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C L A S S A C T I O N R E P O R T E R
Friday, February 24, 2017, Vol. 19, No. 40
Headlines
A1 DIABETES: Faces Class Action Over TCPA Violations
AGRESERVES INC: Settlement in "Rivera" Gets Final Approval
AGRIA CORP: Disgruntled Shareholders Mull Class Action
ALCOBRA LTD: Lifshitz & Miller Files Securities Class Suit
ALTISOURCE PORTFOLIO: Agrees to Settle Ocwen Suit for $32MM
AMERICAN INT'L: Ex-Chair in Dispute with NY AG Over Fraud Case
ARS NATIONAL: 9th Cir. Rejects Magistrate's Settlement Approval
AUDIOEYE INC: May 8 Fairness Hearing on $1.52MM Settlement
AUSNET SERVICES: Settles Bushfire Class Action for A$5 Million
AUSTRALIA: Commissioner Wraps Up Speed Camera Evidence Collection
AUSTRALIA: Faces Class Action Over Immigrant Detention Policy
BANK OF AMERICA: Court Allows Pension Fund to Amend Complaint
BANK OF AMERICA: Plaintiff Appeals Dismissal of Kickback Suit
BEHRINGER HARVARD: Lodge & Spa Sale Class Action Ongoing
BOEHRINGER INGELHEIM: 2nd Cir. Reinstates Fax Ad Class Action
CAPITAL ONE: Faces Class Action Over Solicitation Calls
CHATTANOOGA, TN: May Face Title VII Class Action Lawsuit
CHINACAST EDUCATION: April 25 Lead Plaintiff Motion Deadline Set
CITIGROUP: Faces $5MM Penalties for Rand Rigging Violations
CLARITY SERVICES: Case Mngt. Conference Moved to March 24
CMRE FINANCIAL: Court Denies Summary Judgment in "Steward"
COLD SPRINGS: Scheduling Conference Continues on Mar. 16
CONAIR CORPORATION: Faces Suit Over Cuisinart Food Processors
CONWAY, KS: Police, Firefighters' Suit Can Move Forward
CUSHMAN & WAKEFIELD: Valdivieso Sues Over ERISA and COBRA Breach
DEJA VU: $6.5MM Strippers' Wage Settlement Gets Prelim. Court OK
DOWNTOWN, OH: Residents to Challenge Submetering Costs
EGALET CORP: Faces "Mineff" Securities Suit Over Share Price Drop
EPATIENTS.COM: Faces Suit Over Unsolicited Fax Advertisement
FACEBOOK INC: Judge Tosses Class Action Over Text Alerts
FLINT, MI: Systemic Racism Played Role in Water Crisis
FORD MOTOR: New Jersey Dealer Pioneer in Warranty Lawsuit
FORD SA: Kuga 1.6 Vehicle Fire Victims File Class Action
GARFIELD HEIGHTS, OH: Class Cert. in Noxious Odors Suit Upheld
GMRI INC: Calif. Judge Dismisses "Bluet-Harrison"
GMRI INC: Calif. Court Dismisses "Tyczynski"
HARMAN-MANAGEMENT: Court Enters Protective Order in "Larson"
HEWLETT-PACKARD: 9th Circuit Affirms Class Action Dismissal
HORIZON BLUE: Settles Data Breach Suit for $1.1 Million
KING DIGITAL: May 18 Class Action Settlement Fairness Hearing Set
MARKETSTAR CORP: Settlement in "Adams" Suit Gets Initial Approval
MARRIOTT INTERNATIONAL: Vasquez Sues Over ERISA and COBRA Breach
MCDONALD'S: Judge Allows Blind Man's Suit to Go Forward
MCDONALD'S: Settlement in "Ochoa" Gets Initial Approval
MEMPHIS, TN: Class Action Mulled Over City Hall Blacklist
MICROFIBRES: Former Workers May Get Half of Compensation Claim
MONSANTO: Responds to Class Action Over Dicamba Controversy
NAT'L FOOTBALL: Class Action Lawyers Seek $112MM in Fees
NATIONWIDE MUTUAL: Faces Class Action Over Leased Vehicles
NEINSTEIN & ASSOCIATES: Appeals Ruling in Contingency Fee Case
NEW MEXICO: State Settles Suit Over Back Pay
NEW YORK: Prosecutor Files Wheelchair Access Class Action
NEW YORK LIFE: Settles Excessive 401(k) Fees Suit for $3-Mil.
NORTHERN DYNASTY: Slams Pebble Mine Short Seller Report
NORTHSIDE VETERINARY: Bills for Treatment Not Provided, Suit Says
OKLAHOMA: Takes Steps to Implement Child Welfare Reform Plan
P.W. STEPHENS: Settlement in "Lopez" Gets Final OK
PHH CORP: Panel to Hear Case Over Illegal Kickbacks
POLY IMPLANT: Not Necessarily Liable for Faulty Breast Implants
RBS CITIZENS: Settlement in "Sanders" Gets Final Approval
REGENCY CENTERS: Settles Class Action Over Equity One Merger
REMINGTON ARMS: Awaits Decision on Defective Rifle Class Action
RIVER RUN: BIA Stay Lifted to Allow Class Action to Proceed
SALOV NORTH: Settlement in "Kumar" Has Preliminary Approval
SAMSUNG ELECTRONICS: Faces Complaints Over Recalled Washers
SIRIUS XM: Turtles Lose Case Over Rights to Oldies in New York
SOUTHERN XPOSURE: Seeks Dismissal of Dancers' Wage Class Action
ST. JOSEPH COUNTY, IN: South Bend Residents Mull Flood Suit
STERICYCLE: Judge Certifies Nationwide Overpricing Class Suit
T. ROWE: Faces Suit Over Self-Dealing in 401(K) Plan
TAKE-TWO INTERACTIVE: Court Dismisses BIPA Violation Class Action
TESORO CORP: Faces Class Action Over Merger with Western Refining
UNITED HEALTHCARE: Hep C Settlement Has Final Court Approval
UNITED STATES: Court Approves Pay Back to Gov't Employees
UNITED STATES: Supreme Court to Decide on Suit Over Travel Ban
UNITEDHEALTH GROUP: Pomerantz Law Firm Probes Securities Claims
VITAMIN SHOPPE: Falsely Advertised Hypericin Amount in Products
VOLKSWAGEN AG: Top Executive Accused of Telling Blatant Lies
WASHINGTON, DC: Released From Evans Class Action Consent Decree
WELLS FARGO: Settlement in Property Inspection Case Upheld
WESTCONSIN CREDIT: Court Denies Bid to Dismiss "Swenson"
WEST INTERACTIVE: Faces Class Action Over TCPA Violations
WHIRLPOOL CORP: Time to File Fee Application Moved to March 3
ZICO BEVERAGES: Reza Files Suit Over Misleading Coco Water Label
* Court Rules Against Liability Waivers in FCRA Background Check
* Delaware State Courts End "Disclosure-Only Settlements"
* DOL Wants Thrivent's Suit Against Fiduciary Rule Stayed
* Gorsuch Seen as Business-Friendly on Labor, Employment Laws
* House Committee Passes Bill to Amend Class Action Procedures
* IOLTAs Used to Fund Class Actions Against Gov't, Companies
* Manatt, Phelps & Phillips Discusses TCPA Class Action Rulings
* More Cy Pres Abuse Seen in California Class Action Litigation
* Two Recent Rulings Provide Clarity on Article III Standing
* Deepak Gupta's Law Firm Challenge Trump's Conflicts of Interest
Asbestos Litigation
ASBESTOS UPDATE: Beck/Arnley Wins Summary Judgment in NY Suit
ASBESTOS UPDATE: Bid for Leave to Appeal in "Sweberg" Junked
ASBESTOS UPDATE: Bid for Leave to Appeal in "North" Dismissed
ASBESTOS UPDATE: Gov't to Pay JPY176MM to Asbestos Victims
ASBESTOS UPDATE: Woman Gets Cancer from Husband's Clothes
ASBESTOS UPDATE: Lack of Asbestos Laws Puts Georgia at Risk
ASBESTOS UPDATE: Jury Reaches Defense Verdict for ITW Food
ASBESTOS UPDATE: Ariz. Court to Rule on Take-Home Liability
ASBESTOS UPDATE: Man Pleads Guilty to Asbestos-related Crime
ASBESTOS UPDATE: U.S. House Panel Approves Reform Bills
ASBESTOS UPDATE: Man Guilty for Failing Anyone About Asbestos
ASBESTOS UPDATE: Worker Dies After Asbestos Exposure
ASBESTOS UPDATE: Danziger & De Llano Upgrades USAEP Website
ASBESTOS UPDATE: Asbestos Removal Begins at Pillsbury Mills Plant
ASBESTOS UPDATE: Asbestos Found at Elyria Library
ASBESTOS UPDATE: Displaced Tenants Say Owners Knew of Asbestos
ASBESTOS UPDATE: Widow to Fight Tesco in Asbestos Claim
ASBESTOS UPDATE: Southport Families Battles Over Contamination
ASBESTOS UPDATE: NY Court Orders $22MM Verdict Set Aside
ASBESTOS UPDATE: In Extremis Docket Inclusion Ruling Reversed
ASBESTOS UPDATE: La. Court Denies Bid to Dismiss "Murphy"
ASBESTOS UPDATE: Summary Judgment Recommended for 4 Defendants
ASBESTOS UPDATE: Congress Committee Passes FACT Act
ASBESTOS UPDATE: Korean Gov't Tightens Asbestos Management Rules
ASBESTOS UPDATE: Pasademan Man Awarded $14.5MM in Asbestos Case
ASBESTOS UPDATE: Atty Concerned Over Asbestos in Schools
ASBESTOS UPDATE: Union Pacific Has $8MM Liability at Dec. 31
ASBESTOS UPDATE: Haynes Still Faces Asbestos Suits at Dec. 31
ASBESTOS UPDATE: GMS Units Face Asbestos Claims at Feb. 3
ASBESTOS UPDATE: Graham Corp. Still Faces Suits at Dec. 31
*********
A1 DIABETES: Faces Class Action Over TCPA Violations
----------------------------------------------------
Wadi Reformado at Northern California record reports that a Santa
Ana man has filed a class action over allegations an online
marketing company unlawfully contacted him for solicitation
purposes.
Frank Gutierrez filed a complaint on behalf of all others
similarly situated on Feb. 10 in the U.S. District Court for the
Central District of California against A1 Diabetes & Medical
Supply Inc. and Does 1 through 10 alleging violation of the
Telephone Consumer Protection Act.
According to the complaint, the plaintiff alleges that beginning
in July 2015, he suffered damages from receiving several unwanted
calls from the defendant without his consent. The plaintiff holds
A1 Diabetes & Medical Supply Inc. and Does 1 through 10
responsible because the defendants allegedly contacted the
plaintiff despite his number being registered on the National Do-
Not-Call Registry.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages, $1,500 in treble damages, and any other relief as this
court deems just. He is represented by Todd M. Friedman --
tfriedman@toddflaw.com --, Adrian R. Bacon -- abacon@toddflaw.com
-- and Meghan E. George -- mgeorge@toddflaw.com -- of Law Offices
of Todd M. Friedman PC in Woodland Hills.
U.S. District Court for the Central District of California Case
number 8:17-cv-00240-JVS-KES
AGRESERVES INC: Settlement in "Rivera" Gets Final Approval
----------------------------------------------------------
In the case, LEONEL ROJAS RIVERA, individually and behalf of all
others similarly situated, Plaintiff, v. AGRESERVES, INC., et al.,
Defendant, Case No. 1:15-cv-00613 - JLT (E.D. Cal.), Magistrate
Judge Jennifer L. Thurston granted the Plaintiff's Motion for
Final Approval of the Settlement Agreement.
For purposes of the Settlement, the Settlement Class is composed
of all seasonal employees of Defendant who worked in South Valley
Farms harvesting operations during the time period between March
10, 2011 and December 31, 2015 (Harvesters). The first Sub Class
of the Settlement is composed of all Harvesters who did not
execute a release agreement with Defendant relating to the claims
made in the Action, while the second subclass is composed of all
Harvesters who did execute a release agreement with the Defendant
relating to the claims made in the Action.
The Court granted the Plaintiff's request for a class
representative incentive payment in the amount of $3,000.00, while
the Class Counsel's motion for attorneys' fees is granted in the
amount of $115,000.00, which is 25% of the gross settlement
amount.
Further, the Court granted the:
(a) Class Counsel's request for costs in the amount of
US$14,521.51;
(b) request for fees for the Settlement Administrator Dahl
Administration in the amount of $7,912.00; and
(c) California Labor Code Private Attorney General Act payment
to the State of California in the amount of $7,500;
Moreover, the Court noted that the action is dismissed with
prejudice, with each side to bear its own fees costs and except as
otherwise provided by the Settlement and ordered by the Court.
The copy of the Court's Order dated February 1, 2017 is available
at https://goo.gl/2zFvnl from Leagle.com.
Leonel Rojas Rivera, Plaintiff, represented by Gregory N. Karasik
-- greg@karasiklawfirm.com -- Karasik Law Firm.
AgReserves, Inc., Defendant, represented by Richard D. Marca --
Richard.Marca@varnerbrandt.com -- Varner & Brandt, LLP, Jamie E.
Wrage -- jamie.wrage@varnerbrandt.com -- Varner & Brandt, LLP &
Jeff T. Olsen -- Jeff.Olsen@jacksonlewis.com -- Jackson Lewis P.C.
AGRIA CORP: Disgruntled Shareholders Mull Class Action
------------------------------------------------------
NZFarmer.co.nz reports that disgruntled shareholders of Chinese
company Agria Corp, which is the majority owner of New Zealand's
PGG Wrightson, are threatening a class action following Agria's
delisting from the New York stock exchange (NYSE).
At the same time Agria chief executive Alan Lai has floated the
possibility of Agria becoming a private company or relisting
elsewhere.
Agria indirectly holds 50.22 per cent of PGW through Agria
(Singapore). One of the largest agricultural services companies in
New Zealand, with an annual turnover of $1.3 billion and 2200
staff, PGW is Agria's major asset.
In November last year the NYSE allegedly uncovered evidence a "top
executive and other intermediaries" artificially inflated the
company's stock price.
NYSE said it had evidence the top executive and intermediaries
engaged in trading intended to artificially inflate Agria's stock
price, "including to improperly avoid having the company delisted
for failing to comply with NYSE's continued listing standards
requiring companies to maintain an average stock price of at least
$1 per share over a consecutive 30 day trading period".
According to the NYSE, Agria also provided incomplete, misleading,
or false information in connection with investigations related to
these issues.
Initially Lai said Agria would fight the delisting, but in a
statement to the NZX he said:
"The company's board of directors is in the process of evaluating
the merits and costs of the alternatives for trading of its
shares. The alternatives span a wide range, from becoming a
private company to relisting on other trading venues in the US or
other jurisdictions," he said.
PGW's independent director Bruce Irvine said he and the other two
New Zealand directors were aware of the events.
"I'm not privy to Agria's plans. We have a sub-committee of the
board. Our job is to look at what Agria is telling the world and
decide whether it has implications for the company and
shareholders of PGW."
"When I and legal counsel read that the other day we decided there
wasn't anything in there that we needed to disclose. There's no
detail about what [Agria's] options are so it added nothing,"
Irvine said.
Managing director of German investment firm Convergenta Invest, Dr
Ralph Becker, said he had made several recommendations to invest
in Agria "and now my own investment, and the investments of many
clients and friends are at risk".
He said he was planning to participate in the class action, run by
US company The Rosen Law Firm but it "could take years and outcome
is always the same".
"The lawyers will fight for a settlement so that they can bill
their $700 an hour, but for investors there will be only a few
cents."
Another investor, Oscar Zhou, said he knew of 10 investors willing
to join the class action.
Lai said, as the largest shareholder of Agria, his interests and
"the interests of our board, management, and shareholders are
tightly aligned."
"Because the next steps will impact shareholders for some time, we
are being deliberative and thorough in our decision-making
process. I want to assure our shareholders that our highest
priority is serving the best interests of the owners of the
company."
PGW posted an after-tax profit of $39.6 million for the 2015-16
year. It will announce its six-month results.
ALCOBRA LTD: Lifshitz & Miller Files Securities Class Suit
----------------------------------------------------------
Lifshitz & Miller, a securities class action law firm focused on
representing shareholders nationwide, disclosed that on February
17, 2017, filed a securities class action lawsuit on behalf of
shareholders who purchased shares of Alcobra, Ltd. between August
13, 2015 and January 17, 2016 (the "Class Period"). The lawsuit
was filed in the U.S. District Court for the Southern District of
New York and alleges violations of the Securities Exchange Act of
1934.
A copy of the complaint is available from the Court or from
Lifshitz & Miller. If you are an Alcobra investor, and would like
additional information about our investigation and complaint,
please complete the Information Request Form or contact Joshua
Lifshitz, Esq. by telephone at (516) 493-9780 or e-mail at
info@jlclasslaw.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT
THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
The complaint alleges that defendants caused the Company to issue
materially misleading statements and/or omit material information
concerning the Company's second Phase III study for MDX in adults
with attention deficit hyperactivity disorder ("ADHD"), the "MDX
Evaluation in Adults -- Study of Response and Efficacy," or the
"MEASURE" study. The complaint alleges these misstatements and
omissions by Alcobra violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
Investors have 60 days from February 17, 2017, to file a motion,
with the court, for appointment as a lead plaintiff in this
lawsuit.
Lifshitz & Miller has extensive experience representing investors
in the prosecution of securities class actions and shareholder
derivative litigation in state and federal courts across the
country.
Contact:
Joshua M. Lifshitz, Esq.
Lifshitz & Miller LLP
Phone: 516-493-9780
Facsimile: 516-280-7376
E-mail: info@jlclasslaw.com
ALTISOURCE PORTFOLIO: Agrees to Settle Ocwen Suit for $32MM
-----------------------------------------------------------
Ben Lane at Housingwire reports that when Altisource Portfolio
Solutions filed its Form 10-K yearly filing with the U.S.
Securities and Exchange Commission, the company revealed that the
Consumer Financial Protection Bureau is looking into the company's
relationship with Ocwen Financial.
But that wasn't the only Ocwen-related revelation in Altisource's
SEC filing.
The company also disclosed that it recently reached a $32 million
settlement in a class action lawsuit brought by Altisource
investors who claimed financial harm after Altisource's stock
plummeted after the New York Department of Financial Services
began investigating the company's relationship with Ocwen in early
2014.
The NYDFS investigation covered Ocwen's relationship with several
of its affiliated companies, all of which were chaired by Ocwen's
founder, William Erbey.
The investigation led to the NYDFS fining Ocwen $150 million and
forcing Erbey to resign from his position as chairman of Ocwen and
his position as chairman of several Ocwen affiliates, Altisource
Portfolio Solutions, Altisource Residential Corporation,
Altisource Asset Management Corporation, and Home Loan Servicing
Solutions.
Before the investigation became public knowledge, Altisource
Portfolio Solutions peaked at more than $170 per share in December
2013. Then, over the course of the investigation, the company's
stock dropped precipitously, falling to under $46 per share one
year later
On Dec. 22, 2014, the day that the NYDFS fine was announced,
Altisource's stock opened trading at $45.91 and closed at $31.49.
But even before the fine was announced, causing Altisource's stock
to drop by $16 in one day, a series of Altisource investors sued
the company for causing them financial harm.
The original class action lawsuit was filed in September 2014 by
the West Palm Beach Firefighters' Pension Fund. Then, in December
2014, the class action was certified, with the International Union
of Painters and Allied Trades District Council 35 Pension and
Annuity Funds acting as the lead plaintiffs.
Now, after more than two years of fighting in court, and four
separate complaints being filed against Altisource by the
investors, the two sides are settling to the tune of $32 million.
The settlement was first reported by Law360.
The final complaint in the suit was filed on Dec. 28, 2016. That
final complaint claimed that Altisource repeatedly misrepresented
both its relationship with Ocwen and Erbey's involvement in the
various companies, all of which contributed to Altisource's stock
dropping and the investors losing quite a bit of money.
Similar claims were at the heart of the NYDFS fine.
For example, according to the NYDFS, Erbey did not recuse himself
from the approval process of transactions between the related
companies.
The investors echoed that charge, stating in their final
complaint:
To assure investors and regulators that the two companies did not
engage in self-dealing transactions that would harm Ocwen's
borrowers, both Ocwen and the Altisource Defendants publicly
represented to Altisource investors that Defendants managed the
conflicts of interest posed by Erbey's leadership role at and
financial interest in the related companies. Specifically,
Altisource, Ocwen and Erbey represented that active steps were
taken to manage Erbey's conflicts, including through "oversight"
by the "independent" members of each company's Board of Directors
-- a representation that assured investors that Erbey was not
engaged in devising, negotiating and approving the terms of
transactions between the related companies.
Moreover, Defendants and Ocwen explicitly stated that Erbey
recused himself from transactions involving the two companies to
ensure the absence of conflicts and self-dealing. All of these
representations embodied an effective commitment to investors that
Defendants were protecting Altisource investors by prohibiting
Erbey's involvement in transactions between companies where he had
a financial stake in both companies.
In reality -- and in stark contrast to Defendants' Class Period
statements to Altisource investors -- Altisource and Ocwen, at
Erbey's direction, engaged in conflicted related party
transactions designed to improperly funnel money from innocent
homeowners to Altisource and Erbey. Every aspect of this fraud has
now been admitted by Ocwen. When the truth of Defendants' Class
Period statements was finally revealed, Altisource's common stock
had lost a total of over $1 billion in market capitalization.
Despite Altisource asking the judge to dismiss parts of that final
complaint, the two sides agreed to a preliminary settlement.
And late last week, the judge approved the preliminary terms of
the $32 million settlement. The settlement covers investors who
owned Altisource's stock between April 25, 2013 and Dec. 21, 2014.
The two sides will meet in court again on May 30, 2017, to approve
the settlement. If that happens, the case will be dismissed with
prejudice.
According to Altisource, it will pay a total of $32 million in
cash, a portion of which will be funded by insurance proceeds, to
a settlement fund.
"The proposed settlement provides that Altisource Portfolio
Solutions S.A. and the officer and director defendants deny all
claims of wrongdoing or liability," Altisource stated in its SEC
filing.
HousingWire contacted Altisource for an additional comment on the
settlement and this article will be updated should the company
respond.
AMERICAN INT'L: Ex-Chair in Dispute with NY AG Over Fraud Case
--------------------------------------------------------------
Andrew Denney, writing for New York Law Journal, reports that
following a settlement between the former American International
Group Inc. chairman Maurice "Hank" Greenberg and the New York
Attorney General's Office in the fraud case against Mr. Greenberg,
the parties are now fighting in the court of public opinion over
who was the real winner in the case.
Mr. Greenberg and Attorney General Eric Schneiderman announced the
$9.9 million settlement agreement on Feb. 10 in the civil
securities fraud case against Greenberg that was originally
brought in 2005 by then-Attorney General Eliot Spitzer.
Mr. Greenberg and Howard Smith, American International Group
Inc.'s former chief financial adviser, were accused of
orchestrating two sham transactions in the late 1990s and early
2000s -- known as the GenRe and Capco transactions -- that were
intended to make the company appear to be in a stronger financial
position to investors.
As part of the settlement agreement, Mr. Greenberg agreed to pay
$9 million he received in performance bonuses in the early 2000s
and Smith agreed to pay $900,000, which he also received in
performance bonuses.
Prosecutors had also unsuccessfully pushed for the settlement to
include a provision banning Mr. Greenberg and Smith from the
securities industry or from acting as officer or director of a
public company.
But the settlement in People v. Greenberg, 401720/05, was no
armistice in the war of words between Mr. Schneiderman's office
and the defendants.
On Feb. 10 afternoon, Mr. Schneiderman issued a news release
stating the agreement "settles the indisputable fact" that
Greenberg orchestrated two transactions that "fundamentally
misrepresented AIG's finances."
"After over a decade of delays, deflections and denials by Mr.
Greenberg, we are pleased that Mr. Greenberg has finally admitted
to his role in these fraudulent transactions," Mr. Schneiderman
said.
David Boies, Mr. Greenberg's attorney and a partner at Boies
Schiller Flexner, struck back at Mr. Schneiderman with a statement
calling the news release "false and misleading" and noted that the
government originally sought $5 billion in damages in the case.
Mr. Boies also said in his statement that his client relied on
AIG's corps of lawyers and accountants to determine the proper
accounting for the company's transactions.
On Feb. 13, Mr. Greenberg called a news conference at C.V. Starr &
Co., a financial services firm that Mr. Greenberg chairs and told
reporters that Mr. Schneiderman issued the statement regarding the
settlement because he was embarrassed by the outcome of a case
that the government aggressively prosecuted for 12 years and that
Mr. Schneiderman owes him an apology.
When asked if he felt vindication from the settlement,
Mr. Greenberg responded: "Not quite."
"If the attorney general hadn't issued that statement the next
day, I might have," Mr. Greenberg said.
Mr. Boies, who took part in the conference via speakerphone,
called the statement "unfortunate" and that it was created
controversy that he and his client were "forced to respond to."
"The agreed statement makes clear that there was no fraud,"
Mr. Boies said. "The word fraud was not even mentioned."
In a statement issued following the conference, Eric Soufer, a
spokesman for Mr. Schneiderman's office, said Mr. Greenberg's
admission shows that he "initiated, participated in, and approved
two transactions that fundamentally misrepresented AIG's financial
performance to shareholders."
"No number of press conferences or TV interviews by Mr. Greenberg
or Mr. Boies is going to change that fact," Mr. Soufer said.
Mr. Greenberg also took aim on Feb. 13 at the Martin Act, or the
"Blue Sky Law," which gives New York's attorney general expansive
authority to prosecute securities fraud and does not require the
state to prove an actual purchase or sale or damages from a
fraudulent transaction.
Mr. Spitzer sued AIG and Greenberg under the Martin Act, which
Greenberg said is out-of-sync with federal law and that it makes
companies fearful of doing business in New York.
"New York is the only state in the U.S. that can accuse an
individual of fraud without having to prove intent," Greenberg
said in a prepared statement.
Last year, the U.S. Supreme Court denied certiorari for
Greenberg's appeal of a decision by the New York Court of Appeals
that the fraud case could move forward despite his argument that
the Martin Act should be federally pre-empted.
Mr. Greenberg also said that he plans to continue to pursue
defamation claims against Spitzer, who was elected governor of New
York following his tenure as attorney general but served for a
little more than a year before resigning amid a scandal regarding
his involvement with prostitutes.
In 2014, a Putnam County court preserved Greenberg's claim that
Spitzer defamed him by publicly stating he was guilty of
fraudulent accounting practices, that the U.S. Department of
Justice had charged him with wrongdoing and that he had neglected
his duties as a member of the New York Stock Exchange board of
directors.
Mr. Spitzer appealed the decision in Greenberg v. Spitzer,
1436/13, to the Appellate Division, Second Department, which heard
oral arguments in the case in March but has not yet issued its
decision.
ARS NATIONAL: 9th Cir. Rejects Magistrate's Settlement Approval
---------------------------------------------------------------
Nicholas Gueguen at Legal Newsline reports that a federal appeals
court has ruled a magistrate judge abused her discretion to
approve a class action settlement by giving the green light to an
agreement that required members to give up their rights to seek
damages in exchange for injunctive relief that had no value.
The U.S. Court of Appeals for the Ninth Circuit on Jan. 25 found
U.S. Magistrate Judge Karen Crawford, of the Southern District of
California, should not have approved a Fair Debt Collection
Practices Act settlement with ARS National Services in the case
Koby v. Helmuth.
Carlton Fields attorney Gary Pappas --
gpappas@carltonfields.com -- who wrote a blog post on the case,
told Legal Newsline, "The Ninth Circuit held that she had the
authority to certify the class under the circumstances, but her
exercise of that authority was an abuse of discretion based on the
evidence, or lack thereof, in the record," Pappas said.
According to Ninth Circuit Judge Paul Watford's opinion, the
original case came about in April 2009 when Michael Koby, Michael
Simmons and Jonathan Supler sued the debt collection agency ARS
National Services Inc., alleging that ARS violated sections of the
Fair Debt Collection Practices Act when the agency's callers
failed to notify the plaintiffs via voicemail that they worked for
ARS, that ARS is a debt collection agency, and that the callers
were calling to collect a debt.
According to Watford's opinion, Koby, Simmons and Supler sued on
behalf of everyone in the United States who received an ARS
voicemail in which they were not given that information, which
made the class include 4 million people around the U.S.
According to Watford's opinion, Koby, Simmons and Supler wanted
the most they could get in statutory damages, but Watford
explained that under the Act, that amount changes depending on the
action brought forward.
He wrote as part of his opinion that when an individual sues under
the Act, that individual can receive actual damages and then
statutory damages of a maximum of $1,000. Watford also explained
in his opinion that when people pursue a class action lawsuit, the
damages and statutory damages for named plaintiffs are the same as
an individual lawsuit, but the rest of the class is limited to the
lesser amount between $500,000 and 1 percent of the net worth of
the defendant.
In his opinion, Watford explained that ARS' motion to dismiss the
case on the pleadings got rejected by a district court, and that
the plaintiffs and defendant began to discuss settlement. While it
discussed settlement, ARS decided on its own to implement a
standard for voicemail messages by which its callers would address
the three areas that the plaintiffs alleged in the class-action
lawsuit that they failed to address, and both parties agreed that
the company now complied with the Act.
According to Watford's opinion, a magistrate judge helped the
parties discuss settlement for more than a year, and the
plaintiffs and defendant allowed this magistrate judge the
authority to rule over all the proceedings the case would require
from then on. In January 2013, the parties agreed to a deal
following an all-day conference that the magistrate judge made
mandatory for settlement to happen.
In this deal, according to Watford's opinion, ARS agreed to pay
Koby, Simmons and Supler each $1,000, and it was decided that none
of them had suffered actual damages. The 4 million other class
members, which included people that received calls in which ARS
failed to notify them of those three pieces of information alleged
by the class action lawsuit between April 2008 and August 2011,
were not going to receive any compensation.
The benefit they would receive from the deal would be that ARS
would be required to use the new voicemail standard the company
implemented of its own doing for two more years following the deal
in exchange for giving up their rights to go after ARS in a class
action lawsuit for damages.
Watford explained in the opinion that ARS told the magistrate
judge its net worth was $3.5 million, allowing the 4 million other
class members to collect as a group only up to $35,000. Watford
said in his opinion that there was no clear evidence that the
magistrate judge proved that $3.5 million to be true. According to
his opinion, because it would not be possible to distribute out
$35,000 fairly to all other class members, ARS agreed to send cy
pres award in that amount to a charity in San Diego.
Watford outlined in his opinion that Bernadette Helmuth was
initially part of the class, and that she filed an objection to
the settlement to argue that it was unfair for the class to give
up their rights to seek damages in a class action lawsuit while
receiving nothing in return. He also outlined that Helmuth is the
named plaintiff in a class action lawsuit with a smaller class
against ARS that is pending in the Southern District of Florida.
Watford explained in his opinion that the magistrate judge held a
fairness hearing for Helmuth's counsel, ARS' counsel and class
counsel to argue and then proceeded to rule that it was a fair,
reasonable, and adequate settlement. Watford said in his opinion
that because Helmuth objected in the district court, she could
appeal the court's ruling.
Pappas said that decisions on classaction lawsuits are not
normally left up to magistrate judges.
"This ruling, combined with many other previous opinions in
similar cases, will assist magistrate judges and Article III
judges [in] evaluat[ing] future motions by the parties to approve
a settlement class," Pappas said.
AUDIOEYE INC: May 8 Fairness Hearing on $1.52MM Settlement
----------------------------------------------------------
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
----------------------------------------------------X
IN RE AUDIOEYE, INC. SECURITIES LITIGATION
----------------------------------------------------X
No. 4:15-cv-00163-DCB
CLASS ACTION
SUMMARY NOTICE
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED ANY COMMON
STOCK OF AUDIOEYE, INC. ("AUDIOEYE") DURING THE PERIOD FROM MAY
14, 2014 THROUGH AND INCLUDING APRIL 1, 2015
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the District of Arizona (the "District Court")
and Rule 23 of the Federal Rules of Civil Procedure, that a
hearing will be held at 1:30 P.M. on May 8, 2017 before the
Honorable David C. Bury, United States District Court Judge, at
the Evo A. DeConcini U.S. Courthouse, 405 West Congress Street,
Suite 6170, Tucson, AZ 85701, for the purpose of determining: (1)
whether the proposed settlement of the Litigation for the
principal amount of $1,525,000, plus accrued interest, should be
approved by the District Court as fair, reasonable, and adequate;
(2) whether the Order and Final Judgment should be entered by the
District Court dismissing the Litigation with prejudice; (3)
whether the proposed Plan of Allocation is fair, reasonable, and
adequate and, therefore, should be approved; and (4) whether the
Attorneys' Fee and Expense application should be approved. In
connection with the Attorneys' Fee and Expense application, Lead
Plaintiffs' Counsel will request attorneys' fees of up to one
third of the Settlement Fund, plus interest, and expenses
(exclusive of administration costs) not to exceed $75,000.
If you purchased AudioEye common stock during the period from May
14, 2014 through April 1, 2015, inclusive, your rights may be
affected by the settlement of the Litigation. To receive a
detailed Notice of Pendency and Proposed Settlement of Class
Action (the "Notice") and a copy of the Claim Form, you may obtain
copies by writing to In re AudioEye, Inc. Securities Litigation,
c/o JND Class Action Administration, P.O. Box 6847, Broomfield, CO
80021, or by calling toll-free 1-844-357-6871, or on the internet
at www.audioeyesecuritieslitigation.com, or from Lead Plaintiffs'
Counsel's website at www.kmllp.com. If you are a Settlement Class
Member, in order to share in the distribution of the Net
Settlement Fund, you must submit a Claim Form, postmarked on or
before April 24, 2017, establishing that you are entitled to
recovery.
If you desire to be excluded from the Settlement Class, you must
submit a request for exclusion received no later than April 7,
2017, in the manner and form explained in the detailed Notice
referred to above. All members of the Settlement Class who have
not timely and validly requested exclusion from the Settlement
Class will be bound by any judgment entered in the Litigation
pursuant to the Stipulation of Settlement dated as of December 13,
2016. If you properly and timely exclude yourself from the
Settlement Class, you will not be bound by any judgments or orders
entered by the Court in the Litigation and you will not be
eligible to share in the proceeds of the Settlement.
Any objections to any aspect of the proposed Settlement, the
proposed Plan of Allocation or Lead Plaintiffs' Counsel's
application for an award of attorneys' fees and reimbursement of
expenses, must be filed with the Court and delivered to designated
representative Lead Plaintiffs' Counsel and counsel for the
Defendants such that they are received no later than April 17,
2017, in accordance with the instructions set forth in the Notice.
PLEASE DO NOT CONTACT THE DISTRICT COURT OR THE CLERK'S OFFICE
REGARDING THIS NOTICE. If you have any questions about the
Settlement, you may contact Lead Plaintiffs' Counsel:
Ira Press, Esq.
Mark Strauss, Esq.
KIRBY McINERNEY LLP
825 Third Avenue, 16th
New York, NY 10022
Tel: (212) 371-6600
AUSNET SERVICES: Settles Bushfire Class Action for A$5 Million
--------------------------------------------------------------
Claire Huang, writing for The Business Times, reports that power
company AusNet Services on Feb. 21 said that it has agreed to a
settlement of a class action relating to the 2014 Mickleham Road
bushfire for a total of A$5 million (S$5.4 million).
The settlement, which is subject to court approval, amounts to a
total of A$16 million.
Besides AusNet's A$5 million, the Home City Council will bear A$6
million and Homewood Consulting the remaining A$5 million.
The settlement sum is inclusive of legal costs and interest.
In a filing to the Singapore Exchange, AusNet maintains that there
was no negligence on its part and that the settlement is without
admission of liability by the group or any other party.
AusNet's liability insurers will pay all of AusNet's contribution
and any outstanding legal costs.
AUSTRALIA: Commissioner Wraps Up Speed Camera Evidence Collection
-----------------------------------------------------------------
Stephen Taylor, writing for Bayside News, reports that road safety
camera commissioner John Voyage is puzzled at the lack of
"objective evidence" presented to him by motorists blaming their
speeding fines on faulty Peninsula Link cameras.
Mr. Voyage on Feb. 20 wrapped up the evidence-collecting part of
an investigation which he wants to finalise in six-to-eight weeks.
His report will then go to Police Minister Lisa Neville.
Controversy has raged over the costly speed readings for months,
with social media besieged by complaints that the fixed cameras
were just inaccurate revenue raisers. Those at Eramosa,
Cranbourne and Loders roads came in for special criticism.
Angry drivers formed the Peninsula Link 108 group to complain
about their fines, with most clocked at a contentious 108kph. They
disputed the readings, with most saying they were driving on
cruise control set at the 100kph speed limit.
There is even talk of a class action to recoup fines and lost
demerit points.
Mr Voyage's role is to independently monitor the road safety
camera system, and to ensure all fixed and mobile road safety
cameras are operating accurately and reliably.
So, when he began an investigation into the accuracy of the
Peninsula Link cameras he could have expected an avalanche of
evidence backing up the drivers' claims.
"For about four months I have been inviting members of the public
to provide me with objective evidence," he said.
"I have repeatedly [called for] dash-cam footage or GPS data of
trips or FineMate app tracking, or alleged infringements by
drivers of trucks with speed limiters."
But, as of Feb. 17, he had received virtually nothing. "I have
received one person's edited data log and nothing else," he said.
"I am surprised that the public consultation process has not
revealed any other objective evidence."
AUSTRALIA: Faces Class Action Over Immigrant Detention Policy
-------------------------------------------------------------
Josh Butler, writing for Huffington Post, reports that Slater and
Gordon says its case will be "the largest trial concerning
immigration detention in Australian legal history", pursuing the
government for compensation for the men over physical and
psychological injuries as well as false imprisonment as part of
Australia's hardline immigration detention policy.
The lead plaintiff on the case is an Iranian man who spent several
years at the Manus facility, in Papua New Guinea, but includes
1,905 men who have been detained on Manus since 2012. The law
firm released details around the case, due to begin in May, which
it says will be the first of its kind to be heard in an Australian
court.
"This is one of the most factually and logistically complex class
actions in recent times," said Slater and Gordon practice group
leader Rory Walsh.
"It has been building for two and a half years now and will go to
trial after the six parties have considered more than 200,000
discovered documents, 104 witness outlines and 17 expert reports.
This case will be the largest and most forensic public examination
of the events and conditions at the Manus Island centre and
reflects the unquestionable importance of access to justice in the
Australian legal system."
Slater and Gordon said they were challenging the Commonwealth
government, security contractor G4S and service provider
Broadspectrum, as well as "two third parties" in medical services
provider International Health & Medical Services and security
provider Wilson Security. The case commenced in December 2014,
with the law firm pursuing compensation for injuries, with a false
imprisonment claim added last year after the Papua New Guinea
Supreme Court ruled that detention on Manus was in breach of the
country's constitution.
"One of the central disputes of this action is whether the
Commonwealth is in effective control of the Manus Island detention
centre and therefore owes a duty of care to protect the people
being held there from foreseeable harm," Mr. Walsh said.
"This case addresses systemic issues that have been affecting
detainees in relation to the provision of medical services,
shelter and accommodation, food, water and security. The action
will also determine whether the detention of asylum seekers at the
centre amounted to false imprisonment, following the PNG Supreme
Court's decision last year that the operation of the centre was
not permitted under the country's Constitution."
The case is due to start on May 1, and run for three to six
months. The case will initially determine whether the detainees
have a claim to compensation and, if so, the specific amount of
compensation will be determined at a later date. Mr. Walsh said
the case would help shed light on Australia's secretive
immigration detention regime.
"The extraordinary secrecy surrounding the Manus Island detention
centre has meant that, for too long, the detainees' experiences
have been a case of 'out of sight, out of mind'," he said.
"The remote location of the centre, the difficulties involved in
media access and extensive restrictions on workers speaking out
publicly have all significantly complicated the legal journey. The
group members in this case have had to endure an extremely
difficult burden for an extraordinary length of time but we are
confident that, come May 2017, their stories will be heard in way
that, so far, has not been possible."
BANK OF AMERICA: Court Allows Pension Fund to Amend Complaint
-------------------------------------------------------------
In the case, ALASKA ELECTRICAL PENSION FUND, et al., Plaintiffs,
v. BANK OF AMERICA CORPORATION, et al., Defendants, No. 14-CV-7126
(JMF), (S.D. N.Y.), District Judge Jesse M. Furman granted the
Plaintiff's motion to file an Amended Complaint.
Based on the case, the Defendant, composed of some of the world's
largest banks, illegally manipulated the U.S. Dollar ISDAfix, a
benchmark interest rate incorporated into a broad range of
financial derivatives.
The Court noted that one of the housekeeping issue remains. The
Court temporarily granted the request of the Defendants seeking a
leave to file several exhibits under seal. The Defendants also
requested that, if the Plaintiffs' motion to amend is granted, the
names of the individual employees referenced in the Amended
Complaint be either redacted or replaced by pseudonyms.
The Court ordered the Plaintiffs to file their Amended Complaint -
- redacted in accordance with Defendants' request -- within three
days of the Memorandum Opinion and Order dated February 1, 2017.
A copy of the Court's Order is available at https://goo.gl/O67TUr
from Leagle.com.
Alaska Electrical Pension Fund, Plaintiff, represented by
Christopher M. Burke, Scott + Scott, L.L.P..
Alaska Electrical Pension Fund, et al., Plaintiffs, represented by
Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Quinn
Emanuel -- danielcunningham@quinnemanuel.com -- Daniel Paul
Cunningham, Quinn Emanuel, David W. Mitchell -- davidm@rgrdlaw.com
-- Robbins Geller Rudman & Dowd LLP, pro hac vice, Marc Laurence
Greenwald -- marcgreenwald@quinnemanuel.com -- Quinn Emanuel
Urquhart & Sullivan LLP, Patrick Joseph Coughlin --
patc@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Stanley D.
Bernstein -- bernstein@bernlieb.com -- Bernstein Liebhard, LLP,
Steig Olson -- steigolson@quinnemanuel.com -- Quinn Emanuel,
Sylvia Sokol, Scott + Scott, L.L.P., Brian O. O'Mara --
bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac
vice, Christopher M. Burke -- cburke@scott-scott.com -- Scott,
LLP, Jeremy Daniel Andersen, Quinn, Emanuel, Urquhart, Oliver &
Hedges, LLP, pro hac vice, Jonathan Bacon Oblak --
jonoblak@quinnemanuel.com -- Quinn Emanuel, Kristen M. Anderson,
Scott + Scott, L.L.P., pro hac vice, Randi Dawn Bandman --
randib@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Steven M.
Jodlowski, Robbins Geller Rudman & Dowd LLP & Thomas Kay Boardman
-- tboardman@scott-scott.com -- Scott + Scott, L.L.P..
Bank Of America Corporation, Defendant, represented by Adam Selim
Hakki -- ahakki@shearman.com -- Shearman & Sterling LLP & Richard
Franklin Schwed -- rschwed@shearman.com -- Shearman & Sterling
LLP.
Barclays Bank PLC, Defendant, represented by Alexander John
Willscher -- willschera@sullcrom.com -- Sullivan & Cromwell, LLP,
Andrew Zenner Michaelson, Boies, Schiller & Flexner, LLP, Benjamin
Robert Walker -- walkerb@sullcrom.com -- Sullivan & Cromwell, LLP,
David Harold Braff -- braffd@sullcrom.com -- Sullivan and
Cromwell, LLP, Jeffrey T. Scott -- scottj@sullcrom.com -- Sullivan
and Cromwell, LLP, Jonathan David Schiller -- jschiller@bsfllp.com
-- Boies, Schiller & Flexner LLP, Matthew Joseph Porpora --
porporam@sullcrom.com -- Sullivan & Cromwell, LLP & Matthew
Alexander Schwartz -- schwartzmatthew@sullcrom.com -- Sullivan &
Cromwell, LLP.
BNP Paribas SA, Defendant, represented by Alejandro Hari Cruz --
acruz@pbwt.com -- Patterson, Belknap, Webb & Tyler LLP, Joshua
Aaron Goldberg, Patterson, Belknap, Webb & Tyler LLP, Amy Neda
Vegari, Patterson, Belknap, Webb & Tyler LLP & William Francis
Cavanaugh, Jr. -- wfcavanaugh@pbwt.com -- Patterson, Belknap, Webb
& Tyler LLP.
CitiGroup Inc., Defendant, represented by Alan M. Wiseman --
awiseman@cov.com -- Covington & Burling, L.L.P., pro hac vice,
Andrew D. Lazerow -- alazerow@cov.com -- Covington & Burling,
L.L.P., pro hac vice, Andrew Arthur Ruffino -- aruffino@cov.com --
Covington & Burling LLP & Jamie A. Heine -- jheine@cov.com --
Covington & Burling, L.L.P..
Deutsche Bank AG, Defendant, represented by James L. Brochin --
jbrochin@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison
LLP, Moses Silverman -- msilverman@paulweiss.com -- Paul, Weiss,
Rifkind, Wharton & Garrison LLP & Aaron Sean Delaney --
adelaney@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison
LLP, Gregory Thomas Casamento -- gcasamento@lockelord.com -- Locke
Lord LLP & Roger Brian Cowie, Locke, Liddell & Sapp, L.L.P..
Royal Bank of Scotland PLC, Defendant, represented by Jay B.
Kasner -- jay.kasner@skadden.com -- Skadden, Arps, Slate, Meagher
& Flom LLP , Paul Madison Eckles -- paul.eckles@skadden.com --
Skadden, Arps, Slate, Meagher & Flom LLP , Shepard Goldfein --
shepard.goldfein@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom LLP & Thomas Mcauley Leineweber --
thomas.leineweber@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom LLP.
BANK OF AMERICA: Plaintiff Appeals Dismissal of Kickback Suit
-------------------------------------------------------------
HarrisMartin reports that a plaintiff is appealing a Pennsylvania
federal judge's award of summary judgment to Bank of America Corp.
and its captive reinsurer on Racketeer Influenced and Corrupt
Organizations Act claims in a mortgage reinsurance kickback
action.
The appeal, docketed in the 3rd Circuit U.S. Court of Appeals,
will also challenge the U.S. District Court for the Western
District of Pennsylvania's subsequent dismissal of the action.
William Weiss, Robert Lessman, Ann Harrell and Eddie Harrell
asserted class action claims against Bank of America Corp. (BAC),
Bank of America, N.A. (BANA) and Bank of America Reinsurance Corp.
(BARC).
BEHRINGER HARVARD: Lodge & Spa Sale Class Action Ongoing
--------------------------------------------------------
Randy Wyrick, writing for Vail Daily, reports that a federal judge
refused to postpone this month's scheduled sale of The Lodge & Spa
at Cordillera, but attorneys for Cordillera residents say that
does not mean construction can begin on an $80 million plan to
convert the hotel into a health, wellness and addiction treatment
center.
Federal District Court Judge R. Brooke Jackson brought court into
session at 1:29 p.m. on Feb. 16, and handed down his order from
the bench at 5:10 p.m., denying a request by four Cordillera
residents to stop the sale.
Behringer Harvard, an Austin, Texas-based development company, is
scheduled to sell The Lodge to Noah Nordheimer's Concerted Care
Group, a Baltimore-based addiction treatment business on Feb. 28.
"With no other legal challenges that can block the closing, The
Lodge can close its doors on Feb. 28 and be sold to CCG
Management," said Mr. Nordheimer, president and CEO of the
Concerted Care Group.
The legal case remains very much alive, said Tom Wilner, a
Washington, D.C., attorney who heads the residents' legal
committee. Mr. Wilner went to court with the federal government
when he represented 11 Kuwaiti prisoners held in the Guantanamo
Bay detention center at the U.S. Navy base in eastern Cuba.
After Mr. Nordheimer's Concerted Care Group said it would close
the sale of The Lodge & Spa at Cordillera Feb. 28, four Cordillera
residents returned fire with a $100 million class action lawsuit
led by Mr. Wilner.
"Judge Jackson suggested there is a way to resolve our differences
that accomplishes both our goals. If the planned rehabilitation
center at The Lodge will continue to allow Cordillera residents to
have access to the facility and its amenities, then we certainly
have something to discuss," Mr. Wilner said in a statement.
Mr. Nordheimer said he looks forward to those discussions.
"The bright spot from this wasn't our victory in federal court. It
was the willingness of Tom Wilner to commit to working together to
resolve our differences so we can co-exist in Cordillera -- that's
the real victory," Nordheimer said. "I am confident Tom is the
right person to help bring the groups together and begin healing
this community."
Mr. Wilner said Jackson's ruling does not mean construction
can begin when the sale closes.
In a notice to Cordillera homeowners, Mr. Wilner wrote that,
"essentially, the judge found that the passing of title from
Behringer Harvard to the Concerted Care Group does not, by itself,
cause irreparable injury that would justify the entry of a
preliminary injunction."
"Acquiring title to the property, of course, does not give the
Concerted Care Group the right to eliminate The Lodge and convert
it into a medical center that excludes the Cordillera community,"
Mr. Wilner wrote. "Its right to do so remains under challenge in
both the state court in Eagle County and the federal court in
Denver. We shall continue to pursue those challenges
aggressively, and we remain confident of ultimately prevailing on
the merits of our claims."
LOCAL DISTRICT COURT APPEALS
The federal court case comes on the heels of a pair of lawsuits
filed in local district court, appealing a 2016 unanimous decision
by the Eagle County Board of County Commissioners to allow Mr.
Nordheimer to move ahead with his plan.
Cordillera's property owners association and metro district were
not part of the class action lawsuit. However, those groups sued
Eagle County and the commissioners, asking District Court Judge
Fred Gannett to throw out the commissioners' decision.
Cordillera homeowners Barbara and Jack Benson sued Eagle County
separately.
The association and other plaintiffs want:
-- The county commissioners' decision overturned, and
-- Damages, costs, reasonable attorneys' fees and "any other
relief that the court may deem just."
BOEHRINGER INGELHEIM: 2nd Cir. Reinstates Fax Ad Class Action
-------------------------------------------------------------
Robert Storace, writing for The Connecticut Law Tribune, reports
that the U.S. Court of Appeals for the Second Circuit has
reinstated a class action suit targeting unsolicited faxes that
pharma giant Boehringer Ingelheim Pharmaceuticals Inc. allegedly
sent to promote one of its medications.
The Second Circuit unanimously ruled that U.S. District Judge
Stefan Underhill of the District of Connecticut erred in
dismissing the suit brought by Physicians Healthsource Inc., an
Ohio-based chiropractic clinic, stating that receiving unsolicited
faxes promoting a free event for a drug that helps victims of a
sexual disorder are "sufficient to state a claim."
The judges were Ralph K. Winter Jr., Dennis G. Jacobs and Pierre
Nelson Leval.
Physicians Healthsource -- in a class action representing at least
40 other health care providers -- claimed the unsolicited faxes
violated the federal Telephone Consumer Protection Act (TCPA) of
1991, as amended by the Junk Fax Prevention Act of 2005.
The March 2014 complaint states that Boehringer Ingelheim violated
federal law by sending the fax because it didn't seek permission
to do so and because the required "opt-out" language wasn't
included. The clinic maintained the fax was an "unsolicited
advertisement."
In its move to dismiss, Boehringer Ingelheim argued that
Physicians Healthsource failed to state a claim under the TCPA
because the unsolicited fax was not an advertisement.
At issue is a fax requesting that a Physicians Healthsource
employee attend an April 2010 dinner sponsored by the pharma
company titled "It's Time To Talk: Recognizing Female Sexual
Dysfunction and Diagnosing Hypoactive Sexual Desire Disorder
(HSDD)." Boehringer Ingelheim, a Ridgefield-based company, was
trying to raise awareness of Flibanserin, a drug intended to treat
HSDD.
Glenn Hara, the Rolling Meadows, Illinois-based attorney
representing Physicians Healthsource, told the Connecticut Law
Tribune on Feb. 9 that "the issue is whether (the faxes) were
advertisements, and we believe they were."
"We are going to proceed as the Second Circuit instructed us to
proceed and to conduct discovery into the circumstances of this
free seminar," said Mr. Hara, of Anderson + Wanca. "We want to
know who this [fax] was sent to; what happened at the seminar; did
Boehringer promote a product at the seminar; and whether the fax
was part of an overall marketing campaign, which we believe they
were."
Boehringer would not be allowed to fax the dinner invitation if it
was a pretext for pitching one of their products or services.
Hara noted that while the lawsuit states there are at least 40 in
the class action, he added, "With these fax cases, there are
typically hundreds or thousands sent at a time. It will go way
over 40. It would be very unusual for someone to design, fax, and
set up a seminar just to invite a handful of people."
The law states that companies can be fined $500 for each
unsolicited fax. Hara said the "court could increase that to
$1,500 per fax if it finds the violation was willful. We could be
talking about many millions of dollars here."
Boehringer Ingelheim is being represented by Bryan Orticelli --
borticelli@daypitney.com -- of Day Pitney's Stamford offices. Mr.
Orticelli wasn't available for comment on Feb. 9.
CAPITAL ONE: Faces Class Action Over Solicitation Calls
-------------------------------------------------------
Wadi Reformado, writing for Northern California Record, reports
that a Canoga Park woman has filed a class-action suit alleging a
banking institution unlawfully called her to solicit its services.
Jackie Winters filed a complaint on behalf of all others similarly
situated on Feb. 14 in the U.S. District Court for the Central
District of California against Capital One Bank (USA) N.A. and
Does 1 through 10 citing the Telephone Consumer Protection Act.
According to the complaint, the plaintiff alleges that in November
2015, she suffered damages from receiving several unwanted calls
on her home phone from the defendant to solicit its services. She
alleges her phone number is on the National Do-Not-Call Registry
and that she did not have an established relationship with the
defendants. The plaintiff holds Capital One Bank (USA) N.A., and
Does 1 through 10 responsible because the defendants allegedly
kept on calling the plaintiff despite her request to stop calling
her.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages, $1,500 in treble damages, and any other relief as the
court deems just. She is represented by Todd M. Friedman, Adrian
R. Bacon and Meghan E. George of Law Offices of Todd M. Friedman
PC in Woodland Hills.
U.S. District Court for the Central District of California Case
number 2:17-cv-01178-GW-AJW
CHATTANOOGA, TN: May Face Title VII Class Action Lawsuit
--------------------------------------------------------
The Chattanoogan.com reports that City Council District 8
candidate Tom Kunesh said the "selection of the local all-white
Hefferlin & Kronenberg Architects firm by the city of Chattanooga
to design and lead neighborhood input into a new $6 million
Avondale Recreation Center for Avondale's 99 percent black
population should make any race-conscious person wonder what the
city's contractor selection process is, and how biased the city
actually is against minorities and women.
The candidate said, "As members of City Council have already
asserted, 'Historically, the city expenditures with vendors have
not reflected the diversity of the Chattanooga area.'
"The City Council took up the issue of a Disparity Study last year
when requested by Councilman Yusuf Hakeem, but then-Chairwoman
Carol Berz and council members Chris Anderson, Larry Grohn and
Moses Freeman opposed the measure.
"Since then, nothing has happened."
Mr. Kunesh said he will make a Disparity Study -- "to assess,
quantify, and evaluate the prevalence, magnitude, and extent of
marketplace discrimination, if any, against minority, women, and
disadvantaged business enterprises" -- the top priority as
District 8 councilman."
He said, "Chattanooga should set a leading example. Everybody in
Chattanooga needs to know how our city's public government is
treating each citizen. And if we're not treating each other
fairly, we need to know where and how to fix it. If 'the city is
interested in removing obstacles and believes a disparity study is
the best method of removing those obstacles for women and minority
owned businesses' as it says it is, then it should have
accomplished the study by now.
"Why has it not already been done by this City Council? As the
donut of poverty between wealthy Downtown and wealthy Suburbs
grows, it's time to make the Disparity Study happen so we can know
just how good -- or bad -- it really is."
He said he estimates "that African American businesses receive
less than five percent of city of Chattanooga contracts, making up
less than two percent of contractor dollars going to African
Americans, even though Chattanooga's black population is at least
36 percent percent.
"And that less than five percent of city of Chattanooga contracts,
making up less than five percent of contractor dollars, go to
Caucasian females who make up 30 percent of Chattanooga's
population. Without real data from a real Disparity Study, the
scope of inequality (or rather injustice/inequity) is concealed
and will assuredly perpetuate/grow.
"If the city does not complete a disparity study and correct the
economic disadvantages that African Americans and women face in
working with just the government of Chattanooga (as compared with
the much larger scope of private businesses), legal problems will
result. The city will face the possibility of a Title VII (Civil
Rights Act of 1964) class action lawsuit to force the city into
taking affirmative action to correct its government racism."
Mr. Kunesh is a long-time activist in local Native American issues
and planner of the Unity Group's recent annual MLKing Interfaith
Celebrations. He has been working to halt the Central Avenue
North extension and save the Lincoln Park Historic District as
well as the old Citico site on Riverside Drive.
CHINACAST EDUCATION: April 25 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------------
The Rosen Law Firm, P.A., and Pomerantz LLP disclosed that the
United States District Court for the Central District of
California has approved the following announcement of a summary
notice of pendency of class action that would benefit purchasers
of common stock of ChinaCast Education Corporation (OTCMKTS:CAST):
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
To: All persons or entities that purchased or otherwise
acquired common stock of ChinaCast Education Corporation ("CAST"
or the "Company") during the Period from February 14, 2011 and
April 2, 2012 inclusive (the "Class Period").
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District
Court for the Central District of California, that the following
class has been certified in the above-captioned action (the
"Action"):
All persons or entities that purchased or otherwise acquired
common stock of CAST during the Period from February 14, 2011 and
April 2, 2012 inclusive (the "Class Period"). Excluded from the
Class are Defendants, the present and former officers and
directors of CAST and any subsidiary thereof, members of their
immediate families and their legal representatives, heirs,
successors or assigns and any entity in which defendants have or
had a controlling interest.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THIS ACTION. A full printed Notice of Pendency of Class Action
("Notice") is currently being mailed to known Class Members. If
you have not yet received a full printed Notice, you may obtain
copies of this document by downloading it from
www.strategicclaims.net or by contacting the Notice Administrator:
ChinaCast Education Corporation Securities Litigation
c/o Strategic Claims Services
P.O. Box 230
600 North Jackson Street, Suite 3
Media, PA 19063
If you did not receive the Notice by mail, and you are and decide
to remain a member of the Class, please send your name and address
to the Notice Administrator so that if any further notices are
disseminated in connection with the Action, you will receive them.
Inquiries, other than requests for the Notice, may be made to
Class Counsel:
Laurence Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Tel: (213) 785-2610
Jeremy A. Lieberman, Esq.
POMERANTZ LLP
600 Third Avenue -- 20th Floor
New York, New York 10016
Tel: (212) 661-1100
If you are a Class Member, you have the right to decide whether to
remain a member of the Class. If you choose to remain a member of
the Class, you do not need to do anything at this time other than
to retain your documentation reflecting your transactions in CAST
common stock during the period from February 14, 2011 and April 2,
2012, inclusive. You will automatically be included in the Class.
If you do not wish to remain a member of the Class you must
exclude yourself from the Class. If you are a Class Member and do
not exclude yourself from the Class, you will be bound by the
proceedings in the Action, including all past, present and future
orders and judgments of the Court, whether favorable or
unfavorable.
If you ask to be excluded from the Class, you will not be bound by
any order or judgment in the Action, and you will not be eligible
to receive a share of any money which might be recovered for the
benefit of the Class. To exclude yourself from the Class, you must
submit a written request for exclusion postmarked no later than
April 25, 2017 in accordance with the instructions set forth in
the full printed Notice to the Notice Administrator.
Further information may be obtained by directing your inquiry in
writing to the Notice Administrator.
Please Do Not Call The Court with Questions.
Dated: January 10, 2017
BY ORDER OF THE COURT
United States District Court
For the Central District of California
CITIGROUP: Faces $5MM Penalties for Rand Rigging Violations
-----------------------------------------------------------
Aziz Abdel-Qader, writing for Finance Magnates, reports that
Citigroup's South African arm has been ordered to pay more than $5
million to the country's Competition Commission as a penalty for
taking part in a cartel rigging currency quotes for customers who
were buying or selling the local currency.
The world's largest financial firm is being forced to hand over 10
percent of its annual turnover as part of a settlement over
alleged abuses of forex prices quoted to clients for buying and
selling currencies, known as a bid-ask spread. This is the first
financial punishment handed out by the country's regulator, a move
that other banks are expected to follow, although banks affected
can appeal to South Africa's Competition Appeal Court.
Citibank N.A. South Africa said the settlements "aimed to improve
its internal systems and monitoring processes".
"Citi is pleased that the matter has been settled. We will
continue building upon the changes that we have already made to
our systems, controls, and monitoring processes. Fostering a
culture of ethical behaviour has been, and continues to be, a top
priority for Citi," the bank said on Feb. 20.
South Africa's Competition Commission announced that it had found
more than a dozen local and foreign banks colluding to coordinate
trading in the South African and US currencies.
Rand rigging scandal
Following a string of similar lawsuits in the US and UK, the
Competition Commission believes the banks in question acted in
concert to manipulate either prices for bids, offers or spreads
for spot trades involving the rand and the US dollar.
The Commission added that the cases will be brought under
anti-trust rules, which effectively limit the class action to
South African claimants.
A further eleven banks have been involved in the case. The list
includes Investec, JP Morgan, BNP Paribas, Credit Suisse Group,
Commerzbank AG, Standard New York Securities Inc, Macquarie Bank,
Bank of America Merrill Lynch, ANZ Banking Group Ltd, Standard
Chartered Plc and Barclays Africa (Absa), part of the Barclays
Plc.
The South African Reserve Bank (SARB) commented on the
development: "The SARB will allow the legal processes now
initiated to run their course, and will continue to monitor
developments closely to inform any action that we may need to
embark upon in accordance with our mandate and jurisdiction."
CLARITY SERVICES: Case Mngt. Conference Moved to March 24
---------------------------------------------------------
In the case, JOYCE BENTON, Plaintiff, v. CLARITY SERVICES, INC.,
Defendant, Case No. 16-cv-06583-MMC (N.D. Cal.), District Judge
Maxine M. Chesney ordered that the Initial Case Management
Conference, currently set for February 10, 2017, to be continued
on March 24, 2017.
In the case, the Plaintiff alleges that the Defendant to have
violated the Fair Credit Reporting Act by disclosing the consumer
reports to persons or entities that did not have a permissible
purpose to obtain such consumer reports, and which the Defendant
did not have reason to believe had a permissible purpose to obtain
such consumer reports.
The Court further ordered that (a) the hearing on the motion to
Dismiss the Plaintiff's Class Action Complaint currently set for
February 3, 2017, is continued to February 17, 2017, and (b) a
Joint Case Management Statement will be filed no later than
March 17, 2017.
A copy of the Court's Order dated January 27, 2017, is available
at https://goo.gl/n2aE5Q from Leagle.com.
Joyce Benton, Plaintiff, represented by Christian Schreiber --
christian@chavezgertler.com -- Chavez & Gertler LLP.
Joyce Benton, Plaintiff, represented by Gregory A. Murray --
gmurray@fdpklaw.com -- Feinstein Doyle Payne and Kravec, LLC, pro
hac vice, James Pietz, Feinstein, Doyle, Payne & Kravec, LLC., pro
hac vice & Mark Andrew Chavez -- echavezlaw@gmail.com -- Chavez &
Gertler LLP.
Clarity Services, Inc., Defendant, represented by Hsiao C. Mao --
mark.mao@troutmansanders.com -- Troutman Sanders LLP, Ronald Irvin
Raether, Jr., Troutman Sanders LLP & Sheila Pham --
sheila.pham@troutmansanders.com -- Troutman Sanders LLP.
CMRE FINANCIAL: Court Denies Summary Judgment in "Steward"
----------------------------------------------------------
In the case, Hilary Steward, Plaintiff. v. CMRE Financial
Services, Inc. et al., Defendants, No. 2:15-cv-00408-JAD-NJK (D.
Nev.), District Judge Jennifer A. Dorsey denied the Defendant's
motion for summary judgment, without prejudice to the filing of a
new motion for summary judgment, attaching all referenced exhibits
set last February 3, 2017.
The case involves the Plaintiff's class-action Fair Debt
Collection Practices Act (FDCPA) action against the Defendant.
Meanwhile, the Defendants move for summary judgment, arguing that
the FDCPA does not apply because the Defendant, Healthcare Revenue
Management Group (HRMG) is not a debt collector attempting to
collect a debt, and the Plaintiff is not a consumer with standing
to bring suit.
The Court noted that the Defendants' out-of-order filing, such as
failing to attach evidence to support their assertions, frustrates
their goal.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/QI7C4u from Leagle.com.
Hilary Steward, Plaintiff, represented by Trent L. Richards, The
Bourassa Law Group, LLC.
Hilary Steward, Plaintiff, represented by Mark J. Bourassa, The
Bourassa Law Group, LLC.
CMRE Financial Services, Inc., et al., Defendants, represented by
Adam R. Knecht, Alverson Taylor Mortensen & Sander, J. Grace
Felipe -- felipeg@cmtlaw.com -- Carlson & Messer, pro hac vice,
Jeanne L. Zimmer -- zimmerj@cmtlaw.com -- Carlson & Messer LLP,
pro hac vice & Kurt R. Bonds, Alverson Taylor Mortensen, et al.
COLD SPRINGS: Scheduling Conference Continues on Mar. 16
--------------------------------------------------------
In the case, JOSEPH AVILA, on behalf of himself and all others
similarly situated, Plaintiff, v. COLD SPRINGS GRANITE COMPANY, a
Minnesota Corporation, Defendant, Case No. 1:16-CV-01533-AWI-SKO
(E.D. Cal.), Magistrate Judge Sheila K. Oberto continues the
Scheduling Conference initially set from February 7, 2017 to March
16, 2017.
The Court further ordered the Defendant to file a response to the
First Amended Complaint for Unpaid Overtime, Missed Meal Periods,
and Related Penalties due last February 16, 2017.
A copy of the Court's Order dated February 1, 2017 is available at
https://goo.gl/PL78GT from Leagle.com.
Joseph Avila, Plaintiff, represented by Jennifer Elizabeth McGuire
-- jmcguire@hoyerlaw.com -- Hoyer & Hicks.
Joseph Avila, Plaintiff, represented by Ryan Lee Hicks, Hoyer &
Hicks, Richard Anderson Hoyer -- rhoyer@hoyerlaw.com -- Hoyer &
Hicks & Walter L. Haines -- walter@whaines.com -- United Employees
Law Group, Pc.
Cold Spring Granite Corporation, Defendant, represented by Stephen
L. Berry -- stephenberry@paulhastings.com -- Paul Hastings LLP.
CONAIR CORPORATION: Faces Suit Over Cuisinart Food Processors
-------------------------------------------------------------
Sophia Tewa at Stamford Advocate reports that lawyers from the
Radice Law Firm filed a federal class action lawsuit on February
17 against Stamford-based Conair Corporation on behalf of
consumers who were affected by the recall of 8 million Cuisinart
food processors.
The company recalled riveted blades on 21 food processor models in
December 2016, after more than 30 people were injured by metal
shards breaking off into their food.
Cuisinart asked affected customers to call the company for free
replacement blades or fill out a form on its website. But it took
more than two months for the company to update all customers who
registered for new blades.
The lawsuit, filed in the Federal District Court for the District
of New Jersey, alleges that the recall has diminished the resale
value of the food processors and rendered them useless for
chopping tasks.
The main plaintiff in the case, Ellen Chepiga from Mercer, New
Jersey, hasn't used her food processor since Conair announced the
recall. April Lambert, a lawyer who is representing Chepiga, said
her client is still waiting for her replacement blade.
"The machine sits useless on the kitchen counter," said Lambert.
"They sent several emails saying that they will send the blade but
each email pushes it out longer and no blade has come."
The class-action lawsuit seeks at least $5 million in compensation
to eligible customers. If the lawsuit moves forward, it would
apply to all customers who purchased and still use any of the
Cuisinart food processor models affected by the recall. Injured
customers can also contact their own lawyers and file separate
lawsuits, Lampert said.
The complaint also alleges that Cuisinart prioritized its own
profits by selling the new blades instead of providing them to
customers subject to the recall.
"There still are food processors available for sale that have
different chopping blades in them," said Lampert. "The company is
making more money off of the new machines instead of fixing the
old problem."
CONWAY, KS: Police, Firefighters' Suit Can Move Forward
-------------------------------------------------------
Marisa Hicks at The Cabin reports that the Arkansas Supreme Court
on February 16 gave Conway police officers and firefighters the OK
to move forward with class-action status against the city.
Richard Shumate of the Conway Police Department and Damon Reed of
the Conway Fire Department file a lawsuit in 2012 that accused the
city of breaching its contract for salary improvements.
Through their attorneys Thomas Thrash and Russell A. Wood, the two
sought class-action status against the city on behalf of the
Conway police and fire departments.
The Supreme Court determined Faulkner County Division II Circuit
Judge Troy B. Braswell Jr. did not abuse his discretion when he
certified about 200 Conway police officers and firefighters in the
breach of contract lawsuit.
"A court abuses its discretion when it acts improvidently,
thoughtlessly, or without due consideration. . . . We cannot say
that the court abused its discretion here, when it carefully
considered the complaint and matters in the record to find that
common questions were present," Associate Justice Rhonda K. Wood
wrote in a majority opinion on February 16.
Braswell dismissed the plaintiffs' illegal exaction claim in
December but ruled in favor for police and fire employees that
were employed with the city between Dec. 1, 2001, and Dec. 31.
2012, to move forward in a class-action suit against the city.
Mayor Bart Castleberry said while the city was disappointed the
Supreme Court granted the plaintiffs class-action status, it was
"pleased with the earlier circuit court ruling that the City of
Conway did not misspend tax dollars."
"The current litigation is about whether a limited group of city
employees were entitled to pay raises that exceeded sales tax
collections for that purpose during a period of national economic
recession," he said. "The city looks forward to presenting our
case in court."
The lawsuit stems from a Conway City Council-approved quarter-cent
sales tax that was to be used "exclusively to the salaries of the
employees of the City of Conway," according tot he ballot
resolution that was passed by Conway voters in August 2001.
Employees allege they did not receive money they were promised.
The Supreme Court determined Braswell identified five common
issues between each party, which includes "(1) whether the sales-
tax resolution was a promise to pay employees a salary increase;
(2) whether accepting employment was adequate consideration; (3)
the length of time the raises were promised; (4) whether failure
to pay the increase was a breach of contract; and (5) the amount
of damages."
Justices noted in February 16's ruling that the case, which
includes about 200 police officers and firefighters, collectively,
fit class action guidelines.
"It is clear that Shumate and Reed's claims arise from the same
wrong asserted by the case," Wood wrote. "We therefore hold that
the court did not abuse its discretion when it found that Reed and
Shumate were typical of the class as a whole."
The city, which is represented by Michael Moseley, Thomas Kieklak
and Justin Eichmann, appealed Braswell's decision in January on
belief that oral contracts did not bind the city nor did it
constitute grounds for class-action certification because each
individual could have a different understanding on the matter.
Reed said officers and firefighters were pleased with the Arkansas
Supreme Court's decision.
"It made no sense that the city would ever consider myself and
Officer Shumate as the only public servants affected by this
lawsuit," he told the Log Cabin Democrat on February 17. "Now,
hopefully, we can move forward with a resolve concerning promises
made by the City of Conway and our salaries."
The city decided to make its appeal sooner than addressing the
issue later on because claims against the city alleged improper
spending of pulic funds, Eichmann previously said.
Pay improvements were to be made to city employees through a step
grid process, according to arguments.
Reed and Shumate's attorney, Russell, said the plaintiffs agreed
with the Supreme Court's decision to deny the city's appeal.
"The employees of the city deserve to receive the pay and benefits
the city contracted to pay them," he said. "We look forward to
moving this litigation forward and conducting depositions in this
matter."
CUSHMAN & WAKEFIELD: Valdivieso Sues Over ERISA and COBRA Breach
----------------------------------------------------------------
Luis A Valdivieso, individually and on behalf of all others
similarly situated v. Cushman & Wakefield Inc., Case No. 8:17-cv-
00118-SDM-JSS (M.D. Fla., January 17, 2017), alleges that the
Defendant failed to provide required notices of their right to
continued health care coverage under the Consolidated Omnibus
Reconciliation Act of 1985 (COBRA).
Defendant Marriott International Inc., which operates a
hospitality company that manages and franchises a broad portfolio
of hotels and related lodging facilities, is the plan sponsor of
the Health Plan.
The suit asserts that Marriott violated the Employee Retirement
Income Security Act of 1974, as amended by COBRA. As a result of
these violations, which threaten Class Members' ability to
maintain their heath care coverage, Plaintiffs seek statutory
penalties, injunctive relief, attorneys' fees, costs and expenses.
The Plaintiff is represented by:
Luis A. Cabassa, Esq.
Brandon J. Hill, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: lcabassa@wfclaw.com
bhill@wfclaw.com
mkimbrou@wfclaw.com
DEJA VU: $6.5MM Strippers' Wage Settlement Gets Prelim. Court OK
----------------------------------------------------------------
Chris Kudialis, writing for Las Vegas Sun, reports that a federal
judge has given preliminary approval for a $6.5 million settlement
in lawsuits against 64 of the 132 strip clubs owned by Deja Vu
Consulting Inc. nationwide. That could result in cash or up to
$2,000 in club credits for the thousands of women who've worked at
the chain's Las Vegas locations (for at least a month) since 2004,
including Deja Vu, Larry Flynt's Hustler Club, Showgirls and
Little Darlings.
The dozen or so wage-per-hour suits considered by U.S. District
Judge Stephen Murphy of Michigan get at a fundamental issue of the
business: Should strippers be classified as independent
contractors or employees?
Lansing, Mich.-based attorney Matthew Hoffer, who represents a
Jane Doe plaintiff, confirmed the federal suit's impact on Las
Vegas dancers but declined to comment "until after a final
settlement is reached."
Local managers of Deja Vu and Little Darlings said they were not
sure what effect the lawsuit would have on their dancers,
deferring to the chain's national headquarters in Lansing. Deja
Vu Consulting Inc. did not return multiple requests for comment.
The series of minimum wage and labor law violation suits started
in 2008, when a dancer at a Michigan club run by Lansing-based
Cin-Lan Inc. said she and dancers at eight other company clubs in
the state were unfairly classified as independent contractors.
Deja Vu Consulting Inc. also was named in that suit. The
companies and dancers settled for $11.3 million in 2011.
Another Jane Doe filed what became a class action lawsuit in
Michigan's Eastern District, arguing that Deja Vu had too much
control over the day-to-day work of dancers labeled as independent
contractors. The suit she filed expanded into a complaint
covering the 64 Deja Vu locations, incorporating other state and
federal suits involving the company since 2008.
About $935,000 will be divided among dancers who opt for cash
payments, according to court documents. Deja Vu dancers also can
choose credits, from $200 to $2,000 depending on the length of
time they worked at the club, to use toward renting stage time and
other fees. A hearing to determine whether the settlement and
process for evaluating employee status is fair is scheduled for
June 6 in U.S. District Court for the Eastern District of
Michigan.
Strippers in Las Vegas have long protested work conditions and
compensations. As independent contractors, they aren't entitled
to a minimum wage, insurance benefits, sexual harassment claims or
workers' compensation from clubs, where they pay to perform and
collect only tips. In one of the most famous suits, the Nevada
Supreme Court ruled in 2014 that clubs were not exempt from
provisions of the federal Fair Labor Standards Act, and that
employees were entitled to federal minimum wage. The final ruling
came more than five years after dancers from Sapphire Las Vegas
Gentleman's Club sued the valley's largest strip club in 2009.
Despite continued rulings in favor of strippers, attorneys who've
represented them say little within the industry has changed.
Tucson-based Mick Rusing was the lead attorney in winning for the
Jane Does involved in the Sapphire case, and before that won
compensation for strippers from the now-closed Glitter Gulch.
While the Sapphire case seemed to set a precedent for treatment of
dancers, any progress was "quickly reversed," when the 2015 Nevada
Legislature passed Senate Bill 224.
The bill, signed into law by Gov. Brian Sandoval, allows for "just
about anyone" in Nevada to be classified as an independent
contractor, regardless of the work they're doing, Mr. Rusing said.
"Under no stretch of the imagination are these women independent
contractors."
Mr. Rusing said strip clubs have "never won a case" against
strippers suing for employee status, and he called Nevada's
definition of an independent contractor a "false comfort" for the
industry. He pointed to Deja Vu's ongoing settlement in U.S.
District Court as an example of the federal government's
willingness to intervene regardless of state laws. But after more
than a decade of suing and winning money from the clubs, Las Vegas
dancers haven't seen "an iota of change" in how they're
compensated, Mr. Rusing said.
"It's just really unfair," he said.
DOWNTOWN, OH: Residents to Challenge Submetering Costs
------------------------------------------------------
Dan Gearino, writing for The Columbus Dispatch, reports that
the people gathered in this living room could have talked for
hours about why it is great to live Downtown.
But they ended up focusing on one big reason Downtown living can
be lousy: high utility bills from submeter companies.
"We can't in good conscience say 'come Downtown' and then put them
into these submetered places where they just get hammered," said
Rick Colby, a board member of the Downtown Residents' Association
of Columbus. "It's very much an economic-development issue."
He and other board members and other Downtown residents put their
heads together recently to figure out how to persuade city and
state leaders to do something about submetering. The fact that
this group has decided to enter the fray could mark a shift in the
years-long debate over the issue.
Most of the new apartments and condominiums Downtown use
submetering. This system has a company buying utilities in bulk
from a regulated provider, such as American Electric Power, and
reselling the service to individual households, often with
markups. The Dispatch has written about these practices since
2013.
The companies -- with names such as Nationwide Energy Partners and
American Power and Light -- say they are providing a valuable
service to landlords and residents -- and want to work with
customers to resolve concerns.
But the residents said they have tried to work with the companies
to little avail. They think people have been slow to mobilize
because many do not understand what is happening.
"Most people didn't seem to realize that when you have a 600-
square-foot apartment, a $90 electric bill is out of line," said
Jim Moreau, a board member. "The bill looks like an energy
provider, so you just assume it's (AEP) or someone that's
regulated."
His building used to be served by a submeter company, but years
ago it switched to being served directly by the regulated
utilities. He is active on the issue mostly to help his friends
and neighbors who are still affected.
The bills may be high for any number of reasons. For example, some
residents are paying for lighting and water in shared spaces, such
as lobbies and outdoor commons, as a fee on their utility bills.
That is something a submeter company can do but a regulated
utility cannot. The Dispatch has found examples of these fees
that reach up to $15 per month.
Also, the submeter companies sometimes add fees for the costs of
billing and to pay for equipment that are separate from common-
area fees.
These costs are in addition to the markups on the wholesale level.
Some submeter companies buy utilities in bulk at a commercial rate
and resell them at the regular rate for households, keeping the
savings for themselves. AEP has said in regulatory filings that
the difference between rates is about 45 percent for a typical
apartment.
The number of Ohio households served by submeter companies has
been estimated at about 30,000 by AEP. The utility is one of many
companies and groups that have urged regulators to place limits on
markups.
In December, the Public Utilities Commission of Ohio took a step
in that direction, with a ruling that said a markup limit was
coming, pending further investigation.
But critics of submetering say the PUCO's action does not go far
enough, and they lament that the Ohio General Assembly has taken
no action.
"There are some big forces aligned to keep the status quo, so we
will need to be a voice of consumers," Mr. Colby said. He lives
in Olde Towne East after leaving his Downtown condo in part
because of high utility bills. He remains on the Downtown group's
board.
The "big forces" he refers to are property developers, some of
whom have ownership stakes in submeter companies. For example,
the owner of Lifestyle Communities also is co-owner of Nationwide
Energy.
Rep. Mike Duffey, R-Worthington, who has introduced several bills
on the topic, and Columbus City Council member Mike Stinziano
attended that recent gathering of Downtown residents, invited by
the residents association.
"I applaud the courage of the Downtown Residents' Association of
Columbus for voting to take a position against submetering,"
Mr. Duffey said in an email after the meeting. "Other residents
groups could do the same and join the cause."
If the state government does not act to change submeter rules, the
city could, but that does not appear likely.
Robin Davis, a spokeswoman for Columbus Mayor Andrew Ginther, said
the PUCO "is the proper organization to address this consumer
issue."
Nationwide Energy, the subject of many of the residents' concerns,
offered this response on the matter of submetering:
"NEP supports efforts to protect consumers from being charged
unreasonably high energy rates and, in keeping with our current
business practice, we recently recommended to the PUCO for a zero
markup on residential rates," said Gary Morsches, the company's
CEO, in an email.
He is referring to the PUCO investigation, in which his company
has said submeter companies should charge no more than the
regulated price for households. However, that would not include
fees for common areas or other items.
"As part of our goal to increase community engagement, we recently
reached out to (the Downtown group) to start a dialogue on
submetering and energy innovation," Mr. Morsches said.
The Downtown meeting was hosted by Mark Whitt, a lawyer who has
played a key role in challenging the practices of submeter
companies. In 2015, he filed a formal complaint with the PUCO
about submetering in his condo. That case helped to inspire the
PUCO actions in December.
"It is very easy to get into people's pockets for $4, $6, $8 per
month because that flies under the radar," he said.
Whitt also is one of the lawyers behind a proposed class-action
lawsuit in Franklin County court, filed last year on behalf of
consumers against Nationwide Energy.
Next, the Downtown group plans to make its case to the legislature
and the PUCO and to educate residents on utility issues.
"I'm very optimistic," Mr. Colby said, adding, "We're out to say,
'Guys, you can't do this any more. This is outrageous.'"
EGALET CORP: Faces "Mineff" Securities Suit Over Share Price Drop
-----------------------------------------------------------------
George Mineff, on behalf of himself and all others similarly
situated v. Egalet Corporation, Robert S. Radie, Stanley J.
Musial, and Jeffrey M. Dayno, Case No. 2:17-cv-00390-MMB (E.D.
Penn., January 27, 2017), is a federal securities class action on
behalf of a class consisting of all persons who purchased or
otherwise acquired Egalet common stock shares between December
15, 2015, and January 9, 2017, inclusive (the Class Period),
seeking to recover damages for violations of the federal
securities laws under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
Egalet Corporation is a specialty pharmaceutical company
developing, manufacturing and commercializing innovative
treatments for pain and other conditions. Notably, Egalet uses a
proprietary technology called Guardian Technology for its lead
product ARYMO ER, an abusedeterrent oral morphine formulation for
the management of severe pain requiring daily "around-the-clock"
long-term opioid treatment. Egalet submitted a New Drug
Application to the United States Food and Drug Administration for
ARYMO ER in December 2015 based on studies aiming to demonstrate
its bioequivalence to a direct competitor's already approved drug
named MS Contin.
The complaint says the Company made materially false and/or
misleading statements, concerning ARYMO ER and the likelihood of
the drug receiving oral abuse-deterrent labeling. As the truth
about ARYMO ER was revealed, the stock price declined from $8.38
per share of Egalet stock on January 9, 2017, to close at $6.52
per share on January 10, 2017, a drop of approximately 22%.
As a result, Plaintiff and other members of the Class purchased
Egalet common stock at artificially inflated prices and thereby
suffered significant losses and damages.
The Plaintiff is represented by:
Ryan M. Ernst, Esq.
Daniel P. Murray, Esq.
O'KELLY & ERNST, LLC
901 N. Market Sreet, Suite 1000
Wilmington, DE 19801
Telephone: (302) 778-4000
Facsimile: (302) 295-2873
E-mail: rernst@oelegal.com
dmurray@oelegal.com
- and -
Nicholas I. Porritt, Esq.
Adam M. Apton, Esq.
LEVI & KORNSINSKY LLP
11031 30th Street NW, Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
Facsimile: (202) 333-2121
E-mail: nporritt@zlk.com
aapton@zlk.com
EPATIENTS.COM: Faces Suit Over Unsolicited Fax Advertisement
------------------------------------------------------------
Louie Torres at Cook County Record reports that a physician has
filed a class action lawsuit against Epatients.com Inc. and 10
John Does, alleging violation of telephone harassment statutes.
Dr. William P. Gress filed a complaint on Feb. 13 in the U.S.
District Court for the Northern District of Illinois against the
defendants, alleging Epatients sent him an unsolicited fax
advertisement.
According to the complaint, the plaintiff alleges that in October
2016, he received an unsolicited fax advertisement on his fax
machine. The fax ad lacked an "opt out" notice, as required by
law.
The plaintiff seeks judgement against the defendant, appropriate
damages, an injunction, court costs and any further relief this
court grants. He is represented by Daniel A. Edelman, Cathleen M.
Combs, James O. Latturner and Heather Kolbus -- info@edcombs.com -
- of Edelman, Combs, Latturner & Goodwin, LLC in Chicago.
U.S. District Court for the Northern District of Illinois Case
number 1:17-cv-01119
FACEBOOK INC: Judge Tosses Class Action Over Text Alerts
--------------------------------------------------------
Wendy Davis, writing for MediaPost, reports that handing Facebook
a victory, a federal judge has thrown out a lawsuit accusing the
company of violating an anti-spam law by repeatedly sending people
unwanted text messages.
U.S. District Court Judge Jon Tigar in San Francisco said in a
ruling that the complaint, brought by Montana resident Noah
Duguid, didn't contain enough facts to support the claim that the
company used an automated dialing system to send text messages.
The dispute dates to March of 2015, when Mr. Duguid alleged in a
class-action complaint that Facebook repeatedly sent him text
messages even though he never used the social networking service.
Duguid, who apparently had been assigned a recycled phone number
by his carrier, alleged that Facebook repeatedly notified him via
SMS that his account had been accessed.
He argued that the company violated the Telephone Consumer
Protection Act, which prohibits companies from using automated
dialers to send text messages to people without their consent.
Facebook urged U.S. District Court Judge Jon Tigar in the Northern
District of Califonria to throw out the case. Among other
arguments, Facebook said the complaint didn't include enough
information to support the conclusion that Facebook used a robo-
dialer to send the messages.
Judge Tigar sided with Facebook. "At best, [Duguid's] allegations
are conclusory, given that he merely asserts that Facebook
'maintains a database of phone numbers on its computer' and
'transmits alert text messages to selected numbers from its
database using its automated protocol,' without offering any
factual support for this claim," Judge Tigar wrote.
"At worst, this claim contradicts the variety of other allegations
offered by Plaintiff, which suggest that Facebook does not dial
numbers randomly but rather directly targets selected numbers
based on the input of users and when certain logins were
attempted."
The dismissal was issued "with prejudice," meaning that
Mr. Duguid can't attempt to beef up his complaint and file it
again.
But Facebook is still facing at least two other lawsuits accusing
it of violating the Telephone Consumer Protection Act.
District of Columbia resident Christine Holt, who also says she
doesn't have a Facebook account, is still suing the company for
allegedly bombarding her with SMS messages after she obtained a
cell phone from MetroPCS.
In addition, Facebook is defending itself in a lawsuit by Florida
resident Colin Brickman, who alleges in a class-action complaint
that the company is violating the anti-spam law by sending users
messages about their friends' birthdays. U.S. District Court Judge
Thelton Henderson in San Francisco recently rejected Facebook's
bid to dismiss that matter on free speech grounds.
FLINT, MI: Systemic Racism Played Role in Water Crisis
------------------------------------------------------
CNN Wire reports that a government-appointed civil rights
commission in Michigan says systemic racism helped to cause the
Flint water crisis, according to a report released on Feb. 17.
The 129-page report does not claim there were any specific
violations of state civil rights laws, but says "historical,
structural and systemic racism combined with implicit bias" played
a role in the problems, which still linger in the city's drinking
water almost three years later.
"The presence of racial bias in the Flint water crisis isn't much
of a surprise to those of us who live here, but the Michigan Civil
Rights Commission's affirmation that the emergency manager law
disproportionately hurts communities of color is an important
reminder of just how bad the policy is," state Sen. Jim Ananich, a
Democrat from Flint, said.
It was an emergency manager, appointed by Gov. Rick Snyder, who
had the cash-strapped city's water supply changed from Lake Huron
to the Flint River in 2014 -- a decision reversed more than a year
later amid reports of corroded pipes and elevated blood lead
levels.
The report, which was released after a year-long investigation
that followed three public hearings and took testimony from more
than 150 residents and officials, says: "The people of Flint have
been subjected to unprecedented harm and hardship, much of it
caused by structural and systemic discrimination and racism that
have corroded your city, your institutions, and your water pipes,
for generations."
Among the changes it recommends is one for the law for selecting
emergency managers, saying the state shouldn't be focused solely
on cost cutting. It needs more community input, the report says.
The report says one theme was common in the hearings where the
public spoke. People said predominantly white cities like
Ann Arbor or Birmingham, near Detroit, would have been treated
differently by the state.
The report quotes a resident who said: "If this was in a white
area, in a rich area, there would have been something done. I
mean, let's get real here. We know the truth."
Flint is 57% black, 37% white, 4% Latino and the rest mixed race,
according to the US Census.
A spokeswoman for the governor said he appreciated the public
input shared in the report.
"We have been and continue working to build strong relationships
between state government and every community we serve, and adding
accountability measures to ensure a crisis of this magnitude never
happens again in Michigan," Anna Heaton said.
The amount of lead in the water in Flint has fallen and much is
below the federal level acceptable limit but residents are still
advised to use filtered water.
The allegation of racial bias against Flint is not new. At least
one class-action lawsuit alleges discrimination.
"Our lawsuit alleges race discrimination in how and why the
predominantly African-American population was exposed to
contaminated river water while the surrounding predominantly white
population continued to receive clean Detroit water," attorney
Michael L. Pitt said by email.
Also advocates said last year that the residents of Flint -- 40%
of whom live below the poverty line -- were the victims of
"environmental racism."
"Would more have been done, and at a much faster pace, if nearly
40 percent of Flint residents were not living below the poverty
line? The answer is unequivocally yes," the NAACP said in a
statement in January 2016.
FORD MOTOR: New Jersey Dealer Pioneer in Warranty Lawsuit
---------------------------------------------------------
Jim Henry, writing for Fixed Ops Journal, reports that as a
Lincoln-Mercury dealer in New Jersey in the 1990s, Robert
Robertazzi successfully sued Ford Motor Co. over payment for
warranty work. That landmark case helped make New Jersey one of
the first states to put teeth in laws requiring dealer
reimbursement at retail rates for warranty-related parts and
labor.
Mr. Robertazzi, now 82 and retired, says he persisted through
years of litigation even after other dealers told him he was
"stupid" to pick a long, expensive legal fight with the factory.
Mr. Robertazzi was dealer principal of the former Liberty Lincoln-
Mercury in Clifton, which closed in 2012.
"I was my own deep pockets," he told Fixed Ops Journal.
Jim Appleton, president of the New Jersey Coalition of Automotive
Retailers, calls Mr. Robertazzi and his wife, Elaine, "courageous"
for filing the warranty reimbursement suit against Ford in 1992.
After Mr. Robertazzi's first lawsuit was dismissed in 1994, he
filed a second suit the following year. Ford eventually agreed to
pay Mr. Robertazzi retail rates for warranty parts and labor
-- but at the same time charged him more for vehicles.
A federal court ruled in Mr. Robertazzi's favor in 1996, saying
Ford had conducted a "shell game." But the victory was not total,
as the court denied a motion to turn the suit into a class action
on behalf of all New Jersey Ford and Lincoln-Mercury dealers.
New Jersey's law requiring automakers to pay retail rates for
warranty work dated to 1977, but it was routinely ignored,
Appleton says. After Mr. Robertazzi first sued Ford, it took
about eight years to get the law amended so that other dealers in
the state could more easily apply for retail reimbursement, he
adds.
"There's fear of retribution" from automakers, said an Ohio
dealership executive. Last fall, Ohio enacted a wide-ranging
update to its franchise law that includes a stronger mandate for
retail reimbursement for warranty work.
"There are so many ways [automakers] can retaliate if they want
to," said the executive, who asked not to be identified. "We want
to get what we're entitled to by law -- no more, no less. But we
still have to be partners."
The new Ohio law says automakers may not retaliate against a
dealership for seeking retail reimbursement. But it places the
burden of proof on a dealer to show that retaliation is tied to a
demand for retail pay, based on "a preponderance of the evidence."
Mike Volkman is CEO of Service Department Solutions, a vendor that
handles paperwork for dealers who pursue warranty reimbursement at
retail rates. He acknowledged that some automakers can be
sticklers in demanding documentation for repayment bills.
But Mr. Volkman doesn't think overt retaliation is a problem. "I
haven't seen any dealer be retaliated upon yet," he said.
FORD SA: Kuga 1.6 Vehicle Fire Victims File Class Action
--------------------------------------------------------
Antionette Slabbert, writing for Moneyweb, reports that too little
too late, says Kuga owner as another vehicle ignites.
After ignoring his e-mails since his Ford Kuga 2.5 litre caught
fire while parked in his garage in September 2015, Ford SA tried
to get more detail about the incident from Vereeniging-based Kuga
owner Sean Thompson.
This follows allegations that the problems causing Ford Kugas to
ignite are not limited to the 4 556 Kuga 1.6 vehicles included in
the recent safety recall, but that other models are also affected.
Over the past weekend Nomsa Dondashe was alerted by other
motorists that her 2013 Ford EcoSport 1.5 litre was on fire while
she was driving on the N2 freeway near East London.
Her daughter Somila, who tweeted about the incident, confirmed to
Moneyweb telephonically that her mother got out in time, before
the vehicle was engulfed in flames.
Somila Dondashe said her mother was not hurt. Before the incident
she had complained to the Ford dealership in East London
repeatedly about a strange noise in the vehicle.
The noise intensified during a trip to Umtata over the weekend.
The dealership advised her to have her car towed, but she decided
to drive back to East London. On her way back a passing motorist
alerted her to the fire.
Speaking to Moneyweb, Mr. Thompson said he wanted Ford to
acknowledge that the problems were not limited to those vehicles
that had been recalled.
He said that they have had his complaint since 2015 and can look
it up, or contact the National Consumer Commission to whom he
submitted a complaint or his attorney, Rod Montana who is driving
a class action against Ford SA on behalf of fire victims and other
dissatisfied customers.
Moneyweb recently put questions to Ford SA regarding Mr.
Thompson's experience. The company did not answer the questions,
but instead sent a comprehensive statement about how it is dealing
with the Ford Kuga recall.
At the bottom of the statement Ford SA gave the following consumer
information:
If any Kuga 1.6 owner sees any indication that the engine may be
overheating or experiences warnings on the instrument cluster,
they should pull over as soon as it is safe to do so, switch off
the engine and ensure all occupants are safely out of the vehicle.
For safety reasons, the bonnet must not be opened.
If required, the emergency services should be called first, then
Ford's Roadside Assistance on 0861 150 250. Supported through the
AA, this service is available 24/7.
Customers are advised to conduct regular inspection and
maintenance of the cooling system -- especially regarding
maintaining the correct 50/50 water-coolant ratio for top-ups
between services. With this safety action and proper maintenance
of the engine coolant system, including using the approved coolant
at the required concentration level, the vehicles are safe to
drive.
Should a customer experience any engine overheating problem with
their 1.6 Kuga, or delays in the repair due to a shortage of
parts, arrangements will be made through the nearest Ford dealer
and Ford Customer Service to provide a courtesy car while the
vehicle is repaired.
GARFIELD HEIGHTS, OH: Class Cert. in Noxious Odors Suit Upheld
--------------------------------------------------------------
Jeremy Gilman, Esq. -- jgilman@beneschlaw.com -- at Benesch, in an
arcitle for JD Supra Business Advisor, wrote that plaintiffs,
seven in all, resided in Garfield Heights, Ohio. They sued
various defendants, including the City of Garfield Heights,
alleging "that noxious odors in their neighborhood affected the
use and enjoyment of their properties." The odors, they claimed,
resulted from the redevelopment of land that had decades earlier
been used as a landfill. Plaintiffs contended that in 2002, waste
materials that had previously been deposited at the landfill "were
disturbed as developers explored ideas for using the property."
The property eventually became a shopping center.
By the time class certification proceedings rolled around, the
City of Garfield Heights was the only remaining defendant, and
plaintiffs sought to have certified against it a class consisting
of "all persons and entities . . . . that own or reside in a home
within the class area which home was purchased by the class member
prior to December 31, 2002." They alleged that 220 such homes
were affected.
A battle of expert reports ensued, as did an evidentiary hearing
on plaintiffs' class certification motion. The court ruled for
plaintiffs, certified the class, and the City appealed. As
grounds, it asserted that "[t]he trial court committed reversible
error in certifying a class where the plaintiffs failed to satisfy
both the explicit and implicit requirements of Civ.R. 23."
On February 16, 2017, the court of appeals affirmed. Its opinion
combines a thorough and compact recitation of Ohio class
certification law with a dissection of the lower court's ruling.
The court started by noting that an "identifiable, unambiguous
class" exists because plaintiffs' proposed class "was specific as
to the people, time frame, and location, and was buttressed by the
map of the area and the list of people in the area."
It then found that "questions of law or fact common to the class"
exist, explaining that courts generally give Rule 23's commonality
requirement "a permissive application." Rejecting the City's
argument "that individual differences in certain issues among the
proposed class defeats the commonality requirement," the court
stated that "the balancing test of common and individual issues is
qualitative" and that "there need be only a single issue common to
all members of the class." "The fact that questions peculiar to
each individual member of the class remain after the common
questions of the defendant's liability have been resolved does not
dictate the conclusion that a class action is impermissible."
The court further found that questions common to the class
predominate over those affecting individual members, and that a
class action is "superior to other available methods to fairly and
efficiently adjudicate this controversy." In arriving at that
decision, it rejected the City's argument that this was a "mass
toxic tort case" in which individualized questions predominated,
noting, instead, that this is a "relatively small and . . . well
defined" nuisance -- not mass tort -- case.
The court also rejected the City's argument that "plaintiffs
failed to demonstrate typicality because their claims require
proof of individualized causation." It reasoned that "plaintiffs
here claim that the city created and failed to mitigate or abate
the nuisance of the emission of noxious odors over the class area,
thereby causing the plaintiffs' damages. The answer to this issue
will resolve all of the plaintiffs' claims."
And so the lawsuit proceeds against the City as a certified class
action, unless the court of appeals, sitting en banc, vacates the
panel's decision or the Ohio Supreme Court accepts jurisdiction
and reverses.
The case is Berdysz v. Boyas Excavating, Inc., Eighth District,
Ohio, Court of Appeals, case no. 104001, 2017-Ohio-530, and the
decision can be found at https://goo.gl/huFtDn
GMRI INC: Calif. Judge Dismisses "Bluet-Harrison"
-------------------------------------------------
In the case, BRIANA BLUET-HARRISON, individually, and on behalf of
other members of the general public similarly situated,
Plaintiffs, v. GMRI, INC., d/b/a Red Lobster, a Florida
corporation; DARDEN RESTAURANTS, INC., a Florida corporation; and
DOES 1 through 10, inclusive, Defendants, BLUET-HARRISON v. GMRI,
INC., Case No. 2:13-CV-00777-TLN-AC (E.D. Cal.), District Judge
Troy L. Nunley granted the parties' Joint Status Report and
Request for Dismissal of Action with Prejudice.
The Court noted that, if any party fails to fully comply with all
the terms and conditions of the Joint Stipulation of Class Action
Settlement and Release entered into by the Parties in the Carter
Matter, upon receiving notice from any party that a party has not
fully complied with any of the terms and conditions of the Joint
Stipulation of Class Action Settlement and Release entered into by
the Parties in the Carter Matter, then the dismissal shall be
vacated and the parties will be returned to their original
respective positions.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/1dqWL9 from Leagle.com.
Briana Bluet-Harrison, Plaintiff, represented by Bevin Elaine
Allen Pike -- Bevin.Pike@capstonelawyers.com -- Capstone Law APC.
Briana Bluet-Harrison, Plaintiff, represented by Jonathan Sing Lee
-- Jonathan.Lee@capstonelawyers.com -- Capstone Law APC, Katherine
Ward Kehr -- katherine.kehr@capstonelawyers.com -- Capstone Law,
APC, Matthew Thomas Theriault --
matthew.theriault@capstonelawyers.com -- Capstone Law APC & Robert
Kenneth Friedl -- robert.friedl@capstonelawyers.com -- Capstone
Law, APC.
GMRI, Inc., et al., Defendants, represented by Heather L. Shook --
hshook@littler.com -- Littler Mendelson, PC & Carlos Jimenez --
cajimenez@littler.com -- Littler Mendelson.
?
GMRI INC: Calif. Court Dismisses "Tyczynski"
--------------------------------------------
In the case, KAROL TYCZYNSKI, individually, and on behalf of other
members of the general public similarly situated, Plaintiff, v.
GMRI, INC., d/b/a Red Lobster, a Florida corporation; DARDEN
RESTAURANTS, INC., a Florida corporation; and DOES 1 through 10,
inclusive, Defendants, Case No. 2:15-cv-00949-TLN-AC (E.D. Cal.),
District Judge Troy L. Nunley granted the parties' Joint Status
Report and Request for Dismissal of Action with Prejudice.
The Court noted that, if any party fails to fully comply with all
the terms and conditions of the Joint Stipulation of Class Action
Settlement and Release entered into by the Parties in the Carter
Matter, upon receiving notice from any party that a party has not
fully complied with any of the terms and conditions of the Joint
Stipulation of Class Action Settlement and Release entered into by
the Parties in the Carter Matter, then the dismissal shall be
vacated and the parties will be returned to their original
respective positions.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/Qa3DfT from Leagle.com.
Karol Tyczynski, Plaintiff, represented by Jonathan Sing Lee --
Jonathan.Lee@capstonelawyers.com -- Capstone Law APC.
Karol Tyczynski, Plaintiff, represented by Bevin Elaine Allen Pike
-- Bevin.Pike@capstonelawyers.com -- Capstone Law APC, Matthew
Thomas Theriault -- matthew.theriault@capstonelawyers.com --
Capstone Law APC & Robert J. Drexler --
Robert.Drexler@capstonelawyers.com -- Capstone Law APC.
GMRI, Inc., et al., Defendants, represented by Carlos Jimenez --
cajimenez@littler.com -- Littler Mendelson.
HARMAN-MANAGEMENT: Court Enters Protective Order in "Larson"
------------------------------------------------------------
In the case, Cory Larson, on behalf of himself and all others
similarly situated, Plaintiff, v. Harman-Management Corporation;
and 3Seventy, Inc., Defendants, Civil No. 1:16-cv-00219-DAD-SKO
(E.D. Cal.), Magistrate Judge Sheila K. Oberto entered a
Protective Order protecting the confidentiality of materials
containing trade secrets and technical, cost, price, sales,
marketing or other commercial information.
The scope of the Order provides all materials produced or adduced
in the course of discovery, including initial disclosures,
responses to discovery requests, deposition testimony and
exhibits, and the information derived from it.
Order is entered based on the representations and agreements of
the parties and for the purpose of facilitating discovery.
A copy of the Court Order dated February 1, 2017 is available at
https://goo.gl/oMI06e from Leagle.com.
Cory Larson, Plaintiff, represented by Sergei Lemberg, Lemberg &
Associates, pro hac vice.
Cory Larson, Plaintiff, represented by Stephen F. Taylor, Lemberg
Law, pro hac vice & Trinette Gragirena Kent -- tkent@kentlawpc.com
-- Kent Law Offices.
Harman-Management Corporation, Defendant, represented by Bruce J.
Boehm, McKay Burton & Thurman, David L. Bird, McKay Burton &
Thurman, PC, pro hac vice, Martin W. Jaszczuk, Locke Lord LLP, pro
hac vice & Cameron Cutler, Mckay Burton & Thurman.
3Seventy, Inc, Defendant, represented by Adam D. Bowser --
adam.bowser@arentfox.com -- Arent Fox LLP, pro hac vice, Rex Mann
-- mann@fr.com -- Fish & Richardson P.C., pro hac vice, Garrett
Kameichi Sakimae, Fish & Richardson, P.C. & Matthew R. McCullough,
Fish & Richardson P.C.
HEWLETT-PACKARD: 9th Circuit Affirms Class Action Dismissal
-----------------------------------------------------------
Heidi Brooks Bradley, Esq. -- bradleyh@lanepowell.com -- of Lane
Powell PC, in an article for JDSupra, reports that a senior
officer's violations of a corporation's code of conduct do not
give rise to a claim for violation of the federal securities laws
-- even where the corporation (including the officer himself) has
touted the company's high standards for compliance with its own
ethical code. That was the Ninth Circuit's holding in a recent
opinion affirming a district court's dismissal of a putative class
action filed against Hewlett-Packard and its former CEO and
Chairman, Mark Hurd. Retail Wholesale & Department Store Union
Local 338 Retirement Fund v. Hewlett-Packard Co. and Mark A. Hurd,
845 F.3d 1268 (9th Cir. 2017). The case arose out of Hurd's
departure from the company following revelations of Hurd's
relationship with an HP contractor and subsequent efforts to cover
up the relationship. Plaintiffs brought claims under Section 10
of the Securities Exchange Act of 1934 and Rule 10b-5, alleging
that HP had materially misrepresented or alternatively made
material omissions about its high ethical standards and compliance
with its Standards of Business Conduct ("SBC"), where its Chairman
and CEO was found to have violated the SBC.
HP touted its strict code of conduct prior to Hurd's resignation
for violating the code.
Several years earlier, under Hurd's leadership, HP had revised and
strengthened its SBC following a 2006 ethics scandal in which it
was revealed that HP had hired detectives to spy on directors,
employees and journalists. While the then-Chairman and General
Counsel faced criminal charges, Hurd (then-CEO) was found free of
any wrongdoing in that scandal, and was promoted to Chairman in
addition to his role as CEO. As the Ninth Circuit noted,
following the scandal "Hurd took many opportunities to proclaim
HP's integrity and its intention to enforce violations of the
SBC."
Four years later, in 2010, former HP contractor Jodie Fisher
contacted HP's Board of Directors through her attorney, alleging
that Hurd had sexually harassed Fisher. The Board launched an
investigation, and Hurd initially lied to the Board about the
nature of his relationship with Fisher before admitting to a "very
close personal relationship" with her. The investigation revealed
that Hurd had also falsified expense reports to hide his
relationship. Hurd resigned following the investigation, and HP
acknowledged in a press release that Hurd knowingly violated the
SBC and acted unethically. HP's stock dropped immediately upon
the announcement of Hurd's resignation, resulting in a $10 billion
loss in market cap.
Statements about a code of conduct must be both objectively false
and material to be actionable.
Investors filed a putative class action claiming that the
violations of the SBC amounted to securities fraud, either in the
form of material misrepresentations because HP's statements about
its ethics were inconsistent with Hurd's conduct, or in the form
of material omissions regarding Hurd's unethical behavior, which
Plaintiffs claimed HP had a duty to disclose. The district court
rejected both theories and dismissed the complaint with prejudice.
A three-judge panel of the Ninth Circuit unanimously affirmed the
dismissal.
In this issue of first impression before the Ninth Circuit, the
court articulated a two-part test for determining whether a
violation of a corporate code of ethics may give rise to a
securities fraud claim. First, it examined the objective falsity
of the company's statements regarding its code of ethics. Second,
it turned to the materiality of those statements. The court found
that Plaintiffs' claims failed under both elements.
As to objective falsity, the Ninth Circuit held that HP and Hurd
had made no "objectively verifiable" statements about its
compliance with the SBC, and instead characterized the code of
conduct and statements about it as "inherently aspirational."
Plaintiffs pointed in particular to Hurd's comments prefacing the
SBC as revised following the 2006 scandal, in which Hurd urged
employees to "commit together, as individuals and as a company, to
build trust in everything we do . . ." But the Court reasoned
that such statements are not "capable of being objectively false,"
and thus found no affirmative misrepresentation.
The Ninth Circuit further found that the challenged
representations were not material. It noted that companies are
required by the SEC to publish their codes of conduct, and "it
simply cannot be that a reasonable investor's decision could
conceivably have been affected by HP's compliance with SEC
regulations requiring publication of ethics standards." Moreover,
while plaintiffs pointed to the stock drop as evidence of
materiality, the court cited its decision in Police Ret. Syst. Of
St. Louis v. Intuitive Surgical, Inc., 759 F.3d 1051, 1060 (9th
Cir. 2014), for the proposition that the stock drop goes to
reliance, not materiality. Where, as here, there was no
actionable misstatement, the court would not reach the reliance
analysis.
The court also rejected plaintiffs' alternative theory that HP
failed to disclose material facts concerning Hurd's noncompliance
with the SJC. The court found that HP's "transparently
aspirational" statements in and about the SBC did not amount to a
suggestion that nobody at HP would ever violate the SBC. Absent
statements creating the impression that everyone at HP was in full
compliance with the ethical standards, there was nothing that gave
rise to a duty to disclose noncompliance.
The future is dim for securities claims based on violations of a
company's ethical code -- and that's good news for companies and
their directors and officers who wish to adopt and tout strong
codes of conduct.
Plaintiffs may complain that the Ninth Circuit's opinion takes
away a tool for enforcing compliance with codes of conduct, as (at
least in the Ninth Circuit) securities class actions based on
alleged noncompliance with SEC-mandated codes of conduct are
unlikely to survive a motion to dismiss. Indeed, defense counsel
are already brandishing Hewlett-Packard to support the assertion
that statements about ethics-policy compliance are not actionable
under the securities laws -- Goldman Sachs sent a letter to the
Second Circuit recently citing the HP decision in support of
Goldman's bid to decertify a class of investors suing over its
Abacus CDO.
But I think the better view is that the court's ruling finding
that "aspirational" statements will generally not support a
finding of falsity or materiality under the securities laws should
provide a level comfort to companies seeking to adopt robust
ethical codes, and to speak freely both within the company and
publicly about their values and compliance goals -- with a few
notes of caution.
First, it probably goes without saying that, even under the Ninth
Circuit's newly-articulated standard, companies should avoid
unequivocal statements in or about their codes of conduct
suggesting for example that there will be no violations of the
ethical code. Such statements will likely prove false over time,
and probably demonstrably so. But apart from those types of
unequivocal statements, the Ninth Circuit's ruling should be an
encouraging sign for companies who adopt and publish strong codes
of conduct, and for directors and officers who make statements
about their efforts to abide by such codes. As the court made
clear, these "aspirational statements" about a company's
compliance with its own code of conduct -- even where strongly
stated or oft-repeated -- will typically be neither objectively
false nor material under the securities laws. As the court noted,
"A contrary interpretation -- that statements such as, for
example, the SBC's 'we make ethical decisions,' or Hurd's
prefatory statements, can be measured for compliance -- is simply
untenable, as it could turn all corporate wrongdoing into
securities fraud."
The second caution is that the Ninth Circuit's ruling did not go
so far as to say that non-compliance with a code of conduct could
never be actionable under federal securities laws. The court
imagined that "the analysis would likely be different if HP had
continued the conduct that gave rise to the 2006 scandal while
claiming that it had learned a valuable lesson in ethics."
Accordingly, companies should continue to be particularly vigilant
to avoid repeating (or continuing) prior ethical lapses, which the
Ninth Circuit suggested could give rise to causes of action,
particularly where the company indicated through public statements
that such conduct had ceased.
HORIZON BLUE: Settles Data Breach Suit for $1.1 Million
-------------------------------------------------------
Harold Brubaker at Philly reports Horizon Blue Cross Blue Shield
of New Jersey agreed to pay $1.1 million to settle allegations
that it failed to encrypt the personal data of nearly 690,000
policyholders on two laptop computers that were stolen from the
company's Newark, N.J., headquarters in November 2013, the New
Jersey Division of Consumer Affairs said.
As part of the settlement, Horizon must hire an outside expert to
analyze security risks associated with the storage, transmission,
and receipt of electronic-protected health information and to
submit a report of those findings to the Division of Consumer
Affairs within 180 days of the settlement and then annually for
two years.
Horizon said: "While it is reassuring that not a single confirmed
incident of identity theft is traceable to the two stolen laptops,
Horizon remains vigilant in protecting our members' privacy
through consistent attention to and significant investment in our
physical and cyber security practices."
The Third Circuit Court of Appeals in January overturned the
dismissal of a putative class-action suit filed after the 2013
data breach, concluding that even without evidence of misuse the
improper disclosure itself constituted an injury.
KING DIGITAL: May 18 Class Action Settlement Fairness Hearing Set
-----------------------------------------------------------------
The following statement is being issued by Robbins Geller Rudman &
Dowd LLP and Scott+Scott LLP regarding the King Digital
Shareholder Litigation:
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
In re KING DIGITAL ENTERTAINMENT plc
Lead Case No. CGC-15-544770
SHAREHOLDER LITIGATION
This Document Relates To:
ALL ACTIONS.
Lead Case No. CGC-15-544770
CLASS ACTION
SUMMARY NOTICE OF PROPOSED
SETTLEMENT OF CLASS ACTION
Assigned for All Purposes to the
Honorable Curtis E.A. Karnow
Dept. 304
Date Action Filed: 03/17/15
TO: ALL PERSONS AND ENTITIES WHO PURCHASED KING DIGITAL
ENTERTAINMENT PLC ("KING" OR THE "COMPANY") ORDINARY SHARES FROM
MARCH 26, 2014 TO SEPTEMBER 22, 2014, AND WHO SOLD THOSE SHARES AT
A LOSS (THE "CLASS")
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 May 18,
2017, at 9:00 a.m., before the Honorable Curtis E.A. Karnow at the
Superior Court of California, County of San Francisco (the
"Court"), located at the Civic Center Courthouse, 400 McAllister
Street, San Francisco, CA 94102, to determine whether: (1) the
proposed Settlement as set forth in the Stipulation of Settlement
dated October 31, 2016 ("Stipulation") of the above-captioned
action ("Litigation") for $18,500,000 in cash should be approved
by the Court as fair, reasonable and adequate; (2) the Plan of
Allocation should be approved by the Court, as fair, reasonable
and adequate; (3) to award Class 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); and (4) to pay Class Representatives service awards for
representing the Class in this Litigation out of the Settlement
Fund.
This Litigation is a securities class action against King, certain
of its executives, and the underwriters of King's March 26, 2014
Initial Public Offering ("IPO") alleging that King's Registration
Statement and Prospectus ("Registration Statement"), issued in
connection with the IPO, misstated and omitted material facts from
the Registration Statement, including, among other things,
material information about the Company's hit game, Candy Crush
Saga's ("Candy Crush") decline in gross bookings and the alleged
inability of the Company to diversify away from Candy Crush.
Defendants deny all of Plaintiffs' allegations.
IF YOU PURCHASED KING ORDINARY SHARES FROM MARCH 26, 2014 TO
SEPTEMBER 22, 2014, AND SOLD THOSE SHARES AT A LOSS, YOUR RIGHTS
MAY BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION.
To share in the distribution of the Net Settlement Fund, you must
establish your rights by submitting a Proof of Claim by mail
(postmarked no later than May 23, 2017) or submitted
electronically no later than May 23, 2017 at
www.kingdigitalshareholdersettlement.com. Your failure to submit
your Proof of Claim by May 23, 2017 will subject your claim to
possible rejection and may preclude you from 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. Class
Counsel represent you and other Members of the Class. If you want
to be represented by your own lawyer, you may hire one at your own
expense.
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.kingdigitalshareholdersettlement.com, or by writing
to:
King Digital Shareholder Litigation
Claims Administrator
c/o Gilardi & Co. LLC
P.O. Box 30247
College Station, TX 77842-3247
Phone: 1-866-664-1678
Inquiries may also be made to a representative of Class Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
Shareholder Relations
c/o Rick Nelson
655 West Broadway, Suite 1900
San Diego, CA 92101
Phone: 1-800-449-4900
Inquiries should NOT be directed to Defendants, the Court, or the
Clerk of the Court.
IF YOU DESIRE TO BE EXCLUDED FROM THE CLASS, YOU MUST SUBMIT A
REQUEST FOR EXCLUSION SUCH THAT IT IS POSTMARKED NO LATER THAN
APRIL 24, 2017, 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 CLASS COUNSEL
FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES, AND/OR THE PAYMENT
TO CLASS REPRESENTATIVES FOR THEIR TIME AND EXPENSES. ANY
OBJECTIONS MUST BE SENT TO CLASS COUNSEL POSTMARKED BY APRIL 24,
2017, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE.
DATED: February 1, 2017
BY ORDER OF THE SUPERIOR COURT OF
CALIFORNIA, COUNTY OF SAN FRANCISCO
HONORABLE CURTIS E.A. KARNOW
MARKETSTAR CORP: Settlement in "Adams" Suit Gets Initial Approval
-----------------------------------------------------------------
In the case, KARL ADAMS, III and SHIANNA NOTSCHER, individually,
and on behalf of all others similarly situated, Plaintiffs, v.
MARKETSTAR CORPORATION, a corporation; and CREATE MARKETING AND
SOLUTIONS INC., a corporation, Defendants, No. 2:14-cv-02509-TLN-
DB (E.D. Cal.), District Judge Troy L. Nunley granted the parties'
Stipulation of Settlement in support of the Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement.
For purposes of the settlement, the Settlement Class is composed
of all persons currently or formerly employed by the Defendant
MarketStar Corporation or Create Marketing and Sales Solutions
Inc. in the State of California, as Product Specialists, Brand
Advocates, Market Sell-Through Managers, Market Managers,
Territory Managers, Territory Representatives, Field Sales
Advocates, Field Sales Representatives, Field Marketing Managers,
Specialists, Trainers and any other field positions, which either
or both Defendants classified as exempt, whose job
responsibilities included making store visits and/or interacting
with store personnel, whether to assist in sales, promote brand
awareness or train store personnel or other field employees,
during the period from August 15, 2010 through April 22, 2016.
The Court confirms Plaintiffs Karl Adams, III and Shianna Notscher
as the class representatives and Righetti Glugoski, P.C. and
Rastegar Law Group, APC as the Class Counsel. The Court further
confirms CPT Group, Inc. as the Claims Administrator with the
reasonable administration costs estimated not to exceed
$15,000.00.
Moreover, the Court preliminarily approves the Class Counsel's
ability to request attorneys' fees of up to one-third of the Gross
Settlement Amount ($833.333.33), and costs not to exceed
$40,000.00.
Based on the Order, the Court orders:
(a) the Class Counsel to file a motion for approval of the Fee
and Expense Award and the Service Payment, with the appropriate
declarations and supporting evidence, at least 14 days after Class
Notice is mailed;
(b) the Class Counsel to file a motion for Final Approval of the
Settlement, with the appropriate declarations and supporting
evidence, including a declaration setting the identity of any
Settlement Class Members who request exclusion from the
Settlement, by July 27, 2017; and
(c) the Settlement Class Member to be given a full opportunity
to object to the proposed Settlement and request for attorneys'
fees and to participate at a Final Approval Hearing which the
Court sets to commence on August 24, 2017.
A copy of the Court's Order dated February 1, 2017 is available at
https://goo.gl/lkr8Ha from Leagle.com.
Karl Adams, III, Plaintiff, represented by John James Glugoski,
Righetti Glugoski PC.
Shianna Notscher, Plaintiff, represented by Farzad Rastegar --
farzad@rastegarlawgroup.com -- Rastegar Law Group, APC & Justin
Fort Marquez -- justin@rastegarlawgroup.com -- Rastegar Law Group,
APC.
Marketstar Corporation, et al., Defendants, represented by Melinda
S. Riechert -- melinda.riechert@morganlewis.com -- Morgan, Lewis &
Bockius LLP, Shira Franco -- sfranco@dglaw.com -- DAVIS & GILBERT
LLP, pro hac vice, Maureen C. McLoughlin, Davis & Gilbert, LLP,
pro hac vice, Nirupama Hegde -- nhegde@dglaw.com -- Davis &
Gilbert, LLP, pro hac vice & Kathryn Nazarian --
kate.nazarian@morganlewis.com -- Morgan, Lewis & Bockius Llp.
MARRIOTT INTERNATIONAL: Vasquez Sues Over ERISA and COBRA Breach
----------------------------------------------------------------
Alina Vazquez, individually and on behalf of all others similarly
situated v. Marriott International Inc., Case No. 8:17-cv-00116-
MSS-MAP (M.D. Fla., January 17, 2017), alleges that the Defendant
failed to provide required notices of their right to continued
health care coverage under the Consolidated Omnibus Reconciliation
Act of 1985 (COBRA).
Defendant Marriott International Inc., which operates a
hospitality company that manages and franchises a broad portfolio
of hotels and related lodging facilities, is the plan sponsor of
the Health Plan.
The suit asserts that Marriott violated the Employee Retirement
Income Security Act of 1974, as amended by COBRA. As a result of
these violations, which threaten Class Members' ability to
maintain their heath care coverage, Plaintiffs seek statutory
penalties, injunctive relief, attorneys' fees, costs and expenses.
The Plaintiff is represented by:
Luis A. Cabassa, Esq.
Brandon J. Hill, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: lcabassa@wfclaw.com
bhill@wfclaw.com
mkimbrou@wfclaw.com
MCDONALD'S: Judge Allows Blind Man's Suit to Go Forward
-------------------------------------------------------
Journal Star reports that a federal judge has ruled a blind man's
lawsuit can go forward against McDonald's arguing he can only
purchase food in the middle of the night if he has a vehicle.
Scott Magee filed a lawsuit in May in Chicago federal court
alleging that only offering service at drive-thru windows when the
restaurant's inside is closed violates the Americans with
Disabilities Act.
The Chicago Tribune reports that the Louisiana man wants the
Illinois-based fast-food chain to find a way to sell its food to
those who physically can't use a drive-thru. Many locations
operate only as drive-thrus late at night for security reasons.
A judge ruled on February 15 that Magee's lawsuit can go forward
despite McDonald's efforts to have it dismissed. Magee is seeking
class-action status.
Attorneys representing McDonald's declined comment.
MCDONALD'S: Settlement in "Ochoa" Gets Initial Approval
-------------------------------------------------------
In the case, STEPHANIE OCHOA, et al., Plaintiffs, v. McDONALD'S
CORP., et al., Defendants, Case No. 3:14-cv-02098-JD (N.D. Cal.),
District Judge James Donato granted the Plaintiffs' Motion for
Preliminary Approval of Settlement.
The Court schedules a hearing to determine whether to grant final
approval of the Settlement on July 13, 2017.
CPT Group, Inc. is appointed as the Claims Administrator.
Meanwhile, a class member may opt out of the Settlement by timely
mailing a valid opt-out statement to the Claims Administrator. The
Court noted that, as determined by the Claims Administrator after
input from Class Counsel and McDonald's, no opt-out statement
shall be honored or valid if postmarked more than 60 calendar
days after the postmark date of the initial mailing of the Class
Notice.
The Court noted that, no later than 35 days before the Final
Approval Hearing, the Plaintiffs shall file a motion for final
approval of the settlement.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/X5EP7m from Leagle.com.
Stephanie Ochoa, Plaintiff, represented by Barbara Jane Chisholm -
- bchisholm@altshulerberzon.com -- Altshuer Berzon LLP.
Stephanie Ochoa, et al., Plaintiffs, represented by Joseph Marc
Sellers -- michael.j.sellers@gmail.com -- Cohen Milstein Sellers &
Toll PLLC, Kristin Marie Garcia -- kgarcia@altshulerberzon.com --
Altshuler Berzon LLP, Matthew J. Murray --
mmurray@altshulerberzon.com -- Atshuler Berzon LLP, Michael Rubin
-- mrubin@altshulerberzon.com -- Altshuler Berzon LLP, Miriam Rose
Nemeth -- mnemeth@cohenmilstein.com -- Cohen Milstein Sellers and
Toll PLLC & Patrick Casey Pitts -- cpitts@altshulerberzon.com --
Alsthuler Berzon LLP.
McDonald's Corp., et al., Defendants, represented by Brent D.
Knight -- bdknight@jonesday.com -- Jones Day, pro hac vice,
Jonathan Bunge, Quinn Emanuel Urquhart and Sullivan, LLP, pro hac
vice, Jonathan M. Linus, pro hac vice, Lawrence C. DiNardo, pro
hac vice, Allison B. Moser -- amoser@svelf.com -- JONES DAY,
Catherine Suzanne Nasser, Jones Day, Daniel Lombard, Quinn Emanuel
Urquhart and Sullivan, LLP, pro hac vice, Diane M. Doolittle --
dianedoolittle@quinnemanuel.com -- Quinn Emanuel Urquhart &
Sullivan, LLP, Elizabeth B. McRee, Jones Day, Kelsey Israel-
Trummel -- kitrummel@jonesday.com -- Jones Day, Margaret Pepple,
Quinn Emanuel Urquhart and Sullivan, LLP, pro hac vice & Valerie
Anne Lozano -- valerielozano@quinnemanuel.com -- Quinn Emanuel
Urquhart and Sullivan LLP.
MEMPHIS, TN: Class Action Mulled Over City Hall Blacklist
---------------------------------------------------------
Ryan Poe and Jody Callahan, writing for USA TODAY NETWORK, report
that Memphis Police Director Michael Rallings said in a video
statement released on Feb. 20 that some of the names on a list of
people requiring an escort in City Hall could be removed pending
review, after a local attorney warned that MPD may have violated a
federal order banning political surveillance.
Mr. Rallings' YouTube video statement came after local attorney
Bruce Kramer said the list may violate a federal court order
issued in 1978 in response to a lawsuit he litigated on behalf of
the American Civil Liberties Union. The consent decree banned
political surveillance following revelations the department spied
on civil rights activists, war protesters and other "radicals" for
years.
"There's no rhyme or reason," said Mr. Kramer, who is considering
filing a class-action lawsuit over the list. "We don't know why
the 81 people are on this blacklist. . . . But we're definitely
going to look into it."
Some people were added to the list after the "die-in" protest
staged at Mayor Jim Strickland's home last December, Mr. Rallings
said in his statement. However, he added, some of the people on
the list likely should not have been placed there.
"(This authorization of agency) is a broad list which stems from
the 'die in' which took place last year. Individuals (on the
list) were believed to be affiliated with the 'die in' assembly,
but after further review it appears that some names were listed in
error. Keep in mind that the list is constantly being reviewed
and evaluated. Due to the Memphis Police Department receiving an
open records request that by law we must fulfill, we did not alter
the list prior to releasing it to the public in an effort to
remain transparent," Mr. Rallings said. "Once we have completed
our review, and is deemed necessary, those names that should not
be included will be removed."
Memphis Police Deputy Director Mike Ryall said on Feb. 17 he
wouldn't reveal why specific people were on the list, which was
made public that evening in response to an open records request.
On Feb. 20, Mr. Strickland said that he had yet to schedule a
meeting -- promised in a statement on Feb. 18 -- to review the
list with Mr. Rallings. City offices were closed for Presidents'
Day on Feb. 20. But Mr. Strickland said city officials are
reviewing the policies related to the creation of the list and
whether the city is in violation of the consent decree.
Memphis Chief Legal Officer Bruce McMullen didn't return a call
seeking comment about the consent decree.
Although he wouldn't commit to changing the list before meeting
Mr. Rallings, Mr. Strickland said he is mindful of the free speech
concerns for the people being shadowed by police in City Hall.
"I am concerned about that, and that's one of the reasons I asked
for a review of the process," Mr. Strickland said.
Echoing a statement on Feb. 18, Mr. Strickland claimed he was
ignorant of the City Hall list until 10 days ago, although he
acknowledged signing an "authorization of agency" form Jan. 4
after some protesters peeked through his windows during the
"die-in." The form is a certification that a property owner has
warned certain people against trespassing on their property.
Police recommended the names on the form, and later incorporated
the form into the list without his knowledge, he said.
"I signed it," Strickland said, describing his part in creating
the form.
Many of the people named in the form -- a who's who list of
protesters -- say they were never notified they were banned from
entering Mr. Strickland's property and weren't even at the "die-
in."
Memphis City Hall requires police escort for Darrius Stewart's
mother, protesters
The department is also violating a provision of the consent decree
by not publicly displaying the no-spying policy on its website,
Mr. Kramer said. In 2010, in response to reporting by The
Commercial Appeal, the MPD posted the policy online and
incorporated it into its policy and procedure manual for the first
time since the decree was issued.
"This is not the first time they've not done that," Mr. Kramer
said of the city not following the decree.
Several people on the list and Kramer said they've contacted the
ACLU, which is looking at the case.
Memphis Mayor Jim Strickland to review City Hall escort list
Shelby County doesn't have a "list" for the Vasco A. Smith Jr.
Administrative Building across Civic Plaza from City Hall, but
does require an escort for a "couple of people" posing a security
risk, said County Mayor Mark Luttrell. Mr. Luttrell said he asked
for details of the county's policy on Feb. 20 and was told there
wasn't one, that those decisions about escorts are made on a case-
by-case basis.
"We really haven't had a need for it," Mr. Luttrell said of a
formal list.
Included on the City Hall list are Mary Stewart, mother of Darrius
Stewart, who was killed by Memphis police in 2015; activist
DeVante Hill, a prominent protester in the Black Lives Matter
protest that shut down the Interstate 40 Hernando DeSoto Bridge
last July; the Rev. Elaine Blanchard, who officiated a gay
marriage in Memphis the day the U.S. Supreme Court ruled state
bans on gay marriage were unconstitutional and who took part in
Black Lives Matter protests last year; executive director Brad
Watkins and organizer Paul Garner of the Mid-South Peace and
Justice Center; and former University of Memphis basketball star
and mayoral candidate Detric Golden, who was also involved in
Black Lives Matter protests last year.
Standing in front of Memphis City Hall, Mr. Hill on Feb. 20 called
on Mr. Strickland to explain and repudiate the list and said he
would "absolutely" be interested in being a party to a class-
action lawsuit against the city.
"This is definitely an attack on activists," said Mr. Hill, who
works with One Memphis One Vision. "It's definitely an attack on
our right to protest. And it's definitely an attack on our right
not to be spied on."
Despite Mr. Strickland's statements to the contrary, Mr. Hill said
Strickland knew -- or should have known -- about the list, and
called on Strickland to apologize.
Mr. Hill said he believed he was blacklisted because Black Lives
Matter protesters "caught them off guard" when they flooded onto
the Interstate 40 Hernando DeSoto Bridge in July 2016, halting
traffic for hours.
"Memphis has a problem and it's not crime. It's not its homicide
rate," he said. "The big problem in Memphis is its government."
Mr. Watkins said the list revealed systemic problems at the
Memphis Police that stretched further back into history than
Strickland's term.
"This isn't a 'Strickland enemies' list; this is an 'MPD enemies'
list," Mr. Watkins said.
But Messrs. Watkins said Strickland's administration isn't being
transparent about why police added protesters to the list. Watkins
believes police targeted protesters for no other reason than that
they were involved in protests related to policing -- a typical
approach for Memphis police.
"It's just another Monday in Memphis," Mr. Watkins said.
MICROFIBRES: Former Workers May Get Half of Compensation Claim
--------------------------------------------------------------
Richard Craver, writing for Winston-Salem Journal, reports that
former Microfibres Inc. employees may receive about 50 percent of
their WARN Act compensation claim as part of a settlement,
according to a bankruptcy filing on Feb. 17.
Microfibres, based in Pawtucket, R.I., filed for Chapter 7
voluntary protection in January 2016 with plans to liquidate its
assets. It closed its plants in Winston-Salem and Pawtucket on the
same day.
The local workforce was at 270 employees in 2004. About 125
employees in Winston-Salem and 60 in Pawtucket were projected to
be covered by federal Worker Adjustment and Retraining
Notification, or WARN, protections.
The lead plaintiff is former Winston-Salem employee
Cedric Williams. The class-action lawsuit requested at least $1.5
million in damages and priority administrative claim status for
the first $12,745 of each employee's claim, meaning they typically
would be first in line after secured creditors were paid.
That the parties had reached a settlement was disclosed Jan. 13. A
U.S. Bankruptcy Court judge sealed parts of the settlement Jan.
23.
The gross settlement was valued at $1 million. The Feb. 17 filing
listed compensation amounts for 176 employees, which added up to
$635,000 pre-tax. They claimed damages of a combined $1.26
million.
The pre-tax compensation amounts range from $327.51 to $13,697,
with the majority in the $2,500 to $4,500 range.
The filing did not list when the compensation would be paid.
Attorneys for the plaintiffs and Microfibres could not be reached
for comment on Feb. 20.
The filing said attorney fees would be $330,000, while $25,000
would go to lawsuit expenses and $10,000 to Mr. Williams for his
role as class representative.
The Feb. 17 filing listed the employees' names, damages claim and
pre-tax compensation, but not their addresses.
The attorneys have said the settlement motion "contains all the
relevant information that a party requires to form an opinion on
the settlement's relative benefit to the estate."
The WARN act was put into place in 1989 with the intent of
preventing situations in which rank-and-file employees show up for
work only to discover that their employer has shut down without
notice.
The act does this by requiring companies that are planning large
job cuts -- defined as more than 50 employees -- to notify their
state and local governments, as well as affected workers, at least
60 days in advance.
The act provides certain benefits to laid-off workers, such as 60
days of pay and benefit contributions if the closing is immediate,
and access to COBRA insurance benefits for 60 days.
However, the U.S. Labor Department has no authority to enforce
WARN regulations, hear employee complaints, investigate potential
wrongdoing or file lawsuits representing employees.
Employees must file a lawsuit in court to assert WARN rights.
Joseph DiOrio, the trustee, had claimed the company is not
financially liable to the workforce "because it was a faltering
business when it ceased operations."
He said Microfibres acted in good faith toward its employees,
including paying them "in full for compensation they were owed."
MONSANTO: Responds to Class Action Over Dicamba Controversy
-----------------------------------------------------------
Alisa Nelson at Ozarks First reports that farmers in ten states,
including Missouri, have filed a class action lawsuit in a federal
court against St. Louis area company Monsanto for damage involving
one of the company's herbicides.
The suit was filed in the U.S. District Court for the Eastern
District of Missouri, Southeastern Division, on behalf of Steven
and Deloris "Dee" Landers and farmers in Alabama, Arkansas,
Illinois, Kentucky, Minnesota, Mississippi, North Carolina,
Tennessee, and Texas.
Monsanto responds to class action lawsuit involving Missouri farm,
dicamba controversy
The farmers allege that Monsanto knowingly marketed its Xtend
cotton and soybean seeds without any safe herbicide. The suit
claims Monsanto knew the only option purchasers would have to
protect crops grown from those seeds would be to illegally spray a
herbicide called dicamba to protect the crops from weeds.
Spraying dicamba is illegal because it can drift to other farmers'
fields and destroy their crops. The suit alleges Monsanto chose to
sell the Xtend seeds knowing that such destructive spraying would
be inevitable.
In a statement from Monsanto's Charla Lord, she says:
"This baseless lawsuit seeks an unprecedented expansion of the law
by attempting to impose liability on a company that did not make
the product that allegedly caused the damage, did not sell the
product that allegedly caused the damage, and, in fact, warned
against the very use of the product alleged in the complaint. If
any of the damage alleged in the complaint was actually caused by
use of the non-Monsanto herbicide product over Monsanto's Roundup
Ready 2 Xtend soybeans, that use was illegal and performed by
third parties over whom Monsanto has no control. This suit is
simply an attempt to shift responsibility away from individuals
who knowingly and intentionally broke state and federal law and
harmed their neighbors in the process. The lawsuit is wholly
without merit, and we will defend ourselves accordingly," says
Lord.
"Other herbicides are approved for use with Monsanto's Roundup
Ready 2 Xtend soybeans and Bollgard II XtendFlex cotton, and both
offer many benefits other than dicamba tolerance," says Lord. "
Bollgard II XtendFlex offers tolerance to both glyphosate and
glufosinate herbicides and includes many of our most advanced
cotton varieties. Roundup Ready 2 Xtend soybeans are tolerant to
glyphosate and include our newest, highest yielding soybean
varieties. Due to the superior quality of these seed varieties,
coupled with the ability to make in-crop applications of approved
herbicide products, they offered farmers strong yield potential --
even without the ability to make in-crop applications of dicamba
herbicide.
In fact, Monsanto did not charge growers for the dicamba trait
because the herbicide had not been approved for over-the-top use.
Moreover, before, during and after farmers purchased their seed,
Monsanto took many steps to warn growers, dealers and applicators
that dicamba was not approved for in-crop use. Simply put,
Monsanto does not condone or encourage the illegal use of any
pesticide. We remain confident that most farmers abide by the law,
but if some did not, they should bear responsibility in this
instance."
The complaint seeks unspecified damages for claims including
negligence, strict liability, failure to warn, conspiracy,
disgorgement of profits, and punitive damages.
NAT'L FOOTBALL: Class Action Lawyers Seek $112MM in Fees
--------------------------------------------------------
Darren Heitner, writing for Forbes, reports that the co-lead
lawyers for the class of former National Football League players,
who sued the NFL over damages related to concussions, have filed a
memorandum of law in support of their claim that they deserve
$112.5 million for their work. The eighty-two page filing, made
in the U.S. District Court for the Eastern District of
Pennsylvania, references the "historic and groundbreaking
settlement negotiated" by the lawyers that will now provide
benefits to over 20,000 retired NFL players.
"What is now recognized as a landmark settlement began over five
years ago as a high-risk, long-odds litigation undertaken by
Plaintiffs' Counsel on a wholly contingent basis. From the
outset, Plaintiffs' Counsel committed substantial time, resources,
and expertise in pursuit of recovery for retired NFL players and
their families," states the memorandum.
The lawyers allege that thousands of hours of time and millions of
dollars of expenses were incurred over the years. Additionally,
they note that the NFL Parties have agreed that they will not
oppose or object to a petition that seeks fees and costs up to
$112.5 million.
$106.8 million of the aforesaid amount is in attorneys' fees.
NATIONWIDE MUTUAL: Faces Class Action Over Leased Vehicles
----------------------------------------------------------
Krevolin & Horst LLC and SMITH LLC on Feb. 20 disclosed that in a
putative class action lawsuit pending in the United States
District Court for the Northern District of Georgia, the Court has
recognized that a person who leases a vehicle has the legal right
in certain circumstances to seek compensation on behalf of the
lease company for loss in value to the vehicle that results from
an accident.
The case is Majesko v. Nationwide Mutual Insurance Co., et al.,
1:16-cv-222-MHC (N.D. Ga.).
The complaint alleges that Nationwide Mutual Insurance Company and
Nationwide Affinity Insurance Company of America ("Nationwide")
regularly refused to pay for the diminished value to leased
vehicles when they suffered a covered loss under lessee's
insurance policy issued in the State of Georgia. The complaint
also alleges that Nationwide's policy violates Georgia law.
Similar policies by other insurers may entitle policyholders to
seek recovery in a separate case.
If you made a first-party claim for loss to a leased vehicle
covered by a Georgia insurance policy and were not compensated for
the diminished value of the vehicle, you may have a claim against
your insurer.
You may be able to engage Krevolin & Horst and SMITH, or other
counsel of your choice, to evaluate possible claims you may have
against your insurer. Krevolin & Horst is a business boutique
firm that handles high-stakes litigation, including Qui Tam/False
Claims Act/Whistleblower claims and class actions. SMITH has
handled large, sophisticated commercial litigation for years and
maintains its primary office in Atlanta.
If you would like to discuss the pending litigation, or have any
questions concerning this notice or your rights or interests with
respect to these matters, please contact attorneys Halsey G.
Knapp, Jr. at 404-888-9611 or John Da Grosa Smith at 404-605-9680.
You can also visit our firms' websites at www.khlawfirm.com or
www.smithlit.com
NEINSTEIN & ASSOCIATES: Appeals Ruling in Contingency Fee Case
--------------------------------------------------------------
Shannon Kari, writing for Law Times, reports that Neinstein &
Associates LLP is appealing a majority Divisional Court decision
that certified a class action against the firm as a result of the
standard contingency fee agreements it entered into with clients.
The main ruling in Hodge v. Neinstein found that the standard
agreement was in breach of the Solicitors Act.
The court heard that the retainer agreement for clients required
them to pay 25 per cent of any damages recovered to the firm.
As well, the firm would receive partial indemnity costs, up to 40
per cent of the amount recovered, and be compensated for
disbursements.
Section 28.1 (8) of the Solicitors Act states that a contingency
fee agreement "shall not" include an award of costs or costs
obtained in a settlement, in addition to the agreed fee.
The only exception in the Act is if both the client and lawyer
apply to the Superior Court to include costs because of
exceptional circumstances.
In the majority decision, certification as a class action will
serve as a warning to all lawyers in Ontario, wrote Justice Anne
Molloy.
"The fundamental requirements for contingency fee agreements must
be followed and those who ignore them do so at their peril," said
Molloy.
The Ontario Trial Lawyers Association is an intervener in the
Court of Appeal hearing, which will be heard over two days,
beginning on March 8.
The Divisional Court decision issued by Molloy is based on an
"unfair and inaccurate" portrayal of the plaintiff-side personal
injury bar, states lawyer Paul Pape in written arguments filed
with the court on behalf of the association.
NEW MEXICO: State Settles Suit Over Back Pay
--------------------------------------------
Justin Horwath at The New Mexican reports that Paul Maestas, a
corrections specialist for the Springer Correctional Center, did
not take any sick days between July and September 2008, and
therefore qualified for eight hours of administrative leave -- a
perk awarded at the end of each three-month period to certain
state employees who didn't use paid sick time.
Initially, however, the state didn't give Maestas the benefit. The
decision helped trigger a class-action legal battle that's
stretched across two gubernatorial administrations.
Recently, major portions of the nine-year dispute between the
state and the American Federation of State, County and Municipal
Employees were put to rest. AFSCME Council 18 published a
statement on its website and Facebook page that said the public
employees union had reached a settlement with the state that calls
for workers at 24-hour facilities to receive tens of thousands of
hours worth of back pay for withheld benefits.
The settlement comes as lawmakers working to craft a spending plan
for the upcoming fiscal year are proposing tax hikes and other
measures so they can balance the budget and replenish reserve
funds without making further cuts to state agencies. A fiscal
crisis has nearly drained the state's reserve accounts in recent
months.
It's still unclear how many employees are affected by the
settlement or how many hours of back pay the state owes them.
The union's statement said it won 43,896 hours of earned leave for
2,500 state employees.
But Joseph Cueto, a spokesman for the New Mexico State Personnel
Office, said in an email that the union's statement was "grossly
inaccurate and a blatant violation of a confidentiality agreement
signed by both parties."
He added, "The union is doing a disservice to their members by
providing overtly false information."
Union spokesman Miles Conway defended the statement in an email,
saying, "We believe our estimate on the total hours was well
within the ballpark. . . . . It's a matter of over 40,000 hours."
The union's estimate that 2,500 employees are owed back benefits
is "likely too low," Conway added.
Stephen Curtice, an attorney with Albuquerque-based Youtz &
Valdez, who is representing the union in the case, said that along
with back pay, all state workers in 24-hour facilities will now
qualify for the eight-hour benefit at the end of each quarter in
the calendar year if they do not take sick leave during that time.
Previously, the state was limiting the benefit to employees in 24-
hour facilities who work rotating shifts, which violated the union
contract, according to the union's statement.
State Sen. John Arthur Smith, D-Deming, the chairman of the Senate
Finance Committee, said he had not heard about the settlement, but
he thought it sounded as if it could cost the state a lot of
money. He said he would ask officials for a cost analysis of the
deal.
"I'm just trying to put the budget together," Smith said. "But
obviously, we'll go into this to see if we can't get some hard
numbers on it."
NEW YORK: Prosecutor Files Wheelchair Access Class Action
---------------------------------------------------------
Kathianne Boniello, writing for New York Post, reports that a
Bronx prosecutor claims she's being persecuted for suing the city
over handicapped access to courthouses.
Diana Lewis, 53, was injured in a 2011 accident that broke bones
and caused nerve damage. She was the only assistant district
attorney in the Bronx who used a wheelchair, she claims in a legal
filing.
Ms. Lewis, an Emmy Award-winning television producer who became a
lawyer later in life, struggled getting to and from work, because
of a consistently broken elevator at a nearby subway station and a
lack of handicapped access in two of the three buildings used by
the Bronx DA's office, she claims.
She had an accident in the Bronx Hall of Justice, and found the
only wheelchair ramp at the Criminal Court was at an unsafe side
entrance with limited hours, Lewis charges.
The buildings are a block apart, but getting between them was
arduous, she said, especially after a snowstorm.
"The sidewalks can stay inaccessible for a week," she said.
The DA's office refused to let her work from home or help her get
around.
"They have an absolute obligation to attempt to find a reasonable
accommodation," said her lawyer, Mark Moody.
Ms. Lewis began working with the New York Lawyers for the Public
Interest on the access issue, and joined a class-action lawsuit
against the city.
When the DA's office found out about her involvement in the
litigation, her supervisor demanded she resign, Ms. Lewis claims
in her lawsuit against the Bronx DA. Ms. Lewis refused to leave
the job she's had since 2010, but hasn't been back at work since.
"I love this job, it was the best job I ever had," said
Ms. Lewis, who worked at MTV, on "The Late Show" with
David Letterman and Jon Stewart's original show.
Her Manhattan Federal Court lawsuit seeks $4 million in damages
and a judge to order the DA's office to allow her to do some work
from home.
The DA declined comment.
NEW YORK LIFE: Settles Excessive 401(k) Fees Suit for $3-Mil.
-------------------------------------------------------------
Robert Steyer at Pensions and Investments reports that New York
Life Insurance Co. has settled a class-action lawsuit for $3
million with participants in two company 401(k) plans who alleged
the plans offered a New York Life mutual fund pegged to the S&P
500 Stock index that was more expensive than similar index funds.
In Andrus et al. vs. New York Life Insurance Co. et al., the
defendants "admit no wrongdoing or liability with respect to any
of the allegations or claims in the complaint," said the
settlement document issued Feb. 14. The final settlement must be
approved by a New York U.S. District Court, where the suit was
filed in July 2016.
Plan participants said two New York Life 401(k) plans should have
searched for S&P 500 index funds that were cheaper than New York
Life's MainStay S&P 500 fund. "From 2010 to 2016, the plans'
fiduciaries did not act in the best interests of the plans and
their participants," the lawsuit said.
The plans are the New York Life Agents Progress-Sharing Investment
Plan and the New York Life Insurance Company Employee Progress-
Sharing Investment Plan, with aggregate assets of $3.2 billion as
of Dec. 31, 2015, according to the most recent Form 5500 filings.
The document said the MainStay S&P 500 Index Fund carried a 35-
basis-point fee compared to, for example, the Vanguard
Institutional Index Fund Institutional Plus Shares, which has a 2-
basis-point fee and tracks the S&P 500 index.
The plans retained the MainStay fund from 2010 until June 15, 2016
"when, in response to plaintiffs' investigation, it was announced
that the plans would belatedly be switched" to the Vanguard fund
effective July 19, 2016, the lawsuit said. Participants filed suit
on July 18.
The $3 million settlement covers payments to plaintiffs and legal
costs, the settlement document said.
"While we believe we have acted in full compliance with the duties
owed to our plan participants, we have decided that the best use
of resources is to fund a settlement rather than litigation,"
Kevin Maher, a New York Life spokesman, wrote in an email. "The
company's retirement plans continue to be a valued and important
part of the high quality, comprehensive benefits package we
provide to employees and agents."
NORTHERN DYNASTY: Slams Pebble Mine Short Seller Report
-------------------------------------------------------
Cecilia Jamasmie at Business Vancouver reports that Canada's
Northern Dynasty Minerals, the company behind a vast, but stalled
copper-gold project in Alaska, slammed on February 17 a short-
seller's report that claims the firm lied about the value of its
proposed Pebble mine.
Kerrisdale Capital of New York said on February 14 the project was
not commercially viable and that it really is a low-grade deposit
that would require too much upfront investment to ever generate
profits.
The report also alleged that Northern Dynasty has been hiding a
negative project assessment conducted by former partners, which
proves the miner has made false and misleading statements about
the value of Pebble.
But the Vancouver-based company came back in full force, putting
under the microscope each and every claim made by Kerrisdale
Capital in an attempt to probe the short-seller's report is
riddled with inaccuracies.
Here some highlights:
Claim: Project needs a $13 billion-investment to become a reality
ND: "Contrary to the Short Seller's report, no mine planning
scenario with a US$13 billion capital estimate was ever finalized,
approved or adopted by Northern Dynasty or Anglo American as its
50% partner in the Pebble Limited Partnership ("Pebble
Partnership").
"Further, a review of a preliminary draft US$13 billion mine
planning scenario by an independent engineering firm commissioned
by Northern Dynasty identified issues with that study and
identified savings that reduced the preliminary capital estimate
by US$4 billion."
Claim: Anglo American walked away from the project once it
realized it was not commercially viable.
ND: "During the 2013 mining downturn, Anglo American announced
that it was reconsidering its development project pipeline in
light of market conditions and was unwilling to invest another
$900 million to earn a 50% interest in the Pebble Project and
therefore terminated its earn-in option.
"Even after its decision to withdraw from the project, Anglo
American maintained a positive outlook on Pebble.
"The Short Seller also claims that the Pebble Project was "pushing
the boundaries" of engineering. That is simply untrue. "
Claim: Pebble is opposed by locals
ND: "Every mining project has opponents. However, Pebble enjoys
considerable support for its efforts to advance the Pebble Project
in Alaska today, including among elected officials, business
interests, and regional and Alaska Native communities. The Short
Seller tries to focus attention on the project's opponents while
deliberately neglecting to mention the significant support the
Pebble Project has had in Alaska."
Northern Dynasty's move comes as the company was hit with a
proposed class action in California federal court over potential
federal securities violations. The miner is currently the target
of an investigation lead by Rosen Law Firm on behalf of its
shareholders, Market Exclusive reported.
Since first proposed, Pebble mine has faced never-ending scrutiny
from environmentalists, indigenous people and even the US
Environmental Protection Agency (EPA). They have all flagged the
potential risks the project would pose to the area's salmon
population, one of the world's most valuable habitats for the
fish. But Northern Dynasty and some of its former partners in the
venture, including Anglo American, had previously said the project
could be built without harming Alaska's salmon fishing industry.
Northern Dynasty's shares have fallen more than 28% since Tuesday,
when the report was released. They closed Thursday at Cdn$2.98 in
Toronto, but were up 4.42% Friday in pre-market trading in New
York to $2.26.
NORTHSIDE VETERINARY: Bills for Treatment Not Provided, Suit Says
-----------------------------------------------------------------
Matt Sanctis at Springfield News-Sun reports two Springfield
residents have filed a lawsuit against a local veterinary clinic
alleging the business charged customers for a flea treatment and
other services that weren't administered and seeking $750,000.
The clinic and kennel's owners denied the allegations and said
they'd fight back in court.
The lawsuit, filed in Clark County Common Pleas Court, claims the
Northside Veterinary Clinic and King Kennel charged customers for
Capstar, an oral tablet to treat and prevent flea infestations in
pets from 2001 to 2014. But the complaint alleges that medication
wasn't given to pets.
"It will be proven there is no validity to this," said Dr. Dana
King, a veterinarian named in the complaint. "I've been a
veterinarian in Springfield for 39 years. Everybody that knows me
and my clients know I would never do anything like this. This is
truly false and we will defend ourselves."
The complaint seeks more than $750,000 in punitive damages,
attorneys fees, interest and other damages.
Attorneys for the plaintiffs, Tiffany Lobeck and Vaughn McKenney
of Springfield, didn't return a call seeking comment.
The lawsuit alleges all pets boarded at the King Kennel were
billed for a Capstar treatment to ensure a flea infestation didn't
occur. Lobeck and McKenney allege in court records that the kennel
never ordered Capstar from a distributor and didn't have the
treatment available on site.
The complaint also asked that the case be allowed to proceed as a
class action lawsuit. It also alleged the clinic and kennel billed
for other services that weren't provided.
"Despite defendants' representations to plaintiffs and other
similarly situated individuals of the class that all incoming
animals must receive the Capstar flea treatment and, thus be
billed for the treatment, Defendants never administered the
Capstar treatment to the animals," the lawsuit says. "Rather
defendants merely billed for the treatment without providing the
Capstar drug or any related flea infestation treatment to the
animals."
Richard Mayhall, King's attorney, questioned the timing of the
complaint.
The veterinarian's office was the alleged victim in a separate
criminal case in which a former employee has been accused of
stealing more than $150,000 from the kennel over several years.
That case was scheduled to move forward this week, but Mayhall
said prosecutors delayed it shortly after Lobeck and McKenney's
case was filed.
"Everybody should draw their own conclusions," Mayhall said. "Is
it a valid lawsuit or is it an attempt to smear the Kings and
delay the criminal trial?"
OKLAHOMA: Takes Steps to Implement Child Welfare Reform Plan
------------------------------------------------------------
The Associated Press reports that more children were abused or
neglected by foster parents in Oklahoma in 2015 than any other
state in the nation, according to a federal report.
The child maltreatment report by the Children's Bureau of the U.S.
Department of Health and Human Services says there were 150
confirmed cases of children abused or neglected by Oklahoma foster
parents in 2015, The Oklahoman reported on Feb. 19. That's 121
more than Texas, which has more than seven times as many people,
and 34 more than California, which has 10 times as many as people.
"We all agree it's too high," said Sheree Powell, spokeswoman for
the state Department of Human Services. "We've got to bring this
down. That's what all of our efforts are focused on."
High abuse and neglect numbers also were reported for children
staying at Oklahoma's group homes and residential facilities. The
62 confirmed maltreatment cases by staff at Oklahoma group homes
and residential facilities were second only to Texas, which
reported 111 incidents.
The numbers reflect data from federal fiscal year 2015, when
Oklahoma was already into the fourth year of implementing a child
welfare reform plan agreed upon as part of a settlement agreement
to a Tulsa federal class-action lawsuit.
Early on, the state took steps to reduce the use of state
shelters, add foster homes, add child welfare workers and reduce
caseloads, measures expected to reduce incidents of children being
abused and neglected in state care.
Jami Ledoux, DHS child welfare director, said that within the past
year she has seen reason for optimism. The agency has developed a
number of new programs designed to detect warning signs before
abuse occurs and those programs are having an impact, she said.
"We're still not anywhere close to where we want to be in terms of
what that national standard is, but we have seen improvements for
the last three consecutive reporting periods," Ms. Ledoux said.
P.W. STEPHENS: Settlement in "Lopez" Gets Final OK
--------------------------------------------------
In the case, ANED LOPEZ and CRISTIAN ALAS, on Behalf of Themselves
and Others Similarly Situated, Plaintiffs, v. P.W. STEPHENS
ENVIRONMENTAL, INC., a Delaware Corporation, and DOES 1-10
inclusive, Defendants, Case No. 3:15-CV-03579-JD (N.D. Cal.),
District Judge James Donato granted the Plaintiffs' Motion for
Final Approval of Class and Collective Action Settlement.
The Motion seeks an order granting final approval of Plaintiffs'
settlement agreement and release with the Defendant P.W. Stephens
Environmental, Inc.
The Court confirms as final the appointment of Aned Lopez and
Cristian Alas as Class Representatives, while the Plaintiffs'
counsel, Leonard Carder, LLP and Legal Aid Society - Employment
Law Center as Class Counsels. Moreover, the Court appoints the
California Rural Legal Assistance, Inc. as cy pres beneficiary as
provided in the Agreement.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/hP0tyB from Leagle.com.
Aned Lopez, Plaintiff, represented by Carole Vigne --
cvigne@legalaidatwork.org -- Legal Aid at Work.
Aned Lopez, Plaintiff, represented by David Philip Pogrel --
cvigne@legalaidatwork.org -- Leonard Carder LLP, Diane Leslie Webb
-- dwebb@legalaidatwork.org -- Legal Aid Society-Employment Law
Center, Giselle Olmedo -- golmedo@leonardcarder.com -- Leonard
Cardner, LLP & Aaron D. Kaufmann -- akaufmann@leonardcarder.com --
Leonard Carder, LLP.
P.W. Stephens, Defendant, represented by Aaron Franklin Olsen --
aolsen@laborlawyers.com -- Fisher & Phillips, LLP & John Ellis
Lattin, IV -- jlattin@fisherphillips.com -- Fisher & Phillips LLP.?
PHH CORP: Panel to Hear Case Over Illegal Kickbacks
---------------------------------------------------
Sam Hananel and Marcy Gordon at The Associated Press report that a
federal appeals court said on Feb. 16 it will reconsider an
earlier ruling that would have made it easier for President Donald
Trump to fire the head of the government's consumer finance
watchdog agency.
The decision offers at least temporary job security for
Richard Cordray, the director of the Consumer Financial Protection
Bureau who has been attacked by Republicans for his aggressive
oversight of the banking industry.
A divided three-judge panel had ruled last year that the way the
bureau is organized violates the Constitution's separation of
powers by limiting the president's ability to fire the agency
director. That 2-1 ruling would have given Trump the power to
dismiss Mr. Cordray for any reason, a move some GOP lawmakers have
sought.
But the full U.S. Court of Appeals for the District of Columbia
said it would grant a request from the bureau to throw out that
ruling and hear arguments in the case again on May 24.
Mr. Cordray is a Democrat and Obama appointee whose five-year term
doesn't end until next year.
The banking industry has viewed the bureau as a thorn in its side
and accused it of overreaching in its regulation of consumer
financial activities. Trump had promised during his campaign to
dismantle the 2010 law that created the bureau in response to the
financial crisis that struck in 2008.
The CFPB was created to protect consumers from harmful banking and
lending practices. But Wall Street interests, the banking and
consumer finance industries, and Republicans in Congress have
fiercely opposed and criticized the agency.
The law creating the independent agency says its director can only
be removed "for cause," such as neglect of duty, and not over
political differences. The three-judge panel said that conflicts
with the Constitution, which allows the president to remove
executives for any reason.
That problem can be solved, the panel said, by taking out the "for
cause" provision -- giving the president the power to remove the
director at will, and to supervise him or her.
Mr. Cordray has run the agency since it began operating in July
2011. His term doesn't expire until 2018. But the court's
previous ruling would have allowed the president to fire him
before then.
As the agency's director, Mr. Cordray exercises more power than
would be the case with a five-member commission, which is often
the structure atop independent federal agencies. The members of
such commissions normally are split between the political parties.
Under Mr. Cordray's leadership, the agency has aggressively taken
action against banks, mortgage companies, credit card issuers,
payday lenders, debt collectors and others. The CFPB says that
over five years it has recovered $11.7 billion that it returned to
more than 27 million harmed consumers.
The case before the appeals court involves allegations that
New Jersey mortgage lender PHH Corp. was involved in a scheme to
refer customers to certain mortgage insurance companies in
exchange for illegal kickbacks. The CFPB ordered the company to
repay $109 million in illegal payments it had received. PHH
claimed its conduct was legal and challenged the agency's
structure as unconstitutional.
The case will now be heard by a panel of 10 judges, six appointed
by Democratic presidents and four appointed by Republicans. All
three judges on the panel that issued the previous ruling were
named by Republican presidents.
A CFPB spokeswoman did not immediately respond to a request for
comment.
POLY IMPLANT: Not Necessarily Liable for Faulty Breast Implants
---------------------------------------------------------------
The Associated Press reports that the European Court of Justice
says a German product-testing company is not necessarily liable
for faulty French breast implants sold to thousands of women
around the world.
The manufacturer, Poly Implant Prothese (PIP), was convicted in
France of fraud for making implants with industrial-grade silicone
instead of medical silicone, but the bankrupt company couldn't pay
damages to women who suffered from leaky implants as a result.
Many women sought compensation from product-testing company TUV
Rheinland instead.
Prompted by one such case, the European Court of Justice ruled on
Feb. 16 that companies such as TUV are "not under a general
obligation to carry out unannounced inspections" or examine
devices or manufacturers' business records.
The court left it up to national law to determine whether TUV did
what's necessary to protect end users of medical devices.
RBS CITIZENS: Settlement in "Sanders" Gets Final Approval
---------------------------------------------------------
In the case, LINDA SANDERS, on behalf of herself and all others
similarly situated, Plaintiff, v. RBS CITIZENS, N.A., Defendant,
Case No. 13-cv-3136-BAS-RBB (S.D. Cal.), District Judge Cynthia
Bashant granted the parties' Joint Motion for Final Approval of
Class Action Settlement.
For purposes of the Settlement, the Settlement Class is composed
of all persons in the United States who received a call on their
cellular telephones from the Defendant, or any third parties
calling on a Defendant account, made with an alleged automatic
telephone dialing system (ATDS) and/or an artificial or pre-
recorded voice from December 20, 2009 through July 13, 2015 whose
telephone numbers are identified in the Class List.
The Settlement contemplates that the Defendant shall pay
$4,551,267.50 to settle the Action and obtain a full release from
Settlement Class Members of all Released Claims.
The Court appointed Douglas J. Campion of the Law Offices of
Douglas J. Campion, APS and Ronald A. Marron, Alexis M. Wood and
Kas L. Gallucci of the Law Offices of Ronald A. Marron as Class
Counsel for the Settlement Class. Meanwhile, the Court awarded the
attorney's fees, costs and an incentive service award to Linda
Sanders and Class Counsel.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/SzIBIC from Leagle.com.
Linda Sanders, Plaintiff, represented by Alexis M. Wood --
alexis@consumersadvocates.com -- Law Offices of Ronald A. Marron.
Linda Sanders, Plaintiff, represented by Douglas J. Campion --
doug@djcampion.com -- Law Offices of Douglas J Campion, Kas L.
Gallucci -- kas@consumersadvocates.com -- Law Offices of Ronald A.
Marron & Ronald Marron -- ron@consumersadvocates.com -- Law Office
of Ronald Marron.
RBS Citizens, N.A., Defendant, represented by Raagini Shah --
raagini@gmail.com -- Reed Smith LLP, Raymond Y. Kim --
rklm@reedsmith.com -- Reed Smith, LLP & Saber W. VanDetta, Squire
Patton Boggs (US) LLP, pro hac vice.
Regional Adjustment Bureau, Inc., Miscellaneous Party, represented
by Darin Lee Wessel -- dlw@manningllp.com -- Manning & Kass Ellrod
Ramirez Trester LLP.
Global Credit & Collection Corp, Miscellaneous Party, represented
by Brian Ledebuhr, Vedder Price Kaufman and Kammholz, pro hac vice
& Deborah Hedley -- dhedley@vedderprice.com -- Vedder Price LLP.
REGENCY CENTERS: Settles Class Action Over Equity One Merger
------------------------------------------------------------
Regency Centers Corporation ("Regency") in a Form 8-K filing with
the U.S. Securities and Exchange Commission disclosed that on
November 14, 2016, the Company entered into an Agreement and Plan
of Merger with Equity One, Inc. ("Equity One"), to which, on the
terms and subject to the conditions therein, Equity One will merge
with and into Regency (the "Merger"), with Regency continuing as
the surviving corporation.
In connection with the Merger, a purported stockholder of Regency
initiated a class action lawsuit in the Circuit Court for the 4th
Judicial Circuit in and for Duval County, Florida, against Regency
and its directors (the "Defendants"), captioned as follows:
Garfield v. Regency Centers Corporation et al., Case No. 16-2017-
CA-000688-XXXX-MA (filed February 3, 2017) (the "Action"),
purporting to allege, among other matters, that the definitive
joint proxy statement/prospectus filed by Regency and Equity One
with the Securities and Exchange Commission (the "SEC") on January
24, 2017 (the "Joint Proxy Statement/Prospectus") omitted certain
material information in connection with the Merger. The
complainant seeks various remedies, including injunctive relief to
prevent the consummation of the Merger unless certain allegedly
material information is disclosed and seeking compensatory and
rescissory damages in the event the Merger is consummated without
such disclosures.
On February 17, 2017, the Defendants entered into a stipulation of
settlement with respect to the Action, to which the parties have
agreed, among other things, that Regency will make certain
supplemental disclosures. The supplemental disclosures to the
Joint Proxy Statement/Prospectus should be read in conjunction
with the Joint Proxy Statement/Prospectus, which should be read in
its entirety. The information contained in this Current Report on
Form 8-K is incorporated by reference into the Joint Proxy
Statement/Prospectus, and to the extent that information in this
Current Report on Form 8-K differs from or updates information
contained in the Joint Proxy Statement/Prospectus, the information
in this Current Report on Form 8-K shall supersede or supplement
the information in the Joint Proxy Statement/Prospectus.
The settlement will not affect the timing of the respective
special meetings of Regency stockholders and Equity One
stockholders, the disposition of the stockholders' vote or the
amount of consideration to be paid to Equity One stockholders in
connection with the proposed merger. Regency believes that the
Action is without merit and that no supplemental disclosure is
required to the Joint Proxy Statement/Prospectus under any
applicable rule, statute, regulation or law. However, to, among
other things, eliminate the burden, inconvenience, expense, risk
and disruption of further litigation, Regency has determined that
it will make the below supplemental disclosures. The Regency
board of directors continues to unanimously recommend that you
vote "FOR" the proposal to approve the Merger Agreement and the
Merger, and "FOR" the other proposals being considered at the
special meeting of Regency stockholders.
The settlement remains subject to, among other things,
confirmatory discovery and Court approval following notice to
Regency stockholders of record as directed by the Court. If the
settlement is approved by the Court, the parties to the Action
anticipate that the settlement will resolve and release all claims
to terms that will be disclosed to Regency stockholders prior to
final approval of the settlement. There can be no assurance that
the Court will approve the settlement. In such event, the
settlement may be terminated.
Supplemental Disclosures
Regency is making the following supplemental disclosures to the
Joint Proxy Statement/Prospectus in connection with the settlement
of the Action. The parties have entered into a stipulation of
settlement to settle the Action subject to notice to Regency
stockholders as directed by the Court and approval of the Court to
the settlement, Regency has agreed to provide additional.
Capitalized terms used herein but not otherwise defined have the
meanings ascribed to them in the Joint Proxy Statement/Prospectus.
All page references are to the Joint Proxy Statement/Prospectus
and terms used below, unless otherwise defined, shall have the
meanings ascribed to such terms in the Joint Proxy
Statement/Prospectus.
The disclosure in the section entitled "The Merger" under the
heading "Background of the Merger" of the Joint Proxy
Statement/Prospectus is hereby amended by amending and restating
the second full paragraph on top of page 44 as follows (with
additions underlined): "In the first half of 2016, representatives
of Barclays from time to time indicated to Mr. Katzman that, based
on discussions with representatives of Regency during Barclays'
ordinary course investment banking coverage efforts described
above, Regency might be interested in discussing a potential
business combination involving Equity One and the rationale for
such a transaction (including that the combination of Equity One
and Regency would create one of the leading necessity-based
shopping center companies; that the combined company would be
expected to have a flexible and strong balance sheet, with the
ability to pursue appropriate internal and external opportunities
and the potential for improved credit ratings and a lower cost of
debt capital; and that a combination of the two companies would be
expected to generate corporate and operational cost savings),
although no proposal had been made by Regency at that time."
The disclosure in the section entitled "The Merger" under the
heading "Background of the Merger" of the Joint Proxy
Statement/Prospectus is hereby amended by amending and restating
the fifth sentence in last paragraph that starts on page 46 as
follows (with additions underlined): "Regency management presented
to the board the strategic rationale and portfolio impact of the
potential transaction, including that a substantial percentage of
Equity One's portfolio was composed of high quality centers and
located primarily in high-density in-fill and affluent trade areas
and the combination of the two companies would further establish
Regency as the preeminent shopping center REIT, enhance Regency's
balance sheet and cost of capital and would be expected to
generate corporate and operational cost savings."
The disclosure in the section entitled "The Merger" under the
heading "Background of the Merger" of the Joint Proxy
Statement/Prospectus is hereby amended by amending and restating
the fifth sentence in last paragraph that starts on page 46 as
follows (with additions underlined): "Regency management provided
an update to the board regarding Equity One's assets in various
geographic markets and described to the board that a substantial
percentage of Equity One's portfolio was composed of high quality
centers and located primarily in high-density in-fill and affluent
trade areas. Regency management also further discussed the
transaction rationale, including the expectation that the high
quality of the combined platform will provide for significant and
sustainable embedded net operating income and net asset value
growth opportunities and the expectation that the combined company
will realize approximately $27 million in annual run-rate cost
savings by 2018, primarily related to the elimination of
duplicative corporate and property-level operating costs, and
potential additional synergies from economies of scale, increased
operational efficiencies and its ability to augment an already-
talented team."
The disclosure in the section entitled "Opinion of Regency's
Financial Advisor, J.P. Morgan Securities LLC" under the heading
"The Merger," on page 65 of the Joint Proxy Statement/Prospectus,
is hereby amended by adding the following to the end of the first
paragraph under "Discounted Cash Flow Analysis" (with the new
sentence underlined): "The discounted cash flow analysis conducted
by J.P. Morgan treats stock-based compensation as a cash expense."
The disclosure in the section entitled "Opinion of Regency's
Financial Advisor, J.P. Morgan Securities LLC" under the heading
"The Merger," on page 65 of the Joint Proxy Statement/Prospectus,
is hereby amended by adding the following to the end of the second
paragraph under "Discounted Cash Flow Analysis" (with the new
sentences underlined): "The extrapolations for estimated calendar
year 2026 for Regency on a standalone basis resulted in projected
unlevered free cash flow for that year of $456 million. The
extrapolations for estimated calendar year 2026 for Equity One on
a standalone basis resulted in projected unlevered free cash flow
for that year of $158 million."
The disclosure in the section entitled "Opinion of Regency's
Financial Advisor, J.P. Morgan Securities LLC" under the heading
"The Merger," on page 69 of the Joint Proxy Statement/Prospectus,
is hereby amended by adding the following two sentences after the
fourth sentence of the second paragraph on such page (with the new
sentences underlined): "In connection with the merger agreement,
Regency entered into a commitment letter with JPMorgan Chase Bank,
N.A., an affiliate of J.P. Morgan, to which such affiliate
committed to provide $750 million of senior unsecured bridge
loans, the proceeds of which could be used to refinance certain
existing indebtedness of either Regency or Equity One and to pay
fees and expenses in connection with the acquisition and related
transactions. J.P. Morgan's affiliate received fees of less than
$3.0 million for providing this commitment."
IMPORTANT ADDITIONAL INFORMATION AND WHERE TO FIND IT
The transaction will be submitted to the stockholders of each of
Regency and Equity One for their consideration. In connection
with the proposed merger, Regency has filed with the SEC a
Registration Statement on Form S-4 (Registration Statement No.
333-215241) containing a joint proxy statement/prospectus of
Regency and Equity One. The Registration Statement was declared
effective by the SEC on January 19, 2017, and Regency and Equity
One mailed the definitive joint proxy statement/prospectus to
stockholders of Regency and Equity One on or about January 24,
2017. Regency and Equity One also plan to file other relevant
documents concerning the proposed transaction. INVESTORS AND
SECURITY HOLDERS OF REGENCY AND EQUITY ONE ARE URGED TO READ THE
DEFINITIVE JOINT PROXY STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT
DOCUMENTS FILED WITH THE SEC IN CONNECTION WITH THE TRANSACTION OR
INCORPORATED BY REFERENCE IN THE
DEFINITIVE JOINT PROXY STATEMENT/PROSPECTUS CAREFULLY AND IN THEIR
ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION. You may obtain copies of all documents
filed with the SEC regarding this transaction, free of charge, at
the SEC's website, www.sec.gov.
NO OFFER OR SOLICITATION
This document does not constitute an offer to sell or the
solicitation of an offer to buy any securities or a solicitation
of any vote or approval nor shall there be any sale of securities
in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. No offering of
securities shall be made except by means of a prospectus meeting
the requirements of Section 10 of the Securities Act of 1933, as
amended.
PARTICIPANTS IN THE SOLICITATION
Regency, Equity One, and certain of their respective directors,
executive officers and other members of management and employees,
under SEC rules may be deemed to be participants in the
solicitation of proxies from Regency and Equity One stockholders
in connection with the proposed transaction. Information
regarding the interests of the persons who may, under the rules of
the SEC, be deemed participants in the solicitation of Regency and
Equity One stockholders in connection with the proposed
transaction is set forth in the definitive joint proxy
statement/prospectus, which was filed with the SEC on January 24,
2017. You can find more detailed information about Regency's
executive officers and directors in its definitive proxy statement
filed with the SEC on March 14, 2016. You can find more detailed
information about Equity One's executive officers and directors in
its definitive proxy statement filed with the SEC on April 1,
2016.
About Regency Centers Corporation
Regency Centers Corporation (NYSE:REG) is a real estate investment
trust (REIT) and the general partner of the Regency Centers, L.P.
(Operating Partnership). The Company's operating, investing and
financing activities are performed through the Operating
Partnership, its subsidiaries and through its co-investment
partnerships. The Company owns direct or partial interests in
approximately 320 shopping centers, which are grocery-anchored
community and neighborhood centers. The Company's centers are
located in over 30 states and the District of Columbia, and
contain approximately 38.0 million square feet of gross leasable
area (GLA). The Company's properties are leased to tenants under
operating leases. Its leases for tenant space under approximately
5,000 square feet have terms ranging from three to five years.
The Company's leases over 10,000 square feet have lease terms in
excess of five years, which consists of anchor tenants.
REMINGTON ARMS: Awaits Decision on Defective Rifle Class Action
---------------------------------------------------------------
Pamela Jablonski, writing for Bearing Arms, reports that Remington
Arms has been caught up in litigation over the last few years
regarding safety concerns for some of their most popular firearms.
A ruling on this case by Kansas City, Missouri U.S. District Judge
Ortrie Smith is expected soon. Hesitation exists over the fact
that only 22,000 filed for a claim, a low number considering
approximately 7.5 million guns could be involved.
Some of the firearms detailed in the class-action suit were
manufactured as far back as the 194o's and may not have survived
over the years. This could account for the low claim count that
currently exists.
Here is a listing of affected firearms as detailed on the class-
action site FAQ sheet:
Model 700 and Model Seven rifles with X-Mark Pro triggers
manufactured from May 1, 2006, to April 9, 2014, have been
recalled.
Models 700, Seven, Sportsman 78, and 673 with a Remington Walker
trigger mechanism that utilizes a trigger connector, and Models
710, 715, 770, 600, 660, XP-100, 721, 722, and 725 with a
Remington trigger mechanism that utilizes a trigger connector have
not been recalled.
While Plaintiffs' economic-loss claims related to those models are
being settled through this class action settlement, those firearms
are not being recalled.
How Judge Smith rules in this case will not only effect Remington,
but could impact the gun industry and firearms advocates
everywhere.
RIVER RUN: BIA Stay Lifted to Allow Class Action to Proceed
-----------------------------------------------------------
Shelby Liesch, Esq. -- SLiesch@blg.com -- of Borden Ladner Gervais
LLP, in an article for Mondaq, reports that Canada's insolvency
legislation provides a debtor seeking insolvency protection with
an automatic stay of all legal proceedings. However, a recent
decision of the Alberta Court of Queen's Bench confirms that a
bankrupt may be unable to hide behind a statutory stay of
proceedings where a proposed class action alleges fraud.
In Da Silva v. River Run Vistas Corporation, ("Da Silva"), the
Court lifted a stay under the Bankruptcy and Insolvency Act
("BIA") to allow a proposed class action to proceed against two
individuals who had been the officers, directors and operating
mind of companies that were accused of orchestrating a fraudulent
real estate development scheme. The representative plaintiffs
sought approximately $14 million in investment losses as a result
of the bankrupts' fraudulent misrepresentations.
Although the BIA prohibits a creditor from pursuing a remedy
against a bankrupt until the debtor's trustee is discharged, an
affected creditor can apply under section 69.4 of the BIA for
permission to pursue the remedy in any event. A court may lift a
stay of proceedings if it is satisfied that (a) the creditor or
person is likely to be materially prejudiced by the continued
operation of the stay; and (b) it is equitable on other grounds to
make such a declaration.
Courts have found sound reason to lift a stay under the BIA if the
applicant establishes some evidence that the claims alleged arose
from the bankrupt's fraud. While the proposed class is not
required to prove a prima facie case of fraud, it must make more
than a mere allegation of fraud.
In Da Silva, the Court found that the proposed class had met the
low threshold of establishing fraud, as the circumstances of the
real estate scheme, such as the dramatic and unexplained decrease
in the property's value, was sufficiently suspicious and warranted
an inference of fraud.
The Court also held that the stay of proceedings should be lifted
in this case because:
1. the bankrupts were necessary and proper parties to the
action;
2. the summary procedure under the BIA would be inappropriate
given the complexity of the claims alleged against the bankrupts;
and
3. the proposed class would be prejudiced by a three year delay
in proceeding with the class action if the stay was not lifted, as
the bankrupts would not be discharged until 2019.
For these reasons, the Court held that it was equitable to lift
the stay in the circumstances and allowed the proposed class to
proceed against the fraudsters.
SALOV NORTH: Settlement in "Kumar" Has Preliminary Approval
-----------------------------------------------------------
In the case, ROHINI KUMAR, an individual, on behalf of herself,
the general public and those similarly situated, Plaintiff, v.
SALOV NORTH AMERICA CORP., Defendant, Case No. 4:14-cv-02411-YGR
(N.D. Cal.), District Judge Yvonne Gonzalez Rogers entered an
Order granting preliminary approval of the Class Action
Settlement.
For purposes of the settlement only, the Court certifies the
Settlement Class which consists of all natural persons who,
between May 23, 2010 and June 30, 2015, purchased, in the United
States, any Filippo Berio Olive Oil product, other than for
purpose of resale.
The case concerns the marketing and labeling of Filippo Berio
brand olive oil ("Products") from May 23, 2010 and June 30, 2015.
The Plaintiff contends that, by marketing the Products as
"Imported from Italy," Defendant caused people to purchase the
Products who would not otherwise have done so.
As part of the settlement, Plaintiff's attorneys may apply to the
Court to award them up to $982,500 from the Defendant to pay their
attorneys' fees and expenses, plus up to $2,500 from Defendant as
a payment to the Class Representative. Such amounts must be
approved by the Court, and the Court will defer any ruling on the
appropriateness of such awards until the final approval hearing.
The Court conditionally designates the law firm of Gutride Safier
LLP and Tycko and Zavareei as Class Counsel and Rohini Kumar as
Class Representative of the Settlement Class for purposes of this
settlement.
A Final Approval Hearing shall be held on May 30, 2017. The Court
further noted:
(a) the Plaintiff to file motions for Final Approval and for
any award of attorneys' fees, costs and a class representative
payment in no later than April 11, 2017;
(b) the reply in support of the motion for Final Approval and
responses to any objections and requests to intervene in no later
than May 9, 2017; and
(c) that, in no later than May 16, 2017, the Claim
Administrator shall provide a declaration to the Court regarding
the number and dollar amount of claims received.
A copy of the Court's Order dated January 27, 2017 is available at
https://goo.gl/US3CYh from Leagle.com.
Rohini Kumar, Plaintiff, represented by Seth Adam Safier --
seth@gutridesafier.com -- Gutride Safier LLP.
Rohini Kumar, Plaintiff, represented by Adam Gutride --
adam@gutridesafier.com -- Gutride Safier LLP, Andrew J. Silver --
namsanjas@aol.com -- Tycko & Zavareei LLP, Anna C. Haac, Tycko and
Zavareei LLP, pro hac vice, Hassan Ali Zavareei --
hzavareei@tzlegal.com -- Tycko & Zavareei LLP, Jeffrey Douglas
Kaliel -- jdkaliel@gmail.com -- Tycko & Zavareei, LLP, Kristen
Gelinas Simplicio -- kmgsimplicio@gmail.com -- Gutride Safier LLP
& Marie Ann McCrary -- marie@gutridesafier.com -- Gutride Safier
LLP.
Salov North America Corp, Defendant, represented by Sean Ashley
Commons -- scommons@sidley.com -- Sidley Austin LLP, Collin
Partington Wedel -- cwedel@sidley.com -- Sidley Austin LLP, Mark
E. Haddad -- mhaddad@sidley.com -- Sidley Austin Brown & Wood &
Nitin Reddy -- nreddy@sidley.com -- Sidley Austin LLP.
SAMSUNG ELECTRONICS: Faces Complaints Over Recalled Washers
-----------------------------------------------------------
Ben Simmoneau, writing for WCVB, reports that when you spend
hundreds of dollars on a major appliance, you expect it to work,
at least for a few years.
Massachusetts consumers told us that's what has them so frustrated
over the recall of some Samsung washing machines. They are left
without the working appliance and they claim they company is not
giving them good options.
As complaints to "Ben Has Your Back" keep coming in, we are seeing
some results for consumers.
"There's a right way to do business, and this isn't it," said Fran
Veale, of Canton.
Mr. Veale said he has tried repeatedly to get his Samsung washing
machine fixed.
"I was scheduled three separate times for repairs and no one ever
showed up. No one called to cancel," said Mr. Veale. "I was out
the day of work. It was really frustrating."
Mr. Veale's washer is one of the models recalled by Samsung late
in 2016 because on high spin, they could come apart, explode and
cause injury.
"We wanted to take care of it quickly because everything we read
from Samsung and in the news said it was a dangerous situation
with these washers," said Mr. Veale.
Samsung is offering customers a repair or a refund, but Veale
doesn't feel the refund is fair, especially considering his washer
is just over two years old.
"The washer itself was about $650," Veale told WCVB's Ben
Simmoneau.
But Veale said the refund offered was only around $300.
"Ben Has Your Back" heard the same story in January from Michael
Farnola, of Andover.
He decided against the repair because Samsung would only warranty
it for one year. Samsung initially offered him a $345 refund, but
the washer cost him $600.
"It's a type of corporate extortion, A lot of people are very
frustrated by this situation," said William Federman.
Mr. Federman is an attorney in Oklahoma City who is now filing
class-action lawsuits on behalf of Samsung washing machine owners
in several states, including Massachusetts.
"If you're hearing the same complaint from multiple people across
the country, there's a significant problem," said Mr. Federman.
"They've known about this problem since at least 2013 -- if not
2011. This is not a news flash to Samsung. The news flash is we
have consumers who aren't going to put up with this type of abuse
anymore."
After WCVB's first story aired last month, Samsung offered Mr.
Farnola a full refund.
The day after we contacted the company about Veale's complaint, he
was offered the same thing.
Mr. Federman said a full refund should be offered to everyone.
"It needs to be the full money back or a new machine that does not
suffer from this problem. Plus they need to compensate the
consumer for their out of pocket loss," said Mr. Federman.
"I think they've had a lot of opportunities to make this right,
with a lot of people, and it seems like they're not," said
Mr. Veale.
"Our priority is to reduce any safety risks in the home and
provide safe choices to consumers impacted by the recall," a
Samsung spokesperson told WCVB.
"In coordination with the U.S. Consumer Product Safety Commission,
we are offering consumers a choice between a free in-home repair
for those that want to keep their current washer and a pro-rated
rebate for those that prefer a new machine. We are listening to
and learning from every consumer's experience in order to
constantly improve our processes."
Samsung said that it has successfully completed hundreds of
thousands of in-home repairs to date and on average, a consumer
who opts for in-home service is serviced within seven business
days.
Consumers who are unhappy with the recall and response can contact
Samsung at 1-866-264-5636.
Attorney Federman also wants to hear from consumers who feel they
are not getting a fair offer. He can be reached at 405-235-1560
or you can email his office at rkh@federmanlaw.com.
SIRIUS XM: Turtles Lose Case Over Rights to Oldies in New York
--------------------------------------------------------------
Andrew Flanagan at The Record reports Mark Volman and Howard
Kaylan, known for co-writing the hit "Happy Together" in the '60s
during their time in The Turtles, have spent the past several
years fighting a byzantine battle for the rights to get paid for
their music being played by digital broadcasters, filing putative
class actions in California, New York and Florida on behalf of
artists with similar questions around their own catalogs. At issue
is whether Volman and Kaylan, jointly represented in court under
the name Flo & Eddie Inc. (which situates them as their own
'label' in the case), are due royalties from broadcasters for
playing the music they recorded prior to 1972.
In classic music industry fashion, the legalities at issue are
kaleidoscopic in their complexity. Because federal copyright
protections don't extend to sound recordings made before 1972 --
though there are state-by-state statutes -- digital broadcasters
like Pandora and SiriusXM have been playing songs like "Happy
Together" without paying the rights holders, since they had no
legal obligation to do so -- and companies generally don't
volunteer to pay for things. (The U.S. is only one of a handful of
countries worldwide in which owners of sound recordings are not
entitled to royalties for traditional radio plays of their work.
The others are North Korea, Iran and China.) In response, Flo and
Eddie filed their class-action suits.
The Second District Court of Appeals ruled against Flo & Eddie's
New York-based suit. A lower court ruled against them in December,
as covered by The Hollywood Reporter, citing the "symbiotic
relationship" that artists and labels have had "for decades" with
radio stations; that the latter promotes the former's work and
that arguing against this relationship so long after the fact is
statutorily "illogical." While Flo & Eddie tried to appeal that
December ruling in favor of SiriusXM, claiming that the company
was still at fault for unfair competition, the ruling found that
"symbiotic relationship" also covered SiriusXM.
The ruling leaves Flo & Eddie with only one venue left to appeal
for the New York piece of their legal jigsaw puzzle: the Supreme
Court, which is unlikely to accept the case because it centers on
state law, not federal.
"It's really a wake-up call," Lisa Alter, an attorney not involved
in these various suits but whose work focuses on domestic and
international music copyrights, tells NPR. "Once the political
climate settles down and we can start talking about artists'
rights again, there needs to be a renewed in interest in copyright
reform at the federal level."
Last November, as The New York Times reported, Flo & Eddie's class
action battle in California was a success for artists, resulting
in a settlement from SiriusXM for up to $40 million in damages and
a 10-year term on new royalty rates for pre-'72 recordings.
"If something is broadcast, it's broadcast," Alter says. "To be
protected potentially in California and not New York is absurd."
A request for comment on the ruling from the National Association
of Broadcasters, a lobbying group which represents the interests
of the radio and television industries was not returned.
A representative for SiriusXM told NPR the company would "let the
decision speak for itself."
SOUTHERN XPOSURE: Seeks Dismissal of Dancers' Wage Class Action
---------------------------------------------------------------
Chris Dickerson, writing for West Virginia Record, reports that
after a local chain of strip clubs asked to have a recently filed
lawsuit by two dancers dismissed or stayed, the parties agreed to
mediation.
Southern Xposure, its parent companies and owner Mahesh Patel
filed to remove a complaint originally filed by Morgan Powell and
later joined by Taylor Ward from Mercer Circuit Court to federal
court in January.
The defendants filed a motion on Jan. 27, saying the court should
dismiss or stay the action and order the plaintiffs to separately
submit their arbitration claims based on arbitration agreements
they signed and the Federal Arbitration Act.
On Feb. 13, Senior District Judge David A. Faber signed the
parties' joint motion to stay the case pending outcome of
mediation. That means the case is stayed for 60 days or until
either party files a motion requesting that the court lift the
stay.
In the amended complaint filed Dec. 28 in Mercer Circuit Court,
Ward joined the complaint Powell had filed earlier in the month.
The named defendants are BCC Cafe Inc., BMC Cafe Inc., BRC Cafe
Inc., MMC Cafe Inc. and PMC Cafe Inc., all doing business as
Southern Xposure. Patel also is listed as a defendant.
Ms. Ward and Ms. Powell claims Southern Xposure violated the
federal Fair Labor Standards Act and state Wage Payment and
Collection Act.
Ms. Ward, who performed under the stage name Envy, worked as an
exotic dancer from November 2013 until recently as the company's
locations in Princeton, Bradley, Charleston and Bluefield.
Like M.s Powell, she worked four to six shifts per week and was
required to work Friday and Saturday from 7 or 8 p.m. until 3 or 4
a.m. She also claims the defendants didn't keep complete and
accurate records of time worked and did not pay her for the work
duties she performed.
Ms. Powell worked at the Princeton and Bluefield locations from
May 2009 to July 2016 under the stage name of Mary Jane.
"Defendants implemented and utilized a system under which each
plaintiff was required and compelled to pay to defendants, out of
her personal tips, $35.00 for each shift worked by plaintiff," the
amended complaint states. "Each plaintiff was on several
occasions fined . . . up to $1,000.00 for alleged violations of
policies of defendants, including talking with a customer at a
location away from the property."
Ms. Ward and Ms. Powell also claim the defendants set the order in
which dancers were required to perform on stage, required them to
be dancing on stage if they was not performing a private dance,
controlled the music to which they performed, controlled their
performance, set and controlled prices they could charge for
private dances and lap dances, collected all payments for private
dances and champagne dances, required them to become fully nude
when dancing on stage even if there were no customers in the club
and exercised control over them in the work place.
Because of the defendants' actions, Ms. Ward and Ms. Powell claim
they were not paid at an hourly rate at least equal to the minimum
wage set by the Fair Labor Standards Act. They say they and other
potential members of the class action were improperly classified
as independent contractors, and they say the number of potential
members of the class action exceeds 40.
Ms. Ward and Ms. Powell seek joint and several compensatory
damages against the defendants for money unpaid to bring them and
other potential class members to minimum FLSA wage standards and
for unpaid wages under the Wage Payment and Collection Act. They
also seek court costs, attorney fees and other relief.
Earlier in December, the same attorney representing Ward and
Powell filed a similar lawsuit on behalf of three female
bartenders against Southern Xposure in Mercer Circuit Court.
Nicole Selby, Michelle Lawson and Jessica Brady claim the
defendants agreed to pay them at a rate of about $8 per hour plus
tips from customers. But, they claim the defendants did not pay
their wages for all hours worked each week. They say they
typically were shorted two to five hours of work each week. It
also says the defendants withheld tips from the plaintiffs. They
say this is a violation of the WPCA.
And both cases are similar to class action filed Nov. 17 by a
Raleigh County man who claims Patel and the chain of clubs also
violated state wage laws.
Billy Grossi says he was hired by the defendants on an hourly
basis, but he says "he was not paid for any of his time worked,
and not paid overtime."
Mr. Patel and his businesses are represented by Constance Weber of
Kay Casto & Chaney in Charleston and Reynaldo Valazquez --
rvelazquez@fordharrison.com -- of Ford & Harrison in Miami.
Ms. Powell and Ms. Ward are being represented by attorney Garry G.
Geffert of Martinsburg.
Southern District of West Virginia case number 1:17-cv-00765
(Mercer Circuit Court case number: 16-C-404)
ST. JOSEPH COUNTY, IN: South Bend Residents Mull Flood Suit
-----------------------------------------------------------
WHIO reports that 30 property owners south of South Bend have
submitted legal filings, as a precursor to a lawsuit, alleging the
city, St. Joseph County and the state are responsible for damages
involving August flooding.
Attorney Charles Rice sent the tort claim notices about five
months after record-setting rain hit the area August 15 and 16,
the South Bend Tribune reported.
The notices say the property owners suffered severe and
destructive floods due to the negligence of governmental entities
responsible for controlling increased runoff from a recently
completed highway project. The entities, according to the
notices, neglected to ensure drainage and sewage systems were able
to handle increased drainage.
Mr. Rice said the owners' damages total at least $900,000. Most of
the owners' notices say the full amount of their damages isn't
known yet.
County attorney Jamie Woods said the county has hired an
engineering firm to conduct a study of the U.S. 31 project's
effect on drainage. He said the area, called Jewell Woods, had no
history of flooding before the road project.
"It's readily apparent that the ditch out there in Jewell Woods,
even if it was dug infinitely deeper, the flooding would have
occurred," he said. "Something out there has changed in the
surrounding area that we need to understand, in addition to this
just being a major flood event."
Mr. Rice's clients have two years from Aug. 15 to file a lawsuit.
He said he hasn't decided whether they'd file individual lawsuits
or join together in a class action case if settlements can't be
reached.
STERICYCLE: Judge Certifies Nationwide Overpricing Class Suit
-------------------------------------------------------------
A judge has certified a nationwide class of Stericycle (NASDAQ:
SRCL) consumers in a lawsuit alleging the company violated
contracts and defrauded them by hundreds of millions of dollars
through an automatic price-increasing scheme, according to Hagens
Berman.
In its Feb. 16, 2017 order, the court certified a nationwide class
of consumers seeking damages and injunctive relief stemming from
Stericycle's pricing practices. The court also upheld the
testimony of plaintiffs' expert, which Stericycle had sought to
exclude. "With the help of our experts, we developed a method
allowing us to identify every single class member and calculate
exactly how much they were overcharged," said Steve Berman,
managing partner of Hagens Berman and lead counsel representing
the class of consumers. The class has more than 246,000 class
members, with damages estimated preliminarily at $608 million, a
figure that is expected to climb to $1 billion or more as damages
continue to accrue.
The court appointed Hagens Berman as lead counsel in the case,
stating, "Hagens Berman has done highly responsible work for
plaintiffs up to this point, and there is no doubt that it will
continue to represent the interests of the class fairly and
adequately hereafter."
"We're incredibly pleased with this enormous victory for the
thousands of small-business owners who were defrauded by
Stericycle's overpricing scheme," added Berman. "Stericycle tried
every trick in the book to keep consumers from seeking justice,
but the court agreed that there is ample evidence that Stericycle
perpetrated the same fraud on the entire class by imposing huge
automatic price increases over an extensive period."
The class includes non-governmental customers that had flat-fee
"Steri-Safe" or variable "transactional" medical waste disposal
contracts with Stericycle and were subjected to the disputed price
increases. The court officially defined the class as all persons
and entities that, between Mar. 8, 2003 through the date of trial
resided in the United States (except Washington and Alaska), were
identified by Stericycle as "Small Quantity" or "SQ" customers,
and were charged and paid more than their contractually agreed
price for Stericycle's medical waste disposal goods and services
pursuant to Stericycle's automated price increase policy.
The customers impacted by Stericycle's gouging practices include a
wide variety of businesses that produce regulated medical waste,
including veterinary clinics, medical clinics, dental practices
and medical labs across the country. The small companies who
contracted with Stericycle claim the hazardous-waste disposal
company defrauded them by improperly raising their rates
automatically by as much as 18 percent, contrary to contract
terms. These regular rate increases occurred as often as every six
months, and were programmed into Stericycle's billing software,
according to the complaint.
If your business has been subjected to drastically increased rates
from Stericycle, find out more about the class-action lawsuit
against Stericycle.
T. ROWE: Faces Suit Over Self-Dealing in 401(K) Plan
----------------------------------------------------
Greg Iacurci at Investment News reports T. Rowe Price has been
sued for self-dealing in its 401(k) plan, becoming the most recent
in a growing list of financial services companies being targeted
for allegedly acting out of financial self-interest in the
construction of their retirement plans.
Plaintiff David G. Feinberg, a participant in the roughly $1.8
billion 401(k), claims that T. Rowe Price offered between 80 and
95 investment funds in its plan each year since 2011, all of which
were in-house funds.
That provided "windfall profits" to T. Rowe and its affiliates at
the expense of its employees' retirement savings, said Mr.
Feinberg, who is seeking class-action status in the lawsuit,
Feinberg v. T. Rowe Price Group, Inc. et al.
He also alleges T. Rowe frequently offered retail share class of
its funds, as opposed to lower-cost alternatives such as an
institutional share class, collective investment trust fund or
separately managed accounts, and "refused to consider" non-
proprietary funds.
"Defendants, rather than fulfilling their ERISA fiduciary duties,
favored the economic interests of T. Rowe Price Group, Inc. and
its affiliates over the interests of their employees in saving for
their retirement," according to text of the lawsuit, filed Feb. 14
in Maryland district court.
In all, the plaintiff claims participants paid T. Rowe in excess
of $50 million in fees during the class period. They would have
paid at least $27 million less in fees, and would have saved at
least $123 million more for retirement, had cheaper funds from
other fund companies been used, the lawsuit says.
"We believe the suit is without merit and intend to defend
vigorously," T. Rowe Price spokeswoman Katrina Clay said.
The suit follows on several similar 401(k) cases filed within the
past year against financial services organizations, such as
JPMorgan Chase & Co., which was sued in January.
Edward Jones, Morgan Stanley, Neuberger Berman, Franklin
Templeton, American Century Investments and New York Life are
among the other companies smacked with self-dealing lawsuits
within the past year.
TAKE-TWO INTERACTIVE: Court Dismisses BIPA Violation Class Action
-----------------------------------------------------------------
Sean F. Kane, Esq. -- skane@fkks.com -- S. Gregory Boyd, Esq. --
gboyd@fkks.com -- and Andrew J. Ungberg, Esq. -- aungberg@fkks.com
-- at Frankfurt Kurnit Klein & Selz, in an article for Mondaq,
wrote that Biometric data -- from, e.g., retina, face and
fingerprint scans -- plays a big role in the current wave of new
technology services. For example, biometrics provide security
features for financial and healthcare products. And biometrics are
behind some cool new in-game offerings in the interactive
entertainment and social media space. But companies using or
thinking of using biometric data have to comply with myriad
privacy and data security laws and regulations, or face potential
enforcement action and litigation. On January 30, 2017, the
Southern District of New York dismissed one such litigation
brought against video game publisher Take-Two Interactive
Software, Inc., for alleged violation of the Illinois Biometric
Information Privacy Act ("BIPA"). Here's a summary.
Background
Take-Two's NBA 2K15 and NBA 2K16 games contained a "MyPlayer"
feature allowing users to create custom in-game characters based
on detailed 3D facial scans using a webcam or other peripheral
device. BIPA safeguards the use of biometric data by private
entities in connection with financial or commercial transactions,
and regulates the collection, distribution and storage of
biometric data, which includes unique personal identifiers such as
retina scans, fingerprints, voiceprints, or scans of the hand or
face. BIPA requires companies to disclose their procedures and
data retention policies, and obtain customer consent before
collecting or transferring the data. BIPA also sets the "standard
of care" for data security measures, and provides that individuals
"aggrieved" can sue to recover attorney's fees and statutory
damages of up to $5,000 per violation.
The plaintiffs' suit, entitled Vigil, et al. v. Take-Two
Interactive Software, Inc., (No.1:15-cv-08211), alleged that NBA
2K15 and NBA 2K16 violate BIPA. The plaintiffs brought a class
action under BIPA, suing on behalf of Illinois residents who used
the "MyPlayer" feature. The main issue in the case was whether the
plaintiffs had pled an injury sufficient to confer legal
"standing" -- in other words, whether the plaintiffs had enough of
a stake in the matter for a court to legally decide it. The trial
court asked the plaintiffs to replead their alleged injuries in
light of a new US Supreme Court case on standing:Spokeo, Inc. v.
Robins. The plaintiffs' amended complaint identified three
potential harms: (1) that the plaintiffs would not have purchased
the NBA 2K game if they had known about the alleged BIPA
violations; (2) that Take-Two had misappropriated purportedly
"valuable" biometric data; and (3) that Take-Two's alleged
"indefinite" storage of the data enhanced the risk of a data
breach, which could result in the plaintiff's data being
compromised.
Motion to Dismiss
Take-Two moved to dismiss the amended complaint for lack of
standing, arguing that none of the plaintiffs' claimed damages
qualified as a "concrete injury" required to establish standing
under Spokeo. Take-Two characterized the plaintiffs' theories as
"buyer's remorse," arguing that the plaintiffs had not alleged
that their biometric data had value, that Take-Two profited in any
way from the use of the biometric data, or that there was any
genuine risk of a data breach.
The District Court ruled in favor of Take-Two, dismissing the
plaintiffs' claims for lack of standing. The Court held that the
core interest protected by BIPA is ensuring that a "private entity
protects the individual's biometric data, and does not use that
data in a way not contemplated by the underlying transaction." In
essence, the plaintiffs' claim failed because they could not show
that their data was used in any way other than as advertised: to
generate a "MyPlayer" character based on the user's face scan. The
Court rejected the "information injury" theory, noting that BIPA
is not a statute in which the loss of information amounts to the
loss of a substantive right, and denied that BIPA was intended to
create a statutory right to privacy in biometric data. In the end,
the Court dismissed the plaintiffs' complaint with prejudice,
writing that the plaintiffs "cannot aggregate multiple bare
procedural violations to create standing where no injury-in-fact
otherwise exists."
Takeaway
Many in the tech industry will likely applaud this court's reading
of BIPA and willingness to dismiss the case at an early stage. But
Vigil is just one of several BIPA cases pending against tech
companies; Facebook and Google are each facing similar claims
relating to the use of facial-recognition photo-tagging
algorithms. Therefore, it remains to be seen whether these
companies will succeed in stopping BIPA from becoming the basis
for the next wave of mass-tort claims. The stakes here remain
high: as biometric information increasingly becomes the way users
unlock their mobile devices, authorize both digital and real-world
purchases or access other technological features, the
opportunities for similar lawsuits will only multiply. Tech
companies must be prepared to vet their products and services
against an ever-changing, uneven landscape of regulation.
TESORO CORP: Faces Class Action Over Merger with Western Refining
-----------------------------------------------------------------
Convenience Store News reports that stockholders of Tesoro Corp.
and Western Refining will have their say on the proposed merger in
March.
According to a joint filing to the U.S. Securities and Exchange
Commission, the companies set a March 24 date for the vote.
As of the close of business on Feb. 10, the record date,
stockholders from both companies will meet on March 24 to consider
and cast ballots for the proposal. Tesoro stockholders will meet
at 12 p.m., Central Time, and Western Refining stockholders will
meet at 10 a.m. Mountain Standard Time.
Tesoro and Western Refining Inc. signed a definitive merger
agreement on Nov. 17 -- a move that will make Tesoro a 3,000-plus
station operation, as CSNews Online previously reported.
"The acquisition is expected to create a premier and highly
integrated geographically diversified refining, marketing and
logistics company, and provide a strong platform for earnings
growth and cash flow generation," Gregory Goff, chairman,
president and CEO of Tesoro, reported during the company's
earnings call on Feb. 7.
He put the expected transaction closing date during the first half
of this year.
However, the deal could be delayed. On Feb. 10, the Federal Trade
Commission (FTC) sent both companies a request for more
information, as CSNews Online previously reported. The inquiry
could extend the merger review for up to 30 days starting from the
time both companies have filed their answers.
In addition, Tesoro stockholders and Western Refining stockholders
have filed separate class action suits against the transaction. A
group of Tesoro stockholders filed a class action lawsuit against
the company in Delaware's Chancery Court, alleging that its
disclosures are inadequate and do not include key details about
Goldman Sachs & Co., financial adviser to the deal.
A separate class action lawsuit filed federal court in El Paso,
Texas, by Western Refining stockholders alleges that the company
and its directors undervalued its stock and made misleading
statements about the deal.
Tesoro offered to pay Western Refining stockholders $37.30 per
share or issue 0.4350 shares of Tesoro common stock for each share
of Western Refining stock when the deal was announced in November
2016.
San Antonio-based Tesoro is an independent refiner and marketer of
petroleum products with a retail-marketing system that includes
more than 2,400 retail stations under the ARCO, Shell, Exxon,
Mobil, USA Gasoline, Rebel and Tesoro brands.
El Paso-based Western Refining is an independent refining and
marketing company that operates refineries in El Paso and Gallup,
New Mexico and St. Paul Park, Minnesota. Its retail operations
includes retail service stations and convenience stores in
Arizona, Colorado, Minnesota, New Mexico, Texas, and Wisconsin,
operating primarily under the Giant, Howdy's and SuperAmerica
brands.
UNITED HEALTHCARE: Hep C Settlement Has Final Court Approval
------------------------------------------------------------
Celia Ampel, writing for Daily Business Review, reports that a
West Palm Beach federal judge gave final approval to a nationwide
class action settlement of claims against United HealthCare
Services Inc., rejecting a challenge from 14 state attorneys
general.
Under the terms of the settlement, health insurance giant United
agreed to provide more than $200 million in coverage for the
hepatitis C cure Harvoni. After the Coral Gables firm Rivero
Mestre sued United for providing coverage of the drug only to
policyholders with severe liver fibrosis, the company removed
those restrictions.
United also agreed to remove a requirement that policyholders
demonstrate abstinence from drug or alcohol use for at least six
months prior to treatment. In addition, the settlement created a
$500,000 fund to allow former policyholders who could not afford
insurance to make a claim.
When class counsel notified state attorneys general of the
proposed settlement as required by the Class Action Fairness Act,
several of them stepped in to challenge it. Arizona Attorney
General Mark Brnovich led the effort, with the support of the
attorneys general of Alabama, Arkansas, Idaho, Kansas, Louisiana,
Mississippi, Nevada, North Dakota, Oklahoma, Pennsylvania, South
Carolina, Texas and Wyoming.
"The settlement is imbalanced, unfair and bargains away the claims
of the class members," a spokesperson for Mr. Brnovich's office
said on Feb. 13 in an email. "As attorneys general, we need to
ensure the financial interests of others are never placed ahead of
consumers."
But lawyers for both United and the policyholders argued the
attorneys general were off-base.
"We had a number of conversations with them up until the final
approval date," said Charlie Whorton, a Rivero Mestre attorney who
worked on the case with his colleagues Andres Rivero, Alan Rolnick
and Jorge Mestre. "Their main argument, which we totally
disagreed with, was that the absent class members were not getting
any benefit from the settlement because United had already changed
its guidelines prior to the settlement with regard to the fibrosis
restrictions."
The attorneys general argued in an amici curiae brief that "only
the Defendant, class counsel and the named plaintiffs receive
particularized value from the deal," adding that the attorney fees
should only amount to $125,000.
Mr. Whorton argued the settlement did benefit the approximately
4,410 class members in many ways. It locked in the change to the
fibrosis guidelines, ensuring United could never impose the same
restrictions again. It removed the abstinence restrictions, which
affected about 10 percent of the class members, Mr. Whorton said.
And the settlement gave notice to hepatitis C patients who had no
idea Harvoni was now covered by their insurance.
Any class member could opt out of the settlement and pursue any
claims for monetary damages without sacrificing any of the
settlement's benefits, he said.
Furthermore, Mr. Whorton said, United only changed its guidelines
because Rivero Mestre sued.
"It's not like they did it out of the goodness of their heart," he
said.
The plaintiffs attorneys were also unsure why the attorneys
general challenged the settlement after failing to pursue claims
against United in their own states.
"They never lifted a finger to try to help the sufferers who
weren't getting a cure," Rivero said.
The attorneys general rejected the idea that the challenge was
politically motivated and characterized the coalition as
"bipartisan." All but two of the 14 attorneys general come from
states with Republican governors.
Defense attorneys also felt the opposition of the attorneys
general was unfounded.
"The state attorneys general lack standing to challenge the
settlement, and their opposition to the settlement is not grounded
in a realistic understanding of the weaknesses in the class
members' claims," attorneys for United wrote in a court filing.
"Viewed against those weaknesses, the settlement is fair by any
standard."
The Alston & Bird lawyers who represented United did not respond
to a request for comment by deadline.
U.S. District Judge Robin Rosenberg rejected the challenge,
approving the settlement without any changes. She also approved a
$2.75 million fee for class counsel and class representatives.
Mr. Whorton said that since Rivero Mestre filed the litigation,
major health insurance companies across the country have changed
their guidelines to lift fibrosis restrictions.
"This is one of the most gratifying cases we've ever done, because
what we actually accomplished was not just treatment for all of
our clients and the absent class members, but also treatment for
people that we never represented," he said.
Case: Ilissa M. Jones et al v. United Healthcare Services et al
Case no.: 15-cv-61144-RLR
Description: Insurance
Filing date: May 29, 2015
Settlement final approval date: Jan. 30, 2017
Judge: U.S. District Judge Robin Rosenberg
Plaintiffs attorneys: Andres Rivero, Jorge Mestre, Alan Rolnick
and Charles Whorton, Rivero Mestre, Coral Gables
Defense attorneys: Kristy Brown, William Jordan and Brian Stimson,
Atlanta, and Brian Boone, Charlotte, North Carolina, Alston &
Bird; Michael Tein, Lewis Tein, Miami
Settlement value: Approximately $200 million
UNITED STATES: Court Approves Pay Back to Gov't Employees
---------------------------------------------------------
Susan McGuire Smith at FedSmith reports that a class action
lawsuit challenging the failure of the federal government to pay
wages to non-exempt employees during the brief 2013 government
shutdown has led to a win for the class of 20,000 plus federal
employees. (Martin v. The United States (U.S. Court of Federal
Claims No. 13-834C, 2/13/17)
Two claims were before the Claims Court: (1) the government failed
to pay required minimum wages under the Fair Labor Standards Act
(FLSA), notwithstanding that any payments made without
appropriations would violate the Anti-Deficiency Act (ADA); and
(2) overtime was required to be paid under FLSA to those non-
exempt employees required to work during the furlough, again
notwithstanding the ADA.
Many readers recall the 2013 shutdown. Essentially the Obama White
House and the Congress had a disagreement over efforts in Congress
to reduce government spending. Many agencies did not have
appropriations by the beginning of the fiscal year on October 1,
forcing a shutdown in those agencies. Shutdown means furlough of
all but essential employees who were required to work in order to
"protect safety of human life or property." (Opinion p. 2) On the
other hand, non-essential services were required to stop because
there were no appropriations to pay for them and to do so would
violate the ADA.
After the dust settled and all employees were eventually paid (as
far as was reported), a class of employees came together to sue
for redress. They argued that the ADA does not trump the Fair
Labor Standards Act. Just because the agencies would be liable
under the ADA should they pay out appropriations they do not have,
is no excuse to violate the FLSA for the non-exempt employees
required to work during a furlough. Further, these employees are
required to receive overtime for their work. And, the agencies
failed to make the regular payday that fell within the furlough
period.
There is the nub of this case -- when the ADA dictates a shutdown,
does the FLSA nevertheless continue to apply? The court's short
answer is "yes." "The Anti-Deficiency Act does not operate to
cancel defendant's [government's] obligations under the Fair Labor
Standards Act." (p. 5)
While the government fully admitted it did not make the regularly
scheduled payroll during the first week of the furlough, it argued
that it should have no liability under FLSA because it was
literally barred by law (ADA) from making payments. The government
underscores the "Catch-22" situation -- the FLSA requires that
agencies "shall pay" a minimum wage while the ADA requires a U.S.
government officer or employee "may not" spend money it does not
have appropriations for. Which statute controls? (p. 6)
The court indicated it "understands why defendant frames the
problem in this way. . . . " but since the ADA requirements apply
to officials and employees and not the government itself, it
cannot affect "the rights. . . . of the citizens honestly
contracting with the [g]overnment." (p. 6)
Calling this a "superficial conflict between these statutes," the
court goes on to "harmonize" them. First, the government clearly
violated the FLSA. (p.7) Since the FLSA spells out remedies for
violations, it is simply a matter of applying those remedies in
this case. As the court explains, it "will proceed to analyze this
case under the construct of the FLSA, and evaluate the existence
and operation of the ADA as part of determining whether defendant
met the statutory requirements to avoid liability for liquidated
damages." (p.7)
Without going into the court's slap down of all of the
government's arguments as to why liquidated damages are not
appropriate in this case, the court answers "yes," the government
is liable for liquidated damages, even though the court
acknowledges it has the discretion to award no such damages. The
court even refused to apply Department of Labor exceptions for
some 38 employees of BBG, NSA, and the Peace Corps. (12)
Citing with approval a 9th Circuit Court of Appeals case, dealing
with a similar budget impasse in California, which it found
"instructive," the court refused to distinguish the actions of the
legislature from that of the executive in order to excuse late
payment of overtime, finding the DOIL bulletin's exception "is
unavailable in this case." (12)
All that remained left for this court to do was total up exactly
what the taxpayers have to pay out in liquidated damages. The
court set a schedule for this purpose. Plaintiff class will submit
by March 17 its draft calculation to the government; the parties
will confab by March 31; the parties will file a joint statement
to the court by April 7th.
UNITED STATES: Supreme Court to Decide on Suit Over Travel Ban
--------------------------------------------------------------
Lawrence Hurley at America Now reports that the U.S. Supreme Court
will decide three cases in coming months that could help or hinder
President Donald Trump's efforts to ramp up border security and
accelerate deportations of those in the country illegally.
The three cases, which reached the court before Democratic
President Barack Obama left office, all deal broadly with the
degree to which non-citizens can assert rights under the U.S.
Constitution. They come at a time when the court is one justice
short and divided along ideological lines, with four conservatives
and four liberals.
The justices will issue rulings before the end of June against the
backdrop of high-profile litigation challenging the lawfulness of
Trump's controversial travel ban on people traveling from seven
predominantly Muslim countries.
The most pertinent of the three cases in terms of Republican Trump
administration priorities involves whether immigrants in custody
for deportation proceedings have the right to a hearing to request
their release when their cases are not promptly adjudicated.
The long-running class action litigation, brought by the American
Civil Liberties Union (ACLU) on behalf of thousands of immigrants
detained for more than six months, includes both immigrants
apprehended at the border when seeking illegal entry into the
United States and legal permanent residents in deportation
proceedings because they were convicted of crimes. The case also
could affect long-term U.S. residents who entered the country
illegally and have subsequently been detained.
The Trump administration has said it wants to end the release of
immigrants facing deportation and speed up the process for
ejecting them from the country. A decision in the case requiring
additional court hearings could have very direct implications for
the administration's plans, said ACLU lawyer Ahilan Arulanantham,
especially since immigration courts currently have a backlog of
more than 500,000cases.
The ACLU estimates that up to 8,000 immigrants nationwide at any
given time have been held for at least six months. A U.S.
Immigration and Customs Enforcement official was unable to
immediately confirm data on length of detention but said that in
fiscal year 2016, the average daily count of detainees was just
under 35,000.
"If Trump wants to put more people in deportation but does not
increase the number of immigration judges, then people are going
to have to wait longer and longer to get a hearing," said Stephen
Yale-Loehr, an immigration law professor at Cornell Law School.
The Trump administration has pledged to sharply curtail illegal
immigration, with initiatives such as building a wall along the
U.S-Mexican border and hiring thousands of federal agents to
police the border and arrest and deport immigrants who live in the
United States but entered the country illegally. Trump has also
threatened to withhold federal funding from so-called "sanctuary
cities" that offer protections to immigrants who could face
deportation.
The other cases to be decided concern whether U.S. government
officials can be sued over mistreatment of non-citizens in two
separate contexts.
One will decide whether the family of 15-year-old Mexican teenager
Sergio Hernandez, who was killed while on Mexican soil by a U.S.
agent firing from across the border in Texas, can sue under the
U.S. Constitution.
It is a scenario that the lawyers for Hernandez's family say could
become more frequent if the Trump administration acts on its
proposal to increase the number of border guards by 5,000, raising
the prospect of similar confrontations. The court hears arguments
in that case on Feb. 21.
The second is a civil lawsuit brought by immigrants, mainly
Muslims, who were detained in New York after the Sept. 11, 2001
attacks and claim they were mistreated.
The group of Muslim, Arab and South Asian non-U.S. citizens say
they were held as terrorism suspects based on race, religion,
ethnicity and immigration status and abused in detention before
being deported.
The long-running case focuses on whether senior officials in the
administration of Republican President George W. Bush can be sued
for their role in directing the action.
The Obama administration argued that the court should be wary of
extending liability to the actions of senior officials, especially
when it implicates national security and immigration.
Based on the skepticism of the justices during the Jan. 18 oral
argument, the court seems likely to rule against the detainees.
Chief Justice John Roberts expressed concern that permitting such
lawsuits against senior U.S. officials would become "a way of
challenging national policy" through litigation seeking monetary
damages against the individuals who implemented the policy.
The three cases are separate from litigation over the legality of
Trump's travel ban, which could also ultimately be decided by the
high court. The key case on that front is now pending before an
appeals court in San Francisco after a three-judge panel upheld a
lower court decision to put the ban on hold.
Language in the upcoming rulings that address the rights of non-
citizens and analyzes how courts should review govenrment action
on immigration and national security could have relevance in that
case, legal experts say.
Anil Kalhan, an immigration law professor at Drexel University's
Kline School of Law, said the furor over the treatment of non-U.S.
citizens affected by the travel ban could bleed over into how the
court approaches the cases.
"It might be the atmospherics of what's going on now might lead to
a closer look from the justices," he said.
UNITEDHEALTH GROUP: Pomerantz Law Firm Probes Securities Claims
---------------------------------------------------------------
Pomerantz LLP is investigating claims on behalf of investors of
UnitedHealth Group Incorporated ("UnitedHealth" or the "Company")
(NYSE: UNH). Such investors are advised to contact Robert S.
Willoughby at rswilloughby@pomlaw.com or 888-476-6529, ext. 9980.
The investigation concerns whether UnitedHealth and certain of its
officers and/or directors have engaged in securities fraud or
other unlawful business practices.
On February 16, 2017, at the request of the U.S. Department of
Justice, a False Claims Act lawsuit against UnitedHealth was made
public. According to the complaint, filed in 2011 under seal,
UnitedHealth and other insurers had participated in a scheme to
overcharge Medicare by "hundreds of millions -- and likely
billions -- of dollars" for more than a decade.
On this news, UnitedHealth's share price fell $6.03, or 3.68%, to
close at $157.62 on February 17, 2017.
With offices in New York, Chicago, Florida, and Los Angeles, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 80 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
VITAMIN SHOPPE: Falsely Advertised Hypericin Amount in Products
---------------------------------------------------------------
Louie Torres at Legal Newsline reports that an Illinois consumer
has filed a class action lawsuit against a vitamin business,
alleging fraud and negligent misrepresentation.
Steffani Pratico filed a complaint on behalf of all others
similarly situated on Feb. 3, in the U.S. District Court for the
Northern District of Illinois against Vitamin Shoppe, Inc.
alleging the defendant falsely advertises the amount of extract
hypericin inside their product.
According to the complaint, Pratico sustained monetary damages
from purchasing a falsely advertised St. John's Wort extract. The
plaintiff alleges Vitamin Shoppe falsely labels its product
despite not having consistent amounts of an active ingredient.
Pratico seeks trial by jury, enjoin the defendant, actual damages,
punitive damages, statutory damages, court costs, interest, and
all further relief the court grants. She is represented by
attorneys Klint L. Bruno -- kbruno@brunolawus.com -- and Michael
L. Silverman -- msilverman@brunolawus.com -- of The Bruno Firm in
Chicago, and by Nick Suciu III -- Nick Suciu III of Barbat,
Mansour & Suciu PLLC -- nicksuciu@bmslawyers.com -- of Barbat,
Mansour & Suciu PLLC in Bloomfield Hills, Michigan.
U.S. District Court for the Northern District of Illinois Case
number 1:17-cv-00899
VOLKSWAGEN AG: Top Executive Accused of Telling Blatant Lies
------------------------------------------------------------
Louise Sassoon, writing for Mirror, reports that Volkswagen's boss
has been accused of telling "blatant lies" after denying the car
maker deceived customers during the diesel emissions scandal.
Paul Willis was condemned as he appeared before MPs to explain the
affair which led to the recall of 12 million cars in the UK.
The German car giant's top UK executive, told the transport select
committee it had not misled customers and denied fitting defeat
devices to cheat European emissions tests.
He also insisted there was "no legal basis" for compensation
claims because there was "no degradation" to the vehicles.
He also claimed "there is nothing wrong with any of {the cars} at
all" and said the recall was designed to "remove doubt in
motorists' minds."
Labour MP Graham Stringer said: "I have sat on select committees
for 20 years and have never seen somebody come along and blatantly
lie to a committee.
During the grilling Mark Menzies added: "You come before us and
your mouth opens and words cascade out and then the next time you
come before us those words have changed in meaning."
VW was plunged into crisis in 2015 when it emerged devices were
fitted to cars to cheat diesel emissions tests.
Drivers here have been left fuming they will not get compensation
from the car giant, in contrast to owners in the US where 15
billion US dollar (ú12.3 billion) has been set aside for
settlements.
Damon Parker, a lawyer leading a High Court class action against
VW in the UK, said: "Consumers are being left with no choice but
to take legal action.
"VW are denying that they misled customers, are refusing to
compensate UK consumers and suggesting that emissions don't matter
to the British public."
WASHINGTON, DC: Released From Evans Class Action Consent Decree
---------------------------------------------------------------
OpenMinds reports that on January 10, 2017, a federal judge said
the District of Columbia had substantially met the terms of the
Evans class-action consent decree, and released the city from
court oversight. The Evans class-action was filed in 1976 on
behalf of people with intellectual and developmental disabilities
who lived at Forest Haven, a 1,000-bed state run institution that
housed children and adults. The plaintiffs said the institution
offered "only the most meager custodial care," and provided
constitutionally deficient level of care, treatment, education,
and training.
WELLS FARGO: Settlement in Property Inspection Case Upheld
----------------------------------------------------------
Mickey J. Lee, Esq. -- mlee@mauricewutscher.com -- of Maurice
Wutscher LLP, in an article for Lexology, reports that the U.S.
Court of Appeals for the Eighth Circuit recently affirmed a
district court's approval of a proposed class settlement in an
action arising from a mortgage loan servicer's practice of
automatically ordering and charging for drive-by property
inspections on delinquent borrowers, holding that the district
court did not abuse its discretion.
In so ruling, the Court also affirmed the trial court's denial of
a borrower's motion to join a trespass claim to the putative class
action.
In 2008, four borrowers filed a putative class action in the
United States District Court for the Southern District of Iowa
against the servicer of their mortgage loans and its affiliate,
alleging that by automatically charging borrowers who had fallen
behind on their mortgage payments for drive-by property
inspections, the defendants violated the federal Racketeer
Influenced and Corrupt Organizations Act (RICO).
The parties reached a settlement at mediation that provided for
the servicer to pay $25,750,000 in return for dismissal and a
release of all related claims, defined to include any claims
"'based upon, arising out of, or relating to, in any way, property
inspection fees assessed on a mortgage serviced by [the servicer],
or [its] practices in ordering or charging borrowers for property
inspections.'"
The district court approved the settlement on a preliminary basis
in September 2015, scheduled a fairness hearing in January 2016,
and entered an injunction prohibiting class members from suing for
any of the released claims in any other court. Notices were then
sent to more than 2.7 million class members.
In the interim, in 2013, another borrower (the "trespass
plaintiff") sued in the United States District Court for the
District of Minnesota, raising a claim for trespass based on the
servicer's having changed the locks even though he still lived in
the home.
In October 2016, the trespass plaintiff received notice that he
was included in the settlement class. He then filed a motion to
transfer his individual action to the deferral trial court in Iowa
for consolidation with the class action, and also filed a motion
to stay his individual action in the Minnesota federal court.
The Minnesota trial court denied his motion, reasoning that there
was no basis to transfer his case for consolidation. The borrower
moved for reconsideration, at which time the Minnesota trial judge
asked the servicer whether the class action injunction barred the
trespass plaintiff's trespass claim.
The servicer's counsel responded that the trespass claim was not
within the scope of the released claims, but even if it were, the
servicer would waive this term as to the trespass plaintiff
borrower in order that he could pursue his trespass claim.
Accordingly, the Minnesota federal court denied the motion for
reconsideration along with the transfer motion, then dismissed the
case for failure to prosecute.
The trespass plaintiff then filed an objection to the proposed
class action settlement in the Iowa federal court arguing the
terms were unfair. On the morning of the fairness hearing, he
also filed a motion under Federal Rule of Civil Procedure 23 to
certify his trespass claim as a "related claim" and to add himself
as a class representative of this new subclass under Rule 19.
The Iowa federal court denied both motions because the questions
of fact and law in the trespass case were not the same as those in
the property inspection fee case. Thereafter, the Iowa federal
court found that the settlement agreement was fair, overruled all
objections and gave final approval to the settlement plus $10,000
incentive awards to each lead plaintiff. The trespass plaintiff
appealed.
Reviewing the Iowa federal court's denial of trespass plaintiff's
motion to certify the trespass claim as a related claim and create
a new subclass under Rule 23 for abuse of discretion, the Eighth
Circuit found that his trespass claim did not satisfy the
"commonality" requirement of Rule 23(a) because "[c]ommonality
requires the plaintiff to demonstrate that the class members have
suffered the same injury."
The Eighth Circuit reasoned that, because the trespass claim was
based on unlawfully entering the property but the class action was
based on improperly charging inspection fees for drive-by
inspections involving no entry onto the property, "no common
question existed between the two actions."
Turning to whether the class action settlement was "fair,
reasonable, and adequate" under Rule 23(e)(2), the Eighth Circuit
rejected the appellant's five arguments that the trial court had
abused its discretion.
The Court rejected the trespass plaintiff's first argument, that
the trial court misapplied the four-part test set forth in the
Eighth Circuit's ruling in Van Horn v. Trickey, finding the trial
court "properly analyzed the Van Horn factors and concluded that
they weighed in favor of approving the settlement."
The first factor, weighing the merits of the case against the
settlement terms, weighed in favor of settlement because the Court
found the plaintiff's claims were weakened by the defense that
some class members had waived their right to sue for inspection
fees because the fees had been rolled into principal as part of a
loan modification. On the other hand, the large settlement amount
ensured that the class members would receive "an adequate
percentage of their damages" because they would each receive at
least $5 in compensation for an average inspection fee of $15.
The Eighth Circuit found the second factor, the defendant's
financial condition, was "neutral" as the servicer's financial
condition was stable.
According to the Court, the third factor -- "the complexity and
expense of further litigation" -- also weighed in favor of
approving the settlement because going to trial would be
expensive, time consuming and complex.
The Eighth Circuit found no error with the trial court's finding
that the fourth factor, "the amount of opposition to the
settlement," was neutral, because while only 13 out of 2.7 million
class members objected, the trial court reasoned that could be due
to "lack of time, resources, or information necessary to lodge an
objection."
Because two factors weighed in favor of approving the settlement
and were neutral, the Court concluded the trial court did not
abuse its discretion in approving the settlement.
The Eighth Circuit also rejected as "faulty math" the appellant's
second argument, that the settlement was not fair and violated the
federal Class Action Fairness Act (CAFA) because it "will 'cost'
class members $10 to settle a $5 claim."
The Court reasoned that the class members had already paid the $15
fee and the question was how much they would recover. The Eighth
Circuit noted that the appellant's argument was incorrect that
"any class action settlement that does not result in class members
receiving the full value of the damages alleged in the complaint
would be considered a 'net loss' for the purpose of CAFA's written
finding requirement" because "CAFA requires a written finding only
when the settlement obligates a class member to 'pay sums to class
counsel that would result in a net loss to the class member.'" The
terms of the settlement at issue did not obligate class members to
pay counsel or incur any expense to receive their awards and thus
they would receive a net gain.
The Eighth Circuit also rejected the appellant's third argument,
that the settlement provision barring class members from bringing
claims related to the property inspection fees was unfair,
reasoning that the trial court correctly pointed out in denying
the motion to certify the trespass claim that no class member was
required to waive their trespass claim in order to participate in
the settlement because the trespass and property inspection fee
claims were not related.
Turning to the appellant's fourth argument, that the $10,000
incentive awards to the lead plaintiffs were inadequate, the Court
found that he lacked standing because he was not a named plaintiff
and thus was not injured by the district court's decision to give
more to the lead plaintiffs.
The Eighth Circuit also rejected the appellant's fifth and final
argument, that the trial court erred in approving the settlement
because the defendants did not give the required notice to
appropriate state and federal officials where a class member
resides within 10 days after filing the proposed settlement,
reasoning that this issue was waived because no one raised it
before the district court.
Accordingly, the trial court's judgment was affirmed.
WESTCONSIN CREDIT: Court Denies Bid to Dismiss "Swenson"
--------------------------------------------------------
In the case, Jeremy Swenson, Jasper Radunz, and Gary Cardinal, on
behalf of themselves and all others similarly situated,
Plaintiffs, v. WESTconsin Credit Union, Defendant, Civil No. 16-
cv-2344 (MJD/HB), (D. Minn.), District Judge Michael J. Davis
denies the Defendant's Motion to Dismiss the Amended Class Action
Complaint.
The Court also cancelled the oral argument which was set last
February 2, 2017.
A copy of the Court's Order dated February 1, 2017 is available at
https://goo.gl/5VmLdb from Leagle.com.
Jasper Radunz, Plaintiff, represented by Thomas J. Lyons, Lyons
Law Firm, P.A.
WESTconsin Credit Union, Defendant, represented by Christopher R.
Morris, Bassford Remele.
WEST INTERACTIVE: Faces Class Action Over TCPA Violations
---------------------------------------------------------
Louie Torres at Cook County Record reports that four people have
filed a class action lawsuit against West Interactive Services
Corporation, citing alleged violation of telephone harassment
statutes.
Jason Nesbit, Stephanie Stordahl, Linda Hobbs and Shannon Charles
filed a complaint on behalf of similarly situated individuals on
Jan. 20 in Cook County Circuit Court against West Interactive
Services Corporation, alleging that the Illinois business made
"robocalls" to the plaintiffs' cellular telephones using an
artificial voice.
West Interactive Services removed the case to Chicago federal
court.
According to the complaint, the plaintiffs allege that they
sustained damages from the "robocall" practice, under which the
defendant allegedly made unsolicited phone calls to the
plaintiffs' mobile phones in violation of the federal Telephone
Consumer Protection Act.
The plaintiffs request a trial by jury and seek actual or
statutory damages, an injunction against the defendant, interest,
court costs and any further relief this court grants. They are
represented by Myles McGuire, Evan M. Meyers and Eugene Y. Turin
of McGuire Law, P.C. -- info@mcgpc.com -- in Chicago.
U.S. District Court for the Northern District of Illinois Case
number 1:17-cv-01137
WHIRLPOOL CORP: Time to File Fee Application Moved to March 3
-------------------------------------------------------------
In the case, KYLE DEI ROSSI and MARK LINTHICUM, on behalf of
themselves and those similarly situated, Plaintiffs, v. WHIRLPOOL
CORPORATION, Defendant, Case No. 2:12-CV-00125-TLN-JFM (E.D.
Cal.), District Judge Troy L. Nunley entered an Order extending
the time to file the Plaintiffs' Application for Fees and Costs to
March 3, 2017.
The Court further granted the parties' stipulation to extend the
schedule of the Defendant's Opposition to the Plaintiffs'
Application, which will be on April 14, 2017, and the Plaintiffs'
Reply in Support of the Plaintiffs' Application which will be set
on May 5, 2017.
Based on the Order, the Parties are currently conferring in an
attempt to reach an agreement regarding reasonable attorneys' fees
and costs to be awarded to Class Counsel.
The Court noted that the parties' stipulation for an extension of
the schedule for the Plaintiffs' Application, would not affect
the:
(a) Claims Deadline last February 23, 2017;
(b) Deadline to Request Exclusion, to Object to the
Settlement or Amount of Fees, and to File Notice to Appear at the
Fairness Hearing on March 10, 2017;
(c) Deadline for the Claims Administrator, KCC, to Provide a
List of Opt-Outs on March 20, 2017;
(d) Deadline for Class Counsel to Respond to Class Members'
Objections on April 14, 2017;
(e) Deadline for the Parties' Joint Motion for Final Approval
on April 14, 2017; and
(f) Fairness Hearing on May 18, 2017.
A copy of the Court's Order dated January 27, 2017, is available
at https://goo.gl/8ciCaX from Leagle.com.
Kyle Dei Rossi, Plaintiff, represented by Annick Marie Persinger,
Bursor & Fisher, P.A..
Kyle Dei Rossi, Plaintiff, represented by Lawrence Timothy Fisher,
Bursor and Fisher, PA, Anthony Vozzolo, Faruqi and Faruqi, LLP,
pro hac vice, Barbara Ann Rohr -- brohr@faruqilaw.com -- Faruqi &
Faruqi, LLP & Joseph I. Marchese -- jmarchese@bursor.com -- Bursor
& Fisher, P.A., pro hac vice.
Whirlpool Corporation, Defendant, represented by Bradley A.
Benbrook -- brad@benbrooklawgroup.com -- Benbrook Law Group,
Cedric D. Logan -- logan@wtotrial.com -- Wheeler Trigg O'Donnell
LLP, pro hac vice, Kenneth E. Stalzer -- stalzer@wtotrial.com --
Wheeler Trigg O'Donnell LLP, pro hac vice & Galen D. Bellamy --
bellamy@wtotrial.com -- Wheeler Trigg O'Donnell LLP, pro hac vice.
ZICO BEVERAGES: Reza Files Suit Over Misleading Coco Water Label
----------------------------------------------------------------
Jason Reza, individually, and on behalf of a class of similarly
situated individuals v. Zico Beverages LLC, and Does 1-10,
inclusive, Case No. BC647064 (Cal. Super. Ct., January 17, 2017),
arises out of the Defendant's violation of California's Sherman
Law and California's consumer protection statutes, specifically by
placing "No Sugar Added" statements on the labels and packaging of
ZICO 100% Coconut Water.
The plaintiff asserts that the "No Sugar Added" Label caused him
him to believe that the ZICO 100% Coconut Water was naturally
sweetened, as opposed to other brands that have added sugar. The
label misled plaintiff and is likely to misled the consuming
public, says the complaint.
Zico Beverages LLC a subsidiary of The Coca-Cola Company,
manufactures coconut water.
The Plaintiff is represented by:
Lee A. Cirsch, Esq.
Robert K. Friedl, Esq.
Trisha K. Monesi, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310)943-0396
E-mail: Lee.Cirsch@capstonelawyers.com
Robert.Fnedl@capstonelawyers.com
Trisha.Monesi@capstonelawyers.com
* Court Rules Against Liability Waivers in FCRA Background Check
----------------------------------------------------------------
Victoria Lin, Esq., of Lewis Brisbois Bisgaard & Smith LLP, in an
article for Mondaq, reports that the Ninth Circuit recently became
the first appellate court in the country to rule that an
employer's inclusion of a liability waiver in a background check
disclosure is a willful violation of the Fair Credit Reporting Act
(FCRA).
U.S. Code, Title 15, section 1681b(b)(2)(A) provides that any
employer that wishes to obtain a background check report on an
individual through a consumer reporting agency must first make a
"clear and conspicuous" written disclosure to the individual that
a background check report may be obtained on him or her. This
section says written disclosure must be made in a document
consisting "solely" of the disclosure (hereinafter referred to as
the "'sole disclosure' requirement"). The employer must also
obtain written consent, or authorization, from the individual
before it may procure a background check report on him or her.
* Delaware State Courts End "Disclosure-Only Settlements"
---------------------------------------------------------
Sujeet Indap, writing for The Financial Times, reports that for
plaintiffs lawyers in Delaware, the last year has become a test of
their entrepreneurial skills as much as their legal ones. A
majority of US companies are incorporated in the small state and
it developed the most sophisticated corporate law framework in
America. But for companies selling themselves, Delaware, until a
year ago, had become a drag.
Delaware law firms that specialise in shareholder class-action
lawsuits would sue virtually every acquired company alleging that
the board of directors had breached its fiduciary duties because
the announced price of the deal was too low. Such litigation was
almost always frivolous. But most companies settled, netting
these lawyers a few hundred thousand dollars each time for doing
little productive lawyering. Shareholders received no cash --
their purported gain came in the form of a few lines of text added
to the merger proxy document. Often companies did not mind this
"deal tax" because transactions could close quickly and the
settlement relieved them of all liability related to the deal.
However, the Delaware state courts effectively ended this practice
of "disclosure-only" settlements with a landmark ruling last
January involving the sale of internet company Trulia. The judges
held that the modest revisions to deal filings were not "material
or even helpful" and did not justify the release of liability.
Now companies have become unwilling to settle and a pack of
Delaware law firms are scrambling to find new venues where these
lawsuits still have a chance of making them money.
"Disclosure-only settlements were the bread and butter of several
Delaware firms. A lot of these firms don't have trial lawyers and
the staying power to see a case through to court," says one
prominent defence lawyer, who highlights the need for counsel who
can do more than quickly settle.
The Delaware judges maintain that they still welcome deal-related
lawsuits where there is real indication of corporate wrongdoing.
But some lawyers worry that the Trulia decision, alongside another
important Delaware ruling in 2015, have combined to diminish the
opportunity to uncover impropriety. That second case involved
KKR's acquisition of an affiliate, KKR Financial. The Delaware
Supreme Court dismissed a lawsuit filed after the deal closed and
shareholders had voted to approve it. The court decided that if
shareholders were fully informed about the transaction
circumstances and voted to approve it, legal scrutiny of the
board's decision-making should be evaluated under the generous
"business judgment" rule where it is virtually impossible for
plaintiffs to prove liability.
Companies are relieved by the change. "Delaware has increasingly
little patience for thin challenges to arms-length deals and now
clearly recognises that with proper disclosure, stockholders
should get the last word on most transactions," says
William Savitt -- WDSavitt@wlrk.com -- an attorney at Wachtell,
Lipton who represented KKR in the case.
But Joel Friedlander, a prominent plaintiffs lawyer in Delaware,
worries about the collective implications of the Trulia and KKR
Financial decisions. In a high-profile case in 2015, he won an
$97m judgment against Royal Bank of Canada, in which the bank was
found to have rigged the sale process of ambulance company Rural
Metro in an attempt to earn financing fees.
The damaging details in that RBC case were uncovered because a
judge allowed the plaintiffs to search emails and board materials.
But courts in the future may be less willing to grant such
discovery, because Trulia discourages pre-closing litigation and
KKR Financial makes post-closing actions more difficult to win.
Without the lawsuits there may not be a way to uncover board
wrongdoing. "People are so motivated to get rid of junk cases,
it's creating an under-deterrence problem," laments
Mr. Friedlander. Some plaintiffs lawyers have responded by moving
their lawsuits to other states and federal courts where they have
had varying degrees of success.
The shift in Delaware has also put the focus on the role of
shareholders as a bulwark against corporate machinations that harm
investors. Activist hedge funds now threaten to vote "no" on
buyouts where they feel the offer is too low and some use
"appraisal" proceedings to extract a higher sale price even after
a transaction has closed. As lawyers are hamstrung, it is left up
to vigilant shareholders more than ever to police companies.
* DOL Wants Thrivent's Suit Against Fiduciary Rule Stayed
---------------------------------------------------------
John Hilton, writing for InsuranceNewsNet, reports that Department
of Labor fiduciary rule opponents suffered another loss in court
on Feb. 17 when a Kansas appeals court ruled against Market
Synergy Group.
Judge Daniel Crabtree granted a summary judgment to the DOL,
ruling that the agency did not violate the Administrative
Procedures Act in developing and publishing its fiduciary rule.
In particular, MSG cited irreparable harm if fixed indexed annuity
sales require a Best Interest Contract Exemption.
Under the DOL's preliminary rule, FIAs were placed under the
Prohibited Transaction Exemption 84-24. When its final rule was
published in April, FIAs surprisingly turned up under the more
stringent BICE.
MSG claimed the industry was denied a chance to provide input on
the change during the public comment period.
"Because the Department never indicated that it might view [FIAs]
as dissimilar from other fixed annuities or discussed [FIAs] in
its notice, nobody submitted a comment on that issue," wrote J.
Michael Vaughan of Walters Bender Strohbehn & Vaughan, an attorney
for MSG.
The DOL contended that the court should invoke the doctrine of
"harmless error," which forgives an agency's notice failure as
long as public comments on a rulemaking actually were considered
by the agency and the public was not prejudiced by the notice
failure.
After a three-and-a-half hour hearing Sept. 21, Judge Crabtree
ruled for the government. He upheld that his own decision on Feb.
17.
"The administrative record shows that the DOL provided a reasoned
explanation for its decision to move FIAs out of the scope of PTE
84-24," Judge Crabtree wrote in a seven-page decision. "And,
thus, the DOL's decision does not violate the APA."
Judges in Washington, D.C. and Kansas federal courts previously
upheld the fiduciary rule, which establishes a fiduciary standard
of care for anyone working with retirement funds.
President Donald J. Trump ordered the DOL to review the rule to
make sure it won't add unreasonable costs or inhibit access to
financial advice for retirees. The DOL filed a notice seeking a
six-month delay earlier this month.
Otherwise, the rule is slated to begin taking effect April 10.
Stay Sought
In other court news, the DOL filed for a stay in a fourth lawsuit
against the DOL rule -- Thrivent Financial vs. Department of
Labor. Department of Justice attorney Galen N. Thorp asked
Minnesota district court judge Susan Richard Nelson for a stay
"pending the results of the review directed by the President."
Mr. Thorpe suggested reconvening on May 15 to assess the case.
Thrivent opposed the stay request in its own brief. A hearing in
the case is set for March 3.
Thrivent's suit is different in that the organization takes no
issue with the overall rule. The complaint specifically asks the
court to overturn the class-action component.
"Nothing in ERISA gives DOL authority to preclude financial
institutions and their clients from entering into and enforcing
arbitration agreements that include class action waivers,"
Thrivent's complaint reads.
Thrivent's mechanism prohibits class actions. The controversial
DOL rule allows advisory clients to file class-action lawsuits as
part of its Best Interest Contract Exemption, which advisors must
sign if they want to receive commission-based compensation.
* Gorsuch Seen as Business-Friendly on Labor, Employment Laws
-------------------------------------------------------------
Sam Hananel and Laurie Kellman, writing for Associated Press,
report that in a decade as a federal appeals court judge, Supreme
Court nominee Neil Gorsuch has criticized courts for giving too
much power to government agencies that enforce the nation's labor
and employment laws. As a lawyer in private practice, he also
backed curbs on some class-action lawsuits.
His conservative approach could tip the balance in labor rights
cases and other high court clashes that have split the court.
"I think employers have a supporter with this particular nominee
who is unwilling to go along with agencies just because they
interpret the law in a certain way," said Gerald Maatman, a labor
lawyer based in Chicago who represents employers.
In a closely watched case the Supreme Court is expected to hear
later this year, the justices will decide whether companies can
require workers to sign away their right to pursue class-action
lawsuits. The National Labor Relations Board says such waiver
agreements violate the rights of millions of workers who want to
sue over wage disputes and other workplace clashes.
Labor union critics also hope the court will revisit a case that
could threaten the financial viability of unions that represent
government workers. A short-handed Supreme Court split 4-4 on the
issue after Justice Antonin Scalia's death.
And the justices may eventually take up a dispute working its way
through lower courts over whether federal law banning sex
discrimination in the workplace also covers bias against gays and
lesbians.
The Senate's judiciary panel will begin confirmation hearings on
Gorsuch on March 20, it was announced.
The legal and public policy worlds are scouring Gorsuch's writings
and record for clues to his posture toward these and other issues.
What they're finding is a lawyer, and then judge, who has lashed
out against securities class-action lawsuits and frowns on
agencies that, in his opinion, overreach.
In a 2005 article written when he was in private practice, Gorsuch
urged the Supreme Court to curb "frivolous" class-action
securities lawsuits. He called such cases a "free ride to fast
riches" for plaintiff lawyers.
On the appeals court in Colorado, Gorsuch's opinions have taken
aim at federal labor and employment agencies for going beyond
their congressionally mandated missions. He has suggested that
the Supreme Court should overturn a 1984 ruling that says courts
must defer to government agencies when it comes to interpreting
laws that define their mission.
Gorsuch dissented in a 2011 case where Labor officials wanted to
fine an excavating company for violating federal standards after
one of its workers died in a Colorado electrocution accident. The
federal appeals court upheld the $5,500 penalty, but Gorsuch wrote
that the Occupational Safety and Health Review Commission did not
interpret the rules correctly.
"Administrative agencies enjoy remarkable powers in our legal
order," Gorsuch wrote in dissent. "Still, there remains one thing
even federal administrative agencies cannot do. Even they cannot
penalize private persons and companies without some evidence the
law has been violated."
He also chastised his fellow judges for siding with the Labor
Department in a 2016 case in which a driver for TransAm Trucking
Co. left his broken-down trailer on the side of the road. The
company fired the driver for defying a supervisor's orders to stay
with the vehicle despite freezing temperatures. The Labor
Department ruled that the driver's actions were protected under
federal law and he was to be reinstated, and the appeals court
concurred.
But Gorsuch wrote in his dissent, "It might be fair to ask whether
TransAm's decision was a wise or kind one. But it's not our job
to answer questions like that. Our only task is to decide whether
the decision was an illegal one."
In another case last year, Gorsuch grumbled in a dissent that the
National Labor Relations Board had overreached when it ordered
back pay for hospital employees whose hours had been unlawfully
reduced.
Despite those and other writings, some labor leaders have held
their fire on Gorsuch's nomination, perhaps in the interest of
choosing battles against the unpredictable Trump administration.
But AFL-CIO President Richard Trumka said Gorsuch doesn't seem
like a friend to employees.
"He's been a very, very strong advocate for corporations at the
expense of working people," Trumka said. "You think corporations
need more help? And that they're not strong enough and that they
should be stronger, then he's probably your guy. If you think that
workers need more protection and corporations need less
protection, then he's probably not your guy."
Gorsuch's conservative legal philosophy has won praise from
business groups that want to rein in government regulation and
limit the rights of labor unions.
"Judge Gorsuch has been very firm on confining regulatory agencies
to the text of the law," said Juanita Duggan, president of the
National Federation of Independent Business.
* House Committee Passes Bill to Amend Class Action Procedures
--------------------------------------------------------------
RESPA News reports that the House Judiciary Committee has voted
19-12 to approve the Fairness in Class Action Litigation Act of
2017 (H.R. 985), a bill that would amend the procedures used in
federal court class actions and multidistrict litigation
proceedings.
"The bill's passage by the House and Senate with strong Republican
support would seem to augur well for the adoption of a joint
resolution of disapproval under the Congressional Review Act to
nullify a final arbitration rule should one be issued by the
CFPB," Alan Kaplinsky -- kaplinsky@ballardspahr.com -- a partner
at Ballard Spahr LLP and pioneer of the use of pre-dispute
arbitration provisions, wrote in the firm's CFPB Monitor blog.
The bill was passed along party lines in the committee, with no
Democratic support. It includes provisions on class-action injury
allegations, conflicts of interest, class member benefits, money
distribution data, issues classes, stays on discovery, third-party
litigation funding disclosure, appeals, misjoinder of plaintiffs
in personal injury and wrongful death action, among other
provisions.
"A federal court shall not issue an order granting certification
of a class action seeking monetary relief for personal injury or
economic loss unless the party seeking to maintain such a class
action affirmatively demonstrates that each proposed class member
suffered the same type and scope of injury as the named class
representative or representatives," the bill states.
Also, attorneys would be required to disclose whether any proposed
class representative or named plaintiff in the complaint is a
relative, present or former employee, present or former client or
whether there is any contractual relationship between the class
representative and attorney.
The bill would amend the terms of attorneys' fees.
For instance, "[u]nless otherwise specified by federal statute, if
a judgment or proposed settlement in a class action provides for a
monetary recovery, the portion of any attorneys' fee award to
class counsel that is attributed to the monetary recovery shall be
limited to a reasonable percentage of any payments directly
distributed to and received by class members. In no event shall
the attorneys' fee award exceed the total amount of money directly
distributed to and received by all class members."
Classes seeking monetary relief must be defined according to
"objective criteria."
"[T]he party seeking to maintain such a class action affirmatively
demonstrates that there is a reliable and administratively
feasible mechanism (a) for the court to determine whether putative
class members fall within the class definition and (b) for
distributing directly to a substantial majority of class members
any monetary relief secured for the class," the bill states.
* IOLTAs Used to Fund Class Actions Against Gov't, Companies
------------------------------------------------------------
The Illinois Business Daily reports that parties to lawsuits in
Illinois are unwittingly subsidizing the legal representation of
illegal aliens, including criminal aliens in deportation cases.
Through funds known as Interest on Lawyers Trust Accounts, or
IOLTAs, the interest on client money in some attorney escrow
accounts is not paid to the client; instead, it goes to a fund
controlled by members of the Illinois Bar Association and is used
to fund legal assistance organizations of its choosing.
In addition to interest revenue, Illinois' IOLTA, the Lawyers
Trust Fund of Illinois (LTFI), receives $95 from each of the
state's lawyers via annual registration fees.
Of its approximately $9,400,000 in 2016 revenue, about $2,400,000
was earned from interest on these trust funds. For the fiscal
year 2017 alone, the LTFI will grant $8,100,000 to 36 legal aid
organizations, including $737,000 to those specializing in
immigration.
One organization partly funded by this program, The Immigration
Project located in Normal, recently received $145,000 from LTFI.
It provided services to approximately 6,000 illegal aliens last
year, according to Co-Founder Christina Deutsch.
"We serve 68 counties, helping clients in every area of
immigration such as DACA," she said.
The controversial Deferred Action for Childhood Arrivals (DACA)
program was created by executive order under the Obama
administration.
Low-income defendants in criminal cases are, by law, granted free
representation by court-appointed lawyers. However, low-income
parties to civil cases such as eviction, deportation and wage
disputes are not automatically eligible for government-funded
representation.
To address this situation, in 1981, state bar associations created
programs where interest on client money in many attorney trust
accounts is collected by banks and paid to IOLTAs. The fund, in
turn, provides grants to community-based legal clinics and law
firms.
Immigration, especially illegal immigration, was a controversial
issue in the 2016 presidential election. Of particular
controversy were so-called "sanctuary cities," municipalities that
refuse to cooperate with federal authorities by detaining or
reporting criminal illegal aliens to U.S. Immigration and Custom
Enforcement (ICE).
Of the nine officers and board members at LTFI, seven are
contributors to candidates of the Democratic Party, which opposes
the increased immigration enforcement measures advanced by the
Trump administration. Objectors to amnesty for illegal aliens and
sanctuary cities may be unknowingly supporting the very policies
they oppose.
"It's about clients, not causes: we don't take policy positions,"
Executive Director Mark Marquardt said. "Our lawyers deal with a
whole range of socioeconomic issues."
The Chicago-based National Immigrant Justice Center (NIJC)
received the largest grant among immigration law firms, $485,000.
NIJC serves illegal immigrants with a variety of immigration
services, including contesting deportation proceedings. It takes a
more partisan tone than LTFI.
In a statement following President Donald Trump's recent executive
orders, NIJC Executive Director Mary Meg McCarthy stated that
"NIJC will challenge these unlawful policies in federal court and
work with partners to fight their implementation."
Other grant recipients include the DePaul University Asylum &
Immigration for $72,000, Northern Illinois Justice for Our
Neighbors for $15,000 and World Relief DuPage/Aurora for $20,000.
The end recipients of these funds are not disclosed to clients
when they place funds in escrow; they could even be indirectly
subsidizing the other party in their own lawsuits.
While most lawyers disclose this practice to their clients, they
have no obligation to disclose the end recipient of these funds.
Requiring lawyers to do so would be too cumbersome, Marquardt
said.
"That would mean everyone would have to change their retainer
agreements every time we made a grant," he said. "The grants can
be found on our website."
In some states, IOLTA funds are used to fund class action suits
against the government and large corporations. In California, its
trust fund subsidized suits against large retailers who sued
Walmart and Costco over their employment practices.
The NIJC participated in a successful class action suit against
the federal government to extend the time period asylum seekers
have to seek a hearing that determines their status.
* Manatt, Phelps & Phillips Discusses TCPA Class Action Rulings
---------------------------------------------------------------
Manatt, Phelps & Phillips, LLP discussed TCPA-related class Action
rulings.
Case Not Moot Even After Rule 67 Funds Deposited
Is a Telephone Consumer Protection Act class action moot where a
defendant actually deposits sufficient funds with the court to
satisfy a plaintiff's claim pursuant to Federal Rule of Civil
Procedure 67?
No, a federal court judge in Illinois ruled, finding that a
controversy remained between the parties.
Wendall H. Stone Company filed a putative class action suit
alleging that Metal Partners Rebar ran afoul of the TCPA by
sending at least one unsolicited fax advertisement. Before Stone
filed for class certification, Metal Partners moved to deposit
$30,500 with the court pursuant to Rule 67, an amount it claimed
would fully satisfy the plaintiff's individual claims.
Relying on the U.S. Supreme Court decision in Campbell-Ewald v.
Gomez, the defendant requested that the court enter judgment in
favor of Stone, arguing that the deposit of funds would render
moot both the individual and class claims.
But U.S. District Court Judge Matthew F. Kennelly denied the
motion, ruling that even if the court permitted the deposit, a
case or controversy would continue to exist.
The court first determined that Metal Partners' requested deposit
was permissible, noting that district courts have discretion as to
whether to employ Rule 67. The deposit would not overburden the
court nor would it run counter to the purposes of the Rule, the
court said, and rejected Stone's argument that allowing the
deposit would lead to similar deposits in other class actions.
However, despite permitting the deposit, the court said it did not
render moot Stone's individual claims or those of the putative
class.
"The mere filing of a motion to deposit funds does not render a
plaintiff's claims moot, for the same reason that an unaccepted
offer under Rule 68 does not do so," the court wrote. "If
submitting an offer immediately rendered a case moot, the court
would have no authority to enter a decree, enforce the order, or
ensure that the plaintiff receives the relief provided for in the
offer. Therefore a plaintiff's claim cannot be rendered moot --
based on the premise that he has received full relief--before the
Court actually exercises its authority to grant the relief."
Judge Kennelly declined to exercise his authority to grant such
relief, ruling that "permitting Metal Partners to make Stone's
individual claim moot in this manner would undermine the purposes
of the class action device," something the Seventh Circuit Court
of Appeals has frowned upon. "By separating Stone's interests
from those of other potential class members, Metal Partners
attempts to defeat a potential class action by satisfying only
Stone's individual claim. In this way, Metal Partners might
perpetually evade a class action by making a similar motion for
every representative plaintiff that comes forward."
Because the court found that Stone's individual claim would not be
rendered moot, the class claims likewise remained active.
After reaching its conclusion, the court then added an alternative
basis for its holding. "[E]ven if it were to rule that a
defendant's deposit of funds could render a plaintiff's claims
moot, Metal Partners' proposed deposit would not do so here,"
Judge Kennelly wrote. The defendant said it conducted an
investigation and found nine potential faxes sent to the fax
number Stone provided, which provided the basis for an estimate of
Stone's damages (9 x $1,500 = $13,500, jumping to $30,500 for a
"significant cushion").
But the parties disputed the number of unauthorized faxes, the
court said, with Stone claiming that the number of faxes sent by
Metal Partners is "unknown at this time." "Because the Court
cannot determine definitely whether this offer would provide
complete relief on Stone's individual claim, Metal Partners'
deposit of $30,500 cannot render moot either Stone's individual
claim or his class claims," the court declared.
Why it matters: TCPA defendants had looked with hope to the
suggestion in Campbell-Ewald v. Gomez that a deposit of funds with
the court pursuant to Rule 67 could moot a plaintiff's claims.
This Illinois federal court disagreed, thus foreclosing this
strategy in that district. Whether this decision deters
defendants in other districts around the country remains to be
seen.
Latest TCPA Settlement Costs $14.5M
In the most recent multimillion-dollar settlement of a Telephone
Consumer Protection Act class action, American Eagle Outfitters
agreed to pay $14.5 million in a dispute over allegedly
unsolicited text messages.
Four putative class actions against the national clothing retailer
were consolidated in New York federal court. They alleged that
American Eagle Outfitters relied on telemarketers that used an
automatic telephone dialing system to send advertising texts on
its behalf to consumers who had not provided prior express written
consent.
After more than two years of litigation -- including discovery and
motion practice -- the parties mediated an agreement. American
Eagle agreed to pay a total of $14.5 million into a
non-reversionary settlement fund that provided class counsel
payments of up to $4,832,850 in fees and $111,943.80 in costs;
administrative costs estimated between $408,000 and $647,000 and
incentive awards to the four named plaintiffs of $10,000 each.
The remainder -- approximately $8,768,206 -- will be distributed
among the 618,289 potential class members who submit a valid and
timely claim form. Based on a conservative claims rate range of 5
to 10 percent, the plaintiffs estimated that each class member
will receive between $142 and $285. The parties designated the
National Consumer Law Center as the recipient of any amounts
remaining in the settlement fund after disbursements.
"The proposed settlement is more than fair, reasonable, and
adequate, and exceeds many approved class settlements under the
TCPA on a per class member recovery," according to the plaintiffs'
unopposed motion for preliminary approval of the deal, noting
other agreements with awards such as $40 cash or an $80 voucher or
a payment of $46.98.
Why it matters: American Eagle Outfitter's $14.5 million deal is
the most recent multimillion-dollar TCPA settlement, and as class
actions continue to be filed under the statute, likely won't be
the last. Retailers in particular appear to be a favorite target
by the plaintiff's bar.
Single Informational Call Doesn't Violate TCPA
A single informational call could not form the basis of a
Telephone Consumer Protection Act class action, a California
federal court judge ruled in granting summary judgment in favor of
the defendant.
Blue Shield of California Life & Health Insurance Company was hit
with the lawsuit in 2015 by California resident Shannon Smith. Ms.
Smith alleged that she received a pre-recorded phone call from the
health plan to notify her that she had been mailed a packet with
information about renewing her policy.
Insurers are required by federal law to provide written notice to
consumers of changes to their policies (such as an increase in
premiums or modifications to coverage for particular services)
prior to the annual open enrollment period, Blue Shield explained.
But because numerous information packets were returned as
undeliverable in prior years, the insurer decided to call each of
its existing members to alert them to the fact that their packets
had been mailed.
The final script of the pre-recorded call read: "Hello. This is
an important message from Blue Shield of California. It's time to
renew your 2016 health plan options and see what's new. Earlier
this month, we mailed you information about your 2016 plan and
benefit changes. It compares your current health plan to other
options from Blue Shield. You can also find more online at
blueshieldca.com. If you have not received your information
packet in the mail, or if you have any questions, please call the
number on the back of your member ID card. Thank you. Goodbye."
Ms. Smith claimed that the message was a telemarketing call for
which she had not provided consent to receive because the call was
part of the insurer's retention strategy, was written by the
defendant's marketing team, and included a link to Blue Shield's
renewal page with the phrase "We want to keep you covered."
But U.S. District Court Judge Cormac J. Carney -- after
determining that the plaintiff stated sufficient allegations of
concrete harm to establish standing in line with Spokeo, Inc. v.
Robins -- rejected Smith's argument that the call constituted an
advertisement.
"Simply stated, the text of Blue Shield's telephone call is
informational," the court said. "It notified recipients that they
should have received information about changes to their insurance
plan, encouraged them to seek out information about their plan by
examining the information packet and visiting Blue Shield's
website, and directed them to call the member service number (as
opposed to the sales department) to resolve any questions or
issues."
The call had an "informative, non-telemarketing nature," the judge
noted, similar to calls found by other courts not to be
advertisements (such as a text message received after opting into
a rewards program and a welcome message after submitting an online
registration form) and contrasting "starkly" with messages that
courts have deemed to be telemarketing or advertising.
The suggestion that recipients visit Blue Shield's website did not
sway the court, as the insurer's goal was to direct customers to
the renewal tool, which was also purely informational. "The mere
fact that parts of Blue Shield's website [contain] the capability
of allowing consumers to engage in commerce does not transform any
message including its homepage into telemarketing or advertising."
And Blue Shield's "overarching incentive to retain customers and
receive premium payments" was "simply too attenuated to give rise
to a clear, unequivocal implication of advertising."
Deeming the call informative rather than advertising or
telemarketing was also consistent with the Health Insurance
Portability and Accountability Act (HIPAA), the court said, which
allows insurers to contact their members about matters relating to
renewal or replacement of their insurance coverage. "The call in
this case is, therefore, not marketing under HIPAA as it is
entirely about changes to and replacement of Plaintiff's health
insurance," Judge Carney wrote.
"Were this Court to hold otherwise, it would transform practically
all communication from any entity that is financially motivated
and exchanges goods or services for money into telemarketing or
advertising, which would contravene the delineated definitions of
telemarketing or advertising in [TCPA regulations]," the court
concluded. "Evaluating Blue Shield's call with a measure of
common sense, the Court must conclude that the call is not
telemarketing or advertisement within the meaning of [TCPA
regulations]."
Why it matters: The court adopted a common sense approach to what
constitutes advertising or telemarketing pursuant to the TCPA's
regulations, particularly in light of the defendant's potential
liability under the statute. "It makes no sense to the Court that
a single call tracking Blue Shield's mandatory communications
regarding insurance enrollment and renewal would expose Blue
Shield to millions of dollars of liability under the TCPA," Judge
Carney wrote. This decision adds yet another arrow to a
healthcare company's quiver when defending against a TCPA claim
based on prerecorded informational calls to members.
Jury Hits Dish With $20M TCPA Verdict
A federal jury has awarded $20.5 million against Dish Network for
calls made by a third party in a Telephone Consumer Protection Act
class action.
Although he was included on the federal Do Not Call Registry,
Thomas Krakauer claimed that he received multiple phone calls from
authorized Dish dealer Satellite Systems Network.
Mr. Krakauer argued that Dish -- which has a history of TCPA
violations -- was responsible for the illegal telemarketing of its
agents.
"Dish took the view that compliance was the dealers'
responsibility, and fell back on self-serving contractual
provisions to attempt to shield itself from liability for the
illegal telemarketing conducted on its behalf," Mr. Krakauer
alleged in his North Carolina federal court complaint.
Relying on the U.S. Supreme Court's decision in Spokeo, Inc. v.
Robins, Dish sought to dismiss the suit, asserting that
Mr. Krakauer failed to allege concrete harm as a result of the
calls. The court disagreed, denied the motion, and set a trial
for January 2017.
During the five-day trial, Dish told jurors it should not be
liable for the calls made by Satellite Systems. But the jury
answered in the affirmative to the question "Was SSN acting as
Dish's agent when it made the telephone calls at issue from
May 11, 2010 through August 1, 2011?"
Out of a range between $0 and $500, the ten-person jury awarded
class members $400 for each of the roughly 51,000 phone calls, for
a total of $20.4 million.
In a statement, Dish indicated it may appeal. "Dish thanks the
jurors for their service, but respectfully disagrees with today's
verdict and is evaluating its legal options," a spokesperson said.
"Regardless, Dish has long taken its compliance with telemarketing
laws seriously, has and will continue to maintain rigorous
telemarketing compliance policies and procedures, and has topped
multiple independent customer service surveys along the way."
Why it matters: Many TCPA defendants hoped that the Spokeo
decision would have a positive impact in extinguishing DNC
violation claims, offering an avenue to limit or dispose of cases
based on the threshold requirement of concrete harm to bring suit
in federal court. Those hopes did not play out in the case
against Dish Network and the company is on the hook for more than
$20 million. Just as important is the long-standing lesson for
companies that they may not avoid liability for the bad acts of
others acting on their behalf.
Ninth Circuit Rules on Scope, Revocation of TCPA Consent
A Telephone Consumer Protection Act defendant scored a victory
when the U.S. Court of Appeals for the Ninth Circuit ruled that by
providing his phone number to his former gym, the plaintiff
granted consent to be contacted in the future, even by a different
named company.
Bradley Van Patten joined a Gold's Gym in Green Bay, Wisconsin in
March 2009. As part of his application, he provided contact
information including his cell phone number. Just a few days
later, however, he called and canceled his membership. In 2012,
Vertical Fitness (which owned the Gold's Gym Van Patten had
joined) launched an advertising campaign to recruit prior members.
Vertical provided the phone numbers of former or inactive gym
members to a marketing company to send text messages as part of
the campaign. Van Patten received this message in March 2012:
"Golds [sic] Gym is now Xperience Fitness. Come back for $9.99/mo,
no commitment. Enter for a chance to win a Nissan Xterra! Visit
Myxperiencefitness.com/giveaway."
Mr. Van Patten sued. He alleged that he never provided his
consent to receive text messages from the gym and that, even if he
had, he revoked that consent when he canceled his membership. A
U.S. District Court judge disagreed, granting summary judgment in
favor of Vertical, and the Ninth Circuit affirmed.
After establishing that Mr. Van Patten had standing under Spokeo,
Inc. v. Robins, the panel considered the context in which the
plaintiff provided his cell phone number.
Although the Federal Communications Commission has stated that
"persons who knowingly release their phone numbers have in effect
given their invitation or permission to be called at the number
which they have given, absent instructions to the contrary," this
does not mean that a consumer has expressly consented to contact
for any purpose whatsoever, the court said. "In our view, an
effective consent is one that relates to the same subject matter
as is covered by the challenged calls or text messages."
The scope of consent depends on "the transactional context in
which it is given," the court added, and the call or text message
"must be based on the circumstance in which the consumer gave his
or her number."
In the plaintiff's case, he gave prior express consent to receive
certain types of text messages from the gym, the court said. "Van
Patten gave his consent to being contacted about some things, such
as follow-up questions about his gym membership application, but
not to all communications," the court wrote. "The scope of his
consent included the text messages' invitation to 'come back' and
reactivate his gym membership. The text messages at issue here
were part of a campaign to get former and inactive gym members to
return, and thus related to the reason Van Patten gave his number
in the first place, to apply for a gym membership."
Did Mr. Van Patten revoke his consent when he canceled his gym
membership? No, the Ninth Circuit determined. While consumers may
revoke their prior express consent, the plaintiff failed to do so
effectively.
"Revocation of consent must be clearly made and express a desire
not to be called or texted," the panel wrote. "That was not done
here. No evidence in the record suggests that Van Patten told
Defendants to cease contacting him on his cell phone. Some ways
Van Patten could have communicated his revocation include, but are
not limited to, plainly telling Defendants not to contact him on
his cell phone when he called to cancel his gym membership or
messaging 'STOP' after receiving the first message."
As Mr. Van Patten did not revoke his consent, the panel affirmed
summary judgment in favor of the gym.
Why it matters: The Ninth Circuit's decision in Van Patten
provides several important lessons for advertisers. First, the
panel made quick work of the defendant's standing argument under
Spokeo, having little trouble finding that "the telemarketing
messages at issue here, absent consent, present the precise harm
and infringe the same privacy interests Congress sought to protect
in enacting the TCPA." But, that plaintiff-friendly holding was
tempered somewhat by the court's recognition that when a consumer
provides a phone number, he or she agrees to receive messages
within a certain scope of issues. Finally, the panel established
that revocation of consent "must be clearly made and express a
desire not to be called or texted" -- a standard the plaintiff
failed to meet by merely cancelling his membership.
* More Cy Pres Abuse Seen in California Class Action Litigation
---------------------------------------------------------------
James Beck, Esq. -- jmbeck@reedsmith.com -- of Reed Smith, in an
article for Mondaq, said "We can't stand 'cy pres' distributions
of class action settlement funds to non-litigants. We've blogged
about this benighted doctrine many times. We fought against cy
pres at in the ALI, and we've been fighting against it through
Lawyers for Civil Justice in the context of federal rules
amendments."
"Sure, cy pres can be useful in resolving this or that class
action once our clients are unfortunate enough to have become
embroiled. But we firmly believe in the 'build it and they will
come' theory -- that making class actions easier to settle make
them easier to bring, because 99% of all class actions (at least
those seeking $$$) are brought as strike suits to settle, rather
than to litigate. A cy pres award is a sure-fire indicator of
litigation that should never have been brought -- because even
after settlement, without any opposition from the defendant(s), a
cy pres request is an admission that the plaintiffs still can't
prove damages and causation with respect to the absent class
members. They can't even win a walkover. Outside the class
action area, that would mean 'case dismissed' (and maybe
sanctions). As a class action, it means 'write a check'.
"There is no basis for cy pres in substantive law (outside of a
couple oddball statutes), and there's nothing more 'substantive'
than taking money supposedly owed to absent class members and
giving it to non-litigant charities. Since it's substantive,
there's also no possible basis for it in Fed. R. Civ. P. 23, since
court rules can't change substantive law. Cy pres a racket --
designed primarily to inflate attorney fee awards -- and while the
charities might do good work, call us the Grinch, because we don't
think the litigation industry should be funding charities with
other people's money extorted through litigation threats.
Here's the latest example of cy pres abuse occurring in the
context of bogus litigation that should never have been brought,
Koby v. ARS National Services, Inc., ___ F.3d ___, 2017 WL 359670
(9th Cir. Jan. 25, 2017). This isn't a drug/device case.
Thankfully, between the FDCA no private right of action rule
(which, regrettably has a food loophole) and the rejection of
personal injury class actions, we don't encounter all that many of
them anymore against drug/device clients. Instead, Koby is a Fair
Debt Collection Practices ("FDCP") action, and as you might expect
from the introduction, a bottom-feeding FDCP action at that.
Supposedly the defendant violated the FDCP at some point a decade
or so ago when its employees left messages that did not fully
identify themselves. This issue was later fixed, but the class
action supposedly includes "some four million people nationwide."
Koby, 2017 WL 359670, at *1. Predictably, nobody in the class was
actually harmed by what appears to have been a technical FDCP
violation (quickly fixed), so only statutory damages were sought.
Theoretically that could have been a lot (4M x $1000), but because
ARS was a small company, the 1% of net worth statutory cap limited
recovery to $35,000. Id. at *1-2.
You do the math.
No, the court did. That's 3,500,000 in pennies, to be shared
between 4 million or so class members -- none of whom were
actually injured. Id. at *2 ("less than a penny to each member of
the class"). No actual damages. Less than a penny in statutory
damages per person. Koby was [insert barnyard expletive of your
choice] litigation in every sense of the word.
But lawyers cost money, and litigation consumes time and effort
that could be better directed to business pursuits, so the
plaintiff class was able to extort a settlement. Here's what they
got:
[Defendant] agreed to pay each of the three named plaintiffs
$1,000, the maximum they could hope to recover under the FDCPA as
none of them had suffered any actual damages. . . . Given the
impossibility of distributing less than a penny to each member of
the class, [defendant] agreed to make a $35,000 cy pres award to a
local San Diego charity instead. . . . The four million unnamed
class members receive no monetary compensation under the
settlement.
Koby, 2017 WL 359670, at *2. And of course, the most important
thing, "[defendant] also agreed to pay class counsel the
negotiated sum of $67,500 in attorney's fees." Id.
Before getting to the merits, the Ninth Circuit had to sort
through a procedural dispute about whether the case could properly
be assigned to a magistrate (what district judges often do with
[insert same expletive] cases). Koby upheld the assignment. Id.
at *3-5 (ruling that all 4 million absent class members don't have
to consent to assignment to a magistrate).
The Ninth Circuit then hammered the cy pres settlement. The
purported "injunctive relief" was meaningless, since: (1) it was
a "mismatch" with the class definition, which looked backward, and
(2) it did "not obligate [defendant] to do anything it was not
already doing" (as already mentioned, the violation had been
corrected). Id. at *5-6.
Thus the only supposed "value to the class" was the $35,000 in
statutory damages that the settlement took from the class and gave
to a charity. That didn't pass muster either.
[The settling parties] likewise presented no evidence that the
absent class members would derive any benefit from the
settlement's cy pres award. Indeed, it is doubtful that the award
could be approved under our precedents, which require that cy pres
awards be tethered to the objectives of the underlying statutes or
the interests of the class members. Here, the award consists of a
$35,000 donation to a San Diego veterans' organization. The San
Diego location of the chosen charity has no geographic nexus to
the class, which includes four million individuals scattered
throughout the United States. Nor was there any evidence that the
settlement class is disproportionately composed of veterans. And
there was no showing that the work performed by the designated
charity would protect consumers from unfair debt collection
practices, the objective of the FDCPA. Thus, even putting aside
the relatively small size of the cy pres award, we cannot say that
this aspect of the settlement provided any material benefit to the
class members.
Id. at *6 (emphasis added) (citation omitted). But the named
plaintiffs would get $1000 each and class counsel would get fees
almost twice the settlement amount.
So the fig leaf cy pres award was rejected. Reversed and
remanded. Id. at *7. What next? With total FDCP damages capped
at an amount that the defendant was already willing to pay, this
sounds like a good candidate for interpleader. Pay the $35,000
into the court and let plaintiffs' counsel -- who claim to be
"adequate representatives" for this [same expletive] litigation
sort out distribution on their own dime.
If one wants to stop class action abuse, it has to become
uneconomic for the lawyers to bring them. There is no other way.
Getting rid of cy pres would do that in the Koby case and hundreds
of similarly meritless strike suits.
* Two Recent Rulings Provide Clarity on Article III Standing
------------------------------------------------------------
David Lender, Eric Hochstadt and Luna Barrington, writing for
New York Law Journal, report that two recent decisions by the U.S.
Courts of Appeals for the Second and Seventh Circuits provide
further clarity as to the type of alleged injury that is -- and is
not -- "concrete" enough to satisfy Article III standing. The
circuits' careful analysis of the U.S. Supreme Court's decision in
Spokeo v. Robins, -- U.S.--, 136 S. Ct. 1540, 1548 (2016), the
consumer protection statutes at issue in these putative class
action lawsuits, and the plaintiffs' alleged injuries will be
highly instructive for counsel and lower courts in future
litigation.
Second Circuit
In Strubel, the plaintiff filed a putative class action against
Comenity Bank (the bank) to recover statutory damages for alleged
violations of the Truth in Lending Act (TILA), 15 U.S.C.
Secs. 1601 et seq. The plaintiff alleged that the disclosure
notice provided to her by the bank at the time she opened her
credit card account failed to disclose certain consumer rights
allegedly required under TILA. See Strubel v. Comenity Bank, 842
F.3d 181, 2016 WL 6892197, *1 (2d Cir. Nov. 23, 2016).
The Second Circuit noted that Spokeo does not categorically
preclude violations of statutorily mandated procedures from giving
rise to a concrete injury. See Strubel, 2016 WL 6892197, at *5.
Under Spokeo, "an alleged procedural violation can by itself
manifest concrete injury where Congress conferred the procedural
right to protect a plaintiff's concrete interests, and where the
procedural violation presents a 'risk of real harm' to that
concrete interest." See id. at *6. But even where Congress has
accorded procedural rights to protect a concrete interest, the
Second Circuit recognized that a plaintiff may nevertheless fail
to demonstrate a concrete injury where violation of the procedure
at issue presents no material risk of harm to that underlying
interest. See id. at *5.
In the case at bar, the Second Circuit found that two of the
plaintiff's disclosure challenges gave rise to a concrete and
particularized injury, while the remaining two challenges did not.
The Second Circuit found the plaintiff's challenge to the notice,
in that it failed to disclose that (1) certain identified rights
pertained only to disputed credit card purchases for which full
payment had not yet been made, and (2) consumers dissatisfied with
a credit card purchase had to contact the bank in writing or
electronically, was sufficient to confer standing. The Second
Circuit found that each disclosure requirement "serves to protect
a consumer's concrete interest in 'avoid[ing] the uninformed use
of credit,' a core object of the TILA," and that "these procedures
afford such protection by requiring a creditor to notify a
consumer, at the time she opens her credit account, of how the
consumer's own actions can affect her rights with respect to
credit transactions." See id. at 6. The Second Circuit reasoned
that a consumer who is not provided notice of her own obligations
will likely not satisfy those obligations and, as a result, lose
the very rights that TILA affords her. See id. For that reason,
the bank's alleged violation of each notice requirement "gives
rise to a 'risk of real harm' to the consumer's concrete interest
in the informed use of credit," and the plaintiff was not required
to allege any additional harm. See id.
However, the Second Circuit held that the plaintiff's remaining
two challenges, i.e., that the notice failed to advise that (3)
cardholders wishing to stop payment on an automatic payment plan
had to satisfy certain obligations, and (4) the bank was
statutorily obligated not only to acknowledge billing error claims
within 30 days of receipt but also to advise of any corrections
made during that time, did not give rise to a concrete injury
sufficient to establish Article III standing. See id. at *7-9.
With respect to the bank's failure to disclose that cardholders
wishing to stop payment on an automatic payment plan had to
satisfy certain obligations, the Second Circuit held that the
plaintiff cannot show a concrete injury because it is undisputed
that the bank did not offer an automatic payment plan at the time
the plaintiff held her credit card. See id. at *7. Thus, the
Second Circuit held that the plaintiff cannot establish that the
bank's failure to make this disclosure created a "material risk of
harm" to her legal interest in avoiding the uninformed use of
credit. See id.
With respect to the bank's alleged failure to disclose that it was
statutorily obligated to advise of any corrections to billing
errors made during that time, the Second Circuit found that this
bare procedural violation did not create the material risk of harm
necessary to demonstrate concrete injury because the plaintiff
conceded that she never had reason to report any billing error
and, thus, cannot claim concrete injury because the notice denied
her that information. See id. at *7. Moreover, it was not
apparent to the Second Circuit how a creditor's failure to tell
the consumer that she will be advised of a correction to an error
gives rise to a risk of real harm, especially in light of the fact
that the error had already been corrected.
Seventh Circuit
In Meyers, the plaintiff brought a putative class action seeking
minimum statutory damages for an alleged violation of the Fair and
Accurate Credit Transactions Act (FACTA) because he was given a
credit card receipt showing his card's full expiration date. See
Meyers v. Nicolet Restaurant of De Pere, -- F.3d --, 2016 WL
7217581, at *1 (7th Cir. Dec. 13, 2016). Applying, for the first
time, the Supreme Court's holding in Spokeo, the Seventh Circuit
concluded that there could be no concrete harm -- such that "the
expiration date's presence could have increased the risk that
Meyers' identity could be compromised" -- because the plaintiff
"discovered the violation immediately and nobody else ever saw the
non-compliant receipt." Id. at *3. The Seventh Circuit also noted
that Congress "has specifically declared that failure to truncate
a card's expiration date, without more, does not heighten the risk
of identity theft." Id.
In reaching its holding, the Seventh Circuit cited to the Second
Circuit's decision in Strubel with approval, noting that like in
Strubel, "the non-compliant receipt did not affect [the
plaintiff's] behavior, nor did it create any appreciable risk that
the concrete interest Congress identified (the integrity of
personal identities) would be compromised." Id. at *4. The
Seventh Circuit concluded by stating that "[t]his case asks
whether the violation of a statute, completely divorced from any
potential real-world harm, is sufficient to satisfy Article III's
injury-in fact requirement. We hold that it is not." Id. at *4
(emphasis added).
Takeaways
These decisions follow that of the Fifth, Eighth, Eleventh, and
D.C. Circuits, holding that bare procedural violations that do not
present a risk of real harm to a plaintiff cannot give rise to a
concrete injury sufficient to confer standing to sue in federal
court. Spokeo therefore remains a powerful defense to defeat or
narrow consumer class action lawsuits, including pending ones.
Indeed, in Strubel, standing was challenged for the first time on
appeal. Accordingly, in cases where the plaintiff has not
alleged, or likely cannot show or has not shown any real injury,
defendants should monitor and raise standing concerns throughout
the litigation and use discovery to develop potential standing
arguments.
* Deepak Gupta's Law Firm Challenge Trump's Conflicts of Interest
-----------------------------------------------------------------
Marcia Coyle, writing for Law.com, reports that the public
interest mission of Deepak Gupta's law firm in Washington is
reflected in its three U.S. Supreme Court arguments this term --
and it's the same mission that has drawn the small firm into the
first significant suit against President Donald Trump and alleged
conflicts of interest.
When he launched his firm in 2012, Mr. Gupta wanted to build a
premier Supreme Court and appellate boutique for plaintiffs and
public interest clients. He had left the Consumer Financial
Protection Bureau, where he was the agency's first appellate
lawyer. His firm today has five lawyers who are principals, one
of counsel and a 2016-17 fellow.
That goal has not changed, Mr. Gupta said. But it has expanded.
"It's a new world and not the world we expected," said Mr. Gupta
of Gupta Wessler.
Mr. Gupta was on the legal team on Jan. 31 that filed an
"emoluments clause" challenge against Trump that alleges the
president's business interests are creating "countless conflicts
of interest, as well as unprecedented influence by foreign
governments." The legal team includes Harvard Law School's
Laurence Tribe; Erwin Chemerinsky, dean of the University of
California Irvine School of Law; Fordham University School of
Law's Zephyr Teachout; and Citizens for Responsibility and Ethics
in Washington board chairman Norman Eisen and vice chair Richard
Painter.
"I've been thinking about the emoluments clause, like a lot of
people, since the election," Mr. Gupta said in an interview on
Jan. 31. "It's not a clause I focused on before Donald Trump.
And really, I was fortunate enough to connect up with this group
of extraordinary lawyers working on the case. From my
perspective, I can't think of any legal work more important right
now."
That's not to say the firm's Supreme Court and other appellate
cases will take a backseat.
On Jan. 10, Mr. Gupta argued one of the firm's three high court
cases this term -- Expressions Hair Design v. Schneiderman, a
First Amendment challenge to New York's "no surcharge" law for
credit card purchases. Mr. Gupta represents the merchants who
sued over the surcharge.
In a February argument, Gupta's firm is counsel of record for the
family of Sergio Hernandez, a Mexican teenager who was shot to
death by a U.S. Border Patrol agent. The case, Hernandez v. Mesa,
raises questions about immunity and the reach of constitutional
protections.
And in March, the firm's third case goes before the justices --
Coventry Health Care of Missouri v. Nevils. The case asks whether
insurance contracts between the federal government and private
companies pre-empt state laws barring insurers from bringing
repayment claims against tort victims.
Gupta said his firm is busy in other courts and that he is
considering hiring more lawyers.
"My goal has never been to have the biggest firm we can have. It's
really important at a firm like ours that everyone shares our
values," he said. "You just can't put out an ad and know that's
going to be the case."
The firm's model, he said, was based on a recognition that there
was a business niche that the market wasn't meeting. The Supreme
Court and appellate practices at Big Law firms were meeting the
needs of large corporate clients, he said, but there was a void on
the plaintiff side for classes of consumers or workers.
"I knew there was a real need out there and I had a gut feeling it
could work as a model," he said. "I asked a ton of people if it
could work and they couldn't tell me. I just had to quit my job
to find out."
Mr. Gupta described opening the boutique as a "scary" decision.
"My wife is an artist and failure was not an option," he said.
Besides appellate work, the firm's lawyers also work with clients
and co-counsel on constitutional and regulatory challenges and
consult on litigation strategy. They represent three nonprofits
in a class action in Washington challenging PACER fees and are
they are working with Everytown for Gun Safety on litigation and
policy issues.
Mr. Gupta said the firm's model makes it "well positioned" to take
on the Trump lawsuit and related issues.
"There is a list being explored, for example -- the domestic
emoluments clause hasn't gotten as much attention as it deserves,"
he said. "We need to think through the properties and interests
Trump has around the country and what kind of entanglements he has
with state governments."
Mr. Gupta also suggested litigation under the Freedom of
Information Act to discover what Trump owns and to whom he owes
money, and "a lot of regulatory litigation." On the latter, he
said, the Trump administration may choose not to defend certain
federal regulations. That will raise legal questions about
whether, and when, private organizations can stand in the shoes to
the federal government to defend them.
"There was this period from February 2016 to the election where it
just looked like this whole new progressive world was opening up,"
Mr. Gupta said. "There was going to be a progressive [Supreme]
court. We've lost that chance. It has been a really rude
awakening. But we're used to playing defense, and this [Trump
suit] today is defense with some offense."
Asbestos Litigation
ASBESTOS UPDATE: Beck/Arnley Wins Summary Judgment in NY Suit
-------------------------------------------------------------
In the asbestos-related lawsuit styled IN RE NEW YORK CITY
ASBESTOS LITIGATION relating to IVETTE MONTANEZ and PETER
MONTANEZ, Plaintiffs. v. AMERICAN HONDA MOTORS CO., INC. et al
Defendants, Docket No. 190409/2014, Seq No. 003 (N.Y. Sup.),
plaintiff Ivette Montanez alleges that she developed malignant
mesothelioma as the result of washing her brother's laundry.
Ms. Montanez's brother, Eliud Hernandez, Jr., testified that he
worked on Beck/Arnley brakes at a friend's automobile repair shop
in Puerto Rico when he was 15-17 years old. Defendant Beck/Arnley
Worldparts, Inc., moved for summary judgment on several grounds.
The primary ground was the defendant's assertion that it is not
the successor to Beck/Arnley Worldparts Corp. (which later changed
its name to CDG Parts Distribution Corp.).
According to the Supreme Court, New York County, the Plaintiffs'
complaint about counsel's improper limitation of questions put to
Max Dull at his deposition is also unpersuasive. While defense
counsel instructed Mr. Dull not to answer certain questions (such
as his prior knowledge of asbestos in the automobile industry),
the purpose of the deposition was to address the issue of
continuity of ownership issue. Questions concerning issues of
cessation of ordinary business of the predecessor; assumption of
necessary and ordinary liabilities for continued business; and
continuity of management, personnel, location, assets and
operations (elements to establish defacto merger) were not at
issue, and plaintiffs already submitted sufficient evidence on
those factors. However, to the extent that Mr. Dull's deposition
should be ordered for reasons unrelated to this defendant,
plaintiffs may move for further discovery before the Special
Master.
Accordingly, the Supreme Court granted the defendant's motion for
summary judgment, and ordered that defendant Beck/Arnley
Worldparts is entitled to a judgment dismissing the complaint and
any cross-claims as against it, without costs and disbursements.
The case is IN RE NEW YORK CITY ASBESTOS LITIGATION relating to
IVETTE MONTANEZ and PETER MONTANEZ, Plaintiffs. v. AMERICAN HONDA
MOTORS CO., INC. et al Defendants, Docket No. 190409/2014, Seq No.
003 (N.Y. Sup.).
A full-text copy of the Decision dated February 9, 2017, is
available at https://is.gd/oh1t4n from Leagle.com.
ASBESTOS UPDATE: Bid for Leave to Appeal in "Sweberg" Junked
------------------------------------------------------------
In IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION relating to
LARAINE SWEBERG, ETC., Respondent, v. ABB, INC., ET AL.,
Defendants, CRANE CO., Appellant, Motion No. 2017-87 (N.Y. Ct.
App.), the Court of Appeals of New York in a decision dated
February 16, 2017, dismissed the motion for leave to appeal upon
the ground that the order sought to be appealed from does not
finally determine the action within the meaning of the
Constitution (see Whitfield v City of New York, 90 N.Y.2d 777,
780-781 [1997]).
ASBESTOS UPDATE: Bid for Leave to Appeal in "North" Dismissed
-------------------------------------------------------------
In IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION relating to
CHARLES D. NORTH, ETC., Respondent, v. AIR & LIQUID SYSTEMS
CORPORATION, ETC., ET AL., Defendants, NATIONAL GRID GENERATION,
LLC, Respondent, O'CONNOR CONSTRUCTORS, INC., Appellant, Motion
No. 2017-58 (N.Y. Ct. App.), the Court of Appeals of New York, in
a decision dated February 14, 2017, a full-text copy of which is
available at https://is.gd/Q1FRHl from Leagle.com, dismissed the
motion for leave to appeal upon the ground that the order sought
to be appealed from does not finally determine the action within
the meaning of the Constitution.
In another decision dated the same day, the Court of Appeals of
New York denied the for leave to appeal denied with one hundred
dollars costs and necessary reproduction disbursements.
ASBESTOS UPDATE: Gov't to Pay JPY176MM to Asbestos Victims
----------------------------------------------------------
The Japan Times reported that the Sapporo District Court ordered
the government to pay a total of JPY176 million in damages to
former construction workers who are suffering from asbestos-
related diseases, including the family members of those who have
already died from their ailments.
The lawsuit by 33 individuals, including workers who had developed
lung cancer after inhaling asbestos at work sites in Hokkaido, was
filed against 41 construction material-makers, including Kubota
Corp., and the government. The plaintiffs originally demanded a
total of JPY962.5 million in damages.
Presiding Judge Toshio Uchino said, "The state should have
informed the workers' employers by 1980 of the need to use dust-
proof masks."
But the ruling determined that the material-makers should not be
held responsible. The plaintiffs plan to appeal the court's
decision.
The ruling is the latest in a series of class action lawsuits
filed with six district courts over health-related damages caused
by asbestos at construction sites. Including the Sapporo ruling,
the government has been held partially or fully responsible in
five cases.
A verdict by the Kyoto District Court in January last year found
that both the government and the material companies were to blame
for the damages, while the Yokohama District Court in a May 2012
judgment determined that neither bore responsibility. The rulings
have been appealed to higher courts.
"By 1979, with the report of an expert having already been
submitted to the labor ministry, the state was made aware of the
existence of asbestos-related diseases," Uchino said in the
ruling.
"It is unacceptable that the government did not take preventive
measures in 1980, including handing out dust-proof masks, as it
(was predictable that it) would affect the workers' lives," the
judge said.
Meanwhile, the verdict rejected claims for damages against the 41
material-makers, saying it is impossible to specify which
companies' material affected each of the plaintiffs who worked at
the various construction sites.
In addition, Uchino said measures should be taken to compensate
those who suffer from asbestos-induced diseases, but added that
"we can only wait for policy decisions by the legislative body and
the government."
An official from the Health, Labor and Welfare Ministry described
the ruling as "tough" on the government, and said the ministry
will respond after consulting with other government agencies.
ASBESTOS UPDATE: Woman Gets Cancer from Husband's Clothes
---------------------------------------------------------
ITV.com reported that a woman believes her fatal lung cancer was
caused by washing her late husband's asbestos-ridden clothes.
Vivienne Swain's spouse Michael Power worked as a joiner for
Manchester council from 1969 to 1977.
The council will only compensate Vivienne if she finds witnesses
to support her claims that Michael, known as Mick, worked with
asbestos, her solicitors said. Mick died from brain disease in his
early forties.
"It seems cruel", mum-of-three Vivienne said.
Vivienne, 60, from Rochdale, can't get government compensation for
asbestos victims because she did not work directly with the killer
material.
She has already had four rounds of chemotherapy. She says her only
hope now is immunotherapy, but it is not available on the NHS and
she cannot afford it without funding.
Her second husband Peter Swain also worked with asbestos while he
was a joiner for Trains of Rochdale, Vivienne says. Peter died
from kidney cancer in 2006. Vivienne's lawyer is still hunting for
Trains of Rochdale's insurers in hope of a payout.
Vivienne first went to the doctor in May 2015 after getting
breathless while climbing stairs. An X-ray revealed a third of her
lung had collapsed. Three months of tests followed at Fairfield
General Hospital and Wythenshawe Hospital before her diagnosis of
incurable mesothelioma. When doctors told her she only had three
years to live, Vivienne replied: "I guarantee you I'll still be
here in five."
The diagnosis was 'a hell of a shock', says Vivienne, having
always been fit and healthy. Telling her three sons was 'the
hardest thing I've ever had to do', she says. Her sons asked if
they had a 'ticking timebomb' waiting for them too, since they
were at home when their father returned from work every day in his
overalls.
Her youngest son Todd, 26, was expecting his first baby and
Vivienne was determined to meet her grand-child. Amelia is now 13
months old -- and Vivienne hopes to survive to see her first day
at school.
"What upsets me most is that I'm not only not going to be here for
my own children, but for my grandchildren. But I look forward all
the time. I don't look back. I'm just unlucky that both my
husbands were joiners, and both worked with asbestos. I don't feel
as if I have time for anger. I just feel passionate about raising
awareness about mesothelioma."
She cannot bear to tell her 85-year-old mother, who has vascular
dementia, about her fatal diagnosis. Vivienne avoided seeing her
during her chemo in case her mother realised she was unwell.
Vivienne said: "Government after government have known the dangers
of asbestos but they have been swept under the carpet."
Vivienne goes to The Greater Manchester Asbestos Victims Support
Group every month with 20 fellow sufferers.
Her case is 'a tragic example of how this killer dust devastates
individual lives and entire families', says her solicitor Steven
Dickens, an asbestos disease specialist at Thompsons Solicitors.
A spokesperson for Manchester council said: "It is always deeply
regrettable when anybody has contracted mesothelioma or any other
asbestos-related illness, but it would be inappropriate for us to
comment on this case at the present time."
Anyone with information about potential asbestos exposure with
Manchester council as joiners between 1969-77 or anyone who worked
with Mick Power during that period can contact Steven Dickens at
Thompsons Solicitors on 01618193571 or email
stevendickens@thompsons.law.co.uk.
ASBESTOS UPDATE: Lack of Asbestos Laws Puts Georgia at Risk
-----------------------------------------------------------
Andy Pierrotti, writing for WXIA.com, reported that the 11Alive
Investigators uncovered the state agency responsible for
regulating asbestos doesn't regularly ensure licensed inspectors
are used to remove the cancer causing material.
Georgia victims and litigators say the lack of enforcement
potentially puts Georgia resident's at risk.
One them includes Dan Pearson. Like the tools on his work bench,
Pearson feels like he's getting a little rusty.
Instead of working six days a week at his Ellijay Heating and Air
Conditioning Company for the past five years, he's sidelined by a
disease which will soon take his life.
"The last time we talked to [doctors], they gave me six to eight
months," said Pearson.
In 2015, his physician diagnosed him with mesothelioma, a cancer
almost exclusively caused by asbestos exposure.
According to a lawsuit Pearson filed in October against building
material and boiler manufacturers, the father of two believes he
was exposed working in homes in the Atlanta metro area more than
20 years ago.
"There is no getting away from this disease. You're gonna die from
it. No cure at all," said Pearson.
Almost every home built before 1978 used asbestos joint compound
in its wallboards. It's impossible to know if you've inhaled it
because asbestos has no smell or taste.
Drive through many Atlanta neighborhoods, and you'll likely see
dozens of older homes under renovation -- potentially exposing its
workers and those living next door by inhaling the dangerous
material.
Rob Buck says he's filed more asbestos related litigation than any
attorney in the state. "There is no recognized safe levels of
asbestos exposure in science or in medicine," said Buck.
To help keep the public safe, Georgia law requires contractors to
hire licensed asbestos inspectors to identify and safety remove
the material before performing renovations or demolition. An
11Alive Investigation uncovered the state agency responsible for
policing the law, rarely checks to make sure people are following
it.
On paper, the Georgia Department of Natural Resources operates an
asbestos abatement program, but state lawmakers completely
defunded the program in 2011 to save money after the recession.
Before then, state inspectors used to identify dozens of asbestos
abatement related violations a year. According to agency records,
DNR has not cited anyone in seven years.
Jeff Cown is the head of the Land Protection Division at DNR. Cown
says that doesn't mean no one is violating asbestos abatement
laws.
"What that means, is that in 2009, due to budget redirection, we
transferred the enforcement program for asbestos abatement to
federal EPA," said Cown.
That's half true. The EPA enforces asbestos abatement for
commercial buildings in Georgia, but the state still over-sees
residential homes.
Over the past three years, the city of Atlanta issued more than
6,700 permits to demolish or renovate old homes.
In nearly all of those cases, DNR admits it never looked into
whether a licensed inspector checked for asbestos before the
demolition started.
Cown says DNR only checks ahead of time if someone from the public
submits a complaint about possible abatement violations.
The DNR administrator says it also utilizes lead paint inspectors,
who are also licensed in asbestos abatement. If a state lead paint
inspector identifies an asbestos violation, it can cite the
contractor.
"Even when we had inspectors, I'm not sure we got everybody. You
can never get everybody," said Cown.
Cown says county and municipal governments can enact stricter
guidelines, but many local governments in Georgia don't require
confirmation before demolition or renovations start. Atlanta's
permitting office doesn't require contractors to prove it either.
"It's an honor system at this point," said Buck. "So, contractors
that are well intentioned are releasing asbestos into homes where
they are doing work whether they know it or not," said Buck.
At check, DNR says it has no plans to ask the state legislature to
return the funding of its asbestos program.
ASBESTOS UPDATE: Jury Reaches Defense Verdict for ITW Food
----------------------------------------------------------
HarrisMartin Publishing reported that a New York jury has reached
a defense verdict in a mesothelioma case involving commercial
kitchen equipment, finding that lone remaining defendant ITW Food
Equipment Group was not liable for the plaintiff's mesothelioma.
The New York Supreme Court for New York County jury reached its
verdict on Feb. 15 at the conclusion of a seven-week trial. Trial
began on Jan. 5 against ITW. Judge Cynthia S. Kern presided over
the trial.
Plaintiff Dario Battistoni asserted the underlying claims,
contending that he was exposed to asbestos fibers in commercial
kitchen equipment manufactured by Hobart and Traulsen.
ASBESTOS UPDATE: Ariz. Court to Rule on Take-Home Liability
-----------------------------------------------------------
The Associated Press reported that the Arizona Supreme Court has
agreed to consider whether employers can be held liable to
somebody who contracted cancer from asbestos brought home on a
parent's work clothes.
The case stems from the 2014 death of Ernest Quiroz, whose 2013
negligence lawsuit contends he was exposed to asbestos on his
father's work clothes.
The suit argues that Reynolds Metal Co. was legally obligated to
avoid creating hazardous conditions that would injure people off
its property.
Reynolds won a pretrial ruling by a trial judge, and the Court of
Appeals upheld it.
The Court of Appeals said potential drawbacks of recognizing
what's called a duty of care in so-called "take-home exposure"
cases outweigh potential benefits, partly by opening the door to
liability claims involving an array of hazardous materials.
ASBESTOS UPDATE: Man Pleads Guilty to Asbestos-related Crime
------------------------------------------------------------
Mike Bunge, writing for KIMT.com, reported that an Algona man is
pleading guilty to a federal charge in connection to the
renovation of the former Kossuth County Home.
57-year-old Gary Christianson has been convicted on one count of
failing to notify and report that he was renovating a building
that contained asbestos.
Christianson confessed at a plea hearing in Cedar Rapids Federal
Court that he knew the old county home had asbestos on its pipes
and in its floor tiles but that he did not tell either the
Environmental Protection Agency or the Iowa Department of Natural
Resources that he was going to renovate the building.
He faces a possible sentence of up to two years in prison and a
fine of no more than $250,000.
ASBESTOS UPDATE: U.S. House Panel Approves Reform Bills
-------------------------------------------------------
Jessica M. Karmasek, writing for Legal Newsline, reported that the
U.S. House Judiciary Committee has approved a bill that targets
the country's current asbestos injury compensation system and
another that aims to weed out unmeritorious class action claims.
The committee passed the Furthering Asbestos Claim Transparency,
or FACT, Act of 2017 by a vote of 19-11.
The panel, in a vote later in the day, passed the Fairness in
Class Action Litigation Act of 2017, 19-12.
House Judiciary Chairman Bob Goodlatte, R-Va., praised the FACT
Act's approval.
"Asbestos victims often spend years in the courts to have their
legitimate claims addressed and properly adjudicated. Many must
look to the bankruptcy and asbestos trusts as the best way to seek
compensation for their injuries," he said in a statement after the
vote. "However, the unfortunate truth is that some dishonest
parties take advantage of the asbestos trusts due to the lack of
transparency within our current bankruptcy laws. This fraudulent
activity can reduce the amount of funds available to deserving
parties.
"The FACT Act requires bankruptcy trusts to be transparent like
other courts. This will ensure deserving victims receive the
maximum relief for their illness and injuries, while preserving
privacy protections, and weeding out bad actors who would take
advantage of the system."
U.S. Rep. Blake Farenthold, a Republican from Texas who serves as
vice-chairman of the Regulatory Reform, Commercial and Antitrust
Law Subcommittee, said the legislation is needed.
"The FACT Act will protect current and future victims of asbestos
exposure by helping ensure the trust funds set up to pay claims
remain solvent," he said in a statement. "Without the FACT Act,
unscrupulous attorneys and bad actors can continue to bring
duplicative claims to multiple trusts, thereby draining the funds
available for future victims.
"This legislation is also crafted to protect the privacy of
victims and combat the fraud and abuse currently plaguing the
system."
Farenthold, who also serves on the House Committee on Oversight
and Government Reform, re-submitted the GOP-backed bill last week.
Goodlatte and Tom Marino, R-Pa., are listed as cosponsors.
The FACT Act, or H.R. 906, would increase transparency in the
asbestos trust system, in which about 100 companies that were
targeted frequently by asbestos lawsuits declared bankruptcy to
establish trusts to compensate victims.
Elizabeth Peace, a spokeswoman for Farenthold, told Legal Newsline
that H.R. 906 is the same version that was introduced last
Congress.
The 2017 version has not been folded into the Fairness in Class
Action Litigation Act or any other legislation, or at least not
yet, Peace noted.
The class action bill was introduced in April 2015 and merged with
the FACT Act in January 2016.
The House passed last year's Fairness in Class Action Litigation
and Furthering Asbestos Claim Transparency Act, or H.R. 1927, by a
vote of 211-188. Additional hearings were held by the Senate, but
ultimately it failed to move on the legislation.
Former President Barack Obama would have vetoed the bill had it
passed the Senate.
Farenthold's previous bill, H.R. 526 or the Furthering Asbestos
Claim Transparency Act of 2015, stalled in committee.
The initial version of the bill passed the House in 2013;
Farenthold again was the sponsor.
Like previous versions, the bill would require quarterly reports
on claims made to the trusts while taking measures to protect
claimants' personal information.
It also would require trusts to respond to information sought from
them by defendants in asbestos lawsuits. Defendants in those
lawsuits want to ensure that plaintiffs' attorneys aren't fully
blaming their products while also blaming the products of
companies that established trusts.
It is a practice that was brought to light in Garlock Sealing
Technologies' bankruptcy proceeding.
Goodlatte also applauded the judiciary committee for its prompt
approval of his class action legislation. Goodlatte reintroduced
the legislation.
"Class action suits were designed to address legitimate claims.
These suits were supposed to level the playing field for consumers
and businesses alike to have access to a fair and just system to
address their grievances," he said in a statement following H.R.
985's markup and approval.
"Today, the class action litigation system has morphed into an
expensive enterprise where lawyers are often the only winners, and
American businesses and consumers are the losers. Frivolous class
action lawsuits are costing parties millions of dollars, and trial
lawyers often profit at the expense of deserving victims."
Goodlatte, the bill's sponsor, was one of the authors of the Class
Action Fairness Act, which was enacted in 2005.
"Over 10 years ago, I authored the Class Action Fairness Act,
which was signed into law to curb abuses in the class action
litigation system. Since then, lawyers have been able to find
loopholes in the law, and new measures are required to protect
innocent individuals and businesses who have become the victims of
frivolous suits," he continued.
"When baseless claims come into our courtrooms, the real losers
are hardworking Americans. Today's action addresses the abuses
within our class action litigation system, and keeps baseless
class action suits away from innocent parties, while still keeping
the doors to justice open for parties with real and legitimate
claims."
Among the legislation's reforms, it requires that classes consist
of members with the same type and scope of injury.
Also under the proposed legislation, uninjured or non-comparably
injured parties can still join class actions, but must do so
separately from parties that experienced more extensive injury.
The bill contains additional provisions to:
-- Prohibit judges from approving class actions in which the
lawyer representing the class is a relative of a party in the
class action lawsuit;
-- Require that class action lawyers should only get paid after
the victims get paid; and
-- Order any third-party funding agreement be disclosed to the
district court.
It has become commonplace for third-party funders to pay the owner
of a civil claim upfront in return for the claim owner's promise
to convey a portion of the potential recovery.
This brings tax advantages for both the third-party funders and
class action plaintiffs attorneys, allowing them to defer tax
liability on the monetary advancement until the claim pays off
while the funders deduct expenses and pay taxes on profit accrued
at the lower capital-gains rate.
However, these agreements routinely are entered confidentially.
ASBESTOS UPDATE: Man Guilty for Failing Anyone About Asbestos
-------------------------------------------------------------
Sara Belmont, writing for KWWL.com, reported that a North Central
Iowa man pled guilty to failing tell anyone about the asbestos
inside a building he planned to renovate.
Gary Christianson, 57, from Algona, Iowa, was convicted of one
count of failing to notify and report that he was renovating a
building containing asbestos to the Environmental Protection
Agency or Iowa Department of Natural Resources.
At the plea hearing, Christianson admitted he was going to
renovate the former Kossuth County Home in Algona. The building
contained asbestos on pipes and in floor tiles.
Christianson admitted that, from about November 2014 through about
January 2015, he failed to notify the EPA and IDNR of his
intention to renovate the building as he was required to do.
Sentencing before United States District Court Chief Judge Leonard
Strand will be set after a report is prepared.
Christianson remains free on bond previously set pending
sentencing.
He faces a possible maximum sentence of two years' imprisonment, a
$250,000 fine, $100 in special assessments, and a year of
supervised release following any imprisonment.
ASBESTOS UPDATE: Worker Dies After Asbestos Exposure
----------------------------------------------------
The Sentinel reported that retired maintenance manager Anthony
Wilson died from cancer after years of coming into contact with
asbestos at work.
The 61-year-old underwent chemotherapy after developing a cough in
summer 2015 and died around a year later at the Royal Stoke
University Hospital.
An inquest heard Mr Wilson, of Rowanburn Close, Adderley Green,
had come into contact with asbestos during his working life. He
worked all over the country and no masks were provided in his
younger years.
Pathologist Dr Hiam Ali gave the cause of death as carcinomatosis
and mesothelioma as asbestos bodies had infiltrated his lungs.
Deputy North Staffordshire coroner Anthony Curzon concluded the
death was due to an industrial disease. He said: "During his early
working life he came into contact with asbestos."
ASBESTOS UPDATE: Danziger & De Llano Upgrades USAEP Website
-----------------------------------------------------------
Paul Danziger and Rod De Llano are personal injury attorneys
who've dedicated their careers to getting justice for those
diagnosed with mesothelioma and other asbestos-related diseases.
To help accomplish this goal and create a better experience for
victims, the firm has announced an update and redesign of its
website, www.usaep.org. The site's new look and content has one
purpose -- helping clients find the information they need
efficiently and with greater ease, from whatever device they're
using.
USAEP is dedicated to giving victims of asbestos exposure access
to skilled attorneys who can help them to expedite asbestos
bankruptcy trust fund claims and mesothelioma lawsuits. The new
website design provides visitors with all the tools they need to
learn about the disease, what their diagnosis means, and all the
resources the Danziger & De Llano law firm can provide to help
them. People who've been sickened by exposure to asbestos have
little time to spend searching for information: the new website
will provide them with the answers they need in one comprehensive
and easy-to-navigate tool.
In addition to providing clients with contact information for the
law firm and information on its services, the newly redesigned
website will feature fresh, frequently updated information on
recent developments in mesothelioma law, medical research, patient
care and caregiver support. Mesothelioma victims will be able to
use the site to access information quickly and to access a vibrant
interactive community via the firm's social media sites.
Speaking of their work over the past two decades, Paul Danziger
said, "Mesothelioma victims and people who've been diagnosed with
asbestos-related diseases have been thrust into a frustrating,
confusing world. We're proud of the work that we've done to get
them the medical and financial help that they need, and thrilled
that our new site will provide them with a tool to help them take
back control of their lives."
Danziger & De Llano is based in Houston, Texas, but provides legal
assistance to mesothelioma victims nationwide. The firm can
provide help with accessing compensation through the $30 billion
Asbestos Trust Funds as well as by filing a mesothelioma lawsuit
against companies responsible for the damages mesothelioma victims
have suffered. They provide no-cost consultations to discuss the
options available and the assistance that they provide. For more
information, visit the website, www.usaep.org, or call the law
firm at 1-800-706-5606.
ASBESTOS UPDATE: Asbestos Removal Begins at Pillsbury Mills Plant
-----------------------------------------------------------------
Tim Landis, writing for The State Journal-Register, reported that
massive grain silos visible on the city's north skyline are among
the few intact reminders of better days at the former Pillsbury
Mills plant in Springfield.
Generations of workers -- many of whom lived in adjoining
neighborhoods -- made their livelihood at the sprawling plant
where products such as Pillsbury Best flour, Farina Health bran,
white and yellow corn meal, grits and flour for baking were
readied for the consumer market. The 18-acre facility, opened in
1929, employed approximately 1,500 at peak production just after
World War II.
Small businesses from grocers to barbershops thrived in the area.
Last week, cleanup crews from the U.S. Environmental Protection
Agency began working through the long-abandoned site and more than
two dozen buildings at the beginning of an asbestos cleanup
expected to take six months and $1.8 million. Clad head-to-toe in
white hazmat suits, workers used heavy equipment to pile up mounds
of crumbled concrete, twisted metal, broken glass and soil to be
trucked to a landfill near Taylorville.
The cleanup also is notable for it's sheer size. The estimated
750,000 square feet of processing plant, warehouse, storage and
office space is nearly the equivalent of four retail supercenters.
"This is the largest cleanup I've ever been involved in," said EPA
on-site coordinator Kevin Turner.
Legal fights
The EPA intervened in the Pillsbury cleanup to reduce health and
safety hazards the agency says were only getting worse as a result
of owners who ignored legal efforts to force a proper cleanup.
Approximately 11,000 people live within a mile of the abandoned
Pillsbury Mills processing plant on the north end of Springfield,
including the nearest residence within 100 feet of the main
entrance.
Air-quality monitors have been set up on the plant perimeter to
assure hazardous materials, including asbestos, are contained at
the site. A tanker truck regularly sprays water on debris piles to
hold down dust.
Crews will work outside for a few weeks, said Turner, before
moving on to the even more painstaking task of locating and
removing asbestos floor by floor, corridor by corridor from the
massive complex of deteriorating structures.
"We'll hit every single floor," Turner said. "And it's not just
the asbestos. In the old office building, there might be mercury
switches. The old florescent light fixtures, the ballast in those
were filled with PCBs."
Polychlorinated biphenyl, once commonly used a coolant in electric
equipment, was banned by the federal government in the 1970s as a
suspected cancer-causing agent.
The site has been a frequent source of police, fire-safety and
zoning-violation calls for the city of Springfield as well, city
Fire Marshal Chris Richmond said while checking on the start of
cleanup last week.
"We're very familiar with this site," Richmond said. "At least
we'll no longer have the asbestos."
Neighborhood hazard
Pillsbury closed the plant in 2001. Sporadic salvage operations
under multiple owners have left piles of rubble strewn about the
grounds, tangles of metal pipes, rusted equipment and shattered
windows.
Security fences topped with razor wire have not stopped frequent
trespassing, according to neighbors.
"I'd see kids go in there all the time and walk around," Ann
Ridgeway said.
Ridgeway said she has watched the steady deterioration of the
Pillsbury plant from neighborhood employer to dangerous eyesore
for more than two decades from her home just west of the site. She
added that she was relieved to see the environmental cleanup had
begun at long last.
"They've needed to do this for a long time," Ridgeway said. "I've
seen them over there working. It's great news."
Once the cleanup is completed, Turner said, the future of the site
will once again be up to the courts.
"At the point, it goes back to the owners," Turner said.
ASBESTOS UPDATE: Asbestos Found at Elyria Library
-------------------------------------------------
Khadija Smith, writing for The Morning Journal, reported tthat
plans to transform the Elyria Public Library System's Central
Branch have been put a side after results of an asbestos test.
"We had retained an architect, done extensive planning and design
work, begun a naming opportunities campaign and started to raise
funds from generous community donors," said Director Lyn Crouse.
"Then we suffered a major setback due to pre-construction asbestos
testing. Put simply, Central is full of it."
Asbestos is fibrous material known to cause cancer when
continuously exposed to high-levels of it. It can cause damage to
the lining of the lungs and includes symptoms of shortness of
breath, tightness in the chest, persistent dry cough and chest
pains.
Although asbestos has been found, if left undisturbed, the
building is completely safe for patrons and staff, Crouse said.
"We had extensive testing done to the highest standards required
for school buildings, and the material was found to be intact,"
she said. "Our air quality came back as completely clean."
Any renovations would require special abatement procedures and the
price for that work skyrocketed to seven figures, Crouse said.
Renovations would have included relocating Elyria Library's local
history and genealogy room to the second floor of the West
River branch, moving the Youth Services Department to the back of
the building, adding a preschool area, adding a baby play-and-grow
area and a new gender-neutral family restroom, and a teen tech
center.
Shortly after, the Library received news it would have to relocate
its South Branch after the passage of the Elyria City School
District bond issue to reconstruct new elementary and middle
schools, according to Crouse.
"Even though it has had limited hours, South is one of our busiest
branches," she said. "Its neighborhood setting works for those who
have limited transportation. Its proximity to the Franklin School
and Elyria High School makes it the 'go to' place for kids, with
resources and programs after school and during the summer."
Crouse currently is working toward finding another location for
the South Branch.
"I'm working to find temporary quarters for that branch in the
next several months so that we will have no interruption of
service to our patrons in South Elyria, while we examine
possibilities for the long range," she said.
Crouse said she welcomes any input to help shape the future of the
library system. Residents may email her at
lcrouse@elyrialibrary.org.
ASBESTOS UPDATE: Displaced Tenants Say Owners Knew of Asbestos
--------------------------------------------------------------
Katherine Dedyna, writing for Times Colonist, reported that
residents tenants displaced from a James Bay apartment building
undergoing renovations say they are concerned about their health
because of potential exposure to asbestos before they were moved.
Scores of tenants were moved to a downtown hotel by Starlight
Property Holdings Inc., the owner of Charter House at 435 Michigan
St., in late January.
A notice banning entrance remains on the door of the building,
with round-the-clock security to ensure no one enters.
A man who tried to retrieve his passport was not allowed in. A
member of the hazardous-materials crew remediating the half-
century-old building searched for the passport but could not find
it.
Tenants will not be allowed back until Island Health signs off on
asbestos testing.
"The timeline is difficult to estimate right now as it depends
upon lab-test processing time as well as what the results show,"
said Island Health spokeswoman Kellie Hudson. "So not likely this
week."
Tenants say they are upset at the time it took for Starlight to
deal with a situation they allege was known to the owner for
months -- a charge that Starlight spokesman Danny Roth denies.
A renovation crew voluntarily stopped work at Charter House in
December. The building was also the subject of two WorkSafe B.C.
stop-work orders last year.
Charter House is one of six James Bay buildings bought by
Starlight in late 2015.
Paul Mitchell, a tenant for six years, said residents fear they
might have been exposed to contaminants. Some tenants who moved
out might have taken contaminated possessions with them, he said.
"The health implications for each of us may not be known for
years," Mitchell said in an email to the Times Colonist.
Another tenant, Sean Clazie, said tenants had been alerting
management about possible contaminants coming into their suites
for more than seven months.
Roth said, however, that management was not aware of contamination
fears. "We didn't have any reports from residents of these types
of concerns," he said.
Roth said the company acted immediately on Jan. 13, moving tenants
from two units where construction dust had been found. The
decision to move tenants from 59 other units was made out of "an
abundance of caution," he said.
He said isolated areas in Charter House have elevated asbestos
levels.
Test results received Jan. 24 were shared with Island Health that
day, Roth said. Results from common areas and a second unit
indicated exposure levels and a need to move all residents. "There
was no foot-dragging on this by management."
Tenants told Island Health of asbestos-related concerns in
December, around the time of the voluntary work stoppage.
Island Health said elevated levels of asbestos were detected in
settled dust samples at Charter House and "may not necessarily
indicate that air samples would also have elevated levels."
"We believe this is low risk," Hudson said, "but need to wait for
additional air quality testing, which is being conducted by the
owners of the building.
"Island Health recognizes that the residents may have concerns
about the possibility of having had contact with asbestos and we
will be working to provide further information about the
likelihood of exposure as that information becomes available."
Island Health and the B.C. Centre for Disease Control are making
joint recommendations to Starlight and support its asbestos-
mitigation strategy, she said.
Mitchell said that Starlight started cosmetic upgrades that could
disturb asbestos, lead and silica without warning tenants or
taking adequate precautions.
Starlight is paying hotel bills and supplying $200 a week to
defray food costs, he said, but that does not counteract the
"massive emotional impacts" on tenants, including some who work
from home and some in their 90s.
"As you can imagine, the novelty of living in hotels with a
microwave for a kitchen has quite worn off for tenants," Mitchell
said.
NDP MLA Carole James, who represents Victoria-Beacon Hill, said
the situation raises broader questions about the rights of tenants
to be warned about asbestos. "This is a bigger issue than simply
these buildings," she said. "If WorkSafe comes in, their
responsibility is to the workers; they're not responsible for the
tenants."
James said she has been unable to find any requirement that
tenants be informed.
"That seems to be a huge gap from my perspective."
She wrote to Housing Minister Rich Coleman, asking what he is
doing to ensure that tenants are protected from asbestos or other
hazards during renovations.
The NDP plans to reintroduce a bill in the legislature to
strengthen tenant protections in the Residential Tenancy Act.
B.C. Housing said tenants should inform landlords in writing of
safety issues, and if unaddressed, apply for dispute resolution
seeking compensation or rent reduction.
The WorkSafe B.C. orders last year involved compliance and health
and safety issues regarding asbestos surveys, containment and
ventilation, spokeswoman Trish Chernecki said. One order was
issued on May 6 and lifted on May 12, and the second was made on
July 19 and lifted Aug. 3.
"The violations were small disturbances of asbestos and each
employer complied with the orders and the stop-works were lifted,"
Chernecki said. WorkSafe B.C. considers any level of disturbed
airborne asbestos hazardous to workers, she said.
ASBESTOS UPDATE: Widow to Fight Tesco in Asbestos Claim
-------------------------------------------------------
Express & Star reported that father-of-three David Priest, 69, was
a manager for Tesco between 1974 and 1985 at various shops in the
West Midlands, helping to oversee expansions at supermarkets in
Dudley, Smethwick and Edgbaston.
He recalled asbestos boards and tiles being cut up as part of
building work, and said he would help to clear up afterwards, his
family said.
After being diagnosed last January with mesothelioma, a terminal
cancer caused by exposure to asbestos dust, Mr Priest only lived
for another seven months.
In the last few weeks he was confined to bed, too weak to even
eat, and when he took his final breath wife Jeanette said it was a
relief to let him go.
Robbed of the retirement they had planned to spend together, 55-
year-old Mrs Priest has now vowed to fulfil his dying wish and get
justice for her husband.
Mr Priest, originally from Tipton, had worked in the food retail
industry since leaving school.
His wife also worked for the company, and said: "He was a stickler
for doing things properly and would always make sure that areas
were cleaned so the dust and debris didn't accumulate.
"That was the only place he could remember coming into contact
with asbestos, but of course he had no idea of the dangers at the
time."
Mr Priest, who also had seven grandchildren and great-
grandchildren, moved to Blackpool with Jeanette in 1990 and ran
The Andora Hotel on South Shore, closing it only shortly before he
got ill.
Both shared a love of travel and planned to spend their retirement
visiting different parts of the world, but following Mr Priest's
diagnosis he was unable to even leave the house. Mrs Priest added:
"Christmas 2015 was the first we hadn't worked in 25 years.
"What we didn't know then was that it would be our last Christmas
together.
"We found out in the January, and to be told you are dying and
have nine months at the most to live is horrendous.
"We couldn't do anything. People kept saying we should make the
most of the time, but how could we do that when he was so ill.
"He was in a lot of pain, but he didn't want to go into hospital
or a hospice, he wanted to be at home.
"I was devastated and still am, but by the end it was a relief. I
couldn't see him suffer anymore."
Lawyers at Slater and Gordon, who David instructed before his
death, are now appealing for people who may have worked with him
in places where asbestos was present.
Although it is banned now, the harmful substance was widely used
in buildings until the 1980s.
Emma Newman, an industrial disease specialist at Slater and
Gordon, said: "David said he was never warned or told to take any
precautions against this toxic substance."
A Tesco spokesman said: "We take the health and safety of our
employees extremely seriously but given this is an ongoing legal
matter, we are unable to provide any further comment at this
time."
Anyone who believes they can help should contact Emma at Slater
Gordon on 0161 383 3474 or email Emma.Newman@slatergordon.co.uk
ASBESTOS UPDATE: Southport Families Battles Over Contamination
--------------------------------------------------------------
Jack Harbour, writing for Gold Coast Bulletin, reported that a
Southport family is seeking $10,000 in compensation over claims
their backyard was contaminated with asbestos during renovations
to a neighbouring property.
A report commissioned by Workplace Health and Safety (WHS) showed
white asbestos fibres were found in Yvette Kogler's garden and on
a fence dividing the two properties in Skiff Street, Southport on
September 13, 2016.
A Southport family is seeking $10,000 in compensation after their
backyard was allegedly contaminated with asbestos during a
neighbour's renovations.
But WHS claimed it could not take action over the alleged
contamination because the renovation work was not carried out "at
a workplace" and was therefore outside its jurisdiction. The
neighbours have denied the allegations.
WHS diverted the matter to the Gold Coast City Council which
claimed it had taken action against the owner of the property but
declined to give details.
Ms Kogler said the matter should have been handled by the council
from the start and the contamination would not have occurred had
officers inspected the renovations when she first complained.
"He (the neighbour) is constantly doing renovations to the house,"
Ms Kogler said.
"Council never put foot on the site. We had to send them all the
documentation."
A council spokeswoman said there were "no further public health
concerns requiring action".
"Council referred the matter to the State Government which is the
lead investigator in these matters," she said.
"WHS referred the matter back to council after undertaking their
investigation. As a result council undertook enforcement action.
"Penalties range from a $1219 on-the-spot fine or a court imposed
fine of up to $12,190 for each offence."
In a letter of demand from Ms Koglers' solicitor to the
neighbour's solicitor, Ms Kogler claimed $1430 for an independent
asbestos test, $2600 to empty the Koglers' pool, $402.15 to refill
the pool, $1865.16 to replace astro turf, $1000 in legal fees and
$180 for doctors' referrals for chest X-rays and CT scans for Mr
and Ms Kogler as well as their daughter, son-in-law and grandson.
Ms Kogler said she was concerned her grandson could have been
affected by the contamination.
The Gold Coast Bulletin made contact with the owner of the
property but he declined to comment.
A solicitor representing Ms Kogler's neighbour wrote to her saying
the claims were unfounded.
"Having discussed this matter at great length with (the
neighbour), it is quite evident that not only are the allegations
contained in your correspondence pre-emptive and preposterous,
they are, with respect, borderline delusional," the letter read.
"We do not propose in this correspondence to address any of the
spurious assertions made as we and our clients consider them to be
embarrassing and untenable.
"Our clients will vigorously defend any action taken on account of
the baseless demand made in your correspondence."
ASBESTOS UPDATE: NY Court Orders $22MM Verdict Set Aside
--------------------------------------------------------
HarrisMartin Publishing reported that a New York court has granted
asbestos defendant Burnham LLC's post-verdict motion for
remittitur, setting aside a $22 million verdict unless the
plaintiffs agrees to decrease the jury's aggregate award for pain
and suffering to $7 million.
In Feb. 10 order, the New York Supreme Court for New York County
noted that an appellate decision issued two weeks after the
verdict was reached also required it to grant Burnham's post-
verdict motion to set aside the portion of the jury verdict which
found the defendant had acted with reckless disregard for the
plaintiff's safety.
ASBESTOS UPDATE: In Extremis Docket Inclusion Ruling Reversed
-------------------------------------------------------------
HarrisMartin Publishing reported that a New York judge has granted
defense requests to vacate a recommendation allowing the inclusion
of an asbestos-containing talc case in the city's in extremis
docket, saying the plaintiff has failed identify a defendant
connected with the decedent's alleged New York City exposure.
In addressing the dispute in a Feb. 2 order, Hon. Peter H. Moulton
of the New York Supreme Court, New York County, noted that the
issue is one of first impression: "whether a plaintiff is entitled
to be placed in an in extremis cluster or must be transferred to a
FIFO cluster where plaintiff alleges exposure to asbestos from
ovens in Queens, but has not sued a defendant or identified an
entity connected to that product."
Judge Moulton held that the lack of a defendant connected to the
plaintiff's New York City exposure or the lack of identification
of any such entity is fatal under the facts presented here. Once
a defendant has been sued or once an entity connected to a product
has been identified, it can be ascertained whether that entity
made an asbestos-containing product during the relevant time
period, thereby anchoring the action to a New York City asbestos
exposure (see e.g., Berensmann v 3M Co., 2013 NY Slip Op 33137 (U)
[Sup Ct, New York County 2013] aff'd, 122 A.D.3d 520 [1st Dept
2014] [issues of fact existed for trial where plaintiff
disbelieved that the product he encountered contained asbestos but
where defendant admittedly made asbestos-containing products
during the relevant period]). Even the failure to identify the
brand of product is not fatal where a defendant, who has made an
asbestos-containing product, has been identified (see e.,g.,
Matter of New York City Asbestos Litig. (2017 NY Slip Op 00572
[1st Dept 2017] [issues of fact exist for trial even though
decedent did not identify the manufacturer of the pumps that he
encountered where defendant made asbestos-containing pumps during
the relevant period]). Plaintiff's testimony did not clearly
anchor his alleged asbestos exposure to New York City. I decline
to issue any preclusion order because plaintiff has not identified
any legal basis to do so."
The case is IN RE NEW YORK CITY ASBESTOS LITIGATION relating to
LESLIE FOGEL and CATHERINE FOGEL, Plaintiffs, v. AMERICAN
INTERNATIONAL INDUSTRIES FOR CLUBMAN, et al Defendants, Docket No.
190093/2016, Sequence 002 and 004 (N.Y. Sup.).
A full-text copy of the Decision dated February 2, 2017, is
available at https://is.gd/0849ON from Leagle.com.
ASBESTOS UPDATE: La. Court Denies Bid to Dismiss "Murphy"
---------------------------------------------------------
HarrisMartin Publishing reported that a Louisiana federal court
has denied motions to dismiss an asbestos case filed by Rohm and
Haas Co. and Honeywell International Inc., saying, in part, that
the plaintiffs have to provide a more details explanation of the
specific factual bases for their claims against the defendants.
In the Feb. 16 order, the U.S. District Court for the Eastern
District of Louisiana gave the plaintiffs time to conduct
jurisdictional discovery and to amend their complaint to include
the specific information regarding the phenolic molding compounds.
Plaintiff Robin Murphy sued the Defendants for damages arising
from his alleged occupational exposure to asbestos-containing
materials between 1964 and 2000. During that time, Murphy was
employed by Defendants Bellsouth and AT&T at various locations
owned, leased, or operated by them in and around New Orleans,
Louisiana. He worked in varying roles including, but not limited
to, frameman, installer, switchman, foreman, electronics
technician, and computer system maintenance. Following Murphy's
death, Carolyn Murphy, Murphy's surviving spouse, and his children
(collectively, "Plaintiffs") were added as plaintiffs.
The case is ROBIN MURPHY, ET AL., v. ALCATEL-LUCENT USA INC., ET
AL., SECTION "N" (5), Civil Action No. 15-5566 (E.D. La.).
A full-text copy of the Order and Reasons dated February 16, 2017,
is available at https://is.gd/obLL5w from Leagle.com.
Carolyn Lanoue Murphy, Plaintiff, represented by Mickey P. Landry,
Landry, Swarr & Cannella, LLC.
Carolyn Lanoue Murphy, Plaintiff, represented by Aaron M.
Heckaman, Bailey Peavy Bailey PLLC, pro hac vice, Amanda Jones
Ballay, Landry, Swarr & Cannella, LLC, Donald Douglas Grubbs,
Bailey Peavy Bailey PLLC, pro hac vice, Duffy Randolph Reagan,
Bailey Peavy Bailey Cowan Heckaman, PLLC, pro hac vice, Frank J.
Swarr, Landry, Swarr & Cannella, LLC, Jason Kyle Beale, Bailey
Peavy Bailey PLLC, pro hac vice, Matthew C. Clark, Landry, Swarr &
Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.
Irvin D. Murphy, Plaintiff, represented by Mickey P. Landry,
Landry, Swarr & Cannella, LLC, Aaron M. Heckaman, Bailey Peavy
Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr &
Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC,
pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan
Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr &
Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac
vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C.
Hoffman, Landry, Swarr & Cannella, LLC.
Kelly Murphy Ricks, Plaintiff, represented by Mickey P. Landry,
Landry, Swarr & Cannella, LLC, Aaron M. Heckaman, Bailey Peavy
Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr &
Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC,
pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan
Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr &
Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac
vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C.
Hoffman, Landry, Swarr & Cannella, LLC.
Robin S. Murphy, Jr., Plaintiff, represented by Mickey P. Landry,
Landry, Swarr & Cannella, LLC, Aaron M. Heckaman, Bailey Peavy
Bailey PLLC, pro hac vice, Amanda Jones Ballay, Landry, Swarr &
Cannella, LLC, Donald Douglas Grubbs, Bailey Peavy Bailey PLLC,
pro hac vice, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan
Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr &
Cannella, LLC, Jason Kyle Beale, Bailey Peavy Bailey PLLC, pro hac
vice, Matthew C. Clark, Landry, Swarr & Cannella, LLC & Philip C.
Hoffman, Landry, Swarr & Cannella, LLC.
April Ann Irons, Plaintiff, represented by Mickey P. Landry,
Landry, Swarr & Cannella, LLC, Amanda Jones Ballay, Landry, Swarr
& Cannella, LLC, Duffy Randolph Reagan, Bailey Peavy Bailey Cowan
Heckaman, PLLC, pro hac vice, Frank J. Swarr, Landry, Swarr &
Cannella, LLC, Matthew C. Clark, Landry, Swarr & Cannella, LLC &
Philip C. Hoffman, Landry, Swarr & Cannella, LLC.
Alcatel-Lucent USA Inc., Defendant, represented by Kay Barnes
Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards, Cosmich
Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons &
Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown,
PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin
James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.
Certainteed Corporation, Defendant, represented by William Claudy
Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP, Arthur Wendel
Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby,
Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan
LLP & Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP.
General Electric Company, Defendant, represented by John Joseph
Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C.,
James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot
L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro,
Frilot L.L.C..
Metropolitan Life Insurance Company, Defendant, represented by Jay
Morton Jalenak, Jr., Kean Miller & Patrick Dale Roquemore, Kean
Miller.
Eagle, Inc., Defendant, represented by Susan Beth Kohn, Simon,
Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine,
Smith & Redfearn, LLP & James R. Guidry, Simon, Peragine, Smith &
Redfearn, LLP.
Reilly-Benton Company, Inc., Defendant, represented by Thomas L.
Cougill, Willingham Fultz & Cougill, Jamie M. Zanovec, Willingham
Fultz & Cougill, Jeanette Seraile-Riggins, Manion Gaynor Manning
LLP & Jennifer D. Zajac, Willingham Fultz & Cougill.
Honeywell International, Inc., Defendant, represented by Stephen
Rodney Whalen, Breazeale, Sachse & Wilson, L. L. P.
Plastics Engineering Company, Defendant, represented by William
Claudy Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP, Arthur
Wendel Stout, III, Deutsch Kerrigan LLP, Barbara Bourgeois Ormsby,
Deutsch, Kerrigan & Stiles, LLP, Jason P. Franco, Deutsch Kerrigan
LLP & Jennifer E. Adams, Deutsch, Kerrigan & Stiles, LLP.
Rogers Corporation, Defendant, represented by Leigh Ann Tschirn
Schell, Kuchler Polk Schell Weiner & Richeson, LLC, Joseph Henry
Hart, IV, Kuchler Polk Schell Weiner & Richeson, LLC, Lori Allen
Waters, Irpino, Avin & Hawkins, Magali Ann Puente-Martin, Frilot
L.L.C. & Thomas A. Porteous, Kuchler Polk Schell Weiner &
Richeson, LLC.
Rohm & Haas Company, Defendant, represented by Tyson B. Shofstahl,
Adams & Reese, LLP.
Special Electric Company, Inc., Defendant, represented by Kay
Barnes Baxter, Cosmich Simmons & Brown, PLLC, Ashley A. Edwards,
Cosmich Simmons & Brown, PLLC, Forrest Ren Wilkes, Cosmich Simmons
& Brown, PLLC, Georgia Noble Ainsworth, Cosmich Simmons & Brown,
PLLC, Margaret Adams Casey, Cosmich Simmons & Brown, PLLC & Martin
James Dempsey, Jr., Cosmich Simmons & Brown, PLLC.
Cooper Industries LLC, Defendant, represented by William Claudy
Harrison, Jr., Deutsch, Kerrigan & Stiles, LLP.
Eaton Corporation, Defendant, represented by Robert E. Barkley,
Jr., Barkley & Thompson, L.C., Mark Powell Seyler, Barkley &
Thompson, L.C. & Thomas E. Schwab, Barkley & Thompson, L.C..
Graybar Electric Company, Inc., Defendant, represented by Cynthia
Cleland Roth, Blue Williams, LLP & Paul D. Palermo, Blue Williams,
LLP.
CBS Corporation, Defendant, represented by John Joseph Hainkel,
III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H.
Brown, Jr., Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C.,
Meredith K. Keenan, Frilot L.L.C. & Peter R. Tafaro, Frilot
L.L.C..
BellSouth Telecommunications, LLC, Defendant, represented by Nancy
Cundiff, Cotten, Schmidt & Abbott, LLP & Christine Changho
Bruneau, Cotten, Schmidt & Abbott, LLP.
AT&T Corp., Defendant, represented by Nancy Cundiff, Cotten,
Schmidt & Abbott, LLP.
AT&T Corp., Defendant, represented by Christine Changho Bruneau,
Cotten, Schmidt & Abbott, LLP.
Taylor-Seidenbach, Inc., Defendant, represented by Christopher
Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, Anne
Elizabeth Medo, Deutsch Kerrigan LLP, David C. Bach, Hailey,
McNamara, Hall, Larmann & Papale LLP, Edward J. Lassus, Jr.,
Hailey, McNamara, Hall, Larmann & Papale & Richard J. Garvey, Jr.,
Hailey, McNamara, Hall, Larmann & Papale.
Honeywell International, Inc., Defendant, represented by Glenn B.
Adams, Porteous, Hainkel & Johnson, Stephen Rodney Whalen,
Breazeale, Sachse & Wilson, L. L. P, Leandro Ryan Area, Porteous,
Hainkel & Johnson & Nancy Lee Cromartie, Porteous, Hainkel &
Johnson.
Schneider Electric USA, Inc., Defendant, represented by Stacey
Leigh Strain, Hubbard, Mitchell, Williams & Strain, PLLC.
Occidental Chemical Corporation, Defendant, represented by John
Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot
L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelsey A. Eagan,
Frilot L.L.C., Meredith K. Keenan, Frilot L.L.C. & Peter R.
Tafaro, Frilot L.L.C..
ASBESTOS UPDATE: Summary Judgment Recommended for 4 Defendants
--------------------------------------------------------------
HarrisMartin Publishing reported that a Delaware magistrate judge
has recommended the award of summary judgment to four asbestos
defendants, noting that the motions were unopposed.
In the Feb. 15 report and recommendation, U.S. Magistrate Judge
Sherry R. Fallon of the U.S. District Court for the District of
Delaware found that the plaintiffs had failed to produce any
evidence of exposure to asbestos in any of the four defendants'
products and, therefore, failed to meet the "substantial factor"
test.
Icom Henry Evans and Johanna Elaine Evans filed the asbestos-
related case in Delaware state court, but it was later removed by
Foster Wheeler. Defendants, Gardner Denver, Inc., Flowserve US
Inc., Atwood & Morrill Company, Inc., and Nash Engineering Company
filed motions for summary judgment.
The court recommends granting Gardner Denver's motion for summary
judgment, because there is no genuine issue of material fact in
dispute as to whether Mr. Evans was exposed to an asbestos-
containing product made by Gardner Denver. Because the Plaintiffs
did not produce any evidence tending to establish exposure to
Gardner Denver's products, the Plaintiffs fail to meet the
"substantial factor" test.
The court recommends granting Flowserve's motion for summary
judgment, because there is no genuine issue of material fact in
dispute as to whether Mr. Evans was exposed to an asbestos-
containing product made by Flowserve. Because the Plaintiffs did
not produce any evidence tending to establish exposure to
Flowserve or Edwards Valves products, the Plaintiffs fail to meet
the "substantial factor" test.
The court recommends granting Atwood's motion for summary
judgment, because there is no genuine issue of material fact in
dispute as to whether Mr. Evans was exposed to an asbestos-
containing product made by Atwood. Because the Plaintiffs did not
produce any evidence tending to establish exposure to Atwood's
products, the Plaintiffs fail to meet the "substantial factor"
test.
The court recommends granting Nash's motion for summary judgment,
because there is no genuine issue of material fact in dispute as
to whether Mr. Evans was exposed to an asbestos-containing product
made by Nash. Because the Plaintiffs did not produce any evidence
tending to establish exposure to Nash's products, the Plaintiffs
fail to meet the "substantial factor" test.
The case is IN RE: ASBESTOS LITIGATION relating to ICOM HENRY
EVANS, and JOHANNA ELAINE EVANS, Plaintiffs, v. ALFA LAVAL, INC.,
et al., Defendants, Civil Action No. 15-681-SLR-SRF (D. Del.).
A full-text copy of the Report and Recommendation dated February
15, 2017, is available at https://is.gd/wWk3br from Leagle.com.
Icom Henry Evans, Plaintiff, represented by David W. deBruin, The
deBruin Firm LLC.
Icom Henry Evans, Plaintiff, represented by Charles E. Soechting,
Jr., Law Offices Of Charles E Soechting Jr Pllc, pro hac vice &
Samuel I. Iola, Simon Greenstone Panatier Bartlett, PC, pro hac
vice.
Johanna Elaine Evans, Plaintiff, represented by David W. deBruin,
The deBruin Firm LLC & Samuel I. Iola, Simon Greenstone Panatier
Bartlett, PC, pro hac vice.
Flowserve US Inc., Defendant, represented by Bernadette M. Plaza,
Goldfein & Joseph & Willard F. Preston, III, Goldfein & Joseph.
Foster Wheeler Energy Corporation, Defendant, represented by Beth
E. Valocchi, Swartz Campbell LLC, Shawn Edward Martyniak, Swartz
Campbell LLC & Allison L. Texter, Swartz Campbell LLC.
Gardner Denver Inc., Defendant, represented by Krista Reale Samis,
Eckert Seamans Cherin & Mellott, LLC.
General Electric Company, Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
IMO Industries, Inc., Defendant, represented by Eileen M. Ford,
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki
Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..
John Crane, Inc., Defendant, represented by Jonathan L. Parshall,
Murphy, Spadaro & Landon.
Nash Engineering Company, Defendant, represented by Paul D.
Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin
& Prokopik.
Warren Pumps, LLC, Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica
Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.
Atwood & Morrill Company Inc., Defendant, represented by Paul D.
Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin
& Prokopik.
Warren Pumps, LLC, Cross Claimant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica
Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica
Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.
Icom Henry Evans, Cross Defendant, represented by Charles E.
Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica
Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica
Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.
Atwood & Morrill Company Inc., Cross Claimant, represented by Paul
D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson,
Franklin & Prokopik.
Atwood & Morrill Company Inc., Cross Defendant, represented by
Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson,
Franklin & Prokopik.
Icom Henry Evans, Cross Defendant, represented by Charles E.
Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc.
Flowserve US Inc., Cross Defendant, represented by Bernadette M.
Plaza, Goldfein & Joseph & Willard F. Preston, III, Goldfein &
Joseph.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Nash Engineering Company, Cross Defendant, represented by Paul D.
Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin
& Prokopik.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.
Nash Engineering Company, Cross Claimant, represented by Paul D.
Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin
& Prokopik.
Nash Engineering Company, Cross Defendant, represented by Paul D.
Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin
& Prokopik.
Atwood & Morrill Company Inc., Cross Defendant, represented by
Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson,
Franklin & Prokopik.
Icom Henry Evans, Cross Defendant, represented by Charles E.
Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc.
Flowserve US Inc., Cross Defendant, represented by Bernadette M.
Plaza, Goldfein & Joseph & Willard F. Preston, III, Goldfein &
Joseph.
Foster Wheeler Energy Corporation, Cross Defendant, represented by
Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz
Campbell LLC.
General Electric Company, Cross Defendant, represented by Beth E.
Valocchi, Swartz Campbell LLC.
IMO Industries, Inc., Cross Defendant, represented by Eileen M.
Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan
Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly,
P.C..
John Crane, Inc., Cross Defendant, represented by Jonathan L.
Parshall, Murphy, Spadaro & Landon.
Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della
Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.
ASBESTOS UPDATE: Congress Committee Passes FACT Act
---------------------------------------------------
Terri Oppenheimer, writing for Mesothelioma.net, reported that the
Furthering Asbestos Claims Transparency Act, also known as the
FACT Act, has been floating around Congress for several years.
Healthcare advocates and those who fight for the rights of
mesothelioma victims have long fought against this law, and are
disheartened by the fact that it has been revitalized and has
passed the critical first hurdle of having passed the House
Judiciary Committee Vote. The next step will be a vote in the full
House of Representatives.
The theory behind the FACT Act is that it provides greater
transparency in the process of filing asbestos-related lawsuits,
preventing fraud and "double dipping" on the part of personal
injury attorneys or those who would claim compensation that they
do not deserve. Those who support and lobby for the bill justify
what they are doing by claiming that they are protecting funds on
behalf of those that deserve them. But those who oppose the law
have indicated that it would actually work against mesothelioma
victims. According to Linda Reinstein, the widow of a mesothelioma
victim and president of the Asbestos Disease Awareness
Organization, "The FACT Act is a disaster for asbestos and
mesothelioma victims. The bill aims to delay and deny compensation
to those who are or will become sick from asbestos-related
diseases. In addition, the bill violates the privacy of asbestos
victims, releasing sensitive information via a public website."
Congressman Bruce Vento was another victim of mesothelioma, and
his widow Susan went even further in what she had to say. "The
brutal facts about the FACT Act are that it will impair the legal
rights and privacy rights of past, current and future victims of
mesothelioma and their families . . .. it will tip the scales of
justice in favor of the industries who manufactured and
distributed asbestos and exposed so many workers, members of the
military and their families to asbestos."
Even those who have not lost a loved one to asbestos-related
disease but who are interested in protecting the rights of
American citizens have expressed concern. According to former
executive director of the U.S. Consumer Product Safety Commission
Pamela Gilbert, "The FACT Act has nothing to do with transparency.
The bill will make it more difficult for asbestos victims to seek
compensation from the wrongdoers who are responsible by adding
delay, cost and complexity to the process. It is designed to
intimidate patients and family members from filing claims, and
even worse, the delay will mean that many victims will die before
they ever receive a dime. It is cruel legislation that benefits
only the asbestos industry and their insurers."
In the face of rising concerns about the ability to get justice,
there are still many resources available for mesothelioma
patients. If you need answers, the Patient Advocates at
Mesothelioma.net can help. Call us at 1-800-692-8608 to see how
we can help.
ASBESTOS UPDATE: Korean Gov't Tightens Asbestos Management Rules
----------------------------------------------------------------
Kim Se-jeong, writing for Korean Times, reported that the
government is seeking to tighten regulations for asbestos
management.
The Ministry of Environment said it will expand a list of private
after-school academies to conduct a biannual asbestos inspection
on their facilities.
Asbestos comes in many forms and long-term exposure causes cancer.
Currently, academies more than 1,000 square meters in size are
required to conduct the inspection, but under the revised
regulations, which will go into effect later this week, the number
will be down to 430 square meters.
The inspection has been around since 2012 when legislation on
asbestos safety management became law. The law currently requires
the test on buildings used by children -- schools, kindergartens,
daycare centers and academies -- and built before 2009. Violators
can be punished with a fine of up to 10 million won.
According to the modified rules, the building owners will also
have to conduct an air quality test inside the building
periodically.
The move is part of the government's ongoing measures to protect
public health from cancer-causing asbestos. According to the World
Health Organization (WHO), asbestos can cause laryngeal, lung and
ovarian cancer and mesothelioma.
Asbestos is found in many construction materials, such as
insulation, floor backing and drywall taping compounds and
adhesives. It's also used in vinyl products, cigarette filters,
fume hoods and fireproofing and fire-prevention materials.
The government's regulations are diverse. In 2011, the government
banned asbestos-containing materials in construction. Currently,
all building owners must conduct the asbestos test before
demolishing their buildings. The government subsidizes the
treatment of old asbestos collected from demolished buildings and
assists those who suffer health problems from the substance. For
factories manufacturing asbestos-containing products, the
government also demands tight emissions regulations.
Asbestos was a symbol of Korea's industrialization. Countless
high-rise buildings constructed during the 1970s and 80s used
materials containing asbestos. Corrugated asbestos roofs were sold
to rural homeowners as a fast and affordable building material.
Some even grilled meat on asbestos roof tiles for its particular
taste.
The silicate mineral caused the death of many people over the
years, mostly workers at construction sites. From 2011, the
government began offering compensation to the relatives of those
who died of and fell sick because of exposure to asbestos. In
total, 2,334 people have received compensation, according to the
ministry. The WHO said currently almost 125 million people around
the world are exposed to the material at work. In 2014, 107,000
deaths were caused by asbestos-related illnesses.
ASBESTOS UPDATE: Pasademan Man Awarded $14.5MM in Asbestos Case
---------------------------------------------------------------
Heather Cobun, writing for The Daily Record, reported that a
Baltimore jury has awarded nearly $14.5 million to a former
steamfitter who was exposed to asbestos for nearly a decade while
at work and performing home improvement projects. William E.
Busch Jr., now 68, was involved in several new construction
projects where he was in the vicinity of contractors using
products containing asbestos.
ASBESTOS UPDATE: Atty Concerned Over Asbestos in Schools
--------------------------------------------------------
Liverpool asbestos lawyer Kevin Johnston has reacted with concern
to a story published in the Liverpool Echo which lists the number
of schools in the Runcorn and Widnes areas that still contain
asbestos.
The paper reports that a freedom on information request to Halton
Borough Council resulted in 52 schools being shown to contain some
type of asbestos-containing material (ACM).
Exposure to asbestos is the only cause of fatal lung cancer,
mesothelioma.
Five of the schools are reported to have been demolished, with
asbestos removed as part of the process.
Surveys of buildings with asbestos containing material are carried
out by the Council every year to assess the condition of the ACM,
and to check that is has not deteriorated and needs removal.
John Hughes, the local authority's divisional manager for
enterprise, community and resources, is reported as saying that no
incidents of asbestos exposure have taken place in the last five
years.
Specialist mesothelioma lawyer Kevin Johnston said:
"Asbestos is a very dangerous product which was widely used in the
construction of schools and other buildings up until 1999.
"It is extremely worrying that so many schools in the Halton area
contain asbestos. Mesothelioma takes decades to develop, and the
earlier in life someone is exposed to asbestos the more likely
they are to develop the condition.
"Everyday school activities such as pinning art work to boards
that contain asbestos can result in asbestos fibres being
released, thus exposing staff and pupils to the substance.
"The All-Party Parliamentary Group on Occupational Safety has
called for the urgent removal of all asbestos from public
buildings, but thousands of buildings around the UK still contain
ACM.
"As only a small amount of asbestos exposure can lead to these
serious illnesses it is vital that local authorities in Halton and
throughout the UK continue to monitor the state of ACM in schools
very carefully to protect the health of staff and students."
ASBESTOS UPDATE: Union Pacific Has $8MM Liability at Dec. 31
------------------------------------------------------------
Union Pacific Corporation reports current portion of asbestos-
related liability at $8 million as of December 31, 2016 ($6
million in 2015 and $8 million in 2014), according to the
Company's Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended December 31, 2016.
Its open claims ending balance at December 31, 2016 is 943 (1,089
in 2015 and 1,065 in 2014).
The Company states: "We are a defendant in a number of lawsuits in
which current and former employees and other parties allege
exposure to asbestos. We assess our potential liability using a
statistical analysis of resolution costs for asbestos-related
claims. This liability is updated annually and excludes future
defense and processing costs. The liability for resolving both
asserted and unasserted claims was based on the following
assumptions:
-- The ratio of future claims by alleged disease would be
consistent with historical averages adjusted for inflation.
-- The number of claims filed against us will decline each
year.
-- The average settlement values for asserted and unasserted
claims will be equivalent to historical averages.
-- The percentage of claims dismissed in the future will be
equivalent to historical averages.
"Our liability for asbestos-related claims is not discounted to
present value due to the uncertainty surrounding the timing of
future payments. Approximately 20% of the recorded liability
related to asserted claims and approximately 80% related to
unasserted claims at December 31, 2016. Because of the
uncertainty surrounding the ultimate outcome of asbestos-related
claims, it is reasonably possible that future costs to settle
these claims may range from approximately $111 million to $118
million. We record an accrual at the low end of the range as no
amount of loss within the range is more probable than any other.
"In conjunction with the liability update performed in 2016, we
also reassessed our estimated insurance recoveries. We have
recognized an asset for estimated insurance recoveries at December
31, 2016, and 2015. The amounts recorded for asbestos-related
liabilities and related insurance recoveries were based on
currently known facts. However, future events, such as the number
of new claims filed each year, average settlement costs, and
insurance coverage issues, could cause the actual costs and
insurance recoveries to be higher or lower than the projected
amounts. Estimates also may vary in the future if strategies,
activities, and outcomes of asbestos litigation materially change;
federal and state laws governing asbestos litigation increase or
decrease the probability or amount of compensation of claimants;
and there are material changes with respect to payments made to
claimants by other defendants."
Union Pacific Corporation is a rail transportation company.
ASBESTOS UPDATE: Haynes Still Faces Asbestos Suits at Dec. 31
-------------------------------------------------------------
Haynes International, Inc., faces two asbestos related lawsuits,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
December 31, 2016.
The Company (together with a number of other manufacturer
defendants) is involved in two actions alleging that asbestos in
its facilities harmed the plaintiffs. The Company believes that it
has defenses to these allegations and that, if the Company were to
be found liable, the cases would not have a material effect on its
financial position, results of operations or liquidity.
Haynes International, Inc. is a developer, manufacturer, and
distributor of HASTELLOY(R) and HAYNES(R) high-performance alloys.
ASBESTOS UPDATE: GMS Units Face Asbestos Claims at Feb. 3
---------------------------------------------------------
Certain subsidiaries of GMS Inc. have been the subject of claims
related to alleged exposure to asbestos-containing products they
distributed prior to 1979, according to the Company's Form S-1
Registration Statement with the U.S. Securities and Exchange
Commission on February 3, 2017.
The claims have not materially impacted the Company's financial
condition or operating results.
GMS Inc. distributes wallboards, suspended ceilings systems, and
complementary interior construction products in North America.
ASBESTOS UPDATE: Graham Corp. Still Faces Suits at Dec. 31
----------------------------------------------------------
Graham Corporation continues to face lawsuits alleging personal
injury from exposure to asbestos allegedly contained in, or
accompanying, products made by the Company, according to Gramham's
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended December 31, 2016.
The Company is a co-defendant with numerous other defendants in
these lawsuits and intends to vigorously defend itself against
these claims. The claims in the Company's current lawsuits are
similar to those made in previous asbestos-related suits that
named the Company as defendant, which either were dismissed when
it was shown that the Company had not supplied products to the
plaintiffs' places of work or were settled for immaterial amounts.
As of December 31, 2016, the Company was subject to the claims
noted above, as well as other legal proceedings and potential
claims that have arisen in the ordinary course of business.
Although the outcome of the lawsuits, legal proceedings or
potential claims to which the Company is, or may become, a party
to cannot be determined and an estimate of the reasonably possible
loss or range of loss cannot be made, management does not believe
that the outcomes, either individually or in the aggregate, will
have a material effect on the Company's results of operations,
financial position or cash flows.
Graham Corporation designs, manufactures and sells critical
equipment for the energy, defense and chemical/petrochemical
industries.
*********
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Copyright 2017. All rights reserved. ISSN 1525-2272.
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