/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180323.mbx C L A S S A C T I O N R E P O R T E R Friday, March 23, 2018, Vol. 20, No. 60 Headlines 2BEANS INC: Faces "Crosson" Suit in E.D. New York ABM INDUSTRIES: Seeks 9th Cir. Review of Ruling in "Castro" Suit AGWAY ENERGY: Faces "Brown" Suit in W.D. Pennsylvania ALLERGAN INC: FWK Holdings Antitrust Suit Transferred to N.Y. ALLSTATE CORP: Must Answer Suit on Lowered Underwriting Standards ALLSTATE INSURANCE: Seeks 9th Cir. Review of Decision in "Etter" ALLSTATE INSURANCE: Odaise Appeals Ruling in "Etter" to 9th Cir. ALLY FINANCIAL: Loses Counterclaim in "Vecchia" TCPA Suit AMERICAN CASINO: "Herrera" Sues Over Illegal Internet Tax AMERICAN GIRL BRANDS: Faces "Fischler" Suit in S.D. New York AMERICAN RECOVERY: Faces "Cox" Suit in S.D. West Virginia APPLE INC: 9th Cir. Affirms Dismissal of "Phillips" ARVEST BANK: Faces "Chandler" Suit in E.D. Arkansas ASSET RECOVERY: Faces "Divine" Suit in D. New Jersey ASHWOOD FINANCIAL: "Spiegel" Suit Brought Before 7th Cir. ATRIUM HEALTH: Target of New Class Action Lawsuit AUDI OF AMERICA: Faces "Mcbride" Suit in E.D. Virginia AUTOZONE INC: "Hernandez" Suit Brought Before 2nd Cir. AVANT GARDNER: Faces "Osorno" Suit in E.D. New York BBC WORLDWIDE: Faces "Sullivan" Suit in S.D. New York BELLA BUS: Faces "Anderson" Suit in E.D. New York BELLICUM PHARMA: Johnson Fistel Files Class Action BEN'S KOSHER: Faces "Avelar" Suit in E.D. New York BORROWERSFIRST INC: "Chavez" Sues Over Illegal Collection Calls CALLE 8 LLC: Faces "Lopez" Suit S.D. New York CAPITAL ONE: Faces "Dress" Suit in E.D. Virginia CENERGY INT'L: Court Refuses to Dismiss "Doiron" FLSA Suit CHILDRENS HOSPITAL: Dismissal of Forensic Exams Suit Reversed CHIPOTLE MEXICAN: Scott Appeals S.D.N.Y. Decision to 2nd Circuit CIVITAN FOUNDATION: Faces "Sullivan" Suit in S.D. New York COINBASE: CA Claiming Insiders Benefited from Bitcoin Cash Launch CONVERGENT OUTSOURCING: Faces "Carr" Suit in E.D. New York CUSTOMER CONNEXX: Time to Respond to "Curley" Extended DIRECT ENERGY: "Gomez" Sues Over Illegal Telemarketing Calls EQUIFAX INC: Faces "Cunniff" Suit in N.D. Georgia EQUIFAX INC: Faces "Ramirez" Suit in N.D. Georgia EVERSOURCE ENERGY: Consumers Hit Inflated Gas, Electricity Prices FORSTER & GARBUS: Faces "Gordon" Suit in E.D. New York FREEDOM MORTAGE: Faces "Weinshank" Suit in Cal. Superior Court GALLITOS MEXICAN: Faces "Lucero" Suit in E.D. New York GAY AND LESBIAN: Lawyers Team for Class Suit Over Canceled Event GE SAVINGS PLAN: Fund Mismanagement Suit Transferred to Mass. GENERAL MOTORS: Faces "Manning" Suit in S.D. Florida GLYNN COUNTY, GA: Mock Files Suit v. County Sheriff, et al. GOOGLE: Former Employee Files Sexual Harassment Lawsuit HEALTHPORT TECHNOLOGIES: Kuchenmeister Appeals Order to 11th Cir. HILTON WORLDWIDE: Faces "Delson" Suit in C.D. California HITACHI CHEMICAL: $66MM Class Action Antitrust Case Settlement HONEYWELL INT'L: Seeks 8th Cir. Review of Order in "Pacheco" Suit IDAHO: Court OKs Amendments to Settlement in Suit vs. DHW INSMED INC: Court Dismisses "Hoey" Drug Securities Fraud Suit JANSEN PHARMA: Pharma Cos. Sued Over Newborns' Opioid Addiction JOSEPH K. JONES: Third Circuit Appeal Filed in "Winters" Suit KRATON CORP: Federman & Sherwood Files Securities Class Action LIVE NATION: CA Launches Demanding Route 91 Harvest Refunds LJM FUNDS: Robbins Geller Files Class Action Suit LOS ANGELES, CA: Court OKs $2.95MM Attorney's Fees in "Nozzi" MARYVILLE UNIVERSITY: Faces "Sullivan" Suit in S.D. New York MASTIC HOME: Court Narrows Claims in "Pagliaroni" Suit MASSACHUSETTS MUTUAL: Class Action Trial Ends in Defense Verdict MERCEDES-BENZ USA: Faces "Maestri" Suit in N.D. Georgia MIDLAND CREDIT: Faces "Jamnadas" Suit in E.D. New York MIDLAND FUNDING: Faces "Moore" Suit in E.D. New York MIDLAND FUNDING: Faces "Witt" Suit in E.D. New York MIMEDX GROUP: Bragar Eagel & Squire Files Class Action MIMEDX GROUP: Robbins Arroyo Files Class Action MIMEDX GROUP: April 25 Lead Plaintiff Bid Deadline MIRAMED REVENUE: "Costin" Suit Disputes Collection Letter NATIONSTAR MORTGAGE: Faces "Kawelo" Suit in D. Hawaii NEW PRIME: Truckers' Class Action Moves to Supreme Court NISSAN NORTH: Court Narrows Claims in Defective Sunroof Suit NYP HOLDINGS: Faces "Sullivan" Suit in S.D. New York OHR PHARMA: Vincent Wong Law Firm Files Class Action PACIFIC FERTILITY: Faces "S.M." Suit in N.D. California PETROLEO BRASILEIRO: US Court Preliminarily OKs Terms Settlement PLANET SMOOTHIE: Faces "Fischler" Suit in E.D. New York POLITICO LLC: Faces "Sullivan" Suit in S.D. New York PORTFOLIO RECOVERY: Faces "Manfredi" Suit in E.D. New York QUANTUM CORP: Klein Law Firm Files Class Action RICARDO AND SUSAN GARCIA: "Hill" Action Seeks Unpaid Overtime RICK BUTLER: Sued Over Alleged Sexual Abuse Cover-up RIOT BLOCKCHAIN: April 18 Lead Plaintiff Bid Deadline RIOT BLOCKCHAIN: Levi & Korsinsky Files Securities Class Action SAFEGUARDCASUALTY: "Henderson" Hits Illegal Telemarketing Calls SANIMAX USA: Faces "Keech" Suit in D. Minnesota SCANA CORP: Judge Rules Electric Customers' Lawsuits Can Proceed SETERUS INC: Court Dismisses "Campbell" FCCPA Suit SIRIUS XM: Andrews Appeals C.D. California Ruling to 9th Circuit SMCP USA: Faces "Kiler" Suit in E.D. New York SOUTH CAROLINA ELECTRIC: Judge Orders Class-Action to Proceed STAAR SURGICAL: Class Action Suit Settled for $7-Mil. SUMMIT CREDIT: Faces "Domann" Suit in W.D. Wisconsin SUPER MICRO: April 9 Lead Plaintiff Bid Deadline SYSTEMATIC NATIONAL: "Aparicio" Hits Autodialed Collection Calls TASTE OF NATURE: Faces "Gillespie" Suit in C.D. California TE CONNECTIVITY: Appeals Ruling in "Wilson" Suit to Ninth Circuit TEXAS: Faces "Steward" Suit in District of Columbia TRANSWORLD SYSTEMS: Faces "Pavetic" Suit in N.D. Ohio TRAVELPORT LP: Eleventh Circuit Appeal Filed in "Williamson" Suit TROLLBEADS UNITED: Faces "Marett" Suit in S.D. New York TRUSTCO BANK: Faces "Delacruz" Suit in S.D. New York UBIQUITI NETWORKS: Levi & Korsinsky Files Securities Class Action UBIQUITI NETWORKS: Rosen Law Firm Files Class Action UBER TECHNOLOGIES: Faces "Dulberg" Suit in N.D. California UBER TECHNOLOGIES: Court Dismisses "Mejia" UBER TECHNOLOGIES: Ontario Judge Stays $400MM Class Action ULTA BEAUTY: Pomerantz Law Firm Files Class Action UNITED STATES: Veterans with PTSD Sue Over Biased Discharges UNIVERSAL FIDELITY: Faces "Gor" Suit in E.D. New York US BANK: Court Dismisses "Skibbe" FDCPA Suit VALENTINE & KEBARTAS: Faces "Beyer" Suit in E.D. New York WARREN COUNTY, OH: Adoptive Families File Suit in S.D. Ohio WELLS FARGO: April 16 Lead Plaintiff Bid Deadline Asbestos Litigation ASBESTOS UPDATE: Crane Co. Had 32,234 Pending Claims at Dec. 31 ASBESTOS UPDATE: "Nelson" Trial v. Crane Co. Set for April 2018 ASBESTOS UPDATE: "DeLisle" Suit v. Crane Co. Ongoing at Jan. 30 ASBESTOS UPDATE: "Poage" Suit v. Crane Co. Ongoing at Jan. 30 ASBESTOS UPDATE: Crane Co. Settles "Rabovsky" Lawsuit in 4Q2017 ASBESTOS UPDATE: "Coulbourn" Suit v Crane Co Ongoing at Jan. 30 ASBESTOS UPDATE: Ashland Global Had 54,000 Open Claims at Dec31 ASBESTOS UPDATE: Hercules LLC Has 12,000 PI Claims at Dec. 31 ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at Dec31 ASBESTOS UPDATE: PI Lawsuits v. Global Power Unit Still Pending ASBESTOS UPDATE: Jail Officials Win Summary Ruling in "Mitchell" ASBESTOS UPDATE: Illinois Central Entitled to Setoff in "Oakes" ASBESTOS UPDATE: Nexus Corp. Not Liable in "Amling" Suit ASBESTOS UPDATE: PI Claims vs. Plenco Dismissed in "Lineberger" ASBESTOS UPDATE: Dismissal of Asbestos Claims in "Davis" Affirmed ASBESTOS UPDATE: Bill Could Affect Asbestos Injury Claims ASBESTOS UPDATE: Bestwall Objects to Committee Counsel Retention ASBESTOS UPDATE: Daughter Names Copes Vulcan, et al., in Suit ASBESTOS UPDATE: Insurers Alert After Low Level Exposure Ruling ASBESTOS UPDATE: Claimant Atty Hails Landmark Asbestos Ruling ASBESTOS UPDATE: Fla. Courtroom Site of New Talc Trial ASBESTOS UPDATE: Court of Appeals Flips Ruling in "Bussey" ASBESTOS UPDATE: Zurich Reaches Landmark Cancer Treatments Deal ASBESTOS UPDATE: Asbestos Firm Must Face Insurers' Payback Suit ASBESTOS UPDATE: SF Firm Settles Appeal of $1.1MM Sanction ASBESTOS UPDATE: Sheldon Silver Can't Toss Charges ASBESTOS UPDATE: Insurer on Hook for $43MM in Libby Claims ASBESTOS UPDATE: Co. Pleads Guilty of Illegal Asbestos Removal ASBESTOS UPDATE: Worker Blames Paper Mill for Mesothelioma ASBESTOS UPDATE: Daughter Blames Arconic for Dad's Lung Cancer ASBESTOS UPDATE: Asbestos Find Shuts Down Hoddle Street ASBESTOS UPDATE: Workers Exposed to Asbestos at Sydney Airport ASBESTOS UPDATE: No Legal Charges Filed on Asbestos Case ASBESTOS UPDATE: Hospital Asbestos Drama Lead to Ward Crackdown ASBESTOS UPDATE: NY Judge Overseeing Asbestos Cases Reassigned ASBESTOS UPDATE: New Baden Contractor Guilty of Asbestos Offense ASBESTOS UPDATE: Missouri Passes Company-Friendly Asbestos Bill ASBESTOS UPDATE: Woman Dies from Asbestos Exposure ASBESTOS UPDATE: Contractor Fined for Burning Asbestos Debris ASBESTOS UPDATE: Asbestos Causes Union Boss to Retire Early ********* 2BEANS INC: Faces "Crosson" Suit in E.D. New York ------------------------------------------------- A class action lawsuit has been filed against 2Beans, Inc. The case is styled as Aretha Crosson, individually and as the representative of a class of similarly situated persons, Plaintiff v. 2Beans, Inc., Defendant, Case No. 1:18-cv-01502 (E.D. N.Y., March 12, 2018). 2beans, Inc. operates as a coffee outlet. It offers coffee drinks, such as specialty espressos and salted caramel lattes; and bakery products, including pastries, chocolates, tarts, eclairs, muffins, cupcakes, peanut butter banana honey, and bagels. 2beans, Inc. was incorporated in 2011 and is based in New York, New York.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11201 Tel: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com ABM INDUSTRIES: Seeks 9th Cir. Review of Ruling in "Castro" Suit ---------------------------------------------------------------- Defendants ABM Industries, Inc., ABM Onsite Services - West, Inc., ABM Services Inc., ABM Janitorial Services - Northern California Inc., and ABM Janitorial Services, Inc., filed an appeal from a court ruling in the lawsuit captioned Marley Castro, et al. v. ABM Industries, Inc., et al., Case No. 4:17-cv- 03026-YGR, in the U.S. District Court for the Northern District of California, Oakland. As reported in the Class Action Reporter on Feb. 5, 2018, the Hon. Judge Yvonne Gonzalez Rogers entered an order on Jan. 26, 2018, certifying these classes: (1) EPAY Class: "all employees who were, are, or will be employed by ABM in the State of California with the Employee Master Job Code Description code Cleaner, who used a personal cell phone to punch in and out of the EPAY system and who (a) worked at an ABM facility which did not contain biometric clock, and were (b) not offered an ABM-provided cell phone during the period beginning on January 1, 2012, through the date of notice to the Class Members that a class has been certified in this action"; (2) Suspicious Incidents Class: "all employees who were, are, or will be employed by ABM in the State of California with the Employee Master Job Code Description code Cleaner who used a personal cell phone to report unusual or suspicious circumstances to supervisors and were not offered an (a) ABM-provided cell phones or (b) two- way radio during the period beginning four years prior to the filing of the original complaint, October 24, 2014, through the date of notice to the Class Members that a class has been certified in this action; and (3) Supervisor Communications Class: "all employees who were, are, or will be employed by ABM in the State of California with the Employee Master Job Code Description code Cleaner who used a personal cell phone to respond to communications from supervisors and were not offered an (a) ABM-provided cell phones or (b) two-way radio during the period beginning four years prior to the filing of the original complaint, October 24, 2014, through the date of notice to the Class Members that a class has been certified in this action." The appellate case is captioned as Marley Castro, et al. v. ABM Industries, Inc., et al., Case No. 18-80019, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Respondents MARLEY CASTRO and LUCIA MARMOLEJO, individually and on behalf of all others similarly situated, are represented by: Hunter Pyle, Esq. HUNTER PYLE LAW 428 13th Street, 8th Floor Oakland, CA 94612 Telephone: (510) 444-4400 Facsimile: (510) 444-4410 E-mail: hunter@hunterpylelaw.com - and - Catha Worthman, Esq. FEINBERG, JACKSON, WORTHMAN & WASOW LLP 383 4th Street, Suite 201 Oakland, CA 94607 Telephone: (510) 269-7998 Facsimile: (510) 269-7994 E-mail: catha@feinbergjackson.com Defendants-Petitioners ABM INDUSTRIES, INC., ABM ONSITE SERVICES - WEST, INC., ABM SERVICES INC., ABM JANITORIAL SERVICES - NORTHERN CALIFORNIA INC. and ABM JANITORIAL SERVICES, INC., are represented by: Theodore J. Boutrous, Jr., Esq. Theane Evangelis, Esq. Bradley Joseph Hamburger, Esq. Katherine V.A. Smith, Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7804 Facsimile: (213) 229-6804 E-mail: tboutrous@gibsondunn.com tevangelis@gibsondunn.com bhamburger@gibsondunn.com ksmith@gibsondunn.com AGWAY ENERGY: Faces "Brown" Suit in W.D. Pennsylvania ----------------------------------------------------- A class action lawsuit has been filed against Agway Energy Services, LLC. The case is styled as James Brown, individually and on behalf of all others similarly situated, Plaintiff v. Agway Energy Services, LLC, Defendant, Case No. 22:18-cv-00321- NBF (W.D. Penn., March 13, 2018). Agway Energy Services, LLC provides natural gas and electricity to residential and commercial customers.[BN] The Plaintiff is represented by: D. Aaron Rihn, Esq. Robert Peirce & Associates, P.C. 707 Grant Street, Suite 2500 Pittsburgh, PA 15219 Tel: (412) 281-7229 Fax: (412) 281-4229 Email: arihn@peircelaw.com ALLERGAN INC: FWK Holdings Antitrust Suit Transferred to N.Y. ------------------------------------------------------------- The case captioned FWK Holdings, LLC, on behalf of itself and all others similarly situated, v. Allergan Inc., Defendants, Case No. 2:17-cv-00747, (E.D. Tex., November 17, 2017), was transferred to the U.S. District Court for the Eastern District of New York on February 6, 2018 under Case No. 18-cv-00677. FWK brings this class action for claims under federal and state antitrust laws to recover damages and obtain injunctive and equitable relief for the substantial injuries it and others similarly situated have sustained against Defendants, arising from their conspiracy to fix, maintain, and stabilize the prices of prescription cyclosporine emulsion. Allergan is the holder of approved New Drug Application No. 50- 790 for Cyclosporine Ophthalmic Emulsion, 0.05%, sold under the Restasis trademark. FWK Holdings, L.L.C. is an Illinois limited liability company located in Glen Ellyn, Illinois and is the assignee of antitrust claims possessed by Frank W. Kerr Company and brings this action as successor-in-interest to Kerr's claims arising from its purchase of pravastatin. Plaintiff is represented by: Aaron Schwartz, Esq. 850 Third Avenue New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 Email: aschwartz@kaplanfox.com - and - Robert N. Kaplan, Esq. Matthew Powers McCahill, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 Email: rkaplan@kaplanfox.com mmccahill@kaplanfox.com - and - John D. Radice, Esq. RADICE LAW FIRM 34 Sunset Blvd Long Beach, NJ 08008 Tel: (646) 245-8502 Fax: (609) 385-0745 Email: jradice@radicelawfirm.com - and - Thomas M. Sobol, Esq. Hannah Brennan, Esq. Kristen A. Johnson, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Tel: (617) 482-3700 Fax: (617) 482-3003 Email: tom@hbsslaw.com hannahb@hbsslaw.com kristenj@hbsslaw.com - and - Joseph M. Vanek, Esq. VANEK, VICKERS & MASINI P.C. 55 W. Monroe, Suite 3500 Chicago, IL 60603 Tel: (312) 224-1500 Fax: (312) 224-1510 E-mail: Jvanek@vaneklaw.com - and - Sidney Calvin Capshaw, III, Esq. CAPSHAW DERIEUX LLP 114 E Commerce Avenue Gladewater, TX 75647 Tel: (903) 233-4826 Fax: (903) 236-8787 Email: ccapshaw@capshawlaw.com Allergan, Inc. is represented by: Michael Sean Royall, Esq. Jason Cimma McKenney, Esq. GIBSON DUNN & CRUTCHER LLP - DALLAS 2100 McKinney Ave., Suite 1100 Dallas, TX 75201 Tel: (214) 698-3256 Fax: (214) 571-2900 Email: SRoyall@gibsondunn.com jmckenney@gibsondunn.com - and - Jack Wesley Hill, Esq. WARD, SMITH & HILL, PLLC 1507 Bill Owens Parkway Longview, TX 75604 Tel: (903) 757-6400 Fax: (903) 757-2323 Email: wh@wsfirm.com - and - Richard Hale Cunningham, Esq. GIBSON DUNN & CRUTCHER LLP 1801 California Street, Suite 4200 Denver, CO 80202 Tel: (303) 298-5752 Fax: (303) 313-2833 Email: rhcunningham@gibsondunn.com ALLSTATE CORP: Must Answer Suit on Lowered Underwriting Standards ----------------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that a federal judge in Chicago has cleared a group of investors to continue their class action against insurer Allstate for allegedly hurting the company's value by allegedly lowering underwriting standards to add higher-risk customers. In an opinion issued Feb. 27, U.S. District Judge Robert W. Gettleman said Carpenters Trust Pension Fund for Northern California and Carpenters Annuity Trust Fund for Northern California met the threshold to state a claim under the Private Securities Litigation Reform Act in their complaint against The Allstate Corporation, as well as former Allstate CEO Thomas Wilson and his successor, Matthew Winter. The investors accused all three parties of violating the Securities Exchange Act, and also seek to hold the executives personally liable. They say Allstate skirted rules starting in 2013 by secretly reducing underwriting standards so as to qualify customers who otherwise would have been deemed too risky. They say the gambit led to a spike in claims frequency starting in October 2014, ultimately hurting the company's bottom line and investment value. The class would include anyone who bought Allstate common stock between Oct. 29, 2014, and Aug. 3, 2015. The complaint also accuses Allstate of making false statements to cloud the real reason for the claim increase. In his opinion, Gettleman explained the plaintiffs' position that "these misstatements convinced initially skeptical securities analysts to view Allstate's financial outlook favorably despite the fact that its competitors were not experiencing similar increases in auto insurance claims frequency." The Aug. 3 date coincides with an Allstate release detailing second-quarter financial results, leading to shares tumbling 10 percent that day. The plaintiffs said Winter that day linked the underwriting standards to the claims spike and, during an earnings call the next day, admitted the financial hit was expected. They also raised concerns about Wilson liquidating $33 million in Allstate stock -- 85 percent of his direct holdings -- in November 2014, and another $6.2 million in May 2015. In arguing for dismissal, Allstate said the complaint cited company statements that were opinions, not determinable facts. Gettleman disagreed, noting the investors provided "numerous allegedly misleading factual statements," such as earnings call remarks, and press releases in which officials blamed the claims uptick on "external factors such as adverse weather." Allstate said reasonable investors would have inferred the company's conclusions were somewhat uncertain and therefore not misleading, but Gettleman sided with plaintiffs' contention that even if that were the case, that doesn't address the allegations that Allstate knew claims went up -- in part, at least -- because of relaxed underwriting standards. The company said Wilson's stock sales were typical estate planning and investment diversification moves, but Gettleman said the allegation "they are indicative of insider selling is both cogent and equally compelling, particularly in light of the other allegations in the complaint." He also agreed that allegations "Winter's statements attributing the increase in claims frequency to external factors were made with an intent to deceive investors" are as plausible as Allstate's counterargument. Gettleman also rejected Allstate's claim that because it partially disclosed the underwriting expansion in May 2015, the investors couldn't say the company's conduct directly caused shares to lose value. He explained they only needed to allege suffering economic loss when the stock price fell after the truth became known in the marketplace, and said the single-day drop of more than 10 percent is sufficient evidence. With the motion to dismiss denied on all counts, the judge directed Allstate to answer the complaint no later than March 27. A status hearing is set for April 11. The plaintiffs are represented in the action by attorneys Thomas A. Dubbs, Esq. -- tdubbs@labaton.com -- Christopher D. Barraza, Esq. -- cbarraza@labaton.com -- and Thomas G. Hoffman Jr., Esq. - - thoffman@labaton.com --of the firm of Labaton Sucharow LLP, of New York, and Louis C. Ludwig, of Pomerantz LLP, of Chicago. Allstate is defended by attorneys Raja S. Gaddipati, Esq. and John J Clarke Jr., Esq. -- john.clarke@dlapiper.com -- of the firm of DLA Piper LLP (US), with offices Chicago and New York. [GN] ALLSTATE INSURANCE: Seeks 9th Cir. Review of Decision in "Etter" ---------------------------------------------------------------- Defendants Allstate Insurance Co., Allstate Indemnity Company, Allstate Property & Casualty Insurance Company, Allstate North Brook Indemnity Company, Allstate Insurance Company of California and Louis Odaise filed an appeal from a court ruling in the lawsuit titled John Etter v. Allstate Insurance Co., et al., Case No. 3:17-cv-00184-WHA, in the U.S. District Court for the Northern District of California, San Francisco. As reported in the Class Action Reporter on Jan 26, 2018, Judge William Alsup granted in part and denied in part the Plaintiff's motion to certify two separate classes. Etter sought to certify two classes pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3): a. Class A: All persons or entities successfully sent a facsimile on or about May 25, 2015, stating, DO YOU KNOW THAT YOU CAN SAVE UP TO 40-60% ON COMMERCIAL AUTO INSURANCE?, To get your free quote, please complete the form below and fax to: (510) 234-0518, and You can unsubscribe at any time. Please fax your removal request to (877) 256-2022. b. Class B: All persons or entities successfully sent a facsimile on or about Oct. 11, 2016, stating, potentially save 40-60% off your Commercial auto insurance, fill out the form below and FAX YOUR REQUEST TO: 510-234-0518, TEL 510-234-0516, OR EMAIL: A026315@ALLSTATE.COM, and If you wish to be removed from our Fax list, please call 888-828-3086. Judge Alsup granted in part and denied in part Etter's motion for class certification. He granted certification of the proposed Class B because the class satisfies the requirements of Rule 23(a) and 23(b)(3) but denied Etter's motion to certify proposed Class A because he lacks standing. The appellate case is captioned as John Etter v. Allstate Insurance Co., et al., Case No. 18-80015, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent JOHN C. ETTER, individually and as the representative of a class of similarly-situated persons, is represented by: Willem Jonckheer, Esq. Robert C. Schubert, Esq. SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center San Francisco, CA 94111 Telephone: (415) 788-4220 Facsimile: (415) 788-0161 E-mail: wjonckheer@schubertlawfirm.com rschubert@schubertlawfirm.com Defendants-Petitioners ALLSTATE INSURANCE CO., ALLSTATE INDEMNITY COMPANY, ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE NORTH BROOK INDEMNITY COMPANY, ALLSTATE INSURANCE COMPANY OF CALIFORNIA and LOUIS ODAISE are represented by: Kirsten F. Gallacher, Esq. Meryl C. Maneker, Esq. Vickie Turner, Esq. WILSON TURNER KOSMO LLP 550 West C Street San Diego, CA 92101 Telephone: (619) 236-9600 E-mail: KGallacher@wilsonturnerkosmo.com mmaneker@wilsonturnerkosmo.com vturner@wilsonturnerkosmo.com ALLSTATE INSURANCE: Odaise Appeals Ruling in "Etter" to 9th Cir. ---------------------------------------------------------------- Defendant Louis Odaise filed an appeal from a court ruling in the lawsuit styled JOHN C. ETTER, individually and as the representative of a class of similarly-situated persons v. ALLSTATE INSURANCE CO., et al., Case No. 3:17-cv-00184-WHA, in the U.S. District Court for the Northern District of California, San Francisco. As reported in the Class Action Reporter on Jan. 26, 2018, Judge William Alsup granted in part and denied in part the Plaintiff's motion to certify two separate classes. This is a putative class action by the John Etter against Allstate, and Louis Odiase, an Allstate insurance agent. Etter asserts a single claim for violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, based on allegations that defendants sent a single unsolicited facsimile advertisement to Etter on Oct. 11, 2016, without his prior invitation or permission and without the legally-required opt-out notice language. Louis Odiase works as an independent contractor for Allstate and has sent fax advertisements since 2003 using fax broadcasters -- first, 127 High Street, and later WestFax. Over the years, they developed a "database" or "target list" of potential customers who had supposedly consented to receive advertisements by fax. The case concerns two specific mass fax broadcasts in two separate years -- 2015 and 2016. The appellate case is captioned as John Etter v. Louis Odaise, et al., Case No. 18-80017, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent JOHN C. ETTER, individually and as the representative of a class of similarly-situated persons, is represented by: Willem Jonckheer, Esq. Robert C. Schubert, Esq. SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center San Francisco, CA 94111 Telephone: (415) 788-4220 Facsimile: (415) 788-0161 E-mail: wjonckheer@schubertlawfirm.com rschubert@schubertlawfirm.com Defendant-Petitioner LOUIS ODAISE is represented by: Elizabeth Williams, Esq. KAUFMAN, DOLOWICH, & VOLUCK, LLP 425 California Street San Francisco, CA 94104-2414 Telephone: (415) 402-0059 E-mail: ewilliams@kdvlaw.com Defendants ALLSTATE INSURANCE CO., ALLSTATE INDEMNITY COMPANY, ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE NORTH BROOK INDEMNITY COMPANY and ALLSTATE INSURANCE COMPANY OF CALIFORNIA are represented by: Kirsten F. Gallacher, Esq. Meryl C. Maneker, Esq. Vickie Turner, Esq. WILSON TURNER KOSMO LLP 550 West C Street San Diego, CA 92101 Telephone: (619) 236-9600 E-mail: KGallacher@wilsonturnerkosmo.com mmaneker@wilsonturnerkosmo.com vturner@wilsonturnerkosmo.com ALLY FINANCIAL: Loses Counterclaim in "Vecchia" TCPA Suit --------------------------------------------------------- The United States District Court for the Middle District of Florida, Tampa Division, issued an Order granting Plaintiffs' Motion to Dismiss Defendants' Counterclaim in the case captioned JOSEPH DELLA VECCHIA, Plaintiff, v. ALLY FINANCIAL, INC., Defendant, Case No. 8:17-cv-2977-T-23AAS (M.D. Fla.). Joseph Della Vecchia moves to dismiss the counterclaims for failure to invoke subject-matter jurisdiction. Della Vecchia borrowed money from Ally Financial to buy a vehicle. After Della Vecchia defaulted on the loan, Ally allegedly called Della Vecchia more than a hundred times. Della Vecchia sues Ally under the Telephone Consumer Protection Act and the Florida Consumer Collection Protection Act. Although the TCPA claim and the counterclaims result generally from Della Vecchia's alleged failure to pay the loan, the TCPA claim and the counterclaims largely require different evidence. For example, success on the TCPA claim requires proof that Ally called Della Vecchia's cell phone with an automatic telephone dialing system, which proof might require Della Vecchia to depose an Ally corporate representative familiar with the company's telephone systems, a topic unrelated to the breach-of-contract and detinue counterclaims. Even if Della Vecchia consented in the contract to a call from Ally, the contractual consent might not foreclose the TCPA claim if Della Vecchia proves a subsequent revocation of consent. In sum, the counterclaims' superficial or tangential relation to the TCPA claim fails to establish supplemental jurisdiction. Tangentially or superficially related to the TCPA claim, the breach-of-contract and detinue counterclaims are not part of the same case or controversy as the TCPA claim. Even if the counterclaims invoke supplemental jurisdiction, the counterclaims likely will predominate over the TCPA claim. Accordingly, the motion to dismiss the counterclaims is granted, and the counterclaims are dismissed. A full-text copy of the District Court's February 15, 2018 Order is available at https://tinyurl.com/y7hyupta from Leagle.com. Joseph Della Vecchia, Plaintiff, represented by Kaelyn Steinkraus, The Law Office of Michael A. Zeigler, P.L. & Michael Andrew Ziegler, Law Office of Michael A. Ziegler, Esq, 13575 58th North Street, Suite 129, Clearwater, FL 33760 Ally Financial, Inc., Defendant, represented by Justin T. Wong, Troutman Sanders, LLP Bank of America Plaza, 401 Ninth Street N.W., Suite 1000. Washington, D.C. 20004 Robert Michael Daisley, Mediator, represented by Robert Michael Daisley -- rob@daisleymediation.com -- Law Office of Robert Michael Daisley, PA. Ally Financial, Inc., Counter Claimant, represented by Justin T. Wong, Troutman Sanders, LLP Bank of America Plaza. Joseph Della Vecchia, Counter Defendant, represented by Kaelyn Steinkraus, The Law Office of Michael A. Zeigler, P.L. & Michael Andrew Ziegler, Law Office of Michael A. Ziegler, Esq. AMERICAN CASINO: "Herrera" Sues Over Illegal Internet Tax --------------------------------------------------------- Robert Herrera, an individual on behalf of himself and all others similarly situated, Plaintiff, v. American Casino & Entertainment Properties, LLC, Stratosphere Gaming, LLC, Stratosphere Holding, LLC, Golden Entertainment (NV) , Inc. and Golden Casinos Nevada, LLC, Defendants, Case No. 18-cv-00218, (D. Nev., February 6, 2018), seeks damages and restitution for the total amount of taxes Defendants unlawfully charged and collected on the portion of the Resort Fees that constitutes charges for Internet access pursuant to the Internet Tax Freedom Act. Defendants charge overnight guests a mandatory, per-night resort fee which includes daily access for two guests each day to the fitness center at the property, daily in-room Internet access for two devices, and all local phone calls. When charging a Resort Fee that included Internet access, Defendants applied the Clark County Combined Transient Lodging Tax to the entire amount of the Resort Fee, which includes the portion of the Resort Fee that constitutes charges for Internet access. Golden Entertainment and Golden Casinos Nevada operate as "Golden Casins," while American Casino & Entertainment Properties, Stratosphere Gaming and Stratosphere Holding operates as Stratosphere Casino where Herrera was a guest. He claims to be taxed for internet access. [BN] Plaintiff is represented by: Don Springmeyer, Esq. Bradley Schrager, Esq. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP 3556 E. Russell Road, 2nd Floor Las Vegas, NV 89120-2234 Tel: (702) 341-5200 Fax: (702) 341-5300 Email: dspringmeyer@wrslawyers.com bschrager@wrslawyers.com - and - Patrick Madden, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Tel: (215) 875-3000 Fax: (215) 875-4604 Email: pmadden@bm.net - and - Stuart McCluer, Esq. MCCULLEY MCCLUER PLLC 1022 Carolina Blvd., Ste. 300 Charleston, SC 29451 Tel: (855) 467-0451 Fax: (662) 368-1506 Email: smccluer@mcculleymccluer.com AMERICAN GIRL BRANDS: Faces "Fischler" Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against American Girl Brands, LLC. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. American Girl Brands, LLC, Defendant, Case No. 1:18-cv-02134 (S.D. N.Y., March 9, 2018). American Girl Brands, LLC manufactures, distributes, and retails dolls, books, clothes, toys, and accessories in the United States.[BN] The Plaintiff appears PRO SE. AMERICAN RECOVERY: Faces "Cox" Suit in S.D. West Virginia --------------------------------------------------------- A class action lawsuit has been filed against American Recovery Service Incorporated. The case is styled as Eddie Dean Cox, Lawrence Christian and Denny Large, on behalf of themselves and all others similarly situated, Plaintiffs v. American Recovery Service Incorporated, Defendant, Case No. 5:18-cv-00436 (S.D. W.V., March 13, 2018). American Recovery Service Incorporated provides commercial accounts receivable management services.[BN] The Plaintiffs are represented by: Christopher B. Frost, Esq. HAMILTON BURGESS YOUNG & POLLARD P. O. Box 959 Fayetteville, WV 25840-0959 Tel: (304) 574-2727 Fax: (304) 574-3709 Email: cfrost@hamiltonburgess.com - and - Matthew Stonestreet, Esq. THE GIATRAS LAW FIRM 118 Capitol Street, Suite 400 Charleston, WV 25301 Tel: (304) 343-2900 Fax: (304) 343-2942 Email: matt@thewvlawfirm.com - and - Ralph C. Young, Esq. HAMILTON BURGESS YOUNG & POLLARD P. O. Box 959 Fayetteville, WV 25840-0959 Tel: (304) 574-2727 Fax: (304) 574-3709 Email: ryoung@hamiltonburgess.com - and - Steven R. Broadwater, Jr., Esq. HAMILTON BURGESS YOUNG & POLLARD P. O. Box 959 Fayetteville, WV 25840-0959 Tel: (304) 574-2727 Fax: (304) 574-3709 Email: sbroadwater@hamiltonburgess.com - and - Troy N. Giatras, Esq. THE GIATRAS LAW FIRM 118 Capitol Street, Suite 400 Charleston, WV 25301 Tel: (304) 343-2900 Fax: (304) 343-2942 Email: troy@thewvlawfirm.com APPLE INC: 9th Cir. Affirms Dismissal of "Phillips" --------------------------------------------------- The United States Court of Appeals, Ninth Circuit, affirmed the District Court's dismissal of the class action styled WILLIAM SCOTT PHILLIPS; SUZANNE SCHMIDT PHILLIPS; WILLIAM COTTRELL, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. APPLE INC., Defendant-Appellee, No. 16- 17189 (9th Cir.). Plaintiffs' appeal the district court's dismissal of their putative class action against Apple, Inc. for alleged violations of California's Unfair Competition Law (UCL) and False Advertising Law (FAL). Accordingly to the Ninth Circuit, the fact that Apple generally encourages consumers to install software updates does not establish that plaintiffs themselves are likely to be injured by future updates. They could choose not to install updates, or they could install them and immediately disable Wi-Fi Assist, the Ninth Circuit said. In either scenario, they will be unharmed. The Ninth Circuit also notes that despite plaintiffs' contention that they "have no choice but to upgrade their iOS devices," and the fact that Apple released eleven updates to iOS 9 in 2015 and 2016, none of the plaintiffs have experienced data overages as a result of Wi-Fi Assist since they discovered and disabled the feature. Plaintiffs therefore lack standing to seek injunctive relief. Plaintiffs did not allege that Apple received money or property, indirectly or otherwise, from their overage payments. The district court explicitly invited them to do so, granting them leave to amend their complaint to allege a sufficiently traceable connection between the money they paid and the money Apple received. Plaintiffs declined that opportunity. Absent any allegation that Apple directly or indirectly received the money plaintiffs paid their wireless carriers for excess data usage, they are not entitled to restitution, and the district court properly dismissed their UCL and FAL claims. A full-text copy of the Ninth Circuit's February 15, 2018 Memorandum is available at https://tinyurl.com/y9ag6pyk from Leagle.com. ARVEST BANK: Faces "Chandler" Suit in E.D. Arkansas --------------------------------------------------- A class action lawsuit has been filed against Arvest Bank. The case is styled as Jessica Chandler and Adam King, on behalf of himself and all others similarly situated, Plaintiffs v. Arvest Bank, Defendant, Case No. 3:18-cv-00043-DPM (E.D. Ark., March 12, 2018). Arvest Bank is a diversified financial services company headquartered in Bentonville, Arkansas, with branches in Arkansas, Kansas, Oklahoma, and Missouri.[BN] The Plaintiff is represented by: E. Adam Webb, Esq. Webb, Klase&Lemond, LLC 1900 The Exchange, S.E., Suite 480 Atlanta, GA 30339 Tel: (770) 444-0773 Email: adam@webbllc.com ASSET RECOVERY: Faces "Divine" Suit in D. New Jersey ---------------------------------------------------- A class action lawsuit has been filed against Asset Recovery Solutions, LLC. The case is styled as Naima Divine, individually and on behalf of all others similarly situated, Plaintiff v. Asset Recovery Solutions, LLC, Bureaus Investment Group Portfolio No 15 LLC and John Does 1-25, Defendants, Case No. 3:18-cv-03485 (D. N.J., March 13, 2018). Defendant Asset Recovery is a debt collector. [BN] The Plaintiff is represented by: YAAKOV SAKS, Esq. Revaz Chachanashvili Law Group. PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@rclawgroup.com ASHWOOD FINANCIAL: "Spiegel" Suit Brought Before 7th Cir. --------------------------------------------------------- The case captioned Mike Spiegel, individually and on behalf of all others similarly situated, Plaintiff/Appellant v. Ashwood Financial, Inc., an Indiana corporation, Defendant/Appellee, Case No. 18-1560 was brought before the United States Court of Appeals for the Seventh Circuit on March 13, 2018. Ashwood Financial, Inc. is a Nationwide Collection Agency.[BN] The Plaintiff/Appellant is represented by: David J. Philipps, Esq. PHILIPPS & PHILIPPS 9760 S. Roberts Road Palos Hills, IL 60465-0000 Tel: 708-974-2900 The Defendant/Appellee is represented by: Karen B. Neiswinger, Esq. LAW OFFICE OF KAREN NEISWINGER 5335 N. Tacoma Avenue P.O. Box 551099 Indianapolis, IN 46205-1099 Tel: 317-251-2250 ATRIUM HEALTH: Target of New Class Action Lawsuit ------------------------------------------------- Paul Boyd, writing for WSOCTV News, reports that Carolinas HealthCare System, recently rebranded Atrium Health, is the target of a new class-action lawsuit alleging anti-competitive conduct and high payments for thousands of patients. The suit comes on the heels of a similar civil antitrust lawsuit filed by the Department of Justice in 2016. That case is ongoing. Both complaints allege that CHS uses its market dominance to negotiate unlawful contracts that prevent insurance companies from offering lower-cost alternatives to patients. The class-action lawsuit potentially involves tens of thousands of patients who have stayed overnight in a Carolinas HealthCare System hospital over the past four years and reads in part: "As a direct result of CHS's anti-competitive conduct, inpatient consumers are forced to pay above-competitive prices for co- insurance and other direct payments to CHS." Atrium Health responded to the lawsuit by saying that it "neither violated any law nor deviated from accepted healthcare industry practices for contracting and negotiation. We believe this case is without merit and look forward to presenting our position in court." Legal experts said it's possible this latest lawsuit never sees the inside of a courtroom and said settlements are common in cases like this one, especially with legal pressure also coming from the Justice Department. The class-action lawsuit was filed by Charlotte-based Dozier Miller Law Group. Attorney Adam Hocutt, Esq. -- ahocutt@doziermillerlaw.com -- declined a full comment and told Channel 9 that "the lawsuit and its allegations speak for themselves." "On Feb. 28, 2018, a plaintiff filed a civil action against Atrium Health claiming that certain provisions in contracts between Atrium Health and insurance companies were financially detrimental. This follow-on suit mirrors arguments previously presented in related litigation. Atrium Health has neither violated any law nor deviated from accepted healthcare industry practices for contracting and negotiation. We believe this case is without merit and look forward to presenting our position in court. "Atrium Health has been recognized by healthcare and community groups, as well as by the government, for the quality care and cost reduction programs we have implemented. We are dedicated to our mission -- to improve health, elevate hope and advance healing -- for all, and our commitment to delivering high-quality services to anyone that comes through our doors will always be our main focus." [GN] AUDI OF AMERICA: Faces "Mcbride" Suit in E.D. Virginia ------------------------------------------------------ A class action lawsuit has been filed against Audi of America, LLC. The case is styled as Michael Mcbride, individually and on behalf of all others similarly situated, Plaintiff v. Audi of America, LLC, Audi Aktiengesellschaft and Volkswagen Aktiengesellschaft, Defendants, Case No. 1:18-cv-00284-LO-MSN (E.D. Va., March 14, 2018). Audi of America, LLC owns and operates Audi brand car dealerships in the United States.[BN] The Plaintiff is represented by: Mikhael David Charnoff, Esq. Perry Charnoff PLLC 1010 N Glebe Rd, Suite 310 Arlington, VA 22201 Tel: (703) 291-6650 Fax: (703) 563-6692 Email: mike@perrycharnoff.com AUTOZONE INC: "Hernandez" Suit Brought Before 2nd Cir. ------------------------------------------------------ The case captioned Kenneth Hernandez, individually and on behalf of all others similarly situated, Plaintiff/Respondent v. Autozone, Inc., Defendant/Petitioner, Case No. 18-711 was brought before the United States Court of Appeals for the Second Circuit on March 14, 2018. AutoZone is the largest retailer of aftermarket automotive parts and accessories in the United States. Founded in 1979, AutoZone has over 6,000 stores across the United States, Mexico, and Brazil. The company is based in Memphis, Tennessee.[BN] The Plaintiff/Respondent is represented by: Edwin John Kilpela, Jr., Esq. Carlson Lynch Sweet & Kilpela LLP 1133 Penn Avenue Pittsburgh, PA 15222 Tel: 412-322-9243 The Defendant/Petitioner is represented by: Evan Benjamin Citron, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1745 Broadway New York, NY 10019 Tel: 212-492-2068 AVANT GARDNER: Faces "Osorno" Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against Avant Gardner LLC. The case is styled as Arturo Osorno, Jose Manuel Pastrana, Fernando Perez Garcia and Samuel Lopez Montalvo, individually and on behalf of others similarly situated, Plaintiffs v. Avant Gardner LLC. doing business as: Brooklyn Mirage, AGDP Holding, Inc. doing business as: Brooklyn Mirage formerly known as: Avant Gardner Mgmt, Inc., Benjamin Roshia, Juergen Bildstein, Philipp Wiederkehr and Stanislav Chijik, Defendants, Case No. 1:18-cv- 01513 (E.D. N.Y., March 12, 2018). Avant Gardner operates a multifunctional, cultural, corporate, music and entertainment venue.[BN] The Plaintiffs appear PRO SE. BBC WORLDWIDE: Faces "Sullivan" Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against BBC Worldwide Americas, Inc. The case is styled as Phillip Sullivan Jr., on behalf of himself and all others similarly situated, Plaintiff v. BBC Worldwide Americas, Inc. doing business as: Top Gear, Defendant, Case No. 1:18-cv-02254 (S.D. N.Y., March 14, 2018). BBC Worldwide Americas, Inc. manages media and entertainment businesses in America.[BN] The Plaintiff appears PRO SE. BELLA BUS: Faces "Anderson" Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against Bella Bus Corp. The case is styled as Allan A Anderson and on behalf of similarly situated employees, Plaintiff v. Bella Bus Corp., Total Transportation Corp., Agostino Vona, John Cronin and Joseph Sgro, Defendants, Case No. 1:18-cv-01552 (E.D. N.Y., March 13, 2018). Bella Bus Corp. operates a carpool/vanpool business.[BN] The Plaintiff appears PRO SE. BELLICUM PHARMA: Johnson Fistel Files Class Action -------------------------------------------------- Shareholder rights law firm Johnson Fistel, LLP announces that a class action lawsuit has been filed against Bellicum Pharmaceuticals, Inc. (NASDAQ: BLCM) ("Bellicum") on behalf of all purchasers of common stock during the period between May 8, 2017 and January 30, 2018, inclusive (the "Class Period"). Bellicum focuses on discovering and developing novel cellular immunotherapies for the treatment of hematological cancers, solid tumors, and orphan inherited blood disorders. If you wish to serve as a lead plaintiff, you must move the Court no later than April 9, 2018. If you wish to discuss this action, have any questions concerning this notice, or your rights or interests, please contact lead analyst Jim Baker -- jimb@johnsonfistel.com -- at 619-814-4471. If you email, please include your phone number. 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. The complaint alleges that during the Class Period, defendants made false and misleading statements and failed to disclose adverse information. Specifically, defendants made false and misleading statements and failed to disclose that: (1) a substantial undisclosed risk of encephalopathy was associated with the Company's lead product candidate BPX-501; and (2) as a result, Bellicum's public statements were materially false and misleading at all relevant times. On January 30, 2018, after the market closed, Bellicum issued a press release announcing that it had ''received notice from the U.S. Food and Drug Administration that U.S. studies of BPX-501 have been placed on a clinical hold following three cases of encephalopathy deemed as possibly related to BPX-501.'' On this news, the price of Bellicum stock declined nearly 26%, on January 31, 2018. Plaintiff seeks to recover damages on behalf of all purchasers of Bellicum common stock during the Class Period. About Johnson Fistel Johnson Fistel, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. For more information about the firm and its attorneys, please visit http://www.johnsonfistel.com.Attorney advertising. Past results do not guarantee future outcomes. Jim Baker, Esq. Johnson Fistel, LLP Tel: 619-814-4471 Email: jimb@johnsonfistel.com[GN] BEN'S KOSHER: Faces "Avelar" Suit in E.D. New York --------------------------------------------------- A class action lawsuit has been filed against Ben's Kosher Delicatessen & Restaurant Inc. The case is styled as Oscar Avelar, on behalf of himself and others similarly situated, Plaintiff v. Ben's Kosher Delicatessen & Restaurant Inc., Ben's Restaurant Group, Inc. and Country Glen Kosher Restaurant, Inc., Defendants, Case No. 2:18-cv-01479 (E.D. N.Y., March 9, 2018). Ben's Kosher Delicatessen & Restaurant Inc operates in the restaurant industry.[BN] The Plaintiff appears PRO SE. BORROWERSFIRST INC: "Chavez" Sues Over Illegal Collection Calls --------------------------------------------------------------- Adrian Chavez, individually and on behalf of all others similarly situated, Plaintiff, v. Borrowersfirst, Inc., a Delaware Corporation, Defendant, Case No. 18-cv-00270, (S.D. Cal., February 6, 2018), seeks statutory damages and injunctive relief pursuant to the Telephone Consumer Protection Act. Plaintiff allegedly incurred financial obligations to Defendant and fell behind on payments. Borrowersfirst subsequently began contacting Chavez to collect on the alleged debt by placing autodialed calls to his cellular telephone number thereby incurring charges for incoming calls. [BN] Plaintiff is represented by: Abbas Kazerounian, Esq. Clark Conforti, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ak@kazlg.com clark@kazlg.com - and - Joshua Swigart, Esq. Yana A. Hart, Esq. HYDE AND SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 to 26 Email: Josh@westcoastlitigation.com yana@westcoastlitigation.com - and - Daniel G. Shay, Esq. LAW OFFICES OF DANIEL G. SHAY 409 Camino Del Rio South, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7429 Facsimile: (866) 431-3292 Email: danielshay@tcpafdcpa.com CALLE 8 LLC: Faces "Lopez" Suit S.D. New York --------------------------------------------- A class action lawsuit has been filed against Calle 8, LLC. The case is styled as Carlos Lopez, on behalf of others similarly situated, Plaintiff v. Calle 8, LLC doing business as: Calle 8, S&P Rothdish, LLC doing business as: Calle 8, Jeffrey Kadish also known as: Jeff Kadish, Joe Del Monte, Robert Stavis, Paul Zweben, Lawrence Bernstein, William Montgomery and Spencer Rothschild, Defendants, Case No. 1:18-cv-02173 (S.D. N.Y., March 12, 2018). Calle 8, LLC is in the restaurant business.[BN] The Plaintiff appears PRO SE. CAPITAL ONE: Faces "Dress" Suit in E.D. Virginia ------------------------------------------------- A class action lawsuit has been filed against Capital One Bank (USA), N.A. The case is styled as David Dress, on behalf of himself and all others similarly situated, Plaintiff v. Capital One Bank (USA), N.A., Defendant, Case No. 1:18-cv-00268-CMH-IDD (E.D. Va., March 9, 2018). Capital One Bank (USA), National Association offers financial products and services to consumers, small businesses, and commercial clients in the United States, Canada, and the United Kingdom.[BN] The Plaintiff is represented by: Kristi Cahoon Kelly, Esq. Kelly & Crandall PLC 3925 Chain Bridge Rd, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7570 Fax: (703) 591-9285 Email: kkelly@kellyandcrandall.com - and - Andrew Joseph Guzzo, Esq. Kelly & Crandall PLC 3925 Chain Bridge Rd, Suite 202 Fairfax, VA 22030 Tel: (703) 424-7576 Fax: (703) 591-0167 Email: aguzzo@kellyandcrandall.com - and - Casey Shannon Nash, Esq. Kelly & Crandall PLC 3925 Chain Bridge Rd, Suite 202 Fairfax, VA 22030 Tel: (703) 640-3334 Fax: (703) 591-0167 Email: casey@kellyandcrandall.com CENERGY INT'L: Court Refuses to Dismiss "Doiron" FLSA Suit ---------------------------------------------------------- The United States District Court for the Western District of Pennsylvania issued a Memorandum Opinion denying Defendants' Second Motion to Dismiss or, Alternatively, to Strike Class and Collective Allegations in the case captioned CHARLES DOIRON, individually and On behalf of all others similarly situated, Plaintiff, v. CENERGY INTERNATIONAL SERVICES, LLC, Defendant, Civil Action No. 2:17-cv-01203 (W.D. Pa.). Plaintiff asserts claims on behalf of himself and a class, pursuant to 29 U.S.C. Section 216(b) and Federal Rule of Civil Procedure 23. Plaintiff avers that Defendant violated the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA), by paying employees a day rate with no overtime. Under Rule 12(b)(6), a complaint must be dismissed for failure to state a claim if it does not allege enough facts to state a claim to relief that is plausible on its face. Defendant argues that Plaintiff's Amended Complaint fails to sufficiently plead both that he and the putative class members are similarly situated, and that an employer policy existed. In response, Plaintiff contends that his pleading complies with standards applicable at this stage in the litigation, and that Defendant's challenge is premature. Under the FLSA, an employee may bring a so-called collective action, and bring suit on their own behalf and on behalf of other employees similarly situated. Employees may be similarly situated if they suffer from a single policy, even if unofficial, that violates the FLSA. This is not one of the rare cases in which dismissal, or striking Plaintiff's class and collective allegations, is justified. Plaintiff pleads, inter alia, that a group of HSE advisors work for Defendant; those advisors are paid a day rate; and that those advisors work overtime, but are not paid overtime. He avers that in the alternative, these employees were misclassified as exempt from overtime requirements. This litigation has only recently commenced; the parties have engaged in no discovery, and have initiated no certification proceedings. Defendant's challenge rests on Plaintiff's failure to include details such as the names of Defendant's clients for whom Plaintiff and putative class members worked that are not required at this early stage. Defendant points to the possibility of similarity-destroying facts, such as client-determined policies, that are more appropriately addressed through and following discovery. More detailed allegations would certainly ease the path of this litigation; under applicable standards, however, Plaintiff's class and collective averments are adequate. Plaintiff's Amended Complaint comports with applicable standards. Defendant's Motion to dismiss or strike will be denied, without prejudice to Defendant to revisit its contentions at a later stage in this proceeding. A full-text copy of the District Court's February 15, 2018 Memorandum Opinion is available at https://tinyurl.com/y9hky2br from Leagle.com. CHARLES DOIRON, individually and on behalf of all others similarly situated, Plaintiff, represented by Joshua P. Geist, Goodrich & Geist, P.C., 3634 California Avenue Pittsburgh, Pennsylvania 15212, Andrew W. Dunlap -- adunlap@mybackwages.com - - Josephson Dunlap Law Firm, pro hac vice & Matthew S. Parmet -- mparmet@brucknerburch.com -- Bruckner Burch PLLC. CENERGY INTERNATIONAL SERVICES, LLC, Defendant, represented by Jean E. Novak -- jnovak@smgglaw.com -- Strassburger, McKenna, Gutnick & Gefsky & Trent A. Echard -- techard@smgglaw.com -- Strassburger McKenna Gutnick & Gefsky. CHILDRENS HOSPITAL: Dismissal of Forensic Exams Suit Reversed ------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, reversed the judgment of the District Court dismissing the case captioned N. L., a minor, by and through his Guardian ad litem and all others similarly situated Guardian Ad Litem Jacqueline Arce, Plaintiff- Appellant, v. CHILDRENS HOSPITAL LOS ANGELES; CHILDRENS HOSPITAL LOS ANGELES MEDICAL GROUP, Defendants-Appellees, No. 16-56019 (9th Cir.). The operative complaint alleges that CHLA violated N.L.'s constitutional rights by conducting an invasive forensic medical examination for signs of child abuse without judicial authorization and without his parents' knowledge or consent. The district court held that the pleading did not state a claim under Section 1983 because it did not plausibly allege that CHLA acted under color of state law. The pleading plausibly alleges that, in performing an intrusive forensic examination of N.L., CHLA was not providing medical treatment but instead was exercising its discretion to collaborate with county government in the laudable endeavor of investigating child abuse, a potential crime. The Ninth Circuit held that the complaint's allegations that CHLA acted under color of state law are sufficient to survive a motion to dismiss for failure to state a claim. A full-text copy of the Ninth Circuit's February 15, 2018 Memorandum is available at https://tinyurl.com/y7n7sxxm from Leagle.com. CHIPOTLE MEXICAN: Scott Appeals S.D.N.Y. Decision to 2nd Circuit ---------------------------------------------------------------- Plaintiffs Maxcimo Scott, Jay Francis Ensor, Christina Jewel Gateley, Stacy Higgs, Eufemia Jimenez, Matthew A. Medina and Krystal Parker filed an appeal from a court ruling in the lawsuit entitled Scott, et al. v. Chipotle Mexican Grill, Inc., et al., Case No. 12-cv-8333, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the Plaintiffs have previously filed appeals in the lawsuit, including an appeal from the denial of their motion for class certification. Chipotle has previously defeated certification of separate classes involving allegations that the job position of "Apprentice" was misclassified as exempt for purposes of paying overtime wages. The case was brought by seven individuals, who had worked as Apprentices in various Chipotle stores. The appellate case is captioned as Scott, et al. v. Chipotle Mexican Grill, Inc., et al., Case No. 18-359, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Appellants Maxcimo Scott, on behalf of himself and all others similarly situated, Jay Francis Ensor, Christina Jewel Gateley, Krystal Parker, Stacy Higgs, Eufemia Jimenez and Matthew A. Medina are represented by: Justin M. Swartz, Esq. Rachel M. Bien, Esq. Melissa L. Stewart, Esq. OUTTEN & GOLDEN LLP 685 3rd Avenue New York, NY 10017 Telephone: (212) 245-1000 E-mail: jms@outtengolden.com rmb@outtengolden.com mstewart@outtengolden.com - and - Paolo Chagas Meireles, Esq. SHAVITZ LAW GROUP, P.A. 1515 South Federal Highway Boca Raton, FL 33432 Telephone: (561) 477-8888 Facsimile: (561) 477-8831 E-mail: pmeireles@shavitzlaw.com - and - Brian Scott Schaffer, Esq. FITAPELLI & SCHAFFER, LLP 475 Park Avenue South New York, NY 10016 Telephone: (212) 300-0375 Facsimile: (212) 481-1333 E-mail: bschaffer@fslawfirm.com Defendants-Appellees Chipotle Mexican Grill, Inc., and Chipotle Services, LLC, are represented by: Richard J. Simmons, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 620-1780 E-mail: rsimmons@sheppardmullin.com - and - Lisa Marie Lewis, Esq. Brian Daniel Murphy, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 30 Rockefeller Plaza New York, NY 10112 Telephone: (212) 653-8700 E-mail: lmlewis@sheppardmullin.com bmurphy@sheppardmullin.com - and - Kendra N. Beckwith, Esq. John Shunk, Esq. MESSNER REEVES LLP 1430 Wynkoop Street Denver, CO 80202 Telephone: (303) 623-1800 E-mail: kbeckwith@messner.com jshunk@messner.com Movant National Employment Law Project is represented by: Seth R. Lesser, Esq. Michael Hayden Reed, Esq. KLAFTER OLSEN & LESSER LLP 2 International Drive Rye Brook, NY 10573 Telephone: (914) 934-9200 Facsimile: (914) 994-9220 E-mail: seth@klafterolsen.com michael.reed@klafterolsen.com CIVITAN FOUNDATION: Faces "Sullivan" Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Civitan Foundation, Inc. The case is styled as Phillip Sullivan Jr., on behalf of himself and all others similarly situated, Plaintiff v. Civitan Foundation, Inc., Defendant, Case No. 1:18-cv-02175 (S.D. N.Y., March 12, 2018). Civitan Foundation is a non-profit organization focusing on employment opportunities, education, day training (DTA programming), and promoting community for individuals with developmental disabilities.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com COINBASE: CA Claiming Insiders Benefited from Bitcoin Cash Launch ----------------------------------------------------------------- Ben Hancock, writing for The Recorder, reports that Coinbase is facing a new lawsuit alleging that its employees and other insiders reaped huge gains by trading on nonpublic information that the cryptocurrency exchange planned to support transactions in a Bitcoin offshoot called Bitcoin Cash. The class action suit, filed March 1 in the U.S. District Court for the Northern District of California, appears to be the first filed in a federal court alleging insider trading-like claims over Coinbase's announcement that it would handle transactions in Bitcoin Cash last December. According to the complaint, insiders drove up the price of Bitcoin Cash, also called BCH, by executing buy and sell orders moments after the move by Coinbase -- one of the largest cryptocurrency exchanges in the world. The activity caused the value of the cryptocurrency to spike by 200 percent in the minutes after trading opened on Dec. 19, the complaint adds. That led Coinbase to temporarily freeze trading, and remaining Bitcoin Cash purchasers were forced to pay "artificially inflated prices that had been manipulated well beyond the fair market value of BCH at that time," it alleges. The complaint also says that, while Coinbase CEO Brian Armstrong has publicly acknowledged suspicions of insider trading and pledged to undertake an internal investigation, "to date, neither Armstrong nor the company has disclosed the result of its purported investigation." The complaint was filed by Green & Noblin in Larkspur, California, and by The Grant Law Firm in New York. The named plaintiff, Jeffrey Berk, is an Arizona resident who alleges that his buy order for BCH was executed at roughly double the price as when he submitted it. Coinbase did not immediately respond to an email seeking comment about the lawsuit. Although the complaint makes insider trading-like allegations, it cites California's Unfair Competition Law and common law negligence as causes of action -- likely due to the fact that BCH is not currently regulated as a security. The Commodities Futures Trading Corp. has said that Bitcoin is a commodity. BCH was created last year by what is known as a "hard fork" of the Bitcoin blockchain -- the creation of a variant of the original software. According to the complaint, Coinbase initially suggested it would not handle transactions in BCH. The company later said it would begin supporting some transactions in BCH in January 2018 but then abruptly changed course by opening trading on Dec. 19, the complaint alleges. In a subsequent blog post, a senior Coinbase manager wrote that employees were notified about a month ahead of time that support for trading in BCH was coming. Those employees "were explicitly prohibited from buying and selling BCH," he added. "All employees were also barred from sharing this information with anyone outside of Coinbase." [GN] CONVERGENT OUTSOURCING: Faces "Carr" Suit in E.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Convergent Outsourcing, Inc. The case is styled as Jayson Carr, individually and on behalf of all others similarly situated, Plaintiff v. Convergent Outsourcing, Inc., Defendant, Case No. 2:18-cv-01477- ADS-GRB (E.D. N.Y., March 9, 2018). Convergent Outsourcing, Inc. offers business process outsourcing, revenue cycle, and receivables management services. It also provides receivables collection services to credit grantors in retail, telecommunications, and utilities industries.[BN] The Plaintiff is represented by: Joseph Mauro, Esq. The Law Office of Joseph Mauro, LLC 306 McCall Avenue West Islip, NY 11795 Tel: (631) 669-0921 Fax: (631) 669-5071 Email: JoeMauroesq@hotmail.com CUSTOMER CONNEXX: Time to Respond to "Curley" Extended ------------------------------------------------------ The United States District Court for the District of Nevada extended the time for Defendants to file responsive pleading to Plaintiff's Collective and Class Action Complaint in the case captioned DANIELLE CURLEY, on behalf of herself and all others similarly situated, Plaintiff, v. CUSTOMER CONNEXX LLC; ARCA, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. 2:18-cv-00233-JAD-GWF (D.Nev.). Defendants Customer Connexx LLC and ARCA, Inc., by and through their counsel of record, Jackson Lewis P.C., and Plaintiff Danielle Curley, by and through her counsel of record, Thierman Buck LLP, stipulated to extend the time for Defendants to answer or otherwise respond to Plaintiff's Collective and Class Action Complaint for two weeks because the defense counsel were only recently retained and require the additional time to investigate and prepare Defendants' response. A full-text copy of the District Court's February 15, 2018 Order is available at https://tinyurl.com/ya9q7cf8 from Leagle.com. Danielle Curley, Plaintiff, represented by Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP & Mark R. Thierman -- mark@thiermanbuck.com -- Thierman Buck, LLP. Customer Connexx LLC & ARCA, Inc., Defendants, represented by Paul T. Trimmer -- trimmerp@jacksonlewis.com -- Jackson Lewis P.C. DIRECT ENERGY: "Gomez" Sues Over Illegal Telemarketing Calls ------------------------------------------------------------ Ryeshea Gomez, on behalf of herself and all others similarly situated, Plaintiff, v. Direct Energy, L.P., Defendant, Case No. 18-cv-00301 (M.D. Pa., February 6, 2017), seeks injunctive and declaratory relief, statutory damages of $500.00 for each and every call, treble damages of up to $1,500.00 for each and every call, attorneys' fees and costs, and such other relief for violation of the Telephone Consumer Protection Act. Direct Energy is an energy company that provides electricity and natural gas services. Direct Energy called Gomez's cellular telephone number with an automatic telephone dialing system, without any consent whatsoever, to sell its services. [BN] Plaintiff is represented by: Sergei Lemberg, Esq. LEMBERG LAW, LLC 43 Danbury Road, 3rd Floor Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 EQUIFAX INC: Faces "Cunniff" Suit in N.D. Georgia ------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as John L. Cunniff, on behalf of himself and all others similarly situated, Plaintiff v. Equifax, Inc., Defendant, Case No. 1:18-cv-01071-TWT (N.D. Ga., March 14, 2018). Equifax Inc. is a publicly traded corporation with its principal place of business located in Atlanta, Georgia. Equifax is the oldest and second-largest consumer credit reporting agency in the United States.[BN] The Plaintiff appears PRO SE. EQUIFAX INC: Faces "Ramirez" Suit in N.D. Georgia ------------------------------------------------- A class action lawsuit has been filed against Equifax, Inc. The case is styled as Jonathan Ramirez, individually and on behalf of all others similarly situated, Plaintiff v. Equifax, Inc. and Equifax Information Services, LLC, Defendants, Case No. 1:18-cv- 01025-TWT (N.D. Ga., March 9, 2018). Equifax Inc. is a publicly traded corporation with its principal place of business located in Atlanta, Georgia. Equifax is the oldest and second-largest consumer credit reporting agency in the United States.[BN] The Defendants are represented by: Jonathan Daniel Klein, Esq. Clark Hill PLC -PA One Commerce Square 2005 Market Street, Suite 1000 Philadelphia, PA 19103 Tel: (215) 640-8500 Email: jklein@clarkhill.com EVERSOURCE ENERGY: Consumers Hit Inflated Gas, Electricity Prices ----------------------------------------------------------------- Nicholas Correia Everso, Donna Cordeiro, Janice Angelillo, Anna Maria Fornino, Michele Cassetta, Judy Cennami, Janice Brady, Opal Ash, Mark Lejeune and Roberto Prats, on behalf of themselves and others similarly situated, Plaintiffs, v. Eversource Energy, a Massachusetts voluntary association and Avangrid, Inc., a New York corporation, Defendants, Case No. 18-cv- 10235 (D. Mass., February 6, 2018), seeks monetary damages and injunctive relief on behalf of New England energy consumers who paid supracompetitive prices for natural gas and electricity during the period from August 1, 2013 through at least July 31, 2016, in violation of the Sherman Act, the Clayton Act and various state consumer protection laws. Eversource Energy is a public utility holding company primarily engaged in the energy delivery business. Avangrid, Inc. owns electric generation, transmission, and distribution companies and natural gas distribution, transportation and sales companies in New York, Maine, Connecticut, and Massachusetts. Defendants allegedly exploited their ability to reserve and then cancel critical pipeline capacity without penalty to reduce natural gas supplies and increase natural gas prices, particularly during the New England Winter. Defendants' manipulation of natural gas capacity in New England artificially inflated the price paid by all power plants in New England that generate electricity from natural gas thereby increasing the cost of natural gas and electricity purchased by Plaintiffs, says the complaint. [BN] Plaintiff is represented by: Thomas M. Sobol, Esq. Kristie A. LaSalle, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Tel: (617) 482-3700 Fax: (617) 482-3003 Email: tom@hbsslaw.com kristiel@hbsslaw.com FORSTER & GARBUS: Faces "Gordon" Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Forster & Garbus, LLP. The case is styled as Larry Gordon, on behalf of himself and all others similarly situated, Plaintiff v. Forster & Garbus, LLP, Transworld Systems, Inc., National Collegiate Student Loan Trust 2006-3, The National Collegiate Funding LLC, Vantage Capital Group, LLC, Mark A. Garbus and Ronald Forster, Defendants, Case No. 2:18-cv-01538 (E.D. N.Y., March 12, 2018). Forster & Garbus LLP provides legal services. The Company specializes in collecting debts.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Tel: (631) 335-1107 Email: mpash@verizon.net FREEDOM MORTAGE: Faces "Weinshank" Suit in Cal. Superior Court -------------------------------------------------------------- A class action lawsuit has been filed against Freedom Mortage Corporation. The case is styled as Hal Weinshank, on behalf of all others similarly situated, Plaintiff v. Freedom Mortage Corporation, Defendant, Case No. 34-2018-00229068-CU-OE-GDS (Cal. Super. Ct., March 14, 2018). Freedom Mortgage Corporation, doing business as Jefferson Home Mortgage and Loan, LLC, provides residential mortgage lender services.[BN] The Plaintiff is represented by: Kenneth H Yoon, Esq. 624 S Grand Ave Los Angeles, CA 90017, USA Tel: +1 213-612-0988 GALLITOS MEXICAN: Faces "Lucero" Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Gallitos Mexican Urban Kitchen Inc. The case is styled as Teodoro Cuevas Lucero, individually and on behalf of others similarly situated, Plaintiff v. Gallitos Mexican Urban Kitchen Inc. doing business as: Gallito's Kitchen, BaharMit Rana Rest Corp. doing business as: Gallito's Kitchen, AQSA Food Corp. doing business as: Gallito's Kitchen, Bahar Rest Corp. doing business as: Gallito's Kitchen and Bahar H Khandakar, Defendants, Case No. 1:18-cv-01542 (E.D. N.Y., March 13, 2018). Gallitos Mexican Urban Kitchen Inc. operates in the restaurant industry.[BN] The Plaintiff appears PRO SE. GAY AND LESBIAN: Lawyers Team for Class Suit Over Canceled Event ---------------------------------------------------------------- Samantha Joseph, writing for Daily Business Review, reports that Rodney Ferrell trained for months and spent more than $4,000 on airfare, hotel, car rental and other expenses to travel to Miami Beach for the 2017 World OutGames, according to his attorneys. The Los Angeles television producer and tennis player came to South Florida for what was billed as a 10-day event beginning May 26 and showcasing LGBTQ athletes from 59 countries. But only hours before the official start, Ferrell and thousands of other participants learned organizers had botched spending, canceled the opening and closing ceremonies, and could no longer host many of the conferences and social gatherings. Now, Ferrell is the lead plaintiff in a putative class action filed by South Florida and California attorneys against the organizers -- the Gay and Lesbian International Sport Association, OutGames founder Ivan Cano, chief financial officer Keith Hart and Miami Beach-Miami LGBT Sports & Cultural League Inc., also known as World OutGames Miami 2017. "He chose to come forward in part because nobody else has," said South Florida class counsel Marc A. Wites, Esq. -- Mwites@wklawyers.com -- of the Wites Law Firm in Lighthouse Point. "It's an effort to speak out for the athletes and people from all over the country who . . . trained and spent money to come to an event that was billed as a spectacular extravaganza when all along the promoters knew it was never going to come to fruition." The five-count complaint filed in Miami federal court alleges breach of contract, unjust enrichment, breach of implied contract, violation of Florida's Deceptive and Unfair Trade Practices Act and breach of implied covenant of good faith and fair dealing. The lawsuit claims organizers knew they could not deliver but continued to promote a dazzling array of attractions. A three-day Global Conference on Human Rights, for instance, was supposed to feature more than 50 speakers, and a cultural program would include art, dance, music, literary and vocal music offerings from around the world. Celebrities including Omar Sharif Jr. and Tito Puente Jr. were slated to entertain during the opening ceremony. Instead, news reports soon emerged showing organizers raised more than $1 million but spent more than $600,000 on consulting, advertising and promotional fees. Miami Beach police found no "malicious intent" and declined to file criminal charges OutGames did not respond to requests for comment by deadline, and no attorney has entered an appearance on the organizers' behalf in the suit filed Feb. 19. Meanwhile, class co-counsel Darin T. Beffa, Esq. -- darin@beffalaw.com -- of Beffa Law in Los Angeles drew comparisons to the ill-fated and high-priced Fyre Festival, which organizers had pitched as "Coachella in the Bahamas," with tickets costing up to $12,000 a piece. "It's sort of a strikingly similar situation," Beffa said. Fyre unraveled when attendees discovered that instead of private luxury villas, organizers had provided carpeted tents with outdoor toilets. At least four class actions against the music festival's organizers are pending in Florida, New York and California. The OutGames litigation was assigned to U.S. District Judge Kathleen M. Williams. [GN] GE SAVINGS PLAN: Fund Mismanagement Suit Transferred to Mass. ------------------------------------------------------------- The case captioned Kristi Haskins, Laura Scully and Donald J. Janak, individually and as representatives of a class of similarly situated persons in the General Electric Retirement Savings Plan and the General Electric Savings and Security Program, Plaintiffs, v. General Electric Company, General Electric Retirement Savings Plan Trustees and Does 1-30, Defendant, Case No. 17-cv-1960 (S.D. Cal., September 26, 2017), was transferred to the United States District Court for the District of Massachusetts on February 7, 2018, under Case No. 18- cv-10234. General Electric (GE) operates a global digital industrial company and an investment management business through GE Asset Management Incorporated. Plaintiffs participated in GE's 401(k) Plan, the General Electric Retirement Savings Plan, with GE as the Plan's sponsor and administrator. Plaintiffs claim that the fund is mismanaged as a result of GE's selection of poor-to- mediocre-performing investment options in violation of the Employee Retirement Income Security Act of 1974. [BN] General Electric Retirement Savings Plan Trustees are represented by: Andrew H. Miller, Esq. David W Sanford, Esq. SANFORD HEISLER SHARP, LLP 1666 Connecticut Ave., NW, Suite 300 Washington, DC 20009 Telephone: (202)499-5200 Facsimile: (202)499-5199 Email: amiller@sanfordheisler.com dsanford@sanfordheisler.com - and - Charles H. Field, Esq. SANFORD HEISLER SHARP, LLP 655 West Broadway, Suite 1700 San Diego, CA 92101 Tel: (619) 577-4253 Fax: (619) 577-4250 Email: cfield@sanfordheisler.com - and - David Hahn Tracey, Esq. SANFORD HEISLER SHARP, LLP 1350 Avenue of the Americas, 31st Floor New York, NY 10019 Tel: (646) 402-5667 Fax: (646) 402-5651 Email: mdtracey@sanfordheisler.com - and - Kevin Sharp, Esq. Sanford Heisler Sharp, LLP 611 Commerce Street, Suite 3100 Nashville, TN 37203 Tel: (615) 434-7001 Fax: (615) 434-7020 Email: ksharp@sanfordheisler.com General Electric Company is represented by: Alison V. Douglass, Esq. James O. Fleckner, Esq. GOODWIN PROCTER, LLP 100 Northern Avenue Boston, MA 02210 Tel: (617) 570-1676 Fax: (617) 523-1231 Email: adouglass@goodwinprocter.com jfleckner@goodwinprocter.com - and - Laura Alexandra Stoll, Esq. GOODWIN PROCTER LLP 601 South Figueroa Street, 41st Floor Los Angeles, CA 90017 Tel: (213) 426-2500 Fax: (213) 623-1673 Email: lstoll@goodwinlaw.com - and - Jaime A. Santos, Esq. Matthew S. Sheldon, Esq. GOODWIN PROCTER LLP 901 New York Avenue, NW Washington, DC 20001 Tel: (202) 346-4000 Fax: (202) 346-4444 Email: msheldon@goodwinlaw.com jsantos@goodwinlaw.com GENERAL MOTORS: Faces "Manning" Suit in S.D. Florida ----------------------------------------------------- A class action lawsuit has been filed against General Motors Company. The case is styled as Steven Manning, Andrew Hill and Nathan Dodge, on behalf of themselves and all others similarly situated, Plaintiffs v. General Motors Company, General Motors Holdings, LLC and General Motors, LLC, Defendants, Case No. 1:18- cv-20914-JLK (S.D. Fla., March 9, 2018). The Plaintiff is represented by: John Heyward Hickey, Esq. Hickey Law Firm PA 1401 Brickell Avenue, Suite 510 Miami, FL 33131 Tel: (305) 371-8000 Fax: 371-3542 Email: FEDERALCOURTFILINGS@HICKEYLAWFIRM.COM GLYNN COUNTY, GA: Mock Files Suit v. County Sheriff, et al. ----------------------------------------------------------- A class action lawsuit has been filed against Glynn County, Georgia. The case is styled as Margery Freida Mock and Eric Scott Ogden, Jr., individually and on behalf of others similarly situated, Plaintiffs v. Glynn County, Georgia, E. Neal Jump Glynn County Sheriff, Alex Atwood, Glynn County Chief Magistrate Judge and B. Reid Zeh, III, Glynn County Misdemeanor Public Defender, Defendants, Case No. 2:18-cv-00025-LGW-RSB (S.D. Ga., March 9, 2018). Glynn County is a county located in the U.S. state of Georgia. As of the 2010 census, the population was 79,626. The county seat is Brunswick. Glynn County is part of the Brunswick, Georgia Metropolitan Statistical Area.[BN] The Plaintiffs are represented by: Andrea Woods, Esq. American Civil Liberties Union 125 Broad St. 18th Floor New York, NY 10004 Tel: (212) 549-2528 Email: awoods@aclu.org - and - James A Yancey, Jr., Esq. James A. Yancey, PC 704 G Street Brunswick, GA 31520 Tel: (912) 265-8562 Fax: (912) 265-8564 Email: jayjr@standinthegap.biz - and - Twyla Carter, Esq. American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 Tel: (347) 749-7138 Email: tcarter@aclu.org GOOGLE: Former Employee Files Sexual Harassment Lawsuit ------------------------------------------------------- Flora Carr, writing for Fortune, reports that Google is being sued by a former employee, who alleges that she endured constant harassment and "lewd comments" due to the company's unhealthy "bro culture." Loretta Lee, a software engineer who worked for the Silicon Valley giant from 2008 until she was fired Feb. 2016, filed suit against Google for sexual harassment, gender discrimination, and wrongful termination in Santa Clara County Superior Court, Calif., reports Gizmodo. Lee alleges that she was subject to constant "lewd comments, pranks and even physical violence," claiming that male co-workers spiked her drinks, and on one occasion slapped her while intoxicated during a holiday party. She was also shot at with nerf guns, and received a message from a co-worker asking for a "horizontal hug." The lawsuit also highlighted an occasion where Lee found a male co-worker hiding under desk, who allegedly shouted "You'll never know what I was doing!" when he realised he was discovered. "The incident with the co-worker under her desk unnerved her," the lawsuit says. "Plaintiff [Lee] had never spoken to that co- worker before. She was frightened by his comment and believed he may have installed some type of camera or similar device under her desk." When Lee eventually complained, she claims her co-workers retaliated by refusing to approve her code, which resulted in the termination of her employment in 2016 due to "poor performance." "We have strong policies against harassment in the workplace and review every complaint we receive," Ty Sheppard, a Google (GOOGL, +1.13%) spokesman, said in a statement. "We take action when we find violations -- including termination of employment." Lee's is the latest in a series of lawsuits against the tech giant, including James Damore's class action lawsuit alleging the intolerance of white male conservatives. [GN] HEALTHPORT TECHNOLOGIES: Kuchenmeister Appeals Order to 11th Cir. ----------------------------------------------------------------- Plaintiffs Beth A. Bretoi, Cindy A. Hugger-Gravitt and Leon Kuchenmeister filed an appeal from a court ruling entered in their lawsuit titled Leon Kuchenmeister, et al. v. Healthport Technologies, LLC, et al., Case No. 1:17-cv-01001-RWS, in the U.S. District Court for the Northern District of Georgia. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendants citing alleged breach of contract, fraud and unjust enrichment from overcharging patients for health records. The Plaintiffs filed a complaint on behalf of all those similarly situated alleging that the Defendants excessively charged the Plaintiffs for copies of their personal health information. According to the complaint, the Plaintiffs sustained financial harm from being unlawfully charged. The Plaintiffs hold the Defendants responsible because the Defendants allegedly charged their patients for providing medical records requested by their physicians or hospitals. The appellate case is captioned as Leon Kuchenmeister, et al. v. Healthport Technologies, LLC, et al., Case No. 18-10468, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- The appellant's brief was due on or before March 19, 2018; -- The appendix is due no later than 7 days from the filing of the appellant's brief; and -- Appellee's Certificate of Interested Persons was due on or before March 7, 2018, as to Appellee CIOX Health, LLC.[BN] Plaintiffs-Appellants LEON KUCHENMEISTER, CINDY A. HUGGER-GRAVITT and BETH A. BRETOI, individually and on behalf of all those similarly situated, are represented by: Clifton Dorsen, Esq. James Marvin Feagle, Esq. SKAAR & FEAGLE, LLP 108 E Ponce De Leon Avenue, Suite 204 Decatur, GA 30030-2512 Telephone: (404) 373-1970 Facsimile: (404) 601-1855 E-mail: cdorsen@skaarandfeagle.com jfeagle@skaarandfeagle.com - and - Justin Tharpe Holcombe, Esq. SKAAR & FEAGLE, LLP 133 Mirramont Lake Drive Woodstock, GA 30189 Telephone: (770) 427-5600 E-mail: jholcombe@skaarandfeagle.com - and - Kris Skaar, Esq. SKAAR & FEAGLE, LLP PO Box 1478 Marietta, GA 30061-1478 Telephone: (770) 427-5600 E-mail: krisskaar@aol.com - and - Christopher Adam Johnston, Esq. Christopher Peter Martineau, Esq. JOHNSTON MARTINEAU PLLP 2233 Hamline Avenue N, Suite 102 Po Box 55113 Roseville, MN 55113 Telephone: (612) 767-7790 E-mail: cjohnston@jm-legal.com cmartineau@jm-legal.com - and - Keith J. Keogh, Esq. Donald Sawyer, Esq. Amy L. Wells, Esq. KEOGH LAW, LTD. 55 W. Monroe, Suite 3390 Chicago, IL 60603 Telephone: (312) 374-3405 Facsimile: (312) 726-1093 E-mail: Keith@Keoghlaw.com dsawyer@keoghlaw.com AWells@KeoghLaw.com Defendants-Appellees HEALTHPORT TECHNOLOGIES, LLC, d.b.a. IOD Incorporated d.b.a. Healthport Technologies, LLC; IOD INCORPORATED; and CIOX HEALTH, LLC, individually, are represented by: Thomas Artaki, Esq. Nathaniel J. Kritzer, Esq. Jay P. Lefkowitz, Esq. Marquel P. Reddish, Esq. Alexandra Strang, Esq. KIRKLAND & ELLIS, LLP 601 Lexington Avenue New York, NY 10022 Telephone: (212) 446-4800 E-mail: thomas.artaki@kirkland.com nathaniel.kritzer@kirkland.com lefkowitz@kirkland.com marquel.reddish@kirkland.com allie.strang@kirkland.com - and - William V. Custer, IV, Esq. Jennifer B. Dempsey, Esq. BRYAN CAVE, LLP 1201 W Peachtree Street NW, Floor 14 Atlanta, GA 30309 Telephone: (404) 572-6828 Facsimile: (404) 572-6999 E-mail: bill.custer@bryancave.com jennifer.dempsey@bryancave.com HILTON WORLDWIDE: Faces "Delson" Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been filed against Hilton Worldwide Inc. The case is styled as Walter Delson, on behalf of himself and all others similarly situated, Plaintiff v. Hilton Worldwide Inc. and Does 1-10, inclusive, Defendants, Case No. 2:18-cv- 02140-DMG-AGR (C.D. Cal., March 14, 2018). Hilton Worldwide Holdings Inc., formerly Hilton Hotels Corporation, is an American multinational hospitality company that manages and franchises a broad portfolio of hotels and resorts.[BN] The Plaintiff is represented by: Adam Brett Wolf, Esq. Peiffer Rosca Wolf Abdullah Carr and Kane 9696 Culver City Suite 301 Culver City, CA 90232 Tel: (415) 766-3545 Fax: (415) 402-0058 Email: awolf@prwlegal.com - and - Catherine M Cabalo, Esq. Peiffer Rosca Wolf Abdullah Carr and Kane 4 Embarcadero Center 14 th Floor San Francisco, CA 94104 Tel: (415) 766-3592 Fax: (415) 402-0058 HITACHI CHEMICAL: $66MM Class Action Antitrust Case Settlement -------------------------------------------------------------- Jon Parton, writing for Courthouse News Service, reports that a federal judge granted preliminary approval to a proposed $66 million class action settlement on March 2 between capacitor manufacturer Hitachi Chemical and class action members in an antitrust case. The class action lawsuit, filed in the Northern District of California, alleged Hitachi Chemical and its subsidiaries worked with other competitors in order to inflate the price of capacitors, a component used in a variety of electronic products, in violation of U.S. antitrust laws. Hitachi Chemical announced in December that they had reached a settlement agreement with the two different class action members, made up of various tech companies who directly purchased the capacitors and individuals who indirectly purchased them through various electronic devices. U.S. District Judge James Donato wrote that the final approval hearing will take place on June 7. [GN] HONEYWELL INT'L: Seeks 8th Cir. Review of Order in "Pacheco" Suit ----------------------------------------------------------------- Defendant Honeywell International Inc. filed an appeal from an amended order entered on January 31, 2018, in the lawsuit styled Augustine Pacheco, et al. v. Honeywell International Inc., Case No. 0:17-cv-05048-SRN, in the U.S. District Court for the District of Minnesota - Minneapolis. The appellate case is captioned as Augustine Pacheco, et al. v. Honeywell International Inc., Case No. 18-1294, in the United States Court of Appeals for the Eighth Circuit. As previously reported in the Class Action Reporter on Jan. 19, 2018, Honeywell filed an appeal from a lower court decision in the lawsuit. That appellate case is styled Augustine Pacheco and Vicki Hansen, for themselves and others similarly-situated, Plaintiff-Appellees v. Honeywell International Inc., Defendant- Appellant, Case No. 18-1006. The lawsuit is brought to enforce collectively-bargained promises of Honeywell-sponsored healthcare until age 65 for employees, who took early retirement under the Honeywell-sponsored pension plan. Honeywell has announced that it plans to terminate the healthcare of more than 320 retirees, who are under age 65, and the healthcare of the retirees' families on January 1, 2018. The Plaintiffs sue for themselves and similarly-situated retirees and retirees' spouses, other dependents, and surviving spouses. Since the 1950s, Honeywell has been a party to collective bargaining agreements with the International Brotherhood of Teamsters Local 1145, which governed the currently operating Minnesota facilities and other Minnesota facilities now closed. The briefing schedule in the Appellate Case states that brief of Vicki Hansen and Augustine Pacheco was due on March 8, 2018.[BN] Plaintiffs-Appellees Augustine Pacheco and Vicki Hansen, for themselves and others similarly-situated, are represented by: John G. Adam, Esq. Stuart M. Israel, Esq. LEGGHIO & ISRAEL, P.C. 306 S. Washington, Suite 600 Royal Oak, MI 48607 Telephone: (248) 398-5900 E-mail: jga@legghioisrael.com israel@legghioisrael.com - and - Katrina E. Joseph, Esq. TEAMSTERS LOCAL 120 9422 Ulysses Street, N.E., Suite 120 Blaine, MN 55434 Telephone: (763) 267-6146 E-mail: kjoseph@teamsterslocal120.org Defendant-Appellant Honeywell International Inc. is represented by: Kenneth Winn Allen, Esq. Kathleen Ann Brogan, Esq. Craig Scott Primis, Esq. KIRKLAND & ELLIS LLP 655 15th Street, N.W., Suite 1200 Washington, DC 20005-0000 Telephone: (202) 879-5078 E-mail: winn.allen@kirkland.com kathleen.brogan@kirkland.com cprimis@kirkland.com - and - Donald Marion Lewis, Esq. Jeremy D. Robb, Esq. Joseph George Schmitt, Esq. NILAN JOHNSON LEWIS, PA 400 One Financial Plaza 120 S. Sixth Street Minneapolis, MN 55402 Telephone: (612) 305-7500 E-mail: dlewis@nilanjohnson.com jrobb@nilanjohnson.com jschmitt@nilanjohnson.com IDAHO: Court OKs Amendments to Settlement in Suit vs. DHW --------------------------------------------------------- The United States District Court for the District of Idaho issued an Order granting Joint Motion to Amend/Correct Class Action Settlement Agreement in the cases captioned K.W., by his next friend D.W., et al., Plaintiffs, v. RICHARD ARMSTRONG, in his official capacity as Director of the Idaho Department of Health and Welfare; PAUL LEARY, in his official capacity as Medicaid Administrator of the Idaho Department of Health and Welfare; and the IDAHO DEPARTMENT OF HEALTH AND WELFARE, a department of the State of Idaho, Defendants. TOBY SCHULTZ, et al., Plaintiffs, v. RICHARD ARMSTRONG, et al., Defendants, Case Nos. 1:12-cv-00022- BLW, 3:12-CV-58-BLW (D. Idaho.). The proposed Notice and the proposed process for mailing the Notice, are approved. The Notice will state that any objections must be mailed on or before March 31, 2018, and that the Court will hold a hearing on any objections on April 23, 2018, at 11:00 a.m. in the Federal Courthouse -- in Courtroom #3 of Chief Judge B. Lynn Winmill -- in Boise, Idaho. A full-text copy of the District Court's February 15, 2018 Order is available at https://tinyurl.com/ycbnxwho from Leagle.com. K W, by his next friend DW, Christie Mathwig, formerly known as, C L, A L, through her guardian EB, K S, through his next friend SS, Matthew S, through his guardian VS, N R, through her next friend GR, T F, through her guardian RF, T M, through his guardian TW, B B, through his next friend DB, R P, through her guardian TP, Marcia S, through her guardian DS, E L, Toby Schultz, Breanna Mullic & Caleb Hall, Plaintiffs, represented by James Marshall Piotrowski -- JPiotrowski@idunionlaw.com -- HERZFELD & PIOTROWSKI, Marty Durand, Herzfeld & Piotrowski, LLP, P.O. Box 2864Boise, ID 83701- 5528 & Richard Alan Eppink -- reppink@acluidaho.org -- American Civil Liberties Union of Idaho Foundation. Richard Armstrong, in his official capacity as Director of the IDH&W, Idaho Department of Health and Welfare, a department of the State of Idaho & Lisa Hettinger, in her official capacity as Medicaid Administrator of the IDH&W, Defendants, represented by Brian V. Church, Office of the Attorney General, Civil Litigation Division, Clay R. Smith, OFFICE OF ATTORNEY GENERAL, Cynthia Lin Yee-Wallace, Office of Attorney General Civil Litigation Division & W. Scott Zanzig, Office of the Idaho Attorney General, Civil Litigation. Idaho Care Providers Network, Amicus, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI & Marty Durand, Herzfeld & Piotrowski, LLP. INSMED INC: Court Dismisses "Hoey" Drug Securities Fraud Suit ------------------------------------------------------------- The United States District Court for the District of New Jersey granted the Defendant's Motion to Dismiss the case captioned WILLIAM T. HOEY, on behalf of Himself and all those similarly- situated, Plaintiff, v. INSMED INCORPORATED, WILLIAM H. LEWIS, and ANDREW T. DRECHSLER, Defendants, Civ. Action No. 16-4323 (FLW)(D.N.J.). Defendants moves for dismissal of the Amended Complaint, arguing, inter alia, that the challenged representations are not actionable because a duty to disclose was absent, the material statements constitute permissible opinions or corporate puffery, and Plaintiff has failed to adequately plead scienter. Lead Plaintiff Bucks County Employees Retirement Fund brings this putative class action, on behalf of itself and all other similarly situated individuals and entities, against Insmed Incorporated, a biopharmaceutical company, as well as Insmed's Chief Executive and Financial Officers, William H. Lewis, and Andrew T. Drechsler, respectively, alleging violations under various provisions of the applicable federal securities laws. Plaintiff's action is based on Defendants' alleged misrepresentations and omissions in connection with Insmed's target drug, Arikayce, and the results of its Phase 2 Trial, which, ultimately, failed to support regulatory approval. Insmed and Arikayce According to Plaintiff, Insmed is not profitable, as it has not developed a product for commercialization, but the company seeks regulatory approval of Arikayce, its primary drug candidate. Arikayce, currently a drug pending approval, is intended to treat non-tuberculous mycobacterial lung disease (NTM), a rare, and sometimes fatal, infection, for which there is currently no approved treatment. Overview of Clinical Trials In a Phase 1 Trial, the drug is introduced to a small group of patients, and the study is designed to assess how the drug is metabolized, the drug's safety profile, and the safe dosage range. A Phase 2 Trial, on the other hand, involves a medium- sized group of patients and identifies possible adverse effects and safety risks preliminarily evaluates the efficacy of the drug, and assesses dosage tolerance and optimal dosage. Lastly, in a Phase 3 Trial, a substantial amount of patients participate and the trial typically runs for a prolonged period of time, such that the overall benefit-risk relationship of the drug can be established, adequate information for the labeling of the drug is provided, and, most importantly, the drug can be evaluated by a regulatory agency for potential approval. The European Process for Regulatory Approval Europe's centralized procedure for regulatory approval permits a biopharmaceutical company to market an approved drug in all European Union (EU) member states. The approval process initiates with a letter of intent to submit a Marketing Authorization Application (MAA), generally no sooner than seven months before the MAA is submitted. Upon receipt, the MAA is evaluated by the EMA's Committee for Medicinal Products for Human Use (CHMP), which ultimately determines whether the drug's quality, safety, and efficacy are adequately proven. Two co-rapporteurs, representing two EU member states, are also appointed by the CHMP to lead the approval process. Generally, the CHMP issues a final opinion concerning the MMA within 210 days, excluding periods wherein the applicant is required to respond to the CHMP's questions by providing additional information. On the 120th day of the application process, after the CHMP reviews preliminary assessment reports and opinions provided by the co-rapporteurs, it submits a list of questions and an overall conclusion to the applicant (Day 120 Questions"). The applicant is expected to respond to the Day 120 Questions within three months; if required, however, the applicant is permitted to request an extension of an additional three months. Insmed's Phase 2 Trial Insmed revealed the results of the Phase 2 Trial. Although the applicable data did not satisfy the primary endpoint of the study, the results were, nevertheless, statistically significant; Insmed announced that the secondary endpoint of culture conversion was achieved: 11 out of 44 patients treated with Arikayce demonstrated negative cultures by day 84, as compared to 3 of the 45 patients who received a placebo. The FDA and EMA responded favorably to the data. On June 17, 2014, based on the results of the Phase 2 Trial, the FDA granted Arikayce with Breakthrough Therapy Designation. Additionally, following discussions with the EMA, Insmed determined that the Phase 2 trial data, alone, was sufficient to support regulatory approval from that agency. The Secondary Offering Insmed filed a Registration Statement with the SEC, in order to initiate a Secondary Public Offering (SPO), the net proceeds of which were, inter alia, intended to fund Insmed's efforts to obtain regulatory approvals and commercialize Arikayce. The Registration Statement was filed on a Form S-3, and offered to sell common stock in the Company on a delayed basis That is, the SPO was structured as a shelf registration, in that Insmed registered securities for sale and left them on the shelf, until it decided to conduct an offering, at a later point in time. The Day 120 Questions Insmed received the Day 120 Questions. Among other things, the EMA's Day 120 Questions included Major Objections outlining certain issues in connection with the design and execution of the Phase 2 Trial, in addition to Arikayce's safety and efficacy. Specifically, the EMA noted its concern with the short duration of the study: "There was no justification for a comparison with placebo over only 84 days. There are no safety data beyond 168 consecutive days and only 59 patients achieved this duration of exposure. It is not appropriate to ignore the fact that the applicant is promulgating continued use way beyond that supported by the safety database." Statements Regarding Arikayce's Efficacy Claims under Section 10(b) of the Exchange Act To state a claim under Section 10(b) of the Exchange Act and Rule 10b-5, the plaintiff must allege: (1) a material misrepresentation or omission, (2) scienter, (3) a connection with the purchase or sale of a security, (4) reliance, (5) economic loss, and (6) loss causation. Here, Defendants argue, among other things, that Plaintiff fails to state a claim for securities fraud because: (a) Plaintiff has not adequately alleged the requisite elements of falsity or scienter; and (b) the challenged statements are forward looking or constitute permissible expressions of opinion and corporate puffery. Under Section 10(b) and Rule 10b-5, "a misrepresentation or omission of fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important" in making an investment decision, and there is a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available. Importantly, to be actionable, a statement or omission must have been materially misleading at the time it was made; liability cannot be imposed on the basis of subsequent events. Here, Defendants argue that Plaintiffs have failed to adequately allege that Defendants' statements are materially false or misleading. Plaintiffs, on the other hand, contend that Defendants misled investors by making statements concerning (a) the Phase 2 Trial's rate of conversion; (b) Insmed's reaction to the Day 120 Questions; (c) the safety, efficacy, and durability of Arikayce; (d) the nature of Insmed's interactions with the EMA; and (e) Arikayce's prospects of approval. The Court will assess each set of allegedly false and misleading statements, in turn. Statements Concerning the Phase 2 Trial's Conversion Rate In the instant matter, the allegations concerning Defendants' alleged omissions, as pled in the Amended Complaint, do not state a legally valid claim, because they amount to an attack on the methodology of the Phase 2 Trial. To be clear, Plaintiff does not argue that Insmed inaccurately reported the results of the study after it concluded. Nor does Plaintiff contend that Insmed adjusted the study's underlying design or methodology, after the raw data was unblinded, in order to conceal or manipulate its results in favor of demonstrating Arikayce's efficacy. Rather, Plaintiff, in the Amended Complaint, alleges that the reported rate of conversion transforms into a statement that is materially false and misleading when accounting for the flawed methodology under which it was determined. Indeed, Plaintiff essentially argues that the reported rate of conversion was artificially inflated, because the study included individuals who tested negative for NTM on the first day of trial. That is, if a different metric were utilized one, for example, which excluded negative day 1 cultures, Plaintiff concludes that Insmed could have accurately calculated the study's real rate of conversion: "Although Insmed reported that patients receiving Arikayce during the Phase 2 NTM trial had shown a culture conversion rate of approximately 30%, the true rate of culture conversion was just 8.5%. Thus, Plaintiff's allegations attempt to establish the falsity of Insmed's statements with regard to the results of the Phase 2 Trial, by attacking its underlying methodology. However, as noted above, courts throughout the country have consistently rejected this approach; Insmed's alleged omissions with regard to the design and structure of the Phase 2 Trial, therefore, fail to serve as a basis for a legally valid claim under the Exchange Act. Statements Concerning Insmed's Reaction to the Day 120 Questions As a threshold issue, the Court notes that Plaintiff does not support the allegations of fraud by citing to the Day 120 Questions, but rather, it solely relies upon various portions of the WAR which the EMA issued after the class period. Here, the WAR, upon which Plaintiffs relies in alleging fraud, was issued in June 2016, significantly after Insmed made the statements which form the basis of Plaintiff's securities fraud claim. Nonetheless, Plaintiff attempts to circumvent this timing issue by arguing that Insmed was aware of the need to apply a specific definition of culture conversion, which it allegedly ignored, upon receipt of the Day 120 Questions. Although a copy of the Day 120 Questions is not included as an exhibit to the Amended Complaint, the WAR contains a summary, in bullet point form, of the most significant concerns raised by the EMA in the Day 120 Questions. In that section of the WAR, titled "Summary of reasons for the Major Objection at D120, the EMA, admittedly, questions the application of the Phase 2 Trial's culture conversion definition; however, the EMA's critique in that context is insufficient to support Plaintiff's theory of falsity. Insmed Did Not Create a Duty to Disclose Here, Insmed did not create a duty to disclose information concerning the Phase 2 Trial. Plaintiff merely asserts that, because significant concerns were raised in the Day 120 Questions, which substantially decreased the probability of approval, Insmed was required to disclose these issues when it spoke positively about the results of the Phase 2 Trial and Arikayce's efficacy. However, as already noted, the Day 120 Questions are not the agency's final determination; instead, their primary purpose is to facilitate a discussion between the EMA and applicant, and the information gathered from this process is further considered by the EMA before deciding approvability. In that connection, district courts have found that a biopharmaceutical corporation is not required to disclose a regulatory agency's inconclusive findings, even if they undercut that corporation's position, merely because the drug was described favorably or its strength was touted. Statements Concerning Insmed's Interaction with the EMA and Arikayce Here, contrary to Plaintiff's contentions, Insmed has satisfied this obligation under the applicable securities law. Specifically, in a Form 10-K for the year ending 2015, Insmed explicitly states, in a paragraph titled RISK FACTORS, that risks and uncertainties could cause actual results to differ materially from those expressed or implied by forward-looking statements. Insmed then provides, inter alia, the following list of warnings, throughout various portions of the remainder of the document: (a) there can be no assurance that results from the Phase 2 Trial will be sufficient to obtain full or conditional marketing approval; (b) [i]f major objections raised during the review procedure are not subsequently resolved, it may impact our ability to obtain an approval without submission of additional study data; and (c) there is little or no precedent for clinical development and regulatory expectations for agents to treat NTM; as a result we may encounter challenges developing clinical endpoints and may need to reevaluate our surrogate endpoints. The Court finds that, in total, Plaintiff has failed to plead falsity as to the challenged representations made by Defendants. In that connection, Plaintiff's Section 10(b) claim fails on this basis alone. However, Plaintiff also fails to plead scienter. Scienter Scienter stands for the mental state of intent to deceive, manipulate or defraud. In arguing that the Individual Defendants acted with scienter, Plaintiff underscores the following: (1) Mr. Lewis and Mr. Drechsler, two high level officers, were likely aware of the trial's shortcomings, because the viability of Insmed depended on the success of Arikayce; (2) Mr. Lewis personally attended two co-rapporteur meetings, and likely had access to the Day 120 Questions, wherein the EMA presumably informed Insmed about the issues with the design and structure of the Phase 2 Trial; (3)Insmed was motivated to conceal the issues with the Phase 2 Trial, and maintain a positive perception of Arikayce, in order for patients to enroll in, and raise funding for, a Phase 3 Trial supporting approval; and (4) Doctor Gupta, a key facilitator of the Phase 2 Trial, resigned shortly after the results of the study were announced. Although the Court will examine the totality of the inferences raised by Plaintiff, those pertaining to the Individual Defendants' motive and opportunity will be analyzed before allegations related to conscious misbehavior or recklessness. Motive and Opportunity Plaintiff maintains that Insmed likely concealed the issues with Arikayce so patients would enroll in the Phase 3 Trial; however, the desire to conduct a successful study, upon which regulatory approval is sought, applies to all pharmaceutical companies and corporate officials. Therefore, this general allegation is insufficient for Plaintiff to meet its burden under the law. Likewise, for this same reason, Insmed's secondary offering, in which it raised $331 million for a Phase 3 Trial, also fails to support a strong inference of scienter. Because these allegations of motive are applicable to any corporation seeking to commercialize an investigational drug, Plaintiffs have failed to adequately plead motive. Conscious Misbehavior or Recklessness Plaintiff fails to provide details with respect to the dates on which the meetings took place, or the discussions, if any, which transpired between Mr. Lewis and the co-rapporteurs. In fact, based on the allegations, as pled in the Amended Complaint, the meetings could have plausibly occurred before the conclusion of the Phase 2 Trial, such that the EMA's concerns were not among either meeting's topics of conversation. The Court, therefore, cannot infer that Mr. Lewis was aware of the study's allegedly inadequate definition of culture conversion before the disputed representations were made, based upon his attendance of two meetings, the purposes of which Plaintiff has not adequately pled. Thus, Plaintiff has failed to adequately allege scienter on this basis. The Securities Act Here, the reasons as to why Plaintiff fails to state a legally sufficient claim under the Exchange Act are equally applicable to the claims brought under the Securities Act. Indeed, Plaintiff, once again, fails to adequately allege that Insmed was aware of the EMAs concerns, before making representations which Plaintiff challenges under the law. To begin, Plaintiff argues that the statements contained in Insmed's prospectus are actionable because it fails to disclose the following information: (a) Insmed was utilizing an unreasonably expansive definition of culture conversion which artificially inflated its true rate; (b) Residual amounts of Arikayce in patients' sputum samples likely interfered with culture results, leading to false culture conversions; (c) Insmed had not adequately studied or documented the possible advantages of using liposomal amikacin for inhalation or that the Phase 2 NTM Trial raised serious concerns about the safety of the drug and (d) the product quality of Arikayce was unsatisfactory. However, the prospectus, wherein these statements are included, was filed in March of 2015, before Insmed received the Day 120 Questions or the WAR was published. Significantly, Plaintiff does not identify, in the Amended Complaint, any other document or communication in which the EMA could have informed Insmed of these concerns. Plaintiff, therefore, has failed to adequately demonstrate that Insmed's statements in the prospectus were materially false at the time they were made. Defendants' Motion to Dismiss is GRANTED. A full-text copy of the District Court's February 15, 2018 Opinion is available at https://tinyurl.com/y7agxatf from Leagle.com. Bucks County Employees Retirement Fund, Movant, represented by SAMUEL H. RUDMAN -- srudman@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP, DONALD A. ECKLUND -- decklund@carellabyrne.com -- CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. & JAMES E. CECCHI -- jcecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. WILLIAM T. HOEY, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by BRUCE DANIEL -- GREENBERG epalomino@litedepalma.com -- LITE DEPALMA GREENBERG, LLC. INSMED INCORPORATED, WILLIAM H. LEWIS, ANDREW T. DRECHSLER, Donald Hayden, Jr., Alfred F. Altomari, Steinar J. Engelsen, M.D., David W.J. McGirr, Melvin Sharoky, M.D. & Randall W. Whitcomb, M.D., Defendants, represented by JONATHAN ROTENBERG -- jonathan.rotenberg@kattenlaw.com -- KATTEN MUCHIN ROSENMAN LLP. CITIGROUP GLOBAL MARKETS INC., Leerink Partners LLC, JMP SECURITIES LLC & Wainwright & Co., LLC, Defendants, represented by JONATHAN ROTENBERG, KATTEN MUCHIN ROSENMAN LLP & PHILIP S. ROSEN -- prosen@zeklaw.com -- ZEICHNER, ELLMAN & KRAUSE, LLP. JANSEN PHARMA: Pharma Cos. Sued Over Newborns' Opioid Addiction --------------------------------------------------------------- A class action lawsuit was filed February 28 in U.S. District Court of Southern Illinois suing several pharmaceutical companies manufacturing opioids, saying the prescription drug led to several babies being born addicted to opioids, various news sources reported. Within the lawsuit, details highlight one child born in March 2017. The baby's mother was prescribed opioids for a broken ankle. This prescription lead to an addiction to opioids and then heroin, according to the lawsuit. The woman's baby was born March 2017 at Alton Memorial Hospital with opioid withdrawals including excessive crying, refusing to feed, tremors and seizures. The condition is known as Neonatal Abstinence Syndrome. Illinois Majority Senate Leader James Clayborne is backing this lawsuit. "Healthy babies spend 1-2 days in the hospital, these babies, innocent victims, spend at least 28 days in the hospital for treatment," said St. Sen. James Clayborne Jr. Clayborne says the goal of this lawsuit is to hold the pharmaceutical companies responsible for the treatment and recovery of these babies. He does not want taxpayers to take on the treatment bills for these incidents. The Belleville News-Democrat said the case focused on the baby, only identified by his initials T.W.B. He was born March 21, 2017, and spent the first days of his life in "excruciating pain" as he was weaned from his opioid addiction, inherited from his mother. "Baby T.W.B. will require years of treatment and counseling to deal with the effects of prenatal exposure," the lawsuit says. "Baby T.W.B. and his mother are victims of the opioid crisis that has ravaged Illinois, causing immense suffering to those born addicted to opioids and great expense to those forced to deal with the aftermath." Alton residents Deric and Ceonda Rees, the baby's grandparents, filed the lawsuit on March 28 in the U.S. District Court of Southern Illinois. Ceonda Rees declined to comment, saying she had been advised not to discuss the lawsuit. The baby was diagnosed with Neonatal Abstinence Syndrome, which can cause breathing and feeding problems, and require a longer hospital stay while they are experiencing withdrawal symptoms. Taking opioids during pregnancy can also cause babies to be born with birth defects, according to Stanford Children's Health. The number of babies born with this disease has increased fivefold since 2000, according to the National Institute on Drug Abuse. At birth, Baby T.W.B. shook, refused to feed and cried excessively as he arched his back from the pain, according to the lawsuit. It was difficult to soothe him, and his development was delayed. The baby's mother became addicted to opioids when she was prescribed them for a broken ankle and broken hand as a young teenager. Her addiction to prescription opiates functioned as a gateway to heroin addiction, according to the lawsuit. The lawsuit alleges the mother consumed drugs made and distributed by each of the 20 defendants, including Dilaudid, Percocet, Oxycodone and Hydrocodone. The lawsuit accuses the pharmaceutical companies of creating an environment where opioids freely flow due to "false, negligent and unfair marketing/unlawful diversion of prescription opioids." The Reeses asked for equitable relief and medical monitoring to identify developmental issues that will "almost inevitably appear as they age," and fund services and treatment. "Baby T.W.B.'s experience is part of an opioid epidemic sweeping through the United States, including Illinois, that has caused thousands of infants great suffering and continuing developmental issues," the lawsuit says." This epidemic is the largest health care crisis in U.S. history." A similar lawsuit was filed in Louisiana on Feb. 27. The pharmaceutical companies included in the lawsuit released the following statements: Janssen Pharmaceuticals, Inc.: "We recognize opioid abuse and addiction are serious public health issues, and are committed to being part of the ongoing dialogue and to doing our part to find ways to address this crisis. Our actions in the marketing and promotion of these medicines were appropriate and responsible. The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated. In fact, our medications have some of the lowest rates of abuse among this class of medications." Purdue Pharma: "We are deeply troubled by the prescription and illicit opioid abuse crisis, and we are dedicated to being part of the solution. As a company grounded in science, we must balance patient access to FDA-approved medicines, while working collaboratively to solve this public health challenge. Although our products account for less than 2 percent of the total opioid prescriptions, as a company, we've distributed the CDC Guideline for Prescribing Opioids for Chronic Pain, developed three of the first four FDA-approved opioid medications with abuse-deterrent properties and partner with law enforcement to ensure access to naloxone. We vigorously deny these allegations and look forward to the opportunity to present our defense." Allergan: "It is important to put into perspective Allergan's role regarding opioids. Allergan's three legacy opioid products -- Norco, Kadian and Fiorinal with Codeine -- account for less than 0.04 percent of all opioid products prescribed in 2017 in the U.S. These products came to Allergan through legacy acquisitions and have not been promoted since 2013, in the case of Kadian and Fiorinal, and since 2003, in the case of Norco. Allergan has a history of supporting -- and continues to support -- the safe, responsible use of prescription medications. This includes opioid medications, which when prescribed and used responsibly, play an appropriate role in pain relief for millions of Americans." Teva Pharmaceuticals: "Teva is committed to the appropriate use of opioid medicines, and we recognize the critical public health issues impacting communities across the U.S. as a result of illegal drug use as well as the misuse and abuse of opioids that are available legally by prescription. To that end, we take a multi-faceted approach to this complex issue; we work to educate communities and healthcare providers on appropriate medicine use and prescribing, we comply closely with all relevant federal and state regulations regarding these medicines, and, through our R&D pipeline, we are developing non-opioid treatments that have the potential to bring relief to patients in chronic pain. Teva also collaborates closely with other stakeholders, including providers and prescribers, regulators, public health officials and patient advocates, to understand how to prevent prescription drug abuse without sacrificing patients' needed access to pain medicine." Endo Pharmaceuticals and Endo Health Solutions declined to comment. Amerisource, Cardinal Health and Johnson & Johnson did not respond for comment. [GN] JOSEPH K. JONES: Third Circuit Appeal Filed in "Winters" Suit ------------------------------------------------------------- Plaintiffs Collection Solutions Inc. and Jeffrey A. Winters filed an appeal from a court ruling in their lawsuit styled Jeffrey Winters, et al. v. Joseph Jones, et al., Case No. 2-16-cv-09020, in the U.S. District Court for the District of New Jersey. As reported in the Class Action Reporter on Feb. 16, 2018, the District Court granted the Defendant's motion to dismiss the case. Plaintiff Collection Solutions, Inc., is a New Jersey corporation that primarily provides debt collection services. Plaintiff Jeffrey Winters is the sole shareholder of Collection Solutions, Inc. Defendants Joseph Jones and Benjamin Wolf are attorneys who practice at the firm of Jones, Wolf & Kapasi, LLC. Defendant Laura Mann is an attorney and the principal at the firm of Laura S. Mann, LLC. Defendants Ari Marcus and Yitzchak Zelman are attorneys and the principals of the firm of Marcus & Zelman, LLC. The Plaintiffs claim that "the particular actionable conduct perpetrated by Defendants against Plaintiffs . . . was the class action litigation . . . Juliette Chapa, et al[.] v[.] Charles I. Turner Esq., and United Credit Specialists et al., in the Federal District Court of New Jersey, Case No. 2:15-cv-03125." ("Chapa Case"). The Plaintiffs settled the Chapa Case for $12,000 in September 2016. The Plaintiffs allege that the Chapa Case is illustrative of Defendants' enterprise pursuant to The Racketeer Influenced and Corrupt Organizations Act ("RICO") of joining together to bring sham class action lawsuits against debt collection agencies. The Plaintiffs allege that at some point prior to 2013, the Defendants formed a RICO enterprise that "avoided Small Claims Courts or unprofitable immediate payment of nominal claims without attorney's fees, by filing sham putative class actions in Federal court en masse on theory that the vast majority of the relatively deep-pocket defendants (mostly debt collection companies) would view a quick settlement for under $100,000 as basically a nuisance claim; with the rare contested case only confirming to victim defendants the practical advisability of settling early on a class basis." The appellate case is captioned as Jeffrey Winters, et al. v. Joseph Jones, et al., Case No. 18-1226, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellants JEFFREY A. WINTERS and COLLECTION SOLUTIONS INC., A New Jersey Corporation; on their own behalf and behalf of all others similarly situated, are represented by: David M. Hoffman, Esq. 28 Countryside Drive Baskin Ridge, NJ 07920 Telephone: (908) 608-0333 E-mail: dhoffman@david-hoffman-esq.com Defendants-Appellees JOSEPH K. JONES, ESQ.; BENJAMIN J. WOLF, ESQ.; and JONES WOLF & KAPASI LLC are represented by: Joseph K. Jones, Esq. Benjamin J. Wolf, Esq. JONES WOLF & KAPASI LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 E-mail: jkj@legaljones.com bwolf@legaljones.com - and - Craig L. Steinfeld, Esq. Anthony J. Sylvester, Esq. SHERMAN WELLS SYLVESTER & STAMELMAN LLP 210 Park Avenue, 2nd Floor Florham Park, NJ 07932 Telephone: (973) 302-9697 E-mail: csteinfeld@shermanwells.com asylvester@shermanwells.com Defendants-Appellees LAW OFFICES OF LAURA S. MANN LLC and LAURA S. MANN, ESQ., are represented by: Craig J. Compoli, Jr., Esq. O'TOOLE FERNANDEZ WEINER VAN LIEU 14 Village Park Road Cedar Grove, NJ 07009 Telephone: (973) 239-5700 E-mail: ccompoli@oslaw.com - and - Laura S. Mann, Esq. LAW OFFICES OF LAURA S. MANN, LLC 85 Newark Pompton Turnpike Riverdale, NJ 07457 Telephone: (973) 506-4881 Facsimile: (973) 506-4883 E-mail: laura@mannlegal.biz Defendants-Appellees ARI H. MARCUS, YITZCHAK ZELMAN and MARCUS & ZELMAN LLC are represented by: Meredith K. Stoma, Esq. MORGAN MELHUISH ABRUTYN 651 West Mount Pleasant Avenue, Suite 200 Livingston, NJ 07039 Telephone: (973) 994-2500 E-mail: mstoma@morganlawfirm.com KRATON CORP: Federman & Sherwood Files Securities Class Action -------------------------------------------------------------- Federman & Sherwood disclosed that on February 26, 2018, a class action lawsuit was filed in the United States District Court for the Southern District of Texas against Kraton Corporation (NYSE:KRA). 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 October 25, 2017 through February 21, 2018. Plaintiff seeks to recover damages on behalf of all Kraton Corporation 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 April 27, 2018 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, Esq. FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com [GN] LIVE NATION: CA Launches Demanding Route 91 Harvest Refunds ----------------------------------------------------------- Andy Malt, writing for Complete Music Update, reports that lawyers have filed a class action lawsuit against Live Nation, demanding that the company refund ticket monies to everyone who attended the Route 91 Harvest Festival in Las Vegas last year. The closing night of the event saw the deadliest mass shooting in US history occur, when a gunman killed 58 people and injured hundreds of others when he opened fire from a nearby hotel. The case was filed in Orange County, California. The legal team involved argues that some people who privately requested a refund received them, but there have been no moves to automatically pay back all those who bought tickets. The lawyer who filed the class action, Mark Robinson, Esq. who was already representing a couple who were seeking a refund, told Fox News: "We didn't think it was fair that some who privately asked for refunds got them, when really everybody who bought a ticket deserves a full refund". Another lawyer working on the case, Craig Eiland, Esq. -- CEiland@eilandlaw.com -- elaborated further: "As we were interviewing several hundred of our clients, we realised some had received refunds and some had not. It didn't matter if they were family members of deceased, gunshot victims or traumatised because of the shooting and their escape. The only factor was that those that heard about a refund through Facebook or friends and demanded a refund, got it. So we decided to make one demand on behalf of everyone". If refunds across the board were achieved, that would create an interesting challenge for anyone who bought a ticket on the secondary market, in that the refund would presumably go to the reseller not the person who actually attended the show. Even if that issue could be addressed somehow, not everyone who attended the event has welcomed the news of the new litigation. Some have said that getting a refund is perhaps not the thing that people should be focussing on in the continuing aftermath of the shooting. While all this is going on, new financial support has become available to victims of the attack, and those affected by it. A number of funds have already been set up, but a new organisation, Route 91 Strong, made its first payments. Co-founded by one of the survivors of the attack, Brian Claypool, he tells the Las Vegas Review-Journal that the aim of the group is to help those who do not meet the criteria of the other funds currently in operation. "We're trying to help people who have fallen through the cracks", he says. Meanwhile, Tennessee's state government said that it believes residents of the state who attended the festival may be eligible to apply for support from the Nevada Crime Victim Compensation scheme. It said that it was aware of 40 people who had bought Route 91 Harvest tickets within Tennessee, as well as more who attended as musicians or in other roles at the event. The LA Times also reports that lawyers are still trying to ascertain the value of the gunman's estate. A number of those affected by the attack have already made legal moves to claim a portion of this money. Some estimates have been as high as $5 million, although the court overseeing the estate heard that it may actually be less than $1 million. A final figure is scheduled to be reported back to the court on May 31. [GN] LJM FUNDS: Robbins Geller Files Class Action Suit ------------------------------------------------- Robbins Geller Rudman & Dowd LLP disclosed that a class action has been commenced on behalf of purchasers of shares of the LJM Preservation and Growth Fund (MUTF: LJMAX, LJMCX, LJMIX) during the period between February 28, 2015 and February 7, 2018 (the "Class Period"). This action was filed in the Northern District of Illinois and is captioned Nosewicz v. LJM Funds Management, Ltd., et al., No. 18-cv-1589. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from February 9, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/ljmfunds/.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. The complaint charges LJM Funds Management, Ltd. ("LJM Funds"), certain of its officers, Two Roads Shared Trust (the "Trust"), the registrant for the offering of LJM Preservation and Growth Fund (the "Preservation Fund" or "Fund") shares, and its Trustees, and Northern Lights Distributors, LLC, the underwriter and distributor for the shares, with violations of the Securities Act of 1933. LJM Funds is the investment advisor to the Preservation Fund, a mutual fund that was marketed to investors seeking lower risk and moderate growth through a more conservative volatility trading strategy that would preserve capital and avoid the massive risks of aggressive hedge funds seeking greater returns. The complaint alleges that defendants made false and misleading statements and/or failed to disclose material information in the Registration Statements and Prospectuses (the "Offering Materials") issued in connection with the sale of Preservation Fund shares to investors. Specifically, contrary to defendants' statements in the Offering Materials, including that the objective of the Fund was to "seek[] capital appreciation and capital preservation with low correlation to the broader U.S. equity market" and to "preserve capital, particularly in down markets (including major market drawdowns)," the Fund was not focused on capital preservation and was overexposed to the risk of volatility and a down market, as was demonstrated when the value of Preservation Fund shares fell approximately 80% in just two days as markets dropped and volatility spiked. While the Fund purportedly sought to preserve capital and obtain growth by betting against market volatility, the Fund actually made massive and unmitigated bets that would expose investors to excessive risks and catastrophic losses of capital, even in a moderate down market of less than 5%. As a result of defendants' false statements and/or omissions in the Offering Materials, the net asset value ("NAV") of Preservation Fund shares was artificially inflated to as high as $11.47 per share during the Class Period. On February 5, 2018, while the Dow fell approximately 4.6% and the S&P fell 4.1%, the NAV of Preservation Fund shares plunged 56%, from $9.67 per share to $4.27 per share. Then on February 6, 2018, the Dow and S&P increased by approximately 2% while the NAV of Preservation Fund shares fell again, to $1.91 per share. Thus, while the Dow and S&P suffered a modest downturn of just 2% over two days, the Fund suffered a cumulative loss of approximately 80% of its value, erasing more than $600 million in just two days. On February 7, 2018, the Fund filed a notice with the SEC stating that it was "closed to all new investments." On February 9, 2018, LJM Funds sent a letter to Preservation Fund shareholders stating that the Fund had been forced to close its open positions, causing "additional substantial losses from Feb. 7's closing prices." In an SEC filing dated February 27, 2018, LJM Funds and the Trust announced that they had decided to liquidate and dissolve the Fund. Plaintiff seeks to recover damages on behalf of all purchasers of shares of the Fund during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller is widely recognized as a leading law firm advising and representing U.S. and international investors in securities litigation and portfolio monitoring. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For the third consecutive year, the Firm ranked first in both the total amount recovered for investors and the number of shareholder class action recoveries in ISS's SCAS Top 50 Report. Robbins Geller attorneys have shaped the law in the areas of securities litigation and shareholder rights and have recovered tens of billions of dollars on behalf of the Firm's clients. Robbins Geller not only secures recoveries for defrauded investors, it also implements significant corporate governance reforms, helping to improve the financial markets for investors worldwide. Please visit http://www.rgrdlaw.comfor more information. https://www.linkedin.com/company/rgrdlaw https://twitter.com/rgrdlaw https://www.facebook.com/rgrdlaw https://plus.google.com/+Rgrdlaw/posts Darren Robbins, Esq. Robbins Geller Rudman & Dowd LLP Tel.No.:800-449-4900 or 619-231-1058 Email: djr@rgrdlaw.com [GN] LOS ANGELES, CA: Court OKs $2.95MM Attorney's Fees in "Nozzi" ------------------------------------------------------------- The United States District Court for the Central District of California granted final approval of the Parties' Settlement Agreement in the case captioned MICHAEL NOZZI, individually, and NIDIA PELAEZ, individually, and on behalf of all others similarly situated, Plaintiffs, v. HOUSING AUTHORITY OF THE CITY OF LOS ANGELES and RUDOLPH MONTIEL, Defendants, No. CV 07-380 PA (FFMx) (C.D. Cal.). Defendants will issue a check by overnight mail payable to the JND Legal Administration: a. the total amount for valid claims made by Damages Class Members and approved by the Class Administrator; b. $3,000 in incentive/individualized payments to Named Plaintiffs Nidia Pelaez and Michael Nozzi; c. Defendants will pay all current outstanding bills from JND Legal Administration. To the extent that the payments due to JND cannot yet be finally determined because there is more work to be done, Defendants will pay those amounts within 30 days of being billed by JND. The Damages Class consists of all HACLA Section 8 tenants, between June 1, 2005, and September 30, 2006, whose rental contribution for a period not to exceed eleven months was greater than it would have been but for HACLA's 2004 decrease in the VPS. Defendants will issue a check to the Kaye, McLane, Bednarski & Litt Client Trust Account in the amount of $2,957,382.80 as full and final settlement of all past, present and future attorneys' fees and all past, present and future ordinary and extraordinary costs. A full-text copy of the District Court's February 15, 2018 Judgment is available at https://tinyurl.com/y8xzfte3 from Leagle.com. Michael Nozzi, an individual, Nidia Pelaez, an individual & Los Angeles Coalition to End Hunger and Homelessness, a non-profit organization, on behalf of themselves and similarly situated persons, Plaintiffs, represented by Anne K. Richardson, Public Counsel, Barrett S. Litt -- blitt@kmbllaw.com -- Kaye McLane Bednarski and Litt LLP, Louis A. Rafti, Legal Aid Foundation of Los Angeles, Stephanie Dominique Carroll, Public Counsel & Stewart Chih-Ming Kwoh, Asian Pacific American Legal Center. Housing Authority of the City of Los Angeles & Rudolph Montiel, in his official capacity, Defendants, represented by Brant H. Dveirin -- Brant.Dveirin@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP & Yangyang Li -- travis.li@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP. Charles Jackson, Interested Party, pro se. MARYVILLE UNIVERSITY: Faces "Sullivan" Suit in S.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Maryville University of Saint Louis. The case is styled as Phillip Sullivan Jr., on behalf of himself and all others similarly situated, Plaintiff v. Maryville University of Saint Louis, Defendant, Case No. 1:18-cv-02184 (S.D. N.Y., March 12, 2018). Maryville University of St. Louis is a private, coeducational university located in the city of Town and Country, a suburb of St. Louis in west St. Louis County, Missouri, United States.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com MASTIC HOME: Court Narrows Claims in "Pagliaroni" Suit ------------------------------------------------------ The United States District Court, District of Massachusetts, granted in part and denied in part Defendants' Motion for Summary Judgment in the case captioned ANTHONY PAGLIARONI, VICKI O'BRIEN, JOHN COSTELLO and CATHERINE LYNCH on behalf of themselves and others similarly situated, Plaintiffs, v. MASTIC HOME EXTERIORS, INC. and DECEUNINCK NORTH AMERICA, LLC, Defendants, Civil Action No. 12-10164-DJC (D. Mass.). Plaintiffs seek damages as well as declaratory and injunctive relief from Defendants Mastic Home Exteriors (Mastic) and Deceuninck North America (DNA) arising from damage to their decks allegedly caused by a design defect in the Oasis decking formula. Plaintiffs assert claims for breach of warranty, negligence, negligent misrepresentation and unjust enrichment and violation of certain state consumer protection laws. The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Statute of Limitations Pagliaroni Pagliaroni's Implied Warranty Claim Is Time-Barred Mastic argues that Pagliaroni's claims for breach of implied and express warranties are time-barred. DNA makes the same argument for Pagliaroni's breach of implied warranty claim against it. Plaintiffs counter that Pagliaroni's claims are not time-barred because the limitations period was tolled by Mastic and DNA's fraudulent concealment of its knowledge relating to Oasis's susceptibility to premature cracking, pointing to Mastic testing in December 2006 which revealed catastrophic failures in Oasis. Claims for breach of warranty under Massachusetts law are subject to a four-year statute of limitations under contract-based theories, or three years for tort-based theories. A contract-based breach of warranty claim accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. Therefore, Pagliaroni's breach of implied warranty claims accrued from the date of delivery in 2006 and expired prior to the filing of the complaint in 2012. Accordingly, the Court allows Defendant's motions as to Pagliaroni's implied warranty claims against Mastic (Count II) and DNA (Count III) as time-barred. Pagliaroni's Breach of Express Warranty Claim Is Time-Barred Pagliaroni was responding to a question confirming that he was dissatisfied with the deck beginning in the summer of 2007, and that such dissatisfaction included minor changes including reduced gaps and a little bit of splitting by screws. This distinction does not affect the undisputed fact that this defect, whatever its extent as initially observed, was in 2007, which means the claims began to accrue then. Pagliaroni's claim is time barred. Accordingly, the Court allows Mastic's motion as to Pagliaroni's breach of express warranty claim (Count I). O'Brien's Claims For Breach Of Implied Warranty Are Time-Barred Defendants argue that O'Brien's claim for breach of implied warranty should be dismissed as time-barred. Claims for breach of implied warranty under Minnesota law are subject to a four-year statute of limitations. O'Brien joined the case in the second amended complaint filed on May 29, 2013. A breach of implied warranty occurs, and the claim accrues, 'when tender of delivery is made.' Therefore, Plaintiffs must show that equitable tolling or equitable estoppel apply for O'Brien's claim to survive. Under the doctrine of equitable estoppel, if a buyer delays filing suit as a result of reasonable and detrimental reliance on a seller's assurances it will repair the defective goods, the limitations period is tolled during that period of delay. Plaintiffs fails to establish equitable estoppel here. The generalized puffery that Plaintiffs point to in the marketing materials by Mastic or DNA are not equivalent to the individualized post-purchase and post-defect communications necessary for equitable estoppel. Furthermore, Plaintiffs have not shown that O'Brien's decision not to file suit was made in reliance on those materials. Accordingly, O'Brien's claim is not tolled by equitable estoppel. Accordingly, the Court allows both motions as to O'Brien's claims for breach of implied warranty against Mastic (Count II) and DNA (Count III) as these claims are time-barred. Lynch Lynch's Claims For Breach Of Implied Warranty Are Time-Barred Defendants argues that Lynch's claims for breach of implied warranty should be dismissed as time-barred. Claims for breach of implied warranty under New York law are subject to a four-year statute of limitations. Plaintiffs have not offered any reason why 2007 should not be considered as the year Lynch's claim began to accrue. Accordingly, the Court allows Mastic's motion as to Lynch's claim for breach of implied warranty (Count II) and allows DNA's motion as to same (Count III) as time-barred. Lynch's Consumer Protection Claim Is Time-Barred Claims brought under GBL 349 are subject to a three-year statute of limitations. Lynch received her decking six years before filing suit. Furthermore, even if the Court considered the gravamen of Lynch's claim to have arisen when she noticed cracking in 2009, the claim would still be time-barred. Accordingly, the Court allows Mastic's motion as to Lynch's GBL 349 claim (Count XI) as time-barred. Costello's Breach of Implied Warranty Claim as to Mastic Survives In this case, the injury supporting Costello's claim began to run when Costello became aware of deterioration in March 2009, mold growth in April 2009 and cracking and discoloration in his Oasis decking in or about March 2010. Plaintiffs point to 2011 as a later time when Costello observed more substantial failures in the decking, when they argue the limitations period began to run. Similar to the analysis under Massachusetts law, the discovery rule under Oregon law does not consider the extent of subsequent damage, but presence of observable damage that puts plaintiff on notice of the injury and the reasonable capability to investigate and discover the defendant's role in the damage. However, the record on this point is too bare to conclude that there is no genuine issue of fact as to whether Costello could have or should have inquired who manufactured his Oasis decking earlier than he did. While DNA points to Ply Gem's response to Costello's warranty claim in 2012, in which Mastic referred Costello to a representative of DNA, providing contact information for DNA, that does not resolve the dispute about whether Costello's inquiry was reasonable upon discovering the defect. Even if there is a genuine issue of material fact as to whether Costello's duty to investigate had been triggered, and whether that investigation would have revealed DNA's association with the harm to his deck, DNA's motion for summary judgment as to Costello's claim for breach of implied warranty under Count III succeeds because of lack of showing of privity as discussed below. Costello's Privity with Mastic and DNA Both Mastic and DNA argue that Costello's claim for breach of implied warranty fails because he purchased his Oasis decking through a contractor from another distributor, ABC Suppliers, not Mastic. As to DNA, there is no privity between an ultimate purchaser and a manufacturer where the property was not purchased directly from the manufacturer but through an intermediate seller. Plaintiffs point to Mastic and DNA's Sales and Distribution Agreement and the deposition testimony of Scott Ricke, as evidence of a direct relationship that establishes privity because ABC Suppliers was a "valid" distributor for Mastic, thereby establishing a link. However, ABC Suppliers' role as a sub-distributor for Mastic makes it an intermediate seller, for whom DNA did not honor the express warranty and privity with the manufacturer is obviated. Accordingly, the Court ALLOWS DNA's motion as to Costello's claims for breach of implied warranty (Count III). The question as to Mastic turns on any agency relationship between Mastic and ABC Suppliers. Oregon law defines an agency relationship as a fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control. The record appears only to reveal that ABC Suppliers was the seller, but no evidence that would establish as a matter of law that this distributor relationship was less than an agency relationship. On this record, there remains a question of fact as to whether Mastic and ABC Suppliers had an agency relationship establishing privity. Accordingly, the Court DENIES Mastic's motion as to Costello's breach of implied warranty claim (Count II). Lynch, O'Brien and Costello's Express Warranty Claims Against Mastic Survive Mastic argues that Lynch, O'Brien and Costello's express warranty claims seek additional monetary remedies beyond a refund of their costs relating to their Oasis decking and that the Limited Warranty made replacement product or refund of the value of the products" the exclusive remedy. Under Oregon, New York and Minnesota law, all following the Uniform Commercial Code, unless circumstances cause an exclusive or limited remedy to fail of its essential purpose, a seller of goods may limit or alter the measure of damages recoverable under this Article" by limiting the remedies to return of the goods and repayment of the price or repair and replacement. A remedy fails of its essential purpose if the circumstances existing at the time of the agreement have changed so that enforcement of the limited remedy would essentially leave plaintiff with no remedy at all. In this case, Lynch, O'Brien and Costello were all aware of the Limited Warranty's existence and submitted claims under the Limited Warranty, O'Brien's Statutory Claims Fail Mastic argues that Counts IX (O'Brien's claim under Minnesota Unlawful Trade Practices Act (MUTPA)) and X (O'Brien's claim under Minnesota False Statement in Advertising Act (MFSAA)) both fail because neither statute provides a private right of action. In this case, however, O'Brien has not established that her claim serves a public interest. Courts considering this question have not extended private standing under to plaintiffs who seek only monetary damages relating to products that are no longer sold, advertised or otherwise at risk of affecting the public. Here, Mastic has discontinued sales or marketing of Oasis decking. Moreover, here where the Court has previously denied class certification, any relief will not serve a larger swath of the public, but only O'Brien. Accordingly, the Court allows Mastic's motion as to O'Brien's claims under the MUTPA and MFSAA (Counts X and XI). The Court allows in part and denies in part Mastic's motion for summary judgment. A full-text copy of the District Court's February 15, 2018 Memorandum and Order is available at https://tinyurl.com/y8qbuqxz from Leagle.com. Anthony D Pagliaroni, on behalf of himself and all others similarly situated, Plaintiff, represented by Bonnie Prober -- bprober@cuneolaw.com -- Cuneo Gilbert and Laduca, pro hac vice, Brendan Thompson -- brendant@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, pro hac vice, Charles E. Schaffer -- cschaffer@lfsblaw.com -- Levin Sedran & Berman, Clayton D. Halunen -- halunen@halunenlaw.com -- Halunen & Associates, pro hac vice, Katherine Van Dyck -- kvandyck@cuneolaw.com -- CUNEO GILBERT & LADUCA, LLP, pro hac vice, Matthew Evan Miller -- mmiller@cuneolaw.com -- Cuneo Gilbert & LaDuca, LLP, Melissa S. Weiner -- weiner@halunenlaw.com -- Halunen Law, pro hac vice, Michael J. Flannery, Cuneo Gilbert & LaDuca, LLP, pro hac vice, Robert Kinney Shelquist -- rshelquist@locklaw.com -- Lockridge, Grindal, Nauen & Holstein, pro hac vice, Scott A. Moriarity -- samoriarity@locklaw.com -- Lockridge Grindel & Nauen PLLP, pro hac vice, Shawn J. Wanta -- sjwanta@baillonthome.com -- Baillon Thome Jozwiak & Wanta LLP, pro hac vice, William H. Anderson -- wanderson@cuneolaw.com -- Cuneo Gilber & Laduca, LLP, pro hac vice & Kate R. Isley, Attorney General's Office. Mastic Home Exteriors, Inc., Defendant, represented by Katherine S. Kayatta -- kkayatta@pierceatwood.com -- Pierce Atwood LLP, Nicholas Paul Brown -- nbrown@pierceatwood.com -- Pierce Atwood LLP, Donald R. Frederico -- dfrederico@pierceatwood.com -- Pierce Atwood LLP, Gavin G. McCarthy -- gmccarthy@pierceatwood.com -- Pierce Atwood LLP & Kate R. Isley, Attorney General's Office. Ply Gem Holdings, Inc., Defendant, represented by Katherine S. Kayatta, Pierce Atwood LLP, Donald R. Frederico, Pierce Atwood LLP, Gavin G. McCarthy, Pierce Atwood LLP & Kate R. Isley, Attorney General's Office. Deceuninck North America, LLC, Defendant, represented by Brian A. Troyer -- Troyer@thompsonhine.com -- Thompson Hine LLP, pro hac vice, David A. Wilson -- David.Wilson@ThompsonHine.com -- Thompson Hine LLP, Matthew D. Ridings -- Matt.Ridings@ThompsonHine.com -- Thompson Hine LLP, pro hac vice & William J. Hubbard -- Bill.Hubbard@ThompsonHine.com -- Thompson Hine LLP, pro hac vice. Exponent, Inc., Objector, represented by Lisa M. Tittemore -- ltittemore@sunsteinlaw.com -- Sunstein Kann Murphy & Timbers LLP & Brandon T. Scruggs -- bscruggs@sunsteinlaw.com -- Sunstein Kann Murphy & Timbers LLP. Mastic Home Exteriors, Inc., Cross Claimant, represented by Donald R. Frederico, Pierce Atwood LLP, Gavin G. McCarthy, Pierce Atwood LLP, Kate R. Isley, Attorney General's Office & Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP, pro hac vice. Deceuninck North America, LLC, Cross Defendant, represented by Brian A. Troyer, Thompson Hine LLP, pro hac vice & Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP, pro hac vice. Deceuninck North America, LLC, Cross Claimant, represented by Brian A. Troyer, Thompson Hine LLP, pro hac vice, David A. Wilson, Thompson Hine LLP & Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP, pro hac vice. MASSACHUSETTS MUTUAL: Class Action Trial Ends in Defense Verdict ---------------------------------------------------------------- A jury in Los Angeles Superior Court found that Massachusetts Mutual Life Insurance Co. ("MassMutual") did not improperly withhold dividends from a class of hundreds of term life insurance policyholders. The jury sided with the insurer and found that the policies in question never generated enough profit to warrant dividends under the policy agreements. In Christina Chavez v. Massachusetts Mutual Life Insurance Co., after deliberations following a 12-day trial, the jury rejected named plaintiff Christina Chavez's claims that the insurer had breached its contracts with hundreds of people who had purchased participating 20-year term life insurance, or T20G policies, from 2000 to 2004 in the Los Angeles area. As a mutual insurance company owned by its policyholders, MassMutual pays out its excess profits to "participating" policyholders each year in the form of dividends. Chavez filed suit in April 2010, and in her trial brief contended that as part of the language of the participating life insurance policies, the insurer was mandated to annually determine those policies' contributions to the company's excess profits, or "divisible surplus," and return their fair share in a dividend. During closing arguments, the plaintiff attorney claimed that the company had dodged its duties by refusing to actually do the math and determine if the T20G policies were entitled to dividends each year, asserting that MassMutual actually owed the class a total of $717,000 in dividends. The jury sided with the insurer in holding the plaintiffs had failed to prove that the policies actually generated such profits. Jennifer Keller of Keller Anderle LLP, representing MassMutual, defended the company during closing arguments by focusing on Chavez's actuarial expert Tom Bakos, explaining to the jury that Bakos had manipulated the financial numbers to show a profit on the T20G policies, which actually had not come close to surpassing a 5 percent profit, the threshold over which dividends were payable, she said. "The Tom Bakoses of the world can probably find any mutual life insurance policy anywhere in the world and pick it apart . . . and can find somewhere in there some numbers to manipulate," she said. Sean Commons of Sidley Austin was second chair at the trial. Contact: Kay Anderle, Esq. Managing Partner Ph. 949.476.8700 Fax 949.476.0900 Email: kanderle@kelleranderle.com [GN] MERCEDES-BENZ USA: Faces "Maestri" Suit in N.D. Georgia -------------------------------------------------------- A class action lawsuit has been filed against Mercedes-Benz USA, LLC. The case is styled as Justin Maestri, et al., individually and on behalf of all others similarly situated, Plaintiff v. Mercedes-Benz USA, LLC and Daimler AG, Defendants, Case No. 1:18- cv-01070-WSD (N.D. Ga., March 14, 2018). Mercedes-Benz USA, LLC is engaged in the marketing and distribution of Mercedes-Benz, smart, and Sprinter vehicles in the United States.[BN] The Plaintiffs are represented by: Edward Adam Webb, Esq. Webb, Klase & Lemond, LLC 1900 The Exchange, SE, Suite 480 Atlanta, GA 30339 Tel: (770) 444-0773 Email: Adam@WebbLLC.com - and - G. Franklin Lemond, Jr., Esq. Webb, Klase & Lemond, LLC 1900 The Exchange, SE, Suite 480 Atlanta, GA 30339 Tel: (770) 444-9594 Fax: (770) 444-0271 Email: flemond@webbllc.com MIDLAND CREDIT: Faces "Jamnadas" Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Haresh Jamnadas, on behalf of himself individually and all others similarly situated, Plaintiff v. Midland Credit Management, Inc., Defendant, Case No. 1:18-cv-01495 (E.D. N.Y., March 9, 2018). Midland Credit Management, Inc. operates in the debt collection industry.[BN] The Plaintiff is represented by: Novlette Rosemarie Kidd, Esq. Fagenson & Puglisi 450 Seventh Avenue, Suite 704 New York, NY 10123 Tel: (212) 268-2128 Fax: (212) 268-2127 Email: nkidd@fagensonpuglisi.com MIDLAND FUNDING: Faces "Moore" Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Midland Funding LLC. The case is styled as Candice Moore, on behalf of herself and all others similarly situated, Plaintiff v. Midland Funding LLC and Midland Credit Management, Inc, Defendants, Case No. 2:18-cv-01470 (E.D. N.Y., March 9, 2018). Midland Funding LLC provides debt collection services.[BN] The Plaintiff appears PRO SE. MIDLAND FUNDING: Faces "Witt" Suit in E.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Midland Funding LLC. The case is styled as Christopher Witt, on behalf of himself and all others similarly situated, Plaintiff v. Midland Funding LLC and Midland Credit Management, Inc, Defendants, Case No. 2:18-cv-01468 (E.D. N.Y., March 9, 2018). Midland Funding LLC provides debt collection services.[BN] The Plaintiff appears PRO SE. MIMEDX GROUP: Bragar Eagel & Squire Files Class Action ------------------------------------------------------ Bragar Eagel & Squire, P.C. announces that a class action lawsuit has been filed in the U.S. District Court for the Northern District of Georgia on behalf of all persons or entities who purchased or otherwise acquired MiMedx Group, Inc. (NASDAQ: MDXG) securities between March 7, 2013 and February 19, 2018 (the "Class Period"). Investors have until April 25, 2018 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On February 20, 2018, MiMedx announced that it will postpone the release of its financial results, as well as the filing of its Form 10-K, for the year ended December 31, 2017. This raised further concerns over the reports of short sellers who had accused MiMedx of "serious and pervasive fraud." Following this news, the stock price of MiMedx fell $5.72 per share, or over 39%, to close at $8.75 per share on February 20, 2018 The complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements and/or failed to disclose that (i) MiMedx was engaged in a "channel-stuffing" scheme designed to inappropriately recognize revenue that had not yet been realized; (ii) the Company lacked adequate internal controls over financial reporting; and (iii) that as a result of the foregoing, MiMedx's publicly disseminated financial statements were materially false and misleading. If you purchased or otherwise acquired MiMedx securities and suffered a loss, continue to hold shares purchased prior to the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. is a New York-based law firm concentrating in commercial and securities litigation. For additional information concerning the MiMedx Group, Inc. lawsuit, please go to http://www.bespc.com/mimedx.For additional information about Bragar Eagel & Squire, P.C., please go to www.bespc.com. Brandon Walker, Esq. Melissa Fortunato, Esq. Bragar Eagel & Squire, P.C. Tel: 212-355-4648 Website: www.bespc.com Email: walker@bespc.com fortunato@bespc.com [GN] MIMEDX GROUP: Robbins Arroyo Files Class Action ----------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP disclosed that purchasers of MiMedx Group, Inc. (NasdaqCM: MDXG) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between March 7, 2013 and February 19, 2018. MiMedx, a biopharmaceutical company, develops and markets regenerative biologics utilizing human placental tissue allografts with patent-protected processes for various sectors of healthcare. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/mimedx-group-inc-mar-2018 MiMedx Accused of Engaging in Fraudulent Revenue Scheme According to the complaint, in December 2016, two former MiMedx employees filed a complaint against the company alleging MiMedx fired them for reporting fraudulent revenue recognition practices. The employees alleged that MiMedx inappropriately recorded sales of products that hadn't yet been filled -- otherwise known as channel stuffing -- in order to fraudulently recognize revenue in its financial statements before the revenue had been realized and earned. On February 20, 2018, after months of denying that it had engaged in a fraudulent revenue scheme, MiMedx revealed that it hired legal and accounting advisors to conduct an internal investigation regarding certain sales and distribution practices at the company. As a result, the company postponed the release of its financial results and the filing of its 2017 Form 10-K. On this news, MiMedx's stock plunged over 39% to close at $8.75 per share on February 20, 2018, and continues to decline. MiMedx Shareholders Have Legal Options If you would like more information about your rights and potential remedies, contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. Leonid Kandinov, Esq. Robbins Arroyo LLP Tel: (619) 525-3990 or Toll Free (800) 350-6003 Website: www.robbinsarroyo.com Email: LKandinov@robbinsarroyo.com [GN] MIMEDX GROUP: April 25 Lead Plaintiff Bid Deadline -------------------------------------------------- Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until April 25, 2018 to file lead plaintiff applications in securities class action lawsuits against MiMedx Group Inc. (NasdaqCM: MDXG), if they purchased the Company's securities between the expanded period of March 7, 2013 and February 21, 2018, inclusive (the "Class Period"). These actions are pending in the United States District Courts for the Northern District of Georgia and Southern District of New York. What You May Do If you purchased securities of MiMedx and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, 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 https://www.ksfcounsel.com/cases/nasdaqcm-mdxg/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by April 25, 2018. About the Lawsuit MiMedx and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On February 20, 2018, MiMedx revealed it postponed its 2017 earnings report and "engaged independent legal and accounting advisors to conduct an internal investigation into current and prior-period matters relating to allegations regarding certain sales and distribution practices." Then, on February 22, 2018, media reports revealed that MiMedx had "financial ties to more than 20 doctors" that it had not disclosed to the government, which MiMedx claimed was not required. On this news, the price of MiMedx's shares plummeted. 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. To learn more about KSF, you may visit www.ksfcounsel.com. Contact: Lewis Kahn, Esq. Managing Partner Kahn Swick & Foti, LLC Tel: 1-877-515-1850 Email: lewis.kahn@ksfcounsel.com [GN] MIRAMED REVENUE: "Costin" Suit Disputes Collection Letter --------------------------------------------------------- Fawn Costin, individually and on behalf of all others similarly situated, Plaintiff, v. MiraMed Revenue Group, LLC, an Illinois limited liability company, Case No. 18-at-00345 (S.D. Ind., February 6, 2018) seeks actual and statutory damages, costs and reasonable attorneys' fees under the Fair Debt Collection Practices Act. Miramed attempted to collect defaulted consumer debts that Costin allegedly owed for medical bills allegedly owed to Franciscan Health Indianapolis. Defendants sent a collection letter that failed to mention that the debt was time-barred even threatening to credit report these time-barred debts. [BN] Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Carissa K. Rasch, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Tel: (708) 974-2900 Fax: (708) 974-2907 Email: davephilipps@aol.com mephilipps@aol.com carissa@philippslegal.com - and - John T. Steinkamp, Esq. 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Tel: (317) 780-8300 Fax: (317) 217-1320 Email: steinkamplaw@yahoo.com NATIONSTAR MORTGAGE: Faces "Kawelo" Suit in D. Hawaii ----------------------------------------------------- A class action lawsuit has been filed against Nationstar Mortgage LLC. The case is styled as George Kaulana Kawelo, III and Rina Cecily Kawelo, an individual, on behalf of themselves and all others similarly situated, Plaintiffs v. Nationstar Mortgage LLC, Peter Stone, Attorney, Individually, Derek W.C. Wong, Attorney, Individually, Jason L. Cotton, Attorney, Individually, TMLF Hawaii, LLLC, a Law Corporation, Mortgage Electronic Registration Systems, Inc., Ocwen Loan Servicing, LLC as the Mortgage Servicer, MTGLQ Investors, LP, Zachary K. Kondo, Attorney, Individually, Aldridge Pite, LLP, a Limited Law Partnership, Akoni Shannon, All Entity or Persons Unknown Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff Title, or Any Cloud on Plaintiffs' Title Thereto and All Whose True Names are Unknown, Does 1 Through 50, Inclusive, Defendants, Case No. 1:18-cv-00096-DKW-KSC (D. Hawaii, March 14, 2018). Nationstar Mortgage LLC provides mortgage services.[BN] The Plaintiff appears PRO SE. NEW PRIME: Truckers' Class Action Moves to Supreme Court -------------------------------------------------------- As we await the Supreme Court's decision on the enforceability of class action waivers, the Court has accepted certiorari on another arbitration-related case, this one relating to the application of the Federal Arbitration Act (FAA) to the trucking industry. The U.S. Supreme Court on February 26 granted the certiorari petition of trucking company New Prime, Inc., in a case that raised two important arbitration issues in the context of an independent contractor agreement in the trucking industry. See New Prime, Inc. v. Oliveira, No. 17-340. In its petition, New Prime, Inc., sought review of two questions: First, whether a dispute over the application of the FAA's Section 1 exemption for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce" is an arbitrability issue that must be determined in arbitration based on a valid delegation clause. Second, whether the FAA's Section 1 exemption, which applies only to "contracts of employment," is applicable to independent contractor agreements. We previously discussed the lower court's decision in this important case. The Case Below In Oliveira v. New Prime, Inc., 857 F.3d 7 (May 12, 2017), the U.S. Court of Appeals for the First Circuit had confronted two arbitration-related questions of first impression in that circuit. In the case, Dominic Oliveira had signed an Independent Contractor Operating Agreement with New Prime, Inc., which contained an arbitration provision governed by the Commercial Arbitration Rules of the American Arbitration Association. Believing he was underpaid as an independent contractor, Oliveira stopped driving but later was rehired by the same entity as a company driver. Oliveira contends that his job duties as a company driver and an independent contractor were "substantially identical." Oliveira eventually filed a class and collective action against the company based upon the Fair Labor Standards Act and the Missouri minimum-wage statute for failing to pay drivers the minimum wage. He also brought a class claim for breach of contract or unjust enrichment and an individual claim under Maine's labor statutes. The company moved, in part, to compel arbitration under the FAA. The district court denied the motion to compel, concluding that the application of Section 1 of the FAA, exempting contracts of employment of transportation workers from the operation of the statute, was for the court, not an arbitrator. But the court found that discovery was needed to determine if Oliveira was an employee or an independent contractor before the court could determine whether the contract was covered by Section 1. Hence, the district court denied the motion to compel without prejudice, and the company appealed. The First Circuit first considered whether, when ruling on a motion to compel arbitration under the FAA where the parties have delegated questions of arbitrability to the arbitrator, the court must decide the application of the FAA or grant the motion and let the arbitrator decide. In an opinion authored by Circuit Judge O. Rogeriee Thompson, the First Circuit held that the application of the FAA is a threshold question (or an "antecedent determination") for the court, not a question of arbitrability. Second, the appellate court had to resolve whether Section 1 of the FAA, exempting contracts of transportation workers, applies to a transportation-related agreement that nominally creates an independent-contractor relationship. The court answered this second question by finding that Section 1 applied to the relationship, and affirmed the district court's order denying the motion to compel arbitration. As to the first question, the court reasoned that whether Section 1 was applicable did not require an analysis of the parties' agreement to submit a dispute to arbitration, but instead raised the separate issue of the district court's authority to act under the FAA. The First Circuit was unpersuaded by the Eighth Circuit decision in Green v. SuperShuttle International, Inc., 653 F.3d 766, 769 (8th Cir. 2011), which found that whether the Section 1 exemption applied was a question of arbitrability for the arbitrator when the parties delegated such questions to the arbitrator. In resolving the second question, the court attempted to analyze the text of the FAA in its historic context as its point of departure. It concluded: . . . the combination of the ordinary meaning of the phrase "contracts of employment" and [the Company's] concession that Oliveira is a transportation worker compels the conclusion that the contract in this case is excluded from the FAA's reach. Because the contract is an agreement to perform work of a transportation worker, it is exempt from the FAA. We therefore decline to follow the lead of those courts that have simply assumed that contracts that establish or purport to establish independent-contractor relationships are not "contracts of employment" within the meaning of Sec 1. The appellate court was also unmoved by the language in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118 (2001), which advised that the Section 1 exemptions should "be afforded a narrow construction," finding its context made it distinguishable. Nor was the court persuaded by arguments based on the strong federal policy favoring arbitration, which in its view did not overcome the statute's plain text. Ultimately, the appellate court found the exemption applied to independent contractor agreements: . . . a careful examination of the ordinary meaning of the phrase "contracts of employment" . . . supports our conclusion that the phrase means agreement to perform work and includes independent- contractor agreements. The federal policy favoring arbitration cannot erase this plain meaning. Given the impact of this court's historically based "plain meaning" construction, further analysis at the Supreme Court level seems likely. And as Judge Paul J. Barbadoro recognized in his concurring and dissenting opinion: "Not only do we face a hard question -- given that the contemporary meaning of Sec 1's language may differ from its meaning when adopted -- but we do so without the aid of a well-developed district court record." That "hard question" will now be addressed by the Supreme Court. In its Petition, New Prime maintained that the First Circuit opinion "deepens the division among the federal courts of appeals on important questions of law regarding the scope and applicability of the exemption contained in Section 1 of the FAA." (Petition at 6). Indeed, the appellate decision would apparently deprive both companies and workers in the transportation industry of the benefits of the FAA and leave them to the vicissitudes of state arbitration law. Bottom Line: The Supreme Court will now resolve who decides the FAA exemption and Section 1's coverage of independent contractors in the transportation industry. If, in the process, greater clarity is brought to the meaning of Section 1's seemingly broad language, that would be helpful for many industries. [GN] NISSAN NORTH: Court Narrows Claims in Defective Sunroof Suit ------------------------------------------------------------ The United States District Court for the Northern District of California granted in part and denied remaining defendant Nissan North America, Inc.'s Motion to Dismiss the case captioned SHERIDA JOHNSON, et al., Plaintiffs, v. NISSAN NORTH AMERICA, INC., Defendant, Case No. 17-cv-00517-WHO (N.D. Cal.). Plaintiffs, purchasers of Nissan vehicles with panoramic sunroofs, allege that the panoramic sunroofs installed in their vehicles spontaneously shatter and that Nissan refuses to repair, replace, or otherwise compensate plaintiffs with respect to these explosions, despite the warranties. Nissan moves to dismiss plaintiffs' Magnuson-Moss Warranty Act MMWA claim, Spry's breach of express warranty claim, Sullivan and Ahren's implied warranty of merchantability claims, and Spry, Sullivan, and Ahrens' consumer-fraud claims. Whether Plaintiffs Must Allege They Satisfied the MMWA's Informal Dispute Settlement Requirements Defendants move to dismiss plaintiffs' MMWA claims because plaintiffs do not allege that they satisfied the Act's informal dispute settlement requirements. Plaintiffs do not dispute that Nissan's warranty contained such informal dispute settlement procedures, nor that they failed to follow the warranty procedure prior to filing suit. Instead, plaintiffs allege that following Nissan's informal dispute settlement procedures would have been futile and that they have no obligation to allege in their complaint that they followed every warranty procedure because they have no obligation to make allegations anticipating Nissan's affirmative defenses. Even if plaintiffs were required to make such allegations, the SAC contains sufficient allegations to draw the reasonable inference that following Nissan's warranty procedures would have been futile. Plaintiffs allege that Nissan has repeatedly failed to disclose the panoramic sunroof defect or provide repairs at no cost and, therefore, has indicated no desire to participate in such a process at this time. Named plaintiffs specifically allege that after their panoramic sunroofs shattered, they each contacted Nissan dealers or Nissan directly, but Nissan refused to cover the damage under the warranty. Plaintiffs also allege that at least 105 Nissan vehicle owners reported an incident of their sunroof shattering to NHTSA and that Nissan has long known that its panoramic sunroofs are prone to unexpected and dangerous shatterin. Given these allegations and the level of detail provided in the SAC, plaintiffs have sufficiently alleged futility at this stage of the proceedings. Nissan's MMWA exhaustion defense is better suited to be addressed at summary judgment. Whether Spry Sufficiently Alleges a Claim for Express Warranty Spry purchased her vehicle in February of 2013, and her panoramic sunroof shattered in October of 2016, more than 36 months later. Nissan's warranty provides "basic coverage" for 36 months or 36,000 miles, whichever comes first. While Spry argues that she had an extended warranty, she provides no factual allegations regarding the coverage period or terms of this warranty. Instead, in Count 12 for breach of express warranty, she mentions only the standard warranty: Nissan provided an express New Vehicle Limited Warranty (NVLW) for a period of three years or 36,000 miles, whichever occurs first then alleges that she "experienced defects within the warranty period. The Court find Spry's breach of express warranty claim insufficient as a matter of law, and the Court dismisses Count 12 of the SAC. Whether Plaintiffs' Florida and Illinois Breach of Implied Warranty Claims Require Privity Nissan next moves to dismiss the Florida and Illinois breach of implied warranty of merchantability claims for lack of privity. Plaintiffs Sullivan and Ahrens argue first that they allege that they are in actual or constructive privity with Nissan because "Nissan extended express written warranties to end-user purchasers and lessees, and had sufficient direct dealings" with plaintiffs to establish any required privity of contract. Plaintiffs next argue that even if they are not in privity with Nissan, privity is not required because they are third-party beneficiaries of Nissan's contracts with its dealers. Nissan argues that neither Florida nor Illinois recognizes this exception to privity in implied warranty claims. Whether Florida Law Requires Privity of Contract for Breach of Implied Warranty Sullivan depends on Sanchez-Knutson v. Ford Motor Co., 52 F.Supp.3d 1223 (S.D. Fla. 2014), a federal case that recognized the third-party beneficiary exception, relying on another federal case from Louisiana that in turn cited a Florida case arising in a different context. Sullivan also cites several Florida cases, the most recent of which is from 1984, that recognize certain exceptions to privity in various contexts. Because the weight of the authority from modern Florida courts is consistent, however, the Court decline to follow Sanchez-Knutson, and instead follow the Florida courts' clear guidance that Florida law does not recognize this exception. For these reasons, Sullivan's breach of implied warranty claim in Count 14 is dismissed. Whether Illinois Law Requires Privity of Contract for Breach of Implied Warranty While Ahrens cites to another federal case recognizing the third- party beneficiary exception to privity under Illinois law, the Court again declines to follow that court's reasoning because Illinois state courts are clear on Illinois law. Thus, Ahrens may not argue that she is a third-party beneficiary of Nissan's contracts with its dealers; Illinois law recognizes no such exception to the privity requirement. For these reasons, Ahrens' breach of implied warranty claim in Count 16 is also dismissed. The Court grants in part and denies in part Nissan's Motion to Dismiss Plaintiffs' Second Amended Complaint. Counts 10, 12, 14, 15, and 16 are dismissed for failure to state a claim. A full-text copy of the District Court's February 15, 2018 Order is available at https://tinyurl.com/ycwowbdr from Leagle.com. Sherida Johnson & Subrina Seenarain, Plaintiffs, represented by Crystal Gayle Foley -- cfoley@simmonsfirm.com -- Simmons Hanly Conroy LLC, Adam A. Edwards -- adam@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Gregory F. Coleman -- greg@gregcolemanlaw.com -- Greg Coleman Law PC, Lisa A. White -- lisa@gregcolemanlaw.com -, Greg Coleman Law PC, pro hac vice, Mark E. Silvey -- mark@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- Simmons Hanly Conroy LLC & Paul J. Hanly -- phanly@simmonsfirm.com Jr. -- Simmons Hanly Conry LLC. Chad Loury, Linda Spry, Lisa Sullivan & April Ahrens, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Crystal Gayle Foley, Simmons Hanly Conroy LLC, Mitchell M. Breit, Simmons Hanly Conroy LLC & Paul J. Hanly, Jr., Simmons Hanly Conry LLC. Nissan North America, Inc., Defendant, represented by Amir M. Nassihi -- anassihi@shb.com., Shook Hardy & Bacon L.L.P., Andrew L. Chang achang@shb.com -- Shook, Hardy & Bacon L.L.P., Holly Pauling Smith -hpsmith@shb.com -- Shook, Hardy and Bacon LLP, pro hac vice & Mr. William Roth Sampson, Shook, Hardy and Bacon LLP, pro hac NYP HOLDINGS: Faces "Sullivan" Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against NYP Holdings, Inc. doing business as: New York Post. The case is styled as Phillip Sullivan Jr., on behalf of himself and all others similarly situated, Plaintiff v. NYP Holdings, Inc. doing business as: New York Post, Defendant, Case No. 1:18-cv-02131 (S.D. N.Y., March 9, 2018). NYP Holdings, Inc. provides online and print news.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com OHR PHARMA: Vincent Wong Law Firm Files Class Action ---------------------------------------------------- The Law Offices of Vincent Wong announce that a class action lawsuit has been commenced in the United States District Court for the Southern District of New York on behalf of investors who purchased Ohr Pharmaceutical, Inc. ("Ohr") (NASDAQ:OHRP) securities between June 24, 2014 and January 4, 2018. Click here to learn about the case: http://www.wongesq.com/pslra- c/ohr-pharmaceutical-inc?wire=3. There is no cost or obligation to you. According to the complaint, throughout the Class Period, the Company issued materially false and misleading statements and/or failed to disclose that: (1) Ohr's lead product Squalamine would not produce vision improvements and was commercially not viable; and (2) as a result of the foregoing, Defendants' statements about Ohr's business, operations, and prospects were misleading and/or lacked a reasonable basis. If you suffered a loss in Ohr you have until April 16, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. To obtain additional information, contact Vincent Wong, Esq. either via email vw@wongesq.com, by telephone at 212.425.1140, or visit http://www.wongesq.com/pslra-c/ohr- pharmaceutical-inc?wire=3. Vincent Wong, Esq. is an experienced attorney that has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Vincent Wong, Esq. 39 East Broadway Suite 304 New York, NY 10002 Tel. 212.425.1140 Fax. 866.699.3880 E-Mail: vw@wongesq.com [GN] PACIFIC FERTILITY: Faces "S.M." Suit in N.D. California ------------------------------------------------------- A class action lawsuit has been filed against Pacific Fertility Center. The case is styled as S. M., individually and on behalf of all others similarly situated, Plaintiff v. Pacific Fertility Center and Prelude Fertility, Inc., Defendants, Case No. 3:18-cv- 01586 (N.D. Cal., March 13, 2018). Pacific Fertility Center Los Angeles is a highly advanced fertility clinic with offices in Glendale and Los Angeles, CA.[BN] The Plaintiff is represented by: Adam E. Polk, Esq. Girard Gibbs LLP 601 California Street, 14th Floor San Francisco, CA 94108 Tel: (415) 981-4800 Fax: (415) 981-4846 Email: aep@girardgibbs.com PETROLEO BRASILEIRO: US Court Preliminarily OKs Terms Settlement ---------------------------------------------------------------- Reuters reports that a U.S. federal court preliminarily approved on February 28 the terms of a $3 billion class action settlement Brazilian state oil company Petroleo Brasileiro SA reached with U.S. shareholders in January, the firm said in a March 1 securities filing. The company said a judge will assess potential objections to the accord at a hearing scheduled for June 1. In early January, Petrobras, as the company is known, agreed to pay $2.95 billion to U.S. shareholders due to corruption-related losses, in what was said to be the biggest such payout in the United States by a foreign entity. That number could be slightly higher due to legal and administrative fees. [GN] PLANET SMOOTHIE: Faces "Fischler" Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Planet Smoothie Franchises L.L.C. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. Planet Smoothie Franchises L.L.C. and Kahala Franchising L.L.C., Defendants, Case No. 1:18-cv-01473 (E.D. N.Y., March 9, 2018). Planet Smoothie is home to the best-tasting smoothies.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel:(212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com POLITICO LLC: Faces "Sullivan" Suit in S.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Politico LLC. The case is styled as Phillip Sullivan Jr., on behalf of himself and all others similarly situated, Plaintiff v. Politico LLC, Defendant, Case No. 1:18-cv-02255 (S.D. N.Y., March 14, 2018). Politico, known earlier as The Politico, is an American political journalism company based in Arlington County, Virginia, that covers politics and policy in the United States and internationally.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Lee Litigation Group, PLLC 30 East 39th Street 2nd Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 Email: cklee@leelitigation.com PORTFOLIO RECOVERY: Faces "Manfredi" Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against Portfolio Recovery Associates, LLC. The case is styled as Daryl Manfredi, individually and on behalf of all others similarly situated, Plaintiff v. Portfolio Recovery Associates, LLC, Defendant, Case No. 2:18-cv-01571-DRH-SIL (E.D. N.Y., March 14, 2018). Portfolio Recovery Associates, LLC, also known as Anchor Receivables Management, manages past-due accounts. It serves customers through account representatives.[BN] The Plaintiff is represented by: Joseph Mauro, Esq. The Law Office of Joseph Mauro, LLC 306 McCall Avenue West Islip, NY 11795 Tel: (631) 669-0921 Fax: (631) 669-5071 Email: JoeMauroesq@hotmail.com QUANTUM CORP: Klein Law Firm Files Class Action ----------------------------------------------- The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of Quantum Corporation (NYSE: QTM) who purchased shares between May 10, 2016 and February 7, 2018. The action, which was filed in the United States District Court for the Northern District of California, alleges that the Company violated federal securities laws. In particular, the complaint alleges that throughout the Class Period, defendants made materially false and/or misleading statements and/or failed to disclose that (i) Quantum had inappropriately accounted for revenue relating to certain transactions commencing April 1, 2016; (ii) the Company lacked adequate internal controls over financial reporting; and (iii) as a result of the foregoing, Quantum's publicly disseminated financial statements were materially false and misleading. On February 8, 2018, Quantum disclosed that in January of 2018, the Company received a subpoena from the Securities and Exchange Commission related to revenue recognition for certain transactions, prompting an internal investigation by Quantum, which remains ongoing. As a result, the Company announced that it "is postponing release of its fiscal third quarter 2018 results and its earnings conference call." Shareholders have until April 16, 2018 to petition the court for lead plaintiff status. Your ability to share in any recovery does not require that you serve as lead plaintiff. You may choose to be an absent class member. If you suffered a loss during the class period and wish to obtain additional information, please contact Joseph Klein, Esq. by telephone at 212-616-4899 or visit http://www.kleinstocklaw.com/pslra-c/quantum-corporation?wire=2. Joseph Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Joseph Klein, Esq. The Klein Law Firm Tel: 212-616-4899 Fax: 347-558-9665 Website: www.kleinstocklaw.com [GN] RICARDO AND SUSAN GARCIA: "Hill" Action Seeks Unpaid Overtime ------------------------------------------------------------- Josephine Hill, Individually and on behalf of all others similarly situated Plaintiff, v. Ricardo and Susan Garcia LLC (d/b/a Eclectix Coffee Bar and Bakery) and Susan Garcia, Case No. 18-cv-00036, (S.D. Tex., February 6, 2018), seeks all available relief, including compensation, liquidated damages, attorneys' fees and costs, pursuant to the provisions of the Fair Labor Standards Act of 1938. Eclectix is a coffee bar and bakery in Corpus Christi, Texas where Hill routinely worked in excess of 40 hours per workweek but was denied overtime pay. [BN] Plaintiff is represented by: Clif Alexander, Esq. Lauren E. Braddy, Esq. Carter T. Hastings, Esq. Austin W. Anderson, Esq. Alan Clifton Gordon, Esq, George Schimmel Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Tel: (361) 452-1279 Fax: (361) 452-1284 Email: clif@a2xlaw.com lauren@a2xlaw.com carter@a2xlaw.com austin@a2xlaw.com geordie@a2xlaw.com RICK BUTLER: Sued Over Alleged Sexual Abuse Cover-up ---------------------------------------------------- Carly DeMarque, writing for Volley Mob, reports that after it was thought to be over being expelled from every major volleyball organization in the country, Rick Butler has another lawsuit against him. Laura Mullen has pressed a class-action lawsuit against Butler. Mullen is contending that Butler, his wife and club covered up a number of serious sexual abuse and misconduct allegations made against him over many years. This included Butler and his wife pressuring assault victims to remain silent and threatening them with negative consequences if they did not comply. The case has been picked up by Jay Edelson, Esq. -- jedelson@edelson.com -- of Edelson PC, who will be representing Mullen pro bono. This saga began back in the 1980s when the abuse of at least four players took place but was not spoken out about until 1995. In 1995, Butler was banned from USA Volleyball because of the allegations, but this was lifted just five years later with the stipulation that Butler never coach a youth team through the organization ever again. This ban, however, did not stop Butler from being able to coach youth players through the AAU. Sarah Powers-Barnhard was one of the victims to speak out against Butler, setting up the original lawsuit. Her first attempt at the lawsuit was flawed but fixed in time for a January 2018 meeting that would decide his fate. Because of this lawsuit, USA Volleyball confirmed the lifetime ban of Butler from the organization. Following suit, the AAU and Junior Volleyball Association (an organization he helped to form), banned him as well. This ban has had considerable repercussions for Butler and his facilities, with the University of Wisconsin and Marquette University canceling their spring matches from his Great Lakes Volleyball Center. Additionally, USA Badminton also moved one of their national tournaments from his Aurora gym. [GN] RIOT BLOCKCHAIN: April 18 Lead Plaintiff Bid Deadline ----------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors that they have until April 18, 2018 to file lead plaintiff applications in securities class action lawsuits against Riot Blockchain, Inc. (NasdaqCM: RIOT), if they purchased the Company's securities between the expanded period of October 4, 2017 and February 15, 2018, inclusive (the "Class Period"). These actions are pending in the United States District Courts for the Districts of New Jersey, Colorado and Southern District of Florida. Get Help Riot investors should visit us at https://www.claimsfiler.com/cases/view-riot-blockchain-inc-fka- bioptix-inc-securities-litigation or call to speak to our claim center toll-free at (844) 367-9658. About the Lawsuit Riot and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. The alleged false and misleading statements and omissions include, but are not limited to, that: (i) Riot's principle executive offices were located in Florida, not Colorado, and in the same location as a significant shareholder who previously worked with Riot's CEO John O'Rouke (ii) Riot did not intend on holding its Annual Meetings scheduled for December 28, 2017 and February 1, 2018; and (iii) as a result of the foregoing, the Company's financial statements were materially false and misleading at all relevant times. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. ClaimsFiler's team of experts monitor the securities class action landscape and cull information from a variety of sources to ensure comprehensive coverage across a broad range of financial instruments. [GN] RIOT BLOCKCHAIN: Levi & Korsinsky Files Securities Class Action --------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Riot Blockchain, Inc. ("Riot Blockchain") (NASDAQ:RIOT) between October 4, 2017 and February 15, 2018. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the District of Colorado. To get more information go to: http://www.zlk.com/pslra-d/riot-blockchain-inc?wire=3 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll- free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) despite statements to the contrary, Riot Blockchain's principle executive offices were not in Colorado, but rather in Florida in the same location as shareholder Barry C. Honig, who had a previous working relationship with CEO and Chairman John O'Rouke; (2) Riot Blockchain never intended to hold its Annual General Meetings scheduled for December 28, 2017 and February 1, 2018; and (3) as a result, Defendants' statements about Riot's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. If you suffered a loss in Riot Blockchain you have until April 18, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a national firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. [GN] SAFEGUARDCASUALTY: "Henderson" Hits Illegal Telemarketing Calls --------------------------------------------------------------- Yvonne Henderson, on behalf of herself, and all others similarly situated, Plaintiff, v. SAFEGUARDCASUALTY.COM Inc., Case No. 18- cv-60258 (S.D. Fla., February 6, 2018), seeks damages, injunctive relief and any other available legal or equitable remedies, actual and statutory damages together with costs and reasonable attorneys' fees for violation of the Telephone Consumer Protection Act. Safeguard is an auto insurance agency that maintains its corporate headquarters at 9996 Pines Blvd, Pembroke Pines, Broward County, FL 33034. In an effort to solicit business, Safeguard repeatedly placed phone calls, without consent, to Henderson's cellular telephones while using automatic telephone dialing equipment having the capacity to store and dial telephone numbers. [BN] Plaintiff is represented by: Emily C. Komlossy, Esq. Ross A. Appel (FBN 90865) KOMLOSSY LAW, P.A. 4700 Sheridan St., Suite J Hollywood, FL 33021 Tel: (954) 842-2021 Fax: (954) 416-6223 Email: eck@komlossylaw.com raa@komlossylaw.com - and - Alexis M .Wood, Esq. Kas L. Gallucci, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Tel: (619) 696-9006 Fax: (619) 564-6665 Email: alexis@consumersadvocates.com kas@consumersadvocates.com SANIMAX USA: Faces "Keech" Suit in D. Minnesota ------------------------------------------------ A class action lawsuit has been filed against Sanimax USA, LLC. The case is styled as Patricia Keech and David Newfield, on behalf of themselves and all others similarly situated, Plaintiffs v. Sanimax USA, LLC, Defendant, Case No. 0:18-cv- 00683-JRT-HB (D. Minn., March 12, 2018). Sanimax USA LLC was founded in 2009. The company's line of business includes the wholesale distribution of non-durable goods.[BN] The Plaintiff is represented by: Jeffrey S Storms, Esq. Newmark Storms Law Office 100 South Fifth Street, Suite 2000 Minneapolis, MN 55402 Tel: (612) 455-7050 Fax: (612) 455-7051 Email: jeff@newmarkstorms.com SCANA CORP: Judge Rules Electric Customers' Lawsuits Can Proceed ---------------------------------------------------------------- Thad Moore and Andrew Brown, writing for The Post and Courier, reports that South Carolina electric customers can sue SCANA Corp. for refunds over a pair of abandoned nuclear reactors, a judge has ruled, rejecting the utility's efforts to dismiss a collection of lawsuits filed against it. SCANA, the Cayce-based owner of South Carolina Electric & Gas, wanted to settle the multibillion-dollar question of who pays for the reactors outside of a courtroom. During a hearing in January, the power company argued that state regulators, not judges, should resolve disputes about electric rates. Circuit Judge John Hayes III disagreed, rebuking SCANA with a decision issued March 1 that keeps a legal cloud hanging over the embattled utility. SCANA owned more than half of a massive effort to expand the V.C. Summer Nuclear Station north of Columbia. That project cost roughly $9 billion before it was called off in July. The question of who should pick up SCANA's roughly $5 billion tab has roiled South Carolina ever since. Regulators are expected to hear arguments later this year and the Legislature is considering a slate of proposals that could stick SCANA with the bill. Hayes' decision means the courts will have a hand in that process, too. While regulators and lawmakers remain focused on what customers should pay in the future, the courts can decide questions about what they've paid in the past, the order says. Those are enormous questions: SCE&G customers pay $37 million a month for the reactors -- about a fifth of their monthly bills -- and they have paid about $2 billion over the past decade. Hayes' order also says the courts could decide whether customers are entitled to money from a billion-dollar settlement SCANA reached with the project's contractor. The courts, Hayes said, can also rule on whether it's constitutional for a utility to charge ratepayers for an unfinished project. SCANA was given that right by the 2007 Base Load Review Act, a law that faces constitutional questions from the state attorney general and others who contend the builders never met their obligations. The state's Solicitor General Bob Cook participated in the circuit court hearing in January. "We have always maintained that the BLRA is unconstitutional, and we firmly believe the ratepayers should have their day in court," Attorney General Alan Wilson, Esq. said in a prepared statement. Some of the legal questions were raised by five lawsuits -- all seeking class-action status -- filed last year on behalf of customers. The cases are being heard together. "We will continue to press forward to hold the company accountable," said Ed Bell, a Georgetown attorney who brought one of the lawsuits, in a statement. "It's just plain wrong to charge ratepayers well into the future for the company's failure," he added. The cases could also impact SCANA's plans to merge with Dominion Energy, a Virginia-based utility giant. Dominion agreed to buy the company earlier this year in a deal worth $14.6 billion, with an offer of partial refunds and rate reductions. But under the plan, Dominion would still charge customers for the scuttled project for the next 20 years. An order cutting off payments for the nuclear project would kill the merger if it's handed down before the deal closes. In a statement, SCANA suggested that was a better option than seeking refunds in court, because attorneys' fees would cut into customer refunds. Dominion has offered to refund about two-thirds of the money customers have already paid, in part by using settlement funds they might already have been entitled to. It's also offering to cut about a fifth of SCE&G's nuclear-related rates going forward. "We understand our electric customers in South Carolina want relief. We want to provide it to them, which is why we are seeking a combination with Dominion Energy," SCANA spokesman Eric Boomhower said. "We will continue to defend the company from these lawsuits, in the best interest of our customers, shareholders and employees." SCANA said it still thinks the question of V.C. Summer payments should be left to regulators on the Public Service Commission. That's a position Hayes' order specifically rejected. The commission "has no authority to ascertain the negligence of corporate entities and their boards," Hayes wrote, and it doesn't have the jurisdiction to handle constitutional questions. [GN] SETERUS INC: Court Dismisses "Campbell" FCCPA Suit -------------------------------------------------- The United States District Court for the Middle District of Florida, Tampa Division, issued an Order granting Defendants' Motion to Dismiss the case captioned MARK S. CAMPBELL, Plaintiff, v. SETERUS, INC., Defendant, Case No. 8:17-cv-2078-T-23TGW (M.D. Fla.). Seterus moves to dismiss the claims for failure to invoke the district court's jurisdiction and for failure to state a claim. Mark Campbell petitioned for bankruptcy in the United States Bankruptcy Court for the Middle District of Florida, and the bankruptcy court discharged a debt owed by Campbell. Alleging that Seterus attempted to collect the debt in 2017, Campbell sues under the Florida Consumer Collection Protection Act (count one). The FCCPA claim (count one) Campbell attempts through the FCCPA claim to invoke jurisdiction under Class Action Fairness Act, which requires an amount in controversy greater than $5,000,000. Section 559.77, Florida Statutes, permits a prevailing plaintiff in an FCCPA action to recover $1,000. In a class action, Section 559.77 limits the class award to $500,000. Also, Campbell requests punitive damages, but Section 768.73 limits punitive damages to three times the amount of compensatory damages. Because Florida law prohibits a judgment greater than $2,004,000 in this instance, Campbell fails to invoke jurisdiction under CAFA. Supplemental jurisdiction over the FCCPA claim No federal claim remains, and comity counsels against exercising supplemental jurisdiction over the state-law FCCPA claim. Although the FCCPA claim resulted from Seterus's alleged attempt to collect a debt discharged in bankruptcy, the bankruptcy court closed Campbell's case more than five years ago. Florida's state courts maintain a strong interest in adjudicating the FCCPA claim, which involves no question inextricably intertwined with bankruptcy law, and Campbell identifies no persuasive reason for the district court to exercise supplemental jurisdiction in this circumstance. A full-text copy of the District Court's February 15, 2018 Order is available at https://tinyurl.com/y84hxahv from Leagle.com. Mark S. Campbell, Plaintiff, represented by Gus M. Centrone -- gcentrone@centroneshrader.com -- Centrone & Shrader, PLLC, Katherine Earle Yanes -- kyanes@kmf-law.com -- Kynes, Markman & Felman, PA & Brandon Kyle Breslow, Kynes, Markman & Felman, PA, 100 S. Ashley Drive, Suite 1450, Tampa, FL 33601 Seterus, Inc., Defendant, represented by Allen Paige Pegg, -- allen.pegg@hoganlovells.com -- Hogan Lovells US LLP & Jason David Sternberg -- jason.sternberg@hoganlovells.com -- Hogan Lovells US LLP. SIRIUS XM: Andrews Appeals C.D. California Ruling to 9th Circuit ---------------------------------------------------------------- Plaintiff James E. Andrews filed an appeal from a court ruling in the lawsuit styled James Andrews v. Sirius XM Radio, Inc., et al., Case No. 5:17-cv-01724-PA-AFM, in the U.S. District Court for the Central District of California, Riverside. As reported in the Class Action Reporter on Feb. 2, 2018, the District Court granted summary judgment to Sirius XM in the putative class action under the Driver's Privacy Protection Act. Plaintiff James Andrew alleged on behalf of himself and a putative class that Sirius sent solicitation letters using personal information obtained from motor vehicle records in violation of the DPPA's limits on marketing uses. Prior to the filing of Sirius' motion for summary judgment, counsel for Sirius explained to Andrew's counsel that the satellite radio broadcaster had not obtained the "personal information" of Andrew or any other class members from the state's Department of Motor Vehicles but instead obtained Andrew's name, address, telephone number, and vehicle information from a combination of Auto Source, the dealer from which Andrew purchased the vehicle, and the United States Postal Service's change of address database. Despite Sirius providing Andrew's counsel with declarations supporting these facts, Andrew refused to dismiss the suit. The Court ultimately concluded "that the undisputed facts establish that Defendant did not 'use' 'personal information' 'from a motor vehicle record' when it obtained Plaintiff's name, address, phone number, and vehicle information from Auto Source's [computer program] and the Postal Service's change of address database." As such, the DPPA's limits on marketing uses did not apply. The appellate case is captioned as James Andrews v. Sirius XM Radio, Inc., et al., Case No. 18-55169, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant James E. Andrews' opening brief is due on April 10, 2018; -- Appellees Does and Sirius XM Radio, Inc.'s answering brief is due on May 10, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant JAMES E. ANDREWS, on behalf himself and all persons similarly situated, is represented by: Jeffrey Spencer, Esq. THE SPENCER LAW FIRM 1211 Puerta Del Sol San Clemente, CA 92673 Telephone: (949) 240-8595 Facsimile: (949) 240-8515 E-mail: jps@spencerlaw.net - and - Jeffrey Wilens, Esq. LAKESHORE LAW CENTER 18340 Yorba Linda Blvd. Yorba Linda, CA 92886 Telephone: (714) 854-7205 Facsimile: (714) 854-7206 E-mail: jeff@lakeshorelaw.org Defendant-Appellee SIRIUS XM RADIO, INC., is represented by: Thomas Demitrack, Esq. JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 E-mail: tdemitrack@jonesday.com - and - Ann Theresa Rossum, Esq. John A. Vogt, Esq. JONES DAY 3161 Michelson Drive, Suite 800 Irvine, CA 92612-4408 Telephone: (949) 851-3939 Facsimile: (949) 553-7539 E-mail: atrossum@jonesday.com javogt@jonesday.com SMCP USA: Faces "Kiler" Suit in E.D. New York ---------------------------------------------- A class action lawsuit has been filed against SMCP USA, Inc. The case is styled as Marion Kiler, individually and as the representative of a class of similarly situated persons, Plaintiff v. SMCP USA, Inc. doing business as: Sandro, Defendant, Case No. 1:18-cv-01505 (E.D. N.Y., March 12, 2018). Smcp USA Inc was founded in 2010. The company's line of business includes the manufacturing of communications and related equipment.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11201 Tel: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com SOUTH CAROLINA ELECTRIC: Judge Orders Class-Action to Proceed ------------------------------------------------------------- Jan-Michael Pugh, writing for News2, reports that a state circuit judge March 1 issued an order denying an attempt by SCE&G to kill five class-action complaints that seek to stop the utility from continuing to charge its customers for costs associated with two failed nuclear plants. "Today's order is the first real step toward keeping the power companies from continuing to benefit from their past misdeeds and negligence stemming from the billions of dollars charged to ratepayers to pay for the now-failed V.C. Summer nuclear plants," said plaintiff's attorney Ed Bell, Esq. -- ebell@edbelllaw.com -- of Bell Legal Group. He and colleagues filed one of five separate actions related to the failed projects. The order applies to each of the cases, which are listed below. Today, Bell said he and other plaintiff's attorneys involved in the cases would continue to push for their clients in the actions against the utilities "We will continue to press forward to hold the company accountable," said Bell, a nationally-prominent attorney from Georgetown. "It should be cut off from future payments for the failed project and clean up its house on its own, not on the backs of ratepayers for the next 20 years. It's just plain wrong to charge ratepayers well into the future for the company's failure." The order issued by S.C. Circuit Court Judge John C. Hayes III denied SCE&G's attempt to dismiss the plaintiff cases against the company, which alleged the court didn't have jurisdiction , among other arguments. "Plaintiff's Complaint properly states causes of action in the original jurisdiction of the Circuit Court, which the PSC [S.C. Public Service Commission] is incapable of hearing," the court wrote. "The relief sought by Plaintiff is not available through the PSC, or any other administrative channel. And Plaintiff's claims are separate and distinct from those matters currently pending before the PSC." In the order, Hayes wrote the issues brought by plaintiffs were "well within the everyday purview of this court." He also wrote the company received settlement funds after the project failed, but didn't share them with customers, who have been paying for the project since 2008. "Despite Plaintiff funding a significant portion of the Project over the past nine years, SCE&G has kept all proceeds of this settlement and has not returned any of the settlement proceeds to Plaintiff." Bell added it was good that the cases were heard together because it saved time for plaintiffs and the court. "Having this order applied to the other cases will help make something that's complicated easier to remedy," he said. A call to stop an advertising campaign Bell also called on the company and Dominion Energy to stop a multi-faceted, misleading advertising and marketing campaign to woo ratepayers to get support for a $7.9 billion buyout proposal by Dominion for SCANA Corp., the parent of SCE&G. He criticized SCE&G for spending big bucks to try to influence the legislature to protect SCANA's investors following the failure of the project. "After learning how much money that SCE&G used to get the sweetheart legislation passed to start on the nuclear project, it is further appalling that SCE&G is taking the same tactic by trying to influence the legislature to protect their investors and to hell with the ratepayers," Bell said. "What do these billion-dollar corporations want to give ratepayers? A measly $1,000 per household. That's an insult to ratepayers -- and it's an incredibly bad deal. That is pretty shocking and I am not easily shocked." [GN] STAAR SURGICAL: Class Action Suit Settled for $7-Mil. ----------------------------------------------------- Sarah Faulkner, writing for Mass Device, reports that Staar Surgical inked a $7 million deal last year to settle claims that the company misled investors regarding regulatory violations spotted by the FDA at a Monrovia, Calif.-based manufacturing facility. The plaintiff, Edward Todd, initially alleged that Staar Surgical, ex-president & CEO Barry Caldwell, CFO Deborah Andrews and ex-CFO Stephen Brown failed to disclose problems that eventually resulted in a warning letter from the FDA in 2014. In the May warning letter, inspectors wrote that the company was missing design files for its Visian implantable lenses and that Staar Surgical had insufficient record-keeping, lack of risk analysis documentation and poor customer complaint management. Later that year, Todd filed a putative securities class action suit against the company and its executives in the U.S. District Court of Central California. In October of 2014, Todd amended his complaint, reducing the alleged class period to Nov. 1, 2013 -- Sept. 29, 2014 and demanding compensatory damages as well as attorneys' fees. Staar Surgical agreed to settle the case and in October last year, the court issued a final approval for the $7 million class action settlement deal, according to Staar Surgical's annual report. Staar Surgical reported losses of $138,000, or 0 cents per share, on sales of $24.9 million for the three months ended Dec. 29. The company reeled in its losses by 17.4% while sales grew 12.3% compared with the same period last year. Losses per share were ahead of estimates on The Street, where analysts were looking for sales of $23.9 million. Staar Surgical posted losses of $2.1 million for the full year, or 5õ per share, on sales of $90.6 million, seeing losses shrink by 82.4% on sales growth of 9.9% compared with the same period last year. [GN] SUMMIT CREDIT: Faces "Domann" Suit in W.D. Wisconsin ----------------------------------------------------- A class action lawsuit has been filed against Summit Credit Union. The case is styled as Matthew Domann, individually, and on behalf of all others similarly situated, Plaintiff v. Summit Credit Union and Does 1 - 100, Defendants, Case No. 3:18-cv-00167 (W.D. Wis., March 9, 2018). Summit Credit Union, founded in 1935, is a credit union based in Madison, Wisconsin, United States. As of 2015, it has 34 locations throughout the state.[BN] The Plaintiff is represented by: Douglas P. Dehler, Esq. O'Neil, Cannon, Hollman, DeJong & Laing S.C. 111 East Wisconsin Avenue, Suite 1400 Milwaukee, WI 53202 Tel: (414) 276-5000 Fax: (414) 226-9905 Email: Doug.Dehler@wilaw.com - and - Laura Jean Lavey, Esq. O'Neil, Cannon, Hollman, DeJong & Laing S.C. 111 East Wisconsin Avenue, Suite 1400 Milwaukee, WI 53202 Tel: (414) 276-5000x4712 Fax: (414) 276-6581 Email: Laura.Lavey@wilaw.com - and - Richard Dale McCune, Jr., Esq. McCune Wright Arevalo, LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Tel: (909) 557-1250 Fax: (909) 557-1275 Email: RDM@McCuneWright.com - and - Taras Kick, Esq. The Kick Law Firm 201 Wilshire Blvd Santa Monica, CA 90401 Tel: (310) 395-2988 Email: taras@kicklawfirm.com SUPER MICRO: April 9 Lead Plaintiff Bid Deadline ------------------------------------------------ The Klein Law Firm announces that a class action complaint has been filed on behalf of shareholders of Super Micro Computer, Inc. (NASDAQ: SMCI) who purchased shares between August 5, 2016 and January 30, 2018. The action, which was filed in the United States District Court for the Northern District of California, alleges that the Company violated federal securities laws. In particular, the complaint alleges that throughout the Class Period, defendants made materially false and/or misleading statements and/or failed to disclose that (1) the Company was improperly recognizing revenue on certain sales transactions; (2) the Company failed to implement and maintain proper internal controls over its financial reporting; (3) the Company's revenues and income were artificially inflated as a result of its illicit business practices; (4) these practices caused the Company to be vulnerable to potential civil and criminal liability, and adverse regulatory action; and (5) as a result of the foregoing, Defendants' statements about the Company's business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. Shareholders have until April 9, 2018 to petition the court for lead plaintiff status. Your ability to share in any recovery does not require that you serve as lead plaintiff. You may choose to be an absent class member. If you suffered a loss during the class period and wish to obtain additional information, please contact Joseph Klein, Esq. by telephone at 212-616-4899 or visit http://www.kleinstocklaw.com/pslra-c/super-micro-computer- inc?wire=2. Joseph Klein, Esq. represents investors and participates in securities litigations involving financial fraud throughout the nation. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] SYSTEMATIC NATIONAL: "Aparicio" Hits Autodialed Collection Calls ---------------------------------------------------------------- Imelda Aparicio, individually and on behalf of all others similarly situated, Plaintiff, v. Systematic National Collections, Inc., Defendants, Case No. 18-cv-00229, (N.D. Cal., January 10, 2018), seeks statutory damages and injunctive relief resulting from violations of the Telephone Consumer Protection Act, and the Rosenthal Fair Debt Collection Practices Act. Sometime June 2017, Defendant contacted Aparicio on her cellular telephone number in an effort to collect an alleged debt using an automatic telephone dialing system where she incurred a charge for incoming calls. Plaintiff did not give Systematic prior express consent to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com TASTE OF NATURE: Faces "Gillespie" Suit in C.D. California ---------------------------------------------------------- A class action lawsuit has been filed against Taste of Nature, Inc. The case is styled as Sierra Gillespie, individually, on behalf of herself and others similarly situated, Plaintiff v. Taste of Nature, Inc., Defendant, Case No. 2:18-cv-02105-RGK-AFM (C.D. Cal., March 13, 2018). Taste of Nature, Inc. is a rapidly growing candy and snack food manufacturing company whose fun and innovative products may be found on store shelves nationwide.[BN] The Plaintiff is represented by: Christopher D Moon, Esq. Kamber Law LLP 9404 Genesee Avenue Suite 340 La Jolla, CA 92037 Tel: (310) 400-1051 Fax: (858) 800-4277 Email: cmoon@kamberlaw.com - and - Naomi B Spector, Esq. Kamber Law LLP 9404 Genesee Avenue Suite 340 La Jolla, CA 92037 Tel: (310) 400-1053 Fax: (858) 800-4277 Email: nspector@kamberlaw.com TE CONNECTIVITY: Appeals Ruling in "Wilson" Suit to Ninth Circuit ----------------------------------------------------------------- Defendants TE Connectivity Networks, Inc., and Tyco Electronics Corporation filed an appeal from a court ruling in the lawsuit titled Dale Wilson v. TE Connectivity Networks, Inc., et al., Case No. 3:14-cv-04872-EDL, in the U.S. District Court for the Northern District of California, San Francisco. As reported in the Class Action Reporter, the Plaintiff previously sought certification of three classes: (i) Meal Break Class: All persons employed by Defendants in hourly or non-exempt positions in California from October 1, 2010 through the date of class certification, who worked a shift of five hours or more. (ii) Rest Break Class: All persons employed by Defendants in hourly or non-exempt positions in California from October 1, 2010 through the date of class certification, who worked a shift of three and a half hours or more. (iii) Auto-Deduct Class: All persons employed by Defendants in hourly or non-exempt positions in California from October 1, 2010 through the date of class certification, who had a half hour deducted from their paychecks for a meal period. The appellate case is captioned as Dale Wilson v. TE Connectivity Networks, Inc., et al., Case No. 18-80018, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent DALE WILSON, on behalf of himself, all others similarly situated, and the general public, is represented by: Chaim Shaun Setareh, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com Defendants-Petitioners TE CONNECTIVITY NETWORKS, INC., a Minnesota corporation, and TYCO ELECTRONICS CORPORATION, a Pennsylvania corporation, are represented by: Thomas M. Peterson, Esq. MORGAN LEWIS & BOCKIUS LLP One Market Street Spear Street Tower San Francisco, CA 94105 Telephone: (415) 442-1198 E-mail: thomas.peterson@morganlewis.com - and - Kathryn T. McGuigan, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue Los Angeles, CA 90071-3132 Telephone: (213) 612-7390 Facsimile: (213) 612-2501 E-mail: kmcguigan@morganlewis.com - and - Melinda S. Riechert, Esq. MORGAN, LEWIS & BOCKIUS LLP 1400 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 843-7864 Facsimile: (650) 843-4001 E-mail: mriechert@morganlewis.com TEXAS: Faces "Steward" Suit in District of Columbia --------------------------------------------------- A class action lawsuit has been filed against United States of America. The case is styled as Eric Steward, ARC OF Texas, Inc., Coalition of Texans with Disabilities, Inc., et al., on behalf of themselves and all others similarly situated, Plaintiff, United States of America v. Greg Abbott, Governor of Texas, Charles Smith, Executive Commissioner of Texas Health and Human Services Commission, Jon Weizenbaum, Commissioner of the Texas Department of Aging and Disability Services and State of Texas, Defendants, Centers for Medicare & Medicaid Services, Non-Party Petitioner, Case No. 1:18-mc-00037-JDB (D.D.C., March 14, 2018). Texas is the second largest state in the United States by both area and population.[BN] The Non-Party Petitioner is represented by: Daniel Patrick Schaefer, Esq. U.S. ATTORNEY'S OFFICE 555 Fourth Street, NW Washington, DC 20530 Tel: (202) 252-2531 Fax: (202) 252-2599 Email: Daniel.Schaefer@usdoj.gov TRANSWORLD SYSTEMS: Faces "Pavetic" Suit in N.D. Ohio ----------------------------------------------------- A class action lawsuit has been filed against Transworld Systems, Inc. The case is styled as Sinisa Pavetic, individually and on behalf of all others similarly situated, Plaintiff v. Transworld Systems, Inc., Defendant, Case No. 4:18-cv-00587-JRA (N.D. Ohio, March 13, 2018). Transworld Systems Inc. provides accounts receivable, debt recovery, and past due accounts services for businesses, medical companies, dental companies, education facilities, Fortune 500 companies, and small businesses in the United States and internationally.[BN] The Plaintiff is represented by: Ari Marcus, Esq. Marcus Zelman 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Tel: (732) 695-3282 Fax: (732) 298-6256 TRAVELPORT LP: Eleventh Circuit Appeal Filed in "Williamson" Suit ----------------------------------------------------------------- Plaintiff Angela Henderson Williamson filed an appeal from a court ruling in the lawsuit entitled Angela Williamson v. Travelport, LP, et al., Case No. 1:17-cv-00406-WSD, in the U.S. District Court for the Northern District of Georgia. As previously reported in the Class Action Reporter, the lawsuit is brought on behalf of all persons, who reside in the United States, who are vested participants in the Defendants' pension benefit under the Legacy Pension Plan, are eligible to begin and have begun receiving pension benefits, have had their pension benefits inappropriately reduced with regard to Final Average Compensation and Months of Benefit Service and had their pension benefits inappropriately reduced due to the Defendants' failure to keep appropriate pay records substantiating Final Average Compensation. Travelport, LP, provides online transaction processing and information technology services to the travel industry worldwide. Galileo & Worldspan U.S. Legacy Pension Plan is an ERISA-governed employee pension plan sponsored by Travelport, LP, and administered by Travelport in Atlanta, Georgia. The appellate case is captioned as Angela Williamson v. Travelport, LP, et al., Case No. 18-10449, in the United States Court of Appeals for the Eleventh Circuit. The briefing schedule in the Appellate Case is set as follows: -- The appellant's brief was due on or before March 19, 2018; -- The appendix is due no later than 7 days from the filing of the appellant's brief; -- Appellant's Certificate of Interested Persons was due on or before February 20, 2018, as to Appellant Angela Henderson Williamson; and -- Appellee's Certificate of Interested Persons was due on or before March 6, 2018, as to Appellee Travelport, LP.[BN] Plaintiff-Appellant ANGELA HENDERSON WILLIAMSON, on behalf of herself and all others similarly situated, is represented by: Oladimeji Ade-Olu Ogunsola, Esq. PATEL BURKHALTER LAW GROUP 4045 Orchard Road, Building 400 Atlanta, GA 30080 Telephone: (678) 974-1541 Facsimile: (678) 547-3119 E-mail: dogunsola@patelburkhalter.com - and - Douglas N. Campbell, Esq. DOUGLAS N. CAMPBELL & ASSOCIATES, P.C. 4776 E Conway Drive NW Atlanta, GA 30327-3537 Telephone: (404) 256-0423 Facsimile: (404) 550-2856 E-mail: dougcampbell@mindspring.com - and - Nancy B. Pridgen, Esq. MONNOLLY PRIDGEN LLC 3340 Peachtree Road, Suite 1800 Atlanta, GA 30326 Telephone: (404) 551-5884 Defendants-Appellees TRAVELPORT, LP, and GALILEO & WORLDSPAN U.S. LEGACY PENSION are represented by: Patrick Fred Clark, Esq. OGLETREE DEAKINS NASH SMOAK & STEWART, PC 191 Peachtree Street NE, Suite 4800 Atlanta, GA 30303 Telephone: (404) 881-1300 E-mail: patrick.clark@ogletree.com - and - John Houston Pope, Esq. EPSTEIN BECKER & GREEN, PC 250 Park Avenue New York, NY 10177-1211 Telephone: (212) 351-4500 E-mail: jhpope@ebglaw.com TROLLBEADS UNITED: Faces "Marett" Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Trollbeads United States, Inc. The case is styled as Lucia Marett, individually and as the representative of a class of similarly situated persons, Plaintiff v. Trollbeads United States, Inc., Defendant, Case No. 1:18-cv-02190 (S.D. N.Y., March 12, 2018). Trollbeads was founded in 1976 in a small jeweler's store in Copenhagen, Denmark, and is the original beads-on-bracelet brand known for using the highest quality materials and craftsmanship.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11201 Tel: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com TRUSTCO BANK: Faces "Delacruz" Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Trustco Bank. The case is styled as Emanuel Delacruz and on behalf of all other persons similarly situated, Plaintiff v. Trustco Bank, Defendant, Case No. 1:18-cv-02278-AJN (S.D. N.Y., March 14, 2018). Trustco Bank is a commercial bank within the United States.[BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. Gottlieb & Associates 150 East 18th Street, Suite PHR New York, NY 10003 Tel: (917) 796-7437 Fax: (212) 982-6284 Email: danalgottlieb@aol.com UBIQUITI NETWORKS: Levi & Korsinsky Files Securities Class Action ----------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Ubiquiti Networks, Inc. ("Ubiquiti") (NASDAQ:UBNT) between May 9, 2013 and February 20, 2018. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Southern District of New York. To get more information go to: http://www.zlk.com/pslra-d/ubiquiti-networks-inc?wire=3 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll- free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose: (i) that the size of the Company's purported user community was drastically overstated; (ii) that the Company had exaggerated its publicly reported accounts receivable; and (iii) that as a result of the foregoing, Ubiquiti's publicly disseminated financial statements were materially false and misleading. On February 20, 2018, Ubiquiti revealed that it had received a subpoena from the SEC "requesting documents and information relating to a range of topics including metrics relating to the Ubiquiti Community, accounting practices, financial information, auditors, international trade practices, and relationships with distributors and various other third parties." If you suffered a loss in Ubiquiti you have until April 23, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a national firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. [GN] UBIQUITI NETWORKS: Rosen Law Firm Files Class Action ---------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces the filing of a class action lawsuit on behalf of shareholders of Ubiquiti Networks, Inc. (NASDAQ: UBNT) from May 9, 2013 through February 20, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for Ubiquiti investors under the federal securities laws. To join the Ubiquiti class action, go to http://www.rosenlegal.com/cases-1210.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, defendants throughout the Class Period made materially false and/or misleading statements and/or failed to disclose that: (1) that the size of Ubiquiti's purported user community was drastically overstated; (2) that Ubiquiti had exaggerated its publicly reported accounts receivable; and (3) that as a result of the foregoing, Ubiquiti's publicly disseminated financial statements were materially false and misleading. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than April 23, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1210.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866- 767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen_firm. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Since 2014, Rosen Law Firm has been ranked #2 in the nation by Institutional Shareholder Services for the number of securities class action settlements annually obtained for investors. Contacts Laurence Rosen, Esq. Phillip Kim, Esq. Zachary Halper, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: 212-686-1060 Toll Free: 866-767-3653 Fax: 212-202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com zhalper@rosenlegal.com[GN] UBER TECHNOLOGIES: Faces "Dulberg" Suit in N.D. California ---------------------------------------------------------- A class action lawsuit has been filed against Uber Technologies, Inc. The case is styled as Martin Dulberg, individually, and on behalf of all others similarly-situated, Plaintiff v. Uber Technologies, Inc. and Rasier, LLC, Defendants, Case No. 4:18-cv- 01611-KAW (N.D. Cal., March 14, 2018). Uber Technologies Inc. is a peer-to-peer ridesharing, food delivery, and transportation network company headquartered in San Francisco, California, with operations in 633 cities worldwide.[BN] The Plaintiff is represented by: Jennifer R. Liakos, Esq. Napoli Shkolnik PLLC 525 South Douglas Street, Suite 260 El Segundo, CA 90245 Tel: (310) 331-8224 Fax: (646) 843-7603 Email: jliakos@napolilaw.com UBER TECHNOLOGIES: Court Dismisses "Mejia" ------------------------------------------ The United States District Court for the Southern District of Florida dismissed for lack of jurisdiction the case captioned JOSE MEJIA, an individual, on behalf of himself and all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC., a Delaware Corporation, Defendant, Case No. 17-cv-61617- BLOOM/Valle(S.D. Fla.). Defendant filed a Motion to Compel Arbitration and Stay All Court Proceedings and Accompanying Memorandum of Law in Support. Uber has maintained a policy that prohibits drivers and riders from carrying guns. Mejia, who is licensed in the State of Florida to carry a concealed weapon or firearm, alleges that he began work as an Uber driver, offering transportation services primarily in the Miami-Dade, Broward, and Palm Beach Counties. Plaintiff wishes to carry a firearm in his vehicle while he provides transportation services through Uber. Based on these allegations, Mejia claims that Uber has violated his rights and the rights of a putative class of Uber drivers who offer transportation services in Florida and possess a license to carry a concealed weapon or firearm. Although the parties have not raised the issue of standing, the Court properly considers this threshold jurisdictional question prior to adjudication of the Motion before the Court. A plaintiff must satisfy three constitutional prerequisites of standing: First, the plaintiff must have suffered an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The crux of Plaintiff's claim is that the Policy conflicts with Florida Statute 790.251(4)(c)-(d), even though the plain language of the Policy carves out the conflict Plaintiff complains of and Uber has not otherwise attempted to enforce the Policy against Mejia. Instead Plaintiff requests the Court to extrapolate how, if at all, Uber might enforce the Policy against Plaintiff and the putative class. Plaintiff speculates that Uber may prohibit him from keeping his firearm in his vehicle while using the Uber application, allegedly in contravention of Florida law, but this hypothesis does not support a finding of the 'actual or imminent' injury that our cases require" and defies the plain language of the policy. Accordingly, Plaintiff cannot satisfy the first prong of the Lujan test. Rather, the relief that Plaintiff seeks, that the Court declare that Defendant's conduct violates the statute referenced herein, is an impermissible exercise in purely advisory decision-making. Because Plaintiff lacks standing, the Court refrains from further consideration of the Motion and this action must be dismissed for lack of jurisdiction. A full-text copy of the District Court's February 15, 2018 Order is available at https://tinyurl.com/ybqe3ec7 from Leagle.com. JOSE MEJIA, an individual, on behalf of himself and all others similarly situated, Plaintiff, represented by Beverly Virues, Beck, Lee, Elizabeth Lee Beck, Beck & Lee Trial Lawyers & Jared H. Beck, Beck & Lee Trial Lawyers, 12485 SW 137th Ave., Suite 205. Miami, Florida 33186 UBER TECHNOLOGIES, INC., a Delaware corporation, Defendant, represented by Edward Maurice Mullins -- emullins@reedsmith.com - - Reed Smith LLP, Brandon T. White -- bwhite@reedsmith.com -- Reed Smith, LLP & Hannah Lisbeth Sorcic -- hsorsic@reedsmith.com -- Reed Smith LLP. UBER TECHNOLOGIES: Ontario Judge Stays $400MM Class Action ---------------------------------------------------------- Alex Robinson, writing for the Canadian Lawyer, reports that an Ontario judge has stayed a proposed class action lawsuit brought against Uber by its own drivers in favour of arbitration in the Netherlands. In Heller v. Uber Technologies, the plaintiff, David Heller, was seeking $400 million in damages for the class as well as a declaration that Uber violated the Employment Standards Act by failing to pay benefits to the putative class members. Heller entered into a service agreement, which included an arbitration clause, when he began working as an Uber driver in 2016. The clause held that any disputes or conflicts would be resolved by arbitration in the Netherlands, where Uber's legal team is primarily located. When Uber moved to have the proceeding stayed in favour of arbitration, Ontario Superior Court Justice Paul Perell found the matter should not proceed as a class action in Ontario as the drivers are bound by the arbitration clause. The plaintiffs are now appealing Perell's decision. Lior Samfiru, one of the lawyers representing the plaintiff, says the decision, if ultimately upheld, could have "disastrous" implications for employees and could "change the face of employment law." He says the decision could mean that employees might not have a way to enforce their rights under the ESA when employers include such arbitration clauses in agreements. "If all employers have to say is you have to go arbitrate in a foreign country, then all those rights become meaningless," says Samfiru, who is a partner and co-founding member of Samfiru Tumarkin LLP. Citing a 2011 Supreme Court of Canada decision in Seidel v. TELUS Communications Inc., Perell said in his decision that absent legislative language to the contrary, courts must enforce arbitration clauses and only refuse to refer such a matter to arbitration "if it is clear that the matter falls outside" of the agreement. Heller argued that the issue is outside of the jurisdiction of an arbitrator in the Netherlands as the proposed class action is about an alleged employment relationship. Uber countered this by saying it is for the arbitrator to decide whether they have jurisdiction -- except for in limited circumstances -- according to what is called the competence-competence principle. Under the International Commercial Arbitration Act, the competence-competence principle holds that courts should defer jurisdiction to an arbitrator when there is an arguable case the arbitrator does indeed have jurisdiction and if it is not clear whether a dispute falls outside of the terms of an arbitration agreement. Heller maintained that his action falls within the exceptions of when the court has to refer a matter to an arbitrator and that it would be contrary to public policy to enforce such an arbitration agreement in an employment contract as it would deny non- unionized employees their rights under the Employment Standards Act. Perell found that for this argument to be successful, Heller is assumed to be Uber's employee. The judge also found that the wording of the ESA does not preclude staying the action in favour of arbitration. "Further, the issue of whether employment claims are arbitrable is an issue subject to the competence-competence principle," Perell wrote in the decision. "It is a complex issue of mixed fact and law to be determined in the first instance by the arbitrator; it is not a simple matter of statutory interpretation to be resolved by the court." Heller also argued that the arbitration agreement was null and void as it was unconscionable. He contended that it was illegal, as it contracted outside of the ESA. Perell found that the exceptions to a stay and referral to arbitration, however, did not apply to the action as he did not see a "situation of unconscionability in the circumstances of the immediate case" and that it was not clear that the dispute fell outside the arbitration agreement. Samfiru says that drivers should not be bound by the clause as it is an unfair provision that effectively deprives drivers from the ability to pursue their legal rights. "Let's face it. No driver is ever going to file for arbitration in the Netherlands," he says. He adds that the arbitration clause represents a breach of the ESA, which gives individuals the right to pursue entitlements at the Ontario Labour Relations Board, the Ministry of Labour or in court. Lauren Tomasich, Esq. -- ltomasich@osler.com -- a partner with Osler Hoskin & Harcourt LLP, who was not involved with the case, says the decision is the latest in what has become a "tsunami" of case law since 2000 in favour of arbitration agreements. "It really follows along the trend that we've been seeing that arbitration clauses are to be enforced absent legislative intention to the contrary," she says. Tomasich says there are some pieces of legislation in Ontario, such as the Consumer Protection Act, that hold disputes must be resolved in the courts and that arbitration clauses cannot preclude recourse to the courts. In this case, however, she says there is no such provision in the Employment Standards Act or Class Proceedings Act. She adds that the decision shows the power of an arbitration clause. Lisa Talbot, Esq. one of the lawyers who represented Uber in the matter, declined to comment. [GN] ULTA BEAUTY: Pomerantz Law Firm Files Class Action -------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against Ulta Beauty, Inc. ("Ulta" or the "Company") (NASDAQ:ULTA) and certain of its officers. The class action, filed in United States District Court, Northern District of Illinois, and docketed under 18-cv-01577, is on behalf of a class consisting of investors who purchased or otherwise acquired Ulta securities between March 30, 2016, and February 23, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Ulta securities between March 30, 2016, and February 23, 2018, both dates inclusive, you have until May 1, 2018, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Ulta Beauty, Inc. operates a chain of beauty stores. The Company offers cosmetics, fragrance, skin and hair care products, and salon services, and serves customers throughout the United States. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company was engaged in the widespread practice of repackaging returned cosmetics and re-shelving them alongside unblemished products to sell at full retail price; and (ii) that as a result of the foregoing, Ulta's public statements were materially false and misleading at all relevant times. On February 9, 2018, at market close, media outlets reported that a consumer class action lawsuit had been filed against Ulta, alleging that the Company engaged in the "widespread and surreptitious" practice of repacking returned cosmetics and re- shelving them alongside unblemished products to sell at full price. According to the lawsuit, "dozens of other current and former Ulta employees from retail locations all over the country confirmed that substantially similar practices also occurred at the Ulta stores where they worked." On this news, Ulta's share price fell $9.07, or 4.15%, to close at $209.48 on February 12, 2018, the following trading day. Then, on February 23, 2018, CBS News published a story on its website entitled "Former Ulta Beauty employee says she felt pressured to resell used products," reporting on statements, initially made on Twitter by at least one former Ulta employee, to the effect that Ulta store managers frequently pressured the Company's employees to clean and resell used products. On this CBS News report, Ulta's share price fell $8.18 or 3.94%, to close at $198.93 on February 26, 2018. The Pomerantz Firm, with offices in New York, Chicago, Los Angeles, and Paris, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com CONTACT: Robert S. Willoughby, Esq. Pomerantz LLP Tel: 888-476-6529 Ext. 9980 Email: rswilloughby@pomlaw.com [GN] UNITED STATES: Veterans with PTSD Sue Over Biased Discharges ------------------------------------------------------------ Nikki Wentling, writing for Stars and Stripes, reports that by the age of 21, Marine Corps Cpl. Tyson Manker led infantrymen into battle in the 2003 invasion of Iraq. His actions as a Marine garnered him the Presidential Unit Citation and other awards, yet the military doesn't consider his service as honorable. Manker endured intense combat, saw civilians killed and witnessed the death of a close friend -- experiences that caused nightmares and other symptoms of post-traumatic stress disorder that only worsened when he returned home. Later that year while on leave, Manker was caught with marijuana, which he used to self-medicate. He was kicked out of the Marine Corps for misconduct with an other-than-honorable discharge. "It's a national disgrace for the federal government to say someone doesn't have honor because they didn't handle the stresses of war the way some bureaucrat back stateside thinks they should've," said Manker, now 36 and an attorney in Illinois. Having tried and failed to get an upgrade, Manker is now the lead plaintiff in a class-action lawsuit filed March 2 against the Navy in the U.S. District Court in Connecticut. The suit claims the Navy has an institutional bias against veterans with PTSD. The National Veterans Council for Legal Redress is also a plaintiff in the lawsuit. It's a Connecticut-based group comprised of veterans with other-than-honorable discharges. It's estimated that tens of thousands of servicemembers suffering from PTSD or other mental health conditions caused by their wartime experiences in Iraq and Afghanistan have been kicked out of the military with other-than-honorable discharges, known as "bad paper." The status precludes them from receiving medical care and other benefits through the Department of Veterans Affairs. Worse still, Manker said, is the stigma associated with the discharge status. "We're in a system of punishing those who serve on the frontlines," said the veteran, who has been haunted by his other- than-honorable status for years. The Navy Discharge Review Board, responsible for discharges of sailors and Marines, has granted upgrades in only 15 percent of cases since 2016 in which PTSD was a contributing factor, according to the suit. In comparison, the Army granted upgrades in 45 percent of the same kind of cases and the Air Force granted 37 percent. "My hope with this is that the discharge review board will start following the law, plain and simple," Manker said. "It's about principle. It's about restoring honor." After Manker was kicked out of the Marines, a civilian doctor diagnosed him with PTSD. He was later denied mental health care by the VA, and he continued to self-medicate. He said he struggled with suicidal thoughts. Manker turned things around in 2011, when he began seeing another civilian doctor who also diagnosed him with PTSD. His health improved, he went to college and then law school. In 2016, the Navy Discharge Review Board denied his upgrade request despite his multiple PTSD diagnoses. The lawsuit filed March 2 requests Manker's discharge be upgraded to honorable and the Navy follow Defense Department policy that requires review boards to give "liberal consideration" to veterans who seek to upgrade their discharges because of mental health conditions. A policy change was made in August in an attempt to afford more leniency to veterans, but the suit claims the Navy board continues to unlawfully deny upgrades. The lawsuit was filed by the Veterans Legal Services Clinic at Yale Law School, overseen by Michael Wishnie, which has filed other lawsuits in recent years seeking to change the military's treatment of veterans with other-than-honorable discharges. The suit has the potential to include tens of thousands of veterans. The Government Accountability Office released findings in 2017 that the Defense Department separated approximately 92,000 servicemembers for misconduct from 2011 through 2015, and 57,000 of them were diagnosed with PTSD, traumatic brain injury or other conditions that can change servicemembers' moods and behaviors and lead to disciplinary problems. Like Manker, many of them are disqualified them from receiving any VA health care or other benefits because of their discharge status. "He's not afraid to sue the DOD," Thomas Burke, a Marine Corps veteran with bad paper, said of Wishnie. "That's really what it takes." Burke isn't part of this lawsuit. He has an attorney and is working on an upgrade request, but he hasn't filed one yet. Looking at the numbers, he's not too confident he'll be approved. In Afghanistan in 2010, Burke came close to committing suicide. At the time, he was already diagnosed with PTSD. Six months after his near-suicide, he was kicked out of the Marines. Now he advocates for other veterans with bad paper. He'll graduate from Yale in May with his Masters of Divinity, intent on becoming a minister. What he really wants, he said, is to be a military chaplain. But his bad paper makes that impossible. "I know I'd be in a place to love and care for these soldiers and Marines better than anyone else could, and I'll never get that opportunity," Burke said. "Just the rhetoric, the language of 'other-than-honorable' -- it hurts. It's isolating. It's a chip on my shoulder." There are a lot of veterans out there who feel the same, Manker said, and many of them don't know what they can do. Even as an attorney, Manker described the requirements to prove an upgrade as daunting. With the lawsuit, he's hoping that process is made easier. "How do we expect them to do what I, as an attorney, failed to do with the discharge review board?" Manker said. "If I can't prove my case, who can?" [GN] UNIVERSAL FIDELITY: Faces "Gor" Suit in E.D. New York ----------------------------------------------------- A class action lawsuit has been filed against Universal Fidelity LP. The case is styled as Vadim Gor, on behalf of himself and all others similarly situated, Plaintiff v. Universal Fidelity LP, Defendant, Case No. 1:18-cv-01474 (E.D. N.Y., March 9, 2018). Universal Fidelity LP, also known as UFLP, provides billing, collection, and call center services for companies, and federal, state, and local governments.[BN] The Plaintiff is represented by: Daniel C Cohen, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West 12th Floor Brooklyn, NY 11201 Tel: (929) 575-4175 Fax: (929) 575-4195 Email: dan@cml.legal US BANK: Court Dismisses "Skibbe" FDCPA Suit -------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendants' Motion for Summary Judgment in the case captioned DWAYNE SKIBBE and DEBORAH SKIBBE, Plaintiffs, v. U.S. BANK TRUST, N.A., As Trustee for LSF9 MASTER PARTICIPATION TRUST; and LAW OFFICES OF IRA T. NEVEL, Defendants, Case No. 16 C 192 (N.D. Ill.). This case involves an improperly-filed foreclosure in Illinois state court and the homeowners' claim that this improper foreclosure constitutes a violation of the Fair Debt Collection Practice Act (FDCPA), and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICPA). The Mortgage Loan Dwayne and Deborah Skibbe (Skibbes) refinanced their home mortgage loan with Household Finance Corporation (HFC) in the amount of $271,132.11 and secured the loan with their home. Foreclosure I The Skibbes defaulted on their monthly mortgage payments again in 2010. HFC filed a foreclosure suit against the Skibbes in Kane County seeking a judgment of foreclosure and sale of the Skibbes' home (Foreclosure I). The Skibbes filed for bankruptcy on December 23, 2011. During the bankruptcy proceedings, the Skibbes filed a statement of intention to surrender the property. Plaintiffs' Chapter 13 Plan was confirmed on May 21, 2012, and HFC afterwards voluntarily dismissed Foreclosure I. Foreclosure II A little over a year later, in June 2013, Nevel, on behalf of HFC, filed a second foreclosure against the Skibbes in Kane County seeking foreclosure and sale of Skibbes' home (Foreclosure II). Unfortunately for the Defendants, HFC voluntarily dismissed Foreclosure II five months later. It seems a mystery even to the parties why Foreclosure II was voluntarily dismissed. Foreclosure III The parties continued to argue about whether Foreclosure III was proper, both in letter correspondence prior to Foreclosure III's filing and then throughout the state court litigation, including on appeal. Prior State Court Litigation The Skibbes won that argument in state court. The circuit court dismissed Foreclosure III with prejudice, holding it was barred by the single-refiling rule. The Defendants appealed, but they fared no better. Federal Court Litigation The Skibbes filed this lawsuit in federal court alleging that the Defendants' improper filing of Foreclosure III violated the Fair Debt Collection Practice Act (FDCPA), and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICPA). A brief procedural history: U.S. Bank's Motion to Dismiss was denied. Both Defendants answered the Complaint and asserted affirmative defenses; the Court struck Nevel's four affirmative defenses, but U.S. Bank's thirteen remain. U.S. Bank's counterclaims were dismissed primarily based on res judicata. The Court denied the Skibbes' Motion to Amend their Complaint after the Supreme Court's ruling in Henson v. Santander, 137 S.Ct. 1718, 1721 (2017). Violation of the FDCPA FDCPA Claim Against U.S. Bank (Count I) U.S. Bank argues that it is not a debt collector under the FDCPA, pointing to the Supreme Court's recently decided Henson v. Santander, 137 S.Ct. 1718, 1721 (2017). Henson resolved a Circuit split as to whether an entity that purchases a debt from another and then seeks to collect payment for itself is a debt collector under the FDCPA. Answering the question in the negative, Henson held that a debt purchaser may indeed collect debts for its own account without triggering the statutory definition of 'debt collector.' There are two prongs to the definition of debt collector under the FDCPA. An entity is a debt collector if (1) the principal purpose of its business is the collection of any debts, or (2) its business regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Henson addressed the second prong, and, as discussed, removed U.S. Bank from the definition of debt collector under that prong. The Skibbes contend that U.S. Bank is still a debt collector under the primary-purpose prong, which was unaffected by Henson. However, the Skibbes never alleged that the primary purpose of U.S. Bank's business was debt collection (the first prong) and their Motion to Amend the Complaint for that purpose was denied. Therefore, the Skibbes cannot move forward under the primary-purpose definition. Accordingly, U.S. Bank's Motion for Summary Judgment on the FDCPA claim is granted. FDCPA Claim Against Nevel (Count II) The only FDCPA claim remaining is against Nevel. Nevel admits that it is a debt collector under the FDCPA. However, Nevel argues that summary judgment in its favor is also appropriate because a violation of the Illinois Rules of Civil Procedure does not, on its own, give rise to a violation of the FDCPA and that is all the Skibbes have been able to prove here. In Hemmingsen, Hemmingson, 674 F.3d 814, 819-20 (8th Cir. 2012). the Eighth Circuit rejected an FDCPA claim based on alleged misrepresentations within a summary judgment motion in state court. In dismissing the FDCPA claim, the Court reasoned: "The rule [plaintiff] urges that a debt collector's fact allegations are false and misleading for purposes of Section 1692e when not adequately supported in the collection suit would be contrary to the FDCPA's apparent objective of preserving creditors' judicial remedies, an objective consistent with the principle that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. If judicial proceedings are to accurately resolve factual disputes, a lawyer must be permitted to call witnesses without fear of being sued if the witness is disbelieved and it is alleged that the lawyer knew or should have known that the witness' testimony was false. There is no need for follow-on Section1692e litigation that increases the cost of resolving bona fide debtor-creditor disputes." Certainly an FDCPA claim could arise from state court litigation, but merely violating a procedural rule (as here) is insufficient. Based on all the undisputed facts before this Court on summary judgment, the Court finds that the filing and prosecuting of the procedurally-barred Foreclosure III does not give rise to an FDCPA violation. Because state-court procedural and evidentiary missteps are not false, deceptive, or misleading representations or means that are actionable under 15 U.S.C. Section 1692e of the FDCPA, this Court grants summary judgment to Nevel. Violation of Illinois Consumer Fraud and Deceptive Business Practices Act Against U.S. Bank (Count III) The Skibbes also argue that U.S. Bank violated the ICFA by filing Foreclosure III when it was unlawful. U.S. Bank vehemently argues that merely losing a foreclosure action does not constitute a violation of ICFA. Although the Skibbes attempt to distinguish the cases cited by U.S. Bank, they do not point to any case law with analogous facts that support a claim under the ICFA. Certainly, debt collectors may violate the ICFA if they fabricate the debt or lie about their right to collect on a debt. Here, there is no dispute that the mortgage was valid and owed by the Skibbes and that the factual statements in the pleadings were accurate. The Skibbes cite Maldonado, but Maldonado held that bringing a debt collection action in a more distant venue, although improper, was not the kind of deceptive conduct that the ICFA contemplates. Here, the state court found Foreclosure III was improper, but that alone is insufficient to avoid the litigation privilege. Accordingly, U.S. Bank and Nevel's Motions for Summary Judgment are granted. The Skibbes' Motion for Partial Summary Judgment is denied. A full-text copy of the District Court's February 15, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yd7m8gc9 from Leagle.com. Dwayne Skibbe & Deborah Skibbe, Plaintiffs, represented by Ross Michael Zambon, Zambon Law, Ltd. Po Box 3389, Auburn, AL 36831. (of counsel Sulaiman Law Group, Ltd.). U.S. Bank Trust, N.A., As Trustee for LSF9 Master Participation Trust, Defendant, represented by Kathleen A. Stetsko -- Kstetsko@perkinscoie.com -- Perkins Coie LLP. Law Offices of Ira T. Nevel, LLC., Defendant, represented by Gregory C. Elsnic, Law Offices of Ira T. Nevel, Ira T. Nevel, Attorney at Law, 175 North Franklin Street, Suite 201, Chicago, IL 60606-1847, James V. Noonan -- jnoonan@noonanandlieberman.com -- Noonan & Lieberman, Robert Edward Haney -- rhaney@noonanandlieberman.com -- Noonan & Lieberman, Ltd. & Solomon Maman -- smaman@noonanandlieberman.com -- Noonan & Lieberman, Ltd. U.S. Bank Trust, N.A., As Trustee for LSF9 Master Participation Trust, Counter Claimant, represented by Kathleen A. Stetsko, Perkins Coie LLP. Deborah Skibbe & Dwayne Skibbe, Counter Defendants, represented by Nick Heath Wooten, Nick Wooten, LLC, & Ross Michael Zambon, Zambon Law, Ltd., 900 Jorie Boulevard, Suite 150, Oak Brook, IL, 60523 (of counsel Sulaiman Law Group, Ltd.). VALENTINE & KEBARTAS: Faces "Beyer" Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Valentine & Kebartas, Inc. The case is styled as Steven Beyer, individually and on behalf of all others similarly situated, Plaintiff v. Valentine & Kebartas, Inc., Defendant, Case No. 2:18-cv-01549 (E.D. N.Y., March 13, 2018). Valentine & Kebartas, Inc. provides debt collection and accounts receivable management services.[BN] The Plaintiff appears PRO SE. WARREN COUNTY, OH: Adoptive Families File Suit in S.D. Ohio ----------------------------------------------------------- A class action lawsuit has been filed against Warren County, Ohio/Warren County Board Of Commissioners. The case is styled as Adoptive Family #1 and Their Daughter A. and Adoptive Family #2 and Their Children B. and C., individually and on behalf of class of similarly situated children and parents, Plaintiffs v. Warren County, Ohio/Warren County Board Of Commissioners, Defendant, Case No. 1:18-cv-00179-SJD (S.D. Ohio., March 14, 2018). Warren County is a county located in the U.S. state of Ohio. As of the 2010 census, the population was 212,693. Its county seat is Lebanon.[BN] The Plaintiff is represented by: Alphonse Adam Gerhardstein, Esq. Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, OH 45202 Tel: (513) 621-9100 Fax: (513) 345-5543 Email: agerhardstein@gbfirm.com WELLS FARGO: April 16 Lead Plaintiff Bid Deadline ------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors that they have until April 16, 2018 to file lead plaintiff applications in a securities class action lawsuit against Wells Fargo & Company (NYSE:WFC), if they purchased the Company's securities between January 13, 2017, and July 27, 2017, inclusive (the "Class Period"). This action is pending in the United States District Court for the Southern District of New York. Get Help Wells Fargo investors should visit us at https://www.claimsfiler.com/cases/view-wells-fargo-amp-company- securities-litigation-1 or call to speak to our claim center toll-free at (844) 367-9658. About the Lawsuit Wells Fargo and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On July 27, 2017, The New York Times reported that, based on an internal Wells Fargo report, "[m]ore than 800,000 people who took out car loans from Wells Fargo were charged for auto insurance they did not need," and that "[t]he expense of the unneeded insurance. . . . pushed roughly 274,000 Wells Fargo customers into delinquency and resulted in almost 25,000 wrongful vehicle repossessions," and it estimated "that the bank owed $73 million to wronged customers." On this news, the price of Wells Fargo's shares plummeted. About ClaimsFiler ClaimsFiler has a single mission: to serve as the information source to help retail investors recover their share of billions of dollars from securities class action settlements. ClaimsFiler's team of experts monitor the securities class action landscape and cull information from a variety of sources to ensure comprehensive coverage across a broad range of financial instruments. [GN] Asbestos Litigation ASBESTOS UPDATE: Crane Co. Had 32,234 Pending Claims at Dec. 31 --------------------------------------------------------------- Crane Co. has 32,234 pending asbestos-related claims as of December 31, 2017, according to the Company's Form 8-K filed with the U.S. Securities and Exchange Commission on January 30, 2018. Crane Co. states, "As of December 31, 2017, the Company was a defendant in cases filed in numerous state and federal courts alleging injury or death as a result of exposure to asbestos. "Of the 32,234 pending claims as of December 31, 2017, approximately 18,200 claims were pending in New York, approximately 600 claims were pending in Texas, approximately 1,500 claims were pending in Mississippi, and approximately 200 claims were pending in Ohio, all jurisdictions in which legislation or judicial orders restrict the types of claims that can proceed to trial on the merits. "The Company has tried several cases resulting in defense verdicts by the jury or directed verdicts for the defense by the court. The Company further has pursued appeals of certain adverse jury verdicts that have resulted in reversals in favor of the defense." A full-text copy of the Form 8-K is available at https://is.gd/HAJlIU ASBESTOS UPDATE: "Nelson" Trial v. Crane Co. Set for April 2018 --------------------------------------------------------------- Crane Co. disclosed in its Form 8-K filed with the U.S. Securities and Exchange Commission on January 30, 2018, that a new trial is set for April 2018 regarding the lawsuit over James Nelson's asbestos claim. The Company states, "On March 23, 2010, a Philadelphia, Pennsylvania, state court jury found the Company responsible for a 1/11th share of a US$14.5 million verdict in the James Nelson claim. On February 23, 2011, the court entered judgment on the verdict in the amount of US$4.0 million, jointly, against the Company and two other defendants, with additional interest in the amount of US$0.01 million being assessed against the Company, only. All defendants, including the Company, and the plaintiffs took timely appeals of certain aspects of those judgments. On September 5, 2013, a panel of the Pennsylvania Superior Court, in a 2-1 decision, vacated the Nelson verdict against all defendants, reversing and remanding for a new trial. Plaintiffs requested a rehearing in the Superior Court and by order dated November 18, 2013, the Superior Court vacated the panel opinion, and granted en banc reargument. On December 23, 2014, the Superior Court issued a second opinion reversing the jury verdict. Plaintiffs sought leave to appeal to the Pennsylvania Supreme Court, which defendants have opposed. By order dated June 21, 2017, the Supreme Court of Pennsylvania denied plaintiffs' petition for leave to appeal. The case is set for a new trial in April 2018." A full-text copy of the Form 8-K is available at https://is.gd/HAJlIU ASBESTOS UPDATE: "DeLisle" Suit v. Crane Co. Ongoing at Jan. 30 --------------------------------------------------------------- Oral argument is set for March 6, 2018 in the asbestos suit filed by Richard DeLisle against Crane Co., according to the Company's Form 8-K filed with the U.S. Securities and Exchange Commission on January 30, 2018. The Company states, "On September 17, 2013, a Fort Lauderdale, Florida state court jury in the Richard DeLisle claim found the Company responsible for 16 percent of an US$8 million verdict. The trial court denied all parties' post-trial motions, and entered judgment against the Company in the amount of US$1.3 million. The Company has appealed. Oral argument on the appeal took place on February 16, 2016. On September 14, 2016 a panel of the Florida Court of Appeals reversed and entered judgment in favor of the Company. Plaintiff filed with the Court of Appeals a motion for rehearing and/or certification of an appeal to the Florida Supreme Court, which the Court denied on November 9, 2016. Plaintiffs subsequently requested review by the Supreme Court of Florida. Plaintiffs' motion was granted on July 11, 2017. The briefing in this matter has concluded, and oral argument is set for March 6, 2018." A full-text copy of the Form 8-K is available at https://is.gd/HAJlIU ASBESTOS UPDATE: "Poage" Suit v. Crane Co. Ongoing at Jan. 30 ------------------------------------------------------------- Crane Co. disclosed in its Form 8-K filed with the U.S. Securities and Exchange Commission on January 30, 2018, that it is seeking further review of a ruling in an asbestos suit filed by James Poage. The Company states, "On July 2, 2015, a St. Louis, Missouri state court jury in the James Poage claim entered a US$1.5 million verdict for compensatory damages against the Company. The jury also awarded exemplary damages against the Company in the amount of US$10 million. The Company filed a motion seeking to reduce the verdict to account for the verdict set-offs. That motion was denied, and judgment was entered against the Company in the amount of US$10.8 million. The Company initiated an appeal. Oral argument was held on December 13, 2016. In an opinion dated May 2, 2017, a Missouri Court of Appeals panel affirmed the judgment in all respects. The Court of Appeals denied the Company's motion to transfer the case to the Supreme Court of Missouri. The Company sought leave to appeal before the Supreme Court of Missouri, which denied that request. The Company is seeking further review of that ruling by the Supreme Court of the United States." A full-text copy of the Form 8-K is available at https://is.gd/HAJlIU ASBESTOS UPDATE: Crane Co. Settles "Rabovsky" Lawsuit in 4Q2017 --------------------------------------------------------------- Crane Co. disclosed in its Form 8-K filed with the U.S. Securities and Exchange Commission on January 30, 2018, that the settlement related to the asbestos claim of Valent Rabovsky was reflected in the fourth quarter 2017 indemnity amount. The Company states, "On February 9, 2016, a Philadelphia, Pennsylvania, federal court jury found the Company responsible for a 30 percent share of a US$1.085 million verdict in the Valent Rabovsky claim. The court ordered briefing on the amount of the judgment. The Company argued, among other things, that settlement offsets reduce the award to plaintiff under Pennsylvania law. A further hearing was held April 26, 2016, after which the court denied the Company's request and entered judgment in the amount of US$0.4 million. The Company filed post-trial motions, which were denied in two decisions issued on August 26, 2016 and September 28, 2016. The Company is pursuing an appeal to the Third Circuit Court of Appeals, which was argued on June 12, 2017. On September 27, 2017, the Court entered an order asking the Supreme Court of Pennsylvania to decide one of the issues raised in the Company's appeal. The Supreme Court of Pennsylvania accepted the request, and the Company settled the matter. The settlement was reflected in the fourth quarter 2017 indemnity amount." A full-text copy of the Form 8-K is available at https://is.gd/HAJlIU ASBESTOS UPDATE: "Coulbourn" Suit v Crane Co Ongoing at Jan. 30 --------------------------------------------------------------- Oral argument related to the asbestos claim of George Coulbourn against Crane Co. is set for March 15, 2018, according to the Company's Form 8-K filed with the U.S. Securities and Exchange Commission on January 30, 2018. The Company states, "On April 22, 2016, a Phoenix, Arizona federal court jury found the Company responsible for a 20 percent share of a US$9 million verdict in the George Coulbourn claim, and further awarded exemplary damages against the Company in the amount of US$5 million. The jury also awarded compensatory and exemplary damages against the other defendant present at trial. The court entered judgment against the Company in the amount of US$6.8 million. The Company filed post-trial motions, which were denied on September 20, 2016. The Company is pursuing an appeal to the Ninth Circuit Court of Appeals. Briefing is complete, and oral argument is set for March 15, 2018." A full-text copy of the Form 8-K is available at https://is.gd/HAJlIU ASBESTOS UPDATE: Ashland Global Had 54,000 Open Claims at Dec31 --------------------------------------------------------------- Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2017, that there were 54,000 open claims filed against the Company at December 31, 2017. The Company states, "The claims alleging personal injury caused by exposure to asbestos asserted against Ashland result primarily from indemnification obligations undertaken in 1990 in connection with the sale of Riley Stoker Corporation, a former subsidiary. The amount and timing of settlements and number of open claims can fluctuate from period to period. "From the range of estimates, Ashland records the amount it believes to be the best estimate of future payments for litigation defense and claim settlement costs, which generally approximates the mid-point of the estimated range of exposure from model results. Ashland reviews this estimate and related assumptions quarterly and annually updates the results of a non- inflated, non-discounted approximate 50-year model developed with the assistance of HR&A. "During the most recent annual update of this estimate completed during the June 2017 quarter, it was determined that the liability for Ashland asbestos-related claims should be increased by US$36 million. Total reserves for asbestos claims were US$409 million at December 31, 2017 compared to US$419 million at September 30, 2017. "Ashland has insurance coverage for certain litigation defense and claim settlement costs incurred in connection with its asbestos claims, and coverage-in-place agreements exist with the insurance companies that provide substantially all of the coverage that will be accessed. "For the Ashland asbestos-related obligations, Ashland has estimated the value of probable insurance recoveries associated with its asbestos reserve based on management's interpretations and estimates surrounding the available or applicable insurance coverage, including an assumption that all solvent insurance carriers remain solvent. Substantially all of the estimated receivables from insurance companies are expected to be due from domestic insurers, all of which are solvent. "At December 31, 2017, Ashland's receivable for recoveries of litigation defense and claim settlement costs from insurers amounted to US$151 million (excluding the Hercules receivable for asbestos claims) compared to US$155 million at September 30, 2017. During the June 2017 quarter, the annual update of the model used for purposes of valuing the asbestos reserve and its impact on valuation of future recoveries from insurers was completed. This model update resulted in a US$15 million increase in the receivable for probable insurance recoveries." A full-text copy of the Form 10-Q is available at https://is.gd/Tv2ukt ASBESTOS UPDATE: Hercules LLC Has 12,000 PI Claims at Dec. 31 ------------------------------------------------------------- Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2017, that wholly-owned subsidiary Hercules LLC had 12,000 open claims filed against it related to asbestos matters at December 31, 2017. The Company states, "Hercules has liabilities from claims alleging personal injury caused by exposure to asbestos. Such claims typically arise from alleged exposure to asbestos fibers from resin encapsulated pipe and tank products which were sold by one of Hercules' former subsidiaries to a limited industrial market. The amount and timing of settlements and number of open claims can fluctuate from period to period. "From the range of estimates, Ashland records the amount it believes to be the best estimate of future payments for litigation defense and claim settlement costs, which generally approximates the mid-point of the estimated range of exposure from model results. Ashland reviews this estimate and related assumptions quarterly and annually updates the results of a non- inflated, non-discounted approximate 50-year model developed with the assistance of HR&A. As a result of the most recent annual update of this estimate, completed during the June 2017 quarter, it was determined that the liability for Hercules asbestos- related claims should be increased by US$16 million. Total reserves for asbestos claims were US$315 million at December 31, 2017 compared to US$323 million at September 30, 2017. "For the Hercules asbestos-related obligations, certain reimbursement obligations pursuant to coverage-in-place agreements with insurance carriers exist. As a result, any increases in the asbestos reserve have been partially offset by probable insurance recoveries. Ashland has estimated the value of probable insurance recoveries associated with its asbestos reserve based on management's interpretations and estimates surrounding the available or applicable insurance coverage, including an assumption that all solvent insurance carriers remain solvent. The estimated receivable consists exclusively of solvent domestic insurers. "As of December 31, 2017 and September 30, 2017, the receivables from insurers amounted to US$68 million. During the June 2017 quarter, the annual update of the model used for purposes of valuing the asbestos reserve and its impact on valuation of future recoveries from insurers was completed. This model update resulted in a US$5 million increase in the receivable for probable insurance recoveries." A full-text copy of the Form 10-Q is available at https://is.gd/Tv2ukt ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at Dec31 --------------------------------------------------------------- Rockwell Automation, Inc. still defends itself against personal injury lawsuits filed by people claiming exposure to asbestos in certain product components, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2017. The Company states, "We (including our subsidiaries) have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of our products many years ago. Currently there are a few thousand claimants in lawsuits that name us as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and we are indemnified for most of the costs. However, we have agreed to defend and indemnify asbestos claims associated with products manufactured or sold by our former Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by us, which occurred on January 31, 2007. "We are also responsible for half of the costs and liabilities associated with asbestos cases against the former Rockwell International Corporation's divested measurement and flow control business. But in all cases, for those claimants who do show that they worked with our products or products of divested businesses for which we are responsible, we nevertheless believe we have meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition on the part of many claimants. We defend those cases vigorously. Historically, we have been dismissed from the vast majority of these claims with no payment to claimants. "We have maintained insurance coverage that we believe covers indemnity and defense costs, over and above self-insured retentions, for claims arising from our former Allen-Bradley subsidiary. Our insurance carrier entered into a cost share agreement with us to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. We believe that this arrangement will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. "We also have rights to historic insurance policies that provide indemnity and defense costs, over and above self-insured retentions, for claims arising out of certain asbestos liabilities relating to the divested measurement and flow control business. We initiated litigation against several insurers to pursue coverage for these claims, subject to each carrier's policy limits, and the case is now pending in Los Angeles County Superior Court. In September 2016, we entered into settlement agreements with certain insurance company defendants, and we continue to pursue our claims against the remaining defendants. We believe these settlement agreements will continue to provide partial coverage for these asbestos claims throughout the remaining life of asbestos liability. "The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on our experience defending asbestos claims, we do not believe these lawsuits will have a material effect on our business, financial condition or results of operations. "We have, from time to time, divested certain of our businesses. In connection with these divestitures, certain lawsuits, claims and proceedings may be instituted or asserted against us related to the period that we owned the businesses, either because we agreed to retain certain liabilities related to these periods or because such liabilities fall upon us by operation of law. In some instances, the divested business has assumed the liabilities; however, it is possible that we might be responsible for satisfying those liabilities if the divested business is unable to do so. "In connection with the spin-offs of our former automotive business, semiconductor systems business and avionics and communications business, the spun-off companies have agreed to indemnify us for substantially all contingent liabilities related to the respective businesses, including environmental and intellectual property matters. "In conjunction with the sale of our Dodge mechanical and Reliance Electric motors and motor repair services businesses, we agreed to indemnify Baldor Electric Company for costs and damages related to certain legal, legacy environmental and asbestos matters of these businesses arising before January 31, 2007, for which the maximum exposure would be capped at the amount received for the sale." A full-text copy of the Form 10-Q is available at https://is.gd/1hyNje ASBESTOS UPDATE: PI Lawsuits v. Global Power Unit Still Pending --------------------------------------------------------------- A Global Power Equipment Group Inc. subsidiary continues to face asbestos personal injury lawsuits, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2017. The Company states, "A former operating unit of Global Power has been named as a defendant in a limited number of asbestos personal injury lawsuits. Neither the Company nor its predecessors ever mined, manufactured, produced or distributed asbestos fiber, the material that allegedly caused the injury underlying these actions. The bankruptcy court's discharge order issued upon the Company's emergence from bankruptcy in January 2008 extinguished the claims made by all plaintiffs who had filed asbestos claims against it before that time. The Company believes the bankruptcy court's discharge order should serve as a bar against any later claim filed against it, including any of its subsidiaries, based on alleged injury from asbestos at any time before emergence from bankruptcy. In any event, in all of the asbestos cases finalized post-bankruptcy, the Company has been successful in having such cases dismissed without liability. "Moreover, during 2012, the Company secured insurance coverage that will help to reimburse the defense costs and potential indemnity obligations of its former operating unit relating to these claims. The Company intends to vigorously defend all currently active actions, all without liability, and it does not anticipate that any of these actions will have a material adverse effect on its financial position, results of operations or liquidity. However, the outcomes of any legal action cannot be predicted and, therefore, there can be no assurance that this will be the case." A full-text copy of the Form 10-Q is available at https://is.gd/U4Wjxp ASBESTOS UPDATE: Jail Officials Win Summary Ruling in "Mitchell" ---------------------------------------------------------------- Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin grants Defendants Dane County Jail Officials' motion for summary judgment since the evidence of record establishes neither that Plaintiff Roy Mitchell was exposed to dangerous levels or mold or asbestos, nor that the defendants were deliberately indifferent to those conditions. Between 1998 and September of 2016, Mitchell has been incarcerated at the Dane County Jail on various occasions. Plaintiff Roy Mitchell claims that various Dane County Jail Officials subjected her to conditions of confinement that violated her Fourteenth Amendment due process rights. In particular, she is proceeding on claims that she was housed in a section of the Dane County Jail that exposed her various hazards, including sewage flies, asbestos, lead, and black mold. The Defendants include Dane County Sheriff Dave Mahoney, Dane County Jail Captain Anhalt, Sergeant Olsen, Sergeant Skerpenski, Deputy Merrill, and Dane County Administrator Joe Parisi. Mitchell claims that each of these defendants knew about the conditions in the jail and failed to correct them. As to Parisi specifically, Mitchell claims that he failed to pass a budget that would provide funding to improve conditions at the Dane County Jail. Mitchell has been seen by health care providers since being diagnosed with atypical pneumonia in September of 2016. Since that time, Mitchell has since been seen by her health care providers multiple times for complaints of problems breathing, nasal congestion and problems walking for long periods of time, but she has not been diagnosed with pneumonia since 2016. Although a regular smoker of cigarettes in the past, Mitchell's records further indicate that she reported to her health care providers that she believes these symptoms to be related to her exposure to asbestos at the Dane County Jail. At the time of her deposition, August 29, 2017, Mitchell stated that she was suffering from bronchitis, but the court has been unable to locate a medical record confirming that diagnosis. Mitchell has a February 2018 appointment scheduled a UW Health pulmonologist for suspected asbestos exposure, but the court has been unable to identify any instance in her medical records in which a health care provider confirmed actual exposure to asbestos. Mitchell claims that during her time on the 7th floor of the City-County Building of the Dane County Jail, she (along with other inmates and staff) had been exposed to four types of hazards: asbestos, lead paint, black mold and "sewage flies" that appear around the drainage holes in the Jail. Assuming for the moment that Mitchell was exposed to a dangerous level of asbestos at some point in her life, the question remains whether plaintiff has submitted proof of the presence of, and exposure to, asbestos during the relevant time period that she was an inmate of the Jail's 7th floor. Beyond personally averring that she has been exposed to all of these conditions, Mitchell submitted sixty pages of "sworn declarations" of other inmates. These sworn statements similarly refer to allegedly unsanitary conditions in the jail, including the presence of black mold and bugs, although none put Mitchell near any such hazards; as opposed to being housed in the jail generally. Nor do they provide additional, specific information about the conditions to which Mitchell was exposed. As such, even setting aside the question of the admissibility of these statements, they do not provide much corroborating evidence material to proving the defendants acted with deliberate indifference to Mitchell's exposure to constitutionally infirm conditions of confinement. Accordingly, the Court has not considered those statements material for purposes of evaluating Mitchell's constitutional claims in this lawsuit. Mitchell has also submitted a June 2014 "Needs Assessment and Master Plan" report for the Dane County Jail and Sheriff's Office created by the engineering firm of Mead & Hunt, and directed to, among others, Administrator Parisi, Sheriff Mahoney and Jail Captain Anhalt. Mitchell argues that this report establishes that the inmates were held in "dire psychological and unsafe dehumanizing environmental conditional hardships." At summary judgment, Mitchell submitted what appear to be portions of that final report, which do not include such an unqualified condemnation, but does contain an executive summary stating that "the age of the City County [Building], outdated technology, and poor physical conditions of the buildings cause many risks and hazards." The report further states that among those risks are the "existence of hazardous materials (asbestos and lead paint)" in the portions of the Jail located in the City County Building. Finally, the report states that "stakeholders" should use caution in "considering long term solutions" for the City County Building due to the immense costs associated with remodeling and updating the City-County Building to meet those concerns. While some of the statements from the report would appear to corroborate some of Mitchell's own claimed experiences at the Dane County Jail, like the affidavits of other inmates, the Court finds that they are not specific enough, alone, to support a finding of deliberate indifference. Scott Teuscher, Dane County's Safety Coordinator, is a Certified Asbestos Inspector and holds a current license to do inspections in the State of Wisconsin. In this role, Tuescher is responsible for inspecting and sampling materials for the presence of asbestos-laden materials before any Dane County renovation and demolition projects can begin, one of the requirements in the County's written policies on asbestos control. It is undisputed that on August 29 and 30 of 2017, Teuscher toured and inspected each cell and holding area within the Dane County Jail where Mitchell has been housed in since 1998, including cells in the City-County and Public Safety Buildings. Teuscher's visual inspection did not lead him to believe that any of these cells had asbestos-containing materials. Even though other areas in the buildings needed testing, Teuscher did not deem testing necessary in Mitchell's cells because they were in good condition and not subject to renovation or demolition. Still, Mitchell maintains that she was exposed to asbestos, citing only her own, self-serving observations about exposure, past and current issues with her lungs, and the 2014 report recognizing the existence of asbestos in portions of the Jail, a place she stayed off and on between 1998 and 2016. At the same time, Mitchell admits that she is not an expert on asbestos, she does not know what asbestos is or looks like; she is unable to say specifically where in the Dane County Jail asbestos was located; and she cannot identify any laws or regulations that the Dane County Jail violated with respect to asbestos. Mitchell also submitted no evidence that she had been exposed to a dangerous level of asbestos as the Dane County Jail. Further, Mitchell has never been diagnosed with mesothelioma, asbestosis, or any other asbestos-related illness. While she has an upcoming appointment related to her complaints of asbestos exposure, she has not been told to date by any medical professional that her health was endangered or compromised due to asbestos exposure. As to her claims about asbestos, plaintiff's evidence -- her own statements and the 2014 report -- permits the trier of fact to conclude no more than that the portions of the City-County Building in which Mitchell was housed at times between 1998 and 2014 contained asbestos. However, the mere presence of asbestos does not constitute cruel and unusual punishment because, while unfortunate, "the fact remains that asbestos abounds in many public buildings," and "exposure to moderate levels of asbestos is a common fact of contemporary life." Mitchell concedes that she cannot identify asbestos. More importantly, she has submitted no evidence supporting a finding that the asbestos within the City-County Building was exposed to the air, nor that she otherwise was exposed to friable asbestos when housed there. While Mitchell's medical records show that she reported asbestos exposure to her treating professionals after she learned about the 2014 report, she submitted no evidence that actually confirms (or even suggests) exposure. In fact, there is no evidence of measurements about the air quality, nor instances where she was actually present for major construction or renovation projects that could have opened up the possibility of exposing her to asbestos-laden materials, which was the concern raised by the 2014 report. Furthermore, Mitchell does not dispute defendants' evidence that none of the cells in which plaintiff was housed posed a risk of exposure to asbestos. Even assuming that plaintiff does in fact suffer from asbestos-related illness, therefore, she has failed to submit evidence of a "causal connection" between her potential injury and exposure at the Dane County Jail. Accordingly, the record before this court on summary judgment does not support a finding that the presence of asbestos in the portion of the City- County Building in which Mitchell was housed for sporadic periods of time between 1998 and 2016 created conditions of confinement that violated her constitutional rights. With respect to the asbestos and lead paint only, it may be reasonable to infer from the 2014 report that Parisi, Mahoney and Anhalt were on notice that the City-County Building generally contained both of these potential hazards. However, this piece of evidence advances Mitchell's theory only minimally, since knowledge of their presence alone does not establish knowledge that the conditions were sufficiently serious to constitute cruel and unusual punishment. Furthermore, just as there is no evidence that Mitchell was actually exposed to dangerous levels of either asbestos or lead paint, there likewise is no evidence that any of the defendants actually knew about exposure to any of the four hazards and failed to respond to them in an appropriate manner. To the contrary, Mitchell has acknowledged that the Dane County Jail had policies and procedures in place to address the presence of asbestos, flies and mold, and nothing in the record suggests that defendants have failed to address or remediate dangerous exposure to lead paint. Specifically, Mitchell does not dispute that the Dane County Jail employs exterminators on a seasonal and regular basis to eliminate the flies. Similarly, as to the mold, the jail not only has inmate workers clean the floors on a weekly visit and has staff also clean the floors, Dane County Jail policies permit the jail to contract with third parties for more thorough cleaning projects, and Mitchell admits, based on her own observations, the cleaning efforts have been successful. Based on this record, a reasonable fact finder simply could not conclude that any of the named defendants' acted with deliberate indifference to the alleged conditions. Even assuming that Mitchell submitted evidence supporting a finding she was not only exposed to conditions of confinement that exceeded the contemporary bounds of decency and that the defendants were deliberately indifferent to those conditions, she has submitted no evidence that she was injured because of that exposure. A plaintiff must show both injury and a causal connection between that injury and the deprivation of a constitutionally protected right. Mitchell's medical records indicate that she is scheduled to meet with a pulmonologist regarding multiple respiratory symptoms (coughing, wheezing, trouble walking long distances), which she attributes to her alleged asbestos exposure, the Court finds no reason to wait for the results of plaintiff's upcoming examination. While Mitchell admitted during her deposition that she also previously smoked cigarettes, if, indeed, she does receive a diagnosis of a condition typically caused by asbestos (or black or toxic mold exposure) such as asbestosis, mesothelioma, lung cancer or black mold poisoning, the Court holds that a reasonable fact finder may conclude that the injury was caused by one of the challenged conditions. The case is Roy Mitchell, Plaintiff, v. Dane County Sheriff Department, et al., Defendants, Case No. 16-cv-352-wmc, (W.D. Wis.). A full-text copy of the Opinion & Order dated February 13, 2018, is available at https://tinyurl.com/y87ssyjs from Leagle.com. Roy Mitchell, Plaintiff, pro se. Sheriff Dave Mahoney, Mrs. Anhalt, Joe Parisi, Sergeant Olsen, Sergeant Skerpenski & Deputy Merrill, Defendants, represented by Matteo Reginato -- mreginato@ammr.net -- Arenz, Molter, Macy, Riffle & Larson, S.C., Remzy Bitar -- rbitar@ammr.net -- Arenz, Molter, Macy, Riffle & Larson, S.C. & Samantha R. Schmid, Arenz, Molter, Macy, Riffle & Larson, S.C. ASBESTOS UPDATE: Illinois Central Entitled to Setoff in "Oakes" --------------------------------------------------------------- The Supreme Court of Mississippi reverses the Court of Appeals' judgment affirming the Warren County Circuit Court's denial of Illinois Central Railroad's request for a setoff of a jury verdict awarded to Bennie Oakes through his representative Clara Hagan. The Court holds that the Court of Appeals misconstrued the primary case it relied upon and ignored other federal precedent. The Court maintains that the issue presented in the appealed case, Illinois Central Railroad Company, v. Bennie Oakes, Deceased, by and through Clara Hagan, his Representative, No. 2015-CT-00644-SCT. (S.Ct. Miss.), is whether the Defendant is entitled to a setoff for money already paid to the Plaintiff for the same injuries alleged to have been caused by the Defendant. As described by Illinois Central, who as appellant framed the issues for appeal, "This case is about whether, once those damages are assessed by a jury, a railroad company under the [Federal Employers' Liability Act] is entitled to a credit or reduction of that verdict for sums that have already been paid by others to the Plaintiff for the same injuries and damages." In Illinois Central's answer, it raised an affirmative defense that "it is entitled to apportionment or set off liability and/or damages for any negligence of or damages caused by third parties, including but not limited to other employers and manufacturers, distributors, and sellers of products to which plaintiff claims the decedent was exposed as alleged in the complaint." However, Illinois Central later clarified its position that it was not attempting to have negligence apportioned, and the circuit court echoed the clarification by stating that Illinois Central had not "tried to use a third, an empty chair for any other defendants." On February 13, 2009, Clara Hagan filed a complaint, as the representative of Bennie Oakes, against Illinois Central in the Warren County Circuit Court. The complaint, brought under the provisions of the Federal Employers Liability Act, sought to recover damages for "personal injuries and/or death sustained by Bennie Oakes, deceased, while [Oakes] was employed by [Illinois Central] and while engaging in interstate commerce." Oakes had been an employee of Illinois Central from 1952 through 1994 and was exposed to asbestos on a daily basis. The complaint contained allegations that: "As a result of his exposure to asbestos containing products and materials, [Oakes] has developed asbestosis, lung cancer, shortness of breath, reduced lung function, cough, chest congestion, and is at increased risk to develop one or more of the following diseases: mesothelioma, asbestos related pleural disease, mixed dust pneumoconiosis, sleep interruption, aggravation of pre-existing and co-existing disease, throat cancer, laryngeal cancer, colon, stomach, and other asbestos related cancer." According to the complaint, due to Illinois Central's negligence in exposing Oakes to asbestos daily, Oakes incurred injury and damages. The first trial occurred in 2011 but resulted in a hung jury. The jury in the second trial found in favor of Hagan and awarded $250,000 in damages. However, the jury also apportioned fault, with Illinois Central being twenty percent at fault and Oakes being eighty percent at fault. Therefore, the circuit court adjusted the damages accordingly, and the total award was $50,000. Illinois Central filed a Motion for Entry of Judgment and Setoff to have the damages reduced further based on its discovery that Hagan had received more than $65,000 in payments from asbestos trusts for Oakes' injuries and death. The circuit court denied Illinois Central's motion and entered the judgment of $50,000 plus eight percent interest. Illinois Central appealed, and the case was assigned to the Court of Appeals. Writing for the Court of Appeals, Judge Greenlee framed the issue on appeal as "whether setoff against a jury verdict is required in [Federal Employers' Liability Act] cases where the claimant has already settled with separate tortfeasors." Illinois Cent. R.R. Co. v. Oakes, 2016 WL 7647571, (Miss. Ct. App. Dec. 13, 2016). The Court of Appeals held: "Because an injured railroad employee can recover all his damages from his railroad employer if the employer's negligence caused any part of the employee's injury, and because the collateral source rule does not allow for a defendant to avoid payment of damages based on compensation to the plaintiff from a third party that was not a party to the action, we find that an allowance of setoff for recoveries from nonparty tortfeasors is inconsistent with the [Federal Employers' Liability Act]'s intent, the statutory language, and Mississippi and U.S. Supreme Court precedent." Nothing in the [Federal Employers' Liability Act] entitles the plaintiff to more than one recovery for his damages. This case involves an injury caused by exposure to asbestos; the Plaintiff has already been compensated for this same injury by the manufacturers of the asbestos; and there is no reason that her recovery against Illinois Central should not be reduced to account for those payments. In its petition, Illinois Central argued that the Court of Appeals decision is in "irreconcilable conflict with previous opinions... and disregards the controlling federal law on the issue." Additionally, Illinois Central submitted that the primary case of Norfolk & Western Railway Company v. Ayers, 538 U.S. 135 (2003), relied upon by the Court of Appeals' decision, was misconstrued and misapplied to the present case. Illinois Central also argued that the Court of Appeals' decision erred in holding that the collateral source rule applied to asbestos trusts set up by the now-bankrupt asbestos manufacturers as a condition of their bankruptcy proceedings. Finally, Illinois Central contended that the Court of Appeals' decision effectively "obliterates" the one-recovery rule by allowing Hagan to collect from the asbestos trust for the asbestos-related injury and also from Illinois Central for the same asbestos-related injury. As the Court of Appeals noted, the issue in the present case is whether Illinois Central is entitled to a setoff of the jury verdict based on Oakes' or Hagan's receipt of settlement funds from an asbestos bankruptcy trust. The Supreme Court holds that it is, and the Court of Appeals and the circuit court erred in concluding otherwise. The Court of Appeals' majority opinion based its holding primarily on the United States Supreme Court case of Ayers. The majority states that the Supreme Court in Ayers rejected "the suggestion that the [Federal Employers' Liability Act] would permit damages to be apportioned among joint tortfeasors according to the degree of fault attributable to each." (citing Ayers, 538 U.S. at 161-65). Further, "the Ayers Court found significant that Congress, while expressly directing in the [Federal Employers' Liability Act] the apportionment of responsibility between employers and employee based on comparative fault, did not provide for such apportionment among potentially liable tortfeasors." According to Ayers: "After reduction for three claimants' comparative negligence from smoking and for settlements with non- [Federal Employers' Liability Act] entities, the final judgments amounted to approximately $4.9 million." The issue in Ayers was whether fault could be apportioned among joint tortfeasors, and Ayers stands for the premise that a plaintiff may recover its full amount of damages from one defendant and places the burden on the defendant to seek contribution from other nonparty tortfeasors later. In the present case, the Supreme Court points out that had Illinois Central asked that the jury apportion fault to Illinois Central, Oakes, and the nonparty asbestos trusts, standing in the place of the now-bankrupt asbestos manufacturers, such request would have run afoul of Ayers. However, that is not what happened, and the jury apportioned fault between Illinois Central and Oakes, as permitted by the Federal Employers' Liability Act and Ayers. Simply, Ayers does not apply to the facts and issue of the present case. The trial court has never apportioned fault to the asbestos trusts and, had it done so, it would have erred pursuant to Ayers. The settling asbestos trusts never have been held to be liable for the plaintiffs' injuries. Even though Ayers does not apply to the issue presented in the case sub judice because the issue there was whether, under the Federal Employers' Liability Act, fault could be attributed to nonrailroad joint tortfeasors and the issue is whether, after a verdict in which fault is not attributed to any other tortfeasors the defendant is entitled to a setoff equal to money already paid to the plaintiff for the same injuries, the principal purpose of the Federal Employers' Liability Act announced therein reinforces our holding. As argued by Oakes, "[The Federal Employers' Liability Act]'s express terms, reinforced by consistent judicial applications of the Act, allow a worker to recover his entire damages from a railroad whose negligence jointly caused an injury . . ., thus placing on the railroad the burden of seeking contribution from other tortfeasors." After adjustment for fault apportioned to Oakes, the jury's verdict awarded him $50,000 in damages. The asbestos trusts have paid him more than $50,000. Accordingly, he has recovered his entire damages from the asbestos trusts, and with the setoff, the Federal Employers' Liability Act's purpose has been fulfilled. Nowhere in Ayers or any other authorities cited by Oakes is there any indication that the Federal Employers' Liability Act contemplates that a plaintiff would receive more than his entire damages, as would be the case absent the setoff. To further [the Federal Employers' Liability Act's] humanitarian purposes, Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers. As cataloged in Gottshall, the [Federal Employers' Liability Act] abolished the fellow servant rule; rejected the doctrine of contributory negligence in favor of... comparative negligence; prohibited employers from exempting themselves from the [Federal Employers' Liability Act] through contract; and, in a 1939 amendment, abolished the assumption of risk defense. Consolidated Rail Corporation v. Gottshall, 512 U.S. [532, 542], 114 S.Ct. 2396. While the Ayers Court's holding that fault may not be apportioned between the railroad and nonrailroad defendants rests upon the Federal Employers' Liability Act's negating of the common law defense of apportionment. However, nothing in the statute changes the common law on damages to the effect that a defendant, such as Illinois Central in the case sub judice, would be prohibited from seeking a setoff from another entity, which earlier paid the plaintiff for the same injuries. A full-text copy of the Order on Writ of Certiorari dated February 15, 2018, is available at https://tinyurl.com/yd725mpd from Leagle.com. Glenn F. Beckham -- gbeckham@upshawwilliams.com -- Harris Frederick Powers, III -- hpowers@upshawwilliams.com -- Attorneys for Appellant. Henry Dean Andrews, Jr. , Timothy W. Porter -- tim@portermalouf.com -- Patrick Malouf -- patrick@portermalouf.com -- John Timothy Givens -- johnny@portermalouf.com -- Attorneys for Appellee. ASBESTOS UPDATE: Nexus Corp. Not Liable in "Amling" Suit -------------------------------------------------------- Judge Sue E. Myerscough of the U.S. District Court for the Central District of Illinois has issued an Opinion dismissing and referring the case styled Harrow Industries LLC, Plaintiff, v. Nexus Corporation, a Colorado Corporation, Defendant, No. 3:17- cv-3222, (C.D. Ill.) to Magistrate Judge Tom Schanzle-Haskins to set a limited discovery schedule so that Plaintiff can determine how National Greenhouse Company passed from Old Nexus to Defendant, as well as set a deadline for Plaintiff to file an amended complaint. Plaintiff's claims are based on a 1990 Asset Purchase Agreement involving the sale of National Greenhouse Company, a company that designs and builds greenhouses and sells products for the use in greenhouses. Plaintiff alleges that Harrow Products, Inc. (Harrow) sold National Greenhouse Company to Defendant pursuant to an Asset Purchase Agreement dated November 14, 1990. Harrow is now a division of Plaintiff's corporate structure. The Agreement identifies the seller as National Greenhouse Company and the purchaser as Nexus Corporation (which is the same name as Defendant). Harrow is identified as the owner of 100% of the stock of the seller. The Agreement contains a provision providing that the purchaser assumes certain liabilities of the seller and also providing that, "except as provided herein, Purchaser shall be liable for all claims arising after the Closing date from events occurring after the Closing date." The Purchaser also agreed to indemnify the seller for certain claims, losses, and liabilities. In 2016, Plaintiff and Defendant were named as Defendants in Robert M. Amling and Deborah Amling v. Burnham, LLC et al., Madison County, Illinois, Case No. 2016-L-000111. In that underlying lawsuit, the Amlings allege that Robert Amling was exposed to asbestos fibers emanating from products designed, manufactured, sold, delivered, distributed, processed, applied, specified, or installed by the various named defendants in that action, including Plaintiff and Defendant as successors-in- interest to National Greenhouse Company. The Amlings further allege that this exposure caused Robert's mesothelioma, which was diagnosed on October 7, 2015. In October 2017, Plaintiff Harrow Industries LLC filed a two- count Complaint against Defendant Nexus Corporation based on a 1990 Asset Purchase Agreement for the sale of National Greenhouse Company. Plaintiff asserts that Defendant is liable for damages arising out of the Amling case. Specifically, Plaintiff alleges that, based on the Agreement, Defendant is liable for any damages related to National Greenhouse Company in the Amling case because the Amlings' claims arose after the closing date of the Agreement from an event that occurred after the closing date of the Agreement. Plaintiff further alleges that Defendant owes Plaintiff a contractual duty to defend and indemnify Plaintiff against any claims arising after the closing date of the Agreement. Defendant has purportedly breached its contractual obligations by failing to defend and indemnify Plaintiff against the Amlings' claims. Plaintiff requests a declaratory judgment that Defendant is liable for all amounts expended by Plaintiff regarding National Greenhouse Company in the Amling case. In December 2017, Defendant filed a motion to dismiss and asked the Court to take judicial notice of certain documents, including filings with the Colorado Secretary of State. Defendant argues that it was not a party to the 1990 Agreement on which the Complaint is based, as Defendant was not even incorporated until 1994. Defendant also argues that Plaintiff fails to plausibly allege any basis for holding Defendant liable for claims based entirely on the 1990 Agreement. The Colorado Secretary of State documents show that, on January 12, 1994, Nexus Corporation (Old Nexus) changed its name to Leroy Greenhouse Corporation (Leroy). On February 8, 1994, Defendant was formed when it filed Articles of Incorporation. On September 30, 2004, the State of Colorado administratively dissolved Leroy. The State of Colorado documents, of which the Court takes judicial notice, demonstrate that Defendant was not a party to the Agreement because Defendant was not incorporated until several years after the Agreement was executed. When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in plaintiff's favor. However, the complaint must set forth facts that plausibly demonstrate a claim for relief. A plausible claim is one that alleges factual content from which the Court can reasonably infer that the defendant is liable for the misconduct alleged. Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient to state a cause of action. In response, Plaintiff asserts that Defendant is a proper party because Defendant owns and operates National Greenhouse Company, and it is a reasonable inference that the entity currently operating National Greenhouse Company is a successor to any liability of the entity that bought National Greenhouse Company from Harrow in 1990. Alternatively, Plaintiff asserts that it should be allowed discovery to determine how National Greenhouse Company passed from Old Nexus to Defendant. Plaintiff's Complaint alleges that Defendant was a party to the Agreement, alleging: that Defendant has owned and operated National Greenhouse Company since its acquisition via the Agreement; that Defendant agreed it would be liable for claims arising after the closing date of the Agreement; that Plaintiff and Defendant entered into a valid and enforceable contract); and that Defendant owes Plaintiff a contractual duty under the Agreement. Plaintiff may be able to allege successor liability, but the Complaint currently contains no allegations from which the Court can reasonably infer that Defendant is liable under the Agreement on a successor-liability theory. Plaintiff argues that the allegation that Defendant owns and operates National Greenhouse Company is sufficient to plausibly allege successor liability. However, even if the Court infers that Defendant purchased National Greenhouse Company at some point, the general rule is that a corporation that purchases the assets of another corporation is not liable for the latter corporation's debts or liabilities. While exceptions to this general rule exist, Plaintiff has not alleged any facts from which the Court could infer that any of those exceptions apply. A corporation that purchases the assets of another is liable for that corporation's debts and liabilities where: (a) the purchasing corporation explicitly or implicitly assumes the debts and liabilities; (b) the transaction amounts to a consolidation or merger; (c) the purchaser is merely a continuation of the seller; or (d) the transaction is for the fraudulent purpose of escaping liability for the seller's obligations. Because Plaintiff has not plausibly alleged that Defendant is liable for claims based on the Agreement, the Court granted Defendant's Motion and granted Plaintiff leave to conduct limited discovery and file an amended complaint. A full-text copy of the Opinion dated February 21, 2018, is available at https://tinyurl.com/y6ubxg7h from Leagle.com. Harrow Industries LLC, a Delaware Corporation, Plaintiff, represented by Michael W. Drumke -- mdrumke@smbtrials.com -- Swanson Martin & Bell LLP & Adam H. Doeringer -- adoeringer@smbtrials.com -- Swanson Martin & Bell LLP. Nexus Corporation, a Colorado Corporation, Defendant, represented by Richard M. Scherer, Jr. -- rscherer@lippes.com -- Lippes Mathias Wexler Friedman LLP. ASBESTOS UPDATE: PI Claims vs. Plenco Dismissed in "Lineberger" --------------------------------------------------------------- Judge Martin Reidinger of the U.S. District Court for the Western District of North Carolina granted the parties' Joint Motion to Dismiss and dismissed all of the Plaintiffs' claims against the Defendant Plastics Engineering Company (d/b/a Plenco) and its wholly owned subsidiaries from the case Tommy William Lineberger and spouse Marcella Wilson Lineberger, Plaintiffs, v. CBS Corporation, et al., Defendants, Civil Case No. 1:16-cv-00390-MR- DLH, (W.D. N.C.), without prejudice. A full-text copy of the Order dated February 22, 2018, is available at https://tinyurl.com/y9vvdlex from Leagle.com. Tommy William Lineberger, and spouse & Marcella Wilson Lineberger, Plaintiffs, represented by Sabrina G. Stone -- sstone@dobllp.com -- Dean Omar Branham, LLP, pro hac vice & William M. Graham , Wallace & Graham. CBS Corporation, f/k/a Viacom, Inc. (sued as successor-by-merger to CBS Corporation f/k/a Westinghouse Electric Corporation) and also as successor-in-interest to BF Sturtevant, Defendant, represented by Jennifer M. Techman -- jmtechman@ewhlaw.com -- Evert Weathersby Houff. CNA Holdings, Inc., formerly known as Celanese Corporation, formerly known as Hoechst Celanese Corporation, Defendant, represented by Stephen B. Williamson, Van Winkle, Buck, Wall, Starnes & Davis, P.A. Georgia Pacific LLC, formerly known as Georgia Pacific Corporation, Defendant, represented by Kenneth Kyre, Jr. -- kkyre@pckb-law.com -- Pinto Coates Kyre & Bowers, PLLC. ASBESTOS UPDATE: Dismissal of Asbestos Claims in "Davis" Affirmed ----------------------------------------------------------------- In 1984, John Davis, an Alabama resident, accepted a job working for Louisiana-Pacific Corporation. After undergoing a pre- employment physical examination in Eufaula, Alabama, Davis worked exclusively at Louisiana-Pacific's Clayton, Alabama facility. In March 1998, he voluntarily resigned and permanently moved to Georgia. More than 17 years after he voluntarily resigned and moved to Georgia, Davis was diagnosed with mesothelioma in May 2015. He exclusively received treatment for his mesothelioma condition in Georgia. Davis filed a claim for benefits with the Georgia State Board of Workers' Compensation in August 2015. After Davis died as a result of his condition the following month, his surviving spouse, individually and on behalf of a minor child ("Appellant"), filed a claim for death and dependent benefits. Neither Davis nor Appellant asserted a claim for benefits under Alabama's workers' compensation system. The administrative law judge and the State Board found that the Board did not have jurisdiction, which was affirmed by the superior court. Appellant argues that dismissal was improper because, under Article 8 of the Act, specifically OCGA Section 34-9-281, the Board has jurisdiction over all work-related injuries and deaths that occur in Georgia. Although Davis was last exposed to asbestos in Alabama, Appellant contends that his work-related injury did not occur until he was diagnosed and became disabled, both of which took place in Georgia, as did his work-related death. In a related claim of error, Appellant contends that general rules of statutory construction support his interpretation. "Where applicable, the Workers' Compensation Act provides the exclusive remedy to an employee injured by accident arising out of and in the course of the employment." The general provisions of the Act apply to Article 8, Compensation for Occupational Disease, "unless otherwise provided in or inconsistent with [that] article." OCGA Section 34-9-281 (a), on which Appellant relies, begins: "Where the employer and employee are subject to this chapter, the disablement or death of an employee resulting from an occupational disease shall be treated as the occurrence of an injury by accident; and the employee or, in the case of his or her death, the employee's dependents shall be entitled to compensation as provided by this chapter. The practice and procedure prescribed in this chapter shall apply to all the proceedings under this article except as otherwise provided . . ." Thus, OCGA Section 34-9-281 (a), by its own terms, applies only where both the employer and employee are subject to the Act. In contrast, OCGA Section 34-9-242, located in Article 6, Payment of Compensation, provides: "In the event an accident occurs while the employee is employed elsewhere than in this state, which accident would entitle him or his dependents to compensation if it had occurred in this state, the employee or his dependents shall be entitled to compensation if the contract of employment was made in this state and if the employer's place of business or the residence of the employee is in this state unless the contract of employment was expressly for service exclusively outside of this state . . . " Thus, OCGA Section 34-9-242 includes a jurisdictional provision, unlike Article 8. Appellant does not dispute that the contract of employment was entered into in Alabama for service exclusively in that state. Under the plain and ordinary meaning of OCGA Section 34-9-242, if the "accident" occurred while Davis was employed in Alabama, he does not meet the conditions of coverage under the Act. Although Davis did not have a work-related "injury" under the Act until his 2015 diagnosis and disablement in Georgia, the "accident" that resulted in Davis' injury was his exposure to asbestos while he was employed in Alabama. Thus, because the contract of employment was also made in Alabama, OCGA Section 34- 9-242 excludes compensation for Davis' "injury" (his disablement and death) under the Act. It follows that the Board did not err by dismissing the claims for lack of jurisdiction. Accordingly, the of Court of Appeals of Georgia for the Second Division affirmed the administrative law judge and the State Board's finding that the Board did not have jurisdiction over the appealed case Davis et al., v. Louisiana-Pacific Corp., A17A1726, (Ga.App. 2d). A full-text copy of the Judge Reese's Decision dated February 27, 2018, is available at https://tinyurl.com/y6vkblty from Leagle.com. Robert Cape Buck , for Appellant. Juliana Y. Sleeper , for Appellant. Trisha Elise Holland , for Appellee. Marion George Waters IV , for Appellee. ASBESTOS UPDATE: Bill Could Affect Asbestos Injury Claims --------------------------------------------------------- Abrahm Hurt of The Statehouse File reported that legislation working its way through the Indiana General Assembly that would limit asbestos lawsuits is a version of a model law crafted by the American Legislative Exchange Council and pushed by the U.S. Chamber of Commerce. Testimony by proponents of House Bill 1061 told the Senate Civil Law Committee said that the issue is about transparency and fairness to those affected by asbestos. But lawyer Kathy Farinas, who represents asbestos victims across the state, said the bill is not needed because Indiana already has a court that has effectively ruled on these cases for years. The American Legislative Exchange Council, a conservative organization that writes state-level legislation for lawmakers across the country, first developed the bill in 2007. The U.S. Chamber of Commerce, which lobbies on behalf of business interests, has been traveling from state to state to urge lawmakers to pass the proposed legislation. Rep. Matt Lehman, R-Berne, who authored Indiana's version of the bill, said the first part would look at Indiana's statute of repose, which deals with when a claim can be filed by a plaintiff in a liability case. "Our law has been struck down by the courts," he said during testimony. "The concern I have there is I do think it is the responsibility of this legislative body to make public policy. Not the judicial branch but the legislative branch." The proposed law, which recommends a 10-year statute of repose, would refer the timing of when a lawsuit can be filed to a summer study committee. Two other parts of the bill, if enacted, could have an immediate impact on the Indiana cases pending in Marion Superior Court. One would require plaintiffs, within 30 days, to file a form with the court detailing any settlements they might have received from the national trust funds set up when asbestos makers went bankrupt decades ago. Current lawsuits have been directed against other businesses whose employees might have become sickened by asbestos exposure. The other part of the bill would bar a plaintiff from filing a lawsuit over asbestos exposure until they actually become sick. Proponents said it would make sure that sick people get their cases heard first. Mark Behrens, who represents the U.S. Chamber Institute of Legal Reform, said plaintiffs' attorneys delay filing trust claim forms because they don't want the jury to hear about other asbestos exposure they may have had. "The average person with mesothelioma will file 20 different trust claims and recover about a half a million dollars," Behrens said during his testimony. "That is relevant information that the jury should decide if a local small business is the defendant in a case, but by delaying the filing of those claim forms they can hide that information from the jury." Behrens is also a lawyer for Shook, Hardy & Bacon in Washington D.C. and co-chairs their public policy practice group. Farinas said the legislation is not necessary because she is already required to give the defendants the trust claims that she files for her clients. She also disputed his claim that lawyers delay filing trust claims to hide information from the businesses being sued. "We just firmly believe there's a big difference in what's discoverable versus admissible and making these trust claim documents prima fascia evidence of wrongdoing that goes to a jury can only confuse them," she said. Farinas said she is most concerned about efforts to change Indiana's statute of repose to 10 years, which hurt her clients' ability to sue to recover damages for asbestos exposure. "Science shows that asbestos diseases will never show up within the first 10 years from exposure," she said during her testimony. Farinas said the bill also contains language that says a physician is not allowed to diagnose an asbestos-related injury unless 15 years have passed from exposure to diagnosis. Farinas said the statute of repose portion of the bill is unique to Indiana and not included in other states that have passed similar legislation. "This bill is a national model that is being, I like to say, a square bill trying to be put in round Indiana hole," she said. ASBESTOS UPDATE: Bestwall Objects to Committee Counsel Retention ---------------------------------------------------------------- Heather Isringhausen Gvillo of Madison County Record reported that Bestwall LLC, a unit of Georgia Pacific, objects to a motion filed by asbestos claimants requesting the court reconsider approval of its counsel in a Chapter 11 bankruptcy proceeding. "In fact, the (claimants') arguments either are without legal merit or are premised on misstatements or misunderstandings of the facts," the debtor's Feb. 15 objection states. Bestwall LLC, formerly part of Georgia Pacific LLC, filed a voluntary petition for bankruptcy on Nov. 2 in the U.S. Bankruptcy Court for the Western District of North Carolina. On Jan. 26, the Official Committee of Asbestos Claimants filed an omnibus motion to reconsider employing King & Spalding LLP of Atlanta and Schachter Harris LLP of Irving, Texas as the debtors' special counsel. Local attorneys Beth A. Gori of Gori Julian & Associates PC in Edwardsville and Andrew O'Brien of O'Brien Law Firm PC in St. Louis are included on the committee of lawyers for claimants. The committee alleges Bestwall was formed on July 31, 2017, as part of a "very carefully planned and executed" restructuring process by Georgia Pacific. Georgia Pacific moved to Texas for less than a day to utilize the state's divisive merger statute and spun off its asbestos liabilities into Bestwall, a new company with limited assets, claimants say. "Specifically, the Debtor, an entity with no employees, certain limited holdings valued by the Debtor at approximately $175 million, and a contractual right to certain payments under a 'Funding Agreement,' assumed liability for all of Old GP's asbestos liabilities and domiciled itself in North Carolina less than 100 days before the Petition Date in anticipation of a bankruptcy filing," the motion states. Then on Nov. 1, 2017, the day before its bankruptcy filing, the debtor changed its name from Georgia Pacific to Bestwall. "The sole issue in this case is the treatment of the Georgia- Pacific Asbestos Liabilities. Indeed, from inception, the Debtor's entire corporate purpose was to provide Old GP and New GP with a resolution of the Georgia-Pacific Asbestos Liability without Old GP or New GP being subjected to a bankruptcy filing. Bestwall seeks to retain King & Spalding to assist with the estimation trial, which has represented Old Georgia Pacific for more than 13 years. However, the committee argues that King & Spalding will be a significant witness at any estimation trial based on its "extensive knowledge concerning Old GP's businesses, former asbestos-containing products, history related to asbestos litigation, scientific research relating to issues arising in the asbestos cases filed against Old GP, defenses to asbestos claims, and both Old GP's and the Debtor's management of the defense and settlement of asbestos claims." The committee also argues that the firm's "role in connection with pre-petition management of the debtors' asbestos liability defense provides it with an interest that may be adverse to the best interests of the debtor's estate." The committee states that by arguing that Georgia Pacific's settlement history has been tainted by withheld information, the debtor has put at issue the approach Georgia Pacific used in making decisions to settle asbestos related personal injury and wrongful death claims. "Central to Old GP's and the Debtor's decisions to address asbestos claims through litigation, settlement, or otherwise will be the conduct and advice of its counsel. "Among other things, K&S' role in establishing settlement protocols and values, including what was known or should or could have been known in establishing such protocols and recommending such settlement values, will be at issue in any estimation trial," the motion states. Further, the committee argues that any communications that would have otherwise been subject to attorney-client privilege will also be placed at issue. "To state it plainly, K&S' settlement advice, its defense strategy, and its management of trial counsel are likely to be at issue in any estimation trial," the motion states. "While the Committee has no information to suggest that K&S' representation of Old GP and Bestwall in connection with the Georgia-Pacific Asbestos Claims was less than superb, if the investigation of other potential sources of recovery by Old GP was deficient, it is possible that K&S' interests and the interests of the Debtors' estate could conflict," it continues. As for Schachter Harris, the motion states that Bestwall seeks to retain the firm to assist with medical science expertise, historical experience representing the debtor and technical knowledge regarding expert testimony and discovery in asbestos claims. The committee argues that Schachter Harris' proposed services regarding medical science expertise "are unnecessary and irrelevant with regard to an estimation proceeding before this Court." "An estimation proceeding is not a process in which the Debtor can globally re-litigate whether Georgia-Pacific's chrysotile- containing products cause mesothelioma," the motion states. "Such a determination is beyond the Court's jurisdiction." The committee adds that Schachter Harris lawyers will also be important fact witnesses regarding its services as National Coordinating Counsel for Georgia Pacific in asbestos cases for three years before the debtor entered bankruptcy proceedings. The motion states that any estimation proceeding should approximate as reliably as possible the amount Georgia Pacific would have paid to dispose of asbestos claims absent Bestwall's bankruptcy. "Under applicable jurisprudence, this Court may not decide which set of medical/science experts are correct on the issue of the extent to which Georgia-Pacific's products caused or contributed to the mesothelioma claims against Old GP/the Debtor," the motion states. The committee argues that Georgia Pacific's contention that chrysotile asbestos does not contribute or cause mesothelioma and its supporting medical science evidence are reflected in its verdicts and settlements. "The Debtor has neither contended that the plaintiffs presented evidence relating to chrysotile which was hidden to them and as to which they were unable to respond, nor asserted that there are new developments in the independent medical or scientific literature," the motion states. "Thus, the Court must take the state of tort law as it exists and should not permit the Debtor to attempt to use this Court to serve as a legislator or as an alternative fact-finder to the state courts, which regularly serve as finder of fact on this very issue." Referencing the Garlock Sealing Technologies estimation proceeding, the committee argues that the parties presented extensive evidence on the medical science related to chrysotile asbestos. However, the evidence was "ultimately proved irrelevant" to the court's estimation holdings, the motion states. Garlock sought bankruptcy protection to escape increasing settlement awards and jury verdicts, which it blamed on plaintiff attorneys who were allegedly withholding evidence of other company culpability. U.S. District Judge George Hodges agreed, finding that the amount of previous awards and settlements paid by Garlock in the civil justice system were not reliable because plaintiffs' attorneys had withheld evidence of their clients' exposure to asbestos- containing products manufactured by other companies in order to maximize recovery against Garlock. Bestwall attorney Garland Cassada of Robinson Bradshaw & Hinson of Charlotte, N.C. filed an objection to the motion to reconsider, arguing that "denying the debtor access to representation of its choice, including by curtailing the role of such counsel, requires compelling justification. Here, the ACC has offered no valid factual or legal justification for that relief, much less a compelling one." It further argues that the committee's motion is an attack on its legal team. "Far from seeking to remedy any actual and identified risks associated with the Professionals' retention by the Debtor, the Motion instead is a transparent attempt to hamstring the Debtor's ability to pursue an estimation proceeding in the event that one is needed." Casada wrote that Bestwall is "committed to pursuing a prompt and consensual resolution" in determining the debtor's liability. However, he notes that an estimation trial is typical. He adds that Bestwall has no reason to believe attorneys with the two firms will be called as witnesses, as their testimonies are not necessary. Casada argues that attorneys with King & Spalding and Schachter Harris did not serve in the roles the committee alleges. Therefore, attorneys with the firms are not qualified to testify to the matters raised in the committee's motion. As for the committee's argument over medical and science evidence, the debtor argues that such evidence has been an important part to estimation proceedings in similar bankruptcy cases. ASBESTOS UPDATE: Daughter Names Copes Vulcan, et al., in Suit ------------------------------------------------------------- Lhalie Castillo of Madison-St. Claire Record reported that a woman alleges her father's cancer was caused by his exposure to asbestos during his career. Jacqueline Norful, individually and as special administrator of the estate of Wymon Norful, filed a complaint on Feb. 6 in the St. Clair County Circuit Court against Copes Vulcan Inc., Foster Wheeler Corp., Honeywell International Inc., et al. alleging negligence. According to the complaint, the plaintiff alleges that at various times during plaintiff's decedent Wymon Norful's work as a security guard from 1966 to 1997, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. The suit states that on or about Sept. 1, 2017, the decedent first became aware that he developed lung cancer, an asbestos-induced disease, and that it was wrongfully caused. He died on Nov. 16, 2017, the suit states. The plaintiff holds Copes Vulcan Inc., Foster Wheeler Corp., Honeywell International Inc., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff and seeks compensatory, exemplary and punitive damages of more than $50,000. She is represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 18-L-84 ASBESTOS UPDATE: Insurers Alert After Low Level Exposure Ruling --------------------------------------------------------------- Carl Dray, Esq. -- carl.dray@cms-cmno.com -- of CMS Cameron McKenna Nabarro Olswang LLP, writing for Lexology.com, wrote that the insurance industry is on alert following the High Court ruling in Hawkes v Warmex Ltd [2018] EWHC 205 (QB). Mr Peter Marquand ruled that asbestos exposure that was less than 'substantial' was capable of establishing breach under the common law duty of care and s. 47 of the Factories Act in the 1940s. Mrs Hawkes died from mesothelioma in 2014. It was alleged that between 1946 and 1952 she had been exposed to asbestos while making electric blankets at the defendant's factory. It was claimed the inner linings of the blankets were made of asbestos which would come loose and settle on her clothes as she worked. The claimant, Mrs Hawke's son, argued that the defendant was negligent and in breach of numerous statutory duties. Judge Marquand held that the claimant had failed to demonstrate the lining contained asbestos. Accordingly, the claim failed on the facts. Crucially, however, obiter the Judge addressed the defendant's duties as a factory owner and employer in the 1940s and 1950s in terms of low-level exposure: Dealing with the 'second limb' of s.47 and whether the defendant's manufacturing process produced 'substantial' quantities of dust, the judge held that it did not. Having heard the expert evidence and reviewed the relevant literature he considered it improbable that such fibre counts would have been visible; Most importantly, dealing with the 'first limb' of s.47, the judge accepted the formula laid down in Jeromson v Shell Tankers [2001] EWCA Civ 101, whilst strictly confining Williams v The University of Birmingham [2011] EWCA Civ 1242 to its context. He held that in determining breach of duty, the question is whether asbestos-related injury is foreseeable, rather than mesothelioma itself. He found that by 1946 to 1952, asbestos-related injury was a reasonably foreseeable consequence of exposure to asbestos dust even at low levels, and if the lining had been proved to contain asbestos, the defendant would have been in breach of its common law duty and s.47 of the Factories Act 1937. This case appears to be a further step towards departure from Williams, albeit Mr Marquand's remarks were made obiter and are therefore non-binding. With the Court of Appeal's decision in Bussey v Anglia Heating Ltd pending, the industry is relying on the Appeal Judges to reaffirm the decision in Williamsand provide much needed clarity on the issue of low-level asbestos exposure. ASBESTOS UPDATE: Claimant Atty Hails Landmark Asbestos Ruling ------------------------------------------------------------- John Hyde of Law Gazette reported that the Court of Appeal has reset the threshold for asbestos-related cases, which could pave the way for thousands of potential claims. Lord Justice Jackson said the High Court judge in Bussey v Anglia Heating Ltd had felt 'constrained' by relying on data that was never intended to be used as a yardstick for making claims. Guidelines produced 40 years ago about acceptable levels of asbestos fibres in the air have been used as the test for assessing the claims of victims since the ruling in Williams v the University of Birmingham in 2011. This latest ruling is being hailed by claimant lawyers as an acknowledgment the application of historic data is wrong, and that the courts have wrongly applied the measurements as a guide to employers of a so-called 'safe' level of asbestos in which people could work. Caroline Pinfold, an industrial disease solicitor at London firm Fieldfisher, who represented the claimant in Bussey, said: 'These data that measured levels of asbestos fibres in the air have been wrongly applied by employers and their lawyers to deny or delay claimants the compensation they deserved. I know the ruling will come as a huge relief for mesothelioma sufferers and their families who have had their cases put on hold waiting for this decision.' 'Sadly, many others will have died in the meantime without being given funds to pursue private immunotherapy treatment that could have given them some respite.' Veronica Bussey pursued a claim for compensation against one of her husband's former employers after he died in 2016 from cancer associated with asbestos. In May last year, His Honour Judge Yelton decided he was bound by Williams, but the Court of Appeal ruling means that judgment is set aside and the case remitted for determination on the issue of liability. Lord Justice Moylan, agreeing with Jackson LJ, said there were particular concerns about the categorisation of risks. With a note that will be of interest to all litigation lawyers, he added: 'To seek to address whether a particular risk is acceptable or unacceptable could well lead to confusion rather than assisting the court in determining the critical question of the foreseeability of the relevant risk.' ASBESTOS UPDATE: Fla. Courtroom Site of New Talc Trial ------------------------------------------------------ Mesothelioma.net reported that a courtroom in Florida is the scene of the state's first trial accusing a talc company of causing a man's malignant mesothelioma. Lawsuits accusing asbestos companies of causing people's mesothelioma have been with us for decades, and have resulted in billions of dollars in compensation being awarded to the victims of asbestos exposure. But a new phase of mesothelioma trials is being seen across the United States. People diagnosed with the rare and fatal form of cancer are now charging talc companies with the same level of negligence as asbestos companies have been accused of in the past, and are saying that these companies failed to warn of the presence of asbestos in their products. The talc mesothelioma lawsuit has been filed by Robert Lord and his wife Lola. They claim that Vanderbilt Minerals LLC sold asbestos-contaminated talc products to his employer, Florida Tile Company, without providing adequate warnings about its presence. The company's attorneys are arguing that there is no scientific evidence that the company's talc caused his illness and that the tissue samples submitted by Mr. Lord contained a kind of asbestos not found in their products. The Florida talc mesothelioma case is different from others being heard around the country because it involves industrial talc exposure rather than exposure to asbestos-contaminated talc found in household or cosmetic products. Instead, the talc that Mr. Lord was exposed to came from components of ceramics. Other industrial talc lawsuits could involve chemical coatings, paper and plastics. It is expected that this case will take approximately two to three weeks before a verdict is handed down. The revelations of talc's asbestos-contamination has created a sea-change in the public's awareness of mesothelioma, the harm that it does, and the significant risk that it continues to pose. If you have been diagnosed with this rare and fatal form of cancer and you need information about resources, call 1-800-692- 8608 to speak to Mesothelioma.net's compassionate Patient Advocates. ASBESTOS UPDATE: Court of Appeals Flips Ruling in "Bussey" ---------------------------------------------------------- Toby Scott, Esq. -- toby.scott@clydeco.com -- at Clyde & Co. LLP, writing for Lexology.com, said that the late Mr Bussey was employed by Anglia Heating Ltd and exposed to some asbestos during work between 1965 and 1968. He was also exposed (probably in greater concentrations) whilst employed by Pump Maintenance Ltd between 1969 and 1980. It was contended that it was in consequence of these exposures the deceased contracted mesothelioma which led to his death in January 2016. The claim against Pump Maintenance Limited had been settled prior to litigation and the Claimant, the deceased's widow, conceded that she would need to give credit for damages received. The High Court decision The High Court had held itself to be bound by Williams v University of Birmingham [2011] EWCA Civ 1242, and found that a widow's claim for damages following her husband's death from mesothelioma failed. Mrs Bussey was unable to prove, on the balance of probabilities, that the levels of his exposure to asbestos, during the course of his employment as a plumber with the Defendant (in 1965-1968), had exceeded that set out in TDN13 of 1970. As such, the risk of the deceased contracting mesothelioma was not foreseeable. The claimant applied for permission to appeal on two grounds: 1. The determination of the level of exposure; 2. The application of Williams to the facts of this case. The Court of Appeal Although the Court of Appeal rejected the Claimants application to make a factual determination on breach of duty, Mrs Bussey has been granted leave to appeal on the following grounds: 1. TDN13 is not a touchstone for determining whether the level of exposure to asbestos is 'safe'. It is merely to be used as guidance and sets out the levels of exposure which would trigger a prosecution by the Factory Inspectorate. 2. The decision in Williams is not to be regarded as incorrect. The Court of Appeal distinguish Williams from Bussey on the grounds that the deceased in Williams had been exposed to lower levels of asbestos than the deceased in Bussey and for a shorter period of time. Therefore the total exposure was different in each case. 3. The only gloss the Court of Appeal intends to place on Williams is that the judgment "should not be read as making TDN13 a universal test of foreseeability in mesothelioma cases". 4. It was relevant that neither Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ 100 nor Maguire v Harland and Wolff PLC [2005] EWCA Civ 1 were cited in Williams as it affected the approach (not the result) adopted by the court. The outcome may have remained the same, however it would not have been suggested that TDN13 was a general yardstick for determining the issue of foreseeability. 5. When determining foreseeability it is necessary for the court to look at: 1. What information should a reasonable employer in the defendant's position at the relevant time have acquired? 2. Taking this into account, what are the risks the employer should have foreseen? 3. Did the employer implement precautionary measures to reduce those risks? 6. The judiciary disagreed on Aikens LJ's use of the phrase "an unacceptable risk of asbestos-related injury". Jackson LJ agreed with the inclusion of 'unacceptable' as "anyone who works or lives in proximity to asbestos faces some risk of mesothelioma". Whilst it is not possible to eliminate the risk altogether, it is possible to implement precautionary measures to reduce the risk and the remaining risk following the measures would be deemed 'unacceptable'. 7. However, the majority (Underhill LJ and Moylan LJ) held categorising risks as acceptable and unacceptable would lead to confusion. It is particularly problematic to determine whether a risk is acceptable in the context of mesothelioma claims as there is no safe level of exposure to asbestos dust. 8. The Court of Appeal did not have a full transcript of the evidence, nor did the judges hear oral evidence from the experts. On that basis the Court of Appeal felt it was not in a position to determine liability and therefore remitted the case back to the High Court. What can we learn? * It has been suggested that the decision in Williams handed the defendants something of a windfall in defending claims on breach on the basis that exposures prior to and during the currency of the hygiene standards set by TDN13 would be regarded as acceptable and not actionable if, and with expert evidence, defendants could establish levels below the guidance (even if, adopting the precautionary approach exposed by Hale LJ meant that the risk could not be ignored). This led to the potential anomaly of exposures occurring prior to the publication of TDN13 could be in potential breach of duty whereas subsequent exposures could not (per Williams). * Nonetheless this does not mean that defences as to breach are doomed to failure.Mr Bussey was exposed to asbestos concentrations substantially greater than those for Mr Williams and came close to those mentioned in TDN13. * Whilst declining Mr Bussey's invitation to make factual finding as to liability, the Court concluded that the Defendant was not in a position to assess whether Mr Bussey's exposure was liable to cause mesothelioma, but it did have available to it precautions that could lead to the unknown or variable risk. * To this extent employers appear to have lost the windfall and now need to establish on the basis of then available literature, that exposures were sufficiently low to enable an employer to discount the risk. * Lord Justices Underhill and Moylan provided supporting unanimous judgments but went further than Lord Justice Jackson.They rejected as unhelpful Jackson LJs categorisation of risks as "acceptable" or "unacceptable". Underhill LJ preferred a lower threshold for precautions as arising when the risk core is "significant" (i.e. more than fanciful). * It is only in very low exposure cases that an employer is likely to be able to demonstrate the absence of constructive knowledge of a significant risk.Beyond those cases the two supporting judges clearly envisage the employer taking precautions on a prospective basis. * The case has been re mitted to HHJ Yelton to re-determine liability in the light of these findings, although it is likely that the case will be settled prior to this. * Whilst Mrs Bussey's case has been sent back to the court of first instance for re-trial the Court of Appeal clearly took the view following Jeromson that in heavy exposure cases an employer cannot rely upon is own ignorance as to exposure levels and take refuge in TDN13; because the employer is not in a position in any event to know whether it met the standard. In such circumstances the employer is expected to do its best and adopt a precautionary approach. * The said, employers who can demonstrate minimal exposure levels will not necessarily find themselves liable by virtue of Jeromson and this ruling. ASBESTOS UPDATE: Zurich Reaches Landmark Cancer Treatments Deal --------------------------------------------------------------- William Shaw, writing for Law360, reported that a U.K. cancer patient has secured a groundbreaking deal with Zurich Insurance agreeing to pay for future medical therapies that are yet to be discovered, his lawyers told Law360. Irwin Mitchell LLP said that Zurich Insurance PLC has agreed to cover future treatments for James Casey, a 63-year-old father of three from the northern English town of Halifax, once new treatments become available. Casey suffers from the lung cancer mesothelioma, caused by working with asbestos as an engineer in mills and factories. ASBESTOS UPDATE: Asbestos Firm Must Face Insurers' Payback Suit --------------------------------------------------------------- Emma Cueto, writing for Law360, reported that a Texas federal court refused to toss a suit from three health insurers that claims a law firm failed to pay the companies money out of its clients' asbestos settlement funds, asking the parties for additional information but saying the suit could remain for now. U.S. District Judge Sim Lake dismissed one claim for unjust enrichment that Humana Inc., United Healthcare Services and Aetna Inc. made against the national asbestos firm Shrader & Associates LLP, but ruled the remaining claims could stay. The case is Humana, Inc. et al v. Shrader & Associates, LLP, Case Number 3:16-cv-00354 (S.D. Tex.). ASBESTOS UPDATE: SF Firm Settles Appeal of $1.1MM Sanction ---------------------------------------------------------- Andrew Strickler, writing for Law360, reported that a San Francisco law firm hit with a $1.12 million sanction for "egregious" discovery misconduct and a failure to investigate and turn over thousands of documents withheld by a client in an asbestos case has had the order vacated by a Hawaii state court as part of a settlement deal. In an unusual post-settlement order, state Circuit Court Judge James H. Ashford granted a joint motion from plaintiffs William and Michelle Schane and the sanctioned firm, Hugo Parker LLP, to vacate the underlying findings. ASBESTOS UPDATE: Sheldon Silver Can't Toss Charges -------------------------------------------------- RJ Vogt, writing for Law360, reported that disgraced former New York lawmaker Sheldon Silver lost a bid to dismiss an indictment on corruption charges, as a federal judge rejected his arguments for trimming or tossing claims the Second Circuit vacated over jury instructions it found improper in light of the high court's 2016 McDonnell ruling. Silver and Manhattan federal prosecutors had both recently filed motions in limine roughly a month before the expected start of the retrial of the former New York State Assembly speaker, who was convicted in 2015. ASBESTOS UPDATE: Insurer on Hook for $43MM in Libby Claims ---------------------------------------------------------- Mike Dennison of KRTV Great Falls News reported that a state judge says a Nebraska-based private insurer is liable for an entire $43 million state settlement of 100 asbestos claims related to Libby's defunct vermiculite mine -- and the full cost to the company is likely more. State District Judge Holly Brown of Bozeman ruled that National Indemnity Co. -- a subsidiary of Warren Buffet's Berkshire Hathaway firm -- improperly tried to deny coverage from an insurance policy held by the state 45 years ago. By breaching it "duty to defend," National Indemnity is blocked under state law from denying coverage, and therefore is liable for the $43 million settlement that the state agreed in 2011 to pay those who contracted fatal lung disease by asbestos at the former Libby mine, the judge said. Those injured by asbestos had sued the state of Montana, beginning in 2000, alleging the state concealed its knowledge that harmful asbestos was in dust at the mine and failed to inform workers or the public. But the state discovered it held a policy with National Indemnity from 1973-1975, insuring the state against personal-injury and other claims. It notified National Indemnity in early 2002 about the asbestos lawsuits and potential liability, and said the company should be liable for the suits' costs. The Nebraska firm argued it should not be liable for the Libby asbestos claims -- and, even if it was, the total amount should be limited to $3 million, or based on pro-rated costs from the two years the policy was in effect. Brown, however, disagreed, and said National Indemnity must pay for any settlement stemming from the Libby cases -- and, all of the state's defense costs after July 2005, any pre-judgment interest related to the cases and the state's costs of the separate case on whether National Indemnity is responsible. Lawyers for the state weren't immediately available for comment Monday, on the decision or its full financial implications for the state. Attorneys for National Indemnity also could not be reached for comment Monday. The case involves scores of claims filed by people harmed by asbestos from a Libby vermiculite mine, which had been owned and operated by W.R. Grace & Co. The asbestos-related lawsuits, filed starting in 2000, said the state had known as early as 1942 that dust from the mining and milling operation was "greatly in excess of safe limits." The suits also said the state had inspected the W.R. Grace operations in the 1950s and found asbestos in the air of "considerable toxicity," and had issued death certificates in the 1960s that cited asbestos-related health conditions as the cause. However, the state failed to inform workers or the public of the dangers of asbestos fibers at the Libby operations, the suits said. An attorney for the state notified National Indemnity in 2002 about its possible liability, stemming from coverage the state had bought from the company from July 1973-June 1975. National Indemnity argued it had limited liability, but in 2009, it agreed to pay $16 million of the $43 million settlement, while a court settled the issue of who would share the liability. The company filed action in state court in 2012 to resolve the matter, and Brown's order ruled for the state. National Indemnity can appeal the ruling to the Montana Supreme Court. ASBESTOS UPDATE: Co. Pleads Guilty of Illegal Asbestos Removal -------------------------------------------------------------- Mary Cooley, writing for Belleville News-Democrat, reported that the owner of a construction company pleaded guilty in federal court after he illegally removed asbestos from a former school in Okawville. Joseph Kehrer, owner of Kehrer Brothers Construction, was charged with failing to notify regulatory authorities before removing asbestos. The asbestos was removed in February and March 2015 from the former Okawville Elementary School, according to a news release from the United States Attorney's Office for the Southern District of Illinois. Law requires that the Illinois Environmental Protection Agency should have been notified 10 days before work started. Kehrer admitted in court that he knowingly failed to provide notification. The New Baden man's sentencing is scheduled for June 12, where he faces a maximum sentence of five years in prison and a fine up to $250,000. In 2015, Kehrer was fined $1.8 million by the U.S. Department of Labor's Occupational Safety and Health Administration for allegedly bringing in Mexican workers to remove asbestos without safety gear. OSHA Assistant Secretary David Michaels said Kehrer exposed at least eight workers to asbestos in violation of federal health standards, then threatened to fire them if they spoke to safety investigators. "They spoke no English. He drove them to jobs. He set up a housing camp for them. They were at his mercy," Michaels said at the time. "This case stands out because of the outrageous behavior of Joseph Kehrer." The Department of Labor said in 2015 that Kehrer Brothers Construction had an "extensive prior history" with OSHA and had been inspected 11 times since 2007. Federal safety officials noted in August 2016 that the business owner could face criminal charges regarding the incident. ASBESTOS UPDATE: Worker Blames Paper Mill for Mesothelioma ---------------------------------------------------------- Mesothelioma.net Blog reportd that it's been six years since Henry Barabin succumbed to malignant mesothelioma, but his widow Geraldine is still trying to get justice from those responsible for his illness. Barabin was a long-time employee of the Crown-Zellerback Pulp and Paper Mill located in Camas, Washington. He worked there between 1968 and 2001, holding a variety of jobs throughout the years. Some of his job responsibilities included working with dryer felts and cleaning paper machines, exposing him to asbestos fibers that contaminated the environment. Mr. Barabin was diagnosed with malignant mesothelioma in late 2006, and as a result of multiple courses of chemotherapy and other treatment protocols was able to live with the rare and fatal form of cancer for almost six years. He died in 2012, but not before having filed a lawsuit in 2009, which he and his wife won. After Mr. Barabin had already died of malignant mesothelioma, two of the defendants in the case, Scapa Dryer Fabrics, Inc. and AstenJohnson, Inc. appealed the verdict against them. They based their appeal on an argument that some of the testimony provided by expert witnesses in the case should not have been allowed. Upon hearing the motions to exclude the testimony of several witnesses, District Judge James. L. Robart of the United States District Court in Seattle granted some of their requests and denied others. The asbestos company attorneys sought to exclude testimony based on legal issues such as reliability of the studies on which their testimony was based, the theory on which witnesses based their testimony, and the fact that the witnesses did not exactly reconstruct the conditions that exposed Mr. Barabin to asbestos before providing testimony. The court disagreed on many of these issues, and allowed the majority of the Barabins' witnesses' testimony to be included at retrial. Following this decision, AstenJohnson agreed to a settlement with Ms. Barabin, leaving only Scapa Dryer Fabrics to pursue their appeal of the verdict against them. Though asbestos companies will take every opportunity to fight having to provide justice to those who they sickened, it has been well established that exposure to asbestos causes malignant mesothelioma. If you or someone you love has been diagnosed with mesothelioma or any other asbestos-related disease and you need information about treatment, your rights, or any other resource, the Patient Advocates at Mesothelioma.net can help. Call us today at 1-800-692-8608. ASBESTOS UPDATE: Daughter Blames Arconic for Dad's Lung Cancer -------------------------------------------------------------- Lhalie Castillo of Madison County Record reported that a woman alleges her father's cancer-related death was caused by asbestos exposure during his career. Kristi Hester, individually and as special representative of the estate of Billy J. Smith, deceased filed a complaint on Feb. 23 in the St. Clair County Circuit Court against Arconic Inc., The Budd Corp., Maremont Corp., et al. alleging negligence. According to the complaint, the plaintiff alleges that at various times during Smith's life, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. She alleges that on or about Feb. 23, 2016, he first became aware that he developed lung cancer, an asbestos-induced disease, which ultimately led to his death on July 1, 2016. The plaintiff holds Arconic Inc., The Budd Corp., Maremont Corp., et al. responsible because the defendants allegedly intentionally included asbestos fibers in their products when they knew that it had toxic, poisonous and highly deleterious effect to human health and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff requests a trial by jury and seeks actual and compensatory damages of more than $50,000. She is represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court case number 18-L-128 ASBESTOS UPDATE: Asbestos Find Shuts Down Hoddle Street ------------------------------------------------------- ABC Online reported that the asbestos was found near Studley Street, close to Collingwood College and the public housing flats, and is likely from old sewers and underground water pipes. VicRoads said work would not resume until the location had been made safe. However it said the amount of asbestos was small and there was "no health or safety risk to pedestrians, local residents or people living or driving on the busy road". "The affected area has been contained with exclusion zones set up to ensure the safety of the community and workers on site," VicRoads said in a statement. "All relevant safety procedures have been put in place and qualified hygienists are now supervision works in the area." WorkSafe has also been notified. It is understood there will be additional soil testing before there are any further excavations at the site. The works are part of the Streamlining Hoddle Street project where a third lane is being added to allow vehicles to get onto the freeway and improve the traffic flow. There will also be a dedicated bus lane from Victoria Street to the Eastern Freeway. The works also include intersection upgrades that will give longer green lights to people travelling straight along Hoddle Street and Punt Road. Up to 330,000 people use Hoddle Street and Punt Road every day. Last week, work on part of the $11-billion Metro Tunnel rail project was suspended after workers discovered an asbestos pipe while digging up St Kilda Road. ASBESTOS UPDATE: Workers Exposed to Asbestos at Sydney Airport -------------------------------------------------------------- Anna Patty of The Canberra Times reported that the Construction, Forestry, Mining and Energy Union claims its members have been exposed to asbestos at the T2 Sydney Airport loading dock construction project. A CFMEU organiser attended the site after workers reported safety concerns to the union and complained his legal right of entry to the site was blocked by the head contractor. The union said Safework NSW had failed to identify asbestos containing material that was being broken up and excavated inappropriately. CFMEU NSW Assistant Secretary Rob Kera said the union had a legal right to step in and represent its members when they raised safety concerns. "Safework -- the safety regulator -- took five hours to turn up, wrongly advised the builder that our organiser shouldn't be allowed on site, and then failed to identify the deadly asbestos right in front of them," Mr Kera said. "There is absolutely no safe level of exposure to asbestos fibres, which is why workers are so angry that their health has been put at risk." A spokesman for Sydney Airport declined to comment about the asbestos safety issue and referred the inquiry to SafeWork NSW. A spokesman for SafeWork NSW said it responded to a union request about a right of entry issue at an excavation site at Sydney Airport Domestic Terminal 2 Loading Dock on March 1 and attempted to address the issue. The spokesman said SafeWork had been notified about asbestos removal on the site last year. "During the inspection SafeWork NSW also investigated concerns with the amenities and a burst pipe at the site," the spokesman said. "SafeWork NSW was notified about licensed asbestos removal work at the site in November 2017 and a remediation plan that complies with work health and safety laws is in place. "SafeWork NSW will continue to monitor work health and safety at the site." ASBESTOS UPDATE: No Legal Charges Filed on Asbestos Case -------------------------------------------------------- Macau Daily Times reported that no further legal action has been taken following the presence of asbestos in demolition work carried out in a plot located in Taipa at Padre Tomas Pereira Avenue. The demolition and construction works were conducted illegally and a local school was affected. In January, several parents from the Macau Anglican College refused to bring their children to school following the discovery of asbestos, which can cause serious chronic respiratory disease, in the vicinity. The toxic material was discovered as a rooftop was being demolished in the area. Questioned by the Times, the Land, Public Works and Transport Bureau (DSSOPT), stated that it has issued an embargo order to the owner of the construction site, and that the work was suspended -- as has been previously reported. The bureau's statement implied that no further fines were handed out to the owner, despite the fact that the works were conducted with no legal permits, and that they put the schoolchildren at risk. "In order to ensure that materials containing asbestos do not impact the environment, the board of the Environmental Protection Services (DSPA) has commissioned a professional body to carry out the inspection. So far, there have been no abnormal situations," it noted. "The DSPA also required the site manager to minimize pollution and carry out subsequent control work, according to expert suggestions, until the safety of the site is confirmed," DSSOPT added. The Times contacted the principal of the school, Robert Alexander, to enquire whether the school has filed or is planning to file a legal complaint against the site owner. However, he only noted that the school currently has no updates on the related matter. "We have no further updates regarding the asbestos issue at this stage," the principal replied. No supplementary information was provided. According to a parent, the school is working with parents to put a plan in place to deal with future issues and to ensure that all parents receive up to date information and bulletins. "A new one [Whatsapp group] was set up to get input on creating better communication between the school and home but that's just turned into a forum for any school matters and not it's original set up," said the parent. Previously, parents to whom the Times spoke, expressed their belief that the site owner should be investigated and eventually sued for putting the public in danger. ASBESTOS UPDATE: Hospital Asbestos Drama Lead to Ward Crackdown --------------------------------------------------------------- Graeme Thomson of Scottish Daily Record reported that people were ordered inside a ward after dust stirred up by workers removing asbestos triggered a fire alarm with one patient claiming they were then locked inside. "So it was really hard to keep it together and be strong for them when I didn't know if it was gonna be OK or not." Many residents also reported power outages and the first phone calls to SES came in at 3pm, according to the Singleton Argus. "The 10-minute storm was when the most damage occurred. Then we received that big downpour soon after," NSW SES community engagement officer Simone Burrows said "The strong winds not only knocked trees over, but also onto people's fences and sheds. Seven homes were missing their roofs, too." The SES received 37 calls by 7pm. ASBESTOS UPDATE: NY Judge Overseeing Asbestos Cases Reassigned -------------------------------------------------------------- Stephen Rex Brown of New York Daily News reported that the Manhattan judge overseeing asbestos cases will be reassigned after just six months on the job, leading one activist to say the move reinforces the court's toxic reputation for "chaos and corruption." Justice Lucy Billings was appointed coordinating judge of asbestos litigation on Aug. 1. Top brass with the Office of Court Administration wanted Billings to come up with fresh ideas to expedite cases, but that did not happen, a court official said. The asbestos backlog remains the most problematic in Manhattan Supreme Court's civil term. One source estimated there were 500 active asbestos cases and 1,000 others that were essentially dormant. "Asbestos cases, by their nature, are extremely complex and thus represent a large part of the Court's backlog of cases," a courts spokesman said. But rumors were swirling that Billings had been too tough on the firms bringing the cases that often result in multimillion-dollar settlements. "Sacking Justice Billings after only a few months certainly looks suspicious. This court is historically corrupt and chaotic. It has been a 'Judicial Hellhole' for three years straight," said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York. "Reassigning a key judge after just six months only adds to the appearance of chaos and corruption." The decision to move Billings comes after Judge Deborah Kaplan was appointed administrative judge of the civil term in Manhattan in December. Kaplan "was recently appointed to the civil term to specifically look for innovative ways to address court operations and case inventories. In doing so, court personnel, both judicial and nonjudicial, may be reassigned," the courts spokesman said. Several sources said that Billings has handled the cases before her expeditiously -- but that a massive backlog held at 60 Centre St. still has not been transferred over to her courtroom on 71 Thomas St. The trial of disgraced former Assembly Speaker Sheldon Silver pulled back the curtain on shady aspects of asbestos litigation in New York, where verdicts are triple the national average. It emerged that the influential firm Weitz & Luxenberg -- where Silver was of-counsel despite doing no legal work -- was given preferential access to potential jurors in the civil courthouse. The practice was discontinued and Silver -- who raked in big bucks referring cases to the firm, which boasts over $17 billion in verdicts and settlements -- was cut loose amid corruption allegations. Silver is awaiting retrial on those charges. A courts official insisted the decision to remove Billings was not due to complaints by attorneys on either side of asbestos litigation. Emily Jane Goodman, a retired Manhattan Supreme Court judge, said Billings was known as an expert in asbestos and related fields. "Ironically, sometimes expertise is not appreciated in the courts," said Goodman, who had no knowledge of why Billings was transferred. Lester Brickman, professor emeritus at Cardozo School of Law and a top authority on asbestos litigation, said New York City's asbestos court was one of several in the country that is "less than neutral" due to rules favoring plaintiffs. Rules regarding consolidation of cases, as well as case management orders, "deliberately weighs the scales of justice in favor of plaintiffs," Brickman said. Court administrators have Billings' replacement in mind but were not ready to make an announcement, officials said. ASBESTOS UPDATE: New Baden Contractor Guilty of Asbestos Offense ---------------------------------------------------------------- WJBD Online reported that a New Baden man has pleaded guilty to a felony offense of failure to notify regulatory authorities prior to removing asbestos material. Joseph Kehrer will be sentenced on June 12th in U.S. District Court in Benton. Kehrer admitted to causing the removal of a combined amount of material containing asbestos greater than 160 square feet during the renovation of the former Okawville Elementary School in Okawville without prior required notification to the IEPA. The offense carries a maximum penalty of five years imprisonment followed by three years of supervised release and a fine up to $250,000. ASBESTOS UPDATE: Missouri Passes Company-Friendly Asbestos Bill --------------------------------------------------------------- Marshall Griffin of St. Louis Public Radio reported that the Missouri House has passed legislation designed to reduce the number of asbestos lawsuits filed in the state. The bill would require plaintiffs to submit their medical histories as evidence, including things not related to their claim. It would also make it easier for defendants to seek delays, and, if they lose, it would allow them within a year's time to ask a judge for a reversal under certain conditions. Right now we are known as the Sue-Me State, not the Show-Me State -- the Sue-Me State," said the bill's sponsor Rep. Bruce DeGroot, R-Chesterfield. "This bill protects our people -- nobody wants to do business in the state of Missouri, because every time our businesses get sued, they get creamed." The measure is part of a continued push by Republican lawmakers and Gov. Eric Greitens to make it harder to sue large corporations and small-business owners, known in the legal community as tort reform. "Right now, the Johns Mansville's, the Owens-Corning's -- those people are all bankrupt," DeGroot said on the House floor. "You know who the plaintiffs' attorneys are going after now? They're going after mom-and-pop stores in the districts that you represent." Opponents on both sides of the aisle called the bill cruel, saying it would result in some asbestos victims dying before receiving justice. Rep. Mark Ellebracht, D-Liberty, began his criticism by imitating the breathing of someone with mesothelioma. After being gaveled to stop, he said he was actually impersonating the Missouri House suffocating the constitutional rights of its citizens. "These are people who have dedicated their lives to our service in the military, for the police force, for firefighters, construction workers, school teachers in dilapidated buildings," Ellebracht said. "I hope that you can sleep at night, without mechanical assistance, as so many people who will suffer and die from mesothelioma require." Republican Jay Barnes of Jefferson City, who's an attorney, also criticized the bill. Using firefighters as an example, he said they would have to prepare claims against the owners of every possible site where they could have been exposed to asbestos and do so within 30 days of filing suit. "How can they know that? They don't know where the asbestos came from," Barnes said. For those who discover they have a disease caused by asbestos, Barnes said they sometimes only have three to six months to live from that point. "They can't necessarily do all of the legwork needed to file suit before they die, and when they die, the evidence of where they were exposed dies with them," he said. "They suffocate to death and are never able to have their day in court against the companies who poisoned them." But Rep. Kevin Corlew, R-Kansas City, said the current system is unfair because it allows asbestos plaintiffs to seek 100 percent damages from each possible place they could have been exposed. Corlew and other supporters say the bill would set up a system in which a case with multiple defendants would result in those defendants equally sharing the burden of paying damages. The bill passed 96-48, with several Republicans joining Democrats in voting "no." It now goes to the Missouri Senate. ASBESTOS UPDATE: Woman Dies from Asbestos Exposure -------------------------------------------------- Hereford Times reported that a 70-year-old woman died after being exposed to asbestos during her career. Marilyn Beddow died on December 12 last year at St Michael's Hospice. A post mortem revealed she died from peritoneal mesothelioma which was complicated by bronchopneumonia. The inquest at Herefordshire Coroner's Court heard Ms Beddow, who lived in Thistledown Grove in Hereford, had worked at a number of different places during her career. The inquest heard she might have been exposed to asbestos while she worked as a customer services manager at Joseph Ash Ltd between 1998 and 2005. The factory in Mortimer Road had asbestos within the building structure. Coroner Mark Bricknell said: "There is no evidence of her having any hobbies or other interests which may have accounted for exposure to asbestos. Nearly all mesothelioma is caused by asbestos exposure. I am satisfied, therefore, on the balance of probability she was exposed to asbestos during the course of her employment." He concluded Ms Beddow died as a consequence of an industrial disease. ASBESTOS UPDATE: Contractor Fined for Burning Asbestos Debris ------------------------------------------------------------- Courtney Vaughn of Pamplin Media Group reported that the demolition of a house in Scappoose in 2016 led to the owner and a hired contractor being fined by the Oregon Department of Environmental Quality for asbestos violations. The DEQ says Ryan James Schumann owns a property at 54031 Sam Blehm Road in Scappoose. In December 2016, he hired Robert Lee Rook, who owns Robert Rook Contractor, based in Seal Rock, to demolish the house and get rid of debris like vinyl flooring, furniture and other materials. Investigators say much of the household debris, which contained asbestos, was burned at Schumann's request, emitting toxic fumes. Oregon prohibits openly burning potentially toxic household items like flooring, furniture, wires and other materials. DEQ fined Robert Rook Contractor $16,000 for "mishandling asbestos and illegally burning household material," a DEQ news release states. Schumann was fined $23,000. Enforcement letters sent to the contractor and Schumann from DEQ indicate the home was never surveyed for asbestos. "Vinyl flooring in the residence contained 20 percent chrysotile asbestos," the letter states. Robert Rook Contractor didn't have proper asbestos training or licensing, according to the state agency. Asbestos fibers cause lung cancer and other illnesses, the DEQ notes. "There is no known safe level of exposure. To protect public health, DEQ requires training and licensing for those who handle materials containing asbestos." Rook's enforcement letter also indicates the Scappoose Fire District responded to reports of a fire at the home on Sam Blehm Road, where the contractor was burning materials, on three separate days in December 2016. A licensed asbestos abatement contractor would have known how to remove the asbestos-containing materials and how to properly contain, label and dispose of the materials to prevent emissions of asbestos fibers into the air," the DEQ letter states. Both Schumann and Rook have the option to appeal the fines, or complete a supplemental environmental project in lieu of paying fees. ASBESTOS UPDATE: Asbestos Causes Union Boss to Retire Early ----------------------------------------------------------- Isle of Man Today reported that Mr Holmes, the island's regional officer for Unite, has stage one chronic obstructive pulmonary disease (COPD), brought on by working with asbestos in a shipyard as an apprentice aged 18. He told the Courier: 'We were originally told it wasn't harmful but I remember us all being told a while later of the risks. 'To be honest, my health isn't the best. I've got a good few years left but it is unfair to stay on and not be able to give it my fullest. 'I know the path I'm on, I've had family in the past die from asbestosis, at the moment there isn't a shadow showing on X-rays, but I made the decision with my family to step down.' Mr Holmes says at his age of 59, turning 60 in April, his socialist belief is as strong as ever. He has always had a sense of right and wrong, for fighting battles for those who are weaker than others and that is what he will be most proud of from his career. He says whoever takes over will be able to rely on him for assistance in a strictly part- time capacity and believes they face a tough time ahead. 'We have gone back to an escalation of privatisation, driven by the Chamber of Commerce. 'This government is not investing in the public sector, which is portrayed poorly. 'It does, however, lack investment by government which means services must go, eventually it comes to the public to decide what they want.' Mr Holmes went on to offer the example of the jobs at risk at University College Isle of Man, which was reported in the Isle of Man Examiner as proof of lack of investment in the public sector. He has previously called for asbestos compensation claims to be made easier in the island following the case of Peter Quirk, who died in 2014 after contracting mesothelioma due to being exposed to asbestos while working for Heron & Brearley. ********* 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, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *