/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160701.mbx C L A S S A C T I O N R E P O R T E R Friday, July 1, 2016, Vol. 18, No. 131 Headlines ABM INDUSTRIES: PLF Files Amicus Brief in Labor Class Action AIRBNB: Has Until July 13 to Respond to Discrimination Claims ALIBABA: New York Court Tosses IPO Class Action ALIMENTATION COUCHE-TARD: "Hazel" Suit to Recover Overtime Pay ALLIANCEONE RECEIVABLES: Illegally Collects Debt, Action Claims ALLIEDBEAN DEMOLITION: Faces "Wright" Class Suit in S.D. Florida AMCAP MORTGAGE: "Carranco" Suit Seeks to Recover Unpaid Wages APPLE INC: Judge Dismisses Error 53 Class Action ARNET PHARMACEUTICAL: "Cardentey" Lawsuit Seeks OT Pay Under FLSA BANANA BOAT: Faces Class Action Over Mislabeled Sunscreen BANCO BRADESCO: August 2 Lead Plaintiff Motion Deadline Set BANK OF AMERICA: Philadelphia Files Antitrust Class Action CABO CANTINA: Faces Suit Over 4.9% Service Charge CANADIAN PACIFIC: Lac-Megantic Won't Pursue Train Derailment Suit CFL FURNITURE: "Ardino" Lawsuit Seeks Overtime Pay Under FLSA CONTRA COSTA: Must Pay 80% of Retiree Benefits, Judge Says CRISAK INC: "Martin" Suit Seeks to Recover Unpaid Wages DREAMWORKS ANIMATION: CEO Sued Over Alleged Merger Side Deal E. I. DUPONT: Must Respond to 3rd Amended Class Action E. I. DUPONT: Judge Hears Input on Smelter Settlement Surplus ELECTROLUX HOME: Faces "Beck" Suit Over "Defective" Dishwashers FIAT CHRYSLER: Sued Over Defective Clutches in Dodge Darts FIAT CHRYSLER: Infotainment System Does Not Work, Suit Says FLATHEAD ELECTRIC: "Wolfe" Suit Seeks to Recover Patronage Capital GENERAL MOTORS: Exaggerates Mileage of Vehicles, Class Suit Says GLAXOSMITHKLINE LLC: "Jones" Suit Alleges Zofran Side Effects HONDA: Acura Owners File Class Action Over HandsFreelink Defect HOUSEHOLD INT'L: Securities Suit Hinged on Financial Expert HUSTLERS CLUB: Violates Labor Laws, Dancers Claim ICCI GROUP: "Conn" Suit to Recover Unpaid Back Wages INT'L ASSOCIATION: Russian Athletes to File Class Action INOVALON: Faces Investors' Class Action in Manhattan IRAN: Supports Iraq-Based Terrorists, Class Suit Claims JOHNSON & JOHNSON'S: Baby Powder Suits Expected to Pile Up LANDSCAPE MAINTENANCE: Faces "Curet" Lawsuit in N.J. Under FLSA LUDLOW MUSIC: Sued Over "This Land Is Your Land" Copyright MARS INC: Sued Over False Ad for Uncle Ben's Ready Rice MARTIN BOYLE: Appeals Court Tosses Gulf Stream Class Action Bid MARYLAND: Detainees File Class Suit Over Commitment Delays MDL 2493: Placeholder Motions for Class Certification Denied MICHIGAN: State Police Sued Over Marijuana Reporting Policy MILLERCOORS LLC: Court Tosses Lawsuit Over Blue Moon Beer MITRA QSR: "Woolford" Suit Seeks Unpaid Wages Under FLSA MODESTO, CA: One of MID Class Actions May Face Jury Trial MU HEALTH CARE: Faces Class Action Over Hospital Charges NEW CARLTON: "Rumph" Suit Seeks Overtime Pay Under FLSA NEW YORK: Driver Sues Over Long Island Surcharges on Tickets NISSAN: Hid Problems with Timing Chain Tension System, Suit Says PSB SATELLITES: "Villalba" Suit to Recover Minimum, Overtime Pay SODEXO INC: "Crenshaw" Suit Seeks OT and Minimum Wages SONY CORP: Settles PlayStation 3 Owners' Class Action STAR TEX: Faces "Castillo" Lawsuit Seeks OT Pay Under FLSA STATE FARM: Sued in W.D. Mo. Over Life Insurance Policy Charges SYSCO CORPORATION: "Navarro" Suit Removed to C.D. California SYSCO CORPORATION: "Frieri" Class Suit Removed to S.D. California SYSCO CORPORATION: "Navarro" Suit Removed to C.D. California TATA CONSULTANCY: Blumenthal Nordrehaug Files Class Action TELEBRANDS: "Memoli" Class Suit Removed to New Jersey Dist. Ct. TEXAS: Supreme Court to Hear Case Over Deaf Driver Schools TICKETMASTER: Reveals Eligible Shows for Class Action Settlement TOM & ANGIE'S: "Kraemer" Suit Seeks Overtime Pay Under FLSA TRANSENTERIX INC: "Ravey" Sues over Share Price Drop TRUMP UNIVERSITY: Seeks to Decertify Student Class Action TRUMP UNIVERSITY: July 13 Hearing on Amended Protective Order Bid TRUMP UNIVERSITY: Attorneys Fight Racketeering Claims TRUMP UNIVERSITY: Workshops Held Over Foreclosure Crisis TWILIO INC: Sued in W.D. Wash. Over TCPA Violation UBER & LYFT: Councilman Sues Austin to Nix Background Check Rule UBER TECHNOLOGIES: "Jbara" Suit to Recover Basic Benefits UBER TECHNOLOGIES: Drivers in Los Angeles, Milwaukee File Suit UBER TECHNOLOGIES: 9th Cir. Heard Arguments on Arbitration Rift ULTRA SOFT: "Santos" Suit Seeks Proper Wages Under FLSA UNIVERSAL PROTECTION: "Calderon" Suit Seeks OT Pay Under FLSA VAN SANT: Faces "Barker" Lawsuit Seeking Overtime Pay Under FLSA VEREIT INC: Faces Gov't Probe, Class Suit Says VISA & MASTERCARD: Home Depot Sues Over Fraud Liability Shift VOLKSWAGEN AG: Reaches $14.7-Bil. Deal to Settle Emissions Case VOLKSWAGEN AG: BRS Files Lawsuit in Calif. Under Securities Act VOLKSWAGEN AG: Labaton Sucharon Files Securities Class Action WAFFLE HOUSE: Hearing Today on Arbitration Bid WEATHERFORD US: "Jones" Sues Over Underfunded Pension Plan WENDY'S CO: AOD Federal Files Lawsuit in Penn. Over Data Breach WENDY'S COMPANY: Veridian Sues in W.D. Penn. Over Data Breach WENDY'S: No. of Franchises Breached Higher Than Initially Thought WHIRLPOOL CORP: Faces Class Suit Over Self Cleaning Ovens WINGED FOOT GOLF CLUB: Sued Over Alleged 50-Year Fraud * 9th Circuit Examines Use of Rule 68 to Moot Class Action * Companies Subject to TCPA Class Actions Should Weigh MDL Risks Asbestos Litigation ASBESTOS UPDATE: Travelers Insurance Coverage Ruling Affirmed ASBESTOS UPDATE: Court Affirms Order Dismissing "Boudreaux" ASBESTOS UPDATE: CSC Retains DynCorp Indemnities at March 31 ASBESTOS UPDATE: Graham Corp. Still Defends Suits at March 31 ASBESTOS UPDATE: Lift Stay Issue Remains Pending in D/C Ch. 11 ASBESTOS UPDATE: Rexnord Continues to Defend Suits at March 31 ASBESTOS UPDATE: Tidewater Continues to Defend Suits at March 31 ASBESTOS UPDATE: Parents Sue Contractors Over Asbestos Claim ASBESTOS UPDATE: WV Firm Blames Almost 300 Companies in Suit ASBESTOS UPDATE: EPA Removing Asbestos From Former School ASBESTOS UPDATE: Court Upholds $8MM Verdict for Carpenter's Widow ASBESTOS UPDATE: Victim's Family Fight Over GBP80K Payout ASBESTOS UPDATE: Valve Maker Has Duty to Warn, NY Court Rules ASBESTOS UPDATE: Secondhand Exposure Risks Puerto Rico Families ASBESTOS UPDATE: Advocates Push for Asbestos Ban in U.S. ASBESTOS UPDATE: Middlebourne Woman Names 103 Companies in Suit ASBESTOS UPDATE: Asbestos Removal Delayed at Pillsbury Mills ASBESTOS UPDATE: Asbestos-Related Cancer Costs Canadians Billions ASBESTOS UPDATE: School With Asbestos to Get $14MM to Redevelop ASBESTOS UPDATE: Tasmanians Push for Free Asbestos Removal ASBESTOS UPDATE: Appeal Planned Over Husband's Death ASBESTOS UPDATE: Workers to Remove Asbestos from Courthouse ASBESTOS UPDATE: Appeals Court Tosses $245K Verdict for Plasterer ASBESTOS UPDATE: Asbestos to be Removed from Council Bldg. ASBESTOS UPDATE: Asbestos Caused Scunthorpe Laborer's Death ASBESTOS UPDATE: Cayuga Centers Bldg Tests Positive for Asbestos ASBESTOS UPDATE: Guelph Brake Pad Co. Joins Fight vs. Asbestos ASBESTOS UPDATE: Asbestos Find Delays GBP16MM School Build ASBESTOS UPDATE: Asbestos Found at Belfast Bonfire Site ASBESTOS UPDATE: Asbestos Removal at High School to Cost GBP122K ASBESTOS UPDATE: Burnaby Council Pressing for New Asbestos Rules ASBESTOS UPDATE: Dunedin Hospital's Asbestos Bill Rises to $2.3MM ASBESTOS UPDATE: New Zealand Enacts National Asbestos Ban ASBESTOS UPDATE: Brighton 1984 Bomb May Have Exposed Rescuers ASBESTOS UPDATE: Removal Creates Controversy in UW-Madison Campus ASBESTOS UPDATE: Sydney Residents Launch Class Suit Over Dumping ASBESTOS UPDATE: School Hits GBP1MM Setback After Asbestos Find ********* ABM INDUSTRIES: PLF Files Amicus Brief in Labor Class Action ------------------------------------------------------------ Anastasia Boden, writing for Pacific Legal Foundation, reports that Congress responded to a class action lawsuit abuse in 2005 by enacting the Class Action Fairness Act, or CAFA. That law allows parties to remove class action lawsuits to federal courts -- which Congress thought would better police the class action process. Since CAFA was enacted, plaintiffs have tried to evade removal to federal court, because they prefer friendlier state courts. A case in which PLF filed an amicus brief on June 22, ABM Industries v. Castro, involves one such example. In this case, Marley Castro sued her employer -- ABM Industries -- in state court, purportedly on behalf of hundreds of similarly- situated employees. She alleged ABM failed to properly reimburse its employees for business-related expenses related to personal cell phone use, in violation of state labor code. ABM attempted to remove the case to federal court under CAFA. However, Ninth Circuit law allows plaintiffs to evade CAFA removal when the case is brought under California's Private Attorney General Act (PAGA), which deputizes individuals to bring "representative" lawsuits on behalf of others to enforce the state labor code. While PAGA actions are slightly different than class actions (some of the penalties are paid directly to the state, and PAGA actions lack due process rules for class action certification), there's no material difference that justifies isolating these large, often coercive, lawsuits from CAFA. Nevertheless, the Ninth Circuit has held that lawsuits -- even those lawsuits involving hundreds of plaintiffs and massive fines -- are not subject to CAFA because they do not go through class certification procedures akin to the federal class certification procedure for traditional class actions. ABM filed a petition for writ of certiorari in the United States Supreme Court and on June 22, PLF filed an amicus brief in support of the petition, arguing that the Court should agree to review the case and overrule the Ninth's Circuit loophole. We argue that, given the increasing number of "representative actions" under PAGA-like statutes across the country, the Ninth Circuit's loophole may swallow the general rule that allows removal of class litigation seeking more than $5 million. Moreover, by allowing large lawsuits that don't have class certification measures to escape CAFA removal, the Ninth Circuit's decision gives those states that are hostile to CAFA an incentive to authorize mass actions that lack important class certification protections. This affects constitutional due process protection not only for defendants, but also for absent employees whose rights are finally determined without their input or consent. The Court should take this opportunity to affirm that CAFA applies to representative PAGA actions. AIRBNB: Has Until July 13 to Respond to Discrimination Claims ------------------------------------------------------------- Alec Siegel, writing for Law Street, reports that in the gig economy, where rides, dates, and living rooms are outsourced, where services are offered by independent contractors who are not employed -- but operate under the auspices of a larger conglomeration -- who is responsible for mistreatment and discrimination against customers? The person directly discriminating, or the company whose platform allows room for discrimination? Airbnb -- an application that connects travelers to the living spaces of locals, in lieu of traditional lodging -- is grappling with these questions as users report being discriminated against. Over the past year or so, as Airbnb has blossomed (the company is valued at $25 billion, with hosts in 34,000 cities, and 191 countries), travelers have increasingly been turned down by discriminatory hosts. A January study by the Harvard Business School offers data that buffers the anecdotal evidence: in the five American cities it covered, the study found African-American travelers received positive reviews 42 percent of the time. But 50 percent of white travelers received a positive review. Those numbers are identical when considering how often a traveler with a stereotypical African-American sounding name -- Darnell, Rasheed, Tamika -- was accepted in comparison to a stereotypical white or neutral name like Brad or Kristen. Airbnb has terminated hosts who were found to violate the service's tolerance policy and federal law. But that does not mean the company is blameless for any wrongdoing on behalf of its hosts, and as affected users threaten to take their cases to court, Airbnb is taking steps to reform its methods and eliminate any room for discrimination and racism. A few weeks ago, Airbnb hired Laura Murphy, the former head of the ACLU's Washington D.C. legislation office, to conduct a review of its ability to deal with incidents involving discrimination and racism. Her report is expected by September. This summer, Airbnb's ability to counter lawsuits brought about by its users will be tested: in May, a class-action discrimination suit was filed in the U.S. District Court in D.C. by Gregory Selden, a black man who claims he was denied by a host because of his race. Airbnb will respond to the lawsuit by July 13. When users sign into the service, they are prompted with a "class-action waiver," which essentially ensures people waive their right to sue, or join class-action lawsuits agains the service. It will be interesting to see how that protective tool holds up in court with the Selden case. According to Joanne Doroshow, executive director of New York Law School's Center for Justice and Democracy, change will only follow if cases like Selden's prove successful. "Class-action cases have been the only effective way to prove and remedy systemic discrimination because you can't prove a pattern of behavior with individually filed cases," she said. Meanwhile, new players are entering the home-sharing market in efforts to address customers who are wary about encountering racism and discrimination on Airbnb. Stefan Grant launched Noirbnb -- a service geared toward people of color, though they accept profiles from everyone -- after he and his friend were greeted by a swarm of cops at the Airbnb property they were staying at in Atlanta. A neighbor thought they were burglars. ALIBABA: New York Court Tosses IPO Class Action ----------------------------------------------- Post & Parcel reports that the U.S. District Court for the Southern District of New York dismissed a class action lawsuit brought against Alibaba and some of its executives about disclosures made in connection with the company's initial public offering (IPO). The Court ruled that the plaintiffs had failed to plead that Alibaba made any actionable misstatements or omissions, and also failed to plead facts sufficient to show that any of the defendants sought to defraud investors. The plaintiffs alleged that Alibaba's Registration Statement, IPO prospectus, and various other public statements, were false and misleading because they failed to disclose heightened regulatory scrutiny by the Chinese State Administration for Industry and Commerce (SAIC) prior to the company's IPO. Contrary to the plaintiff's complaint, the Court found Alibaba's disclosures to be "accurate and sufficiently candid" with regard to their description of the SAIC's crackdown on violations of Chinese laws on e-commerce sites. The Court also held that Alibaba did not downplay the problem of counterfeit sales on its platforms or the likelihood of an administrative action with respect to such issue. In a statement issued June 22, Alibaba said that it was "pleased that the judge in the Southern District of New York has dismissed the litigation and concluded that Plaintiffs have failed to state any claim for violation of the U.S. securities laws". The lawsuits are docketed under the master caption Christine Asia Co., Ltd. et al. v. Alibaba Group Holding Limited et al., No. 1:15-md-02631-CM (S.D.N.Y.) in the Southern District of New York. ALIMENTATION COUCHE-TARD: "Hazel" Suit to Recover Overtime Pay -------------------------------------------------------------- Jennifer Lynn Hazel, Plaintiff, v. Alimentation Couche-Tard, Circle K Stores, Inc. and The Pantry, Inc. d/b/a Kangaroo Express, Case No. 2:16-cv-00957 (N.D. Ala., June 9, 2016) seeks damages in the amount of unpaid compensation and benefits, liquidated damages, prejudgment interest and post judgment interest, and reasonable attorney fees under the Fair Labor Standards Act. Hazel has been employed in the position of store manager at Defendants' Kangaroo Express store located at 21195 Highway 25, Columbiana, Alabama 35051. Plaintiff did not receive overtime pay for hours over forty or fifty hours a week. Circle K is an international chain of convenience stores, presently owned and operated by the Canadian-based Alimentation Couche-Tard. The Pantry, Inc. operates convenience stores in the Southeastern United States under the "Kangaroo Express" name with more than 1,500 store locations in 13 states. The Plaintiff is represented by: Daniel E. Arciniegas, Esq. Jon C. Goldfarb, Esq. Daniel E. Arciniegas, Esq. L. William Smith, Esq. WIGGINS, CHILDS, PANTAZIS, FISHER, & GOLDFARB LLC. The Kress Building 301 19th Street North Birmingham, AL 35203 Telephone No.: (205) 314-0500 Facsimile No.: (205) 254-1500 ALLIANCEONE RECEIVABLES: Illegally Collects Debt, Action Claims --------------------------------------------------------------- Eliezer Cohen, on behalf of himself and all others similarly situated v. AllianceOne Receivables Management, Inc., Case No. 1:16-cv-02989 (E.D.N.Y., June 9, 2016), seeks to stop the Defendant's unfair and unconscionable means to collect a debt. AllianceOne Receivables Management, Inc. operates a debt collection agency throughout the United States. Eliezer Cohen is a pro se plaintiff. ALLIEDBEAN DEMOLITION: Faces "Wright" Class Suit in S.D. Florida ---------------------------------------------------------------- A class action lawsuit has been commenced against AlliedBean Demolition, Inc. and Kevin Bean. The case is captioned Brian Wright, on behalf of himself and others similarly situated v. AlliedBean Demolition, Inc., Kevin Bean, Case No. 0:16-cv-61232-BB (S.D. Fla., June 9, 2016). The Defendants own and operate a demolition company in Fort Lauderdale, Florida. The Plaintiff is represented by: Hazel Solis Rojas, Esq. Keith Michael Stern, Esq. LAW OFFICE OF KEITH M. STERN, P.A. 2300 Glades Road, Suite 360W Boca Raton, FL 33431 Telephone: (561) 299-3844 Facsimile: (561) 288-9031 E-mail: hsolis@workingforyou.com employlaw@keithstern.com AMCAP MORTGAGE: "Carranco" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------------- Anjanette Carranco, Christine Tovar and Jennifer Kindred, individually, and on behalf of all others similarly situated, Plaintiff, v. AMCAP Mortgage, Ltd. Doing business as Gold Financial Services, Defendant, Case No. 5:16-cv-00528 (W.D. Tex., June 9, 2016), seeks to recover the unpaid wages under the Fair Labor Standards Act. Amcap Mortgage, Ltd. is a Texas Limited Partnership that operates under Gold Financial Services. Amcap Investments, LLC is a Texas Limited Liability Company with principal place of business at 9999 Bellaire Blvd., Suite 700, Houston, Texas. Plaintiffs worked as mortgage underwriters engaged in the production of loans sold by Defendant. They claim to be denied overtime pay. The Defendants are represented by: Jennifer J. Spencer, Esq. SPENCER SCOTT PLLC Two Lincoln Centre 5420 LBJ Freeway, Suite 300 Dallas, TX 75240-6271 Tel: (972) 458-5319 Fax: (972) 770-2156 Email: jspencer@spencerscottlaw.com APPLE INC: Judge Dismisses Error 53 Class Action ------------------------------------------------ Jeff Gamet, writing for The Mac Observer, reports that a class action lawsuit against Apple over bricked iPhones and Error 53 has been dismissed because the Judge overseeing the case saying the plaintiffs failed to prove they had been harmed. This isn't, however, the end of the line because they can amend their claims, plus there are at least two similar cases in the court system, too. Error 53 was a big buzz phrase earlier this year when the media latched on to reports of iPhones that stopped working after upgrading to iOS 9. The error and subsequent bricking happened on iPhones where the Touch ID-capable Home button had been replaced outside of an authorized Apple service center. Built-in diagnostics detected the Home button and Touch ID weren't properly paired with the iPhone and interpreted that as a security breach, locking down the phone. Law firms jumped on the problem saying this was Apple's way of forcing customers to use only its own service centers, and the class action lawsuit train rolled out of the station. Apple apologized to customers and released a software update to restore iPhones bricked by Error 53, but that wasn't enough to satisfy the lawyers and plaintiffs. It was, however, enough to satisfy U.S. District Judge Vince Chhabria who dismissed the case. He said claims that iPhones were defective wasn't valid because Apple offered to fix the issue, and false advertising claims were invalid because designing a product doesn't equate to automatically knowing every potential problem it may have. Judge Chhabria said, "The plaintiffs' position seems to be that Apple should have 'disclosed that their devices would be destroyed by imbedded features if they had repaired devices using an independent service and then updated to certain iOS versions'. . . the mere fact that a company has designed a product doesn't mean it automatically knows about all of that product's potential design flaws." This isn't the end of the line because the Judge left an opportunity open so the plaintiffs can amend and resubmit their case to show they suffered real damages. Similar cases have been filed in California and Washington, too. Assuming any of these cases make it to trial, Apple will likely note that service centers should be aware of the Touch ID pairing procedure, and that it released a fix for iPhone owners who had their Home button replaced incorrectly. Based on Judge Judge Chhabria's dismissal, the plaintiffs may switch tactics and try to show Apple should be held accountable for any data loss they suffered. Regardless of the strategy the plaintiffs use, the Error 53 cases aren't over yet. ARNET PHARMACEUTICAL: "Cardentey" Lawsuit Seeks OT Pay Under FLSA ----------------------------------------------------------------- JOSE LUIS CARDENTEY, and other similarly situated individuals, Plaintiffs, v. ARNET PHARMACEUTICAL CORPORATION, Defendant, Case 0:16-cv-61328-FAM (S.D. Fla., June 20, 2016), seeks to recover money damages for unpaid overtime wages under the Fair Labor Standards Act. The Defendant is engaged in interstate commerce. The Plaintiff is represented by: Martin Saenz, Esq. Ed Rosenberg, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Phone: (305) 503-5131 Fax: (888) 270-5549 E-mail: msaenz@saenzanderson.com ed@saenzanderson.com BANANA BOAT: Faces Class Action Over Mislabeled Sunscreen --------------------------------------------------------- Danika Fears and Ross Toback, writing for New York Post, report that jumping on a report that found many sunscreens overstate their protection factors, a Brooklyn parent has filed a class- action lawsuit against the makers of Banana Boat Sunscreen, saying he bought a bottle of kids lotion that was supposed to be SPF 50 but turned out to only have an SPF of 12. "Defendants have known, or should have known, for years that Banana Boat Kids SPF 50 products contain less UV protection than Defendants advertise," reads the lawsuit, which was filed on June 22 against Playtex Products, Edgewell Personal Care Company and Sun Pharmaceutical. Paul Lambrakis purchased the tube of Banana Boat Kids SPF 50 in May after a Consumer Reports study found that it and many other sunscreens were overstating their protection factor. He sent the tube to a laboratory in Winston Salem, N.C., to have tested, according to the lawsuit filed in Brooklyn federal court. The results found that the bottle had an actual SPF that wasn't even half as strong as advertised, court papers say. "The investigation concluded that Banana Boat Kids SPF 50 sunscreen, clearly labeled as containing SPF 50, shockingly contained only an SPF of 12.69 and a measured UVA protection factor of 4.88," the lawsuit reads. Now Mr. Lambrakis is alleging that he and others in the class action suit were forced to "overpay for the sunscreen based upon false, inflated SPF," according to the documents. "They were unhappy when the suntan lotion was a complete lie," Mr. Lambrakis's lawyer, Hunter Shkolnik, said. "They were putting this stuff on their children. They made a point to buy it. They were getting burnt." He accused the company, which rakes in $25 million in sales each year, of "defrauding" unsuspecting customers. "You don't want to think its wrong but there's no quality control," he said. "This is a straight-forward case . People are spending money for this stuff!" Playtex, Edgewell and Sun Pharmaceutical did not immediately respond to requests for comment. The lawsuit comes after a Consumer Reports investigation found that 43 percent of the more than 60 sunscreens they tested failed to measure up to the SPF claims advertised on their bottles. "In May of 2016, Consumer Reports research revealed that among 'the most problematic products were Banana Boat Kids Tear-Free, Sting-Free Lotion . . . which [was] labeled as SPF 50 but [was] found to have only SPF 8,'" the lawsuit reads. "Defendants have been notified of the false advertisement but have not remedied the problem." BANCO BRADESCO: August 2 Lead Plaintiff Motion Deadline Set ----------------------------------------------------------- Khang & Khang LLP (the "Firm") on June 22 disclosed that a class action lawsuit has been filed against Banco Bradesco S.A. ("Banco Bradesco" or the "Company"). Investors who purchased or otherwise acquired shares between April 30, 2012 through May 31, 2016, inclusive (the "Class Period"), are encouraged to contact the Firm prior to the August 2, 2016, lead plaintiff motion deadline. If you purchased shares of Banco Bradesco during the Class Period, please contact Joon M. Khang, Esquire, of Khang & Khang, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com There has been no class certification in this case. Until certification occurs, you are not represented by an attorney. You may choose to take no action and remain a passive class member. According to the complaint, the Company made materially false and/or misleading statements and failed to disclose that: Banco Bradesco was involved in bribery with the Brazilian Finance Ministry's CARF; the Company's executives were planning on avoiding a $828,000,000.00 tax fine by Brazil's Internal Revenue Service; several of Banco Bradesco's CEO, executives, directors, and employees were engaged in bribery, corruption, and money laundering; Banco Bradesco's internal control of financial reporting, procedures, and disclosure controls were ineffective; and as a result of the above, the Company's public statements were materially false and misleading at all relevant times. On May 31, 2016 news reports disclosed that the Company's CEO was indicted by Brazilian police on corruption charges. Upon announcement of this news on May 31, 2016, shares of Banco Bradesco fell nearly 6% on that same day. If you wish to learn more about this lawsuit, or if you have any questions concerning this notice or your rights, please contact Joon M. Khang, a prominent litigator for almost two decades, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com BANK OF AMERICA: Philadelphia Files Antitrust Class Action ---------------------------------------------------------- Nicholas Malfitano, writing for PennRecord, reports that recently, the City of Philadelphia initiated a class action lawsuit in Illinois federal court against a number of world financial institutions, claimed they violated federal antitrust law in colluding to prevent the purchase and sale of interest rate swaps (IRS). The lawsuit, filed May 23, claims Bank of America Corp, J.P. Morgan Chase & Co., Merrill Lynch, Goldman Sachs and a host of others cooperated to violate the Sherman Act and Clayton Act by blocking exchange-based purchase and sale of IRS through boycotts, threats of boycotts and other unlawful means. An IRS is a key financial portfolio management device used by "corporations, hospitals, counties, municipalities, pension funds, and other types of institutional investors," and the suit says they make up more than $1 trillion in daily financial trades. Since an IRS exchange system currently isn't in place, municipalities like the City of Philadelphia have to work out those rates with individual banks, who the lawsuit alleges control the lion's share of IRS-related market activities. The suit's proposed class is any individual or entity who purchased an IRS from the defendants since Jan. 1, 2007, and the suit alleges the defendants collaborated on a number of occasions to prevent the establishment of platforms which would facilitate plans for exchange-based IRS purchases and sales. "The modus operandi is clear. When the Bank Defendants' OTC profits were threatened by exchange-style platforms -- whether for CDS or IRS -- the banks used their market power to work together to systematically crush these more efficient rivals," the suit states. According to the lawsuit, the presence of an exchange would immediately make the IRS market more competitive and pose a direct threat to the size of the financial institutions' profits. "Bloomberg reported in 2014 that the risk of the IRS business 'stepping into the light' would cost JP Morgan an estimated '$1 billion to $2 billion in revenue a year," the suit reads. The suit also explained the lawsuit's filing in U.S. District Court for the Northern District of Illinois. "The anti-competitive activities of defendants were directed towards this district and had substantial effect in this district and on its residents. Defendants regularly and intentionally conducted large portions of their business through lines of interstate commerce terminating in the city of Chicago, Illinois," the suit read. The suit seeks certification of the lawsuit's class action status, the alleged unlawful conduct be decreed to have violated the Sherman Act; that the defendants be permanently enjoined from future alleged unlawful conduct; treble damages plus interest for the plaintiff; monetary damages for those plaintiffs under contract with the defendants or their affiliates; attorney's fees and other relief as deemed appropriate, as well as a demand for a jury trial. Recently, a multi-district litigation proceeding was established in U.S. District Court for the Southern District of New York, with Judge Paul A. Engelmayer presiding. Philadelphia is represented by George A. Zelcs -- gzelcs@koreintillery.com -- Chad Emerson Bell -- cbell@koreintillery.com -- John Anton Libra and Randall P. Ewing, Jr. of Korein Tillery in Chicago and Kate Lv of Scott & Scott, in San Diego. U.S. Judicial Panel on Multi-District Litigation case 2704 U.S. District Court for the Northern District of Illinois - Eastern Division case 1:16-cv-05409 CABO CANTINA: Faces Suit Over 4.9% Service Charge ------------------------------------------------- Courthouse News Service reported that Cabo Cantina et al., which run 14 Southern California restaurants, including the Baja Beach Cafe in Pacific Beach, add an undisclosed 4.9% service charge to all orders, a class action claims in San Diego County Court. CANADIAN PACIFIC: Lac-Megantic Won't Pursue Train Derailment Suit ----------------------------------------------------------------- The Canadian Press reports that the Quebec town that was devastated in 2013 when a runaway train derailed and exploded, killing 47 people, will not pursue legal action against Canadian Pacific Railway. Lac-Megantic's city council voted on June 21 to drop all possible charges against the railroad. Mayor Jean-Guy Cloutier said it would cost considerable sums of money to pay for experts over several years and that there is no guarantee the town would win. "There are many reasons for this decision," Mr. Cloutier said in a statement. "We thought long and hard about it and reached the conclusion the risks of such action were too high in terms of the costs to the community." The train that exploded in the town on July 6, 2013, was owned and operated by Montreal, Maine and Atlantic Railway -- not CP --as were the tracks on which the locomotive was travelling. Canadian Pacific (TSX:CP), however, owned the tracks on which MMA's train began its journey from North Dakota. When the train arrived in Montreal, it switched onto MMA tracks to complete its scheduled journey to New Brunswick. Victims and creditors of the disaster blame MMA but also CP, which they claim acted negligently in a number of areas. CP is the only company accused of responsibility in the derailment that has not paid into a settlement fund. More than $400 million has been collected from roughly 25 companies accused in the crash. All of them -- except MMA -- received legal immunity from future prosecutions relating to the derailment. CP maintains it had nothing to do with the disaster because the crash occurred on MMA tracks involving MMA trains. The Quebec government has launched a $409-million lawsuit against CP and a class action lawsuit against the railroad has been authorized to proceed. For Lac-Megantic, however, its legal case against CP is over. "We would be obliged to spend considerable sums on experts over several years," Mr. Cloutier explained. "And there is no guarantee we would win. We find the process long, complex and very costly. We can't put this burden on the shoulders of Lac-Megantic residents." CFL FURNITURE: "Ardino" Lawsuit Seeks Overtime Pay Under FLSA ------------------------------------------------------------- LUSUIN ARDINO, on behalf of himself and other persons similarly situated, Plaintiff, v. CFL FURNITURE & ANTIQUES, INC., Defendant, Case 2:16-cv-11019 (E.D. La., June 20, 2016), seeks to recover unpaid overtime wages under the Fair Labor Standards Act. Defendant is in the business of purchasing furniture and antiques in bulk from hotels to sell in its retail store in New Orleans, Louisiana. The Plaintiff is represented by: Roberto Luis Costales, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 534-5005 Fax: (504) 272-2956 E-mail: costaleslawoffice@gmail.com - and - Emily A. Westermeier, Esq. William H. Beaumont, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 483-8008 E-mail: whbeaumont@gmail.com - and - Emily A. Westermeier, Esq. 3801 Canal Street, Suite 207 New Orleans, LA 70119 Phone: (504) 534-5005 E-mail: emily.costaleslawoffice@gmail.com CONTRA COSTA: Must Pay 80% of Retiree Benefits, Judge Says ---------------------------------------------------------- Philip A. Janquart, writing for Courthouse News Service, reported that Contra Costa County must honor its promise to pay 80 percent of the cost of health benefits for which retirees sacrificed wage and cost-of-living increases, a federal judge in San Francisco told the county this week. The Retiree Support Group of Contra County sued in January 2012 after the county reneged on its promise. The Support Group, representing some 4,000 retirees, claimed the Board of Supervisors ratified the agreement through resolutions, Memoranda of Understanding, official statements. But the county capped its contribution to retirees' health benefits at a flat dollar amount on Jan. 1, 2010, resulting in increased costs for retirees. The Support Group filed a class action alleging breach of contract, impairment of contract in violation of the state and federal constitutions, and violations of due process. U.S. District Judge Jeffrey White dismissed without prejudice, citing lack of evidence of an express or implied contract, and ordered that any amended complaint provide "all of the specific resolutions or ordinances that contain the 80 percent promise." The Support Group filed a second amended complaint on Nov. 30, 2012, which the court refused to dismiss. The case was referred to mediation in early 2015, and the parties reached a settlement in August. The Support Group sought preliminary approval of the settlement in March this year. U.S. District Judge Jon Tigar, with consent of the county, granted the plaintiffs leave to file a third amended complaint to add class allegations and assign class representatives. "Because the opposing party agrees that leave to amend should be granted, and because it will facilitate the proposed settlement, the court grants plaintiffs' motion for leave to file their TAC," Tigar wrote in a 14-page order June 14. He granted preliminary approval to a settlement that gives retirees almost 72 percent of the promised 80 percent payment. "The court concludes that the settlement should be preliminarily approved," Tigar wrote. "An agreement to provide 71.9 percent of the least expensive offered health plan is indeed of significant economic value to the class members, especially when the alleged claim is that the county originally promised to provide the 80 percent. As plaintiff explains, many retirees who are Medicare- eligible will continue to pay just one cent towards their monthly premiums, and these benefits will last for the retirees' lifetimes." Each party must pay its own attorneys' fees. "(N)o attorneys' fees or class representative awards will be apportioned from the economic benefits provided by the settlement," Tigar wrote. "When compared with the costs, time and risks involved in litigation, this settlement is within the range of possible approval." He set a final fairness hearing for Oct. 27. The seat of Contra Costa, inland from the Bay Area, is Martinez, at the foot of Mt. Diablo. The case captioned, RETIREE SUPPORT GROUP OF CONTRA COSTA COUNTY, Plaintiff, v. CONTRA COSTA COUNTY, Defendant., Case No.12-cv- 00944-JST (N.D. Cal.). CRISAK INC: "Martin" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------- Robert Martin and Michael Vellake, Plaintiffs, v. Crisak, Inc., Defendant, Case No. 1:16-cv-01982 (D. Md., June 9, 2016), seeks to recover unpaid wages, liquidated damages, interest, reasonable attorney fees and costs under the Federal Fair Labor Standards Act of 1938, Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law. Defendant is in the business of providing construction site management as a general contractor. It is located in 625-B Main Street Gaithersburg, Maryland 20878, where the Plaintiffs worked as superintendents. Plaintiffs are represented by: Benjamin L. Davis, III, Esq. Joseph E. Spicer, Esq. (27839) THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Phone No.: (410) 244-7005 Fax No.: (410) 244-8454 Email: bdavis@nicholllaw.com jspicer@nicholllaw.com DREAMWORKS ANIMATION: CEO Sued Over Alleged Merger Side Deal ------------------------------------------------------------ Sean Kelly, writing for Courthouse News Service, reported that an investor claims in court that Comcast offered DreamWorks CEO Jeffrey Katzenberg a lucrative side deal to secure his vote in its merger with DreamWorks Animation. Ann Arbor City Employees Retirement Systems, or AACERS, says in its class-action complaint that Comcast agreed to pay $41 per share for the animation company only if Katzenberg approved the deal by written consent. Katzenberg is DreamWorks' controlling shareholder, holding 60 percent of voting stock, so no public shareholder approval was needed for the merger. To obtain Katzenberg's consent, AACERS alleges that Comcast offered the DreamWorks CEO a two-year consulting agreement and profit-sharing arrangement that pays him annual consulting fees of $1 and 7 percent of the profits in perpetuity in AwesomenessTV Holdings LLC and DWA Nova LLC, two of DreamWorks' most promising and valuable assets. The profit-sharing arrangement and consulting agreement, referred to in the lawsuit as the "side deal," is incredibly valuable to Katzenberg and "constitutes disguised disparate merger consideration for Katzenberg," according to AACERS. AwesomenessTV Holdings and DWA Nova are so profitable that the side deal is "akin to an equity rollover into two of DreamWorks' most promising units without any of the downside risk typically associated with equity rollovers because Katzenberg also received $41 per share cash for all of his DreamWorks shares," the complaint states. Since DreamWorks' 2013 acquisition of AwesomenessTV Holdings, a teen-centered entertainment company, for an initial price of $33 million, its value has skyrocketed and is now valued at $650 million, says AACERS. And "DWA Nova, a unit that uses 3-D animation technology to assist companies with product development and marketing campaigns, appears similarly poised for success," according to the complaint. Nike and Burberry have both reportedly partnered with DWA Nova to use the company's 3-D technology to create and market products. AACERS says that Katzenberg's profits from the two-year consulting arrangement could be potentially "worth tens and possibly hundreds of millions of dollars." According to AACERS, the "side deal violates the equivalent consideration provision in DreamWorks' certificate of incorporation," which says that "in the event of a merger . . . each share of common stock shall be entitled to receive equivalent consideration on a per share basis." "Had Katzenberg not received the extraordinarily valuable side deal, Comcast would have been required to increase the merger price to secure Katzenberg's support, and the class would have shared pro rata in that increased consideration," the complaint states. And that consideration would be "in excess of the $41 per share that [the class] will receive in connection with the Merger," adds AACERS. In the merger negotiations, Comcast said it would only increase its initial $35 per share offer "contingent on Katzenberg approving the deal by written consent instead of submitting the proposed merger to a vote by DreamWorks' public stockholders," the lawsuit states. That "created an immediate conflict of interest that should have precluded Katzenberg's involvement in any discussions with Comcast until the DreamWorks board had agreed to accept a final price," AACERS claims. "By negotiating the terms of his post-closing relationship with Comcast before executing a written consent authorizing a board- approved merger, Katzenberg used his leverage to extract disparate consideration in violation of the charter, and constrained the board's ability to secure 'equivalent consideration' for the company's public stockholders," the Delaware Chancery Court complaint states. AACERS is represented by Michael J. Barry of Grant & Eisenhoffer of Wilmington, Del., and Jeremy Friedman of Friedman Oster in New York City. E. I. DUPONT: Must Respond to 3rd Amended Class Action ------------------------------------------------------ Courthouse News Service reported that a federal judge in San Jose June 14, ordered DuPont to answer a third amended class action complaint accusing it of conspiring to fix prices of titanium dioxide, a key pigment in white paint. The case captioned, JAN HARRISON, et al., Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY, et al., Defendants, Case No. 13-cv- 01180-BLF (N.D. Cal.). E. I. DUPONT: Judge Hears Input on Smelter Settlement Surplus ------------------------------------------------------------- Matt Harvey, writing for The Exponent Telegram, reports that multiple ideas were aired on June 22 during a court hearing on how to disburse a $4 million surplus from a toxic pollution settlement with DuPont in northwestern Harrison County. Members of the class action who spoke brought a variety of thoughts, including: Spending $40,000 to purchase new air tanks for the local fire department; prorating the amount due per claimant on the basis of time lived in the class action area; and awarding double to those who had soil and home remediation done vs. those who just had home remediation. Harrison County Chief Judge Thomas A. Bedell said he plans to rule by written order as soon as possible. He declined to give a set date, but did say he anticipated the decision would come in weeks, not months. A total of about $35 million was set aside for property and home cleanup as part of a deal reached to settle the class action lawsuit that was filed in 2004, with Lenora Perrine as the lead plaintiff. Medical monitoring also was provided as part of the settlement, but the surplus doesn't involve it or those participating in that process. The lawsuit had focused on alleged toxic emissions of chemicals such as cadmium, lead and arsenic from the smelting process at the plant in Spelter that was owned by DuPont and other companies during the 20th century. A total of 992 families participated in the settlement's property remediation program. If Judge Bedell simply awards the money to them in equal shares, it would amount to a payout of about $4,030 each. But there are myriad options he could take. Gentle also provided the results of a survey in which 281 members of the class action responded. Those who responded voted 199-54 against spending about $250,000 to $300,000 for road repair; 191-85 against awarding a large amount of the surplus to those closest to the site of the former Spelter smelter, who had both soil and home cleanup done; and 203- 76 against giving those who own multiple properties multiple shares. Another question: Whether the 235 families who declined to participate in the settlement remediation program should get part of the money. Those surveyed, which didn't include the 235, overwhelmingly were against awarding any money to nonparticipants. Gentle noted two sides to this issue: Those who didn't participate in the property remediation program were warned in writing that they were waiving claims. Yet on the other hand, if they had participated there probably wouldn't have been any surplus. About 80 individuals signed up for the court hearing, with half of those scheduled to speak. However, about 25 actually showed, with only a handful taking brief turns offering comments to the court. Brud Drummond brought up the idea about the fire department needing new air tanks. Paying for this would subtract about $40.32 from each claimant's disbursement, Drummond calculated, apparently anticipating Judge Bedell might award equal shares. Judge Bedell said this would be something the court could consider since it would benefit everyone in the class action area. Trudy Heil, meanwhile, spoke about a drainage issue in her area. Gentle said he would add it to a list that the claims office has of such issues that still need addressed (money set aside for such projects isn't counted in the $4 million). Athal Kennedy spoke about a similar concern, one that Gentle said already is in the process of being addressed. Shawn Shingleton said those who had property and home cleanup done should be paid twice as much as those who only had home repairs done. The inconveniences were greater for those in the zone where homes and properties were remediated, he added. Shingleton also spoke of problems with most of the new sod on his lawn dying, which Gentle said would be addressed. Albert Sheaffer, Jerry Stevens and Frank Tate suggested that those who had lived longest in the area be awarded more. Tate added that those who had moved in very recently shouldn't be awarded any money. He also suggested road repairs should be left up to state officials, not settlement funds, and that there are "older people in Spelter with not a lot of income. Any little extra would be a blessing, I think." The medical monitoring program still has around a quarter of a century to go, but it's believed the numbers participating in it have dwindled under 500. At any rate, it's a silent part of the settlement due to privacy concerns. And now not much is left to do with property remediation, other than Gentle and the claims office working with area attorney Meredith McCarthy and the class action members she represents to make some final fixes. "It's been our great pleasure to work with you all finishing up the settlement and trying to leave the community at least as good as we found it," Gentle said, eyeing the class action members in the courtroom. Judge Bedell gave no indication as to how he would rule. Gentle, an attorney from Alabama who is a nationally recognized specialist in claims administration for class action lawsuits, has been assisted throughout the process in this case by Michael Jacks, an attorney from Jacks Legal Group in Morgantown. ELECTROLUX HOME: Faces "Beck" Suit Over "Defective" Dishwashers --------------------------------------------------------------- KATHY AND NATHANIEL BECK, individually and on behalf of all others similarly situated, Plaintiffs, v. ELECTROLUX HOME PRODUCTS, INC., Defendant, Case 1:16-cv-01511-TWP-TAB (S.D. Ind., June 20, 2016), seeks damages and appropriate equitable relief, including an order enjoining Electrolux from selling allegedly defective residential dishwashers sold under the Frigidaire or Electrolux brand names, without disclosing their defect to consumers. Absent such disclosure, Electrolux violates well-established contract, tort, and consumer protection laws of Indiana. Defendant Electrolux designs, manufactures, and markets a wide range of home appliances. The Plaintiffs are represented by: Kathleen A. Farinas, Esq. Linda George, Esq. Todd Barnes, Esq. Sarah Broderick, Esq. GEORGE & FARINAS, LLP 151 N. Delaware St., Ste. 1700 Indianapolis, IN 46204 Phone: 317-637-6071 Fax: 317-685-6505 E-mail: lg@lgkflaw.com kf@lgkflaw.com tb@lgkflaw.com sb@lgkflaw.com - and - Edward A. Wallace, Esq. Amy E. Keller, Esq. Adam Prom, Esq. WEXLER WALLACE LLP 55 W. Monroe St., Ste. 3300 Chicago, IL 0603 Phone: 312-346-2222 Fax: 312-346-0022 E-mail: eaw@wexlerwallace.com aek@wexlerwallace.com ap@wexlerwallace.com - and - Gregory F. Coleman, Esq. Lisa A. White, Esq. GREG COLEMAN LAW PC First Tennessee Plaza 800 S. Gay Street, Suite 1100 Knoxville, TN 37929 Phone: 865-247-0080 Fax: 865-522-0049 E-mail: greg@gregcolemanlaw.com lisa@gregcolemanlaw.com - and - Shanon Carson, Esq. Arthur Stock, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Phone: 215-875-5704 Fax: 215-875-4604 E-mail: scarson@bm.net astock@bm.net FIAT CHRYSLER: Sued Over Defective Clutches in Dodge Darts ---------------------------------------------------------- Courthouse News Service reported that FCA (Fiat Chrysler America) Dodge Darts with a Fiat C635 manual transmissions have had defective clutches since 2012, a class action claims in San Diego Federal Court. FIAT CHRYSLER: Infotainment System Does Not Work, Suit Says ----------------------------------------------------------- Eva Fedderly, writing for Courthouse News Service, reported that the American subsidiary of Fiat Chrysler Automobiles is selling Jeeps that feature a voice-activated "infotainment" system that does not work as promised, a class action claims. In a complaint in the Ashland, Ky. Federal Court, Lead plaintiff Duane Kiser says he bought a 2015 Jeep Renegade, and paid an extra $1,245 for an infotainment system called Uconnect. "Plaintiff specifically purchased this Vehicle, with this Uconnect version, because it provided a navigation feature, a Weather Map mobile app, and a Wi-Fi 'hot spot,' through which Plaintiff could obtain internet access," the June 15 complaint says. According to Kiser, since he purchased the vehicle in June 2015, the system has not worked. "Plaintiff has taken the Vehicle to Grayson Chrysler Jeep Dodge, a dealership in Grayson, Kentucky, for attempted service and repair of the Uconnect system on no fewer than eight occasions, resulting in the loss of use of his vehicle for approximately 75 days," the complaint states. The dealership replaced the system but it still did not work, Kiser says. "After his last visit to the dealership, the service advisor informed Plaintiff that, according to a regional service manager employed by Defendant, there was no problem with Plaintiff's Vehicle because all Jeep Renegades with the Uconnect system version 6.5/RA4 would fail in the same way," the class action says. Kiser claims the automaker, FCA US LLC, is ripping consumers off by marketing a system rife with known glitches. "[Defendant] designed, developed, engineered, and programmed a proprietary voice-activated, in-dash infotainment system known as Uconnect . . . at least one of the Uconnect systems available on the model-year 2015 Jeep Renegade, version 6.5/RA4, does not work as intended, marketed, or warranted by Defendant," the complaint states. FCA US LLC, formerly known as Chrysler, is the American subsidiary of Fiat Chrysler Automobiles. The defendant designs, engineers, manufactures, distributes and sells such brands as Chrysler, Jeep, Dodge, Ram and Fiat. Kiser, on behalf of the class, is suing FCA US for violation of the Magnusson-Moss Warranty Act; Violation of Kentucky Consumer Protection Act; violation of West Virginia Consumer Credit and Protection Act; Unfair, False, and Deceptive Trade Practices; Breach of Express Warranty; and Breach of Common Law Warranty. He seeks punitive and compensatory damages, as well as attorney's fees. Matthew Lockaby of Lexington, Ky. represents the plaintiff and did not respond to an email from Courthouse News seeking comment. The media relations team at FCA US also did not immediately respond to an email from Courthouse News. FLATHEAD ELECTRIC: "Wolfe" Suit Seeks to Recover Patronage Capital ------------------------------------------------------------------ Kathleen L. Wolfe, Sue Wortman, Joseph Zatorowski and William Zubko, on behalf of themselves and all others similarly situated, Plaintiffs, v. Flathead Electric Cooperative, Inc., Defendant, Case No. 9:16-cv-00073 (D. Mont., June 9, 2016), seeks to recover patronage capital lawfully belonging to Plaintiffs representing excess revenue generated by the capital contributions of members that exceed the Cooperative's current operating costs. The complaint asserts fraud; unjust enrichment; negligent misrepresentation; violation of the Rural Electric and Telephone Cooperative Act; breach of fiduciary duty under the common law; breach of contract; breach of the implied covenant of good faith and fair dealing; and violations of the Montana Unfair Trade Practices and Consumer Protection Act of 1973. Plaintiffs purchase power from Defendants as Coop members. Flathead is an electric distribution cooperative with service area including portions of Flathead, Lincoln, Lake, and Sanders Counties in Montana and along the Montana-Wyoming border in Park County. The Plaintiff is represented by: Havila C. Unrein, Esq. KELLER ROHRBACK L.L.P. 407 Main Street S.W., Suite 1 Ronan, MT 59864 Telephone: (406) 281-7231 Facsimile: (206) 623-3384 Email: hunrein@kellerrohrback.com - and - Michael Woerner, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: mwoerner@kellerrohrback.com - and - John P. Freeman, Esq. 2329 Wilmot Ave. Columbia, SC 29205 Telephone: (803) 254-4667 Email: jfreemanusc@gmail.com GENERAL MOTORS: Exaggerates Mileage of Vehicles, Class Suit Says ---------------------------------------------------------------- Courthouse News Service reported that General Motors exaggerates the mileage of its 2009-2016 Chevrolet Traverse, GMC Acadia, and Buick Enclave, a class action claims in San Diego Federal Court. GLAXOSMITHKLINE LLC: "Jones" Suit Alleges Zofran Side Effects ------------------------------------------------------------- Cara Jones and Kraig Jones, both individually and on behalf of S.J., their minor child, Plaintiffs, v. GlaxoSmithKline LLC, Case 1:16-cv-11085 (D. Mass., June 9, 2016), seeks compensatory and punitive damages, equitable relief, and such other relief arising from the injuries to the Plaintiffs' minor child as a result of her prenatal exposures to the generic bioequivalent form of the prescription drug Zofran, also known as Ondansetron. S.J. was born with congenital heart defects allegedly after his mother took the generic bioequivalent of Zofran from early in her first trimester of pregnancy through her second trimester to alleviate and prevent the symptoms of morning sickness. GlaxoSmithKline LLC is pharmaceutical company organized under the laws of the State of Delaware. The Plaintiff is represented by: Robert K. Jenner, Esq. Brian D. Ketterer Kimberly A. Dougherty, Esq. JANET, JENNER & SUGGS, LLC 1777 Reisterstown Road, Suite 165 Baltimore, MD 21208 Tel: (410) 653-3200 Fax: (410) 653-9030 HONDA: Acura Owners File Class Action Over HandsFreelink Defect --------------------------------------------------------------- Owners of Honda Acura vehicles featuring the HandsFreeLink Bluetooth phone-pairing system are suing the automaker for a battery-draining defect that has plagued owners since at least 2005 despite Honda knowing about the issue, according to Hagens Berman. The class-action lawsuit states that Honda's HandsFreeLink feature will get stuck on even if not in use and even after the car is turned off. Once stuck, the unit creates a constant "parasitic" drain on the electric system, leading to drained and dead batteries, recurring battery replacement and premature failure of other essential electric components such as alternators. The lawsuit cites complaints to the National Highway Transportation Safety Administration detailing the defect's safety hazard to drivers, including accounts of vehicles unexpectedly stalling during high speeds, and sudden, complete electrical failure. If you own or lease a Honda Acura with the HandsFreeLink system, you may be entitled to compensation. Find out more about the lawsuit. "Honda has chosen to turn its back on consumers and leave them with two losing options -- either continue to use the HandsFreeLink system and risk being stranded with a dead battery or losing power while driving, or replace it and eat the $1000 expense of doing so with no guarantee that the replacement will function," said Steve Berman, managing partner of Hagens Berman. "Honda would rather ignore the problem that has plagued Acura owners since 2005 than do the right thing and issue a remedy." Acura owners are not only out the cost of potential replacement, the suit states. According to the lawsuit filed in the U.S. District Court for the Central District of California, owners find themselves with cars that are less valuable than comparable cars with properly functioning hands-free phone-pairing systems. "Acura owners are faced with the choice of expensive replacement of the HandsFreeLink(TM) unit (in excess of $1000.00), with no promise that the replacement also will not get stuck 'on,' or disabling the HandsFreeLink(TM) system by disconnecting the HandsFreeLink(TM) unit from the car," the complaint states. "Despite knowing about the issue with its HandsFreeLink(TM) since at least 2005, Honda has merely issued internal Service Bulletins to its dealers over the years, notifying only the dealers about the problem, but offering no meaningful solution, warranty coverage or recall." The complaint states that in its rush to become the first automaker to offer hands-free calling with its HandsFreeLink system starting with 2004 model year Acura vehicles, Honda failed to ensure the unit would reliably switch off, and also failed to adequately notify owners of the issue or remedy the problem. "Hand-free phone calls in the car may be commonplace technology now, but when Honda first introduced this concept, it was novel and a luxury -- something used to make its Acura model more appealing to consumers," Mr. Berman said. "But for more than a decade, Honda has actively ignored this defect that has the potential to leave Acura owners shelling out hundreds of dollars for replacements or new batteries." The lawsuit seeks reimbursement for vehicle owners related to the defect and an injunctive order to end Honda's concealment of the defect and denial of warranty coverage for repairs related to the HandsFreeLink defect. About Hagens Berman Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a consumer-rights class-action law firm with offices in 10 cities. The firm has been named to the National Law Journal's Plaintiffs' Hot List eight times. HOUSEHOLD INT'L: Securities Suit Hinged on Financial Expert ----------------------------------------------------------- Justin Hibbard, writing for Forward Forensics, reports that on August 19, 2002, Avril Lavine's "Complicated" was the number-one song in the U.S., the public accounting firm Arthur Andersen LLP was about to surrender its CPA licenses, and the plaintiffs in Lawrence E. Jaffe Pension Plan v. Household International, Inc., et al filed their first complaint in U.S. District Court in Chicago. Jaffe was one of dozens of securities fraud suits that named Andersen as a defendant after the firm was implicated in the Enron scandal, triggering investigations into its other audits. The case was both timely and ahead of its time since it concerned alleged accounting fraud by a subprime mortgage lender, foreshadowing the global financial crisis of 2007-2008. Today, Arthur Andersen is a distant memory, Avril Lavigne is on her second husband, and former Enron CFO Andrew Fastow is out of prison and on the speaking circuit. And what of Jaffe? The case recently settled for $1.58 billion. A Tale of Two Trials The epic 14-year story of this class action is one in which the gears of justice didn't just grind slowly -- they slipped into reverse. A six-week jury trial in 2009 ended with a verdict in favor of the plaintiffs. Judge Ronald Guzman entered a judgment of $2.46 billion, which set a record for a securities fraud case that had gone to verdict. After the defendants appealed to the Seventh Circuit, a three-judge panel in 2015 upheld most of the verdict but sent the case back to the lower court for a second trial on loss causation and another unrelated issue. Questions about loss causation arose from the circumstances of the case. From November 2001 through October 2002, Household International's stock price fell 54% as bad news about the company emerged. In August 2002, Household said it would restate three and a half years of financial statements and record a $600 million pre-tax charge. Two months later, the company revealed it would settle predatory lending charges with 46 state attorneys general for $484 million. By late 2002, the entire stock market was struggling due to widespread accounting scandals and economic recession. The S&P 500 index lost 22% of its value during the year, contributing to the defense's theory that Household's stock suffered more from market forces than from self-inflicted wounds. To address causation, the plaintiffs retained expert witness Daniel Fischel, president of economics consultancy Compass Lexecon. Mr. Fischel's CV includes such titles as former dean of The University of Chicago Law School and published treatises that have been cited by the U.S. Supreme Court. His hourly rate for Jaffe ranged from $1,000 to $1,250, which is about three times the 2015 industry average. (Forward Forensics readers may remember Mr. Fischel from In re Pfizer.) Cause and Effect Mr. Fischel prepared an event study, which is commonly used to prove causation in securities fraud cases. The study examined the extent to which Household's stock price had been inflated by false and misleading statements made by the defendants. Through regression analysis, Mr. Fischel controlled for market factors and economic trends. The upshot of his approach was to isolate changes in stock price that were attributable only to Household's fraud-related disclosures. The defense argued, however, that Mr. Fischel's model failed to account for firm-specific, non-fraud factors that may have contributed to the drop in price. Such factors would be disclosures that were specifically about Household and, although negative, did not concern fraud. This was one of the only arguments in which the appeals court found merit, citing the U.S. Supreme Court opinion in Dura Pharm., Inc. v. Broudo as authority. Therefore, the court ordered a second trial focused narrowly on causation. After the case was remanded, Mr. Fischel dutifully prepared a supplement to his report in which he examined firm-specific, non-fraud factors. He came to the same conclusions as he had before. A testament to his gravitas is the ferocity with which the defense attacked his work product before and after the appeal. Household unleashed no fewer than four experts to rip apart Mr. Fischel's report and put forth alternatives. The defense filed separate Daubert motions before and after the appeal to exclude Mr. Fischel's testimony and followed up each with multiple supporting memos. The court denied both motions entirely. Not in My Household After the second denial in February 2016, the writing was on the wall: Mr. Fischel's report would again be presented to a jury, which would likely lead to a similar outcome as in the first trial. Instead of betting against another $2.46 billion judgment, the defense settled for $1.58 billion just hours before the second trial was to begin on June 6. In a press release, lead plaintiffs' counsel Robbins Geller Rudman & Dowd LLP said the settlement is the largest ever following a securities fraud class action trial, the largest securities fraud settlement in the Seventh Circuit, and the seventh largest settlement ever in a securities fraud case since the enactment of the Private Securities Litigation Reform Act of 1995. Though still subject to approval by the court, the proposed amount is larger than the $970 million that AIG agreed to pay shareholders to resolve claims related to its subprime mortgage exposure. It's also more than the $500 million to which J.P. Morgan conceded to end a class action over mortgage-backed securities it sold to Bear Stearns. It's not, however, $2.46 billion. That's a minor consolation for HSBC Holdings plc, which acquired Household for $14 billion in November 2002 and subsequently re-branded it HSBC Finance Corp. As for Arthur Andersen, the firm reached a settlement agreement with the plaintiffs in 2005, which calls for the total amount of its payment to be determined by the settlement reached with the other defendants. Andersen still operates with a small staff in Illinois that is dedicated entirely to winding down the firm. HUSTLERS CLUB: Violates Labor Laws, Dancers Claim ------------------------------------------------- Courthouse News Service, reported that Larry Flynt's Hustlers Club charges dancers $40 to $60 per shift for work, and as much as $240 per shift, and violates other labor laws, a class action claims in San Francisco Federal Court. ICCI GROUP: "Conn" Suit to Recover Unpaid Back Wages ---------------------------------------------------- James Conn, Plaintiff, v. ICCI Group, Inc. d/b/a Ubuildit, Defendant, Case No. 1:16-cv-1415 (S.D. Ind., June 9, 2016), seeks to recover unpaid back wages due with liquidated damages equal in amount to the unpaid compensation, treble damages, reasonable attorney fees, pre-judgment and post-judgment interest and such other and further relief under the Fair Labor Standards Act. Ubuildit is a residential construction consulting company who employed Plaintiff as a Sales Associate who provided consulting services to property owners. The Plaintiff is represented by: Michael S. Dalrymple, Esq. MICHAEL S. DALRYMPLE, ATTORNEY AT LAW 1847 Broad Ripple Avenue, Suite #1A Indianapolis, IN 46220 Tel: (317) 614-7390 Email: michaeld@dalrymple-law.com INT'L ASSOCIATION: Russian Athletes to File Class Action -------------------------------------------------------- The Guardian reports that Russia's track and field athletes are to file a class action with the court of arbitration for sport against the decision of the IAAF not to admit them to the 2016 Olympics. The International Olympic Committee dealt Russia's athletes a further blow when it endorsed the ban which was imposed after evidence was found of systematic doping in the country. The secretary general of the All-Russian Athletics Federation, Mikhail Butov, told Tass: "A suit or suits will be submitted to Cas. It is also necessary to completely determine the legal direction, but we have generally formed a group of lawyers with whom we will work. Class actions will be filed for certain, but some individual suits are also possible." He added: "We are going to have consultations with these lawyers in the coming days. Then we will make the final decision." The International Association of Athletics Federations voted to uphold the ban it had imposed last November over widespread state- sponsored doping. The unprecedented step was taken after an expert task force ruled that Russia had not taken sufficient steps to overhaul its testing procedures and prove its athletes were clean. Russia's president, Vladimir Putin, described the decision as "unjust and unfair". However, the IAAF said that, on the advice of outside lawyers, it had left open a "crack in the door" for Russian athletes who could prove they had been training outside the country to compete under a neutral banner, though there are understood to be only three or four athletes who meet that criterion. INOVALON: Faces Investors' Class Action in Manhattan ---------------------------------------------------- Courthouse News Service reported that Inovalon shares have dropped by more than a third since going public amid revelations about the company's substantial sales in New York City, where new corporate tax reforms have triggered a hefty rate hike, investors claim in a federal class action in Manhattan. IRAN: Supports Iraq-Based Terrorists, Class Suit Claims ------------------------------------------------------- Courthouse News Service reported that Iraq-based terrorists known as "special groups," including the Qazali Network, the Hezbollah Brigades, the Shebaini Network, the Promised Day Brigades and the Badr Corps, received from Iran weapons called explosively formed penetrators that maimed and killed hundreds of U.S. service members, 14 U.S. citizens claim in Washington federal class action. JOHNSON & JOHNSON'S: Baby Powder Suits Expected to Pile Up ---------------------------------------------------------- Andrew Burger, writing for Louisiana Record, reports that a local attorney and legal watchdog organization both expect to see class- action lawsuits filed in the state over allegations that Johnson & Johnson's Baby Powder and Shower to Shower products cause ovarian cancer. At the request of plaintiff Paula Jackson, the U.S. District Court for the Eastern District of Louisiana New Orleans Division recently removed Rio Tinto Minerals Inc. from a lawsuit alleging the talcum powder products caused the New Orleans woman's ovarian cancer, but Ms. Jackson's case -- and many others like it -- are far from over. Ms. Jackson's suit named Johnson & Johnson as the primary defendant. She claims that her regular application of talc-based Shower to Shower and Johnson & Johnson's Baby Powder to her perineum on a daily basis from 1974 until 2015 is to blame for her ovarian cancer. Her suit is just one of more than 1,200 federal and state lawsuits against Johnson & Johnson claiming the New Jersey company ignored scientific studies linking talcum-powder products to cancer. Melissa Landry, executive director of the Louisiana Lawsuit Abuse Watch, believes that the state is ripe for a class-action suit involving the cases because Lousiana courts here are considered "plaintiff friendly," and its attorneys "talented and creative" when it comes to establishing class actions. "The notion of our plaintiff-friendly courts creates at least the perception there is an incentive for filing lawsuits, and class- action lawsuits in particular, in Louisiana courts," Ms. Landry told the Louisiana Record. "Louisiana is a sought-after jurisdiction for class-action lawsuits." In fact, that is why Louisiana routinely ranks poorly in comparison to other states on surveys pertaining to the state's legal climate. The groundwork has already been set for the class-action suit against Johnson & Johnson. Earlier this year, a St. Louis court ordered the company to pay $72 million to the family of Jackie Fox, a woman who died from ovarian cancer; and in May, it was hit with another $55 million ruling by another jury in St. Louis in a suit filed by Gloria Ristesund, of South Dakota. "It will be very interesting to watch what transpires here in Louisiana in the wake of the St. Louis jury trials," attorney Peter Russell, of McBride & Russell Law Firm LLC in Gretna, told the Louisiana Record. In addition to the multi-million dollar judgments, a lot in the way of new information has come out in the cases tried so far, Russell pointed out. In the first lawsuit filed against Johnson & Johnson over the talcum powder issue, a South Dakota court ruled in 2013 that Deane Berg's use of Shower to Shower and Johnson's Baby Powder was linked to the onset of her ovarian cancer. During the trial, an attorney representing the multinational consumer products manufacturer admitted company executives had known about the links between its talcum powder products and ovarian cancer for years, but decided the risk was not significant enough to require a product warning. That admission came back to haunt Johnson & Johnson in both of the St. Louis cases. "The basis for the judges' decisions was that Johnson & Johnson was aware of the links between its talcum powder products and cancer for more than 20 years, but chose to withhold that information from the public," Mr. Russell said. A study conducted by researchers at the University of Virginia in Charlottesville and published earlier in June in Cancer Epidemiology reinforced at least part of what Johnson & Johnson allegedly already knew -- African-American women who regularly use talcum powder are at a greater risk for ovarian cancer compared to their peers who don't use powder. This particularly doesn't bode well for Johnson & Johnson because previous suits revealed the company slanted its marketing efforts for the sale of talcum powders specifically toward African- American women in the 1990s. Like Landry, Mr. Russell thinks it's just a matter of time before a class-action suit is filed in Louisiana over the cases. "You could see a very large class action here," he said. LANDSCAPE MAINTENANCE: Faces "Curet" Lawsuit in N.J. Under FLSA --------------------------------------------------------------- ELVIN CURET, on behalf of himself and all others similarly situated, Plaintiff, v. LANDSCAPE MAINTENANCE SERVICES, INC. and JOHN DOES 1-10, Defendants, Case 3:16-cv-03560 (D.N.J., June 20, 2016), seeks compensatory damages, punitive damages, attorneys' fees, and costs of suit under the Fair Labor Standards Act. Defendant LMS is a landscape contractor working throughout the Northeast United States with headquarters located in Hillsborough, New Jersey. The Plaintiff is represented by: Thomas A. McKinney, Esq. CASTRONOVO & McKINNEY, LLC 71 Maple Avenue Morristown, NJ 07960 Phone: (973) 920-7888 LUDLOW MUSIC: Sued Over "This Land Is Your Land" Copyright ---------------------------------------------------------- Josh Russell, writing for Courthouse News Service, reported that the law firm that sought to bring "Happy Birthday" and "We Shall Overcome" into the public domain is now looking to do the same for the Woody Guthrie classic "This Land Is Your Land." The Guthrie composition is the subject of a June 14, 2016, class action filed in Manhattan Federal Court against music publishers The Richmond Organization, Inc. and Ludlow Music, Inc. It was filed on behalf of James Saint-Amour and Alena Ivleva, members of New York progressive rock-techno fusion act Satorii, who want to release their own take on the beloved folk anthem. In their lawsuit, the plaintiffs note that "Guthrie published the Song in 1945 with a proper copyright notice, which created a federal copyright in the Song." "The copyright to the 1945 publication was not renewed. As a result, the copyright expired after 28 years, and the Song fell into the public domain in 1973," the complaint says. The plaintiffs call into question the validity of a purported copyright secured by defendant Ludlow Music in 1956. "Based on that 1956 copyright, Defendant Ludlow has wrongfully and unlawfully insisted it owns the copyright to 'This Land,' together with the exclusive right to control the Song's reproduction, distribution, and public performances pursuant to federal copyright law," the complaint says. As an example, they point to a letter Ludlow's attorney wrote to Jib Jab Media, Inc. on July 23, 2004, regarding Jib Jab's use of the song. "In that letter, Defendant Ludlow's counsel asserted that "Ludlow is the exclusive copyright owner of the classic folk song 'This Land is Your Land' written by the well-known folk artist Woody Guthrie." The letter also asserted that Jib Jab's use of the song's melody and "the well-known lyrics 'This land is your land, this land is my land' and 'From California to the New York Island'" infringed Ludlow's copyright, the complaint says. "Irrefutable documentary evidence shows that Defendants own no valid copyright related to This Land. The popular verses of the Song were first published in 1945, and the copyright in those verses ended no later than 1973 (if not earlier)," the plaintiffs claim. "Defendants never owned a valid copyright to the Song's pre-existing melody." Despite this, the plaintiffs say, the defendants have "demanded and extracted licensing fees from those unwilling or unable to challenge their false ownership claims." As in other recent cases, in which the firm of Wolf Haldenstein Alder Freeman & Herz sought to have "Happy Birthday" and the civil-rights anthem "We Shall Overcome" declared to be in the public domain, the plaintiffs seek a determination that the defendants do not own the copyright to the song, and that they've improperly collected usage fees from the plaintiffs and other class members. The members of Satorii also seek restitution for the $45.50 mechanical license they paid to produce and distribute 500 copies of the song as a digital release. The folk singer Woody Guthrie, whose acoustic guitar was painted with the words "This Machine Kills Fascists," wrote the "This Land is Your Land" in 1940 in response to his irritation at Irving Berlin's composition "God Bless America." When reached for comment through his verified Facebook page, Woody Guthrie's son, musician Arlo Guthrie replied "I am a firm believer that artists should be compensated for their work, and further that such compensation should be handed down to the family of that artist, which is the inherent intent of the artist to begin with -- to provide a living for him or herself and their families." In regard to the Satorii lawsuit, Guthrie said "For me personally the latest attempt to make 'This Land' public domain is simply an effort of some who wish to profit on the works of others by looking for loop holes in the current copyright laws, thereby gaining a few extra years (the song will be public domain anyway eventually) where they can avoid licensing fees that help support the family of Woody Guthrie." The melody of "This Land" bares a strong resemblance to an 18th century Baptist hymn "When the World's on Fire," recorded ten years before Guthrie's song by the iconic country/bluegrass group the Carter Family. In 1951, with Guthrie's permission, Folkways Records released "This is My Land: A Collection of American Folk Songs," a compilation that also featured Pete Seeger and Lead Belly. Folkways Records, a label found by Moses Asch and dedicated to the documentation of folk, world and children's music, was acquired by the Smithsonian Institution Center for Folklife and Cultural Heritage in 1987. The lawsuit claims the Folkways published Guthrie's lyrics without any copyright notice. Arlo Guthrie frequently closes his concerts by playing a pair of his father's songs, "This Land" and "My Peace," joined by other Guthrie family members including Arlo's daughter Sarah Lee Guthrie. According to the website Setlist.FM, "This Land" is frequently performed live by artists including Bruce Springsteen, Bob Dylan, Sharon Jones & The Dap Kings and other artists. The plaintiffs are represented by Randall Newman -- Newman@whafh.com -- at Wolf Haldenstein Alder Freeman & Herz in New York, NY. Representatives of the defendants did not immediately respond a request from Courthouse News for comment. MARS INC: Sued Over False Ad for Uncle Ben's Ready Rice ------------------------------------------------------- MELISSA L. VIGIL, individually and on behalf of all others similarly situated, the Plaintiff, v. MARS INCORPORATED, a Delaware corporation and MARS FOOD US, LLC, a Delaware corporation, the Defendants, Case No. RG16819596 (Cal. Super. Ct., June 15, 2016), seeks restitution, injunctive, declaratory, and other equitable relief as may be deemed proper by the Court relating to the Defendants' misrepresentations regarding the amount of rice contained in each packet of their Uncle Ben's Ready Rice products, in violation of the California False Advertising Law (FAL), the California Consumer Legal Remedies Act (CLRA), and the California U11fair Competition Law (UCL). The allegations of this class action can be summarized simply: Defendants' Uncle Ben's Ready Rice products do not contain the amount of rice advertised. California consumers are, therefore, paying for an amount of rice that they do not receive. Melissa Vigil is a resident of California and a citizen of California. The Plaintiff purchased Defendants' Uncle Ben's Ready Rice products on at least three different occasions, including Defendant's Rice Pilaf and Original flavored Ready Rice products. Plaintiff last purchased Defendants' Uncle Ben's Ready Rice at Safeway in Alameda, California in December 20l5. The Defendants are one of the largest privately held food companies in the world. The Defendants market food products under various brand names, one of which is "Uncle Ben's" rice. A popular product of Defendants is Uncle Ben's Ready Rice -- a small microwavable packet of pre-cooked rice that can be prepared within 90 seconds. Uncle Ben's Ready Rice is marketed in multiple flavor; yet, the packaging, cooking instructions, product and serving size are substantially identical throughout Defendants' Ready Rice line. The Plaintiff is represented by: Jeffrey R. Krinsk, Esq. William R. Restis, Esq. Trenton R. Kashima, Esq. FINKELSTETN & KRINSK LLP 550 West C St., Suite 1760 San Diego, CA 92101 Telephone: (619) 238 1333 Facsimile: (619) 238 5425 E-mail: jrk@classactionlaw.com wrr@classactionlaw.com trk@classactionlaw.com MARTIN BOYLE: Appeals Court Tosses Gulf Stream Class Action Bid --------------------------------------------------------------- Jim Saunders, writing for Sun Sentinel, reports that a federal appeals court on June 21 rejected a class-action lawsuit filed by a Palm Beach County town that alleges it has been inundated with public-records requests as part of scheme to generate attorneys' fees and legal settlements. The town of Gulf Stream and a contractor, Wantman Group, Inc., contended that defendants in the case were involved in racketeering by using Florida's public-records law to "extort" money from local governments, according to court documents. The issue is rooted in part of the law that allows people to collect attorneys' fees if they successfully sue government agencies for failing to properly provide public records. A three-judge panel of the 11th U.S. Circuit Court of Appeals appeared to express sympathy on June 21 for the small Palm Beach County town but upheld a lower court judge's decision dismissing the case, which was brought under the federal Racketeer Influenced and Corrupt Organizations Act, better known as RICO. "The allegations in the plaintiffs' complaint paint a frustrating picture," said the 13-page opinion, written by appeals-court Judge Charles Wilson and joined by judges Robin Rosenbaum and Jill Pryor. "Accepting those allegations as true, the defendants have engaged in a concerted effort to capitalize on the relatively unfettered access to public records Florida has granted its citizens by bombarding small towns and municipalities with public records requests to which they cannot respond adequately. As distasteful as this conduct may be, the allegations do not support a RICO claim under our precedent." The ruling came after a debate during this year's legislative session about a proposal to give judges discretion in deciding whether to award attorneys' fees in public-records case. The Florida League of Cities and local communities, including Gulf Stream, pushed for the change because of what they argued was a "cottage industry" of people filing public-records lawsuits to try to collect attorneys' fees. But the proposed change met with fierce opposition from open- government advocates, who said it would weaken the state's Sunshine Law because people would not be willing to take the financial risk of filing public-records lawsuits if they are not assured of recouping legal fees when they win. The proposed change ultimately failed to pass. Gulf Stream and the Wantman Group filed the class-action lawsuit last year and sought to include other government agencies. Defendants in the case were Martin O'Boyle, William F. Ring, Christopher O'Hare, Jonathan R. O'Boyle, Denise DeMartini, and associated companies, according to court documents. The Wantman Group was a party because of a dispute about a public-records request it received as a government contractor. The town alleged that the defendants had submitted more than 2,000 public-records requests and filed lawsuits over the requests, according to documents filed in the appeal. It also alleged that the requests and lawsuits were used as a way to spur settlements. But in a brief filed in November, attorneys for several of the defendants said Gulf Stream and the contractor had filed the racketeering case "to create a collateral attack on the records requestors for exercising their lawful rights." "The records requestors have an absolute right to make public records requests and lawsuits," the brief said. "Their motive for requesting those documents is irrelevant and cannot constitute extortion. . . . The public records act places no limitation on how many requests may be made. This lawsuit impermissibly seeks to limit the records requestors' exercise of the rights granted to the records requestors by the Florida Legislature and not stop some other unlawful acts." MARYLAND: Detainees File Class Suit Over Commitment Delays ---------------------------------------------------------- Brandi Buchman, writing for Courthouse News Service, reported that saying they've been left to "languish unlawfully in jail," four people judged mentally incompetent to stand trial have filed a class action in Baltimore against Maryland. Fredia Powell, James Powell, Shane Dorsey and Ivan Burrell all face criminal charges in Baltimore City Circuit Court. The class action they filed June 9, in that same court takes aim at "deliberate unlawful systemic policy" of the Maryland Department of Health and Mental Hygiene. They say each has been found incompetent to stand trial, whether because of mental disorder or because they pose a danger to themselves or others. Maryland law says such detainees "are entitled -- indeed required -- to be committed" to a state facility for care and treatment, according to the complaint, but the state Department of Health and Mental Hygiene "has consistently not met its obligation and fails and refuses to do so." But DHMH, as the department is abbreviated in the complaint, instead "requires plaintiffs and class members to languish unlawfully in jail or detention facilities," the complaint states. The department "cavalierly and routinely ignores and violates" the appointments of detainees to mental health facilities, and arbitrarily ignores the deadlines set for prisoners to exit a detention facility, according to the complaint. Each of the named plaintiffs was supposed to have been admitted to state facilities for treatment either on May 26 or on June 2, but each is still waiting for such admission, the complaint says. Emphasizing that their predicaments "are not unique," the class says "they are only the most recent examples of DHMH's unlawful conduct in disregarding court commitment orders." "Sadly, the mistreatment of the named plaintiffs and the blatant disregard of unambiguous court orders committing persons to DHMH . . . is illustrative of DHMH's past, present, and, absent this court's intervention, expected future conduct," the complaint continues. The 16-page filing goes on to quote an April letter DHMH Secretary Van Mitchell purportedly sent Judge Sheila Adams, with the Prince George's County 7th Judicial Circuit Court, about the "crisis" his department faced with regard to "responding expeditiously to court requirements." "Secretary Mitchell's letter makes clear that the unlawful mistreatment of the named plaintiffs (and the class whom they represent) is not the result of some random or coincidental act," the complaint states (parentheses in original). "Rather, this unlawful mistreatment . . . is deliberate, intentional, and the direct inevitable product of the secretary's explicit policy decision and directive that DHMH has 'discretion' not to comply." When reached for comment, a spokesman for DHMH also pointed to Mitchell's letter. The spokesman would not otherwise comment on the lawsuit. Mitchell's letter notes that the facility where named plaintiffs were to be sent for treatment is the highest security institution in the area, Clifton T. Perkins Hospital. "All of the DHMH facilities are full and have been consistently for the past year. . . [and] that the issue is particularly acute at CPH," Mitchell's letter continues, abbreviating Clifton Perkins Hospital. Mitchell also explained that "the situation has been compounded by the need for new leadership" at the hospital. The class meanwhile balked at the temporary remedy Mitchell's letter offers: creating a "workgroup" that will expedite a resolution to inmates in need. The workgroup will purportedly include representatives from Public Safety and Correctional Services, the Maryland Disability Law Center, the nonprofit behavioral health care corporation People Encouraging People, and the General Assembly. But the class says "creating a 'workgroup' is not a recognized defense to violating an order of this court or any court." The detainees contend that "deliberate" noncompliance with court orders of commitment violates the laws of criminal procedure and the Maryland Declaration of Rights. Represented by Ralph Tyler, an attorney with Venable, the class seeks expedited proceedings and injunctive relief. Tyler would not comment beyond the allegations of his complaint. MDL 2493: Placeholder Motions for Class Certification Denied ------------------------------------------------------------ In In Re: Monitronics International, Inc., Telephone Consumer Protection Act Litigation, MDL NO. 1:13-MD-2493-JPB-MJA (N.D. W.Va.), the Hon. John Preston Bailey entered an order denying, without prejudice, placeholder motions filed in 26 cases that seek class certification or, in the alternative, to stay briefing pending completion of discovery. The plaintiffs filed the placeholder motion to avoid being "picked off" through a Rule 68 or individual settlement offer. The plaintiffs request that the Court stay briefing on the Motion and provide the plaintiffs sufficient discovery to further support and supplement the Motion. In denying the Motion without prejudice, Judge Bailey said the decision is based, in part, on Judge Williams' excellent opinion in Kensington Physical Therapy v. Jackson Therapy Partners, 974 F.Supp.2d 856 (D. Md. 2013). In his opinion, Judge Williams found that the process suggested in Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011) (and utilized by the plaintiff in this case) of moving for class certification immediately and requesting that the Court take no action "encourages plaintiffs to clutter the docket with motions related to class certification and discovery at the outset when in many cases defendants will presumably move to dismiss. Therefore, although Rule 23 contemplates 'early' class certification determinations, Damasco's procedure is not 'practicable.' Cf. Fed.R.Civ.P. 23(c)(1)(A)." 974 F.Supp.2d at 863. According to Judge Bailey, Judge Williams is also correct in finding that the premature motions are not necessary because "a complete settlement offer made before the plaintiff files a motion for class certification does not moot the putative class action provided that the plaintiff move for class certification within a reasonable time after discovery." Id. See Campbell-Ewald Co.v. Gomez, 136 S.Ct. 663 (2016). The placeholder motions were filed in these cases: -- Finklea v. Monitronics International, Inc., et al., Case No. 1:14-cv-00087 -- Charvat v. Monitronics International, Inc. et al., Case No. 1:14-cv-00162 -- Cunningham v. Alliance Security et al., Case No. 1:14-cv-00169 -- Bank v. Alliance Security Inc. et al., Case No. 1:14-cv-00215 -- Newton Vaughan v. Versatile Marketing Solutions, Inc. et al., Case No. 1:15-cv-00059 -- ABRAMSON v. ALLIANCE SECURITY, INC., Case No. 1:15-cv-00100 -- Lawrence Tarizzo v. Alliance Security Inc., Case No. 1:15-cv-00137 -- Newhart v. Monitronics International, Inc. et al., Case No. 1:15-cv-00161 -- Mey v. Monitronics International, Inc. et al., Case No. 5:11-cv-00090 -- Cunningham v. The Altitude Group, LLC et al., Case No. 1:15-cv-00169 -- Worsham v. Monitronics International, Inc. et al., Case No. 1:15-cv-00225 -- Reo v. Alliance Security, Inc., Case No. 1:15-cv-00238 -- Frazer v. Alliance Security, Inc., Case No. 1:16-cv-00014 -- Corralez-Estrada-Diaz v. Alliance Security Inc., Case No. 1:16-cv-00035 -- GERACI v. ALLIANCE SECURITY, INC. et al., Case No. 1:16-cv-00036 -- Primack v. United Technologies Corporation et al., Case No. 1:16-cv-00090 -- Worsham v. Monitronics International, Inc. et al., Case No. 5:16-cv-00082 -- Monitronics International, Inc., Telephone Consumer Protection Act Litigation, Case No. 1:13-md-02493 -- Bowler et al v. Monitronics International, Inc. et al., Case No. 1:13-cv-00263 -- Giles v. ISI Alarms NC Inc. et al., Case No. 1:14-cv-00020 -- Bennett v. Monitronics International, Inc. et al., Case No. 1:14-cv-00034 -- Fairley v. Monitronics International, Inc., Case No. 1:14-cv-00054 -- Mey et al v. Honeywell International, Inc. et al., Case No. 1:14-cv-00059 -- Beavers et al v. Versatile Marketing Solutions, Inc. et al., Case No. 1:14-cv-00064 -- Dolemba v. Monitronics International, Inc. et al., Case No. 1:14-cv-00066 -- Dolemba v. Alliance Security, Inc. et al., Case No. 1:14-cv-00082 A copy of one of the Court's Orders is available at http://d.classactionreporternewsletter.com/u?f=H0y44Mjy MICHIGAN: State Police Sued Over Marijuana Reporting Policy ----------------------------------------------------------- Dana Chicklas, writing for Fox17, reports that attorneys filed a federal class action lawsuit against the Michigan State Police crime labs, claiming its current marijuana reporting policy violates due process and Fourth Amendment rights and demanding it be thrown out for good. This suit would have statewide impact, directly affecting the some 180,000 registered medical marijuana patients and anyone caught with marijuana in Michigan. Attorneys Michael Komorn and Tim Daniels filed the suit on June 21 with the U.S. District Court for the Eastern District of Michigan, Detroit Division. They write the crime labs, in concert with the Prosecuting Attorneys Association of Michigan and the Oakland County Sheriff's Department, intentionally misreport marijuana as synthetic, as we saw in the Max Lorincz case in Ottawa County. A judge threw out his felony drug charge 16 months into the case; meanwhile, Mr. Lorincz's 6-year-old son spent 18 months in foster care. Mr. Lorincz is one of the four plaintiffs in the complaint. But it goes further, writing that the 2013 marijuana policy in the labs was "made in an attempt to strip medical marijuana patients of their rights and immunities, charge or threaten to charge citizens with greater crimes than they might have committed, obtain plea deals and increase proceeds from drug forfeiture." "The fact that it continues to go on," said Mr. Komorn, "it's an outrage; it's not science. The Michigan Medical Marijuana [Program] was supposed to be a shield, not a sword." Last fall, the MSP Forensic Science Division Director Captain Gregoire Michaud, who quietly retired this May, made a presentation for the Wayne County Criminal Defense Bar. Mr. Michaud had said out of the crime labs' $60 million budget, 40 percent was spent on testing marijuana. He said this caseload volume impeded their work on investigating other cases, specifically testing rape kits statewide. Mr. Komorn reiterated this suit is working to dismiss this policy in the labs and rearrange the state police's priorities. "That's one of the things that I'm hoping comes out of this, is that we turn the focus away from and onto the more, that we would all agree, serious crimes that we need full-on police investigation attention," said Mr. Komorn. The MSP Public Affairs Manager Shanon Banner told FOX 17 on June 22 they will not comment on a pending case, defaulting to their Nov. 2015 statement. The Prosecuting Attorneys Association of Michigan has not responded to FOX 17 for comment. Later this year, the state police labs are up for their renewal of their international accreditation with the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. It is likely the MSP's crime labs' marijuana misreporting allegations will be challenged during this process. MILLERCOORS LLC: Court Tosses Lawsuit Over Blue Moon Beer --------------------------------------------------------- Philip A. Janquart, writing for Courthouse News Service, reported that a federal judge dismissed with prejudice a class action claim that MillerCoors misrepresents its Blue Moon Belgium beer as "craft beer," finding that a "reasonable" consumer would not be misled by the advertising or pricing. Evan Parent, a self-described "beer aficionado," filed a class action in Superior Court in April 2015. He claimed MillerCoors intentionally misleads consumers about Blue Moon beer, marketed under the auspices of Blue Moon Brewing Co., to piggyback on the popularity of the burgeoning craft beer market. Parent says Blue Moon cannot be classified as a craft beer because MillerCoors is not a "small, independent and traditional" craft brewery as defined by the Brewers Association, a trade organization for American craft brewers. Other requirements include a 6 million barrel per year production cap and a noncraft-brewer ownership interest of less than 25 percent. Parent said MillerCoors produces 76 million barrels of beer per year, yet stocks Blue Moon with other craft beers in retail stores so it can charge "up to 50 percent more for Blue Moon" based on its bogus craft-beer status. He also challenged the company's use of the registered trademark "Artfully Crafted" on Blue Moon labeling and ads. He sought damages for deceptive trade, consumer law violations, false advertising law, and unfair competition. MillerCoors removed the case to Federal Court under the Class Action Fairness Act and filed a motion to dismiss in June 2015, for failure to state a claim. It claims that its use of its trademarked Blue Moon Brewing Co. trade name falls within California's "safe harbor" and that "no reasonable consumer" could have been misled by its "craft beer" and "Artfully Crafted" representations because there is no standard definition of "craft beer." U.S. District Judge Gonzalo Curiel agreed in an Oct. 26, 2015 ruling. Curiel found that no regulation bars MillerCoors from placing Blue Moon Brewing Co. on its label instead of MillerCoors. He granted the company's motion to dismiss, without prejudice. Parent filed an amended complaint in November 2015, citing three ads on the Blue Moon website and YouTube channel that he called misleading. MillerCoors filed another motion to dismiss based on Parent's failure to "allege an actionable" misrepresentation since "(1) a reasonable consumer would not be misled by MillerCoors' advertising; (2) MillerCoors is not liable for third-party representations; and (3) MillerCoors' alleged pricing of Blue Moon is not a representation." In dismissing with prejudice on June 16, Curiel said he "agrees with defendant that the three advertisements . . . constitute non-actionable puffery." "Plaintiff fails to point to any 'specific and measurable claim[s], capable of being proved false or of being reasonably interpreted as a statement of objective fact' made in the advertisements." Curiel also found that MillerCoors is not liable for where third- party distributors stock its products in retail stores and that its pricing of Blue Moon beer does not constitute a misrepresentation. "The court previously found that plaintiff had failed to point to any case 'supporting the proposition that the price of a product can constitute a representation or statement about the product,'" Curiel wrote. "Plaintiff has again failed to do so here." He added: "Having already given plaintiff a second opportunity to plead his case, and having found the merits lacking, the court finds that at this juncture, amendment would be futile. Accordingly, the court denies plaintiff leave to amend." The case captioned, EVAN PARENT, an individual on behalf of himself, a class of persons similarly situated, and the general public, Plaintiff, v. MILLERCOORS LLC, a Delaware Limited Liability Company authorized to do business in California, and DOES 1-50, Inclusive, Defendant, CASE NO. 3:15-cv-1204-GPC-WVG (S.D. Cal.). MITRA QSR: "Woolford" Suit Seeks Unpaid Wages Under FLSA -------------------------------------------------------- EUGENE WOOLFORD, 1147 N. Carey Street Baltimore, Maryland 21217, Resident of Baltimore City, the Plaintiff, v. MITRA QSR KNE, LLC, 18900 Dallas Parkway, Suite 125, Dallas, Texas 75287; PUSHPAK PATEL, 2019 Fox Glen Drive, Allen, Texas 75013; and MANISH PATEL, 2906 Montebello Court, Austin, Texas 78746, the Defendants, Case No. 1:16-cv-02124-RDB (D. Md., June 15, 2016), seeks to recover unpaid wages, liquidated damages, interest, reasonable attorneys' fees and costs under the Federal Fair Labor Standards Act (FLSA); unpaid wages, interest, reasonable attorneys' fees and costs under Maryland Wage and Hour Law, Maryland Code Annotated, Labor and Employment Article (MWHL); and unpaid wages, treble damages, interest, reasonable attorneys' fees and costs under the Maryland Wage Payment and Collection Law (MWPCL). According to the complaint, the Plaintiff has not received compensation from Defendants for all wages owed for work performed before the termination of his employment. This is specific to Defendants' failure to pay Plaintiff overtime for all hours worked over 40 in a workweek. The Defendants allegedly withheld from Plaintiff the wages owed to him and continued to violate the MWPCL, even after Plaintiff informed Defendants of the violation. Moreover, there is no bona fide dispute that Plaintiff is owed wages for work performed while employed by Defendants. Mitra QSR is engaged in the management consulting services industry in Dallas. The Plaintiff is represented by: George E. Swegman, Esq. Benjamin L. Davis, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244 7005 Facsimile: (410) 244 8454 E-mail: gswegman@nicholllaw.com bdavis@nicholllaw.com MODESTO, CA: One of MID Class Actions May Face Jury Trial --------------------------------------------------------- Garth Stapley, writing for Modesto Bee, reports that one of two unrelated class-action lawsuits brought on behalf of the Modesto Irrigation District's electricity customers might be decided by a jury, but the other likely won't, a judge said in pretrial rulings. Both lawsuits ask juries to order that MID stop illegally inflating power bills to subsidize farm water prices, and both seek unspecified refunds for tens of thousands of electricity customers. Although similar and filed within two weeks of each other, the lawsuits were prepared by separate law firms and employ different wording. The lawsuits respectively were filed by Modesto residents Dave Thomas and Andrew Hobbs, both noting that MID has not asked for voter approval to overcharge power customers. The Hobbs complaint also accuses MID of overcharging homes to subsidize businesses that pay lower rates. If granted class status, the Thomas complaint could draw in 118,000 residential, commercial and industrial power customers, while Hobbs' might cover 97,000 residential customers. A technical difference in Thomas' approach "might entitle him to a jury trial," Stanislaus Superior Court Judge William Mayhew said on June 22 in a tentative decision, but a judge should decide Hobbs' case, Judge Mayhew indicated in a separate ruling. MID on June 23 could try to change Judge Mayhew's mind in the Thomas case in oral arguments. The district has balked at pinpointing its electricity profit, which is used to repay debt, build reserves of about $200 million and cover the farm water subsidy, amounting to $17 million this year. Bonding documents last year put the district's yearly electricity profit at more than $90 million. MID argued against letting a jury weigh both cases, saying the legal dispute should focus on whether the MID board followed the law when setting prices. "It would be impractical to expect a lay jury to review the many hundreds of pages of staff reports, (board) minutes and dense, technical spreadsheets calculating MID's cost of service to determine if evidence supports those rates," MID attorneys wrote in a court brief. "This is a matter for a professional trier of fact, not a lay panel." Judge Mayhew agreed in the Hobbs case, saying, "Where review is so limited, it requires a judge, not a jury." "It's still a righteous, meritorious case," said Prescott Littlefield, Hobbs' attorney. "The judge is an impartial jurist and we're sure he'll be thorough and diligent." MU HEALTH CARE: Faces Class Action Over Hospital Charges -------------------------------------------------------- Emissourian reports that a class action lawsuit has been filed against the curators of the University of Missouri, d/b/a as MU Health Care, University Hospital and University Physicians alleges overcharging of patients with no health insurance. The complaint was filed by Daniel L. Taylor through his counsel AW Smith of the AW Smith Law Firm in Columbia. The complaint states, that the suit is a civil rights class action lawsuit arising under the Equal Protection Clause of the 14th Amendment and 42 U.S.C. Sec. 1981. The plaintiff, individually and on behalf of all persons similarly situated, seeks damages and other relief against defendant, the curators of the University of Missouri d/b/a MU Health Care, University Hospital, and University Physicians, arising from its routine practice of applying its hospital charge transparency policy's "Automatic No Health Insurance Reduction" unequally, to patients without health insurance but who have a liability insurance claim recovery. The MU hospital's "automatic no health insurance reduction" states, that patients without health insurance, will receive an automatic deduction of 60 percent, off of their university hospital bills and 25 percent off, their university physician bills. The class action lawsuit alleges that the defendants, University Hospital and University Physicians, have not been honoring the discounts listed in their policies, consistently, to all patients without health insurance. Many hospitals have been caught charging uninsured patients twice as much as patients with health insurance, for emergency room services. This has prompted several class action lawsuits regarding that policy. This premium pricing relates to charging an uninsured patient, who is often a low-income individual, what hospitals often refer to "retail prices." This cost structure can be twice as much or more of what the hospital charges an insurance company for the same service, according to the AW Smith Law Firm. NEW CARLTON: "Rumph" Suit Seeks Overtime Pay Under FLSA ------------------------------------------------------- Roy Rumph, individually and on behalf of all others similarly situated, the Plaintiff, v. New Carlton Rehab & Nursing Center LLC, the Defendant, Case No. 1:16-cv-03128 (E.D.N.Y., June 15, 2016), seeks to recover damages and other remedies for violations of the overtime provisions of the Fair Labor Standards Act (FLSA), and the New York Labor Law (NYLL), for breaches of the overtime provisions of the Collective Bargaining Agreement Between the League of Voluntary Hospitals and Homes of New York and 1199 SEIU United Healthcare Workers East (CBA), and for unlawful retaliation in violation of FLSA and NYLL. The Defendant allegedly failed and refused to pay Plaintiff one- half times his regular hourly wage rate for hours he worked in excess of 36.25 per week during the period from June 15, 2010 to the present. New Carlton provides 24-hour nursing care. The Plaintiff is represented by: John J.P. Howley, Esq. LAW OFFICES OF JOHN HOWLEY 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 601 2728 Facsimile: (212) 601 2610 E-mail: jhowley@johnhowleyesq.com NEW YORK: Driver Sues Over Long Island Surcharges on Tickets ------------------------------------------------------------ Josh Russell, writing for Courthouse News Service, reported that in a class action complaint in Mineola, N.Y., a driver claims Long Island's Nassau County reaps millions of dollars from an illegal "driver responsibility fee" it tacks onto camera-issued red light fines. Mark Guthart claims the $15 to $45 "driver responsibility fee" on top of the $50 liability cap for a red light camera violation is "an unauthorized, unconstitutional attempt to expand red-light liability beyond the limits delineated by the state legislature." He seeks disgorgement, restitution and damages for fraud, negligent misrepresentation and unjust enrichment. Lawsuits across the country have challenged -- nearly always unsuccessfully -- red-light camera fines. Guthart's June 8 complaint in Nassau County Supreme Court is different in that it does not challenge the red light fine, but the tacked-on fee. He claims that New York Vehicle and Traffic Law, section 1111-b set a $50 cap on the violation, and that although Nassau County calls the surcharge a fee, it serves as "an automatic flat monetary penalty." He seeks class certification, an injunction, damages -- and the $30 he was charged in December 2015. Nassau County's "driver responsibility fee" increased from $30 to $45 on Jan. 1 this year. Nassau County's red light camera program, which began in March 2009, brought the county $36.8 million in revenue in 2013. The program is overseen by Arizona-based American Traffic Solutions. As of 2012, Nassau County receives 62 percent of the money collected by the red light program, and American Traffic Solutions gets 38 percent, according to the complaint. The co-defendant Nassau County Traffic and Parking Violation Agency says on its website that red light violations "cannot be pled to a lesser offense" and "red light camera violation fine cannot be reduced." Payments made by phone through the third-party Violation Info charges a $6 per ticket transaction fee. The Nassau County's Attorney's Office declined to comment on pending litigation. Guthart is represented by David Raimando of Lake Grove, and Kevin Landau with Taus, Cebulash and Landau, in New York City. NISSAN: Hid Problems with Timing Chain Tension System, Suit Says ---------------------------------------------------------------- Courthouse News Service reported that a RICO class action accuses Nissan of concealing problems with its timing chain tension system in 2004-09 Quests, 2004-06 Altimas, and 2005-07 Pathfinders, Xterras and Frontiers, in Federal Court in Los Angeles. PSB SATELLITES: "Villalba" Suit to Recover Minimum, Overtime Pay ---------------------------------------------------------------- Emigdio Villalba, Javier Jose Fuentes, Gustavo Angel Cardenas Campos, Jose Flores and Magdaleno Villalba, individually and on behalf of others similarly situated, Plaintiffs, v. PSB Satellites Ltd. (d/b/a Park Slope Ale House and Henry Street Ale House, and Eugene Kaleniak, Case No. 1:16-cv-04329 (S.D. N.Y., June 9, 2016), seeks unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 as well as spread-of-hours pay under New York Labor Laws. Defendants own, operate, two bars located at 356 6th Avenue, Brooklyn, New York 11215, (Park Slope Ale House) and 62 Henry Street, Brooklyn, New York 11201 (Henry Street Ale House), where Plaintiffs were employed as cooks, food preparers and dishwashers. They claim to be denied overtime pay. The Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES PC. 60 East 42nd Street Suite 2540 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 SODEXO INC: "Crenshaw" Suit Seeks OT and Minimum Wages ------------------------------------------------------ JAMES CRENSHAW, individually, on behalf of all others similarly situated, and as representatives of other aggrieved employees, the Plaintiff, v. SODEXO, INC, a Delaware Corporation; SDH SERVICES WEST, LLC, a Delaware Limited Liability Company; and DOES 1-250, inclusive, the Defendants, Case No. BC623887 (Cal. Super. Ct., June 15, 2016), seeks to recover overtime and minimum wage under California Labor Law. According to the complaint, the Defendant had Plaintiff and Class members repeatedly work through their shifts without scheduling, permitting, authorizing or allowing Plaintiff and Class Members to take their required breaks. Due to its failure to pay employees for the work performed during its meal periods, Defendant has also failed to properly pay overtime and minimum wage for these hours in violation of California Labor Code. The Plaintiff and Class members were not authorized or permitted lawful meal periods, and were not provided with one hour's wages. Sodexo failed to schedule or provide meal periods; and, required Plaintiff and Class members to work through their meal periods to meet Defendants' demanding schedules. In fact, Sodexo would also modify time records to include a meal period when no meal period had been taken in order to fraudulently reflect that Defendants were in compliance with California's meal period laws. Sodexo is a company that provides food and facility management services in the State of California The Plaintiff is represented by: Gary R. Carlin, Esq. Brent S. Buchsbaum, Esq. Laurel N. Haag, Esq. Ian M. Silvers, Esq. LAW OFFICES OF CARLIN & BUCHSBAUM LLP 555 East Ocean Boulevard, Suite 818 Long Beach, CA 90802 Telephone: (562) 432 8933 Facsimile: (562) 435 1656 E-mail: gary@carlinbuchsbaum.com brent@carlinbuchsbaum.com laurel@carlinbuchsbaum.com ian@carlinbuchsbaum.com SONY CORP: Settles PlayStation 3 Owners' Class Action ----------------------------------------------------- Kevin Parrish, writing for Yahoo Tech, reports that a settlement appears to be on the horizon thanks to a deal that was reached on June 17 between Sony and lawyers representing millions of PlayStation 3 owners. The agreement was made before Judge Yvonne Gonzalez in California's Oakland courthouse, but still needs to be approved by a federal judge before Sony can hand out money to each PlayStation 3 owner. The proposed settlement was viewed in June. So what is Sony's settlement all about? Glad you asked. A long, long time ago in what now seems like an alternate universe, the Sony PlayStation 3 allowed the installation of a secondary operating system based on Linux or Unix. This function was listed as "Install Other OS" on the console's XMB interface, and was ripped out with the introduction of the newer PS3 Slim model and firmware version 3.21. Many PlayStation 3 owners, both old and new customers alike, were not happy with the change, given that one of Sony's major PlayStation 3 selling points became a defunct option. The reason Sony provided for removing secondary OS support was due to "security reasons." When the v3.21 firmware update went live, Patrick Seybold, senior director of corporate communications and social media, merely indicated that the feature was removed to make the PlayStation 3 platform more secure. Customers of the older system had a choice of not updating to the v3.21 firmware, but they would not have access to the PlayStation Network. They also wouldn't be able to run software or play videos that required the latest firmware. Sony saw a number of class-action lawsuits filed against the company over the "Other OS" issue starting in April 2010. These lawsuits were dismissed one after another by the beginning of December, 2011, because they failed to show how Sony would be liable. However, the last dismissal was reversed in January 2014 in the U.S. Court of Appeals for the Ninth Circuit, and that particular lawsuit was returned to the district court. And now here we are, years later, with a settlement finally on the way. "Approximately 10 million units were sold in the United States and ranged in price from approximately $400 to $600," the legal agreement states. 'Throughout the pendency of the case, Defendant has vigorously denied liability. Among other things, Defendant has argued that it had the right to remove the Other OS pursuant to its terms of service and other purported agreements, and that the Other OS was not a functionality that was material to the vast majority of purchasers." However, according to the agreement, millions of North American customers will soon be eligible to submit a Claim Form to receive a $55 settlement, or a smaller $9 settlement. In order to get the larger sum, customers must show proof that they actually ran another operating system on the PlayStation 3. Otherwise, consumers will get $9 if they show in a valid claim that the console lost its value when Sony removed the Other OS function. "There is no limit on the number of valid claims that Defendant is required to pay," the document adds. "The Parties believe the terms of the Agreement are fair, reasonable and adequate, and that the Court should grant preliminary approval. Accordingly, Plaintiffs respectfully request that the Court grant this motion." A "notice program" will be launched to send out two rounds of emails to customers who are potential recipients of a settlement. Banner ads and search-related advertising related to the settlement will also be flashed on the likes of CNET, IGN, GameSpot, and other related sites. There will even be a "settlement website" that will play host to the settlement notice and "key documents." Finally, the agreement shows that Sony will shell out $3,500 for each plaintiff as recognition for their continued efforts to reach a settlement. These individuals paid to retain council, provided their PlayStation 3 consoles as evidence, and so on. Attorney's fees and expense reimbursement will be an additional $2,250,000, which Sony will be required to pay. The final approval hearing is scheduled to take place on November 8, 2016, the document shows. STAR TEX: Faces "Castillo" Lawsuit Seeks OT Pay Under FLSA ---------------------------------------------------------- ISSAC CASTILLO, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. STAR TEX GASOLINE & OIL DISTRIBUTORS, INC., and RONNIE D. KING, Defendants, Case 2:16-cv-00227 (S.D. Tex., June 20, 2016), seeks to recover, on behalf of himself and the purported Class Members, all unpaid wages and other damages owed under the Fair Labor Standards Act. Star Tex Gasoline & Oil Distributors, is a wholesale supplier of diesel, fuels, gasoline, lubricants and oils. The Plaintiff is represented by: Robert R. Debes, Jr., Esq. Ricardo J. Prieto, Esq. SHELLIST, LAZARZ, SLOBIN LLP 11 Greenway Plaza, Suite 1515 Houston, TX 77046 Phone: (713) 621-2277 Fax: (713) 621-0993 E-mail: bdebes@eeoc.net rprieto@eeoc.net STATE FARM: Sued in W.D. Mo. Over Life Insurance Policy Charges --------------------------------------------------------------- MICHAEL G. VOGT, Individually and On Behalf Of All Others Similarly Situated, the Plaintiffs, v. STATE FARM LIFE INSURANCE COMPANY, the Defendant, Case No. 2:16-cv-04170-NKL (W.D. Mo., June 15, 2016), seeks all damages and consequential damages proximately caused by Defendant's breach of contract and conversion to recover amounts that Defendant has charged and collected from Plaintiff and members of a class of life insurance policy owners in excess of amounts authorized by the express terms of their policies. According to the complaint, the Defendant has caused material harm to Plaintiff and the proposed class by improperly draining monies they have accumulated in the Account Values under their policies. Every unauthorized dollar taken from policy owners is one less dollar that can be used to: invest through the policy; pay future premiums; increase the death benefit; use as collateral for policy loans; or withdraw as cash. State Farm provides life insurance products and annuities. The Plaintiff is represented by: Patrick J. Stueve, Esq. Norman E. Siegel, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714 7100 Facsimile: (816) 714 7101 E-mail: stueve@stuevesiegel.com siegel@stuevesiegel.com - and - John J. Schirger, Esq. Matthew W. Lytle, Esq. Joseph M. Feierabend, Esq. MILLER SCHIRGER, LLC 4520 Main Street, Suite 1570 Kansas City, MO 64111 Telephone: (816) 561 6500 Facsimile: (816) 561 6501 E-mail: jschirger@millerschirger.com mlytle@millerschirger.com jfeierabend@millerschirger.com SYSCO CORPORATION: "Navarro" Suit Removed to C.D. California ------------------------------------------------------------ The class action lawsuit entitled Frank Navarro, on behalf of himself, all others similarly situated, and on behalf of the general public v. Sysco Corporation, Sysco Los Angeles, Inc., Sysco Riverside, Inc., and Does 1-100, Case No. BC616001, was removed from the Superior Court for the County of Los Angeles to the U.S. District Court for the Central District of California. The District Court Clerk assigned Case No. 2:16-cv-04183-ODW-MRW to the proceeding. The Defendants are engaged in marketing and distributing food products to restaurants, healthcare and educational facilities, hotels and inns, and other foodservice and hospitality businesses. The Plaintiff is represented by: David Thomas Mara, Esq. Jill Marie Vecchi, Esq. William Turley, Esq. THE TURLEY LAW FIRM APLC 7428 Trade St San Diego, CA 92121 Telephone: (619) 234-2833 Facsimile: (619) 234-4048 E-mail: dmara@turleylawfirm.com jvecchi@turleylawfirm.com bturley@turleylawfirm.com The Defendant is represented by: Jeffrey Charles Bils, Esq. Margaret Rosenthal, Esq. Vartan Serge Madoyan, Esq. Sabrina L. Shadi, Esq. BAKER AND HOSTETLER LLP 11601 Wilshire Boulevard Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: jbils@bakerlaw.com mrosenthal@bakerlaw.com vmadoyan@bakerlaw.com sshadi@bakerlaw.com SYSCO CORPORATION: "Frieri" Class Suit Removed to S.D. California ----------------------------------------------------------------- The class action lawsuit captioned Rick Frieri, on behalf of himself and all others similarly situated, and on behalf of the general public v. Sysco Corporation, Sysco San Diego, Inc., and Does 1-100, Case No. 37-02016-00011683-CU-OE-CTL, was removed from the Superior Court, San Diego County, Central Division to the U.S. District Court Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:16-cv-01432-JLS-NLS to the proceeding. The Defendants are engaged in marketing and distributing food products to restaurants, healthcare and educational facilities, hotels and inns, and other foodservice and hospitality businesses. The Plaintiff is represented by: William D. Turley, Esq. THE TURLEY LAW FIRM, APLC 7428 Trade Street San Diego, CA 92101 Telephone: (619) 234-2833 Facsimile: (619) 234-4048 E-mail: bturley@turleylawfirm.com The Defendant is represented by: Julie Kwun, Esq. BAKER & HOSTELER, LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: jkwun@bakerlaw.com SYSCO CORPORATION: "Navarro" Suit Removed to C.D. California ------------------------------------------------------------ Frank Navarro, on behalf of himself, all others similarly situated, and on behalf of the general public v. Sysco Corporation, Sysco Los Angeles, Inc., Sysco Riverside, Inc., and Does 1-100, Case No. BC616001, was removed from the Superior Court for the County of Los Angeles to the U.S. District Court for the Central District of California (Eastern Division - Riverside). The District Court Clerk assigned Case No. 5:16-cv-01221 to the proceeding. The Defendants are engaged in marketing and distributing food products to restaurants, healthcare and educational facilities, hotels and inns, and other foodservice and hospitality businesses. Frank Navarro is a pro se plaintiff. The Defendant is represented by: Sabrina L. Shadi, Esq. BAKER AND HOSTETLER LLP 11601 Wilshire Boulevard Suite 1400 Los Angeles, CA 90025-0509 Telephone: (310) 820-8800 Facsimile: (310) 820-8859 E-mail: sshadi@bakerlaw.com TATA CONSULTANCY: Blumenthal Nordrehaug Files Class Action ---------------------------------------------------------- The San Diego employment law lawyers at Blumenthal, Nordrehaug and Bhowmik on June 22 disclosed that they lodged a putative class action lawsuit against Tata Consultancy Services Limited for allegedly failing to provide their hourly workers in California with the legally required thirty minute uninterrupted meal periods. The lawsuit also claims that Tata failed to pay all overtime worked by their California employees. The Tata lawsuit, Case No. 37-2016-00016447 is currently pending in San Diego County Superior Court. The lawsuit filed against Tata claims that the IT giant failed to accurately "record and pay Plaintiff and other California Class Members for the actual amount of time these employees worked, including overtime worked." Under the California Labor Code, an employee who is classified as non-exempt and is paid on an hourly basis must be paid overtime wages for time worked in excess of eight hours in a workday and time worked over forty hours in a workweek. The Complaint also alleges that the golden state employees working for TATA were not provided their thirty minute uninterrupted meal breaks before their fifth hour of work. California law requires employers to provide their non-exempt employees paid on an hourly basis with thirty minute meal periods before the employee works five hours. For more information about the class action lawsuit filed against Tata Consultancy Services Limited, please call Attorney Nicholas De Blouw at the firm Blumenthal Nordrehuag and Bhomwik at (866) 771-7099. Blumenthal, Nordrehaug and Bhowmik is a San Francisco employment law firm that dedicates its practice to helping employees, fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. TELEBRANDS: "Memoli" Class Suit Removed to New Jersey Dist. Ct. --------------------------------------------------------------- The class action lawsuit captioned Penelope Memoli and Heather Anderson, on behalf of themselves and all others similarly situated v. Telebrands, Case No. ESX-L-02938-16, was removed from the Superior Court of New Jersey Essex County to the U.S. District Court for the District of New Jersey (Newark). The District Court Clerk assigned Case No. 2:16-cv-03347-JMV-MF to the proceeding. Telebrands operates an online shopping company in New Jersey. The Plaintiff is represented by: Bruce Daniel Greenberg, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 E-mail: bgreenberg@litedepalma.com The Defendant is represented by: Christine A. Amalfe GIBBONS, PC One Gateway Center Newark, NJ 07102-5310 Telephone: (973) 596-4500 E-mail: camalfe@gibbonslaw.com TEXAS: Supreme Court to Hear Case Over Deaf Driver Schools ---------------------------------------------------------- Dan McCue, writing for Courthouse News Service, reported that the U.S. Supreme Court on June 28, agreed to take up a dispute involving deaf people in Texas who say driver instruction schools in the state won't let them take classes needed to get a driver's license. As is their custom, the justices did not explain their rationale for adding the case, Ivy v. Morath, to their calendar for the fall. The question they will consider is whether a state agency that outsources driver education to private contractors can be sued for refusing to make sure the schools accommodate people with disabilities. In Texas, individuals under the age of 25 cannot obtain driver's licenses unless they submit a driver education certificate to the state Department of Public Safety. The plaintiffs in the case are all deaf individuals who contacted a variety of state-licensed private driver education schools only to be told their needs could not be accommodated. A deafness resource specialist with the Texas Department of Assistive and Rehabilitative Services contacted the Texas Education Agency on the plaintiff's behalf, but the agency declined to intervene, stating that it was not required to enforce the Americans with Disabilities Act and that it would not act against the schools unless the U.S. Justice Department declared them non-compliant with the ADA. Ivy Donnika sued and the case later became a putative class action with multiple named plaintiffs seeking injunctive and declaratory relief. The trial court denied the state's motion to dismiss the case, but certified an interlocutory appeal to the Fifth Circuit, staying all further proceedings to await the outcome of the appellate review. In March 2015, a divided Fifth Circuit held the Texas Education Agency could not be sued for violating the Americans with Disabilities Act because it merely licensed the driver education schools and did not itself provide driving instruction. The case is, Donnika IVY, et al., petitioners, v. Mike MORATH, Texas Commissioner of Education, 136 S.Ct. 1242 (2016)(U.S.) TICKETMASTER: Reveals Eligible Shows for Class Action Settlement ---------------------------------------------------------------- Preston Jones, writing for Star Telegraph, reports that you might have heard about Ticketmaster settling a $400 million class action lawsuit by providing discount codes and vouchers for free shows to customers. While some were able to find out what discount codes and vouchers were available, the list of eligible shows that the codes and vouchers could be used for was not immediately available. Earlier on June 21, Ticketmaster and Live Nation finally published the full list of eligible shows -- which can be viewed here, but be warned: the site is getting slammed, so loading it may take some time -- but we've included the full list of discount code/voucher-eligible shows in Dallas/Fort Worth below. Less than 24 hours after announcing the first round of voucher/discount code-eligible concerts, the DFW list has been refreshed. Gone are all of the Gexa Energy Pavilion shows, and in their place, a slate of shows at House of Blues, which you can find below. It is also worth noting that the ticket vouchers are only good for general admission tickets -- anyone expecting to snag a ticketed seat to a show will be disappointed -- and Ticketmaster/Live Nation says the list will be occasionally updated (although there really aren't too many other large, general admission venues in DFW left to offer tickets to). June 25: The Dan Band at House of Blues July 8: INTXS (INXS cover band) at House of Blues July 9: The Molly Ringwalds (cover band) at House of Blues July 29: Crowe Showe (cover band) at House of Blues July 30: Pearl Gem (cover band) at House of Blues Aug. 5: K. Michelle at House of Blues Aug. 6: Local Brews Local Grooves at House of Blues Aug. 14: Boys Like Girls at House of Blues Aug. 19: ZOSO (cover band) at House of Blues Aug. 28: Willie Colon at House of Blues Sept. 2: Metal Shop (cover band) at House of Blues Sept. 3: Richard Cheese and Lounge Against the Machine at House of Blues. TOM & ANGIE'S: "Kraemer" Suit Seeks Overtime Pay Under FLSA ----------------------------------------------------------- COLLEEN KRAEMER, individually, MARGARATE GOROON, individually, and on behalf of others similarly situated, the Plaintiffs, v. TOM & ANGIE'S DREAM, INC. d/b/a A CHILD'S CHOICE, a Florida Profit Corporation, TOM E. LINCICOME, individually, and ANGELA C. LINCICOME, individually, the Defendants, Case No. 8:16-cv-01547- CEH-AAS (Fla. Cir. Ct., June 15, 2016), seeks to recover damages which exceed $15,000 exclusive of costs and interest, caused by the Defendants' failure to pay Plaintiffs the required overtime pay pursuant to the Fair Labor Standards Act (FLSA). According to the complaint, the Plaintiffs regularly and routinely worked over 40 hours in a work week. The Plaintiffs were not paid time and a one-half their regular hourly rate for each and every hour that they worked in excess of 40 hours in a work week for all weeks that they worked. Tom & Angie's is in the Child Day Care Services business. The Plaintiff is represented by: Wolfgang M. Florin, Esq. Christopher D. Gray, Esquire Lindsey C. Kofoed, Esq. Robin M. Orosz, Esq. FLORIN ROEBIG, P.A. 111 Alderman Road Palm Harbor, FL 34683 Telephone: (727) 786 5000 Facsimile: (727) 772 9833 E-mail: WMF@florinroebig.com CDG@florinroebig.com lck@florinroebig.com rorosz@.florinroebig.com eFiling@.florinroebig.com daniela@florinroebig.com TRANSENTERIX INC: "Ravey" Sues over Share Price Drop ---------------------------------------------------- THOMAS RAVEY, Individually and on behalf of all others similarly situated, Plaintiff, v. Transenterix, Inc., Todd M. Pope and Joseph P. Slattery, Defendants, Case No. 1:16-cv-599 (M.D.N.C., June 9, 2016) seeks to recover compensable damages for violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. TransEnterix is a medical device company that seeks to use flexible instruments and robotics to improve the outcomes of minimally invasive surgery. It developed and commercialized the SurgiBot System, a single-port, robotically enhanced laparoscopic surgical platform. The FDA notified TransEnterix on April 19, 2016 that the SurgiBot did not meet the criteria for substantial equivalence based upon the data and information submitted by TransEnterix in its 510(k) submission. As a result, TransEnterix reduced head count investment in SurgiBot production and development which resulted in an annualized reduction in salaries of approximately $4 million. Negative news resulted in share price reduction of 10%. Plaintiff bought TransEnterix shares and lost substantially. Todd M. Pope and Joseph P. Slattery were President/CEO and Executive Vice President/CFO of TransEnterix, respectively. The Plaintiff is represented by: David G. Schiller, Esq. SCHILLER & SCHILLER, PLLC 304 East Jones Street Raleigh, NC 27601 Telephone: (919) 789-4677 Facsimile: (919) 789-4469 Email: david@schillerfirm.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (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 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 Email: pdahlstrom@pomlaw.com TRUMP UNIVERSITY: Seeks to Decertify Student Class Action --------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that citing "changed circumstances," Republican presidential candidate Donald Trump moved late last week to decertify a San Diego class action over seminars aimed at teaching attendees how to get rich off the collapse of the U.S. real estate market. In his 11-page reply filed June 24, in support of a motion to decertify the class in Low v. Trump University, Trump attacked the "ensuing developments and changed circumstances" in the case brought by seminar attendees, including changing the lead plaintiff, motions to amend and recertify aspects of the class, and other changes. Trump claims the recent switch-ups and motions have positioned the case in "these unchartered waters" because the plaintiffs have "stretched the law." He argued the class should be decertified because the plaintiffs' procedural arguments in the case are without merit and the court has a duty to monitor class decisions as evidence is developed in the case. In the older of two San Diego class actions against Trump University, Sonny Low and former students claim they were defrauded by marketing tactics used to position the school as a way to get rich off the foreclosure crisis that resulted from the Great Recession. Among the most egregious claims, are that Trump University claimed it was accredited and that instructors were "handpicked" by Trump himself. In their reply against the motion to decertify, Low and other plaintiffs in the case asserted defendants "were not diligent" because they could have filed the motion to decertify before the cut-off date, but Trump argues a cut-off date does not apply and asserts new facts in the case are what sparked the motion filing in the first place. The new developments cited by Trump include the court order to allow former lead plaintiff Tarla Makaeff to withdraw, Low's admission during his deposition he had never heard or saw a misrepresentation involving Trump University's accreditation status, and other changes to the plaintiffs' trial plan. The class response that evidence Trump claims he recently became aware of was available "years ago" and asking the court to disregard it does not hold up, Trump argues. Instead, the latest actions by the plaintiffs to abandon certain claims coupled with new evidence, court orders and previous evidence "together establish that plaintiffs cannot meet their burden," Trump argues. "Plaintiffs' attempt to manufacture a dispute between 'new' and 'old' evidence is inappropriate and inconsistent," Trump's reply states. Addressing aspects of the plaintiffs' trial plan, Trump points out the class has failed to cite any case law in support of their "unprecedented" full-refund model which would shift the burden to prove damages over to Trump. "Plaintiffs fail to identify any state case sanctioning their windfall 'baseline' damages model, which indisputably expanded plaintiffs' rights to damages in an ordinary consumer case," Trump claims. "Decertification is necessary because plaintiffs cannot prove zero value on a class-wide basis and have no alternative damages model." Trump claims the class members cannot prove Trump University utilized the same marketing tactics across the board, such as the fact Trump University instructors were "handpicked" by Trump or that the real estate school was referred to as "accredited." Trump also says recent changes and motions by plaintiffs are an attempt to "reconcile" issues or discrepancies with their claims while meeting the court requirements to maintain status as a class action. Plaintiffs' request to preclude former Trump University students' testimony from being entered into evidence if they opt out of the class or do not reside in California, New York or Florida is not "conceivable" because all "relevant and admissible evidence must be considered -- not just plaintiffs,'" Trump argues. Based on Low's admission during his deposition that he "was never misled" about Trump University's accreditation status, the plaintiffs are "seeking to manufacture a new theory of liability," by requesting to replace their "common misrepresentation" claim with a "fraudulent omission" claim, which Trump said "serves to expose more individualized issues warranting decertification," according to his reply. The plaintiffs' motion "seeks to avoid addressing their deficient damages theory" and comes as "no surprise," Trump said. "They cannot reconcile the disparate issues in their claims with the requirements for maintaining the case as a class action. Their failure to formulate a viable trial plan exemplifies some of the many issues which now compel decertification," the filing states. A hearing on the motion to decertify the class is scheduled for July 22. TRUMP UNIVERSITY: July 13 Hearing on Amended Protective Order Bid ----------------------------------------------------------------- A hearing has been scheduled for July 13 on Donald Trump's motion to amend a protective order. The hearing was first set for June 30. Trump's June 15 Memorandum Bianca Bruno, writing for Courthouse News Service, reported that in a court filing over the release of Donald Trump's deposition videos taken for a class action against the now-defunct Trump University, the Republican presidential candidate compares himself to former U.S. presidents and musician Prince, saying releasing the videos would taint the jury pool and cause a "media frenzy." The past few weeks, headlines about Trump University have been dominated by a legal battle over whether or not deposition videos taken of Trump on two separate occasions should also be released alongside the partially released transcripts of those videos, which were made available earlier this month. Art Cohen is the lead plaintiff in the case, and claims Trump used the color of an educational institution to bilk thousands of dollars from students. Rather than getting any real educational value from enrollment, the students say Trump University seminars at hotels across the country merely encouraged them to spend even more money on upgrade packages. The video transcripts, along with the videos, were filed by Cohen in opposition documents filed in response to Trump's motion to dismiss the case, Cohen v. Trump. But because Cohen's attorney Jason Forge did not follow court rules for properly submitting electronic documents by seeking leave of the court, U.S. District Judge Gonzalo Curiel ordered the tapes not be made publicly available. A host of media outlets who intervened in the case -- led by the Washington Post and most recently joined by Fox News Network -- made similar arguments for the release of the Trump deposition tapes as the Post did for the public release of hundreds of other documents that it argued Trump had no "good cause" to file under a "blanket" protective order. In a response filed late June 15, Trump ticks off an eight-page list of reasons why he does in fact have good cause to request the deposition videos remain under wraps. But he takes it a step further, and requests the court modify the protective order for both San Diego class actions to prohibit the filing of any videotaped deposition, unless it remains under seal, and to bar the dissemination of any videotaped deposition. Trump claims the videos contain "irrelevant, inadmissible and prejudicial" evidence that is duplicative of the transcripts, which portions of are already available. "Owing to the danger that a video may create in eliciting bias on the part of its viewer, the court has a duty to prevent their disclosure because they can taint the jury pool," according to the memorandum. Trump pointed out other courts have recognized videotapes are subject to a "higher degree of potential abuse than transcripts" by being taken out of context and "cut and spliced and used as soundbites," which would continue in the "media frenzy certain to continue through the election." He even compared himself to President Bill Clinton and President Ronald Regan, whose deposition testimony was protected during lawsuits while they were both sitting presidents. "The need to prevent such 'sensationalism' is particularly acute here because of Mr. Trump's unique circumstances in running for President of the United States," Trump's memo states. "These same cautions and concerns apply with full force here to a presidential candidate whose every move is being covered by the media. Mr. Trump may be a sitting president by the time the Low case goes to trial, in which case these principles apply with even greater force." Trump argued the deposition tapes may not even be used at trial and, if the tapes are released, they will be used to harass him as well as other deponents. He also argued that good cause exists to keep the tapes from the public spotlight because "video from a private legal dispute should not be used solely for the media or entertainment." Not only did Trump compare himself to Clinton and Regan, but he compared the Trump University case to other high profile cases, most acutely zeroing in on a copyright and trademark infringement case brought by late musician Prince. In that case, Paisley Park Enterprises v. Uptown Productions, the court ordered videotaped deposition of Prince be used solely for the litigation and also stipulated no one was allowed to view, audit or copy the tapes. The same right to privacy afforded to Prince, should also be afforded to Trump, according to his most recent filing. "The public also has an interest in ensuring that each person in society -- including well-known individuals such as Prince and Mr. Trump -- has access to a fair and impartial judicial system 'without having to pay too high a price of admission in the form of surrender of personal privacy' through unnecessary disclosure," Trump says in his June 15 memo supporting a motion to amend the protective order. His June 27 Brief Bianca Bruno, writing for Courthouse News Service, reported that Donald Trump on June 27, called for the same treatment Hillary Clinton gets when it comes to privacy and litigation, comparing multiple class actions against Trump University to the litigation Clinton faces over her email scandal. In a brief filed late June 27, in support of amending the protective order covering two Southern California class actions brought by former students of now-defunct Trump University, the presumptive Republican presidential nominee claimed there is no "legitimate reasons" his deposition videos should be made available outside the courtroom. Trump also pointed out that courts "regularly protect" dissemination of video depositions, including for "public figures in cases of public interest." Case-in-point, Trump argues, is the current case against presumptive Democratic presidential nominee Hillary Clinton, where the videotaped deposition of her political aide was protected. "A district court recently considered a similar issue relating to the video deposition of a Hillary Clinton aide on a politically charged subject and refused to release the video of the deposition because a transcript was available," Trump pointed out. "There is no reason for a different result in this case." Clinton's aide feared release of her deposition video would allow others to "manipulate her testimony, and invade her personal privacy, to advance a partisan agenda," Trump argues in requesting "the same reasoning and result." Trump has not only dug in his heels to prevent the public release of his deposition videos taken in late 2015 and earlier this year, but he has also requested that U.S. District Judge Gonzalo Curiel make the protective order even more restrictive: The candidate wants to prohibit the filing of any videotaped deposition unless it remains under seal, and bar the dissemination of any videotaped deposition. Trump's request comes amidst mounting pressure from a host of media outlets who have intervened in the case in order to get Trump's deposition videos released. The videos were filed along with hundreds of other documents and exhibits by plaintiff Art Cohen in his opposition papers to Trump's motion to dismiss that case. Former students of Trump University sued the presumptive nominee, claiming they were defrauded by marketing tactics used to position the school as a "get rich quick" scheme to make money off the foreclosure crisis. Two class actions out of San Diego, Low v. Trump University and Cohen v. Trump, fall under the same protective order currently in dispute. Among Trump's arguments for keeping the tapes out of the public's hands include whether the case meets the "good cause standard," because the court has already rejected the plaintiffs' improper filing of the videos. Trump argues the videos are irrelevant to the motions at hand, are already available in transcript form and that the plaintiffs merely want to "inject the videos into the public record" to "prejudice" Trump. "Their minimal relevance to issues before the court renders any presumption of access inapplicable unless and until the court reviews and relies on the videos in making a decision in this case," Trump argued. Because the videos have not yet been admitted into evidence, Trump's deposition is not a judicial record with right of public access, Trump said. But Trump acknowledges that his brief really comes down to his concerns over what the media will do with his deposition tapes if they are publicly released. Avoiding "unnecessary pretrial publicity" to ensure a fair trial is a "quintessential reason to preclude public access," Trump said in the brief, adding that releasing his deposition would be "unprecedented" and would be "extensively" disseminated by the media in connection with the presidential campaign. Trump said that disclosing the videos "would not further promote public understanding of this case," and claims there are no "secrets" hiding in the tapes, as the deposition transcripts are already available. But, the media outlets argue -- with the plaintiffs' support -- that releasing the videos will show Trump's nuances including facial expressions and gesticulating, which adds the context needed to fully understand his deposition answers. Striking back at the media interveners' argument that Trump has made the lawsuits a campaign issue -- giving the public a right to view his deposition videos -- Trump placed blame on his opponents vying for the White House. "This litigation was raised initially and repeatedly by Mr. Trump's political opponents," Trump said in the brief. "Video depositions were not intended for broadcast media or to be used to further a political agenda. The court cannot allow judicial tools to be hijacked for these purposes." Attorneys for the Trump Defendants: DANIEL M. PETROCELLI, Esq. DAVID L. KIRMAN, Esq. O'MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 E-mail: dpetrocelli@omm.com dkirman@omm.com - and - JILL A. MARTIN, Esq. TRUMP NATIONAL GOLF CLUB One Trump National Drive Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 Facsimile: (310) 265-5522 E-mail: jmartin@trumpmational.com The case is captioned, SONNY LOW et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. TRUMP UNIVERSITY, LLC et al., Defendants., ART COHEN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. DONALD J. TRUMP, Defendant., Case Nos. 10-CV-0940-GPC(WVG), 13-CV-2519- GPC(WVG)(S.D. Cal.). TRUMP UNIVERSITY: Attorneys Fight Racketeering Claims ----------------------------------------------------- Josh Gerstein and Maggie Severns, writing for Politico.com, report that lawyers for Donald Trump are fighting claims that his Trump University real estate seminar program amounted to a racketeering operation under federal law. In a court filing on June 17, Mr. Trump's attorneys reject allegations in a federal class-action lawsuit that Trump University violated the Racketeering Influenced and Corrupt Organizations Act and that Trump was directly involved in those violations. "This case was an overreach from inception. It stretches civil RICO beyond the breaking point and would effectively federalize consumer advertising fraud claims, and subject officers, directors, and employees of every Fortune 500 company to unwarranted personal liability," Trump lawyers Daniel Petrocelli and David Kirman wrote. "Not a single case plaintiff cites comes close to approving of civil RICO claims on the garden-variety consumer claims here." Mr. Trump is asking U.S. District Judge Gonzalo Curiel to toss out the lawsuit, which is one of two pending class actions. The request comes as the presumptive Republican presidential nominee has begun to emerge from a media firestorm he caused by publicly accusing Judge Curiel of bias and attributing that bias to the judge's Latino heritage. Numerous Democratic leaders and several prominent GOP figures blasted Trump's remarks as racist. Judge Curiel has not publicly responded to Mr. Trump's racial remarks, but tersely noted in a ruling in May that the presidential nominee "has placed the integrity of these proceedings at issue." Mr. Trump's legal team appears to face an uphill battle in trying to get the suit thrown out, since the judge issued a ruling in 2014 that the RICO claim could proceed as a class action and has rejected a similar summary judgment motion in the parallel lawsuit. Attorneys pressing the suits against Mr. Trump on behalf of former Trump University students say the program fraudulently advertised that instructors were hand-picked by Mr. Trump and that students would learn the real estate mogul's "secrets." Even calling the program a "university" was a fraud, the lawsuits contend. Mr. Trump's lawyers say claims that students would be told Trump's "secrets" or that he was personally involved in selecting teachers were, at worst, marketing "puffery" not intended to be taken literally. "Plaintiff cannot dispute that students had vastly different interpretations of the terms 'secrets,' 'hand-picked,' and 'university,'" Petrocelli and Kirman wrote, calling the marketing language "vague and highly subjective claims, and not the type of detailed factual assertion necessary to prove fraud." Mr. Trump's lawyers also say there's no evidence that Mr. Trump himself was involved in crafting the statements now said to be fraudulent. Invoking the federal RICO statute creates the possibility that former Trump University students, many of whom paid about $1,500 for a three-day seminar and some of whom paid nearly $35,000 for a mentorship program, could receive triple damages and the class- action lawyers pursuing the case could recover their attorneys' fees. While the law passed in 1970 was initially focused on businesses run by the Mafia, it has since been used to go after a wide variety of enterprises, including ordinary corporations allegedly engaged in fraud, as well as activists like anti-abortion campaigners accused of illegally obstructing clinics. Judge Curiel is scheduled to hear arguments on the summary judgment motion in San Diego on July 22, one day after the end of the Republican National Convention in Cleveland where Mr. Trump is expected to receive the Republican presidential nomination. The judge has set a trial for Nov. 28 in the parallel class-action suit pressing claims that Trump University violated state anti- fraud laws in California, Florida and New York. In the meantime, Curiel is fielding requests from media organizations to clear the way for the public release of videos of Trump's depositions in the pair of lawsuits. Mr. Trump's lawyers are fighting to keep the videos under wraps. A hearing on that issue is set for June 30. TRUMP UNIVERSITY: Workshops Held Over Foreclosure Crisis -------------------------------------------------------- Seema Mehta, writing for Los Angeles Times, reports that as millions of people were losing their homes in the depth of the recession, instructors at Trump University were urging students to seek out anxious or desperate sellers to reap a financial windfall, according to recently released documents in the federal class-action lawsuit against presumptive GOP presidential nominee Donald Trump. The now-defunct for-profit real-estate school, founded by Trump and two associates in 2004, offered workshops on how to take advantage of the foreclosure crisis in some of the hardest hit states, including California. In a 2008 slide aimed at persuading potential students to sign up for a three-day, $1,495 workshop, Mr. Trump is pictured alongside a quote: "I've always made a FORTUNE in FORECLOSURES, and YOU WILL TOO. The timing will never be better than NOW! My recommendation is that you attend our retreat. ENROLL TODAY!" That year, more than 2.3 million foreclosures were filed across the nation, including more than a half-million in California, said Daren Blomquist, a senior vice president at RealtyTrac, a housing data firm. "It was the height of the foreclosure market." Mr. Trump was certainly not alone among investors who sought to make a profit by purchasing foreclosed or distressed properties at a deep discount. These investments helped the housing market eventually rebound, Mr. Blomquist said. But what is routine in business can be controversial in politics, as seen in Democrats' successful 2012 effort to brand that year's GOP nominee, Mitt Romney, as a heartless corporate vulture. In a similar move, Democrats seized upon Trump University's focus on foreclosures as an example of Mr. Trump's willingness to profit on Americans' suffering. "It's really offensive," said state Controller Betty Yee, who has endorsed presumptive Democratic nominee Hillary Clinton. "He's looking at really taking advantage of vulnerable communities to line the pockets of the wealthy." The Trump campaign did not respond to a request for comment. In May, when Clinton castigated him for comments he made in 2006 and 2007 about the opportunities to make money if the housing market collapsed, Mr. Trump countered by saying that he was a businessman. "I have made a lot of money in down markets. In some cases, as much as I've made when markets are good. Frankly, this is the kind of thinking our country needs, understanding how to get a good result out of a very bad and sad situation," he said. "Politicians have no idea how to do this -- they don't have a clue." The revelations about Trump University's focus on foreclosures are found in documents that were unsealed in late May by U.S. District Judge Gonzalo Curiel in San Diego. They are part of the exhibits in a fraud trial that is scheduled to begin after the November election. The fraud allegations have already been raised by Mr. Trump's GOP rivals in the Republican primary and by Clinton, as recently as June 21. The San Diego lawsuit -- one of three pending against Trump involving the university -- was most recently in campaign news because Trump repeatedly said that Judge Curiel could not oversee a fair trial because of his "Mexican heritage." The remarks drew widespread condemnation from both sides of the aisle. The hundreds of pages of documents include advertisements, speaker scripts and slide shows for a free introductory workshop designed to enroll students in longer classes and memberships that started at $1,495 and topped out at $35,000. A 2009 newspaper ad for introductory Trump University classes in Monterey, San Jose and Fremont urged prospective California students to "Cash in on the Greatest Property Liquidation in History!" This was during the peak of the housing crisis, with 2.8 million foreclosures filed across the nation. Some of the ads targeted the hardest-hit states. In addition to California, Trump University ran similar ads in Florida and Nevada, both of which are battleground states where Democrats will likely raise the matter in the general election. "It's certainly not out of the question that we would want to make sure people knew this guy was taking advantage of people losing their homes, or taking advantage of people who thought they could get rich quick because of the housing market crash," said Justin Barasky, spokesman for Priorities USA Action, a pro-Clinton super PAC that has $47 million in the bank and commitments for another $45 million to take on Trump. When pitching the "Fast Track to Foreclose Investing" system and a proprietary "Trump's Foreclosure DealSource" software to prospective students, speakers described the mortgage meltdown as a historic opportunity to make money. One compared it to "The Perfect Storm," a 2000 movie about a commercial fishing boat that sank after being confronted by two storm fronts and a hurricane off Massachusetts. "Well the same thing has happened in the housing industry and that's an incredible opportunity for us," according to a speaker script. "Everything is coming together in a perfect storm that may swamp some folks, but if you are properly trained and supported you can prosper." Investors were advised to target distressed home sellers by looking for keywords in newspaper ads, such as "anxious owner" and "seller desperate." Students were told they could save underwater homeowners' credit, possibly through a short sale. A slide featuring Trump's picture included a quote: "There is no reason why an investor can't make money and help people at the same time." TWILIO INC: Sued in W.D. Wash. Over TCPA Violation -------------------------------------------------- NOAH WICK on behalf of himself and all others similarly situated, the Plaintiff, v. TWILIO, INC., the Defendant, Case No. 2:16-cv- 00914 (W.D. Wash., June 15, 2016), seeks to recover monetary damages, injunctive relief, and other remedies for violations of federal and state law, specifically the Telephone Consumer Protection Act, the Washington State Commercial Electronic Mail Act, and the Washington Consumer Protection Act. According to the complaint, the Defendant's practice of transmitting and/or assisting in the transmission of electronic commercial text messages to Plaintiff's cellular phone is conduct that affects the public interest and is an unfair or deceptive act in trade or commerce and an unfair method of competition. Twilio is a cloud-based communications company. The primary service offered by Twilio is a cloud-based application program interface (commonly known as an "API") that permits its customers to programmatically make automated phone calls and send text messages. The Plaintiff is represented by: Mark A. Griffin, Esq. Karin B. Swope, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: mgriffin@kellerrohrback.com kswope@kellerrohrback.com - and - June P. Hoidal., Esq. ZIMMERMAN REED, LLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 341 0400 Facsimile: (612) 341 0844 E-mail: June.Hoidal@zimmreed UBER & LYFT: Councilman Sues Austin to Nix Background Check Rule ---------------------------------------------------------------- Ryan Kocian, writing for Courthouse News Service, reported that an Austin city councilman has sued his mayor, to try to invalidate the May 7 election in which voters roundly refused to repeal mandatory fingerprint-based background checks for Uber and Lyft, driving the businesses out of the city. Donald S. Zimmerman sued Mayor Steve Adler on June 16 in Travis County Court. Zimmerman has battled the city over tax issues, and founded the Travis County Taxpayers Union Special Political Action Committee. Proposition 1 failed despite the millions of dollars spent by Uber's and Lyft's PAC, Ridesharing Works for Austin. The PAC submitted more than 23,000 signatures to get Prop. 1 on the ballot. It would have repealed the city's 2015 ordinance and replaced it with a "citizen-initiated" ordinance (referred to as the 2016 ordinance in Zimmerman's complaint). Both companies shut down operations in Austin after Prop. 1 failed. Zimmerman says in his lawsuit that the ballot language "misled the voters and omitted chief features of the amendment, distorting the true essence of the amendment." He also challenges the efficacy of the city's system of fingerprint-based background checks, passed in 2015 for Transportation Network Companies (TNCs) like Uber and Lyft. The system will be phased in, with 50 percent compliance required by Aug. 1, and full compliance by Feb. 1, 2017. Zimmerman complains: "First, the city's regime does not require immediate (or near-immediate) implementation of a background check regime on TNC drivers in order to service passengers in the City of Austin. . . . "Second, 'compliance' is not determined driver-by-driver. While subsection A states that 'a person must pass a . . . fingerprint- based criminal background check . . . to be eligible to drive for a TNC,' this requirement is applied 'in accordance with the schedule' set forth in (B), which sets out the 'benchmarks.' These benchmarks are 'calculated as the percentage of hours or miles driven by compliant drivers of the total hours or miles driven by other drivers for the TNC during the benchmark time period.'" "Third, the 2015 Ordinance does not specify what criminal history would be relevant to driver eligibility. Instead, it merely states that 'if the criminal background check indicates that a person has been convicted of certain offenses, to be specified by separate ordinance, that person is prohibited from driving for a TNC.' . . . "Fourth, the 2015 Ordinance does not actually state that any driver would be prohibited from driving for a TNC in the event he or she fails the criminal background check; instead, it states that TNCs failing to meet the benchmarks 'shall be subject to penalties established by separate ordinance.'" Under the 2015 ordinance, there will be a 50 percent chance in August this year that a rider will have a driver "whose background was not required to be checked at all," Zimmerman said. He said Mayor Adler has acknowledged that the fingerprint requirement will not be enforceable until the council enacts the penalty provision alluded to in the ordinance. Zimmerman also claims the 2015 ordinance will cost too much city money and staff time to enforce. The city or a hired third party will collect fingerprint information and submit it to the state for criminal background checks. The Austin Transportation Department will have to set up a Safety Assurance Program to help eligible TNCs obtain the background checks for its drivers. The 2015 ordinance also imposed two fees on TNCs: an annual fee based on either a TNC's number of drivers, 1 percent of its gross local revenue, or total miles driven; and a fee for any TNC not participating in the city's Safety Assurance Program, with the money to go into a Compliant Driver Education Fund. Zimmerman says the 2016 ordinance would provide benefits not in the city ordinance. He says it would require a national criminal background check on drivers immediately, unlike the city's phased- in requirement. The 2016 ordinance also specified the offenses that would make a person ineligible to drive for a TNC, it is enforceable, and the TNC would pay the costs of background checks instead of the city. Zimmerman "vehemently objected" to the ballot language of Prop. 1, which was written by Councilwoman Ann Kitchen, whom he calls a "vocal opponent" of the proposition. He claims that Kitchen's language, which stood, "falsely conveyed that the amendments repealed safety provisions without putting anything in their place, and was designed to persuade voters to reject the amendments." Zimmerman's 21-page lawsuit challenges virtually every step of the May 7 election. "The City publicized its current regime as necessary to ensure rider safety. Yet as of the date Austinites were called upon to cast their votes, existing law was materially incomplete, rife with gaps waiting to be filled by further Council action, and the background-check requirement is wholly unenforceable as recognized by Mayor Adler himself," Zimmerman says. He claims that common law prohibits the city "from cherry-picking three repealed provisions to paint a one-sided picture distorting the real choice put to the voters." "The citizen-initiated ordinance repeals the 2015 Ordinance entirely. In stark contrast, the citizen-initiated ordinance establishes a framework whereby the financial burdens are borne by the TNCs, not the taxpayers. . . . Just as the proposition must mention a fiscal burden sought to be imposed by a measure, it follows that where a citizen-initiated measure would abolish government programs and lessen the burden on taxpayer resources, this too constitutes a chief feature of the amendment that must appear in the proposition. . . . "Not only did the city's Proposition 1 omit chief characteristics, but materially and affirmatively misled the voters, and the outcome of the election is not the true outcome." He claims the election should be declared void because, among other things, the ballot added the words "the Ordinance" after "For" and "Against," which he says caused confusion by referring to two ordinances. The city said in a statement: "The City Council respected the citizen-initiated petition process and voted to call a May election. The Council made every effort to ensure that the ballot language fairly represents the petition's intent. The City prevailed in the pre-election lawsuit filed on this same topic, and is prepared to defend the actions it took as part of this election process." Former Austin drivers sued Uber and Lyft in federal class actions in Austin, Texas this month, claiming the companies' abrupt pullout violated the Worker Adjustment or Retraining Notification Act, which requires employers with more than 100 employees to give 60 days notice before mass layoffs. Zimmerman wants the election declared void, and a new election. He is represented by Jerad Najvar of Houston. UBER TECHNOLOGIES: "Jbara" Suit to Recover Basic Benefits --------------------------------------------------------- Abdel Karim Jbara, individually, and on behalf of all others similarly-situated, Plaintiffs, v. Uber Technologies, Inc. and Raiser, LLC, Defendants, Case No. 1:16-cv-11073 (D. Mass., June 9, 2016) seeks to recover benefits, liquidated damages and attorneys' fees and costs owed for breach of contract and under the Fair Labor Standards Act and Massachusetts General Law. Plaintiff alleges that Uber drivers, like him, are employees, and as employees, are entitled to basic wage protections such as expense reimbursement, overtime pay, rest and meal-breaks. Uber misclassifies its drivers as contractors, not employees. Uber Technologies, Inc. is a Delaware corporation headquartered at 1455 Market Street, San Francisco, California, 94103. Uber owns and operates the Uber transportation service. The Plaintiff is represented by: David H. Rich, Esq. Christopher Weld, Jr., Esq. TODD & WELD LLP 1 Federal Street, 27th Floor Boston, MA 02109 Tel: (617) 720-2626 Email: cweld@toddweld.com drich@toddweld.com - and - Hunter Shkolnik, Esq. Paul B. Maslo, Esq. NAPOLI SHKOLNIK PLLC 1301 Avenue of the Americas, 10th Floor New York, NY 10019 Tel: (212) 397-1000 Email: PNapoli@NapoliLaw.com PMaslo@NapoliLaw.com - and - Brittany Weiner, Esq. IMBESI LAW P.C. 450 Seventh Avenue, Suite 1408 New York, NY 10123 Tel: (212) 736-0007 Email: brittany@lawicm.com UBER TECHNOLOGIES: Drivers in Los Angeles, Milwaukee File Suit -------------------------------------------------------------- Courthouse News Service reported that Uber drivers in Los Angeles and Milwaukee are the latest to file class actions accusing the company of misclassifying them as independent contractors -- two in Los Angeles Superior Court and one in Milwaukee Federal Court. UBER TECHNOLOGIES: 9th Cir. Heard Arguments on Arbitration Rift --------------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Service, reported that Judge Richard Clifton invoked Victorian England contracts while the Ninth Circuit focused on the clash between ride-share giant Uber and its drivers over arbitration provisions. "I sort of feel like I'm in a Dickens novel here," Clifton said, as the parties argued over the enforceability of 2013 and 2014 contracts requiring drivers to arbitrate their claims with Uber, rather than take them to court. The arbitration dispute arose from two class actions: one brought by Douglas O'Connor over for withheld tips and misclassification of drivers as independent contractors, the other by former Uber drivers Abdul Kadir Mohamed and Ronald Gillette, claiming Uber kicked them off the app after running background checks without their knowledge. Settlements of the suits await approval from U.S. District Judge Edward Chen, who ruled in both cases that Uber could not force its drivers to arbitrate under "unconscionable" agreements. Labor attorney Shannon Liss-Riordan said Uber's appeal was one of the main reasons why she negotiated an $84 million settlement for the O'Connor class. But Uber still wants the Ninth Circuit to decide whether Chen was correct. The panel heard arguments only on the Mohamed case June 16, having taken the O'Connor arguments under submission. As the three-judge panel pored over the contracts, one provision in particular stood out. Chen had ruled the contracts unenforceable in part as a matter of public policy because they contained nonseverable provisions barring employees from acting as state representatives in labor lawsuits under California's Private Attorney General Act. The Private Attorney General's Act (PAGA) allows private citizens, such as Uber drivers, to pursue civil penalties against an employer that violates labor laws. Proceeds from the penalties are split, with 75 percent going to the state and 25 percent to plaintiffs. Chen had cited precedent from Sakkab v. Luxottica Retail NA, in which the Ninth Circuit held that the plaintiff did not have to waive his rights under PAGA because PAGA waivers are unenforceable under the California Supreme Court's rule from Iskanian v. CLS Transportation Los Angeles LLC. "Uber cannot run away from the arbitration agreements it drafted itself," Mohamed class attorney Laura Ho told the Ninth Circuit panel June 16. "It has a very clear PAGA waiver which we know is illegal. What it says in both 2013 and 2014 agreements is if the PAGA waiver is found to be unlawful, it is not severable." Uber's attorney, Theodore Boutrous with Gibson, Dunn & Crutcher, argued differently. "The provision that bars representative claims altogether is severable," Boutrous said. Clifton seemed to agree with Boutrous' reading. "I've got to say, I have a really hard time following it -- particularly the 2013 agreement," he said. "But at the end of the day, I wind up reading them to say those claims can't go to arbitration they have to go to court even if everything else goes to arbitration." "You've put your finger on it," Boutrous said. "This provision was not a blanket waiver that violates Sakkab and Iskanian," he added. "It only says PAGA representative claims should not be arbitrated." Clifton grilled Ho over a sentence in the 2013 agreement that says: "in such instances where the claim is brought as the private attorney general, such private attorney general claim must be litigated in a civil court of competent jurisdiction." "I freely concede that this is like an exercise in linguistics . . . but that last sentence seems to say in so many words, that claim goes to court," Clifton said. Ho, an attorney with Goldstein, Borgen, Dardarian & Ho, wanted to focus on the preceding sentence. "The sentence that controls is that PAGA shall not be severable from this arbitration provision," she argued. "Why do you say that controls?" Clifton asked. "We just erase the last sentence? Because that sentence seems to explain what that's supposed to mean." Judge Richard Tallman interjected. "Particularly when it begins with, 'not notwithstanding any other clause contained in this agreement,'" he said. "Isn't that a never mind what the rest of the contract says?" Judge Sandra Ikuta also seemed to conclude that the PAGA waiver, having been found unenforceable, doesn't nullify the entire arbitration provision. "The question is here whether the whole arbitration provision falls," Ikuta said. "The second sentence says only as to the Private Attorney General claim is it litigated in a court of competent jurisdiction. So why wouldn't we say, although the first sentence says its not severable from the arbitration provision, all that means is it must be litigated in a court of competent jurisdiction?" Ho emphasized that "it's not severable from the arbitration agreement." "Meaning the arbitration agreement will fail as the Private Attorney General waiver fails," she said. Clifton was not moved. "If the last sentence didn't exist, I might be able to ride that train," he said. "But the last sentence is there and you keep trying to erase it. Because it seems to say what this means is, that claim goes to civil court. It doesn't say everything goes to civil court." With Clifton doubting that Uber would want to "obliterate" its own arbitration clause, Ho took another stab. "Well it is a document drafted by Uber," she said. "Which is unclear." Ikuta meanwhile took issue with Ho's argument that the agreements were unconscionable because drivers had to read and sign them on their phones. "My law clerks don't read anything on paper," she said. "Everything has to be on the screen. So I'm having trouble with an argument that says things you only read on your iPad or cellphone are illusory and not binding. That sounds like the old judge view as opposed to what everyone of your generation is doing." Ho said the issue was troubling not because of the format, but because there was no way a driver could save the document to read later, and that drivers were forced to sign if they wanted to start accepting rides. "Welcome to the modern world," Clifton said. "You rent a car in the old days, you'd sign something, and there was fine print on the back. I once asked someone at the counter if anyone ever read the back, and he'd never seen anybody read the back. Now it's apps. Every time I get an update for the iPad, I have to agree to Apple's terms. Nobody reads them. I hear what you're saying, but the reality is people agree, we sign things, we agree to things, the law tries to protect to some level, but hasn't led the courts to say be gone with all those electronic agreements." Tallman said the panel will try to issue a ruling "as soon as we can" but did not indicate which way it might go. The judges could decide to reverse Chen's ruling on the 2014 agreement but affirm on the 2013 agreement. ULTRA SOFT: "Santos" Suit Seeks Proper Wages Under FLSA ------------------------------------------------------- Jose Puente Santos, individually and on behalf of other employees similarly situated, the Plaintiff v. Ultra Soft Hand Car Wash, Inc. and Michael Arnzen, individually, the Defendants, Case No. 1:16-cv-06240 (N.D. Ill., June 15, 2016), seeks redress for Defendants' violations of the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Law (IMWL) in relation to Defendants' failure to pay Plaintiff and other similarly situated employees proper wages. According to the complaint, the Plaintiff worked for Defendants from 2002 to May 24, 2016. The Plaintiff's job functions included washing and detailing cars. The Plaintiff did not receive a bona fide lunch break and was paid on a weekly basis in cash. Throughout the course of Plaintiff's employment with Defendants, and in the three years prior to Plaintiff filing this Complaint, Defendants scheduled Plaintiff to work in excess of 40 hours per week in one or more individual work weeks. Although Defendants scheduled Plaintiff to work in excess of 40 hours per week, Defendants did not pay Plaintiff overtime wages at a rate of at least one and one-half the Illinois minimum wage for all hours worked in excess of 40 hours. The Plaintiff is represented by: Susan J. Best, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 445 9662 E-mail: sbest@yourclg.com UNIVERSAL PROTECTION: "Calderon" Suit Seeks OT Pay Under FLSA ------------------------------------------------------------- TULA CALDERON, and all others similarly situated, Plaintiff, vs. UNIVERSAL PROTECTION SERVICE, LLC, a Florida Limited Liability Company, Defendant, Case 1:16-cv-22286-MGC (S.D. Fla., June 20, 2016), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for alleged willful violations of overtime and minimum wage pay under the Fair Labor Standards Act and the laws of the United States. The Corporate Defendant is a security guard company that regularly transacted business within Miami-Dade County, Florida. The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Phone: (305) 308 - 5619 E-mail: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 1150 Kane Concourse, Fourth Floor Bay Harbor Islands, FL 33154 Phone 305-773-6661 E-mail: mamane@gmail.com VAN SANT: Faces "Barker" Lawsuit Seeking Overtime Pay Under FLSA ---------------------------------------------------------------- David Barker, Individually and on behalf of other employees similarly situated, v. Plaintiff, Van Sant Landscape Management and Jon Van Sant, Defendant, Case 4:16-cv-01773 (S.D. Tex., June 20, 2016), seeks to recover unpaid minimum wage and overtime wages under the Fair Labor Standards Act. VAN SANT LANDSCAPE MANAGEMENT conducts business in the State of Texas. The Plaintiff is represented by: Trang Q. Tran, Esq. Alecia D. Best, Esq. TRAN LAW FIRM, L.L.P. 9801 Westheimer Road, Suite 302 Houston, TX 77042 Phone: (713) 223-8855 Fax: (713) 623-6399 E-mail: ttran@tranlawllp.com ab@tranlawllp.com - and - Nichole Nech, Esq. 9801 Westheimer Road, Suite 302 Houston, TX 77042 Phone: (713) 223-8855 Fax: (713) 623-6399 E-mail: nn@tranlawllp.com VEREIT INC: Faces Gov't Probe, Class Suit Says ---------------------------------------------- Courthouse News Service reporte that American Realty faces a government investigation after its senior officers manipulated corporate financial statements, a class says, joining a chorus of similar actions. The case is, Fran Kosky Roth IRA v. Grant Thornton LLP; Vereit fka American Realty Capital Properties, pending in New York County Supreme Court. VISA & MASTERCARD: Home Depot Sues Over Fraud Liability Shift ------------------------------------------------------------- Nick Rummell, writing for Courthouse News Service, reported that, fed up with bearing the costs of credit card fraud and fixed interchange fees, Home Depot fired off an enormous federal complaint that accuses Visa and MasterCard of reaping "outsized profits" on a broken system. "For years, Visa and MasterCard have been more concerned with protecting their own inflated profits and their dominant market positions than with the security of the payment cards used by American consumers and the health of the United States economy," the June 13 lawsuit begins. The complaint, which is the Top Download in June 15, for Courthouse News, says Visa and MasterCard deserve blame for why "United States consumers experience the highest rates of payment card fraud in the world, and United States businesses are subject to the highest payment card related fees in the world." "For decades, the technology has existed to make credit and debit card transactions safer and less prone to fraud," the complaint states. Home Depot says Visa and MasterCard spent years repelling this technology -- a combination of personal identification numbers and EMV chips -- even as credit card fraud and debit card fraud "drain billions of dollars" from the U.S. economy every year. In addition to blowing off security measures that have been standard in Europe since the 1990s, the credit card companies "actually do not require that signatures are verified and even discourage merchants from verifying signatures for fear that consumers will be less likely to use their payment cards," the complaint states. Home Depot notes that Visa and MasterCard finally embraced the technological upgrade four or five years ago as part of an effort to shift fraud liability to the party least compliant with EMV technology -- whether the merchant, issuing bank or credit card company. October 2015 was the deadline for the liability shift, but adoption of the technology has been slower than expected. Only 50 percent of U.S. retailers were expected to be able to handle EMV chip technology as of June, according to data from consulting firm The Strawhecker Group. Alleging 20 counts of state and federal antitrust violations in a 138-page complaint, Home Depot is not the first merchant to take on the credit card companies in court. Wal-Mart filed a similar lawsuit in May, saying Visa has been blocking customers from using PINs. Another federal class action, filed in March in San Francisco, accuses Visa, MasterCard, American Express and others of having saddled merchants that implement the new EMV chip technology with impossible-to-meet liability-shifting conditions. Before that, Champs Sports Bar & Grill and others brought a federal complaint in Georgia that accused credit card vendors of inflating fees without notice. Seth Eisen, senior business leader at MasterCard, said MasterCard lets merchants decide whether to rely on PIN or signature for verification. "Regardless of how the cardholder's identity is confirmed, the chip makes data much more secure, rendering it almost useless to create fraudulent cards or transactions," Eisen said in a statement. Visa had little to say about the case. "We are aware of the lawsuit and have filed a notice to transfer the action to the pending multidistrict litigation," Visa spokesperson Connie Kim said in a statement. Price-Fixing Allegations The lawsuit doesn't stop at making anti-fraud allegations. It also lays price-fixing allegations at the feet of Visa and MasterCard, which Home Depot claims have colluded to impose a system of high interchange fees on merchants for every transaction beyond a certain limit. The allegations are similar to those made in a 2005 class action lawsuit merchants brought against Visa and MasterCard, which alleged that interchange fees were set at artificially high levels. Several merchants settled that lawsuit in 2012, though Home Depot was not among them. "Visa and MasterCard enforce their price-fixing agreements by mandating that all banks adhere to their network rules," the lawsuit states. Home Depot says banks that don't charge high interchange fees are subject to fines and expulsion from the credit card networks. Those networks allegedly limit each credit card from participating in a single network in order to further pressure banks. "These banks profit from Visa and MasterCard's market power by charging supracompetitive interchange fees on signature transactions," the complaint states. Home Depot says the interchange fees are some of its highest costs -- in 2015 the company estimated bank-card acceptance fees reached nearly $750 million -- and yet the fees are totally out of the company's control and totally up to Visa and MasterCard. Further, the fees are the same for Visa or MasterCard because, the company claims, they have colluded with issuing banks to set the price. "There is no competition," the lawsuit alleges. "These banks typically compete for cardholders, but they do not compete for merchant acceptance or over the interchange fees that merchants must pay to accept their Visa and MasterCard cards." Contending that interchange fees are unlawful under price-fixing laws, Home Depot says they discriminate against online merchants that rely almost completely on credit and debit cards for transactions. Merchants also typically have to honor all branded credit cards -- accept one Visa credit card, and you must accept them all, according to the complaint. The high interchange fees may have been the unintended result of the sweeping Dodd-Frank financial reform bill in 2010. The final bill included an amendment by Sen. Richard Durbin that attempted to curb credit card processing fees. At the time, many retailers and banks opposed the rule, claiming it would impose greater costs on consumers. The rule passed and was upheld in federal court. In response, however, Visa imposed a new fee of five basis points that would punish banks for changing their network affiliation. MasterCard also responded with a new "volume assessment fee" that would penalize card issuers when large amounts of transactions were processed over PIN debit networks, the lawsuit claims. "These fees are nothing other than blatant efforts to prevent competition," Home Depot alleges, "and Visa and MasterCard announced them in lockstep to make sure issuing banks know they face retribution for supporting PIN debit options." Eisen said Home Depot's allegation of price-fixing is "not a surprise," noting that the merchant was one of the many that opted out of the 2012 settlement. "We expected this procedural step." VOLKSWAGEN AG: Reaches $14.7-Bil. Deal to Settle Emissions Case --------------------------------------------------------------- Volkswagen AG, Audi AG, Volkswagen Group of America, Inc., and Volkswagen Group of America Chattanooga Operations, LLC have reached a settlement with the United States of America, on behalf of the United States Environmental Protection Agency; and the State of California to resolve litigation over the emissions tests scandal. Under the deal, Volkswagen would be required to pay about $14.7 billion: $10,033,000,000 to compensate owners of Volkswagen vehicles; $2,000,000,000 in the form of investments over a 10-year period to support increased use of technology for Zero Emission Vehicles ("ZEV") in California and the United States; and $2,700,000,000 to fund Eligible Mitigation Actions that will reduce emissions of NOx where Volkswagen's vehicles were, are, or will be operated. A copy of the Partial Consent Decree is available at: http://d.classactionreporternewsletter.com/u?f=yocKilAU The United States of America, on behalf of the United States Environmental Protection Agency, filed a complaint on January 4, 2016, against Volkswagen AG, Volkswagen Group of America, Inc., Volkswagen Group of America Chattanooga Operations, LLC, Audi AG, Dr. Ing. h.c. F. Porsche AG, and Porsche Cars North America, Inc. alleging that Defendants violated Sections 203(a)(1), (2), (3)(A), and (3)(B) of the Clean Air Act, 42 U.S.C. Sections 7522(a)(1), (2), (3)(A), and (3)(B), with regard to approximately 500,000 model year 2009 to 2015 motor vehicles containing 2.0 liter diesel engines and approximately 80,000 model year 2009 to 2016 motor vehicles containing 3.0 liter diesel engines, for a total of approximately 580,000 motor vehicles. The U.S. Complaint alleges that each Subject Vehicle contains, as part of the engine control module ("ECM"), certain computer algorithms that cause the emissions control system of those vehicles to perform differently during normal vehicle operation and use than during emissions testing. The U.S. Complaint alleges that these computer algorithms are prohibited defeat devices under the Act, and that during normal vehicle operation and use, the Subject Vehicles emit levels of oxides of nitrogen ("NOx") significantly in excess of the EPA compliant levels. The U.S. Complaint alleges and asserts four claims for relief related to the presence of the defeat devices in the Subject Vehicles. The People of the State of California, by and through the California Air Resources Board and Kamala D. Harris, Attorney General of the State of California, filed a complaint on June 28, 2016, against the Defendants alleging that Defendants violated Cal. Health & Safety Code Sections 43106, 43107, 43151, 43152, 43153, 43205, 43211, and 43212; Cal. Code Regs. tit. 13, Sections 1903, 1961, 1961.2, 1965, 1968.2, and 2037, and 40 C.F.R. Sections incorporated by reference in those California regulations; Cal. Bus. & Prof. Code Sections 17200 et seq., 17500 et seq., and 17580.5; Cal. Civ. Code Sec. 3494; and 12 U.S.C. Sec. 5531 et seq., with regard to approximately 71,000 model year 2009 to 2015 motor vehicles containing 2.0 liter diesel engines and approximately 16,000 model year 2009 to 2016 motor vehicles containing 3.0 liter diesel engines, for a total of approximately 87,000 motor vehicles. The California Complaint alleges, in relevant part, that the motor vehicles contain prohibited defeat devices and have resulted in, and continue to result in, increased NOx emissions from each such vehicle significantly in excess of CARB requirements, that these vehicles have resulted in the creation of a public nuisance, and that Defendants engaged in related conduct that violated unfair competition, false advertising, and consumer protection laws. On June 28, 2016, the United States and California entered into a Partial Consent Decree with Volkswagen AG, Audi AG, Volkswagen Group of America, Inc., and Volkswagen Group of America Chattanooga Operations, LLC -- Settling Defendants -- to address the 2.0 Liter Subject Vehicles on the road and the associated environmental consequences resulting from the past and future excess emissions from the 2.0 Liter Subject Vehicles. The Settling Defendants admit that software in the 2.0 Liter Subject Vehicles enables the vehicles' ECMs to detect when the vehicles are being driven on the road, rather than undergoing Federal Test Procedures, and that this software renders certain emission control systems in the vehicles inoperative when the ECM detects the vehicles are not undergoing Federal Test Procedures, resulting in emissions that exceed EPA-compliant and CARBcompliant levels when the vehicles are driven on the road. The Settling Defendants admit that this software was not disclosed in the Certificate of Conformity and Executive Order applications for the 2.0 Liter Subject Vehicles, and, as a result, the design specifications of the 2.0 Liter Subject Vehicles, as manufactured, differ materially from the design specifications described in the Certificate of Conformity and Executive Order applications. Nothing in the Partial Consent Decree shall constitute an admission of any fact or law by any Party except for the purpose of enforcing the terms or conditions set forth. Pursuant to the Partial Consent Decree, the Parties agree that the 2.0 Liter Subject Vehicles on the road emit NOx at levels above the standards to which they were certified to EPA and CARB pursuant to the Clean Air Act and the California Health and Safety Code, and a prompt remedy to address the noncompliance is needed. At the present time, there are no practical engineering solutions that would, without negative impact to vehicle functions and unacceptable delay, bring the 2.0 Liter Subject Vehicles into compliance with the exhaust emission standards and the on-board diagnostics requirements to which VW certified the vehicles to EPA and CARB. As one element of the remedy to address the Clean Air Act and California Health and Safety Code violations, the Settling Defendants agree to remove from commerce in the United States and/or perform an Approved Emissions Modification on at least 85% of the 2.0 Liter Subject Vehicles ("Recall Rate"). To this end, the Settling Defendants must offer each and every Eligible Owner and Eligible Lessee of an Eligible Vehicle the option of the Buyback of the Eligible Vehicle or the Lease Termination. In addition, the Settling Defendants shall offer Eligible Owners and Eligible Lessees the option of an emissions modification in accordance with certain technical specifications, if the Settling Defendants propose such a modification and EPA/CARB approve it. The Settling Defendants estimate that the total cost of injunctive relief and the related Class Action Settlement and FTC Order may be up to $10,033,000,000. In the event Settling Defendants do not achieve an 85% Recall Rate, the Settling Defendants must pay additional funds into the Mitigation Trust. Practical engineering solutions provided by Appendix B of the Partial Consent Decree -- Vehicle Recall and Emissions Modification Program -- should the Settling Defendants propose the emissions modifications consistent with the provisions of Appendix B, would substantially reduce NOx emissions from the 2.0 Liter Subject Vehicles and improve their on-board diagnostics, would avoid undue waste and potential environmental harm that would be associated with removing the 2.0 Liter Subject Vehicles from service, and would allow Eligible Owners and Eligible Lessees to retain their Eligible Vehicles if they want to do so. Members of the public who are Eligible Owners or Eligible Lessees of Eligible Vehicles will benefit from the relief provided by this Consent Decree. The Settling Defendants will direct $2,000,000,000 of investments over a 10-year period to support increased use of technology for Zero Emission Vehicles ("ZEV") in California and the United States and may include investments related to ZEV infrastructure, access to ZEVs, and ZEV education. The ZEV investments required by this Consent Decree are intended to address the adverse environmental impacts arising from consumers' purchases of the 2.0 Liter Subject Vehicles, which the United States and California contend were purchased with the mistaken belief that they were lower-emitting vehicles; According to Appendix D of the Partial Consent Decree -- Form of Environmental Mitigation Trust Agreement -- the Settling Defendants will pay a total of $2,700,000,000 to fund Eligible Mitigation Actions that will reduce emissions of NOx where the 2.0 Liter Subject Vehicles were, are, or will be operated. The funding for the Eligible Mitigation Actions required by this Consent Decree is intended to fully mitigate the total, lifetime excess NOx emissions from the 2.0 Liter Subject Vehicles. The Parties state that the Consent Decree has been negotiated by the Parties in good faith and will avoid litigation among the Parties regarding certain relief with respect to the 2.0 Liter Subject Vehicles for the claims alleged in the Complaints, and that the Consent Decree is fair, reasonable, and in the public interest. The case is captioned, In re: Volkswagen "Clean Diesel" Marketing, Sales Practices, And Products Liability Litigation, Case No: MDL No. 2672 CRB (JSC)(N.D. Cal.). VOLKSWAGEN AG: BRS Files Lawsuit in Calif. Under Securities Act --------------------------------------------------------------- Boston Retirement System (BRS), Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. VOLKSWAGEN AG, VOLKSWAGEN GROUP OF AMERICA, INC., VOLKSWAGEN GROUP OF AMERICA FINANCE, LLC., MARTIN WINTERKORN, and MICHAEL HORN, Defendants, Case 3:16-cv- 03435 (N.D. Cal., June 20, 2016), was brought on behalf of all persons who purchased or otherwise acquired private debt exempt from registration with the U.S. Securities and Exchange Commission under Rule 144A of Volkswagen AG between May 23, 2014 and September 22, 2015, inclusive. Volkswagen is one of the world's leading automobile manufacturers and the largest carmaker in Europe. The Plaintiff is represented by: Daniel J. Veroff James M. Wagstaffe Daniel J. Veroff KERR & WAGSTAFFE LLP 101 Mission Street 18th Floor San Francisco, CA 94105 Phone: (415) 371-8500 Fax: (415) 371-0500 E-mail: wagstaffe@kerrwagstaffe.com veroff@kerrwagstaffe.com - and - Thomas A. Dubbs, Esq. Michael H. Rogers, Esq. Jeffrey A. Dubbin, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Phone: (212) 907-0700 Fax: (212) 818-0477 VOLKSWAGEN AG: Labaton Sucharon Files Securities Class Action ------------------------------------------------------------- Labaton Sucharow LLP ("Labaton Sucharow") filed a securities class action lawsuit on June 20, 2016 on behalf of its client Boston Retirement System ("BRS") against Volkswagen AG, its wholly owned subsidiary Volkswagen Group of America, Inc., its further subsidiary Volkswagen Group of America Finance, Inc. (together, "Volkswagen"), and certain senior executives (collectively "Defendants"). The action, which is captioned BRS v. Volkswagen, No. 16-cv-3435 (N.D. Cal.), asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), and U.S. Securities and Exchange Commission ("SEC") Rule 10b-5 promulgated thereunder, on behalf of all persons or entities who purchased or otherwise acquired U.S.-issued debt securities of Volkswagen between May 23, 2014 and September 22, 2015, inclusive (the "Class Period"). The securities at issue (the "Offerings") are listed in the chart is available at https://is.gd/Vqi31P The Complaint alleges that during the Class Period, Defendants made false and misleading statements and concealed a scheme to defraud investors in the Offerings regarding the Company's operations, its business and finances, and its outlook. Specifically, Defendants caused its Offerings to trade at artificially inflated prices by failing to disclose that Volkswagen utilized a "defeat device" in certain of its diesel cars that allowed such cars to temporarily reduce emissions during testing, while achieving higher performance and fuel economy, as well as discharging dramatically higher emissions, when testing was not being conducted. The Complaint alleges that Defendants made misrepresentations and omissions in its public statements as well as in its offering memoranda in connection with the issuance of over $8 billion of Offerings on May 23, 2014, November 20, 2014, and May 22, 2015. Through this series of revelations and Volkswagen's admissions, the Offerings have declined from an average of 99.854% par value on September 18, 2015 to an average of 95.624% par value on September 22, 2015, representing a decline of over $300 million. If you purchased or acquired Volkswagen Offerings during the Class Period, you are a member of the Class and may be able to seek appointment as Lead Plaintiff. Lead Plaintiff motion papers must be filed with the U.S. District Court for the Northern District of California no later than August 22, 2016. A lead plaintiff is a court-appointed representative for the Class. You do not need to seek appointment as lead plaintiff to share in any Class recovery in this action. If you are a Class member and there is a recovery for the Class, you can share in that recovery as an absent Class member. You may retain counsel of your choice to represent you in this action. If you have any questions about participation in this lawsuit, or concerns about potential recovery for individual bond issuances you may have purchased, you may contact Michael H. Rogers, Esq. of Labaton Sucharow, at (212) 907-0814, or via email at mrogers@labaton.com You can view a copy of the complaint online at https://is.gd/PoirRR BRS is represented by Labaton Sucharow, which represents many of the largest pension funds in the United States and internationally, with collective assets under management of more than $2 trillion. Labaton Sucharow's litigation reputation is built on its half century of securities litigation experience, 60 full-time attorneys, and in-house team of investigators, financial analysts, and forensic accountants. Labaton Sucharow's offices are located in New York, NY and Wilmington, DE. WAFFLE HOUSE: Hearing Today on Arbitration Bid ---------------------------------------------- Eva Fedderly, writing for Courthouse News Service, reported that a class action in Orlando, Fla. claiming Waffle House didn't hire prospective employees based on false information garnered from background checks, will proceed, despite Waffle House trying to shut the case down. Lead plaintiff William Jones attempted to get a job at a Waffle House in Ormond Beach, Fla. in December 2014, and claims the defendant restaurant chain, an icon in the Southeastern U.S., violated the Fair Credit Reporting Act because it procured a background report from defendant The Source for Public Data, L.P, without taking adequate steps to make sure the information reported was accurate. Jones claims that Waffle House refused to hire him based on the information about supposed criminal convictions, despite it being false. He sued the restaurant chain on Oct. 1, 2015. Under the FCRA, "when preparing a consumer report, a consumer reporting agency is required to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates," the federal judge order states, citing the background of the class action. The reporting agency must also notify the consumer before they provide information that could have an adverse effect on the consumer's employment opportunities, which Jones said Public Data did not do. Waffle House and Public Data moved to dismiss the lawsuit for lack of standing, stating that there is no proof that Waffle House ran a search on the plaintiff using Public Data, and therefore Jones cannot prove "injury-in-fact, causation, or redressability." Additionally, defendants claim that Jones was since hired at a Waffle House in Kansas City, Mo., where he signed an arbitration agreement with Waffle House. Waffle House moved to compel arbitration. On June 16, U.S. District Judge Roy Dalton, Jr. tossed Waffle House's motion on the purported lack of subject matter jurisdiction, holding that "as a general rule, 'federal claims should not be dismissed on a motion for lack of subject matter.'" The judge went on to rule that "arbitration under the FAA is ultimately 'a matter of consent, not coercion.'" There will be a hearing on July 1 to decide if the case will go to arbitration. Joshua Eggnatz of Eggnatz, Lopatin, & Pascucci represents the plaintiff and did not immediately response to a telephone call from Courthouse News seeking comment. Waffle House's communications department did not respond to either an email or a phone call from Courthouse News seeking comment. The case captioned, WILLIAM JONES, Plaintiff, v. WAFFLE HOUSE, INC.; WH CAPITAL,LLC; THE SOURCE FOR PUBLIC DATA, L.P.; HADOWSOFT, INC; HARLINGTON-STRAKER-STUDIO, INC.; and DALE BRUCE STRINGFELLOW, Defendants, Case No. 6:15-cv-1637-Orl-37DAB (M.D. Fla.). WEATHERFORD US: "Jones" Sues Over Underfunded Pension Plan ------------------------------------------------------------ Casey Jones, Brandon Vigil and Bojess Villegas, on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. Weatherford Laboratories, Inc. and Weatherford US, LP., Defendants, Case No. 1:16-cv-01385 (D. Colo., June 9, 2016), seeks unpaid wages, minimum wage, and overtime, liquidated damages and penalties, attorney fees and costs, prejudgment and post-judgment interest and such other relief under the Colorado Wage Claim Act, Colorado Minimum Wages of Workers Act and the Colorado Minimum Wage Order. Plaintiffs were employed by the Defendants as Wellsite Specialists, preparing and processing core samples onsite at oilfields around the country and the world and transporting them to laboratories in Colorado and Texas for testing. Defendants misclassified Plaintiffs and failed to pay them overtime wages. Weatherford Laboratories, Inc. and Weatherford US, LP are oilfield-serving laboratories with principal office at 2000 St. James Place, Houston, Texas 77056, and extensive operations in Golden, Colorado and Arvada, Colorado. The Plaintiff is represented by: Gregory A. Hall, Esq. LAW OFFICE OF GREGORY A. HALL 3570 E. 12th Avenue, Suite 200 Denver, CO 80206 Phone: 303-320-0584 Email: gregory@federallaw.com - and - Rajasimha Raghunath, Esq. UNIVERSITY OF DENVER STURM COLLEGE OF LAW 2255 E. Evans Ave., Rm. 463A Denver, CO 80208 Phone: 720-808-1231 E-mail: raghunathlawfirm@gmail.com WENDY'S CO: AOD Federal Files Lawsuit in Penn. Over Data Breach --------------------------------------------------------------- AOD FEDERAL CREDIT UNION, on behalf of itself and all others similarly situated, Plaintiff, v. THE WENDY'S COMPANY, WENDY'S RESTAURANTS, LLC, and WENDY'S INTERNATIONAL, LLC, Defendants, Case 2:16-cv-00900-MPK (W.D. Penn., June 20, 2016), was brought on behalf of financial institutions throughout the United States to recover damages that they and others similarly situated have suffered as a direct result of the Wendy's data breach. Plaintiff asserts claims for negligence, negligence per se, and declaratory and injunctive relief. Wendy's is engaged in the business of operating, developing and franchising a system of quick-service restaurants. The Plaintiff is represented by: Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Ave., 5th Floor Pittsburgh, PA 15222 Phone: (412) 322-9243 Fax: (412) 231-0246 E-mail: glynch@carlsonlynch.com jetzel@carlsonlynch.com - and - Brian C. Gudmundson, Esq. Jason R. Lee, Esq. ZIMMERMAN REED, LLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Phone: (612) 341-0400 Fax: (612) 341-0844 E-mail: brian.gudmundson@zimmreed.com jason.lee@zimmreed.com - and - Jonathan L. Kudulis, Esq. TRIMMIER, KUDULIS, REISINGER, LLC 2737 Highland Avenue South Birmingham, AL 35205 Phone: (205) 251-3151 Fax: (205) 322-6444 E-mail: jkudulis@trimmier.com - and - Chris T. Hellums, Esq. Jonathan S. Mann, Esq. PITTMAN, DUTTON & HELLUMS, P.C. 2001 Park Place North, Suite 1100 Birmingham, AL 35203 Phone: (205) 322-8880 Fax: (205) 328-2711 E-mail: chrish@pittmandutton.com jonm@pittmandutton.com WENDY'S COMPANY: Veridian Sues in W.D. Penn. Over Data Breach ------------------------------------------------------------- VERIDIAN CREDIT UNION, on behalf of itself and all others similarly situated, the Plaintiff, v. THE WENDY'S COMPANY, WENDY'S RESTAURANTS, LLC, and WENDY'S INTERNATIONAL, LLC, the Defendants, Case No. 2:16-cv-00831-NBF (W.D. Penn., June 15, 2016), seeks to recover costs that they and others similarly situated have been forced to bear as a direct result of the Wendy's data breach and to obtain other equitable relief. The Plaintiff asserts claims for negligence, negligence per se, and declaratory relief. According to the complaint, the financial costs caused by Wendy's deficient data security approach have been borne primarily by the financial institutions, like Plaintiff, that issued the payment cards compromised in the data breach. These costs include, but are not limited to, canceling and reissuing compromised cards and reimbursing their customers for fraudulent charges. Industry sources estimate that the fraudulent charges have been more concentrated than in other recent data breaches (e.g., Target and Home Depot), causing Plaintiff and other members of the Class to suffer much greater losses. Wendy's is the world's third largest quick-service hamburger company. The Plaintiff is represented by: Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Ave., 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322 9243 Facsimile: (412) 231 0246 E-mail: glynch@carlsonlynch.com jetzel@carlsonlynch.com - and - Karen Hanson Riebel, Esq. Kate M. Baxter-Kauf, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2159 Telephone: (612) 339 6900 Facsimile: (612) 339 0981 E-mail: khriebel@locklaw.com kmbaxter-kauf@locklaw.com WENDY'S: No. of Franchises Breached Higher Than Initially Thought ----------------------------------------------------------------- Jeff Goldman, writing for eSecurity Planet, reports that Veridian Credit Union recently filed a class action lawsuit against Wendy's in response to a credit card breach that hit the fast food vendor's point of sale (POS) systems starting in the fall of 2015, Law360 reports. The class action, filed on behalf of all U.S. financial institutions whose customers were affected by the breach, claims that Wendy's failed to prevent the breach by updating its POS systems. "Despite the growing threat of computer system intrusion, Wendy's systematically failed to comply with industry standards and protect payment card and customer data," the complaint alleges. Veridian claims that Wendy's security systems were outdated, credit card information wasn't deleted when it was supposed to be, antivirus software wasn't regularly updated, firewalls weren't maintained, and access to network and credit card data wasn't monitored. "It is well known that customer data is valuable and often targeted by hackers," the complaint states. "Yet, despite the increasing occurrences of data breaches of systems of other restaurants and retailers, Wendy's refused to take steps to adequately protect its computer systems from intrusion." Earlier in June, Wendy's stated that the breach in question had affected many more locations than first thought when the breach was initially disclosed on May 11, 2016. "Based on the preliminary findings of the previously-disclosed investigation, the company reported on May 11 that malware had been discovered on the point of sale (POS) system at fewer than 300 franchised North America Wendy's restaurants," the company announced. "An additional 50 franchise restaurants were also suspected of experiencing, or had been found to have, other cybersecurity issues. As a result of these issues, the company directed its investigator to continue to investigate." "In this continued investigation, the company has recently discovered a variant of the malware, similar in nature to the original, but different in its execution," Wendy's added. "The attackers used a remote access tool to target a POS system that, as of the May 11th announcement, the company believed had not been affected." As a result, Wendy's says the number of franchise locations affected by the breach is expected to be "considerably higher" than first thought. Wendy's spokesman Bob Bertini told KrebsOnSecurity that it's too early to pin down a specific number of stores affected, or to be sure that the breach is fully contained. "Wherever we are finding it we've taken action," he said. "But we can't rule out that there aren't others." BalaBit product manager Peter Gyongyosi told eSecurity Planet by email that there are several key steps merchants should take to avoid being hit by these types of attacks. "The first step is to realize that POS terminals are extremely attractive targets for attackers, and treat them accordingly," he said. "Ensure that the network connection is protected and firewalled from the rest of the infrastructure. Apply all firmware updates as soon as they become available." "And just as they would keep a close eye on any access to critical infrastructure, it's important to monitor and analyze all administrative traffic that goes to these terminals," Gyongyosi added. "There should be no updates that the merchant doesn't know about, and any amounts of large or unusual traffic should raise an alarm." A recent eSecurity Planet article offered advice on securing sensitive data in a post-perimeter world. WHIRLPOOL CORP: Faces Class Suit Over Self Cleaning Ovens --------------------------------------------------------- Courthouse News Service reported that when its AquaLift self- cleaning oven technology proved useless, Whirlpool advised consumers to clean their ovens manually, a man claims in a federal class action in Detroit. WINGED FOOT GOLF CLUB: Sued Over Alleged 50-Year Fraud ------------------------------------------------------ Adam Klasfeld, writing for Courthouse News Service, reported that The Winged Foot Golf Club, a five-time host of the U.S. Open, has misrepresented itself as a non-profit for more than half a century to encourage shareholders to sell their valuable stock for pennies on the dollar, a federal lawsuit claims. With its West Course ranked 9th in Golf Digest's listing of "America's 100 Greatest Golf Courses," the Mamaroneck, N.Y.-based golf club has attracted the sport's top contests since shortly after it opened in 1923. Six years after it launched, Winged Foot presented its first U.S. Open, and the U.S. Golf Association announced that the tournament will mark its 120th anniversary on its Westchester green in 2020. Before it attained those distinctions, Winged Foot began with 600 investors pooling $1,000 each into a $600,000 consortium, a hefty sum for the Roaring '20s. With that amount, noted golf architect A.W. Tillinghast designed two 18-hole courses on the club's 280 acres. Winged Foot's stockholders were its original members, but the club started allowing others to pay annual dues during the Great Depression to make ends meet. Kevin Clune, whose late mother Barbara Clune inherited one share from her father, claims that Winged Foot's directors, lawyers, and corporate entities have been goading stockholders like him to sell their shares at fire-sale prices for decades. The defendants include Winged Foot's director and president Desmond Barry, Jr., its longtime member and ex-governor George Gillespie, III, and the club itself. "Starting no later than the early 1960s, over the past decades and continuing up to the present day, plaintiff, and other class members, were solicited to sell their shares based upon materially false and misleading representations, for amounts ranging from approximately $1,000 to the recent $3,000 purchase by the club of plaintiff's share, when defendants knew this share could be worth between $500,000 to $1,000,000 or more," his 36-page complaint states. Dancing around their disclosure obligations, Winged Foot directors claimed the holding company was not a for-profit entity and its shares were not valuable, according to the lawsuit. In 1960, top law firm Kelley Drye Newhall & Maginnes advised Winged Foot Holding Corporation that the club made its Depression- era lease amendments without legal authority because of the "extreme informality" of the corporate proceedings, according to the lawsuit. The firm advised the club to acquire the shares legally by getting an independent appraisal of their market value, but shareholders claim that the directors knowingly ignored that counsel. In 1975, then-president Gillespie wrote in a letter: "Someone, who [can afford to hire a lawyer] may come along one day [and litigate a rejected transfer], but so far we have been lucky," according to the complaint. "If such litigation were brought, my view is that Winged Foot would not only lose the case, but would also lose many future opportunities to pick up shares," he allegedly wrote. Clunes demands class-action punitive damages for three counts of violating the Exchange Act, common law fraud, and breach of fiduciary duty. He is represented by John Halebian, a partner with the Manhattan- based firm Lovell Stewart Halebian Jacobson, who filed the complaint in White Plains on June 13. The Winged Foot Golf Club did not immediately respond to an emailed request for comment. * 9th Circuit Examines Use of Rule 68 to Moot Class Action ---------------------------------------------------------- Justin T. Winquist, Esq. -- jwinquist@bakerlaw.com -- of Baker & Hostetler LLP, in an article for Lexology, reports that as reported earlier this year in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the Supreme Court held that a putative class action does not become moot when a defendant merely offers a named plaintiff full relief on his or her individual claims under Fed. R. Civ. P. 68. Left unanswered was the question whether the outcome would be different if a defendant deposited "the full amount of the plaintiff's individual claims into an account payable to the plaintiff, and the court then entered judgment for the plaintiff in that amount." Id. The Ninth Circuit is the first circuit court to examine the use of Rule 68 to moot a putative class action post-Campbell-Ewald. In Chen v. Allstate Insurance Co., 819 F.3d 1136 (9th Cir. 2016), two plaintiffs brought a class action complaint against Allstate Insurance Company (Allstate), alleging violations of the Telephone Consumer Protection Act (TCPA). Allstate tendered an offer of judgment of $25,000 plus attorney fees and injunctive relief to the plaintiffs before the plaintiffs moved for class certification. When the plaintiffs did not accept the offer, Allstate moved to dismiss the plaintiffs' complaints for lack of subject matter jurisdiction, arguing that the claims were rendered moot by the offer. Id. While the motion to dismiss was pending, one of the plaintiffs accepted Allstate's Rule 68 offer; the other did not. Id. The district court denied Allstate's motion to dismiss, holding that even if the Rule 68 offer fully satisfied a plaintiff's individual claims, a plaintiff still had the opportunity to move for class certification when the action as a whole remained a justiciable controversy. Id. The district court relied on the Ninth Circuit's decision in Pitts v. Terrible Herbst, Inc., 653 F. 3d 1091 (9th Cir. 2011), which held that an unaccepted Rule 68 offer that was made before class certification and fully satisfied a named plaintiff's individual claims did not moot a class action claim when the defendant used tactics to "pick off" named plaintiffs to avoid a class action. The Ninth Circuit granted Allstate interlocutory appeal to review whether Pitts was still good law in light of the Supreme Court's decision in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), which held that a collective action claim under the Fair Labor Standards Act was no longer justiciable when the defendant's Rule 68 offer satisfied the only named plaintiff's individual claims. While the appeal was pending, the Supreme Court issued its decision in Campbell-Ewald. Id. at 1141. At that point, Allstate deposited funds into an escrow account pending a district court order or judgment directing the escrow agent to pay the funds to the plaintiff, providing the plaintiff injunctive relief, and dismissing the case as moot. Id. at 1144, 1146. The Ninth Circuit rejected this approach. The court reasoned that as it understood Campbell-Ewald, a claim becomes "moot when a plaintiff actually receives all the relief he or she could receive on the claim through further litigation," and the plaintiff here had not and would not actually receive the relief until the district court ordered the funds to be released and dismissed the entire action as moot. Id. at 1144-46. The court also noted that under the common law doctrine of tender, the funds might have been treated as an actual receipt of payment if Allstate had deposited the funds in the court rather than an escrow account with conditions on payment. Id. Next, the Ninth Circuit held that Pitts was still good law in light of Genesis Healthcare based on its prior decision in Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), which held that Pitts was irreconcilable with Genesis Healthcare due to the fundamental differences in class action and collective action claims. Id. at 1143. The court went on to explain that because the Gomez decision was not clearly irreconcilable with the intervening Supreme Court authority in Genesis Healthcare, the court was bound by the controlling circuit precedent in Gomez. Id. at 1143-44. Thus, the Ninth Circuit concluded that the class claims would be unaffected even if Allstate's deposit into escrow had mooted the named plaintiff's individual claims. The Ninth Circuit also held that even if Pitts were not binding, a district court should "decline to enter judgment affording complete relief on a named plaintiff's individual claim, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification." Id. at 1148. The court reasoned that such judgments would be inconsistent with Campbell-Ewald's holding that a would-be class representative with a live claim must be afforded a fair opportunity to show that class certification is warranted. Id. at 1447. Thus, while the Ninth Circuit partially closed the door that Campbell-Ewald left open by finding that a deposit into escrow was insufficient to moot a named plaintiff's claims, it left open the possibility that these claims could be mooted by the plaintiff's actual receipt or an "unconditional relinquishment" of funds satisfying the claim. Even if actual receipt can moot the named plaintiff's claims before certification, however, it may still have no effect on the plaintiff's ability to seek class certification in circuits with precedent like Pitts, which allow class claims to go forward even if the named plaintiff's claims are completely satisfied. It remains to be seen whether the Ninth Circuit's analysis will be adopted by other courts, and we will continue to follow developments in this area. * Companies Subject to TCPA Class Actions Should Weigh MDL Risks ---------------------------------------------------------------- Daniel R. Stoller, writing for Bloomberg BNA, reports that companies subject to multiple consumer Telephone Consumer Protection Act class actions should weigh the costs and benefits of a multi-district litigation (MDL) approach, privacy attorneys told Bloomberg BNA June 13. These companies, such as ride-sharing giants Uber Technologies Inc. and Lyft Inc., may want to seek the lower cost and higher efficiency multi-district litigation approach, however, they should be wary of the risks involved combining multiple actions together, the attorneys said. According to Bloomberg Law research, there are 13 active federal trial court TCPA cases against Uber and Lyft. All of these cases are being heard separately, even though some share claims for sending unsolicited marketing text messages without consumer consent. "It is increasingly common" to combine TCPA actions into MDLs, David Almeida -- dalmeida@sheppardmullin.com -- class action partner at Sheppard, Mullin, Richter & Hampton LLP in Chicago, said. "Once a big name company is sued in a TCPA action it is very common to see tag-along suits" in which many "plaintiff's lawyers try to get a piece of the pie," he said. With the rise of TCPA class actions for these companies, MDLs can be a haven for lower costs and avoidance for inconsistent rulings, he said. But the bottom line is that corporate defendants in TCPA cases need to do a case-by-case analysis of whether consolidating cases to save costs might backfire. Possible negative rulings from a single court may have an outsize impact that companies should consider. Ride-sharing services, such as Uber and Lyft, should consider that the CAN-SPAM Act for e-mails is easier to comply with than the TCPA is for texts, attorneys said. Is MDL the Best Approach? MDLs can help lower costs and save time for both plaintiffs and defendants, but is it the best approach for a TCPA class action? Troy Lieberman, litigation attorney at Nixon Peabody International LLP in Boston and co-chair of the firm's TCPA practice, thinks that MDLs "may not be the most effective mechanism" for robotext cases because they tend to reach "settlement quickly." Even though the Uber cases may have "similar questions of fact," the MDL "committee would be caught up with whether or not it would be the most effective use of time" to pursue a consolidated case, he said. Due to the unique nature of TCPA cases, MDLs may not actually reduce discovery costs, Mr. Lieberman said. TCPA cases are much different from other MDL cases because "they aren't time sensitive" and obtaining the facts of the case "aren't as expansive and time consuming" as complex litigations like toxic torts, he said. Also by consolidating cases under an MDL, a company may actually increase risks for an adverse ruling. "When you have nine separate cases you can have a wide variety of decisions," which allows companies to mitigate risks from one negative ruling, Mr. Lieberman said. If there is a negative ruling from a MDL judge, the company "will have no argument to get out of things," he said. At the end of the day, a company will have "look at the court and the jurisprudence of the judge" to decide if a MDL or tackling individual class actions is the right approach. Almeida takes a different approach and believes MDLs for TCPA actions "make a lot of sense." Because of the confusion surrounding the Federal Communication Commissions' "lack of clarity in recent TCPA regulations -- including on the issues of capacity and consent -- it is better to have one judge evaluating these issues as opposed to a dozen or so judges across the country that may reach wildly varying outcomes," he said. With a centralized process at the MDL level "discovery and class certification can be extremely beneficial, not solely because of cost, but also so as to avoid inconsistent rulings -- which are becoming very common in TCPA cases," Mr. Almeida said. Push Notifications and E-Mail Ride-sharing services that rely on mobile applications may better avoid civil liability by avoiding text messaging and sending e- mails or push notifications, the privacy attorneys told Bloomberg BNA. Almeida said that "e-mail and push notifications are great ways to avoid TCPA liability." Even with CAN-SPAM regulating e-mails, "there is -- with very minor exceptions -- no private right of action" nor is there a "class action risk," he said. Many companies, including Uber, have "turned to push notifications to avoid TCPA liability," Mr. Almeida said. And even though "the FCC hasn't spoken to this specifically, it's generally thought that push notifications will fall outside the TCPA," he said. Mr. Lieberman agreed that e-mails and push notifications are an interesting way around TCPA liability and that "CAN-SPAM is much easier to comply with." But he cautioned that companies must look to state laws and regulations to avoid litigation at the lower courts. "Recently, Connecticut passed a state TCPA law that is more robust than the federal statute," he said. The Connecticut law includes "mobile push notifications," Lieberman said. Any company that has a mobile application and uses text messages, e-mails or push notifications would be best off being aware of both "federal and state" obligations to avoid liability, he said. Asbestos Litigation ASBESTOS UPDATE: Travelers Insurance Coverage Ruling Affirmed ------------------------------------------------------------- In the appeals case captioned GOULDS PUMPS, INC., Plaintiff and Respondent, v. TRAVELERS CASUALTY AND SURETY COMPANY, Defendant and Appellant, No. B255439 (Cal. App.), Defendant Travelers Casualty and Surety Company, appeals from a judgment entered in an insurance coverage case after a court trial. The trial court found that defendant's excess policies provided occurrence based coverage for certain asbestos-related losses incurred by plaintiff, Goulds Pumps, Inc. The Court of Appeals of California, Second District, Division Five, affirmed the judgment. Dentons US, Ronald D. Kent, Esq. -- ronald.kent@dentons.com -- and Susan M. Walker, Esq. -- susan.walker@dentons.com -- McCloskey, Waring & Waisman and Sonia S. Waisman -- swaisman@mwwllp.com -- represented Defendant and Appellant. Morgan, Lewis & Bockius, Paul A. Zevnik, Esq. -- paul.zevnik@morganlewis.com -- Michel Y. Horton, Esq. -- michel.horton@morganlewis.com -- and David S. Cox, Esq. -- david.cox@morganlewis.com -- represented Plaintiff and Respondent. ASBESTOS UPDATE: Court Affirms Order Dismissing "Boudreaux" ----------------------------------------------------------- Gerald Boudreaux died of lung cancer. His survivors sued several entities and their insurers claiming that Mr. Boudreaux's exposure to asbestos at worksites caused or significantly contributed to his disease. Dr. Gerald E. Liuzza, a pathologist, was proposed by the plaintiffs as an expert witness to establish the causative link between the asbestos exposure and the disease. Trinity Industries, Inc., one of the defendants, provoked a Daubert-Foret hearing to challenge, specifically, the methodology employed by Dr. Liuzza in arriving at his opinion. Its insurers, Continental Insurance Company, Hartford Accident and Indemnity Company, and Certain Underwriters at Lloyd's London, joined in and adopted Trinity's two motions. The trial judge excluded Dr. Liuzza's proposed testimony. Then, because the exclusion of Dr. Liuzza's testimony meant that the plaintiffs were unable to establish at trial an essential element of their claim, the trial judge granted summary judgment to Trinity and its insurers and dismissed the Boudreaux family members' lawsuit against them with prejudice. The parties all agree that the correctness of the ruling on the defendants' motion for summary judgment is dependent upon the disposition by the Court of Appeals of Louisiana, Fourth Circuit, of the trial judge's action in excluding Dr. Liuzza's testimony. The Court reviewed that ruling under an abuse-of-discretion standard which, in the absence of the trial judge's misapplication of the law or a clearly erroneous view of the facts, is highly deferential to the trial judge's evidentiary ruling. The Court of Appeals held that, "The Boudreaux family members, as the proponents of Dr. Liuzza's expert testimony, bear the burden of proving that the methodology employed by the proposed expert is generally accepted in the appropriate or relevant scientific community. With the proponents' burden of proof in mind, and in the absence of any legal error or gross factual error, we conclude that the trial judge did not abuse her discretion in excluding Dr. Liuzza's proposed expert testimony on causation. And, on that account, we affirm the grant of summary judgment and the dismissal with prejudice of the plaintiffs' lawsuit against Trinity, Continental, Hartford, and Certain Underwriters at Lloyd's London." The Court of Appeals, hence, affirmed the trial court's judgment of August 17, 2015, which dismissed with prejudice all claims of Dwayne Boudreaux, Gerilyn Cook, and Bryan Boudreaux, individually and as proper parties in interest for Gerald Boudreaux, against Trinity Industries, Inc., Continental Insurance Company, Hartford Accident and Indemnity Company, and Certain Underwriters at Lloyd's London. The case is DWAYNE BOUDREAUX, GERILYN COOK, AND BRYAN BOUDREAUX, INDIVIDUALLY AND AS PROPER PARTIES IN INTEREST FOR GERALD BOUDREAUX, v. BOLLINGER SHIPYARD, AS SUCCESSOR IN INTEREST TO HALTER MARINE GROUP, TRINITY INDUSTRIES, INC., AS SUCCESSOR IN INTEREST TO GRETNA MACHINE AND IRON WORKS, EALGE, INC., McCARTY CORPORATION, TAYLOR-SEIDENBACH, INC., REILLY BENTON COMPANY. GERILYN COOK, DWAYNE BOUDREAUX, BRYAN BOUDREAUX, v. BOLLINGER SHIPYARD, ET AL., No. 2015-CA-1345, Consolidated With No. 2015-CA- 0958 (La. App.). A full-text copy of the Decision is available at https://is.gd/sjTwTx from Leagle.com. Roshawn H. Donahue, Esq., and Scott R. Bickford, Esq. -- info@mbfirm.com -- MARTZELL & BICKFORD, A.P.C., 338 Lafayette Street, New Orleans, LA 70130, COUNSEL FOR PLAINTIFFS/APPELLANTS. Barbara Arras, Esq. -- barbara.arras@phelps.com -- and Patrick A. Talley, Jr., Esq. -- patrick.talley@phelps.com -- PHELPS DUNBAR, L.L.P., 365 Canal Street, Suite 2000, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE TRINITY INDUSTRIES, INC. John K. Nieset, Esq. -- jknieset@christovich.com -- CHRISTOVICH & KEARNEY, L.L.P., Pan American Life Center, 601 Poydras Street, Suite 2300, New Orleans, LA 70130-6078, COUNSEL FOR DEFENDANT/APPELLEE HARTFORD ACCIDENT AND INDEMNITY COMPANY. Paula M. Wellons, Esq. -- pwellons@twpdlaw.com -- D. Ashbrooke Tullis, Esq. -- atullis@twpdlaw.com -- and Desiree W. Adams, Esq. -- dadams@twpdlaw.com -- TAYLOR, WELLONS, POLITZ & DUHE, APLC, 1515 Poydras Street, Suite 1900, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE CERTAIN UNDERWRITERS AT LLOYD'S LONDON. Glenn G. Goodier, Esq. -- ggoodier@joneswalker.com -- JONES WALKER, LLC, 201 St. Charles Avenue, Floor 48, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE CONTINENTAL INSURANCE COMPANY. ASBESTOS UPDATE: CSC Retains DynCorp Indemnities at March 31 ------------------------------------------------------------ Computer Sciences Corporation assumed indemnities for insured litigation associated with dormant suits by former employees of DynCorp subsidiaries alleging exposure to asbestos and other substances, according to CSRA Inc.'s Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended April 1, 2016. The Company states, "In connection with the Company's acquisition of DynCorp in 2003 and its divestiture of substantially all of that business in two separate transactions (in 2005 to The Veritas Capital Fund II L.P, and DI Acquisition Corp. and in 2013 to Pacific Architects and Engineers, Incorporated (collectively, the "DynCorp Divestitures")), CSC assumed and Computer Sciences GS Business will retain various environmental indemnities of DynCorp and its former subsidiaries arising from environmental representations and warranties under which DynCorp agreed to indemnify the purchasers of its subsidiaries DynAir Tech and DynAir Services by Sabreliner Corporation and ALPHA Airports Group PLC, respectively. As part of the DynCorp Divestitures, CSC also assumed and Computer Sciences GS Business will also retain indemnities for insured litigation associated with dormant suits by former employees of DynCorp subsidiaries alleging exposure to asbestos and other substances; other indemnities related to a 2001 case arising from counter-narcotics spraying in Colombia under a U.S. Department of State contract and the associated coverage litigation involving the aviation insurance underwriters; and an environmental remediation case involving HRI, a former wholly- owned subsidiary of DynCorp, in Lawrenceville, New Jersey. CSRA does not anticipate any material adverse effect on its financial position, results of operations and cash flows from these indemnities." ASBESTOS UPDATE: Graham Corp. Still Defends Suits at March 31 ------------------------------------------------------------- Graham Corporation continues to defend itself against lawsuits alleging personal injury from 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 March 31, 2016. The Company states, "The Company has been named as a defendant in lawsuits alleging personal injury from exposure to asbestos allegedly contained in, or accompanying, products made by the Company. The Company is a co-defendant with numerous other defendants in these lawsuits and intends to vigorously defend itself against these claims. The claims in the Company's current lawsuits are similar to those made in previous asbestos suits that named the Company as a defendant, which either were dismissed when it was shown that the Company had not supplied products to the plaintiffs' places of work or were settled for immaterial amounts. "As of March 31, 2016, the Company was subject to the claims, as well as other legal proceedings and potential claims that have arisen in the ordinary course of business. "Although the outcome of the lawsuits, legal proceedings or potential claims to which the Company is, or may become, a party to cannot be determined and an estimate of the reasonably possible loss or range of loss cannot be made, management does not believe that the outcomes, either individually or in the aggregate, will have a material effect on the Company's results of operations, financial position or cash flows." ASBESTOS UPDATE: Lift Stay Issue Remains Pending in D/C Ch. 11 -------------------------------------------------------------- Motions to lift the automatic stay imposed in the Chapter 11 case of Kaanapali Land, LLC's subsidiary D/C Distribution Corporation, remains pending, according to Kaanapali's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2014. The Company states, "Kaanapali Land, as successor by merger to other entities, and D/C Distribution Corporation, a subsidiary of Kaanapali Land, have been named as defendants in personal injury actions allegedly based on exposure to asbestos. While there are relatively few cases that name Kaanapali Land, there were a substantial number of cases that were pending against D/C on the U.S. mainland (primarily in California). Cases against Kaanapali Land are allegedly based on its prior business operations in Hawaii and cases against D/C are allegedly based on the sale of asbestos-containing products by D/C's prior distribution business operations primarily in California. Each entity defending these cases believes that it has meritorious defenses against these actions, but can give no assurances as to the ultimate outcome of these cases. The defense of these cases has had a material adverse effect on the financial condition of D/C as it has been forced to file a voluntary petition for liquidation as discussed below. Kaanapali Land does not believe that it has liability, directly or indirectly, for D/C's obligations in those cases. Kaanapali Land does not presently believe that the cases in which it is named will result in any material liability to Kaanapali Land; however, there can be no assurance in this regard. "On February 12, 2014, counsel for Fireman's Fund, the carrier that has been paying defense costs and settlements for the Kaanapali Land asbestos cases, stated that it would no longer advance fund settlements or judgments in the Kaanapali Land asbestos cases due to the pendency of the D/C and Oahu Sugar bankruptcies. In its communications with Kaanapali Land, Fireman's Fund expressed its view that the automatic stay in effect in the D/C bankruptcy case bars Fireman's Fund from making any payments to resolve the Kaanapali Land asbestos claims because D/C Distribution is also alleging a right to coverage under those policies for asbestos claims against it. However, in the interim, Fireman's Fund advised that it presently intends to continue to pay defense costs for those cases, subject to whatever reservations of rights may be in effect and subject further to the policy terms. Fireman's Fund has also indicated that to the extent that Kaanapali Land cooperates with Fireman's Fund in addressing settlement of the Kaanapali Land asbestos cases through coordination with its adjusters, it is Fireman's Fund's present intention to reimburse any such payments by Kaanapali Land, subject, among other things, to the terms of any lift-stay order, the limits and other terms and conditions of the policies, and prior approval of the settlements. Kaanapali Land continues to pursue discussions with Fireman's Fund in an attempt to resolve the issues, however, Kaanapali Land is unable to determine what portion, if any, of settlements or judgments in the Kaanapali Land asbestos cases will be covered by insurance. "On February 15, 2005, D/C was served with a lawsuit entitled American & Foreign Insurance Company v. D/C Distribution and Amfac Corporation, Case No. 04433669 filed in the Superior Court of the State of California for the County of San Francisco, Central Justice Center. No other purported party was served. In the eight- count complaint for declaratory relief, reimbursement and recoupment of unspecified amounts, costs and for such other relief as the court might grant, plaintiff alleged that it is an insurance company to whom D/C tendered for defense and indemnity various personal injury lawsuits allegedly based on exposure to asbestos containing products. Plaintiff alleged that because none of the parties have been able to produce a copy of the policy or policies in question, a judicial determination of the material terms of the missing policy or policies is needed. Plaintiff sought, among other things, a declaration: of the material terms, rights, and obligations of the parties under the terms of the policy or policies; that the policies were exhausted; that plaintiff is not obligated to reimburse D/C for its attorneys' fees in that the amounts of attorneys' fees incurred by D/C have been incurred unreasonably; that plaintiff was entitled to recoupment and reimbursement of some or all of the amounts it has paid for defense and/or indemnity; and that D/C breached its obligation of cooperation with plaintiff. D/C filed an answer and an amended cross-claim. D/C believed that it had meritorious defenses and positions, and intended to vigorously defend. In addition, D/C believed that it was entitled to amounts from plaintiffs for reimbursement and recoupment of amounts expended by D/C on the lawsuits previously tendered. In order to fund such action and its other ongoing obligations while such lawsuit continued, D/C entered into a Loan Agreement and Security Agreement with Kaanapali Land, in August 2006, whereby Kaanapali Land provided certain advances against a promissory note delivered by D/C in return for a security interest in any D/C insurance policy at issue in this lawsuit. In June 2007, the parties settled this lawsuit with payment by plaintiffs in the amount of $1.6 million. Such settlement amount was paid to Kaanapali Land in partial satisfaction of the secured indebtedness. "Because D/C was substantially without assets and was unable to obtain additional sources of capital to satisfy its liabilities, D/C filed with the United States Bankruptcy Court, Northern District of Illinois, its voluntary petition for liquidation under Chapter 7 of Title 11, United States Bankruptcy Code during July 2007, Case No. 07-12776. Such filing is not expected to have a material adverse effect on the Company as D/C was substantially without assets at the time of the filing. Kaanapali Land filed claims in the D/C bankruptcy that aggregated approximately $26.8 million, relating to both secured and unsecured intercompany debts owed by D/C to Kaanapali Land. In addition, a personal injury law firm based in San Francisco that represents clients with asbestos- related claims, filed proofs of claim on behalf of approximately two thousand claimants. While it is not likely that a significant number of these claimants have a claim against D/C that could withstand a vigorous defense, it is unknown how the trustee will deal with these claims. It is not expected, however, that the Company will receive any material additional amounts in the liquidation of D/C. "On or about April 28, 2015, eight litigants who filed asbestos claims in California state court filed a motion for relief from the automatic stay in the D/C bankruptcy. Under relevant provisions of the bankruptcy rules and on the filing of the D/C bankruptcy action, all pending litigation claims against D/C were stayed pending resolution of the bankruptcy action. In their motion, Petitioners asked the bankruptcy court to lift the stay in the bankruptcy court to name D/C and/or its alternate entities as defendants in their respective California state court asbestos actions and to satisfy their claims against insurance policies that defend and indemnify D/C and/or their alternate entities. The Petitioner's motion to lift stay thus in part has as an objective ultimate recovery, if any, from, among other things, insurance policy proceeds that were allegedly assets of both the D/C and Oahu Sugar bankruptcy estates. As noted above, Kaanapali, the EPA, and the Navy are claimants in the Oahu Sugar bankruptcy and the Fireman's Fund policies are allegedly among the assets of the Oahu Sugar bankruptcy estate as well. For this and other reasons, Kaanapali, the EPA and the Navy opposed the motion to lift stay. After briefing and argument, on May 14, 2015, the United States Bankruptcy Court, for the Northern District of Illinois, Eastern Division, in In Re D/C Distribution, LLC, Bankruptcy Case No. 07- 12776, issued an order lifting the stay. In the order, the court permitted the Petitioners to "proceed in the applicable nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law. Claimants are entitled to settle or enforce their claims only by collecting upon any available insurance Debtor's liability to them in accordance with applicable nonbankruptcy law. No recovery may be made directly against the property of Debtor, or property of the bankruptcy estate." Kaanapali, Firemen's Fund and the United States appealed the bankruptcy court order lifting the stay. In March 2016, the district court reversed the bankruptcy court order finding that the bankruptcy court did not apply relevant law to the facts in the case to arrive at a reasoned decision. On appeal the district court noted that the law requires consideration of a number of factors when lifting a stay to permit certain claims to proceed, including consideration of the adequacy of remaining insurance to meet claims still subject to the stay. Among other things, the court noted that the bankruptcy court failed to explain why it was appropriate for the petitioners to liquidate their claims before the other claimants whose claims remained subject to the stay. The district court remanded the case for further proceedings. It is uncertain whether such further proceedings on the lift stay will take place." ASBESTOS UPDATE: Rexnord Continues to Defend Suits at March 31 -------------------------------------------------------------- Rexnord Corporation continues to defend itself against asbestos lawsuits, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended March 31, 2016. The Company states, "The Company's subsidiaries are involved in various unresolved legal actions, administrative proceedings and claims in the ordinary course of business involving, among other things, product liability, commercial, employment, workers' compensation, intellectual property claims and environmental matters. The Company establishes accruals in a manner that is consistent with accounting principles generally accepted in the United States for costs associated with such matters when liability is probable and those costs are capable of being reasonably estimated. Although it is not possible to predict with certainty the outcome of these unresolved legal actions or the range of possible loss or recovery, based upon current information, management believes the eventual outcome of these unresolved legal actions, either individually or in the aggregate, will not have a material adverse effect on the financial position, results of operations or cash flows of the Company. "In connection with its sale of the Company, Invensys plc ("Invensys") has provided the Company with indemnification against certain contingent liabilities, including certain pre-closing environmental liabilities. The Company believes that, pursuant to such indemnity obligations, Invensys is obligated to defend and indemnify the Company with respect to the matters described below relating to the Ellsworth Industrial Park Site and to various asbestos claims. The indemnity obligations relating to the matters described below are subject, together with indemnity obligations relating to other matters, to an overall dollar cap equal to the purchase price, which is an amount in excess of $900 million. The paragraphs summarize the most significant actions and proceedings: * In 2002, Rexnord Industries, LLC ("Rexnord Industries") was named as a potentially responsible party ("PRP"), together with at least ten other companies, at the Ellsworth Industrial Park Site, Downers Grove, DuPage County, Illinois (the "Site"), by the United States Environmental Protection Agency ("USEPA"), and the Illinois Environmental Protection Agency ("IEPA"). Rexnord Industries' Downers Grove property is situated within the Ellsworth Industrial Complex. The USEPA and IEPA allege there have been one or more releases or threatened releases of chlorinated solvents and other hazardous substances, pollutants or contaminants, allegedly including but not limited to a release or threatened release on or from the Company's property, at the Site. The relief sought by the USEPA and IEPA includes further investigation and potential remediation of the Site and reimbursement of USEPA's past costs. Rexnord Industries' allocated share of past and future costs related to the Site, including for investigation and/or remediation, could be significant. All previously pending property damage and personal injury lawsuits against the Company related to the Site have been settled or dismissed. Pursuant to its indemnity obligation, Invensys continues to defend the Company in known matters related to the Site and has paid 100% of the costs to date. * Multiple lawsuits (with approximately 300 claimants) are pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain brakes and clutches previously manufactured by the Company's Stearns division and/or its predecessor owners. Invensys and FMC, prior owners of the Stearns business, have paid 100% of the costs to date related to the Stearns lawsuits. Similarly, the Company's Prager subsidiary is a defendant in two pending multi-defendant lawsuits relating to alleged personal injuries due to the alleged presence of asbestos in a product allegedly manufactured by Prager. Additionally, there are numerous individuals who have filed asbestos related claims against Prager; however, these claims are currently on the Texas Multi-district Litigation inactive docket. The ultimate outcome of these asbestos matters cannot presently be determined. To date, the Company's insurance providers have paid 100% of the costs related to the Prager asbestos matters. The Company believes that the combination of its insurance coverage and the Invensys indemnity obligations will cover any future costs of these matters. "In connection with the Company's acquisition of The Falk Corporation ("Falk"), Hamilton Sundstrand has provided the Company with indemnification against certain products-related asbestos exposure liabilities. The Company believes that, pursuant to such indemnity obligations, Hamilton Sundstrand is obligated to defend and indemnify the Company with respect to the asbestos claims described below, and that, with respect to these claims, such indemnity obligations are not subject to any time or dollar limitations. "The following summarizes the most significant actions and proceedings for which Hamilton Sundstrand has accepted responsibility: * Falk, through its successor entity, is a defendant in multiple lawsuits pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain clutches and drives previously manufactured by Falk. There are approximately 100 claimants in these suits. The ultimate outcome of these lawsuits cannot presently be determined. Hamilton Sundstrand is defending the Company in these lawsuits pursuant to its indemnity obligations and has paid 100% of the costs to date. Certain Water Management subsidiaries are also subject to asbestos litigation. As of March 31, 2016, Zurn and numerous other unrelated companies were defendants in approximately 6,000 asbestos related lawsuits representing approximately 19,000 claims. Plaintiffs' claims allege personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn. Zurn did not manufacture asbestos or asbestos components. Instead, Zurn purchased them from suppliers. These claims are being handled pursuant to a defense strategy funded by insurers. "As of March 31, 2016, the Company estimates the potential liability for the asbestos-related claims described above as well as the claims expected to be filed to be approximately $32.0 million of which Zurn expects its insurance carriers to pay approximately $23.0 million in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The $32.0 million was developed based on actuarial studies and represents the projected indemnity payout for current and future claims. The balance decreased by $3.0 million in fiscal 2016. There are inherent uncertainties involved in estimating the number of future asbestos claims, future settlement costs, and the effectiveness of defense strategies and settlement initiatives. As a result, actual liability could differ from the estimate described herein and could be substantial. "Management estimates that its available insurance to cover this potential asbestos liability as of March 31, 2016, is approximately $244.9 million, and believes that all current claims are covered by insurance. However, principally as a result of the past insolvency of certain of the Company's insurance carriers, certain coverage gaps will exist if and after the Company's other carriers have paid the first $168.9 million of aggregate liabilities. "As of March 31, 2016, the Company had a recorded receivable from its insurance carriers of $32.0 million, which corresponds to the amount of this potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance that $244.9 million of insurance coverage will ultimately be available or that this asbestos liability will not ultimately exceed $244.9 million. Factors that could cause a decrease in the amount of available coverage include: changes in law governing the policies, potential disputes with the carriers regarding the scope of coverage, and insolvencies of one or more of the Company's carriers." ASBESTOS UPDATE: Tidewater Continues to Defend Suits at March 31 ---------------------------------------------------------------- Tidewater Inc. continues to defend itself against various legal proceedings that relate to asbestos and other environmental matters, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended March 31, 2016. The Company states, " The company is also involved in various legal proceedings that relate to asbestos and other environmental matters. The amount of ultimate liability, if any, with respect to these proceedings is not expected to have a material adverse effect on the company's financial position, results of operations, or cash flows. The company is proactive in establishing policies and operating procedures for safeguarding the environment against any hazardous materials aboard its vessels and at shore-based locations. "Whenever possible, hazardous materials are maintained or transferred in confined areas in an attempt to ensure containment, if accidents were to occur. In addition, the company has established operating policies that are intended to increase awareness of actions that may harm the environment." ASBESTOS UPDATE: Parents Sue Contractors Over Asbestos Claim ------------------------------------------------------------ The West Virginia Record reported that the parents of two minor children are suing Harris Brothers Roofing Co., and Structure Environmental LLC, contractors, citing alleged breach of contract, breach of duty, and unjust enrichment. Charles Carl and Jessica Carl, as the next friend of Joseph Carl and Chase Carl, filed a complaint on June 12 in Kanawha Circuit Court against the defendants alleging that they failed to comply with the state and federal regulations regarding asbestos remediation and removal. According to the complaint, the plaintiffs allege that Charles Carl, Jessica Carl Joseph Carl and Chase Carl were exposed to asbestos in their home and have suffered severe emotional distress, annoyance and inconvenience from their fear of developing cancer and other asbestos-related diseases,. The plaintiffs holds Harris Brothers Roofing Co. and Structure Environmental LLC responsible because the defendants allegedly failed to completely remove asbestos-containing material from their residence and attempted to unilaterally impose additional fees and charges to perform the original scope of work. The plaintiffs request a trial by jury and seek judgment against the defendants for compensatory damages, for an amount sufficient to fund a medical monitoring program, for restitution of any and all moneys paid for the remediation and removal of asbestos, pre- and post-judgment interest, attorneys' fees and costs and for such other and further relief as the court deems just and proper. They are represented by Kathy A. Brown of Kathy Brown Law PLLC in Charleston and Timothy D. Houston of Houston Law Office in Charleston. Kanawha Circuit Court Case number 16-C-719 ASBESTOS UPDATE: WV Firm Blames Almost 300 Companies in Suit ------------------------------------------------------------ Jessica Karmasek, writing for Forbes.com, reported that the average number of companies targeted by some of the biggest asbestos firms in their lawsuits is in the triple-figures, according to recent statistics, leading some, especially those in claims management, to question the strategy of plaintiffs' lawyers. According to data compiled by KCIC and Bates White and presented at a recent asbestos litigation conference, the average number of defendants in lawsuits filed by a single West Virginia firm topped 280. KCIC is a consulting firm providing corporate risk management services to policyholders and their legal counsel. Bates White is an economic consulting firm offering analysis and expert testimony services to law firms, Fortune 500 companies and government agencies. Both are based in Washington, D.C. According to the consulting firms' data, The Segal Law Firm, located in Charleston, WV, averaged the most defendants in its asbestos filings. Scott Segal is the husband of state Supreme Court Justice Robin Davis. The law firm averaged 283 defendants, with a maximum of 361 and a minimum of 220. The plaintiffs firm with the next highest named defendants is Deaton Law Firm in North Charleston, SC. Deaton averaged about 100 less named defendants than Segal, with 185. Its maximum was 339 and minimum was 115. Segal, whose practice, according to his firm's website, focuses on representing "catastrophically injured people or the estates of those killed due to the negligence of others," did not return multiple calls seeking comment. Another West Virginia firm, James F. Humphreys & Associates, names an average of 149 defendants, with a max of 180. Simmons Hanly Conroy, one of the major players in the nation's busiest asbestos jurisdiction (Madison County, IL), names an average of 58 per lawsuit with a maximum of 204. Other firms featured in the data include: -California's Brayton Purcell, which names 81 defendants per lawsuit with a max of 207; -Gori, Julian & Associates, an Edwardsville, IL, firm that names 118 defendants on average with a max of 252; -Houston's Bailey Perrin Bailey, which names 57 defendants on average with a max of 170; -Goldberg, Persky & White, a Johnstown, PA, firm that names 137 defendants on average and once sued 337 in a single lawsuit; -Wilentz, Goldman & Spitzer -- a Mid-Atlantic firm that practices in New Jersey, New York and Pennsylvania -- names 101 defendants with a max of 192; -Waters, Kraus & Paul, a Dallas firm that names 59 on average with a max of 187; -DuBose Law Firm of Dallas names 152 with a max of 248; -The Law Offices of Peter G. Angelos, which files the majority of asbestos cases in Maryland, names 66 defendants on average with a max of 179; -SWMK Law of St. Louis names 112 defendants on average with a max of 263; and -Chicago's Cooney & Conway names 68 defendants on average with a max of 172. About the data Elizabeth Hanke, vice president of KCIC, said the figures were gathered through KCIC's claims administration services. "We have a proprietary online claims management system (Ligado) we use to serve our clients claim management needs," she recently told Legal Newsline. "The first step in the process is KCIC accepts service of those complaints on behalf of our clients. Each day we enter the complaints served into a database. Fields we enter include filing date, all defendants named (as they are named on the complaint), disease, claim alleged, plaintiff firms, jurisdiction and whatever claimant personal information is included in the complaint -- typically name, address, birthday, etc. "This information remains in the complaint database, then the data is pushed out to a client specific database, which notifies each client's counsel of the new complaint. From that point on, the client and their counsel continue to use the client-specific database to manage the claim." Hanke said the data in KCIC's complaint database is all publicly available data. "Because of the number of clients we have, our complaint database has a very large percent of all asbestos complaints filed in the U.S.," she noted. "While we know we do not have all complaints, based on a few comparisons to known datasets, we estimate we have between 90 and 95 percent of all asbestos filings in the U.S." Hanke said KCIC's dataset grows each day as it continues to process complaints and as it gets new clients. "It's a live dataset, so to speak," she said, adding that it compiled the statistics at its clients' request. "As asbestos defendants, they were interested in looking at the filings data sliced a variety of ways," she explained. "As a practical matter, they typically focus on just the complaints where they are named, but reviewing a bigger data set of where the filings are, who is making them, how many defendants are named, etc., gives them additional insight into the problem they are facing." Plaintiffs' strategy Nina Caroselli, executive vice president and chief operating officer of New Hampshire-based RiverStone Resource, said the system of naming so many defendants is downright puzzling. "That's really a question for the plaintiffs firms," she recently told Legal Newsline, of the approach. "But I don't understand the strategy myself." Especially given that some defendants have a dismissal rate as high as 90 percent, she noted. Caroselli's RiverStone group manages claims and liabilities for insurance companies. She presented the KCIC and Bates White figures at a Perrin conference on asbestos litigation in May. "From my perspective, asbestos litigation is extremely inefficient," said Caroselli, an attorney with more than 30 years of experience in the insurance industry and private litigation practice. Not to mention costly. "There are costs associated with litigation for both sides," she said. "From a defense perspective, there's a cost to retain counsel, respond to discovery, sometimes participate in depositions, file motions to dismiss, etc. All of it has a cost." Then factor in nearly 300 defendants named in a single lawsuit. "You're not just talking about the attorneys' time, but the filing fees in various courts, the money paid to experts, court reporters," Caroselli explained. "All of these costs are incurred in order to get a defendant dismissed from these cases." And in the end, naming so many defendants may not be worth it for plaintiffs, she said. "I think it can extend the time it takes the matter to get resolved," Caroselli said. It also, depending on the jurisdiction, can expose plaintiffs to a lengthier deposition. "When you have that many (defendants) named in litigation and all of them want to be at the plaintiff's deposition to hear what the plaintiff remembers regarding the product, etc., it can take a lot of time," she explained. Caroselli said her group has a number of policyholders that are defendants in asbestos litigation. But many experience dismissal rates of 50 to 90 percent, often being dismissed from cases in which they never should have been named in the first place. "It really shows how inefficient asbestos litigation is," she said. "I'm very interested, and so is my company, in engaging in a conversation with all those involved to see if there's a different way to manage these claims." Caroselli said she has reached out to all sides and is "hopeful" they will find some common ground. ASBESTOS UPDATE: EPA Removing Asbestos From Former School --------------------------------------------------------- Cameron Probert, writing for iFiberOne News, reported that the Environmental Protection Agency began to remove asbestos from the former Delancey-Houghton school in Soap Lake. EPA investigators found pipe insulation and a pile of other insulation containing asbestos. The pipe insulation was found in the school's former boiler room and the pile of insulation was found outside of the building. Asbestos was a former building material used to help prevent fires until it was discovered that when the material is breathed in it increases the risk to develop lung disease. Dale Becker, the on-scene coordinator, said the material was contained and the crews are working on removing it. The agency set up air quality monitoring stations between the school and the street. The stations monitor airborne debris and signals workers to put water on the site if there is too much dust. A second device measures the amount of asbestos in the air. The asbestos hasn't affected the nearby homes or city hall, Becker said. Living and working near the school poses a low risk, according to the agency. Disturbing or having direct contact with the materials containing asbestos increases the risk of lung disease. ASBESTOS UPDATE: Court Upholds $8MM Verdict for Carpenter's Widow ----------------------------------------------------------------- Christian Brazil Bautista, writing for Real Estate Weekly, reported that the widow of a carpenter who worked on the Olympic Tower in Midtown will get $8 million in damages due to asbestos- related ailments that her husband sustained. The New York State Court of Appeals upheld the $8 million verdict for Ruby Konstantin. Konstantin's late husband, David, worked on two Manhattan construction projects from 1973 to 1977 that had the now-defunct Tishman Realty as general contractor. According to court documents, Konstantin was exposed to asbestos because he often worked near drywall crews that sanded joint compound containing the mineral. Konstantin was diagnosed with testicular mesothelioma, a rare form of cancer which is only caused by asbestos exposure. The disease was discovered in 2010 and it eventually spread to his lungs. In 2012, he sued Tishman Liquidating Corporation for negligence and workplace liability, claiming that the company's predecessor did not protect workers from asbestos dust. A jury found that Tishman was 76 percent liable for Konstantin's death and awarded $19 million in damages. The court later reduced that amount to $8 million. Tishman questioned how reasonable the $8 million verdict was. It also challenged the Supreme Court's move the to combine the lawsuit with six other mesothelomia cases, saying that "consolidation prejudiced TLC's (Tishman Liquidating Corporation) substantial right to fair trial" The justices struck down Tishman's arguments, saying: "Finally, we reject TLC's contention that the Appellate Division applied the wrong legal standard in assessing whether Supreme Court's damages award deviated materially from reasonable compensation," a court memorandum read. Konstantin died in 2012. According to court documents, Tishman knew that asbestos was dangerous as early as 1969. ASBESTOS UPDATE: Victim's Family Fight Over GBP80K Payout --------------------------------------------------------- Plymouth Herald reported that loved ones of an asbestos victim who died after working at Devonport dockyard are fighting a test case battle to hold onto an GBP80,000 damages pay out. Government lawyers do not dispute that Cyril Hollow was exposed to the killer substance whilst employed at the Plymouth dockyard from 1966 to 1986. But they say his heavy tobacco habit -- he smoked from the age of 14 until his death, aged 74, in October 2010 -- was the main cause of his death. Mr Hollow worked as a general decorator at Devonport and his step- daughter, Shirley Blackmore, sued for damages on behalf of his estate. But the Department for Communities & Local Government insisted that his decades of smoking made him in part responsible for the lung cancer that killed him. Ms Blackmore, from Plymouth, won her case in 2014 when Judge Barry Cotter QC awarded just over GBP80,000 in compensation for her step-father's death. He cut the payout by 30% to take account of Mr Hollow's smoking habit -- but government lawyers are now arguing that that was nowhere near a big enough reduction. Mr Hollow, the court heard, smoked 20 cigarettes-a-day and tried and failed to give up twice. By 2005, however, he had managed to cut down to 12-a-day. Judge Cotter said that he was a smoker before he worked at the dockyard and "long before it was known to be a hazard to health." He agreed that the danger of smoking to Mr Hollow's health was "probably between double and treble the risk from asbestos". But he ruled that 30% was a big enough cut to the payout, which would otherwise have been around GBP120,000. Government barrister, Russell Fortt, said the appeal against Judge Cotter's ruling raised an 'important point of law' with implications for many other cases. Experts on both sides agreed that Mr Hollow's death was caused by the combined effects of smoking and exposure to asbestos. But they disagreed over the relative contribution of the two factors. A government expert found that smoking was 88 per cent, and asbestos just 12 per cent, to blame for Mr Hollow's death. Lord Justice Tomlinson granted the Department of Communites & Local Government permission to appeal against the damages award. The full hearing of the appeal will take place in the next few months. ASBESTOS UPDATE: Valve Maker Has Duty to Warn, NY Court Rules ------------------------------------------------------------- The Associated Press reported that New York's highest court has upheld court judgments against a steam valve manufacturer, citing its failure to warn of the dangers of using its valves with gaskets and packing that contain asbestos. The Court of Appeals has rejected Crane Co.'s argument that it isn't responsible for warning about the dangers of other companies' asbestos products. Widows of a former Navy boiler technician and an ex-pipefitter at a General Motors plant who died from asbestos-related cancer after years of exposure changing gaskets and packing won jury awards of $8 million and $3 million. The court says the duty to warn applies to the "known and foreseeable joint use of its product and another product that is necessary to allow the manufacturer's product to work as intended." ASBESTOS UPDATE: Secondhand Exposure Risks Puerto Rico Families --------------------------------------------------------------- Due to the unique properties found in asbestos, it was used for decades in thousands of commercial products and building materials. While asbestos-containing materials may have many beneficial attributes, they can also release fibers into the air when they are disturbed and as they age and become friable. Asbestos fibers cannot be seen with the naked eye so they can be inhaled and get trapped deep in people's lungs. If swallowed, these fibers can become embedded into the digestive tract. The Agency for Toxic Substances & Disease Registry (ATSDR) states that significant exposure to any type of asbestos will increase the risk of lung cancer, mesothelioma and asbestosis. The ATSDR also reports that asbestos-related disease has been diagnosed in not just workers that dealt with asbestos and asbestos-containing materials, but also with family members. The National Cancer Institute states that this risk is thought to result from exposure to asbestos fibers brought into the home on the shoes, clothing, skin and hair of workers. This exposure to family members is often referred to as secondhand, secondary or take-home asbestos exposure. "Workers in a number of industries in Puerto Rico and across the Caribbean deal with asbestos-containing materials on a regular basis," said Harry Pena, President of Zimmetry Environmental. "There are regulations in place to protect workers, but there can be circumstances if these regulations are not followed or when workers do not realize they are being exposed to asbestos fibers that could create health concerns for them and their families." To protect workers and help companies comply with asbestos regulations, Zimmetry Environmental has teams of professionals that provide testing and consulting services in Puerto Rico and throughout the Caribbean. They also recently sponsored an educational video about asbestos and secondhand exposure that can be seen at: https://youtu.be/l6pVwqoAMUk ASBESTOS UPDATE: Advocates Push for Asbestos Ban in U.S. -------------------------------------------------------- Andy Szal, writing for Chem.info, reported that for years, critics of decades-old U.S. chemical regulations argued that they were too weak to properly ban asbestos despite its widely known dangers. Now, advocacy groups want to make sure the carcinogen is among the first substances addressed under a chemical reform law signed by President Obama. "The success of the Frank R. Lautenberg Chemical Safety Act hinges on the EPA's ability to prioritize asbestos in the first 10 hazardous chemicals and to expeditiously ban asbestos," Linda Reinstein, president of the Asbestos Disease Awareness Organization, told Bloomberg. The bill, in part, establishes new procedures and deadlines for the Environmental Protection Agency to begin evaluating the thousands of chemicals currently used in commerce. The EPA will begin by addressing a handful of chemicals considered to be at the highest risk of causing health problems, a list that could include formaldehyde, styrene, phthalates, BPA and asbestos. The EPA implemented its first ban on asbestos-containing material in 1973 and banned most products outright in 1989. Two years later, however, a federal appeals court tossed out the ban and ruled that it violated the 1976 Toxic Substances Control Act. Critics, including President Obama, commonly cited that decision when pushing for the TCSA reform bill that ultimately drew support from both industry and public health groups. Some expect the first rules under the new bill to be implemented by 2022, but others question whether the EPA will be given the resources to properly enforce the law. One estimate predicted that regulating the first 90 "high-priority" chemicals alone would take 90 years. ASBESTOS UPDATE: Middlebourne Woman Names 103 Companies in Suit --------------------------------------------------------------- Kyla Asbury, writing for West Virginia Record, reported that a Middlebourne woman filed a lawsuit against 103 companies after she claims they are responsible for her husband's death. Robert Wayne Wells worked with, and was exposed to, asbestos- containing products while employed at Weirton Steel in Weirton and Miles/Mobay in New Martinsville, according to a complaint filed in Marshall Circuit Court. Lois June Wells claims the defendants' manufacture, sale, distribution, use and/or installation of asbestos-containing products exposed the decedent to asbestos, resulting in his development of an asbestos-related malignancy. Robert Wells was diagnosed with asbestos-related lung cancer on May 6, 2015, and died two months later. The defendants were negligent in that they knew or should have known that the use of their products would cause serious lung diseases and cancer, and failed to take reasonable precautions to warn the decedent of what would be safe and sufficient wearing apparel and safety equipment for persons who were exposed to their products, according to the suit. Lois Wells claims the defendants failed to properly and adequately label the products; sold them when they were not in a reasonably safe condition; failed to supply accurate and complete warnings of the known dangers involved in the use of and exposure to the products; and negligently installed the products without taking precautions to warn and protect the decedent. The defendants also breached their warranty and had a duty to warn the decedent and failed to do so, according to the suit. Lois Wells is seeking compensatory and punitive damages. She is being represented by Leslie Ann James of Hartley & O'Brien PLLC. Marshall Circuit Court case number: 16-C-95 ASBESTOS UPDATE: Asbestos Removal Delayed at Pillsbury Mills ------------------------------------------------------------ Tamara Damante, writing for Wand17.com, reported that asbestos removal at the former Pillsbury Mills plant is delayed. The Illinois EPA says the asbestos may not be removed until sometime next year, because a lawsuit against the plant's owners and operators has been delayed until August. The EPA started a preliminary investigation to remove the asbestos, but the plan to remove it is not prepared. ASBESTOS UPDATE: Asbestos-Related Cancer Costs Canadians Billions ----------------------------------------------------------------- Tavia Grant, writing for The Globe and Mail, reported that a first-ever estimate of the toll of asbestos-related cancers on society pegs the cost of new cases at $1.7-billion per year in Canada, and notes that is likely an under-estimate. The economic burden of lung cancer and mesothelioma from work- related asbestos exposure in Canada amounts to an average of $818,000 per case, according to a team led by health economist and senior scientist Dr. Emile Tompa at the Institute for Work & Health, a research organization, whose calculation includes costs related to health care and lost productivity and quality of life. This is the first time a tally of these costs has been made public. Asbestos remains the top cause of occupational deaths in Canada: Workers' compensation boards have accepted more than 5,700 claims since 1996. About 150,000 Canadian workers are exposed to asbestos in their workplaces, the research project Carex Canada estimates, among them construction workers and contractors, mechanics, shipbuilders and engineers. This country continues to allow exports and imports of asbestos, which rose to a six-year high last year. Dozens of other countries, including Australia and Britain, have banned it. Prime Minister Justin Trudeau said in May the federal government is "moving forward on a ban." It is the first time since taking office that he has publicly talked about a potential ban, although he gave no timeline and it was not an official announcement. "We are moving to ban asbestos," he told a conference of building trades unions on May 10. "Its impact on workers far outweighs any benefits that it might provide." The economic burden numbers are based on newly diagnosed cases in 2011 that were attributable to occupational exposure. The calculation is based on the number of new cases of mesothelioma, a cancer associated almost exclusively with asbestos exposure, for that year, along with estimates on the numbers of new lung cancer cases caused by workplace asbestos. These totalled 2,099 in 2011. The study noted that new cases are likely to grow in the near future due to long latency periods of these diseases and continued exposure. The key question the analysis sought to answer is what the savings to society would be if no cases of cancer attributable to occupational asbestos exposures occurred in a particular year. The study looked at direct and indirect costs. Direct health-care costs are a just a fraction of the estimate. Health-care costs for mesothelioma are pegged at $46,000 per case, and for lung cancer at $28,000. "Often times, the health-care costs are very low because the fatality rates are extremely high following diagnosis. Most of these people don't survive a year," Dr. Tompa said. Health-related quality of life, which includes morbidity (loss of function due to poor health), lost years of life and human suffering, is the biggest component, comprising 80 per cent of the costs. This is calculated by using a measure called quality adjusted life years. It compares morbidities and life expectancies of people with asbestos-related cancer to Canadian age- and gender-specific averages. The $1.7-billion total is a conservative estimate. "It's quite an underestimate and might not give people the full sense, even though the number's quite big," he said, because it focuses only on newly diagnosed cases, not previously existing cases, in one single year. Nor does it include other types of diseases linked to asbestos exposure, such as cancer of the larynx or asbestosis. The numbers also do not encompass para-occupational exposure, such as when a family member breathes in dust from a worker's clothing or gear. The costs are also to society at large, Dr. Tompa noted. "We all play different roles in society. Even if you're retired, you might have community roles, domestic roles, you might take care of your grandchildren." The study, conducted with the Occupational Cancer Research Centre, was funded by the Canadian Cancer Society. The sponsor was not involved in designing the study, collecting and analyzing the data or writing the report. The funding application, which detailed the planned analysis, was peer reviewed, although the economic burden tally has not yet been reviewed. It is due to be submitted to the American Journal of Public Health for peer review. Dr. Tompa is working on another estimate that will also include the cost of para-occupational exposures in Canada. "I think we're cutting new ground in terms of putting that economic measure to it, and just some methods development too, because there's not a lot of precedents about how to frame these issues in the economic lens." For now, given that asbestos has not been banned, and that, "in the construction sector, they're still using products that are made with asbestos, we're adding to the problem in the future." In an e-mail, the Prime Minister's Office said the federal government is "reviewing its strategy on asbestos, including a potential ban." The cancer society, many health groups, and unions including the Canadian Labour Congress, are urging the federal government to announce a comprehensive ban on asbestos, something the Liberal Party had pledged to do last year if elected. Urgent action is needed, said Fred Clare, Eastern Canadian vice- president at the International Association of Heat and Frost Insulators and Allied Workers. He was a journeyman insulator for three decades, and has watched more than a dozen co-workers and family members die of asbestos-related diseases. "People are getting mesothelioma -- and they're gone before you even know about it." Pressure is growing on the local level too. Mike Bradley, mayor of Sarnia, Ont., a city hard hit with the legacy of asbestos exposure, wrote to the Prime Minister in March, calling on the federal government to end asbestos use in Canada. The PM's recent comments were "most welcome, and we now can start to see the victory finish line to ban asbestos in Canada," the mayor said, adding that "sadly there are many Canadians who will not see the victory line having died too soon." Health Canada referred questions on asbestos policy to Innovation, Science and Economic Development Canada. ISED said in an e-mail that it is "not in a position to provide further commentary on this issue at the moment, adding that it hopes to have more to say "in a matter of time," but did not elaborate. CLC president Hassan Yussuff said a comprehensive strategy is needed, and he hopes to see a plan proposed in the coming months. This should include a full ban on asbestos imports and exports, and an online inventory of federal buildings and workplaces that contain asbestos. He would also like to see a registry of workers who have asbestos-related diseases, licences required for abatement and remediation companies, and stronger rules and enforcement on disposal of the materials. "Nobody goes to work to die," he said in an interview. "The unfortunate part about this substance is that's what ends up happening to people without them having some ability to protect themselves." David Boyd, adjunct professor at Simon Fraser University, said it is "fantastic" news that Mr. Trudeau said Canada is moving to ban asbestos. "This will be a life-saving, health improving move, not just for Canadians, but for people in other nations. I hope that a comprehensive ban on imports, exports, and all products containing asbestos is put in place as rapidly as possible." ASBESTOS UPDATE: School With Asbestos to Get $14MM to Redevelop --------------------------------------------------------------- RNZ.com reported that the New Zealand government is putting $14 million into the redevelopment of an Auckland primary school that has had years of chronic problems with mould and asbestos. Buildings at Clayton Park School in Manurewa were in such a bad state they were making staff and pupils sick. A year ago, the school's principal Paul Wright said thousands of dollars were being spent on testing air to make the case for new classrooms to be funded by the Education Ministry. He said the school had endured at least 10 years of unhealthy conditions. At that time, the ministry provided six temporary classrooms as an interim solution. But Associate Education Minister Nikki Kaye said $14.5 million had been approved for what she described as one of the most complex school redevelopments. Construction is due to start later this year. ASBESTOS UPDATE: Tasmanians Push for Free Asbestos Removal ---------------------------------------------------------- Chris Pippos, writing for The Mercury, reported that people are putting themselves and others at risk by dumping deadly asbestos in remote locations around Tasmania to avoid expensive disposal costs, a lobby group says. Asbestos Free Tasmania Foundation is compiling evidence of what it says is a growing problem, releasing photographs of the large- scale dumping of asbestos sheeting about 5km from Great Lake. Foundation committee member Laurie Appleby said more asbestos was being dumped in the bush and roadsides because correct disposal was too costly. He said builders and home renovators were putting their own and the lives of others at risk and called for disposal of the hazardous material to be free. Mr Appleby said illegal dumping had become such a major public health issue disposal should be free, especially because wrapped asbestos, as it was required for dumping, was too often mixed in with general waste at the tip -- a health issue in itself. "It's getting worse -- people just dump it [roadside] because of the cost," he said. "It's such a major health issue, why not have it free? "They should have a site somewhere to deliver it free of charge to make it safe for everybody. "All the tips should make it free." Mr Appleby has been diagnosed with asbestosis after working at the then Goliath Cement factory -- now Cement Australia -- at Railton and is a founding member of Disease Tasmania. He said the illegal dumping was particularly bad in the Central Highlands where home and shack renovators dumped the deadly material in the bush to avoid detection. Home renovators are regarded as the projected "third wave" of asbestos disease sufferers. It is anticipated they will follow the first two waves of people afflicted by the disease, which were mainly miners, asbestos product manufacturers and trades people. Foundation president Simon Cocker said asbestos disease such as mesothelioma and asbestosis generally took decades after the contact with deadly fibres before symptoms became evident. Mr Cocker said some home renovators still did not respect the danger posed by asbestos and illegal dumping, and risked suffering the consequences in the future. Regulations allow individuals to remove up to 10sq m of bonded asbestos but they must first contact the council to check about any permits or planning approvals required. Asbestos must be double-wrapped and sprayed with water to prevent airborne fibres. The cheapest asbestos removal company rates advertised online are "from" $45 an hour. Mr Appleby said some companies charged about $500 a miniskip load. It costs a $30 fee plus $13.50 to dispose of up to 100kg of domestic asbestos at the South Hobart tip. At the Glenorchy landfill, which accepts commercial quantities of asbestos, it costs $50 to dump a boot load of asbestos, $100 for up to two cubic metres and $140 a tonne. It is projected another 15 Tasmanians exposed to asbestos in the workplace, who have fatal or non-fatal asbestos diseases, will get about $7,756,000 in compensation from the asbestos compensation fund in the 2015-16 financial year. So far the fund has paid out more than $21.5 million for 58 accepted claims. ASBESTOS UPDATE: Appeal Planned Over Husband's Death ---------------------------------------------------- Shannon Gillies, writing for Otago Daily Times, reported that an Oamaru woman who lost her husband to an asbestos-linked cancer is taking legal action against ACC. Lois Gilchrist is fighting to have husband Rodney Gilchrist's oesophageal cancer linked to the asbestos he was exposed to during 21 years working at the old Oamaru Hospital as an orderly and general handyman, and later as a caretaker of the building from 2000 to 2007, during which time the couple and their son lived on site. An independent medical report Mrs Gilchrist commissioned on her husband's case said he was aware some asbestos removal was done early in his time at the hospital. The Department of Labour (now Worksafe) issued a prohibition notice to then owner Goodland Group in late 2005 after it found employees were probably being exposed to asbestos fibres in the air during demolition work on the site. Mr Gilchrist was diagnosed with oesophageal cancer in June 2014 and died, aged 56, in February last year. At Mrs Gilchrist's request, ACC has twice -- the last time in April -- reviewed its original decision to decline a claim to cover Mr Gilchrist's oesophageal cancer. In both reviews it upheld its decision to decline the claim. Mrs Gilchrist said while upset with the process, she believed the ACC was close to accepting her argument. She said she had engaged lawyers and was preparing to appeal ACC's decision. ACC could not connect the asbestos exposure to the cancer that killed Mr Gilchrist, she said. "They were pretty close, but there wasn't enough medical evidence at this stage, but there will never be if people like me don't pursue it." It bothered her that organisations accepted smoking caused cancer, yet she had to battle to get her husband's exposure to asbestos connected with cancer. "No-one bothers to look at what you've been working with for 20 years." In a statement, an ACC spokeswoman said the corporation fully considered the circumstances of the Gilchrist claim and determined cover could not be provided under the legislative criteria for work-related gradual process, disease or infection. "Our decision was based on clinical advice." The matter was pending an appeal hearing and it was inappropriate to discuss any other details of the case until the judicial process finished, she said. The Goodland Group, owner of the old Oamaru Hospital site, employed Mr Gilchrist as caretaker and maintenance man. David Liu, Former Goodland Group employee and site manager at that time, said Mr Gilchrist was employed by the company from April 2004 to December 2007. "His main task was the outdoor upkeep of the property, but he came to us with the knowledge of the buildings and property, as he had worked there previously in its time as a hospital for 21 years, and apparently assisted at the end in the removing and clearing of all property from the hospital." He understood Mr Gilchrist did not work on clearing asbestos from the building during the period he was employed by the Goodland Group. "He knew about it -- and did not want to touch it." Any clearance of asbestos at that time was completed under the strictest of conditions, Mr Liu said. Staff were trained to work with hazardous materials and workers provided with appropriate clothing and tools, although Goodland Group contracted out the majority of the asbestos clearing work to a secondary company. The Southern District Health Board was unable to answer any questions before the publication of this article. Mrs Gilchrist said she was not ready to let go of what happened to her husband. She felt she needed to raise awareness about the potential risk of working in buildings containing asbestos, especially given the present demolition work under way at the old Oamaru Hospital site. She wanted everyone who worked on potential asbestos sites, or anyone who might be exposed to asbestos, to register themselves on the Asbestos Exposure Database. "If you've been exposed, get it out."Get it out on the register. "If you don't, 20 years down the track you're on your own." The cancer that killed her husband was a slow but progressive development that would have taken years to show itself, she said. Before Mr Gilchrist was diagnosed they both knew something was wrong; "even his smell had changed". The way her husband died was cruel, Mrs Gilchrist said. ASBESTOS UPDATE: Workers to Remove Asbestos from Courthouse ----------------------------------------------------------- The Associated Press reported that workers will turn off the water and remove asbestos from the Warren County Courthouse, as the Warren County District Court moves out of the courthouse declared uninhabitable by the court's chief judge. District Court Chief Judge Arthur Gamble issued an order for the court to close at 4:30 p.m. Monday, the Des Moines Register reported. The court will reopen at the Madison and Marion county courthouses and the Warren County Juvenile Services offices, according to the order. Earlier in June, Gamble notified the county board that the courthouse was not fit for employees and told them that operations would be moved out of the county this summer. Gamble has said serious mechanical, electrical and plumbing issues at the courthouse pose health and safety concerns for court workers. "The court services will continue outside of Warren County until an alternative location is identified or the courthouse is habitable for occupancy and suitable for use by the district court," Steve Davis, Iowa Judicial Branch spokesman, wrote in an email. County Supervisor Crystal McIntyre said she didn't fault the court for moving out after learning of the asbestos removal and plumbing work. "Who's to say when they shut off the water and then re-pressurize it that it won't cause something else in those 78-year-old pipes?" she said Friday. "I think it's best to have everyone out." A $35 million bond referendum, which would have allowed the supervisors to borrow money to build a new justice center, failed in early May. There is $500,000 in the county's current budget to make repairs, but estimates provided by a consulting firm show the building needs about $2.3 million worth of repairs. ASBESTOS UPDATE: Appeals Court Tosses $245K Verdict for Plasterer ----------------------------------------------------------------- Dan Churney, writing for Cook County Record, reported that a state appellate panel in Springfield has scrapped a jury verdict that awarded $245,000 to a man whose lungs were scarred by asbestos, saying, despite the scarring, they did not believe the man suffered any impairment. The June 20 ruling was authored by Justice Thomas Appleton, of the Fourth District Illinois Appellate Court, with concurrence from Justice Lisa White and partial concurrence from Justice Thomas Harris Jr. The ruling overturned a jury verdict in downstate McLean County Circuit Court in Bloomington awarding $245,000 to Joseph Sondag and his wife, Phyllis. The Sondags filed suit in 2008 against the Milwaukee-headquartered Sprinkman Sons Corporation and the Ohio-based company Tremco Inc. Joseph Sondag said he worked as a plasterer from 1957 to 1983, frequently using a drywall tape made by Tremco that allegedly contained asbestos. Sondag visited his physician in 2007, complaining of dizziness, sweating and a disturbance of the inner ear. A computerized tomography scan and an X-ray were taken of his chest, revealing pleural plaques and interstitial fibrosis -- essentially, scarring of the air sacs in his lungs. The physician said he believed the scarring was caused by exposure to asbestos. Sondag filed suit the next year. The case went to trial in February 2014 before Circuit Judge Rebecca Foley. Sondag's physician testified Sondag never complained of, nor exhibited, any symptoms of lung disease; he suffered no distress and was able to breathe well for a man of his age, who had been a smoker. The physician pointed out Sondag could run up two flights of stairs without shortness of breath and the lung scarring had not worsened since it was detected. On the other hand, Sondag's wife and daughter both testified Sondag often had trouble catching his wind. Before the jury started deliberating, Tremco asked Foley to order a directed verdict against Sondag, contending Sondag did not present any evidence he suffered physical harm from the scarring. The judge refused and the jury came back with verdicts for Sondag, awarding him and his wife $245,000. Defendants appealed, again arguing there was no evidence Sondag suffered any adverse effect from the lung damage. Appellate Justice Appleton agreed. "They (the scars) have caused no physically impairing loss or detriment to Joseph Sondag. Although no one wants pleural plaques and interstitial fibrosis, we do not see how these conditions have affected him in any practical, functional way. It appears that, but for the X-ray and CT scan, he would have remained blissfully unaware of any condition in his lungs," Appleton observed. Appleton added that Sondag's suit involved a claim of product liability, and for such a claim "physical harm is an essential element." However, that element was lacking in Sondag's suit. Justice Harris agreed with Appleton and White that there is no indication Sondag has or will suffer, because of the scarring. However, Harris broke with his fellow justices by saying the Sondag couple should be permitted to keep $67,000 of the jury's award for medical costs incurred in monitoring Joseph's lung condition. The Sondags are represented by the Bloomington firm of Wylder Corwin Kelly LLP, which advertises itself as a firm with experience pursuing asbestos cases. Defendants are defended by the Peoria firm of Heyl, Royster, Voelker & Allen. ASBESTOS UPDATE: Asbestos to be Removed from Council Bldg. ---------------------------------------------------------- Jessica Phillips, writing for Ledbury Reporter, reported that work is being carried out to remove asbestos from a building which is to become a new office for Herefordshire Council's adult's and wellbeing services. The asbestos remediation works at Elgar House, on Holmer Road, were approved at a cost of GBP59,000. A refurbishment plan -- agreed when the building was acquired on a 10-year lease in February -- is due to begin in August with the accommodation being ready by December 2016. Ahead of that, a refurbishment asbestos survey is to be carried out to locate asbestos containing material in the area where the work will take place. That survey involves destructive inspection to gain access to all areas. Herefordshire Council said the majority of the cost -- GBP50,000 - - is unavoidable as the refurbishment planned for Elgar House requires the removal of most of this material. There will be a two week mobilisation/Health and Safety Executive notice period followed by four weeks on site to complete the work. It is hoped the work will be completed by July 25, allowing the main refurbishment to start in August. The cost of the works will be funded from the corporate accommodation capital budget as approved at full council on December 18 2015. The work will be undertaken as part of an existing contract with Integral UK Ltd. ASBESTOS UPDATE: Asbestos Caused Scunthorpe Laborer's Death ----------------------------------------------------------- The Scunthorpe Telegraph reported that a Scunthorpe labourer died after being exposed to asbestos at the steelworks in the 1970s. Kenneth Hutson, 80, of Willoughby Road, mixed the substance while working at the town's Lysaght factory at Normanby Park, an inquest heard. The inquest, held at the Civic Centre, was told the father-of-two was admitted to Scunthorpe General Hospital on Christmas Eve with a chest infection which developed into pneumonia and sepsis. His condition continued to deteriorate and he died on December 30. He was diagnosed with asbestos-related breathing problems in 1993. In a statement read to the inquest, Mr Hutson's wife Hazel, who married him in 1957, described her husband as an "active person who enjoyed a quiet way of life and loved his gardening, walking the dog and bowling". She said due to health problems he had to take on work that was "not too physical" and ended up at the Lysaght factory, where he helped mix asbestos. She said in 2005, his health started to deteriorate. "He was a good man who will be terribly missed," she added. Senior coroner Paul Kelly ruled the underlying cause of his death was asbestos and that he died as a result of industrial disease. He concluded: "He is likely to have breathed it in during the time he worked for Lysaght's during the 1970s." ASBESTOS UPDATE: Cayuga Centers Bldg Tests Positive for Asbestos ---------------------------------------------------------------- Gwendolyn Craig, writing for auburnpub.com, reported that test results for asbestos in the administrative building of Cayuga Centers have come back positive, said Edward Hayes, the chief executive officer of the organization. Floor tile that had been exposed during a construction project at the building on 101 Hamilton Ave., Auburn, was found to have asbestos, though the glue and tar paper in between the tile and wood floor did not. The building was shut down after test results for the asbestos were taking longer to process than anticipated. In the meantime, staff working there have been relocated to other temporary locations, Hayes said, and operations are continuing as usual. Cayuga Centers is working with an environmental consulting firm, Qualcor, LLC, out of Tully. They are working with the state Department of Labor's Asbestos Control Bureau to get an expedited permit for abatement. "What we have been told so far, at the top of the stairs on the third floor, there's a 5-by-5 area where carpet has been removed, and asbestos tiles are showing," Hayes said. "I believe those will be removed, from what people have told me." While there may be more tile throughout the building underneath the carpet, Hayes said since it has not been disturbed, they will likely leave it alone. More details on the abatement process and plans for the construction will be decided, he said, once the state permit processes and an abatement contractor is hired. Chris Adams, Syracuse area director for the Occupational Safety and Health Administration, said the asbestos, as long as it has not been pulverized and therefore airborne, could potentially be left alone. Cayuga Centers would need to label the asbestos and maintain it, as long as it's in good condition and not be in a situation where it could be released. ASBESTOS UPDATE: Guelph Brake Pad Co. Joins Fight vs. Asbestos -------------------------------------------------------------- ABS Friction has added their voice calling for a ban on asbestos and the importation of products containing asbestos into Canada. To create awareness, ABS has launched the "ABS Asbestos Offensive" an information campaign aimed at the automotive industry where asbestos is still common in imported brake pads and consequently a lethal hazard for mechanics. Here is the link: http://www.absfriction.com/asbestosoffensive. "In 2016 there are still too many brake pads that contain asbestos being imported and sold in Canada," said Rick Jamieson, President, CEO and Co-founder of ABS Friction. "In fact, imports of asbestos- related items rose to $6-million in 2014 from $4.9-million in 2013 and the bulk of these goods consisted of asbestos brake linings and pads, which hit $3.6-million in imports in 2014, a seven-year high.* Though I am encouraged by the Prime Minister's recent statement that the government will ban asbestos, we want to keep the ban on asbestos top of mind. Here, in Guelph we are working with our MP, the Honourable Lloyd Longfield and our MPP, the Honourable Liz Sandals as well as automotive industry organizations across Canada and North America. We invite people to review the information on our site and welcome their comments." Asbestos is by far the top on-the-job killer in Canada, accounting for almost 5,000 death claims since 1996. But that does not reflect the true depth of its effects. Many victims die of mesothelioma, asbestosis and lung cancer, but it may take 20 to 50 years after exposure to materialize. * "We have seen the effect of asbestos exposure first hand on mechanics and auto trades people," said Joe Schmidt, Director of Research and Development and Co-Founder, ABS Friction. "As a Canadian manufacturer who has made asbestos-free brake pads since we began 20 years ago, we want our voice to be heard -- it's time to put this issue to bed." * Source: Statistics Canada About ABS Friction ABS Friction is a Canadian family owned and operated industry leader in the manufacture and testing of premium disc brake pads for the automotive aftermarket industry. Every ABS brake pad is manufactured at our Guelph, Ontario, Canada facility to ensure premium, reliable products each and every time. All ABS brake pads are 100% asbestos free and environmentally friendly. ABS supplies to over 20 markets globally through both private label and branded programs. Safety really does matter at ABS Friction. Manufacturing quality, safe and reliable products is our #1 focus. We manufacture our products to the most stringent of quality standards. ABS is an ISO 14001, OHSAS 18001 compliant, ISO 9001:2008 registered, Leafmark compliant and BEEP(R) registered manufacturing facility. For further information, visit our site: http://www.absfriction.com. CONTACT INFORMATION Media Contact: Peter Donato Special Assignment Inc. +416.271.4316 donato@specialassignment.com @pvdonato ABS Friction Inc.: Michele Keeler Marketing Manager +226.217.2233 mkeeler@absfriction.com @ABSFriction ASBESTOS UPDATE: Asbestos Find Delays GBP16MM School Build ---------------------------------------------------------- Scottish Construction Now reported that work on a new GBP16 million education campus in West Dunbartonshire has been delayed until winter next year due to the discovery of asbestos. Originally scheduled to open in August 2017, the Balloch education campus is being built on the site of the former St Kessog's Primary and will accommodate a new St Kessog's co-located with an amalgamated Jamestown and Haldane primary school, additional support needs unit and early learning and childcare centre. A report due to go before councillors revealed that contractors discovered asbestos material under concrete foundations and hard standing following the demolition of the previous school. West Dunbartonshire Council said it was not possible to test under the foundation until the demolition phase and earlier investigations at the site found no asbestos. Specialist contractors have now prepared a remediation programme to remove the materials, which will add another three months to the construction programme and cost GBP900,000. Councillors will be asked to approve the allocation of additional funding on Wednesday, 29 June. The local authority's strategic director for regeneration, environment & growth, Richard Cairns, said: "These are essential works which could not have been foreseen. We're now seeking council approval to allow the remediation to be carried out as quickly as possible and this would allow us to get to work on building this fantastic new facility for generations of young people." Holmes Miller and Morgan Sindall are behind the campus development. ASBESTOS UPDATE: Asbestos Found at Belfast Bonfire Site ------------------------------------------------------- John Monaghan, writing for The Irish News, reported that asbestos has been found at a loyalist bonfire in west Belfast. Household waste, including out of date meat and soiled nappies, has been left on the land at Lanark Way off the Shankill Road, over the course of May. A Belfast City Council spokeswoman said: "The land in question is owned privately. We are aware of illegal dumping at this site and are working co-operatively with partners to alleviate the situation." The Housing Executive described the mess as "disgraceful". A spokesman said: "We own a small piece of land on this wider waste ground area, which is in private ownership -- asbestos has not been dumped on our land. The spokesman added: "We took immediate steps to remove household debris from our portion of the land and we are working closely with the council, the landowner and the PSNI to resolve this issue. Bollards are already in place to discourage access to our portion of this land." DUP councillor Frank McCoubrey said the situation had improved since early June and claimed the material was "left there using a yellow tipper lorry with a cage on it." He said: "Earlier in June there were incidents of fly tipping on Lanark Way where asbestos, fridges, kitchen rubbish and items which identified a particular house were all dumped. "I worked with statutory agencies to secure a clean-up of the area but it is simply not acceptable that such dangerous materials should be dumped anywhere." Mr McCoubrey added: "The collection of material for bonfires is not an excuse to dump general rubbish, and particularly not items which could be potentially dangerous to those who would come in contact with it." ASBESTOS UPDATE: Asbestos Removal at High School to Cost GBP122K ---------------------------------------------------------------- Lindsey Hamilton, writing for thetele.co.uk, reported that Dundee City Council is set to spend GBP122,500 on asbestos removal at Rockwell High School. It's understood the substance was discovered in the attic space and in "other locations" during maintenance work on the school's heating system in the winter of 2015. City councillors are to be asked to agree to spending the cash on its removal. Members of the city development committee will be asked to approve the work, which would be carried out during August and September. Labour's education spokesman Laurie Bidwell said he was very concerned the work could be carried out while staff and pupils are likely to be in school. Pupils and staff from Harris Academy have been in the old building since work on the new Harris commenced. They will move out at the end of summer term, but a recent report before councillors said staff and pupils from Castlepark and Balerno off-site centres will move to Rockwell in August 2016. Councillor Bidwell said: "I don't think we should have any staff or pupils on site while the asbestos is removed. "Parents and carers of pupils of Harris Academy decanted to Rockwell for three years will want to know whether their children have been exposed to health risks from this asbestos." Mr Bidwell said he would be asking for reassurance on these points at the meeting on Monday, before the work is approved. Jimmy Black, SNP councillor for the area, said the asbestos would only pose a health risk if it was disturbed. He said: "We have developed a fair bit of experience in this field having dealt with asbestos at other older buildings in Dundee -- we would not put anyone at risk by disturbing asbestos while staff and pupils are in the school." A council spokesman said: "The city development committee will be asked to agree to appoint specialist contractors to remove asbestos from a roof space in a part of the school that will be unoccupied. "Pupils currently using the school will return to Harris before the work is carried out later in the year. Part of the former Rockwell site will be used as a base for specialists education provision, while no decisions have been taken yet about future uses of the rest of the site." ASBESTOS UPDATE: Burnaby Council Pressing for New Asbestos Rules ---------------------------------------------------------------- Jeremy Deutsch, writing for Burnaby Now, reported that it's a problem that both the construction industry and work safety organizations have been trying to get a handle on for years. Exposure to asbestos is not only dangerous for workers in the construction industry, but also the general public. In light of the dangers, Burnaby city council is hoping to put pressure on the provincial government by passing a resolution calling for mandatory certification and licensing of asbestos and hazardous material removal contractors. Along with the resolution, the city is sending a letter to the provincial government and the Premier with the request. Asbestos was a popular building material for decades, but exposure to the fibre is linked to several diseases, including lung cancer. Coun. Sav Dhaliwal, who made the motion at Monday's council meeting, said certification for asbestos removal is a longstanding issue, adding there isn't adequate protection for workers in the industry. "I think the situation has become so serious, when we look at the stats, the number of deaths and other illnesses, we need to have some action on it," he said, noting asbestos exposure is the leading cause of work-related deaths in B.C. The city councillor also pointed out there is currently no provincial certification or licensing in B.C. to ensure standards or allow for the suspension of non-compliant contractors. Dhaliwal did suggest there should be time and reasonable notice for the industry to adjust to any regulations. An association that represents the construction industry said it welcomes certification for asbestos removal contractors, but argued it may not be enough to address the issue. Dave Baspaly, the president of the Council of Construction Associations (COCA), a group that represents several construction associations in B.C., suggested the problem isn't with the "gold standard" of asbestos abatement companies, but rather the fly-by- night businesses that undercut the industry and dump waste where they're not supposed to, in places like city parks. He said the companies operating in the underground economy are making deals with homeowners that regulated companies can't match. Baspaly said regulations like the ones proposed by Burnaby could have unintended consequences by driving up the costs for certified companies and pushing people to seek operators in the underground economy. He said enforcement and incentives need to be part of the answer, adding his organization is urging all the parties with a stake in the issue to come together to work out a solution. "It's a complicated issue, it's a pervasive issue and people are still very much at risk," Baspaly said. The head of COCA said he's not exactly sure how much asbestos is in the current building and housing stock in the region, but anecdotally he's heard from members that it's a "big issue." ASBESTOS UPDATE: Dunedin Hospital's Asbestos Bill Rises to $2.3MM ----------------------------------------------------------------- Eileen Goodwin, writing for Otago Daily Times, reported that the cost of dealing with asbestos at Dunedin Hospital has shot up to $2.3million. The figure was disclosed at a Southern District Health Board committee meeting in Dunedin on Tuesday. In May, the board said it did not expect the cost of managing the hazard to be much more than about $1.3million. Asked about the figure later, facilities and site development manager Warren Taylor said he had not known about the cost increase, but it was not particularly surprising. "We're discovering things all the time. That's the nature of old buildings." Work undertaken included decontaminating lifts in the clinical services building which reopened recently after being closed last October. Many organisations were in a similar position at present. "Asbestos awareness has changed dramatically in the last 12 months, with the new [health and safety] Act coming in". The board recently contracted Precise Consulting and Laboratory Ltd for a three-year contract to help manage its asbestos problem. The company conducted the board's asbestos surveys and other asbestos work, but the three-year contract was the first time the board had had an ongoing agreement for asbestos management. It meant Precise could be called in at short notice as issues arose. Precise does not carry out asbestos removal. Asked if the high demand for asbestos management in Dunedin was pushing up contractors' prices, Mr Taylor said that was likely. Although it is not the only affected building, much of the focus has been the clinical services building, which will be replaced within the next decade. "That's why we closely monitor every single dollar we spend in that building on maintenance, asbestos removal, anything like that." "We don't want to waste money on a building that's not fit for purpose," Mr Taylor said. ASBESTOS UPDATE: New Zealand Enacts National Asbestos Ban --------------------------------------------------------- Tim Povtak, writing for Asbestos.com, reported that New Zealand will prohibit importation of all asbestos products and materials beginning Oct. 1, joining 57 other countries that already ban asbestos. Nick Smith, New Zealand environment minister, announced the latest prohibition. His statement marked progress toward a long-sought, worldwide ban on the toxic mineral. "It's about bloody time," Laurie Kazan-Allen, coordinator of the International Ban Asbestos Secretariat, told Asbestos.com. Kazan- Allen, who is based in the United Kingdom, is one of the world's foremost authorities on the global asbestos watch. "We're in an interesting time right now," she said. "There is a great deal of mobilization by ban-asbestos campaigners in several countries. There are some encouraging signs." Progress on Banning Asbestos Is Slow A growing number of nations are slowly working to ban or restrict asbestos, raising hopes for a future free from asbestos-related disease. Exposure to asbestos can cause a variety of serious health issues, including asbestosis, mesothelioma and lung cancer. The World Health Organization estimates 100,000 people die annually from asbestos-related conditions. Canada, once one of the world's largest asbestos producers, has committed to banning the toxic fiber according to an announcement from Canadian Prime Minister Justin Trudeau in May. Congress this year passed a bill to amend the Toxic Substances Control Act, which will give the U.S. Environmental Protection Agency more power to restrict asbestos and push the country closer to a potential ban. President Barack Obama signed the bill into law on June 22, 2016. Kazan-Allen said that Colombia, Malaysia and the Philippines are moving toward more asbestos restrictions. Thailand, Vietnam and Indonesia -- three nations notorious for asbestos consumption -- have become more open to discussing the health issues and problems asbestos causes. Nepal instituted a ban on the import, sale, distribution and use of all asbestos in 2015. South Korea achieved a total ban in 2015. "It would be great if every country banned asbestos," Kazan-Allen said. "But the full extent of the success in outlawing asbestos can be seen not only by the number of ban countries, but by the countries which choose not to use asbestos." The number of countries using large amounts of asbestos has declined in recent years. There are now only 23 countries using more than 500 tons of asbestos annually according to the latest data on the global asbestos trade. The number of heavy users has dropped from 37 countries in 2012 and 33 countries in 2013. The government of Zimbabwe recently admitted efforts to revive its struggling asbestos mining industry had failed. Even Russia, the world's most prolific asbestos producer today, has begun touting a "green housing development" outside Moscow that is free from any asbestos products. Lack of Leadership in the US Although the Toxic Substances Control Act amendment encouraged Kazan-Allen, she believes a lack of leadership in the United States has hurt international efforts to ban asbestos. The U.S. has reduced its use of asbestos significantly in recent decades, but the toxic fiber remains legal to use in various products. The last asbestos mine in the U.S. closed in 2002. The country still imported 423 tons of asbestos products in 2014, according to the United States Geological Survey. "The fact that the United States has not banned asbestos in the face of so much knowledge, so many lawsuits and so much death is a scandal which shames political parties of every color, hue and inclination," Kazan-Allen said. The New Zealand announcement comes only months after the country introduced new safety and health requirements to toughen laws designed to manage asbestos-related risks. An estimated 170 people die annually in New Zealand from asbestos- related disease. It is the single biggest cause of work-related fatalities according to government reports. Asbestos Deaths in New Zealand Will Continue New Zealand first began regulating asbestos in 1978. It banned raw asbestos in 1984 but continued producing asbestos building materials until 1987. Most of the current asbestos use in New Zealand involves specialty products such as brake linings, gaskets and seals. Smith says the ban in New Zealand will include some exceptions. "A permit will only be issued if there is genuinely no alternative product available or if the alternative would be disproportionately expensive," Smith said in a news conference announcing the ban. "In addition, an importer would have to be able to show that any risk of asbestos exposure can be safely managed." The New Zealand government has faced considerable scrutiny from its citizens over its inaction on banning asbestos. The number of fatalities related to asbestos is expected to continue for decades in New Zealand because of the long latency period (10-50 years) between asbestos exposure and the first signs of asbestos-related disease. "I think New Zealand was unusually slack in dealing with this issue," University of Otago epidemiologist David Skegg told the New Zealand Herald. "Until the recent past, you have to say that the challenge of asbestos was largely ignored in New Zealand." ASBESTOS UPDATE: Brighton 1984 Bomb May Have Exposed Rescuers ------------------------------------------------------------- The Guardian reported that rescuers who worked at the scene of the deadly IRA bombing in Brighton 32 years ago are being sought after a police officer died from an asbestos-related disease. Police, fire and ambulance personnel who were involved in the aftermath of the attack are being told there is a very small chance they could have been exposed to asbestos fibres within the debris. Letters are also being sent to Conservative party members, Brighton and Hove city council, and Sussex University hospital NHS trust, warning that staff and others could be affected, police said. Five people were killed and 34 others were seriously injured when the bomb detonated at the Grand Hotel on Brighton's seafront in October 1984. The intended target of the blast was the prime minister at the time, Margaret Thatcher, and her Tory cabinet, who were staying at the hotel during a Conservative party conference. Steve Barry, Sussex police assistant chief constable, who is co- ordinating an emergency services group, stressed that the likelihood of people having been affected was "very small". However, he said he felt he had an ethical duty to tell people that a Metropolitan police officer who had worked at the scene had died from an asbestos-related disease last December. Barry said: "We are trying to identify and inform emergency service colleagues and others who may have been exposed to asbestos fibres to offer medical advice and support. I understand that on hearing this news people may be anxious as to whether they have been exposed to asbestos and concerned about the possible effects on their health. "I would like to emphasise that the possibility that they have been affected is very small, but I feel it is the right thing to pass this information on. People could have potentially been exposed to asbestos fibres within the hotel debris and while we know that police officers working at the scene were issued with personal protective equipment, this was some days after the explosion." Sussex police said it was offering its officers health information and support. Barry added: "By publicising this issue I don't wish to cause distress but inform people so they can seek health advice from their GP, and to reassure them that the possibility that they have been affected is very small." ASBESTOS UPDATE: Removal Creates Controversy in UW-Madison Campus ----------------------------------------------------------------- Keely Arthur, writing for Channel3000.com, reported that a University of Wisconsin-Madison graduate student living in university housing said she was caught off guard when contractors began removing asbestos from the property. Amy Jancewicz is a Ph.D. student living with her husband and two children at University Houses, an apartment complex for faculty and students. Jancewicz tells News 3 that contractors began construction on the outside of the building two weeks ago. "It's terrible, the whole place resonates with sound," she said. She said she realized loud noise was the least of her family's problems when she saw signs for asbestos removal around the property. "They never told us they were going to be removing it," Jancewicz said of the asbestos. UW Housing sent Jancewicz and other residents a letter saying there was an abatement scheduled, but did not disclose that it would be asbestos abatement, Jancewicz said. UW Housing officials said they did not need to disclose if asbestos removal was happening. "I'm concerned about what everybody else is concerned about when they hear asbestos: cancer risks, mesothelioma," Jancewicz said. "I'm worried about my kids having an exposure to it." University Housing tells News 3 that the removal is part of a much bigger construction project involving brick work at University Houses, Eagle Heights and the Harvey Streets apartments. "It is safe and the procedures we are using are safe," Jeff Novak, director of UW Housing, said. Contractors are removing caulk with asbestos in it. The caulk has about 10 percent of asbestos-carrying material in it. "The state who oversees the projects for us assures that they're using the practices and procedures that they should be," Novak said. Novak and Jancewicz met Monday. Jancewicz said she is still concerned that she is not being told everything. "I don't know what I should believe given that I had no notice about this," she said. Novak said he is very sorry for the miscommunication, and that UW Housing has learned from the situation and will try to be more transparent. All of the construction should be complete by this fall. Earlier this year, Jancewicz and other residents learned that a child living in university apartments tested positive for elevated levels of lead. While UW officials said the apartment was not determined as the cause, a state organization gave UW two months to make some changes to the apartments in light of the incident. UW completed that requirement. ASBESTOS UPDATE: Sydney Residents Launch Class Suit Over Dumping ---------------------------------------------------------------- Stephanie Dalzell, writing for ABC News, reported that a group of south-western Sydney residents have launched a class action against their local council, alleging it is responsible for asbestos being dumped near their homes. Chipping Norton local Bernie King is spearheading the lawsuit against Liverpool City Council which was lodged in the NSW Supreme Court earlier in June. Asbestos was discovered just metres away from his property on Rickard Road last July, one of at least 22 sites potentially contaminated by landfill. The Environment Protection Authority (EPA) is investigating claims Liverpool council illegally dumped the waste, which could have come from the council's own storage facility. Mr King said: "I rung a couple of people in the council and I got no answers there and so I rung someone else I knew in the council ... he came back and he told me it was small amounts of asbestos found in the soil that they put here." "Two weeks after they moved the soil, they sent us a letter about it." That letter, from July 2015, stated the council was remediating a number of sites nominated by the EPA within the area. "One of these sites is Rickard Road, Chipping Norton," the letter said. "These sites were either backfilled or mounded some time ago to minimise vehicle access to the area. "The soil used was from a source that is now known to contain small fragments of asbestos contaminating material." Mr King bought his property in 1982, believing it was a solid investment. It had been valued at $800,000, however he said that figure had now been slashed in half. "Not worth a penny, no-one would want to buy it anyway with all the asbestos scares here," he said. "It's fully stressful, I don't know which way to turn." Almost 20 residents have now signed up to the class action. In documents lodged in the Supreme Court, obtained by the ABC, Mr King -- on behalf of the group members -- alleged the council: -- "Was the body responsible for, and in control of all contaminated soil dumped in June 2014 on the nature strips located at Rickard and Newbridge Roads, Chipping Norton. -- "Employed and or controlled the work activities of the person driving the vehicles and/or working in the vehicles that had carried the contaminated soil; and -- "Directed the persons controlling and/or working from the said vehicles to dump the contaminated soil on the nature strips located at Rickard and Newbridge Roads." -- Claim could be 'in the millions' David Marocchi from Paramount Lawyers, the firm representing the residents, would not reveal how much money they were seeking, however said it could be "in the millions of dollars". "We'd like the residents to be compensated financially, but also there's other matters to be considered, there's the livelihood of children and their parents," he said. Liverpool council would not comment on the legal proceedings, except to say it would be "manning a vigorous defence". The council had already spent almost $5 million trying to clean up the contaminated landfill, and had set aside a further $2.5 million. It had previously said it was working closely with the EPA to address the sites under investigation. ASBESTOS UPDATE: School Hits GBP1MM Setback After Asbestos Find --------------------------------------------------------------- Jenny Foulds, writing for Daily Record and Sunday Mail, reported that West Dunbartonshire Council says it could not have foreseen the find which will add GBP936,000 to the bill and delay the build. Plans for Balloch's new superschool have hit a GBP1million stumbling block after asbestos was discovered on the site. The Lennox Herald can reveal that the deadly material was recently found below the former St Kessog's school building -- adding an eye-watering GBP936,000 to the bill. West Dunbartonshire Council says it could not have foreseen the extra cost as the asbestos was only found at previously unaccessible parts of the site. The setback will also put the whole project back by 12 weeks, with the campus now due to open in winter 2017. Councillors will be asked to plug the shortfall at a full council meeting. Opposition leader Jonathan McColl sided with the local authority and said officers couldn't have known what lay beneath, commenting: "To say it's just one of those things seems too blas‚ for such a large sum of money, but there really was no way the council could have known it was there. "As is standard practice, records for the site were thoroughly checked prior to work starting, but in the early 60s when St Kessog's was built, asbestos wasn't considered a dangerous substance, so its presence in the under foundation filler material wasn't noted. "There is no asbestos on the rest of the site, just directly under the school, so it wasn't found until the school was demolished and the foundations dug out. "The council will have to decide, as part of the budget setting in February next year, how to accommodate the increased cost of the project in the 10 year capital plan." Richard Cairns, the council's strategic director for regeneration, environment and growth, said: "These are essential works which could not have been foreseen. "We're now seeking council approval to allow the remediation to be carried out as quickly as possible and this would allow us to get to work on building this fantastic new facility for generations of young people." Parents and carers are due to receive a letter home informing them of the delay. The new GBP16.4m campus will be able to accommodate 747 pupils and be located on the site of the former St Kessog's Primary School, which has already been demolished. It will house St Kessog's, as well as a new nondenominational school created through the amalgamation of Jamestown and Haldane primaries, as well as an Additional Support Needs Unit and Early Learning and Education Centre. A report which goes to the full council states that a ground investigation was carried out in all accessible areas prior to the start of the demolition works in September last year. It reads: "A further ground investigation was carried out during and post-demolition of the St Kessog's building, once all areas could be accessed. Asbestos was found below the concrete floor slab of the former school building as well as in the previously inaccessible areas of the made ground soils surrounding the former school building." The paper adds that the extent of the asbestos does not call the proposed use of the site into question but says it is found at various points over the site, meaning that the remediation poses "a significant financial challenge". The council will need to hire a contractor to carry out the work and officers say it is important the contract is let as quickly as possible. The funds being used are those which were re-allocated when the Scottish Government decided to fully fund the capital for the new Our Lady and St Patrick's High School. Officers are asking the council plug the shortfall with GBP888,000 from the capital plan. The remaining cash will be bridged with savings realised from funds already allocated to the project. ********* 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 2016. 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 * * *