/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170721.mbx C L A S S A C T I O N R E P O R T E R Friday, July 21, 2017, Vol. 19, No. 143 Headlines AHERN RENTALS: McEathron Seeks Unpaid Wages Under Labor Code ALBERTSONS COMPANIES: Blamed for Slip Accident by "Christian" ALTISOURCE ASSET: Third Circuit Appeal Filed in Cambridge Suit AMERICAN MEDICAL: Appeals Decision in "Caldera" Suit to 9th Cir. AMERICAN MOTOR: Court Certified Class of Subscribers in "Mohamed" ANTHEM INC: Data Breach Class Action Settlement Significant AZUSA, CA: Faces Class Action Over Unpaid Overtime Wages APPLE INC: Defends Security Policies, Urges Denial of Class Certs BLISTEX INC: Judge Tosses Lip Balm Packaging Class Action BOSTON SCIENTIFIC: Siskind Notifies of Opt-Out in TMV Class Suit BT ITALIA: Faces Class Actions Over Book-Keeping Scandal CABELA'S INC: Regulators Approve Merger Amid Class Action CABLE NEWS: Racial Discrimination Lawsuit Continues to Grow CAMDEN COUNTY: Inmates' Class Action Concluded After 12 Years CANTERBURY LAMP: Faces "Veloza" Suit Over Failure to Pay Overtime CASSELS BROCK: Court of Appeal Cuts Damages in Dealer Class Action CENTURYLINK INC: Aug. 18 Class Action Lead Plaintiff Deadline Set CENTURYLINK INC: Class Action Lawsuit Adds Arizona Customers CHEESECAKE FACTORY: Goldman Sues over Double Gratuity Payment CHICAGO: House Cleaning at Water Dept. Seek Police Protection CMR DOUBLE: Faces "Wright" Suit Over Failure to Pay Overtime COM DEV: Sept. 18 Hearing on "Tom" Class Certification Bid CREDIT CONTROL: Faces "Quick" Suit Alleging TCPA Violation CVS HEALTH: Faces Class Action Over EpiPen Price Hike CVS PHARMACY: Court Denied Amended Class Cert. Bid in "Romulus" DES MOINES, IA: Court Affirms Class Action Status of Bed Bug Suit ERIC C. CONN: Hearing Postoned Due to Attorney's Accident EXPERIAN INFORMATION: Sued Over Transfer Act Violations FACEBOOK INC: Faces "Song" Suit over Wage & Hour Violation FASHION NOVA: "Perez" Suit Seeks Unpaid Wages under Labor Code FLORIDA: Hit With Class Action Suit Over Higher Ed Funds GATEHOUSE MEDIA: Faces Class Action Over Deceitful Subscriptions GC SERVICES: Placeholder Bid for Class Certification Filed GENERAL MOTORS: July 26 Lead Plaintiff Motion Deadline Set GENERAL MOTORS: Seeks Dismissal of Engine Defect Class Action GLOBAL NATURALS: Beasley Sues over Eyelash Enhancer Misleading Ad GOOGLE INC: AGs Ask Appeals Court to Reject Proposed Settlement HANDY & HARMAN: Paskowitz Seeks to Enjoin Steel Partners Merger HCSB FINANCIAL: Rigrodsky & Long Files Class Action Complaint HIGHMARK INC: Sued in S.D. Ala. Over Denied Insurance Coverage HONEYWELL INT'L: Seeks 2nd Cir. Review of Order in "Kelly" Suit I LOVE SUSHI: "Page" Sues Over Tip Pool Practices, Invokes FLSA INTERCONTINENTAL HOTELS: Sued Over Employee Fingerprint Use JFA AUTO: Faces "Suazo" Suit Over Failure to Pay Overtime Wages JIREH PREPARATORY: Files For Bankruptcy Amid Class Action Lawsuit JOHNSON CONTROLS: "Hostetler" Suit Seeks to Certify Class KOTOBUKI MANAGEMENT: "Pok" Action Seeks Unpaid Overtime KRAKEN: Faces Class Action Over May Flash Crash LEWISBURG, PA: Inmates' Class Action Against BOP Moves Forward MADISON, WI: "Campos" Suit Seeks to Certify Class MANHASSET RESTAURANT: Does Not Properly Pay Employees, Suit Says MASON MANAGEMENT: Illegally Inflates Apartment Rent, Suit Claims MASSAGE ENVY: Seventh Circuit Appeal Filed in "Haywood" Suit MAXIM HEALTHCARE: "Moodie" Suit Seeks to Certify Settlement Class MEGGITT-USA: "Trout" Suit Seeks to Certify Class MICHIGAN: Defends Imposed Penalties False Fraud Accusations MICHIGAN: "Dearduff" Suit Seeks to Certify Class of Prisoners MICROSOFT CORP: Proskauer Rose Comments on SCOTUS Ruling MIDFLORIDA: Settles Overdraft Fee Class Action for $2.375MM MINNESOTA: Thrivent Seeks Win After DOL Drops Class Action Rule MISSISSIPI: Settles Children's Mental Health Care Litigation MONSANTO: Migrant Farmworkers Sue Over FLSA Violations NATIONS RECOVERY: Meyer Files Placeholder Class Certification Bid NESTLE WATERS: "Roz" Suit Seeks to Certify Class & Subclasses NIC GEORGIOU: Former Pickvest Exec Supports Class Action NIDO CAFFE: "Martinez" Suit Seeks to Recover Unpaid OT Wages NORTHERN TRUST: "Banks" Class Certification Bid Denied as Moot NORTHLAND GROUP: "Hyun" Suit Seeks Certification of Class NOVANT HEALTH: Insurers File Countersuits in 401(k) Plan Dispute PATRIOT LAND: "Conover" Sues Over Illegal Kickbacks PAYPAL: California Gun Shop Owner Files Class Action PERFORMANCE CONTRACTING: Faces "McDaniels" Lawsuit Under FLSA PERSHING SQUARE: Accused of Wrongful Conduct Over Call Options PETROBRAS: Pomerantz Achieves Significant Victory in Securities CA PICHARDO 2230: Second Circuit Appeal Filed in "Lopez" Class Suit PINGTAN MARINE: Faces Class Action for Human Trafficking PLAINS ALL AMERICAN: Andrews Asks Court to Grant Class Cert. Bid POSTMATES INC: Hit with TCPA Class Action Lawsuit PRETIUM RESOURCES: Martin Appeals Ruling in Securities Suit PRIMESOURCE HEALTH: "Pfefferkorn" Class Certification Bid Denied QUADRANT 4: Bragar Eagel Files Class Action Lawsuit REAL TIME: Placeholder Motion for Class Certification Filed REMINGTON ARMS: AG Urges Appeals Court to Overturn CA Settlement ROYAL BANK: Instalment Warrants Buyers File AU$100MM Class Suit SALOV NORTH: Frank Appeals Ruling in "Kumar" Suit to 9th Circuit SAMARITAN VILLAGE: Beckett Seeks Unpaid Wages under Labor Law SATELLITE UNLIMITED: Overtime Pay Sought in "Dorman" Labor Suit SCRIPPS RANCH: Class Action Mulled Over Botched AP Tests SEMACONNECT INC: Placeholder Bid for Class Cert. Withdrawn SINOVAC BIOTECH: Faces "Wu" Suit in New York Supreme Court SINOVAC BIOTECH: Khang & Khang Files Securities Class Suit SKY CHEFS: Polsinelli Discusses FCRA Class Action Ruling SOUTHERN GLAZER'S: Scott Cole & Associates Files Class Action SUMMONS PIZZA: "Mizquiri" Suit Seeks to Recover Unpaid Wages TAHOE RESOURCES: Lundin Law Files Securities Class Action Suit TAILORMADE EXECUTIVE: "Edwards" Alleges Verbal Abuse, Unpaid OT TAMKO BUILDING: Stay Lifted in Class Action Lawsuit TARRANT COUNTY: "Cobb" Sues Over Unpaid Overtime Pay TOKYO ELECTRIC: Trial Begins in Fukushima Class Action UBER TECHNOLOGIES: Drivers Challenge Class Action Dismissal Bid ULTA SALON: Faces Class Action Over Labor Code Violations UNITED STATES: AGs Sue Over Delay of For-Profit College Rules UNITED STATES: Hearing Set in Class Action Against UIA UNITED STATES: Key Hearing Held in Iraqi Immigrants Case UNITED TECHNOLOGIES: "Millman" Suit Seeks Certification of Class UNITED POTATO: Faces Antitrust Class Action Over Potato Cartel VIRGINIA: Dept. of Corrections Faces Federal Class Action Suit WELLS FARGO: Tycko & Zavareei Files Overdraft Fee Class Action WESTERN EDGE: Court Approval of Opt-In Notice Sought in "Hamman" WESTERN-SHAMROCK: Faces "Rodriguez" Suit Over Failure to Pay OT XACTLY CORP: Faces Class Action Over Vista Equity Merger ZENCO COLLECTIONS: Benson Asks Court to Certify Classes * Amendments to FCRA Can Increase Class Action Litigation * DOL Agrees to Drop Prohibition on Class Action Waivers * Employers Can't Use Class Action Waivers Under NY Freelance Act * Justice Department's Aversion to CA Will Have Wide Impact * Pro-Trump Prophet Proposes Class Action Lawsuit * Supreme Court Could Put Pressure on Finra Class-Action Policy Asbestos Litigation ASBESTOS UPDATE: Husband's Overalls Causes Wife's Asbestos Death ASBESTOS UPDATE: Asbestos Suit Filed by Former Texaco Worker ASBESTOS UPDATE: Burden Placed on Company in Asbestos PI Suit ASBESTOS UPDATE: Former Builder Dies from Asbestos Contamination ASBESTOS UPDATE: Fla. High Ct. Agrees to Take Up Asbestos Suit ASBESTOS UPDATE: EPA Funds Asbestos Cleanup Along South Carolina ASBESTOS UPDATE: More Women Facing Mesothelioma ASBESTOS UPDATE: Children Play in Rubbish Dump with Asbestos ASBESTOS UPDATE: Asbestos in Schools Poses No Risk, Says Councils ASBESTOS UPDATE: School Asbestos Find Led to Kitchen Closure ASBESTOS UPDATE: South Ockendon Electrician Dies from Asbestos ASBESTOS UPDATE: Kitui Residents Exposed to Asbestos at Dumpsite ASBESTOS UPDATE: Asbestos Found at Cobb & Co. Site ASBESTOS UPDATE: 2 Shefford Schools Shut Due to Asbestos Fears ASBESTOS UPDATE: City Enlists EPA to Test for Asbestos from Fire ASBESTOS UPDATE: Test Confirms Asbestos Contamination at Church ASBESTOS UPDATE: Canada Lowers Limit of Exposure to Asbestos ASBESTOS UPDATE: Makeup Brand Contains Asbestos ASBESTOS UPDATE: Fairbanks Wins Summary Judgment in "Charbonneau" ASBESTOS UPDATE: Sears Roebuck Wins Summary Judgment in "Glaser" ASBESTOS UPDATE: Summary Judgment Bid in "Dionne" Denied ASBESTOS UPDATE: Cal. App. Modifies Opinion in "Paulus" ASBESTOS UPDATE: J.D. Lee Can Practice Pro Hac Vice in "Moore" ASBESTOS UPDATE: Court Dismisses Claims Against Trane in "Roper" ASBESTOS UPDATE: Loss of Consortium Claim Barred by Res Judicata ASBESTOS UPDATE: Court Sets Filing Deadlines in "Carroll" ASBESTOS UPDATE: Cleaver-Brooks Wins Summary Judgment in PI Suit ASBESTOS UPDATE: Expert Disclosure Deadline Stipulations OK'd ASBESTOS UPDATE: GMS Units Still Face 53 PI Suits at April 30 ASBESTOS UPDATE: H.B. Fuller Still Defends PI Suits at June 3 ********* AHERN RENTALS: McEathron Seeks Unpaid Wages Under Labor Code ------------------------------------------------------------ ANDREW MCEATHRON, individually, and on behalf of other members of the general 12 11 public similarly situated, the Plaintiff, v. AHERN RENTALS, INC., an unknown business entity; and DOES 1 through 100, inclusive; the Defendant, Case No. RG17867866 (Cal. Super. Ct., July 12, 2017), seeks to recover unpaid wages under California Labor Code. According to the complaint, the Plaintiff and the other class members worked over 8 hours in a day and/or 40 hours in a week during their employment with Defendants. The Plaintiff alleges that Defendants engaged in a pattern and practice of wage abuse against their hourly-paid or non-exempt employees within the State of California, involving failing to pay them for all regular and/or overtime wages earned, missed meal periods and rest breaks in violation of California law.[BN] Ahern Rentals provides industrial equipment rental services in the United States. The Plaintiff is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. Daniel J. Park, Esq. JUSTICE LAW CORPORATION 11411 North Central Avenue, Suite 500 Glendale, CA 91203 Telephone: (818) 230 7502 Facsimile: (818) 230 7259 ALBERTSONS COMPANIES: Blamed for Slip Accident by "Christian" ------------------------------------------------------------- Emily J.B. Christian on behalf of herself and those similarly situated, Plaintiff, v. Albertsons, Albertsons Companies Inc., Albertsons Companies LLC, New Albertsons Inc., Albertsons Specialty Care, LLC and Jewel Osco, Defendants, Case No. 2017-L- 006913 (Ill. Cir., July 11, 2017), seeks damages that are in excess of $50,000.00 plus costs and attorney fees for Defendant's failure to provide slip guards and or slip resistant surfaces in sidewalks, curbs and common areas. Defendants owns the premises located at 1202 State Street, Lemont, IL 60439 where Plaintiff, under normal circumstances slipped and fell on the sidewalk, curb and ground, sustaining severe and permanent injuries. [BN] Plaintiff is represented by: Margaret Crowell, Esq. DREYFUS LAW GROUP 309 W. Washington, Street, Suite 700 Chicago, IL 60606 Tel: (773) 327-3474 ALTISOURCE ASSET: Third Circuit Appeal Filed in Cambridge Suit -------------------------------------------------------------- Denver Employee Retirement Plan, Lead Plaintiff in the litigation titled CITY OF CAMBRIDGE RETIREMENT SYSTEM, on behalf of itself and all other similarly situated v. ALTISOURCE ASSET MANAGEMENT CORPORATION, WILLIAM C. ERBEY, KENNETH D. NAJOUR, ASHISH PANDEY, and ROBIN N. LOWE, Case No. 1:15-cv-00004, in the U.S. District Court for the District of Virgin Islands, Division of St. Croix, appeals from: (1) the Memorandum and Order Granting Defendants' Motion to Dismiss, filed and entered on April 6, 2017; (2) the Order Granting Defendants' Motion to Dismiss, filed and entered on April 6, 2017; and (3) the Memorandum and Order Denying With Prejudice Motion of Lead Plaintiff Denver Employee Retirement Plan for Leave to File First Amended Consolidated Complaint, filed and entered on July 5, 2017. As previously reported in the Class Action Reporter, the lawsuit alleges that the Defendants violated federal securities laws by failing to disclose material information to AAMC shareholders concerning alleged conflicts of interest held by Mr. Erbey with respect to AAMC's relationship and transactions with RESI, Altisource, Home Loan Servicing Solutions, Ltd., Southwest Business Corporation, NewSource Reinsurance Company and Ocwen Financial Corporation. The appellate case is captioned as CITY OF CAMBRIDGE RETIREMENT SYSTEM, On behalf of itself and all others similarly situated, et al. v. ALTISOURCE ASSET MANAGEMENT CORP; WILLIAM C ERBEY; KENNETH NAJOUR; ASHISH PANDEY; ROBIN LOWE, Denver Employee Retirement Plan, Case No. 17-2471, in the United States Court of Appeals for the Third Circuit. The briefing schedule in the Appellate Case is set as follows: -- The $5 District Court filing fee and $500 Court of Appeals docket fee must be paid within 14 days of the date of the letter; -- Counsel for Appellant must file Application for Admission (if applicable) and other forms within 14 days of the date of the letter; -- Counsel for Appellee must file Application for Admission (if applicable), Appearance Form and Disclosure Statement (except governmental entities) within 14 days of the date of the letter.[BN] Plaintiff-Appellant DERP and the Class are represented by: Vincent Colianni II, Esq. COLIANNI & COLIANNI 1138 King Street Christiansted St. Croix, VI 00820 Telephone: (340) 719-1766 Facsimile: (340) 719-1770 E-mail: vinny@colianni.com - and - Steve W. Berman, Esq. Karl P. Barth, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com karlb@hbsslaw.com - and - Reed R. Kathrein, Esq. Peter E. Borkon, Esq. Nick. S. Singer, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Ave., Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 E-mail: reed@hbsslaw.com peterb@hbsslaw.com nsinger@hbsslaw.com On the 7th day of July, 2017, the NOTICE OF APPEAL was filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing (NEF) to: A. Jeffrey Weiss, Esq. A.J. WEISS & ASSOCIATES 6934 Vessup Lane St. Thomas, VI 00802-1001 E-mail: jeffweiss@weisslaw-vi.net - and - Pamela L. Colon, Esq. LAW OFFICES OF PAMELA L. COLON 27 & 28 King Cross Street, First Floor Christiansted, VI 00820 E-mail: pamelalcolon@msn.com - and - Kevin A. Rames, Esq. LAW OFFICES OF KEVIN A. RAMES, P.C. 2111 Company Street, First floor Christiansted, VI 00820 E-mail: kevin.rames@rameslaw.com - and - Chad C. Messier, Esq. DUDLEY TOPPER & FEUERZEIG 1000 Frederiksberg Gade St. Thomas, VI 00804 E-mail: cmessier@dtflaw.com - and - Walter C. Carlson, Esq. SIDLEY AUSTIN LLP One South Dearborn Chicago, IL 60603 E-mail: wcarlson@sidley.com - and - Darrell S. Cafasso, Esq. SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 E-mail: cafassod@sullcrom.com AMERICAN MEDICAL: Appeals Decision in "Caldera" Suit to 9th Cir. ---------------------------------------------------------------- Defendant American Medical Collection Agency filed an appeal from a court ruling in the lawsuit styled Armando Caldera v. American Medical Collection Agency, Case No. 2:16-cv-00381-CBM-AJW, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter on July 13, 2017, the Hon. Consuelo B. Marshall granted the Plaintiff's motion for class certification. The Class is defined as: All persons within the United States who had or have a number assigned to a cellular telephone service who received at least one call using either the Genesys Desktop dialing system or the Aspect 6.5.1 dialing system, from Defendant or its agent between January 1, 2014 and December 31, 2014 for debt collection purposes, who received such a call where Defendant's customer account records indicate that prior to any such calls that Defendant employed a skip trace to locate the phone number it contacted, as identified by Defendant's electronic customer account records by the language "WFBP" or "Created skiptrace." The appellate case is captioned as Armando Caldera v. American Medical Collection Agency, Case No. 17-80142, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent ARMANDO CALDERA, Individually and On Behalf of All Others Similarly Situated, is represented by: Adrian Robert Bacon, Esq. LAW OFFICES OF TODD FRIEDMAN PC 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: abacon@toddflaw.com - and - Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN 324 S. Beverly Drive Beverly Hills, CA 90212 Telephone: (877) 206-4741 E-mail: tfriedman@toddflaw.com - and - Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Matthew Michael Loker, Esq. KAZEROUNI LAW GROUP, APC 1303 East Grand Avenue Arroyo Grande, CA 93420 Telephone: (800) 400-6808 E-mail: ml@kazlg.com - and - Joshua Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com Defendant-Petitioner AMERICAN MEDICAL COLLECTION AGENCY, also known as Retrieval-Masters Creditors Bureau, Inc., is represented by: Sean P. Flynn, Esq. GORDON & REES, LLP 2211 Michelson Dr. Irvine, CA 92612 Telephone: (949) 255-6950 Facsimile: (949) 474-2060 E-mail: sflynn@gordonrees.com - and - Andrew S. Jacob, Esq. GORDON & REES, LLP 111 W. Monroe Street, Suite # 1600 Phoenix, AZ 85003 Telephone: (602) 794-2495 E-mail: ajacob@grsm.com - and - Henry Frampton, Esq. GORDON REES SCULLY MANSUKHANI, LLP 170 Meeting Street, Suite 110 Charleston, SC 29412 Telephone: (843) 278-5900 E-mail: hframpton@grsm.com AMERICAN MOTOR: Court Certified Class of Subscribers in "Mohamed" ---------------------------------------------------------------- In the lawsuit styled RAY MOHAMED, individually and on behalf of all others similarly situated, the Plaintiffs, v. AMERICAN MOTOR COMPANY, LLC, a Florida limited liability company doing business as instantcaroffer.com doing business as ICO and OFF LEASE ONLY, INC., a Florida corporation, the Defendants, Case No. 1:15-cv- 23352-MGC (S.D. Fla.), the Hon. Judge Marcia G. Cooke entered an order certifying a class of: "all subscribers within the United States (i) who received a text message (ii) on his or her cellular telephone (iii) from InstantCarOffer.com, on behalf of Off Lease Only, Inc., (iv) through the use of the Twilio platform (v) after placing an advertisement on craigslist.org in connection with the sale of a vehicle (vi) for a period of four (4) years prior to the filing of the initial Complaint -- September 4, 2011 -- to the date of class certification". The Court expanded the class somewhat to allow for Plaintiff's allegations that the texts allegedly sent on behalf of Defendant constitute telemarketing, which would require Defendant to have had prior express written consent rather than prior express consent in advance of sending any autodialed text messages, rendering the content of a Craigslist ad relatively immaterial. As both Plaintiff and Defendant admit, the issue of prior express written consent can be decided easily on a classwide basis. Should the finder of fact ultimately find that Defendant's text messages did not constitute telemarketing, the issue of prior express consent remains and can still be resolved without resorting to mini-trials. The Court noted that regarding Plaintiff's claim that including "through the use of an automatic telephonic dialing system" makes notice to the class "impossible" because Plaintiff could not notify the class until a merits issue had been resolved (a rather hyperbolic claim), the concern is easily resolved by substituting "the Twilio platform" for "an automatic telephonic dialing system." It has been demonstrated on the record that the only dialing platform at issue in this case is Twilio, and the issue of whether Twilio constitutes an automatic telephonic dialing system as defined by the Telephone Consumer Protection Act, is an issue to be resolved on a classwide basis. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=jvGHKlOY ANTHEM INC: Data Breach Class Action Settlement Significant ----------------------------------------------------------- Marianne Kolbasuk McGee, writing for HealthInfoSec, reports that the recent proposed settlement in the consolidated class action lawsuit against Anthem Inc. following a 2015 cyberattack on the health plan that impacted about 79 million individuals is significant for several reasons, says attorney Steven Teppler of the Abbott Law Group. "In pure dollars, it is a record-setting settlement figure -- $115 million is huge," Mr. Tappler, who was not involved in the case, says in an interview with Information Security Media Group. "But if you read the latest amended complaint . . . people have undergone terrific hardships as a result of the compromise of . . . personally identifiable information, plus health information." By comparison, retailer Target settled a consumer breach lawsuit for just $10 million. Settlement Details The proposed preliminary settlement -- which is subject to federal court approval in August -- provides for Anthem to establish a settlement fund that would be used to: * Provide victims of the data breach with at least two years of credit monitoring; * Cover out-of-pocket expenses incurred by consumers as a result of the data breach; and * Provide cash compensation for those consumers who are already enrolled in credit monitoring. "What will be interesting to see will be the kinds of claims that will be made against that [Anthem settlement] fund" Mr. Teppler says. "In the end you have [nearly] 80 million people at risk for . . . identity theft," including medical identity theft, which can long-lasting ramifications. For example, he points out, if fraudsters make claims for health insurance coverage using stolen identities, those could impair individuals' ability to obtain life insurance because of false medical information being added to their records, he says. While most of the proposed provisions of the Anthem settlement are common in other data breach class action settlements, "one of things a bit novel [in the Anthem deal] is repayment of credit monitoring for already expended funds for victims," Mr. Teppler says. In the interview, Mr. Teppler also discusses: Why Anthem and the plaintiffs likely decided to settle the case; Whether details about the cyberattack -- and Anthem's related breach prevention and response programs -- will ever be disclosed now that the case is on the track for settlement; The top lessons other organizations should learn from the Anthem case. Mr. Teppler is a partner at the Abbott Law Group in Jacksonville, Fla., where he leads the electronic discovery and technology- related litigation practice. He was also one of the attorneys who represented plaintiffs in a data breach class action lawsuit against health plan AvMed that ended in a $3 million settlement in 2013. Mr. Teppler is an adjunct professor at Nova Southeastern University Law School. [GN] AZUSA, CA: Faces Class Action Over Unpaid Overtime Wages -------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that two employees of the city of Azusa allege they were not compensated at the appropriate rate for overtime pay. Jason Poulos and Brandon Bailey filed a complaint on behalf of all similarly situated individuals on June 19 in the U.S. District Court for the Central District of California against the city of Azusa alleging violation of the Fair Labor Standards Act. According to the complaint, the plaintiffs are police officers employed by the defendant and have exercised their option to receive the cash-out payment for the unused portion of their medical benefits. They allege that the city failed to apply the cash-out portions to the plaintiffs' regular rate of pay when calculating overtime. The plaintiffs seek actual, consequential, liquidated and incidental losses and damages, all legal fees and any other relief as the court deems just. They are represented by Dieter C. Dammeier -- dietercdammeier@gmail.com -- of Dammeier Law Firm in Rancho Cucamonga. U.S. District Court for the Central District of California case number 2:17-cv-04520-DMG-AGR [GN] APPLE INC: Defends Security Policies, Urges Denial of Class Certs ----------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News, reports that urging denial of class certification, an Apple attorney told a federal judge on July 6 that the Silicon Valley giant did not trick customers into paying more for iPhones with false promises about data security. "They know they can't get damages for Apple making general statements about security and privacy," Robert Hawk, Esq. -- robert.hawk@hoganlovells.com -- told U.S. District Judge Jon Tigar. The lawsuit began in 2013 when lead plaintiff Marc Opperman sued Apple and a host of app developers that downloaded iPhone users' contacts data without their knowledge or consent. The plaintiffs sought class certification in August last year. The plaintiffs claim Apple owes iPhone buyers restitution for making false representations about the privacy and security of their phone data. Specifically, the plaintiffs say Apple advertised that each offering in its app store was "curated" to meet privacy standards and that a "sandboxing" security feature prevented apps from accessing iPhone data without consent. Hawk told Tigar that plaintiffs' attorneys pushing the theory of a deceptive "Big Tobacco-style, long-term advertising strategy," lack evidence of any "uniform misrepresentation" made to consumers. Plaintiffs' attorney Michael von Loewenfeldt, Esq. -- mvl@kerrwagstaffe.com -- replied that this case is not about "a specific set of words that was said to everybody." Rather, it's about a common theme: "that it's safe to put your data on this phone," he said. Hawk said the plaintiffs failed to show most class members were exposed to misrepresentations in third-party blogs, technical documents, website statements or a Steve Jobs speech about iPhone privacy protections. "There's no evidence of consumer reach on any of those sources," he said. But Von Loewenfeldt urged the judge to consider "a ton of circumstantial evidence" on Apple's security-focused branding campaign, including the harsh public reaction in 2012 after it was revealed that apps were stealing iPhone users' private data. Tigar appeared unwilling to buy that argument. "Isn't there a limit to that logic?" Tigar asked. "If there must be a representation out there, then they must be easy to find." Hawk also attacked a damages model proposed by plaintiffs' expert Elizabeth Howlett, who proposed estimating the value iPhone users place on privacy and how much extra they paid for iPhones due to false assurances about data security. Apple contends that Howlett's model can't measure damages as defined by the class because she "has no idea how many potential class members were exposed to statements about sandboxing," according to Apple's opposition brief. Also debated on July 6 was whether a "choice of law" provision in Apple's terms and conditions requires that California law apply to all claims against Apple, including to those of class members in different states. Apple claims the choice-of-law provision applies only to issues arising from its iPhone license, and false advertising claims must be interpreted under separate state laws. The differences in each state make nationwide class certification impractical, Apple says. After almost an hour of debate, Tigar took the arguments under advisement. Tigar on July 6 also tentatively approved a $5.3 million settlement in the same case with Twitter, Instagram, Yelp, Foursquare, Foodspotting, Gowalla, Kik Interactive and Kong Technologies, which acquired the social media app Path. Hawk is with Hogan Lovells in Menlo Park; Von Loewenfeldt with Kerr & Wagstaffe in San Francisco. [GN] BLISTEX INC: Judge Tosses Lip Balm Packaging Class Action --------------------------------------------------------- Ryan Boysen, writing for Law360, reports that a proposed class action alleging Blistex Inc.'s distinctive applicator design is "deceptive" because it prevents customers from using every last drop of the lip balm inside was tossed on July 5, with an Illinois federal court saying the suit was riddled with "a myriad of flaws." U.S. District Judge Elaine E. Bucklo said Alana Hillen's allegations that the applicator's "deceptively wasteful packaging" caused consumers to purchase more of the lip balm than they would otherwise have to were sufficient to give her standing to sue -- barely. "Where plaintiff's claims fall short, however, is in their substance," Judge Bucklo wrote in her opinion dismissing the case. Ms. Hillen's claims -- violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and common law fraud by omission -- all rested on an alleged act of deception, but the judge said that no matter how hard she squinted, she simply couldn't see deception lurking behind Blistex's applicator design. "Plaintiff does not contend that the tubes of medicated lip ointment she purchased contained less of the product than the net weight stated on the label," Judge Bucklo wrote. "Nor does she claim to have been surprised by the shape of the tube, which indeed is pictured on the packaging." Mark Eisen -- meisen@beneschlaw.com -- of Benesch Friedlander Coplan & Aronoff LLP, which represented Blistex, told Law360 he was "pleased that the court followed common sense and dismissed this action with prejudice." "As the court held, it is simply inconceivable that the Blistex packaging is deceptive or misleading," he said. "Plaintiff cannot predicate a consumer class action on a theory that 'no reasonable consumer' would ascribe to." Ms. Hillen's claims boiled down to calling the applicator tip, a hollow mold of solid plastic, deceptive, Judge Bucklo said, because the fact that it is solid prevents customers from squeezing out any lip balm trapped inside of it. Ms. Hillen said other types of lip balm dispensers, like Chapstick's lipstick-like twist-out design, allowed customers to use nearly all of the product, meaning "continued use of the dispenser despite its known flaw confirms Blistex's intent to deceive consumers," according to the complaint. "Even, however, if plaintiff's allegations about the solid tip are construed as alleging a deceptively cavernous tip, they come no closer to stating an [Illinois Consumer Fraud and Deceptive Business Practices Act] or a common law fraud claim," Judge Bucklo wrote, adding that Ms. Hillen had tacitly conceded "that consumers expect some amount of product to remain in the tube." Blistex argued the same point in its motion to dismiss, saying similar applicators are commonly used for household and cosmetic products, and that the mere allegation that customers might "have to work extra hard to obtain the last drops of the product does not render the tube deceptive . . . lest toothpaste tubes everywhere be deemed deceptive." Ms. Hillen had sought to certify a class of all U.S. residents "who purchased Blistex Medicated Lip Balm within three years of the date of the filing of this complaint," the complaint said. Representatives for Ms. Hillen did not respond on July 5 to requests for comment. Ms. Hillen is represented by Robert J. Pavich of the Pavich Law Group PC and Charles S. Zimmerman, Michael J. Laird -- michael.laird@zimmreed.com -- and Caleb Marker -- caleb.marker@zimmreed.com -- of Zimmerman Reed LLP. Blistex is represented by David S. Almeida -- dalmeida@beneschlaw.com -- and Mark S. Eisen -- meisen@beneschlaw.com -- of Benesch Friedlander Coplan & Aronoff LLP. The case is Alana Hillen v. Blistex Inc., case number 1:17-cv- 02074, in the U.S. District Court for the Northern District of Illinois. [GN] BOSTON SCIENTIFIC: Siskind Notifies of Opt-Out in TMV Class Suit ---------------------------------------------------------------- The litigation against Boston Scientific Ltd. and Boston Scientific Corporation ("Boston Scientific") will proceed as a certified class action on behalf of women who were or are implanted with a Boston Scientific transvaginal mesh ("TVM") device for treatment of Stress Urinary Incontinence (SUI) or Pelvic Organ Prolapse (POP), and their families. The claims against Boston Scientific have not been resolved. The allegations made by the Plaintiffs have not been proven in Court, and the Court has not made any conclusions. This information should not be considered in any way to be medical advice. Boston Scientific denies any fault or liability and continues to defend the class action. The class action relates to certain medical devices sometimes referred to as "transvaginal mesh," "TVM," "slings" or "hammocks" manufactured by Boston Scientific. Various of these devices are used to treat SUI or POP. The class action seeks compensation for personal injuries allegedly relating to the use of such devices as well as for damages allegedly suffered by family members of women who have been implanted with these devices. All persons resident in Canada who have been implanted with a Boston Scientific transvaginal mesh device to treat SUI or POP at any time on or before February 17, 2017 and certain of their family members are class members in the certified Boston Scientific Class Action. The Boston Scientific Class Action does not include claims against various other manufacturers of TVM mesh devices, including AMS, Johnson & Johnson, Covidien, and Cook Medical Inc. If you have been implanted with a transvaginal mesh but do not know the brand or type of mesh you were implanted with, you should retrieve your medical records, including your product identification tag, which typically will note what brand of mesh was used. If you need help retrieving your records, or determining which type of mesh you were implanted with, Class Counsel can assist. Class members who do not want to be a part of a class action relevant to them must "opt out" of it. As a result of "opting out," such individuals will not be entitled to any compensation that may become available as part of the relevant class action, but they will be able to commence their own lawsuit or continue any lawsuit they have previously brought. For more information, including on how to opt out of the class actions, see the "long form notice" available online at www.siskinds.com/transvaginal-mesh/ or by requesting it from Siskinds. Information can also be obtained in English at: 1-800- 461-6166 x2367 or, in French, at: 1-418-694-2009. [GN] BT ITALIA: Faces Class Actions Over Book-Keeping Scandal -------------------------------------------------------- Emilio Parodi, writing for Reuters, reports that the U.S. accounting watchdog is investigating accounting firm PricewaterhouseCoopers's audits of British telecoms group BT's Italian business, which has been hit by a book-keeping scandal, a source close to the matter said. The PwC audit of the Italian business is coming under increasing scrutiny worldwide after a similar investigation launched in Britain. PwC said in an emailed statement it was not the company's policy to comment on client issues. BT lost a fifth of its market value in January after revealing a 530 million-pound ($685 million) black hole in BT Italia's accounts as a result of "improper accounting practices and a complex set of improper sales, purchase, factoring and leasing transactions". In April the U.S. Public Company Accounting Oversight Board (PCAOB) asked Italian market watchdog Consob to send it documentation regarding the audits carried out by PwC on BT in the period 2014-2017, the source said. Consob provided the data after getting the go-ahead from the Milan prosecutors office which is carrying out a criminal probe into alleged false accounting and embezzlement. BT filed a criminal complaint in Italy in April accusing several former executives and other staff of unlawful conduct. Current and former staff told Reuters efforts to hide the Italian unit's performance had gone on since at least 2013. A spokeswoman for PCAOB, which has the powers to fine or bar accounting firms or their individual associates, said the regulator did not confirm or comment on inspections as required by the Sarbanes-Oxley Act. Under the act the PCAOB is required to supervise and inspect all accounting firms that regularly audit companies whose securities trade in the United States. While BT's main listing is in London, its shares are also quoted on the New York Stock Exchange in the form of American Depositary Shares. Consob declined to comment, but a source close to the watchdog said the "regulator was giving its attention to the PwC issue". Britain's accounting regulator, the Financial Reporting Council (FRC), said it would investigate PwC audits of BT Group after the BT Italia scandal emerged. Reuters could not immediately confirm whether the FRC and the PCAOB were collaborating on the PwC issue, although a spokesman for the FRC said the British watchdog maintained close contact with its counterparts in other countries to improve audit quality. BT said last month it would drop PwC, its auditors since 1984, after an evaluation found "areas for improvement". It said it would move to KPMG, another one of the "Big Four" accounting firms. Since the scandal erupted, various BT shareholders in the United States have launched class action cases, accusing the telecoms group of not informing the market and shareholders soon enough of the financial irregularities at its Italian unit. In March a Reuters investigation found allegations that a network of people in BT Italia had exaggerated revenues, faked contract renewals and invoices and invented bogus supplier transactions in order to meet bonus targets and disguise the unit's true financial performance. A source also told Reuters in March that he and two other employees at BT Italia had warned their Madrid-based supervisor about possible accounting problems at the business in November 2015, nearly a year before BT announced that it had found accounting irregularities at the Italian company. [GN] CABELA'S INC: Regulators Approve Merger Amid Class Action --------------------------------------------------------- Devin Henry, writing for The Hill, reports that in a securities filing on July 5, Cabela's Inc. said it had received permission from the Federal Trade Commission to move forward with the company's $5 billion sale to Bass Pro Shops. The merger is contingent upon approval from Cabela's shareholders, as well as the sale of Cabela's bank unit to outside financial services corporations. Cabela's shareholders were due to vote on its sale to Bass Pro Shops. The company has previously reported that it faces a handful of class-action lawsuits from groups of shareholders stemming from the merger. The two companies announced their intention to merge in October, with Bass Pro Shops aiming to buy Cabela's for $5.5 billion, creating an outdoors gear chain with nearly 200 locations across the United States. Since then, the terms of the deal changed, with the price falling by $500 million and Cabela's agreeing to sell its financing unit to Synovus Financial Corp. and Capital One Financial. The deal is expected to close later this year. [GN] CABLE NEWS: Racial Discrimination Lawsuit Continues to Grow ----------------------------------------------------------- H.A. Goodman, writing for Huffington Post, reports that according to Breanna Edwards of The Root.com, CNN is facing a growing racial discrimination lawsuit that according to The Hollywood Reporter "may grow exponentially." CNN's ongoing lawsuit is explained in an April 5, 2017 piece titled "CNN Facing Racial-Discrimination Lawsuit Claiming African Americans Receive Lower Performance Ratings in Evaluations": Another major news network is facing allegations in a racial- discrimination lawsuit, stemming from a proposed class action in Georgia federal court. In the lawsuit, plaintiffs claim that at CNN and other Time Warner units, African Americans receive lower performance ratings in evaluations, that there are huge discrepancies in pay between employees doing similar jobs but who are of different races, and that promotion for black employees is blocked by a "glass ceiling." Thus, while CNN felt the need to publicize an apology regarding racist Reddit posts, it's currently facing a racial discrimination lawsuit entailing numerous horrific allegations. In addition to The Root, The Hollywood Reporter has also described CNN's ongoing legal troubles in an April 4, 2017 piece by Eriq Gardner titled "CNN Faces Growing Racial Discrimination Lawsuit": Unlike the lawsuit against Fox News, the one against CNN and sister companies is much broader, claiming among other things that African-Americans receive lower performance ratings in evaluations, that there are dramatic differences in pay between similarly situated employees of different races and that the promotion of African-American employees is blocked by a "glass ceiling." The complaint (see here) cites hiring and advancement statistics while alleging that African-American employees have endured slurs from superiors, including "It's hard to manage black people" and "Who would be worth more: black slaves from times past, or new slaves?" According to a plaintiffs' motion to amend that was filed March 23, "Since the filing of this action, counsels for the plaintiffs have been contacted by more than 175 people, both former and current employees of the Defendant, requesting to be members of the putative class action, all having similar complaints of intentional racial discrimination, discrimination impact and discriminatory practices employed by the Defendants." With so much attention placed on memes by CNN, and Reddit posts, it's bizarre that more Americans aren't aware of the "more definitive statement about specific allegations" regarding this racial discrimination lawsuit. Finally, HR Dive highlights the key elements of CNN's lawsuit in a piece by Valerie Bolden-Barrett, "CNN employees say network is 'rife with racism' in class action discrimination lawsuit": Allegations of racism and bigotry against news organizations, sadly, aren't new. The recent spate of high-prole lawsuits highlighted a longstanding issue for the industry. Last week, the National Association of Black Journalists (NABJ) issued a statement on its website in reaction to allegations of racial discrimination against CNN competitor Fox News. For a network claiming to stand for journalistic integrity and for a brand opposed to racism, it's ironic that these allegations regarding severe racial discrimination have been made against CNN. Instead of focusing on Reddit, or the posts of private citizens online, CNN staff and journalists should address their ongoing racial discrimination lawsuit. America, and journalism, need powerful media entities to treat their employees with dignity and respect. CNN, with it's ongoing lawsuit, proves that even those who claim to be morally superior to others, can often engage in the most vile behavior. [GN] CAMDEN COUNTY: Inmates' Class Action Concluded After 12 Years ------------------------------------------------------------- Jim Walsh writing for Courier Post reports that a class-action lawsuit, which began with an inmate's complaint more than 12 years ago, has concluded with sweeping improvements to Camden County Jail. "A lot of cases don't have such happy endings, but this one does," U.S. District Judge Jerome Simandle said at a recent hearing on a consent decree intended to resolve the long-running dispute. He called the lawsuit's resolution "a great achievement" for inmates at the Camden lockup and for county officials. "We accomplished what we set out to accomplish," said Lisa J. Rodriguez,Esq. -- ljrodriguez@schnader.com -- of Schnader Harrison Segal & Lewis LLP, a Cherry Hill attorney representing the inmates. The case began in December 2004 when inmate Corri Dittimus-Bey mailed a complaint to federal court in Camden, asserting prisoners' civil rights were violated by severe overcrowding and other problems at the seven-story jail. The suit sought court-ordered improvements for the Camden lock-up, rather than monetary awards for all inmates. The jail, built in 1988, holds inmates awaiting trial and people sentenced to serve less than one-year terms. In approving the final decree, Simandle noted the jail -- with an official capacity of 1,267 -- had sometimes held more than 2,000 inmates. "The overcrowding meant that on many occasions the cells that were built for two were required to house four or at least three," he observed. "When they did house four, it meant that two prisoners had to sleep on the ground, on the floor." "There were social problems, too, that arose from that degree of overcrowding without enough room to move about," the judge added. The jail's population had dropped to 979 inmates when Simandle approved the decree in a May 23 oral opinion. "The county has made vast, marked enhancements to the jail and managing the overall population," said Camden County spokesman Dan Keashen. Simandle shared that view, saying the county had enacted "intelligent reforms that do cost money but which make the correction system so much better." He said officials had avoided the "ultimate remedy, which would have been constructing a whole new facility without dealing with the underlying problems." Among key improvements, Simandle noted the hiring of a jail population manager and the creation of a first-in-the-state pretrial services program that identifies people who do not need to be in custody. He also cited the work of a joint committee that includes representatives of the courts, the jail, county prosecutors and defense attorneys. "It did take a long time but that's because there was a profound institutional change that was brought about by this case," Simandle said at the May 23 hearing. Other improvements included upgrades to the jail's infrastructure, including its heating and cooling system, as well as the addition of attorney/client meeting rooms. The class-action case is unrelated to a wave of almost 2,000 lawsuits filed in recent months by individuals seeking damages over their time in the county jail. Those filings were prompted by rumors that former inmates could share in a cash payment, according to some people who went to court. Simandle has dismissed almost 1,500 of the 1,969 individual suits filed by July 5, court records show. The judge has ruled cramped conditions at the jail don't rise to the level of a constitutional violation; he's also noted many plaintiffs missed a two-year statute of limitations. About 385 suits have been terminated administratively, which allows plaintiffs the opportunity to address paperwork problems. Simandle closed the class-action lawsuit on June 30, after approving payments for the inmates' lawyers, as well as for Dittimus-Bey and three other former prisoners. He retains jurisdiction for two years. The judge ordered the county to pay $150,000 in attorneys' fees for Schnader Harrison Segal & Lewis, which has served since 2005 as the inmates' pro bono counsel. Simandle noted that was believed to be about half of the firm's actual expense. He previously approved a $100,000 payment for the law firm in 2009. Simandle also approved payments to four named plaintiffs -- $1,500 each to Dittimus-Bey and Mark Elliott, and $1,000 each to Donald Rudd and Melvin Clark. At the June 30 hearing, Rodriguez said she's been unable to locate Dittimus-Bey and Rudd. Their money will be held in escrow over the next two years. Simandle praised Dittimus-Bey's role in initiating the suit while acting as his own attorney. He said that shows how an inmate's pro se action "can lead to a much bigger case and one that affords relief to many other people." [GN] CANTERBURY LAMP: Faces "Veloza" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Juan Carlos Veloza, individually and on behalf of all others similarly v. Canterbury Lamp Shade Studio, Inc. f/k/a Roseart Lampshades, Inc.; Nicholas "Nick" Cavallo, Sr.; and Nicholas Cavallo, Jr., Case No. 0:17-cv-61273-WPD (S.D. Fla., June 28, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a business that manufactures custom lampshades in Broward County, Florida. [BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com CASSELS BROCK: Court of Appeal Cuts Damages in Dealer Class Action ------------------------------------------------------------------ Mallory Hendry, writing for Canadian Lawyer Mag, reports that a recent Ontario Court of Appeal decision will lower the original $45 million in damages Cassels Brock & Blackwell LLP was ordered to pay in a 2015 General Motors of Canada Ltd. dealer class action, but the final amount has yet to be determined. The appeal court's decision in Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP was released July 4. Cassels Brock had appealed the original decision, with the appellate judge stating in her decision that the firm "raises legal issues relating to liability, the availability of an aggregate damages award, and the trial judge's damages assessment." As Canadian Lawyer reported in 2015, an Ontario Superior Court judge awarded damages against Cassels Brock for breach of fiduciary duty, breach of contract and professional negligence. Justice Thomas McEwen found Cassels Brock owed contractual and fiduciary duties to some or all of GM Canada dealers in the class. Cassels Brock submitted on appeal that the trial judge erred in his findings concerning the scope of the dealer retainer; by finding that Cassels Brock breached its duties to the class members; in his treatment of the Saturn dealers' claims; by inferring causation; by awarding aggregate damages; and in his quantification of damages. In a statement, Cassels Brock said that although the Court of Appeal did not accept a number of the arguments made by the firm on appeal, "we believe that we have acted appropriately and professionally in our handling of this matter, respecting our duties to our clients and acting in a manner consistent with our retainers and our clients' instructions. With this stage of appeal now concluded, we look forward to building on our reputation as a dedicated, trusted advisor to our many clients." The facts of the case stem from May 2009, when Cassels Brock was retained by the class members -- including Trillium, which became the representative plaintiff -- to protect their interests in restructuring of the dealer network and represent them in related proceedings. About 200 GM Canada dealers were eliminated during the federal auto bailout, and the class action was seeking $750 million in damages on behalf of those dealers. Cassels Brock had been retained to represent Canadian dealers in a GM Canada restructuring bankruptcy. In his 2015 decision, Justice McEwen wrote: "Cassels takes the position that there was only ever the potential for a conflict to arise on account of the two retainers. In other words, Cassels accepts that there was indeed a risk that immediate legal interests of Industry Canada and the GMCL dealers would be directly adverse." Along with Cassels Brock's appeal of the trial decision, Trillium filed a cross-appeal, arguing the class should have received more damages. It contended the value of the dealers' lost chance was $77.3 million, not $45 million as found by the trial judge. Trillium also argued that the trial judge's supplementary ruling should not be considered. In January 2016, after the release of the trial decision, the parties met before the trial judge to settle the terms of the judgment, and it emerged that the trial judge may have misunderstood the composition of the class, the appeal decision reads. "He had assumed that all 181 class members were also Participation Form Dealers, and thus Cassels' clients; in fact, some of the class members may have been Call Dealers who listened in on the May 24 conference call but did not sign a participation form or send in money to the DSC," Cronk wrote. "In the result, by supplementary reasons dated March 22, 2016, the trial judge directed that the formal judgment provide that the damages awarded ($45 million) may be reduced on further motion to the Superior Court, if necessary, following the final disposition of any appeal from the trial judgment, to settle the process for determining the number and identity of the dealers entitled to share in that award and the calculation of those damages." Cronk dismissed Trillium's cross-appeal. "My overall reaction is the appeal decision speaks at length to the importance or the significance of a really large and strong set of factual findings from the trial judge, and that those are carefully reviewed and affirmed on this appeal decision," says Michael Statham -- mavermette@weirfoulds.com -- managing partner at WeirFoulds LLP and counsel for Trillium. Sotos LLP also served as counsel for Trillium on the appeal. Cronk upheld Cassels Brock's submission that the trial judge erred in his quantification of the damages. She agreed the amount contained calculation errors. Cronk wrote that "the trial judge calculated the lost chance as the difference between the amount approved and the amount paid: $218 million - $126 million = $92 million." General Motors Corp. had approved up to $218 million for its subsidiary, GM Canada, to pay out the estimated 290 terminated dealers, and $126 million was the amount actually paid out to the 202 dealers who accepted the wind-down agreement offers. Cassels argued, and Cronk agreed, that the second number should have been $143.5 million -- the amount GM Canada offered to the terminated dealers under the WDAs, based on the actual final count of 240 terminated dealers. "Neither side in hypothetical negotiations could have known that 38 terminated dealers would reject the WDAs," reads the decision. "The offers on the table totalled $143.5 million. Unbeknownst to the dealers, GMCL had $218 million to spend. The trial judge should have calculated the value of the lost chance to negotiate successfully as the difference between the money approved for the WDAs and the money offered: $218 - $143.5 = $74.5 million." This reduces the overall starting point for the quantification of the aggregate damages award to $74.5 million, as opposed to the trial judge's finding of $92 million. "We are pleased that the Court of Appeal agreed with the firm's submissions that the trial judge's damages assessment was flawed and thus substantially reduced the amount of damages payable," Cassels Brock said in a statement. Marie-Andree Vermette, partner at WeirFoulds and also counsel for Trillium, says even though they would have obviously preferred a higher number, "generally speaking, even on the damages part except for that one correction of one number, the court also affirmed the trial judge's findings." She adds that the Court of Appeal endorsed the trial judge's decision on liability and "we were happy about that." The appeal decision reads that the trial judge "properly exercised his jurisdiction to consider the issue, and sensibly left it open to revisit the calculation of damages following the release of this court's decision." "As a result of the reasons of the trial judge that were issues after his main reasons, we have to go back before him -- that was the case even before the appeal -- to determine what the final number would be, which will be influenced by the number of dealers that actually retained Cassels Brock back in May of 2009," says Ms. Vermette. [GN] CENTURYLINK INC: Aug. 18 Class Action Lead Plaintiff Deadline Set ----------------------------------------------------------------- The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of CenturyLink, Inc. (NYSE:CTL) who purchased shares between March 1, 2013 and June 16, 2017. The action, which was filed in the United States District Court for the Southern District of New York, alleges that the Company violated federal securities laws. In particular, the complaint alleges that throughout the Class Period, CenturyLink made materially false and/or misleading statements and/or failed to disclose that: (1) CenturyLink's policies had engaged the Company in unlawful business practices by allowing its employees to add services or lines to accounts without customer permission, resulting in millions of dollars in unauthorized charges to CenturyLink customers; (2) accordingly, the Company's revenues contained ill-gotten gains that originated from the Company's illicit conduct and were unsustainable; and (3) the foregoing illicit conduct was likely to subject CenturyLink to heightened regulatory scrutiny; and (4) as a result of the foregoing, Defendants' statements about CenturyLink's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. Shareholders have until August 18, 2017 to petition the court for lead plaintiff status. Your ability to share in any recovery does not require that you serve as lead plaintiff. You may choose to be an absent class member. If you suffered a loss during the class period and wish to obtain additional information, please contact Joseph Klein, Esq. by telephone at 212-616-4899 or visit http://www.kleinstocklaw.com/pslra-sbm/centurylink-inc Joseph Klein, Esq. is an experienced attorney and has also practiced as a Certified Public Accountant. Mr. Klein represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] CENTURYLINK INC: Class Action Lawsuit Adds Arizona Customers ------------------------------------------------------------ Angela Gonzales, writing for Pheonix Business Journal, reports that a class-action lawsuit against CenturyLink (NYSE: CTL) has been extended to include Arizona customers, alleging fraudulent billing practices, improper collections and the creation of fake accounts using consumer identifications. Ben Meiselas, Esq. -- ben@geragos.com -- an attorney with Geragos & Geragos in Los Angeles, said he's hearing from many consumers in Arizona who say they want to be part of class-action lawsuits that have been filed in other states, including Nevada, Oregon, Idaho, Washington, and Colorado. "Some consumers report multiple accounts being set up," he said. "I do a lot of consumer cases for all types of products and services," Meiselas said. "This right here is really unprecedented and something I don't think the legal community has ever seen before." These class-action lawsuits follow a wrongful termination suit filed by a CenturyLink employee in Gilbert. Heidi Heiser argues she was fired last year after she tried to bring to management's attention problems she noticed within the company. Heiser is seeking whistleblower protections and claims she was wrongfully fired. CenturyLink spokesman Mark Molzen said the company's leadership team wasn't aware of any of the allegations until the lawsuit was filed. "Unfortunately, these types of opportunistic follow-on claims are not unexpected," Molzen said. "The fact that a law firm is trying to leverage a wrongful termination suit into a putative class action lawsuit, does not change our original position." Molzen said the allegations made by CenturyLink's former employee are inconsistent with company policies, culture and unifying principles, which include honesty and integrity. "We take these allegations seriously and are diligently investigating this matter," Molzen said. The Phoenix attorney with Geragos & Geragos representing the plaintiffs is Hart Lawrence Robinovitch, Esq. -- hart@geragos.com [GN] CHEESECAKE FACTORY: Goldman Sues over Double Gratuity Payment ------------------------------------------------------------- MARCEL GOLDMAN, individually and on behalf of all others similarly situated, the Plaintiff, v. THE CHEESECAKE FACTORY INCORPORATED, a Delaware Corporation, the Defendant, Case No. BC668334 (Cal. Super. Ct., July 12, 2017), seeks to recover damages, treble damages, attorneys' fees and costs, pursuant to the California Civil Code, on behalf of herself and all members of the Class who paid one of the gratuity amounts suggested by Defendant on their split bills sales drafts by credit card. The case is a class action brought on behalf of Plaintiff and its other customers who were essentially duped by Defendant into paying double gratuity, and sometimes even more than double. According to the complaint, beginning at least four years prior to the filing of this Complaint, when a party of two or more purchases food and/or drink at The Cheesecake Factory or other restaurants owned by Defendant and uses two or more credit or debit cards to pay for the charges, the combined bill is divided between the credit/debit cards and Defendant presents each diner/consumer with a separate sales draft for a portion of the bill (a split bill). On each of the sales drafts, Defendant includes suggested gratuity amounts to facilitate customers in calculating and leaving a gratuity for service. Defendant represents the suggested gratuity to be 15%, 18%, 20% or 22% of the check amount reflected on the sales draft, but, in reality, it calculates the suggested gratuity on the combined bill and the suggested gratuity amounts are actually 30%, 36%, 40%, or 44% of the amounts shown on the separate sales drafts. The Cheesecake Factory is a restaurant company and distributor of cheesecakes based in the United States.[BN] The Plaintiff is represented by: Julian Hammond, Esq. Polina Pecherskaya, Esq. Ari Cherniak, Esq. HAMMONDLAW, P.C. 1829 Reisterstown Rd., Suite 410 Baltimore, MD 21208 Telephone: (310) 601 6766 Facsimile: (310) 295 2385 E-mail: jhammond@hammondlawpc.com ppecherskaya@hammondlawpc.com achemiak@hammondlaw.com CHICAGO: House Cleaning at Water Dept. Seek Police Protection ------------------------------------------------------------- Mary Mitchell, writing for Chicago Sun Times, reports that two African-American former employees of the city's Water Department are so afraid of what could happen if they testify against a co- worker, they are seeking police protection. David Reed and Christopher Harris said they complained about the racist and violent culture at the Water Department for more than a decade, but their complaints fell on deaf ears. "We tried to get relief. We contacted management, talked to the city's Inspector General's office, and the EEOC, and nothing happened," Harris told me. "Now the same individual that they allowed to intimidate us and harass us, they have subpoenaed us to testify against," Reed said. Anthony Nguyen was fired in May. The men are being asked to appear on July 7 and again on Aug. 10 before an arbitrator in a hearing in which Nguyen is trying to get his job back. The forensic scientists claimed they were harassed, threatened and intimidated by Nguyen and others and described a work environment where they were taunted with insults and racist cartoons even after they left the department. A spokesman for Inspector General Joe Ferguson would not comment on this case. Reed and Harris are now reluctant to testify, citing safety and health concerns. "They apparently told him that we are responsible for him losing his job. We are afraid of this guy," Reed said. "We have expressed that concern to the corporation counsel. They say there is nothing they can do. The police can give us special attention for two weeks and that's it. After that, we are on our own. The way the city operates, they get us to testify, and after two weeks and something happens, they'll say: 'Go away,'" Harris told me. The men claim that even after they left the water department -- Reed retired and Harris is on leave of absence -- Nguyen sent them racist texts and emails and made threatening phone calls in the middle of the night. Harris said he has an order of protection against Nguyen that is still in effect. I was unable to reach Nguyen on July 5. But a spokesman for the city's law department said Nguyen's firing is not related to the department's shake-up over racist emails. "The City of Chicago does not tolerate harassment of any kind. Department of Water Management officials enacted progressive disciplinary actions against Anthony Nguyen, which eventually resulted in his termination. He is appealing his firing, and we will strongly defend his separation from the City of Chicago," said Bill McCaffrey, a spokesman for the city's Law Department. The "racist email scandal" has resulted in the firings of several high-level managers, including the former Department of Water Management Commissioner, Barrett Murphy, who has close ties to the mayor. The Inspector General's office stumbled on the offensive emails while investigating allegations that the son of a former alderman had used his email account to sell guns. Last week, the department's African-American employees filed a class-action lawsuit accusing the city of "unlawful policies, patterns and employment practices to create and proliferate a hostile and abusive work environment based on race that includes violence, intimidation, and retaliation . . ." The behavior Reed and Harris said they endured while working for the water department appears to fit that pattern. Harris said he got a call from the Inspector General's office encouraging him to testify at the arbitration hearing. "They basically said if we didn't testify, Anthony Nguyen could get his job back and he should never have been hired and should never be reinstated," Harris said. Reed argues that the racist behavior is nothing new. "We've been saying this ever since 2005. [Nguyen] was able to do all this without being reprimanded. I don't trust any of them. They are offering us nothing. We can't get our jobs back, any health benefits or protection. The city really doesn't care," he said. It is unfortunate that these men had to wait so long for entrenched racism in the city's water department to be addressed. Hopefully, the city can give these men the assurances they need so no other employee has to go through what they did. [GN] CMR DOUBLE: Faces "Wright" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Sierra Wright and Vanessa Bryant, individually and on behalf of others similarly situated v. CMR Double J West LLC d/b/a Double J Smokehouse and Saloon, Jeff Stamm, Don Dawson, John Harris and James King, Case No. 3:17-cv-00163-DPM (E.D. Ark., June 28, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a restaurant located in West Memphis, Arkansas. [BN] The Plaintiff is represented by: J. Russ Bryant, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 759-1745 E-mail: rbryant@jsyc.com - and - William A. Wooten, Esq. WOOTEN LAW OFFICE 120 Court Square East Covington, TN 38019 Telephone: (901) 475-1050 Facsimile: (901) 475-0032 E-mail: wawooten@gmail.com COM DEV: Sept. 18 Hearing on "Tom" Class Certification Bid ---------------------------------------------------------- In the lawsuit styled CURTIS TOM, the Plaintiff, v. COM DEV USA, LLC, et al., the Defendants, Case No. 2:16-cv-01363 PSG(GJSx) (C.D. Cal.), the parties will jointly move on September 18, 2017, before the Hon. Judge Philip S. Gutierrez, for class action certification and preliminary approval of a class action settlement. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=mDoDWLoe The Plaintiff is represented by: Susan Martin, Esq. Jennifer Kroll, Esq. MARTIN & BONNETT, PLLC 4647 N. 32nd St., Suite 185 Phoenix, AZ 85018 Telephone: (602) 240 6900 Facsimile: (602) 240 2345 E-mail:smartin@martinbonnett.com jkroll@martinbonnett.com - and - Peter K. Stris, Esq. Victor O'Connell, Esq. STRIS & MAHER LLP 725 South Figueroa Street, Suite 1830 Los Angeles, CA 90017 Telephone: (213) 995 6800 Facsimile: (213) 261 0299 E-mail: peter.stris@strismaher.com victor.oconnell@strismaher.com The Defendants are represented by: Brian T. Ortelere, Esq. Matthew A. Russell, Esq. Joseph V. Marra III, Esq. Stephanie R. Reiss, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963 5000 Facsimile: (215) 963 5001 E-mail: bortelere@morganlewis.com matthew.russell@morganlewis.com joseph.marra@morganlewis.com stephanie.reiss@morganlewis.com CREDIT CONTROL: Faces "Quick" Suit Alleging TCPA Violation ---------------------------------------------------------- Loretta Quick, on behalf of herself and all others similarly situated, Plaintiff, v. Credit Control Services, Inc. d/b/a Credit Collection Services, Defendant, Case No. 3:17-cv-01129 (D. Conn., July 7, 2017), alleges that Defendant knowingly and/or willfully placed automated calls to Plaintiff's cellular phone to collect consumer debts in violation of the Telephone Consumer Protection Act. Credit Control Services, Inc. is a debt collector.[BN] The Plaintiff is represented by: Sergei Lemberg, Esq. LEMBERG LAW, LLC 43 Danbury Road, 3rd Floor Wilton, CT 06897 Phone: (203) 653-2250 Fax: (203) 653-3424 Email: slemberg@lemberglaw.com CVS HEALTH: Faces Class Action Over EpiPen Price Hike ----------------------------------------------------- Katie Wedell, writing for Dayton Daily News, reports that a new class action lawsuit challenging the price of EpiPens is targeting not the drug's manufacturer, but three pharmacy benefit managers and the industry's rebate practices. The lawsuit alleges CVS Health, Express Scripts and Prime Therapeutics, cause price gouging -- including the more than 500 percent increase in EpiPen's price from 2007 to 2016 -- by demanding increased rebates from manufacturers in exchange for favorable placement on their formularies. Pharmacy benefit managers (PBMs) serve as middlemen between insurers, pharmacies and manufacturers. They negotiate lower prices for insurers, but have been criticized for keeping secret how much of those negotiated rebates they are keeping. Drug companies have incentives to raise prices, according to the lawsuit, in order to give larger rebates to the PBMs who then pocket significant revenues and don't pass the savings along to patients. PBMs dispute this claim, saying they do pass along the significant savings they negotiate. "PBMs such as CVS Caremark help to lower drug costs by employing market competitive principles to drug manufacturer pricing that result in real cost savings for clients in the form of rebates," said CVS Health spokesman Michael DeAngelis. "In fact, CVS Caremark passes along more than 90 percent of the price discounts it receives directly to its clients." The PBM's clients are insurers or employers, and the lawsuit contends that those savings never make their way to individuals who are paying more out-of-pocket for prescriptions at the same time prices are on the rise. "Rising drug benchmark prices are particularly harmful to those in high-deductible plans, who often have trouble affording prescription drugs, and are even forced to forego purchasing needed prescription drugs, due to high annual out-of-pocket costs," the lawsuit filed in Minnesota in June says. The three main plaintiffs are EpiPen users from Minnesota, Florida and New Jersey. EpiPen manufacturer Mylan and other drug companies have faced numerous lawsuits over price increases with some mentioning the role of PBMs, but few suits have named the middlemen as defendants. "Historically, when it comes to rising prescription drug costs, both public ire and legal battles have been primarily focused on drug manufacturers," said Antonio Ciaccia, director of government and public affairs for the Ohio Pharmacists Association. "Now, just as patients and policymakers begin to better understand the big hand that PBMs have in raising prescription drug costs, that same evolution seems to have finally made its way to the courts as well." Express Scripts has long defended the rebate system, saying that manufacturers alone set drug prices. "Rebates don't raise drug prices, drug makers raise drug prices," said spokesman Brian Henry. "We will vigorously defend ourselves." Prime Therapeutics also said in a statement it believes the lawsuit is withouth merit and will vigorously defend against it. "This lawsuit is built on a false premise about the role of PBMs," said Mr. DeAngelis with CVS Health. "Nothing in our agreements prevents a drug manufacturer from lowering the prices of their products and we would welcome such an action." The argument over who really controls drug prices has intensified as patients become fed up and demanded answers via Congress. "Federally, this has become a bit of chicken and egg fight between manufacturers and PBMs," Mr. Ciaccia said. "Manufacturers claim that they have to raise prices in order to pay off the PBM. PBMs claim that the manufacturers have total control, and that rebates are their tool to combat rising drug prices. Regardless of who is more in the right, there is no question that this model is in desperate need of an overhaul." [GN] CVS PHARMACY: Court Denied Amended Class Cert. Bid in "Romulus" --------------------------------------------------------------- In the lawsuit captioned DAVID ROMULUS, CASSANDRA BEALE, NICHOLAS HARRIS, ASHLEY HILARIO, ROBERT BOURASSA, and ERICA MELLO, on behalf of themselves and all other persons similarly situated, the Plaintiff, v. CVS PHARMACY, INC., the Defendant, Case No. 1:13-cv-10305-RWZ (D. Mass.), the Hon. Judge Rya W. Zobel entered an order denying Plaintiffs' amended motion for class certification of: "(1) all CVS Shift Supervisors who worked for an hourly wage in Massachusetts between July 25, 2008 and May 14, 2013 and were not paid for meal breaks during which CVS required them to remain in the store, for recovery of wages for unpaid meal breaks during that period (the "First Class"); and "(2) all CVS Shift Supervisors who worked for an hourly wage in Massachusetts between May 15, 2013 and the date of final judgment and who were not paid for meal breaks during which CVS required them to remain in the store, for recovery of wages for unpaid meal breaks during that period (the "Second Class," or together with the First Class, the "Classes")." The Court noted that the plaintiffs claim that "[c]ommon questions predominate because all Class Members' claims turn on whether Massachusetts law requires CVS to compensate Shift Supervisors for meal breaks during which CVS required them to remain on store premises." Even assuming the answer to this question is yes, several questions remain that require individualized inquiries. Specifically, even if the law requires compensating Shift Supervisors for remaining in the store during meal breaks, whether Shift Supervisors were required to stay in the store during these breaks and whether they were compensated for this time varies by plaintiff. That is, the proposed classes are not "sufficiently cohesive to warrant adjudication by representation." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=WhVPlrxS DES MOINES, IA: Court Affirms Class Action Status of Bed Bug Suit ----------------------------------------------------------------- The Washigton Times reports that the Iowa Court of Appeals says a group of residents at a Des Moines public housing apartment building may proceed with their bed bug lawsuit as a class-action case. The court on July 6 upheld the class certification sought by 55 tenants of Royal View Manor. They're suing Des Moines Municipal Housing Agency for failing to properly remedy a bed bug problem they say persisted between 2010 and 2015. As many as 600 residents and former residents could be part of the class. The lawsuit filed in October 2014 returns to Polk County District Court for trial. A similar lawsuit filed in 2010 against two other apartment buildings in Des Moines resulted in a settlement of nearly $2.5 million. Royal View Manor residents have hired the attorney who won that settlement. [GN] ERIC C. CONN: Hearing Postoned Due to Attorney's Accident --------------------------------------------------------- Lex18 reports that if you think the continuing saga of fugitive former disability attorney Eric C. Conn is the type of story in which anything can happen, you were right. Floyd Circuit Judge Johnny Ray Harris was set to decide whether Conn's malpractice insurer would be forced to pay out a settlement former clients who brought a class-action lawsuit against Conn. But that decision was put on hold, when a deer ran out in front of a car carrying the attorney representing the insurance company, as he was on his way to court in Prestonsburg. Those waiting in court were told the car was likely totaled and the attorney would not be able to attend the hearing. Last month, Judge Harris decided the case against Conn, ordering him to pay 1,500 of his former clients over $31 million. Conn's malpractice policy was limited to $1.5 million, which is likely to be all the clients will get if he is never found. In March, Conn pleaded guilty to theft and bribery to settle a federal criminal case. He had been under home incarceration, but fled before he could be sentenced. The insurer has argued that its policy does not cover criminal activities. Class attorney Ned Pillersdorf, however, says the clients are not seeking payment for Conn's crimes, but rather the negligence he showed in losing their medical records. Judge Harris has rescheduled the hearing for two weeks from today. And if the clients ultimately prevail in the lawsuit, there is still a matter of deciding how to divide the money. [GN] EXPERIAN INFORMATION: Sued Over Transfer Act Violations ------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that a Los Angeles County consumer has filed a class-action lawsuit against a consumer credit report company over allegations it debited her account on a recurring basis without written authorization. Mellissa Meyer filed a complaint on behalf of all others similarly situated on June 23 in the U.S. District Court for the Central District of California against Experian Information Solutions Inc. alleging violation of the Electronic Funds Transfer Act. According to the complaint, the plaintiff contacted the defendant to purchase its services in 2015 and provided her credit card number. She alleges the defendant automatically withdrew funds on a recurring basis from July to December 2016. The plaintiff holds Experian Information Solutions Inc. responsible because the defendant allegedly debited plaintiff's bank account without a written authorization by the plaintiff. The plaintiff requests a trial by jury and seeks statutory damages of $1,000, actual damages, all legal fees, interest, and any other relief as the court deems just. She is represented by Todd M. Friedman, Esq. -- tfriedman@toddflaw.com -- Adrian R. Bacon, Esq. -- abacon@toddflaw.com -- Meghan E. George, Esq. -- mgeorge@toddflaw.com -- and Thomas E. Wheeler, Esq. -- twheeler@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 2:17-cv-04631-SJO-E [GN] FACEBOOK INC: Faces "Song" Suit over Wage & Hour Violation ---------------------------------------------------------- CHRISTOPHER SONG and MELANIE WYCKOFF, on behalf of themselves and all others similarly situated, the Plaintiffs, v. FACEBOOK, INC, ALLIED UNIVERSAL, and DOES 1-100, inclusive, the Defendants, Case No. 17CIV03117 (Cal. Super. Ct., July 12, 2017), seeks to recover all wages owed at the time of termination/separation of employment to Class Members who no longer work for Defendants under California Labor Code. The Plaintiffs allege Defendants have engaged in, among other things a system of willful violations of the California Labor Code, UCL and applicable IWC wage orders. The Defendants acted intentionally and with deliberate indifference and conscious disregard to their and other Security Guards rights at Facebook's campus by failing to provide Security Guards off duty meal periods, duty-free rest breaks, intentionally falsifying the records of Security Guard's meal and rest periods (to make it appears as if Secu1ity Guards had taken their meal/rest breaks, when the had not, or taken them on time, when they had not), failing to keep and provide accurate and timely records of wages earned and other legally mandated records, and failed to pay Plaintiffs and Class Members whose employment has terminated (voluntarily resigned or were terminated) a final payment of his or her wages in a prompt and timely manner in conformity with Labor Codes.[BN] Facebook is an American for-profit corporation and an online social media and social networking service based in Menlo Park, California. The Plaintiffs are represented by: Matthew S. Da Vega, Esq. Matthew Fisher, Esq. Ted Mechtenberg, Esq. DA VEGA, FISHER & MECHTENBERG, LLP 232 E. Anapamu St. Santa Barbara, CA 93101 Telephone: (805) 232 4471 Facsimile: (877) 535 9358 E-mail: Mdavega@mdmflaw.com FASHION NOVA: "Perez" Suit Seeks Unpaid Wages under Labor Code -------------------------------------------------------------- IVETTE PEREZ, individually, and on behalf of all others similarly situated, the Plaintiff, v. FASHION NOVA, INC., a California 15 Corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. BC668341 (Cal. Super. Ct., July 12, 2017), seeks to recover unpaid wages pursuant to California Labor Code. The Plaintiff brings this action against the Defendants for the California Labor Code violations and unfair business practices stemming from Defendants' failure to provide meal periods, failure to authorize and permit rest periods, failure to pay minimum and straight time wages, failure to pay overtime wages, failure to maintain accurate records of hours worked, failure to reimburse business expenses, failure to timely pay all wages to terminated employees, and failure to furnish accurate wage statements. Plaintiff seeks equitable relief, interest, restitution, and reasonable attorney's fees and costs Fashion Nova is the top online fashion store for women.[BN] The Plaintiff is represented by: Kane Moon, Esq. Justin F. Marquez, Esq. Allen Feghali, Esq. MOON & YANG, APC 3435 Wilshire Blvd., Suite 1820 Los Angeles, CA 90010 Telephone: (213) 232 3128 Facsimile: (213) 232 3125 E-mail: kane.moon@moonyanglaw.com justin.marquez@moonyanglaw.com allen.feghali@moonyanglaw.com FLORIDA: Hit With Class Action Suit Over Higher Ed Funds -------------------------------------------------------- Brandon Larrabee, writing for WUFT, reports that two University of Florida alumni have filed a class-action lawsuit against the state, saying lawmakers and Gov. Rick Scott funneled money that should have gone to higher education into tax cuts and savings. The legal challenge is based on the Legislature's decision not to provide matching funds for private donations to colleges and universities. State law creates four matching programs, and the plaintiffs argue that lawmakers are required to match the donations unless the state faces a budget shortfall. The alumni, Ryan and Alexis Geffin -- who graduated in 2016 and 2017, respectively -- say they were harmed particularly because matching funds weren't provided for construction projects at the University of Florida. In all, the lawsuit says the state's failure to fund the programs has locked up more than $1 billion that should have been available to colleges and universities, including at least $600 million in state matching funds and $460 million in private donations waiting for matches. The filing also contrasts statements by Scott and legislative leaders touting the importance of higher education with the refusal to set aside funding for the matching programs. "Rather than appropriate the over $600 million in state funds owed, the governor and the Legislature have spent general revenue surpluses on multibillion dollar tax cuts and to set aside billions in reserves," it says. The programs subject to the lawsuit include the Dr. Philip Benjamin Matching Grant Program, which primarily provides scholarships and financial aid; the University Major Gifts Program, aimed at encouraging donations to university endowments; and two construction-related funds, the Florida College System Institution Capital Facilities Matching Program and the Alec P. Courtelis University Facility Enhancement Challenge Grant Program. According to the lawsuit, the problems began in 2008, when the state first faced shortfalls from the recession. Payments to the matching funds stopped, something that the legal challenge doesn't contest. But after the state again began running surpluses, lawyers for the alumni argue, the state should have resumed making the payments to the matching funds. Instead, the Legislature has continued to omit the funding. "The state of Florida made a promise -- a promise codified in Florida law and further reinforced in promises made to donors -- and, there is no other way to put this, but the state reneged on that promise," said Grace Mead, a lawyer with the firm Stearns Weaver Miller, which is representing the alumni. "The purpose of this suit is to force the state to fulfill that promise." According to Stearns Weaver Miller, UF could be due more than $155 million, while Florida State University, Florida International University and the University of South Florida could be owed more than $40 million each. Miami Dade College could be due more than $70 million. Mead also said she expects a lawsuit on behalf of donors whose contributions weren't matched. A spokeswoman for Senate President Joe Negron, a Stuart Republican who has made higher-education funding a priority, said on July 6 that his office was reviewing the challenge. A spokeswoman for the Florida Department of Education said the agency had not received the lawsuit, but would review it. [GN] GATEHOUSE MEDIA: Faces Class Action Over Deceitful Subscriptions ---------------------------------------------------------------- Grant Welker, writing for WBJournal.com, reports that the owner of the Worcester Telegram & Gazette, MetroWest Daily News and other daily and weekly newspapers in Massachusetts is being sued in a class-action case in which the chain is alleged to have offered deceitful subscriptions. Two subscribers who filed the lawsuit said GateHouse offered subscriptions for lengths such as 26 weeks or 52 weeks, but instead were given shorter terms because of premium publications that weren't included in the subscription. As often as once a month, subscribers would be sent Lens, a publication the plaintiffs said is "filled almost exclusively with advertisements and other puff articles" and was not related to the publications they signed up for. A subscriber is allegedly automatically charged as much as $2 for each issue of Lens, which is deducted from the time length of the subscription. Someone subscribing to a year of a GateHouse publication actually would receive only about 30 weeks, according to the complaint. Customers are not allowed to opt out of receiving Lens, and details explaining the special publication are buried in fine print that contradicts the more explicit details portrayed in the advertisement, the subscribers allege. GateHouse, which is based in New York and has local headquarters in Needham, has denied any wrongdoing but said it studied litigation costs and decided to settle. The company said it will continue with premium editions -- though not Lens -- but will more clearly disclose to subscribers about the publication of premium editions. Subscriptions will continue to be shortened, but subscribers will be able to opt to be billed separately for such editions. Under the class-action case, any subscriber who started a subscription from April 1, 2014 to March 21, 2017 is eligible the join the case if they had their subscription terms shortened as described in the lawsuit. Such subscribers have until July 19 to postmark or file electronically any claims. The suit was filed last year in Essex Superior Court in Salem by Steven Keenholtz, a Marblehead resident who subscribes to the Marblehead Reporter, and Dorothy Guillicksen, a Hanover resident who subscribes to the Hanover Mariner. Mr. Keenholtz said his two-year subscription to the weekly newspaper was shorted by nine issues because of the deceitful practices. The plaintiffs and GateHouse agreed in January to a settlement that allowed the class-action case to move forward. If the settlement becomes finalized, all who subscribers who join in the case will be entitled to a refund. A hearing for such an action is scheduled for Oct. 5. GateHouse owns daily Massachusetts newspapers in Worcester, Framingham, Milford, Brockton, Taunton, Fall River, Quincy, New Bedford and Hyannis. [GN] GC SERVICES: Placeholder Bid for Class Certification Filed ---------------------------------------------------------- In the lawsuit titled RACHEL HOLMES and SHARON MEYER, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. GC SERVICES LIMITED PARTNERSHIP, the Defendant, Case No. 2:17-cv- 00960 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=9GoBTpmQ The Plaintiffs are represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com GENERAL MOTORS: July 26 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- Pomerantz LLP on July 5 disclosed that a class action lawsuit has been filed against General Motor Company ("GM" or the "Company") (NYSE:GM) and certain of its officers. The class action, filed in United States District Court, Eastern District of Michigan, and docketed under 17-cv-12185, is on behalf of a class consisting of investors who purchased or otherwise acquired GM securities, seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased GM securities between February 27, 2012 and May 24, 2017, both dates inclusive, you have until July 26, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. General Motors Company designs, builds, and sells cars, trucks, crossovers, and automobile parts. The Company offers vehicle protection, parts, accessories, maintenance, satellite radio, and automotive financing. General Motors provides its vehicles and services worldwide. Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company installed at least three distinct defeat devices in over 700,000 trucks with Duramax diesel engines from 2011 to 2016 in order to cheat emissions tests in the U.S.; (ii) consequently, the GM trucks at issue emit up to five times the legal limit of nitrogen oxide pollutants; and (iii) as a result of the foregoing, GM's public statements were materially false and misleading at all relevant times. On May 25, 2017, Bloomberg reported that a consumer lawsuit had been filed against GM for installing multiple defeat devices in two models of heavy-duty trucks with the Duramax diesel engine from 2011-2016. The lawsuit alleges that GM's unlawful, unfair, deceptive, and otherwise defective emission controls affect model year 2011-2016 GM Sierra 2500HD and 3500 HD trucks and GM Silverado 2500 HD and 3500 HD trucks. According to the lawsuit, extensive testing of a 2013 Silverado 2500 diesel -- a vehicle representative of the class of Duramax diesel engines present in both the Chevrolet Silverado and GMC Sierra model years 2011 to 2016 -- indicated as follows: (1) the vehicle produces emissions above the certification tests at temperatures above the certification range (86ßF); (2) the vehicle produces higher emissions when temperatures are below the certification test range (68ßF); and (3) the vehicle produces higher emissions occur after the vehicle has been run for 200-500 seconds of steady speed operation on average by a factor of 4.5 in all temperature windows. These test results confirmed the presence of three distinct defeat devices, which enable the vehicle to meet emissions standards in the test temperature range, while allowing two to five times the legal amount of nitrogen-oxide pollutants to be emitted at all other times. On this news, GM's share price fell $0.60, or 1.81%, to close at $32.60 on May 25, 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. [GN] GENERAL MOTORS: Seeks Dismissal of Engine Defect Class Action ------------------------------------------------------------- Dorothy Atkins, writing for Law360, reports that General Motors urged a California federal judge on July 5 to toss a proposed class action contending the automaker knowingly sold defective vehicles with engines that consume an abnormally high quantity of oil, arguing that there's no allegation anyone has been harmed by the purported defect. GM attorney Joseph John Ybarra -- Joseph.Ybarra@hysmlaw.com -- of Huang Ybarra Singer & May LLP told U.S. District Judge Edward M. Chen that the car buyers fail to allege the vehicles pose an unreasonable safety risk, which the automaker would be legally required to disclose. Not one of the more than 30 named plaintiffs claims an engine shut down or caught fire, and no one claims to have been physically injured due to the alleged defect, Mr. Ybarra argued. "The Ninth Circuit said under California law a safety issue is required, and not a hypothetical issue," Mr. Ybarra said. Mr. Ybarra's comments came during a hearing in San Francisco on GM's bid to dismiss a December proposed class action launched by Monteville Sloan Jr. of Novato, California, and nearly three dozen others who live across the country. The suit seeks to certify a nationwide class of car buyers who purchased one of the 11 GM 2010 to 2013 vehicle models that have a Generation IV Vortec 5300 Engine. The suit claims those engines are "engineered to fail," and that despite knowing about the engine's oil consumption problems, GM failed to disclose them to car buyers. The engine consumes an abnormally high quantity of oil due to defective low-tension oil control rings, the suit claims. The problem is exacerbated because GM also installed a defective oil monitoring system in the vehicles, leaving drivers uninformed of insufficient oil in their cars until the level is critically low, according to the suit. As a result, the vehicles face constant low oil levels, insufficient lubricity levels and internal engine damage, posing dangerous safety hazards to drivers, the suit says. But on July 5, Mr. Ybarra pushed back, arguing that the complaint doesn't say exactly how the allegedly low oil levels have harmed drivers, and emphasizing that under Ninth Circuit precedent safety risks can't be hypothetical. Judge Chen pressed the attorneys for the car buyers on the real impacts of the alleged defect, saying he was "not sure what the safety issue is." Buyers' attorney H. Clay Barnett III -- clay.barnett@beasleyallen.com -- of Beasley Allen Crow Methvin Portis & Miles PC responded that the defect effectively sets the low pressure indicator in the vehicles too low so that the vehicles can't be safely operated. John Tangren -- jtangren@dlcfirm.com -- of DiCello Levitt & Casey LLC, who also represented the buyers, added that the engine could seize at any time due to the low oil levels and that is enough to get over the materiality pleading requirements. Mr. Tangren also noted that the case is distinct from the Ninth Circuit's decision earlier this year in Williams v. Yamaha Motor Corp., which held that the failure of a product to last forever is not a defect because that would mean that a manufacturer would no longer be able to issue limited warranties, and product defect litigation would become as widespread as manufacturing itself. In the instant suit, the defect is in the engine from the day it is sold, Mr. Tangren said. "This isn't simply a case of an engine eroding more quickly than it should," Mr. Tangren said. At the end of the hearing, Judge Chen said he would take the arguments under submission, but noted that he still has concerns about the pleadings. "It may be that another round of pleading is required here," he said. GM is represented by Joseph John Ybarra of Huang Ybarra Singer & May LLP and Gregory Richard Oxford -- goxford@iccolaw.com -- of Isaacs Clouse Crose & Oxford LLP. The car buyers are represented by John Tangren of DiCello Levitt & Casey LLC, H. Clay Barnett III and W. Daniel Miles III of Beasley Allen Crow Methvin Portis & Miles PC and Jennie Lee Anderson -- jennie@andrusanderson.com -- of Andrus Anderson LLP The case is Monteville Sloan Jr. v. General Motors LLC, case number 3:16-cv-07244, in the U.S. District Court for the District of Northern California. [GN] GLOBAL NATURALS: Beasley Sues over Eyelash Enhancer Misleading Ad ----------------------------------------------------------------- MAXINE BEASLEY, on behalf of herself and all Others Similarly situated, the Plaintiff, v. GLOBAL NATURALS BREACH OF EXPRESS AND IMPLIED WARRANTIES MANUFACTURING, INC., PACIFIC NATURALS, INC., GARY MCNELLEY, DAVID RIVERO, and DORIS RIVERO, the Defendants, Case No.17CIV03120 (Cal. Super. Ct. July 12, 2017), seeks an order compelling Defendants to cease marketing and selling Idol Lash using false, misleading, deceptive, and unconscionable tactics, conduct a corrective advertising campaign, destroy all misleading and deceptive materials and products, award Plaintiff and the Class members restitution, actual damages, and punitive damages to the extent permitted under the law, and pay costs, expenses, and a reasonable attorney fee and incentive award. Defendants manufacture, market, distribute, and sell Idol Lash Eyelash Enhancer (Idol Lash), an unapproved new drug that falsely claims to make eye lashes grow longer and thicker.[BN] The Plaintiff is represented by: Gregory S. Weston, Esq. Andrew C. Hamilton, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798 2006 Facsimile: (313) 293 7071 E-mail: greg@west0nfirm.com andrew@westonfirm.com GOOGLE INC: AGs Ask Appeals Court to Reject Proposed Settlement --------------------------------------------------------------- JD Supra reports that on July 5, bipartisan Attorneys General from 11 states filed an astonishing brief in the Third Circuit Court of Appeals, asking that court to reject the proposed class action settlement in In re Google Inc. Cookie Placement that would give settlement monies to non-profits rather than class members. The plaintiffs in Google Cookie allege that Google circumvented the cookie-blocker settings in Microsoft's Internet Explorer and Apple's Safari browsers and placed advertising tracking cookies without user consent. The putative class -- theoretically, every user of those hugely popular browsers -- obviously is massive. The "damages" suffered by class members, however, if any, is vanishingly small. In 2016, Google and the plaintiffs' counsel reached a proposed $5.5 million class action settlement. The plaintiffs' counsel requested a $2.5 million fee, with the balance (after administrative costs) to be distributed to privacy rights non- profits such as the Berkman Center for Internet and Society at Harvard University and the Privacy Rights Clearinghouse. Individual class members would receive nothing. The Competitive Enterprise Institute's Center for Class Action Fairness filed an objection to the settlement, arguing that if money cannot be distributed to class members, then the settlement class should not be certified at all. The Delaware federal judge hearing the case disagreed and approved the settlement. The objector took its arguments to the Third Circuit, and now 11 state Attorneys General have joined it. The AG coalition brief, written by the office of the Arizona Attorney General, took no issue with the amount of the settlement and acknowledged that the settlement class is huge. They contend, however, that "[d]irecting settlement funds to members of the class wherever feasible is important," and that "there is a feasible path to distribution here." That "feasible path" is where the brief took an unprecedented turn for an AG objection. "Claims rates in small-dollar cases are reliably in the very low single digits (if not below one percent)," the brief argued, citing cases with low claims rates. "Even assuming a class in the tens of millions, such a claims rate would result in an economically meaningful" payment of "a few dollars to $15 or $20, if not more) to those lucky "one-percenters." That, these Attorneys General argued, "is preferable to making no distribution to any class members." In the years since the Class Action Fairness Act of 2005 required federal litigants to notify State AGs of proposed class action settlements, State AGs have taken a leading pro-consumer role in trying to limit the forms that settlements can take. A multistate AG objection to a coupon settlement a decade ago, for example, has sharply curtailed the use of coupon settlements. This is the first time, however, that AGs have argued it is better to direct small dollars to a tiny fraction of a large class than to pay millions of dollars to non-profits that ostensibly could advocate on behalf of the interests of the class as a whole. It will be very interesting to see how the Third Circuit responds to this argument. Joining Arizona on the brief were the Attorneys General of Alaska, Arkansas, Louisiana, Mississippi, Missouri, Nevada, Oklahoma, Rhode Island, Tennessee, and Wisconsin. [GN] HANDY & HARMAN: Paskowitz Seeks to Enjoin Steel Partners Merger --------------------------------------------------------------- SUSAN PASKOWITZ, On Behalf of Herself and All Others Similarly Situated, the Plaintiff, v. HANDY & HARMAN LTD., WARREN G. LICHTENSTEIN, JACK L. HOWARD, ATRICK A. DEMARCO, ROBERT FRANKFURT, JOHN H. MCNAMARA, JR., GAREN W. SMITH, JEFFREY A. SVOBODA, STEEL PARTNERS HOLDINGS L.P., HANDY ACQUISITION CO., and SPH GROUP HOLDINGS LLC, the Defendants, Case No. 654747/2017 (Cal. Super. Ct., July 12, 2017), seeks enjoinment of a proposed transaction or, alternatively, rescission of the proposed transaction between Handy & Harman and Steel Partners in the event defendants are able to consummate it. The case is a class action brought on behalf of the public stockholders of Handy & Harman Ltd. in connection with a proposed transaction announced on June 26, 2017, pursuant to which Steel Partners Holdings L.P. (Parent) and its affiliates, which already own approximately 70% of Handy & Harman's outstanding shares, will acquire the remaining Company shares it does not currently own. On June 26, 2017, Handy's Board of Directors caused the Company to enter into agreement and plan of merger with Parent and its wholly-owned subsidiary, Handy Acquisition Co. and together with Parent and SPH Group Holdings LLC. Pursuant to the terms of the Merger Agreement, Steel Partners will commence an exchange offer to acquire all of the outstanding shares of the Company's common stock for 1.484 Series A preferred units of Steel Partners for each Handy share tendered. The proposed merger consideration is unfair and inadequate, and defendants have breached their fiduciary duties to Handy's public stockholders in connection with the Proposed Transaction. Handy & Harman is a diversified global industrial company.[BN] The Plaintiff is represented by: Timothy J. McFall, Esq. Seth D. Rigrodsky, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, PA. Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (516) 683 3516 HCSB FINANCIAL: Rigrodsky & Long Files Class Action Complaint ------------------------------------------------------------- Rigrodsky & Long, P.A., announces that it has filed a class action complaint in the United States District Court for the District of South Carolina on behalf of holders of HCSB Financial Corporation ("HCSB") (OTC:HCFB) common stock in connection with the proposed transaction pursuant to which HCSB will be acquired by United Community Banks, Inc. ("United"), announced on April 20, 2017 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against HCSB, its Board of Directors (the "Board"), and United, is captioned Parshall v. HCSB Financial Corporation, Case No. 4:17-cv-01589 (D.S.C.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington, DE 19803, by telephone at (888) 969-4242, by e-mail at -- info@rl- legal.com -- or at http://rigrodskylong.com/contact-us/. On April 19, 2017, HCSB entered into an agreement and plan of merger (the "Merger Agreement") with United. Pursuant to the Merger Agreement, shareholders of HCSB will receive 0.0050 shares of United common stock for each share of HCSB (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a registration statement (the "Registration Statement") filed with the United States Securities and Exchange Commission on May 17, 2017. The Complaint alleges that the Registration Statement, which recommends that HCSB stockholders vote in favor of the Proposed Transaction, omits material information necessary to enable shareholders to make an informed decision as to how to vote on the Proposed Transaction, including material information with respect to HCSB's financial projections, United's financial projections, the analyses performed by HCSB's financial advisor, and potential conflicts of interest. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of HCSB common stock. If you wish to serve as lead plaintiff, you must move the Court no later than September 4, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Rigrodsky & Long, P.A., with offices in Wilmington, Delaware and Garden City, New York, regularly prosecutes securities fraud, shareholder corporate, and shareholder derivative litigation on behalf of shareholders in state and federal courts throughout the United States. [GN] HIGHMARK INC: Sued in S.D. Ala. Over Denied Insurance Coverage -------------------------------------------------------------- Patrick Wayne Roebuck, on behalf of himself and all others similarly situated v. Highmark, Inc., Case No. 1:17-cv-00296 (S.D. Ala., June 28, 2017), is brought on behalf of all persons who are covered under any contract or plan of health insurance that is administered, underwritten or insured by Highmark who have been diagnosed with Hepatitis C but have been denied coverage for Harvoni and similar treatments based on application of Highmark's internal criteria. The complaint states that Highmark's restrictive internal coverage requires that infected individuals wait for treatment -- possibly for years -- until they demonstrate serious scarring or cirrhosis of the liver from the Hepatitis infection. Highmark, Inc. is a nonprofit health insurer, though it operates several for-profit subsidiaries, with its principal headquarters in Pittsburgh, Pennsylvania. [BN] The Plaintiff is represented by: Charles J. Potts, Esq. BRISKMAN & BINION, P.C. Post Office Box 43 Mobile, AL 36601 Telephone: (251) 433-7600 Facsimile: (251) 433-4485 E-mail: cpotts@briskman-binion.com HONEYWELL INT'L: Seeks 2nd Cir. Review of Order in "Kelly" Suit --------------------------------------------------------------- Defendant Honeywell International Inc. filed an appeal from a District Court order dated June 27, 2017, relating to the lawsuit styled Kelly, et al. v. Honeywell International Inc., Case No. 16- cv-543, in the U.S. District Court for the District of Connecticut (New Haven). As previously reported in the Class Action Reporter, the Defendant and the Plaintiffs have filed separate appeals from rulings and judgment entered in the lawsuit. The lawsuit arose from labor-related issues. The appellate case is captioned as Kelly v. Honeywell International Inc., Case No. 17-2075, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Appellees Peter Dellolio, David Kelly, Richard Norko, and Annette Dobbs, for themselves and others similarly situated, are represented by: William A. Wertheimer, Jr., Esq. LAW OFFICE OF WILLIAM WERTHEIMER 30515 Timberbrook Lane Bingham Farms, MI 48025 Telephone: (248) 644-9200 E-mail: billwertheimer@gmail.com Defendant-Appellant Honeywell International Inc. is represented by: Brian T. Ortelere, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5150 Facsimile: (215) 963-5001 E-mail: brian.ortelere@morganlewis.com I LOVE SUSHI: "Page" Sues Over Tip Pool Practices, Invokes FLSA --------------------------------------------------------------- BEN PAGE, JOSHUA NUNN, JASON DEERMAN, SHANNON PEASE, AND CHRIS CONYERS, Plaintiffs, v. I LOVE SUSHI, INC., XUE'S BROTHER, INC., DEZHENG ("JIM") XUE DELIANG ("DONNIE") XUE, and DEQI ("JOHNNY") XUE, Defendants, Case No. 5:17-cv-01146-HNJ (N.D. Ala., July 7, 2017), alleges that Defendants have had a practice of paying Page and Pease, and others similarly situated, $2.13 per hour for straight time work and $5.76 for overtime work. Defendants required Page and Pease, and other servers similarly situated, to participate in a tip pool. Defendants required Page and other servers to contribute 2% of their gross sales to a "tip out." When the tip out was distributed, part of the money was given to cooks and dishwashers in the back portion of the restaurants. The case was filed under the Fair Labor Standards Act. The corporate Defendants own and operate two restaurants doing business as "I Love Sushi, Inc." in Huntsville, Alabama and in Madison, Alabama. Plaintiffs Page and Pease, and others similarly situated, were servers at the corporations' restaurants.[BN] The Plaintiffs are represented by: WILMER AND LEE, P.A. 100 Washington Street, Suite 200 Huntsville, AL 35801 Phone: 256-533-0202 Fax: 256-533-0302 E-mail: jwilmer@wilmerlee.com wkelley@wilmerlee.com INTERCONTINENTAL HOTELS: Sued Over Employee Fingerprint Use ----------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that the owners of the Intercontinental Hotel Group, which includes the Intercontinental, Holiday Inn, Crowne Plaza and Kimpton Hotels brands, among others, have become the latest major Illinois employer to come under the sights of plaintiff employees who claim the business has wrongly collected and used employees' fingerprints and other "biometric" data, in violation of a state privacy law. On June 27, plaintiff Eric Zepeda filed a putative class action lawsuit in Cook County Circuit Court against IHG and its subsidiary, the Kimpton Hotel & Restaurant Group, claiming the company, which employs hundreds of workers at numerous hotels and resort properties in Chicago and elsewhere in Illinois, should be made to pay for allegedly violating the Illinois Biometric Information Privacy Act (BIPA.) IHG is based in the United Kingdom, but operates its Americas regional office in Atlanta, Ga. Kimpton is based in California, and operates four boutique hotels in Chicago, according to the Kimpton website. According to the lawsuit, Zepeda is an Illinois resident who "has worked at one of (IHG's) hotels in the Chicago area." Mr. Zepeda is represented in the action by attorneys Evan M. Meyers, David L. Gerbie and William P. Kingston, of the McGuire Law P.C., of Chicago. In his lawsuit, Mr. Zepeda and his counsel assert IHG and Kimpton have violated for the last three years the Illinois BIPA law, which governs how people and organizations can obtain and use certain biometric identifiers, including fingerprints, facial scans and more. In this case, Mr. Zepeda alleges IHG and Kimpton ran afoul of the law in 2014 when the company shifted from a worker time keeping system which had involved worker identification cards and punch codes to a system which required employees to scan their fingerprints to punch in at the beginning of their shifts, and out for required breaks and at the end of their shifts. "Defendants' new system ensures that workers can only verify their attendance and timeliness through scanning their fingerprints," the lawsuit said. According to the lawsuit, Mr. Zepeda alleges the company never properly obtained employees' consent to obtain and use their fingerprints, as required by BIPA, nor did they disclose to employees how their fingerprints would be stored or used, whether and how the information would be shared with third party vendors and others, or how the company planned to ultimately dispose of the biometric information. "To this day, Plaintiff (Zepeda) is unaware of the status of his biometric data and biometric information that was obtained by Defendants," the lawsuit said. "Defendants have not informed Plaintiff whether they still retain his information, and if they do, for how long they intend to retain it without his consent." The lawsuit asks the court to expand the lawsuit to include potentially "hundreds, if not thousands" of other plaintiff class members, including any IHG and Kimpton employees "whose biometrics were captured, obtained, stored or used by (IHG and Kimpton) within the state of Illinois any time within the applicable limitations period." The lawsuit requests damages of $1,000 to $5,000 per violation, plus attorney fees and interest, potentially making a judgment worth millions of dollars. To this point, the BIPA law has largely been used by plaintiffs and their lawyers to bring class actions against companies misusing consumer information. For instance, plaintiffs have sued social media giant Facebook and photosharing sites, like Shutterfly, for using face scans to identify people in photos posted online without the consent of those tagged in the photos. Others sued under BIPA have included LA Tan, which was accused of improperly obtaining and using customers' fingerprints. However, the lawsuit against IHG is the latest such employment- related action introduced in Cook County court by plaintiffs suing under BIPA for allegedly improper collection and use of employee fingerprints. Earlier this year, employees of the Mariano's supermarket chain sued Mariano's corporate parents, Roundy's Supermarkets and Kroger, alleging similar BIPA violations. Roundy's, through their counsel with the firm of Hinshaw & Culbertson, moved in May to take that case to federal court. In its motion for removal, Roundy's estimated the class action could be worth more than $5 million. Plaintiffs in the Mariano's case were represented by attorneys Ilan Chorowsky and Mark Bulgarelli, of Progressive Law Group LLC, of Evanston. [GN] JFA AUTO: Faces "Suazo" Suit Over Failure to Pay Overtime Wages --------------------------------------------------------------- Imer Exides Nunez Suazo and Oscar A. Reyes, individually and on behalf of all others similarly situated v. JFA Auto, Inc. and John Filiberto, Case No. 519/2017 (N.Y. Sup. Ct., June 28, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the New York Labor Law. The Defendants own and operate a full service auto repair facility located at 1830 Feuereisen Avenue, Ronkonkoma, NY 11779. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 JIREH PREPARATORY: Files For Bankruptcy Amid Class Action Lawsuit ----------------------------------------------------------------- Mark Price and Maria David, writing for The Charlotte Observer, report that Jireh Preparatory Academy in Matthews and its athletic program, Jireh Prep Athletics, Inc,. have filed for bankruptcy protection, just months after a class-action suit alleged it did not follow through on promises made to help students win recruitment by NCAA schools. Documents for a Chapter 7 bankruptcy were filed on July 5 in U.S. Bankruptcy Court Western District of North Carolina. The filing says the school, a nonprofit, owes about 50 creditors nearly $88,000, but has assets of less than $65,000. The academy has no money in any of its bank accounts, according to the documents. Academy owners Jeffrey and Kindra Rabon could not be reached for comment. There was no indication given on the school's website or Facebook page that it was in financial trouble. The Charlotte Observer profiled the school's football coach in 2007, and reported that Jireh Prep's mission was to provide an education and discipline primarily for students who struggled at other schools. A Facebook page for the school says it helps young men "reach the next level in athletics and academics." Students take NCAA approved core classes, the site says. "If you've had trouble learning and taking tests in the classroom, don't lose hope," says the school's website. "At Jireh Preparatory Academy, our teachers will work with you to identify your weaknesses and help you improve them. We can help you do your best in both fields." Court documents suggest the school saw a steep drop in students this year, following the filing of a class-action lawsuit in November by a student from Cumberland County. In 2015 and 2016, the school claims to have received about $750,000 annually in tuition payments. So far this year, payments fell to $6,390, court documents state. Former student Evan Rhodes of Cumberland County filed the class- action complaint in Mecklenburg County Superior Court , alleging the school failed to deliver on its promises to students, who had to pay between $13,000 and $14,000 a semester. The suit alleges the Rabons solicit students from across the country, promising to provide assistance in obtaining admission to NCAA-accredited colleges. "Jireh Prep fails to deliver on these promises, typically leaving over 60 disappointed teenage students each academic semester," the lawsuit claimed. "Jireh Prep makes these false promises to prey upon teenagers and their parents, who often know little about NCAA's complex academic standards, and little about the requirements to received NCAA Division 1 or Division II scholarships." The school filed a motion to have the lawsuit dismissed, but it continues to move forward, said Matthew Villmer, Esq. -- info@wbbatty.com -- of Weaver, Bennett & Bland, P.A., an attorney for Evan Rhodes. [GN] JOHNSON CONTROLS: "Hostetler" Suit Seeks to Certify Class --------------------------------------------------------- In the lawsuit captioned AMOS and DEBBIE HOSTETLER, RITA CHAIREZ, BECKY NULL, and MARIA TOVAR on behalf of themselves, and all others similarly situated, the Plaintiffs, v. JOHNSON CONTROLS, INC. and TOCON HOLDINGS, LLC, the Defendants, Case No. 3:15-cv- 00226-JD-MGG (N.D. Ind.), the Plaintiffs ask the Court to certify a class of: "all persons who have owned, rented, or occupied property within the Class Area at any time between 1992 and May 30, 2014". The Plaintiffs further ask the Court to appoint the Plaintiffs as Class Representatives, and appoint Plaintiffs' attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=VCWSjBFx The Plaintiffs are represented by: Thomas A. Barnard, Esq. Rodney L. Michael, Jr., Esq. Benjamin A. Wolowski, Esq. TAFT STETTINIUS & HOLLISTER LLP One Indiana Square, Suite 3500 Indianapolis, IN 46204 Telephone: (317) 713 3500 Facsimile: (317) 713 3699 - and - John D. Ulmer, Esq. YODER AINLAY ULMER & BUCKINGHAM LLP 130 North Main Street Goshen, IN 46527 Telephone: (574) 533 1171 KOTOBUKI MANAGEMENT: "Pok" Action Seeks Unpaid Overtime ------------------------------------------------------- Pok Kong Chun, En Lin, Sui Sing Lee, Tuck Kam Lai, individually and on behalf of all other employees similarly situated, Plaintiffs, v. Kotobuki Management Inc., Kotobuki Babylon, Inc., Kotobuki Restaurant, Inc., Kotobuki Roslyn, Inc. and Yoshiro Narita, Defendants, Case No. 1:17-cv-03802 (E.D. N.Y., June 23, 2017), seeks overtime compensation for all hours worked over forty each workweek, unpaid minimum wages, tips, liquidated damages, unpaid "spread of hours" premium, prejudgment and post-judgment interest and attorneys' fees and costs, compensation for failure to provide wage notice at the time of hiring and failure to provide paystubs pursuant to the Fair Labor Standards Act, New York Labor Laws and New York Codes, Rules and Regulations. Defendant, Kotobuki Management, Inc. owns and operates Kotobuki Restaurant, Japanese restaurant in Nassau County located at 3 Russel Rd., Garden City, New York 11530. Pok Kong Chun, En Lin and Tuck Kam Lai worked as sushi chefs while Sui Sing Lee worked as food preparer. [BN] Plaintiff is represented by: Jian Hang, Esq. Hang & Associates, PLLC 136-18 39th Ave., Suite 1003 Flushing, NY 11354 Tel: (718) 353-8588 Email: jhang@hanglaw.com KRAKEN: Faces Class Action Over May Flash Crash ----------------------------------------------- Stan Higgins, writing for Coindesk, reports that a class-action lawsuit has been filed against cryptocurrency exchange startup Kraken over issues stemming from its management of a May flash crash. Less than two months later, five customers of the exchange are alleging negligence, breach of contract and unjust enrichment, arguing that Kraken should have suspended trading amidst a denial- of-service (DDoS) attack that impacted its operations. Newly filed court documents name five plaintiffs, including one in the US, two in Israel and two others based in the UK, while Payward Inc, which does business as Kraken, is named as the sole defendant. Between the five customers, a total of 3,414.078 ETH - - an amount worth roughly $329,000 at a price of $96.32 -- was liquidated. That amount is equal to about $911,000 at press time. Social media reports at the time attest to a plunge in the price of ether, the cryptocurrency of the ethereum network, on the exchange's order books, with market data from CryptoCoinCharts.info showcasing how prices touched a low of $26, resulting in a wave of liquidations. In the aftermath, some customers complained that their positions had been unfairly sold, with others going as far as to allege manipulation. The following day, Kraken released a statement on the incident, remarking that an internal investigation "did not find any evidence of a coordinated attack or market manipulation" and that its internal systems had operated normally. At the time, Kraken said that it would not move to pay back users, apologizing for the losses but stating it "cannot compensate traders for the outcome of naturally occurring events in the market, nor losses due to unavoidable DDoS attacks." The plaintiffs are seeking unspecified damages and compensation for legal fees, as well as certification for class-action status. The lawsuit was filed on behalf of the plaintiffs by the Florida- based Silver Law Group, which has been involved in lawsuits filed against the now-defunct exchange Cryptsy and digital currency startup Coinbase. Wites & Kapetan, another law firm based in Florida, is also involved in the suit. Representatives for Kraken declined further comment when reached. Disclosure: CoinDesk is a subsidiary of Digital Currency Group, which has an ownership stake in Coinbase and Kraken. [GN] LEWISBURG, PA: Inmates' Class Action Against BOP Moves Forward -------------------------------------------------------------- Ben Allen, writing for WITF, reports that a lawsuit over treatment at a federal penitentiary in the midstate is moving forward. The lawsuit from former inmate Sebastian Richardson alleges that in 2011, he was placed in four-point restraints as punishment. Policy at the federal Bureau of Prisons allows for the restraints to be used when inmates are being threatening or a danger to themselves or others. The Bureau has denied Mr. Richardson's claim, but a federal judge recently recommended that the lawsuit be certified as class action. Dave Sprout with the Lewisburg Prison Project, which advocates for inmates' rights, says he believes there are more cases like Richardson's out there. "They're not a threat to anyone, they're not a danger to anyone. They're just being punished for not having a cell mate. And we believe that is against BOP policy and against the law," says Mr. Sprout. Mr. Sprout says the Bureau of Prisons has cut back on its use of restraints, but he says the lawsuit aims to do away with them as punishment. "There's no penalogical reason for this because they're not a threat to anyone here," he adds. Another recent lawsuit alleges that prisoners with serious mental issues at Lewisburg have been counseled with crossword puzzles. [GN] MADISON, WI: "Campos" Suit Seeks to Certify Class ------------------------------------------------- In the lawsuit entitled EFRAIN CAMPOS, ROBERT WIRTH, JUAN NIETO, STANLEY NEWAGO 2925 COLUMBIA DRIVE POST OFFICE, BOX 900 PORTAGE, WISCONSIN 53901, the Plaintiffs, v. MICHAEL DITTMAN, LINDA ALSUM O'DONOVAN, DAVE KURKOWSKI, LUCAS M. WEBER, KEVIN W. P/TZEN 2925 COLUMBIA DRIVE POST OFFICE, BOX 950 PORTAGE, WISCONSIN 53901-0950 BRAD HOMRE, CINDY O'DONNELL POST OFFICE, BOX 7925 MADISON, WISCONSIN 53707-7925, Defendants, Case No 3:17-cv-00545- jdp (W.D. Wisc.), the Plaintiffs ask the Court to certify a class. According to the complaint, all the Plaintiffs' rights were violated in the same manner as Badger State Industries employees at Columbia Correctional Institution. The plaintiffs exercised their First Amendment Rights and by exercising that right the defendants retaliated against the plaintiffs and further terminated the Plaintiff. The class is for four BSI ex-employees who have all exhausted administrative remedies to satisfy the exhaustion requirement and to satisfy Rule 23(a)(1), the four ex BSI employees (the plaintiffs) all have the same facts and case law that is common to the class, to satisfy Rule 23 (a) (2), the claims by the class are the representative' party will fairly and adequately protect the interest of the class, to satisfy Rule 23 (a) (4). The plaintiffs were all BSI employees, the plaintiffs were all retaliated against for exercising their first amendment right, the plaintiffs were all terminated without due process, and the plaintiffs were all singled out in violation of their equal protection rights. The incident complained of happened to the plaintiffs on the same day and time, the defendants are the same by each plaintiff, the facts are the same allegations by each plaintiff, it's the only BSI shop at Columbia Correctional. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=9007qanJ The Plaintiffs appear pro se. MANHASSET RESTAURANT: Does Not Properly Pay Employees, Suit Says ---------------------------------------------------------------- Ingrid Marilu Canales and Blanca Bonilla, on behalf of themselves and all those similarly situated v. Manhasset Restaurant LLC d/b/a Toku Modern Asian, Roslyn Hospitality LLC d/b/a Hendrick's Tavern, Miracle Mile Restaurant LLC d/b/a Cipollini, Wheatley Restaurant LLC d/b/a Bar Frites, Gold Coast Restaurant Corp. d/b/a Cooper & Bryant Steak House, Woodbury Restaurant Corp. d/b/a Majors Steak House, Gillis Poll and George Poll, Case No. 603053/2017 (N.Y. Sup. Ct., June 28, 2017), is brought against the Defendants for failure to pay overtime, and spread-of-hours pay for work more than ten hours in a single workday. The Defendants are engaged in the restaurant business and operate six family-owned restaurants in Nassau County, including, Toku Modern Asian, Hendrick's Tavern, Cipollini, Bar Frites, Bryant & Cooper Steak House and Majors Steak House. [BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 103 Cooper Street Babylon, NY 11702 Telephone: (631) 257-5588 E-mail: PRomero@RomeroLawNY.com MASON MANAGEMENT: Illegally Inflates Apartment Rent, Suit Claims ---------------------------------------------------------------- Mayra Mahmood, Anthony Cimino, Ralph Porr, C. E. Monden, Mark Tadros, Margot Ross, Kimberley Garrett, P.G. Lyne, J.M. Lumpkin, Larry Bennett, Wendy Bennett, Luna Alarcon, Alexis Barber-Davis, Alex Dryden, Stephenie Futch, Filomena Reyes, Melissa Abler, Rama Ndiaye, Eric Rochman, Shelley Ohmes, Eric Franklin, Frankshell Machua,Giovanni Andollo, Nicole Augstein, Cali Hersh, Len Gutman, Karen Schroeder, Dan Davenport, Ruyi Jiao, Emily Hochberg, Michelle Coursey, Matthew Karl Gale, William Preston Grubbs, Yuriy Vaskevich, Benjamin Brown, Kristina Cappuccilli, Syed Raza Rizvi, Eoghan McNulty, Roisin McNulty, Catherine Hatten, Denise Aquino, Alessandra Simeone, Jillian Chase, Cassondra Puls, Neha Savant, Samuel Goodspeed, Jon Williams, Robert Carr, Giovanni Cassinelli, Ousman Laast, Andrew Martin, Nari Bowie, Fadia Abdel Qader, Jose Valdez, Amanda Watermeyer, Rachael Willoughby, Jordan Shipley, Yana Anjudinova, and Igor Borodyansky, individually and on behalf of all others similarly situated v. Mason Management Services Corp., d/b/a Stellar Management; Laurence Gluck; and XYZ Corporations 1-99, Case No. 153574/2017 (N.Y. Sup. Ct., June 28, 2017), seeks to end the illegal and fraudulent practices employed by the Defendants over the course of their ownership and operation of over 80 apartment buildings in the City and State of New York, specifically by pursuing a scheme designed to inflate rents over and above the amounts which they are legally permitted to charge. The Defendants operate a real estate services company in New York, NY. [BN] The Plaintiff is represented by: Lucas A. Ferrara, Esq. Jarred I. Kassenoff, Esq. Roger A. Sachar Jr., Esq. 1250 Broadway, 27th Floor New York, NY 10001 Telephone: (212) 619-5400 E-mail: lferrara@nfllp.com ikassenoff@nfllp.com rsachar@nfllp.com MASSAGE ENVY: Seventh Circuit Appeal Filed in "Haywood" Suit ------------------------------------------------------------ Plaintiffs Kathy Haywood and Lia Holt filed an appeal from a court ruling in their lawsuit titled Kathy Haywood, et al. v. Massage Envy Franchising, LLC, Case No. 3:16-cv-01087-DRH-SCW, in the U.S. District Court for the Southern District of Illinois. As previously reported in the Class Action Reporter on July 17, 2017, District Judge David R. Herndon dismissed the class action lawsuit brought by Kathy Haywood of East St. Louis and Lia Holt of Missouri. The Plaintiffs alleged that they and other customers of Massage Envy Franchising, a franchisor based in Scottsdale, Arizona, had been injured and deceived by the Company because they received only 50 minutes of actual massage time during sessions advertised as one-hour. The plaintiffs allege that MEF franchises in O'Fallon, Ill., and Oakville, Mo., failed to properly notify customers that roughly 10 minutes of each one-hour session would be used for consultation and dressing. The appellate case is captioned as Kathy Haywood, et al. v. Massage Envy Franchising, LLC, Case No. 17-2402, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript information sheet is due by July 25, 2017; and -- Appellant's brief is due on or before August 21, 2017, for Kathy Haywood and Lia Holt.[BN] Plaintiffs-Appellants KATHY HAYWOOD and LIA HOLT, on behalf of themselves and all others similarly situated, are represented by: Richard Steven Cornfeld, Esq. LAW OFFICE OF RICHARD S. CORNFELD 1010 Market Street St. Louis, MO 63101 Telephone: (314) 241-5799 Facsimile: (314) 241-5788 E-mail: rcornfeld@cornfeldlegal.com Defendant-Appellee MASSAGE ENVY FRANCHISING, LLC, is represented by: Luanne Sacks, Esq. SACKS, RICKETTS & CASE LLP 177 Post Street San Francisco, CA 94108 Telephone: (415) 549-0580 E-mail: lsacks@srclaw.com MAXIM HEALTHCARE: "Moodie" Suit Seeks to Certify Settlement Class ---------------------------------------------------------------- In the lawsuit titled SHONNTEY MOODIE, individually and on behalf of all others similarly situated, the Plaintiff, v. MAXIM HEALTHCARE SERVICES, INC., a Maryland Corporation, EVERIFILE. COM, INC., a Georgia Corporation, the Defendants, Case No. CV 14-3471 FMO (ASx) (C.D. Cal.), the Plaintiff asks the Court to enter an Order: 1. approving the terms of the Settlement Agreement as within the range of fair, adequate, and reasonable; 2. provisionally certifying a Settlement Class pursuant to Federal Rule of Civil Procedure and for settlement purposes only; 3. approving the Notice Program and approving the form and content of the Notices of the Settlement; 4. approving procedures for Class Members to exclude themselves from the Settlement Class or to object to the Settlement; and 5. staying the action pending final approval of the Settlement. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZcHozftA The Plaintiff is represented by: Christopher P. Ridout, Esq. Caleb Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Ave., Suite 328 Manhattan Beach, CA 90245 Telephone: (877) 500 8780 Facsimile: (877) 500 8781 E-mail: christopher.ridout@zimmreed.com caleb.marker@zimmreed.com - and - Kevin Mahoney, Esq. Alina B. Mazeika, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Boulevard, Suite 814 Long Beach, CA 90802 Telephone: (562) 590 5550 Facsimile: (562) 590 8400 E-mail: kmahoney@mahoney-law.net amazeika@mahoney-law.net MEGGITT-USA: "Trout" Suit Seeks to Certify Class ------------------------------------------------ In the lawsuit entitled BROOK TROUT, an individual, on behalf of himself and all others similarly situated, the Plaintiff, v. MEGGITT-USA SERVICES, INC., the Defendant, Case No. 2:16-cv-07520- ODW-AJW (C.D. Cal.), the Plaintiff will move the Court on August 14, 2017, for an order certifying a class and collective action. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=2ESzpS4b The Plaintiff is represented by: Michael L. Tracy, Esq. LAW OFFICES OF MICHAEL TRACY 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260 9171 Facsimile: (866) 365 3051 E-mail: MTRACY@MICHAELTRACYLAW.COM MICHIGAN: Defends Imposed Penalties False Fraud Accusations ----------------------------------------------------------- Jonathan Oosting, writing for Detriot News, reports that a Michigan Court of Appeals panel is set to hear arguments on July 15 in a slow-moving lawsuit alleging the state Unemployment Insurance Agency violated due process rights of claimants by imposing steep penalties for false fraud accusations. The state is seeking to dismiss the 2015 suit on governmental immunity grounds and reverse a May 2016 ruling by a Court of Claims judge that allowed the case to move forward. The potential class-action suit stems from erroneous fraud determinations made by an automated computer system with little to no human review, largely between October 2013 and August 2015. As of May, the state had reversed more than 27,800 determinations from that period and paid out roughly $5.5 million in refunds. The class-action lawsuit contends residents who were wrongly accused of fraud, like lead plaintiff Grant Bauserman of Chelsea, deserve compensation for economic damages and additional "equitable" relief, as determined by the court. As many as 46,000 claimants may have been affected, said attorney Jennifer Lord,Esq. of Pitt McGehee Palmers & Rivers. Plaintiffs who have received refunds got only partial payback, and some have been forced to file for bankruptcy or suffer hits to their credit ratings, she said. The state agency made "boatloads of money off these seizures," Lord said, noting legislators have shifted excess unemployment penalty and interest funds to other areas of the state budget in recent years. As The Detroit News has reported, Michigan's 400 percent financial penalty for unemployment fraud is the harshest in the nation, adding insult to injury for out-of-work residents who were falsely flagged by the computer system. Bauserman was fined $15,928 in 2015, according to court records. His state and federal income tax refunds were later seized. The suit alleges Gov. Rick Snyder's administration denied UIA claimants due process and just treatment guaranteed by the Michigan Constitution by using the automated fraud detection system to determine guilt without proper proof, notice or an appropriate opportunity for the accused to be heard before penalties were imposed. Attorney General Bill Schuette's office, representing the UIA in the case, is seeking to dismiss the suit on the grounds that Bauserman and other plaintiffs did not file, as required, a notice of intent to sue within six months of when they were allegedly deprived of due process rights. Instead, they filed notice within six months of having their tax refunds intercepted. The state contends plaintiffs have not provided sufficient evidence to "avoid application of government immunity," which typically applies except in cases involving the pursuit of damages for violations of constitutional rights, as alleged. The case is built on "vague allegations," according to state attorneys. They are disputing claims that appropriate notices were not provided to claimants, arguing "due process is judged from the perspective of the sender, not the recipient." The Unemployment Insurance Agency declined to comment on the case on July 6, with a spokesman saying it would be inappropriate to discuss pending litigation. Wanda Stokes, director of the state Talent Investment Agency that oversees the unemployment agency, said in a statement that staff is continuing to review automated cases from 2013 to 2015 and is on track to complete the work by the end of this month. "The focus remains on the state's residents and making sure they are treated fairly," she said in a statement. "These reviews are an important step in restoring trust." The state settled a separate federal lawsuit in February, agreeing to a series of broad policy reforms and changes to the way the unemployment agency handles fraud cases. [GN] MICHIGAN: "Dearduff" Suit Seeks to Certify Class of Prisoners ------------------------------------------------------------- In the lawsuit styled JOEY DEARDUFF, BRIAN DENEKA, MOSSES KIRSCHKE, KIHAIL KIZ, JESSE KNOLTON, JAMES McRAE, REGINALD PEA, ANTHONY RICHARDSON, BRYANT SLONE, DARRYL J. SMITH, TINA STOLL, JAMES TAYLOR, STANLEY WILLIAMS; suing individually, and on behalf of all other similarly situated prisoners, the Plaintiffs, v. HEDI WASHINGTON, Director of the Michigan Department of Corrections (MDOC); sued in her official capacity, the Defendant, Case No. 2:14-cv-11691-LJM-MKM (E.D. Mich.), the Plaintiffs ask the Court to grant their motion for class certification of: "all those prisoners who are initially confined with the Michigan Department of Corrections (MDCO) for their first two- years and are not authorized by MDOC's policy to receive routine dental Care". The Plaintiffs further ask the Court that Plaintiffs' counsel be appointed as counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=q71kIWFD The Plaintiffs are represented by: Daniel E. Manville, Esq. MICHIGAN STATE UNIVERSITY COLLEGE OF LAW 610 Abbot Road East Lansing, MI. 48823 Telephone: (517) 336 8088 Facsimile: (517) 336 8089 E-mail: daniel.manville@law.msu.edu MICROSOFT CORP: Proskauer Rose Comments on SCOTUS Ruling -------------------------------------------------------- Lawrence I Weinstein, Esq., Jeffrey H Warshafsky, Esq., and Russell Kostelak, Esq., of Proskauer Rose LLP, in an article for Lexology, wrote that recently, the Supreme Court in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), held that the plaintiff in a putative class action involving Xbox 360 game consoles could not appeal from the District Court's denial of class certification after plaintiff voluntarily dismissed his claims with prejudice. While 28 U.S.C. Sec. 1291 allows appeals from final decisions as a matter of right, the Supreme Court held that plaintiff's voluntary dismissal did not qualify as an appealable final decision. The Court determined that allowing such an appeal would undermine Sec. 1291's finality principle and subvert the discretionary nature of interlocutory class certification appeals under Rule 23(f). Gamers, in other words, could not be allowed to hack Sec. 1291 in this way. The underlying lawsuit began in 2011 when plaintiff Seth Baker filed a putative class action lawsuit in the Western District of Washington, alleging that Microsoft's Xbox 360 gaming console scratched and destroyed his game discs during game play. The District Court denied the class certification and struck plaintiff's class allegations. Generally, the denial of class certification is not a final decision that triggers the right to appeal under Sec. 1291. Plaintiff therefore filed an interlocutory appeal from the denial of class certification under Fed. R. Civ. P. 23(f), which allows for discretionary interlocutory appeals. The Ninth Circuit, however, denied plaintiff's petition. At this point, instead of proceeding with the litigation or settling his individual claims, the plaintiff chose to voluntarily dismiss his case with prejudice in an attempt to finagle a "final decision" and the right to immediately appeal to the Ninth Circuit under Sec. 1291. On appeal, the Ninth Circuit determined that the voluntary dismissal constituted a final decision under Sec. 1291, and held that the district court abused its discretion in striking the plaintiff's class allegations. The Supreme Court granted certiorari and addressed the following question: Do federal courts of appeals have jurisdiction under Sec. 1291 to review a district court order striking or denying class certification after the named plaintiffs voluntarily dismissed their claims with prejudice? The Court, in an 8-0 opinion authored by Justice Ginsburg, answered in the negative: the plaintiff's voluntary dismissal did not constitute a final decision that gave him the right to appeal under Sec. 1291. First, the Court noted that the plaintiff's voluntary dismissal tactic would invite protracted litigation and piecemeal appeals. The Court envisioned a scenario in which the District Court denies class certification on certain grounds, the plaintiff appeals this issue and the Court of Appeals reverses and remands to the District Court. On remand, if the District Court denies class certification on different grounds, the plaintiff could again seek to voluntarily dismiss the case and receive another appeal as of right. Because the plaintiff could exercise this voluntary dismissal tactic for each class certification denial, the tactic would lend itself to multiple interlocutory appeals, in contravention of Sec. 1291's attempt to minimize such appeals by permitting them as of right only for final judgments. Second, the Court explained that the plaintiff's tactic would allow for indiscriminate appellate review of interlocutory orders, thereby undercutting the discretionary scheme of Rule 23(f). Rule 23(f) authorizes permissive interlocutory appeals from adverse class certification orders at the discretion of the Court of Appeals. By allowing plaintiff an appeal as of right under Sec. 1291 through his voluntary dismissal, the Ninth Circuit would have no discretion to deny the appeal once jurisdiction was established. This would undercut the circuit court's discretion over class certification appeals under Rule 23(f), the Supreme Court noted. Third, the Court took issue with the one-sided nature of the plaintiff's right to appeal if a voluntary dismissal were considered a final decision under Sec. 1291. Because only a plaintiff can initiate a voluntary dismissal, it follows that only a plaintiff could force an immediate appeal. The inability of defendants to initiate a voluntary dismissal and force a right to appeal in this way provided further justification for denying appellate jurisdiction after the plaintiff's voluntary dismissal. In short, the Court found that the plaintiff's voluntary dismissal maneuver contravened the "final decision" requirement of Sec. 1291. If the Court allowed plaintiff to game the system by appealing after voluntary dismissal, it would turn Congress' final decision rule into a "pretty puny one." With this ruling, the Court shut down a potential plaintiff-only appellate 'cheat code' to 'skip a level' and get automatic appellate review of adverse class certification rulings. [GN] MIDFLORIDA: Settles Overdraft Fee Class Action for $2.375MM ----------------------------------------------------------- Tina Orem, writing for Credit Union Times, reports that Lakeland, Fla.-based MidFlorida Credit Union has agreed to pay $2.375 million to settle a class-action lawsuit regarding its overdraft fee practices. The settlement requires MidFlorida CU, which has $2.9 billion in assets and 271,000 members, to pay members for overdraft fees assessed between November 24, 2010, and January 15, 2016, if those fees occurred when the member had sufficient ledger balances but insufficient available balances. According to a database analyst hired by the plaintiffs, about 27,500 accounts were affected. The class-action suit was originally filed by plaintiff Tracy Fry in November 2015. Ms. Fry claimed the practice breached MidFlorida's opt-in agreement and was inconsistent with its disclosure materials. The case went to mediation in March 2017, and a U.S. District Court judge approved the settlement. "MidFlorida does not deny it charged overdraft fees but contends it did so properly and in accordance with the terms of its agreements and applicable law because MidFlorida assesses overdrafts based on the available balance in a member's account," the credit union said in court documents. "MidFlorida maintains that this practice is proper and was disclosed to its members, and therefore denies that its practices give rise to claims for damages by Ms. Fry or any class member," it added. "Nevertheless, because MidFlorida states it has always strived to conduct its business in a manner that is most beneficial to all of its members, and using ledger balance may result in fewer member overdrafts as a result of this lawsuit, MidFlorida changed its payment processing systems as of January 15, 2016, so that it now assesses overdrafts based only on the ledger balance in member accounts." The database analyst estimated in a statement filed with the court that the credit union has forgone approximately $1.15 million in overdraft fees in the year after it changed its overdraft method in January 2016. As much as $1.125 million of the settlement, plus up to $65,000 in litigation costs, could go to the plaintiffs' attorneys. Another $10,000 will go to Ms. Fry, according to court documents. Members will be paid a pro rata share of the net settlement based on the total amount of improper overdraft fees they paid. MidFlorida has the option to terminate the settlement agreement if at least 5% of the class members opt out of the settlement before November 9. Taras Kick, one of the lead attorneys for the plaintiff, told the court he believed the total recovery would have been just over $5 million had the case gone to trial. MidFlorida Credit Union is one of over a dozen credit unions around the country have been hit with class-action suits over their overdraft practices. In at least two cases, the credit unions countersued, arguing that the plaintiffs still owed them money. In early 2016, a judicial panel denied a request to consolidate several of the lawsuits, leaving courts to weigh the merits of each case individually. Several of the credit unions have settled their cases or notified the court that settlement discussions are happening. [GN] MINNESOTA: Thrivent Seeks Win After DOL Drops Class Action Rule --------------------------------------------------------------- Jack Newsham, writing for Law360, reports that a financial services group that has sued to block part of the U.S. Department of Labor's fiduciary rule asked a Minnesota federal judge on July 5 to give it a quick win after the regulator said in a related case that it would no longer defend the rule's ban on class action waivers. Thrivent Financial sued last year over a part of the rule that stops financial advisers from making their customers submit disputes to individual, private arbitration instead of getting relief through a class action. The arbitration ban is part of the rule's best interest contract exemption, which allows advisers to receive commissions on financial products if they sign a contract with customers pledging to act in their best interest and disclose any conflicts of interest. on July 3, however, the DOL said in a Fifth Circuit brief that the government no longer believes the class action waiver is allowed by the Federal Arbitration Act. Citing that brief, Thrivent pushed in a letter for the court to grant its request for summary judgment. The DOL had asked the Minnesota court for a two-week pause so it can figure out what to do, but Thrivent said that wouldn't cut it. "Staying this litigation would only prolong Thrivent's business uncertainty about its compliance obligations, in a manner that would be highly prejudicial to Thrivent," the company said. "The fact that DOL has abandoned its legal defense of the ... anti- arbitration condition does not, in and of itself, mean that the condition will not otherwise go into effect as scheduled" on Jan. 1. The new position comes in light of the U.S. solicitor general's reversal of an Obama-era stance on class action waivers in an amicus brief before the U.S. Supreme Court in National Labor Relations Board v. Murphy Oil USA Inc. defending the legality of arbitration agreements that prohibit employees from pursuing work- related claims as a class. The Labor Department's fiduciary rule requires financial professionals to act in their clients' best interests when recommending investment products. Advisers and broker-dealers that fall under the expanded definition of a fiduciary will largely be prohibited from collecting commissions unless the professionals take advantage of the best interest contract exemption. Several financial industry groups including the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association sued over the rule in June 2016, but Judge Lynn granted the Labor Department's motion for summary judgment in February, finding the agency acted within its authority under the Employee Retirement Income Security Act and had adequately weighed the costs and benefits of the rule during the rule-making process. On appeal, the DOL has largely stood behind the rule. The agency ceded ground only on the challenge to the prohibition on class action waivers, acknowledging the government is no longer defending that provision. Apart from the anti-arbitration condition, the department said, it wants the BIC exemption to remain intact. The DOL is still considering changes to the fiduciary rule. The agency issued a request for information, asking for data and information that could be used to revise the rule, at the end of June. An attorney for Thrivent and a spokesman for the Labor Department declined to comment on July 6. Thrivent is represented by Andrew Kay, Esq. -- akay@cozen.com -- of Cozen O'Connor and Mark L. Johnson, Esq. -- mjohnson@greeneespel.com -- of Greene Espel PLLP. The government is represented by Galen N. Throp, Esq. -- galen.thorp@usdoj.gov -- Emily Newton, Esq. -- emily.s.newton@usdoj.gov -- Judry L. Subar, Esq. -- judry.subar@usdoj.gov -- Gregory G. Brooker, Esq. -- Gregory.brooker@usdoj.gov -- Brett A. Shumate, Esq. -- brett.shumate@usdoj.gov -- Megan Hansene, Esq. -- megan.hansene@usdoj.gov -- Thomas Tso, Esq. -- Thomas.tso@usdoj.gov -- Edward D. Sieger, Esq. -- Edward.sieger@usdoj.gov -- G. William Scott, Esq. -- g.william.scott@usdoj.com -- and Nicholas C. Geale, Esq. -- Nicholas.gaele@usdoj.gov. The case is Thrivent Financial for Lutherans v. Acosta et al., case number 0:16-cv-03289 in U.S. District Court for the District of Minnesota. [GN] MISSISSIPI: Settles Children's Mental Health Care Litigation ------------------------------------------------------------ Arielle Dreher, writing for Jackson Free Press, reports that after seven years of litigation, one Mississippi teenager will finally get to move from the East Mississippi State Hospital to a regional center that provides services for those with intellectual and developmental disabilities. His move -- out of an institution and into more integrated care -- marks the end of a prolonged legal struggle for children's mental-health care in the state that started when he was 13. L.S., the teen who will receive services at a regional center, was the last plaintiff standing in the lawsuit. It was originally a class-action case on behalf of all children in Mississippi seeking services for mental health care and developmental disorders. Mental health, Medicaid and State of Mississippi representatives signed the settlement agreement, ending the Troupe v. Barbour case after seven years. As a part of the agreement, the attorney general's office released the long-hidden TAC report, which documents how the Department of Mental Health and the Division of Medicaid spent more and provided more services for children in institutions than in home- and community-based services. The latter is now a common best practice. DMH issued a response to the TAC report that documents changes they have made since the TAC report was completed at the end of 2015. The response says the department will close 50 institutional beds for children this month "as a result of expansion of community services and decreased in need for institutional beds." Adam Moore, the director of communications at the department, said closing those beds is a result of consolidating inpatient units at East Mississippi State Hospital and the Mississippi State Hospital in Rankin County. Now judges committing children for inpatient acute mental-health care can only send them to Mississippi State Hospital. The department's response lists several initiatives and the progress made on children's mental-health care since the TAC report was finished in 2015, including expanding the services of the Wraparound Institute. "Even as the agency receives budget cuts, DMH's focus will remain on building up direct services in the community to ensure capacity is available to reduce the reliance on inpatient institutional services," the DMH release says. The State still faces a federal lawsuit for relying on institutions to serve adults who need mental-health care in the state. Legislation to move DMH under the governor's purview faced significant resistance from lawmakers in the 2017 legislative session -- and ultimately died. Jockeying for Control Gov. Phil Bryant still wants to run the Mississippi Department of Mental Health. After the release of a sealed report, which examined mental-health care for children, Mississippians now have access to a possible roadmap to offering more home- and community- based services instead of relying on the state's institutions to provide mental care. The report's underlying point echoes what the U.S. Department of Justice alleged back in 2011: Mississippi over-relies on institutions to care for those with mental-health illnesses. "I think if you would raise . . . the Department of Mental Health to a cabinet-level position as we did with Child Protection Services, we might be able to draw more attention, more support, (and) more of a direct effort by not only this governor but governors of the future to make sure that those services are delivered," Gov. Bryant told reporters after an awards event for the Division of Child Protection Services. That is, Bryant would like the director of DMH to report directly to him rather than to a board he appoints. The Department of Mental Health, the State's largest agency, reports to the Board of Mental Health, which is made up of members that the governor appoints, pending confirmation by the Mississippi Senate. When asked if he plans to make changes to the board, Bryant said, "I have, and I will," implying a shake-up is in order. Closing Hospitals? Gov. Bryant dodged a question about the potential to close some of the state's mental-health hospitals in June. "I think that would be, honestly, a decision for the Board of Mental Health; that's their responsibility," he told reporters June 23. "I don't manage the DMH; if I did, I might have sufficient information to make that decision." When the Legislature cut DMH's budget this year, the agency announced it would have to reduce its workforce by 650 employees by June 2018. The TAC report addresses the potential shift in personnel from institutions to home- and community-based services. Mississippi will need to keep some institutions, the TAC report says, but hospitals "should not be a solution or default system for an underfunded or fragmented community system." Researchers recommend that DMH should expand the current functions of the state hospital staff to include home- and community-based services. "The services provided by redeployed state hospital staff would complement the role of (community mental health centers) and other providers without duplication," the TAC report says. "DMH can manage the provision of lower-cost alternatives to institutional treatment . . .(T)he state could redeploy hospital staff to increase mobile crisis response capacity, to provide emergency services and crisis triage functions, to provide crisis stabilization services," the report says. It also says that hospital staff would be ideal for providing in- home therapy and care coordination, and psychiatrists could serve in community environments. Of course, this is just a suggestion. Earlier this year, after the Legislature cut the DMH budget, it announced layoffs and retention leading to a loss of 650 employees by this time next year. [GN] MONSANTO: Migrant Farmworkers Sue Over FLSA Violations ------------------------------------------------------ Mother Jones reported that two migrant farmworkers have filed a federal class action lawsuit against Monsanto, alleging that the company violated the Fair Labor Standards Act and the Agricultural Workers Protection Act while the workers were employed in fields where Monsanto grows corn to produce its hybrid seeds. "The lawsuit, which is believed to be the first of its kind, alleges that Monsanto violated the acts by failing to pay its workers the minimum wage and failing to pay its workers when compensation was due. It also alleges that Monsanto misrepresented the way the employees would be paid and failed to keep adequate payroll records," says Investigate Midwest's story on the lawsuit. "I'm not aware of any other multi-state class action against Monsanto over its labor practices in production of seed corn," said Teresa Hendricks, co-counsel for the plaintiffs and director of the Michigan Migrant Legal Assistance Project. She estimated potential damages at $2 million. "Potentially, it could be the highest amount of damages of this type of suit." The plaintiffs claim that Monsanto hired contractors to keep hire and pay workers, but that those contractors knowingly shorted employees. Hendricks said the contractors were not named in the lawsuit because they "are not the ones with any real control. They are typically undercapitalized and struggle themselves with Monsanto, some have sued Monsanto even for pay. They will be deposed as witnesses in our case." Along with Monsanto, Dupont Pioneer has also been accused of hiring contractors who mistreat and underpay workers in its seed- corn fields. For more on those allegations, click here for the full report by Investigate Midwest. [GN] NATIONS RECOVERY: Meyer Files Placeholder Class Certification Bid ----------------------------------------------------------------- In the lawsuit styled BONNIE MEYER, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. NATIONS RECOVERY CENTER, INC., the Defendant, Case No. 2:17-cv-00959-NJ (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a proposed class, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=JMn3hRrR The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com NESTLE WATERS: "Roz" Suit Seeks to Certify Class & Subclasses ------------------------------------------------------------- In the lawsuit captioned RICHARD ROZ; SHNEUR GOTTLIEB; AND YEHOSHUA BLUM, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, v. NESTLE WATERS NORTH AMERICA INC., A DELAWARE CORPORATION DBA READYREFRESH BY NESTLE, the Defendants, Case No. 2:16-cv-04418-SVW-JEM (C.D. Cal.), the Plaintiffs will move the Court to certify classes consisting of the following: The Class is defined as: "all persons in California whose credit cards, debit cards, or bank accounts were charged on a recurring basis by Nestle, as part of an automatic renewal plan or continuous service offer, without Nestle obtaining preauthorization of the electronic fund transfer between September 22, 2012 and September 22, 2016"; Sub-Class 1 is defined as: "all persons in California who initiated services with Nestle online whose credit cards, debit cards, or bank accounts were charged on a recurring basis by Nestle, as part of an automatic renewal plan or continuous service offer, without Nestle obtaining preauthorization of the electronic fund transfer between September 22, 2012 and September 22, 2016"; Sub-Class 2 is defined as: "all persons in California who initiated services with Nestle on the telephone whose credit cards, debit cards, or bank accounts were charged on a recurring basis by Nestle, as part of an automatic renewal plan or continuous service offer, without Nestle obtaining preauthorization of the electronic fund transfer between September 22, 2012 and September 22, 2016"; Sub-Class 3 is defined as: "all persons in California whose credit cards, debit cards, or bank accounts were charged on a recurring basis by Nestle, as part of an automatic renewal plan or continuous service offer, where Nestle made a material change to the terms of the agreement without providing advanced clear and conspicuous notice of the change prior to the electronic fund transfer between September 22, 2012 and September 22, 2016; Sub-Class 4 is defined as: "all persons in California who initiated services with Nestle telephonically whose credit cards, debit cards, or bank accounts were charged on a recurring basis by Nestle, as part of an automatic renewal plan or continuous service offer, where Nestle failed to provide information regarding how to cancel the automatic renewal plan in a clear and conspicuous manner during the initial telephonic communication between September 22, 2012 and September 22, 2016"; and Sub-Class 5 is defined as: "all persons in California who initiated services with Nestle online whose credit cards, debit cards, or bank accounts were charged on a recurring basis by Nestle, as part of an automatic renewal plan or continuous service offer, where Nestle failed to provide information regarding how to cancel the automatic renewal plan in a clear and conspicuous manner during the initial online sign up between September 22, 2012 and September 22, 2016". The Plaintiffs will also move the Court for appointment of Plaintiffs as Class Representatives, and for appointment of Plaintiffs' attorneys as Class Counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=tPz1BUHy The Plaintiffs are represented by: Abbas Kazerounian, Esq. Matthew M. Loker, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com ml@kazlg.com - and - Joshua B. Swigart, Esq. Veronica E. McKnight, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233 7770 E-mail: josh@westcoastlitigation.com bonnie@westcoastlitigation.com NIC GEORGIOU: Former Pickvest Exec Supports Class Action -------------------------------------------------------- Ryk van Niekerk, writing for Moneyweb, reports that a long- standing financial dispute between property magnate Nic Georgiou and Morkel Steyn, a former executive within the Pickvest and Highveld Syndication companies, may have influenced Mr. Steyn's defection to the class action application against Mr. Georgiou. Mr. Steyn recently publicly disassociated himself from Mr. Georgiou and announced his support of the class action. He stated that he was doing this in the interest of investors and to provide momentum to the class action application. During an open interview with Moneyweb at the time, he did not disclose the dispute. In several legal letters sent between the legal representatives of Messrs. Steyn and Georgiou, it has now emerged that the parties were embroiled in a legal dispute regarding an unspecified amount of money. Mr. Georgiou even accuses Mr. Steyn of attempted extortion, but this is denied by Andre Vlok, Mr. Steyn's attorney. In response to Moneyweb questions, Mr. Vlok also strongly denies that the financial dispute had anything to do with Mr. Steyn's decision to go public and to join the class action. Mr. Steyn could not respond personally due to illness. Legal correspondence The extent of the dispute becomes apparent in a series of legal letters sent between the parties from January to July. Mr. Vlok sent the first letter in January and asked for an urgent audience with Georgiou. Georgiou did not respond to this letter. In three subsequent letters, Mr. Vlok stated Mr. Steyn's unhappiness of being treated in such a way. In one of these letters he states: "He (Steyn) will not be discarded in this manner and while there are certainly means to address his own requirements and the payment of monies due to him." In another paragraph, Mr. Vlok states: "We believe that he should clear his name of several of the allegations made against him, and the best way to do so would be by way of a media release. We have advised him to rather participate in the class action as a witness, and to remove his exposure, liabilities and costs in this manner. We have advised him to immediately cease all participation in his duties if he is not paid in terms of the applicable agreements." Georgiou's response Mr. Georgiou's lawyer, Mario Kyriacou, responded to Mr. Steyn on June 23 after the publication of the Moneyweb article and denied that Mr. Georgiou owed Mr. Steyn any money. He also accused Mr. Steyn of extortion. "What is apparent is the more blatant the wrongful threats have become in each of the letters sent -- beginning with a threat to institute legal proceeding and culminating in the threat to "contact the applicants' attorneys in the class and related actions, and to negotiate a settlement that serves (your client's) interests". "These threats amount to nothing less than an attempt to extort payment of monies which, as we are instructed, are neither due or owing to your client and our client reserved their rights in all respects -- including their rights to criminally prosecute your client." The letter then stated further: "On this score, our instructions are that our client has loaned to your client monies in excess of R14 000 000 and when our client refused to loan your client further funds and insisted upon repayment of these monies that your client had his sudden purported attack of conscience and commenced with his extortive conduct." Dispute not related to Steyn's decision In response to Moneyweb questions, Mr. Vlok stated that the financial dispute has been ongoing for years. "The reason for his decision was never an issue and his motivation to do the right thing was in any case of secondary importance." He added that his decision will benefit investors. "It has nothing to do with the question of whether he was owed money or not." Mr. Vlok also denied that Mr. Steyn threatened or tried to extort Georgiou. "The letters were normal letters of demand. They are clear attempts to resolve the situation and merely highlight the consequences of the continued conflict. If this is seen as threats, then the Georgiou group created the situation by not providing information and refusing payment to Mr Steyn." Jacques Theron, legal representative of the HSAG, confirmed that Mr. Steyn has not met with the HSAG. [GN] NIDO CAFFE: "Martinez" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------ Danilo Martinez, and others similarly-situated v. Nido Caffe 110 LLC, d/b/a Nido Caffe', Nido Caffe 2015 LLC, d/b/a Ni.Do Caffe', d/b/a Ni.Do Caffe & Mozarella Bar, Panarea Miami, LLC, Lisandro Garcia, and Daian Escalante, Case No. 1:17-cv-22411-RNS (S.D. Fla., June 28, 2017), seeks to recover unpaid overtime wages and damages, liquidated damages, interests, costs and attorney's fees pursuant to the Fair Labor Standards Act. The Defendants own and operate Nido Caffe restaurants in Miami- Dade County, Florida. [BN] The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Telephone: (305) 308-5619 E-mail: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Telephone: (305) 773-6661 E-mail: mamane@gmail.com NORTHERN TRUST: "Banks" Class Certification Bid Denied as Moot -------------------------------------------------------------- In the lawsuit styled Lindie L. Banks, et al., the Plaintiffs, v. Northern Trust Corporation, the Defendant, Case No. 2:16-cv- 09141-JFW-JC (C.D. Cal.), the Hon. Judge John F. Walter entered an order: 1. granting Defendants' motion to dismiss; 2. dismissing Plaintiffs' first amended complaint without leave to amend and dismissing the action with prejudice; and 3. denying Plaintiffs motion for class certification as moot. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=W9Y29LhJ The Court said, "Because Plaintiffs have alleged a variety of express and implied misrepresentations and omissions in connection with investment of trust assets in Northern-affiliated funds in their First Amended Complaint, and, because Plaintiffs' claims also meet the "in connection with" requirement, their claims are precluded by SLUSA". NORTHLAND GROUP: "Hyun" Suit Seeks Certification of Class --------------------------------------------------------- In the lawsuit captioned HYUN SOON CHUNG, on behalf of herself and those similarly situated, the Plaintiff, v. NORTHLAND GROUP INC.; and JOHN DOES 1 to 10, the Defendants, Case No. 2:15-cv-06246-SCM (D.N.J.), the Plaintiff will move the Court on July 20, 2017, at 2:00 p.m., at the United States Court for the District of New Jersey for an order certifying this case to proceed as a class action and granting final approval of the parties' class settlement agreement. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=JHMDWSZe The Plaintiff is represented by: Bharati Sharma Patel, Esq. THE WOLF LAW FIRM, LLC 1520 U.S. Highway 130 - Suite 101 North Brunswick, NJ 08902 Telephone: (732) 545 7900 Facsimile: (732) 545 1030 E-mail: bpatel@wolflawfirm.net - and - Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hacksensack Avenue, 2nd Floor Hackensack, NJ 07601 Telephone: (201) 273 7117 Facsimile: (201) 273 7117 E-mail: ykim@kimlf.com NOVANT HEALTH: Insurers File Countersuits in 401(k) Plan Dispute ---------------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that Novant Health Inc. is being counter-sued by two insurers in a dispute over the insurers' financial responsibility in the system's settlement of an employee class-action lawsuit. Novant agreed in September to pay $32 million, including $10.7 million in attorney fees, to settle a March 2014 lawsuit filed by six current and former employees. The employees include Karolyn Kruger, a retired doctor who served as chief of staff at Thomasville Medical Center. Each named plaintiff received $25,000. According to the plaintiffs' law firm of Schlichter, Bogard & Denton, there were about 25,000 affected Novant employees who had been enrolled automatically in the retirement plan since 2009. The lawsuit covered the period Oct. 1, 1998, to Sept. 30, 2015, and had 70,683 potential beneficiaries. The complaint accuses Novant of breaching its fiduciary duties by causing plan participants to pay millions of dollars in fees for excessive record-keeping and administrative services to third- party service providers Great West Life & Annuity Insurance Co. and Winston-Salem brokerage firm D.L. Davis & Co. In the settlement, Novant agreed to conduct a comprehensive request for proposal competitive bidding process led by an outside consultant; hire an independent consultant to assess its 401(k) plans on an annual basis for four years; revise investment options as needed; remove Davis from any involvement in the plans; not offer any Mass Mutual investments in the plans; not offer any brokerage services; and provide accurate communications to beneficiaries. Although Novant did not admit or deny liability, it said the settlement "is in the best long-term interests of our health system and our retirement plan participants." The current litigation began April 25 when Novant sued Federal Insurance Co. Inc., known by the Chubb brand, and Travelers Casualty and Surety Co. of America in Forsyth Superior Court. The lawsuit was moved to federal court June 8. Novant said its legal representation in the employee class-action lawsuit -- Morgan Lewis, appointed by Chubb -- estimated the total legal exposure could have ranged from $46 million to $86 million, and that a settlement of up to $35 million "would be reasonable." Novant claims its financial exposure was $7 million after insurance coverage. Novant said it has paid $23.95 million toward the settlement and now seeks additional reimbursement beyond $4 million from each insurer. Novant said the requested amount includes damages related to the insurers' "breach of their obligations." Federal said in its countersuit, filed June 23, it believes it fulfilled its financial obligation, and that it should be reimbursed the $4 million. Travelers listed in a separate countersuit, also filed June 23, it is owed $4.05 million in reimbursement. Much of its filing was a response to the Novant accusations. Federal accused Novant and certain unnamed system executives of benefiting from the Davis arrangement. Federal claimed Davis was paid fees in an amount "far in excess of the value of its services." Novant Health said in a statement on July 5 that it "initiated this legal action because the insurers did not honor their obligations to pay under liability insurance purchased by Novant Health. The insurers' claims are simply untrue." The employees' lawsuit claims Davis provided the plan with limited marketing and enrollment services, but was paid excessive fees up to $9.6 million from 2009 to 2012 in the form of "commissions." Federal said the Davis arrangement benefited both parties "insofar as it incentivized Davis to engage in separate business dealings with, and contributions to them, to their financial advantage." The employees' complaint stated Davis received a second source of revenue in the form of "kickbacks" from the managers of the plan investment options. Novant denied the allegation of kickbacks. Novant said Davis "provided extensive services that go well beyond mere limited and enrollment services." Among the services that Novant cited are plan-design implementation, mutual-fund selection and fees, selection of the record keeper, and communication and educational efforts with employees. Federal accused Novant of "not merely extract(ing) from the plan an amount of money representative of services provided on behalf of Novant to plan participants; rather, Novant took excessive amount to which it had no legal entitlement." Novant is accused of not informing Federal that Novant's "practice of paying itself from plan assets" was the subject of a 2013 U.S. Labor Department investigation into Novant's employee savings plan. Federal said Novant's agreeing to the employee settlement "was motivated" by the financial dealings involving Davis. "Federal objected to being forced to pay the cost of remedying such concerns." The plan's assets more than doubled from $612 million in 2008 to $1.42 billion as of March 2014. Novant said the plan offered 23 investment options. The employees' complaint said Great West received excessive compensation of $8.6 million between 2009 and 2012. [GN] PATRIOT LAND: "Conover" Sues Over Illegal Kickbacks --------------------------------------------------- Anna Conover, Parrish and Jacqueline Sheridan, Bryan and Jacqueline Van Velson, Plaintiffs, v. Patriot Land Transfer, LLC, Patriot Land Processing, LLC, Wells Fargo Bank, N.A., Defendants, Case No. 1:17-cv-04625 (D. N.J., June 23, 2017), seeks damages for settlement services charged by the Defendants, including, but not limited to, title insurance premiums, in an amount equal to three times the amount of any charge paid for such settlement services, reasonable attorneys' fees, interest and costs pursuant to Real Estate Settlement Procedures Act. Patriot is a title services company licensed under the laws of various states, including New Jersey and Pennsylvania. Wells Fargo employed licensed home mortgage consultants, mortgage brokers and/or authorized loan officers brokered and secured loans for residential mortgages working with title companies to close these loans. Plaintiffs allege that Wells Fargo accepted kickbacks and fee splits from Patriot. [BN] Plaintiff is represented by: Bruce D. Greenberg, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 Facsimile: (973) 623-0858 Email: bgreenberg@litedepalma.com - and - Timothy F. Maloney, Esq. Veronica B. Nannis, Esq. Megan A. Benevento, Esq. JOSEPH, GREENWALD & LAAKE 6404 Ivy Lane, Suite 400 Greenbelt, MD 20770 Telephone: (301) 220-2200 Facsimile: (301) 220-1214 Email: tmaloney@jgllaw.com vnannis@jgllaw.com mbenevento@jgllaw.com - and - Michael Paul Smith, Esq. Melissa L. English, Esq. Sarah A. Zadrozny, Esq. SMITH, GILDEA & SCHMIDT, LLC 600 Washington Avenue, Suite 200 Towson, MD 21202 Telephone: (410) 821-0070 Facsimile: (410) 821-0071 Email: mpsmith@sgs-law.com menglish@sgs-law.com szadrozny@sgs-law.com PAYPAL: California Gun Shop Owner Files Class Action ---------------------------------------------------- Outdoor Life reports that a California gun shop owner has filed class-action lawsuits against PayPal, Stripe, and Square for denying online money transfer services to his business in violation of a state law that protects federally-licensed gun stores from discrimination. Blair Gladwin, owner of Gladwin Guns and Ammo in Merced, filed his suits in Merced County Superior Court against the three money transfer services after they required him to disclose what his business sells and then terminated his account. The companies claim they have policies against transferring money for the sale of guns, ammunition or other gun-related products. Gladwin and his attorneys claim their policies violate state law by discriminating against him and his business. According to Thaddeus Miller of The Merced Sun-Star, Gladwin has operated his gun shop outside Merced since 2000. He sells handguns, rifles, and accessories that are all legal in the state. The shop is his only source of income. Like many retailers, Gladwin has expanded his sales to online retailers. Without an online money transfer service, he said, his sales take a hit because buyers don't want to have to get a cashier's check. "They basically flat out shut me down," he told Mr. Miller. "My livelihood is on the line, because my revenue is going to drop." California's Unruh Civil Rights Act protects federally-licensed gun stores, according to William McGrane, Gladwin's attorney. "It's against the law in California to discriminate against people based on occupation," he told Miller. "Refusing somebody you don't want to serve is itself illegal." "Essentially, it's political correctness," Mr. McGrane continued. "Indeed, they do have a desire to regulate something that the government is not allowed to regulate." Gladwin's lawsuits were filed in Merced County Superior Court, asking the court to mandate services to gun dealers and award no less than $5 million per company, as well as attorney fees. In a letter to Outdoor Life, Gladwin's representatives elaborated on their case, noting he believes this is a violation of California's Unruh Civil Rights Act Sections 51, 52(a) and 52(c), which protects federally-licensed gun stores from discrimination. Gladwin's three class-action suits were on behalf of himself and all federal firearms dealers during the class period who: 1.) learned of the requirement to disclose the nature of their business and were then deterred from opening a payment account, or 2.) had an account terminated by a payment processor because of the nature of their business. The letter states that Gladwin is asking the court for a public injunction mandating that the payment companies cease violating the Unruh Act (thus allowing the firearms dealers to use the payment processors to facilitate buying and selling firearms), a total award to class members of no less than $5 million (per company/class-action lawsuit), and attorney fees. According to the letter, "This case raises an important issue about whether payment processing companies can refuse service to legal (but sometimes controversial) businesses. Mr. McGrane's statement in the letter reads: "The very large non- bank defendants in these cases are allowing their private sense of political correctness to extend so far as to ban even persons who hold valid federal firearms licenses from accepting Electronic Funds Transfers, all in defiance of the Second Amendment to the federal Constitution and the California Unruh Civil Rights Act of 1978. The net effect of what they are doing is making the legitimate business of selling firearms operate as a cash business only, all in a misguided effort to effectively ban the sale of firearms and related products from the marketplace." [GN] PERFORMANCE CONTRACTING: Faces "McDaniels" Lawsuit Under FLSA ------------------------------------------------------------- DAVID MCDANIELS, on behalf of himself and those similarly situated, Plaintiff, vs. PERFORMANCE CONTRACTING, INC., a Foreign Profit Corporation, Defendant, Case No. 3:17-cv-00093-TCB (N.D. Ga., July 7, 2017), alleges Defendant's failure to properly compensate employees for hours worked in excess of forty (40) hours in a workweek as required by the Fair Labor Standards Act. Performance Contracting Group -- http://www.pcg.com/-- is a specialty contractor. During Plaintiff's employment with Defendant, he served as an insulator.[BN] The Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, GA 30343-1007 Phone: (404) 965-8811 Fax: (404) 965-8812 E-mail: CLeach@forthepeople.com PERSHING SQUARE: Accused of Wrongful Conduct Over Call Options -------------------------------------------------------------- Timber Hill LLC, individually and on behalf of all others similarly situated v. Pershing Square Capital Management, L.P., PS Management GP, LLC, William Ackman, PS Fund 1, LLC, Pershing Square, L.P., Pershing Square II, L.P., Pershing Square GP, LLC, Pershing Square International, Pershing Square Holdings, Ltd., Michael Pearson, Valeant Pharmaceuticals International, Inc. and Valeant Pharmaceuticals International, Case No. 2:17-cv-04776 (C.D. Cal., June 28, 2017), is an action for damages for artificially deflating the prices of Allergan call options and Allergan equity forwards sold by the Plaintiff and other members of the proposed Class, while the prices of Allergan put options purchased by the Plaintiff and other members of the proposed Class were artificially inflated during the Class Period. Pershing Square Capital Management, L.P., PS Management GP, LLC, William Ackman, PS Fund 1, LLC, Pershing Square, L.P., Pershing Square II, L.P., Pershing Square GP, LLC, Pershing Square International, Pershing Square Holdings, Ltd., and Michael Pearson operate a fund management company located at 888 7th Avenue in New York. Valeant Pharmaceuticals International, Inc. is a publicly traded company that manufactures and markets pharmaceuticals, over-the- counter products and medical devices in the eye care, dermatology and neurology therapeutic classes. [BN] The Plaintiff is represented by: Marc M. Seltzer, Esq. Steven G. Sklaver, Esq. SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 E-mail: mseltzer@susmangodfrey.com ssklaver@susmangodfrey.com - and - Andrew J. Entwistle, Esq. Vincent R. Cappucci, Esq. Robert N. Cappucci, Esq. ENTWISTLE & CAPPUCCI LLP 299 Park Avenue, 20th Floor New York, NY 10171 Telephone: (212) 894-7200 Facsimile: (212) 894-7272 E-mail: aentwistle@entwistle-law.com vcappucci@entwistle-law.com rcappucci@entwistle-law.com PETROBRAS: Pomerantz Achieves Significant Victory in Securities CA ------------------------------------------------------------------ Pomerantz scored a significant victory for investors in In re Petrobras Sec. Litig. (2d Cir. July 7, 2017), one of the largest securities class actions pending in the United States. The case involves the biggest corruption scandal in the history of Brazil, which according to Plaintiffs has ensnared not only Petrobras' former executives but also Brazilian politicians, including former presidents and at least one third of the Brazilian Congress. According to Plaintiffs, Defendants' fraudulent scheme involved billions of dollars in kickbacks, tens of billions of dollars in overstated assets, as well as significant losses to Petrobras investors. In a February 2, 2016 Opinion and Order, the District Court certified all the classes proposed by the Plaintiffs, encompassing not only purchasers of Petrobras American Depository Receipts, but also Petrobras bondholders who acquired securities pursuant to domestic transactions. Plaintiffs asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Sections 11, 12(a)(2) and 15 of the Securities Act of 1933. Defendants appealed the District Court's certification opinion on multiple grounds, including for failure to satisfy the requirement of ascertainability and for failure to satisfy the burden of showing that the Petrobras securities at issue traded in efficient markets. The Second Circuit accepted the appeal and largely rejected Defendants' arguments, sending the case back to the District Court for further proceedings. The Second Circuit's decision is important and favorable precedent in several respects. First, in an issue of first impression, the Second Circuit squarely rejected Defendants' invitation to adopt the heightened ascertainability requirement promulgated by the United States Court of Appeals for the Third Circuit, which would have required plaintiffs to demonstrate that determining membership in a class is "administratively feasible." The Second Circuit's rejection of this standard is not only a victory for bondholders in securities class actions, but also plaintiffs in consumer fraud class actions and other class actions where documentation regarding Class membership is not readily attainable. With respect to Petrobras' bondholders, the Court vacated the District Court's granting of class certification, but only to the extent that it did not perform an analysis regarding the impact of the Supreme Court's Morrison decision on the predominance requirement of class certification. Specifically, the Second Circuit required the District Court to analyze whether "common answers" to whether a transaction occurred in the United States could be ascertained via common proof. The record in this case easily supports such a determination. Indeed, as the Second Circuit acknowledged, "the district court might properly certify one or more classes that capture [] all of the Securities holders who fall within the Classes as currently defined." The Second Circuit also refused to adopt a requirement, urged by Defendants, that all securities class action plaintiffs seeking class certification prove through direct evidence (i.e., via an event study) that the prices of the relevant securities moved in a particular direction in response to new information. Reaffirming the Supreme Court's guidance in Halliburton II that the burden for plaintiffs seeking class certification "is not an onerous one," the Second Circuit rejected the notion that complicated event studies be submitted by Plaintiffs at the class certification stage. The Court agreed with Plaintiffs that "event studies offer the seductive promise of hard numbers and dispassionate truth, but methodological constraints limit their utility in the context of single-firm analyses." Jeremy Lieberman, Managing Partner of Pomerantz commented: "We are very pleased with the Second Circuit's decision today, which provides important precedent for both domestic and foreign investors seeking redress for securities fraud impacting the U.S. capital markets. Plaintiffs allege that Defendants engaged in a sweeping fraud lasting nearly a decade, which caused billions of dollars in losses to Petrobras investors, and hobbled the political and economic framework in Brazil, one of the largest economies in the world. This decision represents a victory for class action plaintiffs in securities, antitrust and consumer cases. Most significantly, the Second Circuit's decision allows this important case against Petrobras and other Defendants to proceed apace, lifting the automatic stay imposed by the Second Circuit. As a result, we intend to ask Judge Rakoff to set a trial date as quickly as possible, to allow the defrauded class members to finally have their day in court." The complaint alleges that, throughout the Class Period, defendants made materially false and misleading statements regarding the company's business, operational and compliance policies. Specifically, defendants made false and/or misleading statements and/or failed to disclose that: (1) the company overstated its property, plant, and equipment on its balance sheet by overpricing contracts to certain companies relating to its refineries and operations and accepted kickbacks from construction companies approved for those contracts; (2) the company was receiving multi-billion dollar bribes from third-party contractors to secure contracts from Petrobras; (3) the company was in violation of its own Code of Ethics, as its employees and executives were routinely accepting bribes from certain construction companies; (4) the company's internal controls over financial reporting were ineffective and deficient; and (5) as a result of the foregoing, Petrobras' public statements were materially false and misleading at all relevant times. The Pomerantz Firm, with offices in New York, Chicago, Florida, and Los Angeles, is acknowledged as one of the premier firms 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. [GN] Robert S. Willoughby Pomerantz LLP E-mail: rswilloughby@pomlaw.com PICHARDO 2230: Second Circuit Appeal Filed in "Lopez" Class Suit ---------------------------------------------------------------- Plaintiff Antonio Lopez filed an appeal from a District Court order dated June 5, 2017, in the lawsuit titled Lopez v. Pichardo 2230 Restaurant Corp., Case No. 15-cv-648, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendants for alleged failure to pay overtime wages in excess of 40 hours per week. The Defendants own and operate a restaurant located at 2230 Grand Concourse, in Bronx, New York. The appellate case is captioned as Lopez v. Pichardo 2230 Restaurant Corp., Case No. 17-2058, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Antonio Lopez, Individually & on behalf of others similarly situated, is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Faillace@employmentcompliance.com Defendants-Appellees Pichardo 2230 Restaurant Corporation, DBA Caridad Restaurant, Lazaro Pichardo and Ruben Pichardo are represented by: Victor Jose Molina, Jr., Esq. LAW OFFICE OF VICTOR J. MOLINA 930 Grand Concourse Bronx, NY 10451 Telephone: (718) 401-1600 E-mail: v.j.molina@verizon.net PINGTAN MARINE: Faces Class Action for Human Trafficking -------------------------------------------------------- Elliot J. Joh, Esq., of Squire Patton Boggs, in an article for Lexology, wrote that a recently filed class action illustrates how allegations of illegal activity abroad can result in securities class action exposure in the United States -- even for a Chinese fishing company incorporated in the Cayman Islands. According to the plaintiff in Zhong Zheng v. Pingtan Marine Enterprise Ltd., et al., Pingtan (trading on NASDAQ as "PME") made a small, but materially false statement in its 10-Q and 10-K forms regarding its fishing operations. Namely, the statement that Pingtan's vessels are "fully licensed to fish in Indonesian, Indian, or Western and Central Pacific Ocean of the international waters." The plaintiff alleges that this statement is not only false and misleading, but also part of a "hoax" to cover up significant illegal activity. In support of his allegations, plaintiff cites a report published earlier this year by Aurelius Value: Pingtan is specifically banned from Indonesia and a senior government minister has said she would report Pingtan to the NASDAQ upon suspicion of an "international fraud case." Indonesian Armed Forces raided Pingtan's key fishing base and the Government implicated Pingtan and its affiliates in serious crimes that include human trafficking, forced labor, illegal fishing, forgery, and bribing corrupt officials. . . . The nature of Pingtan's fraud strikes as being especially egregious because investor capital has financed widespread illegal activity. Indonesian Supreme Court documents describe violent "torture ships" that implicate Pingtan in the modern-day slavery that has infected pockets of South East Asia's fishing industry. Pingtan's stock price allegedly fell by 28% as a result of the information in the Aurelius report. The plaintiff asserts claims against Pingtan, its CEO, and its CFO under Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. Zhong Zheng v. Pingtan Marine Enterprise Ltd., et al., Case No. 17-cv-03807, is currently pending in the Eastern District of New York before Chief Judge Dora L. Irizarry. Given the unlikely, but nevertheless interesting confluence of: (1) U.S. securities law, (2) a Chinese corporate defendant, (3) the Indonesian government, and (4) a Brooklyn venue, we will continue to monitor and report on this case. [GN] PLAINS ALL AMERICAN: Andrews Asks Court to Grant Class Cert. Bid ---------------------------------------------------------------- In the lawsuit styled KEITH ANDREWS, an individual, TIFFANI ANDREWS, an individual, BACIU FAMILY LLC, a California limited liability company, ROBERT BOYDSTON, an individual, CAPTAIN JACK'S SANTA BARBARA TOURS, LLC, a California limited liability company, MORGAN CASTAGNOLA, an individual, THE EAGLE FLEET, LLC, a California limited liability company, ZACHARY FRAZIER, an individual, MIKE GANDALL, an individual, ALEXANDRA B. GEREMIA, as Trustee for the Alexandra Geremia Family Trust dated 8/5/1998, JIM GUELKER, an individual, JACQUES HABRA, an individual, ISURF, LLC, a California limited liability company, MARK KIRKHART, an individual, MARY KIRKHART, an individual, RICHARD LILYGREN, an individual, HWA HONG MUH, an individual, OCEAN ANGEL IV, LLC, a California limited liability company, PACIFIC RIM FISHERIES, INC., a California corporation, SARAH RATHBONE, an individual, COMMUNITY SEAFOOD LLC, a California limited liability company, SANTA BARBARA UNI, INC., a California corporation, SOUTHERN CAL SEAFOOD, INC., a California corporation, TRACTIDE MARINE CORP., a California corporation, WEI INTERNATIONAL TRADING INC., a California corporation and STEPHEN WILSON, an individual, individually and on behalf of others similarly situated, the Plaintiffs, v. PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership, PLAINS PIPELINE, L.P., a Texas limited partnership, and JOHN DOES 1 through 10, the Defendants, Case No. 2:15-cv-04113-PSG-JEM (C.D. Cal.), the Plaintiffs will move the Court on October 23, 2017, for an order granting their motion for class certification. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=1d5BXcC8 The Plaintiffs are represented by: Robert L. Lieff, Esq. Elizabeth J. Cabraser, Esq. Robert J. Nelson, Esq. Sarah R. London, Esq. Wilson M. Dunlavey, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956 1000 Facsimile: (415) 956 1008 - and - Gretchen Freeman Cappio, Esq. Daniel Mensher, Esq. Juli Farris, Esq. Matthew J. Preusch, Esq. Lisa Faye Petak, Esq. KELLER ROHRBACK L.L.P. 1201 Third Ave., Suite 3200 Seattle, WA 98101 Telephone: (206) 623 1900 Facsimile: (206) 623 3384 - and - A. Barry Cappello, Esq. Leila J. Noel, Esq. Lawrence J. Conlan, Esq. David Cousineau, Esq. CAPPELLO & NOEL LLP 831 State Street Santa Barbara, CA 93101-3227 Telephone: (805) 564 2444 Facsimile: (805) 965 5950 - and - William M. Audet, Esq. Ling K. Kuang, Esq. AUDET & PARTNERS, LLP 711 Van Ness Avenue, Suite 500 San Francisco, CA 94102-3275 Telephone: (415) 568 2555 Facsimile: (415) 568 2556 POSTMATES INC: Hit with TCPA Class Action Lawsuit ------------------------------------------------- Wadi Reformado, writing for Northern Calofirnia Record, reports that a Los Angeles County individual claims that a delivery driving service company unlawfully sent him spam text messages. Jonathan Payton filed a complaint on behalf of all others similarly situated on June 20 in the U.S. District Court for the Central District of California against Postmates Inc. and Does 1 through 10 alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that he suffered damages from receiving several unwanted text messages from the defendant in September 2016. The plaintiff states he was never a customer of the defendant. The plaintiff holds Postmates Inc. and Does 1 through 10 responsible because the defendants allegedly sent several spam messages to the plaintiff's cellular telephone without his permission. The plaintiff requests a trial by jury and seeks statutory damages, injunctive relief and any other relief as the court deems just. He is represented by Todd M. Friedman, Esq. -- tfriedman@toddflaw.com -- Meghan E. George and Adrian R. Bacon of The Law Offices of Todd M. Friedman P.C. in Woodland Hills. U.S. District Court for the Central District of California case number 2:17-cv-04551 [GN] PRETIUM RESOURCES: Martin Appeals Ruling in Securities Suit ----------------------------------------------------------- Gary Martin, Sandra Lee Reyes-Troyer and Michael Yeo, three of the Plaintiffs in the lawsuit titled In re PRETIUM RESOURCES INC. SECURITIES LITIGATION, Case No. 13-cv-7552, in the U.S. District Court for the Southern District of New York (New York City), filed an appeal from a District Court memorandum & opinion dated June 13, 2017, and District Court judgment dated June 14, 2017. The appellate case is captioned as In re PRETIUM RESOURCES INC. SECURITIES LITIGATION, Case No. 17-2135, in the United States Court of Appeals for the Second Circuit. As previously reported in the Class Action Reporter on June 20, 2017, Judge Vernon S. Broderick dismissed the case because the Plaintiffs failed to allege the requisite scienter needed to plead a claim of securities fraud under the Securities Exchange Act. Lead plaintiffs Gary Martin and Sandra Lee Reyes Troyer, and Plaintiff Michael Yeo claim that the Defendants Pretium and three individual Pretium officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and the United States Securities and Exchange Commission's corresponding rule, 17 C.F.R. Section 240.10b-5. They are suing on behalf of a putative class of persons who purchased common stock of Pretium between June 11, 2013 and Oct. 22, 2013, and retained such shares until after the Class Period ended. They allege that Pretium's stock price was artificially inflated during that period as a result of material, uncorrected misstatements, and that they were damaged as a result. Aside from the Plaintiffs-Appellants, the other Plaintiffs are Pretium Group, Randall Damgar, Dennis P. Sweeney, Martin Mayer, Diana Garcia, and Petitioner Tim Kosowski, individually and on behalf of all others similarly situated. Aside from the Defendants-Appellees, the other Defendants are Joseph J. Ovsenek, John Smith, Ross Mitchell, Tom S.Q. Yip and Silver Standard Resources Inc.[BN] Plaintiffs-Appellants Michael Yeo, Gary Martin and Sandra Lee Reyes-Troyer are represented by: Jeremy Alan Lieberman, Esq. POMERANTZ LLP 600 3rd Avenue New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com Defendants-Appellees Robert Allan Quartermain, Kenneth C. McNaughton, Pretium Resources Inc. and Peter Adrian Johan De Visser are represented by: Daniel J. Kramer, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3000 Facsimile: (212) 492-0020 E-mail: dkramer@paulweiss.com PRIMESOURCE HEALTH: "Pfefferkorn" Class Certification Bid Denied ---------------------------------------------------------------- In the lawsuit captioned Erin Pfefferkorn, et al., the Plaintiff, v. PrimeSource Health Group LLC, et al., the Defendants, Case No. 1:17-cv-01223 (N.D. Ill.), the Hon. Judge John Robert Blakey entered an order denying Plaintiff's motion to certify class without prejudice. According to the docket entry made by the Clerk on July 12, 2017, Defendant's motion to dismiss is denied without prejudice. The Defendant's motion for leave to file answer, instanter is denied as moot. Plaintiff's motion to amend complaint is granted. The Amended complaint shall be filed as a separate document on or before July 14, 2017. Notice of voluntary dismissal is moot. Motion hearing set for July 13, 2017 is stricken. Another status hearing is set for July 20, 2017 at 9:45 a.m. in Courtroom 1725. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=AKitoQNs QUADRANT 4: Bragar Eagel Files Class Action Lawsuit --------------------------------------------------- Bragar Eagel & Squire, P.C. announces that a class action lawsuit has been filed in the U.S. District Court for New Jersey on behalf of all persons or entities who purchased or otherwise acquired Quadrant 4 System Corporation (OTC: QFOR) securities between August 14, 2012 and June 30, 2017 (the "Class Period"). Investors have until September 4, 2017 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On November 30, 2016, the U.S. Department of Justice announced that it was charging then-current CEO Nandu Thondavadi over actions related to the Company's SEC filings. Following this news, on December 1, shares of QFOR fell $0.16, or over 84%, to close at $0.03 per share. On June 30, 2017, the SEC announced further charges against Thondavadi and the Company's CFO, Dhru Desai. Following this news, shares of QFOR fell $0.008, or 40%, to close at $0.012 per share. The Complaint alleges that throughout the Class Period, the Company made false and/or misleading statements and/or failed to disclose that: (1) Defendants Thondavadi and Desai engaged in an accounting fraud scheme that misled investors; (2) Defendants Thondavadi and Desai stole more than $4 million from the Company; (3) Defendants Thondavadi and Desai caused the Company to understate its liabilities and inflate its revenues and assets and evaded scrutiny by lying to the Company's auditors and providing them with forged and doctored documents; and (4) as a result, Defendants' public statements were materially false and misleading at all relevant times. If you purchased or otherwise acquired Quadrant 4 securities during the Class Period and suffered a loss or continue to hold shares purchased prior to the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. is a New York-based law firm concentrating in commercial and securities litigation. For additional information concerning the Quadrant 4 System Corporation lawsuit, please go to http://www.bespc.com/qfor. [GN] REAL TIME: Placeholder Motion for Class Certification Filed ----------------------------------------------------------- In the lawsuit titled ANNE O'BOYLE, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. REAL TIME RESOLUTIONS, INC., the Defendant, Case No. 2:17-cv-00957-LA (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class, appointing the Plaintiff as its representative, and appointing Ademi & O'Reilly, LLP as its Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). As this motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs contend. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3SIJOTBq The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482 8000 Facsimile: (414) 482 8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com REMINGTON ARMS: AG Urges Appeals Court to Overturn CA Settlement ---------------------------------------------------------------- Kathy Welsh, writing for Hudson Valley News Network, reports looking to hold Remington responsible for the harm caused by the defective triggers on many of its rifles, Attorney General Eric Schneiderman announced that he is urging the U.S. Court of Appeals for the Eighth Circuit to overturn a class action settlement arranged by the gun manufacturer. Attorney General Schneiderman is part of a coalition of 14 Attorneys General urging the reversal. As reported by 60 Minutes and CNBC, more than 7.5 million Remington rifles are prone to accidentally fire without a trigger pull, a defect that already has resulted in numerous deaths and other serious bodily injuries. Despite these ongoing risks, under the settlement, fewer than 25,000 (0.3%) of the defective guns are expected to be repaired. "The issue at hand here isn't a simple product defect -- it's a fundamental flaw that has already claimed lives, and continues to put families at risk," said Attorney General Schneiderman. "There are as many as 7.5 million potentially defective rifles; yet under this settlement, just 0.3% of them will be fixed. We urge the court to reverse this settlement, and protect the lives of families in New York and around the country." In an amicus brief, the attorneys general criticize the settlement with Remington because it unfairly terminates valuable legal claims for the rifle owners while leaving consumers and the public at ongoing risk of death or injury. Attorneys General have a responsibility to protect consumer class members under the Class Action Fairness Act ("CAFA"), which specifically establishes a role for Attorneys General in the approval process for class action settlements. Although Remington acknowledges that there is a simple replacement for the defective triggers, as many as 7.5 million guns will remain unrepaired because many owners were not given legally required notice of the settlement. Even when notice was received, owners were not properly warned of the serious and ongoing risk that their guns can unexpectedly fire without a trigger pull. Documents show that Remington has been aware of the defect for decades and has declined to fix it, for reasons that include potential exposure to personal injury liability and the cost of alternative trigger designs. In the intervening time period, there have been hundreds of reports of personal injuries, including deaths, as well as of significant property damage. The brief was led by Massachusetts and joined by attorneys general from New York, California, the District of Columbia, Hawaii, Illinois, Maine, Maryland, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. In total, the Attorneys General represent states where more than two million potential defective rifles are present. According to Public Justice's website: -- The Remington Model 700 and a dozen other Remington rifles can fire -- and maim and kill people -- when no one pulls the trigger. -- These rifles have killed or injured hundreds of people without any trigger pull. -- Remington knew its trigger was defective for decades, but kept the documents proving that sealed. -- Public Justice helped get the documents unsealed and is making them public. -- In a proposed national class action settlement, Remington has now agreed to replace the triggers for free in these rifles -- Remington Model 700, Seven, Sportsman 78, 673, 710, 715, and 770 -- for any gun owner who files a claim. -- All owners of these rifles should stop using them and file a claim to protect themselves, their family, friends and loved ones. -- All owners of three other Remington rifles with these triggers -- Models 600, 660, and XP-100 -- should stop using them, get them repaired for free through Remington's 1979 recalls of Models 600 and 660 and Model XP-100 rifles, and consider filing a claim for the compensation the proposed settlement provides. -- All owners of three other Remington rifles with these triggers -- Models 721, 722, and 725 -- should stop using them, unless you get the defective trigger fixed, and consider filing a claim for the compensation the proposed settlement provides. [GN] ROYAL BANK: Instalment Warrants Buyers File AU$100MM Class Suit --------------------------------------------------------------- John Rolfe, writing for Daily Telegraph, reports all Rebecca Dillon wanted was an investment property. Instead she ended up in "unlisted rolling instalment warrants". Now the PE teacher and as many as 250 other people are preparing to go to trial against Royal Bank of Scotland (RBS) in a class action over combined losses of as much as AUD100 million. Ms. Dillon followed her parents into the investment. Their finances were devastated, while other relatives and friends were totally "wiped out", she said. "I want to set them free," Ms. Dillon, the lead applicant in the case, said. In 2007, financial planner Steve Navra told her she couldn't afford an investment property and instead recommended she and her husband borrow AUD200,000 against their western Sydney home plus another AUD200,000 via a margin loan and put the money into managed funds run by Mr. Navra. Soon after they increased the margin loan by AUD105,000. But then the Navra fund units plunged in value. To avoid a margin call, Mr. Navra advised selling all the units, repaying the margin loan and investing what remained in RBS warrants. According to documents filed in the Federal Court, Mr. Navra allegedly said the warrants offered a non-recourse loan, "insurance against any downside" and would allow claimants to "ride out the storm" of the GFC. They were "safer than banks" and suitable. The action claims the warrants were actually limited recourse "with the claimants still . . . exposed to the loss of their equity". It is alleged RBS then replaced the initial warrants with a new set containing a "stop loss feature . . . protecting itself against further falls in the market and transferring that risk" to the claimants. Navra Financial Services (NFS) went into liquidation in 2011 and he declared bankruptcy in 2012. The class action alleges NFS and RBS were "linked credit providers" making them "jointly and severally liable to the claimants for the amount of loss or damage suffered as a result of the breaches of contract and misrepresentations by NFS". RBS is accused of breaching warranties covering "due care and skill" and "fitness for purpose", as well as misleading and deceptive conduct and unconscionable conduct. In the defence RBS has filed it denies the allegations. It did not respond to requests for comment on the case. Ms. Dillon's lawyer Shine principal Vicky Antzoulatos said it had 130 clients who had lost a combined AUD50 million and there were another 120 eligible to join the action. She urged people who bought instalment warrants via Mr Navra to come forward. "The majority of our clients are unsophisticated investors," Ms Antzoulatos said. "Some of them had never invested in shares in their entire lives. Some were retirees who put their lifesavings into these products. They've lost the entirety." Shine filed proceedings against RBS in 2014. The Federal Court recently scheduled a four-week hearing starting in March next year. [GN] SALOV NORTH: Frank Appeals Ruling in "Kumar" Suit to 9th Circuit ---------------------------------------------------------------- Objector Theodore H. Frank filed an appeal from a court ruling in the lawsuit entitled Rohini Kumar, et al. v. Salov North America Corp., Case No. 4:14-cv-02411-YGR, in the U.S. District Court for the Northern District of California, Oakland. As previously reported in the Class Action Reporter on July 19, 2017, Judge Yvonne Gonzalez Rogers dismissed with prejudice the case pursuant to the Court's Order Granting Final Approval of Class Settlement. The appellate case is captioned as Rohini Kumar, et al. v. Salov North America Corp., Case No. 17-16405, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 10, 2017; -- Transcript is due on September 11, 2017; -- Appellant Theodore H. Frank's opening brief is due on October 19, 2017; -- Appellees Rohini Kumar and Salov North America Corp.'s answering brief is due on November 20, 2017; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objector-Appellant THEODORE H. FRANK is represented by: William Isaac Chamberlain, Esq. COMPETITIVE ENTERPRISE INSTITUTE 1310 L Street NW, 7th Floor Washington, DC 20005 Telephone: (202) 331-2255 E-mail: will.chamberlain@cei.org Plaintiff-Appellee ROHINI KUMAR, an individual, on behalf of herself, the general public and those similarly situated, is represented by: Adam Joshua Gutride, Esq. Seth Adam Safier, Esq. Kristen G. Simplicio, Esq. GUTRIDE SAFIER LLP 835 Douglass Street San Francisco, CA 94114 Telephone: (415) 271-6469 Facsimile: (415) 449-6469 E-mail: adam@gutridesafier.com seth@gutridesafier.com Kristen@gutridesafier.com - and - Jeffrey D. Kaliel, Esq. Hassan Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: jkaliel@tzlegal.com hzavareei@tzlegal.com Defendant-Appellee SALOV NORTH AMERICA CORP. is represented by: Sean Ashley Commons, Esq. Mark E. Haddad, Esq. Nitin Reddy, Esq. Collin Partington Wedel, Esq. SIDLEY AUSTIN LLP 555 West 5th Street Los Angeles, CA 90013 Telephone: (213) 896-6010 Facsimile: (213) 896-6600 E-mail: scommons@sidley.com mhaddad@sidley.com nreddy@sidley.com cwedel@sidley.com SAMARITAN VILLAGE: Beckett Seeks Unpaid Wages under Labor Law ------------------------------------------------------------- JAMES BECKETT, on behalf of himself and all others similarly situated, the Plaintiff, v. SAMARITAN VILLAGE, INC. d/h/a SAMARITAN DAYTOP VILLAGE, INC., the Defendant, Case No. 704110/2017 (N.Y. Sup. Ct., July 12, 2017), seeks to recover award for unpaid straight or agreed upon wages, unpaid overtime, and pre- and post-judgment interest as allowed by law; damages for each workday that Defendant failed to provide accurate wage statement; award of declaratory and injunctive relief as the Court deems necessary and proper to prevent against future violations of New York Labor Law; award for attorneys' fees and costs pursuant to New York Labor Law. The Plaintiff brings this action on behalf of himself and on behalf of two subclasses of current and former employees employed by Samaritan Village, Inc. who were not paid for work done during meal breaks and before the start of their shift. According to the complaint, the Defendant has engaged and continues to engage in illegal and improper wage practices including requiring Housing Specialists to perform work without compensation during meal breaks; requiring Housing Specialists to perform work without compensation before the start of their shift; requiring Housing Specialists to perform work without compensation from home and on days off; failing to pay Housing Specialists at their straight or agreed upon rate for all hours worked under 40 hours in a week; failing to pay Housing Specialists overtime of time and one-half their regular rate of pay for all hours worked over 40 in a week; and failing to provide accurate wage statements. Samaritan Village operates an independent, residential, and assisted living retirement community.[BN] The Plaintiff is represented by: THE LAW FIRM OF LOUIS GINSBERG, P.C. 1613 Northern Boulevard Roslyn, NY 11576 Telephone: (516) 625 0105 The Defendant is represented by: JACKSON LEWIS LLP 58 South Service Rd., Ste. 410 Melville, NY 11747 Telephone: (631) 247 0404 SATELLITE UNLIMITED: Overtime Pay Sought in "Dorman" Labor Suit --------------------------------------------------------------- Charles Dorman, individually and on behalf of all others similarly situated, Plaintiffs, v. Satellite Unlimited LLC, an Illinois corporation, Defendant, Case No. 1:17-cv-02163 (N.D. Miss., June 23, 2017), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act. Defendant provides in-home entertainment and communication services throughout the Southeast for DISH subscribers where Plaintiff worked as satellite technician assigned to the Greenwood, Mississippi area. He claims to be denied overtime pay and worked through meal/rest periods. [BN] Plaintiff is represented by: Christopher W. Espy, Esq. MORGAN & MORGAN, PLLC 4450 Old Canton Road, Suite 200 Jackson, MS 39211 Telephone: (601) 718-2087 Facsimile: (601) 718-2102 Email: cespy@forthepeople.com SCRIPPS RANCH: Class Action Mulled Over Botched AP Tests -------------------------------------------------------- Jared Aarons, writing for KGTV, reports that some parents of students at Scripps Ranch High School may file lawsuits over botched AP Tests at the school. The San Diego Unified School District says almost 900 tests were administered improperly, and the College Board invalidated their scores. That means about 500 students will have to retake the tests to get credit for them. "It's demoralizing," said Keren Stashower, whose son Noah will have to retake his AP psychology test. "People need to step up and take responsibility for their mistakes," she told 10News, "not leave this up to the kids to put the energy into it." In an email to 10News, several parents said they might file an injunction against the College Board to let the original test scores stand until an investigation is completed. They're also discussing a class-action lawsuit. One parent, who asked to remain anonymous, wrote of the monetary aspect, saying: "My daughter has to retake the AP English test . . . the college she hopes to attend would have accepted it in place of her taking an English Class. At about $1,300 per credit, that's real money." The school district says students taking the tests were sitting too close together and partitions were put in between them. Both of those things are against AP testing rules. While the College Board found no evidence of cheating, they still decided to invalidate the tests. Parents feel it punishes the students for the school's mistake, and they also claim that the school knew the set up violated the rules. One parent told 10News that the school had complained to the district for years about compliance issues, but SD Unified did nothing to solve it. The parents were set to bring up these claims at a meeting at Marshall Middle School at 6:00 p.m. on July 5. [GN] SEMACONNECT INC: Placeholder Bid for Class Cert. Withdrawn ---------------------------------------------------------- In the lawsuit captioned E & G, INC., the Plaintiff, v. SEMACONNECT INC., et al., the Defendants, Case No. 2:17-cv-02774 (S.D. W.Va.), the Hon. Judge Thomas Johnston entered an order withdrawing a "Placeholder" Motion for class certification. The Court directs the Clerk to send a copy of this Order to counsel of record and any unrepresented party. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=qKdVmGxS SINOVAC BIOTECH: Faces "Wu" Suit in New York Supreme Court ---------------------------------------------------------- A class action lawsuit has been filed against Sinovac Biotech Ltd. The case is captioned as HAOQUAN WU, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. WEIDONG YIN, SIMON ANDERSON, YUK LAM LO, KENNETH LEE, MENG MEI, SINOVAC BIOTECH LTD., SINOVAC (CAYMAN) LIMITED and SINOVAC AMALGAMATION SUB LIMITED, the Defendant, Case No. 654745/2017 (N.Y. Sup. Ct., July 12, 2017). Sinovac is a biopharmaceutical company that focuses on the research, development, manufacture and commercialization of vaccines that protect against human infectious diseases.[BN] The Plaintiff is represented by: Joshua M. Lifshitz, Esq. LIFSHITZ & MILLER LLP 821 Franklin Avenue, Suite 209 Garden City, NY 11530 Telephone: (516) 493 9780 Facsimile: (516) 280 7376 E-mail: jml@jlclasslaw.com SINOVAC BIOTECH: Khang & Khang Files Securities Class Suit ---------------------------------------------------------- Khang & Khang LLP (the "Firm") on July 5 disclosed that a securities class action lawsuit against Sinovac Biotech Ltd. ("Sinovac" or the "Company") (Nasdaq: SVA). Investors who purchased or otherwise acquired shares between April 30, 2013 and May 16, 2017 inclusive (the "Class Period"), should contact the firm in advance of the September 1, 2017 lead plaintiff motion deadline. If you purchased Sinovac shares during the Class Period, please contact Joon M. Khang, Esquire, of Khang & Khang LLP, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com. There has been no class certification in this case yet. Until certification occurs, you are not represented by an attorney. You may also choose to take no action and remain a passive class member. According to the Complaint, throughout the Class Period, Sinovac made false and/or misleading statements and/or failed to disclose: that Chairman and Chief Executive Officer Weidong Yin bribed a member of the Chinese Food and Drug Administration to assist Sinovac's vaccine clinical trial and approval; that such conduct would subject the Company to heightened regulatory scrutiny; thus, Sinovac's public statements were materially false and misleading at all relevant times. When this information reached the public, shares of Sinovac declined in value materially, which caused investors harm according to the Complaint. If you wish to learn more about this lawsuit, or if you have any questions concerning this notice or your rights, please contact Joon M. Khang, Esquire, a prominent litigator for almost two decades, by telephone at (949) 419-3834, or by e-mail at joon@khanglaw.com. [GN] SKY CHEFS: Polsinelli Discusses FCRA Class Action Ruling -------------------------------------------------------- Brian K. Morris, Esq. -- bmorris@polsinelli.com -- of Polsinelli PC, in an article for The National Law Review, reports that the Northern District of Texas weighed in on the proper application of Article III standing requirements in light of the Supreme Court's 2016 decision in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), and delivered a win to employers in Fair Credit Reporting Act (FCRA) cases. In Dyson v. Sky Chefs, Inc., 2017 WL 2618946 (N.D. Tex. June 16, 2017), the court held that the plaintiff in a putative class action who alleged the improper inclusion of "extraneous" information in a FCRA disclosure, lacked Article III standing. The employer's document did not "consist solely of the disclosure" because it contained: (a) an "ongoing authorization" clause; (2) state and municipal law notices; (3) a summary of rights; and (4) a legal disclaimer. While the employer's disclosure was not a standalone document (as required by the statute) it provided the plaintiff with all of the statutorily-required information. The employer moved to dismiss the action, contending that the inclusion of extraneous information was a procedural rather than a substantive violation and thus did not constitute injury in fact. The court agreed, concluding that the plaintiff did not allege a concrete informational or privacy-based injury. In reaching this conclusion, the court distinguished the substantive right to information from the procedural right to receive it in a specified format, and made clear that the allegations in Dyson fell squarely in the latter box: "Plaintiff does not allege that he did not receive a disclosure or that he failed to understand it, he just attacks the fact that it wasn't on its own sheet of paper. Where . . . plaintiffs do not allege that they did not see the disclosure, or were distracted from it, the allegations amount to no more than a bare procedural violation of the stand-alone requirement. . . . Plaintiff's allegations therefore do not confer standing on an informational injury theory." Id. at *7 (internal citations and quotation marks omitted). The court also rejected the contention that the employer obtained the background check with "no legal right to do so" and thus caused a privacy-based injury. Embracing the principle that violating the standalone disclosure requirement necessarily renders the background check unauthorized would "negate the entire procedural/substantive distinction" articulated in Spokeo. According to the court, the existence of a privacy and informational injury in a FCRA case turns on the same central question: whether the plaintiff received the requisite information (even if provided in an improper format) prior to knowingly authorizing the background check. Because the plaintiff signed the authorization and did not claim ignorance regarding its content or import, he did not allege an invasion of privacy. What This Means For Employers Courts throughout the country continue to wrestle with the impact of the Supreme Court's decision in Spokeo and are reaching divergent conclusions. Indeed, the Dyson court explicitly declined to follow a recent contrary decision from a Virginia federal court. Because of the unsettled nature of the law and the proliferation of high-dollar FCRA class actions predicated on highly-technical statutory violations, employers should evaluate their FCRA compliance by: -- Updating FCRA documents, including disclosures, authorizations, and state and locality-specific notices. -- Training managers and human resources professionals regarding background check processes such as how to present information to applicants and employees (e.g., disclosures, authorizations, etc.) and providing appropriate notices when taking an adverse action based on information obtained in a background check. [GN] SOUTHERN GLAZER'S: Scott Cole & Associates Files Class Action ------------------------------------------------------------- A nationwide putative class action was filed on July 5, 2017 by Scott Cole & Associates, APC and Wakeford Gelini against alcohol distribution giant Southern Glazer's Wine and Spirits. The action brings numerous claims of fraud, unfair competition and violations of state and federal laws significantly impacting the liquor industry. If successful, the case could substantially compensate victims going back years. "Southern's clients trusted they'd be treated right -- not charged for liquor they never bought, not forced to buy what they didn't need. The sheer number of potential violations is jaw-dropping," reports Scott Edward Cole -- scole@scalaw.com -- the lead lawyer on the case. "It's time for the company to answer for these charges and make this right." That's what the Plaintiffs' lawyers seek to achieve and, according to the company's admissions, it has the ability to comply. Southern Glazer's is the largest liquor distributor in the nation, having done business for many years in almost every state. "Particularly as an industry leader, Southern is bound to act responsibly toward its clients. I am astounded by the scope of the allegations," says Kelley Gelini, another principal attorney on the case. The lawsuit is entitled Nguyen, et al. v. Southern Glazer's Wine and Spirits, LLC, et al. (U.S.D.C., Northern District Case # 5:17- cv-03805-HRL). Scott Cole & Associates, APC has served for 25 years as one of California's premiere class action law firms, dedicating itself to large scale consumer and workers' rights litigation. For more information about its practice and cases, visit it at www.scalaw.com, by email at info@scalaw.com, or by calling (510) 891-9800. Wakeford Gelini is a civil litigation law firm with offices in San Francisco and Marin County, California. Wakeford Gelini can be reached at (415) 578-3510 or on-line at www.wakefordlaw.com. [GN] SUMMONS PIZZA: "Mizquiri" Suit Seeks to Recover Unpaid Wages ------------------------------------------------------------ Jesus Mizquiri and Brigido Galvez, on behalf of themselves, FLSA Collective Plaintiffs and the Class v. Summons Pizza By Certe, LLC d/b/a Pizza By Certe, Goldlyn LLC d/b/a Certe, and Edward Sylvia, Case No. 155885/2017 (N.Y. Sup. Ct., June 28, 2017), seeks to recover from Defendants unpaid minimum wages, unpaid overtime, illegally retained tips, unpaid compensation due to off the clock work, liquidated damages and attorneys' fees and costs pursuant to the Fair Labor Standards Act. The Defendants own and operate Pizza By Certe restaurant at 132 East 56th Street, New York, New York 10022. [BN] The Plaintiff is represented by: Anne Melissa Seelig, Esq. C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1124 Facsimile: (212) 465-1181 E-mail: anne@leelitigation.com cklee@leelitigation.com TAHOE RESOURCES: Lundin Law Files Securities Class Action Suit -------------------------------------------------------------- Lundin Law PC, a shareholder rights firm, disclosed the filing of a class action lawsuit against Tahoe Resources Inc. concerning possible violations of federal securities laws between March 12, 2015 and July 5, 2017 inclusive (the "Class Period"). Investors who purchased or otherwise acquired shares during the Class Period should contact the firm prior to the September 5, 2017 lead plaintiff motion deadline. To participate in this class action lawsuit, you can call Brian Lundin, Esquire, of Lundin Law PC, at 888-713-1033, or e-mail him at brian@lundinlawpc.com. No class has been certified in the above action yet. Until a class is certified, you are not considered represented by an attorney. You may also choose to do nothing and be an absent class member. According to the Complaint, throughout the Class Period, Tahoe made false and/or misleading statements and/or failed to disclose: that consultation obligations relating to the permitting of the Escobal mining license were not met; that the Escobal mining license is subject to suspension; and that as a result, the Company's public statements were materially false and misleading at all relevant times. On July 5, 2017, Tahoe disclosed that the Supreme Court of Guatemala issued a provisional decision suspending the Escobal mining license of its subsidiary Minera San Rafael, in connection with an action brought by CALAS against Guatemala's Ministry of Energy and Mines ("MEM"). CALAS alleges that MEM violated the Xinca Indigenous people's right of consultation in advance of granting the Escobal mining license. When this information was released, shares of Tahoe fell in value materially, which caused investors harm according to the Complaint. Lundin Law PC was founded by Brian Lundin, a securities litigator based in Los Angeles dedicated to upholding shareholders' rights. [GN] Brian Lundin, Esq. Lundin Law PC Telephone: 888-713-1033 Facsimile: 888-713-1125 E-mail: brian@lundinlawpc.com TAILORMADE EXECUTIVE: "Edwards" Alleges Verbal Abuse, Unpaid OT ---------------------------------------------------------------- Jane Edwards, Kiara Mosley, Zachary Ortiz, Adam Kerns, Cathie Patrick, Candace Stone and Mary Grace Howard, individually and on behalf of those similarly situated to themselves, Plaintiffs, v. Tailormade Executive, LLC and James Larson, Defendants, Case No. 1:17-cv-02355 (N.D. Ga., June 23, 2017), seeks out-of-pocket losses as well as back pay in an amount equal to the sum of wages, salary, employment benefits and other compensation denied together with interest thereon, statutory damages and penalties, compensation for mental and emotional damages, liquidated and punitive damages, reasonable attorney's fees and all other fees and costs associated with this action, prejudgment interest and such other and further relief under the Fair Labor Standards Act. Plaintiffs were classified as exempt from overtime, even though their primary duties were performing clerical and administrative tasks. They claim to be subjected to verbal abuse, often with racist remarks. Edwards and Howard, in particular, were sexually harassed. Ms. Mosley, an African-American, asserts claims of racial discrimination and retaliation, intentional infliction of emotional distress, tax fraud, and minimum wage and overtime violations. Plaintiffs were eventually terminated for airing out their complaints. TailorMade is engaged in the business of leadership coaching. [BN] The Plaintiff is represented by: James M. McCabe, Esq. THE MCCABE LAW FIRM, LLC 3355 Lenox Road, Suite 750 Atlanta, GA 30326 Office: (404) 250-3233 Fax: (404) 400-1724 Email: jim@mccabe-lawfirm.com TAMKO BUILDING: Stay Lifted in Class Action Lawsuit --------------------------------------------------- Jordan Larimore, writing for The Joplin Globe, reports that the stay that had halted a class-action lawsuit against TAMKO Building Products in Jasper County Circuit Court was officially lifted on July 6. The step was a procedural one but now formally allows the suit to move forward. The U.S. Supreme Court in May denied a petition for certiorari by the Joplin company, deferring to findings in the Jasper County Circuit Court and Missouri's Southern District Court of Appeals that the suit can be filed against the company. TAMKO had contended that the plaintiffs, Lee Hobbs, of Elk Creek, and Jonesburg United Methodist Church, agreed that any customer complaints would be resolved through private arbitration because of an agreement printed on the packaging of TAMKO shingles both parties purchased. The stay in circuit court, ordered by Judge Gayle Crane in November 2016, was pending the outcome of TAMKO's petition, of which the Supreme Court notified the Circuit Court on June 1. The stay had not formally been lifted, though, until this week. Deputy Circuit Clerk Lori Shellenbarger said the attorneys for each party will determine what happens next in the case. Crane will not issue orders or schedule hearings without filings first being made by either side's attorneys, she said. "Once the attorneys file whatever they need to file, then we'll proceed," Shellenbarger said. As of July 7 afternoon, neither party's attorney had made recent filings requesting hearings or other motions. Attempts to reach those attorneys on July 7 were not successful. Repeated messages left with two of the attorneys representing Hobbs and Jonesburg, Eric Holland, Esq. -- ehooland@allfela.com -- and Seth Crompton, Esq. -- scrompton@allfela.com -- of Holland Law Firm in St. Louis, have gone unanswered. Royce Deryl Edwards, Esq. -- dmedwards@liberty.edu -- of Liberty School of Law, an attorney representing TAMKO, also could not be reached on July 7. Representatives of TAMKO also did not return messages seeking comment sent on July 7. Attempts to reach Hobbs directly were also not successful. After the Supreme Court's denial of TAMKO's petition, president and CEO David Humphreys indicated he may seek to move the company out of Missouri, saying in a statement that TAMKO "will need to reconsider our presence in Missouri versus other states where the rule of law outweighs the rule of trial lawyers." The company has not responded to repeated requests for clarification on Humphreys' plans regarding TAMKO's future in the state. The suit, filed in 2014, alleged TAMKO sold defective shingles that failed before their guaranteed 30-year warranty. The shingles, the suit said, began "warping, curling and beginning to fail," which then allegedly led to structural problems at the church and Hobbs' house by allowing moisture to penetrate the roof. In addition to contending the arbitration agreement required disputes to be resolved privately, TAMKO said the shingles became damaged because of normal weather damage and improper installation. The warranty included an arbitration provision that read, "Mandatory Binding Arbitration: Every claim, controversy, or dispute of any kind whatsoever including whether any particular matter is subject to arbitration . . . between you and TAMKO . . . relating to or arising out of the shingles or this limited warranty shall be resolved by final and binding arbitration, regardless of whether the action sounds in warranty, contract, statute or any other legal or equitable theory." The suit had been on hold for more than a year while the question of whether it could even be brought was examined in courts. Both the Jasper County Circuit Court in 2014 and Missouri's Southern District Court of Appeals in 2016 disagreed with TAMKO's contention, and July 3's Supreme Court denial means the suit's issues can now be addressed in Jasper County Circuit Court. TAMKO was founded in Joplin in 1944. The company has operations on High Street and Range Line Road, and its headquarters at 220 W. Fourth St. In 2014, it also purchased the Commerce Bank Corporate Center at 211 S. Main St. to be remodeled for TAMKO use. The company has a plant in Lamar, as well as plants and operations in 10 other states, and it operates in all 50 states. [GN] TARRANT COUNTY: "Cobb" Sues Over Unpaid Overtime Pay ---------------------------------------------------- Brandon Cobb, Individually and on behalf of all others similarly situated Plaintiff, v. Tarrant County Tools, Inc. and Aldo G. Rayos, Defendants, Case No. 4:17-cv-00517, (N.D. Tex., June 23, 2017), seeks to recover overtime compensation, liquidated damages, attorneys' fees, and costs, pursuant to the provisions of Section 216(b) of the Fair Labor Standards Act of 1938. Defendants provides fracking and other oilfield services related to natural gas production where Cobb worked as an operator. [BN] Plaintiff is represented by: Clif Alexander, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Tel: (361) 452-1279 Fax: (361) 452-1284 Email: clif@a2xlaw.com TOKYO ELECTRIC: Trial Begins in Fukushima Class Action ------------------------------------------------------ Nature reports that three former executives of the energy company that runs the Fukushima Daiichi nuclear power plant in Japan have pleaded not guilty to criminal charges related to the facility's 2011 meltdown. The former chairman and two ex-vice-presidents of the Tokyo Electric Power Company, whose trial began on June 30, are accused of failing to take action to prevent the nuclear disaster, which was triggered by a tsunami. The case is the first to allege that the company could have prevented the accident; it blames the trio for the death of some 40 critically ill patients who were at a local hospital at the time but died after being evacuated. The class-action group bringing the charges points to previous reports showing that a large earthquake was expected that could cause damage to the plant's reactors. The executives argue that they could not have anticipated such damage. [GN] UBER TECHNOLOGIES: Drivers Challenge Class Action Dismissal Bid --------------------------------------------------------------- Linda Chiem, writing for Law360, reports that a driver who launched a proposed class action alleging Uber breached its contract with drivers by stiffing them on fares with its so-called upfront pricing model urged a California federal judge on July 3 to reject the ride-hailing giant's bid to toss the suit, saying the agreement at issue is unambiguous. Plaintiff Martin Dulberg filed a brief opposing Uber Technologies Inc.'s recent motion to dismiss his suit alleging that drivers have been shortchanged on fares -- a percentage of which they're promised in their driver agreements with the company -- after Uber switched to a so-called upfront pricing model in the fall of 2016. Mr. Dulberg said he and Uber are currently bound by the company's Dec. 11, 2015, technology services agreement, and he insists the language of that agreement backs up his allegations that Uber took a bigger cut of passenger fares than it said it would in the agreement, according to Mr. Dulberg's brief. "Even if the [technology services agreement] allowed Uber to charge passengers an upfront fare and that upfront fare could be different from and higher than the fare determined by the fare calculation (i.e., the only fare in the TSA, the fare that Mr. Dulberg charges and the fare on which Uber's service fee is based), Uber has still breached the TSA because Uber may deduct only its service fee -- 20 percent 'of the fare determined by the fare calculation' -- before remitting the remainder of the upfront fare to Mr. Dulberg," the opposition brief said. Under the upfront pricing model, the ride-hailing giant charges passengers a fare before their ride even begins, but Uber bases that fare on an aggressive and often inflated projection of the distance and time involved in a particular ride, Mr. Dulberg alleged. The driver is entitled to a set percentage of the fare as laid out in the driver agreements, but Uber pays based on a calculation of the distance and time actually driven, which can often be less than what the customer actually paid, allowing Uber to pocket the difference, according to Mr. Dulberg's complaint. Uber moved for dismissal in June, telling U.S. District Judge William Alsup that Mr. Dulberg has misread the agreement and doesn't even have a valid case. "Plaintiff's claims rest on a misreading of the agreement," Uber said in its motion to dismiss. "The contract itself is before this court, and its written terms provide no support for plaintiff's contentions. Adopting plaintiff's interpretation would alter the bargain that the parties actually made." Uber insisted that Mr. Dulberg's suit should be dismissed for failure to state a claim because his breach of contract allegations don't even square with the actual provisions in his contract, according to the motion to dismiss. "Contrary to the mischaracterization of the agreement set forth in the complaint, the agreement itself does not base driver payments on 'whatever money passengers pay' or get 'charged' (whether 'upfront' or at the 'end of the ride')," Uber says. "Plaintiff's contention -- that the 'fare' assessed to riders, or paid by riders (whether upfront or otherwise), constitutes the 'fare' owed to drivers -- is irreconcilable with the contract's actual terms." Uber also said its statement about upfront pricing is a promotional statement addressed to riders who use the service, not to drivers. Furthermore, it does not discuss what portion of the upfront price will be paid to drivers, and it describes some components for calculating the upfront price or "fare" that differ from the fare calculation that produces the fare found in the agreement. Mr. Dulberg, a Raleigh, North Carolina, resident who has been an UberX driver since May 2014 and an Uber Select driver since February 2015 launched the proposed class action in February, claiming Uber drivers are promised that they will be able to retain 80 percent of the fare charged to passengers for UberX rides, but in fact, retain a smaller percentage of the fare. "Defendants, by charging a greater fare to riders than the calculation used to determine payment to drivers, have deprived plaintiff and the class members of the full benefits they are entitled to under the parties' agreements," Mr. Dulberg alleged in the complaint. Mr. Dulberg is represented by Paul B. Maslo and Andrew Dressel of Napoli Shkolnik PLLC. Uber is represented by Jonathan R. Bass -- jrb@coblentzlaw.com -- Susan K. Jamison -- skj@coblentzlaw.com -- Clifford E. Yin -- cyin@coblentzlaw.com -- and Sean P.J. Coyle -- scoyle@coblentzlaw.com -- of Coblentz Patch Duffy & Bass LLP. The case is Dulberg v. Uber Technologies Inc., case number 3:17- cv-00850, in the U.S. District Court for the Northern District of California. [GN] ULTA SALON: Faces Class Action Over Labor Code Violations --------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that an Ulta Salon employee has filed a class action over allegations that she was injured because she was not provided accurate wage statements. Elizabeth Wise filed a complaint on June 23 in the U.S. District Court for the Eastern District of California against Ulta Salon, Cosmetics & Fragrance Inc. and Does 1-100 citing state labor codes. According to the complaint, the plaintiff was hired by Ulta in September 2015 at its Modesto location to work as a hair stylist. The plaintiff holds Ulta Salon, Cosmetics & Fragrance Inc. and Does 1-100 responsible because the defendants allegedly improperly calculated her overtime wage rate, failed to provide paid rest periods and other counts. The plaintiff seeks actual, compensatory, special and general damages; injunctive relief, liquidated damages; all legal fees, interest; and any other relief as the court deems just. She is represented by Robert J. Wasserman -- rwasserman@mayallaw.com -- William J. Gorham -- wgorham@mayallaw.com -- Nicholas J. Scardigli -- nscardigli@mayallaw.com -- and John P Briscoe of Mayall Hurley P.C. in Stockton. U.S. District Court for the Eastern District of California case number 1:17-at-00493 [GN] UNITED STATES: AGs Sue Over Delay of For-Profit College Rules ------------------------------------------------------------- Bill Shackner, writing for Pittsburg Post Gazette, reports that attorneys general from Pennsylvania, 17 other states and the District of Columbia are suing U.S. Education Secretary Betsy DeVos and the U.S. Department of Education over a decision to forestall federal relief that was to take effect July 1 to protect college students from abusive loan practices. The Borrower Defense Rule, finalized last fall after the collapse of for-profit giant Corinthian Colleges, was intended to make institutions accountable for cheating students and taxpayers out of billions of dollars in federal loans. The lawsuit, filed on July 6 in U.S. District Court in Washington, D.C., objects to the department's decision to delay the enhanced protections. "Rolling back student loan protections harms Pennsylvania college students and their families," Pennsylvania Attorney General Josh Shapiro said in announcing he was taking part in the litigation. "With a rising number of students burdened by college loan debt or in default, this is exactly the wrong time for the Department of Education to abdicate its responsibility to protect students from deceptive practices by these for-profit schools," Mr. Shapiro said. "If Secretary DeVos and her department won't protect our college students, I will." Pennsylvania's announcement noted that the commonwealth has more than 200 colleges and universities and trade schools, and about 100 other for-profit educational institutions. The AG's office pointed out as well that Pennsylvania's college graduates carry the third-highest average debt in the nation, $34,798. In response to the lawsuit, agency spokeswoman Elizabeth "Liz" Hill issued a statement that read in part: "With this ideologically driven suit, the state attorneys general are saying to regulate first, and ask the legal questions later . . . "The borrower-defense regulations suffer from substantive and procedural flaws that need to be considered before imposing new burdens on regulated parties that will come at a cost to taxpayers of $14.9 billion in the next 10 years.'' According to Mr. Shapiro, the suit is over borrower protections against improper practices by schools and colleges, including for- profit ones, and also would aid in enforcing state consumer protection laws. The rule would allow student borrowers to be forgiven debt "if they were victims of deceptive practices by their school or college, such as misrepresenting job placement rates at the school or other abusive practices," the AG's office said. Ms.DeVos said earlier this year that the agency would rethink the Borrower Defense Rule and would delay portions of it, according to the AG's office. The AG said she was doing so "without soliciting or receiving any comment from stakeholders or members of the public." The lawsuit asks the court to declare the department's delay unlawful and order the department to implement the Borrower Defense Rule. Along with Mr. Shapiro, the other attorneys general joining the lawsuit include those from Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Minnesota, New Mexico, New York, North Carolina, Oregon, Rhode Island, Washington, Vermont, Virginia and the District of Columbia. [GN] UNITED STATES: Hearing Set in Class Action Against UIA ------------------------------------------------------ Darren Cunningham, writing for FOX 17, reports that a court hearing was scheduled for July 7 in Detroit for a class-action lawsuit against the Unemployment Insurance Agency. Three judges in the Court of Appeals were tasked with deciding whether the case moves forward. Regardless of the outcome, it may head to the state supreme court. The case is Bauserman v. UIA, and it was filed in September 2015. It seeks compensation for damages for the tens of thousands of people wrongly accused of unemployment fraud by the MiDAS computer system. The state seized millions of dollars in the process. Jennifer Lord with Pitt McGehee Law Firm is representing the plaintiffs in this case. The Michigan Attorney General's Office tried to get the case dismissed based on 'governmental immunity'. That term means the state cannot be sued. However, in March 2016, Court of Claims Judge Cynthia Stephens denied that motion and ruled the case must move forward. So the AG's office appealed her decision to the Court of Appeals. Both sides were set to argue their positions on Friday, July 7. Ms. Lord said, "We'll be responding forcefully with our claim that this is a constitutional violation that deprived many workers of their money, of their good credit ratings, forced them into bankruptcies, and we're looking forward to the opportunity to address the Court of Appeals." When reached for comment, the AG's office directed FOX 17 to the UIA which stated it would be inappropriate to comment on pending litigation. [GN] UNITED STATES: Key Hearing Held in Iraqi Immigrants Case -------------------------------------------------------- Steve Garagiola and Derick Hutchinson, writing for ClickonDetroit, report that with the fate of more than 100 Iraqi immigrants hanging in the balance, a key hearing was held on July 5 in federal court. A stay was ordered on the deportation of Iraqis rounded up around the country, but the 14-day period is running out. Both sides returned to court on July 5 to argue over jurisdiction in the case. "The substantial allegations made here are the detainees face extreme, grave consequences (such as) death, persecution and torture," U.S. District Judge Mark Goldsmith said. "Such harm far outweighs any government interest the government may have in proceeding with the removals immediately." Plaintiffs asked the judge to extend the stay of the deportation order while the question of jurisdiction is settled. The plaintiffs want the case heard in federal court as a class-action lawsuit. If the case goes to immigration court, no class action is allowed. The judge could extend the stay an additional two weeks or longer while the first legal question is solved. Family members said those who were detained came to the U.S. legally. Some of them are married to U.S. citizens and have American-born children. Many of them, however, have prior convictions. Under President Trump's immigration policy, the country is cracking down on these immigrants and deporting them. Hundreds of immigrants were arrested during the Immigration and Customs Enforcement roundup. They were taken to a detention center in Youngstown, Ohio, where they will remain during the 14-day period. "As a result of recent negotiations between the U.S. and Iraq, Iraq has recently agreed to accept a number of Iraqi nationals subject to orders of removal," ICE said in a July 3 statement. "As part of ICE's efforts to process the backlog of these individuals, the agency recently arrested a number of Iraqi nationals, all of whom had criminal convictions for crimes including homicide, rape, aggravated assault, kidnapping, burglary, drug trafficking, robbery, sex assault, weapons violations and other offenses. "Each of these individuals received full and fair immigration proceedings, after which a federal immigration judge found them ineligible for any form of relief under U.S. law and ordered them removed." In some cases, people were approached at their homes. Families recorded their loved ones being taken away in cuffs. Many are Chaldean and immigrated to the U.S. from Iraq. "There's a reason why we fled our country," said Zeinab Al-Badry, whose husband was also detained. "It's not to have fun in America, but to be safe." "If you go to Iraq and pass by ISIS, they are going to get killed," said Junior Seiba, whose cousin was detained. [GN] UNITED TECHNOLOGIES: "Millman" Suit Seeks Certification of Class ---------------------------------------------------------------- In the lawsuit entitled OPAL MILLMAN, ERIC POWELL, and LAURY POWELL, on behalf of themselves and all others similarly situated, the Plaintiffs, v. UNITED TECHNOLOGIES CORPORATION, LEAR CORPORATION EEDS AND INTERIORS, as successor to United Technologies Automotive, Inc., ANDREWS DAIRY STORE, INC., and L.D. WILLIAMS, INC., Case No. 1:16-cv-00312-TLS-SLC (N.D. Ind.), the Plaintiffs ask the Court to enter an Order certifying this case as a class action, appoint the Plaintiffs as Class Representatives, and appoint Plaintiffs' attorneys as class counsel. The Plaintiffs propose that the Class be defined as: "all persons who have owned, rented, or resided at property within the Class Area at any time between 1983 and July 18, 2016". The Plaintiffs propose that the Petroleum Subclass be defined as follows: "all persons who have owned, rented, or resided at property within the Petroleum Subclass Area at any time between 1993 and July 18, 2016". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=tLp2vWkF The Plaintiff is represented by: Thomas A. Barnard, Esq. Rodney L. Michael, Esq. Tammara D. Porter, Esq. Benjamin A. Wolowski, Esq. TAFT STETTINIUS &HOLLISTER LLP One Indiana Square, Suite 3500 Indianapolis, IN 46204 Telephone: (317) 713 3500 Facsimile: (317) 713 369 UNITED POTATO: Faces Antitrust Class Action Over Potato Cartel -------------------------------------------------------------- CSUN Today reports that U.S. potato-grower cooperatives in the early 2000s deployed drones and scanned satellite images as they colluded to reduce the amount of potatoes grown across the country in an effort to increase their profits, according to a report by California State University, Northridge business law professor Melanie Stallings Williams. The cooperatives' plot meant Americans paid more for their french fries, while cooks of every stripe -- from those at home to those in high-end restaurants and even manufacturers -- paid up to 49 percent more for a staple of the American diet. "If you had a potato in the last decade or so, then you paid significantly more because of widespread collusion in the potato industry," Ms. Williams said. "Every time you went to McDonald's, every time you had something that had potato starch added to it, you paid more." Ms. Williams and her colleagues -- Michael A. Williams, director of Competition Economics, a legal research and consulting firm, and Wei Zhao, a consultant with Competition Economics -- published their findings in a report titled "The OPEC of Potatoes: Should Collusive Agricultural Production Restrictions Be Immune from Antitrust Law Enforcement?" in the winter 2017 edition of Virginia Law & Business Review. Their report is the result of an investigation of American potato farmers as part of an antitrust, class-action lawsuit brought by potato buyers against the United Potato Growers of America (UPGA) and the United Potato Growers of Idaho (UPGI), collectives of farmers and agricultural cooperatives that agreed to reduce the output of potatoes. Though the collectives settled the lawsuit in 2015 before it went to court, a look into collectives' practices provided Williams and her colleagues evidence of how the UPGA, within one year of its formation in 2005, controlled more than 60 percent of the nation's fresh potato-growing acreage, reduced the amount of potatoes grown and increased the open-market prices for the vegetable by 48.5 percent. By 2007, UPGA had reduced potato- growing acreage by 20 percent from its 2004 levels. As a result, Ms. Williams and her colleagues concluded, the production caps "significantly increased the cost to buyers, with an average nationwide overcharge of 30 percent for fresh potatoes and 48.7 percent for Russet potatoes at the point of shipping, and 24.4 percent for fresh potatoes and 36.5 percent for Russet potatoes at the wholesale level. The social welfare costs are thus substantial. "Potatoes are the leading vegetable crop in the United States," Williams said, "and are a staple in every household in America. Even those who don't eat potatoes on a regular basis may be surprised to learn how often potato starch is used in everyday items that we consume, as a supplement or a filler. That means every one of us was impacted." In 2005, America's potato farmers, buffeted by market volatility and high supply, banded together to form the UPGA. The Capper- Volstead Act, a pre-Depression era statute, allows farmers to cooperate in marketing their goods as a way to counter the clout of industrial agricultural behemoths. Some people, Ms. Williams noted, have interpreted the act to mean that farmers can avoid antitrust laws. Others contend otherwise and have filed class- action suits, which is what happened in the recent case involving the UPGA and UPGI, she said. The UPGA hosted conferences to monitor and set minimum prices for potatoes. To ensure compliance, the organization conducted on- site inspections, deployed drones, scanned satellite imagery and did surprise audits. Violators were subject to a $100-per-acre fine. Anyone who was not part of the association was pressured to comply with its rules. "They called those farmers who didn't comply 'cheaters,' and monitored what they did with flyovers, crop inspections and financial penalties," Ms. Williams said. "By 2010, one cooperative reported that they had cut potato growing acreage by 38 percent." In 2008, the UPGA's chairman said the goal was "to take potatoes to market in an orderly manner so that farmers make a profit," and he noted that the organization has reduced potato acreage by 20 percent in just three years. The goal, according to documents Williams and her colleagues examined, was "a steady, planned and coordinated lifting of market prices across the country." Ms. Williams said the cooperatives' leaders celebrated the higher prices, with one member observing, "growers who've historically competed with each other are now communicating and coordinating supplies for the betterment of the industry as a whole." Reporters with the Wall Street Journal did not question the legality of the UPGA's actions, and, in a 2006 article, even noting that one farmer destroyed part of his potato crop to keep prices high. The reporter went on to observe that the UPGA "aspires to be to potatoes what OPEC is to oil by carefully managing supply to keep demand high and constant." But, Ms. Williams pointed out, no court has held that agricultural cooperatives that restrict output are exempt from antitrust law enforcement. While four class-action lawsuits have been filed in recent years against agricultural cooperatives -- against milk, egg product, mushroom and potato producers -- none of the proceedings have yet to reach a verdict. "The potatoes case settled, but more cases are pending, with class-action lawsuits against the milk, egg and mushroom industries," Ms. Williams said. "However, because of the expense, uncertainty of the verdict and potentially high awards, cases like these tend to settle. But while the legality of agricultural cartels is uncertain, what is indisputable is that such behavior raises prices -- a lot." Ms. Williams said UPGA officials justified their efforts as "marketing," which is allowed under the Capper-Volstead Act. "But marketing does not traditionally include production restrictions, because those hurt consumers by raising prices and reducing incentives for innovation," she said. Ms. Williams said small farmers have used cooperatives for decades to reduce costs by sharing processing plants and to be more economically efficient in their marketing. She cited the example of Sunkist. "There is no single farm called Sunkist, it's a cooperative of orange growers who share processing, distribution and advertising. That's what the (Capper-Volstead Act) is designed to do," she said. "The fact is the law, in this instance, was not used to help in the production of potatoes. The potato cartels weren't working together to distribute potatoes, they were working together to limit the supply and manipulate prices." [GN] VIRGINIA: Dept. of Corrections Faces Federal Class Action Suit -------------------------------------------------------------- NBC29 reports that the Virginia Department of Corrections is facing a federal class action lawsuit. Nexus Services claims Augusta Correctional Center denied medical care to an inmate who was diagnosed with Hepatitis C. Documents filed in court say that the Department violates inmates' Eighth Amendment Constitutional Rights by withholding medical care. Doctors diagnosed Terry Rigglemen in 2005 while incarcerated at Lawrenceville Correctional Center. Mr. Rigglemen is now serving time at Augusta Correctional Center and has had requests denied for medical care on the grounds that his enzyme levels were not elevated enough. Nexus is partnering with a group named Americans Resisting Minority and Ethnic Discrimination, known as ARMED, to take this case to court. [GN] WELLS FARGO: Tycko & Zavareei Files Overdraft Fee Class Action -------------------------------------------------------------- A Wells Fargo customer filed a class action lawsuit on June 30 in the Northern District of California alleging that Wells Fargo's practice of charging overdraft fees on one-time debit card transactions violates its contracts with accountholders and consumer protection law. The complaint alleges that Wells Fargo promises its customers who did not opt into the Debit Card Overdraft Service that it will not charge them overdraft fees for non-recurring, every day transactions, like transactions with Uber and Lyft. However, Wells Fargo does charge such fees on certain one-time debit card transactions like these that it knows or should know are not recurring. Plaintiff Angelo Clamor was charged an overdraft fee on a Lyft ride sharing transaction, and seeks to represent all individuals who, like him, were charged overdraft fees on one-time debit card transactions of Lyft, Uber, or other one-time transactions. Jefferey Kaliel, a partner with Tycko & Zavareei, commented that "the bank's contract and consumer protection law prohibited Wells Fargo from charging overdraft fees on one-time transactions like Lyft or Uber transactions, but the bank did it anyway in order to maximize its fee revenue." Tycko & Zavareei LLP of Washington, DC and Oakland, CA are representing Clamor, and urge consumers who have been impacted by overdraft fees on one-time transactions, such as those with Lyft or Uber, to learn more about their legal rights. For additional inquiries, please contact Jeffrey Kaliel at jkaliel@tzlegal.com. About Tycko & Zavareei Tycko & Zavareei LLP, based in Washington, D.C. with offices in Oakland, California, has a long and successful record of litigating complex cases. The firm routinely handle large and complex matters throughout the country, advocating on behalf of individuals fighting for their civil rights, consumers seeking redress for unfair business practices, whistleblowers exposing fraud and corruption, and non-profit entities and businesses facing difficult litigation. [GN] WESTERN EDGE: Court Approval of Opt-In Notice Sought in "Hamman" ---------------------------------------------------------------- In the lawsuit titled SKYLAR HAMMAN, STEWART MCGEE, and STEVE RODGERS, Individually and On Behalf of All Others Similarly Situated, the Plaintiffs, v. WESTERN EDGE CONSTRUCTION, LLC, MARK TUCKER, and CINDY TUCKER, the Defendants, Case No. 3:17-cv-00092 (S.D. Tex.), the Parties ask the Court for approval of a form of opt-in notice to be sent to potential class members, as well as establishing other procedures and requirements for the issuance of notice to the class. The lawsuit arises under the Fair Labor Standards Act and involves a class of construction workers employed by the Defendants who contend that they were not paid overtime for hours that they worked in excess of forty hours per week. The parties have stipulated that the case should be conditionally certified as a collective action, and have agreed to submit the motion to obtain formal court approval to send notice to potentially-affected class members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=viN7ZtRo The Plaintiff is represented by: Andrew S. Golub, Esq. DOW GOLUB REMELS & GILBREATH, PLLC E-mail: asgolub@dowgolub.com 2700 Post Oak Blvd., Suite 1750 Houston, TX 77056 Telephone: (713) 526 3700 Facsimile: (713) 526 3750 The Defendant is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221 0088 Facsimile: (888) 787 2040 - and - Breanna Trombley, Esq. NEWLAND & ASSOCIATES, PLLC 2228 Cottondale Lane, Suite 200 Little Rock, AR 72202 Telephone: (501) 221 9393 Facsimile: (501) 221 7058 E-mail: btrombley@newlandassociatespllc.com WESTERN-SHAMROCK: Faces "Rodriguez" Suit Over Failure to Pay OT --------------------------------------------------------------- Magge Rodriguez, on behalf of herself and all others similarly situated v. Western-Shamrock Corporation, Case No. 7:17-cv-00246 (S.D. Tex., June 29, 2017), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours in a workweek. Western-Shamrock Corporation operates a consumer finance and installment loan lending business in San Angelo, Tom Green County, Texas. [BN] The Plaintiff is represented by: Michael K. Burke, Esq. Michael M. Guerra, Esq. LAW OFFICES OF MICHAEL M. GUERRA BURKE & KHIRALLAH, LLP 3900 N. 10th St., Suite 850 McAllen, TX 78501 Telephone: (956) 682-5999 Facsimile: (888) 317-8802 E-mail: mburke@mmguerra.com mike@mmguerra.com XACTLY CORP: Faces Class Action Over Vista Equity Merger -------------------------------------------------------- Reuters reports that on June 30, a purported stockholder class action lawsuit was filed in U.S. District court against Xactly Corp., its directors, excalibur parent among others The lawsuit alleges that the merger with Vista Equity offers inadequate consideration to company's stockholders The lawsuit alleges the company violated section 14(a) of exchange act, rule 14a-9 by purportedly omitting material info from proxy issued related with deal. [GN] ZENCO COLLECTIONS: Benson Asks Court to Certify Classes ------------------------------------------------------- In the lawsuit entitled on behalf of plaintiff and the class members described below, and PEOPLE OF THE STATE OF ILLINOIS EX REL THOMAS D. BENSON, the Plaintiffs, v. ZENCO COLLECTIONS LLC; DE VILLE ASSET MANAGEMENT LIMITED PARTNERSHIP; and VIP CAPITAL CORPORATION, the Defendants, Case No. 1:17-cv-05220 (N.D. Ill.), Mr. Thomas D. Benson asks that the Court enter an order determining that Counts I, II and IV of the action, alleging violation of the Fair Debt Collection Practices Act (FDCPA), may proceed as a class action against Defendants With respect to Count I, alleging that defendants violated the FDCPA through the misleading collection of time-barred debts, the plaintiff seeks to certify two classes. The Zenco class consists of: "(a) all individuals with Illinois addresses (b) from whom Zenco sought to collect a credit card debt (c) on which the last payment was made more than 5 years prior to the collection attempt (d) where Zenco referred to settlement or litigation or enforcement (e) where any such communication occurred on or after a date one year prior to the filing of this action". The DAM class consists of: "(a) all individuals with Illinois addresses (b) from whom an attempt was made to collect a credit card debt (c) by or on behalf of DAM (d) where the last payment on the credit card was made more than 5 years prior to the collection attempt (e) where any reference was made to settlement or litigation or enforcement (f) where any such communication occurred on or after a date one year prior to the filing of this action". With respect to Count II, alleging failure to provide the "notice of debt", plaintiff seeks to certify two classes. The Zenco class consists of: "(a) all individuals (b) to whom Zenco sent a letter (c) to collect a debt (d) without providing the "notice of debt" (e) no later than 5 days after the sending of the letter (f) where the letter was sent on or after a date one year prior to the filing of this action". The DAM class consists of: "(a) all individuals (b) to whom a letter was sent (c) by or on behalf of DAM (d) to collect a debt (e) without providing the "notice of debt" (f) no later than 5 days after the sending of the letter (g) where the letter was sent on or after a date one year prior to the filing of this action". With respect to Count IV, alleging that defendants violated the FDCPA by sending letters referring to legal enforcement and litigation and offering settlements to residents of Illinois when defendants were prohibited from undertaking legal action against residents of Illinois because they were not licensed in Illinois, plaintiff seeks to certify two classes. The Zenco class consists of: "(a) all individuals with Illinois addresses (b) from whom Zenco sought to collect a debt (c) where Zenco referred to settlement or litigation or enforcement (d) where any such communication occurred on or after a date one year prior to the filing of this action". The DAM class consists of: "(a) all individuals with Illinois addresses (b) from whom an attempt was made to collect a debt (c) by or on behalf of DAM (d) where any reference was made to settlement or litigation or enforcement (e) where any such communication occurred on or after a date one year prior to the filing of this action". The Plaintiff further asks that Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the classes. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=8KPctLta The Plaintiff is represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. Cassandra P. Miller, Esq. Michelle A. Alyea, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603-1824 Telephone: (312) 739 4200 Facsimile: (312) 419 0379 E-mail: courtecl@edcombs.com * Amendments to FCRA Can Increase Class Action Litigation --------------------------------------------------------- JD Supra reports that applicant background reports can be vital tools for employers, especially in the hiring process. However, amendments to the Fair Credit Reporting Act ("FCRA") significantly increase the rights of applicants and employees to receive certain disclosures and to choose whether to authorize certain background reports. Given the increase in litigation over these issues, employers (as well as their attorneys and investigators) are well- advised to pay close attention to the detailed requirements of the FCRA. The FCRA requires that employers disclose to applicants that a background report may be obtained for employment purposes, and obtain signed authorization from applicants before procuring a background report. Further, the Act requires that employers provide applicants a copy of the background report and a summary of their rights under the FCRA before taking any adverse action (such as not hiring the applicant) based in whole or in part on information contained in the report. Finally, when an employer actually takes adverse action based in whole or in part on a background report, the employer must give the applicant written notice of the adverse action along with specific information about the consumer reporting agency which provided the background report. While these requirements may appear straightforward, they contain subtle nuances that create a trap for employers who assume compliance. A procedural error in one instance is often exploited to allege widespread violations, which lead to costly and time- consuming class action litigation. The penalties quickly add up, as a simple $1,000 statutory penalty for a violation with respect to one applicant is multiplied by hundreds or thousands of potential class members to create millions of dollars in potential liability. In recent years, several large companies have made headlines as they've paid out millions of dollars in settlement of FCRA class actions. The claims against most of these companies stem from an alleged failure to comply with the FCRA's authorization and disclosure requirements. Specifically, the plaintiffs alleged that their respective employer failed to provide the necessary stand-alone disclosures associated with conducting and using background checks in the employment context. While these large settlements have become more difficult to obtain in the wake of the United States Supreme Court's decision in Spokeo, Inc. v. Robins, the threat of FCRA litigation is not going away. According to ACA International, FCRA litigation has increased 47 percent in the last year and is expected to continue to surge. Employers should therefore be mindful of their background check procedures, and audit their forms and policies for compliance on a regular basis. As the law develops, practices that once were assumed lawful may have fallen into disfavor with the courts. Employers are therefore better served to proactively revise their procedures to conform to the most recent best practices, rather than defend them with the potential for millions in exposure if they are found unlawful. [GN] * DOL Agrees to Drop Prohibition on Class Action Waivers -------------------------------------------------------- Carmen Germaine, writing for Law360, reports that the U.S. Department of Labor on July 3 defended its fiduciary rule for retirement account advisers against a Fifth Circuit challenge, saying the Obama administration reasonably expanded the definition of fiduciary, but agreeing to drop a controversial prohibition on class action waivers. Attorneys with the DOL and the U.S. Department of Justice filed a brief urging the Fifth Circuit to uphold a summary judgment for the regulator in a challenge to its fiduciary rule. Although the Labor Department is considering changes, which took partial effect on June 9, while reviewing the regulation per President Donald Trump's mandate, the July 3 brief said the original regulation, promulgated in April 2016 by the Obama administration, "reasonably expand[ed] DOL's interpretation of the statutory definition of 'fiduciary'." The DOL said Texas' U.S. District Judge Barbara M.G. Lynn was right to reject challenges raised against the rule "with one narrow exception." The agency said it is no longer defending a condition that prohibits advisers who want to collect commissions, from requiring investors to waive their right to participate in class action litigation. "The government no longer defends that condition in light of the Acting Solicitor General's construction of the Federal Arbitration Act in a case pending before the Supreme Court, but that condition is severable from the remainder of the fiduciary rule, as the rule itself makes clear," the July 3 brief said. The U.S. solicitor general recently reversed an Obama-era stance on class action waivers in an amicus brief before the U.S. Supreme Court in National Labor Relations Board v. Murphy Oil USA Inc. defending the legality of arbitration agreements that prohibit employees from pursuing work-related claims as a class. The Labor Department's fiduciary rule requires financial professionals to act in their clients' best interests when recommending investment products. Advisers and broker-dealers that fall under the expanded definition of a fiduciary will largely be prohibited from collecting commissions unless the professionals take advantage of the so-called best interest contract exemption by entering into a contract with clients affirming the professionals will uphold the clients' best interest. Several financial industry groups including the U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association sued over the rule in June 2016, but Judge Lynn granted the Labor Department's motion for summary judgment in February 2017, finding the agency acted within its authority under the Employee Retirement Income Security Act and had adequately weighed the costs and benefits of the rule during the rule-making process. In opening briefs filed before the Fifth Circuit in May, the Chamber plaintiffs argued the DOL did indeed outstrip its authority by using the best interest contract exemption to regulate individual retirement accounts, which the groups said flouted congressional intention to prohibit the agency from regulating, investigating or bringing enforcement actions against IRA fiduciaries. The groups also argued that the DOL, by broadening the definition of fiduciary to broker-dealers and other agents that sell products to retirement investors, was impermissibly rejecting a distinction "between selling products and giving advice that has been fundamental to the securities laws for nearly 80 years." But the Labor Department said on July 3 that its interpretation of ERISA is entitled to deference because of the significant authority Congress granted the agency and its long-standing expertise in the area. Moreover, the brief said, ERISA does not unambiguously restrict its definition of fiduciary to the narrow common-law definition of relationships based on trust and confidence, and the structure of the statute indicates Congress meant to cover a broader range of relationships. The Labor Department also took issue with the plaintiffs' claim that the rule runs afoul of the First Amendment's free speech protections. The agency said the groups' argument was not properly before the Fifth Circuit, because the groups did not raise the argument during the rule-making process, and that the argument also failed on the merits because the rule regulates commercial conduct and "only incidentally burdens speech." The agency ceded ground only on the challenge to the BIC exemption's prohibition on class action waivers, admitting the government is no longer defending that provision. But the DOL said it previously clearly indicated that it would have adopted the BIC exemption even without the anti-arbitration condition, and that severing the condition would not impair the exemption or the rule overall. "Thus, invalidation of this condition does not mandate invalidation of the remainder of the BIC Exemption, let along the entire fiduciary rule," the brief said. The DOL is still considering changes to the rule. The agency issued a request for information, asking for data and information that could be used to revise the rule, at the end of June. Respective representatives for the DOL and the appellants did not immediately respond to requests for comment. The appellants challenging the rule are represented by Gibson Dunn & Crutcher LLP, WilmerHale, Thompson Coe Cousins & Irons LLP and Sidley Austin LLP and by in-house attorneys with the U.S. Chamber Litigation Center, Financial Services Institute Inc., Insured Retirement Institute, Financial Services Roundtable, and Securities Industry and Financial Markets Association. The DOL is represented by Hashim M. Mooppan, John R. Parker, Michael S. Raab, Michael Shih and Thais-Lyn Trayer of the U.S. Department of Justice and Nicholas C. Geale, G. William Scott, Edward D. Sieger, Thomas Tso and Megan Hansen of the U.S. Department of Labor. The case is U.S. Chamber of Commerce et al. v. U.S. Department of Labor et al., case number 17-10238, in the U.S. Court of Appeals for the Fifth Circuit. [GN] * Employers Can't Use Class Action Waivers Under NY Freelance Act ----------------------------------------------------------------- Christine Hogan, Esq. -- clhogan@littler.com -- and David Wirtz, Esq. -- dwirtz@littler.com -- of Littler, in an article for JDSupra, report that New York City's Freelance Isn't Free Act goes into effect on July 24, 2017. Anticipated rules to "clarify" the Act, which amend Title 6 of the City's Rules by adding a new chapter 12, have now been promulgated by the Department of Consumer Affairs.1 Of particular significance, Rule 12-05 provides, in relevant part, that: "If a contract includes language that waives or limits a freelance worker's right to participate in or receive money or any other relief from any class, collective, or representative proceeding, said waiver or limitation is void." "Wherever a hiring party asks a freelance worker to waive or limit, via contract, any other procedural right normally afforded to a party in a civil or administrative action, any such contractual waivers and limitations are void under section 20-9352 of the Administrative Code. . . ." "A freelance worker has the right to disclose the terms of a contract with a hiring party to the director [of NYC's Office of Labor Standards]. Any private contractual agreement that purports to waive or limit a freelance worker's right to communicate the terms of such a contract to the director is void as against public policy." Subsection (b) explicitly prevents employers from including collective/class action waivers in their independent contractor agreements. Subsection (c) reflects an apparent attempt to prohibit arbitration provisions and provisions that shorten the Act's statute of limitations. Subsection (d) voids confidentiality provisions that do not carve out disclosure to the Director of NYC's Office of Labor Standards. The new rules also: Expand the coverage of those who can violate the Act from the "hiring party" to the "actual or apparent agent [of the hiring party] or any other person acting directly or indirectly on behalf of a hiring party"; Provide that the Act applies regardless of a freelancer worker's immigration or work authorization status; "Clarify" what the term "value" means when establishing jurisdiction and defining what damages are owed to include the "reasonable" value of services, supplies, and expenses; and Establish a "motivating factor," rather than a but-for standard, applicable to retaliation claims under the Act. Employers need to consider these new rules when drafting both independent contractor agreements with freelance workers performing services in New York City and agreements that terminate such services in exchange for a general release. [GN] * Justice Department's Aversion to CA Will Have Wide Impact ----------------------------------------------------------- Marcia Coyle, writing for The National Law Journal, reports that the recent switch by the Trump administration's U.S. Justice Department from opposing to defending bans on class actions in workplace arbitration agreements will have consequences beyond a trio of challenges the U.S. Supreme Court is set to hear this fall. On June 16, acting solicitor general Jeffrey Wall informed the justices that the Justice Department was reversing its position in a key labor case, National Labor Relations Board v. Murphy Oil, which tests employee arbitration agreements. The government said it would no longer support the NLRB's position that arbitration agreements barring class actions violate federal labor law. Less than three weeks later, on July 3, the Justice Department relied on that reversal in the high court to justify abandoning its support for a class action provision in the U.S. Labor department's so-called "fiduciary rule." Also in that same period of one month, the Justice Department allowed a June 2 deadline to lapse for its appeal of a temporary injunction against a nursing home rule that banned mandatory arbitration agreements. The two reversals and the lapsed appeal signal a broadening effort by the Trump administration to prohibit or restrict class actions through litigation or regulation. The Justice Department continues to defend the fiduciary rule, Obama-era regulations that raised standards for financial advisers, even as the Labor Department moves to revise provisions in the rule. There's only one part of the rule the Trump Justice Department won't now support in court: a class action provision. In its July 3 filing in the U.S. Court of Appeals for the Fifth Circuit, the Justice Department, represented by Deputy Assistant Attorney General Hashim Mooppan, urged the court to strike down a provision restricting class action waivers in arbitration clauses. The restriction on class action waivers is a condition on financial advisers who want to qualify for the fiduciary rule's "best interest contract exemption," or BIC. If they qualify, those advisers are exempt from certain prohibited transaction provisions in federal retirement laws. The U.S. Chamber of Commerce, a lead plaintiff in the case, has argued the condition violates the Federal Arbitration Act, or FAA. The Justice Department now agrees. "Given the government's position in Murphy Oil, the government is no longer defending the BIC Exemption's condition restricting class-litigation waivers insofar as it applies to arbitration agreements," Justice Department lawyers wrote in their brief. The government's legal team said the condition is "a discriminatory obstacle to arbitration that cannot be harmonized with the FAA and [AT&T Mobility v.] Concepcion under the interpretation of those authorities adopted by the government in Murphy Oil." The government's flipped position in Murphy Oil "complicates things a lot," said Deepak Gupta of Washington's Gupta Wessler, who has supported the provisions of the best interest contract exemption on behalf of the American Association of Justice. Gupta on July 6 filed an amicus brief for the group. "Depending on how expansively you read the solicitor general's brief, the worst reading is the FAA forecloses any effort to limit arbitration and class litigation unless there is some very, very specific delegation, a clear statement [in the statute]," Gupta told The National Law Journal. In the fiduciary rule case, Gupta said, the government is not just announcing a change in position, but also telling the appellate court to vacate a provision in a government rule that regulators had successfully defended in lower courts. "It leaves the case in this awkward position where the circuit court doesn't have an adversarial position," Gupta said. "This is not how you're supposed to repeal rules. This is a faster, backend way of repealing an unwanted provision of the rule." Gupta wrote in the American Association of Justice amicus brief: "Because of the government's late-breaking change in position, no party before this Court is defending either the class-action provision or the district court's decision upholding it." The Labor Department is seeking comment on any proposed changes to the fiduciary rule, which went into partial effect last month. The rule doesn't fully kick in until Jan. 1, 2018 -- an effective date that federal regulators are weighing whether to delay. A group of consumer advocates on July 6, in an amicus brief in the Fifth Circuit, said the Justice Department reversed "its position without justification." The groups, including Americans for Financial Reform, Better Markets and Consumer Federation of America, said the issues in the Supreme Court's Murphy Oil case are distinct from those presented in the Fifth Circuit fiduciary rule litigation. The fiduciary rule's best interest contract exemption, the consumer advocates said in their amicus brief, "does not prohibit the enforcement of existing arbitration agreements," which is "the core focus" of the Federal Arbitration Act. Other lawsuits challenging the rule are pending in Washington, Minnesota and Kansas federal courts. In Minnesota, the plaintiff there, Thrivent Financial for Lutherans, seized on what it called the Justice Department's "surprise" filing in the Fifth Circuit. The government's refusal to defend the fiduciary rule's class- action provision "supports entry of judgment in Thrivent's favor, not an indefinite stay of this matter. Staying this litigation would only prolong Thrivent's business uncertainty about its compliance obligations, in a manner that would be highly prejudicial to Thrivent," Mark Johnson of Greene Espel wrote in a letter to the court this week. The nursing home rule prohibiting mandatory arbitration agreements was issued by the Centers for Medicare and Medicaid Services, or CMS, last year. The American Health Care Association quickly challenged it and on Nov. 7, a Mississippi federal court imposed a temporary injunction blocking the rule. The government had a June 2 deadline for an appeal, but the deadline lapsed with no government action. On June 5, CMS proposed a rule revision that would eliminate provisions that prohibit binding pre-dispute arbitration. [GN] * Pro-Trump Prophet Proposes Class Action Lawsuit ------------------------------------------------- Miranda Blue, writing for Right Wing Watch, reports that in a conversation with pro-Trump "prophet" Frank Amedia this week, televangelist Jim Bakker proposed that "all the church people" band together to launch a "class action suit against them, whoever they are" who are "literally stripping the power from the president of the United States." Bakker and Amedia were discussing the Supreme Court's decision to allow Trump's travel ban to take partial effect while they wait to hear arguments on its constitutionality, a case that Amedia insisted the courts "should have never even heard." The case was evidence, Amedia said, that "the plots of the Enemy, the spirit of the Enemy that are raised up against the Kingdom, and they happen to be raised up against the United States and the Judeo-Christian doctrines because they're integrally linked, that same spirit is trying to find every leverage to resist the move of God both in our country and the Kingdom." "We were headed to having a president, a leader, who had no power," Bakker marveled. "They were literally stripping the power from the president of the United States. If we would have had an army attack us, they want to take his power away." He then proposed a "class action suit against them, whoever they are, whoever's taking the power from America because they're destroying the United States of America." "They've unelected a president," Bakker said. "It's wrong! It should be a great crime." Later in the program, Amedia shared prophecies that he has been receiving through his POTUS Shield project, including that God has planned three "shifts" in the Supreme Court during the Trump administration, including the confirmation of Justice Neil Gorsuch, an upcoming retirement, and lastly Justice Sonia Sotomayor allowing God to "transform and move in her life." He added that while the Supreme Court is on recess it's important to pray that the justices "have encounters and visitations from God." "I believe God will move right into their bedrooms, right into their children, the children will speak, their aides will speak and things will happen in their lives," he said. [GN] * Supreme Court Could Put Pressure on Finra Class-Action Policy ---------------------------------------------------------------- Investment News reports that Finra may rethink its ban on class- action waivers in arbitration clauses, depending on whether the court sides with the Trump administration Mark Schoeff Jr. writing for Investment News reports that if the Supreme Court sides with the Trump administration on the question of class-action litigation in arbitration agreements, it could cause Finra to rethink its policy banning waivers. In a series of pending cases the court will hear next year, the Trump administration argues that class-action can be prohibited in arbitration clauses, taking a different stance than that of the Financial Industry Regulatory Authority Inc., the broker-dealer self-regulator, which does not allow class-action waivers in arbitration clauses between brokers and customers. In a brief filed in the 5th Circuit Court of Appeals in a lawsuit involving the Labor Department fiduciary rule, the regulation's class-action provision is the only one that the Department of Justice did not defend, saying that doing so would contradict the position of the Trump administration in NLRB v. Murphy Oil USA Inc., which the Supreme Court will take up in its next term. In 2014, the Finra board forced the Charles Schwab Corp. to stop using class-action waivers in its arbitration agreements, following a Schwab appeal of a Finra hearing panel decision. But a Supreme Court ruling could change the atmosphere surrounding the Finra rule. "Brokerage firms would love the Trump administration to win on this issue," said Andrew Stoltmann, a Chicago securities attorney and the incoming president of the Public Investors Arbitration Bar Association. "It's more likely than not that Finra would try to adopt the position of the Trump administration." A Finra spokeswoman declined to comment on the pending Supreme Court cases. But a former director of Finra arbitration doubts that the regulator would be swayed by a Supreme Court decision. "There would be political pressure brought to bear on Finra to change its policy if the government's position on class-action waivers is upheld by the court," said George Friedman, an adjunct professor of law at Fordham University. "Finra's policy would withstand a legal challenge. As the regulator, Finra is permitted to establish reasonable regulations governing the conduct of the securities industry." As an example of Finra going its own way with regard to the Federal Arbitration Act, Mr. Friedman pointed to a FAA rule that allows a participant in an arbitration case to move to vacate a decision within 90 days. In Finra arbitration, securities industry participants only have 30 days to file a motion to vacate. Finra has considerable latitude, according to Hugh Berkson, a principal at McCarthy Lebit Crystal & Liffman. "It's up to Finra to enforce its own rules with its own members," said Mr. Berkson, who is on the PIABA board. "One hopes it will." Finra is especially protective of the arbitration forum that it administers. Nearly every brokerage contract includes a mandatory arbitration clause that is heard by a panel of Finra arbitrators. "The arbitration system is something Finra takes great pride in, and I don't think it will give in to pressure from any side to make substantial changes to the system," Mr. Berkson said. Although the Trump administration and Finra diverge on class- action waivers, they're in sync on arbitration as a means of remediation. "There's no question this administration is pro-arbitration," Mr. Friedman said. [GN] Asbestos Litigation ASBESTOS UPDATE: Husband's Overalls Causes Wife's Asbestos Death ---------------------------------------------------------------- Geraldine Scott, writing for Eastern Daily Press, reported that the family of a King's Lynn woman who believed that washing her first husband's dirty overalls may have led her to develop asbestos-related cancer have joined with lawyers to call for his former colleagues to help them get justice. Kathleen Carnegie, 70, was diagnosed with mesothelioma, a cancer of the lining of the lung commonly associated with asbestos exposure, in January after she suffered breathlessness and tests revealed there was fluid on her lungs. She died in June. Following the diagnosis, Mrs Carnegie instructed specialist asbestos-related disease lawyers at Irwin Mitchell to investigate how she came to develop the illness. While she was not exposed to the material during office jobs throughout her working life, it is believed that washing her first husband Anthony Nixon's overalls may have played a part. As he died in 2003, she called on former colleagues who worked with him at Cape Asbestos in Uxbridge in the 1960s to come forward with information regarding the working conditions he may have faced. Samantha Shaw, the specialist asbestos-related disease lawyer at Irwin Mitchell who is representing Kathleen, said: "Our client's story may seem unusual, but we have seen a great number of cases in which people have developed mesothelioma despite never working in close contact with asbestos." Mr Nixon worked at Cape Asbestos from 1960 to around 1969 and wore his overalls in the family car as he travelled home and would keep them on after returning to the house. Mrs Carnegie's son, Nigel, who has taken over the legal case, said: "Mum's diagnosis was a shock to all of us. Considering mum only ever worked in offices we were all stunned when she was told she had mesothelioma and we can only think that it has come about after washing Tony's clothes. "I remember talking to her about her condition and she would tell me how she could still remember the smell of Tony's overalls and how dusty they were. "She often would have to wash them a couple of times a week and would always need to give them a shake before getting started. She didn't have a washing machine then either, so she was often washing them by hand. "It is extremely difficult to take that she might have got the illness that killed her in this manner and we as a family feel we deserve to know how it happened. I would be hugely grateful if any of Tony's former workmates can come forward." A former university lecturer from Hunworth is also appealing for information, after working as a labourer between school and university. Bernard Waites, 71, was diagnosed with asbestos-related cancer in February and worked on the construction of barracks in Aldershot in the 1960s. Legal experts are keen to speak to anyone who may have worked with Mr Waites during his time at Gee Walker and Slater -- between January and July 1964. Specifically, they are keen for details about the construction of the Montgomery Lines Barracks in Aldershot. Mr Waites, who grew up in Aldershot, began working at Gee Walker and Slater after leaving school following the completion of his A- Levels. He later studied in London before working for the Open University. On his retirement in 2010, he moved to Norfolk with his wife of 38 years, Elizabeth. He said: "I worked as a labourer on the construction of the site and recall that while many people involved in the work were local, some also commuted through from Portsmouth. "The work was very varied and involved helping out the tradesman as and when the help was needed. Developing mesothelioma has had a huge impact on me and my family and we just want to know how this happened and, ultimately, whether more should have been done to protect me. We would be hugely grateful if anyone with information could come forward." Rosemary Giles, the lawyer at Irwin Mitchell's Cambridge office who is representing Mr Waites, said: "Our client's story is similar to a huge number we see every year, as it demonstrates how exposure to asbestos can have huge consequences and lead those affected to develop very serious conditions such as mesothelioma. Anyone with information about Mrs Carnegie is asked to contact Samantha Shaw on 01223 791 815 or samantha.shaw@IrwinMitchell.com or for information regarding Mr Waites, contact Rosemary Giles on 01223 791815 or rosemary.giles@IrwinMitchell.com. ASBESTOS UPDATE: Asbestos Suit Filed by Former Texaco Worker ------------------------------------------------------------ David Yates, writing for SE Texas Record, reported that a lawsuit alleging asbestos exposure has been brought by a man who worked at a Texaco facility in the 1940s. Willie Adams and his wife Doris filed suit against Texaco and several other companies on July 3 in Jefferson County District Court. The other defendants named in the suit include 3M Company, Able Supply, Guardline, Metlife, Owens Illinois and TMR Company. According to the lawsuit, from 1947 to well into the 1970s, Willie was exposed to asbestos while employed by Texaco Asphalt in Port Neches. He worked at the company until 1985. The asbestos products Willie was exposed to were made and sold by the defendants, the suit states. The defendants allegedly failed to warn him of the dangers of asbestos exposure. Willie is suffering mesothelioma, according to the suit. He is suing for his pain and medical expenses. Nederland attorney Tina Bradley of Hobson & Bradley represents the plaintiffs. Judge Donald Floyd, 172nd District Court, has been assigned to the case. Case No. E-200326 ASBESTOS UPDATE: Burden Placed on Company in Asbestos PI Suit ------------------------------------------------------------- Jason Grant, writing for New York Law Journal, reported that a woman can go forward with her asbestos-based personal injury lawsuit against several companies that allegedly supplied products to the Westchester County Department of Laboratories and Research, where she worked in the 1970s. An Appellate Division, Third Department, panel has ruled Eileen O'Connor, diagnosed in 2015 with pleural mesothelioma, can proceed against defendants Fisher Scientific Co., Thomas Scientific and VWR International. Other named defendants were not addressed in the opinion. The ruling by Justice William McCarthy reversed the 2016 decision of Saratoga County Supreme Court Justice Richard Aulisi, who had granted the companies summary judgment. McCarthy, joined by Justices Elizabeth Garry, Michael Lynch, Robert Rose and Eugene Devine, wrote in O'Connor v. Aerco International, 523122, that the companies bore the initial burden of demonstrating their products couldn't have contributed to O'Connor's injuries. He noted that although no deponents could say whether defendants' brand names, trademarks or logos were on products during the relevant time, O'Connor and other department employees testified there were products containing asbestos in the lab between 1975 and 1979 and that employees consulted defendants' supply catalogs, among others, to place orders. The three companies, McCarthy wrote, failed to establish that they didn't sell asbestos-containing products to the department during the relevant time. Fisher Scientific, for instance, stated it didn't have records of selling the products to the department. Gennaro Savastano, a Weitz & Luxenberg associate, represented O'Connor and her husband and couldn't be reached for comment. Counsel for the companies also couldn't be reached. The firms were Hinkhouse Williams Walsh in Chicago and Troutman Sanders for Fisher Scientific; Marshall Dennehey Warner Coleman & Goggin in Roseland, New Jersey, for Thomas Scientific; and Littleton Joyce Ughetta Park & Kelly in New York for VWR International. ASBESTOS UPDATE: Former Builder Dies from Asbestos Contamination ---------------------------------------------------------------- Andrew Doyle, writing for Somerset Live, reported that a former builder from Yeovil who died of asbestos contamination may have inhaled lethal fibres decades before a fatal cancer developed. Michael McInerney, 77, who lived in Sunningdale Lodge Care Home in the town, and was originally from Chard, had been diagnosed with mesothelioma -- a cancer associated with asbestos contamination. He was admitted to Yeovil Hospital on June 26 for palliative care as his condition was incurable. Somerset coroner Tony Williams said it was impossible to tell when or where Mr McInerney's exposure to the asbestos would have occurred. He said the fibres could lie in the lungs for many years from a much earlier time -- "decades" before they triggered the disease. He recorded the cause of death as malignant mesothelioma and concluded it was death by industrial disease. ASBESTOS UPDATE: Fla. High Ct. Agrees to Take Up Asbestos Suit -------------------------------------------------------------- WLRN.com reported that in a dispute that focuses heavily on expert witnesses, a divided Florida Supreme Court has agreed to hear a case filed by a man who said he suffered mesothelioma because of exposure to asbestos in cigarette filters and other products. Justices, in a 4-3 decision, issued an order accepting the case. The majority was made up of Chief Justice Jorge Labarga and justices Barbara Pariente, R. Fred Lewis and Peggy Quince, while justices Charles Canady, Ricky Polston and Alan Lawson dissented. Plaintiff Richard DeLisle took the case to the Supreme Court after the 4th District Court of Appeal last year ruled in favor of R.J. Reynolds Tobacco Co. and Crane Co., a manufacturer accused of exposing DeLisle to asbestos in gaskets. The appeals court ruling came after DeLisle had won an $8 million verdict in the Broward County case. Along with exposure in the gaskets, DeLisle alleged exposure in filters of Kent cigarettes he smoked in the 1950s. R.J. Reynolds is a successor company to the manufacturer of Kent cigarettes. The appeals court ruled that testimony of three of DeLisle's expert witnesses should not have been admitted in circuit court. In issuing the order agreeing to take up the case, the Supreme Court did not immediately set a date for oral arguments. ASBESTOS UPDATE: EPA Funds Asbestos Cleanup Along South Carolina ---------------------------------------------------------------- Jillian Duff, writing for Mesothelioma.com, reported that the Environmental Protection Agency (EPA) has matched funds from the City of Pickens to clean up asbestos around the popular Doodle Trail. The Brownfield Grant will also be used to generally improve the area around the trail. "Crews will be going in and taking out any material that contains asbestos," said environmental consultant for the city Tice Welborn. The safe handling and removal of asbestos is important due to the toxic properties of the substance. Asbestos is a known carcinogen. When in good condition, it doesn't present a hazard. When worn or damaged, it's a great risk to the health and safety of humans. The entire Doodle Park Project in South Carolina will cost $1.2 million, but the grant is for around $152,000. In fact, over the 20-year period from 1980 to 2000, 634 South Carolinians died from asbestos disease with mesothelioma victims accounting for slightly more than half. Pickens is about 30 miles away from Greenville, which has a history of manufacturing and industrial roots that place the city in a high-risk category for asbestos exposure. According to Welborn, "They [EPA] saw what has already been done with the trail itself already being constructed." The City of Pickens found asbestos in the rail depot two years ago and applied for the grant. "They don't like to award projects if they're not going to be finished or if there's not going to be some benefit to the community." According to mesothelioma survivor Heather Von St. James, there's been concern over the EPA cutting funds with the current Trump administration. In 2012, the Trump tweeted: "If we didn't remove incredible powerful fire retardant asbestos & replace it with junk that doesn't work, the World Trade Center could never have burned down." Tons of asbestos were used and rained down all over Manhattan when the Twin Towers fell. The EPA is working hard on the Doodle Trail project. A playground, workout stations, and a farmer's market are in the works. Trail user Trey Cox says, "Just having a place to go is awesome. I think it'll bring more business to the area for sure, give people something to do in Pickens." The project groundbreaking will commence this Friday. ASBESTOS UPDATE: More Women Facing Mesothelioma ----------------------------------------------- Matt Mauney, writing for Asbestos.com, reported that historically, mesothelioma cancer mostly affects older men exposed to asbestos while they served in the military or worked certain blue-collar jobs. But women now comprise nearly one-fourth of all cases, and mesothelioma incidence rates among women are on the rise, showing the gender gap is closing. A full-text copy of the report is available at https://is.gd/YEX0lB ASBESTOS UPDATE: Children Play in Rubbish Dump with Asbestos ------------------------------------------------------------ Alex Thorp, writing for Grimsby Telegraph, reported that disgusted residents have hit out after children were seen playing in mounds of rubbish feared to contain deadly asbestos -- more than ten days after they first reported it. Youngsters were spotted hanging around the mounds of fly-tipped waste off Burwell Drive, Nunsthorpe, where sheets of corrugated roofing, an abandoned trailer and sharp pieces of metal have been left in a car park close to the junction of Wootton Road. A concerned resident, who lives in the area and has asked to remain anonymous, said the fly-tipping was first reported to North East Lincolnshire Council on Monday, July 3, following fears the corrugated roofing sheets contained asbestos and that the dump was a potential fire hazard. And despite making repeated calls to the council, the rubbish remained piled in the car park on July 13 -- more than ten days since the resident said she first warned the local authority. "I've seen kids down there chucking the rubbish about. If that asbestos gets broken up then it could be very dangerous," she said. "People may say, 'Okay, but the parents should stop them,' but these children are walking back from school. How are they supposed to?" Asbestos is hazardous if material inside it becomes damaged and the fibres are released into the air. The resident added: "I don't think the council's response has been very good at all. I thought it would have been an emergency given that it looks like it's asbestos. It's a right mess. "I could understand it if it was just rubble but it looks like asbestos. It's disgusting and it's a health hazard." South ward councillor Jane Bramley said she had also reported the fly-tipping to the council and said there had been an "awful lot of trouble with fly-tipping" in the car park before. "It's ridiculous. If you report fly-tipping to the council or any housing association responsible action should be taken, especially if it's dangerous litter being left. It should be collected straight away," she said. It comes after piles of bricks, garden waste and even a three- piece suite were dumped close to a busy main road in Cleethorpes. In yet another shocking case of fly-tipping in the area, mounds of waste were left piled high in the layby off Hewitt's Avenue, just a few hundred yards from the entrance to Tesco. There had been some suggestion that the Nunsthorpe car park belonged to Shoreline Housing Partnership, however a spokeswoman for the organisation denied this. North East Lincolnshire Council were unavailable for comment last night. ASBESTOS UPDATE: Asbestos in Schools Poses No Risk, Says Councils ----------------------------------------------------------------- Tristan Stewart-Robertson, writing for Clydebank Post, reported that asbestos present in almost every school in Clydebank poses no risk to children or staff, insist council bosses. Hundreds of older buildings throughout the country had asbestos in foundations or walls, but remain safe provided the substance is not disturbed. A list emerged in June of 10 schools and nurseries across Clydebank and 16 in north-west Glasgow -- effectively all older buildings -- that still have the potentially deadly substance in them. Education officials say they know where the asbestos is in each building and carry out regular checks to ensure there is no risk. The Health and Safety Executive (HSE) formal advice is that asbestos is only a risk when released into the air and breathed in. When materials are in good condition and not likely to be damaged, they should be left in place and monitored. The former St Eunan's Primary site was found to have asbestos in the foundation only once the school was demolished. There is no suggestion pupils ever came into contact with the substance because of its location. A West Dunbartonshire Council (WDC) spokesman told the Post: "Like schools across Scotland, some of our buildings have asbestos containing materials such as ceiling texture coatings (Artex, for example) and in some older insulation products. "It is important to note the HSE's advice that asbestos only becomes a risk to human health when it is disturbed. "The council will continue to adhere to a strict and robust asbestos policy in line with current legislation, with the policy subject to regular review. If any issues are identified in the course of regular inspections, appropriate action will be taken." Jackie Baillie MSP urged the SNP-led council to continue the work of the previous Labour administration to replace or refurbish all schools. She said: "Clydebank was once known as the asbestos capital of Europe as a result of our shipbuilding heritage and heavy industry. Local people know as well as anyone that we need to do everything possible to protect future generations from the risks of the deadly substance. "After years of underinvestment, the previous Labour administration started the work of rebuilding and refurbishing the primary school estate. And when the new-build OLSP opens this year, every young person in Dumbarton, Alexandria and Clydebank will be in a modern state-of-the-art high school. This report highlights the need to get on with the job Labour started and rebuild or refurbish every school in West Dunbartonshire." Clydeside Action on Asbestos (CAA) has called for all schools to be asbestos free by 2040. Speaking before an annual memorial service for victims of mesothelioma, the group's manager, Phyllis Craig, said they want to raise awareness of Scots still exposed to asbestos in public buildings. She said: "We know that removing asbestos from all public buildings would be a mammoth and costly task and it is therefore imperative that asbestos in buildings has to be managed with the utmost responsibility and care. "However, it is a shocking reality that more than 1,500 schools and nurseries in Scotland contain asbestos. "Our priority is to see asbestos removed from all schools and nurseries in Scotland by 2040." A Glasgow City Council spokeswoman said: "We have a robust management programme in place to ensure safety in all our buildings and work closely with the Health & Safety Executive. "The management of asbestos within occupied buildings is a complex arena, and whilst there are times where removal is appropriate, it is also true that on many occasions, asbestos is safer when left alone and managed appropriately. "Asbestos that remains undisturbed presents no risk." Clydebank and Old Kilpatrick schools: * Carleith Primary School * Clydemuir Primary School * Edinbarnet Primary School * Gavinburn Primary School and EE & CCC * Kilpatrick Primary School * Linnvale Primary School and EE & CCC * Our Holy Redeemer's Primary School * Our Lady of Loretto Primary School * St Joseph's Primary School * Whitecrook Primary School & Cunard School North-west Glasgow schools: * Knightswood Secondary School * Bankhead Primary School * Blairdardie Primary School [getting new building] * Cloverbank Nursery * Corpus Christi Primary School * Drummore Primary School * Garscadden Primary School [now closed] * Langfaulds Primary School * Onslow Drive Day Nursery * Pikeman Nursery * Scotstoun Primary School * St Brendan's Primary School [now closed] * St Ninian's Primary School * St Paul's (Whiteinch) Primary School * Whiteinch Primary School * Yoker Primary School [now closed] ASBESTOS UPDATE: School Asbestos Find Led to Kitchen Closure ------------------------------------------------------------ Conor Gogarty, writing for Essex Live, reported that a Tiptree school was forced to close its kitchen after asbestos was found. Miles Bacon, headteacher of Thurstable School on Maypole Road, alerted parents on July 14 that the kitchen would be shut. He wrote: "The restaurant kitchens have had to be closed as a small amount of asbestos has been found and tests need to be completed before they can be used again. "The main servery (next to the Hall) will be closed at break and lunch. The Snack Shacks will be open at break, but will not have hot food available. "The Snack Shacks will be open at lunch, but only the Noodle Bar (next to the playground) will have a limited hot food option, as well as sandwiches, muffins etc." One parent, who did not give their name, said: "You can't help but worry when you hear something like this. "It's really concerning for the parents. Hopefully it will all be sorted out soon." Mr Bacon revealed catering at Thurstable will be as normal today. He said: "The small amount of asbestos found in the kitchens whilst removing a cupboard has been professionally sealed, air tests have been completed and are clear, and the kitchens have been re-opened. "The asbestos will be professionally removed over the summer. "At no time was there any risk to students, and the situation was managed strictly according to asbestos management regulations throughout." ASBESTOS UPDATE: South Ockendon Electrician Dies from Asbestos -------------------------------------------------------------- Richard Duggan, writing for Essex Live, reported that an electrician who began his career working in a factory filled with asbestos died as a result of mesothelioma, an inquest has heard. John Pedder, 65, collapsed at his home in Poplar Close, South Ockendon, as his wife helped him climb the stairs on May 27. Although paramedics were called they were unable to resuscitate him as there was a DNR in place, Essex Coroner's Court heard July 14. A post mortem examination carried out at Basildon Hospital gave a provisional cause of death as mesothelioma, a cancerous disease. "I turn to consider the work history of Mr Pedder to see whether or not this is a work related death," said Senior Coroner Eleanor McGann. She considered a letter provided by Mr Pedder's solicitors in which he wrote an account of his working life. That same letter has also been filed at the High Court of Justice. In April 1969, a year after he had become an apprentice electrician, Mr Pedder was sent to work for eight weeks at the Cape Asbestos factory in Barking. That placement, which was his first job, saw him charged with taking down light fittings to exchange them. Reading from Mr Pedder's letter, Mrs McGann said: "He had to climb the scaffolding which was covered in a thick layer of dust which must have contained asbestos. "Some times my face was level with the fittings and other times it was above my head. "I had to tip the fittings towards me. "This would cause the thick layer of dust to fall into his face and then over his body." Mrs McGann spoke of how Mr Pedder, who did not have anything to protect his face, would try to move out of the way of the dust but still breathed it in. Mr Pedder's letter also described how the dust was so thick he could see it floating in the air. "He continued to come into contact with asbestos with his work," said Mrs McGann. "I have accepted the evidence of Mr Pedder and my conclusion is that John Frederick Pedder died as a result of an industrial disease, namely mesothelioma." ASBESTOS UPDATE: Kitui Residents Exposed to Asbestos at Dumpsite ---------------------------------------------------------------- Philip Muasya, writing for Standard Media, reported that sometimes in March this year, a son to a prominent Kitui politician traveled from Nairobi to Kiongwe in Kitui East and rounded up a few villagers who have been farming on their family land. He had a sweet proposal. They were to vacate the land by June so that he could put up a massive tourist hotel, which would absorb many of them as workers. "We were excited since we thought with such a facility, we would easily get jobs and it would also help develop the economy of the region," recalls Paul Utee Kimanzi, a farmer who had a one-on-one chat with the farm owner. To sweeten the deal, the farm owner told them he would sink a high volume water borehole that would serve the hotel and the neighbouring community. What the residents did not know, however, was that they were being fooled to create room for a dump site of toxic waste materials. Soon, hopes of securing jobs at a high end hotel disappeared only to be replaced with worries for their lives following the dumping of tones of highly hazardous and dangerous asbestos waste materials buried only six feet deep in a water catchment area. The site where the purported hotel was to be build is a spectacular scenery, sandwiched between scenic hills which provides an aerial view of Kitui town, some 20 kilometres away and Zombe and Mutito towns. At the foot of the hills is Kiongwe River and other tributaries which feed into the giant Thua River downstream. Two days after the man had left with his lofty promises, a National Environment Management Authority (NEMA) officer based in Kitui together with Sonata Kenya Limited officials and a subsidiary and Earth Care companies visited the area, and they had an excavator. For the better part of the day, the earth mover tore into the ground with relentless fury, kicking dust and crushing stones into smithereens as it flattened the area. Locals gazed in awe believing it was preparation for the said hotel. Police escort But something curious happened when the revving excavator dug four giant pits and young men were hired to erect a chain link. A temporary toilet and bathroom were also erected. Days later, two trucks and a semi-trailer, all full to capacity with asbestos waste, under tight police escort, wound their way to the site in the wee hours. Mr Kimanzi and 19 other young men were hurriedly assembled to off- load the cargo. "They introduced themselves as officials from NEMA and paid us Sh800 each to off-load and bury the materials. But what drew our curiosity was when they gave us gloves, masks and aprons before we embarked on the job. We concluded this must be a dangerous mission," Mr Kimanzi said. He recalls one of the men identifying the material as asbestos and telling them they had to be properly protected since the material contains fibre which once inhaled is likely to cause lung cancer and other life-threatening ailments. Consuming water mixed with asbestos fibre would also be harmful, either for humans or animals, they were told. For two days, the young men would off-load the materials to the pits and cover them with soil. But their concern for their health surpassed the quick money they made and would soon blow the whistle to the rest of the villagers. Later, the residents formed a committee which wrote letters to NEMA, the police and the County Government seeking the removal of the material. It has now emerged that NEMA flouted set guidelines on disposal of asbestos waste while issuing the licence to Sonata Kenya Limited. Letters in possession of the Sunday Standard have established communication between the Kitui Directorate of Criminal Investigations (DCI) and the County Government addressed to NEMA and Sonata about the potential danger posed by huge quantities of asbestos dumped at Kiongwe area. Police claim they informed NEMA about the dangers the local community was exposed to but nothing has happened despite assurance that the toxic material was to be excavated. In the letters, police say the Director General of NEMA assured them that Sonata had been directed to immediately remove the waste and restore the area to its original wholesome status. The county government also wrote to NEMA raising the issue and demanded immediate action against Sonata. "You issued an Environmental Impact Assessment licence to Sonata Kenya Ltd without proper due process. The site where the materials were dumped is a water catchment area which feeds into Thua River and no disposal or dumping is allowed in such a critical ecosystem whatsoever," said the letter addressed to NEMA by the County Executive in-charge of Environment, Energy and Minerals investment George Mulatya. Mulatya further complained that the site slope is over 60 per cent hence not ideal of disposal of high risk materials such as asbestos. Another letter from the DCI signed by Richard Wasilwa, who was leading the investigations notes that samples collected from the site and taken to the Government Chemist to ascertain if indeed the material was asbestos turned out positive. Mr Wasilwa said they are looking for Sonata directors "to come and record statements and see who is responsible for the offence." On June 13, the DCI officers, together with senior NEMA officials from Nairobi, visited the site after which NEMA issued an order to the company to remove the materials. "So far NEMA headquarters has issued the company with a cessation and restoration order for asbestos disposal site on plot number 690/Nambani/Maluma," the letter reads. The DCI has already instituted charges against Sonata through one of its directors, Noah Khaemba, for breach of disposal licence guidelines. Mr Khaemba will appear at a Kitui court on July 25, to answer to among others, charges of flouting the disposal guidelines. ASBESTOS UPDATE: Asbestos Found at Cobb & Co. Site -------------------------------------------------- Chris Morris, writing for ODT.co.nz, reported that up to 15 contractors were exposed to asbestos-contaminated soil while working to open a new Cobb & Co restaurant at the Dunedin Railway Station, it has been confirmed. Plumbing, electrical and IT communications staff were among those installing services in underfloor areas of the building before the asbestos was detected, the Dunedin City Council confirmed yesterday. DCC organisational development and performance director Marian Rillstone said the risk to workers was considered "incredibly low", as the find was in damp soil and not airborne. However, Worksafe had been notified and the affected workers advised to consider adding their names to Worksafe's asbestos exposure database if they were concerned, she said. The council, as the building's owner, was working with Worksafe, Cobb & Co's directors and the contractors involved in the restaurant's fit-out to ensure the situation was managed appropriately, she said. Parts of the railway station were tested for asbestos last November but underfloor areas at the north end of the building -- where the Cobb & Co restaurant now was -- were not examined, Ms Rillstone said. Traces of the toxic mineral were only detected after an underfloor area at the southern end of the building was tested for asbestos in recent weeks. When soil tests results came back positive, the council "immediately" halted work on the Cobb & Co site at the northern end of the building while its underfloor areas were tested, she said. The results also confirmed asbestos in the damp soil, while air samples found no trace of contamination, she said. The contaminated area had since been sealed, allowing work to resume and the restaurant to open on July 4. The contractors had also met an occupational physician and been offered other help, Ms Rillstone said. The council, as the building's owner, was required by law to be aware of hazards and inform contractors and others on site of them, she said. It was also responsible for checking employers were taking steps to keep their workers safe. "From my perspective, I'm perfectly comfortable that we have acted responsibly." Cobb & Co director Ange Copson said the discovery "did slow down the proceedings a little bit", but had been handled appropriately and posed no risk to diners. "There was some concern for our contractors that had been working on the property, but there were checks put in place." A WorkSafe spokeswoman could not comment. ASBESTOS UPDATE: 2 Shefford Schools Shut Due to Asbestos Fears -------------------------------------------------------------- Bedfordshire On Sunday reported that two schools in Shefford have been closed because of safety concerns over nearby demolition work. Shefford Lower School and Robert Bloomfield Academy have both shut their doors to pupils due to an asbestos risk stemming from the demolition of the old Shefford Lower School over the weekend. The Acorn Pre-School has also closed for the day. A statement from the head of Robert Bloomfield, Mr Axford, read: "Due to demolition of the old Shefford Lower School, concerns have been raised about the safety of the environment." The head of Shefford Lower School shared the concerns and has also closed her school for the day. An email from Ms Callender, sent to parents, read: "Over the weekend we have been advised that the old schools buildings have been demolished. "There are concerns about a number of issues and unconfirmed risks concerning the safety of the site; the safety of the boiler room which is now partially demolished and any potential asbestos risk." She added: "We appreciate that this causes a great deal of inconvenience and we apologise for this but we are just not able to take the risk with the children." The demolition and subsequent asbestos warning has caused alarm with some parents in Shefford. Central Bedfordshire Council is currently investigating. ASBESTOS UPDATE: City Enlists EPA to Test for Asbestos from Fire ---------------------------------------------------------------- Bryce Gray, writing for St. Louis Post-Dispatch, reported that when a historic building built by Mark Twain's uncle, James Clemens Jr., burned in an early morning fire, nearby residents were initially concerned about the fire spreading to other homes - - at least two of which were ignited by windblown embers. Now, they're worried about whether the thin pieces of charred debris that still litter neighborhood yards and sidewalks contain asbestos. Larry Chapman, a resident of the 1600 block of Helen Street, north of the scene of the fire, says that debris he had tested independently confirmed the presence of asbestos. City officials said that they enlisted help of Environmental Protection Agency personnel to conduct tests of their own. Todd Waelterman, director of operations for the mayor's office, said the city became involved once public health concerns arose "beyond the building footprint" of the long-vacant Clemens House. Waelterman said officials had not received permission from the Clemens House owners -- the community development organization NorthSide Regeneration -- to access the property to collect samples for testing. Meanwhile, samples of burned material were being taken from nearby streets and public areas. A statement on behalf of NorthSide Regeneration and its owner, Paul McKee, said that the house is currently unsafe and that its insurance company has urged people not to enter it yet. "Once we receive assurance that the Clemens House is deemed structurally safe it will be available for entry and inspection and any necessary testing," spokesman Jim Gradl said in the statement. Asbestos was the only substance being tested for, according to John Frey, a federal on-scene coordinator for the EPA. He said test results are expected within a day of samples being submitted. Waelterman suggested that based on past documentation, the building's owners had removed asbestos from at least parts of the structure. "That's my understanding that, about three years ago, the flooring and the pipes were cleaned up," he said. But he wasn't sure if that asbestos removal extended to the roof -- much of which, he believes, went up in smoke. Some in the neighborhood are worried about material that has ended up on their property. "I'm afraid to cut my grass because I don't know what's in this grass," Chapman said. "And once I go over it with the motor, I'm blowing it into the air." ASBESTOS UPDATE: Test Confirms Asbestos Contamination at Church --------------------------------------------------------------- Robin Richards, writing for Needles Desert Star, reported that tests have now confirmed the presence of asbestos in Needles' Assembly of God Church at Broadway and C Street, according to a letter from Pastor Thomas Lamb presented to Needles City Council. The letter states a test conducted inside the church by an asbestos and environmental consulting firm revealed contamination from airborne chrysotile asbestos at 358,000 structures per square centimeter. A centimeter is .39 inches. Significant contamination is quoted to be 100,000. Lamb's contention: that work done in the old Ford garage across C Street from the church generated a dust containing asbestos that has blown into the church and school. That work, as described by Lamb, involved removing an envelope of asbestos and tar paper from around steel pipes. The church, and its attached school, were closed May 4 out of fears of such contamination. The congregation is meeting, temporarily, at 11 a.m. Sundays in the Needles Recreation Center. No school is being offered. Lamb's letter asks the city to hold the purported generators of the contamination responsible. Rick Daniels, city manager, said the letter has been sent to all of the regulatory agencies that issued permits for the work. Those include transporting the waste and acceptance, according to one document, disposal of 7.66 tons of bagged, non-friable asbestos at a landfill in Azusa, Calif. Regulators include the Mojave Desert Air Quality Management District. Bret Banks, of MDAQMD's compliance section and also executive director of the Antelope Valley Air Quality Management District, agreed that they are aware of the situation and are presently consulting with the California Air Resources Board about how to proceed. "Some of the things we're trying to put together," Banks said, "are working with the state to try to determine what the next steps are to investigate the facility across the street. Is there any increased exposure to residents as a result of the activity that happened there. "The first thing we're trying to determine is where the material came from. Is there a potential for continued contamination?" Once that's been resolved, Banks continued, regulators will see what needs to be done to in the way of cleanup. ASBESTOS UPDATE: Canada Lowers Limit of Exposure to Asbestos ------------------------------------------------------------ Jeff Cottrill, writing for OH&S Canada, reported that the Government of Canada furthered its efforts to ban asbestos across the country on July 12, when it announced that it was lowering the acceptable level of workplace exposure to airborne chrysotile asbestos to as close to zero as possible. The move was effective immediately, according to a news release from Employment and Social Development Canada (ESDC). Patty Hajdu, the federal Minister of Employment, Workforce Development and Labour, announced in Gatineau, Que. that the lower threshold would minimize the risk of workers contacting airborne asbestos fibres and align Canada's national standard with those of individual provinces and territories. The new limit is also more consistent with international standards. "Every employee has the right to a safe workplace," said Hajdu, as quoted in the release. "I'm proud to be announcing these long- overdue regulatory changes on asbestos, a key element of our government's comprehensive ban." Federal Science Minister Kirsty Duncan said in a press statement that protecting Canadians' health and safety "is of utmost importance" to the Justin Trudeau government. "Canadians can be confident my colleagues and I will continue to work hard to ensure that families, workers and communities will be protected from the harmful impacts of asbestos exposure," added Duncan, "so they may lead healthy, secure lives." The move is part of the federal government's ongoing strategy to ban all asbestos and asbestos-containing products by next year. Canada's occupational health and safety law regulations require exposure to airborne asbestos to follow the American Conference of Governmental Industrial Hygienists Threshold Limit Values at 0.1 fibres per cubic centimetre, according to a backgrounder on the ESDC website. Canadian Labour Congress president Hassan Yussuff, whose organization has been lobbying for a complete asbestos ban for some time, told COHSN that the lower threshold was a move "in the right direction" that would "send a clear message" that the carcinogenic mineral should not be used. "We welcome the action of the government," said Yussuff. "There's always going to be argument on what level of threshold is acceptable for workers to be exposed, and we believe no amount of asbestos fibres is safe. So lowering the threshold certainly brings us one step closer to the inevitable situation that the government already announced, a complete ban of both import and export of asbestos." Yussuff added that there is still a lot more work to do, including bringing all provincial asbestos-exposure standards into line and creating registries of buildings that still contain the mineral. "We've got some distance to go," he said. "I also believe that we need a national registry for workers that are dying from asbestos-related disease in this country," explained Yussuff, "to give us, really, an account as to how many people are affected by the substance, yet decades after the worker may have been exposed to it." ESDC announced its strategy on a nationwide asbestos ban last Dec. 15. In addition to the new occupational exposure limit, the strategy consists of regulating the handling, removal, repair and disturbance of asbestos-containing material to minimize worker exposure. Previously, Public Services and Procurement Canada had already banned the use of asbestos in all new federal construction and renovation projects (COHSN, April 12, 2016). "It moves us one step closer, of course, to try to make this country a safer place for workers who work in industry," Yussuff said about the lowered threshold. ASBESTOS UPDATE: Makeup Brand Contains Asbestos ----------------------------------------------- Sophia Tulp, writing for USA Today, reported that a popular retail chain catering to girls, Justice, says it has stopped selling a cosmetic and is conducting an investigation after a televised report alleged the product contains toxic substances, including asbestos. According to the report, they sent samples of a highlighter called Just Shine Shimmer Powder to a lab to see if it contained any non- listed ingredients. However, the station said its investigation turned up asbestos and a handful of toxic heavy metals. Exposure to asbestos, once commonly used for building insulation, has been found to lead to certain types of cancers and tumors on internal organs. Since the investigation, the product has been pulled from shelves, Justice says. The FDA prohibits sale of contaminated makeup products, like those containing the talc with asbestos. The chain, based in New Albany, Ohio, and part of Ascena Retail Group, has stores nationwide. While Justice officials could not be reached for comment, the chain posted a statement on Facebook. "Upon receiving an inquiry about the Just Shine Shimmer Powder product . . . we immediately began an investigation and, out of an abundance of caution, stopped the sale of this product in our stores and on our website," The statement read. "Our suppliers are required to produce all products in compliance with applicable laws and regulations. If any supplier fails to do so, it is our practice to hold them responsible. We cannot speculate regarding the matter while we investigate." In addition to asbestos, WTVD says the lab found four toxic heavy metals -- barium, chromium, selenium, and lead -- in Just Shine Shimmer Powder. This is not the first time that makeup products have been alleged to contain some less-than-desirable ingredients. Lead has been found in lipsticks, and formaldehyde in nail polishes, eyelash glues and deodorants. Some have called for the FDA to more strictly regulate the cosmetic industry. ASBESTOS UPDATE: Fairbanks Wins Summary Judgment in "Charbonneau" ----------------------------------------------------------------- In the case captioned DOROTHY CHARBONNEAU, individually and as personal representative of the estate of ROBERT CHARBONNEAU, deceased, Plaintiffs, v. FAIRBANKS COMPANY, et al., Defendants, C.A. No. N15C-01-045 ASB (Del Sup.), Judge Calvin L. Scoot, Jr., of the Superior Court of Delaware issued an Order granting Defendant Fairbanks's Motion for Summary Judgment due to the failure of Plaintiff Dorothy Charbonneau to satisfy the summary judgment criteria. The Superior Court ruled that, under Massachusetts law, to prove causation in an asbestos case, the plaintiff must establish (1) that the defendant's product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant's product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). Judge Scoot held that there is no evidence in the record that the replacement parts Mr. Charbonneau worked with were asbestos parts manufactured or supplied by Defendant, Fairbanks. Without any indication that the replacement packing, external insulation, or parts in the Fairbanks valve were manufactured by Fairbanks, Plaintiff asks the Court to speculate that Defendant is responsible. When viewing the evidence in a light most favorable to Plaintiff, a reasonable jury could not infer that Mr. Charbonneau was exposed to asbestos from Fairbanks product beyond speculation, Judge Scoot further held. A full-text copy of the Decision dated July 12, 2017, is available at https://is.gd/tz88iS from Leagle.com. ASBESTOS UPDATE: Sears Roebuck Wins Summary Judgment in "Glaser" ---------------------------------------------------------------- In IN RE: ASBESTOS LITIGATION, SCOTT GLASER and SANDRA HURST, Plaintiffs, v. SEARS ROEBUCK, CO., et al., Defendants, C.A. No. N15C-08-207 ASB (Del. Sup.), Judge Calvin L. Scott, Jr., of the Superior Court of Delaware issued an Order ruling in favor of Defendant Sears Roebuck's Motion for Summary Judgment for failure of Plaintiffs Scott Glaser and Sandra Hurst to satisfy the summary judgment criteria. The Superior Court of Delaware cited Michigan law, which provides that, in a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true:(a) The seller failed to exercise a reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person's injuries;(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the failure to conform to the warranty was a proximate cause of the person's harm. Judge Scoot held that Sears did not now and has never mined, milled, manufactured, processed or distributed wholesale asbestos- containing products as those terms are commonly used and understood in this litigation. The Court finds Plaintiffs did not meet their burden under Michigan law to show that Sears sold a product in a defective condition, the defect caused the injury, and the seller failed to exercise reasonable care. The court in Dreyer v. Excel Indus (S.A., 2009 WL 1184846) noted that the plaintiff offered no support for the proposition that a non- manufacturing seller is under a duty to warn of the dangers associated with a product manufactured by another. A full-text copy of the Decision dated July 12, 2017, is available at https://is.gd/WugcHS from Leagle.com. ASBESTOS UPDATE: Summary Judgment Bid in "Dionne" Denied -------------------------------------------------------- In IN RE: ASBESTOS LITIGATION, CLARENCE DIONNE, Plaintiffs, v. ABB, INC., et al., Defendants, C.A. No. N14C-11-062 ASB (Del. Sup.), Judge Calvin L. Scott, Jr., of the Superior Court of Delaware ruled in favour of Plaintiff Clarence Dionne and issued and Order denying the Defendant's Clear-Brooks' Motion for Summary Judgment. The Superior Court ruled that Wisconsin law is the applicable substantive law in this matter. Under Wisconsin law, a plaintiff must prove that the alleged defect in the defendant's product was a cause of the plaintiff's injury or damage. Plaintiff, according to Judge Scoot, has presented evidence that a reasonable juror could infer Plaintiff was exposed to asbestos from Defendant's boilers. Plaintiff also provided evidence that Cleaver-Brooks sold replacement asbestos-containing parts such as gaskets, cement, and rope. Further, Plaintiff was responsible for ordering the replacement parts for these boilers and he testified that he ordered the parts from Cleaver-Brooks. Plaintiff also demonstrated that it took hours to remove and replace insulation in the boilers. A reasonable jury could infer that Defendant's asbestos products were a substantial factor in causing Plaintiff Clarence Dionne's injuries. A full-text copy of the Decision dated July 12, 2017, is available at https://is.gd/mzBlCZ from Leagle.com. ASBESTOS UPDATE: Cal. App. Modifies Opinion in "Paulus" ------------------------------------------------------- The Court of Appeals of California, Second District, Division Four, issued an Order modifying its Opinion filed on June 30, 2017, in the case captioned ELAINE MARGIE PAULUS et al., Plaintiffs and Respondents, v. J-M MANUFACTURING COMPANY, INC., Defendant and Appellant, No. B269904 (Cal. App.). According to the modified opinion, there is no change in judgment. As before, the petition for rehearing is denied. A full-text copy of the Decision dated July 12, 2017 is available at https://is.gd/Kr4bPl from Leagle.com. ASBESTOS UPDATE: J.D. Lee Can Practice Pro Hac Vice in "Moore" -------------------------------------------------------------- Magistrate Judge Dennis L. Howell of the United States District Court for the Western District of North Carolina, Asheville Division, issued an order granting the application for admission to practice pro hac vice of Joshua Douglas Lee, Esq., in the case captioned HOWARD MILTON MOORE, JR. and LENA MOORE, Plaintiffs, v. ALCATEL-LUCENT USA, INC., et al., Defendants., No. 1:16-cv-157 (W.D.N.C.), together with Timothy W. Bouch, Esq., as good members of this Court, having paid the admission fee and provided their email addresses. A full-text copy of the Order dated July 12, 2017 is available at https://is.gd/cKTbNq from Leagle.com. Howard Milton Moore, Jr., Plaintiff, represented by Kevin W. Paul -- kpaul@sgpblaw.com -- Simon Greenstone Panatier Bartlett, PC, pro hac vice. Howard Milton Moore, Jr., Plaintiff, represented by Stuart J. Purdy, Esq. -- spurdy@sgpblaw.com -- Simon Greenstone Panatier Bartlett, PC, pro hac vice & Janet Ward Black -- info@wardblacklaw.com -- Ward Black, P.A. Lena Moore, Plaintiff, represented by Kevin W. Paul, Simon Greenstone Panatier Bartlett, PC, pro hac vice, Stuart J. Purdy, Simon Greenstone Panatier Bartlett, PC, pro hac vice & Janet Ward Black, Ward Black, P.A. Alcatel-Lucent USA, Inc., Defendant, represented by Joshua Douglas Lee, -- jlee@rshc-law.com -- Riley Safer Holmes & Cancila, LLP, pro hac vice & Timothy W. Bouch, Leath Bouch Crawford & von Keller, 92 Broad Street, PO Box 59, Charleston, SC 29401, Phone: 843-937-8811 Fax: 843-937-0606. AT&T Corp., Defendant, represented by Timothy W. Bouch, Leath Bouch Crawford & von Keller. General Electric Company, Defendant, represented by Jennifer M. Techman, -- jmtechman@ewhlaw.com -- Evert Weathersby Houff. Metropolitan Life Insurance Company, Defendant, represented by Keith E. Coltrain -- Keith.Coltrain@WallTempleton.com -- Wall, Templeton & Haldrup, PA. Union Carbide Corporation, Defendant, represented by Moffatt G. McDonald, -- mmcdonaldhsblawfirm.com -- Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick -- sfrick@hsblawfirm.com -- Haynsworth, Sinkler, Boyd P.A., pro hac vice, W. David Conner -- dconner@hsblawfirm.com -- Haynsworth, Sinkler, Boyd P.A., pro hac vice & Charles Monroe Sprinkle, III -- csprinkle@hsblawfirm.com -- Haynsworth Sinkler Boyd, P.A. Domco Products Texas, Inc., Defendant, represented by Timothy Peck, Esq. -- tim.pecksmithmoorelaw.com -- Smith Moore Leatherwood LLP. ASBESTOS UPDATE: Court Dismisses Claims Against Trane in "Roper" ---------------------------------------------------------------- Judge Thomas S. Zilly of the United States District Court for Western District of Washington, Seattle, by virtue of a stipulation between Plaintiffs and Trane U.S., Inc., entered an Order of dismissal of Plaintiffs' claims against defendant Trane, its predecessors, successors, subsidiaries, parents, affiliated entities, directors and officers in the case captioned WILLIAM ROPER and CAROL ROPER, individually and as a marital community, Plaintiffs, v. BORGWARNER MORSE TEC, INC., as successor-by-merger to BorgWarner Corp., et al., Defendants, No. 2:16-cv-01453-TSZ (W.D. Wash.), without prejudice and without costs to either party. A full-text copy of the Decision dated July 12, 2017 is available at https://is.gd/YBgNqk from Leagle.com. William Roper, Plaintiff, represented by Christopher P. Gladd, Esq. NAPOLI SHKOLNIK, PLLC, pro hac vice -- 125-01 Queens Boulevard, Kew Gardens, NY 11415. William Roper, Plaintiff, represented by Michael David Myers, Esq. --- michaeldmyersattorneyatlaw.com -- MYERS & COMPANY & Tammy C. Barcenilla, NAPOLI SHKOLNIK PLLC, pro hac vice. 360 Lexington Ave, 11th Floor, New York, NY 10017 USA Telephone: (844) 230-7676. Carol Roper, Plaintiff, represented by Christopher P. Gladd, NAPOLI SHKOLNIK, PLLC, pro hac vice, Michael David Myers, MYERS & COMPANY & Tammy C. Barcenilla, NAPOLI SHKOLNIK PLLC, pro hac vice. Brand Insulations, Inc, Defendant, represented by David A. Shaw, Esq. --dshaw@williamskastner.com -- WILLIAMS KASTNER & GIBBS & Malika Johnson, Esq. -- mjohnson@williamskastner.com -- WILLIAMS KASTNER. CBS Corporation, Defendant, represented by: Barry Neal Mesher, Esq. Brian D. Zeringer, Esq. Christopher S. Marks, Esq. SEDGWICK LLP 1420 Fifth Ave, Suite 4100 Seattle, WA 98101 Telephone: (206) 223-7961 Fax: (206) 223-7107 Crane Co, Defendant, represented by G. William Shaw, K&L GATES LLP & Ryan J. Groshong, K&L GATES LLP. Foster Wheeler Energy Corporation, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. General Electric Company, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. Goulds Pumps, Inc, Defendant, represented by Ronald C. Gardner, -- rgardner@gandtlawfirm.com -- GARDNER TRABOLSI & ASSOC. PLLC. IMO Industries, Inc, Defendant, represented by James Edward Horne -- horne@gth-law.com -- GORDON THOMAS HONEYWELL & Michael Edward Ricketts, -- mricketts@gth-law.com -- GORDON THOMAS HONEYWELL. Ingersoll-Rand Company, Defendant, represented by Mark B. Tuvim -- mtuvim@grsm.com -- GORDON & REES & Kevin J. Craig -- kcraig@grsm.com -- GORDON & REES. Lone Star Industries, Inc, Defendant, represented by Howard (Terry) I. Hall, thall@foleymansfield.com FOLEY & MANSFIELD, Melissa K. Roeder, mroeder@foleymansfield.com FOLEY & MANSFIELD & Zackary A. Paal, zpaal@foleymansfield.com FOLEY & MANSFIELD. Metropolitan Life Insurance Company, Defendant, represented by Richard G. Gawlowski, gawlowski@wscd.com WILSON SMITH COCHRAN & DICKERSON. Schneider Electric USA, Inc, Defendant, represented by Alice Coles Serko, SEDGWICK LLP, Barry Neal Mesher, SEDGWICK LLP & Rachel Tallon Reynolds, SEDGWICK LLP. 600 University St Ste 2915, Seattle, WA, 98101-4172 Office (206) 462-7560 ASBESTOS UPDATE: Loss of Consortium Claim Barred by Res Judicata ---------------------------------------------------------------- The Court of Appeals of California, Second District, Division Four, affirmed the judgment of the District Court for summary adjudication against Plaintiff Janet Stewart's loss of consortium claim in favour of Defendant Union Carbide Corporation on the ground of res judicata. In Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, the wife of a smoker who developed lung cancer sued cigarette manufacturer Philip Morris for loss of consortium. For some unknown reason, she quickly dismissed the lawsuit with prejudice, but after her husband's death claimed loss of consortium in a wrongful death action. The California Supreme Court held that the wrongful death action was barred by the doctrine of res judicata, which prohibits a second suit between the same parties on the same cause of action. The California Supreme Court held that the wrongful death action was barred by the doctrine of res judicata, which prohibits a second suit between the same parties on the same cause of action. It concluded the widow's wrongful death action involved the same primary right and breach as her former loss of consortium action and sought the same post-death loss of consortium damages. The Court is bound by decisions of our state's highest court that remain good law and may not re-examine their correctness. The Court of Appeals ruled further that, it is undisputed that appellant alone received the entire amount of the settlements with the Manville and Gypsum trusts, even though those settlements resolved all heirs' wrongful death claims. Since appellant is the only heir who collected payment under the settlements, she is the only party with a potentially double recovery in this wrongful death case. The appealed case is JANET STEWART, Plaintiff and Appellant, v. UNION CARBIDE CORPORATION, Defendant and Respondent, No. B267405 (Cal. App.). A full-text copy of the Decision dated July 12, 2017 is available at https://is.gd/bKxDYG from Leagle.com. The Arkin Law Firm, Sharon J. Arkin, Esq., Farrise Firm, Simona A. Farrise, Esq. -- farriselaw@farriselaw.com -- for Plaintiff and Appellant. Polsinelli, Stephen M. Nichols, Esq. -- snichols@polsinelli.com -- Farah S. Nicol -- fnicol@polsinelli.com -- and David K. Schulz PO Box 348408 Sacramento, CA 95834 for Defendant and Respondent ASBESTOS UPDATE: Court Sets Filing Deadlines in "Carroll" --------------------------------------------------------- The United States District Court of Western District of Wisconsin issued an Order granting in part, reserving and denying in part different motions and sub-motions of parties in the case captioned PATRICIA CARROLL, individually and as personal representative of THE ESTATE OF RONALD KENNETH CARROLL, deceased, Plaintiff, v. JOHN CRANE INC., Defendant, No. 15-cv-373-wmc (W.D. Wis.), setting date for partial telephonic pre-trial conference and deadlines for additional filings. A full-text copy of the Decision dated July 11, 2017 is available at https://is.gd/RjayIT from Leagle.com. Estate of Ronald Kenneth Carroll, Plaintiff, represented by Sam Iola -- siola@sgpblaw.com -- Simon Greenstone Panatier Bartlett, PC. Estate of Ronald Kenneth Carroll, Plaintiff, represented by Steven Scott Schulte, -- sschulte@sgpblaw.com -- Simon Greenstone Panatier Bartlett, PC, David Warren Henderson,302 N. Market St., Suite 300 Dallas, TX 75202 Simon Greenstone Panatier Bartlett, PC & Craig Ronald Steger, Hale, Skemp, Hanson, Skemp & Sleik, 505 King St. Suite 300, La Crosse, Wisconsin 5460 Patricia L. Carroll, Plaintiff, represented by Sam Iola, Simon Greenstone Panatier Bartlett, PC, Steven Scott Schulte, Simon Greenstone Panatier Bartlett, PC, David Warren Henderson, Simon Greenstone Panatier Bartlett, PC & Craig Ronald Steger, Hale, Skemp, Hanson, Skemp & Sleik. John Crane, Inc., Defendant, represented by Daniel Raymond Griffin, -- dgriffin@otmblaw.com -- O'Connell Tivin Miller & Burns LLC & Mark Ingram Tivin, O'Connell -- mark@otmblaw.com -- Tivin, Miller & Burns. John Crane, Inc., Cross Defendant, represented by Mark Ingram Tivin, O'Connell, Tivin, Miller & Burns. : 135 S La Salle St Ste 2300, Chicago John Crane, Inc., Cross Claimant, represented by Daniel Raymond Griffin, O'Connell Tivin Miller & Burns LLC & Mark Ingram Tivin, O'Connell, Tivin, Miller & Burns. John Crane, Inc., Counter Defendant, represented by Daniel Raymond Griffin, O'Connell Tivin Miller & Burns LLC & Mark Ingram Tivin, O'Connell, Tivin, Miller & Burns. Metropolitan Life Insurance Company, Counter Defendant, represented by Smitha Chintamaneni -- schintam@vonbriesen.com -- von Briesen & Roper. ASBESTOS UPDATE: Cleaver-Brooks Wins Summary Judgment in PI Suit ---------------------------------------------------------------- In IN RE ASBESTOS LITIGATION, DOROTHY CHARBONNEAU, individually and as personal representative of the estate of ROBERT CHARBONNEAU, deceased, Plaintiffs, v. Cleaver-Brooks, Inc., et al., Defendants, C.A. No. N15C-01-045 ASB (Del. Sup.), Judge Calvin L. Scoot, Jr., of the Superior Court of Delaware issued an Order granting Defendant Cleaver-Brooks Motion for Summary Judgment due to the failure of Plaintiff Dorothy Charbonneau to satisfy the summary judgment criteria. The Superior Court ruled that, under Massachusetts law, to prove causation in an asbestos case, the plaintiff must establish (1) that the defendant's product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant's product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). There is no evidence in the record that the replacement parts Mr. Charbonneau worked with were asbestos parts manufactured or supplied by Defendant, Cleaver-Brooks. As stated under Morin (Morin v. AutoZone Ne., Inc., 943 N.E.2d 495, 499 Mass. App. Ct. 2011), it is Plaintiff's burden to show that Defendant's product contained asbestos and that the victim was exposed to the asbestos in the defendant's product. Plaintiff has not met this burden A full-text copy of the Decision dated July 11, 2017 is available at https://is.gd/tz88iS from Leagle.com. ASBESTOS UPDATE: Expert Disclosure Deadline Stipulations OK'd ------------------------------------------------------------- The United States District Court for Western District of Washington, Seattle, issued an Order to Continue the Expert Disclosure Deadline in the case captioned WILLIAM ROPER and CAROL ROPER, individually and as a marital community, Plaintiffs, v. BORGWARNER MORSE TEC, INC., as successor-by-merger to BorgWarner Corp., et al., Defendants, Case No. 2:16-cv-01453-TSZ (W.D. Wash.), based on all parties filed Corrected Joint Stipulation. A full-text copy of the Decision dated July 11, 2017 is available at https://is.gd/tz88iS from Leagle.com. William Roper, Plaintiff, represented by Christopher P. Gladd, NAPOLI SHKOLNIK, PLLC, pro hac vice -- 125-01 Queens Boulevard, Kew Gardens, NY 11415 William Roper, Plaintiff, represented by Michael David Myers, --- michaeldmyersattorneyatlaw.com -- MYERS & COMPANY & Tammy C. Barcenilla, NAPOLI SHKOLNIK PLLC, pro hac vice. 360 Lexington Ave, 11th Floor, New York, NY 10017 USA Telephone: (844) 230-7676 Carol Roper, Plaintiff, represented by Christopher P. Gladd, NAPOLI SHKOLNIK, PLLC, pro hac vice, Michael David Myers, MYERS & COMPANY & Tammy C. Barcenilla, NAPOLI SHKOLNIK PLLC, pro hac vice. Brand Insulations, Inc, Defendant, represented by David A. Shaw, - -dshaw@williamskastner.com -- WILLIAMS KASTNER & GIBBS & Malika Johnson, mjohnson@williamskastner.com WILLIAMS KASTNER. CBS Corporation, Defendant, represented by, Barry Neal Mesher, Esq., SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. Crane Co, Defendant, represented by G. William Shaw, K&L GATES LLP & Ryan J. Groshong, K&L GATES LLP Foster Wheeler Energy Corporation, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. General Electric Company, Defendant, represented by Barry Neal Mesher, SEDGWICK LLP, Brian D. Zeringer, SEDGWICK LLP & Christopher S. Marks, SEDGWICK LLP. Goulds Pumps, Inc, Defendant, represented by Ronald C. Gardner, -- rgardner@gandtlawfirm.com -- GARDNER TRABOLSI & ASSOC. PLLC. IMO Industries, Inc, Defendant, represented by James Edward Horne -- horne@gth-law.com -- GORDON THOMAS HONEYWELL & Michael Edward Ricketts, -- mricketts@gth-law.com -- GORDON THOMAS HONEYWELL. Ingersoll-Rand Company, Defendant, represented by Mark B. Tuvim -- mtuvim@grsm.com -- GORDON & REES & Kevin J. Craig -- kcraig@grsm.com -- GORDON & REES. Lone Star Industries, Inc, Defendant, represented by Howard (Terry) I. Hall, thall@foleymansfield.com FOLEY & MANSFIELD, Melissa K. Roeder, mroeder@foleymansfield.com FOLEY & MANSFIELD & Zackary A. Paal, zpaal@foleymansfield.com FOLEY & MANSFIELD. Metropolitan Life Insurance Company, Defendant, represented by Richard G. Gawlowski, gawlowski@wscd.com WILSON SMITH COCHRAN & DICKERSON. Schneider Electric USA, Inc, Defendant, represented by Alice Coles Serko, SEDGWICK LLP, Barry Neal Mesher, SEDGWICK LLP & Rachel Tallon Reynolds, SEDGWICK LLP. 600 University St Ste 2915, Seattle, WA, 98101-4172 Office (206) 462-7560 ASBESTOS UPDATE: GMS Units Still Face 53 PI Suits at April 30 ------------------------------------------------------------- GMS Inc.'s subsidiaries are still defending themselves against 53 pending asbestos-related personal injury lawsuits as of April 30, 2017, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended April 30, 2017. The Company states, "The building materials industry has been subject to personal injury and property damage claims arising from alleged exposure to raw materials contained in building products as well as claims for incidents of catastrophic loss, such as building fires. As a distributor of building materials, we face an inherent risk of exposure to product liability claims in the event that the use of the products we have distributed in the past or may in the future distribute is alleged to have resulted in economic loss, personal injury or property damage or violated environmental, health or safety or other laws. "Such product liability claims have included and may in the future include allegations of defects in manufacturing, defects in design, a failure to warn of dangers inherent in the product, negligence, strict liability or a breach of warranties. In particular, certain of our subsidiaries have been the subject of claims related to alleged exposure to asbestos-containing products they distributed prior to 1979, which have not materially impacted our financial condition or operating results. "Since 2002, as of April 30, 2017, approximately 979 asbestos- related personal injury lawsuits have been brought and we vigorously defend against them. Of these, 891 have been dismissed without any payment by us, 29 are on deferred or inactive court dockets, 53 are pending and only 6 have been settled." A full-text copy of the Form 10-K is available at https://is.gd/kMfE6F ASBESTOS UPDATE: H.B. Fuller Still Defends PI Suits at June 3 ------------------------------------------------------------- H.B. Fuller Company still faces asbestos-related claims and lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 3, 2017. The Company states, "We have been named as a defendant in lawsuits in which plaintiffs have alleged injury due to products containing asbestos manufactured more than 30 years ago. The plaintiffs generally bring these lawsuits against multiple defendants and seek damages (both actual and punitive) in very large amounts. In many cases, plaintiffs are unable to demonstrate that they have suffered any compensable injuries or that the injuries suffered were the result of exposure to products manufactured by us. We are typically dismissed as a defendant in such cases without payment. If the plaintiff presents evidence indicating that compensable injury occurred as a result of exposure to our products, the case is generally settled for an amount that reflects the seriousness of the injury, the length, intensity and character of exposure to products containing asbestos, the number and solvency of other defendants in the case, and the jurisdiction in which the case has been brought. "A significant portion of the defense costs and settlements in asbestos-related litigation is paid by third parties, including indemnification pursuant to the provisions of a 1976 agreement under which we acquired a business from a third party. Currently, this third party is defending and paying settlement amounts, under a reservation of rights, in most of the asbestos cases tendered to the third party. "In addition to the indemnification arrangements with third parties, we have insurance policies that generally provide coverage for asbestos liabilities, including defense costs. Historically, insurers have paid a significant portion of our defense costs and settlements in asbestos-related litigation. However, certain of our insurers are insolvent. We have entered into cost-sharing agreements with our insurers that provide for the allocation of defense costs and settlements and judgments in asbestos-related lawsuits. These agreements require, among other things, that we fund a share of settlements and judgments allocable to years in which the responsible insurer is insolvent We do not believe that it would be meaningful to disclose the aggregate number of asbestos-related lawsuits filed against us because relatively few of these lawsuits are known to involve exposure to asbestos-containing products that we manufactured. Rather, we believe it is more meaningful to disclose the number of lawsuits that are settled and result in a payment to the plaintiff. To the extent we can reasonably estimate the amount of our probable liabilities for pending asbestos-related claims, we establish a financial provision and a corresponding receivable for insurance recoveries. "Based on currently available information, we have concluded that the resolution of any pending matter, including asbestos-related litigation, individually or in the aggregate, will not have a material adverse effect on our results of operations, financial condition or cash flow." A full-text copy of the Form 10-Q is available at https://is.gd/1qVSbk ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. 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