/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160819.mbx C L A S S A C T I O N R E P O R T E R Friday, August 19, 2016, Vol. 18, No. 166 Headlines ABELARDO MONROY: Faces "Mendoza" Suit Over Unpaid Overtime Wages AETNA INC: ERISA Benefits and Breach of Contract Claims Pending AKAL SECURITY: Gelber Seeks Cert. of Air Security Officers Class ALTISOURCE PORTFOLIO: Certification of Investors Class Sought AMERICAN OSTEOPATHIC: Responds to Class Action Filing ASCENA RETAIL: "Rougvie" Settlement Deal Has Final Okay ASCENA RETAIL: Judge Lessens Attorneys' Fees and Incentive Awards ASIAN MOON: Faces "Galicia" Suit in Eastern District of New York AT&T INCORPORATED: Faces "Muhammad" Suit in S.D. of Alabama AUDIOEYE INC: Agreement in Principle Reached in Securities Action AVEO GROUP: Law Firm Mulls Class Action Over Veronica Gardens AVON PRODUCTS: Settlement in Shareholders' Suit Remains Pending AVON PRODUCTS: Oct. 11 Hearing on ERISA Litigation Settlement BAYLOR COLLEGE: Aguocha-Ohakweh Seeks to Represent Victims Class BC HYDRO: BC Court Refuses to Certify Smart Meter Class Action BIOLOGICAL RESOURCE: "Body Snatching" Victims File Class Action BMW OF NORTH AMERICA: Settlement Deal in "Skeen" Has Final Okay BOARDWALK AUTO: Accused by "Rashid" Suit of Illegal Termination BOEHRINGER INGELHEIM: Sued in Super. Ct. Over Pradaxa Safety BOLLARE INC: "Greene" Suit Seeks Unpaid OT Pay Under Labor Code BORGATA CASINO: Players Lose Appeal in "Chipgate" Class Action BREATHLESS INC: Court Grants Bid for Summary Judgment in "Moon" BRENDAN STANTON: Certification of Class Sought in "Ramoutar" Suit BRIDGEPOINT EDUCATION: Court Granted Final Approval of Settlement BRIDGEPOINT EDUCATION: Court Granted Leave to Amended Complaint CAPITAL ONE: Hedman Seeks Certification of Classes CASTLIGHT HEALTH: October 28 Settlement Fairness Hearing Set CHARTER TOWNSHIP: Certification of Class & Subclasses Sought CHEVRON CORPORATION: McQueen et al. Seek Certification of Class CHICAGO, IL: Conyers et al. Seek Certification of Class COOK SALES: Warren et al. Seek Collective Action Certification COSTCO WHOLESALE: Stern Questions Sale of Kirkland Canned Chicken DALLAS CENTRAL: Sued Over Excessive Property Appraised Value DALLAS CENTRAL: Sued Over Excessive Property Appraised Value DCOR LLC: Fails to Pay Wages and Overtime, "Robarge" Suit Asserts DIRECTV LLC: First to File Rule Does Not Apply in "Swetra" Suit DISCOVER FINANCIAL: To Defend Against "Davenport" Action DISCOVER FINANCIAL: Have Until August 25 to Respond to B&R Suit DISTINCTIVE MAINTENANCE: Faces "Sequinot" Suit Over Unpaid Wages DUN & BRADSTREET: Settlement in O&R Construction Case Pending DUN & BRADSTREET: Settlement in Die-Mension Case Pending DUN & BRADSTREET: Settlement in Vinotemp Case Pending DUN & BRADSTREET: Settlement in Flow Sciences Case Pending DUN & BRADSTREET: Settlement in Altaflo Case Pending DUN & BRADSTREET: Settlement Reached in "Thomas" Case EXPERIAN INFORMATION: Faces "Brown" Suit in E.D. of Virginia EXPRESS SCRIPTS: Faces Class Action Over "Slamming" Practice FANNIE MAE: Grant & Eisenhofer Not Entitled to More Fees FASHION OPTIONS: Newbolt-White Sues for Pregnancy Discrimination FIDELITY & GUARANTY: Settlement Completion Deadline Moved FIDELITY & GUARANTY: Ludwick's Eighth Circuit Appeal Pending FITCHBURG GAS: Class Certification in "Bellerman" Suit Vacated FITNESS INTERNATIONAL: "Kinalis" Suit Seeks Unpaid Compensation FORD AUSTRALIA: 1,500 Disgruntled Customers File Class Action FREDDIE MAC: Dismissal of Retirement System's Case Reversed FREDDIE MAC: Stay Lifted in Jacobs and Hindes Case FRONTIER DRILLING: Court Grants Prelim. OK of "Miller" Suit Deal GAW MINERS: Audet et al. Seek Certification of Class GENERAL MOTORS: Faces "Shannon" Suit in District of New Jersey GERON CORPORATION: Bid for Class Cert. Sought in Securities Case GIA + 4 CORP: Fails to Pay Proper Overtime, "Bardles" Suit Alleges GOLDEN ABACUS: "Garcia" et al. Seek Overtime Wages Under FLSA GOOD SAMARITAN REGIONAL: Outcome Varies in Consolidated Appeal GORDMANS STORES: Cox Seeks to Certify Class of Assistant Managers HARBOR FREIGHT: Sued by Morgan for Selling Faulty Connection Kits HONEST CO: MDL Panel Orders Transfer of Consumer Suit to L.A. IMPRIVATA INC: Defending Against Securities Suit INTEL: Recalls Basis Peak Smartwatch for Safety Reasons IXIA: $3,500,000 Settlement Has Final Approval JEFFERSON CAPITAL: Class Certification Bid in "Zuniga" Continued JETT PRO: Initial Bid for Class Certification Withdrawn JETT PRO: Bernier, et al. Seek Certification of FLSA Class JOHNSON & JOHNSONS: Plaintiffs Want Talcum Powder Case Stayed JP MORGAN: Settles Class Action Over Inmate Debit Card Fees KERYX PHARMACEUTICALS: Glancy Prongay Files Class Action in N.Y. KING BEE: Judge Narrows Claims in "Williams" Suit LES BRASSEURS: Faces "Comonfort" Suit in S.D. of New York LEWIS ENERGY: Villarreal Seeks Certification of Class LIFE INSURANCE: Certification of Classes Sought in "Dolemba" Suit LOS ANGELES: Disabled Children May Intervene in "Smith" Suit MAGELLAN HEALTHCARE: Suit Alleges Addiction Treatment Discrim. MALCOLM S GERALD: Cert. of FDCPA Class Sought in "Holzman" Suit MDL 2438: Court Grants Forrest's Bid to Quash Subpoena META FINANCIAL: Final Settlement Approval Hearing on Sept. 12 METAL SALES: Faces Wendell Suit in W.D. of Pennsylvania MICHAEL KORS: Galvan Seeks Unpaid Wages Under Cal. Labor Code MINNESOTA: DHS Faces Discrimination Class Action MINNESOTA: State Dismissed from "Guggenberger" Suit MOSAIC SALES: "Bey" Suit Moved from Super. Ct. to C.D. Cal. N. AM. BANCARD: Tendering Funds Doesn't Moot Case, Court Rules NATIONAL RECOVERY: Court Certifies Class in "Stanley" Suit NEST LABS: Cal. Court Refuses to Certify Class in "Darisse" Suit NEW YORK LIFE: Faces Class Action Over Mainstay Index Fund NRA GROUP: Automatic Dialing System Violates TCPA, Judge Rules NYC TAXI: Court Refuses to Review Rulings in "Singh" Class Suit OCWEN FINANCIAL: Certification of Investors Class Sought ORCHESTRATE HOSPITALITY: Class Settlement in "Edwards" Granted PETROLEOS BRASILEIRO: Appeals Court Puts Class Action on Hold PLANET FITNESS: Court Narrows Claims in "Truglio" Suit POKEMON: Faces Nuisance, Unjust Enrichment Class Actions PROVIDENCE SERVICE: Court Granted 6-Month Stay of Class Suit PTTEP AUSTRALASIA: Court Accepts Indonesian Seaweed Farmers' Suit REGENCY CAR: Fails to Return Security Deposit, "Patel" Suit Says REMINGTON ARMS: Judge Not Yet Ready to Approve Rifle Settlement RFI CONSTRUCTION: Luna-Reyes Seeks Certification of FLSA Case RONAN, MT: Class Action Against City Can Proceed RTO MEDRESOURCE: Gress Seeks Certification of Classes RTO MEDRESOURCE: Bid to Certify Class in "Gress" Suit Continued S.C.R.A.P. INC: Chicago Car Wants Certification of Three Classes SANTA MONICA, CA: Class Certification Sought in "Rosenblatt" Suit SCARLETT'S G.P.: Judge Favors Dismissal of Exotic Dancers' Suit SEDGWICK LLP: Removes "Ribeiro" Class Suit to N.D. California SHAFER TROXELL: Fails to Pay Minimum and OT Wages, Nusbaum Claims SHELL OIL: Settles False Advertising Class Action SOLARCITY CORP: Judge Dismisses Shareholder Fraud Case SOUTH CAROLINA: "Kenny" Files Suit v. Atty. Gen., Police Officers SPORT CLIPS: Pinnacle Removes "Perez" Class Suit to S.D. Cal. STONE FUNDING: Chicago Car Seeks Certification of Three Classes SUFFOLK BANCORP: Defending Merger-Related Class Suit TEACHERS INSURANCE: Court Narrows Claims in "Luciano" Suit TEAM HEALTH: Opposed Request for Attorneys' Fees TENNESSEE: Dismissal of "O'Neal" Suit Affirmed TOTAL NEW: Accused by Najjar of Sexual and Racial Discrimination TROTT LAW: Court Narrows Claims in "Martin" Suit TRUMP UNIVERSITY: Judge Refuses to Release Trump Video Testimony TRUMP UNIVERSITY: Judge Allows Students' Fraud Case to Proceed UBER TECHNOLOGIES: Judge Denies Motion Compel Arbitration UNITED AIRLINES: Ninth Circuit Review Sought in "Ward" Class Suit UNITED SERVICES: Judge Reprimands Five Attorneys in Class Action UNITED STATES: PTSD Disability Plaintiffs Win $3MM in Atty. Fees UNITEDHEALTHCARE INSURANCE: Hill Seeks Certification of Class VCA ANTECH: Graham's Bid to Certify Class Taken Under Submission VISHAY INTERTECHNOLOGY: Removed as Defendant in Amended Suits VITAL THERAPIES: Sept. 1 Hearing on Motion to Dismiss Suit WARREN RESOURCES: Gardy & Notis Files Securities Class Action WERNER ENTERPRISES: Defending Drivers' Class Suit in Nevada WILLIAMS COMPANIES: Trial in Injury Case Postponed to Sept. 6 WILLIAMS COMPANIES: Bid to Dismiss Delaware Suit Remains Pending WILLIAMS COMPANIES: Agrees to Pay Plaintiff's Fees & Expenses WILLIAMS COMPANIES: Amended Complaint Due Aug. 31 in Okla. Case WOODFOREST NATIONAL: Faces "Fitzhenry" Suit in South Carolina XPO LAST MILE: Court Reduces Class Members in "Reyes" Suit * Democrats Call on CFPB to Finalize Consumer Arbitration Rules Asbestos Litigation ASBESTOS UPDATE: Ga. High Court Flips $4M Judgment in "Knight" ASBESTOS UPDATE: Md. App. Junks Appeal in Lung Cancer Suit ASBESTOS UPDATE: Indiana Inmate Loses Summary Judgment Bid ASBESTOS UPDATE: Ky. Court Affirms Summary Judgment in "Mannahan" ASBESTOS UPDATE: La. Court Denies Bid to Remand "Lindsay" ASBESTOS UPDATE: Court Refuses to Review BorgWarner's Bid ASBESTOS UPDATE: Magistrate Denies Bid to Transfer Venue ASBESTOS UPDATE: Court Grants Bid to Remand "Hartfield" ASBESTOS UPDATE: ABB, 5 Others Win Summary Judgment in "Hillyer" ASBESTOS UPDATE: Bid to Vacate Privilege Waiver Ruling Denied ASBESTOS UPDATE: Bid to Review Denial of Summary Judgment Denied ASBESTOS UPDATE: N.Y. App. Affirms $3.5MM Verdict vs. Nat'l Grid ASBESTOS UPDATE: Bid Summary Judgment in "Haggwood" Partly OK'd ASBESTOS UPDATE: Court Grants MDE's Summary Judgment Bid ASBESTOS UPDATE: Worksafe Targets Poor Asbestos Record ASBESTOS UPDATE: Contractor Pleads Guilty After Illegal Removal ASBESTOS UPDATE: High School Closes for Asbestos Removal ASBESTOS UPDATE: Mesothelioma Cases Rise in Iceland Despite Ban ASBESTOS UPDATE: Asbestos Delays High School Demolition Work ASBESTOS UPDATE: Schenectady Asbestos Firm Files for Bankruptcy ASBESTOS UPDATE: Delayed Asbestos Removal Raises Concerns ASBESTOS UPDATE: Tests Allay Asbestos Concerns for Senate Room ASBESTOS UPDATE: Flood Victims Displaced Due to Asbestos Testing ASBESTOS UPDATE: Asbestos-Filled Funeral Parlor Toppled ASBESTOS UPDATE: Compensation Claims Could Be Denied ASBESTOS UPDATE: German Asbestos Workers to Get CT Exams ASBESTOS UPDATE: Canberra Bldgs Tested for Asbestos ASBESTOS UPDATE: Cleanup in Johnson Controls Debris To Start ASBESTOS UPDATE: NY Decision Not Good for Asbestos ********* ABELARDO MONROY: Faces "Mendoza" Suit Over Unpaid Overtime Wages ---------------------------------------------------------------- HILDA MENDOZA, and all others similarly situated under 29 U.S.C. 216(b) v. ABELARDO MONROY, Case No. 1:16-cv-23454-DPG (S.D. Fla., August 10, 2016), is brought on behalf of similarly situated employees, like the Plaintiff, who have not been paid overtime and minimum wages for work performed in excess of 40 hours weekly from the filing of the complaint back three years. Ms. Mendoza worked for the Defendant as a domestic live-out housekeeper from March 4, 2013, through August 7, 2016. Abelardo Monroy is a resident of and regularly transacts business within Miami-Dade County, in Florida. Mr. Monroy was the Fair Labor Standards Act employer of the Plaintiff during the relevant time period. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: zabogado@aol.com AETNA INC: ERISA Benefits and Breach of Contract Claims Pending --------------------------------------------------------------- Aetna Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that in the Out-of-Network Benefit Proceedings, the plaintiffs' remaining claims are for ERISA benefits and breach of contract. Aetna said, "We are named as a defendant in several purported class actions and individual lawsuits arising out of our practices related to the payment of claims for services rendered to our members by health care providers with whom we do not have a contract ("out-of-network providers"). Among other things, these lawsuits allege that we paid too little to our health plan members and/or providers for these services, among other reasons, because of our use of data provided by Ingenix, Inc., a subsidiary of one of our competitors ("Ingenix"). Other major health insurers are the subject of similar litigation or have settled similar litigation." "Various plaintiffs who are health care providers or medical associations seek to represent nationwide classes of out-of- network providers who provided services to our members during the period from 2001 to the present. Various plaintiffs who are members in our health plans seek to represent nationwide classes of our members who received services from out-of-network providers during the period from 2001 to the present. Taken together, these lawsuits allege that we violated state law, the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Racketeer Influenced and Corrupt Organizations Act ("RICO") and federal antitrust laws, either acting alone or in concert with our competitors. The purported classes seek reimbursement of all unpaid benefits, recalculation and repayment of deductible and coinsurance amounts, unspecified damages and treble damages, statutory penalties, injunctive and declaratory relief, plus interest, costs and attorneys' fees, and seek to disqualify us from acting as a fiduciary of any benefit plan that is subject to ERISA. Individual lawsuits that generally contain similar allegations and seek similar relief have been brought by health plan members and out-of-network providers. "The first class action case was commenced on July 30, 2007. The federal Judicial Panel on Multi-District Litigation (the "MDL Panel") has consolidated these class action cases in the U.S. District Court for the District of New Jersey (the "New Jersey District Court") under the caption In re: Aetna UCR Litigation, MDL No. 2020 ("MDL 2020"). In addition, the MDL Panel has transferred the individual lawsuits to MDL 2020. On May 9, 2011, the New Jersey District Court dismissed the physician plaintiffs from MDL 2020 without prejudice. The New Jersey District Court's action followed a ruling by the United States District Court for the Southern District of Florida (the "Florida District Court") that the physician plaintiffs were enjoined from participating in MDL 2020 due to a prior settlement and release. The United States Court of Appeals for the Eleventh Circuit has dismissed the physician plaintiffs' appeal of the Florida District Court's ruling. "On December 6, 2012, we entered into an agreement to settle MDL 2020. Under the terms of the proposed nationwide settlement, we would have been released from claims relating to our out-of- network reimbursement practices from the beginning of the applicable settlement class period through August 30, 2013. The settlement agreement did not contain an admission of wrongdoing. The medical associations were not parties to the settlement agreement. "Under the settlement agreement, we would have paid up to $120 million to fund claims submitted by health plan members and health care providers who were members of the settlement classes. These payments also would have funded the legal fees of plaintiffs' counsel and the costs of administering the settlement. In connection with the proposed settlement, the Company recorded an after-tax charge to net income attributable to Aetna of $78 million in the fourth quarter of 2012. "The settlement agreement provided us the right to terminate the agreement under certain conditions related to settlement class members who opted out of the settlement. Based on a report provided to the parties by the settlement administrator, the conditions permitting us to terminate the settlement agreement were satisfied. On March 13, 2014, we notified the New Jersey District Court and plaintiffs' counsel that we were terminating the settlement agreement. Various legal and factual developments since the date of the settlement agreement led us to believe terminating the settlement agreement was in our best interests. As a result of this termination, we released the reserve established in connection with the settlement agreement, net of amounts due to the settlement administrator, which reduced first quarter 2014 other general and administrative expenses by $67 million ($103 million pretax). "On June 30, 2015, the New Jersey District Court granted in part our motion to dismiss the proceeding. The New Jersey District Court dismissed with prejudice the plaintiffs' RICO and federal antitrust claims; their ERISA claims that are based on our disclosures and our purported breach of fiduciary duties; and certain of their state law claims. The New Jersey District Court also dismissed with prejudice all claims asserted by several medical association plaintiffs. The plaintiffs' remaining claims are for ERISA benefits and breach of contract. We intend to vigorously defend ourselves against the plaintiffs' remaining claims." AKAL SECURITY: Gelber Seeks Cert. of Air Security Officers Class ---------------------------------------------------------------- The Plaintiff files with the Court his motion for conditional collective action certification in the lawsuit titled ELLIOT GELBER, & all others similarly situated v. AKAL SECURITY, INC., Case No. 1:16-cv-23170-FAM (S.D. Fla.). Mr. Gelber seeks preliminary certification of a Collective Class consisting of these individuals: All current and/or former employees of Akal Security, Inc. employed at any time since July 22, 2013 with the title of air security officer or those who have substantially the same duties and responsibilities as Plaintiff who had a one-hour lunch break deducted from their pay. Mr. Gelber asks the Court to require Akal to provide to him, in electronic format, the names, addresses, e-mail addresses and telephone numbers of all potential members of the Class within 20 days. He also asks for an order (i) approving the proposed Notice of Rights and the proposed Opt-In Consent Form, (ii) authorizing and facilitating notice of the action to the Class, including conspicuously posting the Notice of Rights and Opt-In Consent Form on the premises of Akal's deportation operations, and (iii) directing Akal to refrain from engaging in communications or activities that may improperly influence, mislead or discourage putative plaintiffs from joining the action. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=sWjyCjvI The Plaintiff is represented by: Matthew Seth Sarelson, Esq. KAPLAN YOUNG & MOLL PARRON 600 Brickell Avenue, Suite 1715 Miami, FL 33131 Telephone: (305) 330-6090 E-mail: msarelson@kymplaw.com The Defendant is represented by: Jenna Rinehart Rassif, Esq. Derek H. Sparks, Esq. JACKSON LEWIS P.C. One Biscayne Tower, Suite 3500 Two South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 577-7651 Facsimile: (305) 373-4466 E-mail: jenna.rassif@jacksonlewis.com derek.sparks@jacksonlewis.com ALTISOURCE PORTFOLIO: Certification of Investors Class Sought ------------------------------------------------------------- In the lawsuit In re: Altisource Portfolio Solutions, S.A. Securities Litigation, Case No. 9:14-cv-81156-WPD (S.D. Fla.), the Lead Plaintiffs, Pension Fund and Annuity Fund for the Painters and Allied Trades District Council 35 move the Court to certify a class of investors, defined as: "all persons who purchased or otherwise acquired publicly- traded Altisource Portfolio Solutions, S.A. common stock during the period from April 25, 2013 through December 21, 2014, inclusive, and who were damaged thereby (the Class)." Excluded from the Class are Defendants Altisource, William C. Erbey, William Shepro, and Michelle Esterman, present or former executive officers of Altisource, and their immediate family members. The Plaintiffs further ask the Court to appoint Lead Plaintiffs and West Palm Beach Firefighters' Pension Fund as Class Representatives; and appoint Bernstein Litowitz Berger & Grossmann LLP as Class Counsel and Saxena White P.A. as Liaison Class Counsel. A copy of the Plaintiffs' Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=2iLWdM22 A copy of the Plaintiffs' Memorandum of Law is available at no charge at http://d.classactionreporternewsletter.com/u?f=YpjSvi4c The Plaintiffs are represented by: Hannah G. Ross, Esq. Adam Wierzbowski, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10019 Telephone: (212) 554 1400 Facsimile: (212) 554 1444 E-mail: hannah@blbglaw.com adam@blbglaw.com - and - Maya S. Saxena, Esq. Joseph E. White, III, Esq. SAXENA WHITE P.A. 5200 Town Center Circle, Suite 601 Boca Raton, FL 33486 Telephone: (561) 394 3399 Facsimile: (561) 394 3382 E-mail: msaxena@saxenawhite.com jwhite@saxenawhite.com AMERICAN OSTEOPATHIC: Responds to Class Action Filing ----------------------------------------------------- The American Osteopathic Association responded to the announcement of a class action against the organization. Adrienne White-Faines, CEO of the American Osteopathic Association, said "The lawsuit filed against the American Osteopathic Association (AOA) has not yet been served, so our ability to comment is limited. All AOA policies, including those related to board certification, have been developed by members and are designed to meet the needs of a complex healthcare environment, the growing profession of osteopathic medicine and our physician members. As the AOA assesses and reviews all policies, this policy is currently under review, including recent discussions at our House of Delegates Annual Business Meeting. AOA board certification services are legally appropriate as a benefit of membership." ASCENA RETAIL: "Rougvie" Settlement Deal Has Final Okay ------------------------------------------------------- Judge Mark A. Kearney granted the parties' joint motion for final approval of the settlement in the case captioned CAROL ROUGVIE, et al. v. ASCENA RETAIL GROUP, INC., et al., Civil Action No. 15-724 (E.D. Pa.). Under the settlement, Claims Administrator RSM shall pay from the $50.8 Million Cash Settlement Fund under the terms of the court's October 27, 2015 order: -- the claims of class members electing a cash settlement; -- up to $8 million from the settlement fund to reimburse demonstrated administrative costs and its reasonable fees and incurred but unpaid expenses; and -- the attorneys' fees and incentive awards. A full-text copy of Judge Kearney's July 29, 2016 order is available at https://is.gd/GHVPtI from Leagle.com. MELINDA MEHIGAN, FONDA KUBIAK, MARGUERITE SINKLER GILDER, CAROLINE MANSOUR, CAROL ROUGVIE, TIFFANY BOLTON, KARA BELL, Plaintiffs, represented by KEVIN E. RAPHAEL -- ker@pietragallo.com -- PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP, WILLIAM PIETRAGALLO, II -- wp@pietragallo.com -- ANTHONY J. COYNE -- acoyne@mggmlpa.com -- MANSOUR GAVIN LPA, pro hac vice, BRENDON P. FRIESEN -- bfriesen@mggmlpa.com -- MANSOUR GAVIN LPA, pro hac vice, EDWARD H. SKIPTON, III, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, EDWARD J. WESTLOW, pro hac vice, ERNEST P. MANSOUR, MANSOUR GAVIN LPA, pro hac vice, KENNETH D. MCARTHUR, JR., PIETRAGALLO GORDON ALFANO BOSICK, pro hac vice & ROBERT G. MANSOUR, pro hac vice. CAROL COWHEY, Plaintiff, represented by KEVIN E. RAPHAEL, PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP, EDWARD H. SKIPTON, III, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, EDWARD J. WESTLOW, pro hac vice & KENNETH D. MCARTHUR, JR., PIETRAGALLO GORDON ALFANO BOSICK, pro hac vice. ASCENA RETAIL GROUP, INC., Defendant, represented by EZRA DODD CHURCH -- ezra.church@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP, CHRISTOPHER JOHN MANNION -- christopher.mannion@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP & GREGORY T. PARKS -- gregory.parks@morganlewis.com -- MORGAN, LEWIS & BOCKIUS. TWEEN BRANDS, INC., Defendant, represented by DAVID D. YEAGLEY -- dyeagley@ulmer.com -- ULMER & BERNE - CLEVELAND, EZRA DODD CHURCH, MORGAN LEWIS & BOCKIUS, LLP, MICHAEL N. UNGAR -- mungar@ulmer.com -- ULMER & BERNE, CHRISTOPHER JOHN MANNION, MORGAN LEWIS & BOCKIUS LLP & GREGORY T. PARKS, MORGAN, LEWIS & BOCKIUS. DIANA AMAYA, Defendant, represented by GERARD M. MCCABE -- gmccabe@mittslaw.com -- Mitts Law, LLC. BARBARA COMLISH, KATHRYN ARTLIP, Respondents, represented by ADAM E. SCHULMAN, Competitive Enterprise Institute. KELSEY D FOLIGNO, Respondent, represented by GLENN A. MANOCHI -- gmanochi@lightmanlaw.com -- LIGHTMAN & MANOCHI. ASCENA RETAIL: Judge Lessens Attorneys' Fees and Incentive Awards ----------------------------------------------------------------- District Judge Mark A. Kearney of the Eastern District of Pennsylvania, granted in part class counsel's motion for attorneys' fees, in the case CAROL ROUGVIE, et al. v. ASCENA RETAIL GROUP, INC., et al., Civil Action No. 15-724 (E.D. Pa.) Ascena Retail Group, Inc. and Tween Brands Inc. d/b/a/ Justice Stores regularly advertised 40% off' sales but the so-called sales were actually regular everyday prices. Consumers argue this national advertising scheme fraudulently induced consumers to spend money believing they were getting a sale. The consumers sought injunctive relief and damages claiming Justice Stores violated state consumer protection statutes, administrative regulations and common law contract theories. Melinda Mehigan and Fonda Kubiak, on behalf of a putative class of New Jersey and New York consumers, sued Justice Stores asserting common law breach of contract claims and violation of consumer protection statutes. Carol Cowhey filed a similar case individually and on behalf of a putative class of Pennsylvania Justice Stores' consumers asserting common law breach of contract and claims under Pennsylvania's Unfair Trade Practice and Consumer Protection Law. Plaintiffs filed a third amended complaint seeking to certify a nationwide class, excluding only Ohio residents covered by a previously settled class action in Perez v. Tween Brands, Inc. The retailer and 8 consumers entered into several rounds of negotiations and then agreed to settle millions of claims through immediate injunctive relief and offering consumers up to $27.8 million in cash or, if they wished, a voucher to use at Justice Stores. After notice, 3.3% of the class chose either cash or a voucher. The remaining 96.7% of the class, having not filed a claim, automatically receive a voucher. The parties concede consumers will redeem approximately less than (3%) of these automatic vouchers. Based on the alleged immediate direct benefit of $50.8 million deposited with the approved claims administrator, class counsel asked for an award of over $14.1 million in attorneys' fees and a $6,000 incentive fee for each of the 8 consumer plaintiffs. Judge Kearney only awarded $5,311,470.24 in attorneys' fees and declined to award the full amount of the requested $6,000 incentive award to each plaintiff based on counsel's belated representations of their varied efforts. Six plaintiffs are entitled to an incentive fee in the range of $2,000 to $3,000 but not higher. Two plaintiffs are not entitled to an incentive fee. A copy of Judge Kearney's opinion dated July 29, 2016, is available at http://goo.gl/eOPdXffrom Leagle.com. Plaintiffs, represented by KEVIN E. RAPHAEL -- KER@Pietragallo.com -- WILLIAM PIETRAGALLO, II -- WP@Pietragallo.com -- EDWARD H. SKIPTON, III -- KENNETH D. MCARTHUR -- at PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP; ANTHONY J. COYNE -- acoyne@mggmlpa.com -- BRENDON P. FRIESEN -- bfriesen@mggmlpa.com - - ERNEST P. MANSOUR -- at MANSOUR GAVIN LPA; ROBERT G. MANSOUR; EDWARD J. WESTLOW TWEEN BRANDS, INC., Defendant represented by DAVID D. YEAGLEY -- dyeagley@ulmer.com -- MICHAEL N. UNGAR -- mungar@ulmer.com -- at ULMER & BERNE; EZRA DODD CHURCH -- ezra.church@morganlewis.com -- CHRISTOPHER JOHN MANNION -- christopher.mannion@morganlewis.com -- GREGORY T. PARKS -- gregory.parks@morganlewis.com -- at MORGAN LEWIS & BOCKIUS, LLP DIANA AMAYA, Defendant, represented by GERARD M. MCCABE -- gmccabe@mittslaw.com -- at Mitts Law, LLC STEVEN F. HELFAND, In Propria Persona, Respondent, Pro Se BARBARA COMLISH and KATHRYN ARTLIP, Respondents, represented by ADAM E. SCHULMAN, Competitive Enterprise Institute KELSEY D FOLIGNO, Respondent, represented by GLENN A. MANOCHI -- gmanochi@lightmanlaw.com -- at LIGHTMAN & MANOCHI PAMELA SWEENEY, Respondent, Pro Se ASIAN MOON: Faces "Galicia" Suit in Eastern District of New York ---------------------------------------------------------------- A lawsuit has been filed against Asian Moon of Massapequa Park, Inc. The case is styled Juan S. Galicia, individually and in behalf of all other persons similarly situated, the Plaintiff, v. Asian Moon of Massapequa Park, Inc., jointly and severally; Asian Moon Restaurant Corp., jointly and severally; and Vickie S. Li, jointly and severally, the Defendant, Case No. 2:16-cv-04498 (E.D.N.Y., Aug. 11, 2016). The Asian Moon offers Chinese, Thai & Japanese fare plus inventive sushi served in stylish, modern digs with a patio. The Plaintiff appears pro se. AT&T INCORPORATED: Faces "Muhammad" Suit in S.D. of Alabama ----------------------------------------------------------- A lawsuit has been filed against AT&T, Incorporated. The case is titled Kalim A.R. Muhammad; The Family of Kalim A.R. Muhammad; The Private Family Trust & Inheritance Contract; The Administrator of K.A.R.M. Family Trust; K.A.R.M., in his Sovereign Citizen Capacity; The Sovereign Citizens of the State of Alabama; AT&T Customers Similarly Situated and at Large; K.A.R.M., in his Class Representative Capacity of Similarly Situated Sovereign Citizens of the State of Alabama; and The Alabama State Sovereign, the Plaintiffs, v. AT&T, Incorporated, The AT&T 'Plantation Centered' Contract, AT&T Incorporated of the State of Delaware, AT&T Communications, AT&T Services, AT&T Mobility, AT&T Affiliates, AT&T Advertising, Inc., AT&T Wireless Asset Management, LLC, AT&T Network Procurement Management, LLC, AT&T Executives, and AT&T Directors of Board, the Defendant, Case No. 2:16-cv-00428 (S.D. Ala., Aug. 11, 2016). AT&T is an American multinational telecommunications corporation, headquartered at Whitacre Tower in downtown Dallas, Texas. The Plaintiffs appear pro se. The Defendants are represented by: Matthew Ryan Jackson, Esq. 11 N. Water St., Suite 23200 Mobile, AL 36602 Telephone: (251) 433 3234 E-mail: matt.jackson@arlaw.com AUDIOEYE INC: Agreement in Principle Reached in Securities Action ----------------------------------------------------------------- Audioeye, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company announced on August 2, 2016, that it reached an agreement in principle to settle the consolidated securities class action lawsuit pending in the United States District Court for the District of Arizona, titled In re AudioEye, Inc. Sec. Litig. The consolidated case was brought against the Company and two former officers following the restatement of the Company's 2015 quarterly financial statements. The agreement was reached in connection with a voluntary mediation led by Bob Meyer, a mediator with JAMS in Los Angeles. AVEO GROUP: Law Firm Mulls Class Action Over Veronica Gardens ------------------------------------------------------------- Adele Ferguson, writing for The Sydney Morning Herald, reports that according to its promotional materials, Aveo Veronica Gardens is "an enclave of contentedness". But the vibe at a meeting of its residents on Aug. 1 was anything but content. Law firm Levitt Robinson was invited to address dozens of residents, including a few from a neighboring Aveo village, about management contracts and service agreements signed with the listed retirement village operator Aveo Group. They are offering free advice on service agreements. It follows an explosive submission into a parliamentary inquiry into the Victorian retirement housing sector, signed by 18 Veronica Gardens residents in June. The submission, hand delivered by one of the residents, John Lander, a retired ambassador for Australia, says "many of us feel trapped in a situation of financial exploitation that we cannot escape". It says "I, and many in other Aveo villages, bought freehold independent living units so that we could be independent, but find that our financial independence has been removed. "Aveo so severely restricts freehold rights that they make it virtually impossible to sell through or to anyone but Aveo. Other real estate agents have described my property as 'unsaleable' on the open market, because of the restrictions imposed by Aveo through its claimed status as village manager." Aveo, formerly known as FKP, is one of the largest listed owners and operators of retirement villages in Australia. It has a market capitalization of almost $2 billion and its major shareholder is the Malaysian-based Mulpha. According to broking house Morgans, Aveo is on track to lift net profit a massive 57 per cent for 2016 "with risk to the upside if non-retirement sales/margins momentum has continued". But if some of the residents of Veronica Gardens have their way Aveo could face a legal headache. Stewart Levitt -- SLevitt@levittrobinson.com -- a partner at Levitt Robinson, says he has looked at eight separate contracts from individual residents. He alleges misleading and deceptive conduct and says if enough residents are interested in taking action he will launch a class action that would be funded by a US-based litigation funder. Mr. Levitt's immediate interest is with Veronica Gardens, which has 57 units, but he hasn't ruled out widening the legal action to other Aveo villages. Allegations include residents can lose the right to reside in the village if they become bankrupt, if their health deteriorates to the point where they require care not offered by Aveo at the village, if they vacate their unit for more than one month without Aveo's permission, if they mortgage their unit, or, in the case of resident Geoff Richards, if the "owner" dies, his successor loses the right to continue to reside in the village, even if it is a de facto partner of 55 years. Mr. Richards, a retired university lecturer with a string of credentials, says he has received letters asking him to leave the village. Another resident from Sackville Grange village told the meeting that he was cutting his losses because the capital gain on the unit he had bought was so small. He said when he sold his apartment Aveo took 35 per cent. Other concerns -- and there are many -- include a general clause that says a resident can lose the right to reside in the village if they cease being an "eligible resident". They argue that if a resident loses that right, they have to vacate the property and pay a Deferred Management Fee, generally 30 per cent of the value of the property, plus 3 per cent for "capital maintenance" and a 3 per cent agent's commission to Aveo Real Estate Pty, totaling 36 per cent. Aveo says all the contracts of its residents at Veronica Gardens - - and all its villages -- are compliant with the Retirement Villages Act 1986 and the Owners Corporation Act 2006. It says in relation to "eligibility", eligible residents are those that can live independently either on their own or with limited care or other services. A spokesman says the historical contract arrangements for many residents can be confusing. "This is precisely why in May 2015 we introduced a new contract regime, what we call 'The Aveo Way'. In essence, this contract regime discloses upfront all costs, has a change of mind assurance, and provides less exposure to the volatility of the real estate market by guaranteeing the sale of the residence with no sales commission or marketing costs." He says all pre-existing contracts (pre-Aveo Way) remain in place." But not everyone is so sure. AVON PRODUCTS: Settlement in Shareholders' Suit Remains Pending --------------------------------------------------------------- Avon Products, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the court has not yet entered a final judgment approving the settlement in a class action lawsuit. On July 6, 2011, a purported shareholder's class action complaint (City of Brockton Retirement System v. Avon Products, Inc., et al., No. 11-CIV-4665) was filed in the United States District Court for the Southern District of New York against the Company and certain present or former officers and/or directors of the Company. On September 29, 2011, the Court appointed LBBW Asset Management Investmentgesellschaft mbH and SGSS Deutschland Kapitalanlagegesellschaft mbH as lead plaintiffs and Motley Rice LLC as lead counsel. Lead plaintiffs filed an amended complaint, and the defendants moved to dismiss the amended complaint on June 14, 2012. On September 29, 2014, the Court granted the defendants' motion to dismiss and also granted the plaintiffs leave to amend their complaint. On October 24, 2014, plaintiffs filed their second amended complaint on behalf of a purported class consisting of all persons or entities who purchased or otherwise acquired shares of Avon's common stock from July 31, 2006 through and including October 26, 2011. The second amended complaint names as defendants the Company and two individuals and asserts violations of Sections 10(b) and 20(a) of the Exchange Act based on allegedly false or misleading statements and omissions with respect to, among other things, the Company's compliance with the FCPA, including the adequacy of the Company's internal controls. Plaintiffs seek compensatory damages and declaratory, injunctive, and other equitable relief. Defendants moved to dismiss the Second Amended Complaint on November 21, 2014. The parties have reached an agreement on a settlement of this class action. The terms of settlement include releases by members of the class of claims against the Company and the individual defendants and payment of $62 million. Under the terms of the settlement, approximately $60 million of the settlement was paid by the Company's insurers and approximately $2 million was paid by the Company (which represented the remaining deductible under the Company's applicable insurance policy) into escrow. On August 21, 2015, the court granted preliminary approval of the settlement, and on December 1, 2015 the court held a hearing to consider final approval of the settlement and expressed an intent to grant final approval. However, the court has not yet entered a final judgment approving the settlement. If the settlement is not approved by the court, or is otherwise terminated before it is finalized, the Company will be unable to predict the outcome of this matter. Furthermore, in that event, it is reasonably possible that the Company may incur a loss in connection with this matter, which the Company is unable to reasonably estimate. AVON PRODUCTS: Oct. 11 Hearing on ERISA Litigation Settlement ------------------------------------------------------------- Avon Products, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the court scheduled a hearing to consider final approval for October 11, 2016, of the settlement in the ERISA Litigation. Between December 23, 2014 and March 12, 2015, two purported class actions were filed in the United States District Court for the Southern District of New York -- Poovathur v. Avon Products, Inc., et al. (No. 14-CV-10083) and McCoy et al. v. Avon Products, Inc., et al. (No. 15-CV-01828) asserting claims under the Employee Retirement Income Security Act ("ERISA") against the Company, the Plan's administrator, benefits board and investment committee, and certain individuals alleged to have served as Plan fiduciaries. On April 8, 2015, the Court consolidated the two actions and recaptioned the consolidated case as In re 2014 Avon Products, Inc. ERISA Litigation, (No. 14-CV-10083). On May 8, 2015, plaintiffs filed a consolidated complaint, asserting claims for alleged breach of fiduciary duty and failure to monitor under ERISA on behalf of a purported class of participants in and beneficiaries of the Plan who invested in and/or held shares of the Avon Common Stock Fund between July 31, 2006 and May 1, 2014 and between December 14, 2011 and the present. Plaintiffs seek, inter alia, certain monetary relief, damages, and declaratory, injunctive and other equitable relief. On July 9, 2015, Defendants moved to dismiss the consolidated complaint. The parties have reached an agreement on a settlement of this class action. The terms of settlement include releases by members of the class of claims against the Company and the individual defendants and payment of approximately $6 million. Under the terms of the settlement, approximately $5 million of the settlement will be paid by the Company's insurer and approximately $1 million will be paid by the Company (which represents the remaining deductible under the Company's applicable insurance policy). On June 7, 2016, the court granted preliminary approval of the settlement and scheduled a hearing to consider final approval for October 11, 2016. If the settlement is not approved by the court, or is otherwise terminated before it is finalized, the Company will be unable to predict the outcome of this matter. Furthermore, in that event, it is reasonably possible that the Company may incur a loss in connection with this matter, which the Company is unable to reasonably estimate. BAYLOR COLLEGE: Aguocha-Ohakweh Seeks to Represent Victims Class ---------------------------------------------------------------- The Plaintiffs in the lawsuit styled Emily-Jean Aguocha-Ohakweh, et al. v. Baylor College of Medicine, Harris County Hospital District, et al., Case No. 4:16-cv-00903 (S.D. Tex.), ask the Court to issue an order deeming the Plaintiffs as class representatives for this class definition: i. All harmed victims of 14th Amendment U.S. Constitutional Rights deprivations or subjections to deprivation of such rights in the course of providing health care services in Texas and by persons or entities acting under the color of law; ii. All harmed victims of conspiracy for the purpose of impeding, hindering, obstructing, or defeating in any manner, the due course of justice in any State or Territory with the United States with intent to deny to any citizen the equal protection of the laws, and said wrongful acts and resulting injury occurred in the course of providing health care services in Texas; and iii. All harmed victims of any conspiracy or any act in furtherance of the object of such conspiracy, to either directly or indirectly deprive any persons of the equal protection of the laws, or of equal privileges and immunities under the whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of Texas, and said wrongful acts and resulting injury occurred in the course of providing health care services. In addition, the Plaintiffs ask that Ernest C. Adimora-Nweke, Jr., Esq. of Adimora Law Firm, PLLC, and his firm's designated co- counsel and of counsel (if any) be appointed as Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=BVkDxGRx The Plaintiffs are represented by: Ernest Adimora-Nweke, Jr., Esq. ADIMORA LAW FIRM 5100 Westheimer Rd., Suite 200 Telephone: (281) 940-5170 E-mail: Ernest@adimoralaw.com Defendant Harris County Hospital District d/b/a Harris Health System d/b/a Ben Taub Hospital is represented by: Ebon Swofford, Esq. ASSISTANT COUNTY ATTORNEY L. Sara Thomas, Esq. DEPUTY MANAGING ATTORNEY 2525 Holly Hall, Suite 190 Houston, TX 77054 Telephone: (713) 566-6559 Facsimile: (713) 566-6558 E-mail: Ebon.Swofford@harrishealth.org Sara.thomas2@harrishealth.org Defendant Baylor College of Medicine and its employee defendants are represented by: Jeffrey B. McClure, Esq. Laura Trenaman, Esq. ANDREWS KURTH LLP 600 Travis Street, Suite 4200 Houston, TX 77002 Telephone: (713) 220-4200 Telecopier: (713) 220-4285 E-mail: jeffmcclure@andrewskurth.com ltrenaman@andrewskurth.com Defendant John Michael Halphen is represented by: John R. Strawn Jr., Esq. Andrew L. Pickens, Esq. STRAWN PICKENS LLP Pennzoil Place, South Tower 711 Louisiana, Suite 1850 Houston, TX 77002 Telephone: (713) 659-9600 Facsimile: (713) 659-9601 E-mail: jstrawn@strawnpickens.com apickens@strawnpickens.com BC HYDRO: BC Court Refuses to Certify Smart Meter Class Action -------------------------------------------------------------- Tristram Mallett, Esq. -- tmallett@osler.com -- Christopher Naudie, Esq. -- choward@pierceatwood.com -- and Evan Thomas, Esq., of Osler Hoskin & Harcourt LLP, in an article for Lexology, report that the BC Supreme Court's recent refusal to certify a class action re-affirms that although the evidentiary threshold for certifying general causation as a common issue is not high, it is also not non-existent. Background In a 2013 decision, the Supreme Court of Canada rejected the argument that courts must take a "rigorous" approach to class certification and confirmed that plaintiffs need only show a "credible" or "plausible" methodology to try issues of loss or harm on a class-wide basis in price-fixing class actions. Lower courts in BC and Alberta have subsequently extended the requirement to show a "plausible methodology" to causation issues in product liability and brokerage class actions. In particular, according to the BC Court of Appeal, there is no requirement for a "gold standard" study proving a causal connection at the certification stage. The Smart Meters Class Action Davis v BC Hydro concerned the introduction of so-called "smart meters" by BC Hydro. In 2011, BC Hydro began replacing existing meters with new "smart meters" that communicated wirelessly. The plaintiffs asserted that the radiofrequency (RF) emissions from smart meters caused biological harm and claimed that legislation making smart meters mandatory infringed the Charter of Rights. Although the allegation that RF emissions were harmful clearly raised a complex factual issue about the biological effects of RF emissions on humans, the plaintiffs apparently made a tactical decision not to file expert evidence as to how the plaintiffs' allegations could be proven. Instead, the plaintiffs attached copies of certain material asserting the potential adverse health effects of RF emissions and smart meters. In the plaintiffs' submission, it was enough for the plaintiffs to show only the existence of such material to establish a basis in fact for a methodology to prove the proposed common issues on a class-wide basis. In response, the defendant filed two expert reports describing the multitude of sources of RF emissions, including mobile phones, baby monitors, radios and microwave ovens. The thrust of the defendant's expert evidence was that a class member's exposure to RF emissions from a smart meter would depend on a variety of factors, including the distance from the smart meter, the presence of other sources of RF emissions, and the existence of walls or other barriers between the meter and the individual. The defendant's expert concluded that there were millions of exposure scenarios to be considered and a large variation in RF exposure levels. The court found that the defendant's expert evidence was unchallenged because the plaintiffs' evidence was not admissible to show a methodology by which the biological effects of smart meter RF emissions could be plausibly proved on a class-wide basis. The plaintiffs therefore failed to meet their evidentiary burden to show there were common issues. Indeed, the certification motion judge described the failure to lead admissible evidence as a "fundamental problem for the plaintiffs". Key Takeaway The BC courts have issued a series of decisions applying the Supreme Court's "credible or plausible" methodology requirement to cases involving allegedly harmful products. At this stage the takeaway from these cases can be succinctly summarized as follows: some evidence of a methodology showing the potential harmfulness of products is required at certification, but it need not rise to the level of a "gold standard" medical study. BIOLOGICAL RESOURCE: "Body Snatching" Victims File Class Action --------------------------------------------------------------- The Daily Hornet reports that the family of a man whose dead body was cut up and sold for profit has filed a class action lawsuit against Biological Resource Center. The lawsuit was filed by the children of William E. Perkins, a man from Illinois who died of a stroke in November 2013. His daughter says she signed a form that donated his body to science. It assured her the remains would be treated with "dignity and respect" and whatever was not used would be cremated. The family received cremated ashes in December 2013. However, in April 2015, the family was contacted by the FBI and notified of a criminal investigation into Biological Resource Center. The case started in Detroit, when FBI agents raided a company called International Biological. They found un-embalmed body parts from thousands of different people -- including arms, legs, and heads -- being kept on ice so they would be fresh for the black market. The FBI said they found body parts belonging to William Perkins during a search. The family now believes the ashes they received did not actually belong to their father. In May 2015, the family filed a class action lawsuit in Cook County, Illinois - Case No. 2015-CH-08513. The class action names several "organ donor" companies. They are all accused of illegally selling human bodies for profit and lying to victims and family members about what they were doing. Companies named in the class action: -- Biological Resource Center (Phoenix, Arizona) -- Biological Resource Center of Illinois (Rosemont/Schiller Park, Illinois) -- International Biological, Inc. (Detroit, Michigan) -- Arthroscopy Association of North America (Schiller Park, Illinois) -- Anatomical Service, Inc. (Schiller Park, Illinois) -- Waukegan Hospice Corp., Vista Hospice, Mercy Hospital and Medical Center (Illinois) Stephen Gore, the owner of Biological Resource Center, pled guilty to a Class III felony in October 2015. He admitted selling contaminated human tissue and harvesting body parts against the wishes of donors. The class action was filed by Kenneth T. Goldstien and Clinton A. Krislov of Krislov & Associated, Ltd., in Chicago, Illinois. BMW OF NORTH AMERICA: Settlement Deal in "Skeen" Has Final Okay --------------------------------------------------------------- In the case captioned JOSHUA SKEEN and LAURIE FREEMAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. BMW OF NORTH AMERICA, LLC, a Delaware limited liability company; BMW (U.S.) HOLDING CORP., a Delaware corporation; and BAYERISCHE MOTORENWERK AKTIENGESELLSCHAFT, a foreign corporation, Defendants, Civ. No. 2:13-cv-1531-WHW-CLW (D.N.J.), Judge William H. Walls granted final certification of the settlement class, approved the settlement, and granted in part the plaintiffs' motion for attorneys' fees and expenses. The class action arose from alleged defects in the MINI Cooper, a line of vehicles produced by the defendants BMW of North America, LLC, BMW (U.S.) Holding Corp., and Bayerische Motorenwerk Aktiengesellschaft. Under the settlement, the defendants have agreed to provide N14 Class members with four primary types of relief, as follows: (1) N14 Class Vehicles will receive a warranty extension for the timing-chain tensioner and timing chain for seven years or 100,000 miles from the date when the vehicle was first placed into service, whichever comes first, subject to certain exceptions. (2) N14 Class members who submit claims by the relevant deadlines are entitled to reimbursement for out-of- pocket expenses incurred before the effective settlement date for repair and/or replacement of the timing chain and/or timing-chain tensioner, subject to certain limitations. Class members are entitled to 100% of costs incurred at authorized MINI dealers and up to $120 for timing-chain tensioners and $850 for timing chains repaired or replaced at independent service centers. (3) N14 Class members who submit timely claims are entitled to reimbursement for up to $4,500 in out- of-pocket expenses incurred before the effective settlement date for repair and/or replacement of an engine because of timing-chain tensioner and/or timing chain failure, subject to discounts based on mileage and the amount of time since their vehicle was first placed into service, as well as certain other limitations. (4) N14 Class members who submit timely claims are entitled to compensation of up to $2,250 if they had to sell their vehicle at a loss before the effective settlement date due to an unrepaired damaged or failed engine caused by timing-chain tensioner and/or timing chain failure, again subject to discounts based on mileage and the time since their vehicle was first placed into service, as well as certain other limitations. Judge Walls also granted in part the plaintiffs' motion for an award of attorneys' fees and expenses, awarding the plaintiffs a total of $2,100,000 in attorneys' fees and expenses and service awards of $4,000 each for the 18 class representatives. A full-text copy of Judge Walls's July 26, 2016 order is available at https://is.gd/P9mZML from Leagle.com. JOSHUA SKEEN, LAURIE FREEMAN, Plaintiffs, represented by JEFFREY ALAN KONCIUS -- koncius@kbla.com -- Kiesel Law LLP & WILLIAM J. PINILIS -- wpinilis@consumerfraudlawyer.com -- PINILIS HALPERN. Scott Lamb, Gina Romaggi, Emmanuel Nomikos, Plaintiffs, represented by WILLIAM J. PINILIS, PINILIS HALPERN. PATRICIA CURRAN, Plaintiff Consolidated, represented by BRYAN L. CLOBES -- bclobes@caffertyclobes.com -- CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP & WILLIAM J. PINILIS, PINILIS HALPERN. BMW OF NORTH AMERICA, LLC, BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, Defendants, represented by CHRISTOPHER J. DALTON -- christopher.dalton@bipc.com -- BUCHANAN, INGERSOLL & ROONEY, PC, ROSEMARY JOAN BRUNO -- rosemary.bruno@bipc.com -- BUCHANAN, INGERSOLL & ROONEY, PC & DANIEL ZEV RIVLIN -- daniel.rivlin@bipc.com -- BUCHANAN INGERSOLL & ROONEY PC. BMW (US) HOLDING CORP., Defendant, represented by CHRISTOPHER J. DALTON, BUCHANAN, INGERSOLL & ROONEY, PC & ROSEMARY JOAN BRUNO, BUCHANAN, INGERSOLL & ROONEY, PC. BOARDWALK AUTO: Accused by "Rashid" Suit of Illegal Termination --------------------------------------------------------------- DJIBRILL RASHID v. BOARDWALK AUTO CENTER, INC., a California Corporation dba BOARDWALK AUTO MALL; and DOES 1 through 20, Inclusive, Case No. 16CIV00854 (Cal. Super. Ct., San Mateo Cty., August 10, 2016), is brought over alleged wrongful termination and retaliation pursuant to the California Labor Code. Boardwalk is a business entity incorporated in the state of California. Boardwalk is authorized and is doing business in the County of San Mateo, California. Boardwalk sells automobiles and arranges for automobile financing. The Plaintiff is represented by: Marcus Jackson, Esq. MARCUS JACKSON, ATTORNEY AT LAW 41593 Winchester Road, Suite 200 Temecula, CA 92590 Telephone: (951) 375-4624 Facsimile: (951) 375-4625 E-mail: marcus@jacksonlitigation.com - and - Vincent D. Howard, Esq. Kim L. Anglin, Esq. VINCENT D. HOWARD & ASSOCIATES, P.C. 2099 S. State College Blvd., Suite 600 Anaheim, CA 92806 Telephone: (800) 872-5925 Facsimile: (888) 533-7310 E-mail: vhoward@howardlawpc.com kanglin@vdhoward.com BOEHRINGER INGELHEIM: Sued in Super. Ct. Over Pradaxa Safety -------------------------------------------------------------- A lawsuit has been filed against Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim International GmbH, in Connecticut Superior Court, Hartford Judicial District. The case is DOROTHY JOHNSON AND ANDER JOHNSON, and others similarly situated, the Plaintiffs, v. Boehringer Ingelheim Pharmaceuticals, Inc.; and Boehringer Ingelheim International Gmbh, the Defendants. The lawsuit seeks compensatory, consequential and punitive damages, as a result of Defendants' reckless disregard for safety of patients, to whom Pradaxa (TM) was promoted and sold for use, and as a direct and proximate consequence of Defendants' reckless disregard for patient safety, in violations of the Connecticut Products Liability Act. According to the complaint, the Defendants negligently designed and formulated Pradaxa (TM) and its packaging, labeling, prescribing information and patient medication guide which rendered Pradaxa (TM) defective. The Defendants were engaged in the business of designing, licensing, manufacturing, distributing, selling, marketing, and/or introducing into interstate commerce, either directly or indirectly through third parties or related entities, the prescription anticoagulant drug sold under the name Pradaxa (TM), throughout the State of Connecticut. Pradaxa (TM) helps to prevent platelets in blood from sticking together and forming a blood clot. Plaintiff's Counsel: Neal L. Moskow, Esq. URY & MOSKOW, LLC 833 Black Rock Turnpike Fairfield, CT 06825 Telephone (203) 610 6393 Facsimile (203) 610 6399 E-mail: neal@urymoskow.com - and - Matthew R. McCarley, Esq. Fears Nachawati, PLLC 4925 Greenville Avenue, Suite 715 Dallas, TX 75206 Telephone: (214) 890 0711 Facsimile: (214) 890 0712 E-mail: mccarley@fnlawfirm.com BOLLARE INC: "Greene" Suit Seeks Unpaid OT Pay Under Labor Code --------------------------------------------------------------- SARAH GREENE, an individual, the Plaintiff, v. BOLLARE, INC., a California Corporation; and DOES 1- 100, inclusive, the Defendants, Case No. BC629667 (Cal. Super. Ct. Aug. 5, 2016), seeks to recover unpaid overtime wages, statutory penalties, interest, costs, and attorney's fees, and for injunctive relief pursuant to Labor Code. The Plaintiff alleges that Defendants and each of them failed to provide Plaintiff with: (1) proper payment of overtime wages due to her; (2) uninterrupted meal periods as required by law and regulation; (3) uninterrupted rest periods as required by law and regulation; and (4) complete written statements to Plaintiff itemizing the precise number of regular and overtime hours she labored during each pay period as well the applicable rate of pay for the regular and overtime hours labored in addition to lawful deductions and other withholdings, otherwise known as pay stubs. Bollare is a bi-coastally headquartered, full-service, beauty, fashion and lifestyle public relations firm. The Plaintiff is represented by: Thomas M. Lee, Esq. LEE LAW OFFICES, APLC 3435 Wilshire Blvd Suite 2400 Los Angeles, CA 90010 Telephone: (213) 251 5533 Facsimile: (213) 251 5534 E-mail: leethomas.esq@gmail.com - and - Barry G. Florence, Esq. LAW OFFICES OF BARRY G. FLORENCE 3435 Wilshire Blvd., Suite 2000 Los Angeles, CA 90010 Telephone: (213) 232 4969 Facsimile: (213) 232 4890 E-mail: bgf@bgflawoffices.com BORGATA CASINO: Players Lose Appeal in "Chipgate" Class Action -------------------------------------------------------------- Alan Graham, writing for PokerNews Report, that Borgata Players attempting to recover losses from the opening event of the 2014 Borgata Winter Open have lost their appeal against the Borgata Casino and NJDGE. In January 2014, the $2 million guaranteed opening event of the Borgata Winter Open was suspended with just 27 players remaining when it was discovered that Christian Lusardi had introduced 800,000 worth of counterfeit chips into play during Day 1B. Mr. Lusardi was arrested and charged with counterfeiting, and also with criminal mischief after he tried to flush remaining counterfeit chips down the toilet of his hotel room. In October last year, Mr. Lusardi was sentenced to five years for his role in the "Chipgate" scandal. An investigation into the fraud by the Borgata Casino and New Jersey Department of Gaming Enforcement (NJDGE) resulted in non- cashing players having their buy-ins returned if it was considered they had been impacted by Mr. Lusardi's cheating. The remaining 27 players left in the tournament had the remaining prize money equally distributed between them. Not everybody was happy with the outcome. A class action lawsuit filed on behalf of New Jersey player Jacob Musterel alleged that the Casino had allowed a rigged gaming event to take place by failing to have adequate security in place and ignoring players' suspicions about "off-colour" counterfeit chips at an early stage of the event. Mr. Musterel claimed that he and the other 4,284 players that had entered the tournament were entitled not only to a refund of their $560 buy-ins, but also compensation for their travel expenses and hotel accommodation. It was also claimed that the failure of the Borgata to adequately police the event had deprived the players of the opportunity of a big win. Bruce LiCausi -- the attorney representing Musterel et al -- commented at the time that this was the cleanest claims we've had, adding that players had attended the Borgata Winter Open expecting a carefully supervised event. However, Mr. LiCausi's optimism was dented earlier this year when Marina District Finance Co. Inc. -- the Borgata's owners -- won a summary judgment to dismiss the case. The players appealed the summary judgment on the grounds that Mr. Lusardi's inflated stack had given him a better opportunity to eliminate players. They claimed that this leverage had a ripple event throughout the whole tournament. An appeal was also lodged against the dismissal of a civil claim against the NJDGE for negligently upholding the Borgata's distribution of the prize money. Both appeals were consolidated into one case and heard by the Appellate Division of the New Jersey Superior Court on Aug. 1. At the end of the hearing, Judges Jack Sabatino, Allison Accurso and Amy O'Connor found that the Borgata Casino and NJDGE had done everything possible to provide a fair and abrupt resolution to a regrettable event. The panel of judges upheld the dismissal of the class action against the Borgata Casino and the civil action against the NJDGE. The judges noted that every player potentially affected Mr. by Mr. Lusardi's cheating had already got their money back, that the Borgata had acted fairly in its distribution of the prize money and that the NJDGE's endorsement of the Casino's actions was appropriate. With regard to the loss of opportunity for a big win, the judges said: Because poker is a game of chance, none of these plaintiffs could predict or quantify his chances of winning in a meaningful and reliable way. There is simply no fairly calculable award that would put these plaintiffs in as good a position as if performance had been rendered, and thus no basis for an award of compensatory damages. BREATHLESS INC: Court Grants Bid for Summary Judgment in "Moon" --------------------------------------------------------------- Judge Susan D. Wigenton granted the defendant's motion for summary judgment in the case captioned ALISSA MOON, individually and on behalf of all others similarly situated, Plaintiff, v. BREATHLESS, INC. a/k/a VISION FOOD & SPIRITS d/b/a BREATHLESS MEN'S CLUB, Defendant, Civil Action No. 15-06297(SDW)(LDW) (D.N.J.). A full-text copy of Judge Wigenton's July 29, 2016 opinion is available at https://is.gd/8lO0lU from Leagle.com. Alissa Moon commenced the putative collective and class action against Breathless, Inc., owner and operator of Breathless Men's Club, an adult nightclub in Rahway, New Jersey, on August 19, 2015. Moon sought relief from Breathless, individually and on behalf of all others similarly situated, under the Fair Labor Standards Act (FLSA), the New Jersey Wage Payment Law (NJWPL), and the New Jersey Wage and Hour Law (NJWHL). ALISSA MOON, YASMEEN DAVIS, Plaintiffs, represented by JEREMY EDWARD ABAY -- jabay@sackslaw.com -- Sacks Weston Diamond, LLC. BREATHLESS, INC, Defendant, represented by MARC J. GROSS -- mgross@greenbaumlaw.com -- GREENBAUM, ROWE, SMITH & DAVIS, LLP & JUSTIN P. KOLBENSCHLAG -- jkolbenschlag@greenbaumlaw.com -- GREENBAUM ROWE SMITH & DAVIS LLP. BRENDAN STANTON: Certification of Class Sought in "Ramoutar" Suit ----------------------------------------------------------------- Dale Ramoutar, one of the Plaintiffs, in the lawsuit captioned DALE RAMOUTAR and JOHN WOJCIECHOWICZ v. BRENDAN STANTON, INC., Case No. 2:15-cv-04941-ER (E.D. Pa.), moves for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Plaintiff also asks the Court to appoint Woodley & McGillivary LLP to act as class counsel. The Plaintiff further asks the Court to direct the (i) Defendants to provide the addresses and social security numbers of the potential Rule 23 class members within 14 calendar days, and (ii) parties to submit a joint proposed class notice within 21 calendar days. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=uGhbZ2LK The Plaintiff is represented by: Gregory K. McGillivary, Esq. Molly A. Elkin, Esq. Diana J. Nobile, Esq. Sarah M. Block, Esq. WOODLEY & McGILLIVARY LLP 1101 Vermont Ave., N.W., Suite 1000 Washington, DC 20005 Telephone: (202) 833-8855 E-mail: gkm@wmlaborlaw.com mae@wmlaborlaw.com djn@wmlaborlaw.com smb@wmlaborlaw.com - and - Ryan Allen Hancock, Esq. WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th Floor Philadelphia, PA 19103 Telephone: (202) 833-8855 E-mail: rhancock@wwdlaw.com The Defendant is represented by: Jonathan Landesman, Esq. COHEN SEGLIAS PALLAS GREENHALL & FURMAN, P.C. United Plaza, 19th Floor 30 South 17th Street Philadelphia, PA 19103 E-mail: jlandesman@cohenseglias.com BRIDGEPOINT EDUCATION: Court Granted Final Approval of Settlement ----------------------------------------------------------------- Bridgepoint Education, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that a court has granted final approval of the settlement of the consolidated securities class action. On July 13, 2012, a securities class action complaint was filed in the U.S. District Court for the Southern District of California by Donald K. Franke naming the Company, Andrew Clark, Daniel Devine and Jane McAuliffe as defendants for allegedly making false and materially misleading statements regarding the Company's business and financial results, specifically the concealment of accreditation problems at Ashford University. The complaint asserted a putative class period stemming from May 3, 2011 to July 6, 2012. A substantially similar complaint was also filed in the same court by Luke Sacharczyk on July 17, 2012 making similar allegations against the Company, Andrew Clark and Daniel Devine. The Sacharczyk complaint asserted a putative class period stemming from May 3, 2011 to July 12, 2012. On July 26, 2012, another purported securities class action complaint was filed in the same court by David Stein against the same defendants based upon the same general set of allegations and class period. The complaints alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 10b-5 promulgated thereunder and sought unspecified monetary relief, interest and attorneys' fees. On October 22, 2012, the Sacharczyk and Stein actions were consolidated with the Franke action and the Court appointed the City of Atlanta General Employees' Pension Fund and the Teamsters Local 677 Health Services & Insurance Plan as lead plaintiffs. A consolidated complaint was filed on December 21, 2012 and the Company filed a motion to dismiss on February 19, 2013. On September 13, 2013, the Court granted the motion to dismiss with leave to amend for alleged misrepresentations relating to Ashford University's quality of education, the WSCUC accreditation process and the Company's financial forecasts. The Court denied the motion to dismiss for alleged misrepresentations concerning Ashford University's persistence rates. Following the conclusion of discovery, the parties entered into an agreement to settle the litigation for $15.5 million, which was recorded by the Company during the third quarter of 2015 and funded by the Company's insurance carriers in the first quarter of 2016. The settlement was granted preliminary approval by the Court on December 14, 2015, proceeded through the shareholder claims administration process, and was granted final approval by the Court on April 25, 2016. BRIDGEPOINT EDUCATION: Court Granted Leave to Amended Complaint --------------------------------------------------------------- Bridgepoint Education, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that in the case, Zamir v. Bridgepoint Education, Inc., et al., the Court has granted the motions to dismiss and granted plaintiff leave to file an amended complaint within 30 days. On February 24, 2015, a securities class action complaint was filed in the U.S. District Court for the Southern District of California by Nelda Zamir naming the Company, Andrew Clark and Daniel Devine as defendants. The complaint asserts violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, claiming that the defendants made false and materially misleading statements and failed to disclose material adverse facts regarding the Company's business, operations and prospects, specifically regarding the Company's improper application of revenue recognition methodology to assess collectability of funds owed by students. The complaint asserts a putative class period stemming from August 7, 2012 to May 30, 2014 and seeks unspecified monetary relief, interest and attorneys' fees. On July 15, 2015, the Court granted plaintiff's motion for appointment as lead plaintiff and for appointment of lead counsel. On September 18, 2015, the plaintiff filed a substantially similar amended complaint that asserts a putative class period stemming from March 12, 2013 to May 30, 2014. The amended complaint also names Patrick Hackett, Adarsh Sarma, Warburg Pincus & Co., Warburg Pincus LLC, Warburg Pincus Partners LLC, and Warburg Pincus Private Equity VIII, L.P. as additional defendants. On November 24, 2015, all defendants filed motions to dismiss. On July 25, 2016, the Court granted the motions to dismiss and granted plaintiff leave to file an amended complaint within 30 days. "The outcome of this legal proceeding is uncertain at this point because of the many questions of fact and law that may arise. Based on information available to the Company at present, it cannot reasonably estimate a range of loss for this action. Accordingly, the Company has not accrued any liability associated with this action," the Company said. CAPITAL ONE: Hedman Seeks Certification of Classes -------------------------------------------------- In the lawsuit entitled MICHELLE HEDMAN, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. CAPITAL ONE BANK (USA), N.A., the Defendant, Case No. 16-cv-1079 (E.D. Wis.), Michelle Hedman moves the Court to certify classes. The Plaintiff further requests that the Court both stay the motion for class certification and to grant Plaintiff (and Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ekghQTik The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com CASTLIGHT HEALTH: October 28 Settlement Fairness Hearing Set ------------------------------------------------------------ Robbins Geller Rudman & Dowd LLP and Labaton Sucharow LLP on Aug. 11 issued a statement regarding the Castlight Health, Inc. Shareholder Litigation: SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO In re CASTLIGHT HEALTH, INC. SHAREHOLDER LITIGATION Lead Case No. CIV533203 CLASS ACTION Assigned for All Purposes to the Honorable Marie S. Weiner Dept. 2 Date Action Filed: 04/02/15 This Document Relates To: ALL ACTIONS. SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION TO: ALL PERSONS OR ENTITIES ("PERSONS") THAT PURCHASED CASTLIGHT HEALTH, INC. ("CASTLIGHT" OR THE "COMPANY") CLASS B COMMON STOCK PURSUANT OR TRACEABLE TO THE COMPANY'S REGISTRATION STATEMENT IN CONNECTION WITH THE COMPANY'S MARCH 14, 2014 INITIAL PUBLIC OFFERING ON OR BEFORE SEPTEMBER 10, 2014 THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOU ARE HEREBY NOTIFIED that a hearing will be held on October 28, 2016, at 9:00 a.m., before the Honorable Marie S. Weiner at the Superior Court of California, County of San Mateo, Department 2, Courtroom 2E, 400 County Center, Redwood City, CA 94063, to determine whether: (1) the proposed settlement as set forth in the Stipulation of Settlement dated June 2, 2016 ("Stipulation") of the above-captioned action ("Litigation") for $9,500,000 in cash should be approved by the Court as fair, reasonable, and adequate; (2) to award Plaintiffs' Counsel attorneys' fees and expenses out of the Settlement Fund (as defined in the Notice of Proposed Settlement of Class Action ("Notice"), which is discussed below); (3) to pay Plaintiffs for their time and expenses they incurred in representing the Class in this Litigation out of the Settlement Fund; and (4) the Plan of Allocation should be approved by the Court as fair, reasonable, and adequate. This Litigation is a securities class action brought on behalf of those Persons who purchased the Class B common stock of Castlight pursuant or traceable to the Registration Statement issued in connection with the Company's March 14, 2014 initial public offering ("IPO") on or before September 10, 2014 ("Class Members"), against Castlight, certain of its key executives and directors, and underwriters of Castlight's IPO (collectively, "Defendants") for allegedly misstating and omitting material facts from the Registration Statement filed with the SEC in connection with the IPO, including, among other things: allegedly failing to disclose in the Registration Statement that, at the time of the IPO, Castlight was experiencing implementation delays, increased expenses and inability to maintain pricing on its principal product. Defendants deny all of Plaintiffs' allegations. IF YOU PURCHASED CASTLIGHT CLASS B COMMON STOCK PURSUANT OR TRACEABLE TO THE COMPANY'S REGISTRATION STATEMENT FILED WITH THE SEC IN CONNECTION WITH THE COMPANY'S MARCH 14, 2014 IPO ON OR BEFORE SEPTEMBER 10, 2014, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. To share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim by mail (postmarked no later than November 1, 2016) or electronically no later than November 1, 2016. Your failure to submit your Proof of Claim by November 1, 2016, will subject your claim to rejection and preclude your receiving any of the recovery in connection with the settlement of this Litigation. If you are a Member of the Class and do not request exclusion, you will be bound by the settlement and any judgment and release entered in the Litigation, including, but not limited to, the Judgment, whether or not you submit a Proof of Claim. If you have not received a copy of the Notice, which more completely describes the settlement and your rights thereunder (including your right to object to the settlement or exclude yourself from the Class), and a Proof of Claim form, you may obtain these documents, as well as a copy of the Stipulation (which, among other things, contains definitions for the defined terms used in this Summary Notice) and other settlement documents, online at www.castlightshareholderlitigation.com, or by writing to: Castlight Shareholder Litigation Claims Administrator c/o Gilardi & Co. LLC P.O. Box 30223 College Station, TX 77842-3223 Phone: 1-844-848-1253 Inquiries should NOT be directed to Defendants, the Court, or the Clerk of the Court. Inquiries may also be made to a representative of Class Counsel: ROBBINS GELLER RUDMAN & DOWD LLP Shareholder Relations Rick Nelson 655 West Broadway, Suite 1900 San Diego, CA 92101 Phone: 1-800-449-4900 LABATON SUCHAROW LLP Nicole Zeiss Settlement Counsel 140 Broadway New York, NY 10005 Phone: 1-888-219-6877 IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED NO LATER THAN OCTOBER 7, 2016, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. ALL MEMBERS OF THE CLASS WHO HAVE NOT REQUESTED EXCLUSION FROM THE CLASS WILL BE BOUND BY THE SETTLEMENT ENTERED IN THE LITIGATION EVEN IF THEY DO NOT FILE A TIMELY PROOF OF CLAIM. IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE SETTLEMENT, THE PLAN OF ALLOCATION, THE REQUEST BY PLAINTIFFS' COUNSEL FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES, AND/OR THE PAYMENT TO PLAINTIFFS FOR THEIR TIME AND EXPENSES. ANY OBJECTIONS MUST BE FILED WITH THE COURT AND SENT TO CLASS COUNSEL BY OCTOBER 7, 2016, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE. DATED: August 3, 2016 BY ORDER OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO HONORABLE MARIE S. WEINER CHARTER TOWNSHIP: Certification of Class & Subclasses Sought ------------------------------------------------------------ In the lawsuit styled GARNER PROPERTIES & MANAGEMENT, LLC, individually and on behalf of others similarly situated, the Plaintiff, v. CHARTER TOWNSHIP OF REDFORD, JOHN DOE CODE OFFICIALS, the Defendants, Case No. 2:15-cv-14100-MAG-APP (E.D. Mich.), the Plaintiff asks the Court to certify class and sub- classes consisting of: a) "all persons and entities who currently own and manage or at the time owned or managed any parcel of real property located within the Charter Township of Redford who have been issued tickets, fines, and/or civil infractions for failing to obtain a certificate of occupancy/compliance, and subsequent paid them, stemming from inspections under the IPMC and the Code, at any time since November 23, 2009 and through the date of final judgment"; b) "all persons and entities who have made repairs pursuant to a deficiency report issued by Redford without being provided with notice of the violation or their ability to appeal such determination to an impartial board"; and c) "all persons and entities who paid registration and inspection fees to the Township of Redford pursuant to the ordinance permitting searches without a warrant in violation of the 4th Amendment". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=GyFGa88m The Plaintiff is represented by: Aaron D. Cox, Esq. THE LAW OFFICES OF AARON D. COX, PLLC 23380 Goddard Rd. Taylor, MI 48180 Telephone: (732) 287 3664 - and - Mark K. Wasvary, Esq. MARK K. WASVARY PC 2401 W. Big Beaver Rd., Ste 100 Troy, MI 48084 Telephone: (248) 649 5667 E-mail: markwasvary@hotmail.com The Defendant is represented by: Jeffrey R. Clark, Esq. CUMMINGS, McCLOREY, DAVIS & ACHO, PLC 33900 Schoolcraft Rd. Livonia, MI 48150 Telephone: (734) 261 2400 E-mail: jclark@cmda.com CHEVRON CORPORATION: McQueen et al. Seek Certification of Class --------------------------------------------------------------- In the lawsuit captioned Christopher McQueen, James O'Neal, and Donnie Cummings, on behalf of themselves and others similarly situated, and on behalf of the general public, the Plaintiffs, v. Chevron Corporation, Chevron U.S.A., Inc., and DOES 1-50, inclusive, the Defendants, Case No. 4:16-cv-02089-JSW (N.D. Cal.), the Plaintiffs move for conditional certification of: "all persons who worked as Consultant Site Managers, and in other positions with similar job titles and/or job duties for Defendants, at any time from three years prior to the filing of the action". The Plaintiffs also ask that within ten days of the Court's order, Defendants be required to provide Plaintiffs' counsel with a list of all persons who worked as Consultant Site Managers (in Excel or similar format) who are, or were, performing work for Defendants at any time during the three years prior to the filing of the action. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=A8Beg6A3 The Plaintiff is represented by: Matthew C. Helland, Esq. Daniel S. Brome, Esq. NICHOLS KASTER, LLP One Embarcadero Center, Suite 720 San Francisco, CA 94111 Telephone: (415) 277 7235 Facsimile: (415) 277 7238 E-mail: helland@nka.com dbrome@nka.com CHICAGO, IL: Conyers et al. Seek Certification of Class ------------------------------------------------------- In the lawsuit styled Blake Conyers, Lamar Ewing, and Kevin Flint, individually and for a class, the Plaintiffs, v. City of Chicago, Case No. 1:12-cv-06144 (N.D. Ill), the Plaintiffs move the Court to certify a class of: "all persons who, following an arrest, had property inventoried as available for return to Owner by the Chicago Police Department from December 1, 2011 to December 31, 2013, who were then held in custody for more than 30 days and whose property was destroyed or sold by the Chicago Police Department". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gmsSNx4M The Plaintiffs are represented by: Kenneth N. Flaxman, Esq. Joel A. Flaxman, Esq. 200 S Michigan Ave, Ste 201 Chicago, IL 60604 Telephone: (312) 427 3200 The Defendant is represented by: Allan T. Slagel, Esq. Brian Weinthal, Esq. Jonathan B. Amarilio, Esq. TAFT STETTINIUS &HOLLISTER LLP 111 East Wacker Drive, Suite 2800 Chicago, IL 60601 Telephone: (312) 527 4000 Facsimile: (312) 527 4011 E-mail: aslagel@taftlaw.com bweinthal@taftlaw.com jamarilio@taftlaw.com COOK SALES: Warren et al. Seek Collective Action Certification -------------------------------------------------------------- In the lawsuit captioned ALLISON WARREN, et al., the Plaintiffs, v. COOK SALES, INC., et al., the Defendants, Case No. 1:15-cv- 00603-WS-M (S.D. Ala.), the Plaintiffs move the Court for an order: a. certifying the case as a collective action for settlement purposes; b. authorizing distribution of a Notice of Settlement to Cook's sales representatives employed at one of Cook's sales lots during the Collective Period (Potential Opt- ins) of their opportunity to participate in the settlement and to file objections with the Court; and c. setting a date to address final approval of the Settlement Agreement, including approval of Plaintiffs' counsel's fees, costs, and expenses, and service and damages payments to Plaintiffs. The Parties' settlement provides that Cook will pay $495,000 into a common settlement fund (Gross Fund) to compensate Plaintiffs and Future Opt-Ins. Cook will also pay for the fees for mediation with Ms. Singer. The Gross Fund will fund a service payment of up to $5,000 to each of the Plaintiffs for an aggregate total of $40,000 in recognition of the efforts they made for the benefit of other Cook sales representatives during the litigation, which included participation in discovery by responding to Court interrogatories and preparing for and attending mediation for the benefit of themselves and all of the Potential Opt-Ins. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Bp7deSrn The Plaintiff is represented by: Sam J. Smith, Esq. BURR & SMITH, LLP 111 2nd Ave. N.E., Suite 1100 St. Petersburg, FL 33701 Telephone: (813) 253 2010 Facsimile: (727) 823 2126 E-mail: ssmith@burrandsmithlaw.com - and - Robert Childs, Esq. WIGGINS, CHILDS, PANTAZIS, FISHER & GOLDFARB The Kress Building 301 19th Street North Birmingham, AL 35203 Telephone: (205) 314 0500 Facsimile: (205) 254 1500 E-mail: RChilds@wigginschilds.com - and - Robert C. Epperson, Esq. ROBERT C. EPPERSON, ATTORNEY AT LAW P O Box 477 Foley, AL 36536 Telephone: (251) 943 8870 E-mail: repperson@rcelaw.com - and - Elliott Britton Monroe, Esq. Taffi Smith Stewart, Esq. Michelle McClafferty, Esq. LLOYD, GRAY, WHITEHEAD & MONROE, P.C. 2501 Twentieth Place S., Ste. 300 Birmingham, AL 35223 E-mail: bmonroe@lgwmlaw.com mmcclafferty@lgwmlaw.com tstewart@lgwmlaw.com COSTCO WHOLESALE: Stern Questions Sale of Kirkland Canned Chicken ----------------------------------------------------------------- HOWARD S. STERN, on behalf of himself and all others similarly situated v. COSTCO WHOLESALE CORPORATION, Case No. 3:16-cv-04884- MAS-DEA (D.N.J., August 10, 2016), is brought on behalf of all citizens of New Jersey, who purchased cans of Kirkland Canned Chicken at any time within the last six years. Mr. Stern contends that Costco has continuously engaged in unconscionable business practices and deceptive acts in connection with the marketing and sale of its Kirkland Canned Chicken during the Class Period, which have injured him and the Class and which will continue to injure consumers unless the practices are stopped. Costco, a Washington corporation, together with its subsidiaries, operates membership warehouses. The Company offers branded and private-label products in a range of merchandise categories (such as canned chicken breast), including Kirkland Signature, its house brand. The Plaintiff is represented by: Jeffrey W. Herrmann, Esq. Peter S. Pearlman, Esq. COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP Park 80 Plaza West-One Saddle Brook, NJ 07663 Telephone: (201) 845-9600 E-mail: psp@njlawfirm.com jwh@njlawfirm.com - and - Patricia I. Avery, Esq. Matthew Insley-Pruitt, Esq. Robert Plosky, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 E-mail: pavery@wolfpopper.com MInsley-Pruitt@wolfpopper.com rplosky@wolfpopper.com DALLAS CENTRAL: Sued Over Excessive Property Appraised Value ------------------------------------------------------------ SEMPLE JOHN H & MARSHA D, the Plaintiffs, v. DALLAS CENTRAL APPRAISAL DISTRICT, the Defendant, Case No. DC-16-09466 (Dal. Cty. Ct., Aug. 5, 2016), asks the Court to enter an order setting the appraised value of the Plaintiffs' Property at a value required by law. According to the complaint, the appraised value of their Property exceeds the market value and/or fair cash market value of the Property in violation of Tex. Tax Code. The appraised value of the Plaintiffs' Property is allegedly excessive and unlawful. Dallas Central is responsible for appraising all real and business personal property within Dallas. The Plaintiff is represented by: Gavin Mcbride, Esq. Kathleen J. Santos MCBRYDE FIRM, PLLC 7600 Burnet Road, Suite 500 Austin, TX 78757 Telephone: (512) 296 2115 Facsimile: (512) 691 9072 E-mail: Serv.gavin@mcbrydefirm.com DALLAS CENTRAL: Sued Over Excessive Property Appraised Value ------------------------------------------------------------ EG REFLECTIONS, LLC, Plaintiff, v. DALLAS CENTRAL APPRAISAL DISTRICT, the Defendant, Case No. DC-16-09455 (Dal. Cty. Ct., Aug. 5, 2016), asks the Court to enter an order setting the appraised value of the Plaintiffs' Property at a value required by law. The Plaintiff alleges that the value placed on the Property by the District represents a value in excess of fair market value for tax year 2016 in violation of Tex. Tax Code. Dallas Central is responsible for appraising all real and business personal property within Dallas. The Plaintiff is represented by: Michael A. Long, Esq. Heather H. Long, Esq. LANG LAW OFFICE, P.C. Plano, TX 75026 Telephone: (972) 731 6758 Facsimile: (469) 854 3336 E-mail: mike@langlawtx.com DCOR LLC: Fails to Pay Wages and Overtime, "Robarge" Suit Asserts ----------------------------------------------------------------- JUSTIN ROBARGE, an individual; and MATTHEW SCHUMANN, on behalf of themselves and on behalf of a Class of all other person, similarly situated v. DCOR, LLC, a Texas limited liability corporation; and DOES 1 through 100, inclusive, Case No. BC630278 (Cal. Super. Ct., Los Angeles Cty., August 10, 2016), accuses the Defendants of failure to pay wages, including overtime compensation and to provide meal and rest periods, among other failures. DCOR is a Texas limited liability corporation headquartered in Dallas, Texas. DCOR is a company that explores and produces oil and natural gas in California and operates throughout California through the operation of off-shore platforms where the Class Members worked. The true names and capacities of the Doe Defendants are currently unknown. The Plaintiff is represented by: Richard E. Quintilone II, Esq. Alvin B. Lindsay, Esq. QUINTILONE & ASSOCIATES 22974 El Toro Road, Suite 100 Lake Forest, CA 92630-4961 Telephone: (949) 458-9675 Facsimile: (949) 458-9679 E-mail: req@quintlaw.com abl@quintlaw.com DIRECTV LLC: First to File Rule Does Not Apply in "Swetra" Suit --------------------------------------------------------------- District Judge Robert B. Kugler of the District of New Jersey denied defendant's motion to dismiss in the case GREGORY SWETRA, Plaintiff, v. DIRECTV, LLC, Defendant, Civil No. 15-8761 (RBK/AMD) (D.N.J.) Throughout 2015, DirectTV, LLC placed numerous calls to Gregory Swetra's cellularphone. The calls all used an automated or prerecorded voice when Swetra answered, and many of them had unnatural periods of silence when Swetra picked up the phone. Swetra never gave DirectTV his prior express consent to make the calls, and Swetra's requests that DirectTV stop these calls have gone unheeded. Swetra filed a complaint on December 19, 2015, requesting statutory damages and injunctive relief. Swetra brought his claim against DirectTV based solely on violations of the Telephone Consumer Protection Act, specifically violations of 47 U.S.C. Section 227(b)(1)(A)(iii). DirectTV filed a motion to dismiss on February 5, 2016 on the grounds that pursuant to the first-to-file rule, Swetra's case should be dismissed, transferred, or stayed in light of a previously pending action in the Central District of California or the action between DirectTV and Jenny Brown. DirectTV argues that the proposed class in the Brown action includes Swetra, and that both the Brown Action and the present case involve injunctive and monetary relief for violations of the TCPA. In response, Swetra submits, that without a certified class DirectTV's arguments are premature, that he does not necessarily fall within the proposed class definition, and that DirectTV is taking contrary positions in the litigation and in the Brown action. Swetra also argues that even if the first-filed rule applies, the private and public factors in the 28 U.S.C. Section 1404 analysis do not favor transfer of the case. Judge Kugler denied defendant's motion to dismiss. A copy of Judge Kugler's opinion dated August 9, 2016, is available at http://goo.gl/JPDrEofrom Leagle.com. GREGORY SWETRA, Plaintiff, represented by JEREMY M. GLAPION -- jmg@glapionlaw.com -- at The Glapion Law Firm DIRECTV, LLC, Defendant, represented by RICHARD H. BROWN, III -- rbrown@daypitney.com -- at DAY PITNEY, LLP DISCOVER FINANCIAL: To Defend Against "Davenport" Action -------------------------------------------------------- Discover Financial Services said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company will seek to vigorously defend against all claims asserted in the class action lawsuit by Sumner Davenport. On July 9, 2015, a class action lawsuit was filed against the Company in the U.S. District Court for the Northern District of Illinois (Polly Hansen v. Discover Financial Services and Discover Home Loans, Inc.). The plaintiff alleges that the Company contacted her, and members of the class she seeks to represent, on their cellular and residential telephones without their express consent or after consent was revoked in violation of the Telephone Consumer Protection Act ("TCPA"). Plaintiff seeks statutory damages for alleged negligent and willful violations of the TCPA, attorneys' fees, costs and injunctive relief. The TCPA provides for statutory damages of $500 for each violation ($1,500 for willful violations). On March 9, 2016, Sumner Davenport was substituted as lead plaintiff for Polly Hansen. The Company will seek to vigorously defend against all claims asserted by the plaintiff. DISCOVER FINANCIAL: Have Until August 25 to Respond to B&R Suit --------------------------------------------------------------- Discover Financial Services said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that Defendants have until August 25, 2016 to respond to the amended complaint in the case by B&R Supermarket, Inc. On March 8, 2016, a class action lawsuit was filed against the Company in the U.S. District Court for the Northern District of California (B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc. et al.) alleging violations of the Sherman Antitrust Act, California's Cartwright Act, and unjust enrichment. Plaintiffs allege a conspiracy to shift fraud liability to merchants with the migration to the EMV security standard and chip technology. Plaintiffs seek damages, attorneys' fees, costs and injunctive relief. On July 15, 2016, Plaintiffs filed an amended complaint. Defendants have until August 25, 2016 to respond to the amended complaint. The Company is not in a position at this time to assess the likely outcome or its exposure, if any, with respect to this matter, but will seek to vigorously defend against all claims asserted by the plaintiffs. DISTINCTIVE MAINTENANCE: Faces "Sequinot" Suit Over Unpaid Wages ---------------------------------------------------------------- Edwin Sequinot, Individually, and on behalf of all others similarly situated v. Distinctive Maintenance Company Inc., and Julio Goris, Case No. 1:16-cv-06372 (S.D.N.Y., August 10, 2016), alleges that pursuant to the Fair Labor Standards Act and the New York Minimum Wage Act, the Plaintiff and the proposed class members are entitled to: (i) unpaid wages from the Defendants for working more than 40 hours in a week and not being paid an overtime rate of at least 1.5 times the regular rate for each and all such hours over 40 in a week; and (ii) entitled to maximum liquidated damages and attorneys' fees pursuant to the FLSA and the NYMWA. Distinctive Maintenance Company Inc. is a New York for-profit corporation. Julio Goris owns/controls/manages the Company and is in charge of the Company's operations and management. The Defendants' principal place of business is in Bronx County, New York. The Defendants provide building maintenance and repair services. The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 740-2000 E-mail: abdul@abdulhassan.com DUN & BRADSTREET: Settlement in O&R Construction Case Pending ------------------------------------------------------------- The Dun & Bradstreet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the plaintiff's filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement in the case, O&R Construction, LLC v. Dun & Bradstreet Credibility Corp., et al., No. 2:12 CV 02184 (TSZ) (W.D. Wash.), remains pending. On December 13, 2012, plaintiff O&R Construction LLC filed a putative class action in the United States District Court for the Western District of Washington against the Company and Dun & Bradstreet Credibility Corp. In May 2015, the Company acquired the parent company of DBCC, Credibility. The complaint alleged, among other things, that defendants violated the antitrust laws, used deceptive marketing practices to sell the CreditBuilder credit monitoring products and allegedly misrepresented the nature, need and value of the products. The plaintiff purports to sue on behalf of a putative class of purchasers of CreditBuilder and seeks recovery of damages and equitable relief. DBCC was served with the complaint on December 14, 2012. The Company was served with the complaint on December 17, 2012. On February 18, 2013, the defendants filed motions to dismiss the complaint. On April 5, 2013, plaintiff filed an amended complaint in lieu of responding to the motion. The amended complaint dropped the antitrust claims and retained the deceptive practices allegations. The defendants filed new motions to dismiss the amended complaint on May 3, 2013. On August 23, 2013, the Court heard the motions and denied DBCC's motion but granted the Company's motion. Specifically, the Court dismissed the contract claim against the Company with prejudice, and dismissed all the remaining claims against the Company without prejudice. On September 23, 2013, plaintiff filed a Second Amended Complaint ("SAC"). The SAC alleges claims for negligence, defamation and unfair business practices under Washington state law against the Company for alleged inaccuracies in small business credit reports. The SAC also alleges liability against the Company under a joint venture or agency theory for practices relating to CreditBuilder(R). As against DBCC, the SAC alleges claims for negligent misrepresentation, fraudulent concealment, unfair and deceptive acts, breach of contract and unjust enrichment. DBCC filed a motion to dismiss the claims that were based on a joint venture or agency liability theory. The Company filed a motion to dismiss the SAC. On January 9, 2014, the Court heard argument on the defendants' motions. It dismissed with prejudice the claims against the defendants based on a joint venture or agency liability theory. The Court denied the Company's motion with respect to the negligence, defamation and unfair practices claims. On January 23, 2014, the defendants answered the SAC. At a court conference on December 17, 2014, plaintiff informed the Court that it would not be seeking to certify a nationwide class, but instead limit the class to CreditBuilder purchasers in Washington. On May 29, 2015, plaintiff filed motions for class certification against the Company and DBCC. On July 29, 2015, Defendants filed oppositions to the motions for class certification. On September 16, 2015, plaintiff filed reply briefs in support of the motions for class certification. At the request of the parties, on October 30, 2015, the Court entered an order striking plaintiff's class certification motions without prejudice and striking all upcoming deadlines while the parties negotiated a written settlement agreement. On February 11, 2016, the parties entered into a written settlement term sheet, and on May 16, 2016, the parties executed a settlement agreement, which is subject to Court approval. On May 17, 2016, plaintiff filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement. "Our ultimate liability related to this matter is contingent upon our insurance coverage and we do not expect the impact will be material to our financial results," the Company said. DUN & BRADSTREET: Settlement in Die-Mension Case Pending -------------------------------------------------------- The Dun & Bradstreet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the plaintiff's filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement in the case, Die-Mension Corporation v. Dun & Bradstreet Credibility Corp. et al., No. 2:14-cv-00855 (TSZ) (W.D. Wash.) (filed as No. 1:14-cv-392 (N.D. Oh.)), remains pending. On February 20, 2014, plaintiff Die-Mension Corporation ("Die- Mension") filed a putative class action in the United States District Court for the Northern District of Ohio against the Company and DBCC, purporting to sue on behalf of a putative class of all purchasers of a CreditBuilder product in the United States or in such state(s) as the Court may certify. The complaint alleged that DBCC used deceptive marketing practices to sell the CreditBuilder credit monitoring products. As against the Company, the complaint alleged a violation of Ohio's Deceptive Trade Practices Act ("DTPA"), defamation, and negligence. As against DBCC, the complaint alleged violations of the DTPA, negligent misrepresentation and concealment. On March 4, 2014, in response to a direction from the Ohio court, Die-Mension withdrew its original complaint and filed an amended complaint. The amended complaint contains the same substantive allegations as the original complaint, but limits the purported class to small businesses in Ohio that purchased the CreditBuilder product. On March 12, 2014, DBCC agreed to waive service of the amended complaint and on March 13, 2014, the Company agreed to waive service. On May 5, 2014, the Company and DBCC filed a Joint Motion to Transfer the litigation to the Western District of Washington. On June 9, 2014, the Ohio court issued an order granting the Defendants' Joint Motion to Transfer. On June 22, 2014, the case was transferred to the Western District of Washington. Pursuant to an order entered on December 17, 2014 by the Washington court, this case was coordinated for pre-trial discovery purposes with related cases transferred to the Western District of Washington. On January 6, 2015, the Court entered a stipulation and order setting forth the case management schedule. On January 15, 2015, Defendants filed motions to dismiss the amended complaint. In response, Die-Mension filed a second amended complaint on March 13, 2015. On April 3, 2015, Defendants filed motions to dismiss the second amended complaint, and on May 22, 2015, Die-Mension filed its oppositions to the motions. Defendants filed reply briefs on June 12, 2015. On July 17, 2015, Die-Mension filed motions for class certification against the Company and DBCC. On September 9, 2015, the Washington court entered an order denying the Company's motion to dismiss, and on September 10, 2015, it entered an order granting DBCC's motion to dismiss without prejudice. At the request of the parties, on October 30, 2015, the Court entered an order striking plaintiff's class certification motions without prejudice and striking all upcoming deadlines while the parties negotiated a written settlement agreement. On February 11, 2016, the parties entered into a written settlement term sheet, and on May 16, 2016, the parties executed a settlement agreement, which is subject to Court approval. On May 17, 2016, plaintiff filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement. "Our ultimate liability related to this matter is contingent upon our insurance coverage and we do not expect the impact will be material to our financial results," the Company said. DUN & BRADSTREET: Settlement in Vinotemp Case Pending ----------------------------------------------------- The Dun & Bradstreet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the plaintiff's filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement in the case, Vinotemp International Corporation and CPrint(R), Inc. v. Dun & Bradstreet Credibility Corp., et al., No. 2:14-cv-01021 (TSZ) (W.D. Wash.) (filed as No. 8:14-cv-00451 (C.D. Cal.)), remains pending. On March 24, 2014, plaintiffs Vinotemp International Corporation ("Vinotemp") and CPrint(R), Inc. ("CPrint") filed a putative class action in the United States District Court for the Central District of California against the Company and DBCC. Vinotemp and CPrint purport to sue on behalf of all purchasers of DBCC's CreditBuilder product in the state of California. The complaint alleges that DBCC used deceptive marketing practices to sell the CreditBuilder credit monitoring products, in violation of Sec.17200 and Sec.17500 of the California Business and Professions Code. The complaint also alleges negligent misrepresentation and concealment against DBCC. As against the Company, the complaint alleges that the Company entered false and inaccurate information on credit reports in violation of Sec.17200 of the California Business and Professions Code, and also alleges negligence and defamation claims. On March 31, 2014, the Company agreed to waive service of the complaint and on April 2, 2014, DBCC agreed to waive service. On June 13, 2014, the Company and DBCC filed a Joint Unopposed Motion to Transfer the litigation to the Western District of Washington. On July 2, 2014, the California court granted the Defendants' Joint Motion to Transfer, and on July 8, 2014, the case was transferred to the Western District of Washington. Pursuant to an order entered on December 17, 2014 by the Washington court, this case was coordinated for pre-trial discovery purposes with related cases transferred to the Western District of Washington. On January 6, 2015, the Court entered a stipulation and order setting forth the case management schedule. On January 15, 2015, Defendants filed motions to dismiss the complaint. In response, plaintiffs filed an amended complaint on March 13, 2015. On April 3, 2015, Defendants filed motions to dismiss the amended complaint, and on May 22, 2015, plaintiffs filed their oppositions to the motions. Defendants filed reply briefs on June 12, 2015. On July 17, 2015, Plaintiffs filed motions for class certification against the Company and DBCC. On September 9, 2015, the Washington court entered an order denying the Company's motion to dismiss. At the request of the parties, on October 30, 2015, the Court entered an order striking plaintiff's class certification motions and DBCC's motion to dismiss without prejudice and striking all upcoming deadlines while the parties negotiated a written settlement agreement. On February 11, 2016, the parties entered into a written settlement term sheet, and on May 16, 2016, the parties executed a settlement agreement, which is subject to Court approval. On May 17, 2016, plaintiff filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement. "Our ultimate liability related to this matter is contingent upon our insurance coverage and we do not expect the impact will be material to our financial results," the Company said. DUN & BRADSTREET: Settlement in Flow Sciences Case Pending ---------------------------------------------------------- The Dun & Bradstreet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the plaintiff's filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement in the case, Flow Sciences Inc. v. Dun & Bradstreet Credibility Corp., et al., No. 2:14-cv-01404 (TSZ) (W.D. Wash.) (filed as No. 7:14-cv-128 (E.D.N.C.)), remains pending. On June 13, 2014, plaintiff Flow Sciences Inc. ("Flow Sciences") filed a putative class action in the United States District Court for the Eastern District of North Carolina against the Company and DBCC. Flow Sciences purports to sue on behalf of all purchasers of DBCC's CreditBuilder product in the state of North Carolina. The complaint alleges that the Company and DBCC engaged in deceptive practices in connection with DBCC's sale of the CreditBuilder credit monitoring products, in violation of North Carolina's Unfair Trade Practices Act, N.C. Gen. Stat. Sec. 75-1.1 et seq. In addition, as against the Company, the complaint alleges negligence and defamation claims. The complaint also alleges negligent misrepresentation and concealment against DBCC. On June 18, 2014, DBCC agreed to waive service of the complaint and on June 26, 2014, the Company agreed to waive service of the complaint. On August 4, 2014, the Company and DBCC filed a Joint Unopposed Motion to Transfer the litigation to the Western District of Washington. On September 8, 2014, the North Carolina court granted the motion to transfer, and on September 9, 2014, the case was transferred to the Western District of Washington. Pursuant to an order entered on December 17, 2014 by the Washington court, this case was coordinated for pre-trial discovery purposes with related cases transferred to the Western District of Washington. On January 6, 2015, the Court entered a stipulation and order setting forth the case management schedule. On January 15, 2015, Defendants filed motions to dismiss the complaint. In response, Flow Sciences filed an amended complaint on March 13, 2015. On April 3, 2015, Defendants filed motions to dismiss the amended complaint, and on May 22, 2015, Flow Science filed its oppositions to the motions. Defendants filed reply briefs on June 12, 2015. On July 17, 2015, Flow Sciences filed motions for class certification against the Company and DBCC. On September 9, 2015, the Washington court entered an order denying the Company's motion to dismiss and on October 19, 2015, it entered an order denying DBCC's motion to dismiss. At the request of the parties, on October 30, 2015, the Court entered an order striking plaintiff's class certification motions without prejudice and striking all upcoming deadlines while the parties negotiated a written settlement agreement. On February 11, 2016, the parties entered into a written settlement term sheet, and on May 16, 2016, the parties executed a settlement agreement, which is subject to Court approval. On May 17, 2016, plaintiff filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement. "Our ultimate liability related to this matter is contingent upon our insurance coverage and we do not expect the impact will be material to our financial results," the Company said. DUN & BRADSTREET: Settlement in Altaflo Case Pending ---------------------------------------------------- The Dun & Bradstreet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the plaintiff's filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement in the case, Altaflo, LLC v. Dun & Bradstreet Credibility Corp., et al., No. 2:14-cv-01288 (TSZ) (W.D. Wash.) (filed as No. 2:14-cv-03961 (D.N.J.)), remains pending. On June 20, 2014, plaintiff Altaflo, LLC ("Altaflo") filed a putative class action in the United States District Court for the District of New Jersey against the Company and DBCC. Altaflo purports to sue on behalf of all purchasers of DBCC's CreditBuilder product in the state of New Jersey. The complaint alleges that the Company and DBCC engaged in deceptive practices in connection with DBCC's sale of the CreditBuilder credit monitoring products, in violation of the New Jersey Consumer Fraud Act, N.J. Stat. Sec. 56:8-1 et seq. In addition, as against the Company, the complaint alleges negligence and defamation claims. The complaint also alleges negligent misrepresentation and concealment against DBCC. On June 26, 2014, the Company agreed to waive service of the complaint, and on July 2, 2014, DBCC agreed to waive service. On July 29, 2014, the Company and DBCC filed a Joint Unopposed Motion to Transfer the litigation to the Western District of Washington. On July 31, 2014, the New Jersey court granted the Defendants' Joint Motion to Transfer, and the case was transferred to the Western District of Washington on August 20, 2014. Pursuant to an order entered on December 17, 2014 by the Washington court, this case was coordinated for pre-trial discovery purposes with related cases transferred to the Western District of Washington. On January 6, 2015, the Court entered a stipulation and order setting forth the case management schedule. On January 15, 2015, Defendants filed motions to dismiss the complaint. In response, Altaflo filed an amended complaint on March 13, 2015. On April 3, 2015, Defendants filed motions to dismiss the amended complaint, and on May 22, 2015, Altaflo filed its oppositions to the motions. Defendants filed reply briefs on June 12, 2015. On July 17, 2015, Altaflo filed motions for class certification against the Company and DBCC. On September 9, 2015, the Washington court entered an order denying the Company's motion to dismiss, and on October 19, 2015, it entered an order granting DBCC's motion to dismiss without prejudice. At the request of the parties, on October 30, 2015, the Court entered an order striking plaintiff's class certification motions without prejudice and striking all upcoming deadlines while the parties negotiated a written settlement agreement. On February 11, 2016, the parties entered into a written settlement term sheet, and on May 16, 2016, the parties executed a settlement agreement, which is subject to Court approval. On May 17, 2016, plaintiff filed an Unopposed Motion for Preliminary Approval of the Class Action Settlement. "Our ultimate liability related to this matter is contingent upon our insurance coverage and we do not expect the impact will be material to our financial results," the Company said. DUN & BRADSTREET: Settlement Reached in "Thomas" Case ----------------------------------------------------- The Dun & Bradstreet Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the parties in the case, Jeffrey A. Thomas v. Dun & Bradstreet Credibility Corp., No. 2:15 cv 03194-BRO-GJS (C.D. Cal.), are in the process of drafting a written settlement agreement and all attendant documents. On April 28, 2015, Jeffrey A. Thomas ("Plaintiff") filed suit against DBCC in the United States District Court for the Central District of California. The complaint alleges that DBCC violated the Telephone Consumer Protection Act ("TCPA") (47 U.S.C. Sec. 227) because it placed telephone calls to Plaintiff's cell phone using an automatic telephone dialing system ("ATDS"). The TCPA generally prohibits the use of an ATDS to place a call to a cell phone for non-emergency purposes and without the prior express written consent of the called party. The TCPA provides for statutory damages of $500 per violation, which may be trebled to $1,500 per violation at the discretion of the court if the plaintiff proves the defendant willfully violated the TCPA. Plaintiff seeks to represent a class of similarly situated individuals who received calls on their cell phones from an ATDS. DBCC was served with a copy of the summons and complaint on April 30, 2015. On May 22, 2015, the Company made a statutory offer of judgment. Plaintiff did not respond to the offer. DBCC filed a motion to dismiss the complaint on June 12, 2015, which the Court denied on August 5, 2015. DBCC filed an Answer and asserted its Affirmative Defenses on November 12, 2015. Discovery commenced and the Court issued a schedule for amended pleadings, discovery, the filing of any class certification motion and trial. During the discovery period, the parties agreed to attempt to settle the dispute through mediation. On June 2, 2016 the parties conducted one day of mediation, and shortly after the mediation, the parties reached an agreement to settle the dispute on a class- wide basis. The parties are in the process of drafting a written settlement agreement and all attendant documents. The parties informed the Court of their agreement, and on June 22, 2016 the Court entered an Order requiring the parties to file a motion for preliminary approval of the proposed settlement, together with all accompanying documents, on or before August 4, 2016, or otherwise provide the Court with a Joint Status Report with an update on the settlement. In the same Order the Court vacated all previously scheduled dates and deadlines. EXPERIAN INFORMATION: Faces "Brown" Suit in E.D. of Virginia ------------------------------------------------------------ A lawsuit has been filed against Experian Information Solutions, Inc. The case is entitled Frances D. Brown, Robert G. Green, Willie Stanley, Jr., Brenda M. Walker, and Valerot W. Whitlow, on behalf of themselves and all other similarly situated individuals, the Plaintiff, v. Experian Information Solutions, Inc., the Defendant, Case No. 3:16-cv-00670-MHL (E.D. Va., Aug. 11, 2016). The assigned District Judge is Hon. M. Hannah Lauck. Experian, an information services company, provides information, analytical, and marketing services to organizations and consumers. The Plaintiffs are represented by: Casey Shannon Nash, Esq. Leonard Anthony Bennett, Esq. Matthew James Erausquin, Esq. CONSUMER LITGATION ASSOCIATES PC (ALEX) 1800 Diagonal Road, Suite 600 Alexandria, VA 22314 Telephone: (703) 273 7770 Facsimile: (888) 892 3512 E-mail: casey@clalegal.com lenbennett@clalegal.com matt@clalegal.com - and - Andrew Joseph Guzzo, Esq. Kristi Cahoon Kelly, Esq. KELLY & CRANDALL PLC 4084 University Drive, Suite 202A Fairfax, VA 22030 Telephone: (703) 424 7570 Facsimile: (703) 591 0167 E-mail: aguzzo@kellyandcrandall.com kkelly@kellyandcrandall.com EXPRESS SCRIPTS: Faces Class Action Over "Slamming" Practice ------------------------------------------------------------ Brian E. Dickerson, Esq. -- Brian.Dickerson@fisherbroyles.com -- Nicole Hughes Waid, Esq. -- Nicole.Waid@fisherbroyles.com -- Anthony J. Calamunci, Esq. -- anthony.calamunci@fisherbroyles.com -- and Amy L. Butler, Esq. -- Amy.Butler@fisherbroyles.com -- of FisherBroyles, in an article for Lexology, report that on August 1, five pharmacies joined together and filed a class action lawsuit against Express Scripts Inc. (ESI), alleging ESI systematically stole customers to boost its mail order business. Initiated by Trone Health Services, Inc. (Idaho), Reddish Pharmacy, Inc. (Idaho), Jabos Pharmacy, Inc. (Tennessee), Oak Tree Pharmacy (Oregon), and Amrut JAL, LLC (Indiana), the lawsuit was filed in United States District Court Eastern District of Missouri on behalf of the plaintiff's and all others similarly situated. The Plaintiff's estimate the class action would include approximately 50,000 pharmacies. The complaint alleges ESI improperly used customer information and prescription data to divert customers to its own mail order pharmacy business. ESI is the largest Pharmacy Benefit Manager (PBM) in the U.S., responsible for processing prescription drug benefits of more than 25% of insured patients, processing an estimated 1.4 billion prescriptions per year. ESI has contracts with many of the largest providers of insured and pre-paid prescription drug benefits, including for example, the Department of Defense (TRICARE), UnitedHealth Group, and Wellpoint. Allegations against ESI include unfair competition, breach of contract, breach of implied covenant of good faith and fair dealing, interference with prospective economic advantage, violation of the Uniform Trade Secrets Act, and fraud. ESI's PBM contracts give them access to customer data to verify that beneficiaries are eligible for prescription coverage and to collect insurance payments. The lawsuit alleges that ESI has improperly used this information to divert pharmacy customers via a practice of prescription "slamming," a practice that has generated billions of dollars in illegal profits for ESI and denied the pharmacies of revenue. ("Slamming" is a situation in which a consumer's service is switched without the consumer's permission, a practice the Federal Trade Commission has deemed illegal in the telecommunications industry.) Pursuant to the PBM contractual language and HIPAA regulations, ESI's use of the customer data to divert business to its mail order pharmacy violates the both the PBM contract and HIPAA regulations. HIPPA requires that personal health information (PHI) data be used only for the purpose for which it was provided and, PBM contractual language states the PHI data is for two purposes: (1) confirm eligibility, and (2) collect payment for filling the prescription. ESI's mail order pharmacy business has tripled since 2009, largely due to its "mail conversion program," which generated 41.8 million prescriptions in 2009 with revenues of $8 billion and grew to 141.2 million prescriptions with revenues of $37.6 billion in 2013. The lawsuit alleges all or nearly all of the $37.6 billion collected by ESI's mail conversion program in 2013 would have been collected by retail pharmacies. ESI's contracts require pharmacies to provide customer and prescription information that is not actually necessary to confirm eligibility or collect payment. According the complaint, ESI has used the data to identify the most profitable prescriptions for their mail conversion program in order to switch refills without the customer's knowledge or consent. Brand prescription drugs, particularly name brand drugs for chronic conditions, generally produce more net profit than generic drugs. Pharmacies understood that PBM contracts required the filling of generic drug prescriptions at very little profit or in some cases, at a loss. However, they also understood and relied upon the profitability of filling prescriptions for brand name drugs. By converting the more profitable prescriptions to mail order, ESI has effectively harmed the pharmacies ability operate a profitable business and in some cases, may have driven small independent pharmacies out of business. Pharmacies and customers typically learn that a prescription has been converted to mail order when a refill is requested by the customer and submitted to ESI by the pharmacy. However, rather than receiving a confirmation that the prescription is covered by the customer's insurance, as was the case when the prescription was originally filled, pharmacies are notified that the prescription has been switched to "mandatory mail order" and that only Express Scripts will be permitted to fulfill the prescription's refills. The customer has no recourse to convert the prescription back to the retail pharmacy. ESI's mail order conversion program does not benefit customers or insurers according to the complaint. In fact, the program benefits only ESI. State "Any Willing Provider" laws prohibit ESI from requiring patients to pay different co-pay, co-insurance or deductibles based on whether they fill a prescription at a local pharmacy or via mail order. Insurers do not gain any financial benefit either because the "Any Willing Provider" laws dictate that a licensed pharmacy that is willing to accept the same financial terms as ESI, must be allowed to fill the prescriptions. Also included in the complaint is the efficacy of mail order prescriptions due to exposure to temperature and humidity levels higher than FDA regulations for storage of the same drugs. Most prescription drugs are supposed to be stored at temperatures between 68 and 77 degrees Fahrenheit and kept in relatively dry conditions, standards that cannot be controlled when mailing prescriptions. This is not the first lawsuit filed against ESI for unfair practices. In January several independent compounding pharmacies filed a lawsuit against ESI, CVS Caremark, OptumHealth, Inc., and Prime Therapeutics LLC, alleging they caused more than $100 million in damages and alleged the focus of their anticompetitive conduct was to drive the pharmacies out of business in favor of ESI's mail order business. The complaint was later amended to ESI as the sole defendant. FANNIE MAE: Grant & Eisenhofer Not Entitled to More Fees -------------------------------------------------------- In the case captioned GRANT & EISENHOFER, P.A., Plaintiff, v. BERNSTEIN LIEBHARD, LLP, Defendant, No. 14-CV-9839 (JMF) (S.D.N.Y.), Judge Jesse M. Furman granted Bernstein Liebhard's motion for summary judgment and dismissed the complaint. The case concerns a fee-sharing dispute between two law firms that did work on behalf of the plaintiffs in In re Fannie Mae Securities Litigation, No. 04-CV-1639 (D.D.C.), a class action brought in the United States District Court for the District of Columbia. Grant & Eisenhofer, P.A. (G&E) contended that it did not receive all of what it was owed by Bernstein Liebhard, LLP pursuant to a fee-sharing agreement between the two firms. Following unsuccessful motions to dismiss and to transfer venue, Bernstein Liebhard moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. Based on the unambiguous language of the agreement between G&E and Bernstein Liebhard, Judge Furman concluded that G&E was entitled to 26% of Bernstein Liebhard's fees only if Bernstein Liebhard received fees pursuant to the Waite Schneider Fee Agreement. Because Bernstein Liebhard did not receive fees pursuant to that Agreement, and Bernstein Liebhard did not do anything to frustrate or prevent that condition precedent from being fulfilled, Judge Furman held that G&E is not entitled to recover additional fees from Bernstein Liebhard based on breach of the parties' contract. A full-text copy of Judge Furman's July 28, 2016 opinion and order is available at https://is.gd/Tm2Bzr from Leagle.com. Grant & Eisenhofer P.A., Plaintiff, represented by Deborah A. Elman -- delman@gelaw.com -- Grant & Eisenhofer P.A., James Joseph Sabella -- jsabella@gelaw.com -- Grant & Eisenhofer P.A., Jay W. Eisenhofer -- jeisenhoofer@gelaw.com -- Grant & Eisenhofer P.A., Robert Daniel Gerson, Grant & Eisenhofer P.A. Bernstein Liebhard LLP, Defendant, represented by Christian Patrick Siebott -- siebott@bernlieb.com -- Bernstein Liebhard, LLP & Michael S. Bigin -- bigin@bernlieb.com -- Bernstein Liebhard, LLP. FASHION OPTIONS: Newbolt-White Sues for Pregnancy Discrimination ---------------------------------------------------------------- SIMONE NEWBOLT-WHITE v. FASHION OPTIONS, INC., MICHAEL HADDAD, EDWARD HADDAD, and PAUL ABSERASTURI, Case No. 156691/2016 (N.Y. Sup. Ct., August 10, 2016), challenges the Defendants' alleged practice of pregnancy, gender, disability and caregiver status discrimination in the terms, conditions, and privileges of the Plaintiff's employment in violation of the Administrative Code of the City of New York. Fashion Options, Inc., is a foreign business corporation headquartered in New York City. Fashion Options is a privately held family owned company and has operated in the licensing and apparel manufacturing business for over three generations. The Individual Defendants are officers of the Company. The Plaintiff is represented by: Alan Serrins, Esq. SERRINS FISHER LLP 233 Broadway, Suite 2340 New York, NY 10279 Telephone: (212) 571-0700 Facsimile: (212) 233-3801 E-mail: alan@serrinsfisher.com FIDELITY & GUARANTY: Settlement Completion Deadline Moved --------------------------------------------------------- Fidelity & Guaranty Life said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the parties in a class action lawsuit have sought to extend the deadline for settlement completion from January 28, 2016 to October 24, 2016. On July 5, 2013, Plaintiff Eddie L. Cressy filed a putative class Complaint captioned Cressy v. Fidelity Guaranty [sic] Life Insurance Company, et. al. in the Superior Court of California, County of Los Angeles (the "Court"), Case No. BC-514340. The Complaint was filed after the Plaintiff was unable to maintain an action in federal court. The Complaint asserts, inter alia, that the Plaintiff and members of the putative class relied on Defendants' advice in purchasing allegedly unsuitable equity- indexed insurance policies. On January 2, 2015, the Court entered Final Judgment in Cressy, certifying the class for settlement purposes, and approving the class settlement reached on April 4, 2014. On August 10, 2015, the Company tendered $1 million to the Settlement Administrator for a claim review fund. The Company implemented an interest enhancement feature for certain policies as part of the class settlement, which enhancement began on October 12, 2015. On December 11, 2015, the parties filed a Joint Motion to amend the January 2, 2015 Final Order and Judgment, to extend the deadline for settlement completion from January 28, 2016 to October 24, 2016. At June 30, 2016, the Company estimated the total cost for the settlement, legal fees and other costs related to Cressy would be $9 million, with a liability for the unpaid portion of the estimate of $1 million. The Company has incurred and paid $5 million related to legal fees and other costs and $3 million related to settlement costs as of June 30, 2016. Based on the information currently available the Company does not expect the actual cost for settlement, legal fees and other related costs to differ materially from the amount accrued. FIDELITY & GUARANTY: Ludwick's Eighth Circuit Appeal Pending ------------------------------------------------------------ Fidelity & Guaranty Life said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that Plaintiff Ludwick's appeal to the United States Court of Appeals for the Eighth Circuit remains pending. On January 7, 2015, a putative class action complaint was filed in the United States District Court, Western District of Missouri (the "District Court"), captioned Dale R. Ludwick, on behalf of Herself and All Others Similarly Situated v. Harbinger Group Inc., Fidelity & Guaranty Life Insurance Company, Raven Reinsurance Company, and Front Street Re (Cayman) Ltd. The complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), requests injunctive and declaratory relief seeks unspecified compensatory damages for the putative class in an amount not presently determinable, treble damages, and other relief, and claims Plaintiff Ludwick overpaid at least $0 for her annuity. On April 13, 2015, the Company joined in the filing of a Joint Motion to Dismiss the complaint. On February 12, 2016, the District Court granted the defendants' Joint Motion to Dismiss. Judgment was entered on February 12, 2016. On March 3, 2016, Plaintiff Ludwick filed a Notice of Appeal to the United States Court of Appeals for the Eighth Circuit (the "Court of Appeals") from the District Court's Order and Judgment. As of June 30, 2016, the Company did not have sufficient information to determine whether the Company is exposed to any losses that would be either probable or reasonably estimable beyond an expense contingency estimate of $1 million, which was accrued during the nine months ended June 30, 2016. FITCHBURG GAS: Class Certification in "Bellerman" Suit Vacated -------------------------------------------------------------- The Supreme Judicial Court of Massachusetts, Worcester vacated the order certifying the class in the case captioned MARCIA D. BELLERMANN & others vs. FITCHBURG GAS AND ELECTRIC LIGHT COMPANY, No. SJC-11979 (Mass.). Following the Supreme Judicial Court's decision affirming the denial of their first motion for class certification, the plaintiffs filed a renewed motion in the Superior Court for class certification, contending that, beginning in 1992, and extending for a period of some sixteen years, Fitchburg Gas and Electric Light Company (FG&E) failed to comply with Department of Public Utilities (DPU) regulations regarding emergency storm preparedness. The plaintiffs maintained that they suffered economic injury by overpaying for a level of emergency preparedness required by DPU's regulations, which FG&E unfairly and deceptively failed to provide, although the rates charged were based on FG&E's assumed compliance with those regulations. The plaintiffs did not assert that members of the putative class suffered any loss of power or interruption of service, as a class, during this period. Following a hearing, the Superior Court judge certified two classes of FG&E business and residential customers who paid rates for electric service at any point between January 7, 2005, and January 7, 2009. The judge then reported the class certification order to the Appeals Court on FG&E's motion, and the Supreme Judicial Court allowed FG&E's application for direct appellate review. The Supreme Judicial Court, however, concluded that, in these circumstances, the plaintiffs' assertion of overpayment for FG&E's services does not set forth a cognizable injury under G. L. c. 93A, sections 9(1) and 11, and thus does not support class certification pursuant to that statute. A full-text copy of the Court's July 29, 2016 ruling is available at https://is.gd/jNoiIZ from Leagle.com. Gavin J. Rooney -- grooney@lowenstein.com -- of New Jersey (Anne W. Chisholm -- awc@brickleysears.com -- and Eric R. Passeggio with him) for the defendant. C. Deborah Phillips (Barry M. Altman & Edwin H. Howard with her) for the plaintiffs. Robin L. Main -- rmain@hinckleyallen.com -- for Massachusetts Electric Company & others, amici curiae, submitted a brief. FITNESS INTERNATIONAL: "Kinalis" Suit Seeks Unpaid Compensation --------------------------------------------------------------- Alexis Kinalis, individually and on behalf of those similarly situated, Plaintiffs, v. Fitness International, LLC, Louis Welch, Todd McSeveney and/or any related entities or individuals, Defendants, Case No. 605990/2016 (N.Y. Sup., August 5, 2016), seeks to recover unpaid commissions, unpaid wages, illegal reductions in wages, and penalties under New York Labor Laws. Defendant owns and operates fitness clubs under the name of La Fitness with main office located at 2600 Michelson Dr., Suite 300, Irvine, CA, and with New York facilities located at Commack, New York where Plaintiff worked as a salesperson and fitness advisor. Plaintiff is represented by: Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 Email: mtompkins@leedsbrownlaw.com FORD AUSTRALIA: 1,500 Disgruntled Customers File Class Action ------------------------------------------------------------- Rebecca Sullivan, writing for news.com.au, reports that 1,500 disgruntled Ford customers filed a class action. David Storos was driving his Ford Focus home from the shops last month when an unmarked police car pulled him over, just as he was about to turn into his driveway. The 56-year-old lives on a quiet cul-de-sac in suburban Sydney, so the police siren and its blue and red flashing lights soon drew curious neighbors out onto the street. "The cop comes over and says 'Can I see your license please? We're going to do a random breath test'. I said sure, but I hadn't been drinking, so I asked why she wanted to do a random breath test," Mr. Storos told news.com.au. "She said 'We feel that you don't have control over your car'. I tried to explain to her that I have this dodgy lemon Ford Focus that lurches and jerks, but she didn't believe me. "She said 'Look, I'm very close to issuing you with a traffic infringement notice for not having proper control over your vehicle, but I can see that you're almost home'." (NSW Police couldn't confirm the incident to news.com.au because no warning was issued). By this point, Mr. Storos' neighbors and his family were all watching. "They were probably wondering 'What on earth has this guy done?' Even my granddaughter said to my daughter, 'Is grandad going to the police?'" Mr. Storos, who bought his car for $27,500 in 2014, says this is the fourth Ford Focus he's owned. "I've always been a Ford person," he said. "You'll never see me in a Holden, but after this experience I'm never buying a Ford again." He is one of the 1,500 disgruntled Ford customers who are suing the company as part of a class action case, which recently returned to court. (The law firm representing the case says they have been contacted by more than 7,000 Ford owners). Lawyers are accusing Ford of misleading and deceptive conduct in selling 22 different models of Fiesta, Focus and EcoSport vehicles between 2011 and this year. More than 70,000 allegedly dodgy cars could be affected. The affected models are equipped with the Ford PowerShift transmission, which promises to deliver "acceleration much smoother than a conventional automatic". This technology has the features of a manual gearbox but is designed to drive like an automatic. But cars with Ford's PowerShift transmission technology have been nicknamed "shutterboxes" by unhappy customers because they shudder and jerk unexpectedly. "This car doesn't know what the f*** it's doing," Mr. Storos said. "It's shuddering and slipping and jerking. The gear changes are quite bumpy and quite chunky. Driving on freeways is OK, but at low speeds, it's a piece of s***. "The dealers feed you so much bulls*** and say, 'You need to learn how to drive the car', but they never told me that when I bought the car." Mr. Storos, who works as a law agent, now only drives the car from his home to the train station and the local shops. "Even if I wanted to sell it, no one wants to buy it. The car has 19,000 kilometers on it, but I'd be lucky to get $10,000 for it," he said. On Aug. 3, when the case returned to the Federal Court, it was revealed that members of the class action had contacted Ford and tried to arrange out-of-court settlement deals. These deals usually involved a trade in on a more expensive car. Professor Peter Cashman, acting for Bannister Law, said Ford owners were not being provided with "any explanation of the legal consequences" before entering into the agreements, which often include a confidentiality clause. "Normally when you buy a car you're not expected to enter into a confidentiality agreement. It's an odd requirement," Prof Cashman said. As news.com.au reported in June, many disgruntled customers who have tried to trade in their dodgy Ford cars have been asked to sign confidentiality agreements as part of the deal. "You agree that you will not take any actions . . . which would have the effect of interfering with or preventing the normal trading activities of Ford Australia or any other authorized Ford dealer," the agreement says. "This offer is subject to being kept strictly confidential between you and Ford Australia." A Ford Australia spokesman said it was "standard commercial practice" for legal settlements to include a confidentiality agreement. "Where we settle a claim with a customer by providing a refund or replacement vehicle or other financial contribution, it is standard practice for the agreement to include a confidentiality clause, and the confidentiality obligation only applies to the terms of the settlement," he said. "We encourage any customers who have questions to work with their local dealers on their individual circumstances." Prof. Cashman argued that Ford, who had asked the law firm running the case for its list of clients, should be restrained from contacting people involved in the class action. He asked that Ford be open and honest with people before offering out-of-court settlements, including an acknowledgment at the top of the letter that they could no longer be involved in the class action. It will take up to two weeks for the court to decide whether it will require Ford to include more detail and transparency in its settlement deals. The class action case against Ford is built on the experience of a Victorian woman Billie Capic who was "frightened for her life" after a power loss while driving her 2012 Focus Sport in February this year. Miss Capic also experienced uncontrolled movement of the car, sudden gear changes and gear-skipping. The lawsuit alleges the cars are not of acceptable quality, as defined under Australian Consumer Law and that Ford knew of the problems. The vehicles have never been recalled. The action seeks refunds or the difference between the purchase price and the true value of the vehicles, as well as aggravated damages. The cost of refunding 70,000 cars at an average price of $25,000 would be $1.75 billion. FREDDIE MAC: Dismissal of Retirement System's Case Reversed ----------------------------------------------------------- Federal Home Loan Mortgage Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Court of Appeals has reversed the District Court's dismissal of the case, OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM VS. FREDDIE MAC, SYRON, ET AL., and remanded the case to the District Court for further proceedings. This putative securities class action lawsuit was filed against Freddie Mac and certain former officers on January 18, 2008 in the U.S. District Court for the Northern District of Ohio purportedly on behalf of a class of purchasers of Freddie Mac stock from August 1, 2006 through November 20, 2007. FHFA later intervened as Conservator, and the plaintiff amended its complaint on several occasions. The Company said, "The plaintiff alleged, among other things, that the defendants violated federal securities laws by making false and misleading statements concerning our business, risk management, and the procedures we put into place to protect the company from problems in the mortgage industry. The plaintiff seeks unspecified damages and interest, and reasonable costs and expenses, including attorney and expert fees." In October 2013, defendants filed motions to dismiss the complaint. In October 2014, the District Court granted defendants' motions and dismissed the case in its entirety against all defendants, with prejudice. In November 2014, plaintiff filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit. On July 20, 2016, the Court of Appeals reversed the District Court's dismissal and remanded the case to the District Court for further proceedings. "At present, it is not possible for us to predict the probable outcome of this lawsuit or any potential effect on our business, financial condition, liquidity, or results of operations. In addition, we are unable to reasonably estimate the possible loss or range of possible loss in the event of an adverse judgment in the foregoing matter due to the following factors, among others: the inherent uncertainty of pre-trial litigation and the fact that the District Court has not yet ruled upon motions for class certification or summary judgment. In particular, absent the certification of a class, the identification of a class period, and the identification of the alleged statement or statements that survive dispositive motions, we cannot reasonably estimate any possible loss or range of possible loss," the Company said. FREDDIE MAC: Stay Lifted in Jacobs and Hindes Case -------------------------------------------------- Federal Home Loan Mortgage Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the stay has been lifted in the litigation in the U.S. District Court for the District of Delaware, Jacobs and Hindes vs. FHFA and Treasury. This case was filed on August 17, 2015 as a putative class action lawsuit purportedly on behalf of a class of holders of preferred stock or common stock issued by Freddie Mac or Fannie Mae. The case was also filed as a shareholder derivative lawsuit, purportedly on behalf of Freddie Mac and Fannie Mae as "nominal" defendants. The complaint alleges, among other items, that the August 2012 amendment to the Purchase Agreement violated applicable state law and constituted a breach of contract, as well as a breach of covenants of good faith and fair dealing. Plaintiffs seek equitable and injunctive relief (including restitution of the monies paid by Freddie Mac and Fannie Mae to Treasury under the net worth sweep dividend), compensatory damages, attorneys' fees, costs and expenses. The case was stayed pending resolution of FHFA's motion to the U.S. Judicial Panel on Multidistrict Litigation to transfer this case to the U.S. District Court for the District of Columbia. This motion was denied on June 2, 2016, and the stay was lifted on July 13, 2016. FRONTIER DRILLING: Court Grants Prelim. OK of "Miller" Suit Deal ---------------------------------------------------------------- Based upon a review of the parties' Joint Motion for Preliminary Approval of Class and Collective Action Settlement, as well as all corresponding exhibits and papers submitted in connection with the Joint Motion, Hon. David Nuffer granted preliminary approval of the settlement memorialized in the parties' settlement agreement in the lawsuit styled JUSTIN MILLER, individually and on behalf of all others similarly situated v. FRONTIER DRILLING, LLC, Case No. 2:15-cv-00423-DN (D. Utah). Mr. Miller brought the Action, on behalf of himself individually and others similarly-situated, alleging that Frontier Drilling denied him and other Field Specialists overtime pay due under the Fair Labor Standards Act and similar state laws. The parties have filed a Joint Motion for Preliminary Approval of Class and Collective Action Settlement. For settlement purposes only, this FLSA Class is provisionally certified: All hourly employees of Frontier Drilling who worked overtime hours, received a bonus during the period October 1, 2012 to present, and who are eligible to receive a minimum of $5 for alleged overtime damages. For settlement purposes only, this Rule 23 Class is provisionally certified under Rule 23(e) of the Federal Rules of Civil Procedure. The Rule 23 Class will be defined as consisting of: All hourly employees of Frontier Drilling who worked overtime hours in North Dakota, received a bonus during the period October 1, 2012 to present, and who are eligible to receive a minimum of $5 for alleged overtime damages. Judge Nuffer also appointed Bruckner Burch PLLC as Class Counsel. Mr. Miller is appointed as the class representative. The Final Approval Hearing is scheduled for January 10, 2017, at 3:00 p.m. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=AKovQH3L GAW MINERS: Audet et al. Seek Certification of Class ---------------------------------------------------- In the lawsuit titled DENIS MARC AUDET, MICHAEL PFEIFFER, DEAN ALLEN SHINNERS, and JASON VARGAS, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. HOMERO JOSHUA GARZA, STUART A. FRASER, GAW MINERS, LLC, and ZENMINER, LLC, (d/b/a ZEN CLOUD), the Defendants, Case No. 3:16-cv-00940-MPS (D. Conn.), the Plaintiffs move for class certification and a stay of all briefing and other proceedings in connection with pending entry of a Scheduling Order setting a schedule for all briefing and other proceedings concerning class certification. The Plaintiffs made the motion solely for the purpose of avoiding any dispute over whether this case would become moot in the event Defendant files an offer of judgment. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=a3HMjL8t The Plaintiff is represented by: Mark P. Kindall, Esq. Robert A. Izard, Esq. IZARD, KINDALL & RAABE, LLP 29 S. Main St., Suite 305 West Hartford, CT 06107 Telephone: (860) 493 6292 Facsimile: (860) 493 6290 E-mail: mkindall@ikrlaw.com rizard@ikrlaw.com - and - Marc Seltzer, Esq. Kathryn Hoek, Esq. Seth Ard, Esq. Matthew Allen, Esq. SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067 Telephone: (310) 789 3100 Facsimile: (310) 789-3150 E-mail: mseltzer@susmangodfrey.com khoek@susmangodfrey.com sard@susmangodfrey.com mallen@susmangodfrey.com GENERAL MOTORS: Faces "Shannon" Suit in District of New Jersey -------------------------------------------------------------- A lawsuit has been filed against General Motors, LLC. The case is captioned CHARLES SHANNON, on behalf of himself and all other persons similarly situated, the Plaintiff, v. GENERAL MOTORS, LLC, the Defendant, Case No. 1:16-cv-04932-RMB-AMD (D.N.J., Aug. 11, 2016). The assigned Judge is Hon. Renee Marie Bumb. General Motors, commonly known as GM, is an American multinational corporation headquartered in Detroit, Michigan, that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services. The Plaintiff is represented by: Bruce Heller Nagel, Esq. NAGEL RICE, LLP 103 Eisenhower Parkway, Suite 201 ROSELAND, NJ 07068 Telephone: (973) 618 0400 Facsimile: (973) 618 9194 E-mail: bnagel@nagelrice.com - and - Joseph Lopiccolo, Esq. POULOS LOPICCOLO PC 1305 South Roller Road OCEAN, NJ 07757 Telephone: (732) 757 0165 E-mail: lopiccolo@pllawfirm.com GERON CORPORATION: Bid for Class Cert. Sought in Securities Case ---------------------------------------------------------------- In the lawsuit In re: GERON CORPORATION SECURITIES LITIGATION, Case No. 3:14-cv-01224-CRB (N.D. Cal.), Lead Plaintiff Vinod Patel asks the Court to certify a class of: "all persons who purchased or otherwise acquired Geron common stock between December 10, 2012 and March 11, 2014, inclusive, at artificially inflated prices, and who were damaged thereby (the Class)". The Plaintiff further asks the Court for an order: a. appointing Lead Plaintiff Vinod Patel as Class Representative; b. appointing Faruqi Firm as Class Counsel; and c. granting Lead Plaintiff any further relief the Court deems just and proper. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=c33mubXs The Plaintiff is represented by: Richard W. Gonnello, Esq. Megan M. Sullivan, Esq. Katherine M. Lenahan, Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983 9330 Facsimile: (212) 983 9331 E-mail: rgonnello@faruqilaw.com msullivan@faruqilaw.com klenahan@faruqilaw.com - and - Barbara Rohr, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256 2884 Facsimile: (424) 256 2885 E-mail: brohr@faruqilaw.com GIA + 4 CORP: Fails to Pay Proper Overtime, "Bardles" Suit Alleges ----------------------------------------------------------------- Edwin Ramos Bardles, Individually, and on behalf of all others similarly situated v. Gia + 4 Corp., a/k/a Puma Body Works, Case No. 2:16-cv-04479 (E.D.N.Y., August 10, 2016), alleges that the Plaintiff and the proposed class members are entitled to unpaid wages from the Defendant for working more than 40 hours in a week and not being paid an overtime rate of at least 1.5 times the regular rate for each and all those hours over 40 in a week. Gia + 4 Corp. is a New York for-profit corporation. The Company provides auto body services and repairs. The Company operated a place of business in Island Park, New York, where the Plaintiff was employed. The Plaintiff is represented by: Abdul K. Hassan, Esq. 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 355-9668 E-mail: abdul@abdulhassan.com GOLDEN ABACUS: "Garcia" et al. Seek Overtime Wages Under FLSA ------------------------------------------------------------- ADELFO GAVILAN GARCIA, CESAR GAYOSSO, GABRIEL TECUN, HAGEO CARDONA, LUIS FERNANDEZ ESCOBAR FLORES and MIGUEL ANGEL DIAZ GONZALEZ, individually and on behalf of others similarly situated, the Plaintiffs, v. GOLDEN ABACUS INC. (d/b/a BARKOGI), DANNY P. LOUIE, LAURA WONG and ALBERT C. YUEN, the Defendants, Case No. 1:16-cv-06252 (S.D.N.Y., Aug. 5, 2016), seeks to recover minimum and overtime wages and liquidated damages, interest, costs, and attorneys' fees for violations of the Fair Labor Standards Act (FLSA), and the New York Labor Law. According to the complaint, the Plaintiffs were employed as dishwasher, chicken fryers, cooks, and ostensibly as bus boy, food runner, and delivery workers. The Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate minimum wage or overtime compensation for the hours that they worked. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. The Defendants own, operate, and/or control a Korean restaurant located at 957 2nd Avenue, New York, New York 10022 under the name BarKogi. The Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2540 New York, NY 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 GOOD SAMARITAN REGIONAL: Outcome Varies in Consolidated Appeal -------------------------------------------------------------- Judge Marsha Siegel Berzon of the United States Court of Appeals, Ninth Circuit, ruled on the consolidated appellate case entitled SUSAN KOBOLD, Plaintiff-Appellant, v. GOOD SAMARITAN REGIONAL MEDICAL CENTER, Defendant-Appellee. LARRY BARR; ANTHONY BARTON; STEPHEN BUSCH; BRIAN CARLSON; PETER DENNIS; DAN DORR; CLARK GOBLE; WARREN MARTIN; BILLY PIERCE; JESSE ROBINSON; DAVID SHATTO; DOUGLAS TOELKES, Plaintiffs-Appellants, v. ROSS ISLAND SAND & GRAVEL CO., Defendant-Third-Party-Plaintiff-Appellee, v. OREGON TEAMSTERS EMPLOYERS TRUST; GENERAL TEAMSTERS LOCAL UNION NO. 162, Third- Party-Defendant. ONA C. ALLEN, Plaintiff-Appellant, v. NORTHWEST PERMANENTE, P.C., an Oregon corporation, Defendant-Appellee, Nos. 13-35528, 13-35590, 13-35265 (9th Cir.) The three cases in the consolidated appeal, Kobold v. Good Samaritan Regional Medical Center, Barr v. Ross Island Sand & Gravel Co., and Allen v. Northwest Permanente, involved different parties and facts, but are similar in important ways, according to the Ninth Circuit. All 3 cases involved employees represented by labor unions who seek remedies under state law against their employers. In all 3, there is a collective bargaining agreement between the union and the employer setting out a grievance and arbitration procedure to govern disputes arising under the agreement. And in all 3, a grievance was filed but did not provide full relief, prompting the employee to turn to the courts. All the employees initially filed their cases in state court, but the cases were removed to federal court on the basis of preemption under Section 301 of the Labor Management Relations Act, 29 U.S.C. Section 185(a). In all the cases, the district court denied a motion to remand and held the state law claims preempted. Judge Berzon affirmed the district court's grant of summary judgment to Good Samaritan in Kobold case. In Barr suit, Judge Berzon affirmed the district court's grant of summary judgment to RISG as Barr's money had and received claim, but reversed as to plaintiffs' Or. Rev. Stat. Section 652.610(4) and breach of fiduciary duty claims, and remanded to the district court to decide whether to exercise supplemental jurisdiction over the Section 652.610(4) and breach of fiduciary duty claims. In Allen, Judge Berzon affirmed the district court's denial of Allen's motion to remand as well as its grant of summary judgment to Northwest Permanente, P.C.. A copy of Judge Berzon's opinion dated August 9, 2016, is available at http://goo.gl/xCLUoXfrom Leagle.com. Thomas K. Doyle -- doylet@bennetthartman.com -- at Bennett, Hartman, Morris & Kaplan, for Plaintiff-Appellant Susan Kobold Kirk Peterson -- kpeterson@bullardlaw.com -- at Bullard Law, for Defendant-Appellee Good Samaritan Regional Medical Center Elizabeth Farrell Oberlin; Benjamin Rosenthal, for Plaintiffs- Appellants Larry Barr, et al. Ankur H. Doshi; Kamyavathana Sivanesan; Sheeba Suhaskumar, for Defendant-Third-Party-Plaintiff-Appellee Ross Island Sand & Gravel Co. Matthew Caruso Ellis; George P. Fisher, for Plaintiff-Appellant Ona C. Allen Chris Kitchel -- chris.kitchel@stoel.com -- James N. Westwood -- james.westwood@stoel.com -- Brenda K. Baumgart -- brenda.baumgart@stoel.com -- at Stoel Rives LLP for Defendant- Appellee Northwest Permanente, P.C. GORDMANS STORES: Cox Seeks to Certify Class of Assistant Managers ----------------------------------------------------------------- Pursuant to Section 216(b) of the Fair Labor Standards Act, the Plaintiffs ask for an order certifying the case styled STEVE COX and SAMUEL R. MASON, individually and on behalf of a class of others similarly situated v. GORDMANS STORES, INC., Case No. 4:16- cv-00219-RLW (E.D. Mo.), as a collective action for a class consisting of: any person employed by Gordmans Stores, Inc. as an Assistant Store Manager, Assistant Store Manager Operations, or any Assistant Manager position, however variously titled, from February 18, 2013 through the present. (the "FLSA Collective"). The Plaintiffs also seek an order directing Gordmans to provide the Plaintiffs' counsel with computer-readable contact data for the members of the FLSA Collective, and authorizing notice to all members of the FLSA Collective. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=sue9ScAt The Plaintiffs are represented by: George A. Hanson, Esq. Alexander T. Ricke, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: hanson@stuevesiegel.com ricke@stuevesiegel.com - and - Gregg I Shavitz, Esq. Susan H. Stern, Esq. Camar Jones, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Highway, Suite 404 Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: gshavitz@shavitzlaw.com sstern@shavitzlaw.com cjones@shavitzlaw.com HARBOR FREIGHT: Sued by Morgan for Selling Faulty Connection Kits ----------------------------------------------------------------- RANDY M. MORGAN, on behalf of himself and those similarly situated v. HARBOR FREIGHT TOOLS USA, INC., a Delaware Corporation, Case No. 2:16-cv-05980 (C.D. Cal., August 10, 2016), is brought on behalf of persons in the United States, who purchased Thunderbolt Magnum Solar Power Connection Cable Kits marketed and distributed by Harbor Freight. The Connection Kits have defects that are inherent in the battery clamp and the result of the manufacturing flaws manifest during the warranty period and the useful life of the product, Mr. Morgan alleges. Harbor Freight is an entity formed under the laws of the state of Delaware with its principal place of business located in Calabasas, California. The Company operates more than 600 stores nationwide offering tools and related items in automotive, shop equipment, and air and power tools. The Company also markets, distributes, and sells the Connection Kits both directly to consumers and through an established network of retailers. The Plaintiff is represented by: Barbara A. Rohr, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256-2884 Facsimile: (424) 256-2885 E-mail: brohr@faruqilaw.com - and - Adam Gonnelli, Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: agonnelli@faruqilaw.com - and - Bonner C. Walsh, Esq. WALSH PLLC P.O. Box 7 Bly, OR 97622 Telephone: (541) 359-2827 Facsimile: (866) 503-8206 E-mail: bonner@walshpllc.com HONEST CO: MDL Panel Orders Transfer of Consumer Suit to L.A. ------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that Jessica Alba's The Honest Co. will face lawsuits by its customers in its hometown of Los Angeles after a federal panel ordered about a dozen cases to be transferred to U.S. District Judge Andre Birotte. About a dozen class actions have accused The Honest Co. of misrepresenting the ingredients in several of its products. The company was founded in 2012 as a healthier alternative for most baby, cosmetic and household products. Most of the suits allege that its laundry detergent, dish soap and multiple-surface cleaner contain sodium lauryl sulfate, which can irritate the skin, despite statements by the company that it doesn't use the harsh chemical. Others claim its organic infant formula isn't actually organic and that its sunscreen doesn't work at all. Two suits also name Alba, co-founder of the company and an actress best known for her roles in the TV show "Dark Angel" and the film "Fantastic Four." The U.S. Judicial Panel on Multidistrict Litigation ordered on Aug. 5 that the litigation be transferred to Judge Birotte, who is overseeing about half of the cases. In a growing trend, the panel noted that Judge Birotte, who was the U.S. attorney in the Central District of California for four years before President Obama appointed him to the bench in 2014, had not yet overseen an MDL. In June, the panel selected U.S. District Judge Ketanji Brown Jackson of the District of Columbia to oversee her first MDL. About 40 lawsuits filed on behalf of the families of those who died in the presumed crash of Malaysia Airlines Flight 370 two years ago. The suits against The Honest Co. come as the company, valued at about $1.7 billion, has been working this year to go public, and after The Wall Street Journal published an article citing independent lab tests that found sodium lauryl sulfate in its laundry detergent. The Honest Co. has denied the claims. IMPRIVATA INC: Defending Against Securities Suit ------------------------------------------------ Imprivata, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company intends to defend a securities class action lawsuit. The Company said, "On February 2, 2016, we and certain of our executive officers and directors were named as defendants in a purported securities class action lawsuit. The complaint, brought on behalf of all persons who purchased our common stock between July 30, 2015 and November 2, 2015, generally alleges that we and such executive officers made false and/or misleading statements about the demand for our IT security solutions and sales trends and failed to disclose facts about our business, operations and performance." "Although we believe this action has no merit and intend to defend it vigorously, this lawsuit and any future lawsuits to which we may become a party are subject to inherent uncertainties and may be expensive and time-consuming to investigate, defend and resolve, and it may divert our management's attention and financial and other resources. The outcome of any litigation is necessarily uncertain, and we could be forced to expend significant resources in the defense of this and other suits, and we may not prevail." INTEL: Recalls Basis Peak Smartwatch for Safety Reasons ------------------------------------------------------- Richard Waters, writing for Financial Times, reports that Intel has suffered a setback in its efforts to become a leader in the emerging market for wearable devices, after being forced to recall a smartwatch for safety reasons. The world's biggest chipmaker said it had taken the drastic step of telling all customers to return the watch, called the Basis Peak, after finding it "can overheat, which could result in burns or blisters on the skin surface". It had already warned users to stop wearing the device in June after first hearing complaints. "We are aware that a small number of customers have reported discomfort, blistering or burns on their wrist under the watch body," Intel said. It did not say how many watches it had sold or how many had malfunctioned, though it put the number of "reported cases" of problems at one in 500 at the time of its first warning. Intel had also said some customers had complained of "overheating and melting of their charging cradles". The Peak was developed by Basis Science, a start-up that Intel acquired in 2014 as it tried to get a jump on what, at the time, was expected to be a big new market for smartwatches and fitness trackers. Expectations were rising that smartwatches could become a popular extension of the smartphone computing platform, though Apple's Watch, launched a year later, has failed to give the category the lift many in the tech world had hoped. Described as "the ultimate sleep and fitness tracker", the Peak went on sale in November 2014. It was part of an effort by Intel to develop basic designs and so-called "systems-on-a-chip" for wearable devices, which it could then sell to a wide range of manufacturers. Intel said the smartwatch had been made by an unnamed company in China, reflecting the widespread use of contract manufacturers there to produce devices for the rapid product cycles often seen in consumer electronics. Preventing devices from becoming warm is a common problem in the wearable market, given that they pack considerable computing power into a small form factor and are worn next to the skin. Fitbit, for instance, has been on the receiving end of lawsuits claiming overheating and other issues with its range of fitness and health monitoring wristbands, settling a class action case in 2014 over complaints that adhesives in one of its wristbands caused skin irritation. Intel said it would pay a full refund, including the tax and shipping costs, of $234 to customers in the US and EUR244 in Europe. IXIA: $3,500,000 Settlement Has Final Approval ---------------------------------------------- Ixia said in its Form 8-K Report filed with the Securities and Exchange Commission on August 2, 2016, that on August 1, 2016, following a hearing on July 29, 2016, the U.S. District Court for the Central District of California (the "Court") entered an order (the "Final Order") granting final approval of the Stipulation and Agreement of Settlement, dated November 11, 2015, providing for the settlement of the securities class action, captioned Oklahoma Firefighters Pension & Retirement System, et al. v. Ixia, et al., filed against the Company and certain of its current and former officers and directors (the "Class Action Settlement Agreement"). The Class Action Settlement Agreement provides, among other terms, for a settlement payment in the amount of $3,500,000. The Court had granted preliminary approval of the settlement in an order dated February 29, 2016. In March 2016, one of the Company's insurance carriers funded the settlement payment into an escrow account established pursuant to the Class Action Settlement Agreement. The Final Order also approved the award of attorneys' fees and expenses to Plaintiffs' counsel in the amount of $1,135,000, which will be paid from the settlement payment that is being held in the escrow account. The Final Order is subject to appeal. In the event no appeal is filed, the settlement will become effective at the end of the appeal period, which is 30 days from August 1, 2016, the date the Final Order was entered by the Court. JEFFERSON CAPITAL: Class Certification Bid in "Zuniga" Continued ---------------------------------------------------------------- In the lawsuit styled DOMINGO ZUNIGA, an individual, on behalf of himself and all others similarly situated, the Plaintiff, v. JEFFERSON CAPITAL SYSTEMS, LLC; and FINANCIAL BUSINESS AND CONSUMER SOLUTIONS, INC., d/b/a FBCS INC. and FBCS, the Defendants, Case No. 4:16-cv-00526-ALM (E.D. Tex.), the Hon. Judge Amos L. Mazzant on Aug. 12 granted Plaintiff's request to continue the motion for class certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=gQRYuZPB JETT PRO: Initial Bid for Class Certification Withdrawn ------------------------------------------------------- In the lawsuit titled Cortney Bernier and Brian Cope, the Plaintiffs, v. Jett Pro Line Maintenance Corp., the Defendant, Case No. 5:16-cv-11368-JEL-EAS (E.D. Mich.), the parties stipulate and agree that Plaintiffs are granted leave to file their First Amended Complaint and that Plaintiffs' pending motion for conditional certification is withdrawn without prejudice. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=S7lySB7g The Plaintiff is represented by: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High Street Columbus, OH 43207 Telephone: (614) 949 1181 E-mail: mcoffman@coffmanlegal.com - and - Matthew B. Bryant, Esq. Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 6600 W. Sylvania Avenue, Suite 260 Sylvania, OH 43560 Telephone: (419) 824-4439 E-mail: mbryant@bryantlegalLLC.com dbryant@bryantlegalLLC.com The Defendant is represented by: Allan S. Rubin, Esq. Paul A. Caligiuri, Esq. JACKSON LEWIS P.C. 2000 Town Center, Suite 1650 Southfield, MI 48075 Telephone: (248) 936 1900 E-mail: rubina@jacksonlewis.com paul.caligiuri@jacksonlewis.com - and - Gregory W. Guevara, Esq. BOSE McKINNEY & EVANS LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Telephone: (317) 684 5000 E-mail: GGuevara@boselaw.com JETT PRO: Bernier, et al. Seek Certification of FLSA Class ---------------------------------------------------------- In the lawsuit entitled Cortney Bernier, et al., Individually and on behalf of other members of the general public similarly situated, the Plaintiffs, v. Jett Pro Line Maintenance, Corp., Defendant, Case No. 5:16-cv-11368-JEL-EAS (E.D. Mich.), the Plaintiffs move the Court for entry of an order pursuant to the Fair Labor Standards Act (FLSA): (1) conditionally certifying the collective FLSA class of: a) "All current and former misclassified station managers of Defendant, who worked over 40 hours in any workweek during the previous three (3) years through the date of final disposition of this case, and were not paid time and half for the hours they worked over 40 due to Defendant's misclassification as exempt and the improper automatic meal period deduction policy when they worked in excess of six hours on any shift, but were unable to take a 0.5 hour uninterrupted meal break", and b) "All current and former hourly, non-exempt technicians of Defendant, who worked over 40 hours in any workweek during the previous three (3) years through the date of final disposition of this case, and were not paid time and half for the hours they worked over 40 due to Defendant's improper automatic meal period deduction policy when they worked in excess of six hours on any shift, but were unable to take a 0.5 hour uninterrupted meal break"; (2) implementing a procedure whereby Court-approved Notice of Plaintiffs' FLSA claims is sent (via U.S. Mail and e-mail) to the class; and (3) requiring Defendant to, within 14 days of the Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs who worked for Defendant at any time in any location in the United States for the three years immediately preceding the filing of this motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=cxFxyDA8 The Plaintiff is represented by: Matthew B. Bryant, Esq. Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 6600 W. Sylvania Avenue, Suite 260 Sylvania, Ohio 43560 Telephone: (419) 824 4439 Facsimile: (419) 932 6719 Email: mbryant@bryantlegalLLC.com dbryant@bryantlegalLLC.com - and - Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, Ohio 43207 Telephone: (614) 949-1181 Facsimile: (614) 386-9964 E-mail: mcoffman@mcoffmanlegal.com JOHNSON & JOHNSONS: Plaintiffs Want Talcum Powder Case Stayed ------------------------------------------------------------- HarrisMartin Publishing reports that Plaintiffs in a class action talcum powder lawsuit filed against Johnson & Johnsons two years ago in California have asked the federal court overseeing the lawsuit to stay the proceeding in light of the recent motion to create a coordinated docket for the pending talc-based powder product litigation. In a July 28 motion filed in the U.S. District Court for the Eastern District of California, the plaintiffs noted that the discovery in the case had been stayed pending the court's ruling on a defense motion to dismiss the first amended complaint. JP MORGAN: Settles Class Action Over Inmate Debit Card Fees ----------------------------------------------------------- Ben McLannahan, writing for The Financial Times, reports that it was a program designed to help prisoners back into society with a bit of cash and a bank account. But according to a class-action lawsuit against JPMorgan Chase, which recently settled, it stung former inmates with a string of unusual and exorbitant charges. The biggest US bank by assets won a government contract in 2008 to supply former inmates of all federal prisons across the country with a prepaid, non-refillable debit card, which they could use to access money they had earned, or been sent, while behind bars. But former inmates complained that they were not allowed to review or approve the terms and conditions attached to the cards, which were much tougher than those available to regular customers on the outside. For example, former inmates paid $10 to get money from a teller window, which was a service offered for free to regular cardholders. Chase, JPMorgan's retail banking arm, would charge former inmates $24.50 to replace a lost card quickly, almost five times the regular fee, and would charge $1.50 if the account was inactive for a month. Ex-convicts also had to pay 45 cents -- perhaps the equivalent of two hours' labour inside -- just to check their account balance. "This was a 'take it or leave it' endeavor," said Ken Grunfeld, an attorney at Golomb & Honik, a Philadelphia law firm which led the class action. "Talk about a captive audience; these people had to take this card, or their money would be denied to them." JPMorgan agreed to pay $446,822 to reimburse thousands of former inmates, according to a filing on Aug. 1 in federal court in Philadelphia. The bank also agreed to pay as much as $250,000 in plaintiffs' fees and costs, the filing said. JPMorgan declined to comment on the lawsuit, which was filed last September, or the debit card program, which began in 2012. The US Department of Treasury, which awarded the bank the contract, was not immediately available to comment. Chase has started waiving charges associated with the program in recent weeks, according to a person briefed on the fee schedule. The suit was led by Jesse Krimes, a Philadelphia-based artist who was sent to prison in 2009 for possession of cocaine with intent to distribute. After his release to a halfway house almost six years later, with about $250 to his name, he was dismayed to see a "slew" of charges on his first Chase statement. He said he had been given no notice of the fees. "Everything about the federal prison system is designed to grind you into hopelessness," he said. "Coming home and trying to piece together a stable life, to have this very wealthy bank preying on you, was just unconscionable." Mr. Krimes, 33, was arrested with 157g of cocaine soon after his graduation from art school. KERYX PHARMACEUTICALS: Glancy Prongay Files Class Action in N.Y. ---------------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") on Aug. 3 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of investors who purchased Keryx Pharmaceuticals, Inc. ("Keryx" or the "Company") securities between February 25, 2016, and August 1, 2016, inclusive (the "Class Period"). Keryx investors have sixty days from the date of this notice to file a lead plaintiff motion. Investors suffering losses on their Keryx investments are encouraged to contact Lesley Portnoy of GPM to discuss their legal rights in this class action at 310-201-9150 or by email to shareholders@glancylaw.com The complaint filed in this lawsuit alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose: (1) that the Company was experiencing production-related difficulties in converting API to finished drug product; (2) that the issue was resulting in decreased production yields of finished drug product; (3) that, as a result, the Company would, and did exhaust its reserve of finished drug product; and (4) that, as a result of the foregoing, Defendants' statements about Keryx's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. If you purchased shares of Keryx during the Class Period you have sixty days from the date of this notice to ask the Court to appoint you as lead plaintiff if you meet certain legal requirements. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at http://glancylaw.com If you inquire by email please include your mailing address, telephone number and number of shares purchased. KING BEE: Judge Narrows Claims in "Williams" Suit ------------------------------------------------- Senior District Judge Joseph M. Hood of the Eastern District of Kentucky, Central Division, Lexington, granted in part and denied in part defendants' motion to dismiss in the case CRAIG WILLIAMS, On behalf of himself & all others similarly situated, et al., Plaintiffs, v. KING BEE DELIVERY, LLC, and BEE LINE COURIER SERVICES, INC., Defendants, Action, No. 5:15-cv-306-JMH (E.D. Ky.) Defendants King Bee Delivery, LLC and Bee Line Courier Services, Inc., are in the delivery business and provide delivery services for a range of businesses, including hospitals. Plaintiffs Craig Williams, John Williams, and Fred Berry are the individual couriers who load and drive vehicles, delivering retail merchandise to defendants' customers' businesses. Plaintiffs claim that defendants have unlawfully misclassified them as independent contractors when, in fact, they are defendants' employees. Plaintiffs contend that the misclassification constitutes violations of the Federal Labor Standards Act, as well as the Kentucky Wage and Hour Act, and has deprived them of overtime pay to which they are entitled. Additionally, plaintiffs claim defendants violated the Kentucky Act by making deductions from their pay for administrative fees and equipment that defendants required them to use in the course of their jobs. Defendants contend plaintiffs' amended complaint should be dismissed in its entirety because the allegations do not sufficiently allege that plaintiffs are defendants' employees and, even if they have, plaintiffs have failed to state a plausible claim for unpaid overtime wages or any other relief under FLSA or the KWHA. Defendants further argue that some of the relief sought is unavailable under both the FLSA and the KWHA. Senior District Judge Hood granted in part and denied in part defendants' motion to dismiss. A copy of Senior District Judge Hood's memorandum opinion and order dated August 8, 2016, is available at http://goo.gl/m54iWI from Leagle.com. Plaintiffs, represented by Benjamin J. Weber -- bweber@llrlaw.com -- Harold L. Lichten -- hlichten@llrlaw.com -- at Lichten & Liss- Riordan, PC; Trent Taylor -- ttaylor@barkanmeizlish.com -- at Barkan Meizlish Handelman Goodin DeRose Wentz Defendants, represented by Keith Moorman -- kmoorman@fbtlaw.com -- Kyle Donald Johnson -- kjohnson@fbtlaw.com -- Robert C. Webb -- bwebb@fbtlaw.com -- at Frost Brown Todd LLC LES BRASSEURS: Faces "Comonfort" Suit in S.D. of New York --------------------------------------------------------- A lawsuit has been filed against Les Brasseurs Inc. The case is styled Albino Comonfort, individually and on behalf of others similarly situated, the Plaintiff, v. Les Brasseurs Inc., doing business as La Mangeoire; Gerardo Donato; and Eric Cerato, the Defendant, Case No. 1:16-cv-06389 (S.D.N.Y., Aug. 11, 2016). Les Brasseurs is a microbrewery located in Montreal, Quebec, Canada. The Plaintiff appears pro se. LEWIS ENERGY: Villarreal Seeks Certification of Class ----------------------------------------------------- In the lawsuit styled ARNOLD VILLARREAL, Individually and on behalf of all others similarly situated, the Plaintiff, v. LEWIS ENERGY GROUP, L.P. and LEWIS RESOURCE MANAGEMENT, LLC, the Defendant, Case No. 5:15-cv-00240 (S.D. Tex.), the Plaintiff asks the Court to certify a class of: "all current and former drilling welders who worked for Lewis Energy Group, L.P. and Lewis Resource Management, LLC in the past 3 Years and were paid hourly but no overtime". The Plaintiff further asks the Court for an order: (1) conditionally certifying the action for purposes of notice and discovery; (2) ordering that judicially-approved notice be sent to all Putative Class Members; (3) approving the form and content of Plaintiff's proposed judicial notice and reminder notice; (4) ordering Defendants to produce to Plaintiff's counsel the contact information (including the name, address, and e-mail address) for each Putative Class Member in a usable electronic format such as Excel; (5) authorizing a 60-day notice period for Putative Class Members to join the case; and (6) authorizing notice to be sent via First Class Mail and e-mail to the Putative Class Members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=7VZRB2yT The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452 1279 Facsimile: (361) 452 1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com LIFE INSURANCE: Certification of Classes Sought in "Dolemba" Suit ----------------------------------------------------------------- Scott Dolemba asks that the Court enter an order determining that the action captioned SCOTT DOLEMBA, on behalf of plaintiff and the classes defined below v. THE LIFE INSURANCE CENTER, LLC, CRUMP LIFE INSURANCE SERVICES, INC., doing business as INSURENOW DIRECT; and DOES 1-10, Case No. 1:16-cv-08091 (N.D. Ill.), may proceed as a class action against the Defendants. The Plaintiff alleges violation of the Telephone Consumer Protection Act and the Illinois Consumer Fraud Act. The classes the Plaintiff seeks to represent are defined as: Count I, TCPA: (a) all persons (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. Section 1658), (c) received calls on their cell phones soliciting business for the Life Insurance Center, (d) placed using an automated dialer or a prerecorded or artificial voice. Count II, ICFA: (a) all persons with phone numbers in the Illinois area codes (b) who, on or after a date three years prior to the filing of this action, (c) received calls on their cell phones soliciting business for the Life Insurance Center, (d) placed using an automated dialer or a prerecorded or artificial voice. Mr. Dolemba also asks that Edelman, Combs, Latturner & Goodwin, LLC, be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KKpcZMxo The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. Julie Clark, Esq. Michelle A. Alyea, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, L.L.C. 20 S. Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jclark@edcombs.com hkolbus@edcombs.com LOS ANGELES: Disabled Children May Intervene in "Smith" Suit ------------------------------------------------------------ In the case captioned CHANDA SMITH; ELIZA THOMPSON, Guardian ad Litem for Chanda Smith, individually & on behalf of all other persons similarly situated; JAVIER MEJIA; GLORIA MEJIA; QUINN SULLIVAN; MADO MOST, Plaintiffs-Appellees, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, a California public entity; ROY ROMER, in his official capacity as Superintendent of the LA Unified School District, Defendants-Appellees, v. APRIL MUNOZ; JULIA FLORES; CHERYL AYAPANA; V. P.; A. F.; M. H.; J. A., Movants-Appellants. CHANDA SMITH; ELIZA THOMPSON, Guardian ad Litem for Chanda Smith, individually & on behalf of all other persons similarly situated; JAVIER MEJIA; GLORIA MEJIA; QUINN SULLIVAN; MADO MOST, Plaintiffs- Appellees, and APRIL MUNOZ; JULIA FLORES; CHERYL AYAPANA; V. P.; A. F.; M. H.; J. A., Movants, and MINA LEE; FRANCES MORENO, Movants-Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, a California public entity, Defendant-Appellee, Nos. 14-55224, 14- 55256 (9th Cir.), the United States Court of Appeals, Ninth Circuit reversed the district court's denial of the appellants' motion to intervene and remanded the case for further proceedings. The appellants are a sub-class of moderately to severely disabled children who have moved to intervene in a class action brought on behalf of all disabled students in the Los Angeles Unified School District (LAUSD) against LAUSD. The appellants sought to intervene to challenge the legality of a new policy, adopted by LAUSD in 2012 as part of a renegotiation of the Chanda Smith parties' settlement. That settlement requires a class of LAUSD's most severely disabled students to go to the same schools as the district's general, non-disabled student body. LAUSD calls this "integration"; The appellants want their children to be schooled separately. The district court denied the appellants' motion to intervene. The Ninth Circuit, however, found that the appellants have established all four elements of intervention as of right under Fed R. Civ. P. Rule 24(a). The appellate court also concluded that the district court abused its discretion in denying the appellants' motion as untimely, and further erred when it found intervention unnecessary to protect the appellants' interest in ensuring the receipt of public education consistent with their disabilities and federal law. A full-text copy of the Ninth Circuit's July 27, 2016 order is available at https://is.gd/UZZKLH from Leagle.com. David Ward German (argued) and Robert Myers, Newman, Aaronson & Vanaman, Sherman Oaks, California; Catherine Blakemore, Melinda Bird, and Candis Watson Bowles, Disability Rights California, Los Angeles, California; for Plaintiffs-Appellees. Barrett Green (argued) and Maggy Athanasious -- mathanasious@littler.com -- Littler Mendelson, P.C., Los Angeles, California; D. Deneen Cox, Associate General Counsel, and Belinda D. Stith, Interim Chief Education and Litigation Counsel, LAUSD Office of General Counsel, Los Angeles, California; for Defendant- Appellee Los Angeles Unified School District. Suzanne Nancy Snowden (argued) -- s.snowden@sjmlawgroup.com -- SJM Law Group, LLP, Los Angeles, California; Eric Scott Jacobson, Law Offices of Eric S. Jacobson, Encino, California; for Movants- Appellants Mina Lee, et al. Seymour I. Amster (argued), Law Offices of Seymour I. Amster; Angela Gilmartin, Law Offices of Angela Gilmartin, Woodland Hills, California; for Movants-Appellants April Munoz, et al. MAGELLAN HEALTHCARE: Suit Alleges Addiction Treatment Discrim. -------------------------------------------------------------- Malvern Institute for Psychiatric and Alcoholic Studies, Inc., individually and on behalf of all others similarly situated, Plaintiff, v. Magellan Healthcare, Inc., Magellan Behavioral Health, Inc., Magellan Behavioral Health Of Pennsylvania, Inc., Magellan Behavioral Health Systems, LLC, Magellan Health, Inc., And Magellan Health Services, Inc., Defendants, Case No. 60800738, (Pa. Com. Pleas, August 5, 2016), seeks declaratory, supplemental and injunctive relief, reasonable attorneys' fees and such other relief under the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). Plaintiff operates addiction treatment programs at several locations in Pennsylvania. Malvern's programs include an inpatient non-hospital (residential) addiction treatment facility in Malvern, Pennsylvania. Magellan requires treatment facilities that are requesting preauthorization for residential addiction treatment to submit a copy of their license and accreditation certificates as part of a preauthorization request despite having State licenses to operate. If a patient fails to obtain preauthorization before physical health inpatient admission, benefits will be reduced by $500 but will not be foreclosed entirely. Plaintiff alleges that this is discrimination against addiction treatment and is expressly prohibited by MHPAEA implementing regulations. The Magellan entities administer behavioral health benefits for hundreds of thousands of federal employees and retirees and their families. Plaintiff is represented by: Gregory B. Heller, Esq. YOUNG RICCHIUTI CALDWELL & HELLER, LLC 1600 Market Street, Suite 3800 Philadelphia, PA 19103 Tel: (267) 546-1004 - and - David S. Senoff, Esq. ANAPOL WEISS One Logan Square 130 North 18th Street, Suite 1600 Philadelphia, PA 19103 Tel: (215) 790-1130 MALCOLM S GERALD: Cert. of FDCPA Class Sought in "Holzman" Suit --------------------------------------------------------------- Stephen Holzman moves the Court for an order certifying the action captioned STEPHEN HOLZMAN, on behalf of himself and all others similarly situated v. MALCOLM S. GERALD & ASSOCIATES, INC. and LVNV FUNDING, LLC, Case No. 9:16-cv-80643-RLR (S.D. Fla.), as a class action alleging violations of the Fair Debt Collection Practices Act. Mr. Holzman also seeks his appointment as the representative and Weisberg Consumer Law Group, PA as class counsel. He seeks to represent a class consisting of: All consumers in the state of Florida to whom Defendants sent a letter based on the same form as the letter attached as Exhibit A to Plaintiff's complaint in the year prior to the filing of the original complaint. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fdiCjY4n The Plaintiff is represented by: Alex D. Weisberg, Esq. WEISBERG CONSUMER LAW GROUP, PA Attorney for Plaintiff 5846 S. Flamingo Rd., Suite 290 Cooper City, FL 33330 Telephone: (954) 212-2184 Facsimile: (866) 577-0963 E-mail: aweisberg@afclaw.com MDL 2438: Court Grants Forrest's Bid to Quash Subpoena ------------------------------------------------------ In the case captioned WILLIAM FORREST and MELISSA FORREST, Plaintiffs, RANDALL SETH CROMPTON, Movant, v. 5-HOUR ENERGY, et al., Defendants, No. 4:16-mc-00348 JAR (E.D. Mo.), Judge John A. Ross granted Melissa Forrest's Motion to Quash Subpoena, which was construed in part as a motion for protective order. The subpoena relates to multidistrict litigation pending in the United States District Court for the Central District of California, In re: 5-Hour Energy Marketing and Sales Practices Litigation, Case No. 2:13-ml-02438 PSG (PLA). Mrs. Forrest is not a party in that case. The MDL is brought on behalf of a nationwide class defined as "all persons in the United States who purchased a 5-hour ENERGY product" in addition to several state subclasses of purchasers. The named plaintiffs alleged that the defendants have mispresented, falsely advertised, falsely labeled, falsely marketed, and falsely promoted their 5-hour Energy products to the detriment of purchasers in that 5-hour Energy products do not provide five (5) hours of energy. On March 22, 2016, William Forrest, a named plaintiff in the MDL, was deposed by counsel for the defendants. On April 11, 2016, his wife Melissa Forrest received a subpoena to testify at a deposition on April 26, 2016 and produce the certain documents and communications. When the defendants would not withdraw the subpoena, Mrs. Forrest filed the motion to quash on the grounds that she is a non-party witness in the matter and that her deposition would result in an undue burden. Judge Ross found the information sought by the defendants is relevant and that Mrs. Forrest will not be unduly burdened by compliance. At the hearing, the parties agreed that the court could construe the plaintiff's motion to quash in part as a motion for protective order. Judge Ross, therefore, allowed the subpoena but ordered the parties to agree to a convenient time and place for Mrs. Forrest's deposition and to limit the deposition to one hour. The judge will consider granting the defendants additional time if the defendants can show good cause after the deposition. A full-text copy of Judge Ross' July 29, 2016 memorandum and order is available at https://is.gd/1USItG from Leagle.com. William Forrest, Melissa Forrest, Plaintiffs, Randall Seth Crompton, Movant, represented by Randall S. Crompton -- scrompton@allfela.com -- HOLLAND LAW FIRM LLC. 5-Hour Energy, Defendant, represented by Gerald E. Hawxhurst -- jerry@cronehawxhurst.com -- CRONE HAWXHURST LLP. Living Essentials, LLC, Innovation Ventures, LLC, Bio Clinical Development, Inc., Manoj Bhargava, Defendants, represented by Bradley A. Winters -- bwinters@scwstl.com -- SHER CORWIN WINTERS LLC. META FINANCIAL: Final Settlement Approval Hearing on Sept. 12 ------------------------------------------------------------- Meta Financial Group, Inc.(R) said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that a final approval hearing for the settlement of a class action lawsuit has been scheduled for September 12, 2016. The Company and the Bank have been named as defendants, along with other defendants, in four class action litigations commenced in three different federal district courts between October 23, 2015 and November 5, 2015: (1) Fuentes, et al. v. UniRush LLC, et al. (S.D.N.Y. Case No. 1:15-cv-08372-JPO); (2) Huff et al. v. UniRush, LLC et al. (E.D. Cal. Case No. 2:15-cv-02253-KJM-CMK); (3) Peterkin v. UniRush LLC, et al. (S.D.N.Y. Case No. 1:15-cv-08573- PAE); and (4) Jones v. UniRush, LLC et al. (E.D. Pa. Case No. 5:15-cv-05996-JLS). The same defendants, including the Company and the Bank, were also named as defendants in an additional class action litigation commenced in yet another federal district court on April 13, 2016: (5) Smith v. UniRush LLC, et al. (C.D. Cal. Case No. 2:16-cv-02533-SVW-E). More recently, the same defendants, including the Company and the Bank, were named as defendants in a lawsuit filed by an individual plaintiff in a Texas state court on June 24, 2016: (6) Jacobs v. UniRush LLC et al. (Harris County, Texas County Civ. Ct. Cause No. 1079432). The complaints in each of these six actions seek monetary damages for the alleged inability of customers of the prepaid card product RushCard to access the product for up to two weeks starting on or about October 12, 2015. The plaintiffs allege claims for breach of contract, fraud, misrepresentation, negligence, unjust enrichment, conversion, and breach of fiduciary duty and violations of various state consumer protection statutes prohibiting unfair or deceptive acts or trade/business practices. In addition, the OCC and the CFPB are examining the events surrounding the allegations with respect to the Company and the other defendants, respectively. The OCC has broad supervisory powers with respect to the Bank and could seek to initiate supervisory action if it believes such action is warranted. A settlement was negotiated with class counsel in actions (1)-(4) under which neither the Company nor the Bank will make any payment, and on May 17, 2016 the Court filed an Order Certifying a Settlement Class, Preliminarily Approving the Class Action Settlement, and Directing Notice to the Settlement Class. Notice has been given to the potential class members, and a final approval hearing for the settlement has been scheduled for September 12, 2016. Action (5) was recently settled for a nominal amount, with no payment by the Company or the Bank, and the case was formally resolved with the filing of a dismissal notice on July 15, 2016. While action (6) was only recently commenced and is in its earliest stages, the petition specifically alleges that the maximum damages, costs and attorneys' fees that plaintiff seeks do not exceed $74,000. The Company's estimate of a range of reasonably possible loss for all six actions is approximately $0 to $0.1 million. METAL SALES: Faces Wendell Suit in W.D. of Pennsylvania ------------------------------------------------------- A lawsuit has been filed against Metal Sales Manufacturing Corporation. The case is captioned WENDELL H. STONE COMPANY, INC., doing business as STONE & COMPANY, individually and on behalf of all others similarly situated, the Plaintiff, v. METAL SALES MANUFACTURING CORPORATION, a Kentucky corporation, the Defendant, Case No. 2:16-cv-01219-DSC (W.D. Pa., Aug. 11, 2016). The assigned Judge is Hon. David S. Cercone. Metal Sales provides metal panels for the commercial, agricultural and residential construction industries. The Plaintiff is represented by: Stuart C. Gaul, Jr., Esq. 100 Ross Street, Suite 510 Pittsburgh, PA 15219-1425 Telephone: (412) 370 1515 E-mail: stuart.gaul@gaul-legal.com MICHAEL KORS: Galvan Seeks Unpaid Wages Under Cal. Labor Code ------------------------------------------------------------- TANIA GALVAN, individually, and on behalf of all other similarly situated current and former employees of Defendants, the Plaintiff, v. MICHAEL KORS (USA) HOLDINGS, INC., a Delaware corporation; MICHAEL KORS (USA), INC., a Delaware corporation; MICHAEL KORS RETAIL, INC., a Delaware corporation; MICHAEL KORS STORES (CALIFORNIA), INC., a Delaware corporation; MICHAEL KORS STORES, L.L.C.; and DOES 1-50, inclusive, the Defendants, Case No. BC629804 (Cal. Super. Ct., Aug. 5, 2016), seeks to recover all unpaid wages, interest, and reasonable attorneys' fees and costs pursuant to the California Labor Code. According to the complaint, the Defendants allegedly failed to provide all timely meal and rest period, failed to pay for all hours worked, including minimum wage, straight time and overtime pay, failed to furnish accurate statements and maintain required records, and failed to notify and provide sick leave, in accordance with California Labor Code and Industrial Welfare Commission Order. Michael Kors designs, manufactures, and sells apparel, accessories, and footwear in the United States and internationally. The Plaintiff is represented by: Farzad Rastegar, Esq. Candace Kwon, Esq. Joshua Lange, Esq. RASTEGAR LAW GROUP, A.P.C. 22760 Hawthorne Boulevard, Suite 200 Torrance, CA 90505 Telephone: (310) 961 9600 Facsimile: (310) 961 9094 E-mail: farzad@rastegarlawgroup.com candace@rastegarlawgroup.com josh@rastegarlawgroup.com MINNESOTA: DHS Faces Discrimination Class Action ------------------------------------------------ KSTP reports that a lawsuit against the Minnesota Department of Human Services alleges claims of discrimination, segregation and a restriction of choice. The lawsuit seeking class action status was filed Aug. 3 on behalf of eight people -- four with disabilities and their guardians -- who rely on Medicaid vouchers for housing. It claims those people were forced into living situation that "needlessly segregated" from loved ones and the communities in which they want to live. Attorneys for those filing the lawsuit claim the DHS violated the Americans With Disabilities Act's integration mandate. The lawsuit goes on to state the DHS has also limited where and how the plaintiffs can spend their free time, how their days are structured and what opportunities they are given to interact with the community outside their "Community Residential Setting" facilities. The lawsuit states one plaintiff with cerebral palsy says that because of staffing patterns in the facility where she lives, she is forced to go to bed at 7:00 or 8:00 p.m. because "there is no other way for her to receive necessary care." Another plaintiff, the lawsuit states, with physical and cognitive disabilities as the result of degenerative brain cancer must use a wheelchair on a regular basis because "there is often not enough staff available or willing to assist him when he wants to walk." MINNESOTA: State Dismissed from "Guggenberger" Suit --------------------------------------------------- Judge Donovan W. Frank granted, in part, and denied, in part, the motion to dismiss filed by the defendants, the State of Minnesota, the Minnesota Department of Human Services (DHS), and DHS Commissioner Emily Johnson Piper in the case captioned Kyle Guggenberger, by his parents and guardians, Keith and Ginger Guggenberger; Jay Hannon, by his parent and guardian, Patricia Hannon; Abigail Pearson, by her parents and guardians, Ellen and Jeff Pearson; Amber Brick, by her parents and agents, Robert and Anne Brick; and on behalf of others similarly situated, Plaintiffs, v. State of Minnesota; the Minnesota Department of Human Services, an agency of the State of Minnesota; and Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services, Defendants, Civil No. 15-3439 (DWF/BRT) (D. Minn.). Judge Frank granted the motion to the extent it sought dismissal of the State of Minnesota as a party. The State of Minnesota was thus dismissed as a party to the action. Judge Frank also dismissed the Minnesota Department of Human Services as a party to the action, but all claims against Commissioner Johnson Piper, Commissioner of the Minnesota Department of Human Services, in her official capacity shall proceed. The motion was denied in all other respects. A full-text copy of Judge Frank's July 28, 2016 memorandum opinion and order is available at https://is.gd/Orf1Zj from Leagle.com. The plaintiffs brought their claims on their own behalf and on behalf of a putative class of similarly situated individuals with disabilities in Minnesota who have been deemed eligible for Home and Community Based Waiver Services but are currently on a waiting list for such services. The plaintiffs alleged that their continued placement on waiting lists for Waiver Services violates federal law in several respects. Kyle Guggenberger, Jay Hannon, Abigail Pearson, Plaintiffs, represented by Barnett I. Rosenfield -- brosenfield@mylegalaid.org -- Minnesota Legal Aid, Mark R. Azman -- mrazman@olwklaw.com -- O'Meara Leer Wagner & Kohl, PA, Pamela S. Hoopes -- phoopes@mylegalaid.org -- Minnesota Disability Law Center & Shamus P. O'Meara -- spomeara@olwklaw.com -- O'Meara Leer Wagner & Kohl, PA. Amber Brick, Plaintiff, represented by Barnett I. Rosenfield, Minnesota Legal Aid. Amber Brick, Plaintiff, represented by Mark R. Azman, O'Meara Leer Wagner & Kohl, PA, Pamela S. Hoopes, Minnesota Disability Law Center & Shamus P. O'Meara, O'Meara Leer Wagner & Kohl, PA. State of Minnesota, The Minnesota Department of Human Services, Lucinda E Jesson, Defendants, represented by Alethea M. Huyser, Minnesota Attorney General's Office, Ian M. Welsh &Scott H. Ikeda, Minnesota Attorney General's Office. MOSAIC SALES: "Bey" Suit Moved from Super. Ct. to C.D. Cal. ----------------------------------------------------------- Elijah Bey, on behalf of himself and all others similarly situated, the Plaintiff, v. Mosaic Sales Solutions US Operating Co., LLC, a Delaware limited liability company and Does 1-100, inclusive, the Defendants, Case No. BC601773, was removed from Los Angeles Superior Court, to the U.S. District Court for the Central District of California (Western Division - Los Angeles). The District Court Clerk assigned Case No. 2:16-Cv-06024 to the proceeding. Mosaic Sales is a management consulting service located in Irving, Texas. The Plaintiff appears pro se. The Defendants are represented by: Michael David Mandel, Esq. MCGUIREWOODS LLP 1800 Century Park East 8th Floor Los Angeles, CA 90067 Telephone: (310) 315 8200 Facsimile: (310) 315 8210 E-mail: mmandel@mcguirewoods.com N. AM. BANCARD: Tendering Funds Doesn't Moot Case, Court Rules -------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a federal appeals court, taking up an issue left open by a recent U.S. Supreme Court ruling, said in a decision last month that tendering funds to a class action plaintiff -- not just offering to tender -- still does not moot a case. The U.S. Court of Appeals for the Sixth Circuit, in its July 6 opinion in Mey v. N. Am. Bancard LLC, was forced to take up a question the Supreme Court declined to answer in Campbell-Ewald Co. v. Gomez. In its January decision, the Supreme Court ruled an unaccepted offer of complete relief to a named plaintiff in a class action lawsuit does not moot the plaintiff's claim. But the nation's highest court said in Gomez it would not decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. "That question is appropriately reserved for a case in which it is not hypothetical," Justice Ruth Bader Ginsburg wrote for the majority in the 6-3 ruling. The defendant in Mey, credit-card processing company North American Bancard LLC, unlike the defendant in Gomez, mailed the plaintiff's attorney a cashier's check for $4,500 for three calls that NAB believes it made to Diana Mey. NAB argues that because the Supreme Court drew a distinction between offering funds -- which does not moot a plaintiff's claim -- and tendering -- which does -- its sending Ms. Mey a cashier's check is a tender that moots Ms. Mey's claims. But the Sixth Circuit rejected NAB's argument, at least in light of the facts before it. "Even if we assume that an unaccepted cashier's check could moot a claim, NAB has not shown that its tender satisfies Mey's demand for relief, which the tender must do if it is to moot Mey's individual claims," Circuit Judge Danny Boggs wrote for a three- judge panel including Circuit Judge Karen Moore and Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky, sitting by designation. The panel pointed out that NAB admits that it made three calls to Ms. Mey, not just the one call that it mentioned in its Rule 68 offer of judgment. "But the district court never made any finding as to just how many calls NAB made, and NAB's recent admission to making three suggests that there may be more that Mey and NAB are not aware of," Judge Boggs noted in the Sixth Circuit's nine-page opinion. "The upshot is that at this point, whether $4,500 provides Mey with all the relief she is entitled to remains unclear. That lack of clarity means that NAB cannot show that Mey has received all of the money damages she has claimed." The Sixth Circuit vacated the U.S. District Court for the Eastern District of Michigan's order dismissing Ms. Mey's class claims and remanded the case back to the court for further proceedings consistent with the appellate court's opinion. In January 2014, NAB used an automatic dialing system to make a marketing call to Ms. Mey's cell phone number, in violation of the Telephone Consumer Protection Act. Ms. Mey then brought a federal action against NAB, individually and on behalf of a proposed nationwide class of persons whom NAB had also autodialed without permission. The district court denied without prejudice Ms. Mey's motion for class certification, citing the need to hold a scheduling conference. NAB then made an offer of judgment to Ms. Mey, in which it agreed to pay Mey's statutory damages and consented to her demand for injunctive relief. When Ms. Mey rejected the offer, NAB moved the court to enter judgment on her individual claims on the ground that the offer of judgment mooted Ms. Mey's claims. The Eastern District of Michigan agreed, entered judgment in favor of NAB on Ms. Mey's individual claims, and dismissed the class claims. Ms. Mey appealed to the Sixth Circuit. The TCPA restricts telephone solicitations, i.e. telemarketing, and the use of automated telephone equipment. In particular, the law limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines. It also specifies several technical requirements for fax machines, autodialers and voice messaging systems -- principally with provisions requiring identification and contact information of the entity using the device to be contained in the message. Generally, the act makes it unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party" except in emergencies or in circumstances exempted by the Federal Communications Commission. The law permits any "person or entity" to bring an action to enjoin violations of the statute and/or recover actual damages or statutory damages ranging from $500 to $1,500 per violation. NATIONAL RECOVERY: Court Certifies Class in "Stanley" Suit ---------------------------------------------------------- Judge William T. Lawrence granted the plaintiff's third amended motion to certify class in the case captioned DIMITRIUS STANLEY, individually and on behalf of all others similarly situated, Plaintiff, v. NATIONAL RECOVERY AGENCY, Defendant, Cause No. 1:15- cv-239-WTL-MJD (S.D. Ind.). The proposed class has been redefined as "all persons similarly situated in the State of Indiana from whom Defendant attempted to collect a delinquent consumer debt, allegedly owed for a Six Flags account, via a collection letter identical to the letter that is attached to the Complaint (Dkt. 1-3), as to which a flat 20% charge for "Costs" had been added to the debt, from one year before the date of this Complaint to the present." A full-text copy of Judge Lawrence's July 29, 2016 ruling is available at https://is.gd/rPZcgu from Leagle.com. Dimitrius Stanley brought the action against National Recovery Agency (NRA) to recover damages for alleged violations of the Fair Debt Collection Practice Act (FDCPA). Stanley alleged that a form collection letter sent to him and the other members of his proposed class violated the FDCPA. Stanley alleged that in addition to the principal balance of $268.29, NRA also demanded that Stanley pay $53.66 for "Costs," which did not represent the actual cost to collect the debt but appeared to be a flat 20% fee. Stanley alleged that NRA had no right to impose a flat 20% fee and made a false, deceptive, or misleading statement in violation of Section 1692e of the FDCPA. DIMITRIUS STANLEY, Plaintiff, represented by Angie K. Robertson, PHILIPPS AND PHILIPPS, LTD., John Thomas Steinkamp, JOHN T. STEINKAMP AND ASSOCIATES, Mary E. Philipps, PHILIPPS AND PHILIPPS, LTD. & David J. Philipps, PHILIPPS AND PHILIPPS, LTD.. NATIONAL RECOVERY AGENCY, a Pennsylvania limited liability company, Defendant, represented by Charity A. Olson, Olson Law Group. NEST LABS: Cal. Court Refuses to Certify Class in "Darisse" Suit ---------------------------------------------------------------- The Hon. Beth Labson Freeman denied the Plaintiff's motion for class certification in the lawsuit styled Justin Darisse v. Nest Labs, Inc., Case No. 5:14-cv-01363-BLF (N.D. Cal.). Mr. Darisse sued Nest alleging that the Nest Learning Thermostat did not perform as advertised, and moved to certify a nationwide class of similarly disappointed consumers. But because Mr. Darisse has not satisfied the required commonality, typicality and adequacy requirements or the predominance requirement of Rule 23 of the Federal Rules of Civil Procedure, Judge Freeman denied the Motion. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=9tVr7dfC NEW YORK LIFE: Faces Class Action Over Mainstay Index Fund ---------------------------------------------------------- Brian Menickella, writing for Forbes.com, reports that New York Life Insurance Company can now add itself to the list of companies sued by its employees for breach of fiduciary responsibility but this case is a little different, and the first of its kind. Although suits of these kind typically involve allegations made against multiple types of investments, this case is the first to include allegations exclusively against an index fund. The insurance company sponsors two employee 401(k) plans -- one with $600 million in assets and one with $2.5 billion. Of all the investments between those two accounts, one index fund (based on the S&P 500) appeared a greater moneymaker for the investment company than the plan participants: the MainStay S&P 500 index fund. This investment charged far higher fees than other investment options, allege the plaintiffs in the class-action suit formally called the suit expects a class of 25,000 New York Life 401(k) plan participants. New York Life and its subsidiaries own and operate the MainStay index fund. According to the formal complaint filed in the U.S. District Court for the Southern District of New York contends, "the Plans' fiduciaries took advantage of the opportunity to promote New York Life's financial interests by using the Plans to promote MainStay mutual funds." The index fund in question required maintenance fees that were 17 times more-costly than comparable funds. The formal complaint also mentions the MainStay index fund cost 35 basis points, whereas similar investments cost considerably less; Vanguard Group offers a fund at two basis points and State Street Global Advisors at four basis points. The employees contend New York Life could have saved plan participants $3 million over the course of five years had the plan sponsor invested with Vanguard. According to ERISA (Employee Retirement Income Security Act of 1974), employers must ensure that "fees paid to service providers and other expenses of the plan are reasonable in light of the level and quality of services provided." Sponsoring investments with excessive fees violates this federal regulation, and the plaintiffs argue the plan sponsors "improperly and unjustly benefited from the excessive fees and expenses." Nichols Kaster, a law firm specializing in employee protection law, filed the class action suit on behalf of two New York Life employees. This year the firm filed several suits alleging other employers also breached their fiduciary responsibility as New York Life did. The other suits include litigation between the following companies and their employees: -- Putnam Investments LLC -- Deutsche Bank -- American Airlines Inc. -- M&T Bank Corp. -- American Century Services LLC Although the "index-fund-only" angle of this lawsuit makes it unique, cases like this one appear far too often in US pension news. Over the past few years, the fate of US 401(k)'s hung in the balance after the surfacing of multiple court cases similar to this one and the resulting call for industry reform from the federal government. In a sea of fiduciary lawsuits, one case had a particular impact on the 401(k) landscape: Tibble vs. Edison. The Supreme Court granted this case certiorari in October of 2014, making it the first suit of its kind to reach the highest court. Initially filed in 2007, petitioners contended Edison International breached its fiduciary duty on six accounts. The plaintiffs added three expensive mutual funds to their case in 1999 and three more in 2002. Twenty-five thousand employees strong, the class action suit claimed the plan sponsor chose expensive retail mutual funds while other institutional class products offered plan participants a better option. ERISA's six-year statute of limitations states complaints of a fiduciary breach must be brought to the court within six years of the breach being committed. In 2007, both the District and Appellate court found in favor of the plaintiffs for the mutual fund breaches in 2002 (as those complaints were brought to the court after five years), but the complaints brought against the three mutual funds in 1999 were dismissed due to the amount of time that had passed. A few months after the case was presented in the chamber of the Supreme Court in February of 2015, the court issued a unanimous decision in favor of the plaintiffs, claiming fiduciaries have an continual duty to monitor plan investments. The Supreme Court referenced the common law of trust in the opinion mentioning, "a trustee has a continuing duty to monitor trust investments and remove imprudent ones." The court's decision reinforced the obligation employers have to supervise and examine plan investments. Additionally, the outcome increased awareness about revenue sharing models enabled by 12(b)1 and sub-TA fees. After the stage was set with one court case after the other, the Department of Labor passed its Fiduciary Rule as an attempt to mitigate these reoccurring problems -- the rule will affect both plan sponsors and plan participants moving forward when the rule takes effect in April of next year. Cases like the ones mentioned continue to draw attention to the pension problem the US faces. Brian Menickella is a co-founder and managing partner of The Beacon Group of Companies, a broad-based financial services firm based in King of Prussia, Pa. NRA GROUP: Automatic Dialing System Violates TCPA, Judge Rules -------------------------------------------------------------- Max Mitchell, writing for The Legal Intelligencer, reports that a collection agency's use of a predictive dialer was a violation of the Telephone Consumer Protection Act, a Pennsylvania federal judge has ruled in a decision granting summary judgment to a man whose cellphone was called by the agency nearly 150 times in two years. U.S. District Chief Judge Christopher C. Conner of the Middle District of Pennsylvania ruled in Manuel v. NRA Group that the collections agency had violated the ban against using automatic dialing systems to call a cellphone for anything other than emergencies where the party has previously given consent. According to Judge Conner, the Mercury Predictive Dialer is an electronic dialing device that works with other software that selects which accounts the dialer can call each day. The dialer can work in several modes, one of which is a predictive mode where it makes calls based on its predictions regarding when a collection agent will be available to accept a call. Although the collections agency had contended that when its calling device was in predictive dialer mode it still required an agent to initiate the call, Judge Conner pointed to the deposition testimony of the company's director of collections regarding how the system worked, and said the calls were clearly placed in violation of the act. "The court perceives a significant difference between predictive mode, on the one hand, and power and preview modes, on the other. In the latter operational settings, collection agents must affirmatively prompt [Mercury Predictive Dialer] to place each individual call," Judge Conner said. "Contrastively, it is clear that Mercury Dialer initiates calls in predictive mode without human intervention. NRA miscomprehends this key distinction and presents no evidence to the contrary." The plaintiff, Peterson Manuel, had also sought summary judgment on the issue of treble damages, but Judge Conner said the record was "unsettled as to whether the NRA deliberately called Manuel's cellphone as opposed to his landline," and that the issue should go before a jury. Mr. Manuel's attorney, Jenny D. DeFrancisco of Lemberg Law in Wilton, Connecticut, said she was pleased with Judge Conner's ruling in the case, and noted that the use of predictive dialers has been on the rise. "We see dialers like these being used quite a bit," she said. "These types of cases are definitely on the rise given that, as more and more people are becoming aware of the law, more and more are getting filed." According to Judge Conner, the collection agency received a collections account in Mr. Manuel's name from the city of Fort Lauderdale, Florida, for an outstanding parking ticket. According to Conner, the number was for Mr. Manuel's cellphone. The collections agency obtained the name through a third party, which had allegedly told the company the number for Mr. Manuel was a landline. Although the company had a "cellular telephone scrub" to find mislabeled cellphone numbers in the system, the scrubbing technology failed to identify the number for Mr. Manuel as a cell number. Judge Conner said Mr. Manuel received 149 calls from the collections agency between May 2012 and June 2014. Mr. Manuel also claimed he received voicemails from the company, but none included live messages from a company representative, and when he answered the calls from the agency, he experienced "conspicuous" delays, Judge Conner said. According to Judge Conner, Mr. Manuel also said that, a few months after the calls began, he told a representative to stop calling his cellphone. Judge Conner also said the NRA used the Mercury Predictive Dialer device, which is designed to "expedite revenue recovery," to initiate 146 of the 149 phone calls made to Mr. Manuel. Mr. Manuel filed a complaint against the collection agency in February 2015, claiming the company knowingly violated the Telephone Consumer Protection Act by using an automatic dialing system without Mr. Manuel's consent. NRA contended that the Mercury Dialer was incapable of making a phone call without an agent first striking the F4 key on their computer. Judge Conner, however, cited testimony from Charlene Sarver, the company's collections director, which indicated that the predictive dialer places a series of calls in advance and then tries to predict when the next collection agent will hit F4. NYC TAXI: Court Refuses to Review Rulings in "Singh" Class Suit --------------------------------------------------------------- The Hon. Frederic Block entered a memorandum and order titled JASWINDER SINGH, BALBIR NAGI, MAN SINGH and NYC YELLOW CAB DRIVERS ASSOCIATION, INC. v. MEERA JOSHI, THE NEW YORK CITY TAXI AND LIMOUSINE COMMISSION, BILL DE BLASIO and THE CITY OF NEW YORK, Case No. 1:15-cv-05496-FB-VMS (E.D.N.Y.), denying the Plaintiffs' motion for reconsideration and granting the Defendants' motion for summary judgment. Earlier this year, according to the Order, the Court denied the Plaintiffs' motion for a preliminary injunction. The Court upheld rules promulgated by the New York City Taxi and Limousine Commission to increase the availability of wheelchair-accessible yellow cabs against challenges under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Plaintiffs further challenged the regulations under (1) the constitutional prohibition against the taking of property without just compensation, and (2) Article 78 of the New York Civil Practice Law and Rules. The prior decision did not address those claims because they did not form the basis for the Plaintiffs' request for preliminary injunctive relief. The Plaintiffs now move for reconsideration of several matters they claim the Court overlooked or misapprehended, Judge Block said. They also move to certify a class, and for summary judgment on two of their claims. For their part, the Defendants move for summary judgment on all claims. For reasons set forth in the Order, Judge Block denies reconsideration and grants the Defendants' motion for summary judgment. Consequently, the Plaintiffs' motion for partial summary judgment is denied and their motion to certify a class is denied as moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=uD3IlCrn The Plaintiffs are represented by: Daniel L. Ackman, Esq. LAW OFFICE OF DANIEL L. ACKMAN 222 Broadway, 19th Floor New York, NY 10038 Telephone: (917) 282-8178 E-mail: d.ackman@comcast.net - and - Andrew St. Laurent, Esq. HARRIS, ST. LAURENT & CHAUDHRY LLP 40 Wall Street, 53rd Floor New York, NY 10005 Telephone: (646) 248-6010 E-mail: andrew@sc-harris.com The Defendants are represented by: Zachary W. Carter, Esq. CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 Telephone: (212) 356-1000 Facsimile: (212) 356-1148 Amici Curiae The Taxis for All Campaign, The 504 Democratic Club, and Disabled in Action are represented by: Daniel L. Brown, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP 30 Rockefeller Plaza, 24th Floor New York, NY 10112 Telephone: (212) 332-3879 Facsimile: (212) 332-3888 E-mail: dlbrown@sheppardmullin.com OCWEN FINANCIAL: Certification of Investors Class Sought -------------------------------------------------------- In the lawsuit In re OCWEN FINANCIAL CORPORATION SECURITIES LITIGATION, Case No. 9:14-cv-81057-WPD (S.D. Fla.), Lead Plaintiff Sjunde AP-Fonden asks the Court to certify this class of investors: "all persons and entities who purchased or otherwise acquired Ocwen common stock from May 2, 2013 through December 19, 2014, inclusive (Class Period), and were damaged thereby". Excluded from the Class are Defendants and members of Defendants' immediate families, any person, firm, trust, corporation, officer, director, or other individual or entity in which any Defendant has or had a controlling interest, or which is related to or affiliated with any Defendant, and the legal representatives, agents, affiliates, heirs, successors-in- interest, or assigns of any such excluded party. The Plaintiff further asks the Court for an order: a. appointing Lead Plaintiff and proposed class representative Jay E. Thren as Class Representatives; and b. appointing Kessler Topaz Meltzer & Check, LLP as Class Counsel and Sallah, Astarita & Cox, LLC as Liaison Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=g45Q0B5E The Plaintiffs are represented by: James D. Sallah, Esq. Jeffrey L. Cox, Esq. Joshua A. Katz, Esq. SALLAH ASTARITA & COX, LLC 2255 Glades Road, Suite 300E Boca Raton, FL 33431 Telephone: (561) 989 9080 Facsimile: (561) 989 9020 E-mail: jds@sallahlaw.com jlc@sallahlaw.com jak@sallahlaw.com - and - David Kessler, Esq. Lee Rudy, Esq. Sharan Nirmul, Esq. Richard A. Russo, Jr., Esq. Michelle M. Newcomer, Esq. Meredith L. Lambert, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667 7706 Facsimile: (610) 667 7056 E-mail: dkessler@ktmc.com lrudy@ktmc.com snirmul@ktmc.com rrusso@ktmc.com mnewcomer@ktmc.com mlambert@ktmc.com - and - Jennifer Joost, Esq. One Sansome Street, Suite 1850 San Francisco, CA 94104 Telephone: (415) 400 3000 Facsimile: (415) 400 3001 E-mail: jjoost@ktmc.com - and - Joseph E. White, III, Esq. Lester Rene Hooker, Esq. SAXENA WHITE PA 2424 N Federal Highway, Suite 257 Boca Raton, FL 33431 Telephone: (561) 394 3399 Facsimile: (561) 394 3382 E-Mail: jwhite@saxenawhite.com lhooker@saxenawhite.com - and - Emily Cornelia Komlossy, Esq. KOMLOSSY LAW, P.A. 2131 Hollywood Boulevard, Suite 408 Hollywood, FL 33020 Telephone: (954) 842 2021 Facsimile: (954) 416 6223 E-mail: eck@komlossylaw.com The Defendants are represented by: John P. Coffey, Esq. Jason M. Moff, Esq. Jonathan M. Wagner, Esq. KRAMER LEVIN NAFTALIS & FRANKEL, LLP 1177 Avenue of the Americas New York, NY 10036 Telephone: 212-715 9913 E-mail: scoffey@kramerlevin.com jmoff@kramerlevin.com jwagner@kramerlevin.com - and - Jeffrey Allan Hirsch, Esq. Greenberg Traurig, Esq. 401 E Las Olas Boulevard, Suite 2000 Fort Lauderdale, FL 33301 Telephone: (954) 765 0500 Facsimile: (954) 765 1477 E-mail: hirschj@gtlaw.com ORCHESTRATE HOSPITALITY: Class Settlement in "Edwards" Granted -------------------------------------------------------------- In the lawsuit styled DARYETTA EDWARDS, on behalf of and all others similarly situated, the Plaintiff, v. ORCHESTRATE HOSPITALITY GROUP LLC, et al., the Defendants, Case No. 4:16-cv- 00063-JAJ-HCA (S.D. Iowa), the Hon. Judge John A. Jarvey granted preliminary approval of class action settlement. The Court preliminary certifies the following class: "all servers working at the Restaurants between February 12, 2014, and February 12, 2016. The Restaurants are Centro, Django, Malo, and Zombie Burger and Drink Lab". A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Tqi8UdCj PETROLEOS BRASILEIRO: Appeals Court Puts Class Action on Hold ------------------------------------------------------------- Mica Rosenberg and Marta Nogueira, writing for Reuters, report that a U.S. appeals court on Aug. 2 put a class action case against Brazil's state-controlled oil company Petroleo Brasileiro SA on hold pending the resolution of an appeal filed by the company, potentially stalling a much anticipated U.S. trial. The order granted a bid by Petrobras, as the company is commonly known, to postpone a case brought by investors seeking to recoup billions of dollars in losses stemming from a bribery, contract- fixing and political kickback scandal in Brazil. The company had appealed a ruling by U.S. District Judge Jed Rakoff in Manhattan that certified two classes of plaintiffs, saying their claims are similar enough to be pursued as groups. Rakoff had set a trial for Sept. 19 but now the appeals court will have to rule on the class certification before that can go forward. "We were eager to go to trial against Petrobras since we have an excellent case against them," said Jeremy Lieberman of the law firm Pomerantz who is representing the shareholders. He said the appeal is on a technical issue and he is confident that the class certification will be upheld. Petrobras said "it will continue to vigorously defend its rights," in a securities filing about the court order on Aug. 2. The Brazilian firm is at the center of a massive corruption investigation in Brazil known as Operation Car Wash, which prompted U.S. shareholders to file the case after company shares lost value. Prosecutors in Brazil have said more than $2 billion in bribes were paid over a decade, mainly to Petrobras executives from construction and engineering companies and there have been dozens of arrests in Brazil. The scandal has contributed to a plunge in Petrobras' market value to below $20 billion from nearly $300 billion fewer than eight years ago, Reuters data show. One class of shareholders that had been certified by Rakoff applied to purchasers of various Petrobras securities from January 2010 to July 2015 and was being led by Universities Superannuation Scheme of Liverpool, England. The other bought debt securities from offerings in 2013 and 2014, and was led by North Carolina's treasurer and the Employees' Retirement System of Hawaii. Class certification can make it easier for investors to recoup larger sums than if they sued individually, though it does not guarantee they will be recovered. The appeal is In re: Petrobras Securities, case number 16-1914, in the U.S. Court of Appeals for the Second Circuit. PLANET FITNESS: Court Narrows Claims in "Truglio" Suit ------------------------------------------------------ Judge Freda L. Wolfson granted in part and denied, in part, the defendants' motion to dismiss the case captioned MARNI TRUGLIO, individually and as a class representative on behalf of others similarly situated, Plaintiff, v. PLANET FITNESS, INC.; FIT TO BE TIED II, LLC d/b/a PLANET FITNESS; JOHN DOES 1-75; PLANET FITNESS FRANCHISES 1-75; AND XYZ CORPORATIONS 1-10, Defendants, Civil Action No. 15-7959 (FLW)(LHG) (D.N.J.). Planet Fitness, Inc. and Fit To Be Tied II, LLC d/b/a Planet Fitness (FTBT) filed a motion seeking dismissal of the Amended Complaint filed by Marni Truglio, or, in the alternative, to strike the class action allegations of the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(f) and 23(d)(1)(D). Truglio alleged that she entered into a health club services agreement with the defendants and that the agreement violated New Jersey law by (1) failing to state that a bond or other security was filed with the Director of the Division of Consumer Affairs (and that the defendants failed to maintain such bond of other security); (2) failing to conspicuously disclose Truglio's total payment obligation; (3) obligating Truglio to renew her contract; and (4) imposing misleading requirements to cancel her health club membership. Based on those alleged unlawful practices, Truglio asserted claims, individually and on behalf of a putative class, under the Health Club Services Act (HCSA), and the Consumer Fraud Act (CFA)(Count II); and the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA)(Count I). The defendants moved to dismiss the Amended Complaint, arguing that Truglio has failed to adequately allege that she suffered an ascertainable loss caused by the alleged unlawful practices and, therefore, has failed to state a claim under the HCSA, CFA, and TCCWNA. Judge Wolfson granted in part and denied in part the defendants' motion to dismiss. Specifically, the judge dismissed Count II of the Amended Complaint without prejudice because Truglio has failed to allege (1) that the defendants engaged in an unlawful practice by obligating Truglio to renew her contract; and (2) that she suffered an ascertainable loss caused by the defendants' alleged (i) failure to maintain or state that a bond or other security was filed with the Director of the Division of Consumer Affairs, (ii) failure to conspicuously disclose Truglio's total payment obligation, or (iii) use of misleading cancellation provisions to force customers to pay for additional months of membership dues. Judge Wolfson also dismissed Count I of the Amended Complaint, in part, to the extent it is based upon omissions in the covered writing. The judge did not reach whether Count I of the Amended Complaint states a claim based upon Truglio's allegation that the defendants violated TCCWNA by including allegedly misleading cancellation provisions in the Membership Agreement. A full-text copy of Judge Wolfson's July 28, 2016 opinion is available at https://is.gd/rtj1v6 from Leagle.com. MARNI TRUGLIO, Plaintiff, represented by BENJAMIN JARRET WOLF, Jones, Wolf & Kapasi, LLC & JOSEPH K. JONES, Jones, Wolf & Kapasi, LLC. PLANET FITNESS, INC., Defendant, represented by CRAIG R. TRACTENBERG -- ctractenberg@nixonpeabody.com -- NIXON PEABODY, LLP. FIT TO BE TIED II, LLC, Defendant, represented by LOUIS A. FELICETTA, CARLUCCIO LEONE. POKEMON: Faces Nuisance, Unjust Enrichment Class Actions -------------------------------------------------------- James G. Gatto, Esq., of Sheppard, Mullin, Richter & Hampton LLP, in an article for The National Law Review, reports that hugely successful games attract lawsuits. Pokemon Go has been hugely successful and, predictably, has attracted a lawsuit. In a recently filed class action, a plaintiff has alleged that a number of the GPS coordinates that Defendants had designated as Pokestops and Pokemon gyms were, in fact, on or directly adjacent to private property, and that Defendants had placed these Pokestops and Pokemon gyms without the consent of the properties' owners. The legal claims asserted are nuisance and unjust enrichment. Interestingly, the complaint does not allege trespass. It is also interesting that Plaintiff alleges that "at least five individuals knocked on Plaintiff's door, informed Plaintiff that there was a Pokemon in his backyard, and asked for access to Plaintiff's backyard in order to "catch" the Pokemon." The complaint is silent as to what Plaintiff told these players and, if denied permission, whether they left the property. The complaint also lacks any specificity as to what, if any, damages Plaintiff sustained. As AR applications continue to enjoy success, other legal issues will likely arise. It is best to do a legal review before releasing such apps. PROVIDENCE SERVICE: Court Granted 6-Month Stay of Class Suit ------------------------------------------------------------ The Providence Service Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that a Court has granted a six-month stay of the proceeding, Haverhill Retirement System v. Kerley et al. On June 15, 2015, a putative stockholder class action derivative complaint was filed in the Court of Chancery of the State of Delaware (the "Court"), captioned Haverhill Retirement System v. Kerley et al., C.A. No. 11149-VCL. On May 6, 2016, the plaintiff filed a verified second amended class action and derivative complaint. In addition to the defendants named in the earlier complaint, the second amended complaint names Paul Hastings LLP ("Paul Hastings") and Bank of America, N.A. ("BofA") as additional defendants. In addition to previously asserted claims, the second amended complaint purports to assert direct and derivative claims for breach of fiduciary duties against Coliseum Capital Management, LLC ("Coliseum Capital Management"), in its capacity as the controlling stockholder of the Company, in connection with the subordinated note, the Company's rights offering of preferred stock and the Standby Purchase Agreement with Coliseum Capital Management (the "Financing Transactions"). The second amended complaint also alleges that Paul Hastings breached their fiduciary duties as counsel to the Company in connection with the Financing Transactions and that BofA and Paul Hastings aided and abetted certain of the defendants in breaching their fiduciary duties in connection with the Financing Transactions. The second amended complaint seeks, among other things, revision or rescission of the terms of the subordinated note and preferred stock, corporate governance reforms, disgorgement of fees paid to RBC Capital Markets, LLC, Paul Hastings and BofA for work relating to the Financing Transactions, unspecified damages and other relief. On May 20, 2016, the Court granted a six-month stay of the proceeding from the date of such order to allow a special litigation committee, created by the Company's board of directors, sufficient time to investigate, review and evaluate the facts, circumstances and claims asserted in or relating to this action and determine the Company's response thereto. The special litigation committee's review of the facts is ongoing. PTTEP AUSTRALASIA: Court Accepts Indonesian Seaweed Farmers' Suit ----------------------------------------------------------------- Djemi Amnifu, writing for The Jakarta Post, reports that the Federal Court of Australia in Sydney on Aug. 3 accepted a class action lawsuit filed by Indonesian fishermen, who are demanding PTTEP Australasia pay compensation for an oil leak at its Montara oil rig in the Timor Sea in 2009. The lawsuit was registered by the Care for West Timor Foundation's (YPTB) advocacy team heads Ferdi Tanoni and Daniel Sanda, who are representing 13,000 seaweed farmers from East Nusa Tenggara who suffered losses from the Montara oil spill. Ferdi said that in filing the class action lawsuit, they were accompanied by two lawyers, one of whom was Ben Slade from Maurice Blackburn Lawyers, a reputable Australian law office established in 1919. Another lawyer was Greg Phelps from WardKeller, the biggest law office in Northern Australia. Citing Slade, Ferdi said the Montara oil spill case must be brought to court because the meeting between the Australian law office and PTTEP Australasia representatives, which aimed to settle the case out of court, had failed to reach an agreement. Mr. Phelps asserted that PTTEP Australasia had purportedly closed its eyes and ears over sufferings experienced by East Nusa Tenggara people. He said PTTEP Australasia expected that the case would eventually disappear so they could be free from any responsibility. "That's why we, who have voluntarily supported the people since 2011, help carry out an advocacy to reveal the truth in this case," said Mr.Phelps, as quoted by Ferdi in an email to The Jakarta Post on Aug. 3. REGENCY CAR: Fails to Return Security Deposit, "Patel" Suit Says ---------------------------------------------------------------- NISHIL PATEL and GURRAJ SINGH, on behalf of themselves and all others similarly situated v. REGENCY CAR RENTALS, LLC, HERTZ GLOBAL HOLDINGS, INC., and THE HERTZ CORPORATION, Case No. 2:16- cv-05967-JFW-SK (C.D. Cal., August 10, 2016), is a proposed class action, brought on behalf of all those who rented a luxury vehicle from Regency, between August 10, 2012, and the present. The Action is also brought on behalf of a proposed sub-class, the New Jersey Sub-Class, composed of all those who resided in New Jersey and rented a luxury vehicle from Regency between August 10, 2012, and the present. The complaint seeks injunctive, declaratory and monetary relief arising from the Defendants' alleged failure to return the security deposit in violation of the standard car rental agreement and the California Business & Professions Code. Regency is a California limited liability corporation headquartered in Marina Del Rey, California. Hertz Global maintains its principal offices in Estero, Florida. Hertz Corporation is a subsidiary of Hertz Global and operates approximately 11,500 car rental locations worldwide. Defendants Hertz Global and Hertz Corporation are affiliated with Regency. The Plaintiffs are represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com REMINGTON ARMS: Judge Not Yet Ready to Approve Rifle Settlement --------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that U.S. District Judge Ortrie Smith of Kansas City is still not ready to grant final approval to a proposed class action settlement that would provide replacement trigger mechanisms to the owners of more than 7.5 million supposedly defective Remington bolt-action rifles. After a hearing on Aug. 2 on a revised proposal from Remington and plaintiffs' lawyers, the judge directed the two sides to file another proposed order, keeping alive a controversy the case has kicked up. The issue is what constitutes adequate notice to class members and whether a low claims rate necessarily means potential plaintiffs were underinformed. In December, Judge Smith refused to approve a final settlement because rifle owners had filed only 2,327 claims, despite a court-approved notice process that included postcards to known class members, Internet banner ads and print ads in both widely circulated and niche gun owner magazines. By June, when Remington and class counsel, at the judge's instruction, proposed a new notice campaign to "remind" rifle owners about their right to a free replacement trigger, only 6,300 class members had filed claims. That's a claims rate of less than 1 percent -- in a case alleging a deadly product defect. This is not a shampoo falsely advertised as being sold only in salons. These are rifles with an alleged tendency to fire when no one has pulled the trigger. Remington's lawyers at Swanson Martin & Bell and Shook Hardy & Bacon and plaintiffs' lawyers from Neblett Beard & Arsenault, Levin Fishbein Sedran & Berman, Holland Groves Schneller & Stolze and the Lanier Law Firm suggested several explanations for the extremely underwhelming response to the offer of a free fix for the supposedly defective firearms. Rifle owners (and all gun owners) may be skeptical of any process requiring registration, they said. Or they may not want to part with their weapons for long enough to get them fixed -- or may not want to tamper with a familiar trigger mechanism. The parties argued that judges frequently approve consumer class action settlements in which fewer than 5 percent of class members file claims. Low claims rates are the rule rather than the exception in such cases, they said. According to their brief, to assess the adequacy of class action notices, judges should consider whether class members have been provided with an opportunity to participate, not whether they've actually taken that opportunity. Nevertheless, because the judge demanded a revised notice plan in his December rejection of the first proposed settlement, the two sides described a "reminder" program that would include "a state- of-the-art, pre-tested social media campaign developed by an internationally recognized expert," a national radio ad campaign "forecasted to generate more than 61 million targeted impressions," emails and postcards to more than 1 million Remington customers and 11,000 posters to be displayed at gun dealerships. The additional notice, according to the brief from Remington and class counsel, "is likely to result in a more significant response rate based on empirical, preliminary testing results." On July 29, a class action consultant who has advised the Federal Judicial Center on its guidelines for class notices filed an extremely unusual letter to Judge Smith. In the filing, which was first reported by CNBC, Todd Hilsee of The Hilsee Group said the Remington class notice program remains woefully deficient. The social media ads, he said, seem designed to improve Remington's image, not to encourage rifle owners to file claims. The claims forms are unwieldy. And the proposed mailings don't include claims forms, Mr. Hilsee said. Mr. Hilsee didn't stop with criticizing the specifics of the new notice proposal, either. He attacked the integrity of the entire class action notice industry, describing a race to the bottom in which plaintiffs' lawyers demand low-ball bids from claims administrators, threaten to cut off administrators that won't play along and award contracts for the cheapest notice program that can pass muster under the "best practicable" standard in federal courts. "Those who know better dare not speak up," Mr. Hilsee wrote. "That is why I speak up as someone who does not bid and does not compete to execute notice. The low-ball notice plans and plummeting response rates are causing ridicule to courts and the class action device, studies calling class actions ineffectual, empowering legislation to eviscerate class actions, and now class action notice rule proposals that would weaken the one bulwark requirement -- individual notice by mail -- that generates the greatest response." Mr. Hilsee said low claims rates are good for defendants, who don't have to pay out, and plaintiffs' lawyers, who can persuade those defendants to settle with a wink and a nod, then claim fees based on the illusory classwide recovery. "Unless courts seek answers like this court did in December, and correct the problems, notice proposals will lead to continued degradation," Mr. Hilsee wrote. "These practices have created the danger that opt-out class actions will be de-legitimized." Steven Weisbrot -- steve@angeiongroup.com -- of the Angeion Group, claims administrator in the Remington settlement, said in an email that Mr. Hilsee's letter "smacks of full-blown conspiracy theories and is rife with self-aggrandizement and self-promotion." Mr. Hilsee's depiction of law firms threatening to blackball settlement administrators, Mr. Weisbrot said, "shows exactly how out of touch this . . . notice expert really is. The decision as to which notice provider to select is done not only with the advice and consent of all parties to the litigation but, ultimately, subject to formal court review and approval. The suggestion that in this judicial climate, with its notably heightened judicial scrutiny of class action settlements, there is something disreputable occurring is not just wrong, it is insulting." RFI CONSTRUCTION: Luna-Reyes Seeks Certification of FLSA Case ------------------------------------------------------------- In the lawsuit captioned JOAQUIN LUNA-REYES, on behalf of himself and all others similarly situated, the Plaintiff, v. RFI CONSTRUCTION, LLC, RUPERT BURROWS, and WILLIAM WARWICK, the Defendants, Case No. 1:14-CV-235 (M.D.N.C.), Mr. Joaquin Luna- Reyes moves the Court to enter an order: 1. conditionally certifying the action as a representative collective action under the Fair Labor Standards Act (FLSA); 2. approving the FLSA notice of the action and the consent form; 3. updating production of names, last known mailing addresses, alternate addresses, telephone numbers, email addresses, and dates of employment for all putative plaintiffs/class members; and 4. posting the Notice, along with the consent forms, at RFI Defendants and proposed Defendants' current jobsites; 5. certifying the action as a class action under North Carolina Wage and Hour Act claims; and 6. appointing Gilda A. Hernandez of The Law Offices of Gilda A. Hernandez, PLLC and Derek Braziel of Lee & Braziel, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=StTSOsVe The Plaintiff is represented by: Theodore C. Edwards, II, Esq. THE BANKS LAW FIRM 4309 Emperor Blvd., Ste. 225 Durham, NC 27703 Telephone: (919) 755 8700 Facsimile: (919) 755 8800 E-mail: tedwards@bankslawfirm.com - and - Gilda A. Hernandez, Esq. THE LAW OFFICES OF GILDA A. HERNANDEZ, PLLC 1020 Southhill Drive, Suite 130 Cary, NC 27513 Telephone: (919) 741 8693 Facsimile: (919) 869 1853 E-mail: ghernandez@gildahernandezlaw.com - and - J. Derek Braziel, Esq. LEE & BRAZIEL, LLP 1801 N. Lamar St. Suite 325 Dallas, TX 75202 Telephone: (214) 749 1400 Facsimile: (214) 749 1010 E-mail: jdbraziel@l-b-law.com RONAN, MT: Class Action Against City Can Proceed ------------------------------------------------ Justin Franz, writing for Flathead Beacon, reports that a member of the Confederated Salish and Kootenai Tribes is suing the City of Ronan for allegedly employing uncertified and unqualified police officers. Anthony Chaney filed the lawsuit in October 2015 and on July 1, District Court Judge Jim Manley granted the plaintiff's request for class certification, meaning that anyone who had been subjected to detention, search or seizure by ineligible or unqualified Ronan police officers could join the suit. According to court documents, the tribes entered into an agreement with local law enforcement agencies back in 2007 allowing the departments to police tribal members so long as they used certified officers. In Mr. Chaney's lawsuit, he alleges that an uncertified officer unlawfully arrested him in July 2013. According to court documents, Mr. Chaney was at a bar in Ronan with his brother, who suffers from post-traumatic stress disorder, when his sibling started to have a PTSD-episode. To help him through the incident, Mr. Chaney held down his brother in a grassy area in an attempt to calm him down, something he had been trained to do. Mr. Chaney held his brother down for more than an hour when multiple Ronan police officers arrived. Despite being told that he was trying to help his brother, the officers placed both men in handcuffs. Neither man was ever charged with a crime. Anyone who believes they may have been subjected to detention, search or seizure by ineligible or unqualified Ronan police officers are encouraged to contact Ann Sherwood or Justin Kalmbach at the Tribal Defenders Office at (406) 675-2700 ext. 1125. RTO MEDRESOURCE: Gress Seeks Certification of Classes ----------------------------------------------------- In the lawsuit titled DR. WILLIAM P. GRESS, on behalf of plaintiff and the class members, the Plaintiff, v. RTO MEDRESOURCE, LLC, and JOHN DOES 1-10, the Defendants, Case No. 1:16-cv-08060 (N.D. Ill.), the Plaintiff asks the Court to certify these classes: For purposes of Count I, alleging violation of the Telephone Consumer Protection Act, "(a) all persons with fax numbers (b) who, on or after a date four years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant RTO MedResource, LLC, promoting its goods or services for sale (d) which did not contain a compliant opt out notice"; and For purposes of Count II, alleging conversion, Count III, alleging nuisance, and Count IV, alleging trespass to chattels, "(a) all persons with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant RTO MedResource, LLC, promoting its goods or services for sale (d) which did not contain a complaint opt out notice". The Plaintiff further asks the Court that he be appointed class representative and that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=u08EET40 The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739 4200 Facsimile: (312) 419 0379 RTO MEDRESOURCE: Bid to Certify Class in "Gress" Suit Continued --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on August 15, 2016, in the case styled Dr. William P. Gress v. RTO MedResource, LLC, et al., Case No. 1:16-cv-08060 (N.D. Ill.), relating to a hearing held before the Honorable Thomas M. Durkin. The minute entry states that the Plaintiff's motion to certify class is entered and continued generally. The Docket Entry also states that the Plaintiff's motion to enter and continue the Motion is granted. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=vqeObLIF S.C.R.A.P. INC: Chicago Car Wants Certification of Three Classes ---------------------------------------------------------------- Chicago Car Care Inc. asks that the Court enter an order determining that the action titled CHICAGO CAR CARE INC., on behalf of plaintiff and the class members defined herein v. S.C.R.A.P. INC., and JOHN DOES 1-10, Case No. 1:16-cv-08088 (N.D. Ill.), may proceed as a class action against S.C.R.A.P. The Plaintiff defines the classes as: For purposes of Count I, alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. Section 227, plaintiff seeks to represent a class consisting of (a) all persons with fax numbers (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. Section 1658), (c) were sent faxes by or on behalf of defendant S.C.R.A.P. Inc., promoting its goods or services for sale (d) which did not contain a compliant opt out notice. By "compliant opt out notice" is meant one (i) on the first page of the fax (ii) that states that the recipient may make a request to the sender not to send any future unsolicited advertisements to a telephone facsimile machine (iii) that states that failure to comply, within the shortest reasonable time, as determined by the Federal Communications Commission, is unlawful; (iv) that provides instructions on how to submit an opt out request and (v) that includes a domestic contact telephone and facsimile machine number and a cost-free mechanism for the recipient to transmit such a request to the sender that permit a request to be made at any time on any day of the week. For purposes of Count II, alleging violation of the Illinois Consumer Fraud Act, 815 ILCS 505/2, plaintiff seeks to represent a class consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date three years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant S.C.R.A.P. Inc., promoting its goods or services for sale (d) which did not contain a compliant opt out notice. For purposes of Count III, alleging conversion, Count IV, alleging nuisance, and Count V, alleging trespass to chattels, plaintiff seeks to represent a class consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant S.C.R.A.P. Inc., promoting its goods or services for sale (d) which did not contain a compliant opt out notice. The Plaintiff also asks that it be appointed class representative and that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=6BcB0Sj3 The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Heather Kolbus, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com hkolbus@edcombs.com SANTA MONICA, CA: Class Certification Sought in "Rosenblatt" Suit ----------------------------------------------------------------- Arlene Rosenblatt moves for an order certifying a putative class in the lawsuit entitled ARLENE ROSENBLATT, an individual, on behalf of herself and all others similarly situated v. THE CITY OF SANTA MONICA, a municipal corporation; and THE CITY COUNCIL OF THE CITY OF SANTA MONICA, its governing body, Case No. 2:16-cv-04481- ODW-AGR (C.D. Cal.). Ms. Rosenblatt also asks the Court to appoint her as Class Representative, and to appoint her counsel as Class Counsel. The Court will commence a hearing on September 12, 2016, at 1:30 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=duYClG3k The Plaintiff is represented by: Robert L. Esensten, Esq. Jordan S. Esensten, Esq. ESENSTEN LAW 12100 Wilshire Boulevard, Suite 1660 Los Angeles, CA 90025 Telephone: (310) 273-3090 Facsimile: (310) 207-5969 E-mail: resensten@esenstenlaw.com jesensten@esenstenlaw.com SCARLETT'S G.P.: Judge Favors Dismissal of Exotic Dancers' Suit --------------------------------------------------------------- District Judge Amy J. St. Eve of the Northern District of Illinois, Eastern Division, granted defendants' motions to dismiss in the case KATHLEEN HUGHES, IMOGEN OLIVER, and VIRGINIA SHERWOOD, Plaintiffs, v. SCARLETT'S G.P., INC. d/b/a PINK MONKEY, CLINTON ENTERTAINMENT MANAGEMENT, LLC d/b/a PINK MONKEY, NEW YORK STRIP d/b/a PINK MONKEY, SCARLETT'S L.P. and MARK VAJDIK, Defendants, No. 15-cv-5546 (N.D. Ill.) Plaintiffs Kathleen Hughes, Imogen Oliver, and Virginia Sherwood are former exotic dancers at the Pink Monkey, an adult entertainment business allegedly owned and operated by defendants. Plaintiffs claim that defendants misclassified them as independent contractors instead of employees, failed to pay them minimum wage or overtime pay, and unlawfully confiscated their tips. On February 5, 2016, the court issued an order on defendants' motion to dismiss that dismisses plaintiffs' claims on minimum and overtime wage violations of the Fair Labor Standards Act (Count I), the Illinois Minimum Wage Law (Count II), the Illinois Wage Payment and Collection Act (Count III), the Racketeer Influence and Corruption Act (Count IV), and, as to plaintiff Virginia Sherwood, retaliatory discharge under the FLSA and the IWPCA (Count V). The court dismissed with prejudice plaintiffs' tip recovery claim under the FLSA, as well as plaintiff Sherwood's claim for retaliatory discharge under the IMWL. Plaintiffs filed an amended complaint alleging minimum and overtime wage violations under the FLSA, IMWL, and IWPCA, and as to Sherwood's retaliatory discharge under the IWPCA. Defendants Clinton Entertainment Management, LLC and Scarlett's L.P. moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants Scarlett's G.P., Inc. and Mark Vajdik joined the motion and made additional arguments in favor of dismissal. Judge St. Eve granted defendants' motions to dismiss. A copy of Judge St. Eve's memorandum opinion and order dated August 8, 2016, is available at http://goo.gl/vGZTLRfrom Leagle.com. Plaintiffs, represented by: Gregory X. Gorman, Esq. Gorman & Gorman 220 S Halsted St. Chicago, IL 60661 Telephone: 312-332-4240 Mark Vajdik and Scarlett's G.P., Inc., Defendants, represented by Marty Jay Schwartz -- mschwartz@schainbanks.com -- Tyler J Manic - - tmanic@schainbanks.com -- at Schain Banks Kenny & Schwartz Clinton Entertainment Management, Inc., LLC and Scarlett's L.P., Defendants, represented by: Michael Z. Gurland, Esq. The Gurland Law Firm 2 N La Salle St, Ste 2200 Chicago, IL 60602-3801 Telephone: 312-269-8000 SEDGWICK LLP: Removes "Ribeiro" Class Suit to N.D. California ------------------------------------------------------------- Sedgwick LLP removes the lawsuit titled TRACI RIBEIRO, on behalf of herself and all others similarly situated v. SEDGWICK LLP, Case No. CGC-16-553231, from the Superior Court of the State of California for the County of San Francisco to the U.S. District Court for the Northern District of California. The District Court Clerk assigned Case No. 3:16-cv-04507-WHA to the proceeding. On July 26, 2016, Traci Ribeiro filed a complaint against Sedgwick alleging claims for relief against the Defendant stemming from the Plaintiff's partnership in the Defendant, namely Defendant's alleged failure to compensate her in an amount commensurate to male counterparts (despite her being one of the most highly compensated partners) and alleged failure to elect her to equity partnership. The Plaintiff bases her claims on, among other things, alleged violations by the Defendant of the Federal Equal Pay Act. The Plaintiff is represented by: Sharon R. Vinick, Esq. LEVY VINICK BURRELL HYAMS LLP 180 Grand Avenue, Suite 1300 Oakland, CA 94612 Telephone: (510) 318-7702 Facsimile: (510) 318-7701 E-mail: sharon@levyvinick.com - and - J. Bryan Wood, Esq. THE WOOD LAW OFFICE, LLC 303 W. Madison St., Suite 2650 Chicago, IL 60606 Telephone: (312) 554-8600 Facsimile: (312) 577-0749 E-mail: bryan@jbryanwoodlaw.com The Defendant is represented by: Nick C. Geannacopulos, Esq. Emily Barker, Esq. SEYFARTH SHAW LLP 560 Mission Street, 31st Floor San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: ngeannacopulos@seyfarth.com ebarker@seyfarth.com - and - Kyle Petersen, Esq. SEYFARTH SHAW LLP 131 South Dearborn Street, Suite 2400 Chicago, IL 60603 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 E-mail: kpetersen@seyfarth.com SHAFER TROXELL: Fails to Pay Minimum and OT Wages, Nusbaum Claims ----------------------------------------------------------------- SCOTT NUSBAUM, GREG PHILLIPS and GEORGE MCDONNELL, Individually and on behalf of all others similarly situated, and all who have filed consent to suit forms in this case v. SHAFER, TROXELL & HOWE, INC., GARETH KOOGLE, Pres., and JEFF RUSSELL, Executive Vice President, Case No. 1:16-cv-02826-MJG (D. Md., August 10, 2016), accuses the Defendants of failing to pay the Plaintiffs minimum wages and time-and-a-half for overtime wages as required by the Fair Labor Standards Act. Shafer Troxell is a business entity whose activities affect interstate commerce. Gareth Koogle is the President of STH. Jeff Russell is the Executive Vice President of STH. The Defendants contracted/employed the Plaintiffs as Service Tech employees. The Plaintiffs are represented by: Francis J. Collins, Esq. KAHN, SMITH & COLLINS, P.A. 201 North Charles Street, 10th Floor Baltimore, MD 21201 Telephone: (410) 244-1010 E-mail: fjcollins@kahnsmith.com SHELL OIL: Settles False Advertising Class Action ------------------------------------------------- Crime Voice reports that the Santa Cruz District Attorney's Office has announced that Shell Oil Company agreed to a settlement to resolve consumer protection and false advertising violation, agreeing to pay $762,500 in civil penalties, cost, and restitution. They have also agreed to certain provisions to ensure future compliance and avoid further mishaps. Santa Cruz County was one of several California counties developing a task force to conduct an investigation into Shell's alleged dealings with gift cards and fuel rewards cards. The task force then filed a class action lawsuit against the fuel giant in an Alameda County Court. The suit alleged that: -- Shell failed to adequately disclose that certain advertised discounts for using gift cards and fuel rewards could not be combined. -- Advertised discounts on gasoline purchased by gift cards were not being honored by all Shell stations. -- There had been failure to redeem gift cards with a balance for less than $10 for cash as required by California law. -- Shell failed to disclose limitations to their rewards program. -- The company falsely advertised that certain gift cards could be "used as cash" even though some customers were being charged credit card rates when using their gift cards. "[Our] office is committed to ensuring that California's consumer protection and false advertising laws are followed both to protect consumers and create a level playing field for all businesses," Santa Cruz County District Attorney Jeff Rosell wrote in a press release. Shell's counsel, although denying liability, worked to implement changes in processing transactions and additional disclosures in the wake of the allegations. SOLARCITY CORP: Judge Dismisses Shareholder Fraud Case ------------------------------------------------------ Ben Hancock, writing for The Recorder, reports that a federal judge on Aug. 9 dismissed a shareholder fraud case against renewable energy company SolarCity Corp., which is on the cusp of a merger with Tesla Motors, after lawyers at Pomerantz failed for a third time to make claims stick. U.S. District Judge Beth Labson Freeman in a 20-page decision said attorneys had failed to plug holes in their complaint against SolarCity that she identified in two previous orders. The suit, filed in 2014, alleges the company manipulated its accounting to make it look like sales were performing better than they were. But Judge Freeman said that despite gathering information from almost a dozen confidential witnesses, the plaintiffs still could not point to evidence suggesting that SolarCity executives had knowledge of wrongdoing -- or "scienter" -- in committing the accounting error. "In large part, plaintiffs rely on the same body of allegations that the court previously found to be insufficient. And, contrary to plaintiffs' argument, their new allegations fail to support the scienter requirement that individual defendants knew that the entire sales segment was underperforming while at the same time reporting profits in the sales segment," she wrote. Judge Freeman dismissed the suit with prejudice. She had twice previously granted motions to dismiss but had given attorneys at plaintiff-side securities firm Pomerantz chances to amend their complaint. SolarCity, which was represented by Wilson Sonsini Goodrich & Rosati in the case, did not immediately respond to a request for comment. The securities fraud class action followed a major correction in sales margins reported by SolarCity that was announced in 2014 for quarters in the previous two years. Some of the swings were dramatic, and when disclosed, weighed on the company's stock price. For example, the company originally reported a positive sales margin of 42 percent in the fourth quarter of 2012; that was later corrected to a negative margin of 24 percent, according to the complaint. Still, Judge Freeman said, there was no clear allegation that SolarCity or its leadership intentionally fudged the numbers. "The allegations clearly show that defendants had the motive and perhaps even the opportunity to cause the accounting error. . . But '[i]f scienter could be pleaded merely by alleging that officers and directors possess motive and opportunity to enhance a company's business prospects . . . virtually every company in the United States that experiences a downturn in stock price could be forced to defend securities fraud actions,'" she wrote, citing past case law. The dismissal of the case helps clear the air for SolarCity ahead of its merger with Tesla Motors Inc., which was announced earlier this month. Both companies are heavily invested in by billionaire business magnate Elon Musk, who was named as a defendant in earlier stages of the shareholder suit. SOUTH CAROLINA: "Kenny" Files Suit v. Atty. Gen., Police Officers ----------------------------------------------------------------- A lawsuit has been filed against government officials of Southern Carolina. The case is captioned Niya Kenny, Taurean Nesmith, and Girls Rock Charleston Inc., on behalf of themselves and all others similarly situated; DS, by and through her next of kin Juanita Ford, on behalf of herself and all others similarly situated; and SP, by and through her next of kin Melissa Downs, on behalf of herself and all others similarly situated, the Plaintiffs, v. Alan Wilson, in his official capacity as Attorney General of South Carolina, on behalf of himself and others similarly situated; J Alton Cannon, Jr., in his official capacity as the Sheriff of Charleston County, SC, on behalf of himself and others similarly situated; Gregory G Mullen, in his official capacity as the Chief of the Police Department of the City of Charleston, SC, on behalf of himself and others similarly situated; Eddie Driggers , Jr., in his official capacity as the Chief of the Police Department of the City of North Charleston, SC, on behalf of himself and others similarly situated; Carl Ritchie, in his official capacity as the Chief of the Police Department of the City of Mt. Pleasant, SC, on behalf of himself and others similarly situated; Leon Lott, in his official capacity as the Sheriff of Richland County, SC, on behalf of himself and others similarly situated; W.H. Holbrook, Department of in his official capacity as the Chief of the Police Department of the City of Columbia, SC, on behalf of himself and others similarly situated, the Steve Loftis, in his official capacity as the Sheriff of Greenville County, SC, on behalf of himself and others similarly situated; Ken Miller, in his official capacity as the Chief of the Police Department of the City of Greenville, SC, on behalf of himself and others similarly situated; Lance Crowe, in his official capacity as the Chief of the Police Department of the City of Travelers Rest, SC, on behalf of himself and others similarly situated; Steve Moore, in his official capacity as Interim Chief of the Police Department of the City of Simpsonville, SC, on behalf of himself and others similarly situated; M Bryan Turner, in his official capacity as the Chief of the Police Department of the City of Mauldin, SC, on behalf of himself and others similarly situated; Dan Reynolds, in his official capacity as the Chief of the Police Department of the City of Greer, SC, on behalf of himself and others similarly situated; A. Keith Morton, in his official capacity as the Chief of the Police Department of the City of Fountain Inn, SC, on behalf of himself and others similarly situated, the Defendants, Case No. 2:16-cv-02794-CWH (D.S.C., Aug. 11, 2016). The assigned Judge is Hon. C Weston Houck. Alan McCrory Wilson is an American attorney and politician, currently serving as the 51st Attorney General of South Carolina. He is a member of the Republican Party. The Plaintiffs are represented by: Susan King Dunn, Esq. ACLU SC NATIONAL OFFICE PO Box 20998 Charleston, SC 29403 Telephone: (843) 720 1425 Facsimile: (843) 720 1428 E-mail: sdunn@aclusouthcarolina.org SPORT CLIPS: Pinnacle Removes "Perez" Class Suit to S.D. Cal. ------------------------------------------------------------- Defendant Pinnacle PEO Corporation removes the lawsuit styled JULIETA PEREZ, on behalf of herself, and all others similarly situated v. SPORT CLIPS, INC., a Texas corporation; CCAR CLIPS, LLC, a California limited liability company doing business as Sport Clips; PINNACLE PEO CORPORATION, a Texas corporation; CHRIS FORMO, an individual; and DOES 1 through 50, inclusive, Case No. 37-2016-00021023-CU-OE-CTL, from the Superior Court of the State of California, County of San Diego, to the United States District Court for the Southern District of California. The District Court Clerk assigned Case No. 3:16-cv-02011-JAH-NLS to the proceeding. On June 21, 2016, the Plaintiff filed a complaint in the Superior Court accusing the Defendants of, among other things, failure to pay employees for all hours worked at correct rates of pay and failure to provide rest breaks. The Plaintiff is represented by: David G. Spivak, Esq. Caroline Tahmassian, Esq. THE SPIVAK LAW FIRM 9454 Wilshire Blvd., Suite 303 Beverly Hills, CA 90212 Telephone: (310) 4994730 Facsimile: (310) 499-4739 E-mail: david@spivaklaw.com caroline@spivaklaw.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Ave, Suite 201 Huntington Beach, CA 92649 Telephone: (888) 474-7242 Facsimile: (562) 256-1006 E-mail: walter@whaines.com Defendant PINNACLE PEO CORPORATION is represented by: John M. Polson, Esq. FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, CA 92614 Telephone: (949) 851-2424 Facsimile: (949) 851-0152 E-mail: jpolson@fisherphillips.com - and - Aaron F. Olsen, Esq. Brooke B. Tabshouri, Esq. FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 San Diego, CA 92121 Telephone: (858) 597-9600 Facsimile: (858) 597-9601 E-mail: aolsen@fisherphillips.com btabshouri@fisherphillips.com STONE FUNDING: Chicago Car Seeks Certification of Three Classes --------------------------------------------------------------- Chicago Car Care Inc. asks that the Court enter an order determining that the action entitled CHICAGO CAR CARE INC., on behalf of plaintiff and the class members defined herein v. STONE FUNDING GROUP LLC, and JOHN DOES 1-10, Case No. 1:16-cv-08094 (N.D. Ill.), may proceed as a class action against Stone Funding. The Plaintiff defines the classes as: For purposes of Count I, alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. Section 227, plaintiff seeks to represent a class consisting of (a) all persons with fax numbers (b) who, on or after a date four years prior to the filing of this action (28 U.S.C. Section 1658), (c) were sent faxes by or on behalf of defendant Stone Funding Group LLC, promoting its goods or services for sale (d) which did not contain a compliant opt out notice. By "compliant opt out notice" is meant one (i) on the first page of the fax (ii) that states that the recipient may make a request to the sender not to send any future unsolicited advertisements to a telephone facsimile machine (iii) that states that failure to comply, within the shortest reasonable time, as determined by the Federal Communications Commission, is unlawful; (iv) that provides instructions on how to submit an opt out request and (v) that includes a domestic contact telephone and facsimile machine number and a cost-free mechanism for the recipient to transmit such a request to the sender that permit a request to be made at any time on any day of the week. For purposes of Count II, alleging violation of the Illinois Consumer Fraud Act, 815 ILCS 505/2, plaintiff seeks to represent a class consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date three years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant Stone Funding Group LLC, promoting its goods or services for sale (d) which did not contain a compliant opt out notice. For purposes of Count III, alleging conversion, Count IV, alleging nuisance, and Count V, alleging trespass to chattels, plaintiff seeks to represent a class consisting of (a) all persons with Illinois fax numbers (b) who, on or after a date five years prior to the filing of this action, (c) were sent faxes by or on behalf of defendant Stone Funding Group LLC, promoting its goods or services for sale (d) which did not contain a compliant opt out notice. Chicago Car further asks that it be appointed class representative and that Edelman, Combs, Latturner & Goodwin, LLC, be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gaDRjHOZ The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Heather Kolbus, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com ccombs@edcombs.com jlatturner@edcombs.com hkolbus@edcombs.com SUFFOLK BANCORP: Defending Merger-Related Class Suit ---------------------------------------------------- Suffolk Bancorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company, its board of directors and People's United are named as defendants in two purported class action lawsuits in the Supreme Court of the State of New York, Suffolk County, challenging the merger and seeking, among other things, to enjoin the defendants from completing the merger on the agreed-upon terms, and rescission of the merger and/or awarding of damages to the extent the merger is completed. Additional plaintiffs may also file lawsuits against the Company or People's United and/or their directors and officers in connection with the merger. The outcome of any such litigation is uncertain. If the cases are not resolved, these lawsuits could prevent or delay completion of the merger and result in substantial costs to the Company, including any costs associated with the indemnification of directors and officers. TEACHERS INSURANCE: Court Narrows Claims in "Luciano" Suit ---------------------------------------------------------- In the case captioned LORRAINE H. LUCIANO, on behalf of herself and all others similarly situated, Plaintiff, v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA-COLLEGE RETIREMENT EQUITIES FUND (TIAA-CREF), et al., Defendants, Civil Action No. 15-6726 (MAS)(DEA) (D.N.J.), Judge Michael A. Shipp denied the plaintiff's appeal of the court's January 15 order, granted in part the defendants' motions to dismiss, and terminated as moot the plaintiffs' cross-motions for summary judgment. A full-text copy of Judge Shipp's July 29, 2016 memorandum opinion is available at https://is.gd/PcfEzV from Leagle.com. The putative class action was brought by Lorraine H. Luciano against the defendants concerning the defendants' treatment of defined-contribution pension benefits allegedly payable to Luciano. The defendants Teachers Insurance and Annuity Association of America - College Retirement Equities Fund, Teachers Insurance and Annuity Association of America, and College Retirement Equities Fund ("TIAA-CREF Defendants") provide retirement and savings plan design, consultation, and administration for employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). The defendants Educational Testing Service (ETS) and Educational Testing Service Employee Benefits Administration Committee (EBAC) (collectively, with ETS, "ETS Defendants") sponsor certain employee benefit plans and have selected TIAA-CREF as an annuity provider for their plans. Luciano's husband, James Rosso, was employed by ETS and was a participant in two of ETS's plans: (1) the ETS Retirement Plan (401(a) Plan); and (2) the ETS 403(b) Match Plan (403(b) Plan). James originally designated his parents and sister, Intervenor Lucille Rosso, as his beneficiaries under the Plans. Later, James changed his designated beneficiary to only his sister. Thereafter, Luciano and James married in February 2004, and James passed away in April 2014. After her husband's death, Luciano informed TIAA-CREF Defendants that she was his surviving spouse. TIAA-CREF Defendants informed Luciano that as the surviving spouse she was entitled to a death benefit of $119,253.33, one half of Mr. Rosso's account balance. TIAA-CREF Defendants informed Luciano that the other one half benefit would be paid to Lucille. Subsequently, Luciano filed the putative class action challenging the defendants' 50% benefit determination and the 401(a) Plan's mandatory arbitration provision. The defendants moved to dismiss Luciano's First Amended Complaint pursuant to Rule 12(b)(1), (6), and (7) of the Federal Rules of Civil Procedure. In response, Luciano cross-moved for partial summary judgment against the defendants and intervenor defendant Lucille Rosso. Additionally, Luciano appealed the Honorable Douglas E. Arpert, U.S.M.J.'s January 15, 2016 Memorandum Order, granting Lucille's motion to intervene. Judge Shipp dismissed with prejudice Counts Four, Five, and Six of Luciano's Amended Complaint, seeking relief from the mandatory arbitration provision in the 401(a) Plan under section 1133(2), for failure to state a claim. Additionally, the judge will compel arbitration, pursuant to the mandatory arbitration provision, of Counts One, Two, and Three of Luciano's Amended Complaint, as they relate to the 401(a) Plan. Furthermore, Judge Shipp ordered the stay of Counts One, Two, and Three of Luciano's Amended Complaint, as they relate to the 403(b) Plan, pending arbitration of the same counts as they relate to the 401(a) Plan. Judge Shipp did not compel arbitration of the claims as they relate to the 403(b) Plan. LORRAINE H. LUCIANO, Plaintiff, represented by FREDERICK BENNO POLAK -- fpolak@postpolak.com -- POST, POLAK, GOODSELL, MACNEILL & STRAUCHLER, PA, MATTHEW F. GATELY -- mfg@njlawfirm.com -- COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF LLP, PETER S. PEARLMAN -- psp@njlawfirm.com -- COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF, LLP & MICHAEL JOHN MARTELO -- mmartelo@postpolak.com -- Post, Polak, Goodsell & Strauchler, P.A.. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA - COLLEGE RETIREMENT EQUITIES FUND (TIAA-CREF), TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA (TIAA), COLLEGE RETIREMENT EQUITIES FUND (CREF), Defendants, represented by LIZA M. WALSH -- lwalsh@walsh.law -- WALSH PIZZI O'REILLY FALANGA LLP & KATELYN O'REILLY -- koreilly@walsh.law -- WALSH PIZZI O'REILLY FALANGA LLP. EDUCATIONAL TESTING SERVICES (ETS), THE EDUCATIONAL TESTING SERVICE EMPLOYEE BENEFITS ADMINISTRATION COMMITTEE, Defendants, represented by JEFFREY IVAN PASEK, COZEN O'CONNOR. LUCILLE ROSSO, Intervenor Defendant, represented by JEFFREY D. HOFFMANN -- jeff@centralnjlawyer.com -- THE LAW OFFICE OF JEFFREY HOFFMANN, LLC & BRYAN CULLEN MARKWARD, THE LAW OFFICE OF JEFFREY HOFFMAN. TEAM HEALTH: Opposed Request for Attorneys' Fees ------------------------------------------------ Team Health Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company is opposing the class action plaintiffs' application for the payment of their attorneys' fees and expenses. On August 14, 2015, prior to the closing of the merger transaction with IPC Healthcare, Inc., a purported shareholder of IPC filed a complaint in the Delaware Court of Chancery captioned Smukler v. IPC Healthcare, Inc., et al. (Case No. 11392-CB), on behalf of a purported class of IPC shareholders. The lawsuit names as defendants IPC, each of its directors at the time the merger with the Company was announced (the Individual Defendants), the Company, and Intrepid Merger Sub, Inc. (Sub). The August 14, 2015 complaint alleged that the Individual Defendants breached their fiduciary duties by, among other things, failing to take appropriate steps to maximize the value of IPC to its shareholders, failing to value IPC properly, and taking steps to avoid competitive bidding by alternate potential acquirers. The complaint also alleged that IPC, the Company, and Sub aided and abetted those alleged breaches of fiduciary duties by the Individual Defendants. The complaint sought, among other things, certification of the action as a class action; injunctive relief enjoining the merger; an accounting of all damages purportedly suffered by the plaintiff and the class (including rescissory damages in favor of the plaintiff and the class); and the fees and costs associated with the litigation. On August 18, 2015, an additional lawsuit, Crescente v. Singer, et al. (Case No. 11405-CB), was filed in the Delaware Court of Chancery, asserting similar claims and allegations to those in the Smukler lawsuit and seeking similar relief on behalf of the same putative class. Additionally, on August 19, 2015, prior to the closing of the IPC Transaction, a lawsuit was filed in the Superior Court for the State of California in Los Angeles County, Khemthong v. IPC Healthcare Networks, Inc., et al. (No. BC 591953). The lawsuit asserted similar claims and allegations to those in the Smukler lawsuit and sought similar relief on behalf of the same putative class. On August 27, 2015, the plaintiff filed a request for voluntary dismissal of the suit without prejudice, and on August 28, 2015, the court entered an order granting that request. Pursuant to a September 11, 2015 order from the Delaware Court of Chancery (the Consolidation Order), the Smukler and Crescente actions were consolidated, and all further litigation relating to or arising out of the Company's merger with IPC were directed to be consolidated with such actions under the caption In re IPC Healthcare, Inc. Stockholders Litigation (Case No. 11392-CB) (the Consolidated Action). On September 17, 2015, an action captioned Spencer v. IPC Healthcare, Inc. (Case. No. 11516-CB) was filed in the Delaware Court of Chancery. Under the Consolidation Order, such action is required to be consolidated with the previously-filed actions. On September 18, 2015, a verified consolidated class action complaint was filed in the Consolidated Action (the Consolidated Complaint). The Consolidated Complaint alleges substantially the same breaches of fiduciary duty as the August 14, 2015 complaint in the Smukler action, and additionally alleges that the Individual Defendants breached their duty of disclosure by failing to disclose to IPC shareholders all material information necessary for them to evaluate the merger. On October 2, 2015, the defendants in the Consolidated Action moved to dismiss the Consolidated Complaint. On November 6, 2015, the Company and the other defendants in the Consolidated Action entered into a Memorandum of Understanding with the plaintiffs in the Consolidated Action providing for the settlement and the release of all claims that were or could have been brought against the Company and the other defendants in the Consolidated Action based upon a duty arising under Delaware law to disclose or not omit material information in connection with the IPC Transaction, upon entry of a final order by the Delaware Court of Chancery approving the settlement. The Memorandum of Understanding contemplated that, subject to completion of certain confirmatory discovery by counsel to the plaintiffs, the parties would enter into a stipulation of settlement. Following a series of rulings by the Court of Chancery in other lawsuits challenging mergers, the Company and the other defendants in the Consolidated Action agreed with the plaintiffs that the Memorandum of Understanding would be superseded and replaced by the voluntary dismissal of the Consolidated Action on the basis that it was mooted by the disclosures contained in the Current Report on the Form 8-K that the Company filed with the SEC on November 6, 2015. On April 12, 2016, the Court entered an order granting plaintiffs' request to voluntarily dismiss the Consolidated Action as moot and setting a briefing schedule for plaintiffs to make an application to the Court for the payment of their attorneys' fees and expenses. Plaintiffs filed their application for an award of fees and expenses, in the total amount of $350,000 on May 19, 2016. The Company filed its opposition to such application on June 30, 2016 and on July 14, 2016, plaintiffs filed their reply papers. TENNESSEE: Dismissal of "O'Neal" Suit Affirmed ---------------------------------------------- In the case captioned ROBERT DIONNE O'NEAL v. MARK GOINS, ET AL., No. M2015-01337-COA-R3-CV (Tenn. Ct. App.), the Court of Appeals of Tennessee, at Nashville affirmed the judgment of the Chancery Court in dismissing the action and denying the application to amend the petition. The judgment was modified to make the dismissal without prejudice. A full-text copy of the Court's July 29, 2016 opinion is available at https://is.gd/ByqYMe from Leagle.com. The appeal arose out of the efforts of Robert O'Neal, a convicted felon, to have his voting rights restored. O'Neal had his citizenship rights restored in accordance with Tenn. Code Ann. Section 40-29-101, et seq., by order of the Circuit Court of Marshall County. His effort to have his right to vote restored pursuant to Tenn. Code Ann. Section 40-29-201, et seq. was not successful; as a result, he filed a petition in the Chancery Court for Davidson County against Mark Goins, Coordinator of Elections for the State of Tennessee, and the Tennessee State Election Commission. O'Neal asserted that the defendants had improperly refused to restore his right to vote. Elizabeth R. McClellan, Murfreesboro, Tennessee, for the appellant, Robert Dionne O'Neal. Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, III, Associate Solicitor General; Janet Kleinfelter, Deputy Attorney General, and Ryan A. Lee, Assistant Attorney General, Nashville, Tennessee, for the appellee, Mark Goins, individually and in his official capacity, and the Tennessee State Election Commission. TOTAL NEW: Accused by Najjar of Sexual and Racial Discrimination ---------------------------------------------------------------- MERVEY NAJJAR, an individual v. TOTAL NEW IDEAS, INC., a corporation; MARCELO TEYER, an individual and Does 1 through 100 Inclusive, Case No. BC630263 (Cal. Super. Ct., Los Angeles Cty., August 10, 2016), is brought on behalf of those similarly situated and on behalf of the general public for alleged sexual discrimination and harassment, and discrimination based on national origin, race, color, ancestry and religious creed. Total New Ideas, Inc., is a corporation with headquarters or principal place of business located in county of Los Angeles, California. Marcelo Teyer is the president and owner of the Company. The Plaintiff is ignorant of the true names and capacities of the Doe Defendants. The Plaintiff is represented by: Brian I. Vogel, Esq. LAW OFFICES OF BRIAN I. VOGEL 572 E. Green Street, Suite 305 Pasadena, CA 91101 Telephone: (626) 796-7470 Facsimile: (626) 796-7474 E-mail: Vogellawfirm@yahoo.com TROTT LAW: Court Narrows Claims in "Martin" Suit ------------------------------------------------ In the case captioned BRIAN J. MARTIN and YAHMI NUNDLEY, Plaintiffs, v. TROTT LAW, P.C., DAVID A. TROTT, JANE DOE, and JOHN DOE, Defendants, Case No. 15-12838 (E.D. Mich.), Judge David M. Lawson granted in part and denied, in part, the defendants' motions to dismiss, and granted the plaintiffs motion to file a second amended complaint. Brian J. Martin and Yahmi Nundley filed the lawsuit, as members of a putative class, alleging that the defendants violated the Fair Debt Collection Practices Act (FDCPA) and the Michigan Regulation of Collection Practices Act (RCPA), by sending certain letters to these consumers in an effort to foreclose their residential mortgages. They alleged that the letters were misleading in several different respects and violated specific sections of the federal and state statutes. They have sued Trott Law, P.C. (formerly known as Trott & Trott, P.C.) and its former principal, David Trott, individually. Judge Lawson found that Martin's claims under the FDCPA (counts I, III, V) are barred by its one-year statute of limitations. The judge also found that although Nundley has stated a viable claim in count I, neither party has stated a claim for which relief can be granted in counts III or IV. Nundley has not pleaded a claim in count V. The plaintiffs argued that Martin can still maintain status as a class representative for the claims in count V. However, Judge Lawson found that no class has been certified, and Martin's status as a class representative, whatever that turns out to be, cannot resurrect his own time-barred claim. Accordingly, Judge Lawson ordered that count I of the first amended complaint be dismissed with prejudice as to Martin only; counts III, IV, and V be dismissed with prejudice in their entirety; and that the motion be denied in all other respects. The judge further ordered that the plaintiffs' motion for leave to file a second amended complaint be granted in part, and that the plaintiffs may file a second amended complaint, without including the counts dismissed, on or before August 8, 2016. A full-text copy of Judge Lawson's July 26, 2016 opinion and order is available at https://is.gd/yDS5ZV from Leagle.com. Brian J Martin, Yahmi Nundley, Plaintiffs, represented by Diana Gjonaj -- dgjonaj@milberg.com -- Milberg LLP, Paul F. Novak -- pnovak@milberg.com -- Milberg LLP & Andrew J. McGuinness -- drewmcg@topclasslaw.com Trott Law P.C., Defendant, represented by Charity A. Olson, Olson Law Group. David A. Trott, Defendant, represented by Bruce L. Segal -- bsegal@honigman.com -- Honigman, Miller & Joseph Aviv -- javiv@honigman.com -- Honigman, Miller. TRUMP UNIVERSITY: Judge Refuses to Release Trump Video Testimony ---------------------------------------------------------------- CBS News reports that a federal judge's refusal to release video of Donald Trump testifying in a lawsuit about the now-defunct Trump University denies critics of the Republican presidential nominee a chance to use potentially powerful images against him. Transcripts of Mr. Trump's depositions have been released over the last few months but videos remained sealed. Attorneys suing the business mogul have said his tone, facial expressions, gestures and body language show "complete and utter unfamiliarity" with Trump University's instructors and instruction and that he made "many spontaneous and ad hominem remarks that are not reflected in the paper transcript of his depositions." U.S. District Judge Gonzalo Curiel, a target of Mr. Trump's repeated scorn, on Aug. 2 rejected a bid by news organizations to release video of Mr. Trump's full day of testimony Dec. 10 at his New York office and three hours of testimony on Jan. 21 in a Las Vegas law office. He also rejected a bid by Mr. Trump's attorneys to dismiss the lawsuit. Judge Curiel wrote that "while there is a degree of legitimate public interest in the demeanor of the defendant in the deposition videos," it did not outweigh the potential harm the ongoing media scrutiny of the footage could do to the case. Trumps attorneys had argued the video testimony would have been used in campaign attack ads and tainted the jury pool. Judge Curiel agreed, saying "there is every reason to believe that release of the deposition videos would contribute to an on-going 'media frenzy' that would increase the difficulty of seating an impartial jury." News organizations argued that the public has a right to the complete record, given how Trump has touted his business acumen and questions that the lawsuits alleging fraud have raised. Mr. Trump's attorneys argued that Judge Curiel should follow another judge in a lawsuit involving Hillary Clinton's email practices. U.S. District Judge Emmet Sullivan in the District of Columbia has allowed the release of deposition transcripts but no video. He sided with lawyers for Clinton aide Cheryl Mills, who said "snippets or soundbites of the deposition may be publicized in a way that exploits Ms. Mills' image and voice in an unfair and misleading manner." Two class-action lawsuits being overseen by Judge Curiel in San Diego and one lawsuit in New York allege that Trump University, which wasn't accredited as a school, gave seminars and classes across the country that were like infomercials, constantly pressuring students to spend up to $35,000 for mentorships and, in the end, failing on its promise to teach success in real estate. Judge Curiel has set Nov. 28 as the trial date for one of the lawsuits. In portions of Mr. Trump's testimony that have been released, he acknowledged that he plays on people's fantasies. Mr. Trump couldn't recall names of his employees, undermining his advertising pitch that he "hand-picked" them. Mr. Trump is pressed on his blog posts in 2008 that Bill Clinton was a great president and Hillary Clinton would make a great president or vice president. Of his praise for Hillary Clinton, he said, "I didn't give it a lot of thought, because I was in business." Mr. Trump has called Judge Curiel "a very hostile judge" and a "hater of Donald Trump." He said the Indiana-born judge's Mexican heritage and membership in a Latino lawyers association posed a conflict with Mr. Trump's positions on illegal immigration and promise to build a wall on the Mexican border. Those comments drew criticism from Republican leaders, and Mr. Trump promised in June to stop talking about the case. TRUMP UNIVERSITY: Judge Allows Students' Fraud Case to Proceed -------------------------------------------------------------- Steve Eder, writing for The New York Times, reports that a federal lawsuit by former Trump University students against the school's founder, Donald J. Trump, will proceed toward trial, the judge in the case ruled on Aug. 2. In a written decision, Judge Gonzalo P. Curiel rejected a motion by Mr. Trump's lawyers to dismiss the case, concluding that the aggrieved former students had raised a genuine question about whether Mr. Trump had "knowingly participated in a scheme to defraud." The case, in federal court in San Diego, has been a nagging concern for Mr. Trump's Republican campaign for the presidency, as he pushes back against claims made by former students that his school cheated them out of their tuition by using high-pressure sales tactics and deceptive claims about what they would learn. At one point, Mr. Trump publicly denounced the rulings of Judge Curiel, who was born in Indiana, and questioned whether he would be biased because of his Mexican heritage. Mr. Trump's political opponents have repeatedly turned the case against him, including during the recent Democratic National Convention. News organizations have also taken an interest, seeking to have a videotaped deposition of Mr. Trump released. Judge Curiel denied the request on Aug. 2, finding that a transcript offers a "substantially accurate" representation of the proceeding. Mr. Trump's lawyers had argued that the release of the videos could add to a "media frenzy" around the case and affect a jury. Mr. Trump and his lawyers have long rejected the claims against the now-closed Trump University, saying they came from only a small group of unhappy students. They have cited a large number of evaluations that were filled out by students showing that they were satisfied with what they had gotten from the program, which charged up to $35,000 for its instruction packages. In seeking to have the case dismissed, lawyers for Mr. Trump argued, among other things, that the former students had not established that Mr. Trump knowingly participated in a fraudulent scheme. "Although the decision merely holds that the case should proceed to a trial, we believe the case should have been dismissed now because it has no merit," said Daniel Petrocelli, a lawyer for Mr. Trump. The judge cited evidence that Mr. Trump had not handpicked the instructors as Trump University claimed, finding that there was a question about whether Mr. Trump's claim of "'integral involvement" with the school was false or misleading to prospective students. Lawyers for the students did not return a message seeking comment on the ruling. In May, Judge Curiel ordered the release of previously sealed documents, including testimony from former managers calling Trump University a "lie" and a "scheme." Trump University is the subject of two class-action lawsuits in California. A third case in New York, brought by Eric T. Schneiderman, the state's attorney general, was also heading toward trial after a hearing on Aug. 2. UBER TECHNOLOGIES: Judge Denies Motion Compel Arbitration --------------------------------------------------------- Thomas Gilbertsen, Esq. -- tgilbertsen@pierceatwood.com -- of Pierce Atwood LLP, in an article for JDSupra, reports that influential federal judge Jed Rakoff of the Southern District of New York denied a motion to compel arbitration of an antitrust class action complaint pending against ride-hailing pioneer Uber Technologies. The case, Meyer v. Kalanick and Uber Technologies, Inc., Case No. 15 Civ. 9796 (S.D.N.Y. July 29, 2016), may represent an installment in the pendulum swing against mandatory arbitration and class action waiver clauses in consumer contracts. Uber's mobile app contains a hyperlink to terms and conditions that include a mandatory arbitration clause. But Judge Rakoff, applying California law, ruled that consumers registering for Uber service were not obligated to visit or click through those terms in the app version at issue, and therefore never assented to arbitration. The court also found that Uber's terms of service hyperlink was presented to Android users in "barely legible" fine print at the bottom of the screen, and that its arbitration clause was buried in "nine pages of highly legalistic language that no ordinary consumer could be expected to understand." Crediting plaintiff's allegation that he did not notice the terms of service while registering to use Uber, the court found there was "no basis" for claiming that plaintiff had actual notice of the arbitration agreement. The decision noted a fundamental difference between so-called "click-wrap" and "browse-wrap" theories of assent to internet commerce terms. Click-wrap assent arises when a user is required to click a box to manifest consent to disclosed terms of an internet transaction. Uber's registration process allegedly presented no click-box requirement. Browse-wrap consent may arise in the absence of a user's outward manifestation of assent, but courts recognizing this category of online assent require the contract terms at issue to be so conspicuously disclosed that actual or constructive notice is indisputable. Judge Rakoff found that Uber's arbitration clause lacked the requisite high profile because it was buried in multi-page terms of service that were themselves hidden within two layers of fine-print hyperlinks. The court also confined browse-wrap consent to cases where businesses and other sophisticated purchasers are involved -- not individual consumers. And the decision distinguishes a Massachusetts federal case from two weeks ago that held Uber's arbitration clause was sufficiently disclosed. Judge Rakoff held that the terms of service hyperlink at issue in the Uber app that Meyer saw was "much smaller and more obscure, both in absolute terms and relative to the 'Register' button." The Meyer decision ultimately denied Uber's motion to compel arbitration on the narrow ground of an inconspicuous disclosure. But that ruling came only after the court denounced a routine loss of "precious and fundamental rights" through arbitration agreements that consumers "had no realistic power to negotiate or contest and often were not even aware of." Calling these consumer arbitration contracts "legal fictions," Judge Rakoff openly questioned whether the 1925 Federal Arbitration Act could "remotely contemplate" contract formation in the electronic age. Both the sentiment and ruling of Meyer could be part of a growing backlash against mandatory arbitration in consumer agreements. Merchants and financial institutions adopted arbitration and class action waiver clauses in response to the 1990's class action boom, and initially courts were evenly split about whether these clauses were enforceable to avoid class actions in state or federal court. Citing the same concerns Judge Rakoff expressed at the outset in Meyer, California's highest court set up a judicial presumption against mandatory individual arbitration in consumer contracts. But the Supreme Court's 2011 Concepcion decision struck down California's judicial rule, holding that class action waivers in arbitration clauses in consumer contracts are entitled to enforcement under the Federal Arbitration Act (FAA), which compels courts to recognize these clauses absent common law grounds for invalidating a contract. In the five years since Concepcion, these provisions have received nearly universal enforcement in federal courts. In that span, the plaintiff bar has made a couple of runs at Concepcion in the Supreme Court, but each time the Court has doubled down on the primacy of arbitration under the FAA. In CompuCredit, the Supreme Court ruled that a federal statute creating a right to sue, and mandating related disclosures, does not override the FAA's strong protection of arbitration agreements. And in Italian Colors, the court reversed the Second Circuit and held that the FAA does not permit courts to invalidate a contractual waiver of class arbitration just because a plaintiff's cost of arbitrating a federal claim exceeds the potential recovery. The late Justice Scalia authored each of these three Supreme Court decisions invalidating judicial rules against the enforceability of mandatory arbitration clauses in consumer contracts. The Meyer decision represents one of the very few decisions refusing to enforce a mandatory arbitration clause, and its skepticism of Concepcion's reasoning is plainly evident. Interestingly, the decision comes weeks before the August 22 deadline for public comment on the Consumer Financial Protection Bureau's (CFPB) proposed rule prohibiting financial product and service providers from relying on pre-dispute arbitration agreements to avoid class action suits. There is something to learn from Meyer (make those terms of service and arbitration clauses conspicuous!), but the CFPB's new rule simply reopens the financial sector to class action attack. If that rule becomes law, the financial sector may become a vector for class action proxy litigation as plaintiff lawyers try to portray consumer claims as disputes about financial products and services. The good news is that as one pendulum swings away from Concepcion's blanket enforcement of consumer arbitration clauses, momentum remains with rigorous standing requirements under Spokeo, and meaningful application of class certification requirements under Dukes. UNITED AIRLINES: Ninth Circuit Review Sought in "Ward" Class Suit ----------------------------------------------------------------- Charles E. Ward, individually, and on behalf of all others similarly situated, filed an appeal from a court ruling in the lawsuit entitled Charles Ward v. United Airlines, Inc., Case No. 3:15-cv-02309-WHA, in the U.S. District Court for the Northern District of California, San Francisco. The appellate case is captioned as Charles Ward v. United Airlines, Inc., Case No. 16-16415, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter on August 12, 2016, District Judge William Alsup granted the Defendant's motion for summary judgment. Mr. Ward worked as a pilot for United Airlines. He commenced the Action in state court in San Francisco in April 2015. He claims that United Airlines violated various provisions of Section 226(a) of the California Labor Code, which requires employers to provide certain information on wage statements issued to employees. He also asserts claims under the Private Attorneys General Act. The Appellate Court set this schedule: * Mediation Questionnaire was due on August 18, 2016; * Transcript must be ordered by September 12, 2016; * Transcript is due on October 11, 2016; * Appellant Charles E. Ward's opening brief is due November 21, 2016 * Appellee United Airlines, Inc.'s answering brief is due on December 19, 2016; and * Appellant's optional reply brief is due 14 days after service of the answering brief. The Plaintiff-Appellant is represented by: Kirk D. Hanson, Esq. JACKSON HANSON, LLP 2790 Truxtun Road, Suite 140 San Diego, CA 92106 Telephone: (619) 523-9001 Facsimile: (619) 523-9002 E-mail: hansonlaw@cox.net The Defendant-Appellee is represented by: Adam P. KohSweeney, Esq. O'MELVENY & MYERS LLP Two Embarcadero Center San Francisco, CA 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 E-mail: akohsweeney@omm.com - and - Robert Alan Siegel, Esq. O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6005 E-mail: rsiegel@omm.com UNITED SERVICES: Judge Reprimands Five Attorneys in Class Action ---------------------------------------------------------------- Mark Friedman, writing for Arkansas Business, reports that Chief U.S. District Court Judge P.K. Holmes III on Aug. 3 reprimanded five attorneys, including the husband of a state Supreme Court justice, after finding bad faith and abuse of the court system in their manipulation of a controversial class-action case. Ten other attorneys were found to have abused the judicial process, but their misconduct didn't rise to the level of bad faith, the chief judge for the Western District of Arkansas said. They were not sanctioned. Judge Holmes also reversed his earlier finding of misconduct by Little Rock attorney Stephen C. Engstrom. In the 15-page order filed on Aug. 3, Judge Holmes reprimanded plaintiffs' attorney John Goodson of Texarkana, who is married to Arkansas State Supreme Court Justice Courtney Goodson; his law partner, Matt Keil; Jason Earnest Roselius, a partner of Mattingly & Roselius of Oklahoma City; R. Martin "Marty" Weber Jr., of counsel of Crowley Norman LLP of Houston; and Richard E. Norman, a partner of Crowley Norman LLP of Houston. The case at the center of the matter was Mark and Katherine Adams v. United Services Automobile Association. The Adams case, which concerned the method used to calculate homeowners' insurance claims, was pending in Judge Holmes' court for 17 months until both sides jointly agreed to dismiss it in June 2015. (Under court rules, the judge did not have to approve the agreed dismissal.) The case was refiled the next day, with a settlement agreement attached, in Polk County Circuit Court, where the settlement was approved without any questions by Circuit Judge Jerry Ryan. Judge Holmes, who learned that the case was moved to Judge Ryan's court for settlement from an article in Arkansas Business in December, said the settlement that was negotiated "benefited everyone but the class members" and indicated that he would not have approved it had the case still been in his court. Moving a federal case from one jurisdiction to another just to get a more favorable ruling has repeatedly been forbidden by the U.S. Court of Appeals for the Eighth Circuit, which includes Arkansas, and Judge Holmes found that most of the attorneys were aware of that prohibition. The attorneys had argued that a court rule allowed such cases to be dismissed before the class was certified, as in the Adams case, but Judge Holmes shot down their interpretation of the rule as "unreasonable." And without that argument, he said, "Respondents are left to contend with the unequivocal statement of law in the Eighth Circuit that 'a party is not permitted to dismiss merely to escape an adverse decision nor to seek a more favorable forum.'" Attorneys who were found to have abused the system but without bad faith were: defense attorneys Wystan Ackerman, a partner at Robinson & Cole LLP of Hartford, Connecticut; Stephen Edward Goldman, a managing partner at Robinson Cole; Lyn P. Pruitt, a member at Mitchell Williams Selig Gates & Woodyard of Little Rock; and plaintiffs' attorneys Stevan Earl Vowell, William B. Putman, W.H. Taylor and Timothy J. Myers, partners at Taylor Law Partners of Fayetteville; A.F. "Tom" Thompson III and Kenneth "Casey" Castleberry, partners at Murphy Thompson Arnold Skinner & Castleberry of Batesville; and Matthew L. Mustokoff, a partner at Kessler Topaz Meltzer Check LLP of Radnor, Pennsylvania. Judge Holmes expressed some sympathy for the defense attorneys representing USAA, which had instructed them to settle the case, which the plaintiffs were only willing to do in a more lenient state court. "This directive put Defense counsel between the proverbial rock of asking the Court to do something they knew it could not do -- grant a motion to dismiss so they could purse this action in a more favorable forum and avoid an adverse decision -- and the hard place of violating their ethical duty to settle as directed by their client," Judge Holmes wrote. "This is not to say that Defense counsel's failure of candor to the Court is excusable, and had this been the first instance that litigants used a state court action to certify and settle a federal putative class action, this might not be enough to protect Defense counsel from a finding of bad faith." Attorneys Keil, Goodson, Roselius, Weber and Norman, however, didn't have the same mitigating factors, Judge Holmes said. "The Court sees no reason to depart from its finding that their misconduct in this case was characterized by bad faith," he wrote. He did, however, step back from some harsher penalties that he said he had been considering, including requiring them to give notice of the sanctions in all future cases. In the order issued Aug. 3, Judge Holmes said that he finding that the attorneys abused the judicial process "will be sufficient deterrent to their own future misconduct, and the publicity this case has received and change the Court is instituting to it management of putative class actions will deter other attorneys from misconduct." He said that any sanctions on the attorneys' records will raise questions by other judges as to what led to the punishment. "As this was the intended effect of the notices proposed as injunctive sanctions by this Court, those notices will not be necessary," he wrote. UNITED STATES: PTSD Disability Plaintiffs Win $3MM in Atty. Fees ---------------------------------------------------------------- In the case captioned MICHAEL SABO, NICHOLAS WELLS, JUAN PEREZ, ALAN PITTS, BILLY J. TALLEY, AIMEE SHERROD, and TYLER EINARSON on behalf of themselves and all other individuals similarly situated, Plaintiffs, v. THE UNITED STATES, Defendant, No. 08-899C (Fed. Cl.), Judge Margaret M. Sweeney granted the plaintiffs' applications for attorneys' fees and expenses in their entirety and awarded the plaintiffs attorneys' fees and expenses in the amount of $3,862,924.53. The plaintiffs, and the members of the class they represent, were medically separated from the United States military due to posttraumatic stress disorder (PTSD) resulting from their service in Iraq and Afghanistan during Operation Iraqi Freedom and Operation Enduring Freedom. In conjunction with their separations, the military assigned them disability ratings for their PTSD of less than 50%. Contending that they were entitled to disability ratings of 50% for their PTSD under federal law, the plaintiffs filed suit to obtain the higher disability rating and the benefits that would flow from that higher rating. The parties ultimately reached a settlement. The plaintiffs then applied for attorneys' fees and expenses. Judge Sweeney found that the plaintiffs have satisfied the requirements of the Equal Access to Justice Act, in that they are eligible to receive an award of attorneys' fees and expenses, they are prevailing parties, the defendant's position was not substantially justified, and there are no special circumstances precluding an award. In addition, the judge also found that the attorneys' fees and expenses requested by the plaintiffs were incurred for work that was reasonable and necessary for them to obtain relief. Accordingly, Judge Sweeney awarded the plaintiffs $3,862,924.53 for attorneys' fees and expenses incurred for the work performed by attorneys from Morgan Lewis and the National Veterans Legal Services Program. A full-text copy of Judge Sweeney's July 26, 2016 opinion and order is available at https://is.gd/7oUm0k from Leagle.com. MICHAEL SABO, NICHOLAS WELLS, JUAN PEREZ, ALAN PITTS, BILLY J. TALLEY, Plaintiffs, represented by Arnold Bradley Fagg -- brad.fagg@morganlewis.com -- Morgan, Lewis & Bockius LLP. USA, Defendant, represented by Douglas K. Mickle, U. S. Department of Justice - Civil Division. UNITEDHEALTHCARE INSURANCE: Hill Seeks Certification of Class ------------------------------------------------------------- The Plaintiff in the lawsuit captioned JENEE HILL, on behalf of herself and all others similarly situated v. UNITEDHEALTHCARE INSURANCE COMPANY, Case No. 8:15-cv-00526-DOC-RNB (C.D. Cal.), asks the Court for an order certifying this class: All persons covered under UnitedHealthcare Insurance Company health insurance policies issued to private employers or self-funded plans administered by UnitedHealthcare Insurance Company whose requests for lumbar artificial disc replacement surgery were denied at any time within the applicable statute of limitations, or whose requests for that surgery will be denied in the future, on the ground that lumbar artificial disc replacement is unproven. Ms. Hill also asks that the Court appoint her as class representative and appoint her counsel as Class Counsel. The Court will commence a hearing on October 7, 2016, at 8:30 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=f9nWGTsT The Plaintiff is represented by: Robert S. Gianelli, Esq. Joshua S. Davis, Esq. Adrian J. Barrio, Esq. GIANELLI & MORRIS, A Law Corporation 550 South Hope Street, Suite 1645 Los Angeles, CA 90071 Telephone: (213) 489-1600 Facsimile: (213) 489-1611 E-mail: rob.gianelli@gmlawyers.com joshua.davis@gmlawyers.com adrian.barrio@gmlawyers.com - and - Glenn R. Kantor, Esq. Timothy J. Rozelle, Esq. KANTOR & KANTOR LLP 19839 Nordhoff Street Northridge, California 91324 Telephone: (818) 886-2525 Facsimile: (818) 350-6272 E-mail: gkantor@kantorlaw.net trozelle@kantorlaw.net VCA ANTECH: Graham's Bid to Certify Class Taken Under Submission ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Central District of California entered a civil minutes for these motions presented before the Hon. Christina A. Snyder in the lawsuit titled TONY M. GRAHAM v. VCA ANTECH, INC.; ET AL., Case No. 2:14-cv-08614-CAS-JC (C.D. Cal.): * Plaintiff's motion for class certification; * Defendants' motion for summary judgment; and * scheduling conference. According to the Civil Minutes, hearing was held and counsel for both parties are present. A tentative order was provided. The Court confers with counsel and counsel argue. The Court takes the Motions under submission. The Court also vacates the Further Scheduling Conference, subject to being reset after the Court rules on the Motions. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=03z5H8R3 The Plaintiffs are represented by: James Terrell, Esq. Robert Methvin, Jr., Esq. McCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue South Birmingham, AL 35305 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: Rgm@mmlaw.net Jterrell@mmlaw.net - and - Rodney Miller, Esq. MCCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 Facsimile: (205) 939-0399 E-mail: rem@mmlaw.net - and - Kenneth Wagner, Esq. LATHAM WAGNER STEELE AND LEHMAN LLC 10441 South Regal Boulevard Suite 200 Tulsa, OK 74133 Telephone: (918) 970-2000 Facsimile: (918) 970-2002 E-mail: kwagner@lwsl-law.com - and - Gary Waldron, Esq. WEINTRAUB TOBIN 23 Corporate Plaza Drive, Suite 200 Newport Beach, CA 92660 Telephone: (949) 760-0204 Facsimile: (949) 760-2507 E-mail: gwaldron@weintraub.com The Defendants are represented by: Hyongsoon Kim, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 4 Park Plaza, Suite 1900 Irvine, CA 92614-2585 Telephone: (949) 885-4218 Facsimile: (310) 229-1001 E-mail: kimh@akingump.com - and - Garrett Llewellyn, Esq. John Karaczynski, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067-3010 Telephone: (310) 552-6615 E-mail: gllewellyn@akingump.com jkaraczynski@akingump.com VISHAY INTERTECHNOLOGY: Removed as Defendant in Amended Suits ------------------------------------------------------------- Vishay Intertechnology, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended July 2, 2016, that in May 2016, the plaintiffs in purported class action complaints in the United States alleging restraints of trade in resistors filed amended complaints that did not name Vishay or any of its subsidiaries as a defendant. Vishay remains a defendant in similar matters filed in Canada and intends to defend vigorously against the Canadian complaints. VITAL THERAPIES: Sept. 1 Hearing on Motion to Dismiss Suit ---------------------------------------------------------- Vital Therapies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that a hearing on the Defendants' Motion to Dismiss a securities class action is scheduled for September 1, 2016. On December 2, 2015, a putative securities class action complaint was filed against Vital Therapies, Inc., Terry Winters, and Michael V. Swanson in the U.S. District Court for the Southern District of California alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, captioned Patrick A. Griggs v. Vital Therapies, Inc., et al., No. 3:15-cv-02700-JLS-NLS. On December 30, 2015, a substantively similar complaint was filed in the same court, captioned Alicia Beach Halverstadt v. Vital Therapies, Inc., et al., No. 3:15-cv-02951-JLS-NLS. On February 1, 2016, putative shareholders and class members Kaktrale Austin, Sumesh Kumar, and Nelson Than moved for appointment as lead plaintiff and approval of choice of counsel. Kaktrale Austin and Sumesh Kumar also moved to consolidate the complaints into a single action. Sumesh Kumar and Nelson Than withdrew their motions for appointment as lead plaintiff on February 23, 2016, and March 3, 2016, respectively. On May 2, 2016, the court entered an order granting plaintiff Kaktrale Austin's motion for consolidation and appointing plaintiff Kaktrale Austin as lead plaintiff and his counsel as lead counsel. The consolidated action is captioned In re Vital Therapies, Inc. Securities Litigation, No. 15-CV-2700 JLS (NLS). The court also set a deadline of June 1, 2016 for the lead plaintiff to file an amended complaint and ordered Vital Therapies, Inc. and Messrs. Winters and Swanson to respond to the amended complaint within thirty days of its filing. On June 1, 2016, plaintiff Kaktrale Austin filed the amended complaint. The amended complaint, like the earlier complaints, is purportedly filed on behalf of all persons who purchased or otherwise acquired Vital Therapies, Inc. stock between April 17, 2014 through August 21, 2015, inclusive, and names as defendants Vital Therapies, Inc. and Messrs. Winters and Swanson. Also like the earlier complaints, the amended complaint alleges that Vital Therapies, Inc. and Messrs. Winters and Swanson violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by misrepresenting material facts and/or misleading investors about the interconnection between the Vital Therapies Inc. clinical trials, the independent significance of each clinical trial, and the potential effects of the failure of one clinical trial on the other. The amended complaint seeks certification as a class action, unspecified damages, and attorneys' fees and costs. On July 1, 2016, the Vital Therapies Inc. and Messrs. Winters and Swanson filed a motion to dismiss the amended complaint, or the Motion to Dismiss. On July 6, 2016, the court entered an order directing plaintiff Kaktrale Austin to file an opposition to the Motion to Dismiss by August 4, 2016, and Vital Therapies, Inc. and Messrs. Winters and Swanson to file their reply in support of the Motion to Dismiss by August 18, 2016. A hearing on the Motion to Dismiss is scheduled for September 1, 2016. "We intend to defend this securities lawsuit vigorously. Based on information available to us at present, we cannot reasonably estimate a range of loss for this action. Accordingly, we have not accrued any liability associated with this action. We are expensing legal costs associated with defending this litigation as the costs are incurred," the Company said. WARREN RESOURCES: Gardy & Notis Files Securities Class Action ------------------------------------------------------------- The law firm Gardy & Notis, LLP filed a class action lawsuit on Aug. 11 in the United States District Court for the District of Colorado, Case No. 1:16-cv-2037, on behalf of stockholders who purchased common stock of Warren Resources, Inc. between a November 4, 2014 to June 2, 2016 class period. The lawsuit alleges that certain of Warren's executive officers violated Sections 10(b) and 20(a) of the Securities Exchange Act by making materially misleading misrepresentations and omissions that Warren was "well positioned" to "ride out" and "successfully navigate" the "market fluctuations," when, in fact, Warren was becoming increasingly insolvent. Warren filed for Chapter 11 bankruptcy on June 2, 2016. Plaintiff seeks to recover money damages on behalf of all purchasers of Warren common stock during the November 4, 2014 to June 2, 2016 class period. The plaintiff is represented by Gardy & Notis, LLP, which has extensive experience in successfully prosecuting investor class actions. If you purchased Warren common stock between November 4, 2014 and June 2, 2016, and you wish to serve as lead plaintiff, you may move the Court no later than 60 days from August 11, 2016 (no later than October 10, 2016). Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed class. To learn more about the lawsuit or to obtain a copy of the complaint, please contact plaintiff's counsel, James S. Notis or Jennifer Sarnelli at Gardy & Notis, LLP, 126 East 56th Street, New York, NY 10022, Telephone: 212-905-0509, Fax: 212-905-0508, email: jnotis@gardylaw.com or jsarnelli@gardylaw.com. WERNER ENTERPRISES: Defending Drivers' Class Suit in Nevada ----------------------------------------------------------- Werner Enterprises, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company continues to defend class action by drivers. The Company said, "We are involved in class action litigation in the U.S. District Court for the District of Nebraska, in which the plaintiffs allege that we owe drivers for unpaid wages under the Fair Labor Standards Act (FLSA) and the Nebraska Wage Payment and Collection Act and that we failed to pay minimum wage per hour for drivers in our student driver training program, related to short break time and sleeper berth time. The period covered by this class action suit dates back to 2008 through March 2014. In August 2015, the court denied our motion for summary judgment and granted the plaintiff's motion for summary judgment, ruling in plaintiff's favor on both theories of liability (short breaks and sleeper berth time)." "During second quarter 2016, the court issued two rulings, the first of which dismissed the plaintiff's claims under the Nebraska Wage Payment and Collection Act (but not the FLSA) and the second of which granted our motion to strike plaintiff's untimely damages calculations. "As a result, we reduced our accrual from $2.0 million at March 31, 2016 to $1.2 million as of June 30, 2016 for the short break matter. Based on the knowledge of the facts related to the sleeper berth matter, management does not currently believe a loss is probable, thus we have not accrued for the sleeper berth matter. We are currently unable to determine the possible loss or range of loss. We intend to vigorously defend the merits of these claims and to appeal any adverse verdict in this case." WILLIAMS COMPANIES: Trial in Injury Case Postponed to Sept. 6 ------------------------------------------------------------- The Williams Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the trial for certain plaintiffs claiming personal injury related to the Geismar incident has been postponed to September 6, 2016. The Company said, "On June 13, 2013, an explosion and fire occurred at our Geismar olefins plant and rendered the facility temporarily inoperable. We are addressing the following matters in connection with the Geismar Incident." "On October 21, 2013, the U.S. Environmental Protection Agency (EPA) issued an Inspection Report pursuant to the Clean Air Act's Risk Management Program following its inspection of the facility on June 24 through June 28, 2013. The report notes the EPA's preliminary determinations about the facility's documentation regarding process safety, process hazard analysis, as well as operating procedures, employee training, and other matters. On June 16, 2014, we received a request for information related to the Geismar Incident from the EPA under Section 114 of the Clean Air Act to which we responded on August 13, 2014. The EPA could issue penalties pertaining to final determinations. "Multiple lawsuits, including class actions for alleged offsite impacts, property damage, customer claims, and personal injury, have been filed against us. To date, we have settled certain of the personal injury claims for an aggregate immaterial amount that we have recovered from our insurers. The trial for certain plaintiffs claiming personal injury, that was set to begin on June 15, 2015, in Iberville Parish, Louisiana, has been postponed to September 6, 2016. The court also set trial dates for additional plaintiffs in November 2016 and January and April 2017. "We believe it is probable that additional losses will be incurred on some lawsuits, while for others we believe it is only reasonably possible that losses will be incurred. However, due to ongoing litigation involving defenses to liability, the number of individual plaintiffs, limited information as to the nature and extent of all plaintiffs' damages, and the ultimate outcome of all appeals, we are unable to reliably estimate any such losses at this time. We believe that it is probable that any ultimate losses incurred will be covered by our general liability insurance policy, which has an aggregate limit of $610 million applicable to this event and retention (deductible) of $2 million per occurrence." WILLIAMS COMPANIES: Bid to Dismiss Delaware Suit Remains Pending ---------------------------------------------------------------- The Williams Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company's motion to dismiss a consolidated class action lawsuit in the Delaware Court of Chancery remains pending. The Company said, "Between October 2015 and December 2015, purported shareholders of us filed six putative class action lawsuits in the Delaware Court of Chancery that were consolidated into a single suit on January 13, 2016. This consolidated putative class action lawsuit relates to our proposed merger with Energy Transfer. The complaint asserts various claims against the individual members of our Board of Directors, including that they breached their fiduciary duties by agreeing to sell us through an allegedly unfair process and for an allegedly unfair price and by allegedly failing to disclose allegedly material information about the merger. The complaint seeks, among other things, an injunction against the merger and an award of costs and attorneys' fees." "On March 22, 2016, the court granted the parties' proposed order in the consolidated action to stay the proceedings pending the close of the transaction with Energy Transfer. A purported shareholder filed a separate class action lawsuit in the Delaware Court of Chancery on January 15, 2016. "The putative class action complaint alleges that the individual members of our Board of Directors breached their fiduciary duties by, among other things, agreeing to the WPZ Merger Agreement, which purportedly reduced the merger consideration to be received in the subsequent proposed merger with Energy Transfer. The complaint seeks damages and an award of costs and attorneys' fees. "On April 22, 2016, the plaintiff filed an amended complaint pleading substantially the same claims for the same basic relief. On May 6, 2016, we requested the court dismiss the lawsuit." No further updates were provided in the Company's report. WILLIAMS COMPANIES: Agrees to Pay Plaintiff's Fees & Expenses ------------------------------------------------------------- The Williams Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the Company has agreed to pay the plaintiff's fees and expenses capped at $170,000. A putative class action lawsuit in U.S. District Court in Oklahoma, filed January 14, 2016, that claimed that certain disclosures about the merger violate certain federal securities laws and that the defendants are liable for such violations, was dismissed on April 28, 2016, for failure to state a claim. The plaintiff, who was seeking injunctive relief, subsequently amended his complaint. The Company said, "On June 16, 2016, the parties entered into a settlement agreement resolving all claims in exchange for certain supplemental disclosures, and pursuant to which we agreed to pay the plaintiff's fees and expenses capped at $170,000." WILLIAMS COMPANIES: Amended Complaint Due Aug. 31 in Okla. Case --------------------------------------------------------------- The Williams Companies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 2, 2016, for the quarterly period ended June 30, 2016, that the plaintiff in a class action lawsuit in Oklahoma must file an amended complaint by August 31, 2016. The Company said, "On March 7, 2016, a purported unitholder of WPZ filed a putative class action on behalf of certain purchasers of WPZ units in U.S. District Court in Oklahoma. The action names as defendants us, WPZ, Williams Partners GP LLC, Alan S. Armstrong, and Donald R. Chappel and alleges violations of certain federal securities laws for failure to disclose Energy Transfer's intention to pursue a purchase of us conditioned on us not closing the WPZ Merger Agreement when announcing the WPZ Merger Agreement. The complaint seeks, among other things, damages and an award of costs and attorneys' fees. The plaintiff must file an amended complaint by August 31, 2016. We cannot reasonably estimate a range of potential loss at this time." WOODFOREST NATIONAL: Faces "Fitzhenry" Suit in South Carolina ------------------------------------------------------------- A lawsuit has been filed against Woodforest National Bank NA. The case is captioned Mark Fitzhenry, individually and on behalf of a class of all persons and entities similarly situated, the Plaintiff, v. Woodforest National Bank NA, the Defendant, Case No. 3:16-cv-02809-JFA (D.S.C., Aug. 11, 2016). The assigned Judge is Hon. Joseph F Anderson, Jr. Woodforest National Bank is a privately held bank headquartered in The Woodlands, Texas. The Plaintiff is represented by: Lance Shealy Boozer, Esq. BOOZER LAW FIRM 807 Gervais Street, Suite 203 Columbia, SC 29201 Telephone: (803) 608 5543 Facsimile: (803) 926 3463 E-mail: lsb@boozerlawfirm.com XPO LAST MILE: Court Reduces Class Members in "Reyes" Suit ---------------------------------------------------------- In the case captioned VICTOR REYES, v. XPO LAST MILE, INC., Civil Action No. 15-2972 (E.D. Pa.), Judge Jeffrey L. Schmehl treated the defendant's motion for judgment on the pleadings as a motion for partial summary judgment, and granted the motion. A full-text copy of Judge Schmehl's July 28, 2016 memorandum opinion is available at https://is.gd/jHb4hc from Leagle.com. The proposed class action was originally filed by Victor Reyes in the Court of Common Pleas of Philadelphia County, then removed by XPO Last Mile, Inc. to the United States District Court for the Eastern District of Pennsylvania on the basis of diversity of citizenship and on the basis that it meets certain requirements for a federal class action under 28 U.S.C. section 1332(d). Reyes claimed that XPO violated the Pennsylvania Wage Payment and Collection Law by making unauthorized deductions from the pay of Reyes and other putative class members. In its motion, XPO sought to exclude from the putative class all business corporations, limited liability companies and partnerships which contracted with XPO, and all individuals who were paid through those corporate entities. This amounts to excluding the claims of 105 of the 117 putative class members. XPO argued that individuals who were paid through corporate entities must be excluded because they were not parties to any employment contract with XPO to which WPCL-protected wages are due. Judge Schmehl found that there is no contractual obligation either written or oral for wages between the individual plaintiffs and XPO. The judge instead found that any contractual obligation for wages is between the individual plaintiffs and numerous corporate entities. Judge Schmehl, therefore, concluded that the individual plaintiffs lack standing to bring a claim against XPO under the WPCL. Judge Schmehl also held that the plaintiffs that formed corporations, limited liability companies and partnerships which contracted with XPO and paid the individuals through the corporate entity cannot ignore that corporate entity's existence and assert a claim directly against XPO. VICTOR REYES, Plaintiff, represented by PETER D. WINEBRAKE, WINEBRAKE & SANTILLO, LLC & R. ANDREW SANTILLO, WINEBRAKE & SANTILLO, LLC. XPO LAST MILE, INC., Defendant, represented by RAYMOND A. KRESGE -- rkresge@cozen.com -- COZEN O'CONNOR, GEORGE A. VOEGELE, JR. -- gvoegele@cozen.com -- COZEN O'CONNOR, JEFFREY I. KOHN -- jkohn@omm.com -- O'MELVENY & MYERS LLP, pro hac vice & LYNSEY RAMOS -- lramos@omm.com -- O'MELVENY & MYERS LLP, pro hac vice. * Democrats Call on CFPB to Finalize Consumer Arbitration Rules --------------------------------------------------------------- Lydia Wheeler, writing for The Hill, reports that Democrats are calling on financial regulators to finalize a rule to protect consumers' ability to settle disputes with financial institutions in court instead of via arbitration. In separate letters, 38 senators and 65 House members urged the Consumer Financial Protection Bureau (CFPB) to move forward with a measure to limit what they called the "rip-off" clause that's buried in the fine print of contracts. "These clauses require a consumer to submit any claim that may arise against a company to binding arbitration -- a privatized justice system that studies show consistently produces results that favor large corporations and offers no meaningful appeals process," the senators said in their letter. "These contract provisions also frequently include a class action waiver, meaning that consumers are unable to band together through collective action to address widespread wrongdoings by powerful corporations." Under the rule CFPB proposed in May, companies would be prohibited from including mandatory arbitration clauses in financial contacts that deny consumers the right to join class action lawsuits. House Democrats in their letter called the rule an important step in protecting consumers. "As the bureau's research has shown, consumers rarely use arbitration to recover small claims, such as those associated with overdraft fees, because these cases are either too costly for consumers to pursue on an individual basis or the individual consumer is unaware of a corporation's misconduct," they said. The public has until Aug. 22 to comment on the proposed rule. Asbestos Litigation ASBESTOS UPDATE: Ga. High Court Flips $4M Judgment in "Knight" -------------------------------------------------------------- Scapa Dryer Fabrics, Inc., is a textile manufacturer, and in the late 1960s and early 1970s, it produced dryer felts at a manufacturing facility in Waycross. Some of the pipes and boilers in that facility were insulated with material containing asbestos, and Scapa used yarn containing asbestos in some of its manufacturing processes. Between 1967 and 1973, Roy Knight worked on multiple occasions at the Waycross facility as an independent contractor. Almost forty years later, Knight was diagnosed with mesothelioma, a cancer most commonly associated with the inhalation or ingestion of asbestos fibers. After his mesothelioma was diagnosed, Knight and his wife sued Scapa, claiming that Scapa negligently exposed him to asbestos at the Waycross facility and caused his mesothelioma. The case was tried by a Ware County jury, which returned a verdict against Scapa and awarded more than $4 million in damages to the Knights. The trial court entered a judgment upon that verdict, and Scapa appealed. Scapa argued at trial and on appeal that his theory of cumulative exposure is not reliable in a scientific sense, the theory does not comport in any event with the legal requirements for causation in Georgia, and an expert opinion about causation that is derived from that theory is inadmissible. The trial court rejected these arguments, and in Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga.App. 82, 85-89 (2) (770 S.E.2d 334) (2015), a divided seven-judge panel of the Court of Appeals rejected them and affirmed the judgment of the trial court. The Supreme Court of Georgia issued a writ of certiorari to review the decision of the Court of Appeals only with respect to the admission of the testimony of Dr. Abraham. The Supreme Court of Georgia reversed the judgment of the trial court, The Supreme Court of Georgia held, "In the trial court, the Knights bore the burden to establish not only that Dr. Abraham was qualified and that his testimony was reliable, but also that his testimony would be helpful to the jury. See United States v. Frazier, 387 F.3d 1244, 1260 (III) (A) (11th Cir. 2004) (burden is on the party seeking to introduce expert testimony to "establish[] qualification, reliability, and helpfulness"). His ultimate opinion as to causation, however, was not limited to any meaningful estimate of exposure to asbestos at the Waycross facility (whether qualitative or quantitative), and it instead invited the jury to find that causation was established by any exposure at all. In that respect, the testimony did not "fit" the pertinent causation inquiry under Georgia law, and it should have been excluded by the trial court, acting as gatekeeper, because it could only serve to confuse the jury on the issue of causation. And given that Dr. Abraham's opinion "went to the heart" of the dispute about the extent of exposure and causation, "the erroneous admission of the opinion requires that we reverse the Court of Appeals' affirmance of the trial court's judgment." Johnson v. Knebel, 267 Ga. 853, 859 (4) (485 S.E.2d 451) (1997)." The case is captioned SCAPA DRYER FABRICS, INC. v. KNIGHT et al., No. S15G1278 (Ga.). A full-text copy of the Decision dated July 5, 2016 is available at https://is.gd/SwjK94 from Leagle.com. William D. Barwick, Esq. -- wdbarwick@duanemorris.com -- DUANE MORRIS LLC, for Appellant. M. Elizabeth O'Neill, Esq. -- eoneill@hptylaw.com -- HAWKINS PARNELL THACKSTON & YOUNG, LLP, for Appellant. J. D. Smith, for Appellant. H. Lane Young II, Esq. -- lyoung@hptylaw.com -- HAWKINS PARNELL THACKSTON & YOUNG, LLP, for Appellant. Robert Cape Buck, Esq. -- BUCK LAW FIRM, for Appellee. Mark W. Wortham, Esq. -- mwortham@hallboothsmith.com -- HALL BOOTH SMITH, P.C., for Amicus Appellant. William V. Custer IV, BYRAN CAVE LLP, Esq. -- bill.custer@bryancave.com -- for Amicus Appellant. J. Phillip Boston, Esq. -- jpbatty@bellsouth.net -- for Amicus Appellee. ASBESTOS UPDATE: Md. App. Junks Appeal in Lung Cancer Suit ---------------------------------------------------------- The Court of Appeals of Maryland, in the case captioned R.J. Reynolds Tobacco Co., et al. v. Douglas A. Stidham, etc., et al., No. 77, September Term, 2015 (Md. App.), concluded that there is a final judgment in the case; that the appeal, however, is moot and should be dismissed on that ground; and the Court of Special Appeals did not err in expressing its views on the joinder issue for the guidance of the lower court in other cases. The Court of Appeals held that it is not the case against those defendants that is moot, but rather the rationale for dismissing them from this action that is moot. The case is remanded to the Circuit Court to determine, in light of the considerations set forth in the Majority opinion and the opinion of the Court of Special Appeals, whether to retain this action on the asbestos docket, transfer it to the regular civil docket, or dismiss it for some other reason. This case is another attempt by plaintiffs with lung cancer to join in one action claims against both asbestos and tobacco defendants on the premise that their cancers arose from exposure to the products of both sets of defendants -- that the cancers were caused by both smoking cigarettes and exposure to asbestos. As it had done before in other cases, the Circuit Court for Baltimore City refused to permit the joinder of the two sets of defendants on the special asbestos docket maintained by the court. The issues in this appeal are largely procedural ones: whether there is a final judgment in the case; whether the plaintiff's appeal, in any event, is moot and should be dismissed on that ground; if the appeal is not moot, whether the Circuit Court erred or abused its discretion under Md. Rule 2-212 in denying joinder of the two sets of defendants; and, even if the appeal is moot, whether the Court of Special Appeals erred in addressing the joinder argument made by the plaintiff for guidance of the Circuit Court in other pending cases where joinder may be sought. A full-text copy of the Opinion dated July 5, 2016 is available at https://is.gd/6R1Cph from Leagle.com. ASBESTOS UPDATE: Indiana Inmate Loses Summary Judgment Bid ---------------------------------------------------------- Judge Philip P. Simon of the United States District Court for the Northern District of Indiana, South Bend Division, granted the motion for summary judgment filed by defendants Edward Bruemmer, Michael Scott, Mark Levenhagen and Mr. Horne; denied plaintiff Michael Maxie's motion for summary judgment and plaintiff's motion for ruling and, directed the clerk to enter judgment in favor of the defendants. Michael Maxie, a pro se plaintiff, claims that he was subjected to inadequate conditions of confinement while incarcerated at the Westville Correctional Facility. Maxie was incarcerated when he filed this action, but has since been released from custody. Specifically, he claims that he was subjected to excessively cold temperatures in his cell for six days in October 2012, and that between February 2012 and October 2012, he was exposed to mold, mildew and asbestos in the shower area. The four remaining defendants -- Edward Bruemmer, Michael Scott, Mark Levenhagen and Mr. Horne seek summary judgment, and Maxie does as well. A full-text copy of the Opinion and Order dated July 5, 2016 is available at https://is.gd/FOebpF from Leagle.com. The case is captioned MICHAEL MAXIE, Plaintiff, v. EDWARD BRUEMMER, et al., Defendants, Cause No. 3:13CV1280-PPS (N.D. Ind.). Michael A. Maxie, Plaintiff, Pro Se. Edward Bruemmer, Defendant, is represented by Daniel Gore, Indiana Attorney General's Office & David A. Arthur, Indiana Attorney General's Office. Michael Scott, Defendant, is represented by Daniel Gore, Indiana Attorney General's Office & David A. Arthur, Indiana Attorney General's Office. Mark E Levenhagen, Defendant, is represented by Daniel Gore, Indiana Attorney General's Office & David A. Arthur, Indiana Attorney General's Office. Mr Horne, Defendant, is represented by Daniel Gore, Indiana Attorney General's Office. ASBESTOS UPDATE: Ky. Court Affirms Summary Judgment in "Mannahan" ----------------------------------------------------------------- Hershel Mannahan, after having been exposed to asbestos in the workplace, contracted malignant mesothelioma, a rare form of lung cancer. Hershel and his wife, Linda Mannahan, filed suit in Jefferson Circuit Court against appellees Palmer Products Corporation, Eaton Corporation, Arvin-Meritor, Inc., and eleven other corporate defendants. The complaint alleged the defendants manufactured and/or sold asbestos-containing brake products, and that Herschel was exposed to those products over a period of years while working for Peabody Coal Company. The Jefferson Circuit Court court entered summary judgment in favor of the appellees, finding the evidence failed to establish a probable causal link between Hershel's exposure and the particular products supplied by the appellees. The Court of Appeals of Kentucky agrees with the circuit court that there is no genuine issue as to any material fact regarding causation and that the appellees were entitled to judgment as a matter of law. Accordingly, the Court of Appeals affirmed the Circuit Court's October 24, 2013, Order granting summary judgment in favor of Palmer, Eaton, and Rockwell in the case captioned LINDA MANNAHAN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF HERSHEL W. MANNAHAN, Appellant, v. EATON CORPORATION; PALMER PRODUCTS CORPORATION; AND ARVIN-MERITOR, INC, Appellee, No. 2013-CA-002005- MR (Ky. App.). A full-text copy of the Opinion dated July 15, 2016 is available at https://is.gd/bsKaR6 from Leagle.com. Joseph D. Satterley, Paul J. Kelley, Paul J. Ivie, Louisville, Kentucky, Hans Poppe, Esq. -- hans@poppelawfirm.com, Kirk A. Laughlin, Esq. -- kirk@poppelawfirm.com, Louisville, Kentucky, Brief for Appellant. Ridley M. Sandidge, Jr., Esq. -- rsandidge@rwsvlaw.com -- Louisville, Kentucky, Joseph P. Hummel, Esq. -- jhummel@lynchcox.com, Berlin Tsai, Esq. -- btsai@lynchcox.com, W. Thomas Rump, IV, Esq. -- trump@lynchcox.com -- Louisville, Kentucky, Rebecca F. Schupbach, Esq., Louisville, Kentucky, Briefs for Appellees. ASBESTOS UPDATE: La. Court Denies Bid to Remand "Lindsay" --------------------------------------------------------- In the case styled EARL T. LINDSAY, JR. AND JOCELYN BUTLER, INDIVIDUALLY AND ON BEHALF OF THE DECEDENT, EARL T. LINDSAY, v. PORTS AMERICA GULFPORT, INC., ET AL., SECTION: R., Civil Action No. 16-3054 (E.D. La.), Judge Sarah S. Vance of the United States District Court for the Eastern District of Louisiana denied the plaintiffs' motion to remand and ordered Third-party defendant Industrial Developmental Corporation of South Africa, Ltd., to file its motion to dismiss Cooper/T. Smith's third-party claims against it. IDC removed the plaintiffs' state-court action on April 13, 2016. Plaintiffs Earl T. Lindsay, Jr. and Jocelyn Butler move the Court to remand the action or, alternatively, to sever defendant Cooper/T. Smith Stevedoring Company, Inc.'s third-party claims against IDC and remand the main action. This case arises out of decedent Earl T. Lindsay's occupational exposure to asbestos and contraction of lung cancer. Plaintiffs, two of Lindsay's surviving children, allege that Lindsay worked as a longshoreman for several stevedoring companies in the Port of New Orleans from 1954 to 1979. During this period, Lindsay was allegedly exposed to airborne asbestos fibers during the loading and off-loading of cargo that included raw asbestos and asbestos- containing products and materials. Plaintiffs allege that Lindsay developed lung cancer as a result of this exposure and died from the disease on February 18, 2015. On February 17, 2016, plaintiffs filed this lawsuit in the Civil District Court for the Parish of Orleans against Lindsay's employers, various vessel owners and vessel repair contractors associated with his employment, two insurance companies, and other firms. Importantly, for purposes of plaintiffs' remand motion, two of the entities named as defendants in plaintiffs' state-court petition were Industrial Development Corporation of South Africa, Ltd. ("IDC") and South African Marine Corporation ("South African Marine"). As to most of the named defendants, plaintiffs asserted claims for, among other things, negligence, strict liability, intentional tort, and premises liability. As to IDC and South African Marine, plaintiffs also asserted claims under the Jones Act. A full-text copy of the Order and Reasons dated July 14, 2016 is available at https://is.gd/5jwG2D from Leagle.com. Joycelyn L Butler, Plaintiff, is represented by J. Burton LeBlanc, IV, Esq. -- Baron & Budd, P.C., Christopher C. Colley, Esq. -- Baron & Budd, P.C., David Ryan Cannella, Esq. -- Cannella Law Firm, LLC, Jeremiah S. Boling, Esq. -- Baron & Budd, P.C. & Renee M. Melancon, Esq. -- Baron & Budd, P.C. Earl T. Lindsay, Jr., Plaintiff, is represented by J. Burton LeBlanc, IV, Baron & Budd, P.C., Christopher C. Colley, Baron & Budd, P.C., David Ryan Cannella, Cannella Law Firm, LLC, Jeremiah S. Boling, Baron & Budd, P.C. & Renee M. Melancon, Baron & Budd, P.C. Cooper/T. Smith Stevedoring Company, Defendant, is represented by Alan Guy Brackett, Esq. -- abrackett@mblb.com -- Mouledoux, Bland, Legrand & Brackett, LLC & Robert Neven Popich, Esq. -- rpopich@mblb.com -- Mouledoux, Bland, Legrand & Brackett, LLC. Cooper/T. Smith Stevedoring Company, Defendant, is represented by Wilton Ellwood Bland, IV, Esq. -- wbland@mblb.com -- Mouledoux, Bland, Legrand & Brackett, LLC. James J. Flanagan Shipping Corporation, Defendant, is represented by Gus David Oppermann, V, Wheat, Oppermann & Meeks, P.C.. Georgia-Pacific LLC, Defendant, is represented by Gary A. Bezet, Esq. -- gary.bezet@keanmiller.com -- Kean Miller, Alexandra E. Rossi, Esq. -- alexandra.rossi@keanmiller.com -- Kean Miller, Allison N. Benoit, Esq. -- allison.benoit@keanmiller.com -- Kean Miller, Anthony M. Williams, Esq. -- Anthony.williams@keanmiller.com -- Kean Miller LLP, Barrye Panepinto Miyagi, Esq. -- barrye.miyagi@keanmiller.com -- Kean Miller, Gayla M. Moncla, Esq. -- gayla.moncla@keanmiller.com -- Kean Miller, Gregory M. Anding, Esq. -- Gregory.anding@keanmiller.com -- Kean Miller, Jay Morton Jalenak, Jr., Esq. -- jay.jalenak@keanmiller.com -- Kean Miller, Robert E. Dille, Esq. -- Robert.dille@keanmiller.com -- Kean Miller & Sarah W. Anderson, Esq. -- sarah.anderson@keanmiller.com -- Kean Miller. Cooper/T. Smith Stevedoring Company, Third Party Plaintiff, is represented by Alan Guy Brackett, Mouledoux, Bland, Legrand & Brackett, LLC, Robert Neven Popich, Mouledoux, Bland, Legrand & Brackett, LLC & Wilton Ellwood Bland, IV, Mouledoux, Bland, Legrand & Brackett, LLC. Industrial Development Corporation of South Africa, Ltd., Third Party Defendant, is represented by Antonio J. Rodriguez, Fowler Rodriguez & Susan Grace Keller-Garcia, Fowler Rodriguez. ASBESTOS UPDATE: Court Refuses to Review BorgWarner's Bid --------------------------------------------------------- The Superior Court of Delaware denied BorgWarner, Inc.'s Motion for Reconsideration as it has failed to show on the record that the Commissioner's Order is contrary to law, particularly where the bulk of BorgWarner's arguments direct this Court to blindly follow either non-binding case law from other jurisdictions and lower courts or plainly distinguishable prior holdings of this Court. Before the Court is a Motion for Reconsideration of Commissioner's Order filed by BorgWarner Inc. and BorgWarner Morse TEC LLC. BorgWarner seeks reconsideration of an order issued on March 15, 2016, by Commissioner Manning granting, in part, BorgWarner's motion to compel the Owens Corning/Fibreboard Asbestos Personal Injury Trust, a Delaware trust, to comply with a subpoena served on May 6, 2015, and denying, in part, Intervenors', North River Insurance Company and First State Insurance Company, motion to quash BorgWarner's subpoena. The Court has reviewed and considered the Parties' written submissions, in light of the Commissioner's order, the transcript of the hearing before the Commissioner, and the associated record. A full-text copy of the Opinion dated July 14, 2016 is available at https://is.gd/121UjU from Leagle.com. The case is captioned CONTINENTAL CASUALTY COMPANY, et al., Plaintiffs, v. BORGWARNER INC., et al., Defendants., C.A. No. N15M-05-009 (Del. Sup.). Michael B. Rush, Esquire, Jennifer C. Wasson, Esquire, Potter, Anderson & Corroon LLP, Wilmington, Delaware, Attorneys for Defendants BorgWarner Inc. and BorgWarner Morse TEC Inc. Sean M. Brennecke, Esquire -- sbrennecke@klehr.com, Richard M. Beck, Esquire -- rbeck@klehr.com -- Klehr, Harrison, Harvey, Branzburg LLP, Wilmington, Delaware, Attorneys for Intervenor First State Insurance Company. Thaddeus J. Weaver, Esquire, Dilworth Paxson, LLP, Wilmington, Delaware, Attorney for Intervenor The North River Insurance Company. ASBESTOS UPDATE: Magistrate Denies Bid to Transfer Venue -------------------------------------------------------- Magistrate Judge John E. Martin of the United States District Court for the Northern District of Indiana, Hammond Division, denied the Motion to Transfer Venue to the Northern District of Illinois of the case captioned CLOVIS ARSENEAULT, Plaintiff, v. AC AND S INC., et al., Defendants, Cause No. 2:99-CV-76-JTM-JEM (N.D. Ind.). This matter is before the Court on a Motion to Transfer Venue to the Northern District of Illinois filed by Plaintiff Jason Arsenault, special administrator for the estate of Clovis Aresnault, decedent, on September 15, 2015. Plaintiff requests that the Court transfer the instant case to the Northern District of Illinois. On September 28, 2015, Defendant CBS Corporation, formerly known as Westinghouse Electric Corporation, filed a response. Plaintiff did not file a reply to Westinghouses's response within the time allotted to do so. A full-text copy of the Opinion and Order dated July 13, 2016 is available at https://is.gd/TRgdeB from Leagle.com. Clovis Arseneault, Plaintiff, is represented by Michael P. Cascino, Esq. -- Cascino Vaughan Law Offices Ltd & Robert G. McCoy, Esq. -- Cascino Vaughan Law Offices Ltd. AC and S Inc, Defendant, is represented by Susan E. Mehringer, Esq. -- smehringer@csmlawfirm.com -- Cantrell Strenski & Mehringer LLP. AW Chesterton Company, Defendant, is represented by Knight S. Anderson, Esq. -- knight.anderson@tuckerellis.com -- Tucker Ellis LLP. The Anchor Packing Company, Defendant, is represented by Jason L. Kennedy, Esq. -- jkennedy@smsm.com -- Segal McCambridge Singer & Mahoney Ltd. Dresser Industries Inc, Defendant, is represented by Daniel D. Trachtman, Esq. -- Dan.Trachtman@WoodenMcLaughlin.com -- Wooden & McLaughlin LLP & Douglas B. King, Esq. -- Douglas.King@WoodenMcLaughlin.com -- Wooden & McLaughlin LLP. Durabla Manufacturing Company, Defendant, is represented by Tim W. Ueber, Esq. -- Goodin Orzeske and Stevens PC. General Refractories Company, Defendant, is represented by Randall J. Nye, Esq. -- rnye@omwlegal.com -- O'Neill McFadden & Willett LLP. Georgia Pacific Corporation, Defendant, is represented by Andrew J. Detherage, Esq. -- andy.detherage@btlaw.com -- Barnes & Thornburg LLP & Jonathan D. Mattingly, Esq. -- Mattingly Burke Cohen & Biederman LLP. PPG Industries Inc, Defendant, is represented by Cynthia M. Locke, Esq. -- Cantrell Strenski & Mehringer LLP. Rapid American Corp, Defendant, is represented by Douglas B. King, Wooden & McLaughlin LLP & Joseph R. Alberts, Wooden & McLaughlin LLP. Westinghouse Electric Corporation, Defendant, is represented by Christopher N. Wahl, Hill Fulwider PC, Knight S. Anderson, Tucker Ellis LLP & David J. Saferight, Hill Fulwider PC. ASBESTOS UPDATE: Court Grants Bid to Remand "Hartfield" ------------------------------------------------------- Judge Carol E. Jackson of the United States District Court for the Eastern District of Missouri, Eastern Division, in the case captioned JAMES HARTFIELD, Plaintiff, v. 3M COMPANY, et al., Defendants, Case No. 4:16-CV-763 (CEJ)(E.D. Mo.), ordered that the plaintiff's motion and supplemental motion to remand are granted; that the plaintiff's motion to strike is denied; that the plaintiff's request for attorneys' fees is denied; that the Clerk of Court remand the case to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis) from which it was removed; and that all other pending motions are moot. This matter is before the Court on plaintiff's motion to remand this case to the state court from which it was removed and for attorneys' fees. Defendant Dow Chemical Company has filed a response in opposition. Plaintiff James Hartfield commenced this action in the Circuit Court of the City of St. Louis, Missouri, alleging that he developed mesothelioma as a result of exposure to asbestos. Plaintiff's father worked with asbestos and asbestos-containing products during his employment as a pipefitter for Brown & Williamson Tobacco Company from 1941 through 1962. Plaintiff was repeatedly exposed to asbestos dust that permeated his father's clothing. Plaintiff was also exposed to asbestos in 1962 when he worked as a laborer for Rohm & Haas and from 1963 through 1969 when he served in the Indiana National Guard Reserve. Plaintiff brings this action against nine defendants whom he alleges manufactured, sold, distributed or installed asbestos-containing products. Defendant Dow Chemical removed the action to this Court on May 31, 2016, asserting jurisdiction based on diversity of citizenship. It is uncontroverted that the parties are citizens of different states and that the amount in controversy exceeds $75,000, exclusive of interest and costs. However, one of the named defendants, J.P. Bushnell Packing and Gasket Company, is a Missouri corporation whose presence in the case prevents removal. Defendant Dow Chemical contends that plaintiff's testimony during his deposition on May 3, 2016, establishes that J.P. Bushnell is fraudulently joined to defeat removal. A full-text copy of the Memorandum and Order dated July 22, 2016 is available at https://is.gd/JG44ju from Leagle.com. James Hartfield, Plaintiff, represented by Carson C. Menges, FLINT AND ASSOCIATES LLC,Charles William Branham, III, DEAN AND OMAR, Erin Rafferty Burton, FLINT AND ASSOCIATES LLC, Jessica M. Dean, DEAN OMAR & BRANHAM, LLP, Jonathan M. Holder, DEAN OMAR & BRANHAM, LLP, Laci M. Whitley, FLINT AND ASSOCIATES, LLC, Luke Perry Pfeifer, FLINT AND ASSOCIATES LLC & Rachel C. Moussa, DEAN OMAR & BRANHAM, LLP. 3M Company, Defendant, is represented by Michael T. Crabb, Esq. -- KUCKELMAN AND TORLINE. Associated Drywall Suppliers, Inc., Defendant, is represented by Joshua Chumbley, Esq. -- jchumbley@foleymansfield.com -- FOLEY & MANSFIELD & Michael W. Newport, Esq. -- mnewport@foleymansfield.com -- FOLEY AND MANSFIELD, P.L.L.P.. Burnham Commercial Boilers, Defendant, is represented by Dennis J. Graber, Esq. -- dgraber@hinshawlaw.com -- HINSHAW AND CULBERTSON & Trevor Alan Sondag, Esq. -- tsondag@hinshawlaw.com -- HINSHAW AND CULBERTSON. Cleaver-Brooks, Inc., Defendant, is represented by Meredith E. Hudgens, Esq.-- mhudgens@otmblaw.com -- O'CONNELL TIVIN MILLER. Cleaver-Brooks, Inc., Defendant, is represented by Timothy A. McGuire, Esq. -- tmcguire@otmblaw.com -- O'CONNELL AND TIVIN, LLC. Dow Chemical Company, Defendant, is represented by Mark A. Smith, Esq. -- mark.smith@huschblackwell.com -- HUSCH BLACKWELL, LLP. Metropolitan Life Insurance Company, Defendant, is represented by Charles L. Joley, Esq. -- cjoley@ilmoattorneys.com -- JOLEY AND OLIVER, Georgiann Oliver, Esq. -- goliver@ilmoattorneys.com -- JOLEY AND OLIVER & Laura K. Beasley, Esq. -- lbeasley@ilmoattorneys.com -- JOLEY AND OLIVER. Reynolds American, Inc., Defendant, is represented by Bruce D. Ryder, Esq. -- bryder@thompsoncoburn.com -- THOMPSON COBURN, LLP. Riley Power, Inc., Defendant, is represented by Gregory C. Flatt, Esq. -- gflatt@heylroyster.com -- HEYL AND ROYSTER & Kent L. Plotner, Esq. -- kplotner@heylroyster.com -- HEYL AND ROYSTER. ASBESTOS UPDATE: ABB, 5 Others Win Summary Judgment in "Hillyer" ---------------------------------------------------------------- Magistrate Judge Sherry R. Fallon of the United States District Court for the District of Delaware recommended granting the motions for summary judgment filed by Defendants, ABB, Inc., CBS Corporation, BW/IP, Inc., Eaton Corporation, Union Carbide Corporation, and Gould Electronics, Inc. Plaintiffs Mark and Carol Hillyer filed this asbestos action in the Delaware Superior Court against multiple defendants on March 23, 2015, asserting claims regarding Mr. Hillyer's alleged harmful exposure to asbestos. Defendant Crane Co. removed the action to this court on May 11, 2015. CBS, BW/IP, Eaton, Union Carbide, and Gould filed motions for summary judgment on June 17, 2016. ABB filed its motion on June 21, 2016. Plaintiffs did not respond to these motions. On July 6, 2016, counsel for CBS, Eaton, and Union Carbide sent a letter to the court seeking dismissal for Plaintiffs' failure to oppose the summary judgment motions. Counsel for BW/IP, Gould, and ABB filed similar letters on July 11, 2016, July 14, 2016, and July 18, 2016, respectively. The case is captioned IN RE: ASBESTOS LITIGATION relating to MARK E. HILLYER and CAROL HILLYER, his wife, Plaintiffs, v. ABB, INC., et al. Defendants, Civil Action No. 15-378-GMS-SRF (D. Del.). A full-text copy of the Report and Recommendation dated July 28, 2016 is available at https://is.gd/gkRUBk from Leagle.com. Mark E. Hillyer, Plaintiff, is represented by Allen Dale Bowers, II, Esq. -- Law Office of A. Dale Bowers. Carol Hillyer, Plaintiff, is represented by Allen Dale Bowers, II, Law Office of A. Dale Bowers. ABB Inc., Defendant, is represented by Oleh V. Bilynsky, Esq. -- ovb@obfirm.com -- O'Brien Firm. Air & Liquid Systems Corporation, Defendant, is represented by Barbara Anne Fruehauf, Esq. -- Wilbraham Lawler & Buba. BW/IP Inc., Defendant, is represented by Joel M. Doner, Esq. -- jdoner@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC. CBS Corporation, Defendant, is represented by Beth E. Valocchi, Esq. -- bvalocchi@swartzcampbell.com -- Swartz Campbell LLC & Shawn Edward Martyniak, Esq. -- smartyniak@swartzcampbell.com -- Swartz Campbell LLC. Copes-Vulcan Inc., Defendant, is represented by Antoinette D. Hubbard, Esq. -- adh@maronmarvel.com -- Maron Marvel Bradley & Anderson LLC & Paul A. Bradley, Esq. -- pab@maronmarvel.com -- Maron Marvel Bradley & Anderson LLC. Crane Co., Defendant, is represented by Nicholas E. Skiles, Esq. - - nskiles@swartzcampbell.com -- Swartz Campbell LLC & Shawn Edward Martyniak, Swartz Campbell LLC. Eaton Corporation, Defendant, is represented by Joseph S. Naylor, Esq. -- Esq. -- jnaylor@swartzcampbell.com -- Swartz Campbell LLC. General Electric Company, Defendant, is represented by Beth E. Valocchi, Swartz Campbell LLC. Grinnell LLC, Defendant, is represented by Kelly A. Costello, Esq. -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. IMO Industries Inc., Defendant, is represented by Eileen M. Ford, Esq. -- eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Esq. -- mmantzavinos@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Mine Safety Appliances Company, Defendant, is represented by David C. Malatesta, Jr., Esq. -- dmalatesta@kentmcbride.com -- Kent & McBride, P.C.. Oakfabco Inc., Defendant, is represented by David C. Malatesta, Jr., Kent & McBride, P.C.. Spirax Sarco Inc., Defendant, is represented by Antoinette D. Hubbard, Maron Marvel Bradley & Anderson LLC & Paul A. Bradley, Maron Marvel Bradley & Anderson LLC. Union Carbide Corporation, Defendant, is represented by Beth E. Valocchi, Swartz Campbell LLC & Joseph S. Naylor, Swartz Campbell LLC. Gould Electronics Inc., Defendant, is represented by David Phillip Primack, McElroy Deutsch Mulvaney & Carpenter LLP. ASBESTOS UPDATE: Bid to Vacate Privilege Waiver Ruling Denied ------------------------------------------------------------- Judge Peter H. Moulton of the Supreme Court, New York County, denied J-M Manufacturing Company, Inc.'s motion to vacate and denied the defendant's motion in its entirety. Defendant J-M Manufacturing Company, Inc., moves to vacate the November 1, 2015 Recommendation of Special Master Shelley Rossoff Olsen and to seal all briefing related to this motion pursuant to 22 NYCRR 216.1. The Defendant asserts that the Special Master erred in applying New York law, and not California law, in determining that J-M waived the attorney-client privilege attached to both the redacted and unredacted versions of a document. The Plaintiff disagrees and opposes the motion. The case is captioned THERESA WARREN, as Administratrix for the Estate of RICHARD WARREN Plaintiffs, v. AMCHEM PRODUCTS, INC., et al Defendants, Docket No. 190281/14, Motion Seq. No. 003, 2016 NY Slip Op 31393(U)(N.Y. Sup.). A full-text copy of the Decision dated July 14, 2016 is available at https://is.gd/rD8ZDU from Leagle.com. ASBESTOS UPDATE: Bid to Review Denial of Summary Judgment Denied ---------------------------------------------------------------- Judge Dean D. Pregerson of the United States District Court for the Central District of California denied Defendant Electric Boat Corporation and General Dynamics Corporation's Motion for Reconsideration in the case captioned VICTORIA LUND, individually and as successor-in-interest to WILLIAM LUND, deceased; DAVID LUND, an individual; and SHEILA LUND, an individual, as legal heirs of WILLIAM LUND, Deceased, Plaintiff, v. 3M COMPANY a/k/a MINNESOTA MINING & MANUFACTURING COMPANY, et al., Defendants, Case No. CV 13-02776 DDP (VBKx)(C.D. Calif.). The Plaintiffs, individually and as legal heirs and representatives of William Lund's estate, brought this action to recover for injuries suffered by Mr. Lund, a former U.S. Navy Machinist Mate. According to Plaintiffs, Mr. Lund's injuries and mesothelioma diagnosis were attributable to his exposure to asbestos dust and fibers during the construction and maintenance of various U.S. Navy ships manufactured by Defendants. In particular, Plaintiffs allege that Mr. Lund was exposed to asbestos while working "in the engineering spaces on the USS Lafayette" at Electric Boat division's shipyard and while working on the USS Gato at General Dynamics' shipyard. The Plaintiffs filed this action in the Superior Court for the County of Los Angeles, raising claims of negligence, breach of express and implied warranties, strict liability in tort, and premises owner/contractor liability. The case was removed to federal court and, on January 30, 2015, Defendants General Dynamics and Electric Boat filed motions for summary judgment on each of Plaintiffs' claims. On March 1, 2016, the court denied Defendants' motions for summary judgment in full. It later issued a Memorandum of Decision explaining its reasoning. Defendants then filed this Motion for Reconsideration. A full-text copy of the Order dated August 1, 2016 is available at https://is.gd/NLyZHd from Leagle.com Victoria Lund, Plaintiff, is represented by Benno B. Ashrafi, Esq. -- Weitz and Luxenberg PC, Alexandra Shef, Esq. -- Weitz and Luxenburg PC., Josiah W. Parker, Esq. -- Weitz and Luxenberg PC, Mark D. Bratt, Esq. -- Weitz and Luxenberg PC, Peter C. Beirne, Esq. -- Weitz & Luxenberg, P.C. & Tyler Robert Stock, Esq. David Lund, Plaintiff, represented by Benno B. Ashrafi, Weitz and Luxenberg PC, Alexandra Shef, Weitz and Luxenburg PC., Josiah W. Parker, Weitz and Luxenberg PC, Mark D. Bratt, Weitz and Luxenberg PC, Peter C. Beirne, Weitz & Luxenberg, P.C. & Tyler Robert Stock. Sheila Lund, Plaintiff, represented by Benno B. Ashrafi, Weitz and Luxenberg PC, Alexandra Shef, Weitz and Luxenburg PC., Josiah W. Parker, Weitz and Luxenberg PC, Mark D. Bratt, Weitz and Luxenberg PC, Peter C. Beirne, Weitz & Luxenberg, P.C. & Tyler Robert Stock. Blackmer Pump Company, Defendant, is represented by James P. Cunningham, Esq. -- Tucker Ellis LLP. BW IP Inc, Defendant, is represented by Holly Acevedo, Esq. -- hacevedo@foleymansfield.com -- Foley and Mansfield PLLP, Keith M. Ameele, Esq. -- kameele@foleymansfield.com -- Foley and Mansfield PLLP, Stephen J. Foley, Esq. -- sfoley@foleymansfield.com -- Foley and Mansfield PLLP & Joshua R. Shoumer, Esq. -- jshoumer@foleymansfield.com -- Foley and Mansfield PLLP. Crane Co, Defendant, is represented by Geoffrey M. Davis, K&L Gates LLP, Bradley W. Gunning, K&L Gates LLP, Kathleen L. Beiermeister, Meagher and Geer PLLP, pro hac vice, Michael J. Sechler, K&L Gates LLP, pro hac vice & William M. Starr, Nelson Mullins Riley and Scarborough LLP, pro hac vice. Electric Boat Corporation, Defendant, is represented by James C. Parker, Esq. -- jparker@hugoparker.com -- Hugo Parker LLP, Charles S. Park, Esq. -- cpark@hugoparker.com -- Hugo Parker, LLP, Christina M. Glezakos, Esq. -- cglezakos@hugoparker.com -- Hugo Parker LLP, Edward R. Hugo, Esq. -- ehugo@hugoparker.com -- Brydon Hugo and Parker, Gregory S. Rosse, Esq. -- grosse@hugoparker.com - - Hugo and Parker, Jeffrey P. Wilson, Esq. -- jwilson@jjrlaw.com -- Jackson Jenkins Renstrom LLP, Lisa M. Rickenbacher, Esq. -- lrickenbacher@hugoparker.com -- Shelley K. Tinkoff, Esq. -- stinkoff@hugoparker.com -- Brydon Hugo & Parker. General Dynamics Corporation, Defendant, is represented by Charles S. Park, Hugo Parker, LLP, Christina M. Glezakos, Hugo Parker LLP & Edward R. Hugo, Brydon Hugo and Parker. General Dynamics Corporation, Defendant, represented by Gregory S. Rosse, Hugo and Parker. General Dynamics Corporation, Defendant, represented by Jeffrey P. Wilson, Jackson Jenkins Renstrom LLP, Lisa M. Rickenbacher, Hugo Parker LLP, Paul M. Bessette, Demler Armstrong and Rowland LLP & Shelley K. Tinkoff, Brydon Hugo & Parker. Goulds Pumps Inc, Defendant, represented by Michael J. Pietrykowski, Gordon and Rees LLP,G. Jeff Coons, Gordon and Rees LLP & Glen R. Powell, Gordon and Rees LLP. Hopeman Brothers Inc, Defendant, represented by Jonathan E. Meislin, Bassi Edlin Huie and Blum LLP, Robert S. Kraft, Bassi Edlin Huie and Blum LLP & E. Reno Cross, Bassi Edlin Huie and Blum LLP. The Nash Engineering Company, Defendant, represented by Arturo E. Sandoval, Foley and Mansfield PLLP, Douglas G. Wah, Foley and Mansfield PLLP & Khaled Taqi-Eddin, Foley and Mansfield PLLP. The William Powell Company, Defendant, represented by Arturo E. Sandoval, Foley and Mansfield PLLP, Douglas G. Wah, Foley and Mansfield PLLP & Khaled Taqi-Eddin, Foley and Mansfield PLLP. Viad Corporation, Defendant, represented by Peter B. Langbord, Foley and Mansfield PLLP &Anna K. Milunas, Foley and Mansfield PLLP. Warren Pumps LLC, Defendant, represented by Glen R. Powell, Gordon and Rees LLP. Crosby Valve, LLC, Defendant, represented by Kevin D. Jamison, Pond North LLP, Rochelle R. Ileto, Pond North LLP, Russell W. Schatz, Jr., Pond North LLP & Joseph Duffy, Morgan Lewis and Bockius LLP. ASBESTOS UPDATE: N.Y. App. Affirms $3.5MM Verdict vs. Nat'l Grid ---------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, First Department, affirmed the Supreme Court, New York County's Judgment on January 28, 2015, after a jury trial, awarding plaintiff, inter alia, $3,500,000,00 in damages for future pain and suffering as against defendant National Grid Generation, LLC. The New York Appellate Division also modified the order of the Supreme Court entered March 13, 2015, which granted National Grid's motion for summary judgment on its claim against defendant O'Connor Constructors, Inc., for indemnification, except for attorneys' fees, and denied O'Connor's motion for summary judgment dismissing National Grid's indemnification claim as against it, to grant National Grid's motion as to attorneys' fees solely in connection with its defense against plaintiff's action, and otherwise affirmed, without costs. The case captioned IN RE NEW YORK CITY ASBESTOS LITIGATION relating to CHARLES D. NORTH, AS EXECUTOR OF THE ESTATE OF RALPH P. NORTH, Plaintiff-Respondent, v. AIR & LIQUID SYSTEMS CORPORATION SUCCESSOR BY MERGER TO BUFFALO PUMPS, INC., ET AL., Defendants, NATIONAL GRID GENERATION, LLC, Defendant-Respondent- Appellant, O'CONNOR CONSTRUCTORS, INC., Defendant-Appellant- Respondent, 190114/13, 1162, 1161, 1160, 2016 NY Slip Op 05729 (N.Y. App. Div.). A full-text copy of the Decision dated August 4, 2016 is available at https://is.gd/IpwS3q from Leagle.com. Coughlin Duffy LLP, New York (Kevin T. Coughlin, Esq. -- kcoughlin@coughlinduffy.com, of counsel), for appellant- respondent. Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich, Esq. -- jnicolich@ingramllp.com -- of counsel), for respondent-appellant. Levy Konigsberg LLP, New York (Jerome H. Block, Esq., of counsel), for respondent. ASBESTOS UPDATE: Bid Summary Judgment in "Haggwood" Partly OK'd --------------------------------------------------------------- Plaintiff Jerome Antonio Haggwood, a civil detainee in the custody of the South Carolina Department of Mental Health, filed the present action pursuant to 42 U.S.C. Section 1983 on August 13, 2015, alleging deprivation of his constitutional rights due to his conditions of confinement, deliberate indifference to his medical needs, racial discrimination, and the requirement that he wear a yellow jumpsuit whenever he is transported in public. His conditions of confinement in the SVPTP are allegedly unconstitutional because of corporal punishment, double bunking practices that place him in physical danger, deliberately contaminated food, and mold, mildew, and asbestos in his living areas. Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages. On February 15, 2016, Defendants moved for summary judgment as to all claims. Warden Stevenson filed a separate motion for summary judgment that expressly joined in the SVPTP Defendants' motion for summary judgment. The Magistrate Judge recommended granting Defendants' motions for summary judgment on June 27, 2016. Plaintiff timely mailed his objections to the Report and Recommendation on July 14, 2016. Judge Richard Mark Gergel of the United States District Court for the District of South Carolina, Charleston Division, adopted Parts I-III.A.1 and Parts III.A.3-lII.E and declined to adopt Part III.A.2 and Parts III.F-IV of the Report and Recommendation of the Magistrate Judge; granted in part and denied in part without prejudice in part the Defendants' motion for summary judgment and Defendant Robert Stevenson's motion for summary judgment; granted summary judgment for Defendant Kimberly Poholchuk as to all claims; denied without prejudice Defendants' motions for summary judgment as to claims against Defendants John Magill, Holly Scaturo, and Robert Stevenson in their official capacities for injunctive relief regarding adulterated food; denied without prejudice Defendants' motions for summary judgment as to claims against Defendants John Magill, Holly Scaturo, and Robert Stevenson in their personal capacities for nominal and punitive damages regarding adulterated food; and granted summary judgment for those Defendants as to all other claims. The case is captioned Jerome Antonio Haggwood, Plaintiff, v. John Magill, Holly Scaturo, Kimberly Poholochuck, and Warden Stevenson, Defendants, Civil Action No. 5:15-3271-RMG (D.S.C.). A full-text copy of the Order dated August 3, 2016 is available at https://is.gd/KpZydn from Leagle.com. Jerome Antonio Haggwood, Plaintiff, Pro Se. John Magill, Defendant, is represented by David Allan DeMasters, Esq. -- ddemasters@dml-law.com -- Davidson and Lindemann & William Henry Davidson, II, Esq. -- ddavison@dml-law.com -- Davidson and Lindemann. Holly Scaturo, Defendant, is represented by David Allan DeMasters, Davidson and Lindemann &William Henry Davidson, II, Davidson and Lindemann. ASBESTOS UPDATE: Court Grants MDE's Summary Judgment Bid -------------------------------------------------------- Judge Kevin Gross of the United States Bankruptcy Court for the District of Delaware granted the Maryland Department of the Environment's motion for summary judgment and denied the Trustee's motion for summary judgment in the case captioned PIRINATE CONSULTING GROUP, LLC AS LITIGATION TRUSTEE OF THE NP CREDITOR LITIGATION TRUST, Plaintiff, v. MARYLAND DEPARTMENT OF THE ENVIRONMENT, Defendant, Adv. Pro. No. 13-52206 (KG) in relation to bankruptcy case In re: NEWPAGE CORPORATION, et al., Chapter 11, Debtors, Case No. 11-12804 (KG). Pirinate Consulting Group, Litigation Trustee for the NP Creditor Litigation Trust, has filed an avoidance action against the Maryland Department of the Environment and seeks to avoid three separate payments as preferences under section 547(b) of the U.S. Bankruptcy Code. Both parties have moved for summary judgment and there are seven issues ripe for adjudication. The Debtors' subsidiary, Luke Paper Company operates a mill (the "Luke Mill") in Maryland that is regulated by various divisions of MDE. The full extent of the relationship between the Debtors and MDE is somewhat unclear. However, MDE notes that "the State's operating permit program has been in place for decades" and that the Debtors have "been paying the emissions based fee of the type at issue in this case at least since 1997. Here, the Trustee seeks to avoid three separate fees paid to MDE. The Trustee seeks to avoid the Debtors' 2011 Permit Fee, Asbestos Fee, and Report Fee (collectively, the "Environmental Fees") as preferential transfers and has moved for summary judgment. In response, MDE has cross-moved for summary judgment, arguing that the Asbestos Fee was not paid on account of an antecedent debt and that the transfers did not enable it to receive more than it would have in a hypothetical liquidation. Additionally, MDE asserts three affirmative defenses under section 547(c) of the Code -- the contemporaneous exchange defense, the ordinary course of business defense, and the de minimis exception. Additionally, MDE argues that 28 U.S.C. Section 959(b) prohibits a trustee from recovering environmental compliance fees. Finally, MDE argues that the doctrine of sovereign immunity insulates it from liability in these proceedings. A full-text copy of the Memorandum Opinion dated August 4, 2016 is available at https://is.gd/KYIMiz from Leagle.com Pirinate Consulting Group LLC, as Litigation Trustee of the NP Creditor Litigation Trust, Plaintiff, is represented by M. Blake Cleary, Esq. -- mbcleary@ycst.com -- Young, Conaway, Stargatt & Taylor, Michael Comerford, Esq. -- michaelcomerford@paulhastings.com -- Paul Hastings LLP. Maryland Department of the Environment, Defendant, represented by Jonathan E. May, MD Dept. of the Environment- Office of the Attorney General. ASBESTOS UPDATE: Worksafe Targets Poor Asbestos Record ------------------------------------------------------ RNZ.com reported that WorkSafe is aiming to halve the number of deaths from asbestos, which were 146 last year and average 170 annually, within a decade. But it will be doing it without any extra money for now from the government, in the face of a building boom and with doubts around Customs' ability to stop asbestos at the border. WorkSafe chairperson Gregor Coster said the government's decision to ban products containing asbestos would be crucial to meeting the target in the agency's new 10-year workplace health plan. "We've been able to get the support of government to ban the importation of asbestos -- that's been a huge step forwards, that's never been done in New Zealand before," said Professor Coster. The ban on any product containing asbestos would kick in from October, 13 years after Australia. In exceptional circumstances here, an importation permit might be issued. Three years ago the Independent Taskforce on Workplace Health and Safety said there was "paralysis" and a gaping data hole around how much illness and death was caused on the job. Cancer expert Sir David Skegg has previously said this country is "unusually slack" about its controls on asbestos, and plenty of scepticism remains among unions who say fly-by-night builders would still put workers clearing out old asbestos at risk. The data is still lacking and WorkSafe appears quite slow at filling it in. Also, while asbestos accounted for the largest single chunk of the estimated 600-900 workplace-related deaths a year, vagueness surrounded the other two thirds. Lawyer Hazel Armstrong, who has worked for the rail workers' union, said she foresaw ongoing risk from imported asbestos and WorkSafe would be falling short unless the government stepped up. "They've got to have border controls and they've got to equip Customs to check the products that are coming into New Zealand -- including things like locomotives, but especially building products," she said. Research supported the idea it would be a grind -- in a recent survey just 7 percent of construction companies, who are entering a sustained boom time, and fewer than a quarter of manufacturers said they had offered employees any health monitoring in the last 12 months. However, Prof Coster said he was confident Customs would enforce the ban and WorkSafe did not need any extra inspectors to help with its push on health. About half its almost 200 inspectors were trained for asbestos detection, with an aim to increase that to 80 percent, and the number of staff working exclusively on health issues had risen from 3 or 4 to 15 or 20 in the last couple of years. Prof Coster also said the agency did not need any more government funding -- which was good, as none was forthcoming from the Minister for Workplace Relations and Safety Michael Woodhouse. "I think the resources are already there in place to be able to firstly encourage, educate and coach organisations into being more aware of the risk," Prof Coster said. "The costs I think will be at the margins with things like better personal protective equipment." Mr Woodhouse -- whose own grandfather Frank, a railway boilermaker -- died due to asbestos exposure, said it was a long game. "It's going to be years before we see the benefits of this but the action needs to start now. So we need to be patient, we need to accept that those numbers are going to stay high for a while." ASBESTOS UPDATE: Contractor Pleads Guilty After Illegal Removal --------------------------------------------------------------- WishTV.com reported that an Indianapolis contractor was sentenced to four months of house arrest and two years of probation after pleading guilty in federal court to illegally removing asbestos from an inhabited apartment building. Paul Walker, 56, will also pay a $2,000 fine as part of his sentencing. According to United States Attorney Josh Minkler, Walker was performing maintenance and renovation work on an apartment building located at 38th St. and Central Ave in 2015. That work involved removing asbestos insulation from piping and a boiler in the building's basement. Minkler said that despite Walker telling the building owner that he would use a subcontractor licensed in asbestos abatement, he instead removed the asbestos himself, putting residents in the building at risk for exposure to harmful asbestos fibers. According to a release, Federal law describes in detail how asbestos must be safely removed and disposed. Those procedures were not used in this instance. Later testing showed that although the asbestos fibers did not reach the inhabited floors of the building, Walker's actions placed residents at risk of exposure. That led to Walker being prosecuted for Negligent Endangerment under the federal Clean Air Act. The asbestos was later properly removed by a professional abatement firm, at Walker's expense. "Asbestos is a dangerous substance and putting people at risk by illegally removing it is a federal crime," Minkler said. "If you must remove asbestos, do it the right way and follow the law. If you cut corners to try to save a buck, you will be caught and prosecuted." ASBESTOS UPDATE: High School Closes for Asbestos Removal -------------------------------------------------------- Deborah M. Marko, writing for The Daily Journal, reported that removing the asbestos discovered during the Vineland High School South heat/air conditioning project could cost about $1 million and require around-the-clock shifts to be ready for the first day of school on Sept. 6. Charles McKenna, the N.J. Schools Development Authority CEO, assured the school board all asbestos will be removed before the school is opened. "This is not about getting it done; it's about getting it done right," McKenna said. The SDA and school district are partners in a $10 million project, spanning two years, to replace the school's heating/hot water system and install air conditioning at the 53-year-old school. The project stalled this summer when asbestos was discovered. Prior to starting the job, the SDA hired an environmental specialist to give them a heads up on what to expect when ceilings were opened and crews got to work on the school's ventilation system, McKenna said. "Generally speaking, asbestos was the miracle product in construction years ago," he said, noting it was widely used as insulation and later discovered to be a carcinogen. About 15 years ago, a contractor was hired for an asbestos abatement project at VHS South, McKenna said. "We assumed that all the asbestos had been remediated in the places that your contractor said they were," he said. "When we started opening up the ceilings, contrary to those representations made by the contractor, we found friable asbestos." The school is now subject to 24-hour air monitoring. It appears the contractor took out the big asbestos panels and left other items behind, McKenna told the school board. "They did the easy job and they left the hard job," McKenna said, noting there was no way the district officials could have known. The asbestos was enclosed behind insulation and did not pose a health threat to staff and students, Wayne Weaver, the district's building and grounds supervisor said. It was when the asbestos was uncovered and disturbed during recent demolition work that it became a concern, he said. The SDA's priority is now removing that asbestos. Money is available and there's a new contractor on board, committed to having the asbestos removed by Aug. 31. "We are willing to pay the money because this is a matter of safety; safety for the school and more importantly, safety for the children," McKenna said. Weaver's crew needs a week to reassemble the schools for the Sept. 6 opening day. His staff is willing to work over Labor Day weekend to get it done. The district needs the school's heating system ready by Oct. 15. "We expect to meet that deadline as well," McKenna said. School Board President Scott English thanked the state for its support but shared parent concerns, especially for students with asthma. When students return to VHS South "they are going to walk into a school that is safe, asbestos-free and has no health problems," McKenna said, telling the board there may be some lingering aesthetic issues but no environmental concerns. District officials have a meeting set to talk about backup contingency plans, Superintendent Mary Gruccio said, adding "we don't want kids to miss school." When the work is compete, McKenna said, the SDA will "sort out the prior contractor, why he didn't do proper work." "If there is money to be recouped, we'll look to recoup that," he said. Several contractors have worked on asbestos abatement projects at VHS South that took place in 1983, 1984, 1987 and 1989, according The Daily Journal archives. ASBESTOS UPDATE: Mesothelioma Cases Rise in Iceland Despite Ban --------------------------------------------------------------- Tim Povtak, writing for Asbestos.com, reported that the incidence of mesothelioma in Iceland today continues to rise, despite a nationwide ban on asbestos that began more than 30 year ago. A recent study conducted in this Nordic island nation illustrates just how difficult it will be to end the worldwide horrors of mesothelioma and other asbestos-related diseases. Banning asbestos -- in any country -- is not the panacea that many believe. It is only the beginning. "We may have to wait another 20 years before we see a decrease in the rate of mesothelioma," University of Iceland preventative medicine professor Dr. Vilhjalmur Rafnsson told Asbestos.com. "The rate has not yet peaked." Although asbestos was never mined in Iceland, vast amounts of the naturally occurring mineral were imported and used in manufacturing and construction throughout the 1970s and early '80s. Mesothelioma is caused primarily by the inhalation or ingestion of microscopic asbestos fibers. There is typically a lengthy latency period (20-50 years) between exposure to asbestos and diagnosis of mesothelioma. Icelandic researchers used data from the nation's cancer registry, Cause of Death Registry and its National Register. Iceland Is Among Countries That Banned Asbestos Iceland banned asbestos imports in 1983. It is one of 58 countries that banned the toxic mineral. The U.S. is not one of them, although there is considerable pressure to join. University researchers, Iceland's Occupational Safety and Health Administration and the Centre for Health Security and Communicable Disease Control conducted the study published in July in the Journal of Occupational Medicine and Toxicology. The study found the incidence rate of mesothelioma in Iceland increased significantly since the late 1970s. For example, from 1975 to 1984, it was 4 cases per million. The latest figures from 2005 to 2014 place the incidence rate at 21.4 cases of the cancer. By comparison, the incidence rate in the U.S. has remained steady in recent years at an estimated 14 cases per million. "The ban against the import of asbestos does not solve the problem," Rafnsson said. "We still have much work to do." Iceland's importation of asbestos in 1979 was 700 tons. It peaked in 1980 with 3,500 tons. After that, it continued to drop by almost 1,000 each year until it was banned in 1983. The flood of asbestos entering the country coincided with an extensive construction boom that required large amounts of asbestos cement. The importation was limited for the next six years, but it rose again when manufacturers exploited more exceptions to the law and more than 500 tons annually were imported from 1990-1994. Vigilance Is Still Needed In the last 20 years, Iceland experienced negligible asbestos importation, but deaths attributed to mesothelioma reached a high of 27 per million in 2014 -- the last year available in the study. Men represented 79 percent of all cases, and nearly two-thirds were pleural mesothelioma, the most common type of the disease. The study shows the asbestos ban has helped, but the continued presence of asbestos products in Iceland is still a danger. It remains in dozens of currently used products, myriad structures and equipment. The maintenance, renovation and removal of asbestos-containing products may continue to fuel the high rate of disease in the coming years, according to the study. Rafnsson also emphasizes the less than adequate regulations regarding the proper disposal of asbestos products. "One of the unsaid purposes of the study was to bring attention to the cancer risk related to asbestos exposure," Rafnsson said. "The ban is one of the preventative measures carried out to protect the general public against asbestos risks, but other preventative measures to certain occupations and work places are just as important." ASBESTOS UPDATE: Asbestos Delays High School Demolition Work ------------------------------------------------------------ Mary Ellen Godin, writing for Record-Journal, reported that students entering or returning to Platt High School in three weeks will take classes in a new academic wing and play on new athletic fields, but will have to wait until January for a gymnasium and auditorium. With three out of four phases complete, workers on the $118 million Platt renovation project are now demolishing a large portion of the old building on the northeastern side to make way for the gymnasium, auditorium and administrative offices, said Michael Grove, assistant school superintendent. But construction workers have run into a problem with asbestos- containing material in the school's main gymnasium, which has delayed demolition by several weeks, said project facilitator Glenn Lamontagne. It wasn't immediately clear if the added work would put the project over budget. Metal clamps from the old gym floor left thousands of indentations in the concrete slab under it. Those indentations hold an asbestos-containing material, so the entire slab needs to be treated and mitigated. Environmental engineer Fuss & O'Neill Inc. and general contractor O&G Industries Inc. were working with school officials on the best way to deal with the problem. "That's proven more difficult and that's pushed us back a couple of weeks," Lamontagne said. Platt students will use gymnasium space at Lincoln Middle School, the Boys & Girls Club, Wilcox Technical High School and the new Maloney High School gymnasium, which is expected to be completed in September. School officials hope the auditorium will be complete in January, and the gymnasium in December. A temporary bus loop was paved on Coe Avenue and the student drop-off and pickup area is ready on Oregon Road. The cafeteria, art and music rooms were finished last year. Temporary administrative, health and guidance offices will be housed in the new wing until the new offices are completed. "There are a lot of things going on," Lamontagne said. ASBESTOS UPDATE: Schenectady Asbestos Firm Files for Bankruptcy --------------------------------------------------------------- Larry Rulison, writing for Times Union, reported that a Precision Environmental Solutions, owned by Molain Glimore, appears to have been extremely successful in years past, with more than $7 million in revenue between 2014 and 2015. However, documents filed in U.S. Bankruptcy Court in Albany show that the company earned only $175,000 this year. Calls to the company went unanswered. However, the company appears to have vacated space at the Rotterdam Industrial Park back in April, which may be the reason why it is a defendant in a breach of lease lawsuit filed against it by Rotterdam Ventures, a subsidiary of the Galesi Group that owns the industrial park. Precision Environmental Solutions also lists legal action against it involving SUNY Plattsburgh and the U.S. Environmental Protection Agency, although no details were given. The Schenectady company should not be confused with a Ballston Spa company with a similar name -- Precision Environmental Services. There is no connection between the two. Under Chapter 11 bankruptcy rules, a company reorganizes its finances and corporate structure to try and remain in business or sell off its assets. ASBESTOS UPDATE: Delayed Asbestos Removal Raises Concerns --------------------------------------------------------- Colin MacLean, writing for Journal Pioneer, reported that Darby McCormick is not happy that her children will, in a few short weeks, be returning to a school full of asbestos. Asbestos was discovered in nine P.E.I. schools earlier this year and all were slated to have it removed before the start of the new school year in September. However, it was recently announced that, due to time constraints, two of the schools, Queen Elizabeth Elementary in Kensington and East Wiltshire Intermediate in Cornwall, would not be remediated in time. That work is now scheduled for the summer of 2017. McCormick is the co-chair of the Queen Elizabeth Home and School Association. She and the other parents have been following this story closely in the news, she said. "We're disappointed." "There is going to be asbestos in our school for a whole other year, which in my opinion, seems like quite a long time." She understands that so long as the asbestos is not disturbed, it is essentially harmless, but now that parents know it is in the facility they understandably want something done about it, she said. "We kind of have to temper our unhappiness with the fact that it's been there a long time and it's probably not caused any problems. "But we were relieved to know that it would be gone this summer and we'd come back to a healthier school. To not have that happen is kind of frustrating." Alan Maynard, director of public works and planning with the Department of Transportation, Infrastructure and Energy, said that rescheduling was necessary because of the way the tenders for the projects were rolled out. Those were issued in two batches, he said, but by the time the second set was issued their estimated completion dates were starting to push into the school year. "We wanted the first three to get out and get going, then put another tender call out. (That was done) so that we didn't glut the market with a whole bunch of work that people couldn't get good pricing on," said Maynard. They chose Queen Elizabeth Elementary and East Wiltshire for the delay because they're two of the most time consuming projects. "They're very large jobs -- one is the largest of the whole works," he said. Completing the work during a break in the school year, such a March break or Christmas, is not feasible, he added, because that would not allow enough time to get the work done. That decision is also not sitting well with Kensington-Malpeque MLA and Opposition member Matthew MacKay. "This is an abject failure by the premier and his government to ensure safe and healthy classrooms for our students. The students, parents, and staff at Queen Elizabeth and East Wiltshire deserve an explanation from the premier about why they have to wait another year to have asbestos removed from their classrooms," said MacKay. As for McCormick and the other parents at Queen Elizabeth Elementary, they'll be waiting for further word from school leadership on this issue and eagerly awaiting summer 2017. ASBESTOS UPDATE: Tests Allay Asbestos Concerns for Senate Room -------------------------------------------------------------- Mary Clare Jalonick, writing for The Associated Press, reported that the Senate press gallery and nearby rooms in the U.S. Capitol have been declared safe after an air quality investigation prompted by fears of asbestos exposure. Officials from the Architect of the Capitol's office say workers had discovered a broken air duct above the press gallery on the Capitol's third floor. After evacuating the area, officials called in an independent, certified industrial hygienist to collect and analyze air samples. A spokeswoman for the Architect of the Capitol, Erin Courtney, says the sample results tested well below the regulatory limit for general space occupancy. Courtney says the Senate chamber, which is immediately adjacent to the press gallery, wasn't affected. The Capitol's House side was temporarily closed in July 2014 after what officials called a "potential release" during asbestos abatement work. ASBESTOS UPDATE: Flood Victims Displaced Due to Asbestos Testing ---------------------------------------------------------------- Jillian Duff, writing for Mesothelioma.com, reported that Umi Street flood victims in Honolulu, Hawaii will be displaced for two more months while clean up and asbestos tests are conducted. Victim mediator Chuck Crumpton said, "The important thing is to get the right experts in there to make sure that mold, fungus, asbestos, and anything that can cause health problems is handled properly." "Getting the right experts in there early on can really speed things up and not doing that can really slow things down a lot," said Crumpton. "Two months does not sound out of the ballpark if you've got pretty extensive damage in nine units like that." After asbestos testing, the walls and some flooring will have to be removed. In the meantime, Joey Manahan, Councilman for the district, called on the Institute for Human Services to arrange housing for the flood victims. "We just gotta make do with what we have until we find more room or another place," said flood victim Aaron Meyer. Most families hosed down their homes to get out mud and searched through their remaining belongings to see what could be salvaged. Some homes are livable, but all homes will need to be cleared out during asbestos testing and clean up. "Through our service providers, they're able to work with other landlords in the city to be able to place folks into an apartment into a studio depending on the need," said Meyer. "We gotta find out all the details, so if it's affordable for us, if we could afford it, just go from there and see what happens." Natural disasters such as hurricanes, fires, tornadoes, and floods can result in significant damage to homes and commercial buildings. If these structures contain asbestos, the harmful particles may become friable, and can be inhaled by people, as well as pets. Often, those responsible for the recovery and clean up in the wake of a natural disaster, fire, or flood are exposed to harmful asbestos and are at risk for developing mesothelioma cancer. First responders and those assisting with rescue, recovery, and rebuilding efforts are not the only individuals at risk of exposure following a natural disaster. All people who are present in a location where asbestos fibers have become airborne face the risk of asbestos inhalation. Therefore, it's important to exercise proper handling precautions after natural disasters to ensure asbestos exposure protection. In an emergency situation, you'll want a mask that covers your nose and mouth. Bottled water is also important in order to wet asbestos products so they're less likely to become airborne. Plus, disposable gloves, protective eyewear, clothing, and booties are imperative to not transfer asbestos from one location to another. ASBESTOS UPDATE: Asbestos-Filled Funeral Parlor Toppled ------------------------------------------------------- Junnelle Hogen, writing for Statesman Journal, reported that neighboring downtown Salem business owners watched as workers in white suits and full face coverage rummaged through the partially demolished building formerly inhabited by Barrick Funeral Home, searching for asbestos. The demolition halted. Roofing test samples went to a lab, to see if there was any trace of the cancer-causing asbestos fibers. The result was negative and work was scheduled to resume Friday. It was the second time asbestos had been a potential issue for the project. In July, environmental regulators found asbestos in the floorboards and sideboards, and closed the site for two weeks to remove the caked white fibers. As they resume the demolition process on the 1932 building, downtown Salem is bidding farewell to the site that used to house the oldest continually-run funeral home in Salem. In the process, the project is likely to cost the Utah-based developers more than $1 million. "It wasn't an official historic building," said Llynore Barrick, who along with her husband, Greg, sold the building to developers in January. "But after having three generations work there, it's certainly kind of heartbreaking." Demolition The front facade is blotched, yellow-beige paint splotched with the color of cement. At the back, the L-shaped wing is partially demolished and exposed, plywood sticking out in ragged splinters. The building at 205 Church Street SE, built in 1932, sold for $585,000 to Wadsworth Development Group in January, according to county records. In addition to the asbestos, the basement contained decades-old oil tanks which had leaked into the ground. The developers were notified if they wanted to continue, they would have to spend thousands of dollars replacing the soil below. Jason Hawks with the demolition company 3Kings Environmental Company, said after a building inspection, the Department of Environmental Quality also handed down a requirement to get rid of the asbestos. "We had guys out there with full suits and masks, shipping out materials," Hawks said. The building itself was nearing collapse. The Barricks had an engineer inspect the structure several years back, and found a beam on the southwest side of the building was starting to give out. "It's an old building, and it was starting to have issues," Greg Barrick said. "The timing was right." Old funeral home The Barrick Funeral Home was one of the oldest links to death in the city. The funeral parlor opened in a different part of Salem shortly after 1878, when founder and funeral director Aldin Clough moved to the area. The Barrick family took over partial ownership in the 1930s, and ran the business for three generations, ending with Greg Barrick. As a boy, Greg Barrick grew up running errands for the funeral parlor, and helping with the funeral services hosted by bereaved families and friends. He took to it, his wife said, and became certified in prepping the bodies: giving their faces one last peaceful look for the mourners to see, as they glimpsed into the caskets of loved ones. "My husband actually likes the business," said Llynore Barrick, who helped her husband with the business for more than two decades. "He just felt that he really had a calling in it. His parents were very proud of him because he really took to it, and I don't think there was so much of a death issue. It was really more of an urgency to help the family. He just wanted the church services to be beautiful." The business took a toll. The Barricks responded to calls from recently bereaved families 24/7. Eventually, business started to slow down. "Less and less people remembered the old days," Llynore Barrick said. "They didn't understand that family service meant something personal to families running small business." As one of the two independently owned funeral parlors left in town, with an increasingly dilapidated building, the pressure became too much. Greg took a job as funeral director for Weddle Funeral Services in Salem. Starbucks Wadsworth Development Group project manager Parker Robertson said the construction timeline is back on track. Starbucks signed a lease with the developers in June to move into a new 1,900-square-foot building the company has plans to raise on the site. The developers still have a bid out for the construction company, but anticipate site work should cost upwards of $600,000, bringing the project to a nearly $1.2 million price tag. "We're trying to keep to a budget," said Robertson. Despite delays, they are hoping to start construction in September. If all goes according to plan, come December customers will be picking up cups of coffee via a drive-through lane. "It's a tight time frame, and (Starbucks) really likes the site, and we really like the site as well," Robertson said. ASBESTOS UPDATE: Compensation Claims Could Be Denied ---------------------------------------------------- Jonathan Watson, writing for The Courier, reported that plans that could deny asbestos-related cancer sufferers compensation from employers have been branded a disgrace by the founder of a Fife charity. Julie MacDougall said that plans by Companies House that could see details of defunct businesses deleted after six years could deny justice to anybody suffering from life-threatening conditions contracted in the workplace. Ms MacDougall, the daughter of former Central Fife MP John MacDougall, has called on the government agency to maintain its database, which currently keeps business information for 20 years after dissolution. Having founded the John MacDougall Mesothelioma Trust following her father's death from the condition in 2008, she said that workers could be denied justice if the plans were passed. "It is simply a disgrace that Companies House wish to delete these crucial records after 6 years. "Why has it become so important to do this now? "Sadly we know mesothelioma deaths have not yet reached their peak, therefore these vital records should be left open and transparent so the companies who are responsible can be held to account for their negligence which has left families in utter devastation. "The information held in these records is potentially the only form of justice that may be offered to victims and their families. "The government has a duty to ensure Companies House retain these records. Workers and their families at the very least deserve some form of justice" Mesothelioma is a form of cancer that develops in the lining that covers some of the body's organs. It has been linked to asbestos exposure and more than 2,600 people in the UK are diagnosed with the condition every year. Aged 60, Mr MacDougall passed away in 2008 following a long battle with mesothelioma, having worked in the shipyards before entering politics. Since then, Ms MacDougall has campaigned for increased research in to the illness, which has proven hard to treat. Neil Sugarman, president of the Association of Personal Injury Lawyers, has also voiced his concerns by the plans, adding: "Victims of asbestos-related disease mesothelioma are dying because of exposure at work as far back as the 1980's," he said. "Some of those companies who exposed their employees to asbestos are now likely dissolved and the records would be deleted under the plans. "Without a record of the original company entity, workers and their families may never see justice be served." A Companies House spokesperson confirmed that a review would consider the retention period for all UK business records. ASBESTOS UPDATE: German Asbestos Workers to Get CT Exams -------------------------------------------------------- German researchers say high-risk asbestos workers now have access to low-dose CT exams for detecting early signs of asbestos-related diseases like mesothelioma. Surviving Mesothelioma has just posted details of the article. Click here to read it now. According to the article's authors, the decision of the German statutory accident insurance to cover low-dose CT exams for asbestos workers was based on the findings of the National Lung Screening Trial. That study found that CT exams in heavy smokers lowered the risk of death from lung cancer. "These results...were pivotal as the German statutory accident insurance (DGUV) decided to provide LDCT as a special occupational medical examination for workers previously exposed to asbestos and with a particularly high risk for developing lung cancer," writes Dr. Karina Hofmann-Preiss, of the Institute for Diagnostic and Therapeutic Imaging in Erlangen. The article, published in the German journal Radiologe, says the number of German asbestos workers diagnosed with asbestos-diseases like malignant mesothelioma and lung cancer is rising in spite of the 1993 asbestos ban. "Mesothelioma's long latency period means that, even though Germany has banned asbestos for more than two decades, workers exposed before that time are still at risk," says Alex Strauss, Managing Editor of Surviving Mesothelioma. "The new coverage for LDCT exams is potentially life-saving news for these workers." To read more about CT screening of asbestos workers and its potential impact on mesothelioma survival, see Low-Dose CT May Improve Mesothelioma Survival Odds for German Workers, now available on the Surviving Mesothelioma website. Hofmann-Preiss, K and Rehbock, B, "Early recognition of lung cancer in workers occupationally exposed to asbestos", August 8, 2016, Radiologe, Epub ahead of print, http://www.ncbi.nlm.nih.gov/pubmed/27502004 For nearly ten years, Surviving Mesothelioma has brought readers the most important and ground-breaking news on the causes, diagnosis and treatment of mesothelioma. All Surviving Mesothelioma news is gathered and reported directly from the peer- reviewed medical literature. Written for patients and their loved ones, Surviving Mesothelioma news helps families make more informed decisions. ASBESTOS UPDATE: Canberra Bldgs Tested for Asbestos --------------------------------------------------- Kirsten Lawson, writing for Canberra Times, reported that asbestos tests are being done on three Canberra buildings, including federal public service offices, after the discovery that building materials were supplied by a company linked with asbestos finds in Perth and Brisbane. Work Safety Commissioner Greg Jones said his inspectors had spoken at length to Yuanda, the company reported to have supplied Chinese-sourced asbestos-containing roof panels to the Perth children's hospital and in metal skirting in a government building in Brisbane. Yuanda has supplied three buildings in Canberra -- the Sirius building occupied by federal health department staff in Woden, the City West Offices occupied by federal education department staff in the city, and a building at section 54 in Kingston. The alert was raised by the Construction, Forestry, Mining and Engineering Union, whose ACT secretary Dean Hall said asbestos imports from China were another Fluffy disaster in the making. The free-trade environment would leave Australia wide open to asbestos-contaminated products from China, India and other countries where they were still legal. Asbestos was contained in imported house cornices, in wallboard and ceiling board, without sufficient checks, he said. "It's laced through a lot of products. It's a major concern, and the question is how is the authority and how is the government going to protect Canberrans and Australians from asbestos and other products," Mr Hall said. Mr Jones said Yuanda imported a range of building products and asbestos had so far been found in only a particular type of product that had not, according to preliminary information, been used in the Canberra buildings. But the company was organising to have its materials in the three buildings independently tested. Tests had been done on one, with results expected next week. Mr Jones said one of the products used in Canberra was a sealant around windows. Any asbestos would be bonded asbestos, not the loose Mr Fluffy-type asbestos that sparked the mass buyback and demolition of Canberra homes. The City West Offices were built by Cimic, finished in 2010. Cimic declined to answer any questions about Yuanda's supply of materials or what was being done to check the building. The Sirius building in Woden was built by the Doma Group, whose general manager of development, Gavin Edgar, said the first the company had heard of the issue was when Yuanda had emailed. The company had told Doma the materials used in Canberra were not the same as those found to contain asbestos interstate, he said. "It was news to us. Are we comforted by it? I don't know yet,. We are going to understand the background to the incident then make contact with the new owners," he said. The building was now owned by Mirvac. Yuanda did not respond to a request for comment. In July, Yuanda told the ABC the contaminated product had been supplied to the firm's China-based manufacturing plant, and had unknowingly been used only on the Brisbane and Perth projects. The supplier had provided a fraudulent test certificate saying they were asbestos free, the company said, adding it would no longer accept test certificates from China directly, instead having products tested in Australia. ASBESTOS UPDATE: Cleanup in Johnson Controls Debris To Start ------------------------------------------------------------ Roger Schneider, writing for Goshen News, reported that a public hearing has been set to inform city residents about the status of piles of debris tainted with asbestos at the former Johnson Controls factory site, 1302 E. Monroe St. Goshen Mayor Jeremy Stutsman said cleanup of the debris will begin Aug. 25 and last about 12 weeks. "The EPA has been extremely proactive in dealing with the contamination found at this site" said Mayor Stutsman. "We have asked them to keep the community informed about the clean-up process and they have agreed to hold an open house to answer questions. The goal for the open house is to be completely transparent so the public is fully informed about clean-up activities." The open house will be held at Schrock Pavilion in Shanklin Park, 411 W. Plymouth Ave. from 3 to 7 p.m. Stutsman said EPA officials will be on hand to meet with residents. Piles of debris from the demolition of the former factory building and office have been left on the site, which is owned by TOCON Holdings. The asbestos contamination came to light in February when a report about the debris was filed as part of federal lawsuits against TOCON Holdings. The lawsuits were filed by two groups of residents living around the factory site and who are seeking an order for the company to cleanup contaminated groundwater. The EPA responded quickly to the report of asbestos and the EPA had the piles of debris covered with plastic and tarps so snow and rain would not wash the cancer-causing material out of the debris. Stutsman said EPA testing has confirmed the presence of asbestos on the site. ASBESTOS UPDATE: NY Decision Not Good for Asbestos -------------------------------------------------- James Beck, Esq. -- jmbeck@reedsmith.com -- at Reed Smith, in an article for JD Supra Business Advisor, wrote that the recent decision of the New York Court of Appeals in In re New York City Asbestos Litigation, ___ N.E.3d ___, 2016 WL 3495191 (N.Y. June 28, 2016) ("NYCAL"), was not too good for asbestos defendants -- as it permitted, under certain circumstances, non-manufacturers to be sued for failure to warn of a risk that the product they manufactured didn't have (exposure to asbestos), where they "encourage[ed]" the use of products containing that risk with their products and thereby benefitted economically: [A] manufacturer's duty to warn of combined use of its product with another product depends in part on whether the manufacturer's product can function without the other product, as it would be unfair to allow a manufacturer to avoid the minimal cost of including a warning about the perils of the joint use of the products when the manufacturer knows that the combined use is both necessary and dangerous. And, the justification for a duty to warn becomes particularly strong if the manufacturer intends that customers engage in the hazardous combined use of the products at issue. * * * * [W]here a manufacturer creates a product that cannot be used without another product as a result of the design of the product, the mechanics of the product or the absence of economically feasible alternative means of enabling the product to function as intended, the manufacturer has a substantial, albeit indirect, role in placing the third-party product in the stream of commerce. . . . Specifically, when the manufacturer produces a product that requires another product to function, the manufacturer naturally opens up a profitable market for that essential component, thereby encouraging the other company to make that related product and place it in the stream of commerce. NYCAL, 2016 WL 3495191, at *__ (for some reason there is no Westlaw star paging at the moment). This opinion is very bad news for the affected companies, who are now sucked into the maw of interminable asbestos litigation on the basis of products they didn't even make, but it's not bad at all for our prescription medical product manufacturer clients. Here's why. First, the court's rationale for recognizing a limited duty to warn of the risks of other manufacturer's products excludes any possibility of innovator liability in New York. That theory (that innovator companies can be liable for inadequate generic drug warnings) was pretty darn dead already in New York. See In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d 917, 949 (6th Cir. 2014) (applying New York law); Goldych v. Eli Lilly & Co., 2006 WL 2038436, at *3-8 (N.D.N.Y. July 19, 2006); Weese v. Pfizer, Inc., 2013 WL 5691993, at *2 (Sup. N.Y. Co. Oct. 8, 2013) -- all rejecting innovator liability under New York law. However, innovator liability is also 100% contrary to the economic rationale followed by the court in NYCAL. In the case of generic drug labeling, the "same" FDA-approved branded labeling is mandated for generic drugs due to operation of federal law, as discussed in PLIVA v. Mensing, 564 U.S. 604, 612- 13 (2011) (analyzing 21 U.S.C. Section 355(j)(2)(A)(v) and 355(j)(4)(G)). In this regard, unlike NYCAL, branded drug companies possess no "intent" to "encourage" anything -- least of all that their products be driven off the market by cheaper generic products. The only intent is that of Congress. Ditto the economic rationale that NYCAL found persuasive, that the non- manufacturer defendant was "open[ing] up a profitable market for [an] essential component" required for the operation of its own product, 2016 WL 3495191, at *__, is thus entirely inapplicable. The opposite is true in innovator liability cases. Generic drugs are not used in in conjunction with innovator drugs, but rather replace them. An innovator drug manufacturer receives no direct or indirect economic benefit from having an identically labelled generic product substituted for its branded medication. The Court of Appeals in NYCAL also emphasized that its "sensibly confined" duty would have "a balanced and manageable economic impact" and would "not impose[] extreme or unreasonable financial liability on manufacturers" or "saddle [them] with an untenable financial burden." 2016 WL 3495191, at *__. As we've pointed out from the outset, innovator liability is just the opposite -- potentially imposing liability in perpetuity (even after an innovator leaves the market) upon innovator manufacturers for generic drugs' 80%+ of the market, although innovator manufacturers neither profit from generic sales nor can in any way control how generic manufacturers make or market their products. Thus, both the liability test and the underlying jurisprudential principles in NYCAL are utterly incompatible with New York ever adopting innovator liability. So, like Schrodinger's cat (Erwin Schrodinger was born on this date, back in 1887), non-manufacturer failure-to-warn liability is both alive (in asbestos) and dead (as to innovator liability) under New York law. Second, there was also a warning causation issue in NYCAL, about whether under New York law juries should be instructed with a pro- plaintiff presumption, recognized in some states in inadequate warning cases, that if a plaintiff had received some hypothetical "adequate" warning s/he would have heeded it. We've already discussed in depth the morass that courts trying to apply New York law had made on the heeding presumption question in the absence of any definitive guidance from the Court of Appeals. We're pleased to point out that some guidance has been provided in NYCAL. Although the court found that existence, or not, of a heeding presumption had been waived because the defendant "did not raise this argument" at trial, it did not stop there. 2016 WL 3495191, at *__. Rather, the Court strongly suggested that no heeding presumption existed in New York and that traditional causation principles applied in product liability warning cases: [Defendant's] current complaint about the court's instructions on the presumption is unpreserved. Of course, our rejection of [defendant's] claim on preservation grounds should not be taken as an acceptance or rejection of the trial court's heeding instructions on the merits, and regardless of the propriety of those instructions, trial courts must continue to ensure that their jury instructions honor the principle that the burden of proving proximate causation, which in a case like this one includes the burden of demonstrating that the injured party would have heeded warnings, falls squarely on plaintiffs. Id. at *__ (emphasis added). For this proposition the court cited Sosna v. American Home Products, 748 N.Y.S.2d 548 (N.Y.A.D. 2002). Sosna just happens to be -- as we discussed in our prior post -- the leading case in New York rejecting the existence of any heeding presumption. Thus, although the court's observation in NYCAL on the heeding presumption is dictum (due to waiver), that the court saw fit to go out of its way to reiterate that the burden of proving warning causation "falls squarely on plaintiffs" provides strong guidance to to courts going forward that no heeding presumption exists in New York. For these two reasons, unlike asbestos defendants, manufacturers of prescription medical products are better off in New York product liability litigation after the Court of Appeals decision in NYCAL. ********* 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. 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