscription. Tinder charged the plaintiff for the whole month rather than canceling it immediately, according to the statement of claim. The claim contends Tinder failed to recognize the consumer's right to cancel within a 3-day period, and failed to include "on its face and in close proximity to the space reserved for the signature of the buyer a conspicuous statement" clearly stating that "you the buyer may cancel this agreement without penalty or obligation, at any time prior to midnight of the original contract seller's third day of business following the date of this contract." The claim also says that Tinder failed to provide the buyer with an address where the cancellation could be sent. Mr. Loker points out that there are two separate groups that qualify as members of the class. The first group applied to persons who tried to opt out within the first three days. The second group applies to persons who opted out after the 3-day period and weren't reimbursed on a "pro-rata" basis. Potential class members must have signed their contract while residing in California. "There are two decision sections in the statute and we believe both these groups are entitled to class-action status," notes Mr. Loker. The suit is currently in discovery phase. Tinder Inc. has made a court application for a change of venue. It wants the case to be heard in Texas. TAISHAN GYPSUM: Judge Hears Closing Arguments in Drywall Suit ------------------------------------------------------------- Janet McConnaughey, writing for The Associated Press, reports that a federal judge would hear closing arguments on Dec. 15 about whether a Chinese drywall manufacturer held back information about its U.S. sales by failing to disclose a former official's whereabouts. Peng Wenlong was head of foreign sales for Taishan Gypsum Co. Ltd. when it sold drywall that thousands of homeowners in six states say released sulfur fumes that made them sick and corroded metals, plaintiffs' attorney Fred Longer said on Dec. 14. "We were told repeatedly that he'd left the company and no one knows where he is, when in fact he went to work for the owner's wife and they always knew where he was," Mr. Longer said. Taishan's attorneys did not immediately respond to a request for comment. Mr. Longer said plaintiffs' attorneys received Peng's computer and hard drives only this year. They found evidence that could have eliminated a long court fight over whether courts in this country had any right to handle the case, had it been produced when first requested four or five years ago, he said. "There were just a lot of legal resources that were squandered as a result of them hiding the tea -- hiding the evidence," Longer said. U.S. District Judge Eldon Fallon heard evidence about the matter in November, but sealed those records. However, the Dec. 15 closing arguments will be open. Judge Fallon also is considering how much Taishan Gypsum should pay people for damage from the drywall, but has not said when he will rule on that. He heard evidence about that question in June. Taishan paid seven Virginia homeowners and their attorneys $2.7 million, plus about $500,000 interest earlier this year. It would be unfair to use those figures as the basis for figuring damages in a class-action suit involving 2,700 homes in Florida, Alabama, Mississippi, Louisiana, Texas, and elsewhere in Virginia, Taishan's attorneys said during arguments in June. Claims dropped from the class action, such as loss and enjoyment of property, attorneys' fees and "move-in/move-out" costs, are to be tried separately, and about 1,000 more cases don't fit into the dollars-per-square-foot formula to be set by Fallon and will be tried individually, plaintiffs' attorneys have said. TERRFORM GLOBAL: Hid IPO Sponsor's Losses, "Beltran" Suit Alleges ----------------------------------------------------------------- Juan M. Rodriguez Beltran, Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. Terraform Global, Inc., Sunedison, Inc., Ahmad Chatila, Carlos Domenech Zornoza, Jeremy Avenier, Martin Truong, Brian Wuebbels, J.P. Morgan Securities LLC., Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., BTG Pactual US Capital, LLC, Itau BBA USA Securities, Inc., SMBC Nikko Securities America, Inc., SG Americas Securities, LLC. and Kotak Mahindra, Inc., Defendants., Case No. 3:15-cv-04981 (N.D. Cal., October 29, 2015), seeks to recover damages under Section 15 of the Securities Act of 1933 in connection with the purchases of TerraForm Global's shares. The class action arises out of an alleged deliberate effort to conceal information regarding the Initial Public Offering of TerraForm. SunEdison, the IPO's sponsor, sustained considerable financial losses prior to the IPO and whose condition was not made known to the shareholders. TerraForm Global owns and operates renewable energy generation assets worldwide. The Company generates electricity through solar, wind, and hydro-electric projects and serves utility, commercial, industrial and government customers. TerraForm Global holds wind and solar projects in South Africa, India and China. SunEdison develops, manufactures, and sells silicon wafers and is a major developer and seller of photovoltaic energy solutions. The company's subsidiary, SunEdison LCC, is one of the world's leading developers of solar energy projects. Carlos Domenech Zornoza was, at the time of the offering, Chief Executive Officer and director of the Company. Jeremy Avenier was TerraForm Global's Chief Financial Officer. Ahmad Chatila was, at the time of the offering, Chairman and director of the company. Martin Truong served as SunEdison's Vice President, General Counsel and Secretary since April of 2013. Brian Wuebbels was a director of the Company. J.P. Morgan Securities LLC, Barclays Capital Inc., Citigroup Global Markets Inc., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Inc., Deutsche Bank Securities Inc., BTG Pactual US Capital, LLC, Itau BBA USA Securities, Inc., SMBC Nikko Securities America, Inc., SG Americas Securities, LLC and Kotak Mahindra, Inc. were an underwriters for the IPO Offering. The Plaintiff is represented by: John T. Jasnoch, Esq. SCOTT+SCOTT, ATTORNEYS AT LAW, LLP 707 Broadway, Suite 1000 San Diego, CA 92101 Tel: (619) 233-4565 Fax: (619) 233-0508 Email: jjasnoch@scott-scott.com U.S. MEDICAL MGT: "Chudzik" Suit Claims Back Pay ------------------------------------------------ Monika Chudzik, individually and on behalf of all others similarly situated, Plaintiff, v. U.S. Medical Management, LLC and VPA, P.C. d/b/a Visiting Physicians Association, Case No. 15-cv-1288 (E.D. Wis., October 29, 2015) seeks relief for unpaid minimum wages, liquidated damages, costs, attorneys' fees, declaratory and/or injunctive relief under Fair Labor Standards Act of 1938 and Wisconsin Wage Laws, under Fed. R. CIV. P.23. Plaintiff drives visiting physicians to patient locations and providing medical assistance to visiting physicians while at patient locations. VPA failed to pay Chudzik compensation for all hours worked, including overtime premium pay compensation for hours worked over 40 in a given workweek, the Complaint says. The Plaintiff is represented by: Larry A. Johnson, Esq. Summer H. Murshid, Esq. Timothy P. Maynard, Esq. HAWKS QUINDEL, S.C. 222 East Erie Street, Suite 210 P.O. Box 442 Milwaukee, WI 53201-0442 Tel: (414) 271-8650 Fax: (414) 271-8442 Email: ljohnson@hq-law.com smurshid@hq-law.com tmaynard@hq-law.com UBER: Wants Drivers to Sign Agreement Not to Join Class Action -------------------------------------------------------------- Barclay Bishop, writing for WAGT26, reports that Uber wants its drivers to sign an agreement barring them from participating in class action lawsuits against the ride-sharing company. The new 21-page legal agreement was issued two days after a judge expanded a California class action suit against Uber. It pushes the ride-hailing company to define drivers as employees making drivers eligible for reimbursement for expenses accrued while driving. Uber says the new agreement will only apply to drivers who began driving after December 11th. UBER: City of Seattle Allows Drivers to Form Union -------------------------------------------------- Heather Somerville and Mike Rosenberg, writing for Reuters, report that Seattle on Dec. 14 became the first U.S. city to pass a law giving drivers for Uber and Lyft the right to unionize, a new challenge to the ride companies' success as they confront mounting dissatisfaction over how drivers are treated. The law approved unanimously by the Seattle City Council recognizes the right of drivers for on-demand ride companies known as Transportation Network Companies, as well as taxi and for-hire drivers, to collectively negotiate on pay and working conditions. Uber and Lyft both opposed the measure and argue that federal law precludes such local legislation. The law marks a new approach to addressing the heated debate over whether Uber and Lyft drivers ought to have some or all the legal rights of employees, which would substantially increase companies' costs. Despite facing regulatory battles in Seattle, both companies have growth in popularity there, with thousands of drivers using the app. "Unfortunately, the ordinance passed threatens the privacy of drivers, imposes substantial costs on passengers and the city, and conflicts with longstanding federal law," said Chelsea Wilson, Lyft public policy communications manager. Uber said about half its drivers work fewer than 10 hours a week, and there is such a high turnover of drivers that designating them as employees or allowing them to unionize doesn't make sense. Uber is widely expected to sue, although Lyft said it did not have plans to sue. Seattle Councilman Mike O'Brien, who proposed the measure, predicted Uber would sue and said the city had the resources to defend the ordinance. "We now have a $60 billion organization making a lot of money while some drivers are making less than $3 per hour," he said. At least 1,000 drivers have already organized as part of the App- Based Drivers Association. The Seattle law does not rule on whether drivers are employees or contractors but extends to drivers rights usually reserved for employees. "It's a reaction to the employment issue without solving that bigger problem," said Richard Reibstein, a labor lawyer who runs the independent contractor practice at Pepper Hamilton. "Until such time as their status is resolved in each state, those who are unhappy will seek political action to advance their causes." Hundreds of union supporters and drivers packed the city council chambers on Dec. 14 "It's pretty much making minimum wage" after deducting costs, said Sean Janaba, 34, of Seattle, who has been driving for Uber for three years. "Things are getting worse." The per-mile fare for Uber and Lyft rides in Seattle is $1.35, a little more than half what it was a couple years ago. In other cities, Uber has regularly cut fares to attract passengers. At least nine states have issued rulings that drivers are independent contractors, but in two separate cases in California, drivers were deemed employees and got unemployment benefits. Other drivers have sued Uber for misclassifying them as contractors. Uber is facing a class-action suit in California that could include tens of thousands of drivers. Uber and other opponents to the Seattle ordinance argue that federal law prohibits independent contractors from collective bargaining, since the law only covers employees. But farm workers and home health care workers, who are also not addressed by the federal law, have been allowed to unionize under state law, which could give Seattle a defense for its action. To have a city pass such a law, however, "is extremely uncommon," Mr. Reibstein said. Some question whether cities have that legal authority. There are also federal anti-trust statutes that could be triggered if driver unions are perceived as fixing prices and eroding free market competition. UNITED SERVICES: Little Rock Attorney Challenges Settlement ----------------------------------------------------------- Mark Friedman, writing for Arkansas Business, reports that Little Rock attorney Robert Trammell is scheduled to appear in Polk County Circuit Court to challenge a class-action settlement that he said is unfair to class members and favors the law firms representing them: Keil & Goodson of Texarkana and Taylor Law Partners of Fayetteville. The terms of the settlement call for the plaintiffs' firms to receive up to $1.85 million in attorneys' fees and expenses while the defendant, United Services Automobile Association, will have to set aside $3.4 million to pay potential claims, Trammell said in his Nov. 16 filing. But the proposed settlement, he said, seems designed to make it difficult for USAA members to file claims -- possibly because any money not paid to class members will go back to the insurance company. Mr. Trammell appears to be the first attorney to object to a class-action settlement this year in cases involving the Keil & Goodson firm, which collected millions of dollars in attorneys' fees in class-action suits until the U.S. Supreme Court stepped in March 2013. The high court voided a key element of Keil & Goodson's strategy that involved trapping defendants in front of friendly and slow- moving elected judges in state courts, forcing huge settlements in cases whose legal merits were never considered. Keil & Goodson and two Texas firms it worked with, Nix Patterson & Roach and Crowley Norman LLP, extracted more than $420 million in attorneys' fees from 23 settlements between 2005 and 2012, nearly all of them in Miller County. Since the high court unanimously found the strategy to be illegal, Keil & Goodson and other class-action attorneys have taken a different approach to keeping their class-action settlements out of the hands of federal judges: strike a deal with the defendants to settle the case in state court, where judges may be less stringent in assuring that the victims are compensated as fairly as the attorneys. That's what happened in the USAA case. The lawsuit, which never made it to the point of being certified as a class action by a judge, was dismissed from U.S. District Court in Fort Smith on June 22. The next day, a nearly identical complaint was filed in Polk County Circuit Court along with a stipulation of a class- action settlement. Having a case filed in state court for the purposes of settlement is "a pretty standard way to try to rip off the class," Ted Frank, the director of the Center for Class Action Fairness in Washington, told Arkansas Business, which asked him to review documents in the USAA case. "I guess they were worried that . . . a judge in federal court would have given it scrutiny, and they wanted to get away from that. Because there's no reason to refile it in state court unless they were trying to avoid federal review." Arkansas Business has found two other cases where the Keil & Goodson firm participated in settling class-action lawsuits this year and shared a total of $1.86 million in attorneys' fees and expenses. Those cases had been in federal court but were refiled in state court for prompt settlement. Neither Matt Keil nor John Goodson, a member of the University of Arkansas Board of Trustees and husband of Arkansas Supreme Court Justice Courtney Goodson, returned messages seeking interviews about the settlements. W.H. Taylor of the Taylor firm also didn't return messages seeking comment. USAA's attorney, Lyn Pruitt of Little Rock, referred calls to the insurance company. USAA agreed to settle the case while admitting no wrongdoing because "class-action litigation is inherently unpredictable and can be extremely expensive and disruptive of USAA's day-to-day operations," USAA spokesman Roger Wildermuth said in a statement to Arkansas Business. "So sometimes it is better for USAA's membership as a whole to settle class actions so we can remain focused on serving our members." Adams v. USAA The events in the case pending in Polk County Circuit Court date back to April 2009, when a tornado damaged the Mena home of Mark and Katherine Adams. The Adamses submitted a claim to USAA, and the USAA adjuster determined the covered loss for two structures totaled nearly $51,000. USAA, however, subtracted nearly $8,000 from the adjuster's replacement cost estimate for depreciation. Arkansas law allows an insurance company to depreciate physical assets, such as materials used to repair or replace the damaged property, when determining the actual cash value of a claim, according to the Adamses' lawsuit. "However, an insurer may not depreciate labor costs associated with such repair or replacement," according to the lawsuit filed on Dec. 5, 2013, in Polk County Circuit Court by Keil & Goodson, five attorneys from Taylor's firm, Jason Roselius of Oklahoma and Richard Norman of the Crowley Norman firm. Mark and Katherine Adams, through the attorneys, accused USAA of breaching its duty to indemnify the couple by depreciating the labor costs associated with repairs to the properties. The attorneys said they believe that "hundreds if not thousands" of Arkansas policyholders had been damaged by USAA's actions and asked that the case be certified as a class action. "Plaintiffs and their counsel will fairly and adequately protect the interests of the members of the Class," the lawsuit said. "Plaintiffs have retained counsel who are competent and experienced in class action litigation, including insurance- related cases. Plaintiffs and their counsel will prosecute this action vigorously." Settlement Talks Ms. Pruitt, USAA's attorney, quickly moved the lawsuit to federal court. That option was available under the Class Action Fairness Act of 2005, which allows a lawsuit involving a class of plaintiffs from multiple states to be moved out of a state court and into federal court by motion of the defendants. Similarly, the defendants can unilaterally move a class-action case into federal court if the plaintiffs claim damages, including attorneys' fees, of more than $5 million. In enacting CAFA, Congress intended to give class-action defendants relief from the kind of legal shenanigans that kept cases in friendly state courts. The USAA case made it to U.S. District Court in Fort Smith in January 2014, the month after it was filed in circuit court. Not much happened until May 2014, when both sides asked to stay all proceedings, including discovery, while they attempted to settle the case. Chief U.S. District Judge P. K. Holmes III granted the motion. In a status report filed in March 2015, attorneys for the plaintiffs and the defendants told Holmes that they "have made substantial progress toward resolving this action" but needed a little more time to iron out the details. Holmes denied the request for another stay and ordered the case to move forward. In June, attorneys for the Adamses filed, with Pruitt's agreement, a motion to dismiss the case, agreeing that each party would cover its own attorneys' fees. The door was left open for the case to be refiled later. Return to Mena The day after the case was dismissed from federal court, it was refiled in Polk County Circuit Court -- with the proposed settlement agreement attached. An expert on class-action law speculated that both sides were concerned that their proposed settlement wouldn't be approved in federal court. "Because if they were confident that the federal judge would approve the settlement, why are they going to state court?" said Georgene Vairo, a professor at Loyola Law School at Los Angeles and author of "The Complete CAFA: Analysis & Developments Under the Class Action Fairness Act of 2005." "There's a greater likelihood that the state court judge will approve that settlement without upsetting the attorney-fee provision or the overall amount that the defendants are going to put in. . . . Otherwise, it makes no sense." In the refiled lawsuit, though, the only plaintiffs' law firms listed were Keil & Goodson and three attorneys from the Taylor firm. Missing were the other plaintiffs' attorneys who had been part of the federal case, such as Matthew Mustokoff of Kessler Topaz Meltzer & Check LLP of Radnor, Pennsylvania. "My co-counsels are handling the settlement of the case in state court," Mr. Mustokoff told Arkansas Business. "It's really all the information I can give you." He also wouldn't say if he would be paid any fees in the case. "As a general policy, we don't comment on ongoing litigation," Mr. Mustokoff said. Ms. Vairo said defendants may be willing to go along with class- action settlements because they receive "peace. You bind every single class member so there will be no more litigation on this." The proposed settlement received its preliminary approval by Polk County District Judge Jerry Ryan on Aug. 26. A final approval hearing in the action against USAA, which serves millions of military members and their families, was set for Dec. 16, and it seemed like the settlement was going to breeze through. After receiving the USAA claim forms in the middle of October, Robert Trammell, the Little Rock attorney, filed an objection to the settlement on Nov. 16 on behalf of four veterans who are USAA policyholders. Mr. Trammell said in the filing that the case seemed rushed and "does no more than move forward an award of attorney's fees." In addition, the settlement doesn't require USAA to pay a fee for its alleged wrongdoing. Worse still, class members would only get a portion of what was owed to them -- if they bothered to fill out the claim form. "The settlement document is imbedded with provisions that make participation a challenge, makes efficient participation impossible, and incurs hasty costs that would be predictably wasted if any person, or advocate, chose to come forward and seek to challenge the settlement," Mr. Trammell wrote in his objection. "It was futile from the beginning; the common thread upon the settlement notice being read by veterans who possess a common sense outlook backed by rigorous education, was: 'How stupid do they think the veteran is.'" In order to get a settlement, the class members would have to fill out a "lengthy" form and sign it under the penalty of perjury, even though USAA has the information on file and could simply send the class members checks, Trammell said. Mr. Trammell said he wants to open the matter to discovery, including depositions, for transparency purposes and to determine if the class action is being done for the benefit of the members. "A jury trial is requested," he said. VALEANT PHARMA: Faces "Fein" Securities Action in N.J. ------------------------------------------------------ Alan and Ariel Fein, individually and on behalf of all others similarly-situated v. Valeant Pharmaceuticals International Inc., J. Michael Pearson, Howard B. Schiller and Robert L. Rosiello, Defendants, Case No. 3:15-cv-07809-MAS-LHG (D.N.J., October 30, 2015), seeks compensatory damages arising from the violation of Section 10(b) and 20(a) of the Securities Exchange Act. Valeant allegedly failed to disclose material business transactions resulting in the drop of share prices. Alan and Ariel Fein purchased Valeant securities. Valeant Pharmaceuticals International Inc. is incorporated in British Columbia, Canada and trades publicly in the New York Stock Exchange. The Plaintiff is represented by: Albert G. Kroll, Esq. Seth Ptasiewicz, Esq. KROLL HEINEMAN CARTON, LLC Metro Corporate Campus One 99 Wood Avenue South, Suite 307 Iselin, NJ 08830 Tel: (732) 491-2100 Fax: (732) 491-2120 - and - Benjamin Y. Kaufman, Esq. Kevin Cooper, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Tel: (212) 545-4600 Fax: (212) 545-4653 E-mail: isquith@whafh.com VAN HEUSEN: Settles Background Check Class Action ------------------------------------------------- Employment Screenig Resources, citing TopClassActions.com , reports that a class action lawsuit settlement of $716,400 was reached with Van Heusen, Izod, G.H. Bass, and Calvin Klein over allegations that the company obtained background check reports without complying with the federal Fair Credit Reporting Act (FCRA). TopClassActions.com reports that that class action lawsuit filed by plaintiff Luis Rodriguez claimed that Calvin Klein, Inc. and PVH Corporation illegally denied him employment as a manager at a Calvin Klein store based on an allegedly inaccurate background check conducted on him. The background check class action lawsuit stated that the plaintiff was "not eligible for the job based upon the purported existence of multiple felony and misdemeanor charges and convictions" but that the supposed crimes did "not belong to or relate to plaintiff," TopClassActions.com reports. According to the class action lawsuit, the information in the background check report was not disclosed to Mr. Rodriguez before he was denied the position. Mr. Rodriguez tried to dispute the information and managed to get some of the background check corrected but the position was already filled. The class action lawsuit claims that not allowing Mr. Rodriquez a chance to dispute the background check report violated the FCRA which requires that a copy of a background check report obtained about a job applicant is to be shared with that job applicant before any adverse action is taken. The class action lawsuit settlement is for applicants who applied for a job at a Van Heusen, Izod, G.H. Bass, and Calvin Klein retail store or warehouse between April 3, 2010 and May 11, 2015. PVH Corp. does not admit to any wrongdoing but agreed to the settlement to avoid the cost and risk of going to trial. The class action lawsuit is Luis A. Rodriguez v. Calvin Klein, Inc. and PVH Corporation, Case No. 1:15-cv-02590- JSR in the U.S. District Court for the Western District of New York. VOLKSWAGEN GROUP: "Barber" Suit Alleges Emission Test Cheating --------------------------------------------------------------- Brad Barber, individually and on behalf of all others similarly situated, Plaintiff, v. Volkswagen Group of America, Inc., Audi of America LLC, Audi of America, Inc. and Porsche Cars North America, Inc., Defendants, Case No. Case 8:15-cv-01942 (C.D. Cal., November 20, 2015), seeks preliminary and permanent injunctive relief in the form of a recall or replacement of affected vehicles as well as costs, restitution, damages, disgorgement and penalties and other reliefs in violation of California Unfair Competition Law (Cal. Bus. & Prof. Code 17200, et seq.), False Advertising Law (Cal. Bus. & Prof. Code 17500, et. seq.), breach of Express Warranty and breach of Contract. The class action complaint arises out of an installed component in the Turbocharged Direct Injection variants of the light passenger vehicles made by Defendants called a defeat device that allegedly turns on the emission controls during mandated testing but turns it off during regular operations thus rendering it non-compliant to emission standards set by the United States Environmental Protection Agency and the California Air Resources Board. Volkswagen Group of America, Inc. is a corporation organized and existing under New Jersey law with headquarters in Hemdon, Virginia. Their operations in the United States include research and development, parts and vehicle processing, parts distribution, sales, marketing and service offices, financial service centers and manufacturing. Audi of America, LLC is a subsidiary of Audi AG that sells Audi Vehicles in the United States and is based in Hemdon, Virginia. Porsche Cars North America, Inc. is a wholly-owned subsidiary of Porsche AG that sells Porsche vehicles in the United States and is based in Atlanta, Georgia. The Plaintiff is represented by: Julie R. Trotter, Esq. Matthew R. Orr, Esq. Scott R. Hatch, Esq. CALL & JENSEN A PROFESSIONAL CORPORATION 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Tel: (949) 717-3000 Fax: (949) 717-3100 Email: jtrotter@calljensen.com morr@calljensen.com shatch@calljensen.com VOLKSWAGEN GROUP: Recall to Commence in January 2016 in Australia ----------------------------------------------------------------- Joshua Dowling, writing for CarsGuide, reports that the Volkswagen diesel scandal has taken yet another turn in Australia. A bitter dispute between the car giant and lawyers representing 13,000 customers in a class action has emerged before Federal Court action has even started. Volkswagen insists the 3.0-litre V6 diesel engines that power a range of VW, Audi and Porsche SUVs are not affected in Australia, even though they have been recalled or withdrawn from sale in the US. Law firm Maurice Blackburn announced it was adding the 3.0-litre V6 diesel to the Australian class action lawsuit. A senior Volkswagen Australia spokesman told News Corp Australia: "We've had clear directions from our German technical department that absolutely no 3.0-litre V6 diesel engines in Australia are caught up in this." The spokesman added: "We cop it on the chin for the mistakes we've made and we won't back away from our responsibilities. But it's wrong for them to go out without checking the facts on the 3.0- litre V6 diesel." But Maurice Blackburn is not backing down from its decision to add the 3.0-litre V6 diesel engines to its class action on 97,000 four-cylinder diesel cars sold in Australia from 2009 to 2016. "Volkswagen has made denials that have subsequently proven to be untrue every step of the way in this global scandal," said class actions principal Jason Geisker. "They denied the initial tests that uncovered this global scandal, they denied their 3.0-litre vehicles were affected in the USA before later admitting to regulators that they actually did have defeat devices." In the wake of these admissions, US authorities have begun testing the 3.0-litre V6 diesel engine shared by Volkswagen, Audi and Porsche. "Early tests are showing some vehicles emitting up to nine times the acceptable levels of NOx fumes," said Mr. Geisker. "Their denials have been worthless to date, they deserve to be held to account for what they've done." A confidential bulletin sent from Volkswagen to its network of Australian dealers said in part: "Advice from Volkswagen AG and official measurement data of the German Authority Kraftfahrtbundesamt (KBA), have confirmed that V6 TDI engines are not affected by the emissions software issue, as they meet the applicable (European) EU and UN/ECE regulations and therefore comply with Australian Design Rules." A statement from Volkswagen Australia said: "The V6 TDI has a temperature conditioning mode on start-up, designed to bring the engine up to peak efficiency more quickly and therefore reduce emissions. This occurs regardless of whether the vehicle is on the road or being tested (in laboratory conditions). "The temperature conditioning mode does not constitute a defeat device and this has been confirmed by the German Ministry of Transport and the German Federal Motor Transport Authority." Australian owners of Audi, Porsche and Volkswagen vehicles can call 1800 504 076 to find out if their car is affected by the diesel recall that so far includes 97,000 vehicles on Australian roads. The recall work is due to commence in January 2016 at no cost to owners. WEN: More Than 200 Women Sue Over Hair Care Product --------------------------------------------------- Emily James, writing for Dailymail.com, reports that hundreds of women are coming forward after they claim a popular celebrity- endorsed hair product is causing their hair to fall out in clumps and leaving unsightly sores on their scalp, making them depressed and not wanting to go out in public. More than 200 people in 40 states have filed a class action lawsuit against Wen, a cleansing conditioner developed by Los Angeles-based hairstylist Chaz Dean, alleging that using the formula has resulted in baldness, rashes, scalp irritation, hair breakage, and hair discoloration. Wen, which has featured Brooke Shields and Alyssa Milano in its infomercials, describes its product as a sulfate-free alternative to shampoo that works as a "shampoo, conditioner, deep conditioner, detangler, and leave-in conditioner", but women who have used the product say it has caused irreparable damage to their hair. On its website, the brand says it's different from any other hair care product in that it "cleanses and conditions the hair simultaneously". "The cleansers include a perfect blend of special ingredients, including natural botanicals and herbs, and do not contain sodium laurel sulfate or harsh chemicals," says company's bio. Over the past few years, a number of consumers have complained about Wen's effects on their hair on online forums such as Consumers Affairs and Amazon. Things came to a head in November when a class action lawsuit was filed against Wen and infomercial giant Guthy-Renker, which also owns Proactiv, in California Federal Court. In the court documents, a woman named Amy Friedman says she bought the Wen Sweet Almond Mint basic kit in January of 2014 for $29.95 and two weeks later, her hair started falling out. She stopped using the product soon after, but ended up losing 'one quarter to one third' of her hair, and was forced to spend a great deal of money on hair extensions to mask her baldness. The legal firm representing the 200 plaintiffs says that as many as "thousands or tens of thousands" of additional aggrieved consumers could also sue the company for hair loss. Hundreds of women who have used the product have voiced their outrage about its alleged effects on social media and online consumer platforms. "I was a professional model with beautiful long natural hair," wrote one woman on Pissed Consumer. "After using this product my scalp and face broke out in boils and my hair fell out in chunks. This shampoo destroyed my life." Another woman posted a Facebook photo of her massive bald spot on Wen's timeline, writing: "I can't leave the house. I'm depressed. Wen products are responsible for my hair loss." The class action lawsuit alleges that "the WEN products at issue contain a caustic ingredient that causes a chemical reaction and damages hair and follicles," as well as "numerous harsh chemicals and known human allergens." However, the complaint does not specify the supposed ingredient that purportedly causes hair loss. Wen has been extremely successful since its launch, reportedly raking in $100 million in its second year, and has a slew of positive reviews on Amazon, earning it a top rating. One person wrote: "It works really well for my long, thick, wavy, dry and damaged hair. I've had better results with this product than any other. It's balanced my hair and stopped it from breaking off after it was over processed." Chaz, who has styled celebrities such as Charlize Theron and Alanis Morissette, boasts a huge fan following and has appeared on reality TV shows such as Flipping Out and Celebrity Apprentice. Wen's marketing agency Guthy-Renker said it a statement: "There is no scientific evidence to support any claim that our hair care products caused anyone to lose their hair. There are many reasons why individuals may lose their hair, all unrelated to Wen hair products. We intend to vigorously contest the allegations made against our products. And, we encourage any customer with any questions to contact us." Daily Mail Online has reached out to Guthy-Renker for further comment. YACHTING PROMOTIONS: "De Jesus" Action Seeks OT Pay --------------------------------------------------- Joseph Luis De Jesus Jr. and all others similarly situated, Plaintiff, vs. Yachting Promotions, Inc. and Robert Coreas, Defendants., Case No. 1:15-cv-24308-JAL (S.D. Fla., November 20, 2015), seeks to recover overtime pay and damages under the Fair Labor Standards Act 29 U.S.C. Plaintiff has not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly. De Jesus worked as a forklift operator. Yachting Promotions, Inc., is a corporation operating in Dade County, Florida with Robert Coreas as corporate officer and/or owner. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, Florida 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 Email: ZABOGADO@AOL.COM ZEEKREWARDS.COM: E-Wallet Agrees to Pay $3.5MM to Receivership -------------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that an electronic financial group, known as an "e-wallet," has agreed to pay another $3.5 million to the receivership of defunct ZeekRewards.com. The settlement motion, filed Dec. 14, involves Kenneth Bell, receiver for ZeekRewards.com, and NxSystems Inc. It includes a confession of judgment for the full claim of $9.1 million. In a confession of judgment, the debtor acknowledges the amount due or possibly due to the creditor. The $9.1 million in the NxSystems' account had been frozen by a judge for about a year. NxSystems previously returned $22.9 million to the receivership. NxSystems informed Mr. Bell and the court that it has limited financial resources and is not able to return the full amount. Mr. Bell said the settlement is "fair, reasonable and adequate." Mr. Bell said that while he "believes there is a significant likelihood of success, the path to obtain judgments against these defendants may not be quick or easy, and settlement of the claims without the expense of further litigation is worthwhile." "The early and voluntary collection of settlement funds will benefit the victims by likely increasing the amount of money available for distribution." In August 2012, the U.S. Securities and Exchange Commission accused Rex Venture Group LLC, Zeekler, ZeekRewards.com and Paul Burks, their principal owner, of raising $850 million through unregistered securities. The Lexington companies were shut down and their assets frozen. The companies raised the money from at least 2.2 million customers, including more than 230,000 in the U.S. and 47,000 in North Carolina. ZeekRewards receiver Kenneth Bell said he has recovered more than $336 million to date. In February, Mr. Bell gained U.S. District Court permission to certify about 9,400 net winners as defendants in a class-action lawsuit. The list contained 15 individuals from Forsyth County, 105 from the Triad and Northwest North Carolina, and 390 statewide. Mr. Bell has said he is in pre-trial negotiations with some net winners while preparing for trial on the lawsuit. Mr. Bell said the potential recovery from the net winners could be as much as $283 million. "Litigation takes time, and collecting on the judgments we expect to win against the net winners will also take time," Mr. Bell said. Mr. Bell has distributed $246 million from the ZeekRewards.com estate since Sept. 30, 2014. Mr. Bell said the average recipient should get from 60 percent reimbursement to almost 70 percent. Mr. Burks pleaded not guilty on federal charges of wire and mail fraud conspiracy, wire and mail fraud, and tax fraud conspiracy. He was indicted in October 2014. His trial date has been set for May 2016. * NJ's High Court Justices Mull Insurance Class Action Standard --------------------------------------------------------------- Shayna Posses, writing for Law360, reports that New Jersey's highest court agreed on Dec. 15 to consider whether lower courts erred by stripping class allegations prior to discovery in suits accusing automotive insurers of improperly refusing to cover the diminished value of policyholders' vehicles. The Dec. 15 decision will allow policyholders to reassert their challenge to lower court decisions striking class action claims despite the absence of any motions requesting such relief in suits seeking diminished value damages as part of policyholders' underinsured and uninsured motorist coverage. Asbestos Litigation ASBESTOS UPDATE: JPL Construction May Have Exposed Workers ---------------------------------------------------------- Jason Henry, writing for San Gabriel Valley Tribune, reported that asbestos abatement at NASA's Jet Propulsion Laboratory may have exposed at least four employees to the lung-cancer causing chemical. JPL shut down the third floor of Building 230 -- where some members of the Cassini mission work -- on Nov. 18 after two out of three air samples taken on the floor showed higher asbestos levels than recommended by the Environmental Protection Agency, according to spokeswoman Veronica McGregor. "The floor was immediately closed," she said. "The four employees who had offices on the floor were relocated and the area was cleaned." Ongoing construction at Building 230 required abatement of the friable, powder-like asbestos sprayed above the ceiling for fireproofing. Building 230 is one of eleven older buildings that contain asbestos, according to a subcontractor notification form. The reading that resulted in the floor's shut down was beyond the barriers put up to protect the employees who continued to work alongside the construction. Current readings are below the EPA's re-occupancy levels, but the floor remains closed, with limited access to non-construction areas, "out of an abundance of caution," McGregor said. Hundreds of employees work in Building 230, including the team that communicates with the Cassini Spacecraft exploring Saturn and its moons. JPL stressed that air monitoring on the first and second floors of the building have been "consistently" within the EPA's re- occupancy level of 0.01 fibers per cubic centimeter. Asbestos is most dangerous in a friable form as its easier to inhale, according to Joseph Landolph Jr., an associate professor of molecular microbiology, immunology and pathology at the University of Southern California. "That's when you've got a problem," Landolph said. "If it were me and I was working there, I would not want to be in a work place area where they're doing asbestos removal at the same time." Despite that, Landolph said some companies don't have that option. "In general, if you're not under time pressure, and contract pressure like NASA JPL is, the best thing you can do is get everybody out of there, shut the entire place down and do the abatement," he said. Landolph said exposure to asbestos can cause lung cancer, in the form of mesothelioma, and asbestosis, a lung disease. "The higher the concentration and the longer the time of exposure, the greater the cancer risk," Landolph said. "It's usually a linear function." Asbestos fibers stay in a person's lungs, causing the lungs to fill up with collagen and reducing a person's ability to suppress tumors, he said. California's Occupation Safety and Health division and the Environmental Protection Agency set exposure limits for asbestos, with employers required to provide medical surveillance for those exposed above recommended levels, according to OSHA regulations. CAL OSHA has not received any complaints about asbestos exposure in Building 230, according to spokeswoman Julia Bernstein. It recently closed a different complaint-based asbestos investigation at JPL that began in May and ended on Nov. 19. OSHA did not issue a citation in that case. "Our inspector determined there was no asbestos exposure to employees," she said. "The only place that he found some evidence of asbestos was in a telecommunications closet that no employees had entered for three months prior." ASBESTOS UPDATE: NYC Fibro Plaintiffs Oppose Bid to Quash --------------------------------------------------------- HarrisMartin Publishing reported that plaintiffs involved in New York City's coordinated asbestos litigation docket have backed their efforts to depose a defense consultant, saying that the discovery sought is "material and necessary." In the Nov. 24 brief filed in the New York Supreme Court for New York County, the plaintiffs maintained that if the defendants continue to rely upon "empirical evidence" cited by the defense consultant in a published commentary, they hold the right to depose that individual. The defendants moved to quash and for a protective order in relation to the plaintiff efforts to depose Marc Scarcella. ASBESTOS UPDATE: Leeds School's Health, Safety Failings Exposed --------------------------------------------------------------- Yorkshire Evening Post reported that a catalogue of failings including out-of-date asbestos surveys and an inadequate fire risk assessment were found during a health and safety audit at a Leeds school. The independent audit of Benton Park School in Rawdon, which caters for more than 1,300 children, found that the school's fire risk assessment "would not be considered suitable and sufficient." The audit, carried out in June and led by health and safety consultant William Cunningham, revealed asbestos surveys at the school were out of date and stated that health screening and monitoring could be considered for site staff and potentially design and technology staff "due to the nature of their work with dusts and the amount of asbestos around the site." The report adds: "Asbestos awareness training should be provided for all staff that may work in areas where asbestos could be." ASBESTOS UPDATE: Fibro Cancer Leaves Baby Dreams in Tatters ----------------------------------------------------------- Kirsty Wynn, writing for NZ Herald, reported that Deanna Trevarthen was meant to welcome her first baby into the world this year. Instead, just months after an unsuccessful round of fertility treatment, she started feeling unwell. A few days into a romantic Fiji getaway with partner Greg Robertson earlier this year, Deanna became so sick she sought medical help as soon as she returned to New Zealand. The eventual diagnosis was pleural mesothelioma, or asbestos cancer. Instead of creating life she was fighting to save her own. At 44 Deanna, aka Dee, is one of the youngest people in New Zealand to fight the cancer prevalent in older men who had worked in electrical, building and demolition work. The cancer, breathed into the lungs, had been lying dormant in the Auckland woman's body until the Fiji holiday. Two months of tests followed. Deanna was prodded and poked, told it was bronchitis, pneumonia, perhaps dengue fever. She spent a week in isolation at hospital. Then that word. "The word cancer is something no one wants to hear and like many people I never expected to," Deanna said. "I just sat there on the bed alone and then curled up in a little ball like a baby crying and crying. Asking, 'why me?'. It's not fair." Dreams of having a baby with partner Greg Robertson were in tatters and what made the diagnosis worse was the doctor delivered the bad news when Deanna was alone, with no support. Greg, worried and not knowing what to expect, had to fight rush- hour traffic to be by Deanna's side. "My doctor turned up out of the blue. He didn't ask for my partner to join me and just told me," Deanna said. "When Greg arrived all I could say was it was cancer." The pair received the bill for their last round of fertility treatment -- a bill for the baby they now fear they will never have. They have cried together and through tears Deanna vowed she was going to be the first to beat the incurable disease that has claimed so many New Zealanders. Between 1992 and 2013, 1366 New Zealanders added their names to WorkSafe New Zealand's asbestos exposure register. Only 18 were women under the age of 50. Most were exposed because they lived in the same house, slept in the same bed or washed the clothes of an asbestos worker. Doctors said a likely scenario for Deanna's cancer was the loving hugs she would greet her father with when he returned home after a day's work as an electrician. Breathing in just one spore clinging to her dad's hair was enough. Another possibility was time she spent with her dad as he worked on building sites around Auckland. Dr Richard Sullivan -- the specialist who is now treating her -- said Deanna was battling an extremely rare type of cancer. It was unusual for a woman to have it and Deanna's young age made her diagnosis "extremely unusual". "There are about 2000 cases of lung cancer in New Zealand every year and 50 to 60 of these are mesothelioma, so it is a rare form of cancer. "We are at the peak in the Western world at the moment so from now on the rate should drop." Most people to be diagnosed are men in their 70s who have worked with asbestos in their job 30 to 40 years ago. That is how long it takes from exposure to when it shows itself as cancer. "If we look at Deanna's age we would think she was exposed around the age of 10 and probably when she was working with her dad on something or at work with her dad," he said. Whatever the cause of Deanna's cancer her resolve is the same -- to beat it. Since her diagnosis she has been referred to specialists in asbestos cancer and has set up a Givealittle page to help pay for treatments that could run into hundreds of thousands of dollars. Friends and family have gathered around with support, cooked meals and filled the freezer with food, support which Deanna and Greg said has given them time and space to deal with the disease. Deanna has had her first round of chemotherapy and has responded well. She will need two more rounds before buying more time through an unfunded $65,000 course of Avastin. Deanna has applied to ACC for financial assistance but because she was not working when she was exposed to asbestos she may not be covered. Greg said although Deanna's first priority is her own battle she is also mindful that other unsuspecting New Zealanders have the cancer lying dormant and wants to raise awareness. Asbestos products were used in many New Zealand houses built between 1940 and 1990 including in roofing, cladding, walls and textured ceilings. Undisturbed asbestos is considered relatively harmless but is dangerous when material is repaired or removed. After the Christchurch earthquakes there was increased concern for people breathing in fibres and dust. Although fears were quashed by some doctors who said exposure needed to be over a long period of time, others believe one spore causes enough damage. It is accepted that it can take up to 50 years for symptoms to develop. Deanna hopes to one day be able to lend others with asbestos cancer her support. "They'll go through the emotions I have. The turmoil. The disbelief. Fear. If I can do something to change that then there is nothing that is going to get in my way," she said. For now she admits she has a heck of a hurdle to jump. She is doing everything she can, from diet, yoga, positive thought and research to prepare her body, mind and emotions for battle. Talking about the future has been put aside for the moment and Deanna and Greg talk about the now. "This won't be an easy fight so I need all the strength I can get to get that control back," Deanna said. "After that, and I'm clear, that's when I will start talking about the future." They look forward to the day they have coined 'Dee-Day'. The day doctors tell Deanna she is clear of cancer -- that she has beaten mesothelioma. "If others benefit from my journey, then it's win:win," she said. "I wouldn't wish this on my worst enemy so if my discovery helps someone else yet to be diagnosed with mesothelioma, well, that thought makes me smile." Deanna thanked everyone who was helping her with her battle, including her specialist and staff at Auckland City Hospital who had helped her so far. She said: "Everyone has been incredible. Their positivity drives me and I can feel their love and support." ASBESTOS UPDATE: Fibro Removal Project to Begin at Courthouse ------------------------------------------------------------- Rachel Zentz, writing for The Salinas Californian, reported that a project to remove asbestos-containing materials from the East/West Wing Building of the Monterey County Courthouse will begin on Dec. 19 and continue until February. When work begins on the West Wing at 240 Church St., Salinas, the pedestrian walkway leading to the crosswalk on Alisal Street will be fenced off. In addition, two large pine trees along the promenade between the building and the North Wing will be removed on Dec. 19. Windows will be wrapped from the interior to seal off the building and the abatement/demolition will be done in sections. Interior work will be done during regular business hours. If large business systems need to be craned off, the work will be scheduled for weekends. ASBESTOS UPDATE: Order Denying Summary Judgment Reversed -------------------------------------------------------- HarrisMartin Publishing reported that the Mississippi Supreme Court has reversed an order that denied a motion for summary judgment in an asbestos case, saying that the testimony of a plaintiff's expert witness should have been excluded and, without that evidence, the claims are unsupported. In its Dec. 10 order, the high court said that the plaintiff "lacks even a mere scintilla of evidence of exposure, and there is a complete absence of probative facts supporting her claim." Plaintiff Deborah Jackson filed the Federal Employers' Liability Act (FELA) claims on behalf of her husband, Charles Jackson, who she claimed developed lung. ASBESTOS UPDATE: Payment Call for Neighbors of Fibro Waste Plant ---------------------------------------------------------------- Matthew Porter, writing for Southern Standard, reported that homeowners near a new asbestos waste plant should get compensation for the impact it will have on their lives, according to councillors. An application for a waste plant on Basildon's Burnt Mills industrial estate, which will include the treatment of asbestos, was approved by Essex County Council. Angry residents, who live just yards from the site, are concerned about the smell and smoke being produced by waste plants in the area. The latest facility will be built on land off Hovefields Court, close to an existing waste processing plant in Courtauld Road. During a Basildon Council meeting, Ukip councillor for Pitsea North West, Gary Canham, will call for the county council to compensate homes in Hovefields Avenue. The road is on the opposite side of the A127 to the plants. Danny Copeland, 73, who has lived in Hovefields Avenue for more than 50 years, said: "Even if I wanted to move, I couldn't afford to. "We get the smoke coming in our direction from across the road all the time and it is horrendous - it billows out 24 hours a day. "It is having a huge impact on us, but of course if we could get compensation it would be great." The Hovefields Court site will treat up to 70,000 tonnes of commercial, industrial and household waste per year, as well as 5,000 tonnes of asbestos waste. Mr Canham's motion calls on Basildon Council to "exert pressure" on the county council to review the "detrimental cumulative impact" of the plants on Hovefields Avenue residents. He also wanted a consultation to be carried out with residents on their quality of life, and for work to be done to provide alternative homes or compensation. Linda Allport-Hodge, Ukip group leader, said: "If Basildon is going to be lumbered with all these waste plants, we should be getting something in return. "We should be getting more from Essex County Council for services in Basildon, as at the moment they are getting away with blue murder." ASBESTOS UPDATE: Calif. Jury Awards Nearly $7MM in FELA Suit ------------------------------------------------------------ HarrisMartin Publishing reported that a California jury has awarded nearly $7 million in a FELA cases against Union Pacific Railroad, finding that the decedent's mesothelioma was caused by exposure to asbestos at the defendant's facility. The California Superior Court for Alameda County jury reached the verdict on Nov. 18 after a six-week trial, which was presided over by Judge Brad Seligman. Union Pacific Railroad Co. was the lone remaining defendant in the case at the time of the verdict, sources said. The jury awarded $6.5 million for pain and suffering. ASBESTOS UPDATE: Ill. High Ct. Says State Law Blocks Fibro Suits ---------------------------------------------------------------- Jessica Corso, writing for Law360, reported that the Illinois Supreme Court has limited the ability of workers to bring decades- old asbestos claims, saying in a recent ruling that a pair of state laws bar recovery by employees who suffered asbestos-related injuries more than 25 years ago. Four of the six high court judges that sat in on the dispute ruled that James Folta and his widow, Ellen, were prohibited from bringing negligence and other common law claims against Folta's former employer, Ferro Engineering. James Folta worked for Ferro between 1966 and 1970 but wasn't diagnosed with mesothelioma until 2011, a disease he says resulted from inhaling asbestos as a quality control specialist with the company. In spite of the recent diagnosis, the majority ruled that the Illinois Workers' Compensation Act and Workers' Occupational Diseases Act prohibits workers from bringing suit over work- related injuries that resulted from activities undertaken more than 25 years ago, while also blocking even those who can prove actual injury from recovering under any other statute or common law provision. "The fact that Folta was not at fault for failing to file a claim sooner due to the nature of the disease is not a consideration that is relevant to a statute of repose," the majority wrote in the November opinion, filed to the court's website. The ruling is in line with a trial court's decision to dismiss the case but reverses a June 2014 appellate court opinion that revived the suit, with that court reasoning that, since the Foltas couldn't recover under the WCA and WODA, the two laws didn't apply and Folta could precede with his suit under common law provisions. That is expressly against the wish of the legislature in writing the two laws, however, because lawmakers wanted to limit litigation against employers by banning the common law claims that workers sued under in the past, the state Supreme Court ruled. "We are cognizant of the harsh result in this case," the majority said in an opinion penned by Justice Mary Jane Theiss. "Nevertheless, ultimately, whether a different balance should be struck under the acts given the nature of the injury and the current medical knowledge about asbestos exposure is a question more appropriately addressed to the legislature." Justices Charles Freeman and Thomas Kilbride dissented, arguing that the laws were more correctly interpreted as authorizing claims to move forward so long as "the injury was not compensable under the act." Folta's claims were clearly not compensable under the acts due to the statute of repose, they said, so the suit should be allowed to proceed under other theories. The dissenting justices said that the majority failed to take into consideration the intention of the legislature to provide injured employees with a right to recover and, instead of viewing the statute as a whole, mistakenly interpreted it piece by piece. "In construing a statute, courts presume that the General Assembly did not intend absurdity, inconvenience or injustice," according to the dissent, authored by Justice Freeman. "In my view, the majority's interpretation cannot be the law." Justice Robert Thomas did not participate in the ruling. Attorneys from both parties couldn't be reached for immediate comment. The Foltas are represented by J. Timothy Eaton and Jonathan B. Amarilio of Taft Stettinius & Hollister LLP, Nicholas J. Vogelzang of Connelly & Vogelzang LLC, and Donald P. Blydenburgh and Jerome H. Block of Levy Phillips & Konigsberg LLP. Ferro Engineering is represented by Joshua G. Vincent, Craig T. Liljestrand, Kimberly A. Jansen, Paul M. Markese Jr. and Abigail M. Higgins of Hinshaw & Culbertson LLP. The suit is Folta v. Ferro Engineering, case number 118070, in the Illinois Supreme Court. ASBESTOS UPDATE: Missoula Food Bank Site Has Fibro in Soil ---------------------------------------------------------- Winnie Dortch, writing for NBC Montana, reported that the Missoula Food Bank aims to move to its new location at the corner of Catlin and Wyoming Street in January 2017, but first the asbestos- contaminated soil at the site has to be cleaned up. Food bank executive director Aaron Brock says they chose the site because it was the most cost efficient. "We knew when we bought it it was a bit surface-soil contaminated, not that big of a deal, but something we knew had to be cleaned," said Brock. Exposure to asbestos can cause lung cancer. There are legal requirements that prohibit anyone from reusing contaminated soil. The site was previously a car lot and mechanic shop. Brock says the soil is filled with motor oil and antifreeze. An environmental assessment was conducted on the property before it was purchased. A $100,000 grant from the Environmental Protection Agency will be used to redevelop the contaminated area. The cleanup operation will begin in December. Program services coordinator Jessy Lee says the move will allow the food bank to better serve more people. "Hopefully folks can get in and out much quicker and don't have to wait. Sometimes the wait at the end of the month is about two hours," said Lee. Food bank employees say they are working with donors to get more funding for the new location. ASBESTOS UPDATE: Fibro Halts School Board Renewal Strategy ---------------------------------------------------------- Richard Leitner, writing for Hamilton Mountain News, reported that the Hamilton-Wentworth District School Board's entire high school revitalization strategy is being put on hold until trustees get a better handle on the asbestos that stalled plans to build new science labs at Sherwood over the summer. Board chair Todd White pushed for the moratorium on all upgrades other than those already underway after staff estimated renovating Sherwood will cost at least $36 million -- including up to $5 million for asbestos removal. Rebuilding the east Mountain school, opened in 1967, is meanwhile pegged at $41 million, with up to $7 million of the bill for demolition and asbestos removal. An outside consultant has been hired to do a more detailed assessment, including on where it's not possible to do renovations while the school is occupied, for a report to be presented to trustees in January. "We said we want to do this to all of our schools, but we didn't actually look at the schools and the feasibility studies to actually figure out the real costs." The board has already spent $2.8 million on Sherwood upgrades, including ones contracted or underway to build a new washroom by the gyms and replace all doors, windows and the Gym C floor. The moratorium on new high-school renovation projects also applies to a separate strategy to upgrade playing fields. White said the pause is necessary because Sherwood and Ancaster High were the first of eight older high schools identified for major improvements following last term's decision to close seven others and build two new ones. He said the board has $27 million for the work -- money earmarked for the new Henderson on the south Mountain before the province agreed to fund it -- but can also draw on $20 million in annual renewal grants it gets for all 108 schools. Other high schools in the upgrade queue include MacNab, Westmount, Orchard Park, Glendale, Churchill and Westdale. "We said we want to do this to all of our schools, but we didn't actually look at the schools and the feasibility studies to actually figure out the real costs," White told members of the finance and facilities committee. "I don't think it's any secret -- it's been quite apparent for the past couple of years -- that Sherwood is in the worst condition of those eight, but I wouldn't say that the other ones are necessarily that far off." A staff report outlines four options at Sherwood: renovate in stages or all at once at cost of at least $36 million, or rebuild on the building's existing footprint or neighbouring playing fields for $41 million if the province provides funding. The estimates are apart from any costs for moving students off site or into portables on the school's property during the work. Central Mountain trustee Dawn Danko said she's "not keen" on rebuilding Sherwood or doing all renovations at once, suggesting another option is to just upgrade the science labs and temporarily move students to Hill Park, closed since June 2014. "We do the work that we promised to do in each of the schools. I don't believe that we need to do everything," she said. "I think we do need to look at being realistic." Trustee Kathy Archer, who represents Sherwood, said she wants to see the more detailed assessment in January before making any decisions. "I think it's best to wait and see what is in that report and then we can go from there and ask more questions and get the answers," she said. According to figures previously provided to Hamilton Community News, the board has spent $4.9 million upgrading Ancaster High. Aside from new science labs, the work included major roof repairs, two new barrier-free washrooms, retrofitting four classrooms and renovations to existing washrooms and the library/learning commons. Asked why the board didn't encounter similar asbestos problems there, senior facilities officer David Anderson said staff and an outside consultant found Sherwood's abatement challenges more complex. "Every building is a little bit different," he said. ASBESTOS UPDATE: Union Calls for Licensing of Fibro Removal Cos. ---------------------------------------------------------------- Janet Brown, writing for CKNW.com, reported that the BC government is being called on to implement mandatory licensing of all asbestos removal companies. The BC Insulators Union says B.C. is one of only a few jurisdictions with no licensing when it comes to asbestos removal. Spokesperson Lee Loftus says the province should licence contractors who work in asbestos abatement, especially those doing demolition or renovation of older buildings. "We want to make sure those that are doing it are properly governed by the rules that are in place for worker safety but we also want to make sure the neighbourhoods are protected from the dust and hazards that are being released by the type of this activity." Asbestos causes 60% of workplace deaths. ASBESTOS UPDATE: Man Claims Fibro Exposure Caused Mesothelioma -------------------------------------------------------------- Louisiana Record reported that a former U.S. Navy serviceman says he contracted mesothelioma from exposure to asbestos during his eight years of service. William C. Bell filed a lawsuit Dec. 1 in Civil District Court for the Parish of Orleans against Foster Wheeler Energy Corp., York International Corp., Cooper Industries, et al alleging liability for personal injury. According to the complaint, Bell was exposed to asbestos between 1960 and 1968 as he served aboard the USS Noble, the USS Grapple, the USS Bainbridge, the USS Samuel N. Moore and other vessels. Diagnosed Sept. 3 with mesothelioma, an aggressive form of lung cancer traced to asbestos, Bell says the defendants are liable for illnesses he contracted from inhalation of the product's dust. Bell seeks an unspecified amount of damages plus interest and court costs. He is represented by attorney Jonathan B. Clement, Perry J. Roussel Jr., Lauren R. Clement and Benjamin P. Dinehart of the Mandeville firm of Roussel & Clement. Civil District Court for the Parish of Orleans Case number 2:15- cv-06394 ASBESTOS UPDATE: City Hall Closed Due to Fibro Contamination ------------------------------------------------------------ Alex Paul, writing for Albany Democrat-Herald, reported that the Lebanon City Hall was closed -- and, depending on what air quality specialists found, may be closed further -- due to potential asbestos contamination in parts of the building, according to City Manager Gary Marks. All 18 employees were sent home or were working remotely, he said. Marks said the city has been working on ventilation system issues for about a year. "We had a contractor in last night removing asbestos, and when our staff came to work this morning, we found dust and some particulates on desks," he said. Marks wasn't sure if the dust was actually asbestos, but he didn't want to take any chances with employee health. "We believe the asbestos was contained, but the dust raised too many questions," he said. Air quality specialists were expected on-site by late afternoon. The results of their tests may not be known, Marks said. In 2013, the Lebanon City Council began looking for other buildings in the community that could be refurbished into a new City Hall. Engineering studies completed in 1994 and 2012 showed the current building "would perform poorly during a seismic event and the potential for collapse failure is significant." The studies also indicated making structural improvements to the current building would "likely exceed the cost of constructing a new contemporary building on an existing site." City Hall is actually a composite of three buildings of varying sizes and at one time housed both the fire and police departments. The city has also worked to alleviate mold issues in the building, council members have been told at previous meetings. ASBESTOS UPDATE: DNR Fibro Report Has Errors, School Dist. Says --------------------------------------------------------------- Rick Smith, writing for The Gazette, reported that the Cedar Rapids school district said an Iowa Department of Natural Resources report that alleges violations of asbestos removal requirements earlier this year at Washington High School contains errors and incomplete information. The DNR "litigation report," which came to light, asks the state's Environmental Protection Commission to refer the alleged violations on to the Iowa Attorney General for possible litigation against the school district, as owner of the high school, and against the district's asbestos removal contractor, Abatement Specialties of Cedar Rapids. The district and contractor face fines if the litigation proceeds and they lose. In a statement, Marcia Hughes, the school district's community relations supervisor, said the district reviewed the DNR report with the district's project architect/engineer and legal counsel and found fault in it. First, the district said there were no students or staff members in parts of the school where the DNR alleges that uncontained asbestos was found, More stories from Rick Smith C.R. considers tax break to keep 50 jobs from Marion CEDAR RAPIDS - Terex is looking for a new home for its 50 ... Linn supervisors look to the video era CEDAR RAPIDS - Come 2016, the Linn County Board of Superv ... A champion of the poor and homeless shifts gears CEDAR RAPIDS - Homelessness, hunger and poverty don't alw ... In the litigation report, the DNR stated that its review of employee records indicates that 119 workers from at least eight construction businesses were on site at Washington High School from June 8 though July 15, through the DNR said it was "unknown how many school employees, students and general public were in the school during that same time period." In its response to the DNR report, the district also said it immediately took appropriate measures when it was made aware of uncontained asbestos. In addition, the district said it "proactively" closed Washington High School for a few days in July after "one air sample" in a construction zone was "slightly higher" than permitted. Finally, the district said it has cooperated with the DNR and followed its directives at all times related to the asbestos issue. In the DNR litigation report, the district and its contractor are accused of failing to remove all regulated asbestos containing material before demolition; failing to keep all regulated asbestos containing material adequately wet; and failing to seal all regulated asbestos containing material in leak-tight containers. The state commission has been scheduled to vote on the DNR litigation request on Dec. 15, but the matter has been put off until January to give the DNR a chance to talk about the report with the contractor. The DNR has talked to the district, the DNR has said. Kelli Book, an attorney for the DNR, said she expected the school district and the contractor to make a presentation to the state commission in January before the commission decides whether to pursue litigation. Book said the Attorney General can seek a penalty of $10,000 a day per violation, but she said the Attorney General typically seeks to reach a settlement before a matter heads into court. Abatement Specialists had no comment on the matter. ASBESTOS UPDATE: Andrea Electronics Continues to Defend RI Suit --------------------------------------------------------------- Andrea Electronics Corporation continues to defend itself against an asbestos-related personal injury lawsuit pending in a Rhode Island court, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2015. In December 2010, Audrey Edwards, Executrix of the Estate of Leon Leroy Edwards, filed a law suit in the Superior Court of Providence County, Rhode Island, against 3M Company and over 90 other defendants, including the Company, alleging that the Company processed, manufactured, designed, tested, packaged, distributed, marketed or sold asbestos containing products that contributed to the death of Leon Leroy Edwards. The Company received service of process in April 2011. The Company has retained legal counsel and has filed a response to the complaint. The Company believes the lawsuit is without merit and intends to file a Motion for Summary Judgment to that affect. Accordingly, the Company does not believe the lawsuit will have a material adverse effect on the Company's financial position or results of operations. Andrea Electronics Corporation is engaged in designing, developing and manufacturing microphone technologies and products for improving speech-based applications software and communications that require clear voice signals. ASBESTOS UPDATE: Rockwell Had $17.8MM Reserve at September 30 ------------------------------------------------------------- Rockwell Automation, Inc., had reserve of $17.8 million for product liability claims, including asbestos costs, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2015. The Company states: "One of our principal self-insurance programs covers product liability where we self-insure up to a specified dollar amount. Claims exceeding this amount up to specified limits are covered by insurance policies issued by commercial insurers. We estimate the reserve for product liability claims using our claims experience for the periods being valued. Adjustments to the product liability reserves may be required to reflect emerging claims experience and other factors such as inflationary trends or the outcome of claims. The reserve for product liability claims, including asbestos costs, was $17.8 million, net of $10.4 million of related receivables, and $14.8 million, net of $7.5 million of related receivables, as of September 30, 2015 and 2014, respectively. "Various lawsuits, claims and proceedings have been or may be instituted or asserted against us relating to the conduct of our business. We have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of our products many years ago. "We accrue for costs related to the legal obligation associated with the retirement of a tangible long-lived asset that results from the acquisition, construction, development or the normal operation of the long-lived asset. The obligation to perform the asset retirement activity is not conditional even though the timing or method may be conditional. Identified conditional asset retirement obligations include asbestos abatement and remediation of soil contamination beneath current and previously divested facilities. We estimate conditional asset retirement obligations using site-specific knowledge and historical industry expertise. A significant change in the costs or timing could have a significant effect on our estimates. We recorded these liabilities in the Consolidated Balance Sheet, which totaled $0.4 million and $0.3 million in other current liabilities at September 30, 2015 and 2014, respectively, and $19.8 million and $21.9 million in other liabilities at September 30, 2015 and 2014, respectively. "In conjunction with the sale of our Dodge mechanical and Reliance Electric motors and motor repair services businesses, we agreed to indemnify Baldor Electric Company for costs and damages related to certain legacy legal, environmental and asbestos matters of these businesses arising before January 31, 2007, for which the maximum exposure is capped at the amount received for the sale. We estimate the potential future payments we could incur under these indemnifications may approximate $6.6 million, of which $1.0 million and $0.8 million has been accrued in other current liabilities at September 30, 2015 and 2014, respectively, and $5.6 million and $7.0 million has been accrued in other liabilities at September 30, 2015 and 2014, respectively. A significant change in the costs or timing could have a significant effect on our estimates." Rockwell Automation, Inc., is a provider of industrial automation power, control and information solutions that help manufacturers achieve a competitive advantage for their businesses. The Company operates in two segments: Architecture & Software and controls Products & Solutions. In the United States, Canada and certain other countries, the Company sells primarily through the independent distributors in conjunction with its direct sales force. In the remaining countries, the Company sells through a combination of its direct sales force. ASBESTOS UPDATE: Rockwell Automation Continues to Defend PI Suits ----------------------------------------------------------------- Rockwell Automation, Inc., continues to defend itself against various lawsuits alleging personal injury as a result of exposure to asbestos, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2015. The Company states: "Various other lawsuits, claims and proceedings have been or may be instituted or asserted against us relating to the conduct of our business, including those pertaining to product liability, environmental, safety and health, intellectual property, employment and contract matters. Although the outcome of litigation cannot be predicted with certainty and some lawsuits, claims or proceedings may be disposed of unfavorably to us, we believe the disposition of matters that are pending or have been asserted will not have a material effect on our business, financial condition or results of operations. "We (including our subsidiaries) have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of our products many years ago. Currently there are a few thousand claimants in lawsuits that name us as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and we are indemnified for most of the costs. However, we have agreed to defend and indemnify asbestos claims associated with products manufactured or sold by our former Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by us, which occurred on January 31, 2007. We are also responsible for half of the costs and liabilities associated with asbestos cases against our former Rockwell International Corporation's divested measurement and flow control business. But in all cases, for those claimants who do show that they worked with our products or products of divested businesses for which we are responsible, we nevertheless believe we have meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition on the part of many claimants. We defend those cases vigorously. Historically, we have been dismissed from the vast majority of these claims with no payment to claimants. "We have maintained insurance coverage that we believe covers indemnity and defense costs, over and above self-insured retentions, for claims arising from our former Allen-Bradley subsidiary. Following litigation against Nationwide Indemnity Company (Nationwide) and Kemper Insurance (Kemper), the insurance carriers that provided liability insurance coverage to Allen- Bradley, we entered into separate agreements on April 1, 2008 with both insurance carriers to further resolve responsibility for ongoing and future coverage of Allen-Bradley asbestos claims. In exchange for a lump sum payment, Kemper bought out its remaining liability and has been released from further insurance obligations to Allen-Bradley. Nationwide entered into a cost share agreement with us to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. We believe that this arrangement with Nationwide will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. "The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on our experience defending asbestos claims, we do not believe these lawsuits will have a material effect on our financial condition or results of operations. "We have, from time to time, divested certain of our businesses. In connection with these divestitures, certain lawsuits, claims and proceedings may be instituted or asserted against us related to the period that we owned the businesses, either because we agreed to retain certain liabilities related to these periods or because such liabilities fall upon us by operation of law. In some instances the divested business has assumed the liabilities; however, it is possible that we might be responsible to satisfy those liabilities if the divested business is unable to do so. "In connection with the spin-offs of our former automotive business, semiconductor systems business and Rockwell Collins avionics and communications business, the spun-off companies have agreed to indemnify us for substantially all contingent liabilities related to the respective businesses, including environmental and intellectual property matters. "In conjunction with the sale of our Dodge mechanical and Reliance Electric motors and motor repair services businesses, we agreed to indemnify Baldor Electric Company for costs and damages related to certain legal, legacy environmental and asbestos matters of these businesses arising before January 31, 2007, for which the maximum exposure would be capped at the amount received for the sale." Rockwell Automation, Inc., is a provider of industrial automation power, control and information solutions that help manufacturers achieve a competitive advantage for their businesses. The Company operates in two segments: Architecture & Software and controls Products & Solutions. In the United States, Canada and certain other countries, the Company sells primarily through the independent distributors in conjunction with its direct sales force. In the remaining countries, the Company sells through a combination of its direct sales force. ASBESTOS UPDATE: Meritor Had 5,600 Maremont Claims at Sept. 27 -------------------------------------------------------------- Meritor, Inc., reported that its subsidiary, Maremont Corporation, had 5,600 pending asbestos-related claims, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 27, 2015. Maremont Corporation, a subsidiary of Meritor, manufactured friction products containing asbestos from 1953 through 1977, when it sold its friction product business. Arvin Industries, Inc., a predecessor of the company, acquired Maremont in 1986. Maremont and many other companies are defendants in suits brought by individuals claiming personal injuries as a result of exposure to asbestos-containing products. Maremont had approximately 5,600 and 5,700 pending asbestos- related claims at September 30, 2015 and 2014, respectively. Although Maremont has been named in these cases, very few cases allege actual injury and, in the cases where actual injury has been alleged, very few claimants have established that a Maremont product caused their injuries. Plaintiffs' lawyers often sue dozens or even hundreds of defendants in individual lawsuits, seeking damages against all named defendants irrespective of the disease or injury and irrespective of any causal connection with a particular product. For these reasons, the total number of claims filed is not necessarily the most meaningful factor in determining Maremont's asbestos-related liability. Meritor, Inc., is a global supplier of a range of integrated systems and components to original equipment manufacturers (OEMs) and the aftermarket for the commercial vehicle, transportation and industrial sectors. ASBESTOS UPDATE: Meritor Unit Has $41-Mil. Fibro Recoveries ----------------------------------------------------------- Meritor, Inc., disclosed that its subsidiary, Maremont Corporation, had $41 million asbestos-related recoveries, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 27, 2015. Maremont Corporation engaged Bates White LLC, a consulting firm with extensive experience estimating costs associated with asbestos litigation, to assist with determining the estimated cost of resolving pending and future asbestos-related claims that have been, and could reasonably be expected to be, filed against Maremont. Bates White advised Maremont that it would be possible to determine an estimate of a reasonable forecast of the probable settlement and defense costs of resolving pending and future asbestos-related claims, based on historical data and certain assumptions with respect to events that occur in the future. Bates White provided a reasonable and probable estimate that consisted of a range of equally likely possibilities of Maremont's obligation for asbestos personal injury claims over the next ten years of $71 million to $100 million. After consultation with Bates White, Maremont recognized a liability for pending and future claims over the next ten years of $71 million and $73 million as of September 30, 2015 and 2014, respectively. The ultimate cost of resolving pending and future claims is estimated based on the history of claims and expenses for plaintiffs represented by law firms in jurisdictions with an established history with Maremont. Maremont recognized $2 million of income and a $10 million charge in the fourth quarter of fiscal years 2015 and 2014, respectively, associated with its annual valuation of asbestos-related liabilities. Maremont has recognized incremental insurance receivables associated with recoveries expected for asbestos-related liabilities as the estimate of asbestos-related liabilities for pending and future claims changes. However, Maremont currently expects to exhaust the limits of its settled insurance coverage prior to the end of the ten-year forecasted liability period. Maremont believes it has additional insurance coverage, however, certain carriers have disputed coverage under policies they issued. The following assumptions were made by Maremont after consultation with Bates White and are included in their study: * Pending and future claims were estimated for a ten-year period ending in fiscal year 2025; * Maremont believes that the litigation environment could change significantly beyond ten years and that the reliability of estimates of future probable expenditures in connection with asbestos-related personal injury claims declines for each year further in the future. As a result, estimating a probable liability beyond ten years is difficult and uncertain; * On a per claim basis, defense and processing costs for pending and future claims will be at the level consistent with Maremont's prior experience; * Potential payments made to claimants from other sources, including other defendants and 524(g) trusts, favorably impact Maremont's estimated liability in the future; and * The ultimate indemnity cost of resolving nonmalignant claims with plaintiff's law firms in jurisdictions without an established history with Maremont cannot be reasonably estimated. Maremont has insurance that reimburses a substantial portion of the costs incurred defending against asbestos-related claims including indemnity paid on those claims. The insurance receivable related to asbestos-related liabilities is $41 million and $49 million as of September 30, 2015 and 2014, respectively. The receivable is for coverage provided by one insurance carrier based on a coverage-in-place agreement. Maremont currently expects to exhaust the remaining limits provided by this coverage sometime in the next ten years. Maremont maintained insurance coverage with other insurance carriers that management believes covers indemnity and defense costs. Maremont has incurred liabilities allocable to these policies, but has not yet billed these insurance carriers, and no receivable has been recorded for these policies, as those carriers dispute coverage. During fiscal year 2013, Maremont reinitiated a lawsuit against these carriers, seeking a declaration of its rights to insurance for asbestos claims and to facilitate an orderly and timely collection of insurance proceeds. However, there can be no assurance that the lawsuit will ultimately result in insurance coverage of defense and indemnity costs for Maremont. The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Maremont could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Maremont in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; Maremont's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers, and the continuing solvency of various insurance companies. If the assumptions with respect to the estimation period, the nature of pending and future claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Maremont's asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on our financial position and results of operations. Meritor, Inc., is a global supplier of a range of integrated systems and components to original equipment manufacturers (OEMs) and the aftermarket for the commercial vehicle, transportation and industrial sectors. ASBESTOS UPDATE: Haynes Int'l Continues to Defend PI Suits ---------------------------------------------------------- Haynes International, Inc., continues to defend asbestos-related personal injury suits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2015. The Company is currently, and has in the past been, subject to claims involving personal injuries allegedly relating to its products and processes. For example, the Company is presently involved in two actions involving welding rod-related injuries, which were filed in California state court against numerous manufacturers, including the Company, in May 2006 and February 2007, respectively, alleging that the welding-related products of the defendant manufacturers harmed the users of such products through the inhalation of welding fumes containing manganese. The Company (together with a number of other manufacturer defendants) is also involved in three actions alleging that asbestos in its facilities harmed the plaintiffs. The Company believes that it has defenses to these allegations and that, if the Company were to be found liable, the cases would not have a material effect on its financial position, results of operations or liquidity. Haynes International, Inc., develops and manufactures nickel- and cobalt-based alloys, high-temperature alloys and corrosion- resistant alloys. The Company is based in Kokomo, Ind. ASBESTOS UPDATE: Mallinckrodt plc Had 12,750 PI Cases at Sept. 25 ----------------------------------------------------------------- Mallinckrodt plc had 12,750 pending asbestos-related cases, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 25, 2015. Starting with lawsuits brought in July 1976, the Company is also named as a defendant in personal injury lawsuits based on alleged exposure to asbestos-containing materials. A majority of the cases involve product liability claims based principally on allegations of past distribution of products containing asbestos. A limited number of the cases allege premises liability based on claims that individuals were exposed to asbestos while on the Company's property. Each case typically names dozens of corporate defendants in addition to the Company. The complaints generally seek monetary damages for personal injury or bodily injury resulting from alleged exposure to products containing asbestos. The Company's involvement in asbestos cases has been limited because it did not mine or produce asbestos. Furthermore, in the Company's experience, a large percentage of these claims have never been substantiated and have been dismissed by the courts. The Company has not suffered an adverse verdict in a trial court proceeding related to asbestos claims and intends to continue to defend these lawsuits. When appropriate, the Company settles claims; however, amounts paid to settle and defend all asbestos claims have been immaterial. As of September 25, 2015, there were approximately 12,750 asbestos-related cases pending against the Company. The Company estimates pending asbestos claims, claims that were incurred but not reported and related insurance recoveries, which are recorded on a gross basis in the consolidated balance sheets. The Company's estimate of its liability for pending and future claims is based on claims experience over the past five years and covers claims either currently filed or expected to be filed over the next seven years. The Company believes that it has adequate amounts recorded related to these matters. While it is not possible at this time to determine with certainty the ultimate outcome of these asbestos-related proceedings, the Company believes, given the information currently available, that the ultimate resolution of all known and anticipated future claims, after taking into account amounts already accrued, along with recoveries from insurance, will not have a material adverse effect on its financial condition, results of operations and cash flows. Mallinckrodt plc and its subsidiaries is a global company that develops, manufactures, markets and distributes both branded and specialty generic pharmaceuticals, active pharmaceutical ingredients and diagnostic imaging agents. ASBESTOS UPDATE: Scotts Miracle Continues to Defend Fibro Cases --------------------------------------------------------------- The Scotts Miracle-Gro Company continues to defend itself against numerous asbestos-related cases, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2015 The Company has been named as a defendant in a number of cases alleging injuries that the lawsuits claim resulted from exposure to asbestos-containing products, apparently based on the Company's historic use of vermiculite in certain of its products. In many of these cases, the complaints are not specific about the plaintiffs' contacts with the Company or its products. The cases vary, but complaints in these cases generally seek unspecified monetary damages (actual, compensatory, consequential and punitive) from multiple defendants. The Company believes that the claims against it are without merit and is vigorously defending against them. It is not currently possible to reasonably estimate a probable loss, if any, associated with these cases and, accordingly, no reserves have been recorded in the Company's Consolidated Financial Statements. The Company is reviewing agreements and policies that may provide insurance coverage or indemnity as to these claims and is pursuing coverage under some of these agreements and policies, although there can be no assurance of the results of these efforts. There can be no assurance that these cases, whether as a result of adverse outcomes or as a result of significant defense costs, will not have a material effect on the Company's financial condition, results of operations or cash flows. Headquartered in Marysville, Ohio, The Scotts Miracle-Gro Company is engaged in the manufacturing, marketing and sale of branded products for consumer lawn and garden care. The Company's primary customers include home centers, mass merchandisers, warehouse clubs, large hardware chains, independent hardware stores, nurseries, garden centers and food and drug stores. ASBESTOS UPDATE: Cabot Corp. Has 38,000 AO Respiratory Claimants ---------------------------------------------------------------- There were 38,000 claimants in pending cases asserting claims against Cabot Corporation's American Optical Corporation in connection with respiratory products, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2015. The Company states: "We have exposure in connection with a safety respiratory products business that a subsidiary acquired from American Optical Corporation ("AO") in an April 1990 asset purchase transaction. The subsidiary manufactured respirators under the AO brand and disposed of that business in July 1995. In connection with its acquisition of the business, the subsidiary agreed, in certain circumstances, to assume a portion of AO's liabilities, including costs of legal fees together with amounts paid in settlements and judgments, allocable to AO respiratory products used prior to the 1990 purchase by the Cabot subsidiary. In exchange for the subsidiary's assumption of certain of AO's respirator liabilities, AO agreed to provide to the subsidiary the benefits of: (i) AO's insurance coverage for the period prior to the 1990 acquisition and (ii) a former owner's indemnity of AO holding it harmless from any liability allocable to AO respiratory products used prior to May 1982. "Generally, these respirator liabilities involve claims for personal injury, including asbestosis, silicosis and coal worker's pneumoconiosis, allegedly resulting from the use of respirators that are alleged to have been negligently designed and/or labeled. Neither Cabot, nor its past or present subsidiaries, at any time manufactured asbestos or asbestos-containing products. At no time did this respiratory product line represent a significant portion of the respirator market. "The subsidiary transferred the business to Aearo Corporation ("Aearo") in July 1995. Cabot agreed to have the subsidiary retain certain liabilities associated with exposure to asbestos and silica while using respirators prior to the 1995 transaction so long as Aearo paid, and continues to pay, Cabot an annual fee of $400,000. Aearo can discontinue payment of the fee at any time, in which case it will assume the responsibility for and indemnify Cabot against those liabilities which Cabot's subsidiary had agreed to retain. We anticipate that we will continue to receive payment of the $400,000 fee from Aearo and thereby retain these liabilities for the foreseeable future. We have no liability in connection with any products manufactured by Aearo after 1995. "In addition to Cabot's subsidiary, other parties are responsible for significant portions of the costs of respirator liabilities, leaving Cabot's subsidiary with a portion of the liability in only some of the pending cases. These parties include Aearo, AO, AO's insurers, another former owner and its insurers, and a third-party manufacturer of respirators formerly sold under the AO brand and its insurers (collectively, with Cabot's subsidiary, the "Payor Group"). "As of September 30, 2015 and 2014, there were approximately 38,000 and 41,000 claimants, respectively, in pending cases asserting claims against AO in connection with respiratory products. Cabot has contributed to the Payor Group's defense and settlement costs with respect to a percentage of pending claims depending on several factors, including the period of alleged product use. In order to quantify our estimated share of liability for pending and future respirator liability claims, we have engaged, through counsel, the assistance of Hamilton, Rabinovitz & Alschuler, Inc. ("HR&A"), a leading consulting firm in the field of tort liability valuation. The methodology used by HR&A addresses the complexities surrounding our potential liability by making assumptions about future claimants with respect to periods of asbestos, silica and coal mine dust exposure and respirator use. Using those and other assumptions, HR&A estimates the number of future asbestos, silica and coal mine dust claims that will be filed and the related costs that would be incurred in resolving both currently pending and future claims. On this basis, HR&A then estimates the value of the share of these liabilities that reflect our period of direct manufacture and our contractual obligations. Based on the HR&A estimates, we have recorded an $11 million reserve for our estimated share of liability for pending and future respirator claims. We made payments related to our respirator liability of $2 million in each of fiscal 2015, 2014 and 2013." Cabot Corporation is a global specialty chemicals and performance materials company. The Company's principal products are rubber and specialty grade carbon blacks, fumed metal oxides, inkjet colorants, aerogels and cesium formate drilling fluids. Cabot and its affiliates have manufacturing facilities and operations in the United States and approximately 20 other countries. The Company operates in four business segments: Reinforcement Materials; Performance Materials; Advanced Technologies; and Purification Solutions. It is organized into three geographic regions: The Americas; Europe, Middle East and Africa, and Asia Pacific. ASBESTOS UPDATE: Esterline Still Subject to Potential Liabilities ----------------------------------------------------------------- Esterline Technologies Corporation remains subject to potential liabilities relating to certain products its manufactured containing asbestos, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended . The Company states: "We had insurance coverage for asbestos exposures in products prior to November 1, 2003. Commencing November 1, 2003, insurance coverage for asbestos claims has been unavailable. Our policy coverage for exposures prior to November 1, 2003, declines ratably, by formula, as the number of years increases since coverage expired. Accordingly, we continue to have partial insurance coverage for exposure to asbestos contained in our products prior to November 1, 2003. To date, asbestos claims have not been material to our consolidated results of operations or financial position. "As a result of the termination of the NASA Space Shuttle program, manufacturing of rocket engine insulation material containing asbestos ceased in July 2010. In December 2011, we dismantled our facility used to manufacture the asbestos-based insulation for the Space Shuttle program. We have an agreement for indemnification for certain losses we may incur as a result of asbestos claims relating to a product we previously manufactured, but we cannot assure that this indemnification agreement will fully protect us from losses arising from asbestos claims. "To the extent we are not insured or indemnified for losses from asbestos claims relating to our products, asbestos claims could adversely affect our operating results and our financial condition." Esterline Technologies Corporation is a manufacturing company serving aerospace and defense customers. The Company designs, manufactures and markets engineered products and systems. ASBESTOS UPDATE: Court Partially Dismisses "Rhoton" --------------------------------------------------- James Rhoton and Sarah Rhoton filed an action against 3M Company and Arizant Healthcare Inc. seeking damages under several theories for alleged injuries sustained when Mr. Rhoton developed a MRSA infection after surgery in which a Bair Hugger Forced Air Warming device manufactured by defendants was used. Defendants filed a joint motion to dismiss the complaint. Judge William M. Acker, Jr., of the United States District Court for the Northern District of Alabama, Southern Division, granted the Defendants' motion as to Counts Four and Five and said counts will be dismissed with prejudice. The Defendants' motion is denied as to all other counts. The case is JAMES RHOTON, et al, Plaintiffs, v. 3M Company, et al., Defendants, Civil Action No. 2:15-cv-1306-WMA (N.D. Ala.). A full-text copy of the Memorandum Opinion dated December 3, 2015 is available at http://is.gd/uMMHFrfrom Leagle.com. James Rhoton, Plaintiff, is represented by Christopher T Hellums, Esq. -- ChrisH@pittmandutton.com -- PITTMAN DUTTON & HELLUMS PC & Jonathan S Mann, Esq. -- JonM@pittmandutton.com -- PITTMAN DUTTON & HELLUMS. Sarah Rhoton, Plaintiff, is represented by Christopher T Hellums, PITTMAN DUTTON & HELLUMS PC & Jonathan S Mann, PITTMAN DUTTON & HELLUMS. 3M Company, Defendant, is represented by Jerry W Blackwell, Esq. - - blackwell@blackwellburke.com -- BLACKWELL BURKE PA, T Michael Brown, Esq. -- mbrown@babc.com -- BRADLEY ARANT BOULT CUMMINGS LLP & Jessica K Givens, Esq. -- jgivens@babc.com -- BRADLEY ARANT BOULT CUMMINGS LLP. Arizant Healthcare, Inc., Defendant, is represented by Jerry W Blackwell, BLACKWELL BURKE PA, T Michael Brown, BRADLEY ARANT BOULT CUMMINGS LLP & Jessica K Givens, BRADLEY ARANT BOULT CUMMINGS LLP. ASBESTOS UPDATE: Court Grants Summary Judgment Bid in "Feaster" --------------------------------------------------------------- In an action, Samuel R. Feaster alleges he contracted mesothelioma while employed at New York Shipbuilding and Drydock Company in Camden, New Jersey, and Sun Ship Yard in Chester, Pennsylvania. Presently, before the Court are three separate Motions for Summary Judgment filed by Defendants Owens-Illinois Inc., Brand Insulations Inc., and Durametallic Corp. Magistrate Judge Karen M. Williams of the United States District Court for the District of New Jersey, granted the Defendants' Motions for Summary Judgment. Owens-Illinois, Brand, and Durametallic, according to Magistrate Williams, are entitled to summary judgment because the Plaintiff has failed to adduce any evidence demonstrating that the Defendants manufactured, supplied or distributed the asbestos- containing product which the Plaintiff was exposed to on a frequent and regular basis. The case is SAMUEL R. FEASTER, Plaintiff, v. A.W. CHESTERTON COMPANY, et al., Defendants, Civil No. 14-3417 (KMW)(D.N.J.). A full-text copy of the Opinion dated December 3, 2015, which is available at http://is.gd/gSDWFcfrom Leagle.com SAMUEL R. FEASTER, Plaintiff, represented by Michael B. Leh, Esq. -- mleh@lockslaw.com -- LOCKS LAW FIRM. GENERAL ELECTRIC COMPANY, Defendant, represented by Christopher J. Keale, Esq. -- christopher.keale@sedgwicklaw.com -- SEDGWICK LLP, David Schuyler Blow, Esq. -- david.blow@sedgwicklaw.com -- SEDGWICK LLP, Joanne Hawkins, Speziali, Esq. -- GREENWALD & HAWKINS P.C. & Michael A. Tanenbaum, Esq. -- michael.tanenbaum@sedgwicklaw.com -- SEDGWICK LLP. GOULDS PUMP INC, Defendant, represented by Steven Frederik Satz, Esq. -- ssatz@hoaglandlongo.com -- HOAGLAND LONGO MORAN DUNST & DOUKAS. METROPOLITAN LIFE, Defendant, represented by Richard V. Jones, Esq. -- LAW OFFICES OF ROGER V. JONES, LLP & Roger V. Jones, -- LAW OFFICES OF ROGER V. JONES, LLP. ********* 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. Marion Alcestis A. Castillon, 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *