/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170908.mbx C L A S S A C T I O N R E P O R T E R Friday, September 8, 2017, Vol. 19, No. 178 Headlines AETNA INC: Sued in California over Disclosure of Medical Data AIR TRANSAT: Rosenberg Kosakoski Commences Class Action AMAZON: Faces Class Action Over Defective Eclipse Glasses AMAZON: Shopper Wants 9th Cir. to Revive List-Price Class Action AMD: Settles Class Action Over Llano APU for $29.5 Million AMERICAN GUARD: "McGee" Suit Seeks Unpaid Wages under Labor Code AMERICOLLECT INC: Placeholder Bid for Class Certification Filed AMYRIS INC: California Securities Class Action Still Ongoing ANGLO AMERICAN: Miners Set to Receive Lung Disease Compensation ANTONIO B. WON: Court Denies Class Certification Bid as Moot APELILA AND J: Martinez Seeks Unpaid Wages under Labor Code BOIRON INC: 7th Cir. Affirms Denial of Class Cert in "Conrad" BRASKEM: In Class Action Settlement Talks with Shareholders CACAFE INC: "Marino" Suit Seeks to Conditionally Certify Class CANADA: Appeal in Genocide Class Action Dismissed CANADIAN FOOTBALL: Former Players File Concussion Class Action CARRIBBEAN CRUISE: Freedom Home's Bid for $60K Atty Fees Denied CENTURYLINK INC: Williams Sue over Fees for Phantom Services CENTURYLINK: Overbilling Class Actions Continue to Pile Up CHAPARRAL ENERGY: Appeals Bankruptcy Court's Order in Class Suit CHAPARRAL ENERGY: "Dodson" Class Suit Voluntarily Dismissed CHAPARRAL ENERGY: Appeal in Donelson-Friend Case Underway CHAPARRAL ENERGY: 2nd Amended Petition Filed in West-Hopson Suit CHAPARRAL ENERGY: "Griggs" Class Action Suit Ongoing CHARIOT TRANSIT: Blumenthal, Nordrehaug Files Labor Class Action CHILDREN'S HOMES: Dickens Seeks Unpaid Wages under Labor Code CONWAY, AR: Notifications Going Out to Police, Fire Workers CORIZON HEALTH: Awaits Approval of Class Action Settlement CUMULUS MEDIA: Plaintiffs Voluntarily Dismiss NY Class Suit CVS HEALTH: Hagens Berman Pulls Drug Suit DAIRYAMERICA INC: Court OK's Bid for Leave to Amend Complaint DENKA PERFORMANCE: Faces Class Action Over Chloroprene Emissions DR. REDDY'S: West Val Pharmacy Sues over Generic Divalproex ER DUA MEDICAL: Faces "Alvillar" Suit over Wage & Hour Violations ELECTROLUX: Class Action on Dishwashers Allowed to Continue EQUIFAX INC: 11th Cir. Affirms Dismissal of "Pedro" EXECONE MANAGEMENT: "Welch" Suit Seeks Unpaid OT Wages under FLSA FCA US: "LaRoe" Suit Moved to Kansas Federal Court FCA US: "Budris" Suit Moved to Connecticut Federal Court FLINT, MI: Appeals Ct. Upholds City's Sewer Rates Ordinance FRANKLIN COLLECTION: Torres Files Placeholder Class Cert. Bid GALENA BIOPHARMA: GALE Investor Group Named Lead Plaintiff GLOBUS MEDICAL: Shearman & Sterling Discusses 3rd Circuit Ruling GOLF CLUB: Vega Sues for Payment of Tips and Gratuities GRANITE TELECOMMUNICATIONS: White Seeks Unpaid Wages under FLSA GULF MOTEL: "Straub" Suit Seeks Minimum & OT Wages under FLSA HOME DEPOT: Faces FCRA Class Action Over Background Check INTELLIPHARMACEUTICS: Kahn Swick Files Securities Class Action INTERCLOUD SYSTEMS: $3 Mil. Settlement Awaits Court Approval J.W. LOGISTICS: "Venable" Suit Seeks OT Wages under FLSA JAMES HARDIE: 5-Month Opt in Granted in Cladding Class Action JUST BORN: Faces Slack Fill Class Action in California LA LAKERS: Insurance Company Won't Have to Cover TCPA Settlement LISA VILLWOK: Court Refuses to Certify Class in "Valentine" Suit MAGICJACK: Finkelstein & Krinsk Files Class Action Suit MATHESON TRI-GAS: $370K Deal in "Van Kempen" Suit Has Final Nod MDL 2705: Court Grants Bid to Dismiss Parmesan Cheese Suit MERCHANTS & MEDICAL: Placeholder Bid for Class Cert. Filed MONSANTO COMPANY: Faces "Suding" Suit over Herbicide Roundup NAT'L COLLEGIATE: Ex-Lacrosse Player Objects to Settlement NEBRASKA: Court Names Guardian Ad Litem in Minor Inmate's Suit NEW TELECOM: "Lin" Suit Seeks Minimum Wages, OT under Labor Law NEW ZEALAND: Edgecumbe GP Practice Joins Flooding Class Action OCWEN LOAN: Court Denies Bid to Dismiss "Marino" TCPA Suit OFFICE DEPOT: Alvarez Seeks Wages & OT Pay under Labor Code ONTARIO: To Fight Class Action Over Jail Conditions OREXIGEN THERAPEUTICS: 9th Cir. Appeal Awaits Hearing Date PACIFIC INVESTMENT: "Hampton" Class Action Claims Barred by SLUSA PALM BEACH, FL: Asks Judge to Throw Out Class Suit Over Utilities PAYMENT DATA: Renewed Bid to Dismiss Class Suit Still Pending PEABODY ENERGY: Class Action Plaintiffs May Pursue Insurer PENNYMAC LOAN: Triminio Sues over Debt Collection Practices PEOPLES TRUST: Faces CA for Exposing Customers to Risk of Theft PEPSICO: Faces Class Action Over Pop Tax on Bottled Water PEPSICO INC: Faces "Williams" Suit over Sweetened Beverage Tax PETMED EXPRESS: Faces Securities Class Action in Florida PETTA ENTERPRISES: "Graybill" Suit Seeks to Certify FLSA Class QUAKER OATS: Baker & Hostetler Attorneys Discuss Court Ruling RADNER LAW: $101K in Atty's Fees Awarded in "Firneno" FCRA Suit REV-1 SOLUTIONS: Placeholder Bid for Class Certification Filed S-L DISTRIBUTION: Must Face Snack Food Franchise Class Action SCANA: Faces Class Action Over Jenkinsville Project SCE&G: Faces Class Action Over V.C. Summer Project's Failure SCENIC TOURS: 1,200+ Travellers Win Class Action Over Bus Travel SEAGATE TECH: Bid to Strike Claims in HDD Suit Partly OK'd SEVCON INC: Wilkinson Seeks to Enjoin Merger with BorgWarner SLATER & GORDON: Class Action in Final Stages of Settlement SOLOMON AND SOLOMON: Court Dismisses "Daniels" FDCPA Suit SOUTHWEST BANCORP: Faruqi & Faruqi Files Securities Class Action SUBWAY: 7th Cir. Reverses Settlement in Footlong Sandwich Suit SULLIVAN UNIVERSITY: Faces Class Action Over Unpaid Wages SULLIVAN UNIVERSITY: Ky. High Ct. Reverses Denial of Class Cert TEN NETWORK: Shareholders Mull Class Action Over CBS Deal UBER TECHNOLOGIES: "Congdon" Suit Seeks to Certify Class UBER TECHNOLOGIES: Ditches Lyft Drivers' Spying Class Action UNITED STATES: Oct. 6 Opt-in Deadline Set in Raisin Growers' Suit UNITED STATES: Govt. Employees Await Data Breach Compensation UNITED STATES: "Jenkins" Subclass II Settlement Has Final OK VACASA: Faces Class Action Over Vacation Rental Fees VERIZON NEW JERSEY: "Struzynski" Suit Moved to NJ Federal Court VIGO COUNTY, IN: Jail Inmates' Suit Granted Class-Action Status VOLKSWAGEN AG: Faces Class Actions in Canada Over Alleged Cartel WAYNE COUNTY, MI: 6th Cir. Affirms Dismissal of "Hammoud" WELL LIFE: Oct. 31 Settlement Final Approval Hearing Set WELLS FARGO: Arbitration Push Questioned in Class Action WELLS FARGO: Faces "Smith" Suit over Automotive Insurance Scheme WELLS FARGO: Sued Over Mortgage Interest Rate-Lock Extension Fees WISCONSIN HOSPITALITY: Court Certify Class of Delivery Drivers YAHOO INC: Must Face Nationwide Litigation, Judge Says YIN WALL: Court Certifies Ginseng Growers Class in "Baumann" ZB NA: Referral Bid Hearing in "Evans" Suit Continued to Oct. 2 * Class Actions Deter Corporate Misconduct, Draft Paper Says * Trump Administration Fights Class Action Provision in BICE * Trump Targets Class-Action Right in DOL Fiduciary Rule Asbestos Litigation ASBESTOS UPDATE: Defendant Argues It Was Sued for Ransom ASBESTOS UPDATE: Concerns Raised About Asbestos Exposure at Hotel ASBESTOS UPDATE: Asbestos Costs Dunedin Hospital $5.5MM ASBESTOS UPDATE: Man to Sue Former Employer Over Exposure Claim ASBESTOS UPDATE: Atty Loses Restitution Appeal ASBESTOS UPDATE: Mobile Police Has $20,000 Asbestos Problem ASBESTOS UPDATE: Officer Denies Bid to Open Asbestos Proceeding ASBESTOS UPDATE: Asbestos Concerns at Canon City Middle School ASBESTOS UPDATE: Houston Floods Raise Risks of Asbestos Exposure ASBESTOS UPDATE: Singla Gets $2,500 Fine for Asbestos Hazard ASBESTOS UPDATE: DDT Judge Rejects Claim for Pension ASBESTOS UPDATE: Study Provides Pleural Mesothelioma Risk Plateau ASBESTOS UPDATE: Asbestos Clean-up Needed at Regeneration Site ASBESTOS UPDATE: Man Has Mesothelioma Due to Secondary Exposure ASBESTOS UPDATE: Family Issues Rallying Call for Justice ASBESTOS UPDATE: ITT Wins Coverage in Asbestos Insurance Trial ASBESTOS UPDATE: EPA Confirm Asbestos Found at CFA Burn-off Site ASBESTOS UPDATE: Halt on Coal Mining Study Has Asbestos Results ASBESTOS UPDATE: OHSU, Contractor Fined for Asbestos Violations ASBESTOS UPDATE: Consolidation of Cantarano, Gladu Cases Denied ASBESTOS UPDATE: PI Claims vs. Pneumo Abex Dropped in "Bagwell" ASBESTOS UPDATE: PI Claims vs. 7 Cos. Dismissed in "Haynes" ASBESTOS UPDATE: Denial of Bid to Dismiss Claim vs. Texaco Upheld ASBESTOS UPDATE: Couple Given More Time for Discovery ASBESTOS UPDATE: Punitive Damages Claim vs. PACCAR Dismissed ASBESTOS UPDATE: Punitive Damages Claim vs. Daimler Dropped ASBESTOS UPDATE: PI Claims vs. Goodyear Dismissed in "McSwain" ASBESTOS UPDATE: Murphy Oil Wins Summary Judgment in "Kivell" ASBESTOS UPDATE: Air Products Wins Summary Judgment in "Kivell" ASBESTOS UPDATE: Asbestos P.I. Claims vs. LG Electronic Dismissed ********* AETNA INC: Sued in California over Disclosure of Medical Data ------------------------------------------------------------- S.A., on behalf of himself individually, and on behalf of all those similarly situated the Plaintiff, v. AETNA, INC.; AETNA HEALTH OF CALIFORNIA INC.; AND DOES 1 THROUGH 10, the Defendants, Case No. BC674088 (Cal. Super. Ct., Aug. 28, 2017), seeks to recover damages, statutory damages, fines, costs, fees, punitive damages, and attorney's fees, under California Confidentiality of Medical Information Act, Privacy Breach Notice Statutes, and Common Law Invasion of Privacy. This action arises out of Aetna's utter failure to protect and safeguard Plaintiff's confidential and protected personal, sensitive, medical, healthcare identifying, and/or financial information ("PHI") ultimately resulting in the unlawful disclosure of such PHI to numerous unauthorized recipients and substantial damages, emotional distress, and irreparable harm. For purposes of this Complaint, although the acronym PHI is most typically associated with health information, in this Complaint and lawsuit the use of PHI is meant to be given its broadest meaning and encompass not merely medical or healthcare information, but all information of a person that may be confidential, private, or otherwise protected. The Plaintiff is a member of Aetna and maintains his health insurance through Aetna. Aetna is a provider of health care insurance and/or a health care service plan and provides health insurance to Plaintiff. As a member of Aetna, Aetna was privy, came into possession, and maintained Plaintiffs PHI, of which Aetna has a legal duty to ensure the confidentiality and security. Aetna failed to protect the confidentiality of Plaintiff's PHI and unlawfully disclosed Plaintiff's PHI for the world to see and indeed others did see such PHI without Plaintiff's consent. In fact, Aetna sent in the U.S. Mail a letter with Plaintiff's PHI clearly visible to the world through the large clear plastic window. Aetna is an American managed health care company, which sells traditional and consumer directed health care insurance plans and related services, such as medical, pharmaceutical, dental, behavioral health, long-term care, and disability plans.[BN] The Plaintiff is represented by: Torin A. Dorros, Esq. DORROS LAW 8730 Wilshire Boulevard, Suite 350 Beverly Hills, CA 90211 Telephone: (310) 997 2050 Facsimile: (310) 496 1320 E-mail: tdorros@dorroslaw.com AIR TRANSAT: Rosenberg Kosakoski Commences Class Action ------------------------------------------------------- Rosenberg Kosakoski LLP on Aug. 29 disclosed that a national class action has been commenced against AIR TRANSAT alleging that the airline has engaged in a scheme to fraudulently misrepresent commercial flight itineraries to both consumers and aviation authorities with the objective of increasing ticket prices and reducing operation costs with the use of sub-standard aircraft. Recent reporting in the national media has revealed that Air Transat internally refers to its scheme as the "Mexican Game". The class action alleges that the Mexican Game works as follows: Air Transat advertises commercial flights with itineraries that do not include any stops between departure and destination, inducing both (a) consumers to purchase tickets at inflated cost and (b) aviation authorities to approve seemingly unremarkable flight plans. Air Transat then instruct flight crews, first, to cause these flights to make one or more undisclosed, but premeditated, stops during the scheduled itinerary and, second, to refrain from advising consumers and aviation authorities of these undisclosed stops until the affected flights are airborne and consequently incapable of interruption. The Mexican Game allows Air Transat to utilize sub-standard aircraft otherwise incapable of executing the advertised itineraries. The utilization of these inferior aircraft, although considered dangerous by flight crews, significantly reduces operational costs. The class action was filed in the British Columbia Supreme Court by Jessica Spencer, a 33-year-old accountant from Victoria, British Columbia whose dream destination wedding was ruined after Ms. Spencer fell victim to Air Transat's utilization of the Mexican Game. Ms. Spencer brings this national class action on her own behalf and on behalf of all passengers who were similarly misled by Air Transat. Graham Kosakoski -- graham@rklitigation.ca -- of Vancouver firm Rosenberg Kosakoski LLP says as follows: "If these allegations prove true, we should all be deeply troubled that a Canadian airline would engage in such calculated deception in order to defraud, and possibly endanger, its customers." Rosenberg Kosakoski LLP -- http://www.rklitigation.ca-- is a leading B.C. class actions firm. It was the first law firm to bring a class action to the B.C. Court of Appeal under the Class Proceedings Act. [GN] AMAZON: Faces Class Action Over Defective Eclipse Glasses --------------------------------------------------------- Tina Bellon, writing for Reuters, reports that Amazon has been hit with a proposed class action lawsuit by a couple who claims defective eclipse glasses purchased through the online retailer damaged their eyes. In the lawsuit, filed in federal court in South Carolina on Aug. 29, Corey Payne and his fiancee, Kayla Harris, said they purchased a three-pack of eclipse glasses on Amazon in early August, assuming that the glasses would allow them to safely view the United States' first coast-to-coast total solar eclipse in a century on Aug. 21. Later that day, Mr. Payne and Ms. Harris began to experience headaches and eye watering. In the following days, they developed vision impairment, including blurriness and distorted vision, their lawsuit said. Amazon did not immediately respond to a request for comment on the lawsuit. The couple said they did not look into the sky without wearing the glasses when they viewed the eclipse. Starting on August 10, Amazon said it began to email customers to issue a recall of potentially hazardous solar eclipse glasses it was unable to verify as having been manufactured by reputable companies. Amazon did not disclose the scale of the recall or a list of affected vendors. Mr. Payne and Ms. Harris said they did not receive notice of the recall. They are seeking to represent other customers who never received a warning from Amazon and suffered similar injuries from the company's alleged negligence. Experts cautioned the public to steer clear of unsafe counterfeits flooding the United States in the runup to the event. While no data exists for how many eclipse glasses were in circulation overall, shady distributors of purportedly solar-safe shades abound on the Internet, experts said. [GN] AMAZON: Shopper Wants 9th Cir. to Revive List-Price Class Action ---------------------------------------------------------------- Bonnie Eslinger and Michael Macagnone, writing for Law360, report that a California Amazon shopper urged the Ninth Circuit on Aug. 30 to revive his putative class action alleging the internet retailer inflates its comparative discounts, saying a lower court wrongly used Washington law to find Amazon.com's arbitration provision valid instead of using California's more consumer- friendly legal standard. Trenton Kashima of Finkelstein & Krinsk LLP, an attorney for plaintiff Allen Wiseley and the proposed class, told the appellate court during oral arguments on Aug. 30 that a district court judge had erred in finding no material difference between California and Washington law in determining whether an arbitration provision within the site's conditions of use was unconscionable. Under the law in the Golden State, Amazon's arbitration clause wouldn't be enforced, he said. In California, the elements that determine the fairness of legal language mandating claims be sent to arbitration are measured on a more flexible sliding scale test, he said. Mr. Wiseley's proposed class action claims Amazon uses the highest price a product was ever sold for as a comparative "list price" in order to make a customer think its own prices offer a steeper discount. The district court ordered the matter into arbitration, citing agreements that include arbitration terms presented to customers before they complete their purchase. U.S. Circuit Judge Sandra Ikuta asked what factors determine whether California or Washington law applies. "Washington law sets a very very high bar for unconscionability," Kashima said. For example, under Washington law, to invalidate a contract for unconscionability a plaintiff first has to show that the arbitration provision is "incomprehensible," which isn't the situation in Wiseley's case, the attorney said. The plaintiff additionally has to show that "undue pressure" was also imposed in a way that prevented the contracting party from understanding the terms, "also something we don't have here," Kashima said. California has a well-established interest in protecting its consumers from entering into unfair contracts, the attorney told the court. Judge Ikuta replied skeptically. "Washington has a policy not to protect its consumers, is that your suggestion?" she asked. Although it might be important to Washington, California has some of the strongest consumer protection laws, Kashima responded. Amazon's conditions of use are presented to consumers in an unclear manner, the attorney said. There's an admonishment that by clicking on "Place Your Order," a customer agrees to Amazon's terms, but that notice wasn't conspicuous and near the button to complete the transaction, he said. Amazon's attorney, James Grant -- jamesgrant@dwt.com -- of Davis Wright Tremaine LLP, rejected the idea that under any legal standard, Amazon's agreement and arbitration provision were presented in a way that was unfair to consumers. As for the difference in California and Washington law, that's "irrelevant," he said. U.S. Circuit Judge William Fletcher asked then if either could be applied in deciding the case. "The court should apply Washington law because Washington law governs under the contract," Mr. Grant said. "But here, it makes no difference." The judges also asked Amazon's attorney to respond to the plaintiff's concerns that the contract terms were one-sided, including a term that allowed Amazon the right to "amend its arbitration clause at any time." Mr. Grant said that wouldn't be applied to buyers retroactively. "We've interpreted that to mean going forward," he said. In written filings to the Ninth Circuit prior to the Aug. 30 oral arguments, Mr. Wiseley rejected the Seattle-based online mega- retailer's stance that regardless of the state, the arbitration provision is supported by the Federal Arbitration Act, which supersedes state laws. "Amazon rewrites the FAA to argue that arbitration agreements are super-contracts, which are always enforceable so long as they exist . . . [and] suggests that there will be 'profound consequences' if appellant's legal arguments are allowed to stand," Mr. Wiseley said on Aug. 29. "The FAA, however, allows parties to assert state law contract defenses, such as unconscionability. The Ninth Circuit has also invalided similar arbitration agreements without the sky falling." He went on to argue that the instant case is "relatively unique," with claims of a confusing and disjointed arbitration agreement within a conditions of use agreement, making it unlikely any decision by the Ninth Circuit invalidating the arbitration clause would be "broadly applied." Mr. Wiseley launched his proposed class action in September 2014 in state court alongside Andrea Fagerstrom, both of whom made several purchases with Amazon. However, Ms. Fagerstrom is not a party to the instant appeal. She instead submitted a demand for arbitration with the American Arbitration Association, and her claims are still pending, according to Amazon. After the state suit was kicked to the federal level in early 2015, Amazon moved to arbitrate the claims individually, pointing to the conditions of use agreement. U.S. Circuit Judges Sandra S. Ikuta and William A. Fletcher, and U.S. District Judge Sarah Evans Barker of the Southern District of Indiana, by designation, sat on the panel for the Ninth Circuit. Mr. Wiseley is represented in the appeal by Trenton R. Kashima of Finkelstein & Krinsk LLP. Amazon is represented by James C. Grant of Davis Wright Tremaine LLP. The case is Wiseley v. Amazon.com Inc., Case No. 15-56799 (9th Cir.). [GN] AMD: Settles Class Action Over Llano APU for $29.5 Million ---------------------------------------------------------- Brandon Hill, writing for HotHardware, reports that Llano has once again surfaced from the murky deaths to make headlines in the tech world. The last time HotHardware talked about AMD's Llano Accelerated Processing Unit (APU), AMD investors filed a lawsuit against the company regarding its hyping up the product's 2011 launch. "[AMD] repeatedly highlighted the strong and significant interest in, demand for, and unit shipments of its Llano APUs," said the plaintiffs in the 2014 filing. "Defendants falsely and misleadingly represented that AMD's desktop business was in a 'strong position' and that it would continue to rebound in 2012," which was allegedly a violation of federal securities laws. AMD Llano Die Shot Well, here we are over three years later, and AMD is finally willing to settle the lawsuit, which reached class action status. AMD would pay out $29.5 million to settle with shareholders. Those who wish to claim a portion of the settlement must have been an AMD shareholder between April 4, 2011 and October 18, 2012. The company decided to cut its losses and settle instead of going forward with a trial (which could have resulted in the company paying out even more money). At the center of the case were statements that AMD made with regards to the viability of Llano's performance in the marketplace, and how its success would add to the company's bottom line. According to the lawsuit, AMD claimed that it would have "ample product available" at launch and that it was "well positioned" to leverage the back-to-school season for maximum sales. AMD also stated that high margins on the chip would leave to higher 2H gross margins. "Defendants' statements about Llano were false and misleading," the lawsuit alleges. "The yield problems that plagued the Company in 2010 had not been resolved, and by the time of the Llano launch in June 2011, AMD was significantly supply-constrained such that AMD was only able to ship whatever meager supply of Llano it was able to generate to its top-tier OEM customers, leaving AMD's important channel customers without any supply of Llano at all." The lawsuit backs up its above assertions by the fact that AMD admitted that it had supply issues with Llano when it issued Q3 revenue guidance, which resulted in a 14 percent decline in the company's share price after the announcement. AMD's troubles with Llano continued into 2012, after this most OEM's were already own to the next big thing -- AMD's Trinity APU. AMD eventually took a $100 million write down on unsold Llano inventory. Judge Yvonne Gonzalez Rogers has yet to approve the settlement, but more details will be revealed October 9th. As stipulated by the nearly $30 million settlement, AMD would continue to deny wrongdoing in the case. [GN] AMERICAN GUARD: "McGee" Suit Seeks Unpaid Wages under Labor Code ---------------------------------------------------------------- DARNISHA MCGEE, an individual, on behalf of herself and all others similarly situated and aggrieved employees, the Plaintiff, v. AMERICAN GUARD SERVICES, INC., a California corporation, and DOES 1-100, inclusive, the Defendant, Case No. BC674084 (Cal. Super. Ct., Aug. 28, 2017), seeks to recover damages, wages, penalties, and all other available relief on behalf of Plaintiff and all other persons who are or were employed by Defendant under the California Labor Code. The Plaintiff also pursues individual wrongful retaliation and constructive termination claims arising as a proximate result of her complaints and protected activities regarding violations of California payroll, breaks, and other wage laws by Defendants. The Plaintiff was employed by Defendants as a non-exempt, hourly security guard working at three different warehouses in Compton, California. The case is a class action arising from Defendants' systematic violations of the California Labor Code and the Business & Professions Code pertaining to Defendants': (i) failure to pay all wages due; (ii) failure to authorize and permit meal and rest periods; (iii) failure to pay timely wages both during employment and upon separation from employment; (iv) failure to issue compliant itemized wage statements; (v) and unfair competition. AGS is a full security services company and can help with all of your security needs including uniformed officers, mobile patrol, & security consulting.[BN] The Plaintiff is represented by: Alan I. Schimmel, Esq. Michael W. Parks, Esq. Michael Kim, Esq. SCHIMMEL & PARKS, APLC 15303 Ventura Blvd,, Suite 650 Sherman Oaks, CA 91403 Telephone: 818 464 5061 Facsimile: 818 464 5091 - and - Shawna S. Nazari, Esq. LAW OFFICES OF SHAWNA S. NAZARI, APLC 15303 Ventura Blvd., 9th Floor Sherman Oaks, CA 91403 Telephone: (818) 605 7776 Facsimile: (818) 380 3016 AMERICOLLECT INC: Placeholder Bid for Class Certification Filed --------------------------------------------------------------- In the lawsuit styled LENI THOMOLLARI, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. AMERICOLLECT, INC and THE ORTHOPEDIC INSTITUTE OF WISCONSIN, the Defendant, Case No. 2:17-cv-01178 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class, appointing 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=OUZNtoNZ The Plaintiff is represented by: 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 AMYRIS INC: California Securities Class Action Still Ongoing ------------------------------------------------------------ Amyris, Inc. continues to defend itself against securities class actions filed in the United States District Court for the Northern District of California, according to the Company's Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017. In April 2017, a securities class action complaint was filed against Amyris and our CEO, John G. Melo, and CFO, Kathleen Valiasek, in the U.S. District Court for the Northern District of California. The complaint seeks unspecified damages on behalf of a purported class that would comprise all individuals who acquired our common stock between March 2, 2017 and April 17, 2017. The complaint alleges securities law violations based on statements made by the Company in its earnings press release issued on March 2, 2017 and Form 12b-25 filed with the SEC on April 3, 2017. Amyris, Inc. said "We believe the complaint lacks merit, and intend to defend ourselves vigorously." Amyris, Inc. is an industrial biotechnology company that is applying its technology platform to engineer, manufacture and sells high performance products into the Health and Nutrition, Personal Care and Performance Materials markets. The company is based on Emeryville, California and was founded in 2003 in Sasn Francisco Bay Area by a group of scientists from the University of California, Berkeley. ANGLO AMERICAN: Miners Set to Receive Lung Disease Compensation --------------------------------------------------------------- Kevin Crowley, writing for Bloomberg, reports that former workers who contracted deadly lung diseases in South African gold mines decades ago may soon finally receive compensation. Six large mining companies including Anglo American Plc have set aside about $390 million to settle a class-action lawsuit brought by victims. At the same time, a $290 million government-managed fund says it's tripled annual payouts after tackling administrative problems that have left more than 100,000 verified claimants waiting for money. "There's broad agreement on the terms of a settlement," said Richard Spoor, the human-rights lawyer who brought the class- action suit after first beginning the case against producers in 2006. The parties are working on processes to distribute payments to tens of thousands of claimants living across southern Africa, with work likely to be concluded by the end of the year, he said in a phone interview. Alan Fine, a spokesman for the companies, agreed on details of the timeframe, although he said that an accord has yet to be finalized. With the world's biggest and deepest gold mines, South Africa dominated production for more than a century until 2007, drawing in workers from all over the region. Under whites-only rule, which ended in 1994, safety standards and environmental regulation were minimal, leaving hundreds of thousands of mainly black workers exposed to harmful silica dust. Many developed silicosis, a condition caused by pulmonary damage that makes breathing progressively more difficult, and tuberculosis, a bacterial infection that is now South Africa's biggest killer and more easily infects those with weak lungs. Bongani Nkala, 63, lost his gold mining job in 1996 after becoming too sick to work. "The mine bosses told us we are the living corpse," he said in an interview last year. "We are not useful for the mines anymore. We are like the dead." No Liability While the six mining companies are preparing to settle, they do not admit liability for ignoring safety standards or failing to protect their employees. The five-member FTSE/JSE Africa Gold Mining Index has gained 5.3 percent this year, compared with a 12 percent advance for South Africa's benchmark all-share gauge. "The companies believe they have a legal basis for defending the case," Fine said by email. "It is nonetheless the working group's view that a fair and sustainable settlement is preferable to long and protracted litigation." Spoor brought the companies to the negotiating table in May 2016 when a Johannesburg judge certified the miners and families of deceased workers as a class, paving the way for a class-action suit. "There's no way of undoing the harm that's been done on the mines for over 100 years," Spoor said. "This is about trying to secure some substantial relief for people today who are suffering from this condition." Spoor has a long history of fighting mining companies on behalf of workers. He won a 490 million-rand settlement from Gencor Ltd. in 2003 after it was sued by South African workers from asbestos mines it controlled. In the lung-disease case, he received backing from Motley Rice LLC, a U.S. law firm that spearheaded litigation against the tobacco industry that resulted in a $246 billion settlement in 1998. Government Fund While the judge said the final number of claimants could be as high as 500,000, figures provided by the Department of Health show that only 33,045 had been certified as having silicosis as of 2014. Spoor estimates the final figure will be between 50,000 and 100,000. In addition to the lawsuit settlement, victims are entitled to money from a government-controlled fund that companies paid into since 1912. The fund governed by the Occupational Diseases in Mines and Works Act was originally set up to cover lung diseases in white and mixed-race workers and was expanded in 1973 to cover black and Indian workers. However, the companies' levies were only enough to cover compensation payments, not the administrative costs needed to track down and diagnose claimants, according to Barry Kistnasamy, the Department of Health's compensation commissioner. Paper Files "You take a scheme that covers white workers, mainly around Johannesburg, and expand it to cover half a million workers from all across South Africa and surrounding countries," he said in an interview. "Now you have to track these people down, provide diagnostic services, and there was no money to do that." When Kistnasamy was brought in to fix the fund in 2012, he found 32 rooms filled with paper files, many of which were incomplete or duplicated. He set out to secure the needed funds to digitize records and set up programs around the country to trace and certify claimants. The fund has paid out 220 million rand ($17 million) to 6,700 people in the last 12 months, Kistnasamy said. That's up from the 2,000 claimants compensated in 2015-2016. "It's been a long process," he said. "We're making progress and people are now getting paid what they're owed." [GN] ANTONIO B. WON: Court Denies Class Certification Bid as Moot ------------------------------------------------------------ In the lawsuit captioned VICENTE PALACIOS CRAWFORD, individually and on behalf of all others similarly situated, the Plaintiffs, v. ANTONIO B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM; RICARDO C. DUENAS, EDDIE BAZA CALVO, and ANTHONY ADA, all in their official capacities only; and JOHN DOES 1-5, the Defendants, Case No. 1:15-cv-00001 (D. Guam), the Hon. Judge Frances M. Tydingco- Gatewood entered an order: 1. denying Crawford's motion for summary judgment; 2. granting in part Defendants' motions for summary judgment; 3. granting summary judgment to each individual Defendant with respect to Crawford's claims arising under 42 U.S.C. section 1983; 4. dismissing Crawford's claims arising under 42 U.S.C. section 1983 with prejudice; 5. dismissing without prejudice Crawford's remaining local law claims; and 6. denying Crawford's motion to certify class as moot, because all claims have been dismissed. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=BusKBulM APELILA AND J: Martinez Seeks Unpaid Wages under Labor Code ----------------------------------------------------------- ALBERTO MARTINEZ, on behalf of himself and others similarly situated, the Plaintiff, v. APELILA AND J, LLC, a California limited liability company; ONO HAWAIIAN BBQ, INC., a California corporation; and DOES 1 to 100, inclusive, the Defendants, Case No. BC674002 (Cal. Super. Ct., Aug. 28, 2017), seeks to recover unpaid wages under California Labor Code. According to the complaint, Defendants failed to pay employees for all hours worked at the minimum wage and/or applicable overtime rates of pay; failed to provide legally compliant meal periods and/or pay meal period premium wages; failed to provide legally complaint rest breaks and/or pay rest break premium wages; failed to provide accurate wage statements; and failed to timely pay employee all earned and unpaid wages due upon separation of employment.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Andrea Rosenkranz, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd. Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432 0000 Facsimile: (310) 432 0001 E-mail: ilavi@lelawflrm.com arosenJkranz@lelawfirm.com BOIRON INC: 7th Cir. Affirms Denial of Class Cert in "Conrad" ------------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, issued an Opinion affirming in part and remanding for further proceedings the case captioned CHAD CONRAD, Plaintiff-Appellant, v. BOIRON, INC., and BOIRON USA, INC., Defendants-Appellees, No. 16-3656 (7th Cir.). Chad Conrad filed a class action against Boiron for deceptive marketing, but he was left with only his individual claim after the district court refused to certify his proposed class. About a year later Boiron offered Conrad $5,025, more than he could hope to win at trial. Conrad does not want to accept the money because it will moot his claim; Boiron wants to force him to take it for the same reason. The district court refused to certify Conrad's proposed class and found his individual claim moot. Conrad's main arguments are straightforward: he attacks both the court's refusal to certify the class and its rejection of his individual claim based on Boiron's use of Rule 67 to try to moot the case. The Seventh Circuit held, "The evidence is out there for all to see, and Conrad has given us no reason to think that there are any smoking guns left to uncover. His own actions reinforce this conclusion: he took no steps to pursue discovery between his 2013 motion for class certification and his last-ditch effort to avoid dismissal in 2016." "We conclude, therefore, that the district court was well within its rights to refuse to certify Conrad's proposed class. In so ruling, we stress that we place no significance on Boiron's later effort to render Conrad's individual case moot by buying him off with a Rule 67 deposit into the court's registry. The denial of class certification stands on its own," the Seventh Circuit added. "Before concluding, we should say a word about the district court's conclusion that Conrad does not have standing to request injunctive relief under the Illinois Consumer Fraud Act (ICFA).Plaintiff bears the burden of showing that he has standing for each type of relief sought," the Seventh Circuit further held. The court reasoned that Conrad, as an individual, knows about Boiron's refund program and that he is fully aware of the fact that Oscillo is nothing but sugar water. No injunction could therefore redress any potential injury for him, and that lack of redressability defeats standing. The Seventh Circuit agreed with that ruling. This is not a case like Laurens v. Volvo Cars of N. Am., LLC, No. 16-3829 (7th Cir. Aug. 22, 2017), where class treatment was still a possibility and the record did not unequivocally foreclose the possibility of injunctive relief for the putative named plaintiff. In the present case, there will be no class, given the Seventh Circuit's affirmance of the district court's decision denying certification. If Conrad has a claim at all, it is an individual one for money only. The district court did not abuse its discretion in denying class certification, and it correctly rejected Conrad's individual claim for injunctive relief. It erred, however, insofar as it concluded that the passage of time meant that Conrad no longer had the legal right to reject Boiron's offer of settlement. The Seventh Circuit therefore affirmed in part and remanded for further proceedings consistent with this opinion. A full-text copy of the Seventh Circuit's August 24, 2017 Opinion is available at https://is.gd/2xrZXe from Leagle.com. Stewart M. Weltman, 39 S La Salle St Chicago, IL 60603, for Plaintiff-Appellant. Christina Guerola Sarchio - csarchio@orrick.com - for Defendant- Appellee. Joseph Siprut - jsiprut@siprut.com - for Plaintiff-Appellant. Max A. Stein - mstein@boodlaw.com - for Plaintiff-Appellant. Kelsi Brown Corkran - kcorkran@orrick.com - for Defendant- Appellee. Richard L. Miller, II - rmiller@siprut.com - for Plaintiff- Appellant. Elaine A. Ryan - eryan@mcguirewoods.com - for Plaintiff-Appellant. Benjamin Chagnon - bchagnon@orrick.com - for Defendant-Appellee. Patricia N. Syverson - psyverson@bffb.com - for Plaintiff- Appellant. Gregory D. Beaman - gbeaman@orrick.com - for Defendant-Appellee. Nada Djordjevic - ndjordjevic@boodlaw.com - for Plaintiff- Appellant. Ke Liu - kliu@siprut.com - for Plaintiff-Appellant. BRASKEM: In Class Action Settlement Talks with Shareholders ----------------------------------------------------------- Michael Place, writing for BNAmericas, reports that Brazilian petrochemical firm Braskem said on Aug. 29 it is negotiating a settlement with a group of shareholders that filed a class action against the company. [GN] CACAFE INC: "Marino" Suit Seeks to Conditionally Certify Class -------------------------------------------------------------- In the lawsuit titled LEONA MARINO on behalf of herself and all others similarly situated, the Plaintiff, v. CACAFE, INC., JANE ZHENG, TED CHAO; COSTCO WHOLESALE CORPORATION, CLUB DEMONSTRATION SERVICES, INC., and DOES 1 through 10 inclusive, the Defendants, Case No. 4:16-cv-06291-YGR (N.D. Cal.), the Plaintiff will move the Court on October 24, 2017, for and order to: 1. conditionally certify this action for purposes of notice and discovery; 2. sent judicial notice to all putative collective class members; 3. approve the form and content of Plaintiff's proposed judicial notice; 4. direct Defendants to supplement the Class List with contact information for each putative collective class member within ten days; and 5. authorize a 90-day notice period for putative class members to seek to opt-into the case. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=82kN5AgO The Plaintiff is represented by: Bryan Schwartz, Esq. Eduard Meleshinsky, Esq. BRYAN SCHWARTZ LAW 1330 Broadway, Suite 1630 Oakland, CA 94612 Telephone: (510) 444 9300 Facsimile: (510) 444 9301 E-mail: bryan@bryanschwartzlaw.com eduard@bryanschwartzlaw.com CANADA: Appeal in Genocide Class Action Dismissed ------------------------------------------------- The Lawyer's Daily reports that in the case Thompson v. Manitoba (Minister of Justice), [2017] M.J. No. 209, motion by the plaintiffs from an order staying their proposed class action in favour of another proposed class proceeding, the action concerned damages arising from the government policy in the 1960s to remove Aboriginal children from their families and place them with non- Aboriginal parents. In 2015, the appellants commenced their action against Manitoba and Canada seeking damages for breach of fiduciary duty, negligence and cultural genocide. In 2016 another action was commenced against the Attorney General of Canada as the only named defendant seeking damages for similar losses. At the carriage motion, the motion judge concluded that the 2016 action would best serve the interests of the putative class and the policy objectives of the Class Proceedings Act. He considered the differences in the proposed class definitions between the two actions, the causes of action and the defendants named in the two claims. The motion judge found that the prospects for certification of the 2016 action were greater than the 2015 action because of its narrower focus and because it was based on an action which had already been certified in Ontario. HELD: Appeal dismissed. Even though certification of the 2016 claim, with the existing class definition, would result in the exclusion of individuals who fell within the class definition in the appellants' action, they would not be deprived of access to justice, but would be required to advance individual claims. The motion judge was cognizant of this issue and his weighing of this factor was entitled to deference. The motion judge was alive to the differences between the two actions regarding the defendants. The appellants had not demonstrated that the motion judge erred in this regard and his decision was entitled to deference. In finding that the proposed representative plaintiffs in both actions might be suitable representative plaintiffs in the proceeding and that there was nothing to indicate that the plaintiffs in the 2016 action would do anything other than fairly and adequately represent the interests of the proposed class, the motion judge was entitled to consider an affidavit from a lawyer from the law firm representing the plaintiffs in the 2016 action, in addition to the statement of claim. Thompson v. Manitoba (Minister of Justice), [2017] M.J. No. 209, Manitoba Court of Appeal, B.M. Hamilton, W.J. Burnett and J. leMaistre JJ.A., July 21, 2017. Digest No. TLD-August282017009 [GN] CANADIAN FOOTBALL: Former Players File Concussion Class Action -------------------------------------------------------------- Steve Buist, writing for Hamilton Spectator, reports that it's not often that a scientific article in a neuroscience journal plays a central role in two lawsuits. More than 200 former Canadian Football League players in a class- action lawsuit, and former Tiger-Cat Arland Bruce in a separate case, are suing the CFL, its nine teams and the CFL's former commissioner, accusing the league of negligence in relation to brain injuries. What's unusual is that the class-action lawsuit also names 81- year-old neurosurgeon Charles Tator and a Toronto neuroscience research institute as defendants. Both lawsuits include allegations that raise concerns about the relationship between the CFL and the Canadian Sports Concussion Project, which is led by Tator and the Krembil Neuroscience Centre in Toronto. The allegations have not been proven in court. The statement of claim in the Arland Bruce lawsuit goes a step further and raises concerns about the relationship between the Canadian Sports Concussion Project, the CFL and the CFL Alumni Association. Both lawsuits take aim at an article published in May 2013 in a scientific journal called Frontiers in Human Neuroscience. The article was titled "Absence of chronic traumatic encephalopathy in retired football players with multiple concussions and neurological symptomatology." The paper reports on the findings from the post-mortem examinations of six donated brains from deceased CFL players. Tator was one of nine co-authors listed on the highly-technical scientific paper. Eight of the nine were associated with various departments of the University of Toronto, including the Krembil Neuroscience Centre. Also named as one of the co-authors was Leo Ezerins, executive director of the CFL Alumni Association and a former Tiger-Cat. The Arland Bruce lawsuit alleges the CFL and the CFL Alumni Association provided funding to the Canadian Sports Concussion Project and researchers at the Krembil centre. The lawsuit also alleges this put Ezerins in a conflict of interest because he was the head of the CFL Alumni Association and a member of the Canadian Sports Concussion Project at the same time. Ezerins, Tator and the Krembil Neuroscience Centre were originally named as defendants in the Bruce lawsuit, but they were recently released. What's most curious about the scientific paper is its title. Although it states clearly "Absence of" chronic traumatic encephalopathy (CTE) in former players, the paper reports that in fact, evidence of CTE was found in three of the six brains. The other three brains showed evidence of Parkinson's disease, Alzheimer's disease and Amyotrophic Lateral Sclerosis - in other words, all six brains showed evidence of neurodegenerative disease. The paper includes a frightening chart of symptoms for each player compiled from medical records and interviews with family members. All six of the players had short-term memory problems. All six had some type of speech or language problems. All six had suffered multiple concussions. Five of the six showed signs of progressive dementia, four of the six suffered from delusions, and three of the six experienced hallucinations. "I couldn't believe what I was reading," said Robyn Wishart, a Vancouver-based lawyer who is representing the plaintiffs in both lawsuits against the CFL. "When is absence ever 50 per cent? "I don't know how that ever got published," Wishart added. Tator declined to comment on the lawsuit's allegations because the matter is still before the court. Tator also declined to comment on the "Absence of CTE" scientific article cited in the lawsuit. The Bruce lawsuit alleges the article's authors concluded that there was no provable connection between concussion and sub- concussive injuries and CTE in CFL players, which is "against the weight of the medical evidence." The authors "knew or ought to have known" the link between CTE and concussive head trauma was "statistically more significant than the link between smoking and lung cancer," according to allegations in the Bruce lawsuit. The suit also alleges Ezerins interfered with an independent project involving cognitive testing of 25 former Ticats in 2011 and that he "ultimately stopped the researchers" at McMaster University from interpreting the test results. (That project has no connection to the current Spectator concussion research.) At the time, Ezerins told the Spectator, "We're really protecting the sport and protecting the CFL. It's a very important issue and we want to make sure it doesn't reflect poorly on the game of football, that we have the proper perspective." The lawsuit also alleges Ezerins stated the "stories of concussion and its long-term effects do not represent the majority of former football players." Ezerins' conduct in interfering with the Tiger-Cat study was "reprehensible," the lawsuit alleges. The statements of claim for both lawsuits also allege that former CFL commissioner Mark Cohon claimed in 2011 that "unreported concussions were far less of a problem in the CFL." A Harvard University study released in May raises questions about how the league would know if that's true. The Harvard analysis compared the health-related policies and practices of North America's professional sports leagues, including the CFL. The 258-page report notes that the concussion rate in the CFL is actually slightly higher than the NFL's rate. In fact, the CFL's rate of concussions per game was the highest of the leagues studied. In a further irony, the report notes that the CFL's concussion rate had to be estimated from other sources because "research has not revealed any injury-tracking system in use by the CFL." The CFL did not accept an invitation to review the Harvard analysis prior to its publication and did not provide any comments to the researchers. [GN] CARRIBBEAN CRUISE: Freedom Home's Bid for $60K Atty Fees Denied --------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order denying Freedom Home Care's Motion for an award of attorney's fees in the case captioned GERARDO ARANDA, GRANT BIRCHMEIER, STEPHEN PARKES, and REGINA STONE, on behalf of themselves and classes of others similarly situated, Plaintiffs, v. CARRIBBEAN CRUISE LINE, INC., ECONOMIC STRATEGY GROUP, ECONOMIC STRATEGY GROUP, INC., ECONOMIC STRATEGY, LLC, THE BERKLEY GROUP, INC., and VACATION OWNERSHIP MARKETING TOURS, INC., Defendants, Case No. 12 C 4069 (N.D. Ill.). After the parties to this class action reached a settlement with the assistance of a mediator, class counsel petitioned for an award of attorneys' fees from the settlement fund. Freedom Home Care has moved for an award of attorneys' fees in the amount of $59,410 to compensate its lawyers objector's counsel for their work in opposing class counsel's fee request. Plaintiffs and defendants both oppose Freedom Home Care's request. They argue that Freedom Home Care's objection did not materially benefit the class because the arguments in the objection were not significantly different from those that defendants made and that Freedom Home Care knew defendants would make -- in response to the fee petition. In addition to requesting a fee for its counsel, Freedom Home Care argues that it is entitled to an incentive award in the amount of $1,000 for agreeing to represent the interests of the class as an objecting class member. In setting a fee award for class counsel in this case, the Court followed the approach of other courts within this circuit, dividing the agreed settlement fund less notice and administrative costs into bands and awarding a declining percentage of each band to class counsel. Freedom Home Care emphasizes that it was the only party to propose applying a sliding scale to the whole fund, including attorneys' fees but excluding administration and notice costs, which is the approach the Court adopted. Defendants, by contrast, proposed that the fee award should come from applying the sliding scale only to the portion of the common fund designated for class members. Though the Court did not discuss defendants' proposed approach in its ruling, it rejected the proposal, which was inconsistent with other case law in this district. Freedom Home Care contends that it should get credit for being the only party that proposed the fee structure the Court ultimately adopted. But the Court says it would have arrived at that structure whether or not Freedom Home Care proposed it, because plaintiffs would have responded, as they did in their reply to defendants and Freedom Home Care, by pointing out that defendants' proposal was incorrect and explaining how the sliding scale approach should be applied were the Court to adopt it. In addition, as defendants point out, Freedom Home Care's proposed approach would lead to greater attorneys' fees (and a smaller award for the class) than defendants' approach, and thus Freedom Home Care's proposal could not have benefited the class, even if it were material. Finally, though Freedom Home Care's brief did contain some criticisms of plaintiffs' experts that were not included in defendants' brief, those criticisms did not have any material effect on the Court's ruling and were not cited in the Court's opinion. Because objector's counsel did not provide a material benefit to the class, the Court also denies an incentive award for Freedom Home Care. In addition, even if Freedom Home Care's objection had benefitted the class, Freedom Home Care has not demonstrated how its efforts in this litigation warrant an incentive payment. Freedom Home Care argues that an incentive award is warranted because it subjected itself to a risk of harassment by class counsel, but it has failed to substantiate this allegation, the Court held. Accordingly, the Court denies Freedom Home Care's motion for attorneys' fees. A full-text copy of the District Court's August 24, 2017 Memorandum Opinion and Order is available at https://is.gd/XonQTJ from Leagle.com. Grant Birchmeier, Plaintiff, represented by Jonathan I. Loevy, Loevy & Loevy, 312 North May Street, Suite 100, Chicago, IL 60607 USA Grant Birchmeier, Plaintiff, represented by Scott R. Rauscher - scott@loevy.com - Loevy and Loevy, Alexander Glenn Tievsky - atievsky@edelson.com - Edelson Pc, Arthur R. Loevy, Loevy & Loevy, & Michael I. Kanovitz, Loevy & Loevy, 311 North Aberdeen3rd Floor, Chicago, IL 60607 Stephen Parkes, Plaintiff, represented by Jonathan I. Loevy, Loevy & Loevy, Scott R. Rauscher, Loevy and Loevy, Alexander Glenn Tievsky, Edelson Pc, Arthur R. Loevy, Loevy & Loevy & Michael I. Kanovitz, Loevy & Loevy. Regina Stone, Plaintiff, represented by Alexander Glenn Tievsky, Edelson Pc & Scott R. Rauscher, Loevy and Loevy. Gerardo Aranda, Plaintiff, represented by Scott R. Rauscher, Loevy and Loevy & Alexander Glenn Tievsky, Edelson Pc. Caribbean Cruise Line, Inc., Defendant, represented by Rebecca F. Bratter - Rebecca.bratter@gmlaw.com - Greenspoon Marder, P.A., Richard W. Epstein - Richard.epstein@gmlaw.com - Greenspoon Marder, P.A., Jeffrey Backman - Jeffrey.backman.com - Greenspoon Marder, P.A. & Timothy A. Hudso - thudson@tdrlawfirm.com - Tabet DiVito Rothstein. Berkley Group, Inc., The, Defendant, represented by Richard J. Prendergast, Richard J. Prendergast, Ltd., 111 W Washington St # 1100, Chicago, IL 60602, USA, Vincent J. Connelly - vconnelly@mayerbrown.com - Mayer Brown LLP, Brian Patrick O'Meara, Forde Law Offices LLP, Kevin Michael Forde - kforde@fordellp.co -- Forde Law Offices LLP, Kevin R. Malloy, Forde Law Offices LLP, M. Peebles Harrison, Rose Harrison & Gilreath, P.C. 700 Blue Jay Street, Suite 1P.O. Box 405Kill Devil Hills, NC 27948 & Michael Thomas Layden, Richard J. Prendergast, Ltd.. Vacation Ownership Marketing Tours, Inc., Defendant, represented by Jeffrey Backman, Greenspoon Marder, P.A.. T-Mobile US, Inc., Third Party Defendant, represented by Debra Rae Bernard - dbernard@perskinscoie.com - Perkins Coie LLP. CENTURYLINK INC: Williams Sue over Fees for Phantom Services ------------------------------------------------------------ ANNA M. WILLIAMS, an individual; GULF COAST ATTORNEYS LLC, an Alabama limited liability company; and BRENT LEE LLC, an Alabama limited liability company, on behalf of themselves and all others similarly situated, the Plaintiffs, v. CENTURYLINK, INC., a Louisiana corporation; CENTURYLINK COMMUNICATIONS, LLC, a Delaware limited liability company; CENTURYLINK PUBLIC COMMUNICATIONS, INC., a Florida Corporation; CENTURYLINK SALES SOLUTIONS, INC., a Delaware corporation; CENTURYTEL OF ALABAMA, LLC, a Louisiana limited liability company; CENTURYTEL HOLDINGS ALABAMA, INC., an Alabama corporation; GULF COAST SERVICES, LLC, an Alabama limited liability company; and GULF TELEPHONE COMPANY, LLC, an Alabama limited liability company, the Defendants, Case No. 1:17-cv-00384 (S.D. Ala., Aug. 24, 2017), challenges CenturyLink's misleading and deceptive conduct, adding false and unauthorized charges for its customers' communications services, including telephone, internet, and/or television accounts. The complaint says Defendants used illegal, deceptive, and unfair business practices to induce or force customers to open, purchase, and/or maintain services and products and/or billed them for services not requested or provided. CenturyLink is an American telecommunications company, headquartered in Monroe, Louisiana, that provides communications and data services to residential, business, governmental, and wholesale customers in 37 states.[BN] The Plaintiffs are represented by: Francois M. Blaudeau W. Lewis Garrison, Jr. Christopher B. Hood HENINGER GARRISON DAVIS LLC 2224 1st Ave N. Birmingham, AL 35203 Telephone: (205) 326 3336 Facsimile: (205) 380 0145 E-mail: francois@southernmedlaw.com lewis@hgdlawfirm.com chood@hgdlawfirm.com CENTURYLINK: Overbilling Class Actions Continue to Pile Up ---------------------------------------------------------- Edward Gately, writing for ChannelPartners, reports that class- action lawsuits continue to mount against CenturyLink alleging overbilling and overcharging for services, with the latest filed in Alabama. The latest suit was filed by Heninger Garrison Davis on behalf of Alabama customers alleging that their plans were changed or they were charged for extra services without their permission. According to the firm, CenturyLink's goal was to "meet performance and incentive programs and boost profits," but the customers paid for those practices, resulting in "heavy overcharge fees when customers tried to challenge the charges or terminate their accounts." CenturyLink is in the process of acquiring Level 3 Communications. Michael Brandenburg, Frost & Sullivan digital transformation -- connected work industry analyst, said the allegations in the suits seem to be being made against the consumer business unit of CenturyLink, "so I would not expect the class-action suits to have a material impact on the Level 3 acquisition." "However, it may cast a bit of shadow on the merger, at least in terms of customer perception and media coverage," he said. Last month, Minnesota Attorney General Lori Swanson filed a lawsuit against CenturyLink alleging it billed higher amounts than its sales agents quoted customers for internet and cable television service. Within her complaint, the state lists 35 individual consumers who allegedly were quoted prices but were charged sometimes two or three times the original price. Separate class-action suits have been filed against CenturyLink in Arizona, California, Colorado, Idaho, Nevada, Oregon and Washington. Investor class-action suits have been filed by numerous law firms. CenturyLink spokesman Mark Molzen said allegations in these lawsuits are "completely inconsistent with our company policies, culture and unifying principles, which include honesty and integrity." "It's worth noting that once an initial class action is filed, it is common practice for law firms to seek other jurisdictions to file similar lawsuits, so unfortunately we could see more of the same," he said. "However speculative or unfounded we think these claims may be, we are treating them very seriously." [GN] CHAPARRAL ENERGY: Appeals Bankruptcy Court's Order in Class Suit ---------------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the company made an appeal from the Bankruptcy Court's order dated June 7, 2017, in the case Naylor Farms, Inc., individually and as class representative on behalf of all similarly situated persons v. Chaparral Energy, L.L.C. On June 7, 2011, an alleged class action was filed against Chaparral Energy, Inc. in the United States District Court for the Western District of Oklahoma alleging that the company improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners as categorized in the petition from crude oil and natural gas wells located in Oklahoma. The purported class includes non-governmental royalty interest owners in oil and natural gas wells the company operate in Oklahoma. The plaintiffs have alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek termination of leases, recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the alleged class. Chaparral Energy said that "We have responded to the Naylor Farms petition, denied the allegations and raised arguments and defenses. Plaintiffs filed a motion for class certification in October 2015." In addition, the plaintiffs filed a motion for summary judgment asking the court to determine as a matter of law that natural gas is not marketable until it is in the condition and location to enter an interstate pipeline. Responsive briefs to both motions were filed in the fourth quarter of 2015. On May 20, 2016, the company filed a Notice of Suggestion of Bankruptcy with the Naylor Trial Court, informing the court that the company had filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code. In response, on May 23, 2016, the court issued an order administratively closing the case, subject to reopening depending on the disposition of the bankruptcy proceedings. On July 22, 2016, attorneys for the putative class filed a motion in the Bankruptcy Court asking the court to lift the automatic stay and allow the case to proceed in the Naylor Trial Court. Chaparral Energy said that "We did not object to lifting the automatic stay with regard to this case for the limited purpose of allowing the Naylor Trial Court to rule on the pending motion for class certification." On January 17, 2017, the Naylor Trial Court certified a modified class of plaintiffs with oil and gas leases containing specific language. The modified class constitutes less than 60% of the leases the Plaintiffs originally sought to certify. On January 30, 2017, the Company filed a motion for reconsideration with the Naylor Trial Court, asking the court to rule the class cannot be immediately certified because Plaintiffs did not define dates for class membership. According to the Company, "Plaintiffs responded the class should include claims reaching back to December 1, 1999, to which we responded the statute of limitations should limit the beginning of the class period to June 1, 2006. The Naylor Trial Court denied "our motion for reconsideration on April 18, 2017, issuing an order certifying the class to include only claims relating back to June 1, 2006." "On May 1, 2017, we filed a Petition for Permission to Appeal Class Certification Order with the Tenth Circuit Court of Appeals (the "Tenth Circuit"). Plaintiffs objected, but on June 6, 2017, the Tenth Circuit granted permission to appeal the class certification order." The plaintiffs have indicated they seek damages in excess of $5,000, which may increase with the passage of time, a majority of which damages would be comprised of interest. In addition to filing claims on behalf of the named plaintiffs and associated parties, plaintiffs' attorneys filed a proof of claim on behalf of the putative class claiming in excess of $150,000 in our Chapter 11 Cases. The Company objected to treatment of the claim on a class basis, asserting the claim should be addressed on an individual basis. The Bankruptcy Court heard testimony and arguments regarding class-wide treatment of the claim on February 28, 2017. On May 24, 2017, the Bankruptcy Court denied the Company's objection, ruling the plaintiffs may file a claim on behalf of the class. Chaparral Energy said that "We appealed the Bankruptcy Court order on June 7, 2017. This order did not establish liability or otherwise address the merits of the plaintiffs' claims, to which we will also object." Under the Reorganization Plan, the Plaintiffs are identified as a separate class of creditors, Class 8. Class 8 claims are entitled to receive their pro rata share of new stock issued to the holders of general unsecured claims (including claims of the Noteholders). Although the members of Class 8 voted to reject the Plan, the Bankruptcy Court confirmed the Plan on March 10, 2017, without objection by the Plaintiffs. If the plaintiffs ultimately prevail on the merits of their claims, any liability arising under judgment or settlement of the unsecured claims would be satisfied through the issuance of new stock in the Company. Chaparral Energy said, "We continue to dispute the plaintiffs' allegations, dispute the case meets the requirements for class certification, and are objecting to the claims both individually and on a class-wide basis." Chaparral Energy, Inc. is a Mid-Continent Independent oil and natural gas exploration and production company. Founded in 1988 and headquartered in Oklahoma City, Oklahoma. CHAPARRAL ENERGY: "Dodson" Class Suit Voluntarily Dismissed ----------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the case entitled Amanda Dodson, individually and as class representative on behalf of all similarly situated persons v. Chaparral Energy, L.L.C. had been voluntarily dismissed. On May 10, 2013, Amanda Dodson filed a complaint against Chaparral Energy, Inc. in the District Court of Mayes County, Oklahoma, alleging that the company improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners as categorized in the petition from crude oil and natural gas wells located in Oklahoma. The plaintiffs have alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and seek termination of leases, recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the alleged class. The alleged class includes non-governmental royalty interest owners in oil and natural gas wells we operate in Oklahoma. Chaparral Energy said, "We have responded to the Dodson petition, denied the allegations and raised a number of affirmative defenses. At the time we filed our Bankruptcy Petitions, a class had not been certified and discovery had not yet commenced." The plaintiffs in the Dodson case did not file proofs of claim either for the putative class or the putative class representative. The case was voluntarily dismissed without prejudice on July 19, 2017. Chaparral Energy, Inc. is a Mid-Continent Independent oil and natural gas exploration and production company. Founded in 1988 and headquartered in Oklahoma City, Oklahoma. CHAPARRAL ENERGY: Appeal in Donelson-Friend Case Underway --------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the appeal related to the case entitled, Martha Donelson and John Friend, on behalf of themselves and on behalf of all similarly situated persons v. Chaparral Energy, LLC, remains pending. On August 11, 2014, an alleged class action was filed against Chaparral Energy, Inc., as well as several other operators in Osage County, in the United States District Court for the Northern District of Oklahoma, alleging claims on behalf of the named plaintiffs and all similarly situated Osage County land owners and surface lessees. The plaintiffs challenged leases and drilling permits approved by the Bureau of Indian Affairs without the environmental studies allegedly required under the National Environmental Protection (NEPA). The plaintiffs assert claims seeking recovery for trespass, nuisance, negligence and unjust enrichment. Relief sought includes declaring oil and natural gas leases and drilling permits obtained in Osage County without a prior NEPA study void ab initio, removing us from all properties owned by the class members, disgorgement of profits, and compensatory and punitive damages. On March 31, 2016, the Court dismissed the case against the federal agencies named as defendants, and therefore against all defendants, as an improper challenge under NEPA and the Administrative Procedures Act. On April 29, 2016, the plaintiffs filed a motion to alter or amend the court's opinion and vacate the judgment, arguing the court does have jurisdiction to hear the claims and dismissal of the federal defendants does not require dismissal of the oil company defendants. The plaintiffs also filed a motion to file an amended complaint to cure the deficiencies which the court found in the dismissed complaint. Several defendants have filed briefs objecting to plaintiffs' motions. Chaparral Energy said, "on May 20, 2016, the Company filed a Notice of Suggestion of Bankruptcy, informing the court that we had filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code, and has not responded to the plaintiffs' motions." After a motion for reconsideration was denied, Plaintiffs filed a Notice of Appeal on December 6, 2016. On December 30, 2016, the Court of Appeals entered an Order Abating Appeal due to pending bankruptcy proceedings of multiple defendants. On January 13, 2017, Plaintiffs responded to the Order Abating Appeal, asking the Court to proceed with the appeal. The Court lifted the stay as to Chaparral on April 13, 2017 and the Company joined the answer filed by other non-federal defendants which had been filed on March 24, 2017. The Court has not ruled on the appeal. Chaparral Energy said, "as the plaintiffs in the Donelson case did not file proofs of claim either for the putative class or the putative class representatives, we anticipate any monetary liability related to this claim will be discharged. We dispute plaintiffs' allegations and dispute that the case meets the requirements for a class action." Chaparral Energy, Inc. is a Mid-Continent Independent oil and natural gas exploration and production company. Founded in 1988 and headquartered in Oklahoma City, Oklahoma. CHAPARRAL ENERGY: 2nd Amended Petition Filed in West-Hopson Suit ---------------------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the plaintiffs in the case entitled Lisa West and Stormy Hopson, individually and as class representatives on behalf of all similarly situated persons v. Chaparral Energy, L.L.C., have filed a second amended petition. On February 18, 2016, an alleged class action was filed against Chaparral Energy, Inc., as well as several other operators in the District Court of Pottawatomie County, State of Oklahoma, alleging claims on behalf of named plaintiffs and all similarly situated persons having an insurable real property interest in eight counties in central Oklahoma (the "Class Area"). The plaintiffs allege the oil and gas operations conducted by Chaparral Energy, Inc. and the other defendants have induced or triggered earthquakes in the Class Area. The plaintiffs are asking the court to require the defendants to reimburse plaintiffs and class members for earthquake insurance premiums from 2011 through a future date defined as the time at which the court determines there is no longer a risk that the Company's activities induce or trigger earthquakes, as well as attorney fees and costs and other relief. The plaintiffs did not ask for damages related to actual property damage which may have occurred. Chaparral Energy said that "We responded to the petition, denied the allegations and raised a number of affirmative defenses. At this time, a class has not been certified and discovery has not yet commenced. On March 18, 2016, the case was removed to the United States District Court for the Western District of Oklahoma under the Class Action Fairness Act ("CAFA"). On May 20, 2016, we filed a Notice of Suggestion of Bankruptcy, informing the court that we had filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code." On October 14, 2016, the plaintiffs filed an Amended Complaint adding additional defendants and increasing the Class Area to 25 Central Oklahoma counties. The Company said, "Although we are named as a defendant, the Amended Complaint expressly limits its claims against us to those asserted in the original petition unless and until the automatic stay is lifted. Plaintiffs' attorneys filed a proof of claim on behalf of the putative class claiming in excess of $75,000 in our Chapter 11 Cases. Other defendants have filed motions to dismiss the action based on various theories, as well as motions to strike various allegations and requested relief as unsupported by Oklahoma law." A hearing on the various motions to dismiss and motions to strike was held on May 12, 2017. The judge made various rulings from the bench, including dismissing the complaint for failure to adequately allege causation, but permitting the plaintiffs to amend the complaint to cure the deficiency. Plaintiffs filed a Second Amended Petition on July 18, 2017, adding additional named plaintiffs as putative class representatives. Three additional counties in Oklahoma, including Tulsa, Osage and McClain, were added to the putative class area. The Plaintiffs seek damages for nuisance, negligence, abnormally dangerous activities, and trespass. Due to Chaparral's bankruptcy, Plaintiffs specifically limit alleged damages related to Chaparral's disposal activities occurring after our emergence from bankruptcy on March 21, 2017. Chaparral Energy said that "We dispute the plaintiffs' claims, dispute that the case meets the requirements for a class action, dispute the remedies requested are available under Oklahoma law, and are vigorously defending the case." Chaparral Energy, Inc. is a Mid-Continent Independent oil and natural gas exploration and production company. Founded in 1988 and headquartered in Oklahoma City, Oklahoma. CHAPARRAL ENERGY: "Griggs" Class Action Suit Ongoing ---------------------------------------------------- Chaparral Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that a suit is pending against the company in the District Court of Logan County, State of Oklahoma, entitled Lisa Griggs and April Marler, on behalf of themselves and other Oklahoma citizens similarly situated v. New Dominion, L.L.C. et al. On July 21, 2017, an alleged class action was filed against Chaparral Energy, Inc., as well as several other operators, in the District Court of Logan County, State of Oklahoma. The named plaintiffs assert claims on behalf of themselves and Oklahoma citizens owning a home or business between March 30, 2014, and the present in eight counties in central Oklahoma, including Logan, Payne, Lincoln, Oklahoma, Canadian, Kingfisher, Garfield and Noble Counties. The plaintiffs allege disposal of saltwater produced during oil and gas operations conducted by us and the other defendants have induced or triggered earthquakes in the Class Area, and that each defendant has liability under theories of ultra-hazardous activities, negligence, nuisance, and trespass. The plaintiffs have asked the court to award unspecified compensatory and punitive damages, along with pre-judgment and post-judgment interest. Chaparral Energy said, "the plaintiffs allege our activities induced earthquakes occurring prior to the time we filed our Bankruptcy petition. The plaintiffs did not file a proof of claim related to these claims. We dispute the plaintiffs' claims, dispute that the case meets the requirements for a class action, dispute the plaintiffs are entitled to recovery under our Reorganization Plan, and are vigorously defending the case." Chaparral Energy, Inc. is a Mid-Continent Independent oil and natural gas exploration and production company. Founded in 1988 and headquartered in Oklahoma City, Oklahoma. CHARIOT TRANSIT: Blumenthal, Nordrehaug Files Labor Class Action ---------------------------------------------------------------- The San Francisco employment law lawyers at Blumenthal, Nordrehaug & Bhowmik filed a Lawsuit alleging Chariot Transit, Inc., who allegedly failed to pay their non-exempt employees the correct wages and allegedly failed to provide adequate meal and rest breaks. The Chariot Transit, Inc., class action, Case No. CGC-17-560929 is currently pending in the San Francisco County Superior Court for the State of California. According to the class action lawsuit filed against Chariot Transit, Inc., the company allegedly failed to reimburse and indemnify their non-exempt employees for required business expenses incurred by the employees in direct consequence of discharging their duties on behalf of Chariot Transit, Inc. Under California Labor Code Section 2802, employers are required to indemnify employees for all expenses incurred in the course and scope of their employment. The Complaint further alleges that the employees working for the company in California were not always able to take their thirty-minute uninterrupted meal breaks before their fifth hour of work. California law requires employers to provide their non- exempt employees paid on an hourly basis with thirty-minute meal periods before the employee works five hours. For more information about the class action lawsuit filed against Chariot Transit, Inc., please call Attorney Nicholas J. De Blouw at (866) 771-7099. Blumenthal, Nordrehaug and Bhowmik is an employment law firm that dedicates its practice to helping employees fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. The firm has offices located in San Francisco, Sacramento, Los Angeles, Riverside, San Diego, and Chicago. [GN] CHILDREN'S HOMES: Dickens Seeks Unpaid Wages under Labor Code ------------------------------------------------------------- JANAROL DICKENS, on behalf of himself and others similarly situated, the Plaintiff, v. CHILDREN'S HOMES OF SOUTHERN CALIFORNIA, CHILDRENS BAPTIST OF SOUTHERN CALIFORNIA, a business entity of unknown form; MINISTRIES OF SOUTHERN CALIFORNIA, INC., a California corporation; and DOES 1 to 100, inclusive, the Defendants, Case No. BC674078 (Cal. Super. Ct., Aug. 28, 2017), seeks to recover unpaid wages and interest under California Labor Code. According to the complaint, Defendants failed to provide legally compliant meal periods and/or pay meal period premium wages; failed to provide legally complaint rest breaks and/or pay rest break premium wages; failed to provide accurate wage statements; and failed to timely pay employee all earned and unpaid wages due upon separation of employment. Children's Homes of Southern California is a non- profit organization that serves at-risk boys, ages 11-17.[BN] The Plaintiff is represented by: Joseph Lavi, Esq. Andrea Rosenkranz, Esq. LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills, CA 90211 Telephone: (310) 432 0000 Facsimile: (310) 432 0001 E-mail: ilavifgil@elawfirm.com arosen.kranz@lelawfirm.com CONWAY, AR: Notifications Going Out to Police, Fire Workers ----------------------------------------------------------- Marisa Hicks, writing for The Cabin, reports notifications are now going out to inform those who worked for the Conway police and fire departments between Dec. 1, 2001, and Dec. 31, 2012, of details regarding the class-action suit against the city. The suit stems from a 2012 lawsuit Conway Police Department K-9 Officer Richard Shumate and Conway Fire Department Damon Reed filed in Faulkner County Circuit Court that accused the city of breaching its contract for salary improvements. A Faulkner County circuit judge granted the plaintiffs' class action status in December 2015. However, the city appealed the decision to the Arkansas Supreme Court. The Supreme Court has since upheld Circuit Judge Troy B. Braswell Jr.'s decision, which certified about 200 Conway police officers and firefighters in the breach of contract lawsuit. In early July, Braswell approved the Class Notice and Notice Plan devised by the plaintiffs. Those notices are being sent out now, informing class members of the suit as well as how to dismiss themselves if they wish. Marcus Bozeman, Esq. -- bozemanmarcus@sbcglobal.net -- of Thrash Law Firm, P.A., an attorney who represents the city, said anyone who meets the qualifications of a class member is automatically included in the suit. Notices are being mailed out to each member whose records were made available by the city. Notices will also be printed in the Log Cabin Democrat on Sept. 1 and Sept. 8. The class, as previously certified in Faulkner County Circuit Court, includes all Conway police and fire employees, excluding department heads and elected officials, who were employed by the city between Dec. 1, 2001, and Dec. 31, 2012. Once the notice is sent to class members, Bozeman said they have until Dec. 1 to opt out, if they choose. Russell A. Wood, who represents Shumate and Reed, said repayment would be based off each member's payment records. He also said money the city's employees did not receive had accrued interest over the years that they are also entitled to. This interest could double what the city would pay the class. "It's our expectation that the delayed tactics of the city will result in almost as much money in actual damages to the city's firemen and policemen," Wood said. After the opt-out deadline passes, Wood said the next step is to seek summary judgments and begin dispositions. The lawsuit stems from a Conway City Council-approved quarter-cent sales tax that would be used "exclusively to the salaries if the employees of the City of Conway," according to the ballot resolution that was passed by Conway voters in August 2001. Employees allege they did not receive money they were promised. [GN] CORIZON HEALTH: Awaits Approval of Class Action Settlement ---------------------------------------------------------- Cjonline.com reports that Tennessee-based Corizon Health made news last September when it agreed to pay $1.7 million to settle a class-action lawsuit alleging it withheld hernia surgery from Florida prison inmates who needed it. Still, a Shawnee County review committee in July recommended the county continue its nearly 15-year working relationship with Corizon after it was among two companies -- the other being Tennessee-based Correct Care Solutions -- that sought the contract to provide medical and mental health services for the county's adult and juvenile detention centers. County corrections director Brian Cole said on Aug. 30 that while he was unaware of what specifically happened in Florida, part of the contract being considered requires following and maintaining national standards of correctional medical and mental health care as set forth by the National Commission on Correctional Health Care. "Since contracting health care services through Prison Health Services/Corizon, our agency has successfully passed multiple surveys, as well as other surveys from the Kansas Department of Health and Environment, Immigration and Customs Enforcement, and other auditing entities," Cole said. Commissioners Bob Archer, Kevin Cook and Shelly Buhler plan to consider approving a four-year contract that county staff members negotiated with Corizon when they meet at 9 a.m. on Aug. 31 in their chambers in Room B-11 of the County Courthouse, 200 S.E. 7th. Commissioners voted July 31 to authorize negotiation of the contract. "We have determined that our current vendor, Corizon Health (Corizon), brought the overall superior, developed system to the table," Cole told the commission in a memorandum on page 119 of the agenda packet for its July 31 meeting. The agreement, which includes two one-year options, would take effect Jan. 1. It calls for the county to pay Corizon $3.15 million next year, followed by increases in years two through four of 2.4 percent, 3.5 percent and 3.4 percent, respectively. The News Service of Florida reported last September Corizon had agreed to pay $1.7 million to current and former inmates to settle a class-action lawsuit alleging Corizon and the Florida Department of Corrections denied inmates hernia operations they needed. The lawsuit complaint, filed on behalf of three inmates in September 2015, alleged Corizon and the corrections department violated the Eighth Amendment prohibition against cruel and unusual punishment by refusing medical care in an effort to save money. Corizon pulled out of its five-year, $1.2 billion contract with the state of Florida three years early, saying it was losing up to $1 million a month on the deal. According to a consent order given preliminary approval last September by a federal judge, the state and Corizon "continue to vigorously deny all allegations contained in the complaint," but agreed to the settlement "to avoid costly and protracted litigation." The settlement has not yet received final approval from the court, said Martha Harbin, director of external affairs for Corizon, on Aug. 30. "In reaching the settlement agreement, no evidence was presented to support the allegations and neither Corizon or the FDOC admits to any liability," she said. Corizon follows all clinical guidelines regarding the treatment of hernias, Harbin said. She said Corizon's operations at the Shawnee County Department of Corrections have maintained accreditation by the National Commission on Correctional Health Care, an organization created by the American Medical Association that sets standards recognized by the medical professional and the courts as the benchmark for establishing and measuring a correctional health services program. NCCHC surveyed the jail in June and found it in compliance for re- accreditation, Harbin added. "Our doctors and nurses are committed to providing excellent and proactive preventive care that meets the needs of our patients, and makes the best use of public resources," she said. "We look forward to continuing to serve the citizens of Shawnee County with a constitutionally sound inmate health services program, using clinical best practices and evidence-based medicine." Corizon, formerly Prison Health Services, began providing services to Shawnee County in 2003, corrections department Maj. Tim Phelps said on Aug. 30. "They continued the contract in 2008 and negotiated an extension in 2013 in return for providing a zero percent increase for several years during the recession," he said. "That is what brought us to the present bidding process." So far, Phelps said, Corizon hasn't provided mental health services beyond a part-time psychiatrist who reviews recommendations for medication from county employees on the corrections department's mental health team when inmates show indications they need it. "This agreement will shift all mental health services under Corizon, and enhance those services to address the growing need for earlier intervention and continuity of care between community resources and detention-based services," Phelps said. Cole discussed reasons for choosing Corizon over Correct Care Solutions in his July memo to commissioners. "Operationally, Corizon demonstrated they had better processes to guide on-site delivery of services, as well as a matured support structure able to send subject matter experts in to guide development, as well as shore up gaps that may develop in service delivery," he wrote. The staffing plan put forth by Corizon also demonstrated a better understanding of the corrections department's unique service delivery challenges, including coverage during nontraditional days and hours for mental health positions, Cole wrote. "Corizon's mental health program was comprehensive in structure, allowing for experience-based future growth upon an initially sound platform, which emphasizes early intervention to stabilize the mentally ill patient and reduce instances of emergent crises," he wrote. [GN] CUMULUS MEDIA: Plaintiffs Voluntarily Dismiss NY Class Suit ----------------------------------------------------------- Cumulus Media Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that plaintiffs have voluntarily dismissed their complaint in New York against the company. Cumulus Media Inc. said, "In August 2015, we were named as a defendant in two separate putative class action lawsuits relating to our use and public performance of certain sound recordings fixed prior to February 15, 1972 (the "Pre-1972 Recordings")." The first suit, ABS Entertainment, Inc., et al. v, Cumulus Media Inc., was filed in the United States District Court for the Central District of California and alleged, among other things, copyright infringement under California state law, common law conversion, misappropriation and unfair business practices. On December 11, 2015, this suit was dismissed without prejudice. The second suit, ABS Entertainment, Inc., v. Cumulus Media Inc., was filed in the United States District Court for the Southern District of New York and claimed, among other things, common law copyright infringement and unfair competition. The New York lawsuit was stayed pending an appeal before the Second Circuit involving unrelated third parties over whether the owner of a Pre-1972 Recording holds an exclusive right to publicly perform that recording under New York common law. On December 20, 2016, the New York Court of Appeals held that New York common law does not recognize a right of public performance for owners of pre-1972 Recordings. As a result of that case (to which Cumulus Media, Inc., was not a party) the New York case against Cumulus Media, Inc., was voluntarily dismissed by the plaintiffs on April 3, 2017. A leader in the radio broadcasting industry, Cumulus Media Inc. combines high-quality local programming with iconic, nationally syndicated media, sports and entertainment brands to deliver premium content choices to the 245 million people reached each week through its 447 owned-and-operated stations broadcasting in 90 US media markets (including eight of the top 10), 8,000 broadcast radio stations affiliated with its Westwood One network and numerous digital channels. Cumulus Media Inc. is based on Atlanta, Georgia. CVS HEALTH: Hagens Berman Pulls Drug Suit ----------------------------------------- Kristen Rasmussen, writing for Law.com, reports that a plaintiff voluntarily dismissed a class action against CVS Health for its alleged role in soaring prescription drug prices after the retail pharmacy giant notified her law firm, Hagens Berman Sobol Shapiro, of "false assertions" in the complaint. Lead plaintiff Megan Schultz accused CVS of colluding with pharmacy benefit managers to sell certain generic drugs at a higher cost if they are purchased with insurance. In the suit, filed in Rhode Island federal district court, Schultz claimed she was charged $165.68 for a generic drug under her insurance that would have cost only $92 had she paid cash for it without using insurance. In another example, Schultz said she paid $101.49 for a certain drug at CVS when the cash price was $49.45. CVS, responding to the lawsuit, said the complaint contained "numerous factual misstatements" that, when corrected, indicate Schultz was not overcharged for her prescriptions. Hagens Berman, a Seattle-based class action firm, filed a notice of voluntary dismissal without prejudice on Aug. 23 -- a request that U.S. District Chief Judge William Smith of the District of Rhode Island granted the next day -- after CVS said it pointed out the errors. "The complaint contained numerous demonstrably false assertions that a reasonable pre-filing investigation by the law firm would have discovered," Woonsocket, Rhode Island-based CVS said in a written statement. "As such, we are pleased that the suit has been voluntarily dismissed." Corporate Counsel reached out to Steve Berman, Hagens Berman's managing partner and counsel in the case, seeking comment about the firm's decision to dismiss the complaint. In response, Jerrod Patterson, counsel at Hagens Berman and another lawyer on the case, said in an email : "Uncovering the pricing structure of generic drugs is difficult. We are evaluating our case against CVS carefully, and will refile a complaint based on the evidence we find." In its statement, CVS alleged that Schultz, in her complaint, compared her copayment for a brand name drug she bought against the cash price of a generic version of the drug. She also compared her copayments for three other prescriptions to the cash prices of those medications at either half the dosage or half the quantity than what she was prescribed and given, the statement added. The copayments were in fact less than the cash prices for each correct drug, dose and quantity, the company said. CVS also claimed that although the complaint purports to bring claims on behalf of patients making purchases with insurance, the plaintiff did not use insurance for most of the purchases identified in the suit. In addition, the few medications she did use insurance for were omitted from the suit's list of "Affected Drugs" that were allegedly overpriced intentionally. CVS had not yet filed a formal answer to the complaint, and the company's lawyers had not yet filed any notice of appearance. Meanwhile, a similar lawsuit that Hagens Berman filed against Walgreens Boots Alliance Inc. of Deerfield, Illinois, two days after it filed the CVS suit remains alive in the U.S. District Court for the Northern District of Illinois. An answer to the complaint in that case is due Oct. 5. According to court filings , Walgreens has retained Rachael Blackburn, Esq. and Robert Andalman, Esq. - randalman@aandglaw.com - of A&G Law in Chicago to defend the company in the class action litigation. [GN] DAIRYAMERICA INC: Court OK's Bid for Leave to Amend Complaint ------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting in part and denying in part Plaintiff's Motion for Leave to Amend TAC in the case captioned GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., Defendants, Case No. 1:09-CV-00430 AWI EPG (E.D. Cal.), and denied motion to strike expert report as moot. Plaintiffs filed a motion for leave to file a fourth amended consolidated class action complaint (FAC). Plaintiffs seek leave to amend their TAC to (1) add new allegations that Defendants made misrepresentations to the California Department of Food and Agriculture ("CDFA") brought by a new class of plaintiffs -- California dairy farmers; (2) add the cooperatives Dairy Farmers of America, Inc. (DFA) and Land O'Lakes, Inc. (Land O'Lakes) as defendants with respect to claims involving misrepresentations to the CDFA; and (3) add new allegations involving misrepresentations to the United States Department of Agriculture (USDA) to account for additional misreporting methods. Plaintiffs also seek to strike DairyAmerica's expert report from Stuart Harden, as well as all references to the report in DairyAmerica's opposition. Many thousands of dairy farmers in the United States sell their raw milk to processors, and receive compensation each month for their sales. Most of these farmers fall under the jurisdiction of the USDA's ten Federal Milk Marketing Orders (FMMO) and therefore receive monthly checks that contain raw milk prices calculated by the FMMOs. The FMMOs rely on formulas to calculate raw milk prices that factor in market prices for finished dairy products, which are obtained by the National Agricultural Statistics Service (NASS). Plaintiffs originally filed the instant action alleging that DairyAmerica and one of its member-cooperative owners, California Dairies, had improperly including forward pricing sales in its weekly reports to the USDA. Plaintiffs seek leave to amend their TAC and in total, the FAC would contain the following causes of action: 1. First COA: Negligent Misrepresentation as to DairyAmerica and California Dairies for Misrepresentations to USDA; 2. Second COA: Negligent Misrepresentation as to DairyAmerica, California Dairies and Proposed Defendants for Misrepresentations to CDFA; 3. Third COA: Intentional Misrepresentation as to DairyAmerica and California Dairies for Misrepresentations to USDA; 4. Fourth COA: Intentional Misrepresentation as to DairyAmerica, California Dairies and Proposed Defendants for Misrepresentations to CDFA; 5. Fifth COA: Conspiracy to Violate RICO as to California Dairies for Misrepresentations to USDA; and 6. Sixth COA: Conspiracy to Violate RICO as to DairyAmerica and California Dairies and Proposed Defendants for Misrepresentations to CDFA. Compliance with Rule 16 The more restrictive good cause standard of Rule 16 applies to a motion to amend that is filed after the deadline established for the submission of motions to amend by a scheduling order. This issue is resolved by the Magistrate Judge's order sanctioning Dairy America and deeming Plaintiffs' claims based on information from Declarants which is well before the deadline for amendment. Therefore Plaintiffs do not have to meet the good cause standard of Rule 16. Failure to Seek Modification of Scheduling Order Plaintiffs respond that this argument ignores the fact that Rule 16(b) provides that a party can seek amendment of a complaint after such a deadline has passed so long as the moving party can show good cause, pointing out that this Court granted Plaintiffs' prior motion for leave to amend, which was filed 15 months after the deadline for amendment, and no modification of the scheduling order deadline was sought. Once again, this issue is resolved by the Magistrate Judge's order sanctioning Dairy America and deeming Plaintiffs' claims based on information from the Declarants which is well before the deadline for amendment. Therefore there is no need for Plaintiffs to seek modification of the scheduling order deadline. Plaintiffs' Diligence in Obtaining the Discovery at Issue Plaintiffs deposed Declarants' former manager and specifically inquired about Declarants knowledge. Notably, DairyAmerica does not dispute Plaintiffs' contention that at Manager Smith's deposition she incorrectly stated that Declarants did not have relevant knowledge of reports that Declarants submitted to NASS. DairyAmerica also does not dispute that when Plaintiffs thereafter submitted a list of 34 witnesses they intended to depose, Plaintiffs did not include Declarants. Given the high number of potential witnesses in this complex litigation, it is not unreasonable in these circumstances for Plaintiffs to have prioritized other witnesses during discovery. While Defendants insist that Plaintiffs could have contacted Declarants earlier as part of an independent investigation, the Court is not persuaded. Given the particular timeline and facts of this case, Plaintiffs were diligent. Plaintiffs' Diligence in Filing Motion to Amend After Declarations Here, given that the parties were in settlement negotiations and signed a stipulation that clearly contemplated the upcoming filing of an amended complaint, the Court finds that Plaintiffs' delay between obtaining the declarations and moving to amend is not unreasonable. There is no rule from the Ninth Circuit that waiting three months to amend a complaint is per se unreasonable. Given the unique circumstances of settlement negotiations and a stipulation in this case, the Court finds that Plaintiffs exercised reasonable diligence in filing their motion to amend. Compliance with Rule 15 Only after the moving party has demonstrated diligence under Rule 16 does the court apply the standard under Rule 15 to determine whether the amendment was proper. Under the futility of amendment analysis, the Court will first examine the joinder of new parties under Rule 20. Satisfaction of Rule 20 Requirements for Leave to Join New Plaintiffs Under Rule 20(a)(1), plaintiffs may be joined if: "(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. To meet the first requirement of permissive joinder, Plaintiffs' claims must arise from "the same transaction, occurrence, or series of transactions or occurrences. Notably, Plaintiffs do not dispute that the California plaintiffs' claims are based on different reporting obligations under different regulations to a different government agency. Plaintiffs' claims against the USDA involve the inappropriate inclusion of forward pricing. It is undisputed among the parties that the inclusion of forward pricing is allowed by the CDFA. Therefore, the Court finds that current Plaintiffs cannot join a new class of California plaintiffs since their claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences. Plaintiffs' request to amend the TAC to add California Plaintiffs with their CDFA-related claims will be denied. No Existing Plaintiffs Have Claims Based on CDFA Misrepresentation Since the Court will deny Plaintiffs' request to add California plaintiffs with their CDFA-related claims, the Proposed Defendants will not be added as parties to this case. The only proposed claims stated against the Proposed Defendants are CDFA-related. Additionally the CDFA claims brought by California plaintiffs cannot proceed against the current Defendants in this case since the Court is denying joinder of the California plaintiffs. Statute of Limitations There is a two-year statute of limitations for negligent misrepresentation claims; a three-year statute of limitations for intentional misrepresentation claims; and a four-year statute of limitations for violations of RICO. While the Court recognizes that Defendants' position is that Plaintiffs could have done its own investigation at any time, given the circumstances in this case, including the lack of forthcoming and accurate information from DairyAmerica in discovery, the Court finds that Plaintiffs showed reasonable diligence in obtaining the declarations at issue, which led to the discovery of the new USDA allegations in the FAC. Further, the Court has reviewed the public documents that DairyAmerica argues should have put Plaintiffs on notice a long time ago, and the Court is not persuaded that the documents DairyAmerica cites to were adequate to put Plaintiffs on notice of additional forms of USDA misreporting. The Court finds that Plaintiffs have sufficiently pled the delayed discovery rule. Plaintiffs' additional USDA claims survive Defendants' attack on the basis of the statute of limitations at this stage. Whether the Filed Rate Doctrine Bars Claims by Plaintiffs Arising from Alleged Additional forms of Misreporting to the USDA. The Court does not find it unreasonable that an agency might find one reason to reject a filed rate, but a litigant with time and money to spend on additional discovery might uncover additional misdeeds that led to the filed rate being incorrect. The USDA's inspection report, it states that NASS calculated a $50 million loss to producers, but the OIG did not attempt to validate the $50 million loss as it was beyond the scope of this review. Here the Court to find that a litigant is limited solely to the reason that the agency rejected the filed rate, this could lead to the perverse incentive for the entity being investigated by an agency to hide as much as possible and thereby limit their liability for misdeeds that damaged those affected by an incorrect filed rate. Accordingly, the Court does not find that Plaintiffs are limited in this case to the sole reason that the agency rejected the filed rate in bringing their claims, and declines to apply the filed rate doctrine to Plaintiffs' amendments. Whether Primary Jurisdiction Should be Applied Here The Court in its discretion declines to rule that Plaintiff's additional USDA misreporting allegations implicates questions that should be addressed in the first instance by NASS/the USDA rather than by this Court. While the Court recognizes that Plaintiff's additional USDA misreporting allegations involve some technical and complicated issues, the Court does not find the allegations to be so technical that the Court should refer these allegations to the relevant agency. Further, NASS has no special competence to consider allegations of deliberate, fraudulent misreporting and RICO claims. The Court therefore will not apply the doctrine of primary jurisdiction. Whether Section 54239 Bars Claims Against California Dairies California Dairies has failed to find legal authority that supports its contention of immunity under section 54239 against liability for the acts of its employees as directors and officers of DairyAmerica. The court also agrees with Plaintiffs that, absent clear case authority, a court may not presume that the immunity provided by section 54239 is intended to extend to the activities of the constituent members who function in positions of authority within the marketing cooperative. The court finds that California Dairies' contention that they are shielded from Plaintiffs' claims by operation of section 54239 is unsupported by case authority and is logically unpersuasive. Whether Plaintiffs Have Adequately Stated Amended USDA Claims Negligent Misrepresentation as to Defendants Plaintiffs have adequately pled that Defendants made misrepresentations of material fact by making additional types of misrepresentations to the USDA, that Defendants did not have reasonable ground for believing the misrepresentations to be true, that Defendants had intent to induce reliance on the misrepresentations, and resulting damage to Plaintiffs: Defendants and Co-Conspirators intended and knew that the Dry Milk prices that DairyAmerica reported to NASS would be used to set the prices that were paid to USDA Subclass members for the purchase of raw milk the Dry Milk prices improperly reported by Defendants and Co-Conspirators had the direct effect of lowering the raw milk prices calculated by USDA using FMMO formulas. Members of the USDA Subclass justifiably and reasonably relied to their detriment on the prices set by USDA under the FMMOs as being accurate prices calculated based on the correct reporting of prices and volumes to NASS. Such reliance was foreseeable and intended by Defendants and Co-Conspirators. Intentional Misrepresentation as to Defendants Here, Plaintiffs have alleged that one or more of a short list of named officers of California Dairies functioning on the board of directors of DairyAmerica jointly made the decision about what to report to NASS during Board meetings and communications.. Therefore at the pleading stage, the Court does not find Plaintiffs' additional allegations of intentional misrepresentation to be futile and Plaintiffs have met the requirements of Rule 9(b). Conspiracy to Violate RICO as to California Dairies Plaintiffs have adequately met these requirements in alleging the additional forms of misreporting to the USDA. See FAC at 101-109. In relevant part, Plaintiffs allege, among other, facts in support of a RICO conspiracy: Member Defendants and Co-Conspirators knew they were defying explicit reporting instructions from NASS, and thus reporting sales figures that were ineligible or artificially- discounted, when they conspired to instruct and instructed the Enterprise to (1) include forward pricing sales in weekly submissions to NASS; (2) report sales of SMP in weekly reports to NASS; (3) delay the reporting of select sales prices in weekly reports to NASS; (4) report artificially-discounted export prices in weekly reports to NASS; and (5) deduct commissions and brokers fees from weekly reports to NASS. The misreporting constituted a pattern of racketeering activity in the form of repeat violations of the mail and wire fraud statutes; each week for multiple years, at the direction of Member Defendants and Co-Conspirators, DairyAmerica transmitted misrepresentations to NASS by mail or electronically in order to obtain financial gain and cause financial loss to farmers. Prejudice and Delay Plaintiffs have pled valid reasons supporting diligence and delayed discovery in this case. While it is likely true that amendment will cause some amount of delay in this case, given the unique circumstances already addressed by the Court that Plaintiffs have encountered in discovery, the Court does not find that any delay will be undue. Any delay is arguably caused by Dairy America's actions in failing to follow the Rule 26 requirements when making their initial disclosures. Prior Amendments Defendants argue that Plaintiffs have already revised this complaint four times, and this should weigh against allowing the amendment. Plaintiffs argue that if Defendants had not concealed evidence from them, they would have known of these critical Declarants much earlier. Given the history of this case and when Plaintiffs were able to discover critical information and witnesses, while the Court gives some weight to the prior amendments, the Court does not find that the prior amendments outweigh allowing the current amendment. Payment by Plaintiffs of California Dairies' Additional Discovery Costs Here, the Court does not find that any additional discovery costs will be incurred because Plaintiffs' original pleading was not faulty. Therefore the Court declines to award discovery costs. The Court will grant Plaintiffs leave to amend their USDA claims to include additional allegations against Defendants of misreporting, namely: (a) reporting artificially depressed figures; (b) misreporting Skimmed Milk sales; (c) delaying the reporting of figures; and (d) improperly excluding commissions from reports to the USDA. Plaintiffs' Motion to Strike Rule 12(f) provides that 'the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Under the express language of the rule, only pleadings are subject to motions to strike. DairyAmerica's Report is neither a pleading nor is it contained in a pleading. Instead, the Report is attached to DairyAmerica's opposition briefing. Therefore, the Court will decline to strike DairyAmerica's Report. Additionally, the Court did not find the Report necessary for the resolution of Plaintiff's motion to amend, and will also deny Plaintiff's motion to strike the Report as moot. Accordingly, the Court ordered that: 1. Plaintiffs' request to amend the TAC to add new allegations of misreporting to the USDA against current Defendants is granted. 2. Plaintiffs' request to amend the TAC to add a California Plaintiff and class bringing CFDA claims against current Defendants and Proposed Defendants is denied. 3. Plaintiffs' request to strike the expert report of Stuart Harden is denied. A full-text copy of the District Court's August 24, 2017 Order is available at http://tinyurl.com/yd6eykk5from Leagle.com. Gerald Carlin, Plaintiff, represented by A. Chowning Poppler - apoppler@bermantabacco.com - Berman Tabacco. Gerald Carlin, Plaintiff, represented by Anthony David Phillips - aphillips@archernorris.com - Berman DeValerio, Benjamin Doyle Brown - bbrown@cohenmilstein.com - Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson - bjohnson@cohenmilstein.com - Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg - claufenberg@kellerrohrback.com - Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger - cheffelfinger@bermantabacco.com - Berman Tabacco, George F. Farah - gfarah@cohenmilstein.com - Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris - jfarris@kellerrohrback.com - Keller Rohrback LLP, Justin N. Saif - jsaif@bermantabacco.com - Berman DeValerio, pro hac vice, Leslie M. Kroeger - lkroeger@cohenmilstein.com - Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt - rmcdevitt@kellerrohrback.com - Keller Rohrback L.L.P., pro hac vice. John Rahm, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. Paul Rozwadowski, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice, Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. Diana Wolfe, Plaintiff, represented by A. Chowning Poppler, Berman Tabacco, Anthony David Phillips, Berman DeValerio, Benjamin Doyle Brown, Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Cari C. Laufenberg, Keller Rohrback L.L.P., pro hac vice, Christopher Heffelfinger, Berman Tabacco, George F. Farah, Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Juli E. Farris, Keller Rohrback LLP, Justin N. Saif, Berman DeValerio, pro hac vice & Ryan McDevitt, Keller Rohrback L.L.P., pro hac vice. DairyAmerica, Inc., Defendant, represented by Charles M. English - benglish@elpolaw.com - Davis Wright Tremaine LLP, pro hac vice, E. John Steren - esteren@ebglaw.com - Ober Kaler, pro hac vice, Joseph Michael Marchini - jmm@bmj-law.com - Baker, Manock & Jensen, Wendy M. Yoviene - wyoviene@bakerdonelson.com - Ober Kaler, pro hac vice, Allison Ann Davis, Davis Wright Tremaine LLP, 505 Montgomery St Ste 800. San Francisco, CA 94111, Joy G. Kim - joykim@dwt.com - Davis Wright Tremaine LLP & Sanjay Mohan Nangia - sanjaynangia@dwt.com - Davis Wright Tremaine LLP. California Dairies, Inc., Defendant, represented by Lawrence Michael Cirelli - lcirelli@hansonbridgett.com - Hanson Bridgett, Shannon Marie Nessier, Hanson Bridgett LLP, & Megan Oliver Thompson, Hanson Bridgett LLP., 425 Market St Fl 26, San Francisco, CA 94105-5401 Bimemiller Candice, Unknown, represented by Edward Zusman - ezusman@mzclaw.com - Markun Zusman Freniere & Compton LLP. James Rehberg, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, Tostrud Law Group, P.C.. Ronald Hayek, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Jon A. Tostrud, Tostrud Law Group, P.C.. Michael K. Schugg, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, pro hac vice & Juli E. Farris, Keller Rohrback LLP. Timothy L. Rawlings, ThirdParty Plaintiff, represented by J. Barton Goplerud, Hudson Law Firm, 5015 Grand Ridge Dr Ste 100; West Des Moines, Iowa 50265. pro hac vice, Juli E. Farris, Keller Rohrback LLP, Mark A. Griffin - mgriffin@kelerrohrback.com - Keller Rohrback LLP, pro hac vice & Raymond J. Farrow - rfarrow@kellerrohrback.com - Keller Rohrback LLP, pro hac vice. Land O' Lakes, Inc., Amicus, represented by Gregory M. Schweizer - gschweizer@eimershahl.com - Eimer Stahl LLP, pro hac vice, Scott C. Solberg - ssolberg@eimerstahl.com - Eimer Stahl LLP, pro hac vice & Seth D. Hilton - sethhilton@stoel.com - Stoel Rives LLP. California Farmers Union, Amicus, represented by Daniel Bennett Harris. California Dairy Campaign, Amicus, represented by Daniel Bennett Harris - dbh2007@sbcglobal.net - Lani Ellingsworth, Movant, represented by Darin M. Dalmat, James & Hoffman, P.C. & Glenn Rothner, Rothner, Segall & Greenstone. DENKA PERFORMANCE: Faces Class Action Over Chloroprene Emissions ---------------------------------------------------------------- Miles Moore, writing for Rubber & Plastics News, reports that a group of LaPlace residents have filed a class action lawsuit against Denka Performance Elastomer L.L.C. (DPE) and DuPont, claiming that chloroprene emissions from the neoprene rubber manufacturing facility in LaPlace caused their cancer. "The plaintiffs, along with all proposed class members, are exposed regularly to unsafe levels of chloroprene emitted by the Denka Pontchartrain Works facility and are therefore at a high risk for cancer," stated the complaint filed June 29 with the 40th Judicial District Court for St. John the Baptist Parish in LaPlace. In an email, a DuPont spokesperson wrote that DuPont does not comment on pending litigation, but added that before the plant was sold to DPE in 2015, "we always operated in accordance with the law and with the safety of our employees and the community and as our highest priority." DPE issued a statement saying that the remedies sought by the class action are both unnecessary and extreme. "DPE strongly believes that (the Environmental Protection Agency) and LDEQ (the Louisiana Department of Environmental Quality) are the appropriate agencies to review and establish acceptable ambient concentration standards," the company said. "DPE does not agree that the plaintiffs have been damaged by chloroprene emissions from the facility." DuPont opened a chemical facility in LaPlace in 1964, and began producing its neoprene/chloroprene synthetic rubber there in 1969. In November 2015, DuPont sold the LaPlace factory to Denka, which continues to produce the SR there. DuPont invented neoprene in 1931 and began producing it in Louisville in 1941, according to the complaint. Between 1969 and 2008, DuPont produced neoprene in both Louisville and LaPlace, it said. When DuPont consolidated neoprene production in LaPlace, chloroprene emissions became concentrated there, according to the lawsuit. DuPont deliberately hid its knowledge of the carcinogenic effects of chloroprene exposure throughout the time it owned the LaPlace facility, and DPE continued that deception after it bought the plant, the complaint said. In 2010, the U.S. EPA classified chloroprene as a likely human carcinogen, according to the lawsuit. Five years later, an EPA National Air Toxics Assessment established an acceptable risk exposure threshold for chloroprene of 0.2 micrograms per cubic meter of air. Yet EPA measurements of chloroprene exposure at the Denka plant and in St. Joseph Parish are many times higher than 0.2 micrograms, the complaint said. The complaint seeks certification as a class action; an injunction for abatement of chloroprene exposures in excess of 0.2 micrograms; medical monitoring for development of cancer and other diseases caused by chloroprene exposure; punitive damages; and attorneys' fees and court costs. In its statement, Denka said it has been proactive in reducing chloroprene emissions, including the planned installation of an $18 million regenerative thermal oxidizer designed to reduce chloroprene emissions at LaPlace by 85 percent. The applicable regulatory ambient air standard for chloroprene is 857 micrograms per cubic meter of air, as set by the Louisiana Administrative Code, the company said. There is no regulation or proposed regulation anywhere setting out a chloroprene exposure standard of 0.2 micrograms, according to the company. "DPE's toxicological and epidemiological consultants have advised the company that the scientific calculations and methodology underlying the suggestion of a (0.2 microgram) value are highly flawed," the company said. Epidemiological studies show no correlation among chloroprene workers between chloroprene exposure and health problems, Denka said. Also, the Louisiana Tumor Registry shows that the incidence of cancer in St. Joseph Parish is slightly lower than the state average, it said. [GN] DR. REDDY'S: West Val Pharmacy Sues over Generic Divalproex ER -------------------------------------------------------------- WEST VAL PHARMACY, HALLIDAY'S & KOIVISTO'S PHARMACY, RUSSELL'S MR. DISCOUNT DRUGS, INC., FALCONER PHARMACY, INC., DEAL DRUG PHARMACY, and CHET JOHNSON DRUG, INC., the Plaintiffs, v. DR. REDDY'S LABORATORIES, INC., MYLAN INC., MYLAN PHARMACEUTICALS INC., PAR PHARMACEUTICALS, INC., and ZYDUS PHARMACEUTICALS (USA) INC., the Defendants, Case No. 2:17-cv-03816-CMR (E.D. Pa., Aug. 28, 2017), seeks seek damages (including statutory damages where applicable), to be trebled or otherwise increased as permitted by a particular jurisdiction's antitrust law, and costs of suit, including reasonable attorneys' fees, to the extent permitted by the following state laws. This suit brings claims on behalf of indirect purchasers of generic Divalproex ER -- "Indirect Reseller Plaintiffs," "independent pharmacies," or "Plaintiffs" -- for injunctive relief and to recoup overcharges that resulted from an unlawful agreement among Defendants Dr. Reddy's Laboratories, Inc., Mylan Inc., Mylan Pharmaceuticals Inc., Par Pharmaceutical, Inc., and Zydus Pharmaceuticals (USA) Inc. to allocate customers, rig bids, and fix, raise and/or stabilize the prices of generic Divalproex sodium 250 or 500mg extended release tablets (Divalproex ER). Defendants were not alone in subverting the operation of a competitive marketplace for generic pharmaceuticals. Defendants' anticompetitive conduct in the Divalproex ER market is part of a larger conspiracy or series of conspiracies involving many generic pharmaceutical manufacturers and many generic pharmaceuticals. Divalproex ER is a commonly prescribed anticonvulsant indicated for the treatment of migraines and seizures, and its base compound, valproate, has been designated an essential medicine by the World Health Organization. Significantly, Divalproex ER is not a new compound. Its essential ingredient, valproate, has been known since the late 19th century. Divalproex ER has been available in generic form in the United States for almost a decade and the market for Divalproex ER is mature. Defendants dominate the market for Divalproex ER. Beginning in approximately June 2013 and continuing today (the "Class Period"), Defendants and co-conspirators engaged in an overarching anticompetitive scheme in the market for Divalproex ER to artificially inflate prices through unlawful agreements between and among would-be competitors. Defendants caused the price of these products to dramatically and inexplicably increase as much as 995% higher than prices in June 2013. The complaint notes that the United States Government Accountability Office ("GAO") singled out Divalproex ER as an example of a generic pharmaceutical that "experienced an extraordinary price increase." This increase was the consequence of an agreement among Defendants to increase pricing and restrain competition for the sale of Divalproex ER in the United States. The lawsuit alleges that the Defendants orchestrated their conspiracy through secret communications and meetings, both in private and at public events, such as trade association meetings held by the Generic Pharmaceutical Association ("GPhA") (now called the Association for Accessible Medicines),2 , the Minnesota Multistate Contracting Alliance for Pharmacy ("MMCAP"), the National Association of Chain Drug Stores ("NACDS"), and the National Pharmacy Forum ("NPF"), among others. Defendants' and other generic pharmaceutical manufacturers' conduct has resulted in extensive scrutiny by federal and state regulators, including by the Antitrust Division of the United States Department of Justice ("DOJ"), the United States Senate, the United States House of Representatives, and at least 45 attorneys general from 44 states and the District of Columbia (the "State AGs"). The DOJ empaneled a federal grand jury in this District, which has issued subpoenas relating to price fixing and other anticompetitive conduct in the generic pharmaceutical industry, including to Defendants Par and Zydus. Dr. Reddy's develops, manufactures, and markets generic pharmaceuticals in the United States. Its product include active pharmaceutical ingredients, generics in North America, generics in European Union, branded formulations for the rest of the world, and biologics. The company was founded in 1984 and is based in Princeton, New Jersey. Dr. Reddy's Laboratories Inc. operates as a subsidiary of Dr. Reddy's Laboratories SA.[BN] The Plaintiff is represented by: Jonathan W. Cuneo, Esq. Joel Davidow, Esq. Daniel Cohen, Esq. Victoria Romanenko, Esq. Blaine Finley, Esq. Peter Gil-Montllor, Esq. Matthew Prewitt, Esq. CUNEO, GILBERT & LADUCA LLP 4725 Wisconsin Ave., NW Suite 200 Washington, DC 20016 Telephone: (202) 789 3960 E-mail: jonc@cuneolaw.com pgil-montllor@cuneolaw.com DUA MEDICAL: Faces "Alvillar" Suit over Wage & Hour Violations -------------------------------------------------------------- HURIEL A. ALVILLAR, as an individual and on behalf of all others similarly situated, the Plaintiff, v. DUA MEDICAL, INC., a California Corporation, and DOES 1 through 100, inclusive, the Defendant, Case No. BC673735 (Cal. Super. Ct., Aug. 24, 2017), seeks full restitution of monies, as necessary and according to proof, to restore any and all monies withheld, acquired and/or converted by the Defendants by means of the unfair practices. The complaint challenges systemic illegal employment practices resulting in violations of the California Labor Code against employees of Defendants. The Plaintiff alleges that Defendants, jointly and severally, have acted intentionally and with deliberate indifference and conscious disregard to the rights of all employees for failure to provide accurate records of Plaintiff and Class Members. The Plaintiff also alleges that Defendants have engaged in, among other things a system of willful violations of the California Labor Code by creating and maintaining policies, practices and customs that knowingly deny employees rights and benefits.[BN] The Plaintiff is represented by: Larry W. Lee, Esq. Nick Rosenthal, Esq. DIVERSITY LAW GROUP, P.C. A Professional Corporation 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488 6555 Facsimile: (213) 488 6554 E-mail: lwlee@diversitylaw.com - and - Edward W. Choi, Esq. LAW OFFICES OF CHOI & ASSOCIATES 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381 1515 Facsimile: (213) 465 4885 E-mail: edward.choi@choiandassociates.com - and - Thomas M. Lee, Esq. LEE LAW OFFICES, APLC 3435 Wilshire Blvd Suite 2400 Los Angeles, CA 90010 Telephone: (213) 251 5533 Facsimile: (213) 251 5534 E-mail: leethomas.esq@gmail.com ELECTROLUX: Class Action on Dishwashers Allowed to Continue ----------------------------------------------------------- Scott Holland, writing for Cook County Record, reports Electrolux, the company behind the Frigidaire line of home appliances, was unable to get a judge to wash away parts of a class action lawsuit, accusing the company of selling dishwashers customers allege can spontaneously combust. In an opinion issued Aug. 28 in Chicago, federal Judge John Z. Lee rejected Electrolux Home Products' motion to dismiss parts of a complaint from a dozen plaintiffs from seven states who said their dishwashers "unexpectedly overheated, causing fires and flooding." Electrolux tried to get Lee to dismiss claims of breach of implied warranty of merchantability and various state liability and warranty laws in Washington, Indiana, California and Ohio. Other states involved in the complaint are Illinois, Pennsylvania and Virginia. The plaintiffs also alleged liability based on design defect, negligence, failure to warn and fraudulent concealment. According to Lee's opinion, Electrolux is the world's second- largest appliance maker in terms of units sold. Among its portfolio is the Frigidaire line of residential dishwashers. The plaintiffs in this action said the electrical system of their dishwashers overheated, sparking fires or burning holes through the bottom of the dishwasher tub, which caused water to leak to the floor below. That flooding increases fire risk because it brings water into contact with exposed electrical components, the lawsuits said. The plaintiffs further said a defective heating element ignited dishwashers, causing smoke and fire damage or burning a hole in the tub that led to flooding and mold. All the problems materialized before the units reach their expected nine- to 13- year lifespan. According to plaintiffs, Electrolux issued product recalls in Australia in 2007 and 2013 and in the United Kingdom in 2007, but continued to sell the products in the U.S. and continued to advertise them as safe, including a delay start feature allowing them to start a wash cycle while homeowners are asleep or away from home. They said customers have no way of knowing about the defect, and also allege Electrolux refused to provide relief outside of asking customers to pay to ship the units to a factory or paying for a repair visit. Electrolux argued its expressly limited one-year warranty exempts it from the breach of implied warranty claim from residents of all but the state of Washington, where it sought protection of the statute of limitations. Lee rejected the argument on several grounds, saying the paperwork the company provides with its appliances do not satisfy legal requirements to justify dismissal and "are likely outside the scope of the court's inquiry and the pleading stage." Further, the documents the company cited in its defense "are not central to plaintiffs' complaint" and, even if they were, the claim would still survive because allegations the warranty was unconscionable "involves a disputed issue of fact that cannot be resolved at this stage." In reviewing the Washington state claims, Lee noted plaintiff Leasa Brittenham alleged fraudulent concealment that would establish tolling the statute of limitations, and those considerations should be made at trial, not in a dismissal motion. Similar reasoning played out with respect to other state law claims, as Lee reiterated that certain defendants "claim that Electrolux actively concealed their dishwasher's defect." The plaintiffs argued they would not have bought the dishwashers -- or at least not at full price -- had they known about the defects that gave rise to the 2007 and 2013 international recalls. "The complaint specifies that the dishwashers were sold with a latent defect in the electrical system and explains how this defect can result in injuries like" the ones the plaintiffs suffered, Lee wrote. "These allegations are further supported by a collection of consumer complaints documenting the same types of problems and injuries that plaintiffs allege." Plaintiffs in the cases were represented by the firms of Berger & Montague P.C., of Philadelphia; Greg Coleman Law P.C., of Knoxville, Tenn.; and Wexler Wallace LLP, of Chicago. Electrolux is defended by the firm Wheeler Trigg O'Donnell LLP, of Denver; and Goldberg Segalla LLP, of Chicago. [GN] EQUIFAX INC: 11th Cir. Affirms Dismissal of "Pedro" --------------------------------------------------- The United States Court of Appeals, Eleventh Circuit, issued an Opinion affirming the judgment of the District Court dismissing the case captioned KATHLEEN N. PEDRO, on behalf of herself and all others similarly situated., Plaintiff-Appellant, v. EQUIFAX, INC., Defendant, TRANSUNION LLC, Defendant-Appellee, No. 16-13404 (11th Cir.), for failing to allege a plausible claim for relief. The appeal required the Eleventh Circuit to decide whether a consumer reporting agency adopted an objectively unreasonable interpretation of the Fair Credit Reporting Act when it stated on a consumer's credit report that she was an authorized user of her parents' credit card account. Kathleen Pedro's parents listed her as an authorized user on their credit card account, which later went into default. A consumer reporting agency, TransUnion LLC, listed the delinquent account on Pedro's credit report with a notation that she was an authorized user of the account. TransUnion also included the account when calculating Pedro's credit score, which caused her credit score to fall. Pedro then filed a complaint that TransUnion willfully violated a provision of the Act that requires that a consumer reporting agency follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. The district court dismissed the complaint for failing to allege a plausible claim for relief. Pedro Alleged That She Suffered an Injury in Fact. An injury sufficient for standing purposes is 'an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Pedro alleged an injury that is both concrete and particular. Pedro alleged a concrete injury because the harm caused by the alleged violation of the Act the reporting of inaccurate information about Pedro's credit to a credit monitoring service. And Pedro's alleged injuries affected her personally. Indeed, her credit score dropped 100 points as a result of the challenged conduct. Because Pedro alleged that she suffered an injury in fact, she has standing to pursue her complaint. Pedro's Complaint Failed to State a Claim. Pedro argues that TransUnion willfully violated section 1681e(b) of the Act, which states that whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. To establish that TransUnion willfully failed to comply with section 1681e(b), Pedro must establish that TransUnion either knowingly or recklessly violated that section. An agency recklessly violates the Act if it takes an action that "is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless. Pedro also fails to cite any authority that might have warned TransUnion away from the view it took. Pedro cites no judicial precedent or agency guidance that states that reporting information about accounts for which a consumer is an authorized user fails to meet the standard of maximum possible accuracy. Pedro contends that TransUnion willfully violated section 1681e(b) even under the approach of technical accuracy, but she fails to identify any false information reported by TransUnion. She maintains that reporting the credit delinquencies of her parents on her credit report cannot be technically accurate because it caused her credit report to list the credit history of someone other than her. Pedro argues that willfulness is a question of fact almost never suitable to resolution on a motion to dismiss, but we disagree. District courts may, and often do, determine on the pleadings that a plaintiff failed to plead willfulness when the interpretation of the relevant statute by the consumer reporting agency was not objectively unreasonable. The district court correctly dismissed Pedro's complaint. TransUnion interpreted section 1681e(b) to permit it to report information that was technically accurate, such as Pedro's status as an authorized user on her parents' credit card account. The Eleventh Circuit affirmed the dismissal of Pedro's complaint. A full-text copy of the Eleventh Circuit's August 24, 2017 Opinion is available at http://tinyurl.com/ycd9e7trfrom Leagle.com. Alex Michael Barfield - tood.barton@stantonlawllc.com - for Defendant-Appellee. David L. Balser - dbalser@kslaw.com - for Defendant-Appellee. Zachary Andrew McEntyre - zmcentyre@kslaw.com - for Defendant- Appellee. Kenneth S. Canfield - kcanfield@jonesday.com - for Plaintiff- Appellant. Jonathan D. Selbin, for Plaintiff-Appellant. Kenneth S. Byrd, 150 4th Ave N #1650, Nashville, TN 37219, USA for Plaintiff-Appellant. Brian C. Frontino - bfrontino@stroock.com - for Defendant- Appellee. Stephen J. Newman - snowman@stroock.com - for Defendant-Appellee. John C. Toro - jtoro@kslaw.com - for Defendant-Appellee. Justin Tharpe Holcombe, 331 Washington Avenue, North EastMarietta, GA 30060. for Interested Party-Amicus Curiae. Andrew R. Kaufman, 21 S 12th St, Fl 7, Philadelphia, PA 19107. for Plaintiff-Appellant. Babak Semnar - bob@semnarlawfirm.com - for Plaintiff-Appellant. James A. Francis - info@consumerlawfirm.com - for Plaintiff- Appellant. Jared M. Hartman - jaredhartman@jmhattorney.com - for Plaintiff- Appellant. Michael Joseph Boyle, Jr., for Plaintiff-Appellant. Julia Constance Barrett - jbarrett@kslaw.com - for Defendant- Appellee. Alisa Marie Taormina - ataormina@stroock.com - for Defendant- Appellee. Matthew R. Wilson - mwilson@meyerwilson.com - for Plaintiff- Appellant. David Meir Zionts - dzionts@cov.com - for Interested Party. EXECONE MANAGEMENT: "Welch" Suit Seeks Unpaid OT Wages under FLSA ----------------------------------------------------------------- SARAH WELCH, on behalf of herself and others similarly situated, the Plaintiff, v. EXECONE MANAGEMENT LLC, a Florida Limited Liability Company, and PATRICK RAYMOND, Individually, the Defendant, Case No. 2:17-cv-00482-SPC-MRM (M.D. Fla., Aug. 24 , 2017), seeks to recover unpaid overtime wages, minimum wages, and, pursuant to the Fair Labor Standards Act. According to the complaint, Defendants reduced Plaintiff's wages as a result of cash register shortages resulting in Plaintiff being paid less than minimum wages and less than time and one-half for wages 40 in a work week.[BN] The Plaintiff is represented by: Bill B. Berke, Esq. 4423 Del Prado Blvd. S. Cape Coral, FL 33904 Telephone: (239) 549 6689 E-mail: berkelaw@yahoo.com FCA US: "LaRoe" Suit Moved to Kansas Federal Court -------------------------------------------------- The class action lawsuit titled Ronald LaRoe and Melody LaRoe, Individually, and on behalf of those similarly situated, the Plaintiffs, v. FCA US LLC, formerly known as: Chrysler Group, LLC, the Defendant, Case No. 2017-CV-000592, was removed on Aug. 24, 2017 from the District Court of Wyandotte County, Kansas, to the U.S. District Court for the District of Kansas (Kansas City). The District Court Clerk assigned Case No. 2:17-cv-02487 to the proceeding. FCA US is the American subsidiary of Fiat Chrysler Automobiles N.V., an Italian controlled automobile manufacturer registered in the Netherlands with headquarters in London, U.K., for tax purposes.[BN] The Plaintiffs are represented by: Ashley Scott Waddell, Esq. WADDELL LAW FIRM LLC 2600 Grand, Suite 580 Kansas City, MO 64108 Telephone: (816) 914 5365 Facsimile: (816) 817 8500 E-mail: scott@aswlawfirm.com - and - Benjamin C. Fields, Esq. STUCKY & FIELDS, LLC 214 West 18th Street, Suite 200 Kansas City, MO 64108 Telephone: (816) 659 9970 Facsimile: (816) 659 9969 E-mail: ben@stuckyfields.com - and - Bryce B. Bell, Esq. Mark W. Schmitz, Esq. BELL LAW, LLC 2600 Grand Blvd., Suite 580 Kansas City, MO 64108 Telephone: (816) 886 8206 Facsimile: (816) 817 8500 E-mail: bryce@BellLawkc.com ms@belllawkc.com The Defendant is represented by: Scottie Sue Kleypas, Esq. Craig S. Laird, Esq. ROBERT A. KUMIN, PC 6901 Shawnee Mission Parkway, Suite 250 Overland Park, KS 66202 Telephone: (913) 432 1826 Facsimile: (913) 236 7115 E-mail: skleypas@kuminlaw.com claird@kuminlaw.com FCA US: "Budris" Suit Moved to Connecticut Federal Court -------------------------------------------------------- The class action lawsuit titled Nicholas Budris, on behalf of himself and all others similarly situated, the Plaintiff, v. FCA US LLC, doing business as: Dodge, the Defendants, receipt number 0205-4515006, was removed on Aug. 28, 2017 from the Connecticut Superior Court to the U.S. District Court for the District of Connecticut (New Haven). The District Court Clerk assigned Case No. 3:17-cv-01450 to the proceeding. FCA US is the American subsidiary of Fiat Chrysler Automobiles N.V., an Italian controlled automobile manufacturer registered in the Netherlands with headquarters in London, U.K., for tax purposes. The Plaintiff is represented by: Daniel S. Blinn, Esq. CONSUMER LAW GROUP 35 Cold Spring Rd., Suite 512 Rocky Hill, CT 06067 Telephone: (860) 571 0408 Facsimile: (860) 571 7457 E-mail: dblinn@consumerlawgroup.com The Defendant is represented by: Maureen Danehy Cox, Esq. CARMODY TORRANCE SANDAK & HENNESSEY, LLP - NH 195 Church St. 18th floor PO Box 1950 New Haven, CT 06509-1950 Telephone: (203) 573 1200 Facsimile: (203) 575 2600 E-mail: mcox@carmodylaw.com FLINT, MI: Appeals Ct. Upholds City's Sewer Rates Ordinance ----------------------------------------------------------- The Court of Appeals of Michigan issued an Opinion reversing and remanding for entry of an order granting summary disposition in favor of Defendants in the case captioned LARRY SHEARS and MARGARET FRALICK, Plaintiffs-Appellees, v. DOUGLAS BINGAMAN, individually and as CITY OF FLINT TREASURER, DARNELL EARLEY, individually and as CITY OF FLINT EMERGENCY MANAGER, and CITY OF FLINT, Defendants-Appellants, No. 329776 (Mich. App.). Douglas Bingaman, Darnell Earley, and the City of Flint appeal as of right the circuit court's order on the parties' motions for summary disposition, which denied in part defendants' motion for summary disposition. The named plaintiffs in this class action, Larry Shears and Margaret Fralick, filed this lawsuit against defendants, challenging defendants' decisions to increase water and sewer rates by 35 percent and to increase a readiness-to-serve charge. The complaint included the following six counts: * COUNT I -- 42.U.S.C. Section 1983 VIOLATION OF MCL Section 123.141(3) * COUNT II -- 42.U.S.C. Section 1983UNCONSTITUTIONAL DEPRIVATION OF PROPERT[Y WITHOUT DUE PROCESS -- VIOLATION OF FLINT CHARTER Section 46-52(b)(1) * COUNT III -- 42.U.S.C. Section 1983 UNCONSTITUTIONAL DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS VIOLATION OF FLINT CHARTER Section 46-52.1 * COUNT IV -- 42.U.S.C. Section 1983UNCONSTITUTIONAL DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS -- VIOLATION OF FLINT CHARTER Section 46-52.1(b) * COUNT V -- CLAIMS FOR REFUNDS OF ILLEGALLY COLLECTED INCREASED WATER AND SEWER RATES AND INCREASED READINESS TO SERVE CHARGES * COUNT VI CLAIMS FOR DECLARATORY RELIEF AND MONETARY DAMAGES The Mich. App. concluded that, here, plaintiffs did not plead in avoidance of governmental immunity. Indeed, it does not even appear that governmental immunity is acknowledged in the complaint. Nevertheless, plaintiffs argue, and the circuit court concluded, that some of or all of plaintiffs' claims survived summary disposition as unjust-enrichment claims. The Mich. App. did not agree. The phrase unjust enrichment, or anything similar to that phrase, is not present in the complaint. In fact, the only mention of a contract is made in reference to Flint's wholesale Detroit water purchase contract. Moreover, even if a claim for unjust enrichment had been properly alleged, the Mich. App. said it is not convinced that such a claim could move forward under the facts and circumstances of this case. Michigan case law is clear in that there is a strong presumption that statutes do not create contractual rights. The Mich. App. said it is simply unaware of any authority that would support the proposition that, where an ordinance or statutory provision does not create a contractual relationship, a party may nevertheless create one under the guise of unjust enrichment, which sounds in equity and contract. The Mich. App. therefore rejected plaintiffs' argument in this regard. Plaintiffs' argument that the increases also violated Ordinance 46-52.1 by increasing the water rates above 8% is not supported by the language of the ordinance and that plaintiffs' argument that defendant illegally commingled funds had no merit. The claims at issue in this case, with the exception of the newly raised concept of unjust enrichment, are, in essence, the same, and there is nothing in the record in this case suggest that a different outcome would be appropriate here. Accordingly, the Mich. App. reversed and remanded for entry of an order granting summary disposition pursuant to MCR 2.116(C)(7) in defendants' favor. A full-text copy of the state Court of Appeals' August 24, 2017 Opinion is available at http://tinyurl.com/ycd9e7trfrom Leagle.com. VALDEMAR L. WASHINGTON - vwashington@settlemate.com - for LARRY SHEARS, Plaintiff-Appellee. CHRISTOPHER M. TREBILCOCK - trebilcock@millercanfield.com - for DOUGLAS BINGAMAN, Defendant-Appellant. ANTHONY CHUBB - chubb@mcgrawmorris.com - for DOUGLAS BINGAMAN, Defendant-Appellant. FRANKLIN COLLECTION: Torres Files Placeholder Class Cert. Bid ------------------------------------------------------------- In the lawsuit entitled JENNIFER TORRES, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. FRANKLIN COLLECTION SERVICE, INC., the Defendant, Case No. 2:17- cv-01179 (E.D. Wisc.), the Plaintiff asks the Court for an enter to certifying a class in this case, 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 requests 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=d6B4bVEW The Plaintiff is represented by: 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 GALENA BIOPHARMA: GALE Investor Group Named Lead Plaintiff ---------------------------------------------------------- Galena Biopharma, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the court had appointed a lead plaintiff and consolidated the actions. On February 13, 2017, a putative shareholder securities class action complaint was filed in the U.S. District Court for the District of New Jersey entitled, Miller v. Galena Biopharma, Inc., et al. On February 15, 2017, a putative shareholder securities class action complaint was filed in the U.S. District Court for the District of New Jersey entitled, Kattuah v Galena Biopharma, Inc., et al. The actions assert that the defendants failed to disclose that Galena's promotional practices for Abstral were allegedly improper and that the Company may be subject to civil and criminal liability, and that these alleged failures rendered the Company's statements about its business misleading. Two groups of shareholders and one individual shareholder filed three motions to be appointed lead plaintiff on April 14, 2017 and April 17, 2017. Subsequently, one of the shareholders groups withdrew its motion for lead plaintiff status and the individual shareholder notified the court that he does not object to the appointment of the remaining shareholder group, Gale investor group, as lead plaintiff. On July 17, 2017, the Court approved the GALE investor group as named lead plaintiff and its counsel as lead and liaison counsel. The Court also consolidated both actions. Galena Biopharma said, "Within the time allowed under the federal rules and statute, we anticipate that an amended complaint will be filed and the Company and the other defendants, former and current officers, will respond to the amended complaints through an appropriate pleading or motion." Galena Biopharma is a biopharmaceutical company developing hematology and oncology therapeutics that address unmet medical needs. The company is based on San Ramon, California. GLOBUS MEDICAL: Shearman & Sterling Discusses 3rd Circuit Ruling ---------------------------------------------------------------- Shearman & Sterling LLP reports that on August 23, 2017, the United States Circuit Court of Appeals for the Third Circuit affirmed a district court decision dismissing a putative class action against Globus Medical, Inc. ("Globus" or the "Company"), a medical device company that designs, develops and sells musculoskeletal implants, and several individual officers. Williams v. Globus Medical, Inc., No. 16-3607 (3d Cir. Aug. 23, 2017). The lawsuit alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 based on allegations that the Company failed to disclose the termination of a distribution partnership or the impact the termination would have on its revenue projections. The decision sheds light on how district courts in the Third Circuit should evaluate claims that are based on an alleged omission that, according to plaintiffs, rendered a prior disclosure inaccurate, incomplete or misleading, and also addresses the requirements for stating a claim based on allegedly misleading revenue projections. The Third Circuit divided plaintiffs' claims into two categories consisting of challenges to (i) historical statements, in particular the risk disclosures in the Company's 2013 10-K, filed in March 2014 ("10-K"), and its 2014 1Q 10-Q, filed in late April 2014 ("10-Q"), and (ii) forward-looking statements, primarily certain sales and earnings projections made in February and April 2014 earnings conference calls. Concerning the historical statements, plaintiffs argued that the statement in Globus's 2013 10-K (incorporated into the 10-Q) that "[s]ome of our independent distributors account for a significant portion of our sales volume, and if any such independent distributor were to cease to distribute our products, our sales could be adversely affected" was misleading because the Company already had decided to terminate a distribution partnership at the time of the statement. While the Court acknowledged in rejecting this argument that "courts are skeptical of companies treating as hypothetical in their disclosures risks that have already materialized," it clarified that the materialized risk must be the disclosed risk. In this case, "[t]he risk actually warned of [was] the risk of adverse effect on sales--not simply the loss of independent distributors generally." (Emphasis added). The Court explained that the Company might have come under a duty to disclose "if the sales already were adversely affected at the time the risk disclosures were made." However, plaintiffs had not pleaded facts sufficient to show this was the case. Regarding the Company's forward-looking statements made during the February and April 2014 earnings conference calls, the Court also rejected plaintiffs' claim that the Company's statements regarding its revenue projections were misleading because, at the time of the 10-K, the projections incorporated projected sales figures from the terminated distribution partnership. The Court agreed with the district court that plaintiffs failed to plead facts sufficient to show that the revenue projections were false or misleading when made, finding that plaintiffs failed to allege any "contemporaneous sources" to show that the projections included amounts from the terminated distribution partnership or any facts quantifying such amounts or any shortfall. Absent such allegations, plaintiffs' claim was merely a general assertion that the revenue projections were made without a reasonable basis, which, according to the Court, could not serve as a basis for a securities fraud claim. Separately, the Court found that the challenged revenue projections were protected under the PSLRA safe harbor because they were forward-looking and plaintiffs failed to allege facts sufficient to infer that the Company knew that ending a distribution partnership would render the Company's overall projections misleading. In particular, the Court agreed with the district court that while it may be plausible to "infer that the Company knew or should have known that ending its [distribution] relationship with [the distributor] could have some effect on its sales . . . actual knowledge that sales from one source might decrease is not the same as actual knowledge that the company's overall sales projections are false." As support for this proposition, the Court noted the Company came within 1.17% of its original sales projections ($474.4 million actual, compared to $480 million initially projected), which further undermined plaintiffs' claims that the sales projections could not be achieved without the distribution partnership. The Third Circuit's decision makes clear that courts should carefully consider the specific language of a risk disclosure when facing a claim that the disclosure said a risk "may" happen when it should have said that a risk "has" happened, and also underscores the many challenges plaintiffs face when trying to make claims based on allegedly misleading revenue projections. [GN] GOLF CLUB: Vega Sues for Payment of Tips and Gratuities ------------------------------------------------------- LINETTE VEGA and VICTOR VILLASIN, individually and on behalf of others similarly situated, the Plaintiffs, v. THE GOLF CLUB OF PURCHASE, INC.; ROBERT F. WISE; and any other related entities, the Defendants, Case No. 608665/2017 (N.Y. Sup., Aug. 24, 2017), seeks to recover unlawfully retained tips and gratuities owed to Plaintiffs and other similarly situated persons who are presently or were formerly employed by The Golf Club of Purchase, pursuant to the New York Labor Law. According to the complaint, Defendants have engaged in a policy and practice of failing to pay service charge to Plaintiffs and similarly situated employees, and instead retained the money for their own benefit in violation of state Labor Laws.[BN] The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873 9550 GRANITE TELECOMMUNICATIONS: White Seeks Unpaid Wages under FLSA --------------------------------------------------------------- PAUL WHITE, individually and on behalf of all those similarly situated, the Plaintiff, v. GRANITE TELECOMMUNICATIONS, LLC, the Defendant, Case No. 1:17-cv-03243-CAP (N.D. Ga., Aug. 28, 2017), seeks to recover monetary damages for unpaid wages, overtime wages, and liquidated damages under the Fair Labor Standards Act. The Plaintiff and the class of similarly situated employees routinely worked over 40 hours each week with Defendant's knowledge and behest throughout their employment with Defendant. Shortly after his employment began, Plaintiff's superiors began to pressure, urge and encourage him and all other inside sales representatives to work beyond the scheduled 40 hours, including coming in early, staying late and working through lunches in order to meet goals and quotas and maximize sales. According to the complaint, the Defendant, through its managers, encouraged and pressured Plaintiff and those similarly situated to work as many hours as necessary to meet sales production numbers. There was no time tracking methods used by the Defendant to track time worked by Plaintiff and those similarly situated in the office. In February 2017, Defendant told its employees that some were entitled to pay for hours over 40, but not others. Those employees that were paid were only paid for those hours at an $8 to $9 overtime rate, and Defendant did not pay overtime on the employee commissions. The Defendant did instruct employees against working overtime and even represented that they would pay overtime wages, but very quickly is was "business as usual", the majority of sales reps working overtime hours without being paid and continually warned about hitting numbers and goals no matter how many hours it took. The Defendant knew that the inside sales representatives were working overtime and also working off the clock. Granite Telecommunications provides communications services to multiple location businesses in the United States and Canada.[BN] The Plaintiff is represented by: Amanda A. Farahany BARRETT & FARAHANY Paul White 1100 Peachtree Street, Suite 500 Atlanta, GA 30309 Telephone: (404) 214 0120 Facsimile: (404) 214 0125 E-mail: amanda@justiceatwork.com GULF MOTEL: "Straub" Suit Seeks Minimum & OT Wages under FLSA ------------------------------------------------------------- SHERRY STRAUB, on behalf of herself and those similarly situated, the Plaintiff, v. GULF MOTEL, LLC, a Florida Profit Corporation, and JOHN D. SURFUS, individually, the Defendants, Case No. 2:17- cv-00479-UA-CM (M.D. Fla., Aug. 24, 2017), seeks to recover unpaid minimum wages, overtime wages, and liquidated damages, pursuant to the Fair Labor Standards Act. According to the complaint, Defendants failed to pay Plaintiff at least federal minimum wage for all weeks worked.[BN] The Plaintiff is represented by: Andrew R. Frisch, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL 33324 Telephone: (954) WORKERS Facsimile: (954) 327 3013 E-mail: afrisch@forthepeople.com HOME DEPOT: Faces FCRA Class Action Over Background Check --------------------------------------------------------- Thomas Ahearn, writing for ESR News, reports that on August 4, 2017, a class action lawsuit filed in California federal court against Home Depot USA Inc. claimed the home improvement retailer willfully violated the Fair Credit Reporting Act (FCRA) with allegedly improper disclosures and authorizations on background check consent forms. The complaint claims background check consent forms that allegedly authorized Home Depot to screen applicants included a liability waiver. Under FCRA section 1681b(b)(2)(A), employers procuring a background check report for employment purposes must make sure that: (i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured or caused to be procured, in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and (ii) the consumer has authorized in writing (which authorization may be made on the document referred to in clause (i)) the procurement of the report by that person. The Plaintiff, Katherine Saltzberg, claims she signed a background check consent form when applying to work for Lifetime Solutions Inc. -- a water treatment company that offers services to Home Depot customers -- and had to sign the waiver as a condition of the background check. Ms. Saltzberg claims the waiver was illegal and authorization improper under the FCRA and wants to represent a nationwide class of job applicants who signed a Home depot background check disclosure form in the last five years. Fines for FCRA violations range from $100 to $1,000 per violation. The complaint states: Defendant knew that its background check disclosure and authorization forms should not include extraneous information that is prohibited by the FCRA, and acted in deliberate disregard of its obligations and the rights of Plaintiff and other class members. A copy of the complaint for KATHERINE SALTZBERG vs. HOME DEPOT U.S.A., INC., Case Number 2:17-CV-05798, filed in the United States District Court Central District of California on August 4, 2017, is available at www.unitedstatescourts.org/federal/cacd/685800/1-0.html. Enacted in 1970, the FCRA promotes the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies (CRAs) and protects consumers from the willful or negligent inclusion of inaccurate information in their reports. [GN] INTELLIPHARMACEUTICS: Kahn Swick Files Securities Class Action -------------------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., have filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of shareholders who purchased or otherwise acquired securities of IntelliPharmaCeutics International, Inc. (Nasdaq:IPCI) between May 21, 2015 and July 26, 2017, inclusive (the "Class Period"). What You May Do If you purchased shares of IntelliPharmaCeutics and would like to discuss your legal rights you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877- 515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit http://ksfcounsel.com/cases/nasdaqcm-ipci/to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by September 29, 2017. About the Lawsuit IntelliPharmaCeutics is a pharmaceutical company specializing in research, development, and manufacture of oral solid dosage drugs. The Company's main product candidate was Rexista, an abuse- deterrent oxycodone hydrochloride extended release tablet indicated for the management of pain severe enough to require daily, long-term opioid treatment. The complaint alleges that IntelliPharmaCeutics made false and/or misleading statements and/or failed to disclose material information in violation of the federal securities laws, including that: (i) IntelliPharmaCeutics didn't conduct a human abuse liability study to support its New Drug Application ("NDA"); (ii) IntelliPharmaCeutics didn't include abuse-deterrent studies to support abuse-deterrent label claims related to abuse of the drug; and (iii) IntelliPharmaCeutics did not submit sufficient data to support approval of the Rexista NDA. On July 27, 2017, the Company disclosed that its NDA for Rexista was not approved. As the truth was revealed, IntelliPharmaCeutics' stock declined approximately 45.6% to close at $1.36 per share on July 27, 2017. About Kahn Swick & Foti, LLC KSF, whose partners include former Louisiana Attorney General Charles C. Foti, Jr., is a law firm focused on securities, antitrust and consumer class actions, along with merger & acquisition and breach of fiduciary litigation against publicly traded companies on behalf of shareholders. The firm has offices in New York, California and Louisiana. [GN] INTERCLOUD SYSTEMS: $3 Mil. Settlement Awaits Court Approval ------------------------------------------------------------ Intercloud Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the parties in the case entitled In re InterCloud Systems Sec. Litigation, Case No. 3:14- cv-01982 (D.N.J.) have reached a global settlement in principle. In March 2014, a complaint entitled In re InterCloud Systems Sec. Litigation, Case No. 3:14-cv-01982 (D.N.J.) was filed in the United States District Court for the District of New Jersey against the Company, its Chairman of the Board and Chief Executive Officer, Mark Munro, The DreamTeamGroup and MissionIR, as purported securities advertisers and investor relations firms, and John Mylant, a purported investor and investment advisor. The complaint was purportedly filed on behalf of a class of certain persons who purchased the Company's common stock between November 5, 2013 and March 17, 2014. The complaint alleged violations by the defendants (other than Mark Munro) of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and other related provisions in connection with certain alleged courses of conduct that were intended to deceive the plaintiff and the investing public and to cause the members of the purported class to purchase shares of our common stock at artificially inflated prices based on untrue statements of a material fact or omissions to state material facts necessary to make the statements not misleading. The complaint also alleged that Mr. Munro and the Company violated Section 20 of the Exchange Act as controlling persons of the other defendants. The complaint seeks unspecified damages, attorney and expert fees, and other unspecified litigation costs. On November 3, 2014, the United States District Court for the District of New Jersey issued an order appointing Robbins Geller Rudman & Dowd LLP as lead plaintiffs' counsel and Cohn Lifland Pearlman Herrmann & Knopf LLP as liaison counsel for the pending actions. The lead plaintiff filed an amended complaint in January 2015 adding additional third-party defendants. The Company filed a motion to dismiss the amended complaint in late January 2015 and the plaintiffs filed a second amended complaint in early March 2015. The Company filed a motion to dismiss the second amended complaint on March 13, 2015. The Company's motion to dismiss was denied by the Court on October 29, 2015. The Court held a status conference on February 29, 2016, and entered a PreTrial Scheduling Order on February 29, 2016. In April 2017, the parties in this proceeding and related derivative actions reached a global settlement in principle for an aggregate of $3.0 million, which amount will be paid by the Company's insurers. The Company and the other parties in such proceedings are currently in the process of finalizing the global settlement and obtaining court approval of the settlement. Intercloud Systems said that "while the Company believes a global settlement can be reached by the parties and approved by the applicable courts, there can be no assurance that any such settlement will be reached and approved." InterCloud Systems, Inc. provides software, network, and infrastructure solutions to improve business operations and enhance energy conservation. It also offers telecommunications project infrastructure services and management. InterCloud Systems, Inc. is based on New York City, New York and was founded on 1999. J.W. LOGISTICS: "Venable" Suit Seeks OT Wages under FLSA -------------------------------------------------------- TINISIA VENABLE, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. J.W. LOGISTICS, LLC, the Defendant, Case No. 1:17-cv-03213-LMM (N.D. Ga., Aug. 24, 2017), seeks to recover overtime wages pursuant to the Fair Labor Standards Act. According to the complaint, throughout the course of her employment by JW, Plaintiff was always denied overtime compensation even though she routinely worked every week, and such overtime was expected by Defendant of Plaintiff and all other dispatchers. J.W. Logistics provides tailored solutions to meet each client's specific needs and designs a system that leverages time-sensitive transportation management.[BN] The Plaintiff is represented by: Mitchell L. Feldman, Esq. MITCHELL L. FELDMAN, ESQ., P.A. 1201 Peachtree Street, NE 400 Colony Square, No. 200 Atlanta, GA 30361 Telephone: (877) 946 8293 Facsimile: (813) 639 9376 E-mail: mlf@feldmanlegal.us JAMES HARDIE: 5-Month Opt in Granted in Cladding Class Action ------------------------------------------------------------- Parker and Associates disclosed that more leaky-building owners will have the chance to join a self-funded class action against James Hardie after the Court of Appeal released a judgment on Aug. 30 upholding the representative action and extending opt-in periods from two and 10 weeks to five months. Costs have also been awarded in favour of the owners. Leaky building owners represented by Wellington law firm Parker & Associates first brought a product liability claim against James Hardie New Zealand Limited and James Hardie Company Studorp Limited in negligence and for breach in the Fair Trading Act in 2015. The owners allege that leaks in their homes are attributable to inherent defects in cladding systems manufactured by James Hardie. They also claim James Hardie made misleading statements about its cladding systems in its technical literature. It is alleged that a large number of home-owners may be affected. James Hardie denies its cladding systems are defective and will be defending all claims. James Hardie argued that the claims were not suitable for representative class action procedure. In December 2016 the High Court made orders allowing the case to proceed as representative action (class action) and granted an opt-in period of 10 weeks for Harditex and two weeks for the Titan Board class. In the judgment released on Aug. 30 the Court of Appeal has dismissed the appeal by James Hardie and upheld the High Court's representative orders. The Court of Appeal also allowed a cross appeal by the plaintiff group owners and granted an opt of period of five months for new class members to join the claim rather than the 10 weeks and two weeks period that had been granted by the High Court. Further, the Court of Appeal allowed the owners' appeal against a judgment of Justice Susan Thomas in December 2015. The Court of Appeal concluded that Justice Thomas was wrong to decline to grant the declaratory orders sought at that time to preserve the position of members of the class for limitation purposes in the event that the Court later declined to make a representative order. Costs have been awarded in favour of the owners. The group's lawyer, Dan Parker of Parker & Associates said that the plaintiff group was very pleased with the judgment. Mr Parker said there had been strong interest from potential new claimants since the class action was given the go-ahead in October 2016. He anticipates that the group will increase significantly following the new opt-in orders, which take effect from August 30, 2017. Mr Parker said the group now looks forward to inviting other eligible class members to join the claim within the five-month opt-in period, which runs until the end of January 2018. "The opt in period will be the last chance for most affected owners to pursue any legal action for recovery of their losses. If they join during the opt in period they will not be affected by a 15-year limitation longstop that will otherwise bar claims after the opt-in period expires. Also the Supreme Court confirmed last year in the leaky schools litigation that the 10 year Building Act limitation longstop does not apply to a product liability claim like this," Mr Parker said. Thousands of properties were built using Harditex from 1987 until the early 2000s. Titan Board was widely used from 1995. Mr Parker urges owners of buildings constructed since 1987 using Harditex or Titan board to get in touch to find out how to opt in to join the claim. Experts can be arranged to investigate whether the materials in question have been used and whether damage has resulted. Owners of properties clad in Harditex or Titan Board are invited to contact Parker & Associates urgently to find out how to opt in. Parker & Associates is currently representing over 60 Harditex owners. There is currently only one property in the Titan Board class but there is significant interest from other owners of Harditex and Titan Board properties. Group members are pooling resources to pay for the class action, without the need for separate litigation funding. [GN] JUST BORN: Faces Slack Fill Class Action in California ------------------------------------------------------ Holly A. Melton, Esq. -- hmelton@bakerlaw.com -- and Alan L. Friel, Esq. -- afriel@bakerlaw.com -- of Baker & Hostetler LLP, in an article for Lexology, wrote that Mike and Ike brand candy made an advertising splash a few years ago, with a campaign built around the "breakup" of the not-quite famous pair whose names are the brand. Boxes of the candy appeared with one or the other name scratched out, and short missives from Mike or Ike appeared on the back of the boxes explaining the breakup -- Just Born, the maker of the candy -- even commissioned a movie trailer built around the concept. The campaign was very popular, in part because it played on the candy's simultaneous ubiquity and anonymity: Everyone is familiar with the Mike and Ike box, yet few people probably know much about the product, which has been consumed by Americans in some form or another for more than 75 years. Slackers? The Mike and Ike brand hit the headlines again this August but in a less positive way -- a class action suit filed in the Southern District of California. Anthony Buso brought claims on behalf of a class of Mike and Ike purchasers against Just Born alleging violations of California's Consumer Legal Remedies Act, Unfair Competition Law and False Advertising Law. Mr. Buso claimed that a box of the candy he purchased was only 70 percent filled with actual product, which triggered the various California statutes. "Judging from the sizes of the container, a reasonable consumer would expect them to be substantially filled with product," the suit maintains. The Takeaway 'The suit seeks injunctive relief, costs of the suit and attorneys' fees, and damages. This suit is part of an overall increase in slack-fill litigations across the country, as we have reported previously. [GN] LA LAKERS: Insurance Company Won't Have to Cover TCPA Settlement ---------------------------------------------------------------- Karen Kidd, writing for Northern California Record, reports that an Indiana-based insurance company won't have to cover a Los Angeles Lakers' settlement of a Telephone Consumer Protection Act class action following a U.S. Ninth Circuit Court of Appeals decision that the lawsuit was excepted in the team's policy. The exception was written into the Lakers' Federal Insurance Company policy for invasion of privacy claims, Ninth Circuit Court Judge N. Randy Smith wrote in the court's majority opinion handed down Aug. 23. "It is evident from the plain language of the insurance contract that the parties intended to exclude all invasion of privacy claims," Smith wrote. "We recognize that exclusionary clauses are to be construed against the insurer; but here we must reconcile this rule with our canon of giving effect to the intent of the parties in light of a clause that broadly excludes coverage for any claim originating from, incident to, or having any connection with, invasion of privacy." In the 3-2 decision, the Ninth Circuit affirmed a lower court ruling that the insurance company of the Lakers' directors and officers does not have to cover settlement of a 2012 class action lawsuit alleging the team violated the TCPA. The Lakers appealed the lower court's ruling to the Ninth Circuit, which heard oral arguments in the case in February, that FIC didn't have to cover settlement of the text spam class action. In that class action, a fan accused the Lakers of violating the TCPA by sending allegedly unsolicited texts. Dissenting in the appeals court decision, Judge Richard Tallman countered that TCPA allegations aren't automatically privacy claims and that the class action's initial plaintiff sought relief based only on a technical TCPA violation, not invasion of privacy. "When a cause of action is defined by specific and unambiguous statutory elements, there is no need to redefine or restrict that cause of action based on the underlying purpose that motivated its enactment," Judge Tallman wrote in his dissent. "In its decision the court errs by rejecting the statutory elements chosen by Congress and redefining a TCPA claim as a narrowly restricted privacy claim." The case has been closely watched because observers said it could change how insurers pay off -- or don't -- on directors and officers policies under the TCPA. The plaintiff in the class action, David Emanuel, said the Lakers violated the TCPA by sending unsolicited text messages to him and other members of the class following an Oct. 13, 2012, game during which fans were encouraged to text messages to a certain number. A U.S. District Court judge dismissed Emanuel's case in April 2013, ruling Emanuel had implicitly consented to receiving a follow-up text once he sent his original message. Emanuel appealed to the Ninth Circuit as social media companies Twitter and Path lined up behind the Lakers with an amicas brief saying a cottage industry of TCPA plaintiffs' attorneys had transformed "a statute intended to curb vexatious telemarketing" into a "vehicle for vexatious lawsuits". Mr. Emanuel told the court the following January that he and the Lakers had reached a settlement. The following September, the Lakers sued Federal Insurance Company for refusing to defend or indemnify the team in the class action litigation under the team's directors and officers policy. [GN] LISA VILLWOK: Court Refuses to Certify Class in "Valentine" Suit ---------------------------------------------------------------- Magistrate Judge Michael D. Nelson of the U.S. District Court for the District of Nebraska denied the Plaintiff's motion for (i) class certification and (ii) appointment of counsel to represent the class in the case captioned ERONICA VALENTINE, Plaintiff, v. LISA VILLWOK, #1764; and JENNIFER HANSEN, #1585; Defendants, Nos. 8:16CV131, 8:16CV174 (D. Neb.). These consolidated actions arise out of the Plaintiff's allegations that on July 17, 2015, the Defendants subjected her to a visual body cavity search during the execution of a search warrant of a residence. The operative pleading in the consolidated cases is the Plaintiff's Amended Complaint, filed on Sept. 12, 2016. The Court previously determined that, liberally construing the Plaintiff's allegations, she has alleged a violation of her "rights under the Fourth Amendment to the United States Constitution in connection with the search conducted by the Defendants on July 17, 2015. Chief Judge Smith Camp has overruled the parties' Motions for Summary Judgment and outlined the remaining issues to be determined by the fact-finder at trial. On Aug. 21, 2017, the Plaintiff moves for (i) certification of the action as a class action as practice of illegally strip searching these red yellow black white and brown albino women as set out; and (ii) appointment of counsel to represent the class. The Plaintiff did not file a brief or any other supporting documents with the motion, which is quoted in its entirety. In review of the Plaintiff's motion and the operative pleadings in the case, Magistrate Judge Nelson finds the Plaintiff's bare and general allegations are insufficient to warrant certification of a class action. The Plaintiff has not made any kind of showing that the requirements exist in the case and she has not complied with the district's class action procedures set forth in NECivR 23.1. Additionally, the Magistrate Judge finds that the Plaintiff's motion to certify the case as a class action is not proper at this stage of the proceedings. Pursuant to the Court's Jan. 20, 2017, Order Setting Schedule for Progression of Case, the Defendants should have already drafted the Order on Final Pretrial Conference and submitted it to the Plaintiff by July 31, 2017. The proposed order is necessary before he can hold a meaningful final pretrial conference with the parties on Sept. 11, 2017. Magistrate Judge Nelson again reminds the parties that if they fail to obey the Court's scheduling order with respect to the preparation of the Proposed Final Pretrial Conference, or fail to appear at the final pretrial conference, are substantially unprepared to participate in the conference, or do not participate in the conference in good faith, he may impose sanctions. Accordingly, he denied the Plaintiff's motion. A full-text copy of the Court's Aug. 25, 2017 Order is available at https://is.gd/D2JQG7 from Leagle.com. Veronica Valentine, Plaintiff, Pro Se. Lisa Villwok, Defendant, represented by Timothy G. Himes, Sr. -- timothy.himes@cityofomaha.org -- CITY ATTORNEY'S OFFICE. Jennifer Hansen, Defendant, represented by Timothy G. Himes, Sr., CITY ATTORNEY'S OFFICE. MAGICJACK: Finkelstein & Krinsk Files Class Action Suit ------------------------------------------------------- Finkelstein & Krinsk, LLP, the San Diego-based law firm recognized for class action litigation involving investor and consumer losses has filed a class action complaint against MagicJack and its Board of Directors at the Southern District of Florida on behalf of the current MagicJack shareholders (Nasdaq: CALL) who were deprived of fair corporate suffrage associated with Proxy materials content and shareholder voting concerning the April 19, 2017 and July 31, 2017 proxy solicitations. If you wish to participate or serve as a lead plaintiff, you must move the Court no later than 60 days from August 31, 2017. For more information about the Finkelstein & Krinsk complaint or to talk to an attorney about your options, contact Jeffrey R. Krinsk (Finkelstein & Krinsk, LLP, 619-238-1333), or email: jrk@classactionlaw.com. A class member may move the Court to serve as lead plaintiff through counsel of their choice. The proxy statements at issue were prepared by the directors of MagicJack. The Complaint alleges the directors denied shareholders fair corporate suffrage after issuing two consecutive false and misleading proxy and alleges the associated information of the proxy statements and the proxy misrepresented material facts concerning (1) the true value of the Broadsmart subsidiary and its grossly impaired financials; (2) the true prospects of the Broadsmart acquisition represented as a business springboard; (3) the concealment of material issues in order to entrench MagicJack's Board of Directors, and (4) related manipulation to gain unwarranted compensation in connection with attempts to sell the Company and extract personal recompense. Finkelstein & Krinsk, LLP practices law nationwide and has a reputation for superior work and excellent results. Please call (toll-free 877-493-5366), email: -- jrk@classactionlaw.com --, or otherwise contact Finkelstein & Krinsk as follows: 619-238-1333, 619-238-5425 fax, 550 C St, San Diego, CA 92101. [GN] MATHESON TRI-GAS: $370K Deal in "Van Kempen" Suit Has Final Nod --------------------------------------------------------------- Judge Haywood Stirling Gilliam Jr. of the U.S. District Court for the Northern District of California granted the Plaintiff's motion for final approval of a class action settlement in the case captioned ROY VAN KEMPEN, Plaintiff, v. MATHESON TRI-GAS, INC., Defendant, Case No. 15-cv-00660-HSG (N.D. Cal.). The Defendant employed the Plaintiff as an hourly, non-exempt delivery driver of industrial and medical gases. In his operative complaint, the Plaintiff alleges that the Defendant intentionally failed to include the non-discretionary bonuses he received in calculating his rate of overtime pay. On that basis, he claims that the Defendant systematically underpaid his overtime wages in violation of Section 207(a)(1) of the FLSA and Section 510 of the California Labor Code. He further alleges that the Defendant had a "use-it-or-lose it" vacation time policy by which accrued vacation time was automatically forfeited if not used within a specified time period. The Plaintiff claims that this vacation- time policy violated California Labor Code Section 227.3. These claims are asserted in both the Plaintiff's individual capacity and on behalf of all other persons similarly situated. The Defendant removed the action from state court under federal question, diversity, and Class Action Fairness Act jurisdiction. In this Court, the Plaintiff amended his initial complaint to add new state law claims and propounded formal and informal written discovery on the Defendant. The parties then participated in a private mediation before a retired state court judge, and the case settled. The Plaintiff filed an unopposed motion for preliminary approval of class and collective action settlement on Jan. 10, 2016. The Court denied the Plaintiff's motion on Aug. 1, 2016. In its decision, the Court (i) granted provisional class certification of the nationwide FLSA overtime class, and California overtime and vacation classes; (2) appointed the Plaintiff as the class representative and Sutton Hague Law Corporation as the class counsel; and (iii) denied preliminary settlement approval due to the proposed FLSA opt-in agreement and release language Pending before the Court is the Plaintiff's motion for final approval of a class action settlement, individually and on behalf of the settlement class, as well as his unopposed motion for attorneys' fees, costs, and an enhancement award. The proposed settlement will resolve Plaintiff's wage-and-hour claims against the Defendant under the FLSA, and various California statutes. The key terms of the proposed class action settlement are: a. Class Definitions: There are three groups of proposed class members: (i) an FLSA overtime group, comprised of all current and former non-exempt employees of the Defendant nationwide who worked overtime while entitled to non-discretionary bonus pay and who opt in to the group; (ii) a California overtime class, comprised of all current and former non-exempt employees of the Defendant in California who worked overtime while entitled to non-discretionary bonus pay and who do not opt out of the settlement; and (iii) a California vacation-time class, comprised of all persons employed by the Defendant in California who accrued vacation time but forfeited it. The class period for all three proposed classes runs from Jan. 9, 2011, through the date that the Court enters final approval of the collective and class action settlement. In total, the parties estimate that there are approximately 2,400 putative class members. b Monetary Relief: The Defendant will pay a gross total of $370,000 to resolve the action, less attorneys' fees up to $103,600 and up to $15,000 in litigation costs, a $5,000 incentive award for the Plaintiff, settlement administration costs not anticipated to exceed $25,000, and 75% of the $5,000 penalty under the Private Attorneys General Act ("PAGA"). Based on these assumptions, the parties estimate that the putative classes will receive a total of $217,650. Fifty-two percent of this amount is allocated to the FLSA nationwide and California overtime classes. The remaining 48% is allocated to the California vacation class. Each individual putative class member's payment within each proposed class will be calculated by dividing the net settlement amount by the total number of weeks that all members of the relevant proposed class worked during the class period and then multiplying that number of compensable workweeks that the individual worked. Regardless of the outcome of this formula, each putative class member will receive a monetary payment of at least $25. c. Cy Pres Recipients: The settlement checks left uncashed for 180 days by California class members will revert to California's Division of Labor Standards Enforcement unclaimed wage fund. The similarly left uncashed by FLSA class members will revert in equal part to the Employee Rights Advocacy Institute for Law & Policy and the UCLA Institute for Research on Labor and Employment. d. Release: There is both a class and individual component to the proposed release. The Putative class members would release any and all applicable claims which were asserted in the Action or could have been asserted against the Released Parties based on the claims, matters, transactions or occurrences referred to in the operative Complaint during the Claims Period ("Released Claims"). The Released Claims also include claims under or pertaining to the Fair Labor Standards Act any and all PAGA penalties or other relief under California Business and Professions Code Section 17200 et seq. that could have been raised in the operative Complaint, and all rights under California Civil Code Section 1542. The Plaintiff, as the class representative, would release these same claims. e. Class Notice: The parties intend to send class notice packages to all last-known addresses of putative class members by US mail within 14 calendar days of the Court's order granting preliminary approval. f. Opt-Out & Opt-In Procedures: The putative members of the California overtime and vacation classes have the right to opt out of the settlement by submitting a request for exclusion form within 60 days after the settlement administrator transmits class notice. If 5% of either the California overtime or vacation putative classes opt out of the settlement, the Defendant will have the unilateral right to terminate the settlement agreement. g. The putative members of the FLSA class must affirmatively opt in to participate in the FLSA settlement. The FLSA overtime putative class members must opt in by submitting a Claim Form to the Claims Administrator not later than 60 calendar days from the mailing of the Notice Packet. h. Class Representative and Class Counsel: The Plaintiff has been appointed the class representative and Sutton Hague Law Corporation has been appointed the class counsel. i. Incentive Award: The Plaintiff seeks a $5,000 incentive award as the class representative. j. Attorneys' Fees and Costs: The class counsel will seek attorneys' fees equal to 28% of the gross settlement amount and litigation costs up to $15,000. If the Court awards attorneys' fees and costs equal to less than the requested amount, the difference will revert to the net settlement amount. Judge Gilliam granted the Plaintiff's Motion for Final Approval of Class Action Settlement and Plaintiff's Motion for Attorneys' Fees and Costs. He further approved the settlement amount of $370,000, including payments of attorneys' fees in the amount of $98,432; costs in the amount of $7,674.55; administration fees in the amount of $37,500; an incentive fee for the Named Plaintiff in the amount of $5,000; and a $5,000 PAGA allocation. He directed the parties and settlement administrator to implement the Final Order and the settlement agreement in accordance with the terms of the settlement agreement. They are directed to submit a joint proposed judgment for approval by Sept. 1, 2017. A full-text copy of the Court's Aug. 25, 2017 Order is available at https://is.gd/i4514x from Leagle.com. Roy Van Kempen, Plaintiff, represented by S. Brett Sutton -- brett@suttonhague.com -- Sutton Hague Law Corporation. Roy Van Kempen, Plaintiff, represented by Jared Hague -- jared@suttonhague.com -- Sutton Hague Law Corporation. Matheson Tri-Gas, Inc., Defendant, represented by Clinton Davis Robison -- clint.robison@leclairryan.com -- LeClairRyan & Vickie V. Grasu -- vickie.grasu@leclairryan.com -- LeClair Ryan LLP. MDL 2705: Court Grants Bid to Dismiss Parmesan Cheese Suit ---------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendants' Motion to Dismiss the case captioned IN RE: 100% GRATED PARMESAN CHEESE MARKETING AND SALES PRACTICES LITIGATION. This Document Relates to All Cases, Nos. 16 C 5802, MDL 2705 (N.D. Ill.), without prejudice to Plaintiffs' filing amended complaints that attempt to correct the deficiencies identified. Defendants in this multidistrict litigation are purveyors of grated parmesan cheese products with labels stating 100% Grated Parmesan Cheese or some variation thereof. Plaintiffs filed five consolidated class action complaints, which allege violations of various state consumer protection statutes, breaches of express and implied warranty, and unjust enrichment. Defendants move to dismiss the complaints under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants assert that Plaintiffs do not adequately plead two necessary components of Article III standing, injury and causation. The Supreme Court recently reiterated the requirements for Article III standing: The irreducible constitutional minimum of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Plaintiffs' alleged injuries are financial. They claim that they purchased a product worth less than what they paid because it contained non-cheese ingredients, and also that they received something different and less valuable than what they were promised, because the front label misleadingly states that the product is 100% cheese. For the reasons given in In re Aqua DotsProducts Liability Litigation, 654 F.3d 748 (7th Cir. 2011), these allegations are sufficient to establish standing, the Court held. Consumer Protection Claims Plaintiffs bring claims under various state consumer protection statutes: Alabama Deceptive Trade Practices Act (ADPTA). Turning to the present suits, the description 100% Grated Parmesan Cheese is ambiguous as are the other, similar descriptions of Defendants' products so Plaintiffs' claims are doomed by the readily accessible ingredient panels on the products that disclose the presence of non-cheese ingredients, the Court held. Although 100% Grated Parmesan Cheese might be interpreted as saying that the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated. The side panel lists all of the ingredients, which do not include fruit. Plaintiffs cannot claim surprise over these labels, which have long been required on food products and are familiar to a reasonable consumer. Defendants' labeling and marketing, when viewed as a whole, thus are not deceptive. Express Warranty Claims The Court also held that Plaintiffs' express warranty claims suffer from the same fatal flaw as their consumer protection claims: A reasonable consumer would not understand Defendants' labels to warrant that the products contain only cheese. As the parties agree, the express warranty claims can succeed only if a reasonable consumer could plausibly read [Defendants' statements] to be specific, factual representations that the products contain solely cheese, but must fail if the labels, viewed objectively, make no such promise. The question is whether Plaintiffs' alleged subjective belief that the products promised only cheese was objectively reasonable, and for the reasons given above, the answer is no. Defendants' express warranty claims thus fall along with their consumer protection claims. Implied Warranty of Merchantability Claims Plaintiffs' implied warranty of merchantability claims fail for the same reason: Defendants' labels cannot reasonably be read to promise that the products contain only cheese. Defendants argue that because their products were fit for ordinary use as grated cheese, they breached no implied warranty of fitness, the Court added. The Complaint lacks any allegation suggesting that the Products were not fit for their ordinary purpose or could not be consumed or used as grated Parmesan cheese. Unjust Enrichment Claims Plaintiffs acknowledge that, generally speaking, to state a cause of action based on the theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that the defendant's retention of the benefit violates fundamental principles of justice, equity, and good conscience. Plaintiffs' only basis for asserting that Defendants' marketing violated principles of justice, equity, and good conscience is their contention that Defendants marketed their Products as '100%' grated cheese while delivering something less, and so deceived them. That is not a reasonable characterization of Defendants' conduct. No reasonable consumer would think Plaintiffs delivered something other than what their labels promised. So Plaintiffs' unjust enrichment claims fail, too. Defendants' motions to dismiss are granted. A full-text copy of the District Court's August 24, 2017, Memorandum Opinion and Order is available at http://tinyurl.com/y8vd3eucfrom Leagle.com. Rosemary Quinn, Plaintiff, represented by Ben Barnow - b.barnow@barnowlaw.com - Barnow and Associates, P.C.. Rosemary Quinn, Plaintiff, represented by Todd Seth Garber - tgarber@fbfglaw.com - Finkelstein Blankinship, Frei- Pearson & Garber, LLP. Alfonso Fata, Plaintiff, represented by Ben Barnow, Barnow and Associates, P.C. & Todd Seth Garber, Finkelstein Blankinship, Frei- Pearson & Garber, LLP. Alan Ducorsky, Plaintiff, represented by Ben Barnow, Barnow and Associates, P.C. & Todd Seth Garber, Finkelstein Blankinship, Frei- Pearson & Garber, LLP. Kristie Perkins, Plaintiff, represented by Phillip Timothy Howard, Howard & Associates. 8511 Bull Headley Rd, Ste 400, Leon County, Tallahassee, FL 32312-5131. Chrissy Sellers, Plaintiff, represented by Phillip Timothy Howard, Howard & Associates. Kiara Cruz, Plaintiff, represented by Alexander Jan-Yura Korolinsky, 500 S Australian Ave, West Palm Beach, FL, 33401-6223 Melissa Leigh Randolph, Plaintiff, represented by Grey Tesh & William Charles Wright, William C. Wright Law Offices. 515 N. Flagler Dr., Ste P-300, West Palm Beach, FL 33401 Michael Jones, Plaintiff, represented by Gary F. Lynch - jlynch@carlsonlynch.com - Carlson Lynch Sweet & Kilpela, LLP, John J. Driscoll - driscoll@clm.com - The Driscoll Firm & Philip Sholtz - psholtz@goldbergsegalla.com - The Driscoll Firm. Chauncy Ellison, Plaintiff, represented by Gary F. Lynch, Carlson Lynch Sweet & Kilpela, LLP, John J. Driscoll, The Driscoll Firm & Philip Sholtz, The Driscoll Firm. Albertson Companies, Inc, Defendant, represented by Gary Hansen - ghansen@foxrothschild.com - Fox Rothschild LLP, Heidi A.O. Fisher - hfisher@foxrothschild.com - Fox Rothschild LLP, Samuel John Tunheim - stunheim@foxrothschild.com - Fox Rothschild LLP, Joseph Edward Collins - jcollins@foxrothschild.com - Fox Rothschild LLP & Robert J. Rohrberger - rrohrberger@foxrothschild.com - Fox Rothschild LLP. Albertsons, LLC, Defendant, represented by Gary Hansen, Fox Rothschild LLP, Heidi A.O. Fisher, Fox Rothschild LLP, Samuel John Tunheim, Fox Rothschild LLP, Joseph Edward Collins, Fox Rothschild LLP & Robert J. Rohrberger, Fox Rothschild LLP. Supervalu, Inc., Defendant, represented by Gary Hansen, Fox Rothschild LLP, Heidi A.O. Fisher, Fox Rothschild LLP, Samuel John Tunheim, Fox Rothschild LLP, Joseph Edward Collins, Fox Rothschild LLP & Robert J. Rohrberger, Fox Rothschild LLP. Wal-Mart Stores, Inc., Defendant, represented by DAVID E. SELLINGER - sellingere@gtlaw.com - GREENBERG TRAURIG LLP, David Eric Sellinger, Greenberg Traurig, LLP, Francis A. Citera - citeraf@gtlaw.com - Greenberg Traurig, LLP. & John F. Gibbons - gibbonsj@gtlaw.com - Greenberg Traurig, LLP.. Kraft Heinz Company, Defendant, represented by Alexander M. Smith - asmith@jenner.com - Jenner and Block LLP, Dean Nicholas Panos - dpanos@jenner.com - Jenner & Block LLP & Kenneth Kiyul Lee - klee@jenner.com - Jenner & Block LLP. Target Corporation, Defendant, represented by Joshua Gliki, - glikin@bowie-jensen.com - Bowie & Jensen, LLC, Eileen Marie Letts, Zuber Lawler & Del Duca LLP & Martin Peter Greene, Zuber Lawler & Del Duca LLP. ICCO-Cheese Company, Inc., Defendant, represented by Joshua Glikin, Bowie & Jensen, LLC. Publix Super Markets, Inc., Defendant, represented by Heidi A.O. Fisher, Fox Rothschild LLP & Ted C. Craig, GrayRobinson, PA. Competitive Enterprise Institute Center for Class Action Fairness, Amicus, represented by Anna St. John, Competitive Enterprise Institute Center for Class Action Fai & M. Frank Bednarz, Center For Class Action Fairness. MERCHANTS & MEDICAL: Placeholder Bid for Class Cert. Filed ---------------------------------------------------------- In the lawsuit styled PATRICIA MERKOVICH, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, v. MERCHANTS & MEDICAL CREDIT CORPORATION, INC., the Defendant, Case No. 2:17-cv-01176-PP (E.D. Wisc.), the Plaintiffs ask the Court to enter an order certifying classes in this case, appointing the Plaintiffs as class representatives, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiffs further requests 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 Plaintiffs 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=DWwWibXK The Plaintiffs are represented by: 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 MONSANTO COMPANY: Faces "Suding" Suit over Herbicide Roundup ------------------------------------------------------------ JAMES SUDING and CATHLEEN SUDING, the Plaintiff, v. MONSANTO COMPANY and JOHN COMPLAINT DOES 1-50, the Defendants, Case No. 4:17-cv-02302 (E.D. Mo., Aug. 24, 2017), seeks to recover damages suffered by Plaintiff as a direct and proximate result of Defendants' negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff maintains that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. Monsanto Company is a publicly traded American multinational agrochemical and agricultural biotechnology corporation. It is headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN] The Plaintiff is represented by: Eric D. Holland, Esq. HOLLAND LAW FIRM 300 North Tucker, Suite 801 St. Louis, MO 63101 Telephone: (314) 241 8111 Facsimile: (314) 241 5554 Email: eholland@allfela.com - and - Jessica L. Richman, Esq. PARKER WAICHMAN LLP 6 Harbor Park Drive Port Washington, NY 11050 Telephone: (516) 723 4627 Facsimile: (516) 723 4727 E-mail: jrichman@yourlawyer.com NAT'L COLLEGIATE: Ex-Lacrosse Player Objects to Settlement ---------------------------------------------------------- Rifkin Weiner Livingston LLC on Aug. 30 disclosed that a former National Collegiate Athletic Association (NCAA) women's lacrosse player has filed an Objection to a proposed settlement of NCAA concussion-focused class-action litigation, because the settlement does not adequately protect college-level Women Lacrosse Players from catastrophic head injuries. Samantha Greiber, an Annapolis, Maryland native, alleges that she suffers from permanent brain injuries resulting from two concussions that she sustained while playing NCAA women's lacrosse at Hofstra University. Ms. Greiber wrote in an Affidavit submitted to the U.S. Federal court in Chicago that, as an active player, she desired to wear a type of helmet that would have prevented, or at the very least minimized, her injuries. But, the NCAA rendered such helmets illegal -- and only did so for women's lacrosse programs. Ms. Greiber's lawyers at the firms Rifkin Weiner Livingston LLC (RWL) and Smouse & Mason, LLC, based in Baltimore, wrote in her Objection that the proposed settlement is not fair, reasonable or adequate because it would require Women Lacrosse Players to release any claim they have to require the NCAA to mandate protective helmets for Women Lacrosse Players or otherwise to educate NCAA institutions, coaches and players about the benefits of protective helmets. A hearing to determine the fairness of the proposed settlement has been set by United States District Judge John Z. Lee to take place on November 28, 2017, in Chicago. Women Lacrosse Players seeking to join the Objection may do so before September 15, 2017: https://goo.gl/wVjYZr According to the Objection filed in federal court in Chicago on August 29, 2017, Women Lacrosse Players represent a particularly unique and vulnerable group of NCAA student-athletes for whom a particular subclass of plaintiffs should have been created. The Objection notes that even after the Court indicated an earlier concern that Class Representatives as a group must adequately represent the "continuum" of the risk of suffering a concussion across different NCAA-sanctioned sports, no Class Representative was established to represent the unique interests of Women Lacrosse Players. "Data from NCAA studies and its Injury Surveillance System, as well as from other academic sources, all well known to the NCAA, establish that the incidence of concussion for Women Lacrosse Players is consistently among the highest of any NCAA sport," the Objection argues. The Objection further notes that the "The NCAA knows -- and has available to it multiple studies and academic articles, some of which it sponsored, demonstrating -- that the best available means to prevent student-athlete lacrosse players from suffering concussions is to require them to wear protective helmets, as it does for its male lacrosse players." Yet, Women Lacrosse Players remain unprotected. The proposed settlement not only fails to address the issue, but, if approved, it would bar Women Lacrosse Players from taking further legal action to require helmets. The lawyers for Ms. Greiber note in the Objection: "The NCAA has undertaken a duty and contractually obligated itself to protect the health and safety of its student-athletes." They further highlight that the NCAA's Executive Director declared in July 2014 testimony to Congress that the organization has "a clear, moral obligation to make sure that we do everything we can to support and protect student-athletes." The Greiber Objection notes that it is "reasonable for student-athletes such as Ms. Greiber to believe that the NCAA meant what it represented to the United States Senate, and it would also be reasonable for student athletes to rely upon the NCAA to follow through upon such promises. Yet, the NCAA has strikingly failed to protect Women Lacrosse Players, and has discriminated against them" by failing to require protective helmets for women, or to provide even the most basic education about their use and benefits. According to Aron U. Raskas -- araskas@rwllaw.com -- a partner at RWL, "It is shocking that in the face of all this data" -- nearly two dozen studies are cited in the Objection -- "and the advent of helmets designed to meet the standards developed specifically for women's lacrosse by ASTM International, the NCAA bullishly refuses to mandate protective helmets for women, as it does for men, or even to educate women about them. It is sexist. It is discriminatory. And it is wrong." RWL has appeared in other class actions. In a recent Opinion issued in a class action spearheaded by RWL partner Charles S. Fax, another of Ms. Greiber's lawyers, a federal judge wrote that the results obtained by Fax and his co-counsel were "impressive" and that "[a]chieving these results undoubtedly took . . .the most capable and experienced professionals in the country . . ." The Objector, Samantha Greiber, is represented by Aron U. Raskas, Arnold Weiner, Alan Rifkin, Chuck Fax, and Barry Gogel of Rifkin Weiner Livingston LLC, and Roy Mason of Smouse and Mason. RWL -- http://www.rwllaw.com-- and Smouse and Mason represent Ms. Greiber in a separate personal injury action against the NCAA, Hofstra University and others in Nassau County, New York seeking compensation for her injuries. [GN] NEBRASKA: Court Names Guardian Ad Litem in Minor Inmate's Suit -------------------------------------------------------------- Magistrate Judge Michael D. Nelson of the United States District Court, District of Nebraska, issued an Order granting Plaintiff's Motion for Appointment of Next Friend in the case captioned HANNAH SABATA; DYLAN CARDEILHAC; JAMES CURTRIGHT; JASON GALLE; RICHARD GRISWOLD; MICHAEL GUNTHER; ANGELIC NORRIS; R. P., a minor; ISAAC REEVES; ZOE RENA; and BRANDON SWEETSER; on behalf of themselves and all others similarly situated; Plaintiffs, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; SCOTT FRAKES, in his official capacity as Director of the Nebraska Department of Correctional Services; HARBANS DEOL, in his official capacity as Director of Health Services of the Nebraska Department of Correctional Services; NEBRASKA BOARD OF PAROLE; JULIE MICEK, in her official capacity as the Board of Parole Acting Parole Administrator; and DOES, 1 to 20 inclusive; Defendants, No. 4:17CV3107 (D. Neb.). This is a purported class action lawsuit filed by several Nebraska prisoners against the for alleged violations of the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act. Plaintiff R.P. is a minor currently incarcerated in the Nebraska Correctional Youth Facility and is part of the purported class. R.P.'s parents are unable to serve as his next friend in this action, as his mother lives out of state and his father is travelling outside the United States for an indeterminate amount of time. R.P. requests appointment of a representative to pursue this action on his behalf. Upon review of the matter, the Court finds that a Guardian ad Litem should be appointed to protect R.P.'s interests during the pendency of this case, pursuant to Fed. R. Civ. P. 17(c) and of Amended Plan for the Administration of the Federal Practice Fund and the Federal Practice Committee. Plaintiffs' Motion for Appointment of Next Friend Per Fed. R. Civ. P. 17(c) is granted. David J. Tarrell, Attorney at Law, 1823 Harney Street, Suite 100, Omaha, Nebraska 68102, (402) 884-7770, is appointed as Guardian ad Litem to represent the interests of Plaintiff R. P., a minor, during the pendency of this action or until further order of the Court. A full-text copy of the Magistrate's August 24, 2017 Order is available at http://tinyurl.com/ycp2t5kzfrom Leagle.com. Hannah Sabata, Plaintiff, represented by Amy A. Miller -- amiller@aclunebraska.org -- AMERICAN CIVIL LIBERTIES UNION FOUNDATION. Hannah Sabata, Plaintiff, represented by Christopher M. Young - chritopher.young@dlapiper.com - DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins - dawn.jenkins@dlapiper.com - DLA PIPER LAW FIRM, pro hac vice, Debra Patkin - debra.patkin@nad.org - NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge - Jennifer.elridge@dlapiper.com - DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen - kjanssen@rbgg.com - ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith - ksmith@neappleseed.org - NEBRASKA APPLESEED CENTER, Michael W. Bien - mbien@rbgg.com - ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen - rmcewen@neappleseed.org - NEBRASKA APPLESEED CENTER. Dylan Cardeilhac, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. James Curtright, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Jason Galle, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Richard Griswold, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Michael Gunther, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Angelic Norris, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. R. P., Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Isaac Reeves, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Zoe Rena, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Brandon Sweetser, Plaintiff, represented by Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien, ROSEN, BIEN LAW FIRM, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. NEW TELECOM: "Lin" Suit Seeks Minimum Wages, OT under Labor Law --------------------------------------------------------------- HONG LIN, individually and on behalf of all others similarly situated, the Plaintiff, v. NEW TELECOM, INC. d/b/a FLUSHING INN, ABC CORP. d/b/a FLUHING INN, ZEMING CHENG a.k.a "DA VID" CHENG, and YU ZHANG, the Defendants, Case No. 711709/2017 (N.Y. Sup. Ct., Aug. 24, 2017), seeks to recover damages to be determined at trial for minimum wages, overtime wages, spread of hours due, Defendant's failure to furnish a notice at the time of hiring, Defendants failure to furnish pay stubs, and liquidated damages under the New York Minimum Wage Act, and the New York Labor Law and its regulations. The Defendants own, operate, and/or control a hotel business located at 140-46 Sanford Ave. Flushing, NY 11355.[BN] The Plaintiff is represented by: Philip H. Kim, Esq. HANG & ASSOCIATES PLLC 136-18 391h Avenue, Suite 1003 Flushing, NY 11354 Telephone: (718) 353 8522 NEW ZEALAND: Edgecumbe GP Practice Joins Flooding Class Action -------------------------------------------------------------- Ruth Brown, writing for nzdoctor, reports that Edgecumbe GP practice joins class action against council over flood disaster Riverslea Medical Centre staff at their temporary premises in Te Teko. Heads should roll over Edgecumbe's flooding disaster, says Riverslea Medical Centre GP Cecile de Groot, explaining why her practice is joining the town's class action law suit against the Bay of Plenty Regional Council. "What happened was absolutely avoidable," she says of the April flood that had residents fleeing for their lives when the Rangitaiki River overflowed. So far, half of Edgecumbe's residents, about 230, have signed up to the class action led by two Auckland lawyers who have previously handled leaky homes cases, Rangitaiki Community Board member Graeme Bourk says. Mr Bourk, who is spear-heading the lawsuit, says the stretch of concrete wall on College Road that gave way on the morning of April 6 was substandard and never designed to hold back a flood. The wall was leaking the night before and also on the morning of the 6th, but council staff "said it was fine". "They're just a pack of clowns," he says. It breached about 9am that morning, sending Riverslea Medical and Edgecumbe Pharmacy staff racing to get out, pursued by a "wall of water". Compensation sought If successful, the lawsuit will compensate uninsured residents and as well as other residents for expenses above those their insurance companies will pay out. Dr de Groot says her practice would seek compensation for the stress and strain of the flooding, plus extra expenses involved in relocating. The medical centre has been housed in "tiny" premises at Te Teko since the flood. As well, many of her patients have been forced to leave the area. "It's not going to be a good financial year for us," she says. But she says, joining the class action is not so much for monetary reasons, "it's about making a statement in support of others" over a flood that should have been foreseen and prevented. The regional council's general manager integrated catchments, Chris Ingle, declined to comment on the issue because the council has not been notified of legal proceedings. Dr de Groot plans to move back to her old premises in Edgecumbe Mall, with building work to get under way in the next few months. She hopes the practice can return before Christmas. [GN] OCWEN LOAN: Court Denies Bid to Dismiss "Marino" TCPA Suit ---------------------------------------------------------- Judge Miranda Mai Du of the U.S. District Court for the District of Nevada denied the Defendant's motion to dismiss the case captioned VALERIE MARGARET MARINO, individually and on the behalf of others similarly situated, Plaintiff, v. OCWEN LOAN SERVICING LLC, Defendant, Case No. 3:16-cv-00526-MMD-WGC (D. Nev.). The Plaintiff filed her class action Complaint on Sept. 8, 2016, against the Defendant. She filed Chapter 7 bankruptcy on March 15, 2013, in the bankruptcy court for the District of Nevada. Her debt, including a home loan serviced by the Defendant, was discharged on June 18, 2013. She generally alleges that Defendant violated the Telephone Consumer Privacy Act ("TCPA") by making calls to her cellular telephone number using an automatic telephone dialing system and did so without her consent by making these calls after the bankruptcy court issued its order discharging her mortgage debt. She brings the action on behalf of other individuals who have also had home loans serviced by the Defendant discharged through bankruptcy proceedings only to have the Defendant subsequently call these individuals without their prior express consent. The Plaintiff states that she and the class members were damaged by the Defendant's TCPA violations because their privacy was improperly and illegally invaded, and because these calls were annoying and interrupting, and required them to take time and effort to receive the calls or retrieve them from voicemail, which also made their cell phones unavailable during the time these calls occurred. The Plaintiff, on behalf of herself and class members, requests both injunctive relief and statutory damages, as well as treble damages under 47 U.S.C. Section 227(b)(3). The Defendant moves to dismiss the case for lack of subject matter jurisdiction and failure to state a claim. Judge Du concludes that overall, the Defendant's argument that the injuries alleged by the Plaintiff would have still occurred had it manually dialed her cell phone is unpersuasive. Beyond this argument being inconsistent with the language and purpose of the statute, this reasoning would also render the TCPA's prohibition on the use of autodialers in certain contexts meaningless because anytime a complaint alleged an invasion of privacy or interruption in the use of a cell phone resulting from an unconsented to and autodialed call, the claims would be dismissed given that the call could have been made manually. Thus, she finds that the Complaint's allegation of an invasion of privacy and interruption in the use of the Plaintiff's cell phone was fairly traceable to the alleged unconsented to and autodialed calls of the Defendant. However, the Judge finds that the action does not involve the same claims as those from the bankruptcy proceeding because the case requires additional evidence that was not required or presented in the bankruptcy court. Specifically, in the bankruptcy proceeding, Ms. Marino testified that she suffered emotional distress because the Defendant sent her letters and called her cell phone trying to collect on the home loan knowing that she was no longer liable for the debt, but she did not present evidence nor did she have to prove that the calls were made with an autodialer and that she was charged for those calls, both of which is required under the relevant provision of the TCPA. For these reasons, Judge Du finds that res judicata does not apply to bar the Plaintiff's claims. Judge Du notes that the parties made several arguments and cited to several cases not discussed. She has reviewed these arguments and cases and determines that they do not warrant discussion or reconsideration as they do not affect the outcome of the Defendant's Motion. She therefore ordered that the Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim is denied. A full-text copy of the Court's Aug. 25, 2017 Order is available at https://is.gd/fAA4nD from Leagle.com. Valerie Margaret Marino, Plaintiff, represented by Scott Craig Borison -- info@legglaw.com -- Legg Law Firm LLP, pro hac vice. Valerie Margaret Marino, Plaintiff, represented by Christopher P. Burke -- attycburke@charter.net -- Christohper P. Burke, Esq. and Associates. Ocwen Loan Servicing LLC, Defendant, represented by Brian Vincent Otero -- botero@hunton.com -- Hunton & Williams LLP, pro hac vice, Gary E. Schnitzer -- GSchnitzer@KSJAttorneys.com -- Kravitz, Schnitzer & Johnson, Chtd. & Ryan Andrew Becker -- becker@hunton.com -- Hunton & Williams LLP. OFFICE DEPOT: Alvarez Seeks Wages & OT Pay under Labor Code ----------------------------------------------------------- ALVIN ALVAREZ, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. OFFICE DEPOT, INC., a Delaware corporation; and DOES 1 through 10, 16 inclusive, the Defendant, Case No. BC674033 (Cal. Super. Ct., Aug. 28, 2017), seeks to recover wages for overtime compensation under California Labor Code. The lawsuit alleges that Plaintiff and class members were not paid for all hours worked because all hours worked were not recorded; and that Defendants knew or should have known that Plaintiff and class members were entitled to receive certain wages for overtime compensation and that they were not receiving certain wages for overtime compensation. Defendants are provider of office supplies, technology, furniture and business services to consumers and businesses.[BN] The Plaintiff is represented by: Robert Drexler, Esq. Jonathan Lee, Esq. Natalie Torbati, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556 4811 Facsimile: (310) 943 0396 E-mail: Robert.Drexler@CapstoneLawyers.com Jonathan.Lee@CapstoneLawyers.com Natlie.Torbati@CapstoneLawyers.com ONTARIO: To Fight Class Action Over Jail Conditions --------------------------------------------------- Sam Pazzano, writing for Toronto Sun, reports that the province of Ontario will fight the certification of a class-action lawsuit which alleges that "deplorable" conditions -- including lockdowns --have violated prisoners' Charter rights, the Sun has learned. The lawsuit, which represents as many as 300,000 inmates, seeks $1 billion in general damages and another $250 million in punitive damages from the province, claiming a breach of fiduciary duty, negligence and a violation of Charter rights for allegedly failing to finance, staff and manage their jails. The province has yet to file a statement of defence but will do so after making its arguments at the certification hearings, which are scheduled for December. Once the issue of certification is determined, the province's lawyers will file a defence. Ontario's highest court tossed out a judgment that awarded two inmates $85,000 and concluded that multiple lockdowns amounted to cruel and unusual punishment. Justice Douglas Gray awarded $60,000 to Jamil Ogiamien and another $25,000 to Huy Nguyen for mistreatment at the maximum-security Maplehurst jail in Milton. Mr. Ogiamien spent three years there as an immigration hold facing deportation to Nigeria while Hguyen spent one year awaiting a firearms trial. Jail-house lockdowns mean that detainees are confined to their cells, deprived of showers and programs and exposed to extremely harsh conditions, said Jonathan Ptak, one of several lawyers involved in the prisoners' class-action lawsuit. "Our lawsuit is an examination of the prison system as a whole and the impact of staff-shortage-caused lockdowns on the welfare of inmates," said Mr. Ptak. Although Justice John Laskin struck down Gray's 2016 decision, Ptak argued the case of Mr. Ogiamien and Nguyen doesn't extend to the broader picture of inmates across the province -- or even Maplehurst. "This case wasn't litigated as a general inquiry into the conditions and treatments of inmates at Ontario's maximum-security institutions, or even specifically at Maplehurst," stated Laskin. "The focus of this case was narrower: The effect of the lockdowns on the treatment of these two inmates at Maplehurst." "Their treatment under lockdowns compared to normal conditions may have been excessive or disproportionate, but it was not grossly disproportionate," wrote Mr. Laskin. "Thus their treatment did not meet the high bar required to establish a Section 12 violation." Maplehurst houses 1,000 to 1,100 men in its jail cells. Some inmates are serving sentences under two years, some are parole violators, others are awaiting trial or immigration hearings. [GN] OREXIGEN THERAPEUTICS: 9th Cir. Appeal Awaits Hearing Date ---------------------------------------------------------- Orexigen Therapeutics, Inc. said in its Form 10-Q/A Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that no hearing date has been set on the appeal made to the Ninth Circuit Court of Appeals. On March 10, 2015, a purported class action lawsuit was filed against Orexigen Therapeutics, Inc. and certain of its officers in the United States District Court for the Southern District of California, captioned Colley v. Orexigen, et al. The following day, two additional putative class action lawsuits were filed in the same court, captioned Stefanko v. Orexigen, et al., and Yantz v. Orexigen, et al., asserting substantially similar claims. On June 22, 2015, the court consolidated the lawsuits and appointed a lead plaintiff. On August 20, 2015, the lead plaintiff filed a consolidated complaint. The consolidated complaint purports to assert claims on behalf of a class of purchasers of our stock between March 3, 2015 and May 12, 2015. It alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by purportedly making false and misleading statements regarding the interim results and termination of the Light Study. The consolidated complaint seeks an unspecified amount of damages, attorneys' fees and equitable or injunctive relief. On October 5, 2015, defendants filed a motion to dismiss the consolidated complaint. On May 19, 2016, the District Court granted the motion to dismiss, dismissing portions of the consolidated complaint with prejudice and portions without prejudice. The Court granted the lead plaintiff 30 days to file an amended complaint with respect to those portions not dismissed with prejudice. On June 16, 2016, the lead plaintiff filed a notice of intent not to file an amended complaint but to proceed directly to an appeal of the Court's decision dismissing the consolidated complaint. As a result, the court entered judgment dismissing the consolidated complaint with prejudice on June 27, 2016. The lead plaintiff filed a Notice of Appeal with the Ninth Circuit Court of Appeals on July 26, 2016. The appeal has been fully briefed. No hearing date has been set. Orexigen Therapeutics said, "Although management believes that this appeal lacks merit and intends to defend against it vigorously, there are uncertainties inherent in any litigation and we cannot predict the outcome. At this time, we are unable to estimate possible losses or ranges of losses that may result from such legal proceedings, and we have not accrued any amounts in connection with such legal proceedings other than ongoing attorney's fees." Orexigen Therapeutics is a public American pharmaceutical company focused on development of treatments for obesity. The company is based in La Jolla, California and was established by Eckard Weber in 2002. PACIFIC INVESTMENT: "Hampton" Class Action Claims Barred by SLUSA ----------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, issued an Opinion affirming the judgment of the district court to the extent it concludes that Plaintiff's claims are barred, and vacated to the extent it dismissed Plaintiff's claims with prejudice in the case captioned WILLIAM T. HAMPTON, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. PACIFIC INVESTMENT MANAGEMENT COMPANY LLC; PIMCO FUNDS; E. PHILIP CANNON; J. MICHAEL HAGAN; BRENT R. HARRIS; DOUGLAS M. HODGE; RONALD C. PARKER; VERN O. CURTIS; WILLIAM J. POPEJOY, Defendants-Appellees, No. 15-56841 (9th Cir.). A private party injured in the securities trade can generally seek relief under whatever laws federal or state provide a cause of action. Congress, however, has significantly narrowed the availability of class relief based on state-law securities claims. The Securities Litigation Uniform Standards Act (SLUSA) bars private class actions based on state law in cases where the plaintiff alleges a material falsehood or omission connected to the purchase or sale of most federally-regulated securities. Lead plaintiff William Hampton sued the defendants in district court, styling his complaint as one for breach of contract and various fiduciary duties under Massachusetts law. The district judge held that SLUSA barred his claims, and dismissed them with prejudice. On appeal, Hampton challenges the district judge's (1) conclusion that his claims are barred by SLUSA, and (2) decision to dismiss his claims with prejudice as a result. The Ninth Circuit affirms the district court's holding that the class-action claims in this case are indeed barred by SLUSA. The critical language here is SLUSA's command, codified as an amendment to the 1933 Securities Act, that no covered class action may be maintained in any State or Federal court if it meets the statute's various requirements. 15 U.S.C. section 77p(b) To the extent that SLUSA bars Hampton's suit, it does so by depriving the district court of jurisdiction to hear his state-law claims on a class-wide basis, and the district judge erred by dismissing pursuant to Rule 12(b)(6) rather than 12(b)(1). Because the district judge had no jurisdiction to reach the merits of Hampton's claims, he had no power to dismiss them with prejudice. SLUSA's jurisdictional bar, which applies in both state and federal courts, only kicks in when an individual plaintiff pleads (1) state-law claims as a (2) class action. So, assuming there are no other jurisdictional barriers, Hampton is free to return to the district court (or depart for an appropriate state court) to replead his state-law claims on an individual basis, or to plead new federal securities claims either as an individual or as a class representative. On what basis Hampton seeks to proceed, and in what forum, is up to him, and the district judge can set an appropriate schedule for that decision on remand. The judgment of the district court is affirmed to the extent it concludes that Hampton's claims are barred, and vacated to the extent it dismissed Hampton's claims with prejudice. The case is remanded for further proceedings consistent with this opinion. Full-text copies of the Ninth Circuit's August 24, 2017 Opinion is available at http://tinyurl.com/y76fzkwdand Memorandum is available at http://tinyurl.com/ycuhrdkofrom Leagle.com. Nicholas I. Porritt, (argued), and Adam M. Apton, Levi & Korsinsky LLP, 1101 30th Street NWSuite, 115 Washington, DC 20007; Jeff S. Westerman - jwesterman@jswlegal.com - Westerman Law Corp., Los Angeles, California; for Plaintiff-Appellant. Matthew L. Larrabee - matthew.larrabee@dechert.com -(argued), and Joshua D.N. Hess - joshua.hess@dechert.com - Dechert LLP, San Francisco, California; David A. Kotler - david.kotler@dechert.com - Dechert LLP, Princeton, New Jersey; Frank D. Rorie Jr. - FRorie@kelleranderle.com - Law Office of Frank D. Rorie Jr., West Hollywood, California; John D. Donovan - John.Donovan@ropesgray.com -Robert A. Skinner - Robert.Skinner@ropesgray.com - and Amy D. Roy - Amy.Roy@ropesgray.com - Ropes & Gray LLP, Boston, Massachusetts; John C. Ertman - John.Ertman@ropesgray.com - New York, New York; Ronald Rusand Randall A. Smith - rsmith@brownrudnick.com - Brown Rudnick LLP, Irvine, California; for Defendants-Appellees. PALM BEACH, FL: Asks Judge to Throw Out Class Suit Over Utilities ----------------------------------------------------------------- William Kelly, writing for Palm Beach Daily, reports that the town is asking a judge to dismiss a class action lawsuit filed by two residents challenging the plan to pay for the town-wide undergrounding of utilities. South End resident Carol Kosberg and North End resident Michael Scharf sued the town in July, alleging the assessments on property owners are invalid because the town relied on a consultant's "arbitrary assessment methodology." They want a judge to certify the case as a class action, declare the special assessments void, and permanently block the town from imposing special assessments. Town Manager Tom Bradford has said the town is using an assessment methodology similar to that which Palm Beach County courts have approved in the past. In its motion, filed Aug. 22 in Palm Beach County Circuit Court, the town asserts that the class action claim is "insufficient." Once the Town Council approved the assessments on July 12, any resident who wished to object had 20 days to take legal action. "Based on the allegations of the complaint, only Kosberg and Scharf initiated an action within that required time period," the town says in the motion. The Kosberg/Scharf suit is one of two filed to challenge the assessments. The other one was filed by PBT Real Estate LLC Aug. 1, and claiming to be a class action on behalf of the 273 units at the Palm Beach Towers. The lawsuit alleges the owners of the 273 units at the Towers building at 44 Cocoanut Row should not be assessed because the building already has underground utilities. The towers' board of directors has said it is not involved with the suit. Hearing dates have not been scheduled in either case. The town has begun the first of eight phases planned to bury all overhead power, cable television and telephone lines over the next decade. It is using bank loans to finance the early years of the program, and plans to issue up to $90 million in bonds to be repaid by the special assessments over a period of 30 years. The town says buried lines will improve aesthetics, safety and reliability. [GN] PAYMENT DATA: Renewed Bid to Dismiss Class Suit Still Pending ------------------------------------------------------------- Payment Data Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the court's decision on a re-filed motion to dismiss a class action lawsuit is still pending. On April 26, 2016, Michael McFarland, derivatively on behalf the Company, re-filed a class-action lawsuit in United States District Court, District of Nevada that had been previously filed and dismissed. "The suit alleges breach of fiduciary duties and unjust enrichment by our Board of Directors and certain executive officers and directors in connection with excessive and unfair compensation paid or awarded during fiscal years 2013 and 2014," Payment Data Systems says. The lawsuit seeks disgorgement of excessive compensation as well as damages in an unspecified amount. "In July 2016, we filed a motion to dismiss the case. In January 2017, the court granted a partial dismissal of the claims and suggested the plaintiffs re-file their petition. Subsequently, we re-filed a motion to dismiss the case. On May 18, 2017, the court held a hearing on the motion to dismiss. The court's decision is still pending," the Company said. Payment Data Systems said, "We believe this claim is without merit and it is unlikely that a loss will be incurred. Therefore, we have not accrued for a potential loss. However, the outcome of the dispute is still uncertain and it is possible we may incur legal fees and losses in the future." Payment Data Systems, Inc. provide integrated electronic payment processing services to merchants and businesses, including all types of Automated Clearing House, or ACH, processing, credit, Pinless debit, prepaid card and debit card-based processing services. Payment Data Systems, Inc. is founded in 1998 and is based on San Antonio, Texas. PEABODY ENERGY: Class Action Plaintiffs May Pursue Insurer ---------------------------------------------------------- Peabody Energy Corporation said in its Form 10-Q report filed with the U.S. Securities and Exchange Commission on August 14, 2017, for the quarterly period ended June 30, 2017, that the bankruptcy court that oversaw the company's chapter 11 proceedings has given its stamp of approval on a stipulation among the Debtors and plaintiffs in the Lori J. Lynn class action lawsuit. On July 7, 2017, the Bankruptcy Court in Missouri entered an order on an agreed stipulation of the Debtors and the class action plaintiffs such that the claim of the plaintiffs was estimated to have no value for purposes of any distribution under the Plan, except that plaintiffs are not precluded from pursuing recovery from applicable insurance, and that plaintiffs will limit their recovery solely to applicable insurance. On June 11, 2015, a former Peabody Investments Corp. (PIC) employee filed a putative class action lawsuit in the United States District Court, Eastern District of Missouri on behalf of three of the Company's or its subsidiaries' 401(k) retirement plans and certain participants and beneficiaries of the plans. The lawsuit, which was brought against Peabody Energy Corporation (PEC), Peabody Holding Company, LLC (PHC), PIC and a number of the Company's and PIC's current and former executives and employees, alleges breach of fiduciary duties and seeks monetary damages under ERISA relating to the offering of the Peabody Energy Stock Fund as an investment option in the 401(k) retirement plans. On September 8, 2015, the plaintiffs filed an amended complaint which, among other things, named a new plaintiff and named all of the then current members and two former members of the relevant boards of directors as defendants. The class period (December 2012 to present) remains unchanged. On November 9, 2015, the defendants filed a motion seeking dismissal of all claims. Plaintiffs filed a second amended complaint on March 11, 2016 that included new allegations against the Company related to the Company's disclosure to investors of risks associated with climate change and related legislation and regulations. The second amended complaint also added the three committees responsible for administering the three 401(k) retirement plans at issue and dropped several individual defendants, including the then current directors of PEC's board of directors. As a result of filing the Chapter 11 Cases, the plaintiffs voluntarily dismissed the three Debtor defendants (PEC, PIC and PHC) and elected to proceed against the individual defendants and the three named committees with the second amended complaint. On November 17, 2016, the parties presented arguments on the defendants' motion to dismiss. On March 30, 2017, the United States District Court granted the motion to dismiss. On May 1, 2017, the plaintiffs filed a notice of appeal regarding the March 30th order granting the motion to dismiss. Peabody and a majority of its wholly owned domestic subsidiaries, as well as one international subsidiary in Gibraltar, filed on April 13, 2016, voluntary petitions under Chapter 11 of the U.S. Bankruptcy Code in the Bankruptcy Court for the Eastern District of Missouri. On March 17, 2017, the Bankruptcy Court entered an order confirming the Debtors' Second Amended Joint Plan of Reorganization of Debtors and Debtors in Possession as revised March 15, 2017. Peabody Energy Corporation is the world's largest private-sector coal company and is based on St. Louis, Missouri. PENNYMAC LOAN: Triminio Sues over Debt Collection Practices ----------------------------------------------------------- TRIMINIO, on behalf of themselves and all others similarly situated, the Plaintiffs, v. PENNYMAC LOAN SERVICES, LLC d/b/a PENNYMAC, the Defendant, Case No. 1:17-cv-23257-JEM (S.D. Fla., Aug. 28, 2017), alleges violations of the Real Estate Settlement Procedures Act, and the Florida Consumer Collection Practices Act, against Defendant. PennyMac charged Plaintiffs $1,140 for "estimated" fees to reinstate his loan to avoid foreclosure. "Estimated" fees are fees companies expect to incur in the event that certain conditions take place, but have not actually incurred. The Eleventh Circuit has denounced "estimated" fees associated with reinstatement of loans to be a violation of the FCCPA and Fair Debt Collection Practices Act. PennyMac conceals the true nature of the fees by including unexplained estimated fees in form letters sent to borrowers stating the amount they must pay to reinstate their loan. By communicating fees that were not clear or conspicuous in response to Plaintiffs' request for information, PennyMac violated RESPA. The complaint notes that hundreds of thousands of homes are in some stage of foreclosure in the United States every month. The complaint points to https://is.gd/QicmYa Most homeowners facing foreclosure are desperate to keep their homes and are willing to do close to anything to continue living in them with its families. Defendant exploits their desperation by placing them in danger of foreclosure if homeowners do not pay fees Defendant demands -- including fabricated debt characterized as "estimated" fees in the reinstatement amounts. PennyMac provides loans throughout the United States, including Florida. If a homeowner defaults on payments, PennyMac imposes certain conditions on homeowners to avoid foreclosure, including payment of PennyMac's attendant fees. Despite its contractual obligations in its uniform Mortgage Agreements and Notes to only charge actual fees allowed under applicable law, PennyMac leverages its position of power over homeowners facing foreclosure and demands payment of estimated fees not actually owed; that is, fees PennyMac projects to incur but has not actually incurred. PennyMac factors these estimated fees into its total demand to homeowners and insists they are required to pay the full amount before PennyMac will reinstate their loans to avoid foreclosure. The Eleventh Circuit has found that demands for "estimated fees" associated with reinstatement of loans violate the FCCPA and the Fair Debt Collection Practices Act ("FDCPA") upon which the FCCPA is modelled. Defendant must be held accountable for its actions. PennyMac knowingly violated the FCCPA and RESPA by demanding estimated fee. PennyMac is a servicer and lender for mortgage loans.[BN] The Plaintiff is represented by: James L. Kauffman, Esq. BAILEY & GLASSER, LLP 1054 31st Street, Suite 230 Washington, DC 20007 Telephone: (202) 463 2101 Facsimile: (202) 342 2103 E-mail: jkauffman@baileyglasser.com - and - J. Dennis Card, Jr., Esq. Darren Newhart, Esq. Consumer Law Organization, P.A. 2501 Hollywood Boulevard, Suite 100 Hollywood, FL 33020 Telephone: (954) 921 9994 Facsimile: (305) 574 0132 E-mail: DCard@Consumerlaworg.com - and - Christopher Legg, Esq. Christopher W. Legg, P.A. 3837 Hollywood Blvd., Suite B Hollywood, FL 33021 Telephone: (954) 235 3706 Facsimile: (954) 927 2451 E-mail: ChrisLeggLaw@gmail.com PEOPLES TRUST: Faces CA for Exposing Customers to Risk of Theft --------------------------------------------------------------- Keith Fraser, writing for Vancouver Sun, reports a judge has certified a class-action lawsuit that alleges a Vancouver financial institution exposed its customers to the risk of identity theft after an online database was hacked. The plaintiff in the case claims that Peoples Trust Company, a federally regulated trust with a head office in Vancouver, did not adequately secure personal information, putting customers at risk of identity theft and cybercrime. Court heard that in September 2013, cybercriminals from China gained unauthorized access to the company's computer database, and unsolicited text messages were sent to users of the company's website purportedly from the company, asking them to call a telephone number in Utah. These were attempts at "phishing" -- soliciting money or information from people by individuals pretending to be from the company. The trust company became aware of the possible breach of security during the week of Oct. 7, 2013 and initiated a forensic investigation that confirmed the database had been compromised. The company notified Vancouver police, the RCMP and affected customers, and reported the matter to the federal privacy commissioner. A letter was sent to customers, believed to number between 11,000 and 13,000, of steps the company had taken to mitigate the risk of fraud and theft. The letter advised that the company had arranged to have flags placed on the customers' credit files to alert companies that their data may have been compromised, with the flags to stay on the files for six years. The privacy commissioner investigated the matter and issued a report in April 2015 that found the company had not implemented sufficiently strong safeguards in developing its online application web portal to protect sensitive information. In addition, the report found that when the security breach occurred, the company lacked a comprehensive information security policy. The report added that the company was very cooperative and demonstrated a timely and comprehensive response to the breach. In certifying the lawsuit, B.C. Supreme Court Justice David Masuhara found that it was not plain and obvious that there was no cause of action for breach of contract or for a negligence claim. "The plaintiff has pleaded sufficient facts capable of establishing that harm was reasonably foreseeable," said the judge in his ruling. "The information collected by Peoples Trust was sensitive and collected in the course of online applications for financial services." Ravi Hira, a lawyer for the company, said that nobody involved suffered any losses because the firm took immediate steps to address the problem. He pointed out that the RCMP and privacy commissioner were contacted. "Nobody suffered any monetary loss or identity theft," said Hira. The Vancouver lawyer said that what was certified by the judge was the issue of "nominal" damages, which he said has sometimes been referred to as "moral" damages. He said that the company is carefully considering whether to appeal the class-action certification. In addition to an office in Vancouver, the company has offices in Toronto and Calgary and provides financial products and services, including savings accounts, mortgages and credit cards. [GN] PEPSICO: Faces Class Action Over Pop Tax on Bottled Water --------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that PepsiCo has become the latest soft drinks vendor to be accused of not properly collecting Cook County's new so-called "pop tax," after a Chicago law firm which has already sued 7-Eleven, Subway and Jewel-Osco, also filed suit against PepsiCo, saying the food and beverage giant should be made to pay for allegedly forcing customers to pay the county tax on bottled water purchased at Pepsi-branded vending machines. On Aug. 24, the Chicago-based Zimmerman Law Offices, through named plaintiff Bashiri Williams, filed a class action lawsuit against PepsiCo in Cook County Circuit Court. The lawsuit alleges Williams bought bottles of Aquafina-brand bottled water "from various PepsiCo vending machines in Cook County," and was charged 25 cents in tax for each $2 bottle of water he purchased. The lawsuit alleges the tax was applied to all beverages sold in all Cook County Pepsi vending machines at the direction of PepsiCo to comply with the county's 1-cent-per-ounce sweetened beverage tax. However, the lawsuit notes the water, which contains no sugar or other sweeteners, should not be taxed under the county ordinance. The plaintiffs asked the court to order PepsiCo to "change the . . . vending machines' software systems to properly assess the sweetened beverage tax," and award "actual damages" and attorney fees. The lawsuit asks the court to expand the action to include everyone "who purchased an unsweetened beverage from a PepsiCo vending machine in Cook County . . . and were charged and paid a sweetened beverage tax." According to the complaint, the plaintiffs believe that class could include "thousands of people." The lawsuit comes as the third such action brought by the Zimmerman firm since the Cook County soda pop tax took effect at the beginning of April. The tax had been enacted in November 2016 by the Cook County Board of Commissioners, at the urging of Cook County Board President Toni Preckwinkle, who cast the deciding vote, breaking a deadlock on the board. Supporters of the tax say it would bring in about $200 million per year to help the financially-struggling county government maintain services, and would help reduce obesity and other public health concerns in the county by reducing consumption of soda pop and other sweetened beverages. Opponents of the tax, however, have said the levy would add a large burden to the grocery expenses of ordinary families, and would hit retailers in the county hard, as county residents would simply go outside Cook County to buy the beverages they had purchased at Cook County supermarkets and convenience stores. Further, they said the manner in which the tax ordinance was crafted would lead to legal headaches for retailers, who would need to invest large amounts in reconfiguring their register systems to account for the tax, while opening retailers to lawsuits. In rejecting a legal challenge to the tax earlier in late July, Cook County Circuit Judge Daniel Kubasiak had brushed aside those lawsuit concerns, agreeing with the county's position that such worries were "merely speculation." Since the tax took effect, however, seven class action lawsuits have been brought against retailers, restaurants and vendors. Previous lawsuits were brought against Walgreens, 7-Eleven, McDonald's, Subway, Jewel-Osco and Circle K. The Zimmerman firm filed the lawsuits against 7-Eleven, Subway and Jewel-Osco, asserting those retail chains improperly collected the tax in various ways. [GN] PEPSICO INC: Faces "Williams" Suit over Sweetened Beverage Tax -------------------------------------------------------------- BASHIRI WILLIAMS, individually, and on behalf of all others similarly situated, the Plaintiff, v. PEPSICO, INC., a North Carolina corporation, the Defendant, Case No. 2017CH1.161B (Ill. Cir. Ct., Aug. 24, 2017), seeks injunction requiring Defendant to change the PepsiCo vending machines' software systems to properly assess the sweetened beverage tax. The case is a class action brought on behalf of the class of persons, who were improperly charged the Cook County sweetened beverage tax by PepsiCo on their vending machine purchases of unsweetened beverages in Cook County, Illinois. The Cook County Sweetened Beverage Tax Ordinance imposes a tax at the rate of $0.01 per ounce on the retail sale of all sweetened beverages in Cook County, Illinois. The Defendant charged Plaintiff the sweetened beverage tax on his purchases of bottled water, resulting in an unlawful tax charge. On information and belief, under the direction of Defendant, all PepsiCo vending machines are automatically and uniformly charging the sweetened beverage tax on all purchases from its vending machines regardless of whether the consumer is purchasing a sweetened beverage from the machine. PepsiCo, Inc. is an American multinational food, snack, and beverage corporation headquartered in Purchase, New York. PepsiCo has interests in the manufacturing, marketing, and distribution of grain-based snack foods, beverages, and other products.[BN] The Plaintiff is represented by: Thomas A. Zimmerman, Jr., Esq. Sharon A. Harris, Esq. Matthew C. De Re, Esq. Nickolas J. Hagman, Esq. Maebetty Kirby, Esq. ZIMMERMAN LAW OFFICES, P.C. www.attomeyzim.com 77 West Washington Street, Suite 1220 Chicago, IL 60602 Telephone: (312) 440 0020 E-mail: tom@attorneyzim.com sharon@attorneyzim.com matt@attorneyzim.com nick@attorneyzim.com maebetty@attorneyzim.com PETMED EXPRESS: Faces Securities Class Action in Florida -------------------------------------------------------- Federman & Sherwood on Aug. 29 disclosed that on August 25, 2017, a class action lawsuit was filed in the United States District Court for the Southern District of Florida against PetMed Express, Inc. (NASDAQ:PETS). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is May 8, 2017 through August 23, 2017. Plaintiff seeks to recover damages on behalf of all PetMed Express, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Tuesday, October 24, 2017 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com Or, visit the firm's website at www.federmanlaw.com [GN] PETTA ENTERPRISES: "Graybill" Suit Seeks to Certify FLSA Class -------------------------------------------------------------- In the lawsuit captioned Jesse Graybill, et al., for himself and others similarly situated, the Plaintiffs, v. Petta Enterprises, LLC, the Defendant, Case No. 2:17-cv-00418-GCS-EPD (S.D. Ohio), the Plaintiff moves the Court, pursuant to the Fair Labor Standards Act, for entry of an order: 1. conditionally certifying a collective FLSA class; 2 implementing a procedure whereby Court-approved Notice of Plaintiff's FLSA claims is sent (via U.S. Mail and e-mail) to: a. all current and former technicians or "techs", SSE's, Tier 1-Techs, Tier 2-Techs and any other hourly, non- exempt workers of Defendant working out of Petta's Cambridge OH Facility who primarily performed environmental and oil rig cleaning and related services who during the previous three years worked over 40 hours in any workweek but were not properly paid time and a half for the hours they worked over 40 (the "Technician Subclass"); and b. all current and former supervisors, and any other hourly, non-exempt workers of Defendant working out of Petta's Cambridge OH Facility who primarily performed environmental and oil rig cleaning and related services who during the previous three (3) years worked over 40 hours in any workweek but were not properly paid time and a half for the hours they worked over 40 (the "Supervisor Subclass") (Collectively, the Technician Subclass and Supervisor Subclass will be referred to as the "216(b) Class Members"); and 3. requiring Defendant to, within 14 days of this Court's order, identify all potential opt-in plaintiffs by providing a list in electronic and importable format, of the names, addresses, and e-mail addresses of all potential opt-in plaintiffs who worked for Defendant at any time from approximately May 16, 2014 through the present. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=7K7Tgfpy Attorneys for Plaintiff Graybill: Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1457 S. High St. Columbus, OH 43207 Telephone: (614) 949 1181 Facsimile: (614) 386 9964 E-mail: mcoffman@mcoffmanlegal.com - and - Peter A. Contreras, Esq. CONTRERAS LAW, LLC P.O. Box 215 Amlin, OH 43002 Telephone: (614) 787 4878 Facsimile: (614) 923 7369 E-mail: peter.contreras@contrerasfirm.com QUAKER OATS: Baker & Hostetler Attorneys Discuss Court Ruling ------------------------------------------------------------- Holly A. Melton, Esq., and Alan L. Friel, Esq., of Baker & Hostetler LLP, in an article for Lexology, wrote that Glyphosate is one of the most common herbicides in the world, useful for killing the weeds that stifle crops. First formulated in the 1950s by a Swiss scientist, the chemical had become the No. 1 herbicide in the United States agricultural sector, and the second-most used in homes and gardens by 2007. Experts have described glyphosate as "a one in a 100-year discovery that is as important for reliable global food production as penicillin is for battling disease." Brought to a Boil The herbicide was front and center in Kathleen Gibson's class action lawsuit against Quaker Oats, filed in the Northern District of Illinois, Eastern Division, in May 2016. Ms. Gibson took exception with Quaker Oats' claim that its products were "natural," "100 percent natural" and "heart healthy," among other such claims, given that traces of glyphosate were found after testing certain Quaker Oats products. Given glyphosate's ubiquity, it is no surprise that it touches the production life of many different food products. The producers of the oats that find their way into Quaker products use the herbicide while their harvest is in the ground, to aid in the drying of the oats and to produce an earlier and more uniform crop. Ms. Gibson's suit alleged that the presence of the glyphosate, while not unlawful in its own right, undermined Quaker's "Green and environmentally conscious" brand and proved that its advertising was intended to mislead. She brought claims alleging negligent misrepresentation; unjust enrichment; and violation of the Illinois Food, Drug and Cosmetic Act and the Consumer Fraud and Deceptive Business Practices Act, among others. The Takeaway The court granted Quaker Oats' motion to dismiss in August. While observing that the consolidated class was bringing a dozen different claims with a similar theme under Illinois, California, Florida, New York and common law, the court noted that the labeling of food is governed by the Federal Food, Drug and Cosmetic Act, and not by individual states. The court posed the question: Did Congress intend to pre-empt the field of nutritional and food labeling in this case? The court ruled that it did, and that the state claims brought by the class could not survive: The Food and Drug Administration's guidance on the term "natural" did not encompass food production methods, effectively removing the use of herbicides before processing as a basis for possible claims. It also noted that the use of the word "natural" did not imply a nutrition or health benefit. [GN] RADNER LAW: $101K in Atty's Fees Awarded in "Firneno" FCRA Suit --------------------------------------------------------------- Judge Stephen Murphy III of the U.S. District Court for the Eastern District of Michigan granted in part and denied in part the Plaintiffs' Motion for Attorney Fees in the case captioned JODY FIRNENO and CHRISTOPHER FRANKE, Plaintiffs, v. RADNER LAW GROUP, PLLC, et al., Defendants, Case No. 2:13-cv-10135 (E.D. Mich.). The Plaintiffs initiated the Fair Credit Reporting Act on Jan. 14, 2013, and eventually accepted offers of judgment from the Defendants. The Court entered corresponding judgments, and closed the case after the Plaintiffs reached a separate settlement with Defendant Lasercom, LLC. All that remains to resolve is the amount of recoverable fees and expenses: the Plaintiffs seek $133,573.73 of the former and $4,819.37 of the latter, while the Defendants claim only $37,659 should be awarded. Having witnessed firsthand the history of the case and considered the parties' extensive briefing, the Court finds that a hearing is not necessary. Here, the Plaintiffs claim that the entries flagged as "not contemporaneous" are supported by the actual emails which were sent and received, and the Court's docket entries and emails which represent tangible documentation supporting the time. They attempt to substantiate each of these claims with a single example. Judge Murphy concludes that that effort is insufficient. By failing to at least attempt to provide specifics for each of the remaining non-contemporaneous entries, the Plaintiffs have not discharged their burden of providing for the court's perusal a particularized billing record. Many of the Defendants' cited instances of so-called block- billing, however, are inapposite, and sufficiently detailed. The instance flagged by the Defendants as the "most egregious example," however, will be excluded as insufficiently detailed: the "711 email items" for which a discounted award is requested are merely tacked on at the tail end of the notice, and unaccompanied by "file information indicating the dates and times of work performed." Thus, Judge Murphy excluded $9,275 from the total fee award due to insufficiently detailed instances of block billing and non-contemporaneous fee entries. Although Plaintiffs' attorneys did not successfully prosecute their class claims, they succeeded in nearly all other respects by successfully defending several dispositive motions and eventually securing significant offers of judgment. Having considered the mentioned factors, the documentation offered by the Plaintiffs' attorneys, and the Defendants' arguments, the Judge finds that the Plaintiffs' attorneys have successfully prosecuted their clients' case, and deserve the majority of the fees they request. He awards the Plaintiffs their fees and expenses incurred, less $32,635 associated with the analysis of the reductions stated. The award will be apportioned against the Defendants jointly and severally. Accordingly, Judge Murphy granted in part and denied in part the Plaintiffs' Motion for Attorney Fees. The Plaintiffs will recover $100,938.73 in attorney fees and $4,819.37 in nontaxable costs from the Defendants 800 Zero Debt, LLC and Radner Law Group, PLLC on a joint and several basis. A full-text copy of the Court's Aug. 25, 2017 Opinion and Order is available at https://is.gd/xvS5p9 from Leagle.com. Jody Firneno, Plaintiff, represented by John W. Barrett -- jbarrett@baileyglasser.com -- Bailey & Glasser. Jody Firneno, Plaintiff, represented by Julie A. Petrik, Lyngklip Assoc Consumer Law Center, Priya Bali, Lyngklip & Associates Consumer Law Center & Ian B. Lyngklip, Lyngklip Assoc Consumer Law Center, PLC. Christopher Franke, Plaintiff, represented by John W. Barrett, Bailey & Glasser, Julie A. Petrik, Lyngklip Assoc Consumer Law Center, Priya Bali, Lyngklip & Associates Consumer Law Center & Ian B. Lyngklip, Lyngklip Assoc Consumer Law Center, PLC. Lasercom, L.L.C., Defendant, represented by George A. Netschke, IV, Viviano, Pagano & Howlett PLLC, Joseph C. Pagano, Viviano & Viviano, PLLC & Joseph E. Viviano, Viviano, Pagano & Howlett PLLC. REV-1 SOLUTIONS: Placeholder Bid for Class Certification Filed -------------------------------------------------------------- In the lawsuit styled SEIT ALLA, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. REV-1 SOLUTIONS, LLC, the Defendant, Case No. 2:17-cv-01180 (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying a class in this case, 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=VEAn8Tre The Plaintiff is represented by: 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 S-L DISTRIBUTION: Must Face Snack Food Franchise Class Action ------------------------------------------------------------- Michael Booth, writing for New Jersey Law Journal, reports that a federal judge in New Jersey has declined to dismiss a putative class action against the Snyder-Lance snack food company alleging that it wrongfully terminated independent distributors' franchise rights. In an order dated Aug. 25, U.S. District Judge Madeline Cox Arleo, sitting in Newark, declined to dismiss the lawsuit, Scheuer v. S-L Distribution. The lead plaintiff is Jonathan Scheuer, who had been a distributor of Snyder snacks from October 2008 to November 2012, when, after the merger that created Snyder-Lance, the agreement was suddenly ended, according to the order. Mr. Scheuer sued S-L Distribution, a subsidiary of Snyder-Lance, which makes Lance and Cape Cod snacks, and Archway and Stella D'oro cookies, as well as pretzels. Mr. Scheuer alleges in the lawsuit that the abrupt termination of his distribution agreement was a violation of the New Jersey Franchise Practices Act. In its motion to dismiss, S-L Distribution said there could be no violation of the act since Mr. Scheuer did not have a fixed "place of business," as required by the act. Judge Arleo, however, said Mr. Scheuer operated out of a warehouse in Rockaway and that, since he was a wholesale distributor rather than a retail distributor, that warehouse qualified as a place of business under the act. Judge Arleo also disagreed with S-L Distribution's claim that Mr. Scheuer's lawsuit should be dismissed because he failed to abide by the agreement's one-year statute of limitations. An original lawsuit was filed by another plaintiff, Joseph McPeak, in January 2012, but was dismissed in January 2016, Judge Arleo said. Mr. Scheuer, who had been a member of that putative class action, filed his timely lawsuit in November 2016, she said. Lastly, S-L Distribution said Mr. Scheuer's lawsuit should be removed to a federal court in Pennsylvania, in accordance with a forum-selection clause in the agreement. Again, Judge Arleo disagreed with the company. "Forum selection clauses are presumptively invalid in an agreement subject to the NJFPA," the judge said. Mr. Scheuer's attorney, Justin Klein, issued a brief statement regarding the ruling. "We are pleased with the decision. We look forward to proceeding to class certification and vindicating the rights of all of the franchisees that were wrongfully terminated in violation of the New Jersey Franchise Practices Act," said Klein, of Marks & Klein in Red Bank. S-L Distribution's attorney, Keith Smith -- ksmith@eckertseamans.com -- of the Philadelphia office of Eckert Seamans Cherin & Mellott, was not immediately available for comment. The lawsuit claims the company terminated the franchises of at least 100 distributors without compensating them for the value of their distributorships, in violation of the act. [GN] SCANA: Faces Class Action Over Jenkinsville Project --------------------------------------------------- Andrea Butler, writing for WACH, reports that a group in Fairfield County is suing SCANA and utility SCE&G for billing them for the failed nuclear project in Jenkinsville. A class action lawsuit was filed on Aug. 28 by ten residents of Fairfield County. The suit is seeking damages for more than $1 billion in rate hikes charged to power customers. There were a total of nine separate rate hikes to help pay for the $14 billion project. The suit claims utility officials knew the project was failing but failed to share the whole story with the Public Service Commission, which approved those rate increases. [GN] SCE&G: Faces Class Action Over V.C. Summer Project's Failure ------------------------------------------------------------ Jeremy Turnage, writing for WISTV, reports that a group has filed an 11-count class action complaint against SCE&G after both companies abandoned the construction of two nuclear units at V.C. Summer in Fairfield County. According to the complaint, filed by Bell Legal Group, both companies continue to charge higher rates to pay for the two abandoned reactors despite the shuttering of the project last month. "When power companies have so much control over our lives, they should not be able to benefit from their own misdeeds and negligence," Attorney Ed Bell said in a statement. "It's pretty simple. If you don't pay your electric bill, what do they do? They cut you off. Now, we should cut them off from future payments for a failed project. They should be held to the same standards as their rate holders." The suit claims SCE&G "knew years before abandoning the project that the project was not feasible; not subject to a detailed construction schedule; not a good investment of the ratepayer's money; over budget; and failing." State lawmakers are currently holding hearings on the matter. [GN] SCENIC TOURS: 1,200+ Travellers Win Class Action Over Bus Travel ---------------------------------------------------------------- Mazoe Ford, writing for ABC News, reports that more than 1,200 unhappy travellers have successfully sued a luxury travel company after flooding in Europe ruined their holidays. Extensive rainfall and flooding in France and Germany in April and May 2013 caused rising river levels, which meant cruise boats were unable to operate as planned. In the NSW Supreme Court on Aug. 31, Justice Peter Garling found Scenic Tours breached Australian consumer law by not informing passengers about the weather disruptions. He said the company "played down the significance of what was occurring on the rivers in Europe", thereby concealing the company's "internal position that it would offer a full refund for guests on the identified cruises if requested". Justice Garling added that Scenic Tours should have given customers the option to postpone or cancel their trip. "Scenic had a continuing obligation to provide intending passengers (at least those who had made bookings which had been accepted) with information about events, or the consequences of events, which may have impacted . . . upon the passenger's ability to travel in accordance with the itinerary and to enjoy the luxury cruise experience which Scenic had promised." Most passengers in the class action will be entitled to a refund, damages and interest, with lawyers for the group estimating Scenic Tours will have to pay out about $16 million. The company was also ordered to pay costs, which will be determined at a later date. "It's a group of ordinary Australians who paid a lot of money thinking they were going to get a luxury cruise . . . they didn't get that, they feel they have been wronged and today they were vindicated by the court," solicitor Ben Hemsworth said. "They turned up expecting a luxury cruise going from port to port and dining on that cruise liner and they ended up being out on buses and taken to places they were not expecting. "A lot of the passengers were elderly and wanting to stay in the one place, so having to be moved around by bus was distressing to them." No rescheduling of $13,000 cruise despite flooding Members of the class action argued that Scenic Tours "should have known that the rising river levels would, or were likely to, substantially disrupt, for a period of six weeks thereafter, the enjoyment of passengers scheduled to embark upon river cruises". "The plaintiff and group members contend that such knowledge ought to have been known to the defendant as reasonable tour operators conducting business in Europe, being river cruises along European rivers," the statement of claim said. Lawyers acting for the group said Scenic Tours failed to find out about the nature and extent of flooding and rising river levels and failed to determine that it was "inconceivable" that scheduled river cruises could proceed without substantial disruption. They also said the company failed to cancel or delay tours then offer another departure date and failed to warn customers prior to leaving their home countries that their holiday may be affected. The statement of claim said the lead plaintiff, David Moore, paid $13,100 for his cruise and other customers involved in the class action paid similar amounts. The statement said they all suffered loss or damage including the price of the tour, the reduction in the value of services they paid for and the loss of opportunity to consider any proposed alternative or receive a refund. 'We are not liable to you for such variations' In a defence statement filed to the court by Scenic Tours, the company said it did not believe it was liable for loss and damage. Scenic Tours said each of the members in the class action signed a contract in which they accepted its terms and conditions. The contract stated that "cruise itineraries may be varied due to high or low water levels, flooding...[and] circumstances beyond our control". "We may substitute (at the nearest possible standard) another vessel or motorcoach for all or part of the itinerary and also provide alternative accommodation, where necessary. "Where we make a variation to the itinerary, we are not liable to you for such variations." A Scenic spokesperson said the company would review the judgment in detail before making specific comment on the decision. However the spokesperson added that company practice is to deliver itineraries as close to schedule as possible without compromising on safety or comfort. "To put some context around the matter, despite the extraordinary weather conditions in Europe in early 2013, less than five per cent of Scenic cruises in the past four years resulted in any itinerary change," the spokesperson said. "During that time we welcomed around 200,000 guests across more than 8,300 cruise days, the vast majority of which were unaffected. "But while the prospect of schedule interruptions is statistically very low, we take nothing for granted and have continued to invest in our river cruising product." [GN] SEAGATE TECH: Bid to Strike Claims in HDD Suit Partly OK'd ---------------------------------------------------------- In the case captioned IN RE SEAGATE TECHNOLOGY LLC LITIGATION. CONSOLIDATED ACTION, Case No. 16-cv-00523-JCS (N.D. Cal.), Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California granted in part and denied in part Seagate's motion (i) to strike certain claims previously dismissed by the Court and allegations related thereto, (ii) to dismiss other claims, and (iii) to strike nationwide class allegations. Seagate released the Seagate Barracuda 3TB internal hard drive, model number ST3000DM001, in October of 2011. It subsequently released two external 3TB hard drives -- the Backup Plus 3TB and GoFlex 3TB -- that enclosed the same model number ST3000DM001 hard drives in external casings with external power supplies and USB connectors. In late 2012 or early 2013, Seagate rebranded the Barracuda 3TB internal drive as the "Desktop HDD" internal drive, but the model number remained the same. According to the Plaintiffs, Seagate has continuously and falsely marketed these model number ST3000DM001 "Barracuda" hard drives as reliable, dependable, and suitable for use in Network Attached Storage ("NAS") and Redundant Array of Independent Disks ("RAID") configurations. They allege that the Barracuda drives had a latent, model-wide defect that caused them to fail at annual rate as high as 47.2% and that the drives are not designed for certain types of home RAID configurations. The eight Named Plaintiffs are citizens of eight different states, each of whom purchased at least one Seagate Barracuda hard drive from an authorized retailer. Each of them alleges reliance on Seagate's advertising representations and express warranty and that at least one of his Barracuda drives failed under warranty. The Plaintiffs seek to represent a nationwide class of individuals who purchased at least one Seagate model ST3000DM001 or, in the alternative, statewide subclasses of purchasers for each of the states represented by a Named Plaintiff. The Plaintiffs' operative complaint asserted claims for breach of express and implied warranty (Claims 4-7), violation of California's Unfair Competition Law ("UCL"), False Advertising Law, and Consumer Legal Remedies Act ("CLRA") and the consumer protection statutes of the eight other states of the current and former Named Plaintiffs' citizenship (Claims 1-3 and 8-15), and unjust enrichment (Claim 16). The case was initially assigned to the Hon. Judge Ronald Whyte, but was reassigned to Chief Magistrate Judge Spero upon consent of all parties following Judge Whyte's retirement. On a previous motion by Seagate, the Court dismissed several claims and theories of recovery: (i) the Plaintiffs' express warranty claims (including to the extent such claims are based on the essential purpose doctrine or the Song-Beverly Act); (ii) the Plaintiffs' implied warranty claims under the California Commercial Code; (iii) their affirmative misrepresentation claims based on Seagate's statements about the drives' read error rate, NAS capabilities, AcuTrac technology, and general reliability and performance; (iv) their omissions claims based on NAS capabilities and read error rates; (v) all CLRA claims by then-Plaintiff John Smith; and (vi) the Plaintiffs' claims under the unlawful and unfair prongs of the UCL to the extent that they depend on theories dismissed in the context of other claims. Seagate now moves to strike certain claims previously dismissed by the Court and allegations related thereto, to dismiss other claims, and to strike nationwide class allegations. The Court heard argument on Aug. 25, 2017. Because Seagate did not move to strike until months after it answered the complaint at issue, Chief Magistrate Judge Spero denied as untimely Seagate's motion to strike under Rule 12(f). He denied Seagate's motion for judgment on the pleadings under Rule 12(c) as to the Plaintiffs' Florida consumer protection claim in its entirety and the Plaintiffs' Texas and South Dakota consumer protection claims to the extent based on omissions, but granted as to the Texas and South Dakota consumer protection claims to the extent based on affirmative representations. The Chief Magistrate Judge also denied the 12(c) motion as to the Plaintiffs' South Carolina, South Dakota, and Texas implied warranty claims, but granted as to the Plaintiffs' New York, Florida, Tennessee, and Massachusetts implied warranty claims. As for Plaintiffs' implied warranty claims under California's Song-Beverly Act, Chief Magistrate Judge Spero denied the motion as to Plaintiff Joshuah Enders' claims, but granted as to the remaining Named Plaintiffs' claims under that statute. The Plaintiffs' Illinois implied warranty claim is dismissed in light of the voluntary dismissal of Plaintiff John Smith. The Plaintiffs may further amend their complaint no later than Sept. 15, 2017. If they choose to file a further amended complaint, they are instructed to omit any allegations related solely to claims dismissed by the Court's previous order, or to claims dismissed by Chief Magistrate Judge Spero that they do not intend to pursue. Seagate has at this point filed two motions attacking the sufficiency of the same complaint. Chief Magistrate Judge Spero held Seagate may not file any further motion under any subpart of Rule 12 of the Federal Rules of Civil Procedure attacking the sufficiency of the Plaintiffs' pleading without leave of the Court, with the exception that if the Plaintiffs further amend their complaint, Seagate may file any appropriate motion directed to their changes to the complaint. A full-text copy of the Court's Aug. 25, 2017 Order is available at https://is.gd/pf3zNP from Leagle.com. Christopher A. Nelson, Plaintiff, represented by Marc Adam Goldich, Axler Goldich LLC. Christopher A. Nelson, Plaintiff, represented by Ashley A. Bede -- ashleyb@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Bryan L. Clobes -- bclobes@caffertyclobes.com -- Cafferty Clobes Meriwether & Sprengel LLP, pro hac vice, Noah Axler, Axler Goldich, Nyran Rose Rasche -- nrasche@caffertyclobes.com -- Cafferty Clobes Meriwether Sprengel LLP, pro hac vice, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Dudley Lane Dortch IV, Plaintiff, represented by Marc Adam Goldich, Axler Goldich LLC, Ashley A. Bede, Hagens Berman Sobol Shapiro LLP, pro hac vice, Bryan L. Clobes, Cafferty Clobes Meriwether & Sprengel LLP, pro hac vice, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Noah Axler, Axler Goldich, Nyran Rose Rasche, Cafferty Clobes Meriwether Sprengel LLP, pro hac vice, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Dennis Crawford, Plaintiff, represented by Marc Adam Goldich, Axler Goldich LLC, Ashley A. Bede, Hagens Berman Sobol Shapiro LLP, pro hac vice, Bryan L. Clobes, Cafferty Clobes Meriwether & Sprengel LLP, pro hac vice, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Noah Axler, Axler Goldich, Nyran Rose Rasche, Cafferty Clobes Meriwether Sprengel LLP, pro hac vice, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. David Schechner, Plaintiff, represented by Marc Adam Goldich, Axler Goldich LLC, Ashley A. Bede, Hagens Berman Sobol Shapiro LLP, pro hac vice, Bryan L. Clobes, Cafferty Clobes Meriwether & Sprengel LLP, pro hac vice, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Noah Axler, Axler Goldich, Nyran Rose Rasche, Cafferty Clobes Meriwether Sprengel LLP, pro hac vice, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Seagate Technology LLC, Defendant, represented by Anna S. McLean - - amclean@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, David Edward Snyder -- dsnyder@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, Joy O. Siu, Sheppard Mullin Richter Hampton LLP, Lien Hoang Payne -- lpayne@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, Mukund Hari Sharma -- msharma@sheppardmullin.com -- Sheppard Mullin Richter Hampton, LLP, Neil A. Friedman Popovic -- npopovic@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP & Tenaya M. Rodewald -- trodewald@sheppardmullin.com -- Sheppard Mullin Richter & Hampton. SEVCON INC: Wilkinson Seeks to Enjoin Merger with BorgWarner ------------------------------------------------------------ In the case, JACK WILKINSON, individually and on behalf of all others similarly situated, the Plaintiff, v. SEVCON, INC., MATTHEW GOLDFARB, MATTHEW BOYLE, PAUL O. STUMP, DAVID R. A. STEADMAN, RYAN J. MORRIS, WALTER M. SCHENKER, WILLIAM KETELHUT, GLENN J. ANGIOLILLO, the Defendants, Case No. 1:17-cv-11618 (D. Mass., Aug. 28, 2017), the Plaintiff brings this action on behalf of himself and the public stockholders of Sevcon, Inc. against the Defendants for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and U.S. Securities and Exchange Commission Rule 14a-9. Specifically, Defendants solicit shareholder votes in connection with an attempt to sell the Company to BorgWarner Inc. through a proxy statement that omits material facts necessary to make the statements therein not false or misleading. Unless these disclosure deficiencies are cured, the Company's stockholders will be forced to decide whether to vote their shares in favor of the Proposed Transaction based upon a materially incomplete and misleading proxy statement. On July 17, 2017, Sevcon and Parent issued separate press releases announcing that they had entered into an Agreement and Plan of Merger dated July 14, 2017, under which Slade Merger Sub Inc., a wholly-owned subsidiary of Parent, would acquire all of Sevcon's outstanding common stock for $22.00 per share in cash and all of Sevcon's outstanding Series A Convertible Preferred Stock for a price per share equal to an as-converted basis of the common stock, together with any accrued and unpaid dividends. The transaction between Sevcon and Parent has a total value of approximately $200 million. On August 8, 2017, Defendants issued materially incomplete and misleading disclosures in the Form PREM14A Preliminary Proxy Statement (the "Proxy") filed with the SEC in connection with the Proposed Transaction. The Proxy is deficient and misleading, the complaint says, because, inter alia, it omits material information about the facts and circumstances that led up to the Proposed Transaction, as well as material information concerning the financial analyses conducted by Rothschild Inc. ("Rothschild"), the Company's financial advisor. Without all material information, Sevcon stockholders cannot make a properly informed decision regarding whether to vote in favor of the Proposed Transaction. Sevcon is an electrical engineering company based in Gateshead in the UK, that manufactures controls for electric vehicles.[BN] The Plaintiff is represented by: Donald J. Enright, Esq. Elizabeth K. Tripodi LEVI & KORSINSKY LLP 1101 30th Street, N.W., Suite 115 Washington, DC 20007 Telephone: (202) 524 4290 Facsimile: (202) 337 1567 - and - Mitchell J. Matorin, Esq. MATORIN LAW OFFICE, LLC 18 Grove Street, Suite 5 Wellesley, MA 02482 Telephone: (781) 453 0100 E-mail: mmatorin@matorinlaw.com SLATER & GORDON: Class Action in Final Stages of Settlement ----------------------------------------------------------- Adele Ferguson, writing for Sydney Morning Herald, reports that class action law firm Slater and Gordon is set to be owned by a consortium of international hedge funds after agreeing to a bailout that will see it emerge with a new board and strategy. The new plan, revealed on Aug. 31, will involve hedge funds, led by Anchorage Capital swapping the debt they are owed by Slater and Gordon into a 95 per cent ownership of the company. That process is expected to be finalised in mid-November. The consortium will also provide an additional $50 million of funding and get sole ownership of Slater and Gordon's troubled UK business. The deal also involves the embattled law firm agreeing to settle a class action with aggrieved shareholders. The move came as Slater and Gordon unveiled a massive full year loss of $547 million, including a $350 million impairment in the value of its disastrous UK business, restructuring costs and continued poor performance in its key personal injuries business. "Today is a significant day for the firm. The announcements mark a turning point and set in motion a strong plan that will deliver a new board, a focused business strategy and a very strong capital structure," said Slate & Gordon's new chief executive Hayden Stephens. This shift of control to the Anchorage Capital consortium will trigger a board spill with chairman John Skippen and Andrew Grech, who was previously the chief executive, both departing as directors. Chief financial officer Bryce Houghton will also leave. Mr MacKenzie is a well-known company director who also has strong roots in the labour movement and he is known to have a strong affinity with the clients the law firm represents. These connections will be needed following a recent exodus of senior talent which has fuelled concerns the firm could lose key union clients. The board refresh is part of a plan the new owners hope will reset the company to restore its reputation after a destructive debt- fuelled acquisition binge culminating in the disastrous $1.3 billion acquisition of Quindell's professional services division in Britain in early 2015. Before the Quindell acquisition, Slater and Gordon's shares hit a high of $8 a share, valuing the business at $2.8 billion, compared with $28 million today. It is expected the company will look to further cost-cutting as it focuses the business on building its class action pipeline. The results show the size of that task as the financial performance of the flagship Australian business continued to deteriorate. It posted a $67 million loss in the last financial year as fees continued to decline and it suffered an adverse movement of work in progress and payments to former owners. Its UK business lost $98.5 million, compared with a previous loss of $64.5 million. The results show the company continues to bleed cash, suffering a negative net operating cashflow of $39 million for the year to June 30. The consortium of lenders has agreed to inject an additional $50 million into an existing $40 million working capital facility set up in May. Of the $50 million, $25 million will be directed to the Australian business and $25 million to the UK business. Slater and Gordon told the market back in February it had to rely on "the support of its lenders to continue as a going concern". Since then a class action was lobbed by its shareholders and an investigation commenced by the corporate regulator into accounting irregularities. The regulator found no wrongdoing and the class action is now in the final stages of settlement and the company hopes to finalise its debt for equity swap in mid-November. The swap will dilute the ownership of existing shareholders of the company to about 5 per cent. But Slater and Gordon will remain a listed entity, with Anchorage committing to remain a shareholder for at least three years. The restructure will exclude the UK business, which will be spun off into a separate company wholly owned by the senior lenders. Sources said the arrangement would leave Slater and Gordon with an appropriate capital structure and strong balance sheet to enable it to begin the turn-around process. It will also develop a strategy to grow its personal injury practices in Queensland, NSW and Victoria, improve its relationships with the union movement, better leverage third party relationships to build referral networks and invest in internal systems and processes To stem the flurry of departures of high profile lawyers, a new management incentive plan will be introduced, facilitating the equivalent of 10 per cent of the company's fully diluted share capital to be available over time. [GN] SOLOMON AND SOLOMON: Court Dismisses "Daniels" FDCPA Suit --------------------------------------------------------- Judge Richard Barclay Surrick of the U.S. District Court for the Eastern District of Pennsylvania dismissed the case captioned LATASHA DANIELS, on behalf of herself and all others similarly situated v. SOLOMON and SOLOMON, P.C., Civil Action No. 17-0757 (E.D. Pa.). On April 4, 2016, the Plaintiff received a debt communication letter from the Defendant. At the time, the Plaintiff owed Niagara Mohawk Power Corp. money for utility services in the amount of $2,850.65, and her obligation was in default. Niagara retained the Defendant, a law firm and debt collection agency, to collect the Plaintiff's debt. On Feb. 13, 2017, the Plaintiff filed a Complaint in the Court. Her complaint arises from a debt collection letter that the Plaintiff received from the Defendant. The Plaintiff asserts one count against the Defendant for violation of the Fair Debt Collection Practices Act ("FDCPA"), on behalf of herself and the putative class. She alleges that the letter falsely implies attorney involvement, and threatens an action that cannot legally be taken, in violation of the FDCPA. On April 20, 2017, the Defendant filed the instant Motion to Dismiss. On May 18, 2017, the Plaintiff filed a Response in Opposition to the Defendant's Motion to Dismiss. On May 25, 2017, the Defendant filed a Reply to Plaintiff's Response. Judge Surrick found that the Letter is not signed by an attorney, does not reference attorney involvement, and does not discuss undergoing attorney or law firm review. In addition, the Letter contains a disclaimer on the front of it that reads that it is an attempt to collect a debt, that any information obtained will be used for that purpose, and that the communication is from a debt collector. The Judge concludes that the Letter does not imply attorney involvement at all, let alone falsely imply it. Accordingly, he dismissed the Plaintiff's claim that the Defendant falsely implied attorney involvement under 15 U.S.C. Section 1692e(3). In addition, Judge Surrick found that the Letter makes no reference to a threat of legal action. He held that the letter made no demand or threat of litigation, as the letter gave the debtor an opportunity to pay the debt to avoid further action. He found that the language in the debt collector's letter, "avoid further action," did not convey a sense of urgency or a threat of specific action which overshadowed the validation notice. Similarly, the Letter urges the Plaintiff to act now to resolve the problem. The Judge disagrees with the Plaintiff's argument that that the Letter's reference to a "problem" insinuates a threat of legal action. Accordingly, Judge Surrick concludes that the Plaintiff has not sufficiently alleged a claim under Section 1692e(5) of the FDCPA. For these reasons, he granted the Defendant's Motion to Dismiss. A full-text copy of the Court's Aug. 25, 2017 Memorandum is available at https://is.gd/2TLq7s from Leagle.com. LATASHA DANIELS, Plaintiff, represented by ARI MARCUS -- Ari@MarcusZelman.com -- MARCUS & ZELMAN LLC. LATASHA DANIELS, Plaintiff, represented by JOSEPH K. JONES, JONES WOLF & KAPASI LLC. SOLOMON AND SOLOMON P.C., Defendant, represented by WILLIAM F. MCDEVITT -- william.mcdevitt@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman and Dicker, LLP. SOUTHWEST BANCORP: Faruqi & Faruqi Files Securities Class Action ---------------------------------------------------------------- Faruqi & Faruqi, LLP, on Aug. 29 disclosed that it has filed a class action lawsuit in the United States District Court for the Western District of Oklahoma, case No. 5:17-cv-00852, on behalf of shareholders of Southwest Bancorp, Inc. ("Southwest" or the "Company") (NASDAQ:OKSB) who have been harmed by Southwest's and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the proposed merger of the Company with Simmons First National Corporation ("Simmons"). On December 14, 2016, the Board caused the Company to enter into an Agreement and Plan of Merger ("Proposed Transaction"), under which Southwest's shareholders stand to receive 0.3903 shares of Simmons common stock and $5.11 in cash for each share of Southwest stock they own (the "Merger Consideration"). As of August 28, 2017, the Merger Consideration reflected an implied value of approximately $25.54 per share of Southwest common stock. If you wish to obtain information concerning this action or view a copy of the complaint, you can do so by clicking here: www.faruqilaw.com/OKSBnotice. The complaint alleges that the Form S-4 Registration Statement (the "S-4") filed with the Securities and Exchange Commission ("SEC") on July 24, 2017, violates Sections 14(a) and 20(a) of the Exchange Act because it provides materially incomplete and misleading information about the Company and the Proposed Transaction, including information concerning the Company's financial projections and analysis, on which the Board relied to recommend the Proposed Transaction as fair to Southwest shareholders. Take Action Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, Georgia, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from the date of this notice. Any member of the putative 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. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 or (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com [GN] SUBWAY: 7th Cir. Reverses Settlement in Footlong Sandwich Suit -------------------------------------------------------------- In the case captioned IN RE: SUBWAY FOOTLONG SANDWICH MARKETING AND SALES PRACTICES LITIGATION. APPEAL OF: THEODORE FRANK, Objector, No. 16-1652 (7th Cir.), Judge Diane S. Sykes of the U.S. Court of Appeals for the Seventh Circuit reversed the district court's order certifying the proposed class and approving the settlement, and remanded the case. In January 2013 an Australian teenager measured his Subway Footlong sandwich and discovered that it was only 11 inches long. He photographed the sandwich alongside a tape measure and posted the photo on his Facebook page. It went viral. The Class-action litigation soon followed. The Plaintiffs' lawyers across the United States sued Subway for damages and injunctive relief under state consumer-protection laws, seeking class certification under Rule 23 of the Federal Rules of Civil Procedure. The suits were combined in a multidistrict litigation in the Eastern District of Wisconsin. In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. Early discovery established that Subway's unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches. The minor variations that do occur are wholly attributable to the natural variability in the baking process and cannot be prevented. With no compensable injury, the Plaintiffs' lawyers shifted their focus from a damages class under Rule 23(b)(3) to a class claim for injunctive relief under Rule 23(b)(2). The parties thereafter reached a settlement. For a period of four years, Subway agreed to implement certain measures to ensure, to the extent practicable, that all Footlong sandwiches are at least 12 inches long. The settlement acknowledged, however, that even with these measures in place, some sandwich rolls will inevitably fall short due to the natural variability in the baking process. The parties also agreed to cap the fees of class counsel at $525,000 and incentive awards at $1,000 for each Named Plaintiff. The district court preliminarily approved the settlement. Theodore Frank objected. A class member and professional objector to hollow class-action settlements, Frank argued that the settlement enriched only the lawyers and provided no meaningful benefits to the class. The judge was not persuaded. He certified the proposed class and approved the settlement. Frank appealed. Judge Sykes concludes that the procedures required by the settlement do not benefit the class in any meaningful way. The settlement acknowledges as much when it says that uniformity in bread length is impossible due to the natural variability of the bread-baking process. Contempt as a remedy to enforce a worthless settlement is itself worthless. Because the settlement yields fees for class counsel and zero benefits for the class, the class should not have been certified and the settlement should not have been approved. Because these consolidated class actions seek only worthless benefits for the class, they should have been dismissed out of hand. Accordingly, Judge Syckes reversed and remanded. A full-text copy of the Court's Aug. 25, 2017 Order is available at https://is.gd/dpsWhS from Leagle.com. Howard L. Teplinsky -- hteplinsky@lgattorneys.com -- for Defendant-Appellee. Thomas A. Zimmerman, Jr., for Plaintiff-Appellee. Theodore H. Frank, for Appellant. John Doroghazi -- jdoroghazi@wiggin.com -- for Defendant-Appellee. Matthew Charles DeRe, for Plaintiff-Appellee. Stephen P. DeNittis -- sdenittis@denittislaw.com -- for Plaintiff- Appellee. Bethany L. Appleby -- bappleby@wiggin.com -- for Defendant- Appellee. Adam E. Schulman, for Appellant. Jeffrey Babbin -- jbabbin@wiggin.com -- for Defendant-Appellee. David R. Roth -- droth@joneswalker.com -- for Defendant-Appellee. SULLIVAN UNIVERSITY: Faces Class Action Over Unpaid Wages --------------------------------------------------------- Chris Larson, writing for Louisville Business First, reports that the Kentucky Supreme Court recently handed down a far-reaching decision that allows employees in Kentucky the option to certify class-action lawsuits against employers over unpaid wages and overtime disputes. As a result, Louisville-based Sullivan University System Inc. could face such a class action. Sullivan University could face a class-action lawsuit from a former employee after a Kentucky Supreme Court ruling. At issue is whether the state statute that addresses an employer's liability for unpaid wages, KRS 337.385, allowed for class-action lawsuits, even though they are not explicitly authorized by the statute, or if the statute allowed for a special exemption to class actions. The Kentucky Supreme Court reversed two lower court decisions and ruled that class-action lawsuits do apply to the statute. The case involved a wage dispute between former Sullivan University admissions officer Mary McCann and the university. Ms. McCann is represented by Theodore Walton and Garry Adams Jr., partners of Louisville-based firm Clay Daniel Walton Adams PLC. Sullivan University was represented by Grover Potts Jr. -- gpotts@wyattfirm.com -- Michelle Wyrick, Rania Basha and Emily Lamb. In this case, Ms. McCann sued Sullivan in Jefferson Circuit Court for back pay in February 2010. But her case was moved to federal court after the U.S. Department of Labor filled a lawsuit against the school over alleged violations of the Fair Labor Standards Act in March 2010. Ms. McCann's federal complaint was eventually dismissed as part of Sullivan's settlement with the Labor Department. The federal court sent McCann's case back to the circuit court. Ms. McCann attempted to file a class-action suit against Sullivan University in October 2013, but that was denied by the circuit court and appeals courts, according to the Kentucky Supreme Court ruling. Mr. Potts, a partner with Wyatt Tarrant & Combs LLP, said in an interview that Sullivan University maintains that McCann was an exempted employee under the Fair Labor Standards Act, meaning that she did not qualify for time-and-a-half pay for overtime, among other things. Mr. Potts said a potential class-action suit would have to prove to the court that the participants were nonexempt employees on top of the other court requirement for class actions. Employees involved in recruitment, like Ms. McCann was, are paid a salary above the federal minimum wage, he said. Mr. Potts said none of the courts addressed the qualification status of Ms. McCann, and instead focused on if class actions applied to wage and hours disputes, he added. Mitchel Denham, partner in Louisville-based Thompson Miller & Simpson PLC, said in an interview that the Kentucky Supreme Court ruled that KRS 337.385 did not constitute a special exemption to class-action suits even though it did not explicitly state they were allowed. But Mr. Denham also said plaintiffs still must meet the court rules to qualify a lawsuit as a class-action suit. After reading the court decision, he added that the case applies to all employers and is not isolated to educational institutions. Mr. Denham is not representing any of the parties to this case. Mr. Potts said he argued to the courts that KRS 337.385 shows that wage and hours disputes don't qualify for class-action status because the statute contains elements similar to other statues where class actions are not allowed. Ultimately, the Supreme Court disagreed. A class-action lawsuit allows for several people who have been similarly affected to have their collective interests represented by a common counsel. In part, the Kentucky Supreme Court ruled that the statute governing employer liability was not comprehensive enough to constitute a special exception to class actions and that Kentucky court rules apply to all civil court matters, even if they are not explicitly authorized in the statute. In an email, Mr. Walton said that Ms. McCann and counsel will continue to pursue a class-action lawsuit against the private, for-profit university. [GN] SULLIVAN UNIVERSITY: Ky. High Ct. Reverses Denial of Class Cert --------------------------------------------------------------- The Supreme Court of Kentucky issued an Opinion reversing and remanding the judgment of the Court of Appeals to Jefferson Circuit Court for further proceedings in the case captioned in MARY E. McCANN (INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED), Appellant, v. THE SULLIVAN UNIVERSITY SYSTEM, INC., D/B/A SULLIVAN UNIVERSITY COLLEGE OF PHARMACY, ET AL. Appellee, No. 2015-SC-000144-DG (Ky.). Mary McCann filed a CR 23 motion to certify a class action in Jefferson Circuit Court. The trial court denied that motion as a matter of law and McCann appealed. The Court of Appeals affirmed the trial court's judgment and held KRS 337.385 does not authorize class actions. McCann then moved the state Supreme Court for discretionary review, and it granted her motion. On appeal, McCann argues that the Court of Appeals erred by reading KRS 337.385 to prohibit class actions. The Sullivan University System, Inc., hired Mary McCann as an admissions officer at its Fort Knox Campus. Sullivan transferred McCann to its Spencerian College campus in Louisville. Sullivan terminated McCann's employment. McCann filed an action in Jefferson Circuit Court. Sullivan removed McCann's action to federal court after the United States Department of Labor filed a complaint against Sullivan under the federal Fair Labor Standards Act. Sullivan disputed the Department of Labor's allegations, but as part of that settlement, agreed to treat its admissions officers as non-exempt employees, to pay overtime wages, and to pay back wages to certain admissions officers. By agreed order, the federal district court dismissed McCann's federal Fair Labor Standards Act claims against Sullivan and remanded the remaining state law claims to Jefferson Circuit Court. The Jefferson Circuit Court denied the motion on purely legal grounds. In its order denying class certification, the trial court relied upon dicta in an unpublished Court of Appeals' opinion, Toyota Motor Mfg., Kentucky, Inc. v. Kelley,2012-CA-001508-ME, 2013 WL 6046079. The Court of Appeals in Kelley did not reach the merits of whether a class action is available for claims brought under KRS 337.385. Yet, the panel opined that if it were to reach that question, it would conclude that a class action is not available for claims brought under KRS 337.385. The state supreme court must determine whether the Court of Appeals erred in its reading of this provision. Determining the correct reading of a statute is a question of law that the supreme court reviews de novo without affording deference to lower courts. The Rules of Civil Procedure and Special Statutory Proceedings The Statute at issue, KRS 337.385(2), states: "If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section." Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves. McCann argues that after the adoption of Kentucky's modern CR 23 in 1969, the General Assembly had no need to include language specifically allowing class actions when it adopted KRS 337.385 in 1974. Sullivan counters and argues that even absent a special statutory proceeding, CR 23 does not apply because KRS 337.385 omits language specifically authorizing class actions. The state supreme court agrees that the actual words used in the statute do not expressly permit the use of a class action, nor do those words explicitly prohibit its use. Even when reading the entirety of KRS 337.385, this statute fails to create the comprehensive, wholly self-contained procedural process necessary to constitute a recognized special statutory proceeding. Therefore, the state supreme court holds that the cause of action created by KRS 337.385 does not constitute a special statutory proceeding that operates outside of the Rules of Civil Procedure. The General Assembly did not create a special statutory proceeding for actions brought under KRS 337.385. Therefore, the state supreme court holds, as a matter of law, that CR 23 remains an available procedural mechanism applicable to McCann's cause of action brought under KRS 337.385. The state supreme court reverses the judgment of the Court of Appeals and remands this case to Jefferson Circuit Court for proceedings consistent with this opinion. A full-text copy of the state Supreme Court's August 24, 2017 Opinion is available at http://tinyurl.com/y7t3t7mefrom Leagle.com. Theodore W. Walton - ted@justiceky.com - Garry Richard Adams, Jr. - garry@justiceky.com - Counsel for Appellant. Grover C. Potts, Jr., Michelle Deann Wyrick, Rania Marie Basha, Emily Christine Lamb, Counsel for Appellees, The Sullivan University System, Inc., D/B/A/ Sullivan University College of Pharmacy, Sullivan, College of Technology and Design, Sullivan University Global, E-Learning, Dale Carnegia Kentuckiana, International Center, for Dispute Resolution Leadership, Sullivan University, Louisville Technical Institute, The National Center for Hospitality Studies, Institute for Paralegal Studies, Spencerian College and Interior Design Institute. Jeffrey Alan Savarise - jsavarise@fisherphillips.com - John Choate Roach, 176 Pasadena Drive, Building One, Lexington, KY 40503, Timothy James Weatherholt - tweatherholt@fisherphillips.com - Counsel for Appellees, The Kentucky Chamber of Commerce ("Chamber"), and the Kentucky Society for Human Resources Management ("Kyshrm"). Thomas J. Schulz, Counsel for Appellee, Jefferson County Teachers Association (JCTA). John Christopher Sanders, McKenzie Cantrell, Counsel for Appellee, Kentucky Equal Justice Center ("KEJC") and Jobs With Justice: Kevin Crosby Burke, 2200 Dundee Road, Suite C Louisville, Kentucky, 40205 United States Irwin H. Cutler, Jr., 303 River Rd, Ste 300. Louisville, Kentucky 40206 United States, David Lindsay Leightty, Jamie Kristin Neal, 2200 Dundee Road, Suite C, Louisville, Kentucky, 40205 United States Counsel for Appellees, Kentucky Justice Association, Kentucky Chapter of American Federation of Labor and Congress ODF Industrial Organizations, Kentucky State Building and Construction Trade Council, River City Fraternal Order of Police Lodge 614, Inc., Teamsters Local 783, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Allied Industrial and Service Workers International Union. TEN NETWORK: Shareholders Mull Class Action Over CBS Deal --------------------------------------------------------- Lucy Battersby, writing for Sydney Morning Herald, reports that Ten's retail shareholders are calling for a class action or regulatory investigation into boardroom secrecy ahead of the broadcaster's administration, as it becomes clear they will be completely wiped out by the deal KordaMentha and PPB Advisory have struck with US broadcasting giant CBS. Shareholder John Homewood says he would "love to have a class action" and has been frustrated by the lack of communication to shareholders in recent months. "It just seems to me that these administrators . . . it is as if the poor old shareholder has been pushed out of the way of a business that for all intents and purposes was viable," he told Fairfax Media. "I have come to the realisation that effectively shareholders will have their equity interest just transferred over to CBS. It is really the lack of information being provided that has got me a bit hot under the collar." Mr Homewood owns 1.1 million shares in Ten and stands to lose hundreds of thousands of dollars. He said he preferred the deal suggested by Lachlan Murdoch and Bruce Gordon, which would have seen shareholders receive about one-fourth of the value of their equity back and Ten re-listed on the Australian Securities Exchange. Their offer recently received competition regulator approval, but was not accepted by administrators and required a complex ownership structure to fit within media ownership laws. Mr Homewood added that Ten hasn't published any financial information in months because of the administration process. It is also unlikely to hold an annual meeting. Shareholder Adam O'Neill said he has already spoken to the market regulator and legal firms specialising in class actions about Ten's treatment of retail shareholders. "I am not going to let it rest," Mr O'Neill said on Aug. 29. He purchased 9000 shares between 2013 and 2017 and calculates he has lost about $20,000. He believes more shareholders will come forward as they realise their equity has disappeared. "Two shareholders have acted in their personal interest to put the company into voluntary administration, disregarding the vote or concern of 17,000 shareholders," he said, referring to shareholder guarantors Lachlan Murdoch and Bruce Gordon. Mr Murdoch and Mr Gordon informed Ten's board they were no longer willing to act as guarantors for Ten's $200 million loan facility. This move led Ten's board to halt shares before the market opened on June 13 and then put the company into administration the next day saying it had "no choice". Mr Murdoch and Mr Gordon then revealed plans to jointly take over Network Ten. Shareholders will not get a vote on the CBS takeover and have not been able to trade shares since June 13. It has since emerged that Ten's board knew since early May that the third shareholder guarantor, James Packer, was also pulling out, but did not tell the market. The Australian Shareholders Association (ASA) is investigating legal action and will be lobbying Treasurer Scott Morrison, who gets the final say in Foreign Investment Review Board decisions, to "see if in part of his review of this proposal he can obtain a better deal so that shareholders can get some compensation". "We are very upset that shareholders are likely to lose everything in the CBS deal," ASA director Allan Goldin said. Meanwhile shares in Seven and Nine dropped as it dawned on investors Australia's media landscape may suddenly go from a two- player market with a weak third player, to a proper three-way battle. While CBS Corporation's proposed takeover still needs to clear several hurdles the market appears to be much more concerned about the strength of a CBS-owned Ten than they were about the mooted Murdoch-Gordon-owned Ten. And the air of urgency surrounding media reforms has gone. Southern Cross Austereo has also been caught in the rip because it switched network affiliations from Ten to Nine in 2016-17. Southern Cross' recent full-year results showed its television audience share in regional Australia was up from 22.6 to 32 per cent thanks to Nine's content. This boosted television advertising revenues by 22.5 per cent to $42.8 million. "I just get the feeling that the market was a bit too relaxed and complacent about Ten given that Bruce Gordon and Lachlan Murdoch were the front runners," media and telecommunications analyst at Morning Star, Brian Han, said. "And all of a sudden we have a global content and broadcasting powerhouse that knows how to run a television network [taking over]". Mr Han added that the streaming service Stan, which is jointly owned by Nine and Fairfax Media (owner of The Age and The Sydney Morning Herald), may also be affected if CBS launches its All Access streaming service here because Stan has rights to CBS's premium Showtime content in Australia. However, Stan's chief executive, Mike Sneesby, said its deal is long term and even CBS won't be able to stream the shows for which Stan has rights, such as Billions and Twin Peaks. "As part of the output deal Stan has, Showtime production will continue to stream on Stan, they won't be able to be streamed or broadcast on any other platform," Mr Sneesby said. "Stan will be the only place you will be able to stream it." [GN] UBER TECHNOLOGIES: "Congdon" Suit Seeks to Certify Class -------------------------------------------------------- In the lawsuit captioned CHUCK CONGDON, RYAN COWDEN, ANTHONY MARTINEZ, JASON ROSENBERG, and JORGE ZUNIGA, on behalf of themselves and all others similarly situated, the Plaintiffs, v. UBER TECHNOLOGIES, INC., a Delaware corporation, RASIER, LLC, a Delaware corporation, and RASIER-CA, LLC, a Delaware corporation, the Defendants, Case No. 4:16-cv-02499-YGR (N.D. Cal.), Matthew Clark, Ryan Cowden, Dominicus Rooijackers, and Jason Rosenberg will move the Court on October 31, 2017, for class certification of: "(A) all persons in the United States; (B) who entered the 2013 Agreement, the June 2014 Agreement, or the November 2014 Agreement, or a combination of those agreements; (C) opted-out of arbitration under the last Uber driver contract the person executed; and (D) provided at least one minimum fare ride on the UberX platform for which a Safe Rides Fee applied before November 16, 2015". Excluded from each of the proposed classes are 1) the Defendants, 2) the Judge or Magistrate Judge to whom this case is assigned and the Judge or Magistrate Judge's immediate family, 3) persons who execute and file a timely request for exclusion from the class, 4) the legal representatives, successors, or assigns of any such excluded person; and 5) Plaintiffs' counsel and Defendants' counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=h3d4K2hf The Plaintiffs are represented by: John G. Crabtree, Esq. Charles M. Auslander, Esq. Brian C. Tackenberg, Esq. CRABTREE & AUSLANDER 240 Crandon Boulevard, Suite 101 Key Biscayne, FL 33149 Telephone: (305) 361 3770 Facsimile: (305) 437 8118 E-mail: jcrabtree@crabtreelaw.com causlander@crabtreelaw.com btackenberg@crabtreelaw.com - and - Andrew A. August, Esq. BROWNE GEORGE ROSS, LLP 101 California Street, Suite 1225 San Francisco, CA 94111 Telephone (415) 391 7100 Facsimile (415) 391 7198 E-mail: aaugust@bgrfirm.com - and - Mark A. Morrison, Esq. MORRISON AND ASSOCIATES 113 Cherry Street, Unit 34835 Seattle, Washington 98104 Telephone: (206) 317 3315 Facsimile: (206) 397 0875 E-mail: Mark@mpaclassaction.com UBER TECHNOLOGIES: Ditches Lyft Drivers' Spying Class Action ------------------------------------------------------------ Cara Bayles, writing for Law360, reports a California federal judge dismissed a Lyft driver's suit accusing Uber of tracking competing drivers, saying on August 31 the complaint "just copied an article and put in some statutes," but she gave the putative class a second shot at explaining how the technology intercepted private communications in violation of federal wiretap laws. U.S. Magistrate Judge Jacqueline Scott Corley said at on August 31st's hearing that she would grant leave to amend the suit alleging Uber Technologies Inc. spies on the locations of Lyft Inc.'s drivers with a secret software program known internally as "Hell." But the judge said the complaint as written relied too heavily on "someone else's words" -- namely, a feature article on technology new website The Information uncovering the covert software -- and hadn't properly explained what was being communicated and how the message was being intercepted. That was important, she said, because it would determine whether the content was private and protected by wiretapping laws. "The statute requires an interception of the plaintiff's communication," she said. "There may be a distinction if it's a communication from Lyft that was intercepted. It may go from the driver, to Lyft, to Uber." Lead plaintiff Michael Gonzales sued Uber, Uber USA LLC and Rasier-CA on behalf of drivers across the country in April, claiming Uber was scoping out its ride-sharing rival's coverage areas and looking for drivers who worked for both companies. The spyware Uber allegedly used -- called "Hell" as a riff on Uber's software to track its drivers and riders known as "God View" or "Heaven" -- allowed Uber personnel to gain unauthorized access to Lyft computer systems, pose as Lyft customers, and see the locations of Lyft drivers and their unique Lyft identification, according to the complaint. Uber allegedly cross-referenced the location data it gathered on Lyft drivers with its own internal records to figure out which drivers were working for both companies. Then, it allegedly tried to persuade them to quit Lyft by offering more frequent and profitable fares, according to court documents. Gonzales seeks injunctive relief and damages on claims Uber intercepts, accesses, monitors or transmits electronic communications in violation of the Electronic Communication Privacy Act, the California Invasion of Privacy Act and the California Unfair Competition Law. All sides at on August 31st's hearing relied on metaphors to figure out how those laws apply to an application that makes driver locations semi-public. Uber attorney Patrick Oot Jr. of Shook Hardy & Bacon LLP argued that nothing had been intercepted since Lyft shares information on drivers' whereabouts with anyone who downloads its application. He drew an analogy to postal mail: The names and addresses on the outside of the envelope were not private, but the "letter to your mother or your brother inside -- that is protected content." "If I put my name in an old-fashioned phone book, I can't later say that content is private," he said. "The anonymous location and anonymous user ID is not content." He also claimed that there were two separate lines of communication -- one between the Lyft application and the driver and one between the app and the passenger -- and that there was never any direct communication between driver and passenger to be intercepted. Lyft attorney Mark Burton of Audet & Partners said the fact communications go through a server was "a distinction without a difference." "I pick up the phone and I call you. That call may be routed through an AT&T communication center, but that doesn't change the fact they're accessing my communication with you," he told the judge. Judge Corley said GPS location alone couldn't be considered "content" under federal law, noting she regularly granted law enforcement officials GPS search warrants without triggering federal statutes. "If your reading were correct, the way every court in the U.S. handles search warrants would have to change, because none of it goes through the wiretap statute," she said. Gonzales is represented by Caleb Marker, Esq. -- caleb.marker@zimmreed.com -- of Zimmerman Reed and Mark Burton, Esq. -- mburton@audetlaw.com -- of Audet & Partners. Uber Technologies Inc., Uber USA LLC and Rasier-CA are represented by Patrick L. Oot Jr., Esq. and John K. Sherk, Esq. -- jsherk@shb.com -- of Shook Hardy & Bacon LLP. The case is Michael Gonzales v. Uber Technologies Inc. et al., case number 3:17-cv-02264, in the U.S. District Court for the Northern District of California. [GN] UNITED STATES: Oct. 6 Opt-in Deadline Set in Raisin Growers' Suit ----------------------------------------------------------------- AGNetWest reports that growers have until October 6, 2017, to send in their "opt-in" claim forms as part of a class action lawsuit on behalf of the California raisin industry. After a court order issued by Judge Loren A. Smith of the U.S. Court of Claims, Washington, D.C., forms have been mailed to 6,000 raisin growers allowing them to participate in the Raisin Reserve Class Action. Class Action LawsuitBob F. Hansen and other family members originally filed the class action lawsuit on August 26, 2015, after the U.S. Supreme Court ruled that the USDA raisin program constituted a "taking" of private property subject to just compensation under the Fifth Amendment of the U.S. Constitution in June. After the harvest of 2010, the USDA no longer enforced the reserve pools program, however, claims in this litigation go back to the 2002 raisin crop. The United States government argues that the Horne decision does not justify payment in this case and that the statute of limitations should be limited to just the 2009 raisin crop. The class action has been filed on behalf of all California raisin growers and is intended to recover damages that growers incurred by following the law as they knew it at the time, prior to 2015. Federal law requires growers who wish to sign up as part of the lawsuit must "opt in", or they will not be included. Claim forms must be returned to the claims administrator before the deadline. [GN] UNITED STATES: Govt. Employees Await Data Breach Compensation ------------------------------------------------------------- Alex Swoyer, writing for The Washington Times, reports that government employees are still waiting to see whether the federal government will compensate them for losing their most personal data in the 2015 cyber breach of the Office of Personnel Management, which saw hackers make off with financial, family and other sensitive information on roughly 22 million people. A class-action lawsuit on behalf of the employees has been churning through a federal court in Washington, D.C., for roughly two years, where first the Obama administration and now the Trump administration say the employees can't prove the data breach has caused them any injury. Nearly everyone who has held or applied for a federal job over the last three decades had information stolen. The employees are demanding compensation for both past and potentially future identity theft, but government lawyers say there's no evidence the information stolen has actually been used. "Plaintiffs do not plead any facts showing that these disparate harms -- which range from unauthorized charges on credit cards to the filing of fraudulent tax returns to the misuse of a Social Security number -- are attributable to any data breach, let alone the OPM data breaches," OPM's lawyers said in a motion asking the court to toss out the lawsuit. The hack itself exposed major problems in the government's cyber infrastructure, and the government is already paying tens of millions of dollars in credit monitoring for those whose information was snared. OPM revamped its cybersecurity protection with new tools since the 2015 breach, and enacted a two-factor authentication log in for employees in order to increase security. It also created a position for a cyber security adviser to report directly to OPM's director. Federal authorities have signaled they believe the hackers had links to the Chinese government, though China has denied involvement. The FBI arrested Yu Pingan, a Chinese man authorities said went by the hacker name GoldSun, and who the FBI said sold malware, including Sakula. News reports say Sakula was linked to the OPM hack. The employees suing OPM say they want the government to pay for economic injuries and provide free lifetime identity theft protection services. They also want OPM to implement an updated security plan. U.S. District Judge Amy Berman Jackson is considering the government's motion to dismiss the case for lack of a provable injury. Judge Jackson sent both sides back to submit briefs after an appeals court ruling in another data breach case against CareFirst BlueCross BlueShield, which saw data on 1.1 million customers hacked. Christopher Hikida, an attorney for Girard Gibbs LLP, which is the firm representing the employees against OPM, said the new round of filings was usual when another case could shed light on important legal issues. "One thing that we have been telling people is that there is nothing they have to do at this point, but in the meantime to preserve any documents that they have regarding the breach of any identity theft or fraud they've experienced," said Mr. Hikida. In testimony months after the hack became public, then-Director of National Intelligence James Clapper said the hack wasn't a cyberattack, because information wasn't destroyed or manipulated. Instead, it was a theft -- the data was stolen. Mr. Clapper said there was no evidence the data had been used, which could bolster the government's case that the employees who had their information stolen haven't suffered any specific harm. Paul Rosenzweig, a law professor at George Washington University, said it is very difficult to prove who actually was behind the hack. "Attribution is notoriously hard to accomplish. And most of how we do it is through circumstantial evidence and inference," Mr. Mr. Rosenzweig said. But Peter Swire, a law professor at Georgia Institute of Technology, said he's confident it was China based on what he has seen in public reports. He said a nation-state like China would have hacked OPM in order to detect under cover agents, use information for blackmail and to put pressure on federal employees. Mr. Swire said it's been difficult to link a data breach to an individual's identify theft and the federal courts have split on how strong the link and evidence must be for a plaintiff to succeed. "The federal judge doesn't have expertise in what China's role has been or might be in the future. They don't have special technical knowledge," said Mr. Swire. [GN] UNITED STATES: "Jenkins" Subclass II Settlement Has Final OK ------------------------------------------------------------ In the case captioned STEVEN JENKINS, et al., Plaintiffs, v. THE UNITED STATES, Defendant, No. 09-241L (Fed. Cl.), Judge Nancy Beth Firestone of the U.S. Court of Federal Claims granted the parties' request for final approval of a settlement for the one remaining Plaintiff. The case arises from the conversion of a railroad corridor in Dallas County, Iowa to a recreational trail. In Jenkins v. United States, the Court granted the Plaintiffs' motion to certify the class. Following the Court's determination of liability and a trial on compensation, it found that the appraiser should have taken into account the physical remnants of the railroad when determining the value of each landowner's property before the taking occurred. On remand, the parties determined that the Federal Circuit's decision potentially affected 27 class members. On April 26, 2017, the Court divided the certified class into two subclasses for settlement purposes and approved the parties' proposed settlement for the 26 Plaintiffs in Subclass I. It entered judgment for the 26 members of Subclass I on April 28, 2017. The parties now propose to settle the case for Subclass II, which consists of the one remaining class member: the Ronald K. Bender Revocable Trust. The parties' proposed settlement for Subclass II was filed with the court on June 26, 2017. Under the proposed settlement, the Subclass II Plaintiff would receive $13,416.50 in principal, interest of $10,410.96 through June 1, 2017, and additional interest beyond June 1, 2017 at the daily rate of $2.24 until the date of payment. In addition, the parties have agreed on statutory attorneys' fees and costs of $36,659.57, consisting of $29,130.00 in fees and $7,529.27 in costs, pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 ("URA"). On July 10, 2017, the court granted preliminary approval of the proposed settlement and notice plan and scheduled a public fairness hearing. The Class counsel mailed the approved notice to the Subclass II Plaintiff on July 14, 2017. The class member responded on July 20, 2017 that the class member approved of the settlement. The class member did not provide any comments or request to participate or speak at the fairness hearing held on Aug. 25, 2017. Pending before the Court is the parties' request for final approval of a proposed settlement for the one remaining claimant in the case pursuant to Rule 23(e) of the Rules of the Court of Federal Claims. Judge Firestone approved the parties' proposed settlement agreement for the Subclass II Plaintiff. She directed the clerk to enter judgment for the Ronald K. Bender Revocable Trust in the amounts of $13,416.50 in principal and $10,410.96 in interest through June 1, 2017. The interest will be payable at a daily rate of $2.24, beginning on June 2, 2017, until the date the judgment is paid. In addition, the clerk is directed to enter judgment for the Subclass II Plaintiff in the amount of $36,659.57 for attorneys' fees and costs pursuant to the URA. A full-text copy of the Court's Aug. 25, 2017 Order is available at https://is.gd/Lp5F0d from Leagle.com. STEVE JENKINS, Plaintiff, represented by Thomas Scott Stewart -- STEWART@SWM.LEGAL -- Stewart Wald & McCulley LLC. DONALD BURG, Plaintiff, represented by Thomas Scott Stewart, Stewart Wald & McCulley LLC. USA, Defendant, represented by Jacqueline Camille Brown -- jacqueline.c.brown@usdoj.gov -- U.S. Department of Justice. VACASA: Faces Class Action Over Vacation Rental Fees ---------------------------------------------------- Mike Rogoway, writing for Oregon Live, reports that a Portland woman sued Vacasa, alleging the vacation rental management company collects more in fees than allowed under its agreement with property owners. The lawsuit, filed on behalf of vacation home owner Barbara Fisher, seeks class-action status and $3 million in damages. "We're aware of Ms. Fisher's complaints and we believe they have no merit," Vacasa said in a brief statement. Vacasa is one of Portland's fastest-growing young companies. It helps property owners market and manage their vacation rentals, serving more than 5,100 properties. That included a property Fisher owns in Rhododendron, near Mount Hood. Fisher's lawsuit, filed on August 31 in Multnomah County Circuit Court, alleges that their contract allows Vacasa to take a flat, comprehensive "management fee" of 35 percent. However, Fisher alleges that Vacasa collects extra fees from renters that effectively increase the share it collects from each rental to approximately 50 percent. The fees amount to "disguised rent," according to the suit. "These so-called 'fees' include nightly pet fees, nightly hot tub fees, and fees for early check-in and late check-out, as well as a so-called 'booking fee' which is typically around 10% of the nightly rental rate," the suit says. "Under the contact, Vacasa is required to remit these fees to property owners, but instead keeps them for itself, in violation of Oregon law." For example, the suit says Vacasa collects the pet fee even though homeowners are responsible for repairs and maintenance associated with the costs of allowing pets, and that Vacasa does not use the fee to offset costs associated with cleaning or maintaining homes that allow pets. [GN] VERIZON NEW JERSEY: "Struzynski" Suit Moved to NJ Federal Court --------------------------------------------------------------- The class action lawsuit titled RICH STRUZYNSKI, LESLIE STRUZYNSKI, and RACHEL WULK, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, v. VERIZON NEW JERSEY INC. and Verizon Online LLC, the Defendants, Case No. CAM-L-03- 00017, was removed on Aug. 28, 2017 from the New Jersey Superior Court, Camden County, to the U.S. District Court for the District of New Jersey (Camden). The District Court Clerk assigned Case No. 1:17-cv-06485 to the proceeding. Verizon New Jersey, Inc., formerly New Jersey Bell Telephone Company, is the Bell Operating Company serving the U.S. state of New Jersey.[BN] The Defendants are represented by: Philip R. Sellinger, Esq. GREENBERG TRAURIG, LLP 500 Campus Drive, Suite 400 PO BOX 677 Florham Park, NJ 07932-0677 Telephone: (973) 360 7900 E-mail: sellingerp@gtlaw.com VIGO COUNTY, IN: Jail Inmates' Suit Granted Class-Action Status --------------------------------------------------------------- Howard Greninger Tribune-Star, writing for Tribune Star, reports that Vigo County must inform jail inmates dating from October 2016 of the possibility they may be able to participate in a federal lawsuit against county officials. The notice is part of a court order issued in May as part of a federal lawsuit on behalf of Jauston Huerta and other inmates, claiming unconstitutional conditions in the Vigo County Jail. The class action status applies to all inmates in the custody of the county from Oct. 13, 2016 to the present. David Rardin, former director of the Northeast Region for the U.S. Bureau of Prisons and a jail consultant for the county, said having a federal court order a class action status "is a high hurdle for a court to grant. The court has decided that there is potential for a substantial argument of a problem" at the jail. Mr. Rardin said the class action status "gives monumental additional financial loss exposure to the county as a result in terms of liability." By Sept. 1, the notice is to made part of the electronic kiosk system that individuals incarcerated at Vigo County Jail use for phone calls, video visitation and other services. The notice will also be posted at the book-out area of the jail. A paper copy of the notice will be provided to every inmate in the jail on Sept. 1. Additionally, a list of every individual in the custody of the Vigo County sheriff, but located at another jail facility, will be provided to plaintiffs' attorney Michael Sutherlin. The class-action status does not entitle an inmate to any damages merely because the person was in the county jail. It also does not include any claim for personal injury. However, an inmate can contact his or her attorney if they believe they have suffered individual harm while detained or incarcerated at the jail. There is a two-year statute of limitations on such claims and a tort claim notice must be filed within 180 days of any injury, according to the notice. Inmates in the class action are entitled to know the status of the case, with Mr. Sutherlin to issue a status report on the lawsuit "from time to time," according to the court order. [GN] VOLKSWAGEN AG: Faces Class Actions in Canada Over Alleged Cartel ---------------------------------------------------------------- Michael Osborne, Esq. -- mosborne@agmlawyers.com -- of Affleck Greene McMurtry, in an article for The Lawyer'sDaily, wrote that class actions have been filed in Ontario against German carmakers alleging that they co-ordinated the design and pricing of components in their cars. Kirk Baert, a partner at Koskie Minsky, who along with Ken Rosenberg of Paliare Roland acts for the plaintiff, said: "Collusion of such a scale among such large companies is a serious issue. Consumers should not pay more, or receive an inferior product, so that such companies can maximize profits." Despite these strong words, the plaintiffs may have an uphill battle establishing that the German carmakers breached Canada's Competition Act. The case was triggered by explosive revelations by German magazine Der Speigel, which reported in late July that the "Circle of Five" German carmakers, Volkswagen, Audi, Porsche, BMW and Daimler (Mercedes-Benz), have been conspiring over technology, costs and suppliers since the 1990s. The carmakers had 200 employees in 60 working groups on such things as gasoline and diesel engines, brakes, transmissions and environmental technologies, Der Speigel claimed, adding that they conspired to reduce the size of urea tanks used by clean diesel technology in a bid to reduce costs, with the result that the technology could not scrub enough nitrogen from diesel exhausts. Indeed, problems for the German car industry began with VW's admission that it had installed cheat software on its cars to defeat emissions tests. VW has since recalled millions of cars in Europe and North America, and agreed to settlements with regulators and class action plaintiffs in the United States and Canada worth nearly $20 billion. According to Der Speigel, Daimler self-reported the conspiracy to German competition authorities, followed by VW. Both the German and EU competition authorities are investigating. Inevitably, class actions were filed in the U.S. and Canada seeking damages on behalf of consumers. The Canadian class action has yet to be particularized; the only document filed to date is a Notice of Action containing a bare- bones allegation that the Circle of Five "held regular meetings to co-ordinate a unified approach to the design and price of components found in vehicles" and that at these meetings, they fixed the technical specifications of vehicles and components. The plaintiff has also added the supplier of the clean diesel technology, Robert Bosch GmbH, as a defendant. Complaints filed in the U.S. provide greater detail. According to U.S. plaintiffs, the carmakers agreed to work together on developing new technologies to ensure that none of them was left behind by innovations of the others, which "ensured that improvements in design and engineering occurred haltingly and in lockstep." They agreed on such things as the maximum speed at which convertible roofs could be opened and closed (50 km/h) and on when parking brake locks should be activated. They also agreed on suppliers for particular components. Central to the plaintiffs' case will be proving that the carmakers breached the conspiracy provisions of the Competition Act. They will face several hurdles. First of all, Volkswagen AG owns the Volkswagen, Audi and (since 2012) Porsche brands (among others). The Competition Act exempts co-ordinated behaviour, including price setting, among affiliated companies from the reach of the conspiracy provisions. This is as it should be; we expect affiliated companies to collaborate and realize efficiencies. Next, the plaintiff will need to contend with a major change in conspiracy law in Canada that occurred in March 2010. Before March 2010, s. 45 of the Competition Act made it an offence to conspire to lessen competition "unduly." As of March 12, 2010, a new section 45 came into effect, banning agreements between competitors to fix prices, allocate markets or restrict output. The undueness requirement was removed, making these prohibited agreements per se unlawful. The plaintiffs are likely to face challenges under both the old and new section 45. To prove their case under the old section 45, the plaintiffs must show that the arrangement between the carmakers had the effect of lessening competition unduly. This will require a showing of market power, in the sense of the ability to behave independently of the market. In order to work out whether the Circle of Five have market power, the product market must be defined. That is, one must identify the firms and products that compete with one another. The Circle of Five had less than eight per cent of the Canadian vehicle market in 2010. Such a small market share could not support a finding of market power. American plaintiffs claim that German cars constitute a separate product market. Given that German cars compete with and have been losing market share to Japanese carmakers, it seems artificial to restrict the market to cars from one country. The plaintiffs might succeed in defining luxury vehicles as a separate product market. The Circle of Five's market share of a luxury vehicle market may be as high as 54 per cent. This could be enough to establish the undueness element. But this market may also be artificial; it may be necessary to segment markets by car type (sedans, SUVs, etc) and size. As well, one of the brands involved, Volkswagen, likely would not be in the luxury vehicle market. To prove their case under the new section 45, the plaintiffs need to fit the facts within one of the three types of prohibited agreements. Nothing published so far suggests that the carmakers conspired to fix prices they charge consumers for their cars. The U.S. complaint suggests that the collaboration on technology by the Circle of Five could be characterized as an agreement to limit improvements in the quality of their cars. The Competition Bureau takes the view that such an agreement is an unlawful output restriction agreement. This view is not directly supported by the text of section 45, however, nor has it been considered by a court. [GN] WAYNE COUNTY, MI: 6th Cir. Affirms Dismissal of "Hammoud" --------------------------------------------------------- The United States Court of Appeals, Sixth Circuit, issued an Opinion affirming the District Court dismissal of Plaintiff/s complaint in the case captioned ZAINAH HAMMOUD; SHAEFA MOHAMED; ELEANOR EWALD; ERIC EWALD; CHERYL DEANDA; GENO DEANDA; PAULA NEWCOMB; ROBERT RADFORD; ANDREA ROWE; GARY ZELONY; ANTHONY CRUMP; ERNEST FOREST; BRANDY GUITERREZ; HENRY KOPPOE; TIMOTHY PADDEN; SONIA VARGAS; JENNIFER WICK; WARREN WICK; CARL NOVAK; RICHARD ROBBS, Plaintiffs-Appellants, v. WAYNE COUNTY; RICHARD HATHAWAY, Wayne County Treasurer; RAYMOND WOJTOWICZ; DAVID SZYMANSKI; FELECIA TYLER; CITY OF DEARBORN; ROBERT MUERY; ALLYSON BETTIS; RANDY WALKER; CITY OF LINCOLN PARK; BRAD L. COULTER; CITY OF WAYNE; LISA NOCERINI; REDFORD TOWNSHIP; TRACY KOBYLARSZ; JSR FUNDING, LLC; JAMES BUDZIAK; ENTERPRISING REAL ESTATE, LLC; MILAN GANDHI; RISHI PATEL; NANDAN PATEL; HP SNAP INVESTMENT, LLC; HETAL GANDHI; GLOBAL REALTY, LLC; RICHARD INGBER; RANCILIO & ASSOCIATES; RICHARD KOSMACK; KAREN FROBOTTA; NANCY JACKSON; CITY OF GARDEN CITY, Defendants-Appellees, No. 16-2371 (6th Cir.). Plaintiffs-Appellants are all former owners of real property in Wayne County, Michigan. They became delinquent in paying their property taxes, and, pursuant to the Michigan General Property Tax Act (GPTA), the Wayne County Treasurer's Office took steps to foreclose upon the properties. Plaintiffs failed to timely redeem the properties, and the Wayne County Circuit Court entered foreclosure judgments against Plaintiffs, transferring the properties to Wayne County in fee simple absolute by quit claim deed. Plaintiffs did not appeal the foreclosure judgment. Plaintiffs brought a purported class action on behalf of approximately 800 similarly situated property owners, seeking equitable and compensatory relief. Specifically, Plaintiffs alleged that Wayne County and affiliated individuals Defendants illegally and unconscionably and without required notice under Michigan and federal law foreclosed Plaintiffs' real properties. The district court granted Defendants' motions to dismiss, finding that the Tax Injunction Act, 28 U.S.C. Section 1341, stripped it of subject-matter jurisdiction to adjudicate Plaintiffs' due- process and equal-protection claims. The district court also dismissed Plaintiffs' civil RICO claim, finding that the Wayne County and municipal Defendants cannot be held liable as a matter of law and that Plaintiffs failed to sufficiently plead a civil RICO claim against the other Defendants. Having dismissed Plaintiffs' federal claims, the district court declined to exercise supplemental jurisdiction over the remaining state-law claims. The Sixth Circuit said it is convinced that the district court did not err in its conclusion that the Tax Injunction Act barred it from adjudicating Plaintiffs' due-process and equal-protection claims. Neither is it convinced that the district court erroneously dismissed Plaintiffs' civil RICO claim. The district court's opinion carefully and correctly sets out the law governing the issues raised and clearly articulates the reasons underlying its decision. Thus, issuance of a full written opinion by this court would serve no useful purpose. And, with no federal claims remaining, the district court's decision to decline to exercise supplemental jurisdiction over Plaintiffs' state-law claims was not an abuse of discretion. Accordingly, the Sixth Circuit affirmed. A full-text copy of the Sixth Circuit's August 24, 2017 Opinion is available at http://tinyurl.com/ybtgmrmgfrom Leagle.com. WELL LIFE: Oct. 31 Settlement Final Approval Hearing Set -------------------------------------------------------- COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CA No. 1577CV02000D SHANNON BLAZAK, on behalf of herself and all other similarly situated individuals, Plaintiff, v. WELL LIFE MEDICAL, P.C., Defendant. NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION AND HEARING ON PROPOSED SETTLEMENT TO: ALL PERSONS WHO ORDERED MEDICAL RECORDS FROM Well Life MEDICAL, P.C. AND who HAD THEIR MEDICAL RECORDS REQUESTS PROCESSED AND RESPONDED TO at any time from December 8, 2011 to December 31, 2013. On December 8, 2015, Plaintiff, Shannon Blazak filed the above- captioned class action litigation against Well Life Medical, P.C. (Well Life) on behalf of all those persons who either directly, or through an authorized agent: (A) requested their medical records from Well Life; (B) received an invoice in connection with their medical records, which invoice unlawfully demanded/charged an amount in excess of what Well Life was permitted to charge in connection with the fulfillment of the medical records request; and (C) paid Well Life the full amount demanded by Well Life for the fulfillment of the medical records request in an amount greater than what Well Life was allowed to charge under M.G.L. c. 111, Sec. 70. The lawsuit alleges violations of M.G.L. c. 111, Sec. 70, including that Well Life overcharged for postage when responding to certain medical records requests made by Class Members. The parties have agreed to settle the litigation on the following terms. Given Well Life's admitted inability to identify certain class members Unidentifiable Class Members for the period between December 8, 2011 through December 31, 2013, the parties agreed that Well Life will pay $1,750.00 to Health Law Advocates, Inc., a public interest law firm whose interest is to provide pro-bono legal representation to low-income residents experiencing difficulty accessing or paying for needed medical services. Additionally, Well Life will make payment in the amount of $25.00 for each qualifying transaction of certain class members identified between January 1, 2014 through December 8, 2015(Identifiable Class Members). Identifiable Class Members will receive separate Notice of their claims via First Class Mail. Well Life has affirmed that it does not, and will not, charge amounts for postage in excess of what it allowed by M.G.L. c. 111, Sec. 70 when processing and responding to medical records requests. Lastly, Well Life has agreed to pay Plaintiffs reasonable attorneys fees and expenses in an amount to be determined by the court at the Final Approval Hearing. All such amounts will be paid by Well Life and will not be distributed from the Settlement Class funds. The Essex County Superior Court preliminarily approved this settlement. A Final Approval Hearing will be held on October 31, 2017 at 2:00 p.m. (the Final Approval Hearing), before the Court at the Essex County Superior Court, 43 Appleton Way, Lawrence, MA 01841, at which time the parties will ask the Court to: (i) determine whether, for settlement purposes only, the Courts preliminary certification of the non-opt-out Class, pursuant to Massachusetts Rule of Civil Procedure 23 and M.G.L. c. 93A, should be made final; (ii) determine whether the Court should grant final approval of the proposed Settlement on the terms and conditions provided for in the Parties Settlement Agreement as fair, reasonable, and adequate, and in the best interest of the Class; (iii) determine whether judgment should be entered dismissing the litigation with prejudice; (iv) consider the Plaintiffs application for attorneys fees and reimbursement of expenses; and (v) hear and determine other matters relating to the proposed Settlement. Any claims you might have against Well Life for non- compliance with M.G.L. c. 111, Sec. 70 in connection with Well Life's processing of medical records requests at any time from December 8, 2011 to the present, will be forever released and dismissed as a result of this Settlement and the Courts approval thereof. If you have any objection to this Settlement, you must deliver said objection in writing to the Court and the lawyers involved in the Action by no later than September 7, 2017 to the following three addresses: 1. Civil Clerks Office, Salem Superior Court, Ruane Judicial Center, 56 Federal Street, Salem, MA 01970; 2. John R. Yasi, Esq. at Forrest, LaMothe, Mazow, McCullough, Yasi & Yasi, P.C., Two Salem Green, Suite 2, Salem, MA 01970 (counsel for Plaintiff); and 3. Thomas J. Delaney, Esq., Goddard, Scuteri and Delaney, 27 Congress Street, Salem MA 01970 (counsel for Well Life). Any Objections must be verified by a declaration under the penalty of perjury or a sworn affidavit and state: A. The name and case number of at least one of the Action: Shannon Blazak, et al. v. Well Life Medical, P.C.., CA No.1577CV02000D; B. The full name, address, and telephone number of the person objecting; C. The words Notice of Objection or Formal Objection; D. Whether the objector intends to appear at the Final Approval Hearing, either in person or through counsel, and, if through counsel, identifying counsel by name, address and phone number; E. The legal and factual bases for each and every objection, and if through counsel, a legal memorandum in support of the objection; and F. A list of any witnesses, along with the expected testimony of each such witness, and photocopies of exhibits which the objector intends to introduce at the Final Approval Hearing. In addition, if the objecting Class Member is represented by an attorney, said attorney must comply with all applicable Massachusetts laws and rules for filing pleadings and documents in Massachusetts courts. The objection, to be considered, also must be sent by the objector or a legally authorized representative on an individual basis and not as part of a group, class or subclass. Any Settlement Class Member who fails to file such a written statement of his or her intention to object or oppose shall be foreclosed from making any objection to this Settlement Agreement and/or filing any opposition to the Fee and Expense Application, except as permitted by the Court. IF YOU DO NOT TIMELY MAKE YOUR OBJECTION, YOU WILL BE DEEMED TO HAVE WAIVED ALL OBJECTIONS AND WILL NOT BE ENTITLED TO SPEAK AT THE FINAL APPROVAL HEARING. If you file and serve an Objection, you may appear at the Final Approval Hearing, either in person or through personal counsel hired at your expense, to object to the Settlement Agreement. However, you are not required to appear. If you, or your attorney, intend to make an appearance at the Final Approval Hearing, you must also deliver to Class Counsel and Well Lifes Counsel, and file with the Court, no later than (i.e., postmarked by) September 7, 2017, a Notice of Intention to Appear. If you intend to appear at the Final Approval Hearing through counsel, your Notice of Intention to Appear must identify the attorney representing you who will appear at the Final Approval Hearing and include the attorneys name, address, phone number, e-mail address, and the state bar(s) to which counsel is admitted. Also, if you intend to request that the Court allow you to call witnesses at the Final Approval Hearing, such request must be made in your Notice of Intention to Appear, which must also contain a list of any such witnesses and a summary of each witnesss expected testimony. For the full details of the lawsuit, the claims that have been asserted by Plaintiff, and the terms and conditions of the Settlement, you may refer to the papers on file with the Court. You or your attorney may examine the Courts files during regular business hours of each business day at the Civil Clerks Office, Essex County Superior Court, Ruane Judicial Center, 56 Federal Street, Salem, MA 01970. WELLS FARGO: Arbitration Push Questioned in Class Action -------------------------------------------------------- B. Colby Hamilton, writing for New York Law Journal, reports that Wells Fargo is accused of potentially "strip[ping] customers" of their constitutional rights by pursuing arbitration, according to a brief filed by plaintiffs in the leading class action suit over forced car insurance by the bank. Plaintiff Katherine Jacob, in a reply to the embattled bank's opposition to a preliminary injunction, said Wells Fargo was threatening to invoke arbitration clauses "burie[d]" in customer agreements, rather than face plaintiffs in court. "Wells Fargo reveals that it will provide no relief that is not forced," Jacob said. An internal review made public in July revealed the bank inappropriately charged some 800,000 auto loan customers with insurance that they didn't want. The move forced tens of thousands into delinquency, according to the report. Wells Fargo argues against a preliminary injunction that would force the bank to take steps to help customers whose credit scores were harmed by the allegations in the class suit ahead of class certification. In its brief on the matter, the bank notes that the arbitration clause was part of the agreement that Jacob -- and presumably all potential members of the class -- signed, and that it included a class-action waiver. The bank argues that a mandatory injunction like that proposed by the plaintiff is an attempt to get the court "to award her principal relief on the merits that could be more appropriately determined in a different proceeding." "Whether corrective credit reporting is appropriate is an ultimate issue for the arbitrator," Wells Fargo's counsel argues. The case, before U.S. District Judge Robert Sweet of the Southern District of New York, is currently moving towards consolidation through multidistrict litigation procedures. Chicago-based DiCello Levitt & Casey name attorney Adam Levitt, Esq. - alevitt@dlcfirm.com - of DiCello Levitt & Casey leads representation for Jacob. He declined to comment. McGuireWoods partner Jeffrey Chapman, Esq. -- jeff@chapmanfirmtx.com - of the Chapman Firm heads the firm's defense for Wells Fargo. He could not be reached for comment. [GN] WISCONSIN HOSPITALITY: Court Certify Class of Delivery Drivers -------------------------------------------------------------- In the lawsuit titled WAYNE MEETZ, the Plaintiff, v. WISCONSIN HOSPITALITY GROUP LLC, et al., the Defendants, Case No. 16-C-1313 (E.D. Wisc.), the Hon. Judge William C. Griesbach entered an order: 1. granting Meetz's motion for conditional certification and court authorization to send notice to potential class members, on behalf of: "all persons who have worked as a delivery driver for a Pizza Hut franchise operated by Wisconsin Hospitality Group, LLC and PH Hospitality Group, LLC d/b/a Pizza Hut at any time since September 30, 2013, and who received an in- restaurant wage of $7.25 per hour and a delivery wage of $5.25 per hour"; and 2. appointing Plaintiff's counsel as collective action counsel. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=1mZ34F5g YAHOO INC: Must Face Nationwide Litigation, Judge Says ------------------------------------------------------ Jonathan Stempel, writing for Reuters, reports that a U.S. judge said Yahoo must face nationwide litigation brought on behalf of well over 1 billion users who said their personal information was compromised in three massive data breaches. August 30's decision from US District Judge Lucy Koh in San Jose, California, was a setback for efforts by Verizon, which paid $4.76 billion for Yahoo's Internet business in June, to limit potential liability. The breaches occurred between 2013 and 2016, but Yahoo was slow to disclose them, waiting more than three years to reveal the first. Revelations about the scope of the cyber attacks prompted Verizon to lower its purchase price for the company. In a 93-page decision, Koh rejected Yahoo's contention that breach victims lacked standing to sue and said they could pursue some breach of contract and unfair competition claims. "All plaintiffs have alleged a risk of future identity theft, in addition to loss of value of their personal identification information," the judge wrote. Koh said some plaintiffs also alleged they had spent money to thwart future identity theft or that fraudsters had misused their data. Others, meanwhile, could have changed passwords or canceled their accounts to stem losses had Yahoo not delayed disclosing the breaches, the judge said. While many claims were dismissed, Koh said the plaintiffs could amend their complaint to address her concerns. "We believe it to be a significant victory for consumers and will address the deficiencies the court pointed out," John Yanchunis, a lawyer for the plaintiffs who chairs an executive committee overseeing the case, said in an interview. "It's the biggest data breach in the history of the world." Verizon spokesman Bob Varettoni said the New York-based company declined to comment on pending litigation. Yahoo is now part of a Verizon unit called Oath. In court papers, Yahoo had argued that the breaches were "a triumph of criminal persistence" by a "veritable 'who's who' of cybercriminals" and that no security system is hack-proof. On March 15, the US Department of Justice charged two officers of the Russian Federal Security Service and two hackers in connection with the second breach in late 2014. The August 2013 breach affected more than 1 billion accounts, while the 2014 breach affected more than 500 million. A third breach occurred in 2015 and 2016. The case is In re: Yahoo Inc Customer Data Security Breach Litigation, U.S. District Court, Northern District of California, No. 16-md-02752. [GN] YIN WALL: Court Certifies Ginseng Growers Class in "Baumann" ------------------------------------------------------------ Magistrate Judge William E. Duffin of the U.S. District Court for the Eastern District of Wisconsin granted the Plaintiffs' motion for class certification in the case captioned BAUMANN FARMS, LLP a Wisconsin limited liability partnership; GLENN HEIER; and AARON KAISER, Plaintiffs, v. YIN WALL CITY, INC., an Illinois corporation; SUT I. FONG; CHEONG SAT O; YIN WALL CITY, DALLAS, INC., a Texas Corporation, Defendants. YIN WALL CITY, INC. (Illinois), YIN WALL CITY, INC. (Texas), and YIN WALL CITY DALLAS, INC., Counterclaim and Third-Party Plaintiffs, v. BAUMANN FARMS, LLP; GLENN HEIER; and AARON KAISER, Counterclaim Defendants, and GINSENG BOARD OF WISCONSIN, INC.; THOMAS HACK, JOE HEIL and KURT BAUMANN, Third-Party Defendants, Case No. 16-CV-605 (E.D. Wis.). On May 5, 2017, the Plaintiffs moved pursuant to Federal Rule of Civil Procedure 23 to certify the action against the Defendants as a class action. Baumann asks the court to certify a class defined as all individuals and entities engaged in the business of cultivating ginseng in the State of Wisconsin who have registered as ginseng growers with Wisconsin's Department of Agriculture, Trade and Consumer Protection ("DATCP") between January 2010 and the date of judgment of the case, as mandated by Wis. Stats. Section 94.50(2). According to the Plaintiffs, in 2017 there are 180 ginseng growers registered with the DATCP. They are all Wisconsin ginseng growers and would be the class representatives and their lawyer would be the class counsel. The defendants oppose the motion. The Plaintiffs allege that Wisconsin ginseng is of superior quality to ginseng grown elsewhere. They allege that the Defendants sold ginseng labeled as having been grown in Wisconsin when, in fact, it had not -- most likely, it had been grown in China. According to them, by passing off ginseng grown in China as having been grown in Wisconsin, the Defendants harm Wisconsin ginseng growers in two ways: first, it floods the U.S. market with ginseng root which purports to be grown in Wisconsin, which depresses the price at which ginseng root actually grown in Wisconsin may be sold; and, second, by selling ginseng root of lesser quality identified as Wisconsin ginseng root, the sales erode the status and desirability of Wisconsin ginseng in the mind of the consuming public, decreasing the market demand for Wisconsin-grown ginseng. Magistrate Judge Duffin granted the Plaintiffs' motion for class certification. He certified the class of all individuals and entities engaged in the business of cultivating ginseng in the State of Wisconsin who have registered as ginseng growers with Wisconsin's DATCP as mandated by Wis. Stats. Section 94.50(2), from January 2010 through the date the defendants stopped selling ginseng in boxes labeled as "grown in Wisconsin," excluding defendants and all officers, directors, employees, and agents of the Defendants. Pursuant to Federal Rule of Civil Procedure 23(g)(2)(B), the Magistrate Judge appointed Michael T. Hopkins of IP-Litigation US LLC as the class counsel. He ordered that within 28 days of the order, the class counsel will provide the Court with a proposed form of notice to potential class members consistent with Fed. R. Civ. P. 23(c)(2)(B). A full-text copy of the Court's Aug. 25, 2017 Decision and Order is available at https://is.gd/h0Iiby from Leagle.com. Baumann Farms LLP, Plaintiff, represented by Michael T. Hopkins, IP-Litigation US LLC. Glenn Heier, Plaintiff, represented by Michael T. Hopkins, IP- Litigation US LLC. Aaron Kaiser, Plaintiff, represented by Michael T. Hopkins, IP- Litigation US LLC. Yin Wall City Inc, Defendant, represented by Peter J. Phillips -- pjphillips@lmiplaw.com -- Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Sut I Fong, Defendant, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Choeng Sat O, Defendant, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Yin Wall City Inc, Defendant, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Yin Wall City Dallas Inc, Defendant, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Yin Wall City Inc, Third Party Plaintiff, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Yin Wall City Dallas Inc, Third Party Plaintiff, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Yin Wall City Inc, Third Party Plaintiff, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. Thomas Hack, Third Party Defendant, represented by Michael T. Hopkins, IP-Litigation US LLC. Joe Heil, Third Party Defendant, represented by Michael T. Hopkins, IP-Litigation US LLC. Ginseng Board of Wisconsin Inc., Third Party Defendant, represented by Michael T. Hopkins, IP-Litigation US LLC. Kurt Baumann, Third Party Defendant, represented by Michael T. Hopkins, IP-Litigation US LLC. Yin Wall City Inc, Counter Claimant, represented by Peter J. Phillips, Lucas & Mercanti LLP, Eric V.C. Jansson, Jansson Munger McKinley & Kirby LTD, Molly H. McKinley, Jansson Munger McKinley & Kirby LTD & Peter N. Jansson, Jansson Munger McKinley & Kirby LTD. WELLS FARGO: Faces "Smith" Suit over Automotive Insurance Scheme ---------------------------------------------------------------- Gregory Smith, on behalf of himself and all others similarly situated, the Plaintiff, v. WELLS FARGO & COMPANY, WELLS FARGO BANK, N.A., D/B/A WELLS FARGO DEALER SERVICES, NATIONAL GENERAL HOLDINGS CORP., and NATIONAL GENERAL INSURANCE COMPANY, the Defendants, Case No. 4:17-cv-04938-KAW (N.D. Cal., Aug. 24, 2017), seeks to recover compensatory, statutory, and other damages sustained by Plaintiff and the Class, restitution and/or disgorgement of Defendants' profits from its unfair and unlawful practices, and all other relief allowed under applicable law. Wells Fargo has admitted to engaging in a long-running scheme that forced hundreds of thousands of customers of automobile financing to unwittingly pay for automotive insurance they did not need, leading to hundreds of thousands of erroneous loan delinquencies and tens of thousands of illegal vehicle repossessions. The scheme was first reported by the New York Times on July 27, 2017, after the Times obtained an internal, non-public report commissioned by Wells Fargo executives that estimated that more than 800,000 people who financed car loans through Wells Fargo were wrongfully charged for force-placed Collateral Protection Insurance ("CPI") or Gap insurance ("Gap"), despite having insurance of their own. By forcing hundreds of thousands of customers to purchase the unnecessary Gap or CPI insurance, which was underwritten by National General, and by then automatically deducting the Gap or CPI premiums from customers' bank accounts, Wells Fargo earned millions of dollars in interest payments, penalties, fees, and kickbacks in the form of commission payments. Wells Fargo's customers, in turn, were subjected to deceptive late fees, insufficient fund charges, wrongful repossessions, and downgraded credit scores, even after many customers complained directly to Wells Fargo. Wells Fargo & Company is an American international banking and financial services holding company headquartered in San Francisco, California, with "hubquarters" throughout the country.[BN] The Plaintiff is represented by: Kristen Law Sagafi, Esq. TYCKO & ZAVAREEI LLP 483 Ninth Street, Suite 200 Oakland, CA 94607 Telephone: (510) 254 6808 E-mail: ksagafi@tzlegal.com - and - Craig L. Briskin, Esq. MEHRI & SKALET, PLLC 1250 Connecticut Ave., Suite 300 Washington, DC 20036 Telephone: (202) 822 5100 Facsimile: (202) 822 4997 E-mail: cbriskin@findjustice.com WELLS FARGO: Sued Over Mortgage Interest Rate-Lock Extension Fees ----------------------------------------------------------------- Keller Rohrback L.L.P., the law firm that filed the first class action lawsuit over the Wells Fargo fake account scandal, on Aug. 28 filed a new class action case alleging the bank wrongly charged residential borrowers fees to extend their mortgage interest "rate locks." Keller Rohrback filed the lawsuit against Wells Fargo & Company, Wells Fargo Bank, N.A., and Wells Fargo Home Mortgage in the Northern District of California on behalf of first-time home buyer Victor Muniz and a proposed nationwide class of similarly situated individuals. The lawsuit alleges that Wells Fargo systematically charged its customers a fee to extend the period that their offered mortgage interest rate was "locked in," even though the Bank caused delays in the closing process. Recent reporting in ProPublica first disclosed the practice, which has been the subject of online complaints, as alleged in the complaint. Wells Fargo has reportedly hired a law firm to conduct an internal investigation and fired several managers who were allegedly involved. The Consumer Financial Protection Bureau is also now reportedly investigating the practice. "The same profit-over-people culture that fostered Wells Fargo's fake account scandal appears to have led the bank to stick borrowers with unwarranted fees," said Derek Loeser -- dloeser@kellerrohrback.com -- a partner with Keller Rohrback L.L.P. in Seattle. "Mr. Muniz and we hope to hold the bank accountable." Here is how the practice works, according to the complaint, which is based on publicly available information and Keller Rohrback's investigation: When a customer approaches a bank for a home loan or to refinance an existing loan, banks and consumers often agree to "lock in" a stated interest rate for a set period of time; usually for 30 to 90 days. If paperwork or other delays prevent the closing of the loan and that period expires, the period can be extended. If the reason for the delay was the borrower's fault, the banks will often charge the borrower a fee to extend the rate-lock period. But if the delay is the bank's fault, the bank is supposed to absorb the cost of extending the rate-lock period. The complaint alleges that Wells Fargo regularly and systematically charged borrowers with unwarranted rate-lock extension fees when the closing delays were the fault of the bank, and that Wells Fargo managers pressured employees to find any excuse (even potentially manufacturing an excuse) to blame the borrowers for the delays. Borrowers often found themselves in the difficult position of paying these unjustified fees or risk not closing on a home, or paying a higher rate. The complaint includes claims under the federal Real Estate Settlement Procedures Act, Truth in Lending Act, and state common law and statutory consumer claims. According to a whistleblower letter attached to the complaint, the practice has cost borrowers millions of dollars in the Los Angeles area alone. If you believe that you may have been improperly charged a fee to extend a lower interest rate by Wells Fargo and want to learn more about your rights call attorney Matthew Preusch at (800) 776-6044 or via email at consumer@kellerrohrback.com to discuss your potential legal claims. About Keller Rohrback L.L.P. Keller Rohrback L.L.P. -- http://www.krcomplexlit.com-- is a consumer-rights class-action law firm with offices in 6 locations. [GN] ZB NA: Referral Bid Hearing in "Evans" Suit Continued to Oct. 2 --------------------------------------------------------------- In the case captioned RONALD C. EVANS, an individual; JOAN M. EVANS, an individual; DENNIS TREADAWAY, an individual; and all others similarly situated, Plaintiffs, v. ZB, N.A., a national banking association, dba California Bank & Trust, Defendant, Case No. 2:17-cv-01123-WBS-DB (E.D. Cal.), Judge William B. Shubb of the U.S. District Court for the Eastern District of California (i) continued the hearing on the Defendant's Referral Motion from Sept. 18, 2017 at 1:30 p.m. to Oct. 2, 2017, at 1:30 p.m.; and (ii) moved the Defendant's deadline to file a reply to any opposition to the Referral Motion on or before Sep. 25, 2017. On May 26, 2017, the Plaintiffs filed the Class Action Complaint against CB&T. On May 30, 2017, they served the Summons and the Complaint upon CB&T via personal service. The deadline for CB&T to file and serve its answer or otherwise respond to the Complaint was initially June 20, 2017. On June 12, 2017, the Court entered an Order granting the Parties' Stipulation to extend CB&T's Response Deadline to July 31, 2017. On July 24, 2017, CB&T filed a Motion to Refer this Class Action Complaint to the Honorable Robert S. Bardwil in the U.S. Bankruptcy Court for the Eastern District of California pursuant to 28 U.S.C. Section 157(a) and the Court's General Orders 182, 223, and 330. The Referral Motion was initially scheduled to be heard by the Court on Aug. 21, 2017 at 1:30 p.m. The parties stipulated to continue the hearing date to Sept. 18, 2017, at 1:30 p.m., with the Opposition to the Referral Motion to be filed on Aug. 28, 2017, and the Reply to be filed on Sept. 11, 2017. In another action filed in Sacramento Superior Court involving the same purported Ponzi scheme, JTS Communities, Inc., et al. v. ZB, N.A., et al. action, CB&T removed the case to U.S. Bankruptcy Court for the Eastern District of California, Judge Bardwil presiding. On Aug. 3, 2017, Judge Bardwil issued an order remanding the JTS Action to the Sacramento Superior Court. The Parties are meeting and conferring regarding whether Judge Bardwil's ruling in the JTS action has any bearing on CB&T's Referral Motion in this action, and whether CB&T may withdraw its Referral Motion. Thus, they agree to the following schedule with respect to the Referral Motion while the parties continue to meet and confer as to whether ZB, N.A., will withdraw its Referral Motion: a. the Plaintiffs will file and serve their opposition, if any, to the Referral Motion on or before Sept. 11, 2017; b. CB&T will file and serve its reply to any opposition to the Referral Motion on or before Sep. 25, 2017; and c. the hearing on Referral Motion will be continued from Sept. 18, 2017 at 1:30 p.m. to Oct. 2, 2017, at 1:30 p.m. To allow time for the Court to hear and determine the Referral Motion in the event that it is not withdrawn by CB&T, the Parties agree to further extend CB&T's Response Deadline such that CB&T will have until 20 calendar days after notice of withdrawal of the Referral Motion or notice to the Parties of the Court's entry of its written order ruling on the Referral Motion, whichever is first, in which to file an answer or otherwise respond to the Complaint. This deadline will apply regardless of whether the Court retains jurisdiction, or refers all or part of the case to the Bankruptcy Court. Judge Shubb approved the parties' Stipulation. A full-text copy of the Court's Aug. 25, 2017 Second Stipulated Order is available at https://is.gd/dosycz from Leagle.com. Ronald C. Evans, Plaintiff, represented by Robert Curtis -- rcurtis@foleybezek.com -- Foley Bezek Behle Curtis LLP. Ronald C. Evans, Plaintiff, represented by Kevin D. Gamarnik -- kgamarnik@foleybezek.com -- Foley Bezek Behle and Curtis LLP & Aaron Lee Arndt -- aarnt@foleybezek.com -- Foley Bezek Behle & Curtis, LLP. Joan M. Evans, Plaintiff, represented by Kevin D. Gamarnik, Foley Bezek Behle and Curtis LLP & Aaron Lee Arndt, Foley Bezek Behle & Curtis, LLP. Dennis Treadaway, Plaintiff, represented by Kevin D. Gamarnik, Foley Bezek Behle and Curtis LLP & Aaron Lee Arndt, Foley Bezek Behle & Curtis, LLP. ZB, N.A., Defendant, represented by Robert Scott McWhorter -- robert.mcwhorter@leclairryan.com -- Buchalter, A Professional Corporation. * Class Actions Deter Corporate Misconduct, Draft Paper Says ------------------------------------------------------------ Alison Frankel, writing for Reuters, reports that Vanderbilt law professor Brian Fitzpatrick has impeccable conservative credentials. After graduating first in his class from Harvard Law School, he clerked for Judge Diarmuid O'Scannlain of the 9th U.S. Circuit Court of Appeals, a Reagan appointee, then for U.S. Supreme Court Justice Antonin Scalia. Mr. Fitzpatrick was a corporate lawyer at Sidley Austin before he entered academia. Based on that history, you would expect Mr. Fitzpatrick to be a class action stickler, if not outright skeptic. But in a recently published draft paper, "Do Class Actions Deter Wrongdoing?", Mr. Fitzpatrick not only argues that the primary justification of class actions is to deter corporate misconduct -- in contrast to recent conventional conservative wisdom that class actions are intended to be merely a procedural vehicle to promote litigation efficiency -- but that the admittedly scant empirical evidence shows the cases do, in fact, serve that purpose. (The paper is a shortened version of a chapter in Mr. Fitzpatrick's soon-to-be- published book, "The Conservative Case for Class Actions.") "The theory of deterrence remains just as strong today as it was when it was introduced 50 years ago by the 'classical' law and economics movement," Mr. Fitzpatrick wrote. "Moreover, although there is not a great deal of empirical evidence to support the theory for class actions, there is some, it is uncontroverted, and it is consistent with reams and reams of empirical evidence in favor of deterrence for individual lawsuits. In short, I think the conventional view that the class action can be justified by the deterrence rationale alone remains sound." Mr. Fitzpatrick's paper is remarkably good at laying out the theory of deterrence, as well as criticism of the theory, without resorting to jargon. You really can't do much better than his opening paragraph to summarize debate over the purpose and practicality of class actions: "When the claims at issue in a class action are small, as they usually are in the United States, it is unlikely that any litigation efficiency is gained because there would be no individual litigation at all in the absence of the class action," he wrote. "This leaves us with compensation and deterrence. But the class action is not known for its success at delivering compensation to class members; sometimes it does it well -- and it may get better as technology improves -- but, in the run-of-the- mill case, only a small percentage of victims are made whole. None of this has bothered me or many other scholars because we have always pointed to the deterrence virtue of the class action, arguing that alone is enough to justify the class device." Underlying that theory, he explains (with copious footnotes showing his mastery of class action scholarship) is the assumption that corporations act rationally. When they face the prospect of punishment, in the form of a class action, they are less likely to misbehave. That seems obvious but critics, as Fitzpatrick explains, have raised two arguments against the theory. First, corporate officers may not be deterred because they're not held personally responsible in class actions and second, class action litigation is too inherently unpredictable for corporations to predicate behavior on the risk of being sued. Mr. Fitzpatrick knocks back both theories. Corporations hire rafts of lawyers to advise them on litigation risk, he said, and if we were to assume that officers and directors are not influenced by class action risk, then we have to assume their conduct is unaffected by any prospective reaction. "If class action lawsuits can't deter corporate misconduct . . . then nothing else that costs the corporation money can either," he wrote. "Thus, if we contend that class action lawsuits are failures, then we have to admit that other lawsuits and the market feedback loops are, too. But no one wants to admit all that." Mr. Fitzpatrick is such a good writer that you don't really get a sense of the roiling controversy over the very idea that deterrence is a legitimate justification for class actions. In a phone interview, Fitzpatrick told me that the Rules Committee that drafted modern class action rules in the 1960s didn't really contemplate corporate deterrence through small-dollar consumer class actions. (In fact, he said, committee members were focused on their concern that the class action vehicle would unduly favor defendants, which just goes to show that even very smart lawyers aren't good prognosticators.) Mr. Fitzpatrick argues that if you accept the proposition that corporations shouldn't be allowed to extract even small amounts of money from hoodwinked consumers, then class actions are actually a conservative way to make sure they don't. The other options are to provide no vehicle to litigate small-dollar claims, thus allowing businesses to steal from customers, or to rely on the government to enforce corporate honesty. I suggested that perhaps we can rely on the market to punish deceptive businesses; Mr. Fitzpatrick said class actions act as a megaphone to amplify warnings to consumers. That point brings me to Mr. Fitzpatrick's empirical evidence that class actions influence corporate behavior for the better. His first conclusion is that consumers benefit from injunctive relief corporations grant in class action settlements. Roughly speaking, a quarter of class settlements include an injunction. As Fitzpatrick acknowledges, there's considerable debate over whether those injunctions are worth the paper they're printed on (let alone the hundreds of thousands or even millions of dollars in legal fees for plaintiffs' lawyers.) He concludes, however, that in the dozens of cases in which he has served as an expert witness and examined the merits of injunctions, "none of the provisions . . . were toothless." Class action reformer Ted Frank, who will be debating Fitzpatrick at an American Bar Association conference in October, has a much dimmer view of the merits of injunctions. (As you may recall, the 7th Circuit sided with Mr. Frank on Aug. 25 when it tossed an injunction-only settlement in a "worthless" class action accusing of Subway of falsely advertising its foot-long sandwiches.) "When there is a meaningless injunction, the corporation is either getting away with something or being penalized by the class action system," said Mr. Frank, who accuses Fitzpatrick of confirmation bias. "If the system isn't adequately distinguishing between good corporations and bad ones . . . it is exactly backward." (Fitzpatrick, noting that two other federal circuit courts have recently affirmed injunctive settlements in which Frank represented objectors, said he has looked at all of the injunctions Mr. Frank specifically cited as meritless in a recent paper and found many of them were legitimate. "Just because Ted Frank thinks something is toothless doesn't mean it is," Fitzpatrick said. "When the federal judiciary hears and thoughtfully rejects his arguments, I don't think we can count those injunctions as toothless.") A bigger question than the specific deterrence a particular injunction might provide is the generally cautionary impact of the prospect of the prospect of a class action. Mr. Fitzpatrick cites copious empirical evidence that the threat of individual suits makes prospective defendants more careful but said a half-dozen studies find the same correlation between corporate conduct and the risk of facing a class action. One study examined the market for white bread to distinguish the disparate deterrent effects of government and private antitrust enforcement. It concluded that white bread makers seemed to be more wary of class actions than government enforcement. The other studies generally found corporations made more robust disclosures to shareholders when they faced greater risk of securities class actions. "Although these studies of class actions and deterrence are not numerous, they are unanimous: Class action lawsuits generate general deterrence," Mr. Fitzpatrick wrote. Ms. Frankel asked Mayer Brown's Andrew Pincus, who frequently represents class action detractors, what he thought of Fitzpatrick's argument. Like Mr. Frank, Mr. Pincus said the professor didn't pay enough attention to the impact of unwarranted class actions. "The article skillfully avoids the critical question relating to general deterrence," Mr. Pincus said in an email. "Of course companies are aware that they may be subject to class actions -- that's inevitable for anyone doing business in today's world. But the deterrence argument works only if companies believe that lawful conduct will not trigger class action suits that impose high costs. That just isn't true: Because class actions are almost never decided on the merits, the system does not filter out legitimate from illegitimate claims . . . Class action costs and settlement liability are the unavoidable cost of doing business, present no matter what steps a company takes to comply with the law, and therefore have no beneficial deterrent effect." Mr. Fitzpatrick's paper and upcoming book obviously aren't going to be the last word on class action efficacy. But he's putting out provocative ideas and backing them up with evidence. Let the debate rage on! [GN] * Trump Administration Fights Class Action Provision in BICE ------------------------------------------------------------ Greg Iacurci, writing for Investment News, reports that the Trump administration delivered a clear signal it aims to kill one of the most hotly contested parts of its fiduciary rule -- the provision about class-action lawsuits. Beginning Jan. 1 or July 2019 if the DOL delays that implementation date -- financial advice firms will have to enter into a contract with retirement savers if the firm receives variable compensation, such as commissions, when delivering investment advice. The contracts cannot waive investors' right to bring class-action litigation against the financial institutions. The Trump administration is currently reviewing the Obama-era rule, and the possibility of this provision going away raises a number of important questions and takeaways for broker-dealers and registered investment advisers. Will the best-interest contract stay or go? The contract, which affirms a broker or adviser is giving investment advice in an investor's best interest, is the rule's primary enforcement mechanism. The contract is part of the best-interest contract exemption, a section of the rule allowing firms to receive variable compensation if they meet certain conditions. Attorneys generally believe there will be some sort of contract requirement associated with BICE. If there were, enforcement of the rule's provisions would likely come via individual arbitration if an investor felt he or she didn't receive advice adhering to the contract's terms. Firms would most likely insert mandatory-arbitration clauses into these contracts. Absent a contract, most individual retirement account holders wouldn't have an enforcement remedy under the rule if they felt an adviser breached his or her fiduciary duty, said Andrew Oringer, co-chair of the employee benefits and executive compensation group at Dechert. If there's no contract, the DOL will likely completely re-jigger BICE, said Jason Roberts, CEO of Pension Resource Institute, a compliance consulting firm. While this is something for which rule opponents have lobbied, it could represent a be-careful-what-you-wish-for type of scenario - while BICE is challenging from a compliance standpoint, it's expansive in terms of admissible conduct and activity for firms and brokers, Mr. Roberts said. A replacement exemption might be less flexible. "It'll be harder to live in that world than the BICE world from an adviser perspective," he said. 401(k) participants can still bring class-action claims Doing away with the class-action provision won't eliminate the ability of 401(k) participants and participants in other retirement plans governed by the Employee Retirement Income Security Act of 1974 to file class-action litigation. That mechanism has been available to participants since ERISA's inception. It's the same mechanism under which participants have been suing employers for excessive 401(k) fees. The fiduciary rule's first phase of implementation, which began June 9, broadened the definition of who is an ERISA fiduciary. So, thousands more advisers and their firms are, as of June, subject to this ERISA litigation risk. Those at risk are advisers providing employer-level advice on the investment lineup of a 401(k)s with less than $50 million in assets, as well as those advising individual participants on their investments, said Joshua Lichtenstein, an attorney in the tax and benefits department at law firm Ropes & Gray. Rollovers still aren't safe Advisers and firms soliciting rollovers from 401(k) participants are subject to this same class-action-litigation risk. ERISA covers this sort of recommendation because 401(k) money is involved in the solicitation, and plan participants can bring suit. May make BICE more attractive Removing the class-action provision from BICE "could make the BICE more appealing than other exemptions that could be available," Mr. Lichtenstein said. "This really could shift the balance." For example, some firms had been considering an alternative exemption called 408(g) in place of operating under BICE, attorneys said. 408(g) is a section of ERISA that predates the fiduciary rule, and applies to level-fee advisers (or, those whose fees don't vary based on their investment advice). But, not many, if any, firms currently comply with 408(g) in order to provide investment advice due to the compliance requirements involved with it, such as an annual audit, Mr. Lichtenstein said. 408(g) makes the most sense under the fiduciary rule for firms with affiliated investment products, such as broker-dealers owned by asset managers or insurance companies, Mr. Roberts said. "We have some clients using that in cases where it makes sense," he said. However, it's a "very limited exemption," and doing away with BICE's class-action provision would likely make BICE a more appealing alternative, he added. Attorneys less likely to bring litigation Taking away class-action litigation would probably greatly reduce attorneys' appetite for pursuing a breach-of-contract claim on behalf of an individual investor. "The practical reality is that a plaintiff's layer interested in pursuing this is much less likely to want to pursue 30,000 separate claims than one single claim covering 30,000 people," Mr. Oringer said. Morningstar senior equity analyst Michael Wong had earlier this year estimated the brokerage industry should expect to absorb between $70 million and $150 million annually in class-action litigation costs. Of course, the fiduciary rule's trajectory will likely play out over several years. If the Trump administration ultimately amends the Obama-era regulation, and attempts to remove the class-action provision, proponents of the rule may challenge the decision in court. [GN] * Trump Targets Class-Action Right in DOL Fiduciary Rule -------------------------------------------------------- Mark Schoeff Jr., writing for Investment News, reports that even before the Labor Department has finished its review of its fiduciary rule, the Trump administration has made clear that it is targeting a part of the measure that would make it easier for investors to pursue class-action lawsuits against financial advisers. The latest evidence is a DOL Field Assistance Bulletin released on August 30, that said that the agency would not bring enforcement actions against advisers relying on exemptions in the measure if they include class-action bans in retirement account contracts. The bulletin, which mentions that the Trump administration is no longer opposing class-action bans in a Supreme Court case, comes shortly after the DOL said in a brief for a lawsuit against the fiduciary rule that the class-action provision would "likely be mooted in the near future." The class-action provision is part of the best interest contract exemption that would allow brokers to receive variable compensation for investment products they put in individual retirement accounts as long as they sign the legally binding agreement to act in their clients' best interests. Also on August 30, the DOL released a proposal to delay implementation of the contract and two other exemptions from Jan. 1, 2018, to July 1, 2019. It's not clear how much of the rule the DOL is going to change under a directive from President Donald J. Trump to reassess the rule. If the best-interest contract survives in some form, financial firms could still face significant liability risk. Joshua Lichtenstein, an associate at the law firm Ropes & Gray, noticed this line in the preamble of the delay proposal: "IRA owners, who do not have statutory enforcement rights under ERISA [the federal retirement law] would be able to enforce their contractual rights under state law." Although the Trump administration may not want investors banding together in a legal action, it might not be opposed to state cases. "It seems like a clear intent to shift the enforcement mechanism away from class-action lawsuits toward state-law breach of contract claims," Mr. Lichtenstein said. "The actionable claims could differ from state-to-state. That could mean some behavior is a breach of fiduciary duty to an IRA in one state but not in another." When it comes to class actions, the Financial Regulatory Authority Inc., the broker-dealer self regulator, still looms. In Finra arbitration, class action waivers are banned. Presumably, a group of retirement investors who think their broker has committed a fiduciary violation would be able to pursue a class-action through the Finra system. "Finra views [allowing class actions] as a reasonable step to protect investors," said George Friedman, an adjunct law professor at Fordham University and a former Finra director of arbitration. "I don't see the delay in the DOL rule having any effect on their thinking." The DOL's decision not to enforce class-action waivers is still significant because the fiduciary rule would make IRA class actions possible, according to Marcia Wagner, managing director of The Wagner Law Group. "You very, very infrequently see class actions with IRAs, and if this is the position of the administration, that will continue," Ms. Wagner said. "It may be a signal that when this regulation is modified there won't be a private right of action for class action lawsuits as part of the exemption." It's almost a certainty that class-actions will drop out of the DOL fiduciary rule. The question is how much of its legal bite will remain. [GN] Asbestos Litigation ASBESTOS UPDATE: Defendant Argues It Was Sued for Ransom -------------------------------------------------------- The Madison County Record reported that Fifth District appellate judges must ponder how much evidence a plaintiff needs to sue a defendant, in the context of a Madison County asbestos suit that the Gori Julian firm filed against more than 100 companies. Avocet Enterprises wants the Fifth District to sanction Gori Julian under a Supreme Court rule requiring a complaint to be well grounded in fact. Associate Judge Stephen Stobbs denied sanctions as moot in April, finding Gori Julian client Theresa Causey dismissed claims against Avocet in March. In Avocet's appeal brief on Aug. 3, David Chizewer of Chicago wrote, "The closing of a case does not have any bearing on whether sanctions should be awarded." "Plaintiff named Avocet without any good faith basis, intending only to harass Avocet into a decision to settle the case rather than incurring the fees and costs to defend. "Plaintiff completely failed to provide any facts whatsoever from which one could infer that Avocet was responsible for plaintiff's asbestos exposure. "This failure was not an innocent oversight." He wrote that Gori Julian added Avocet to suits by "a habit, if not an addiction." "Plaintiff's counsel has sued Avocet in more than 400 similar cases and, like this case, all but four of those cases resulted in dismissal without liability and without a single dollar in settlement payments," Chizewer wrote. He alleged "a conscious and repeated effort to hold Avocet hostage to the byzantine world of asbestos litigation and to then seek its settlement ransom." He wrote that defending baseless suits has cost Avocet $720,000. Gori Julian filed suit for Causey in 2013. She administers the estate of her father, Thomas Griffith of Raymond, Miss. According to the complaint, he was an electrician and fireman for the U.S. Coast Guard from 1950 to 1961, and a merchant marine from 1963 to 1994. Stobbs set a trial date for this March 13. On Feb. 1, Chizewer sent Gori Julian a demand that it dismiss all claims against Avocet unless it could provide a specific factual basis for liability in each case. According to Avocet, Gori Julian didn't respond. On Feb. 7, Avocet counsel Timothy Hayes of Chicago moved to dismiss Causey's complaint. Hayes wrote that the complaint "fails to allege particular dates, job sites or products as to Avocet, as required by Illinois case law establishing pleading requirements for cases alleging injury due to asbestos exposure." He moved on the same date for summary judgment, writing that Causey failed to adduce any evidence of Griffith's exposure to asbestos associated with Avocet. The suit did not proceed to trial on March 13. On March 22, Chizewer moved for sanctions. "Any reasonable inquiry would have revealed that Avocet has no connection to the alleged asbestos exposure and no liability," he wrote. He wrote that naming Avocet was part of an unapologetic and systematic abuse of the legal system. "A simple visit to Avocet's website would have revealed that Avocet is a relatively small company in Chicago, and the nature of its products make it almost impossible that it would have wound up on a ship," Chizewer wrote. Next day, Causey dismissed her claim against Avocet. On April 7, with a hearing on sanctions about to start before Stobbs, Erin Beavers of Gori Julian filed an objection. She wrote that Griffith died a year before the case was filed. "With resources limited by this time frame, plaintiff's counsel had to determine the best and most likely asbestos companies whose products led to Mr. Griffith's death." Griffith wrote that Avocet was one of them. She wrote that Causey's counsel formed the belief after reasonable inquiry. "Avocet holds the liability for producing an asbestos flexible connector," she wrote. "This connector is connected to dampen and reduce vibration of ducted heating and cooling systems." She wrote that if a client installed or repaired heating, ventilating, and air conditioning systems, or if a client worked with sheet metal or tin, "there is a high probability of exposure to asbestos from flexible duct connectors." "It should be noted that defendant Avocet's product line previously included a material called Ventbestos, which was comprised of 80 percent asbestos," she wrote. She wrote that when counsel was unable to obtain evidence to support the burden of proof against Avocet, the case was concluded. "Securing a dismissal for a defendant does not mean that a good faith basis did not exist at time of filing a complaint against that defendant," she wrote. At the hearing, Chizewer told Stobbs he practiced law in Illinois for 26 years and believed it was his first sanctions motion. "We do not file sanctions motions lightly," he said. "There is not a single allegation in the complaint that says Avocet had anything to do with ship building or that their products were ever used on ships." He said the approach in their brief was that they are permitted to name Avocet without any basis and it's up to Avocet to explain why they don't have liability. He said dismissal didn't moot the sanctions motion. Stobbs said, "For purposes of this motion I'm going to find that it does moot it." Chizewer persisted, saying he cited cases explaining that a plaintiff can't moot a sanctions motion with a dismissal. Stobbs said he'd let Beavers make an argument. She said, "We typically have very good ship records in Navy cases but do not have very good ship records in the Coast Guard and merchant marine ships." She said Gori Julian named Avocet in fewer than 15 percent of cases since 2008, and named it in three percent of cases last year. She said that wasn't evidence of abuse or indiscriminate naming. Chizewer said, "None of the facts that were just laid about Avocet, not even a single one of them, is in their complaint." He said they were free to say things but they didn't allege them or prove them. Stobbs denied the motion and began rambling. "Plaintiff isn't in a position to amend the complaint to allege the things that you say weren't alleged, which of course they could if the case was still open," he said. "I guess we'd have to, you know, consider your motion in light of what could have been an amended complaint, but the case has been ordered closed, and so I don't see the need for monetary sanctions. "The point that there should be some representation in the complaint that your company is in some way responsible for the plaintiff's injuries and, you know, give sufficient facts that would give rise to knowledge or, you know, information as to your alleged responsibility, there probably should be something in there that would give me notice of the nature of the claim, you know, as would pertain to your client, so I think that's a point well taken and, you know, could be considered as we move forward." In Avocet's appeal brief, Chizewer argued that Gori Julian violated a Supreme Court Rule providing that an attorney's signature constitutes a certificate that a document is well grounded in fact and warranted by law. "Avocet recognizes that it is often difficult for a plaintiff to know precisely who caused the asbestos exposure, and in any event, many of the liable parties are defunct," Chizewer wrote. "But the courts have not created an exemption to the pleadings standards that would permit counsel for asbestos plaintiffs to name repeatedly the same defendants, and over 100 others, in every asbestos case, without any factual predicate." He wrote that Stobbs's consideration of what could have been in an amended complaint was clear error that should be reversed. "It is not contested that plaintiff's complaint contained no facts whatsoever from which to infer that defendant Avocet could possibly be liable for the alleged asbestos exposure," Chizewer wrote. He wrote that Stobbs recognized the complaint was defective in that regard. "Illinois courts readily award sanctions where plaintiffs include the wrong defendants out of laziness, or simply to add a deep pocket," he wrote. ASBESTOS UPDATE: Concerns Raised About Asbestos Exposure at Hotel ----------------------------------------------------------------- Scott Stevenson, writing for CBC News, reported that a renovation project at a northwest Edmonton hotel has drawn safety concerns from some employees due to the handling of asbestos removal. The employees say construction work continued at the New West Hotel despite a stop-work order issued by Occupational Health and Safety. The hotel, located at 15025 111th Ave., has been a fixture in northwest Edmonton since opening in 1954. "Apparently some of that project includes asbestos abatement and certainly we're aware of that site and we're aware of some of the concerns expressed," said Alberta Labour ministry spokesperson Trent Bancarz. Stop-work orders issued Bancarz initially told CBC News that an inspection was carried out on July 5 but no stop-work order was issued. But a source provided CBC with documents showing Occupational Health and Safety did issue a stop-work order on that day. Alberta Labour has since confirmed that a stop-work order was issued to the hotel on July 5 because there had been no testing for asbestos. The order was lifted Aug. 18 after testing confirmed there was asbestos and an asbestos abatement company, C.G.A. Environmental Construction, was hired. But another stop-work order was issued to C.G.A. Environmental Construction on Aug. 23 due to ventilation issues. CBC News was contacted by a number of people associated with the hotel about possible health and safety infractions. Health Canada says breathing in asbestos fibres can cause cancer and other diseases. 'Disorganized, unhealthy, and unsafe' Rebecca Grant, who worked as a housekeeper at the hotel until recently, said renovation work was carried out after the initial stop-work order was issued on July 5. "They kept busting drywall after the stop-work order was in place," she said. "It was my job to clean the rooms they had renovated." Grant describes the renovation site as "disorganized, unhealthy, and unsafe." She claims after a month on the job her health began to suffer. Three weeks ago she had enough and quit. Ortona Armouries renovation leaves uncertain future for artists "It was making me sick. I'd go into work and I'd have a really hard time breathing as soon as I hit the upstairs," Grant said. "I have asthma. So I decided I had to quit because of the work conditions. I mean, you could see the shiny, crystallized dust particles in the air." The 31-year-old mother of two is now unable to pay her rent without an income, she said. She's angry more wasn't done to ensure the safety of employees and guests. "It made me feel less than important," she said. "I needed the job. I'm getting back up on my feet in my own personal life." Grant said the experience has left her with a harsh, lingering cough and a bad taste in her mouth. "To work in a place with those types of conditions and lack of respect for the workers, it's just better for me to cut my losses," she lamented. "I'm not going to subject myself to getting physically sick." Her safety concerns were shared by Warner Stevenson, who has worked as a maintenance man at the hotel for four years. Stevenson said he was told to continue doing work connected to the renovations despite the stop-work order issued by the province on July 5. He's currently on stress leave. "It just got to be too much, mentally and physically too much" said Stevenson. "They're just not going about it the right way. They're not getting permits. The hotel is full of asbestos." Stevenson told CBC News he only learned about the asbestos during a recent inspection by OHS. He's now getting his lungs tested to see if there's any damage. Stevenson said he would also like OHS to take more action. "They should tighten things up," said Stevenson. "When there's a stop-work order they should go in and make sure it's actually stopped." 'Anybody in the hotel can be affected with it' A man who teaches federal government employees about occupational health and safety issues also said renovation work continued at the hotel after the stop-work order was issued in July. He didn't visit the site in any official capacity, but says he was concerned by what he saw. "I've gone in at different times of day and nights and you can hear banging and stuff being ripped out," said the man, whose identity CBC agreed to keep confidential. "The construction would go on later at night. Some of the tenants upstairs in the rooms were saying 'Oh yeah, they've been working up here 10, 11 o'clock at night.' " The man told CBC he saw no proper asbestos abatement measures in place at the site. "You seal off the area, you put ventilation fans there, you wear a mask and gloves. None of the workers upstairs were wearing any of that stuff. I didn't see any of it around at all," he said. He also said he observed a large amount of possibly contaminated construction debris being thrown directly into bins outside the hotel where anyone could be exposed. In her father's name: Edmonton woman campaigns for asbestos ban "I didn't go in to touch it to see if it was asbestos or just old insulation, but it was just thrown into the garbage bins outside the hotel," he said. "There were hordes of plywood, two-by-fours, insulation and whatever else." The man said he called Occupational Health and Safety a number of times due to safety fears for employees and guests. "For the residents still living in the rooms upstairs, if the dust gets into a fine powder and gets into the ventilation system, anybody in the hotel can be affected with it," he warned. "It may be five or 10 years before you could get sick, right? It doesn't show up right away." When asked if hotel staff or guests were ever at risk, Alberta Labour spokesperson Shirley Lin wrote in an email: "We can't speak to what happened before OHS was onsite. We suggest you follow up with the building owner. The stop-work order was issued to protect workers." The hotel owner did not respond to repeated requests for an interview. CBC also attempted to contact C.G.A. Environmental, the asbestos abatement company that was hired after the initial stop-work order, but was unable to find any contact information for the business. ASBESTOS UPDATE: Asbestos Costs Dunedin Hospital $5.5MM ------------------------------------------------------- Eileen Goodwin, writing for Otago Daily Times, reported that the cost of dealing with asbestos has reached almost $5.5million at Dunedin Hospital as an internal report reveals it took at least 10 days to change a light fitting. The financial figure provided by the Southern District Health Board includes almost $2million for a retrofitted air-conditioning system in the radiology department. It is needed because the ceiling area cannot be accessed to service the air conditioning. The figure reflects the cost of dealing with the problem since an October 2015 asbestos scare. Released under the Official Information Act, building and property reports from earlier this year show pressure on staff, safety concerns, urgent requests for funding and support, and warnings of clinical disruption. Staff were monitoring dozens of affected areas, and in some cases struggled to cover their other duties. The reports reveal the air testing result in the now off-limits records room at the hospital was 75% positive. A light failed in part of an operating theatre. It would normally be fixed in an hour or less. "Due to asbestos precautions such as building and testing a three- stage decontamination tent for access, the repair has so far taken 10 days." The work was mainly done out of hours. "However, in the future there may be repairs which simply cannot be completed due to access issues, or areas which need to close because the faulty equipment is essential to the operation of that area. "Those delays . . . cause additional cost, work for [building] staff and disruption to hospital departments." The reports talk about safety concerns for staff working in full protective gear in hot, asbestos-affected plant rooms. The building and property team requested funding to decontaminate the plant rooms, which was approved. "Failure to undertake this work will impact on several other DHB projects, including critical electrical upgrades." A temporary tunnel had been constructed in one plant room to enable safe access to the helipad for staff to transfer patients. The facilities team leader was "basically working full-time on asbestos management", leaving little time for other work. Yesterday, chief executive Chris Fleming said senior staff were considering recommendations in an independent review of its handling of asbestos. It was likely to lead to improvements. He was not ready to release the report, but would in due course. Mr Fleming said it was not feasible to move or copy the records, and access was managed on a case-by-case basis. "The records room remains a very difficult problem to have, because there are so many records in there." ASBESTOS UPDATE: Man to Sue Former Employer Over Exposure Claim --------------------------------------------------------------- Steven Rae, writing for Dundee Born and Read Evening Telegraph, reported that a dying Tayside man is suing his former employer after claiming he was exposed to asbestos at work and became terminally ill as a result. Alexander Darling, of Muirend Road, Perth, has raised the action against A&J Stephen Ltd of the Fair City's Edinburgh Road. Mr Darling, 69, a former joiner who worked for the construction firm in the 1960s and 1970s, has claimed he was exposed to asbestos due to the nature of his work and the lack of adequate health and safety measures to protect employees. Mr Darling has mesothelioma, a fatal, asbestos-related type of cancer. The action has been raised against his former employer and their insurers. The first calling of the case was heard at the Court of Session in Edinburgh. A spokesman for Digby Brown Solicitors in Edinburgh, who are representing Mr Darling, said: "A key point in cases of this nature is that we will make the legal argument that the employers were aware of the dangers of asbestos to individuals' health by this time, but were not properly protecting them from these dangers. "The next stage in the case will likely call later this year, around the start of November, though it is always possible that cases of this nature will settle out of court." Mesothelioma is a type of cancer that develops in the lining that covers the outer surface of some of the body's organs and kills about 2,500 people each year in the United Kingdom. It mainly affects the lining of the lungs, although it can also affect the lining of the stomach, heart or testicles. More than 2,600 people are diagnosed with the condition each year in the UK. Of those, about 50% will live at least a year after diagnosis, and about one in every 10 with will live at least five years after diagnosis. A&J Stephen Ltd has been approached for comment but had not responded at the time of going to press. Mr. Darling could not be reached for comment. ASBESTOS UPDATE: Atty Loses Restitution Appeal ---------------------------------------------- Andrew Strickler, writing for Law360, reported that a New Jersey lawyer jailed for inserting made-up clients into asbestos complaints to rack up more than $1 million in extra defense fees and other costs lost an appeal of a decision denying his challenge to a restitution order. A Third Circuit panel concluded that an appellate waiver signed by Arobert Tonogbanua, a onetime attorney at Dickie McCamey & Chilcote PC, covered petitions asking a court to correct a fundamentally flawed order, also known as a coram nobis writ. Moreover, even if Tonogbanua's agreement not to challenge his conviction didn't cover a coram nobis, he'd previously passed up a chance to argue that $100,000 shouldn't have been tacked on to his court-ordered restitution. The circuit "is not inclined to relieve Tonogbanua of the consequences of his knowing and voluntary collateral appeal waiver by allowing him now to pursue through coram nobis a challenge to a restitution order whose validity he did not challenge on direct appeal," a unanimous panel said. "We further agree with the district court that the error alleged here is not fundamental in nature," the panel said, affirming an April decision denying the petition. Tonogbanua, a former attorney with the Haddonfield office of Dickie McCamey, pled guilty in 2014 to doctoring copies of more than 100 asbestos complaints in New York to make it look like firm clients were defendants. The scheme generated more than $1 million in bogus fees, costs and settlements and brought him bonuses and increased compensation, prosecutors said. A federal judge last year gave Tonogbanua a two-year stay in prison and ordered him to pay $350,643 in restitution to the firm and others who bore costs from the bogus lawsuits. Tonogbanua, now a federal inmate in Brooklyn, was additionally ordered to pay personal restitution of some $232,000. Despite agreeing not to challenge any aspect of the sentence, Tonogbanua then filed an appeal notice arguing that his counsel should have fought the inclusion of $100,000 in the firm restitution because it was improperly included, according to the order. In its response, the government noted that Tonogbanua's plea deal was favorable -- the firm had claimed direct losses from the fraud of $1.2 million -- and successfully argued that coram nobis was inappropriate in light of the waiver. Tonogbanua then appealed that order. The Third Circuit panel noted that Tonogbanua's lawyer, Michael Miller, had objected at the district court to the inclusion of the $100,000 but then withdrawn that objection, telling the court that he was aware the money had been handed over to two clients, even if the exact reason for that reimbursement wasn't clear. Miller's fear that an evidentiary hearing on restitution might backfire on Tonogbanua was not unreasonable, and Tonogbanua knew that the $100,000 in settlement funds were included in the restitution contemplated by the plea agreement," the panel said. U.S. Circuit Judges Theodore A. McKee, Kent A. Jordan and L. Felipe Restrepo sat on the panel for the Third Circuit. Tonogbanua was represented pro se in the Third Circuit appeal. The government is represented by Mark E. Coyne of the Office of the United States Attorney in New Jersey. The case is U.S. v. Arobert Tonogbanua, case number 17-1815, in the U.S. Court of Appeals for the Third Circuit. ASBESTOS UPDATE: Mobile Police Has $20,000 Asbestos Problem ----------------------------------------------------------- Ashley Knight, writing for WKRG.com, reported that city council gave the Mobile Police Department the green light to use $20,000 to remove asbestos located in their evidence room. The building has been headquarters for police for over 20 years. Manufacturers used asbestos to help strengthen and fireproof various products. Then, it wasn't until 2009 folks found out it is the leading cause of mesothelioma, a type pf cancer. Police Chief Lawrence Battiste tells News 5 they didn't know it was even here until they started on plans to expand the building. At MPD headquarters, two small rooms and one long room is the only space police have to store 20-plus years of evidence. Chief Battiste says they've had to make do with what they had. "Everything is stacked so high, so what we have to do is make some adjustments to where it makes it safe and accessible for our officers," says Battiste. In order to make it safe, they decided they needed to expand. "As we grow as an organization, as we continue to take in new property and evidence, we need the ability to expand," says Police Chief Battiste. But it was during that expansion process that they discovered asbestos. Evidently, the contractor used the material in between the floorboards and the floor tiles. They've removed all evidence from these rooms to get ready for an asbestos abatement that can start immediately, thanks to the city council approving the $20,000 needed to do so. "It gives us the ability to grow our property section because, as an organization, we continue to take in evidence daily," says Battiste. He would like the expansion to last them another ten years at least. Battiste says he has heard no reports of anyone having breathing or health issues due to the asbestos. ASBESTOS UPDATE: Officer Denies Bid to Open Asbestos Proceeding --------------------------------------------------------------- Don Hopey, writing for Pittsburgh Post-Gazette, reported that an Allegheny County Health Department hearing officer denied a request to allow the Pittsburgh Post-Gazette to attend a proceeding that was closed to the public at the request of Ramesh and Vikas Jain, who were appealing a $1.47 million fine for multiple violations of the county's asbestos-removal regulations. The fine -- the largest asbestos-related fine ever levied by the department -- was part of a June 2 enforcement order alleging that more than 130,000 square feet of asbestos floor tile and pipe insulation was illegally removed from multiple buildings on the former George Westinghouse Research and Technology Park corporate campus in Churchill. The Jains, father and son, own the 135-acre property and are in the midst of a multimillion-dollar redevelopment project for which they have a $3.5 million state grant commitment. They have denied the allegations. Although such appeal hearings are normally open to the public, the Jains, who have claimed a financial inability to pay the fine, asked that it be closed. Max Slater, the health department hearing officer, granted that request prior to the initial hearing, which was held Aug. 7. At the continuation of that hearing at the Clack Health Center in Lawrenceville, attorney Maurice Nernberg, who represented the Jains, said the decision had been made to close the hearing and that the Post-Gazette "had no right to be here." But Post-Gazette attorney Frederick Frank challenged the earlier decision to shut out the public, saying the hearing was a judicial proceeding subject to the public's right of access. He argued that the Post-Gazette, as a representative of the public, had both the right to intervene at the hearing and also the right to attend. He said the Jains' request for "secrecy" did not outweigh the public's right to know, and the amount of the fine, the possible endangerment of public health and safety, and the substantial public investment in the redevelopment project all weigh "heavily in favor of the public access." The health department did not oppose the Jains' original request for a closed hearing, and Tuesday, Jason Willis, assistant solicitor for the department's air quality division, said the department wouldn't oppose opening the hearing to the public. Mr. Slater denied the Post-Gazette's motion to intervene and the motion to open the hearing to the public, because, he said, the hearing was half done, both the health department and the Jains has agreed that it would be closed, and it would be "unfair to both parties to open it now." Should the Jains decide to appeal the enforcement order, the decision to close the penalty appeal hearing would not apply to the enforcement order appeal, although the Jains could file a new request to close that hearing. According to the health department enforcement order, the Jains did not have required permits to handle or remove asbestos, workers were not provided with protective clothing or breathing masks when grinding and handling the material, and no precautions were taken to prevent asbestos dust, which can cause cancer, from becoming airborne outside the buildings. In addition, there is no record that the asbestos-containing material was disposed of in an approved landfill. The asbestos-removal work was discovered Feb. 28 by Shawn Jacobs, a certified building inspector for Churchill. The redevelopment project, alternately known as "Shoppes at Pittsburgh Studios" and then "Churchill Crossings," was shut down in May because of the asbestos issue. ASBESTOS UPDATE: Asbestos Concerns at Canon City Middle School -------------------------------------------------------------- Jillian Duff, writing for Mesothelioma.com, reported that Canon City Middle School teachers are concerned for their students' safety as they are starting to return to school. Constructed in 1925, the school building's floors are cracking, and the building in general is falling apart, teachers claim, exposing the school- age children -- along with the faculty, administrators, and staff at the school -- to the dangers of asbestos exposure. "I just worry about their safety, teaching Special Education, we may have kids that are in wheelchairs that it's kind of hard for them to get up to our rooms," said Special Education Teacher Amber Withers. As the building deteriorates, asbestos exposure could occur if the hazardous material gets disturbed. There are federal laws in place to help schools remove asbestos, but before that can be done, the school needs to develop a management plan. According to Superintendent George Walsh, "What each school district is required to do is have an asbestos plan to identify where things are, and we've done that. You don't have to remove it, you have to encapsulate it, and we've done our best to do that." As a result of an act established in the 1980s by the U.S. Environmental Protection Agency (EPA), all management plans must be updated, and new inspections must occur periodically in order to decide if the discovered asbestos should be left as is, encapsulated, or removed by an abatement professional. Custodians are also trained to recognize asbestos and taught how to avoid an episode should it pose a health threat to individuals inside a school. By law, parents can review management plans in place, and if no action is taken to correct any situations shortly thereafter, the local EPA should be notified immediately. As parents send their kids back to school this fall, they should also check out this safety list to see what actions they can take. Students aren't the only factor to consider. In a 1999-2001 study by the National Institute of Occupational Safety and Health (NIOSH) a substantially elevated rate of mesothelioma cancer was found amongst teachers where the only known exposure for each participant was on the job. In May, the Canon City Middle School received a "Building Excellence Schools Today" grant (BEST). BEST is possible because of tax dollars from the commercial sale of marijuana in Colorado, but the Canon City government needs to match the $5 million grant in order to receive it. This November, the district will need voters supporting a property tax increase to get the additional money required. Canon City Middle School isn't the only place where back to school could mean exposing students to asbestos. The Canon City School District says it's even more worried about Washington Elementary, due to a structural study reporting the building would only be safe for five more years. ASBESTOS UPDATE: Houston Floods Raise Risks of Asbestos Exposure ---------------------------------------------------------------- Mesothelioma.net reported that people around the world have their eyes on Houston, reaching out to provide financial and emotional support to those who have lost their homes to historic flooding from Hurricane Harvey, but one thing that is not getting enough attention in these early days is the very real risk of mesothelioma and other asbestos-related diseases in the aftermath of the disaster. Though immediate thoughts turn to what has been lost, and to concerns about mold and water damage, it is important to remember that every natural disaster raises the risk of exposure to asbestos. Asbestos is widely known to be the single cause of mesothelioma, as well as of other serious and sometimes deadly diseases, but most people think of the mineral as having been banned in the 1980s, and no longer a concern to people in their every day lives. Unfortunately, this is not correct. Asbestos continues to be used in the United States, including in the fabrication of drywall and sheetrock in homes. The carcinogenic material is considered to be safe because it was encapsulated with paper covering on both sides of the product. Though this process effectively prevents asbestos fibers from entering the air under normal circumstances, once drywall is damaged or needs to be removed or cut open during renovation or demolition, those fibers can easily become airborne and become a health hazard. Though a licensed asbestos tester or remediation expert would take the appropriate steps under normal circumstances of a home renovation, the widespread damage represented under current circumstances raises the risk that people will undertake these projects on their own, unknowingly risking their long term health in the process. Of chief concern is that untrained, unprotected homeowners will inadvertently expose themselves to asbestos particles: breathing these fibers in can lead to mesothelioma, asbestosis, asbestos- related lung cancer, and other conditions that will only materialize decades after the hurricane itself is nothing but a memory. Houston-area residents are urged to protect themselves and seek professional assistance instead of moving in a way that may provide immediate emotional gratification, but long-term risk. If you or someone you love has been diagnosed with mesothelioma or another asbestos-related disease, you need all the information you can get. Contact the Patient Advocates at Mesothelioma.net at 1- 800-692-8608 for immediate access to the resources you need. ASBESTOS UPDATE: Singla Gets $2,500 Fine for Asbestos Hazard ------------------------------------------------------------ BC Local News reported that a construction and rental housing firm that demolished a house with asbestos inside will pay a total of $3,000 in penalties for the late November incident. Singla Bros. Holdings Ltd. was denied its $500 safety deposit from the City of Penticton, according to building and permitting manager Ken Kunka, but more recently the firm was handed a $2,500 fine from WorkSafeBC. "A large rubble pile was covered by tarps, and there was spilled vermiculite insulation in several areas of the pile," says the WorkSafeBC report posted on its website on Aug. 7. "The hazardous materials assessment conducted for the site had identified the vermiculite as being an asbestos-containing material. The firm's failure to safely contain hazardous materials was a high-risk violation." The firm was initially caught in the act, after it attempted to bring materials from a demolition at 242 Van Horne St. to the Campbell Mountain garbage dump, but was determined not to have followed the city's orders at the time. Singla Bros. Holdings had obtained a demolition permit from the city, which had expired by the time demolitions began. On the permit was an order to properly remove the asbestos before destruction. On Dec. 1, a WorkSafeBC report issued a stop work order, due to "reasonable grounds to believe there is a high risk of serious injury, serious illness or death to a worker at this workplace," according to a report at the time. By Dec. 16, the WorkSafe inspector was satisfied that abatement had been completed. Asked for comment on WorkSafeBC's reasoning for the amount in the fine a spokesperson pointed to their website, which indicates a balance of the severity of the violation, the company's history of violations and the size of the company's payroll. "Penalties can be greater if certain specific factors are present, such as for high-risk or intentional violations, or if the company has received a prior penalty for substantially the same violation in the past three years." Asked if he felt the fine fit the violation, Kunka said he was satisfied with WorkSafeBC's decision. Singla Bros. gave a brief email statement on the issue. "We are working with WorkSafeBC with any projects we have now or in the future. No other comment at this time." Kunka said he is aware of other projects that Singla Bros. Holdings has gotten to work on since the incident, adding that the city is hoping to build up trust with the firm. A new city bylaw At the time, Kunka said the city was looking at ways to mitigate the risks of similar incidents in the future. In an interview this week, Kunka told the Western News they're currently working on a rewrite of the buildings bylaw, which could clean up the language, among other things. In the new regulations, Kunka says rather than issuing a permit with an order to remove hazardous materials, the city will withhold permits until they've received proof that abatement is either unnecessary or finished if the building is older than 1992. "Based on this and another one kind of on the edge of non- compliance, we decided we would be a little more rigorous on the front-end stuff, regarding the paperwork and the remediation," Kunka said. "That will be our mantra from now on: if it's an old building, get the hazard assessment done, you deal with your abatement issues, and then you can come to us and we can move through the demolition process." The other incident involved a firm that began demolishing a building before getting the go-ahead from the city. The new regulations get a bit more complicated when it comes to work being done involving evictions to renovate, which require proof of a demolition permit to legally evict. In a sort of workaround, the city is looking to enter contractual agreements that the city will provide a demolition permit, providing some paperwork proving the intent of eviction is for a cause, but also avoiding handing out the actual permit before demolitions. "Probably two out of 10 demolition permits revolve around renters and ensuring that that process is followed properly," Kunka said, acknowledging the process could incur some confusion. "The more steps you add, the more confusing you get. We've actually been working on a checklist or kind of a flowchart, so, again, somebody asking about a demolition permit, they can actually follow this flowchart." That's part of the key to avoiding issues in the first place -- education. Kunka said the city would rather inform and avoid issues than have to impose penalties after, adding that the city is looking to hold some events with developers to ramp up knowledge of the proper processes. "We want to make sure people are aware of the rules. We can help them through that process. We figure in the way we were laying it out now, it's going to be a really . . . clear process," he said. "As long as they're following the rules, everybody's protected, and things move quickly." ASBESTOS UPDATE: DDT Judge Rejects Claim for Pension ---------------------------------------------------- David Greenhalgh, Esq. -- dgreenhalgh@bartier.com.au -- in an article for Mondaq.com, wrote that on August 22, 2017, Judge Russell of the Dust Diseases Tribunal handed down his judgments in Dib v Amaca Pty Ltd [2017] NSWDDT 6 and Londos v Amaca Pty Limited [2017] NSWDDT 7. The cases were not related to each other, but had an important common issue. These cases have been keenly watched by the asbestos community, as they contained the unusual feature of the plaintiff asserting that he should be entitled to receive damages for the pension he would otherwise have been paid in the "lost years" (the time between his likely date of death, and normal life expectancy). Many of the facts in the cases, and therefore the judgments, are unremarkable. The plaintiffs had no difficulty establishing that they were exposed to James Hardie products, and there were also few unusual features about the mesothelioma from which they both suffered. The course of the disease for the two plaintiffs was slightly different, although each had a life expectancy of about 12 months. Judge Russell awarded each of them $350,000 for general damages, being the same figure as in his recent judgment in Zanetic v Amaca [2017] NSWDDT 5. In relation to domestic care, Judge Russell accepted the views of Joanne Oates, an occupational therapist often relied on by plaintiffs. This resulted in awards for domestic care (including interest) of $189,705 and $141,960 respectively. However, the main distinguishing point of the case was the plaintiffs' claim to be compensated for the pension they would otherwise have received in the lost years. Judge Russell reviewed the Australian authorities, including various High Court judgments, and noted that the focus of those judgments was to award damages for interference with earning capacity, not interference with the ability to receive income from other sources, like the pension. The judge noted that the pension is received without reference to the ability of a person to earn income, or without reference to whether there has been any interference with the ability to earn income. Therefore, Judge Russell rejected the plaintiffs' claim for this head of damage. With one eye on the possibility of an appeal, Judge Russell went on to consider what the plaintiffs' loss would actually have been if this head of damage had been allowed. He relied on information from the Australian Bureau of Statistics about typical living expenses. When also noting the payments to be received from the Dust Diseases Authority, the judge concluded that the plaintiffs would not in fact have suffered a loss, even if they had been allowed to be compensated for the pension they would have been paid if not for the mesothelioma. Comment Notwithstanding the arguments put forward by the plaintiffs -- and the recent acceptance of such arguments in the South Australian District Court, which is subject to an appeal -- it seems to us from first principles that Judge Russell's analysis of the earlier decisions is likely to be correct, and would therefore survive any appeal. Certainly, from the point of view of defendants in the Dust Diseases Tribunal, this result offers a degree of certainty: if compensation for a lost pension had been allowed, then a plaintiff being deprived of income from other sources in the lost years may also have been compensable. In any event, the calculations suggest that the true value of the loss of that pension is negligible, or nil. On the other hand, the fact that Judge Russell has again awarded $350,000 for general damages, and has accepted Joanne Oates' assessment of domestic care in both cases, further reinforces the idea that the long-suspected upward drift of damages in the Tribunal is now definitely under way. ASBESTOS UPDATE: Study Provides Pleural Mesothelioma Risk Plateau ----------------------------------------------------------------- Alex Strauss, writing for Surviving Mesothelioma, reported that another new study has confirmed the idea that pleural mesothelioma risk does not appear to increase indefinitely after asbestos exposure, but instead may eventually hit a plateau. The newest study involved more than 1,800 asbestos cement workers in Pavia, Italy. Researchers in the department of public health at the University of Pavia and the University Eastern Piedmont in Novara computed the mortality ratios for the major causes of death among the workers. Major Causes of Death Among Asbestos Workers Not surprisingly, they found that asbestos workers faced a higher risk of dying from pleural or peritoneal mesothelioma, lung cancer, and asbestosis, all of which have been directly linked to asbestos exposure. In contrast to some other mesothelioma studies, the researchers did not find an elevated risk of laryngeal cancer among the asbestos workers. There was an increase in ovarian cancer deaths, however it was deemed not to be statistically significant. Among the male asbestos cement workers, the risk of contracting pleural mesothelioma appeared to correlate with how long they were exposed to asbestos, but not with how long the disease took to develop (latency period). Mesothelioma has one of the longest latency periods of any cancer, which can last up to 40 years. The Mesothelioma Risk Ceiling Although some previous studies have suggested that, the older an asbestos worker gets, the higher his or her chances are of developing malignant mesothelioma, several newer studies -- including this one -- indicate that this is not the case. Instead, mesothelioma risk appears to hit a plateau, and may even start to decrease slightly, at about 40 years since first asbestos exposure. "Our results do not support the hypothesis that pleural malignant mesothelioma risk indefinitely increases after exposure, suggesting instead that the alternative hypothesis of a risk plateau or decrease after a time since first exposure of more than 40 years is more consistent with the observed data," states the report in a recent issue of the American Journal of Industrial Medicine. Confirming Earlier Data An even larger Italian study published reached a similar conclusion. That study used data from 43 previously-studied groups for a total of more than 51,000 people, primarily asbestos cement and shipbuilding workers. Those figures, published in Occupational and Environmental Medicine, indicated that the rate of pleural mesothelioma among the studied workers tended to increase during the first 40 years after initial exposure but then plateaued. Notably, the suggestion of a mesothelioma risk plateau in both studies applies to the pleural variety of mesothelioma around the lungs but not necessarily to the peritoneal variety, which grows on the membrane that lines the abdomen. Sources: Oddone, E, et al, "Mortality in asbestos cement workers in Pavia, Italy: A Cohort study", August 18, 2017, American Journal of Industrial Medicine Farrante, D, et al, "Italian pool of asbestos workers cohorts: mortality trends of asbestos-related neoplasms after long time since first exposure", August 3, 2017, Occupational and Environmental Medicine ASBESTOS UPDATE: Asbestos Clean-up Needed at Regeneration Site -------------------------------------------------------------- Inverclyde Now reported that Inverclyde council officials are warning there could be 'significant' clean-up costs involved after asbestos was found at the site of a high profile regeneration project in Greenock. The council and regeneration company Riverside Inverclyde are working on a GBP3million scheme to demolish old industrial buildings, create a new enterprise hub and realign the road at the top of Baker's Brae. Work is due to start in November but a document updating councillors reveals that the land is contaminated. The report states: "The team has been alerted to a significant risk following receipt of the contamination report on test piles taken throughout the site. "The report identified the presence of asbestos in a number of the trial pits and, depending on the amount discovered once on site, costs relating to its removal and remediation could be significant and may not be contained within the budget allowance for the project. "The consultants recommend, and the Corporate Director Environment, Regeneration and Resources is in favour of, tendering on the worst possible case, that is treatment of the full cut and fill area from Baker's Brae corner down to Ingleston Street. "Firm costs based on tender rates will be brought back to committee following the tender process." ASBESTOS UPDATE: Man Has Mesothelioma Due to Secondary Exposure --------------------------------------------------------------- Noddy A. Fernandez, writing for St. Louis Record, reported that an individual is suing numerous companies, alleging second hand exposure to asbestos caused him to develop mesothelioma. Roger Huff filed a complaint in the St. Louis 22nd Judicial Circuit Court against the 4520 Corp. Inc., Advance Auto Parts Inc., Afton Pumps Inc., Air & Liquid Systems Corp., et al., alleging the defendants failed to exercise reasonable care and caution for the safety of their employees and others working with or around their products. According to the complaint, the plaintiff alleges that he was first exposed to asbestos as a child due to his father's job as a pipefitter. Due to his proximity to asbestos, the plaintiff claims he was diagnosed with mesothelioma in June. The plaintiff holds the defendants responsible because allegedly failed to provide warnings to people working with or around the products, failed to provide adequate instructions on how to avoid inhaling asbestos and failed to conduct tests on the asbestos- containing products. The plaintiff seeks judgment for a sum in excess of $25,000, which will fairly and reasonably compensate for plaintiff's injuries. He is represented by Benjamin R. Schmickle and Matthew C. Morris of SWMW Law LLC in St. Louis. St. Louis 22nd Judicial Circuit Court case number 1722-CC10915 ASBESTOS UPDATE: Family Issues Rallying Call for Justice -------------------------------------------------------- Alex Grove, writing for Hull Daily Mail, reported that the family of a Hull construction worker who died after being exposed to dangerous asbestos for decades have called on his former colleagues to help them in their fight for justice. John Savage died in May last year aged 75, with his death thought to be linked to asbestos exposure after working for Hull-based demolition firm Sam Allon and DJ Broady Limited over the course of the 1970s and 80s. During that time, his wife Iris claims he had to work in environments riddled with asbestos, with no safety equipment to prevent him from breathing in dangerous particles. She said: "John had been ill for some time which he found very difficult. He always had such a strong constitution and then to discover it was related to asbestos exposure, it was just devastating. "He worked hard all of his life and prided himself on that, not realising he may have been in danger from it. "John was well known and often socialised with the people he worked with. "We would like his legacy to be raising awareness of the dangers of being exposed to asbestos and encouraging people to seek help if they think they might have been in the same situation, anyone who worked with John at that time would be helping others by coming forward." John's family believe his death is linked to asbestos exposure Mr. Savage's family have since launched a campaign for justice and now want anyone who worked with the construction worker to help confirm the presence of asbestos in certain building sites. They also want to raise awareness of the harsh reality of what exposure to asbestos can do so other families affected by the loss of a loved one due to asbestos can get the help they deserve. James Burrell, an Asbestos specialist and partner at Bridge McFarland Solicitors, the firm representing the family, said: "This is one of numerous tragic cases which Bridge McFarland have been instructed to investigate in the past few years. "We are currently looking for information from Mr Savage's former colleagues who are able to confirm the presence of asbestos in the work sites they frequented for Sam Allon (Hull Limited) and/or DJ Broady Limited. "It would also be helpful to know what, if any, safety equipment or training was provided to the staff we believe were exposed to this asbestos. "We appreciate that news of the cause of John's death may be alarming for those who worked alongside him and may have been exposed to asbestos. "We will endeavour to provide what support and advice that we can." In June this year, a similar appeal for information was issued by Cottingham widow Patricia Peacock, who lost her husband Brian to a brutal cancer caused by long-term exposure to the poisonous substance in July 2016. Anyone with information relating to Mr Savage's previous working conditions or anyone who thinks that they may have been affected by asbestos in the workplace should contact Mr Burrell on 01482 320620 or email him at jmb@bmcf.co.uk ASBESTOS UPDATE: ITT Wins Coverage in Asbestos Insurance Trial -------------------------------------------------------------- Melissa Daniels, writing for Law360, reported that global manufacturing company ITT Corp. notched a win in a long-running suit seeking more than $1 billion in coverage for asbestos liabilities when a California state judge ruled that the policies at issue are triggered at the time of asbestos exposure and that ITT can put the policies in any triggered year on the hook for its full liability. The decision follows a bench trial in Los Angeles between ITT and more than two dozen excess insurers that was focused on determining how ITT's umbrella and excess policies are implicated by asbestos-related losses. The trial centered on what defines "bodily injury" to trigger coverage, how to allocate losses, and to what extent the loss must be allocated to now-insolvent Home Insurance Company umbrella policies. Los Angeles Superior Court Judge Ann I. Jones first agreed with ITT's argument that the liability policies at issue are triggered when a claimant is initially exposed to asbestos, while the defendants had argued bodily injury doesn't occur until someone gets cancer or asbestosis. "Earlier decisions have held that 'bodily injury,' within the meaning of liability insurance policies, takes place with the initial cellular injury that occurs upon exposure to asbestos fibers and progresses continuously as the damage cascades, over time, into disease, frequently ending in death," Judge Jones said. "This continuous injury trigger affords coverage for the continuing and progressive injuries occurring during successive policy periods subsequent to the established date of the initial injury in fact." Then Judge Jones turned to the issue of allocation, or how responsibility for the losses is divvied up among insurers. She agreed with ITT that the terms and conditions of the policies provide for all sums allocation -- under which each of an insured's policies can be held liable for an entire loss. She found the policies are not limited to a pro rata method, which spreads out liability proportionally among all triggered policies, as the defendants argued. "Once a policy has attached and is selected by the insured, each triggered policy has a separate and independent obligation to cover ITT in full for its liability arising from a given claim, up to the policy's product liability limits," Judge Jones said. In examining the policy language, Judge Jones referenced the Viking Pump decision from the New York Court of Appeals in 2016 that found vertical exhaustion -- which allows policyholders to reach excess coverage for certain years even if their primary polices haven't been depleted -- is consistent with an all sums allocation method. "Each of the policies at issue primarily hinge its attachment on the exhaustion of the underlying policies that cover the same policy period and that are specifically identified," Judge Jones said. "Accordingly, the excess policies are triggered by vertical exhaustion of the underlying available coverage during the same policy period." The third issue in the case -- whether ITT can access policies that are based on umbrella policies from Home Insurance Co. in the wake of its insolvency -- saw Judge Jones examine the liquidation proceeding that Home went through more than 10 year ago. She ultimately determined that Home has been held liable to pay its policy limits for umbrella and excess policies at issue, citing the county judge's order approving ITT's priority allowance. "The policy language 'held liable to pay' is satisfied by the Merrimack County Superior Court's order approving ITT's Class II priority allowance in the amount of $80,730,000 which makes Home liable to pay the applicable limits of each of its umbrella and excess umbrella policies at issue," Judge Jones said. ITT's attorney Paul Zevnik of Morgan Lewis & Bockius LLP told Law360 the decision was well-written and comprehensive in tackling three critical issues for policyholders and insurers -- but he said the findings on the allocation and vertical exhaustion are particularly important. "It really underscores why vertical exhaustion or all sums exhaustion, which is what the policies say, should be the rule," he said. "Horizontal exhaustion is not the way policies were purchased. It puts the policyholder in a position where it has to end up, in many cases, bearing the risk of nonpayment by insurers." Zevnik also said the issues around Home's insolvency and liability were being litigated for the first time -- and that there are more than 3,000 insolvent insurers in the nation. "The language 'paid or been held liable to pay' is fairly common and has never been adjudicated in this context, which is the context of a liquidation proceeding for an insurer," he said. Calculations of the defendants' obligations to ITT are reserved for a later trial phase, according to the decision. This summer's trial, dubbed Phase III, took place more than 14 years after ITT first filed its breach of contract suit claiming that the damages are alleged to have taken place during the defendants' policy periods and seeking a ruling affirming the insurers' obligation to pay the company's legal costs and expenses. A representative for General Reinsurance Corp. declined to comment. Attorneys for other defendants didn't immediately respond to requests for comment on Wednesday. ITT is represented by Paul A. Zevnik, Michel Y. Horton, David S. Cox, Gerald P. Konkel, David A. Luttinger Jr., Leah N. Houghton and Colin C. West of Morgan Lewis & Bockius LLP. Arrowood Indemnity Co. is represented by Laura L. Goodman and Ashley L. Milnes of Sedgwick LLP. Travelers Casualty and Surety Co. is represented by Sonia S. Waisman and Heather L. McCloskey of McCloskey Waring & Waisman LLP and Ronald D. Kent and Susan W. Walker of Dentons LLP. General Reinsurance Corp. is represented by Alan D. Hamilton of the Law Offices of Alan D. Hamilton and Michael J. Balch of Budd Larner PC. U.S. Fire Insurance Co., TIG Insurance Co. Associated International Insurance Co., Mt. McKinley Insurance Co. and Everest Reinsurance Co. are represented by Kenneth G. Katel and Lawrence A. Tabb of Musick Peeler & Garrett LLP and Matthew Thomas Walsh of Kennedys CMK. Affiliated FM Insurance Co. is represented by Alan E. Swerdlow of Boornazian Jensen & Garthe and Jason R. Schulze of Hinshaw & Culbertson LLP. Northwestern National Insurance Co. is represented by Kevin McNamara of Traub Lieberman Straus & Shrewsberry LLP. Munich Reinsurance America Inc. is represented by Ira Revich of Charleston Revich & Wollitz LLP. Allstate Insurance Co. is represented by Louise M. McCabe and Tara L. Goodwin of Troutman Sanders LLP. Certain Underwriters at Lloyd's London, Certain London Market Insurance Cos., North River Insurance Co., Lamorak Insurance Co., AIU Insurance Co., American Home Assurance Co., Birmingham Fire Insurance Co., Granite State Insurance Co.; Insurance Co. of the State of Pennsylvania, Landmark Insurance Co., Lexington Insurance Co., National Union Fire Insurance Co. of Pittsburgh PA and The Continental Insurance Co. are represented by Gretchen A. Ramos of Squire Patton Boggs LLP and Patrick T. Walsh, Laura S. McKay and David C. Butman of Hinkhouse Williams Walsh LLP. The case is Cannon Electric Inc. et al. v. Ace Property & Casualty Insurance Co. et al., case number BC290354, in the Superior Court of the State of California for the County of Los Angeles. ASBESTOS UPDATE: EPA Confirm Asbestos Found at CFA Burn-off Site ---------------------------------------------------------------- Bendigo Advertiser reports that the Environment Protection Authority has confirmed CFA crews were exposed to asbestos during a controlled burn in Flagstaff. Carisbrook CFA undertook the burn-off at the former Penney and Lang abattoirs site at the request of the CEntral Goldfields Shire Council in mid-August. "EPA attended the premises and is currently investigating potential breaches of the Environment Protection Act 1970," an EPA spokesperson said. "Those investigations have already revealed that asbestos was present at the site." A clean-up notice has been issued to Central Goldfields Shire Council and the asbestos has already been removed. Compliance with the clean-up notice must occur by September 7. The EPA spokesperson said it cannot comment further while the investigation is ongoing. "(We are) satisfied there is currently a low risk to the public at this time due to the asbestos being removed," the spokesperson said. At the time, the shire's former mayor Geoff Lovett said council staff led members of the Carisbrook CFA to believe the recently- burnt waste pile did not contain asbestos. Cr Lovett also said a risk assessment was not conducted on the mound at the former Penney and Lang abattoirs site, in Madmans Lane, Flagstaff. An asbestos-accredited company, dressed in "moon suits", cleaned up what remained of the pile the day after the burn, erecting asbestos warning signs, Cr Lovett said. "There was no risk assessment done and I find that absolutely appalling," he said. "I'm very, very concerned about the processes we didn't follow." Central Goldfields Shire Council interim chief executive officer Vince Haining said: "The processes associated with the clearance of the site were inadequate and we acknowledge that." "If the issue has caused distress to any individuals we apologise unreservedly." Community members who may have concerns about similar incidents should contact the EPA pollution hotline on 1300 372 842. ASBESTOS UPDATE: Halt on Coal Mining Study Has Asbestos Results --------------------------------------------------------------- Matt Mauney, writing for Asbestos.com, reported that the U.S. Department of the Interior has ordered a halt to a study on the public health risks of mountaintop removal mining in Appalachia -- an area ripe with natural asbestos deposits. A letter from the Interior Department directed the National Academies of Sciences, Engineering and Medicine to "cease all work" on the study, citing responsible spending of taxpayer dollars as the reason for the decision. The $1 million National Academies study began in 2016 and was expected to take two years to complete. It aimed to evaluate health risks of a common mining technique for people living near surface coal mine sites in Central Appalachia. National Academies, a nongovernmental institution, had assembled a 12-member expert committee to assess "new approaches to safeguard the health of residents living near these types of coal mining operations." Central Appalachia covers portions of Tennessee, Kentucky and West Virginia. The Appalachian mountain range is a hotspot for natural deposits of asbestos, a toxic mineral linked to serious respiratory conditions including asbestosis, asbestos lung cancer and mesothelioma. "Mountaintop removal mining has been shown to cause lung cancer, heart disease, and other medical problems," Rep. Raul Grijalva, D- Ariz., the ranking Democrat on the House Committee of Natural Resources, said in a statement. "Stopping this study is a ploy to stop science in its tracks and keep the public in the dark about health risks as a favor to the mining industry, pure and simple." How Mountaintop Mining Could Lead to Asbestos Exposure Mountaintop mining is used to extract underlying coal. The technique dates back to the 1960s as a way to harvest coal deposits too thin to remove from a coal mine. According to a report published in the journal Environmental Health Perspectives, mountaintop removal has occurred on at least 500 of the Appalachian Mountains. After the land is cleared of forests and vegetation, explosives break up the first layer of rock into smaller pieces, known as "spoil." Mining companies often dump the rubble into surrounding valleys and streams, which can lead to pollution. A 2002 report from the National Research Council found heavy metals, such as lead, arsenic, selenium and manganese, in local streams and ground wells in Central Appalachia. High concentrations of these metals can be toxic. But another major cause for concern is the dust created by the mining explosions. Although asbestos is no longer mined in the U.S., naturally occurring deposits can be stirred up during mining efforts for other minerals. Toxic asbestos fibers released into the air can be inhaled or ingested by workers or nearby residents, potentially leading to asbestos-related diseases. Symptoms of mesothelioma typically don't arise until 20 to 50 years after a person is exposed to asbestos, meaning mining efforts decades ago could lead to cancer today. A 2010 study published in Science Magazine linked mountaintop mining to increased lung and kidney disease rates. A separate study from researchers at Washington State University found birth defects are significantly more common in these mining areas. Trump Administration Cutting Back on Stringent Reviews The halt to the mountaintop mining study is part of an agency-wide review of the Department of the Interior of its grants and cooperative agreements in excess of $100,000. In the letter sent to the National Academies, Glenda Owens, the acting director of the Interior's Office of Surface Mining Reclamation and Enforcement, said the review is largely a result of the department's "changing budget situation" under the Trump administration. "The Trump Administration is dedicated to responsibly using taxpayer dollars and that includes the billions of dollars in grants that are doled out every year by the Department of the Interior," the administration said in a statement. Owens agreed to let the National Academies continue with a previously scheduled public meeting in Kentucky, but no future plans can be made. Democrats and officials from environmental groups were quick to express criticism over the decision to cut funding to the study. The Ohio Valley Environmental Coalition released a statement saying the budget proposals and department cuts are an "attack on science, [and] are a slap in the face to the people of Appalachia as well as poor and middle class folks nationwide." Bill Price, senior Appalachia organizing representative for the environmental advocacy group Sierra Club's Beyond Coal campaign said the decision is an injustice to the residents of the region. "It's infuriating that Trump would halt this study on the health effects of mountaintop removal coal mining, research that people in Appalachia have been demanding for years," he said. A review conducted earlier this year by the National Institute of Environmental Health Sciences called for more careful research to determine the precise consequences of mountaintop mining, noting it can be difficult to control variables like poverty. "Every time some reckless industry hurts working people, this administration is there to provide political cover," Grijalva said. "Clearly this administration and the Republican Party are trying to stop the National Academy of Sciences from uncovering exactly how harmful this practice is." ASBESTOS UPDATE: OHSU, Contractor Fined for Asbestos Violations --------------------------------------------------------------- Tracy Loew, writing for Statesman Journal, reported that state environmental regulators have fined Oregon Health & Science University and a prominent contractor it hired a total of $37,600 for violating asbestos regulations during renovations at OHSU's Oregon National Primate Research Center. The renovations took place in July 2016 at OHSUs Colony Annex, at 505 NW 185th Ave. in Beaverton. The violations likely released asbestos fibers into the air and exposed the public, the state Department of Environmental Quality said. OHSU was fined $10,400 for hiring an unlicensed asbestos abatement contractor. It also was cited for failing to have an accredited inspector survey the facility for asbestos prior to the renovation. The penalty was reduced because OHSU later hired a licensed asbestos abatement contractor to remove remaining asbestos at the facility, and decontaminated the Farmington Landfill in Aloha, where the asbestos had been taken. The contractor, Aloha-based In Line Commercial Construction, was fined $27,200 for conducting an asbestos abatement project without being licensed to do so, and for disposing of asbestos-containing waste at the landfill, which was not authorized to accept it. The company also was cited for failing to have an accredited inspector survey the building for asbestos before the renovation, and for storing asbestos containing waste in uncovered drop boxes at the facility. In Line Commercial Construction has completed other major renovations for OHSU, including a remodel of the emergency room. Asbestos fibers are known to cause lung cancer, mesothelioma and asbestosis, DEQ said. There is no safe level of exposure. Both OHSU and the contractor were negligent, DEQ said. OHSU has a facilities division responsible for overseeing its buildings and ensuring that renovations comply with safety and environmental regulations, and has hired licensed abatement contractors on numerous occasions, DEQ said. OHSU has not decided whether to appeal the penalty, spokeswoman Tamara Hargens-Bradley said. "We do hundreds of projects each year, and to the best of our knowledge, this is the first accidental release of asbestos on OHSU property," she said. "Although we have robust asbestos management processes in place, as a result of this incident we have implemented new mitigation strategies, including increasing the number of construction inspectors overseeing our project work." In Line Commercial Construction is a general contractor licensed by the Oregon Construction Contractors Board and is aware of asbestos requirements, DEQ said. The construction company has appealed the penalty, vice president Trygve Berge said. Berge said he was unable to comment further because the company's contract with OHSU contains a confidentiality agreement. ASBESTOS UPDATE: Consolidation of Cantarano, Gladu Cases Denied --------------------------------------------------------------- Judge Calvin L. Scott, Jr., of the Superior Court of Delaware has issued an Order denying the Plaintiffs, Craig Cantarano and Donald Gladu, to Consolidate Cases scheduled for trial in September 2017. The Plaintiffs claim that consolidation is appropriate because Defendant, Georgia Pacific, is the only defendant left in the case, and the Plaintiffs share the same causation expert. The Court finds that consolidation of these cases is not appropriate. The Court maintains that consolidation would require the jury to apply different substantive law to each Plaintiff, which creates a risk of juror confusion. More importantly, the Court points out that there is no significant nexus between the two cases as there is different product exposure, different State substantive law, and different fact and expert witnesses. The case is In Re: Asbestos Litigation. Limited to: Craig Cantarano Donald Gladu, C.A. Nos. N15C-10-030 ASB, N15C-09-093 ASB, (Super. Ct.). A full-text copy of the Order dated August 29, 2017, is available at https://is.gd/b4Rwyl from Leagle.com. ASBESTOS UPDATE: PI Claims vs. Pneumo Abex Dropped in "Bagwell" --------------------------------------------------------------- Judge Calvin L. Scott, Jr., of the Superior Court of Delaware has issued an order granting Pneumo Abex's Motion for Summary Judgment in the case captioned IN RE: SHERRIE BAGWELL, as personal representative of the estate of DAVID BAGWELL, and SHERRIE BAGWELL, individually, Plaintiff, v. BORGWARNER MORSE TEC, LLC, et al., Defendants, C.A. No. N14C-06-023 ASB (Del. Super.). Sherrie Bagwell contends that decedent David Bagwell contracted lung cancer from asbestos in Defendant Pneumo Abex's products. The only product identification witness is Clyde Bagwell, Mr. Bagwell's brother. Pneumo Abex contends that under South Carolina law, the Plaintiff's case must be dismissed because wrongful death claims must be filed within three years of the date of decedent's death - - Plaintiff's claims are barred by the statute of limitations. In response, Sherrie Bagwell claims that decedent was diagnosed with lung cancer in May 2009 and passed away on January 28, 2010. Subsequently his wife did not know that her husband's cancer was caused by asbestos until the Complaint was filed. In personal injury actions, this State applies a two year statute of limitations from the date of plaintiff's injury. Mr. Bagwell passed away from lung cancer on January 28, 2010, and the Plaintiff's Complaint was not filed until June 2, 2014. The Plaintiff argues that under Delaware law, "the two-year statute of limitations on asbestos-related personal injury cases "begins to run when the plaintiff is chargeable with knowledge that his condition is attributable to asbestos exposure." The Plaintiff's situation is distinguishable from other asbestos cases because Mr. Bagwell passed away more than two years prior to contact with legal counsel. Mr. Bagwell was diagnosed with lung cancer in May 2009 and passed away on January 28, 2010. The Plaintiff avers that she contacted an attorney in August of 2012, and the Complaint was not filed until June 2, 2014. The Plaintiff urges that she did not know that her husband's lung cancer was caused by asbestos until "after June 2, 2014 when his case was filed." Although it is clear that asbestos cases fall into the latent disease category, and the time begins to run when the plaintiff is chargeable with knowledge that his condition is attributable to asbestos exposure, the Court cannot infer, beyond speculation, when the Plaintiff became aware her husband's disease was related to asbestos. The Court notes that the Plaintiff provided no medical records from Mr. Bagwell's initial diagnosis or any other evidence of medical treatment for the Court to analyze the four part DaBaldo test. The only piece of evidence that the Court can take into consideration is a document titled "Affidavit of Sherrie Bagwell." However, this document has little to no probative value because it is neither notarized nor signed by an attorney. Without additional information, the Court cannot infer, beyond speculation, the date that Ms. Bagwell became chargeable with knowledge that her husband's disease was asbestos related was August 2012. A full-text copy of the Order dated August 29, 2017, is available at https://is.gd/uq5BJQ from Leagle.com. ASBESTOS UPDATE: PI Claims vs. 7 Cos. Dismissed in "Haynes" ----------------------------------------------------------- Judge Eduardo C. Robreno of the U.S. District Court for the District Delaware has issued an order approving and adopting the July 21, 2017 Report and Recommendation filed by Magistrate Judge Sherry R. Fallon in the case styled HAROLD HAYNES, et al., Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants, Civil Action No. 16-607, (D. Del.), and thereby, dismissing the following filing Defendants with prejudice: (a) Air & Liquid Systems Corporation; (b) Aurora Pump Company; (c) BorgWarner Morse TEC LLC; (d) FMC Corporation; (e) Honeywell International, Inc.; (f) Pfizer, Inc.; and (g) Warren Pumps, LLC. A full-text copy of the Order dated August 29, 2017, is available at https://is.gd/VXsj5k from Leagle.com. Harold Haynes, Plaintiff, represented by Adam Balick, Balick & Balick, LLC. Harold Haynes, Plaintiff, represented by Michael Collins Smith, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A. & Bartholomew J. Dalton, Dalton & Associates P.A.. Judy Haynes, Plaintiff, represented by Adam Balick, Balick & Balick, LLC, Michael Collins Smith, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A. & Bartholomew J. Dalton, Dalton & Associates P.A.. IMO Industries, Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Defendant, represented by Barbara Anne Fruehauf. Volkswagen Group of America, Inc., Defendant, represented by Christian J. Singewald, White & Williams & Timothy S. Martin, White & Williams. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Claimant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Maremont Corporation, Cross Claimant, represented by Barbara Anne Fruehauf. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Claimant, represented by Barbara Anne Fruehauf. Viking Pump, Inc., Cross Defendant, represented by Barbara Anne Fruehauf. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. Maremont Corporation, Cross Defendant, represented by Barbara Anne Fruehauf. ASBESTOS UPDATE: Denial of Bid to Dismiss Claim vs. Texaco Upheld ----------------------------------------------------------------- The Hon. Peter H. Moulton of the Appellate Division of the Supreme Court of New York, First Department, affirms the order entered on January 5, 2016, denying Defendant Chevron Corporation's alleged predecessor in interest's (Texaco) motion for summary judgment dismissing the complaint styled IN RE NEW YORK CITY ASBESTOS LITIGATION. ANNE M. SOUTH, ETC., Plaintiff-Respondent, v. CHEVRON CORPORATION, ETC., Defendant-Appellant, JOHN CRANE INC., Defendant, 4048, 190029/15, (N.Y. App. Div.), as against it. Plaintiff's decedent, Mason South, and plaintiff, South's wife, commenced this action alleging that South's mesothelioma resulted from his exposure to asbestos during his 37-year career in the Merchant Marine. They claimed that defendant Texaco manufactured, produced, sold, supplied, merchandised and/or distributed asbestos-containing products that were located on the ships South worked on. The claims were brought under the Jones Act. South's wife asserted derivative claims and was substituted as plaintiff after South died of mesothelioma. Texaco moved for summary judgment dismissing the complaint as against it. The basis for the motion was a release that South had given to it in connection with an earlier lawsuit, also in connection with his exposure to asbestos on merchant ships. The release that South executed in connection with the settlement of the 1997 action stated that South, "for himself, his heirs, administrators, beneficiaries, executors and assigns," released Texaco "forever" from any and all "actions, suits, [and] claims" which he "has now, has ever had, or which may accrue in the future." The release included any "bodily and/or personal injuries, sickness or death" which allegedly occurred as a result of South's asbestos exposure. Furthermore, the release acknowledged that the "long term effects of exposure" to asbestos might result in "obtaining a new and different diagnosis from the diagnosis as of the date of this Release." South stated in the release that despite this, he knew that he would be giving up the right to bring an action in the future for "any new or different diagnosis that may be made" as a result of his exposure to any asbestos or other product. This provision also pertained to South's executors, administrators, and heirs. South acknowledged that he had read the full release, discussed it with his attorney, and was signing it with full knowledge of its contents, and that he would be legally bound by it. In return for furnishing the release, South was paid $1,750. In opposition to the motion, plaintiffs argued that the release did not preclude the claim for mesothelioma, based on section 5 of the Federal Employers' Liability Act, which requires strict scrutiny of releases and prohibits agreements that exempt common carriers from liability. Under that standard, Plaintiffs asserted that at the time South signed the release, he did not have mesothelioma and was not aware of the risk of mesothelioma as a potential injury from his asbestos exposure. The motion court then denied Texaco's motion, holding that Texaco failed to establish that South understood he was releasing a future claim for mesothelioma. As such, the 1997 release was inadequate because although it referred to future claims arising out of asbestos exposure and contemplated a second injury, it did not mention cancer or mesothelioma explicitly. Moreover, the court characterized the settlement payment South received as consideration for the 1997 release as, "based on this court's experience. . . extremely low, given. . . South's alleged extensive asbestos exposure." The court alternatively described the amount as "meager." On appeal, Texaco asserts that the 1997 release should be enforced because it constitutes a settlement of a known claim. In that regard, Texaco notes that the release resolved the decedent's action arising out of his exposure to asbestos and that the parties contemplated all injuries that might later arise due to that exposure. Texaco points out that the 1997 complaint specifically mentioned mesothelioma as one of the known diseases, and argues that thus the release clearly intended to resolve any future claim of mesothelioma. Texaco also highlights the expansive language of the release, including the decedent's recognition that his exposure to asbestos might result in "obtaining a new and different diagnosis" from the diagnosis at the time of the release but that he would be giving up the right to bring an action against Texaco in the future for "any new or different diagnosis that may be made" as a result of his exposure to asbestos. The Jones Act provides merchant mariners, such as South, with a right of action for injuries and death arising out of the performance of their duties. The Court finds that Texaco failed to establish the burden that the release is enforceable, as well as the burden of demonstrating that South fully understood his rights and received adequate consideration. The Court finds that the release does not pass muster. The Court determines that the 1997 complaint, while making generalized allegations that South had been exposed to asbestos, is exceedingly vague as to whether he had actually contracted an asbestos-related disease. Specifically, it mentions a "devastating pulmonary disease Plaintiff now suffers" and an exhaustive grab- bag of asbestos-related diseases, from asbestosis to mesothelioma to brain cancer. However, the Court holds that it is impossible to conclude from the complaint that South had actually received a diagnosis. In addition, the Court opines that the "meager" consideration he received for resolving the claim suggests that he had not been diagnosed with an asbestos-related disease, much less one even approaching the severity of the mesothelioma that the complaint specifically alleges he had. Accordingly, the Court finds that the risk of contracting an actual asbestos-related disease remained hypothetical to South, and we decline to read the release as if South understood the implications of such a disease but chose nonetheless to release Texaco from claims arising from it. Further, the Court explains that if South had not received a definitive diagnosis at the time the 1997 complaint was filed, then the release, to the extent it warns him of the possibility of "a new and different diagnosis from the diagnosis as of the date of this Release," does not reflect the actual circumstances known to him. Rather, the lack of an actual diagnosis reveals the language in the release as mere boilerplate, and not the result of an agreement the parameters of which had been specifically negotiated and understood by South. A full-text copy of the Order dated August 29, 2017, is available at https://is.gd/hZRDiX from Leagle.com. Jones Day, New York (Meir Feder of counsel), for appellant. Motley Rice LLC, Washington, D.C. (Louis M. Bograd of the bar of the State of Kentucky and the District of Columbia, admitted pro hac vice, of counsel), for respondent. Before: Tom, J.P., Manzanet-Daniels, Mazzarelli, Webber, JJ. ASBESTOS UPDATE: Couple Given More Time for Discovery ----------------------------------------------------- Judge Calvin L. Scott, Jr., of the Superior Court of Delaware grants Derry L. Middleton and Janice Middleton time for additional discovery regarding the issue of personal jurisdiction in the case styled IN RE: ASBESTOS LITIGATION. DERRY L. MIDDLETON and JANICE MIDDLETON, his wife, Plaintiffs, v. MCCORD CORPORATION et al., Defendants, C.A. No. N14C-05-261 ASB, (Super. Ct.). Defendant McCord Corporation filed a Motion for Summary Judgment arguing, in part, that the Plaintiffs' claims fail because the Court has no personal jurisdiction over Defendant, claiming that it is a Michigan corporation, with its principal place of business in Michigan, and it is not otherwise essentially at home in Delaware. In response, the Plaintiffs requested the opportunity to perform limited discovery on the subject of personal jurisdiction in wake of the Supreme Court decision which Defendant relies on, Bristol- Myers Squibb Co. v. Superior Court of California, decided on June 19, 2017. A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/wFJCsB from Leagle.com. ASBESTOS UPDATE: Punitive Damages Claim vs. PACCAR Dismissed ------------------------------------------------------------ Judge Calvin L. Scott, Jr., of the Superior Court of Delaware dismisses Nagel T. Cobb's willful and wanton conduct claims against PACCAR Inc. as he failed to plead specific facts to support a punitive damages claim against the Defendant. PACCAR Inc. filed a Motion to Dismiss Plaintiff's Willful and Wanton Conduct Claims pursuant to Superior Court Civil Rules 8(a), 9(b) and 12(b)(6), arguing that the Plaintiff's claim lacks specific supporting factual allegations. PACCAR also argues that this Court has held that simply "adding the words 'willful and wanton' to an allegation does not transform automatically a case to a punitive damages claim." On the other hand, the Plaintiff contends that under Delaware law, "for a complaint to survive a motion to dismiss it need only general notice of the claim asserted." The Court agrees with the Defendant. As the Court has noted in In re Asbestos Litigation (In re Asbestos Litigation (Ardis), C.A. No. N13C-10-020 (ASB)(Del. Super. Feb. 6, 2014)), the claim is insufficient without a factual basis or the elements of the claim under the substantive state law the claim is brought under. The Plaintiff, however, may move to amend, if he discovers evidence that supports a punitive damages claim. A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/2ghayp from Leagle.com. ASBESTOS UPDATE: Punitive Damages Claim vs. Daimler Dropped ----------------------------------------------------------- Judge Calvin L. Scott, Jr., of the Superior Court of Delaware dismisses Nagel T. Cobb's willful and wanton conduct claims against Daimler Trucks North America, LLC, as he failed to plead specific facts to support a punitive damages claim against the Defendant. Daimler Trucks North America, LLC, filed a Motion to Dismiss Plaintiff's Willful and Wanton Conduct Claims pursuant to Superior Court Civil Rules 8(a), 9(b) and 12(b)(6), arguing that the Plaintiff's claim lacks specific supporting factual allegations. The Defendant further argues that this Court has held that simply "adding the words 'willful and wanton' to an allegation does not transform automatically a case to a punitive damages claim." On the other hand, the Plaintiff contends that under Delaware law, "for a complaint to survive a motion to dismiss it need only general notice of the claim asserted." The Court agrees with the Defendant. As the Court has noted in In re Asbestos Litigation (In re Asbestos Litigation (Ardis), C.A. No. N13C-10-020 (ASB)(Del. Super. Feb. 6, 2014)), the claim is insufficient without a factual basis or the elements of the claim under the substantive state law the claim is brought under. The Plaintiff, however, may move to amend, if he discovers evidence that supports a punitive damages claim. A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/0xR2Fl from Leagle.com. ASBESTOS UPDATE: PI Claims vs. Goodyear Dismissed in "McSwain" -------------------------------------------------------------- Judge Martin Reidinger of the United States District Court, Western District of North Carolina, has issued an order dismissing with prejudice the Plaintiffs' claims against Defendant The Goodyear Tire & Rubber Company in the case styled MINERVA McSWAIN, Individually and as Executrix of the Estate of BUREN EDWARD McSWAIN, Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants, Civil Case No. 1:15-cv-00130-MR-DLH, (W.D.N.C.). A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/JjwVed from Leagle.com. Minerva McSwain, Plaintiff, represented by Jonathan M. Holder, Dean Omar Branham LLP, pro hac vice. Minerva McSwain, Plaintiff, represented by Mona Lisa Wallace, Wallace & Graham, PA, Charles W. Branham, III, Dean Omar Branham, pro hac vice, Jessica Michelle Dean, Dean Omar Braham, pro hac vice, Lisa W. Shirley, Dean, Omar, Branham, LLP, pro hac vice, Sabrina G. Stone, Dean Omar Branham, LLP, pro hac vice, W. Marlowe Rary, II, Wallace and Graham P.A. & William M. Graham, Wallace & Graham. Daniel International Corporation, Defendant, represented by Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., Scott E. Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner, Haynsworth, Sinkler, Boyd P.A.. Fluor Daniel Services Corporation, Defendant, represented by Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., Scott E. Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner, Haynsworth, Sinkler, Boyd P.A.. SEPCO Corporation, Defendant, represented by Teresa E. Lazzaroni, Hawkins Parnell Thackston & Young LLP. Fluor Enterprises, Inc., Defendant, represented by Charles Monroe Sprinkle, III, Haynsworth Sinkler Boyd, P.A., Scott E. Frick, Haynsworth, Sinkler, Boyd P.A. & W. David Conner, Haynsworth, Sinkler, Boyd P.A.. ASBESTOS UPDATE: Murphy Oil Wins Summary Judgment in "Kivell" ------------------------------------------------------------- Judge Calvin L. Scott, Jr., of the Superior Court of Delaware has issued an order granting Defendant Murphy Oil USA Inc.'s Motion for Summary Judgment, in the case styled IN RE: ASBESTOS LITIGATION. SANDRA KIVELL, individually and as Personal Representative of the Estate of MILTON J. KIVELL, deceased, Plaintiff, v. MURPHY OIL USA INC. et al., Defendants, C.A. No. N15C-07-093 ASB, (Sup. Ct. Del.). The Plaintiff alleges that her husband, Milton Kivell contracted mesothelioma while working at the Defendant's refinery, and Mr. Kivell's illness eventually caused his death. In August 2015, Mr. Kivell was deposed. Mr. Kivell stated that he worked construction jobs at Defendant's facility in 1972 and 1979. Mr. Kivell was employed by Litwin Construction during 1972 where Mr. Kivell cut shipping brackets. A Litwin employee, Vincent Vicidomina, stated that Mr. Kivell's work for Litwin included part of the construction of the Crude Distillation, Platformer, and Hydrobon units by Litwin at the refinery. According to Mr. Vicidomina's affidavit, Defendant hired Litwin Construction as a "turnkey contractor," which is a "contractor who exercised total control of the construction of the new unit . . . and then turned the new unit over to Murphy upon completion." Mr. Kivell also testified that the 1972 project was directed by his Litwin foreman. In 1979 Mr. Kivell worked at Murphy while he was employed by Matthews McCraken Rutland, a subcontractor of the general contractor McDermott/Hudson Engineering. McDermott constructed the FCC Unit and Alkylation Unit in Area 4 of the Meraux refinery from 1977-1980. Mr. Kivell's job involved installation of tubing. Mr. Vicidomina stated that asbestos insulation products were not used in the construction of the FCC and Alkylation Unit in Area 4 of Defendant's refinery. The Defendant provided the McDermott Contract which states that McDermott maintained the right to direct and control the construction and the workers. The Plaintiff claims that the Defendant ignores Mr. Kivell's testimony that his work at Murphy involved significant maintenance of existing equipment, and "tie- ins" of new equipment, and that Murphy specified the use of asbestos in its facility. The Defendant argues that it did not owe a duty to Plaintiff under Louisiana law, thus Plaintiff's negligence action fails. The Plaintiff argues that these cases demonstrate that a landowner has a duty to protect independent contractors from unreasonable risks of injury or harm. Likewise, the Plaintiff claims that her husband was exposed to asbestos from products used while employed by an independent contractor at Defendant's facility. The Court finds that the Defendant has presented evidence that asbestos insulation was not used during construction of the FCC Unit and Alkylation Unit in 1979. On the other hand, the Court determines that the Plaintiff did not provide evidence, such as, the Defendant's knowledge that asbestos was being used, the Defendant's specific request for asbestos use, or knowledge of the dangers of asbestos at the time Plaintiff was employed on Defendant's premises. The Court also determines that the Plaintiff has not presented any evidence to create a genuine issue of material fact that Defendant breached a duty owed to Mr. Kivell under Louisiana law. Likewise, the Court grants the summary judgment on Plaintiff's strict liability claim. In Louisiana, to hold a defendant strictly liable, "the plaintiff must prove: (1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by the defect." Additionally, the Court explains that custody, "for the purposes of strict liability, does not depend upon ownership, but involves the right of supervision, direction, and control as well as the right to benefit from the thing controlled." The "mere physical presence of the thing on one's premises does not constitute custody." Accordingly, the Court holds that the Defendant is entitled to summary judgment on the strict liability claim as well because there is nothing in the record indicating that Defendant had any type of direction, control, or ownership of an asbestos product used by the Plaintiff. A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/0JrVex from Leagle.com. ASBESTOS UPDATE: Air Products Wins Summary Judgment in "Kivell" --------------------------------------------------------------- Judge Calvin L. Scott, Jr. of the Superior Court of Delaware has issued an order granting Defendant Air Products and Chemicals Inc.'s Motion for Summary Judgment because the Plaintiff Sandra Kivell failed to present any evidence to create a genuine issue of material fact that the Defendant breached a duty owed to Mr. Kivell under Louisiana law. Under Louisiana law, "property owners are not liable for the negligence of an independent contractor" unless the (1) independent contractor was involved in inherently or intrinsically dangerous work, or (2) the land owner exercised "control over the contractor's method of operation or giving express or implied authorization to an unsafe practice." The Plaintiff Sandra Kivell alleges that her husband, Milton Kivell contracted mesothelioma which ultimately caused his death. Plaintiff alleges that Defendant Air Products and Chemicals Inc. was the premises owner of one of the facilities in New Orleans, Louisiana where Mr. Kivell worked for an independent contractor in the 1970s. Mr. Kivell worked at the Defendant's facility while he was employed by Lou Con Inc. Mr. Kivell changed old pipe, valves, pumps, insulation, and stop leaks, and worked around Defendant's employees performing other jobs. Mr. Kivel reported to the foreman from Lou Con for his jobs. The Defendant argues that Mr. Kivell performed routine maintenance such as changing old pipes, valves, pumps, insulation, and stopping leaks, which is not inherently or intrinsically dangerous work. Additionally, the Defendant argues that Plaintiff has not presented evidence showing that Defendant had control over Mr. Kivell's employer's method of operation or gave express or implied authorization to use asbestos. Likewise, Plaintiff claims that her husband was exposed to asbestos from products used while employed by an independent contractor at Defendant's facility. The Court, however, finds nothing in the facts for a jury to infer that asbestos was inherent in Defendant's premises because the Plaintiffs have not provided evidence, such as, the Defendant's knowledge that asbestos was being used, the Defendant's specific request for asbestos use, or knowledge of the dangers of asbestos at the time Plaintiff was employed on Defendant's premises. The case is IN RE: ASBESTOS LITIGATION. SANDRA KIVELL, individually and as Personal Representative of the Estate of MILTON J. KIVELL, deceased, Plaintiff, v. MURPHY OIL USA INC. et al., Defendants, C.A. No. N15C-07-093 ASB, (Sup. Ct. Del.). A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/bJArGl from Leagle.com. ASBESTOS UPDATE: Asbestos P.I. Claims vs. LG Electronic Dismissed ----------------------------------------------------------------- Judge Martin Reidinger of the United States District Court, Western District of North Carolina, has issued an order dismissing without prejudice the Plaintiff's claims against Defendant LG Electronic U.S.A. Inc. in the case styled ROBERT A. MULLINAX, Individually as Executor of the Estate of Jack Junior Waugh, Plaintiff, v. ADVANCED AUTO PARTS, INC., et al., Defendant, Civil Case No. 1:16-cv-00310-MR-DLH, (W.D.N.C.). A full-text copy of the Order dated August 30, 2017, is available at https://is.gd/mWv1PE from Leagle.com. Robert A. Mullinax, Plaintiff, represented by Sabrina G. Stone, Dean Omar Branham, LLP, pro hac vice. Robert A. Mullinax, Plaintiff, represented by William M. Graham, Wallace & Graham. Advance Auto Parts, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Air & Liquid Systems Corporation, individually and as successor- in-interest to other Buffalo Pumps, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Autozone, Inc., Defendant, represented by Timothy Peck, Smith Moore Leatherwood LLP. Bechtel Corporation, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Blackmer Pump Company, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Borg-Warner Morse TEC, Inc., Defendant, represented by David L. Levy, Hedrick Gardner Kincheloe & Garofalo LLP. BW/IP, Inc., Defendant, represented by James M. Dedman, IV, Gallivan, White, & Boyd, P.A.. CertainTeed Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Covil Corporation, Defendant, represented by James M. Dedman, IV, Gallivan, White, & Boyd, P.A.. Crane Co., Defendant, represented by Marla Tun Reschly, K&L Gates LLP & Rebecca L. Gauthier, K&L Gates. Dana Companies LLC, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Daniel International Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Deere & Company, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Flowserve US Inc., Defendant, represented by James M. Dedman, IV, Gallivan, White, & Boyd, P.A.. Fluor Constructors International, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Constructors International, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Daniel Services Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Fluor Enterprises, Inc., Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Ford Motor Company, Defendant, represented by Christopher Ray Kiger, Smith Anderson, Kirk Gibson Warner, Smith Anderson & Addie K.S. Ries, Smith Anderson. General Electric Company, Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Genuine Parts Company, Defendant, represented by Shannon Strickland Frankel, Young Moore and Henderson P.A., Heather B. Adams, Alston & Bird LLP & Molly Fraser Martinson, Young, Moore & Henderson. Georgia-Pacific LLC, Defendant, represented by Kenneth Kyre, Jr., Pinto Coates Kyre & Bowers, PLLC. Goulds Pumps, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Grinnell, LLC, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Honeywell International, Inc., Defendant, represented by H. Lee Davis, Jr., Davis & Hamrick, L.L.P.. Metropolitan Life Insurance Company, Defendant, represented by Keith E. Coltrain, Wall, Templeton & Haldrup, PA. O'Reilly Automotive Stores, Inc., Defendant, represented by Eric T. Hawkins, Hawkins, Parnell, Thackston & Young. Pfizer, Inc., Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Pneumo Abex, LLC, Defendant, represented by Timothy W. Bouch, Leath Bouch Crawford & von Keller. Sequoia Ventures, Inc., Defendant, represented by Jennifer M. Techman, Evert Weathersby Houff. Union Carbide Corporation, Defendant, represented by Christopher Barton Major, Haynsworth Sinkler Boyd, P.A., Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A., pro hac vice, Scott E. Frick, Haynsworth, Sinkler, Boyd P.A., pro hac vice & W. David Conner, Haynsworth, Sinkler, Boyd P.A., pro hac vice. Uniroyal, Inc., Defendant, represented by Moffatt G. McDonald, Haynsworth, Sinkler, Boyd P.A.. Vanderbilt Minerals, LLC, Defendant, represented by David L. Levy, Hedrick Gardner Kincheloe & Garofalo LLP & Gerald Anderson Stein, II, Hedrick, Gardner, Kincheloe & Garofalo. Viad Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. Warren Pumps, LLC, Defendant, represented by Joshua H. Bennett, Bennett & Guthrie, P.L.L.C.. Whirlpool Corporation, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. William Powell Company, Defendant, represented by David B. Oakley, Poole Brooke Plumlee PC. Yuba Heat Transfer, LLC, Defendant, represented by Tracy Edward Tomlin, Nelson, Mullins, Riley & Scarborough LLP, Travis Andrew Bustamante, Nelson Mullins Riley & Scarborough LLP & William M. Starr, Nelson, Mullins, Riley & Scarborough, LLP. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. 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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